Much more important to the politics of gay marriage than the national election results are the results in (1) popular votes on state constitutional gay-marriage bans and (2) the results in state legislative races. Both suggest that we may be headed for more state legislative action toward the recognition of same-sex relationships in the form of civil unions and domestic partnerships (less so, for now, in the form of full marriage). This post will address the first development.

State constitutional gay-marriage bans

There are two huge stories in the votes on gay-marriage bans around the country. First, for the first time ever a gay-marriage ban has been rejected by the voters of a state, Arizona. It's not the same as an endorsement of gay marriage, but it's an unprecedented and potentially significant defeat for opponents of gay marriage. Still, I am at a loss to explain the precise reason for the result in Arizona. It could have been driven by demographics, individual state issues, differences in the pro- and anti-amendment campaigns, or the generally more libertarian political climate in the state. (By the way, I think this election could fairly be described overall as a libertarian rebellion.)

Second, average support for the bans in the seven states where they passed was down dramatically from previous elections. Here are the latest numbers on the proposed state constitutional amendments:

Arizona: Defeated 51%-49%

Colorado: Passed 56%-44%

Idaho: Passed 65%-35%

South Carolina: Passed 84%-16%

South Dakota: Passed 52%-48%

Tennessee: Passed 84%-16%

Virginia: 58%-42%

Wisconsin: 59%-41%

See here for state-by-state marriage amendment votes in this and past elections.

There are some remarkable things about these numbers. In the seven states where the amendments passed, average support was down to about 61%. That's about 8-10% less than average support for these amendments in past elections. Of the eight states, support for the bans was held under 60% in five; that had previously happened in only one state out of twenty. Prior to this election, the low-water mark for a ban was 56% (in Oregon in 2004). Three states (Arizona, Colorado, and South Dakota) were at or under that mark this year.

What produced these surprisingly good results for gay-marriage supporters? Several things may be happening:

(1) Voters are getting habituated to the idea of gay marriage, even if they don't quite accept it, and so are less likely to vote to ban it (and similar unions).

(2) Voters are starting to catch on that these proposed amendments are about much more than gay marriage. They ban civil unions (which pluralities now favor), domestic partnerships, and potentially much, much more. And they do not simply stop judges from imposing gay marriage; they apply even to state legislative action.

(3) Individual state races and issues skewed the results. South Dakota, where support for the amendment was an astonishingly low 52%, is the most obvious example. There, the result was probably affected by the presence of a sweeping anti-abortion ballot measure, which brought out lots of pro-choice and anti-anti-abortion voters.

(4) It was a very bad night for Republicans for reasons unrelated to gay marriage (the Iraq war, perceived corruption), which produced a drag on support for the amendments. In almost every state (except Arizona) the marriage bans did better than most Republicans in state-wide races. Virginia is the clearest example of this, where the amendment passed with 59% support yet amendment supporter Sen. George Allen got just 49%. Gay-marriage bans can't save Republicans when the tide is this overwhelming.

Gay-marriage supporters will emphasize the first two factors; opponents will emphasize the second two. I do think it's fair to say that gay-marriage bans are starting to fizzle as a potent political weapon. Just as gay-marriage litigants are running out of friendly state judiciaries, gay-marriage opponents are starting to run out of very friendly state electorates (though I do think we'll end up with about 32-35 states with amendments when all is said and done).

The declining potency of this issue will likely have two effects. First, it will probably embolden more state legislators to reject state amendment proposals, preventing them from reaching the ballots in states where legislatures must approve them.

Second, the erosion of public support for marriage bans also suggests, I think, that both sides are going to have to start focusing more on legislation in the states. Neither will be able to deploy the trump card of judicial supremacy, on the one hand, or constitutional amendment, on the other. That's a healthy development since it means we'll have more actual legislative debate and compromise on the issue, outside of the cool confines of judicial chambers and the hothouse of popular referenda. It also means incremental change will be permitted, where judicial action and constitutional amendment on this issue entail a priori, all-or-nothing policymaking.

On that score, this election produced signs that the tide is turning in the legislative arena toward more recognition of gay relationships. That's the subject of the next post.