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Four Same-Sex Marriage Referendums

August 31, 2012

Conservatives notoriously used “gay marriage” referendums to turn out their base in the 2004, 2006 and 2008 elections.  Whatever the success of the tactic in changing the outcome of elections for state and federal offices, it was quite a success in excluding same-sex couples from legal marriage.

I’ve found 34 state referendums on same-sex marriage from 1998, when 69 percent of Hawaiians authorized their legislature to prohibit marriage equality, to May 2012 when 61 percent of North Carolinians voted to amend the state constitution to limit marriage to opposite-sex couples.  Opponents of marriage equality have won 33 of 34 referendums.

Thirty-one of the referendums considered state constitutional amendments to prohibit same-sex marriage.  One referendum (Hawaii in 1998) amended the state constitution to authorize the Hawaii legislature to enact a statutory ban on same-sex marriage – which the legislature promptly did.  One referendum (California in 2000) directly enacted a statutory ban on same-sex marriage.  And one referendum (Maine in 2009) vetoed a legislatively enacted statute authorizing same-sex marriage.

The one referendum success for same-sex marriage came in Arizona, in 2006.  In that case, the referendum would have enacted a constitutional prohibition against same-sex marriage, and also against all legal civil unions and domestic partnerships, whether same-sex or opposite-sex.  Arizonans voted that one down by a margin of less than four percent.  In 2008, Arizonans enthusiastically enacted a state constitutional prohibition that was limited to banning same-sex marriages.

Same-sex marriage advocates have been disappointed more than once, as opinion polls going into referendum elections showed close votes, or even majority support for marriage equality.  But voters have consistently disappointed those advocates.  A 2010 study of “every available” public opinion poll in advance of a marriage equality referendum showed that polls have overestimated support for marriage quality by an average of seven percent.  The study, by Patrick J. Egan, concluded that the polling bias doesn’t differ between polls taken by interview and automated polls, and that polling bias doesn’t diminish as the referendum gets closer.

Interestingly, however, the Egan study found that the gap between stated voter intention and actual referendum results had diminished over time, which Egan attributed to decreasing intolerance of gay people.  As of 2009, Egan estimated that gap at about five percent.

There are four marriage equality referendums on the ballot this year:  in Maine, Maryland, Minnesota, and Washington.  Maryland and Washington are voting on proposed vetoes of marriage equality legislation.  Mainers are voting directly on a proposed marriage equality statute.  And Minnesotans are voting on adding a prohibition against same-sex marriage to the state constitution.

Although there was a fair amount of polling done on these referendums this spring, there has been very little published polling since June.  Presumably we’ll see more referendum polling as presidential and other state polling picks up after Labor Day.

During the spring, polling in Maine showed a pro-equality margin that should be sufficient to beat Egan’s polling bias – 13 percent in one poll and 18 in another.  In Washington, the most recent poll showed a pro-equality margin of 51 – 42, maybe just enough to beat the bias.  This would give us eight states in which same-sex marriages can legally be performed.

In Maryland, opinion polling has shown significant movement in favor of marriage equality – from a 49 – 47 margin in January to a 57 – 37 margin in May.  The May poll was taken a few days after President Obama announced his support for same-sex marriage, so the poll may reflect some temporary enthusiasm for marriage equality.  Without more recent polling to tell us if the May poll, was a fluke, and in light of the systematic polling bias Egan found, Maryland is probably too close to call.

Minnesotans polled in June favored same-sex marriage by 47 – 42, with 11 percent undecided.  Given such a close margin, Egan’s polling bias findings suggest that Minnesota will become the 31st state to adopt a constitutional prohibition against same-sex marriage.  A mid-July poll by KSTP, a Minneapolis-St. Paul TV station, found that Minnesotans favor the amendment by 52 – 37 percent – although it’s not clear how seriously we should take KSTP as a polling institution.  (An earlier KSTP poll, using a very poorly constructed same-sex marriage question, showed Minnesotans as being against the amendment by a substantial margin.)

If Maine, Maryland and Washington vote for marriage equality, and Minnesota votes against, the state of the union will be:

  • Nine states permit same-sex marriage;
  • Seven states prohibit same-sex marriage by statute alone;
  • Thirty-one states prohibit same-sex marriage by constitutional provision; and
  • Three states have no explicit prohibition.

On this landscape the Supreme Court will decide the constitutionality of the federal Defense of Marriage Act and of California’s Proposition 8.

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