2012: The Year We Win Marriage Equality at the Ballot

In November, marriage equality will be back on the ballot in four states -- Minnesota, Maine, Maryland and Washington. All four are in blue states that Obama should carry, all four states have encouraging polls and in all four states we have changed the messaging to better reach swing voters. As Californians, we all remember how painful it was to lose on Proposition 8 four years ago. One year later, we lost in Maine -- and at the time marriage equality supporters (including myself) argued the ballot was not the right place to be fighting this battle. In the past three years, we have made strides elsewhere -- in the courts with Prop 8 and DOMA, in state legislatures like New York and by pressuring President Obama to publicly come out in favor of gay marriage. But skeptics who fear "putting our rights on the ballot" should keep in mind that only in Maine have we chosen to go back to the ballot -- so an electoral strategy was inevitable. And as the U.S. Supreme Court takes up Prop 8 and DOMA in 2013, winning even one of these four states may be decisive at persuading five Justices. The following is a preview of each state...

Here in California, it's been gratifying for the past two years to see the courts affirm what we failed to persuade a majority of voters in California, but there are limits to a purely legal strategy. Prop 8 supporters couldn't muster a cogent argument at trial, but our opponents never put up a real fight in Court.

As the National Organization for Marriage conceded before the Prop 8 trial even began, "we do not expect to win at the trial level. But with God's help, at least five members of the current Supreme Court will have the courage to defend our Constitution from this grave attack." What would grab their attention, however, is an electoral victory that finally breaks our 34-state losing streak.

When the Supreme Court overruled a ban on interracial marriage in 1967, they noted that only a handful of states still had such laws on the books. When they declined to overturn anti-sodomy laws in 1986, most states still had statutes -- but when they overruled Bowers 17 years later, the Court noted how few anti-sodomy laws were still even around.

Whether states have passed or not passed marriage equality isn't supposed to matter in court decisions, but political reality says otherwise. And while waiting for the courts to sort it out is disempowering to all but the lawyers involved, right now gay marriage supporters have a rare opportunity to impact next year's Court decisions -- by getting involved in one of these states.

Maryland and Washington: Defending Legislative Victories

Since losing the Maine ballot measure nearly three years ago, gay marriage advocates have successfully lobbied to get three more states to pass marriage equality legislation -- New York, Maryland and Washington (four if you count New Jersey, which GOP Governor Chris Christie vetoed.)

New York does not have a referendum process, so that victory is safe. But in Maryland and Washington, we now face a similar situation we had in Maine three years ago -- despite the state legislature and Governor passing a marriage bill, the right-wing has collected enough signatures to place it on the ballot.

Fortunately, there are a few differences this time around. For one, in both Maryland andWashington -- unlike Maine -- a "yes" vote is to keep the new legislation, whereas a "no" vote overturns it. Hopefully, this will alleviate some confusion we saw among our side in Maine.

In both states, polling doesn't just have the "pro-equality" side with more support than those who are against the law -- but support is at over 50%. In Washington, 54% of voters in a recent poll said they support gay marriage -- with 33% opposed. In Maryland, we are seeing similar numbers -- 57% in favor of the new law, and 37% opposed.

But don't polls notoriously undercount marriage equality opponents? Isn't there a "Bradley effect" on gay marriage -- where respondents give the pollster what they know is the politically correct answer, while doing something else in the privacy of the polling booth? Yes and No.

In a comprehensive study done in June 2010 on gay marriage polling (commissioned by the Haas Foundation), we learned that poll respondents who say "yes" to gay marriage do end up voting that way -- but the problem is people who refuse to answer, or claim to be undecided. So for example, a poll that shows our side "winning" by a 48-46 margin is bad -- because we end up losing 52-48.

But people who affirmatively tell a pollster they support marriage equality do end up sticking with us on Election Day -- and once we get folks to support us, you don't see slippage. That's why it's a smart idea to go to the ballot where polls show us having more than 50% support.

The news out of Maryland, however, has been particularly exciting in the past month. Since President Obama's historic endorsement of marriage equality, we have seen a significant shift among African-American voters in Maryland in our favor. For years, our opponents at N.O.M. have banked on turning out black voters against gay marriage -- going so far as to openly brag about "driving a wedge between blacks and gays."

Now, President Obama has openly endorsed Maryland's marriage equality law -- at a recent speech in Baltimore. This is a welcome contrast from 2009, when he never acknowledged Maine's gay marriage initiative -- besides a generic statement about all such measures. With Obama on the ballot in these blue states, there is opportunity for cooperation.

You can get involved in the Washington campaign here, and the Maryland campaign here.

Minnesota: Stopping Another Amendment Battle

Like we saw in states across the country in 2004, 2006 and 2008, the right-wing has put an amendment on the Minnesota ballot this November -- which would enshrine discrimination in the state constitution. The only reason it took so long in Minnesota, is that Republicans did not control the legislature until after the 2010 election -- when they promptly put it on the ballot.

Here, a "no" vote is the pro-equality position. Polling in Minnesota is less encouraging than in Washington or Maryland -- a recent poll has us "winning" with 49 percent against the amendment, and 43 percent in favor. But unlike any other state that I'm aware of, Minnesota law says a voter who abstains on a ballot initiative counts as a "no" vote.

With President Obama on the ballot this November, we can expect a huge turnout of casual voters -- especially in Minnesota, which has same-day voter registration. While the campaign Minnesotans United for All Families is working hard to urge a "no" vote, I expect the difference in Minnesota election law will automatically give us a 1-2% benefit -- which may be decisive.

You can get involved by helping the Minnesota campaign here.

Maine: Marriage Equality Goes On the Offensive

Back in 2009, I traveled to Maine twice to assist the campaign -- and losing that race was one of the most depressing election nights of my 16-year career. But organizers have spent the last three years, taking advantage of an "off-election" cycle to have real conversations about marriage equality -- especially in corners of the state that did not support us last time. In small towns in Northern Maine, they asked supporters to sign a "pledge" for marriage equality and have their names published in local newspaper ads -- and the results were better than expected.

Based on voter turnout models, we would have won the Maine referendum -- if it had been on a presidential election ballot. So Equality Maine collected thousands of signatures to put gay marriage back on the November ballot -- with a "yes" vote, this time, being a vote to enact marriage equality. Rather than oppose an awful amendment, or to protect a recent victory, Maine will be the first time in history that gay marriage supporters choose to go to the ballot.

Other factors will play in our favor. Question 1 the Documentary, which chronicled Maine's campaign in 2009, has been released -- where the opposition has candidly admitted that they lied in order to manipulate voters. The Catholic Church, which played a very prominent role last time around in rallying support for Question 1, claims they won't be involved this time -- at least not officially.

I'm already planning to go to Maine in the fall -- finishing the job that we did in 2009. You can get involved with the campaign by clicking here. A new poll this week has 55% of Mainers in favor of the initiative, with 36% opposed.

Refining Our Message for Marriage Equality

By not going to the ballot for three years, our side has been able to do extensive research -- which will guide our message development in all four states this fall, and better reach the "swing voters" who will decide these elections. Some of the best analysis I've seen has been a post-election poll that Third Way did of Maine voters, which carries some important lessons.

First, you won't see as much talk about "rights and benefits" that we saw in previous cycles. Swing voters believe that if all gay couples want is a handful of rights and legal benefits, they can have civil unions. But couples -- gay and straight -- get married for more than that. They desire to get married, because marriage has a very significant cultural and emotional bond to it.

We're going to see a lot more messaging about love and commitment -- what "marriage" means to gay couples, but also what it means to straight couples. And to avoid the attacks we see from our opponents (who claim we want to "re-define" marriage), in all four states we will talk about how same-sex couples want to join marriage as an institution that they respect.

As President Obama stands for re-election, and progressives plan to undo the damage of the 2010 elections, it is time to channel the same kind of "hope" that inspired so many of us in 2008 to travel across the country and elect a new president. For marriage equality supporters, getting involved in these four states in November is an opportunity to make history.

Paul Hogarth is the managing editor of Beyond Chron, San Francisco's Alternative Online Daily, where this piece was first published.