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Gay Marriage.

Today, The Boston Globe released the results of a nationwide survey on gay marriage.

When asked the broad question, framed in human terms, the American people generally express higher levels of support for living and let live. Nonetheless, a majority of Americans still disapprove of allowing gays and lesbians to marry:


Broken down by age cohort, the results were somewhat intuitive:

Thirty-nine percent of respondents between 18 and 34 said they disapprove of gay marriage, compared with 46 percent of those between 35 and 49, 51 percent of those ages 50-64, and 64 percent of those older than 65.

Question wording played a significant role in the results. When people are asked whether gays should be allowed to marry, as in the Globe survey, support is noticeably higher than when people are asked (in the CNN/USA TODAY/GALLUP poll):

"Do you think marriages between homosexuals should or should not be recognized by the law as valid, with the same rights as traditional marriages?"

In March, 28% responded that gay marriages should be valid, while a whopping 68% said they should not be valid, underscoring how subtle changes in survey questions can produce profoundly different results.

We're talking a 18 point swing away from the traditional position, and a 9 point swing toward the pro-gay marriage position, just on the basis of question wording.

More interesting than the poll numbers, however, was the Globe's coverage of the nation's reactions to the Massachusetts Supreme Judicial Court ruling on May 17, 2004, mandating same-sex marriage from the bench.





America may or may not one day begrudgingly accept (or perhaps, even, enthusiastically support) gay marriages, but what this backlash indicates more than anything is that the American people do not like legislative decisions being made in the courts. Indeed, following the recent federal court decision to rule Nebraska's gay marriage ban (which garnered over 70% of the vote) unconstitutional, Gerry Daly believes Nebraska's voters will take out their frustration on Senator Ben Nelson, a Democrat, in 2006.

Ultimately, most Americans are uneasy about amending the United States Constitution, especially on something perceived by many to be a denial, rather than extension, of rights. One year ago, it seemed that President Bush's support for a Constitutional amendment defining marriage as an institution between one man and one woman was only political strategery, that there was a snowball's chance in Houston of one actually making it all the way through, that it would signal to judges to back off on the issue or risk an over-correction in the other direction.

And for a while, the gay marriage issue went away, out of the political consciousness, which was the best thing that could happen to the gay rights movement.

Now, however, as judges continue to go out of their way to mandate gay marriage against the will of overwhelming majorities of regular Americans across the country, the chances of the nation approving an amendment banning gay marriage increase dramatically.

A few things could catalyze Americans to ban gay marriage nationally through an amendment to the Constitution. One, judges continue striking down popularly approved state-wide gay marriage prohibitions. There's a tipping point somewhere there, when enough states have had their popular will denied by out-of-state judges (likely, but not necessarily, appointed by William Jefferson Clinton), that people will revolt. Another potential cause for a truly "nuclear option" on the gay marriage issue is if the Supreme Court itself finds in favor of same-sex marriage. There will inevitably be a case involving a gay couple who will have gotten married in Massachusetts (or elsewhere), but is denied recognition of the marriage in Missouri or Montana. If the Supreme Court determines that a gay marriage in one state must be recognized in another, even if the citizens of that state explicitly do not want to recognize it, watch out for flying sparks.

In the Globe survey, the country is somewhat evenly divided:


However, if and when a traditional-marriage state is forced to recognize a gay marriage from another state, those numbers will move, and in a hurry. In measuring how American public opinion would affect an amendment banning gay marriage, you can essentially toss out the 12 most liberal states.

It takes 38 states to ratify an amendment, and if the issue is framed in terms of activist judges forcing a left-wing agenda on the American people, and, meanwhile, the gay marriage ban is framed in terms of protecting traditional marriage from the unelected liberal onslaught (rather than denying rights to a particular group), you better believe that the U.S. could be capable of passing a Constitutional amendment.

If the gay marriage amendment battle comes to a head, the action immediately moves to the individual states. You'll see aggressive and customized campaigns across the country on both sides of the issue, targeted to the local sentimentalities on the issue.

Ultimately, a Constitutional amendment defining marriage is unnecessary, but it depends on how gay marriage advocates play their cards. Judges should understand that support for traditional marriage comes from a far broader cross-section of society than merely the "right-wing" or "Christian conservatives" or "religious-right." Support for defining marriage as "one man plus one woman" cuts across partisan and ideological lines, and the American people are not bluffing on the issue.

The generational gap (and the passing of time) on the gay marriage issue is the best weapon of gay marriage advocates, but even generational turnover is not enough to guarantee same-sex marriage in America's future; the most ardent of gay rights activists should know that hasty advances in the courts today may lead to a permanent (and completely avoidable) Constitutional setback tommorow.

Polipundit examines the issue further, looking into the margins of support for gay marriage bans in individual states:

57-43 = Oregon.

59-41 = Michigan.

61-38 = California.

62-38 = Ohio.

66-34 = Utah.

67-33 = Montana.

70-30 = Nebraska.

70-30 = Nevada.

71-29 = Kansas.

71-29 = Missouri.

73-27 = North Dakota.

75-25 = Arkansas.

75-25 = Kentucky.

76-24 = Georgia.

76-24 = Oklahoma.

78-22 = Louisiana.

86-14 = Mississippi.


Posted by Will Franklin · 15 May 2005 12:12 PM


I think gay marriage should be allowed as long as they are two consenting adults ...

Posted by: Zsa Zsa at May 15, 2005 12:44 PM

Your "Currently" map is utterly irrelevant in one important sense: gay marriage did not exist before their DOMA laws anyway.

The "backlash," and that map, properly defined, is: "states that went from 'no gay marriage' to 'no gay marriage -- and we mean it!'." To which the proper response is "big deal."

Posted by: KipEsquire at May 15, 2005 01:09 PM

Will, I just couldn’t let this pass:

“Now, however, as judges continue to go out of their way to mandate gay marriage against the will of overwhelming majorities of regular Americans across the country, the chances of the nation approving an amendment banning gay marriage increase dramatically.”

What planet is this? Can you name some of the judges who “continue to go out of their way to mandate gay marriage”? I know of no judge who has gone out of his/her way to rule on anything. To my knowledge, five or six state superior courts to date have ruled, in cases that came before their courts, that denying the legal, social and economic advantages of civil marriage to same-sex couples and their children is discriminatory and violates constitutional Equal Protection and Due Process provisions. In Massachusetts, the single state where gay and lesbian couples have been given the right to get a marriage license, polls show the majority of citizens approve of same-sex couples and their children acquiring such rights and protections. So what are you talking about?

I think we all know enough US history to conclude that quite often the “will of regular Americans”, when enacted into to law, has created a discriminatory and immoral situation, oftentimes causing great, unnecessary suffering. Those who have historically advocated to end the discrimination and injustices against minorities are invariably seen as the more humane group.

According the polls I’ve seen, the greatest majority of people have always believed that eventually same-sex marriage will be fully recognized. Perhaps even those who wish to willfully exclude gay and lesbian couples from marrying at least unconsciously know that the anti-gay amendments/laws are another occasion of useless and hurtful discrimination?

“There's a tipping point somewhere there, when enough states have had their popular will denied by out-of-state judges . . .”

What is an “out-of-state judge”? Isn’t that a weird attitude? Judges in federal courts are not “out of state”, and state court judges do not have jurisdiction in out-of-state matters.

In any case, after legal recognition of same-sex relationships has been instituted in a country or subset thereof, polls usually indicate that people who initially opposed this tend to change their minds and subsequently support such equality. This is only reasonable, no doubt due to people being relieved of their irrational fears, and perhaps seeing that an equal society is a better society. I doubt one would be able to find much evidence that the majority of people maintain their opposition to legalizing same-sex unions for long after it has become law.

“Ultimately, a Constitutional amendment defining marriage is unnecessary, but it depends on how gay marriage advocates play their cards. Judges should understand that support for traditional marriage comes from a far broader cross-section of society than merely the "right-wing" or "Christian conservatives" or "religious-right." Support for defining marriage as "one man plus one woman" cuts across partisan and ideological lines, and the American people are not bluffing on the issue.”

As far as I know, generally those who advocate equal rights for gay and lesbian people are playing the only constitutional card there is: Equal Protection and Due Process. Being inept at spin, I can’t think of how to play this card any differently for judges. Can you? Naturally, the civil liberties groups that file suits on behalf of same-sex couples (Lambda Legal, ACLU, GLAD, et al.) are strategic in the cases they pursue.

I know of nothing that should compel a judge to consider who popularly supports the different sides in any case before them, and there is every reason why judges should not take popular opinion into account in their decisions. To wit: the Supreme Court would have made a terribly unfair and, as most people now agree, an unconstitutional ruling in Loving v. Virginia in 1967 had the justices included consideration of the large majority of Americans’ disapproval of interracial marriage.

The whole purpose of having judges uninvolved in democratic elections is to ensure their independence from the prejudices and uproar of the “popular will,” of course. (The “popular will” is undoubtedly often uninformed in the relevant and important legal and constitutional issues involved in court cases.)

Since you mention “traditional marriage,” I cannot think of any court ruling in the past 30 years that directly or substantially affected “traditional marriage”--whatever that is. Can you? None of the state superior court rulings on the right of same-sex couples to marry had any effect on any heterosexual marriages, of course. Not one heterosexual couple in Massachusetts had any of their rights denied or obstructed due to the SJC’s ruling. All the laws governing marriage remained exactly the same except for the singular change in the designations that excluded same-sex couples.

Isn’t it instructive (and necessary) to define what one means by “traditional marriage,” rather than using the term as a buzzing empty platitude? Traditions of the past include prohibiting interracial marriage, as well as civil marriage for African Americans and Native Americans altogether; and forbidding divorce and remarriage. There is very good evidence that the church traditionally blessed and officially recognized the union of same-sex couples hundreds of years before it instituted marriage between different-sex couples as a religious sacrament (see John Boswell). Certainly Roman law traditionally recognized same-sex unions. And, of course, King Solomon was entirely traditional with his several hundred wives (and even more concubines). So what is the point, if there is one, about “traditional marriage” and who supports it?

To the best of my knowledge, same-sex relationships are absolutely traditional in their characteristic of mutual and selfless love and commitment. One would only hope that most legally recognized marriages would be based on and exhibit such defining features. The fact that gay and lesbians relationships have historically been discriminated against doesn’t mean they lack any traditionality.

For people whose concern about heterosexual marriage is suddenly provoked by the mention of same-sex marriage, it’s odd and suspicious that there is no panic and gnashing of teeth about those legal changes that have definitely had a direct and substantial effect on heterosexual marriage, such as legalizing no-fault divorce; repealing laws that criminalized male and female adults having sex or living together in the same house, and that took away a woman’s parental and property rights upon marrying; and the SCOTUS ruling to allow couples access to birth control. Apparently not so many people supported “traditional marriage” in these contexts.

I know of no indication that those who advocate for the equal right of gay and lesbian couples to enjoy the protections and advantages (for themselves and their children) that come with civil marriage are in any way unsupportive of heterosexuals getting married. I know of no supporter of equal marriage rights who has tried to prevent the legal recognition of heterosexual marriage. What a contrast with the converse! Gay and lesbian Americans and other equal rights supporters, as well as those judges (most or all of whom are married) who have struck down discriminatory marriage laws, all (as far as I can discern) nevertheless support heterosexuals getting married, support heterosexuals’ right to marry and support the full legal recognition and enjoyment of heterosexual marriages. There is no battle to prevent or withdraw legal recognition or to be unsupportive in any way of heterosexual marriage, is there? The battle being waged is by a segment of heterosexuals (usually married, often multiple times) who wish to prevent the legal recognition of gay and lesbian marriages. It is false or delusional to spin the idea that the battle concerning same-sex marriage divides between “supporters of traditional (or heterosexual) marriage” vs. non-supporters.

“. . . support for traditional marriage comes from a far broader cross-section of society than merely the "right-wing" or "Christian conservatives" or "religious-right." Support for defining marriage as "one man plus one woman" cuts across partisan and ideological lines . . .” suggests that there is some other shared perspective or ideology of those who support anti-gay amendments/laws--and, yes, there is; you simply neglected to mention that it is the “ideology” of homophobic/heterosexist bigotry, the desire to ensure that gay and lesbian Americans remain second-class citizens barred civil rights and protections that the majority take for granted and see as fundamental. To suggest otherwise, to suggest that there is some truly rational ideology motivating these measures, is like saying that there was some ideology motivating the Nazi’s persecution of Jews other than base anti-Semitism.

I feel confident that one can easily substantiate that those who oppose equal marriage rights for gay and lesbian couples, as well as other rights such as consensual intimacy, fall into certain common demographic categories, such as being less educated, more politically “conservative,” attend church more often, are less likely to have openly gay friends, are older, have more negative attitudes toward gays and lesbians and other minorities, more often believe sexual orientation is willfully chosen (despite or in willful ignorance of overwhelming evidence to the contrary), etc., etc. Let’s not bluff ourselves, it really doesn’t take much knowledge about a person to peg a homophobe. It seems rather disingenuous to fail to mention this “ideology” when examining the subject.

There’s no real mystery about the motivations behind the any “popular will” to deny gay and lesbian Americans equal marriage rights. Even the best legal minds have been unable to stand in front of a panel of judges and articulate a rational basis for or state interest in this discrimination. The motivation is not rational, it is bigotry. In fact, when queried about the individual benefits and protections that come with civil marriage, a majority of people agree that gay and lesbian couples should be have them.

And of course, polls always show that even in the US obviously a quite substantial percentage of people who have no interest in being a party to a same-sex marriage believe that gay and lesbian couples should be able to enjoy the fundamental rights and protections that come with civil marriage. Indeed, I have not seen any national poll from which one could conclude that more people endorse a federal anti-gay marriage amendment than the combined number of those who support either same-sex marriage or civil unions, when given such options.

If the question is whether the “popular will" that you perceive will bring about a federal anti-gay marriage amendment, I am unaware of any legal scholars who believe this will happen. And even though the US does have a history of persisting in discriminatory and inhumane treatment of minorities well after other countries have ceased such practices, there are a variety of reasons why I agree with the scholars. Many people have written about a perceived "backlash" since the Massachusetts and sodomy rulings, and some state legislatures have in fact recently declared open season on gay and lesbian Americans--doing so has long been a favorite vote-getting and fund-raising tactic of the ultra-rightwing and politico-religious crowd. But the fact is, more anti-gay marriage amendments were defeated in state legislatures than were passed during the past 12 months. This is in addition to Connecticut’s legislature that passed a civil union law, and Maryland’s domestic partnership law (of which the governor’s veto could be overridden); two states that are considering same-sex marriage or civil unions laws (California and Oregon respectively), or the four state legislatures that have strengthened workplace protections for GLBT employees (Colorado, Hawaii, Illinois and Maine). There is also every indication of an upcoming ruling for marriage equality in New Jersey, where the majority of people support such a measure. These measures I'm certain we can all celebrate.

Posted by: Jerzy Hart at May 24, 2005 11:43 AM