In a clip played endlessly on their televisions this fall, Californians saw San Francisco Mayor Gavin Newsom swaying behind a podium at a pro-same-sex-marriage rally. Biting his lip and lifting his hands into the air, Newsom announced in an emotive staccato, “As California goes, so goes the rest of the nation. It’s inevitable. This door’s wide open now.” He flashed a reptilian smile before finishing, “It’s going to happenwhether you like it or not.” Under the headline “Tragedy,” pro-gay-marriage journalist Benjamin Wachs wrote that Newsom’s tone, “manages to cross an old-style revivalist preacher with an angry Jewish mother, [and] has turned voters who were willing to believe that gay marriage is about love into voters who are now convinced that it’s about ‘who’s-in-charge-here.’” The scene made Newsom the unwitting star of the successful campaign to overturn California’s Supreme Court ruling in favor of same-sex marriage.
This wasn’t the first time Newsom has inadvertently helped the cause of traditional marriage. His unilateral attempt to legalize gay marriage in San Francisco in 2004 helped energize social conservatives nationwide. That year, when exit polls showed voters prioritizing “moral values” over even terrorism or the economy, 11 states voted to define marriage as a union between one man and one woman. Most of these measures passed with large majorities. Gary Bauer, surveying the damage voters had done to the cause of same-sex marriage, declared it “the year of the values voter.”
Superficially, 2008 seems like a similar success for social conservatives. Following the passage of marriage amendments in Arizona and Florida, as well as California, Maggie Gallagher wrote at National Review Online, “when it comes to marriage, there is no such thing as a blue state or a red state. Americans support marriage as the union of husband and wife.” But a closer look at the election results and the legal developments in the past year suggests that 2008 is in fact the year the marriage debate tipped in favor of same-sex marriage.
Only Arizona passed its traditional marriage initiative by 2004-like margins. While only 38 percent voted against the Florida initiative, the measure passed the required 60-percent threshold by just 2 points. In California, Proposition 8 passed by a bare 52 percent of the vote, and exit polls seem to attribute its success to an abnormally high turnout of socially conservative black voters. In Connecticut, voters had the chance to resist their state’s pro-gay-marriage Supreme Court decision, Kerrigan v. Public Health, by voting for a constitutional convention. That initiative failed by 20 points.
The events in California and Connecticut present new legal challenges to social conservatives. Each state’s Supreme Court issued pro-gay marriage rulings by a bare 4-3 majority of judges. Each court found that denying same-sex couples full marriage rights is unconstitutional. More importantly, the Kerrigan decision made the most sweeping argument against civil unions in a high court case, stating specifically that they violated the state’s equal-protection clause, going farther than the rulings that legalized same-sex marriage in Massachusetts in 2003 and California earlier this year. The New York Times described the Kerrigan opinion as written “in language that often rose above the legal landscape into realms of social justice for a new century.”
These rulings give legal coverperhaps a mandatefor extending marriage rights to same-sex couples in all states that already have some form of domestic partnership or civil union arrangement. In California and Connecticut, social conservatives responded by appealing to the ballot box, with decidedly mixed results.
In California, the reaction took the form of a ballot initiative that amended the state’s constitution to include a new section stating, “Only marriage between a man and a woman is valid or recognized in California.” Connecticut has no referendum process. But 2008 happened to be a year when Connecticut was required to put a question on its ballot asking whether voters wanted to have a state constitutional convention. This Question 1, which appears every 20 years, is usually ignored and forgotten. This year it emerged late in the campaign season as the hottest issue in the state. Traditionalists saw it as their chance to overturn Kerrigan. Failing that, they hoped at least to obtain the power of direct initiative, which they could use to define marriage in the future.
In both states, social conservatives were following a pattern put in place after the Roe v. Wade. Where moral or legal restraints began to fail, conservatives appealed to democracy. They assailed the overreaching of “activist judges” and countered their judicial decisions with appeals to “the people.” The failure of same-sex activists to achieve a single victory at the ballot box and the arrogance of figures like Newsom gave weight to this argument.
The 2004 election seemed to give traditional marriage the imprimatur of nationwide popular support. Now that backing is, at best, unsteady. Traditionalists must face the fact that the institution they believe is the bedrock of civilization commands astonishingly slim majorities.
Of course, conservatives were burdened with serious challenges. In both Connecticut and California, they lost the fundraising race. “Vote no” forces in Connecticut raised over $800,000much of it from outside the state. “Vote yes” supporters raised only $11,400 until the Connecticut Catholic Conference, a political arm of the state’s Catholic bishops, contributed $132,000. The pro-gay marriage side in California received large contributions and public support from Silicon Valley. Hollywood also donated: Stephen Bing gave half a million to fight Prop 8. The money gap favored same-sex-marriage proponents about $31.2 to $27.5 million. The “No on 8” side also had a phalanx of celebrity endorsers from Ellen Degeneres to Tim Gunn.
In Connecticut, conservatives were already dispirited by the feeble defense the state’s attorney general put up in Kerrigan. “He was throwing the case,” says Connecticut Family Institute president Peter Wolfgang. In his dissent, Justice Peter T. Zarella, noted that the ruling majority never considered the argument that traditional marriage is best for the welfare of children, saying this is “the only argument that other courts have found to be persuasive in determining that limiting marriage to one man and one woman is not unconstitutional.”
Though the Family Institute filed an amicus brief in Kerrigan, they were denied intervenor status and the ability to present evidence to the high court. But they led the charge for Question 1 the moment the ruling came down. Support followed quickly. In addition to their financial contribution, the Connecticut Catholic Conference urged priests to exhort their parishoners from the pulpit. But conservatives had only a short time to explain to voters that Question 1 was a proxy for overturning Kerrigan.
In California, a pre-election Field Poll found the state’s residents genuinely confused about gay marriage. The poll showed 39 percent of those voting in favor of same-sex marriage agreed with the argument made by the other side that “The institution of traditional marriage between a man and a woman is one of the cornerstones of our country’s Judeo-Christian heritage.” Meanwhile, 41 percent of those planning to vote yes on Proposition 8, to overturn the ruling in favor of same sex-marriage, agreed that “Matters relating to the definition of marriage should not be written into the constitution.” Proposition 8 passed, but by such a narrow margin that it begs to be challenged.
Uncertainty about the public’s actual attitudes toward gay marriage explained the approach each side took in Connecticut. Pre-election polling showed that 65 percent of voters favor the adoption of direct initiatives and presumably the constitutional convention to obtain them. But only 41 percent of voters would vote for a constitutional amendment defining marriage as between one man and one woman, while 55 percent say they would vote against it. Peter Wolfgang says, “If that’s true, our opponents should be jumping on board to support direct initiative. But they don’t believe the polls.” Even with polls confirming that popular support for overturning the Supreme Court’s ruling was weak, Queers Without Borders, Gay & Lesbian Advocates and Defenders, and Planned Parenthood of Connecticut all supported a “no” vote for the constitutional convention and argued against direct initiative.
Meanwhile, the Connecticut Catholic Conference’s television ads featured a young woman standing outside the statehouse, calling for a “yes” vote and citing “democracy” and “change” as her reasons. Marriage was never mentioned. The effort failed and same-sex marriage will be legal in Connecticut as of Nov. 12. Gay-marriage proponents hope to ratify this decision democratically by passing a statute in the elected legislature in their next session.
Vince McCarthy, a lawyer at the American Center for Law and Justice and counsel to the Family Institute, dreads the day that gay marriage is approved by democratic means, but maintains, “The truth is the truth and natural law is natural law. And eventually that will win out over judicial decisions, over legislative decisions and even democratic decisions.” But for social conservatives who believe this, the question remains: How?
2008 demonstrated that democracy is no sure defense against judicial innovation in marriage. Exit polls reveal that without the overwhelming support of voters over 65, neither the Florida nor California marriage initiatives would have passed. Younger voters turned out overwhelmingly against them. Absent an incredible shift in attitudes, same-sex marriage will soon command majority support. Shrinking majorities voting in favor of traditional marriage will encourage similar rulings to the Connecticut court’s. And the legal precedents used in Kerrigan will be used to challenge the 29 state laws restricting marriage to a union of one man and one woman.
The minor victories for marriage traditionalists this year point to defeats in the near future. Unless social conservatives find a way to appeal to voters under 40, Newsom’s prediction, “It’s inevitable,” is unassailable.
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