Marriage for gay and lesbian couples has been a hot button issue, most especially so in the 2004 election cycle when 11 states considered and passed referendums banning (in various ways) same-sex marriages. In 2006 an additional 8 states voted on marriage ballot measures, with only Arizona defeating the proposal. In all, 41 states have statutes defining marriage as "between one man and one woman", and 27 states have put that definition into their constitutions. Only five states currently have no law banning same-sex unions (MA, NJ, NM, NY, RI). In 2008, Florida will have a "defense of marriage" amendment (DOMA) on the ballot, while California is awaiting certification of a ballot proposal and Arizona may reconsider its 2006 initiative (currently awaiting state Senate approval). (An excellent summary of the status of same-sex marriage in the states is available here.)
Despite this overwhelming majority among other states, the California Supreme Court last week ruled that the state cannot constitutionally withhold the right to marriage from same-sex couples. (Text of the ruling is here. The LA Times initial report on the decision is here.) Supporters of gay marriage hailed the decision as a breakthrough for fundamental rights, in line with the same California Court's decision in 1948 striking down laws banning inter-racial marriage. Opponents of gay marriage argued the ruling puts the issue squarely back on the table for 2008 and confirmed the opponents argument that only constitutional amendments can prevent courts from overturning popular opinion on this issue. In 2000 California passed, by a 61%-39% majority, Proposition 22 affirming that "only marriage between a man and a woman is valid and recognized in California."
California has one of the strongest domestic partnership laws in the nation, so the Court's decision has the effect of ruling that by withholding the designation "marriage", such domestic partnership laws still fall short of the equal treatment required by the state constitution.
The California decision follows the Massachusetts Supreme Court's ruling of November 18, 2003 which ultimately made Massachusetts the first, and so far only, state to legalize same-sex marriage. (Rhode Island law recognizes same-sex marriages from other states.) Subsequently, the state Supreme Courts of New York, New Jersey and Washington have each declined to find a constitutional right to same sex marriage. Four states have civil union laws providing full state-level spousal rights (CT, NJ, NH and VT) while six have domestic partnership laws that provide varying degrees of spousal rights (DC, HI, ME, OR, WA plus the California law at issue in this decision).
In light of the California decision, let's take a look at public opinion on same-sex marriage and how opinion has responded to past events.
A typical question asks "Do you strongly favor, favor, oppose, or strongly oppose allowing gays and lesbians to marry legally?" (This is the form used by the Pew Research Center polls. There is considerable variation in question wording, but most polling has used a similar dichotomy between favoring gay marriage or opposing it. I've collapsed "degrees" of support or opposition into a dichotomous measure for all polls.) The earliest use of such a question I could find dates back to September 1985, but it was not until 1992 that the question began to be asked regularly. There was a flurry of interest in the question following the Massachusetts ruling and during the 2004 election campaign.
If we rely on that first poll alone, in 1985 82% of the public opposed same sex marriage, while only 11% supported it. By the early 1990s, when the data become richer, opposition was at about 65% while support stood at about 28%. Congress passed, and President Clinton signed, the federal "Defense of Marriage Act" in September 1996, but public opinion trends seem not to have noticed at all, neither rising nor falling around that time. By the week of the California ruling, May 15, 2008, opposition had declined to about 55% while support had grown to 40%. The net effect of some 16 years of public debate was a 10 point decline in opposition and a 12 point rise in support.
But that trend was not uniform. The Massachusetts ruling, and the 2004 election campaign, coincided with a sharp, if relatively short term, disruption of the previous slow but steady decade long shift of opinion. The Massachusetts Court decision placed the issue squarely on the public radar, and the 11 state ballot proposals in the 2004 election created the setting for public debate and political exploitation of the issue.
During the year from November 2003 to November 2004, opposition to same-sex marriage rose by five points, from 55% to just over 60%. Meanwhile support fell by about eight points, from 38% to 30%, then rebounded by a point or so by election day. (These shifts slightly predate the Massachusetts decision, probably reflecting the increased visibility of the issue prior to the Court's ruling.) The impact of these shifts and of the 11 referendums that were passed on the presidential election remains debatable. Initial punditry credited the referenda with helping defeat John Kerry, especially in Ohio. More careful subsequent analysis doubts much of an effect, however.
These sharp shifts in trend reversed direction immediately following the 2004 election, but took more than two years to return to pre-2004 levels. Support returned to 2003 levels in mid-2007 while opposition has only now, in May 2008, declined back to where it stood in mid-2003. Despite this slow recovery from the 2004 "shock", the 2005-08 trend lines make it clear that public opinion returned to its previous trajectory of slowly rising support and declining opposition in the aftermath of 2004. It is also interesting that the 2006 elections, with 8 states voting on referenda, made no discernible difference to the post-2004 trend. In part this may reflect the more limited number of states, but it also reflects some decline in the saliency of the marriage issue.
The California ruling, and the likely campaign over a proposition there to modify the state constitution this fall, will test whether increasing the salience of the issue will result in a replay of the 2003-04 dynamics, with opponents stimulated and supporters in retreat, or if the 2006 experience means that the issue is no longer the motivator it was in 2004. The 2003-04 data clearly show the potential for sharp changes when the marriage issue becomes extremely salient. That the fight will take place in the most populous state in the Union also guarantees national exposure. However, the fact that most states have already settled this issue through law or amendment, and that only three states (so far) are on track to have proposals on the ballot, means that the issue is more localized than it was in 2004.
Opinion now is not much different from where it was in mid-2003, so a similar reaction is possible but there may be an element of "been there, done that" as well. The novelty of the issue is surely much reduced now than it was five years ago, though the record of referenda passing in 7 of 8 states in 2006 certainly demonstrates that opposition to same-sex marriage remained strong even in a very pro-Democratic election year. (Wisconsin, for example, reelected a Democratic governor and flipped a House seat to the Democrats but also modified its constitution to ban same sex marriage or anything substantially equivalent to marriage.)
The big question is whether the marriage issue has any carry over to the presidential vote in 2008. Democratic politicians, including Senators Clinton and Obama, have tried to insulate themselves by opposing gay marriage. Instead, they support civil union or domestic partner legislation. Senator McCain opposes same sex marriage and opposes legal recognition of same sex partnerships, but also opposes a federal constitutional amendment. This line of debate, with both parties opposing marriage, but with Democrats willing to support some legal recognition short of marriage, reflects another way to framing the question, one that is significantly more favorable for limited rights for gays and lesbians.
(Note: This chart is scaled the same as the previous chart so the dynamics and time frame are directly comparable. The large white space prior to 2000 reflects the politically relevant point that in that time period the "civil union" option was not prominent enough to be included in polling questions.)
Beginning in 2004 (with one early exception in 2000), polling organizations began asking a question with three alternatives. The CBS News question wording is representative:
Which comes closest to your view? Gay couples should be allowed to legally marry, or gay couples should be allowed to form civil unions but not legally marry, or there should be no legal recognition of a gay couple's relationship?
When the "civil unions" option is added, opposition to gay rights drops significantly from about 55% to 40%. Likewise, support for gay marriage drops from 40% to 29%. The "comfortable" middle ground is then some 26% who are willing to support civil unions so long as they fall short of "marriage".
This "half a loaf" approach is acceptable to only some in the gay rights community, but it is precisely the politically acceptable position that Democratic politicians think can move them from the losing side of public opinion to the winning side. If we add supporters of marriage to supporters of civil unions, we get the chart below.
This is now a near mirror image of the balance of opinion in the first chart. Now about 53% support either civil unions or marriage, and a minority of 40% oppose any legal rights for gay and lesbian couples. By assuming supporters of marriage will not punish them for the expedient support of only civil unions, Clinton and Obama (and many other Democrats) have tried to turn a losing position into a winning one.
The remaining uncertainty is whether opponents of any legal recognition are more intense than the supporters of civil unions. If so, then opposition groups may still win the battle between intense minority and lukewarm majority. On ballot propositions, the record is strongly in favor of the opponents of marriage and in some cases of civil unions as well.
The Clinton-Obama position will certainly not win over opponents of any form of legal recognition for gays, but then they probably wouldn't win many such voters in any case (an exception is African-Americans, many of whom are quite opposed to marriage or civil unions.) Whether their position provides them popular support in response to attack ads on this issue remains to be seen.
