Same-Sex Marriage: Decisive Law-Changing Battles (legal, Minnesota, Massachusetts, Nevada)

[Mictlantecuhtli]

A notable aspect of the same-sex marriage issue is the disparity in winning battles which change the status of same-sex marriage laws. Before this past Election Day, opponents of same-sex marriage loved to tout the claim that same-sex marriage had been defeated at the ballot every time it had come up for a popular vote (this wasn't quite true; a proposed constitutional amendment banning same-sex marriage was defeated in Arizona in 2006, but a similar though re-worded amendment banning same-sex marriage was successful two years later). At any rate, this is obviously no longer so.

It is worth noting that, with the exception of Proposition 8 in California in 2008, all of those referenda merely maintained the status quo. In contrast, on Election Day of this year alone, three referenda resulted in a change to state law in favor of same-sex marriage.

Here is a list of all the battles over the issue of same-sex marriage which have resulted in a change in state law:

State [or District] Law Changed to Allow Same-Sex Marriage
Massachusetts (2004)
California (2008, May)
Connecticut (2008)
Iowa (2009)
Vermont (2009)
New Hampshire (2009)
District of Columbia (2009)
New York (2011)
Washington (2012)
Maryland (2012)
Maine (2012)

State Law Changed to Prohibit Same-Sex Marriage
California (2008, November)

As you can see, there have been a total of 12 decisive battles over the same-sex marriage issue; that is, battles which changed state law. Supporters have won 11 of those battles, opponents only 1. California was an obvious success in rolling back same-sex marriage, though one that has since been overturned by the courts (I have not included it above since the appeal before the United States Supreme Court is still pending). Despite controlling both houses of the New Hampshire legislature by supermajorities exceeding 70%, Republicans in 2011 failed even to muster the 50% necessary to pass a repeal in either house of the state legislature. In Iowa, the failure of Republicans to capture the state senate has stalled efforts to begin the long process of amending the state constitution to prohibit same-sex marriage. Where else do same-sex marriage opponents have any realistic hope of repealing same-sex marriage? Nowhere, so far as I can see.

Conversely, the list of those states that currently ban same-sex marriage but look like fertile ground for having their laws overturned is long indeed. Unless the United States Supreme Court agrees to hear the Proposition 8 case, and overturns the 9th Circuit's ruling (highly unlikely, given the USSC's current makeup), California will soon see same-sex marriage legalized once again. In the near future, look for a high likelihood that in Illinois and Delaware, same-sex marriage will be implemented before the end of 2013. Rhode Island, Hawai'i and New Jersey (where the object is to muster enough votes by January of 2014 to overturn Governor Christie's veto earlier this year of a same-sex marriage bill) are also candidates for same-sex marriage in the near term. It looks like a referendum to repeal Ohio's same-sex marriage ban will be on the November 2013 ballot in that state, while in Minnesota the unexpected defeat of a referendum banning same-sex marriage in the state constitution, coupled with the Democrat's recapturing both legislative houses, has given rise to speculation that a bill legalizing same-sex marriage may be forthcoming. Finally, it appears that in Oregon the process of putting together a referendum for the 2014 ballot to repeal the state same-sex ban may soon be forthcoming. Finally, Colorado and Nevada seem like medium-term candidates to see same-sex marriage legalized.

Opponents of same-sex marriage have been very good at preserving the status quo. But when a battle has been resolved changing the status of a same-sex marriage law, that outcome has almost always been in favor of same-sex marriage proponents.