Voters 13, Gay Marriage 0. Now What?

Seven out of 10 voters in 13 states have rejected same sex marriage in 2004. Every state that has put the issue before voters has added a prohibition on same sex marriage to the state constitution. What can we expect now from advocates of same sex unions?

Following the 2004 election pundits immediately seized upon exit polling showing record turnouts among rural voters and evangelicals. Clearly social issues mattered to people and the one issue that seemed to galvanize these voters most was marriage. Specifically, people in eleven states on November 2, in addition to Missouri and Louisiana in the past several months, were able to opine with votes about the wisdom of banning gay marriage via their state constitutions.

Overwhelmingly, voters felt such bans a wise move. But what about those who have championed gay marriage?

Expect them to head to the courts. And judging from the immediate reaction of gay political groups, the courts will be busier than ever.

The appeal to the courts will be framed in terms of civil rights denied by the majority. Matt Foreman, executive director of the National Gay and Lesbian Task Force, said in a press release, “The results underscore why we have a Bill of Rights – because it is always wrong to put basic rights up to a popular vote. In fact, even today, 213 years after the Bill of Rights was ratified, it is doubtful Americans could win our freedoms of speech, press and religion at the ballot box.” In other words, if most people will not vote to redefine marriage, we will file lawsuits until we win.

This strategy may well produce considerable chaos over the near term. Already, the Louisiana vote has met judicial challenge. Most if not all of the states recently amending their constitutions to make marriage a solely man-woman event will face court challenges. Some may be decided in favor of the gay marriage advocates and some in the direction of the will of the people.

Most readers know where this is all heading. It looks increasingly clear that the matter will not be finally adjudicated until we reach the Supreme Court. Handicapping this issue is difficult at best. Conventional wisdom is that President Bush may have the opportunity to appoint justices who may be less disposed to viewing same sex marriage as a “basic right.” As the elder George Bush appointee Justice David Souter demonstrates, however, not all conservative appointments render conservative jurisprudence.

If the Supreme Court sides with the states on this matter, it may take a while but I suspect all states will eventually amend their constitutions to reflect traditional values. However, if the Supreme Court finds a basic right for gay marriage in the constitution, then where will that leave the states and the voters who find traditional marriage to resonate best with their understanding of basic rights?

While the road would be long and circuitous, it may eventually lead back to the voter. A federal constitutional amendment to define marriage as between one man and one woman will likely take on urgency at that point. If the Congress passes a federal amendment, then three-fourths of state legislatures must also ratify the amendment for it to become part of the constitution. While not a complete full circle, this issue then comes back to the states where voters can express their preferences up close and personal to their state legislators. Given the current lopsided victories for traditional marriage, one does not need to be politically savvy to speculate that politicians, beholden to voters as they are, will be inclined to vote the will of the people.

What then will be the strategy of gay political groups?

As noted, the courts will be tied up with this matter in the near term. And in the court of popular opinion, we can expect a prolonged media effort and much rhetoric from such groups and a sympathetic press about the crux of the issue being one of civil rights for the class of people known as homosexual. More emphasis than ever will be focused on studies that purport to demonstrate a genetic determination for sexual attraction, thus leading to claims of discrimination directed at this group.

Expect protracted legal, media and legislative battles. A generation of children will grow up with this issue. When it’s all over, if traditional marriage finally prevails, I expect we will look back and say the election of 2004 was a turning point in the effort to maintain marriage as a union of one man and one woman.