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What’s Next for Same-Sex Marriage: Legislation, Election, Adjudication

November 13, 2012

After Minnesota voters this month rejected a state constitutional amendment to prohibit same-sex marriage, opponents of marriage equality have relatively few places to turn. Thirty states already prohibit same-sex marriage by virtue of amendments to their state constitutions, and nine states and the District of Columbia allow same-sex marriage. That leaves only eight states that prohibit same-sex marriage by statute (not by constitutional provision) and three states with no explicit same-sex marriage ban at all.

The reddest of those 11 states are Indiana, West Virginia and Wyoming. But marriage equality opponents have repeatedly failed to get legislators in West Virginia and Wyoming to approve constitutional amendments. Indiana legislators approved such an amendment in 2011, with a second approval required in he 2013 – 2014 session for the issue to go to a referendum. Marriage equality opponents are hoping to hold that voter referendum in the next year or two. Surprisingly, a 2011 poll showed Indianans in favor of marriage equality rights by a 47 – 43 plurality.

Same-sex marriage advocates, fresh off their stunning five-state sweep on November 6, are targeting six states for legislative action (Delaware, Hawaii, Illinois, Rhode Island, Minnesota, and New Jersey) and two states for voter referendums (Oregon in 2014, and California – if the court ruling striking down California’s constitutional ban is overruled by the Supreme Court).

Perhaps most interesting of the legislative battlegrounds is Minnesota. Although Minnesota voters rejected a constitutional amendment, a statutory ban on same-sex marriage remains in place. On top of rejecting the constitutional amendment on Election Day, Minnesota voters returned Democrats to control of both houses of the Minnesota legislature – joining Democratic Governor Mark Dayton, a marriage equality advocate.

But an Associated Press analysis shows that 27 Democratic legislators will be representing districts that went in favor of the constitutional amendment, and conversely 29 Republicans will be representing districts that went against the amendment. In some cases, the margins were large – putting those legislators to a choice between voting with their parties and voting with their constituents. Some Democratic legislators are already expressing hopes that they won’t have to vote on the issue for the next couple of years.

New Jersey is another interesting case. New Jersey legislators passed marriage equality legislation last February. Governor Chris Christie vetoed the bill, and advocates lacked the votes to override the veto. New Jersey state legislative elections are held in odd years, so New Jersey voters’ next chance to increase the pro-equality margin in the legislature is still a year away. Meanwhile, the vetoed bill remains technically pending in the state legislature, where theoretically voter sentiment could motivate enough vote changes to override Christie’s veto. The February votes were 24-16 in the New Jersey Senate and 42-33 in the Assembly, meaning that advocates would need to pick up only three votes to override in the Senate, but 12 votes to override in the Assembly.

Illinois is promising. Democrats made big gains this month in both houses of the state legislature, and Democratic Governor Pat Quinn is a marriage equality supporter.

Rhode Island is America’s most Democratic state, and Democrats this election increased their position to near-monopolies in both houses of the state legislature: 32 of 38 Senate seats and 69 of 75 House seats. In 2011, the legislature enacted a civil union law – by a wide margin in the House, but only by 21 – 16 in the Senate. A marriage equality law was introduced but didn’t command support and wasn’t brought to a vote in either chamber.

Although the Rhode Island electorate is 43 percent Catholic, a Brown University poll in 2009 showed that 60 percent of voters favor marriage equality. Independent Governor Lincoln Chafee has said he will sign marriage equality legislation if it passes.

Meanwhile, no fewer than six petitions involving same-sex marriage are on the U.S. Supreme Court’s November 20 conference calendar. Five of the petitions concern the Defense of Marriage Act – specifically, the section of DOMA that prohibits the federal government from recognizing a same-sex marriage that is valid under state law. The sixth petition raises a bigger question, whether a state (in this case, California) may constitutionally refuse to permit same-sex marriages. Up for discussion at the November 20 conference is whether to grant full Supreme Court consideration to any or all of these cases.

My own prediction is that the Court will agree to consider both issues: the DOMA issue and the broader same-sex marriage issue. Ultimately, I think the Court is likely to strike down the DOMA provision that prohibits federal recognition of state-licensed same-sex marriages. But I don’t think the Court is ready just yet to rule that all states must permit same-sex marriages. For that to happen, we will need a number of additional states to enact marriage equality.

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