Last week President Obama made history when he announced his support for gay marriage. And although the announcement gave the gay-rights movement new momentum, it has no real value to states which are struggling to deal with the gay marriage issue because it does nothing to change the Defense of Marriage Act, which is the federal law that defines marriage as the legal union of one man and one woman.
But the President’s announcement opened up discussion on the topic. And although the internet and airwaves are saturated with those who are discussing the more hotly contested issues such as whether denying same-sex marriage is a violation of civil and equal protection rights and whether the announcement will impact the upcoming Presidential elections, most are ignoring probably the single most important factor which will determine which states will legalize same-sex marriage and which states won’t. That single factor is the process by which a state is allowed to amend its constitution and enact new laws.
In spite of polls which show that a majority of New York voters agree that marriage should only be between a man and a woman, New York was able to legalize gay marriage last year through legislation which was voted on by lawmakers. However, when the same-sex marriage issue was put before the people of the state of North Carolina by statewide ballot on May 8, 2012, North Carolinians voted 61%-39% to approve a constitutional amendment banning same-sex marriage as well as all other types of same-sex unions.
A review of the marriage equality struggle shows that no state has legalized gay marriage when the vote was put before the people. In 31 states, marriage equality was put on the ballot for a vote by the people, and in all 31 instances, the people voted against it. However, in the 6 states which have legalized same sex marriage — New York, Connecticut, Iowa, Massachusetts, New Hampshire and Vermont — marriage equality was accomplished by legislative action and judicial decision – not by the vote of the people.
Therefore, it appears that a state is more likely to be successful in its attempt to legalize same-sex marriage if the issue is kept out of public polling places, and transferred to the lawmakers instead. If this is true, then why is it that some states put the question of legalizing gay marriage to the people while others leave the issue to lawmakers? The answer to this question depends on the process the state has in place for amending its constitution and enacting laws.
The two most common processes which are used in the US to allow voters to directly vote on legislation are initiatives and referendums. An initiative enables citizens to draft laws and constitutional amendments and place them on the ballot for a popular vote. Whereas a referendum provides for a popular vote on laws passed by the legislature. Initiative and referendum, also known as “ballot measures,” “propositions,” or simply “questions” are forms of direct democracy.
States which allow initiatives and referendums can look forward to a hard-fought and contentious battle from voters who oppose sex marriage. But in states which do not allow the people to directly petition to put an issue on a ballot, the fight to legalize gay marriage appears to be less contentious.
In New York, for example, the vote to legalize gay marriage was not put to the people because unlike other states like California, New York does not have an initiative process, and only a limited referendum structure. So in order for a constitutional amendment banning gay marriage to get on a ballot, a simple majority in both the state House and Senate would be needed to vote to put the issue before 20 million New Yorkers.
However, in Washington State, although lawmakers voted to approve gay marriage a few months ago, opponents have promised to fight gay marriage with a referendum which would allow voters to overturn the legislative approval. Therefore, if opponents are able to gather the approximate 120,000 signatures needed by June 6, 2012, they will be allowed to take their fight to the ballot box, thereby putting gay marriage on hold pending the outcome of a November election.
And in Maine, although a bill to allow same-sex marriage was signed into law on May 6, 2009, opponents launched a campaign to repeal it through voter referendum. They got the veto question on the ballot and on November 3, 2009, it passed by a vote of 53% to 47%, and the law was repealed.
In summary, a state may attempt to legalize gay marriage either by law or by amending its constitution. But in either case, success may very well depend on the forms of direct democracy available to the people of that state. The Initiative and Referendum Institute claims that 24 states have the initiative process, and 24 states permit referendums. To see what forms of direct democracy are available in your state, click here http://iandrinstitute.org/.