Published November 8, 2006
With the important exception of Arizona, 2006 was an excellent election for those who believe that marriage is the union of a man and a woman. Amendments defining marriage as a man-woman union passed in seven out of eight states (Virginia, Tennessee, South Carolina, Wisconsin, Colorado, South Dakota, and Idaho) by an average vote of 61 percent. The narrow loss in Arizona was not because voters favored gay marriage, but because of a successful campaign against the measure’s ban on domestic partner benefits.
The Arizona result might seem to indicate that voters favor domestic partner benefits, yet even here the message was mixed. Colorado, for example, not only passed a marriage amendment, but also defeated a separate measure creating domestic partnership benefits. And several other state amendments that included civil-union/domestic-partnership bans also passed. Wisconsin, for example, had a measure much like Arizona’s. Yet the amendment passed comfortably in this fairly liberal state, even in the face of a huge effort by same-sex-marriage supporters. So voters everywhere still see marriage as the union of a man and a woman. They are more closely divided on the matter of civil unions and domestic partnerships, yet lean against these as well.
No doubt we’ll see more state votes on marriage amendments in 2008, and perhaps a measure introduced in Arizona stating the definition of marriage as being between a man and a woman, while not dealing with domestic partnerships. (For ongoing coverage of the state-amendment battles, the best source is Maggie Gallagher’s marriagedebate.com blog.)
There are still plenty of ways for the marriage issue to explode into a multi-state crisis. All it would take is for one state to adopt full same-sex marriage — especially if that state has no law comparable to the Massachusetts statute that prohibits couples from marrying there if their union would be illegal in their home state. A full-fledged gay-marriage state, without a Massachusetts-style statute on out-of-state unions, would create a national Mecca for same-sex marriage, and would likely launch a series of lawsuits in other states. That could speed up the legal path to a big decision by the U. S. Supreme Court.
There is now a good case to be made that turning to liberal courts to make an end-run around the legislative process was a serious strategic error for supporters of same-sex marriage. More than half of the states now have marriage amendments in place, and that number seems likely to grow.
Nonetheless, if we someday see a legal challenge to the federal Defense of Marriage Act, there is a very real possibility that the Supreme Court could impose same-sex marriage on the nation as a whole, despite the passage of these state-level amendments. That is why we need a federal marriage amendment. In the meantime, the passage of these state amendments has the effect of narrowing the potential range of same-sex marriage to an ever smaller circle of jurisdictions. So while, in the absence of a national amendment, the gay marriage movement’s legal strategy has a real prospect of ultimate success, it has backfired badly in the meantime.
— Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center.