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The Fight for Marriage Equality Moves to State Ballots

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Ballot Referendums: The Final Frontier of Gay Rights Victories
Protesters in Raleigh, North Carolina
Sara D. Davis/Getty Images

Gay marriage supporters have had plenty to cheer lately, from President Obama's endorsement, to DOMA's First Circuit smackdown (not to mention several at the district-court level), to the Ninth Circuit court's decision to skip a full-panel review of California's anti-same-sex marriage Proposition 8, fast-tracking it to a potential Supreme Court hearing.

The one big exception: Amendment One, North Carolina's May ballot initiative banning same sex unions, which voters approved by a thumping margin – a reminder that, for all their recent progress, gay-rights advocates have yet to score a referendum victory at the state level, despite 32 tries. To maintain momentum, they're going to have to break this pattern, since state ballots are the next frontier in the battle for marriage equality.

Four states will almost certainly have gay marriage on the ballot in November: Maryland, Maine, Minnesota, and Washington. In all four, if you go by some of the polls, things are looking up for gay rights activists. In Washington, for example, a recent poll showed that 54 percent of likely voters think gay marriage should be legal. And in Maine, which overturned a marriage equality law by referendum in 2009, has had several polls that suggest upwards of 50 percent of voters support it this year.

But the polls also have the unfortunate tendency to overestimate how gay marriage will actually do in a vote, usually by about 7 points, according to Nate Silver of the New York Times. Evan Wolfson, the founder and executive director of Freedom To Marry, and Michael Cole-Schwartz, the Communications Director for the Human Rights Campaign, chalk the disparity up to low turnout. "Just because there's majority support for marriage in all of these states, doesn't mean we're going to get all of these voters out to the polls." Cole-Schwartz said. "Polling is great, it definitely bolsters our case, but it can't just be looked at on its own." 

Turnout might not be such a problem this November, when people will be flocking to the polls for the presidential election. But Brian Brown, the President of the National Organization for Marriage, doesn't think turnout has anything to do with it, and he calls "delusional" the notion of a shift in attitudes toward gay marriage. "People need to put their biases aside and put on their reality glasses," he told me. "I don't put a lot of stock in any of the polls that are out there," he said. "They're getting more and more ridiculous. Any person with common sense and a little bit of political sophistication – that hasn't bought into the mythology of the inevitability of same-sex marriage – need only look at the polling before North Carolina" and other states where it failed by ballot.

Brown says that NOM, which is the driving force behind these anti-gay marriage campaigns, is likely to spread about $2 million across the four races.

Polls aside, each of the four races is a little different – in ways that could tell come November. Gay rights groups in Minnesota are "on the defensive," as Cole-Schwartz put it, since pro-marriage forces would have to overturn a ban on gay marriage. In Maryland and Washington, opponents of same-sex marriage collected signatures to bring referendums on laws recently passed by the respective state legislatures that allow same-sex marriages.

In Maine, on the other hand, supporters of same-sex marriage were the ones to bring the referendum. Last year, gay rights groups had already collected twice the needed signatures to let voters decide whether to allow gay marriages, which would potentially be the first time a state would legalize it by referendum alone. But the memory of 2009 was still fresh, so it wasn't until February that they officially filed the signatures to bring the vote, when they had more confidence about the potential for success.

Wolfson, of Freedom To Marry, says this next phase in the fight for marriage equality is crucially important. "Our opponents last desperate talking point is that we can't win a ballot measure," he told me. "We've shown that we can win court cases, we've shown we can win legislatures, we've shown we can win Republicans as well as Democrats. We've shown that we can win over people that used to be opposed, but now support it."

"So the one thing they say we can't do is win a ballot measure, and we want to take that talking point away from them this year."

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