Marriage of necessity: same-sex marriage and religious liberty protections.

AuthorWilson, Robin Fretwell
PositionV. Difficult Terrain Does Not Mean Opponents Can Hold out through Conclusion, with tables and footnotes, p. 1228-1268

V. DIFFICULT TERRAIN DOES NOT MEAN OPPONENTS CAN HOLD OUT

Same-sex marriage opponents face the real fork in the road: Should they oppose same-sex marriage to the bitter end or take a more pragmatic approach and bargain now, trading marriage equality for "substantial protections for religious dissenters[?]" (214) For some opponents (and supporters), the fight over same-sex marriage is an existential one, making it unthinkable to compromise. (215) For others, central tenets of their faith tradition direct them not to compromise on the particular question of marriage equality. (216) But for those who may be swayed by pragmatic arguments, (217) a clear-eyed view of the benefits of compromise is important. (218) Arguably, the strongest reason not to compromise is that voters have foreclosed same-sex marriage by state constitutional amendment in twenty-seven states. (219) But unlike the U.S. Constitution, which cannot be amended without great difficulty, many state constitutions do no erect momentous barriers to change.

To undo a constitutional ban, some states require a supermajority (60% or more) of legislators, followed by a majority of voters, to make any change, creating a strong lock-in effect. Consider, for example, Texas, which requires two-thirds of state legislators in both houses to pass the amendment, after which a simple majority of the electorate must also approve it. (220) In some of these states, an elaborate convention method also permits amendment, but still nonetheless requires a super-majority of the legislature. Seven of the Nonrecognizing States erect significant barriers to amendment, and therefore significant barriers to repeal (Georgia, Idaho, Kansas, Louisiana, North Carolina, South Carolina, and Texas). (221) Because this process is so onerous, once an amendment is adopted, it cannot easily be undone.

In another eight states, constitutional bans enjoy a mild lock-in effect. Alabama, Alaska, Kentucky, Nevada, Oregon, Tennessee, Virginia, and Wisconsin erect some barriers to repeal, but not ones as daunting as Texas'. (222) Generally, these states provide a legislative method for amendment, requiring only a majority of legislators and a majority of voters to amend the state's constitution. Some of these states also allow amendments by a periodic convention that either (a) requires approval by a simple majority of voters, but the convention may be called only after long periods of time (e.g., ten years), or (b) permits a convention to take place after two steps--approval by a majority of legislators and approval by majority of the electorate. Consider, for example, Virginia, which provides two paths to adoption or repeal: the legislative method--requiring approval by a simple majority of legislators in both houses and a simple majority of the electorate--and periodic constitutional conventions called by the Legislature, where voters can approve amendments by a simple majority. (223) Because amendments can pass without super-majority support in the legislature, this process creates a milder lock-in effect. Twelve states (Arizona, Arkansas, Colorado, Florida, Michigan, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, and South Dakota) fall in the final category, where constitutional bans can be adopted or repealed with relative ease. (224) A negligible lock-in state permits change with only a small fraction of voters petitioning for it followed up with a simple majority of voters voting in support of the amendment. Typically, the states require 10% of the electorate to initiate the process, but may range as low as 4% and as high as 15%. (225) Arizona is emblematic of this approach. It requires a petition to be signed by 15% of the total number of voters who cast votes for governor in the preceding election. At that point, the proposed amendment appears on the ballot to be decided by a majority of voters in a general election. (226)

In short, state constitutional amendments are surmountable in all twenty-seven Nonrecognizing States, as Figure 23 shows. In all but seven states, constitutions can be surmounted without "supermajority" votes by the legislature.

While constitutional amendments contribute to the difficult political terrain, it is clear that legislation to recognize same-sex marriage will be possible in nearly all of these states by the end of the decade, as Figure 24 shows.

By 2020, putting aside the lock-in effect, virtually every state is likely to have sufficient support to recognize same-sex marriage. Only six states show support below 50% and all but two are within a few percentage points of a majority. Average support for same-sex marriage will crest 55.8% across the Nonrecognizing States. Mississippi brings up the bottom with support at 37.8%, while at the top end, support in Oregon will hit 65.4%. 2020 may seem a long way away, but constitutional bans are fragile today, at least in the negligible and mild lock-in states.

Because so many state constitutional bans can be undone with a fraction of the population's signatures and majority support, it is important to stay focused on the tide of popular support. Figure 25 shows actual support in 1994-96, actual support at the time of the constitutional amendment, and actual support in 2008, as well as projected support for 2012 and 2016.227 It shows that of the states with negligible lock-ins, by 2012, a majority of the population in ten of the twelve do support same-sex marriage or are within striking distance of majority support (Arizona, Colorado, Florida, Missouri, Montana, Michigan, Nebraska, Ohio, North Dakota, and South Dakota). (228) By 2016, only four of the negligible lock-in effect states would not have majority support for same-sex marriage (Arkansas, Mississippi, Missouri, and South Dakota). (229) Because the constitutions in these states are almost as easy to amend as enacting ordinary legislation, the need to bargain now is at its greatest.

Figure 26 further illustrates the flimsiness of state constitutional amendments. Of the eight mild lock-in states, a majority of the populations in three states (Nevada, Oregon, and Wisconsin) already supported same-sex marriage by 2012, putting those bans at risk today. (230) By 2016, in more than half of the states, five of the eight, a majority of the population will support same-sex marriage (Alaska, Nevada, Oregon, Virginia, and Wisconsin). (231)

Figure 27 does paint a different picture. The strong lock-in effect states generally show low support for same-sex marriage. The seven strong lock-in states are not likely to enact same-sex marriage in the near future, based either on public support or the strength of the constitutional amendment. (232)

In only those states where projected support likely will remain well below 50% by 2020 (Mississippi and Alabama) and those strong lock-in states (Georgia, Idaho, Kansas, Louisiana, North Carolina, South Carolina, and Texas) are opponents reasonably assured of being able to push back same-sex marriage if the question is left to the political process. While no one can predict with confidence what the future holds, (233) how one bargains today is often influenced by how one perceives the future and the bargain one believes one can strike tomorrow or beyond.

Even with the difficult terrain, in the long term, advocates are likely to secure same-sex marriage in the political process when popular support eventually overpowers all other characteristics. For same-sex marriage opponents who may be tempted to rely on the more difficult terrain facing advocates, (234) Utah and Oklahoma are illustrative.

Judicial decisions in Utah and Oklahoma underline what is at stake. Oklahoma and Utah shared a number of characteristics suggesting that both would have been among the last states to adopt same-sex marriage by legislation. Party representation, religiosity, education, lack of statewide sexual orientation protections, the presence of a constitutional amendment against same-sex marriage, and low support for same-sex marriage all played to the opposition.

A majority of people in Utah is not projected to support same-sex marriage until 2020. In 2016, Silver estimates 48.1% would support same-sex marriage. Utah's Republican-controlled legislature and Republican Governor, its status as the second most religious state in the nation behind only Mississippi, its lack of a statewide sexual orientation nondiscrimination law, and strongly locked-in constitutional amendment all would make the reasonable observer believe that Utah would not legislatively adopt same-sex marriage any time soon. Only its relatively educated populace, just outside of the top one-third and nineteenth overall for the United States, would suggest otherwise.

Oklahoma is not much different. Projected support in Oklahoma barely breaks a majority in 2020, with only 51.5% projected to favor same-sex marriage--up from a projected 44.7% in 2016. Oklahoma's Republican legislature, Republican Governor, high religiosity (top one-third), low education levels (bottom one-third), and lack of statewide sexual orientation protections suggest Oklahoma would have been a very late adopter. Oklahoma's negligible lock-in effect for its constitutional ban would have mattered little in light of very low support for same-sex marriage. Utah and Oklahoma illustrate the risks of delay for religious liberty advocates. What should legislators in Utah and Oklahoma (and elsewhere) do now? Where federal district court decisions require that same-sex marriage be recognized, legislators who otherwise may not be inclined to grant marriage equality by statute should act to do so, locking in religious liberty protections pending the appeal.

With all the attention paid to judicial decisions in Utah and Oklahoma, it is easy to forget that a number of constitutional amendment states are in play. A ballot initiative underway now in Ohio seeks to overturn Ohio's 2004 Constitutional Amendment. In...

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