Gay Activists Hopeful in Colo., S.D., Wis.
By Kavan Peterson, Staff Writer
After a series of stinging judicial defeats for same-sex marriage this summer, both sides of the issue are looking to November's elections as a test of how far public attitudes have changed toward gay couples.
For the first time, gay marriage advocates see a chance in at least two states — South Dakota and Wisconsin — to vote down proposed constitutional amendments to ban same-sex marriage. Colorado may be offering voters a chance to ban gay marriage but at the same time adopt a first-ever ballot measure that would legally sanction gay and lesbian relationships and offer them most of the benefits of marriage.
Since the historic Massachusetts high court ruling in November 2003 legalizing same-sex weddings, gay marriage supporters have suffered a steady drubbing. A backlash since the Massachusetts ruling spurred 16 states so far to adopt constitutional amendments to ban same-sex marriage, bringing to 20 the state constitutions that limit unions to a man and woman.
Two of three state supreme courts to hear arguments on same-sex marriage - in New York and Washington - rejected the reasoning of the Massachusetts court and ruled in July that gay couples have no constitutional right to marry. A decision from New Jersey's highest court is pending.
The back-to-back rulings were dispiriting blows for gay marriage supporters. But despite the judicial defeats and an unbroken string of voters adopting state gay marriage bans, gay rights activists contend that public opinion may have shifted far enough in their favor to gain a rare victory at the ballot box this November.
Recent nonpartisan polls indicate that South Dakota and Wisconsin may be the first states voting on a gay marriage ban where the outcome is not a foregone conclusion. In Colorado, where there may be three gay marriage measures on the ballot, both sides say their own surveys show the electorate leaning toward adopting both a domestic partnership measure and a ban on gay weddings.
A surprising Mason-Dixon poll in South Dakota last week showed the marriage amendment was opposed by 49 percent of likely voters and approved by 41 percent with a 3.5 percentage point margin of error. A loss in South Dakota — a conservative state that gave President Bush 60 percent of the vote in 2004 — would be a shocking defeat for conservative backers of same-sex marriage bans.
And in Wisconsin, a June poll by Wispolitics.com showed the ban in a near tie — 49 percent to 48 percent. The margin widened in favor of the ban in a July Badger Poll by the University of Wisconsin that showed voters split 52.5 percent for the ban compared to 44 percent against. Both polls estimated a 4 percentage point margin of error.
Gay marriage opponents disregard claims that any same-sex marriage ban is in danger of failing at the polls. They point out that most "marriage protection" amendments were approved by higher majorities than pre-election polls indicated, and that none have ever failed at the ballot.
On Nov. 7, a total of eight states are poised to vote on constitutional amendments banning same-sex marriage: Arizona, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin ( Click here for a complete guide to this November's ballot initiatives ). In the 20 states to approve similar amendments since 1998, voter support has averaged 71 percent. The narrowest vote was in Oregon, where 57 percent of voters approved that state's amendment in 2004.
"Every time we've seen marriage put to the voters, we've always had a substantial majority vote in favor of protecting it, and we expect that to continue," said Bruce Hausknecht, a judicial analyst for the Christian conservative group Focus on the Family , a Colorado-based religious group founded by Dr. James C. Dobson that finances legal battles against gay rights groups and backs grassroots efforts to pass same-sex marriage bans.
Nationwide, a majority of Americans still favor banning same-sex marriage. But opposition has slipped to 56 percent, a 7-point drop since 2004 when 63 percent of Americans opposed gay marriage, according to a poll by the Pew Research Center for the People & the Press . The survey released Aug. 3 found 35 percent support for allowing gays and lesbians to marry, compared to just 30 percent in favor in February 2004, three months after Massachusetts' highest court set off a national furor by ruling same-sex couples have the right to marry there. The survey had a margin of error of plus or minus 2.5 percentage points. ( Stateline.org is an independent project of the Pew Research Center.)
"The public is talking about (same-sex parented) families and how denying them the right to marry hurts them, and that continues to move public opinion in our favor," said Evan Wolfson, director of a group, Freedom to Marry , and one of the first lawyers to sue for same-sex couples' right to marry in Hawaii in the 1990s.
Jon Hoadley, spokesman for South Dakotans Against Discrimination, read last week's surprising Mason-Dixon poll in South Dakota as a sign that voters are uncomfortable with the way the amendment is written. His group opposes the ballot measure. The proposed amendment goes beyond banning same-sex marriage and would prohibit the Legislature from recognizing domestic partnerships or any other legal status between unmarried couples regardless of their sex
"We've got really smart voters that understand the potential unintended consequences of this measure, and they realize that the Constitution worked just fine last year and we don't need to change it," Hoadley said.
Supporters of the amendment said the poll was a call to action for those who want to protect marriage in the state and likely will spark much more intense campaigning.
Wisconsin had been considered the best chance for gay rights groups to defeat a same-sex marriage ban, although the latest poll now shows the ban would pass. Activists on both sides of the issue concede that gay rights groups will heavily outspend supporters of the amendment in an effort to defeat it in November.
In 2004, gay rights groups in most states had only a few months to mobilize campaigns against same-sex marriage amendments. But Fair Wisconsin, a gay rights group organizing opposition to the state's proposed ban on gay marriage, has been on the ground campaigning and organizing a get-out-the-vote campaign for two years, according to Josh Freker, the group's communiciations director.
Colorado also has potential to make history this November with three measures regarding same-sex relationships heading for the ballot.
Besides the domestic partnerships law — Referendum I — and a same-sex marriage ban, gay rights advocates collected enough signatures to place on the ballot a separate initiative intended to protect domestic partnerships from being challenged.
Gay rights groups in Colorado, such as Coloradans for Fairness and Equality in Denver, have been successful raising large amounts money and already have spent $1.2 million on TV ads statewide. Polls conducted by the group indicate that a majority of Colorado voters support the domestic partnership law but also support the amendment to ban same-sex marriage, said spokesperson Jody Burger.
Coloradans for Marriage , the group sponsoring the citizen initiative to ban same-sex marriage, turned in more than 130,000 signatures Aug. 7 to meet the 68,000 signature threshold required for the November ballot. The group relied on grassroots campaigns to collect the signatures and expects to win on Election Day despite being outspent by opponents, said executive director Jon Paul.
"Most Coloradoans believe it's common sense that marriage is between one man and one woman, so we don't need millions of dollars to ensure victory," Paul said.