Marital Differences

The Atlantic Magazine, May 2006

Will this year’s midterm elections feature a new raft of state ballot initiatives to ban same-sex marriage?

Definitely. Voters in eighteen states have already passed such bans, and the ballot initiatives have proven to be a major base-mobilizer for conservatives—so this year, there will be more. At least six states—Alabama, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin—will certainly hold referenda, and Arizona and Colorado are likely to do so as well. And given the success such measures have enjoyed at the ballot box, they will probably pass with strong majorities.

Yet these referenda—and the ongoing backlash they represent against the 2003 decision by the Massachusetts Supreme Judicial Court to legalize same-sex marriage—do not constitute the most interesting development in the emerging politics of gay marriage.

What development would that be?

A quiet countercurrent, driven by popular opinion, that’s making progress in several states, even in the face of the post-Massachusetts backlash.

Popular opinion? Isn’t gay marriage just the handiwork of “activist judges”?

Conservatives, including President Bush, often deride it as such. But the last few years have seen significant movement toward state recognition of same-sex relationships through normal democratic processes. In 2004, legislators in New Jersey and Maine passed domestic-partnership laws, joining Hawaii in formally recognizing same-sex partnerships and granting them certain rights associated with marriage. Last year, Connecticut’s legislature instituted civil unions (the bill was signed into law by a Republican governor); with Vermont, it’s one of only two states to have established this legal alter ego for heterosexual marriage. Even before the Massachusetts court ruled, California lawmakers had moved to beef up their own domestic-partnership law to grant nearly all the entitlements of a marriage license; then, last September, they passed a bill creating actual gay marriage—which Governor Arnold Schwarzenegger vetoed. Also last year, Maryland lawmakers passed a bill creating a formal statewide registry of “life partners” to facilitate medical decision-making. Republican Governor Robert Ehrlich vetoed it but took enough political heat for doing so that he came back in the following legislative session with a watered-down proposal of his own.

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