This topic is monitored by Moritz Law Professor Dale A. Oesterle
State Marriage Initiatives: A Lurking Factor in the Presidential Contest
One unpredictable factor in the Presidential election will be the impact of same-sex marriage initiatives in eleven states. Will the opportunity to vote on a high agenda item for the religious right influence turnout for the Presidential election thereby assisting Bush? Or will the presence of these measures on state ballots embolden hard-core liberals to vote thereby assisting Kerry? Most likely, the Republicans will benefit from the presence of these measures on the state ballot in Ohio and Arkansas but the Democrats might benefit from its presence in Oregon.
Until this election, only five states had approved constitutional bans against same-sex marriage: Alaska, Louisiana, Missouri, Nebraska, and Nevada. Hawaii had passed an amendment reserving the right of the state legislature to define marriage. The Missouri measure received considerably publicity when it passed by a 70 percent majority on August 3, 2004.
The Louisiana ban was approved by the voters on September 18, 2004 but then was struck down by a Louisiana judge on October 5th. Judge William Morvant, an elected Republican state court judge, ruled that the amendment which had been approved by 78% of the voters was unconstitutional because it violated the state’s “one subject” rule in banning both same-sex marriages and civil unions. 1 The judge appeared to have been influenced by the testimony of William Schultz, who told the court that voting for the ban posed a dilemma for him, because he opposed gay marriage but favored civil unions. An appeal of the trial court decision was heard by the state’s five-judge First Circuit Court of Appeal but it sent the case to the state’s Supreme Court without ruling on the issue. See generally Forum for Equality PAC v. McKeithen, 2004 La. App. LEXIS 2407 (La. App. 1 Circuit Oct. 13, 2004) (related case). The case is now pending in the Louisiana Supreme Court.
Same-sex marriage initiatives are pending in eleven states on November 2nd: Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah. Litigation has sought to stop those efforts. In Michigan, citizens submitted 475,000 signatures to place the measure on the ballot. The state canvassing board was deadlocked on whether to certify the measure for the ballot but, on September 3rd, the state Court of Appeals ruled that the measure should appear on the state ballot.
In Georgia, litigation is pending similar to the Louisiana case. Georgia has a “single-subject” requirement and opponents of the initiative argue that it has three purposes: banning same-sex marriage, banning civil unions, and restricting Georgia courts from ruling on marriage. A state trial court judge dismissed the lawsuit on September 29th; an appeal is pending. 2
Montana, Ohio, and Oklahoma also have “single-subject” requirements in their state constitutions but the pending state initiatives have not been challenged on that basis in any of those states. In Ohio, there was litigation involving the signature-gathering process. The state Supreme Court ruled that the objections were not filed within the time limit specified by state law and upheld the decision by the Secretary of State to put the measure on the ballot. See The State ex rel. Essig v. Blackwell, ___ Ohio St.3d ___, 2004-Ohio-5586 (decided October 21, 2004). Assuming the measure is approved by the voters, litigation regarding the single-subject rule would be expected because the Ohio initiative arguably bans both same-sex marriage and civil unions. 3
Although various polls show the Ohio initiative being adopted by the voters, nearly all the state’s highest elected officials have stated their opposition to the measure, including Governor Taft, Attorney General Jim Petro, and United State Senators Mike DeWine and George Voinovich. (But Secretary of State Ken Blackwell and State Auditor Betty Montgomery have supported the amendment.) But none of these elected officials has taken a strong role in opposing the measure; very limited money has been spent by either side advertising their positions. Nearly all the state’s newspapers have written editorials in opposition to the measure. The amendment’s supporters have reportedly sent mailings to churches around the state; the amendment’s opponents will reportedly run some advertisements in the few days before the election. With the Presidential election a deadheat in Ohio, and support for the state initiative outnumbering opposition, the ability of the religious right to get out the vote could tip the balance in favor of Bush.
Another interesting state to watch is Oregon. Polls indicate that 51 to 60 percent of the voters approve the same-sex marriage ban but national gay rights groups have announced that they will be spending $600,000 in Oregon to try to reverse that trend. The same-sex marriage issue is particularly hot in Oregon because a lower court had issued an order requiring the state to record certain same-sex marriages while also giving the state legislature ninety days after the commencement of the next regular or special session to produce legislation that would, at least, recognize same-sex civil unions. See Mary Li v. State of Oregon, 2004 WL 1258167 (unpublished opinion) (Circuit Court of Oregon April 20, 2004). The decision has been stayed pending an appeal to the state’s highest court. Approval of the Oregon measure would preclude the state legislature from recognizing same-sex marriages but would not necessarily preclude civil unions. 4
Oregon is considered a “must-win” state for Kerry. The latest polling data puts him slightly ahead in the state. The same-sex marriage debate could be the “sleeper” issue that mobilizes the Republican base and helps elect Bush in Oregon. Alternatively, it might embolden liberals who would also support Kerry. Interestingly, President Bush said in an interview on Sunday, October 24th that he opposed same-sex marriage but he doesn’t think “we should deny people rights to a civil union, a legal arrangement, if that’s what a state chooses to do so” even though he acknowledged that his position conflicted with the Republican national platform. Bush’s statement on civil unions could have been an attempt to appeal to swing voters in Oregon who are troubled by the Republican position on civil unions yet are comfortable with Oregon’s proposed amendment which would ban same-sex marriages but not civil unions. Bush’s statement, however, may have troubled his conservative base in other states.
Finally, the same-sex marriage could prove decisive to a Bush victory in Arkansas. Like Ohio, the Arkansas amendment might ban civil unions. 5 Opponents sought to invalidate the state ballot measure, arguing that the measure’s popular name and ballot title were misleading because it might cause a voter to think the proposed amendment dealt exclusively with marriage and not civil unions. In a divided opinion, the Arkansas Supreme Court approved the certification of the ballot measure. See May v. Daniels, __ S.W.3d ___, 2004 WL 2250882 (Supreme Court of Arkansas Oct. 7, 2004). The measure will therefore appear on the November 2nd ballot and is expected to garner widespread support. Recent polls suggest that the Arkansas race might be close. If the presence of this measure on the ballot strengthens turnout among conservative Republicans, it could help push Bush over the top in the election.
Hence, measures to ban same-sex marriage could be the “sleeper” issue that gets out Bush’s base and helps put him over the top in Arkansas and Ohio although this issue might energize liberals in Oregon to help put Kerry over the top in that state. These measures have not been the subject of widespread advertising campaigns but the religious right has been energizing its base from the pulpit. Bush’s recent statement in favor of same-sex civil unions may temper that base while also making swing voters more comfortable with his position on social issues. On November 2nd, we’ll have a chance to learn if the presence of same-sex marriage initiatives on the ballots in some swing states had a sufficient impact on turnout to impact the Presidential contest.
[Posted October 27, 2004]
1. The proposed Louisiana amendment say: “A legal status identical to or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” The “substantially similar” language arguably bans same-sex civil unions and the “identical” language bans same-sex marriages.
2. The proposed Georgia amendment says: “(a) This state shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state. (b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state or jurisdiction. The courts of this state shall have no jurisdiction to grant a divorce or separate maintenance with respect to any such relationship or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such relationship.” Clause (a) bans same-sex marriage and clause (b) arguably bans same-sex civil unions and judicial involvement in controversies concerning such relationships.
3. The proposed Ohio amendment says: “Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.” The language banning the recognition of a legal status that replicates the “design, qualities, significance or effect of marriage” arguably bans same-sex civil unions.
4. The proposed Oregon amendment says: “It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as marriage.” Unlike the proposed Louisiana and Ohio amendments, this amendment would appear not to affect civil unions.
5. The proposed Arkansas amendment says: Section 1: “Marriage consists only of the union of one man and one woman.” Section 2: “Legal status for unmarried persons which is identical or substantially similar to marital status shall not be recognized in Arkansas, except that the Legislature may recognize a common law marriage from another state between a man and a woman.” Section 3: “The Legislature has the power to determine the capacity of persons to marry, subject to this amendment, and the legal rights, obligations, privileges, and immunities of marriage.” Like the proposed Ohio and Louisiana amendments, this amendment would appear to ban both same-sex civil unions and same-sex marriages.