Same-sex marriage and the election (Part 1):

On the eve of the election, anti-gay-marriage commentator Stanley Kurtz assessed the likely impact of the results on the future of same-sex marriage politics. First, he suggested, there were important immediate implications for New Jersey, where the state supreme court had just ordered the legislature to grant equal rights to gay families.

If Menendez wins by four points or more, that sends the message that New Jersey's gay marriage decision had no harmful political effect on the Democrats. And that will tend to free New Jersey state legislators to risk approving full-fledged same-sex marriage. If, on the other hand, Kean defeats Menendez, that will be read as a message from New Jersey voters rejecting the court decision. Victory for Kean would maximize the chances that New Jersey's state legislature would approve "only" civil unions. And a big Kean upset might even push Democratic legislators, fearing for their seats in 2007, to join with Republicans to approve a state constitutional amendment defining marriage as the union of a man and a woman. So a great deal hangs on the outcome of the Kean-Menendez battle.

Menendez won, 53%-45%. That's double the margin that Kurtz predicted would "free New Jersey state legislators to risk approving full-fledged same-sex marriage" when they take up the issue in the next six months.

Second, he suggested a possible national impact:

Although there are many more complicating factors at the national level, the same political calculus does apply (or will be applied) nationally, though certainly to a lesser degree. If, in the wake of the New Jersey decision, the Democrats take over both the House and the Senate, it will be said that the gay marriage issue has lost its power to motivate voters. That in turn will embolden state judges to follow New Jersey's lead, and will make a Democratic congress far less likely to pass a federal marriage amendment in the event that New Jersey or some other state provokes a crisis by legalizing gay marriage, thus becoming a national gay "Las Vegas" some time in the next two years.

If, on the other hand, the Republicans come back at this late date and narrowly retain both houses of Congress, it will be said that the New Jersey decision helped to energize the voters. That will tend to keep activist judges bottled up, and will lay the political groundwork for a federal marriage amendment, if and when gay marriage spreads to more states.

The Democrats took the House. The Senate is up for grabs, but the Democrats have a slight edge.

There were even bigger and more direct messages about the politics of gay marriage in this election. I'll have more to say about that soon.

Same-sex marriage and the election (Part 2):

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.