Comparing Institutional and Policy Explanations for the Adoption of State Constitutional Amendments

• DOI: 10.1177/1532673X11402598
• Date: 01 November 2011
• Published date: 01 November 2011
• Subject Matter: Articles

American Politics Research

39(6) 1097 –1126

© The Author(s) 2011

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DOI: 10.1177/1532673X11402598

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Comparing Institutional

and Policy Explanations

for the Adoption of

State Constitutional

Amendments: The Case

of Same-Sex Marriage

Robert J. Hume1

Abstract

The literature on state constitutional amendments remains undeveloped

despite recent activity in the area of same-sex marriage policy. Previous

studies have assumed that the adoption of state constitutional amendments

is governed by routine policy considerations, but there are strong theoretical

reasons for expecting attributes of state institutions also to affect adoption.

In this study, I compare institutional and policy explanations for the

enactment of state constitutional amendments prohibiting same-sex marriage.

Although I expect routine policy considerations to affect the adoption of

amendments, I also expect adoption to be influenced by attributes of state

institutions, in particular, the capacity of state high courts to produce

decisions favoring marriage equality. Using event history analysis, I find that

the initial consideration of amendments is driven by policy considerations

but that adoption is also guided by institutional considerations, such as the

professionalization of state high courts.

Keywords

judicial politics; state courts; constitutional amendments; professionalization;

institutional capability; same-sex marriage; gay rights

1Fordham University, Bronx, NY

Corresponding Author:

Robert J. Hume, PhD, Department of Political Science, Fordham University, Bronx, NY 10458

Email: rhume@fordham.edu

1098 American Politics Research 39(6)

States amend their constitutions with a good deal of frequency, far more fre-

quently than the U.S. Constitution is amended, and with important public

policy consequences.1 Yet, surprisingly, we understand very little about the

adoption of these amendments. What little research has been conducted

on state constitutional amendments has tended to focus on the similarities

between the amendment process and “ordinary legislative and electoral politics”

(May, 1987; see also Tarr, 1998) instead of focusing on what makes consti-

tutional amendments unique. For example, a study by Fleischmann and Moyer

(2009) used social movement theory to explain votes on ballot propositions

to prohibit same-sex marriage, finding that support varied based on the size

of the Evangelical population, the education levels of citizens, and the concen-

tration of gay organizations within particular counties, among other demograph ic

characteristics.

These types of policy explanations may be helpful in explaining why

some policy environments are particularly receptive to certain types of

amendments. However, there are limits to what these approaches can explain.

For example, it is unclear from policy explanations alone why states would

prefer constitutional amendments to statutory prohibitions of same-sex mar-

riage, or, indeed, why states would choose to amend their constitutions when

they already have statutory prohibitions of same-sex marriage in place. The

puzzling thing about recent state activity in the area of same-sex marriage

policy is that, for the most part, the amendments did little to change the pol-

icy status quo in the states in which they were adopted. As Table 1 reports,

27 of the 30 states which approved amendments had statutory prohibitions of

same-sex marriage in place at the time of adoption, many of which had been

approved within the previous decade. The primary effect of the amendments,

then, was not to change the legal status of same-sex couples or even to clarify

the status of same-sex couples under state law.

Instead, what the amendments accomplished was to prevent state institu-

tions from changing the status quo by legalizing same-sex marriage in the

future. Constitutional amendments differ from statutory prohibitions of same-

sex marriage in that they limit the capacity of state institutions to act. In other

words, amendments have institutional consequences as well as policy conse-

quences. Once citizens approve amendments, state courts and legislatures

cannot subsequently legalize same-sex marriage until their constitutions are

amended again or the amendments are superseded by federal law. It is possi-

ble, then, that the adoption of amendments is related to attributes of these

state institutions. The more capable that state institutions are of legalizing

same-sex marriage, the more likely that the public may be to support