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Breaking Down The '31 Out Of 31 States' Talking Point

May 17, 2012 2:03 pm ET by Carlos Maza

In the wake of last week’s vote in North Carolina to approve a constitutional amendment banning same-sex marriage, anti-gay groups have taken to asserting that the American public does not support marriage equality, despite polling to the contrary. These groups claim that voters have approved measures prohibiting gays and lesbians from getting married in all 31 states that have voted on the issue.

This false talking point has gained traction from those even outside of anti-gay circles. After it became clear that North Carolinians would approve the anti-gay marriage amendment, Public Policy Polling – which has predicted that “a majority of Americans will someday support" marriage equality – tweeted:

While it’s true that opponents of same-sex marriage have so far been successful every time they’ve tried to pass state marriage amendments, citing these amendments as a barometer of public support for marriage equality is both lazy and misleading.

1. Amendments Don’t Account For Recent Public Support

Over half of the state amendments banning same-sex marriage were put into place in or before 2004. As Greg Lewis, an expert on public opinion on gay rights, recently noted, national support for marriage equality has risen dramatically since that time:

Opposition to SSM was quite strong and reasonably stable until 2004.  Since 2004, the rise in support has been remarkable.  My estimate is 16 percentage points.  Nate Silver estimates perhaps two or three percentage points a year and, according to a leaked memo, Republican pollster Jan van Lohuizen finds support rising one point a year until 2009 and 5 points a year since.  Seventeen states passed constitutional amendments by the end of 2004, and 27 did so by 2006.  Even in 2008, when next three states passed amendments, support for SSM nationally was probably 8+ percentage points lower than it is today.

In fact, only four of the thirty-one states with marriage amendments adopted those measures in the past five years.

Although the rate of change in public support for same-sex marriage varies from state-to-state, the data suggests that many of the states that adopted anti-gay marriage amendments by narrow margins in 2004 and 2006 might vote differently if faced with a similar amendment today.

In California, for example – which passed Proposition 8 by a narrow margin in 2008 – polls show that support for marriage equality has surged over the past four years.

Bottom line: using 4+ year old data to measure public opinion is always questionable, but it’s particularly unhelpful when dealing with an issue as volatile as the public’s feelings towards same-sex marriage.

2. Amendments Target Anti-Gay States

One reason that opponents of same-sex marriage have been so successful in getting states to adopt anti-gay marriage amendments is that they target the states that are most likely to pass them. As Lewis documented in a recent blog post:

Constitutional amendments reach voters mostly in states where support for SSM is weakest: 23 of the 29 states with the least support have approved constitutional bans.  In contrast, 18 of 20 states with the highest popular support for SSM legally recognize same-sex couples in some way.  North Carolina has the 12th lowest support for SSM, making its passage of Amendment One last week less surprising than its waiting so long to do so.

In states like New York, Washington, and Maryland, which all recently adopted marriage equality laws, anti-gay groups would likely have a much tougher time winning support for anti-equality amendments.

Targeting low-hanging fruit – states that are most likely to adopt anti-gay marriage amendments – has given opponents of same-sex marriage a 100% success rate in recent years, but it hasn’t done much to reveal how the American public actually feels about marriage equality.

3. Amendments Offer Anti-Gay Groups Opportunities To Spread Misinformation

There’s another reason that anti-gay marriage amendments have been so successful: Ballot initiatives are highly susceptible to last-minute anti-gay misinformation campaigns.

In states like California and Maine, polls showed that voters would likely reject efforts to deny marriage equality to gay and lesbian couples. But in both states, opponents of same-sex marriage won out.

This phenomenon – public support for marriage equality suddenly weakening when it comes time to vote – has a lot to do with how people react to ballot initiatives concerning disempowered minority groups, during which voters are uniquely susceptible to fear-based misinformation campaigns. From the Oregon Law Review:

One can readily conclude that lawmaking by initiative, the manifestation of unchecked majority will, carries a high risk of producing bad laws. The “bad law” risk posed by the initiative is not simply that of generic poor policy. The absence of the deliberative process can leave the voters with profoundly inaccurate information. False information may be an unintended byproduct of the public campaign, or it may be deliberately disseminated for political advantage. Deliberate dissemination of false information can be a particularly potent and harmful strategy to agitate the majority against minority groups. Immune from legislative or executive review, initiative campaigns may rely on appeals to voter prejudice. [Oregon Law Review, Vol. 87, 1025, 2008, emphasis added]

This is especially true when dealing with anti-gay initiatives. Voters have historically voted against measures to protect LGBT Americans, and a 2011 study found that states that embraced direct democracy were more likely to have adopted same-sex marriage bans.

Anti-gay groups like the National Organization for Marriage (NOM) consistently spend hundreds of thousands of dollars disseminating anti-gay propaganda in state marriage equality battles. This kind of anti-gay misinformation makes ballot initiatives poor indicators of the public’s actual opinion on LGBT equality. According to William Adams, Assistant Professor of Law at Nova Southeastern University:

[A] closer evaluation of these benefits reveals that the normal advantages of ballot propositions are considerably weaker with the antigay measures. The issue-avoidance consideration is not present with these measures because over one hundred jurisdictions have approved sexual orientation discrimination and a number of other jurisdictions have considered it. These plebiscites are trying to remove the issue from the agenda, rather than add to it. The misinformation supplied by the proponents of these measures undercuts much of the benefit to be gained from public discussion of gay, lesbian, and bisexual equality rights. Whether this issue truly expresses the public will is open to debate. Certainly, the issue of whether the public interest is being served by these measures is hotly contested by many civil rights activists. [Ohio State Law Journal, Vol. 55, 583, emphasis added, Summer 1994]

In the face of growing public support for marriage equality, it’s understandable that anti-gay groups would comfort themselves by touting their past successes with state marriage amendments. Unfortunately for them, these amendments say very little about the country’s evolving feelings towards same-sex marriage. News outlets and polling firms alike should keep that in mind next time they hear these groups touting their unblemished record.


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