On November 20th, Illinois governor Pat Quinn signed legislation making the state the 16th to legalize same-sex unions. The marriage bill’s ratification came just a week after Hawaii passed its own equality measure, capping off a year that saw same-sex unions go into effect in seven states.
With that kind of momentum, many are wondering which states are most likely to join the club next. Of the 34 states that do not yet have same-sex marriage, these are the five most likely battlegrounds coming up in the next five years – and the odds for each one:
1. New Mexico
Odds: 3 to 2
Same-sex marriage is already legal in New Mexico, depending on where you live – it’s the only state in the country that doesn’t mention gender in its definition of marriage, meaning that same-sex unions are neither explicitly banned nor allowed. Because of this, county clerks have taken up the issue to decide for themselves, and eight counties currently allow same-sex couples to apply for marriage licenses.
According to Anthony Martinez, Executive Director of the Civil Rights Agenda, this has long been an act of “civil disobedience.” Now the issue is going to New Mexico’s Supreme court: Last month, the court heard arguments for and against legalizing same-sex marriage, and is expected to rule by the new year. Martinez is hopeful that the court will rule in favor of equality, crediting Albuquerque’s gay and lesbian population as changing hearts and minds. “As [LGBT] families become more visible across the state,” says Martinez, “people realize the inequities of families raised without protections.”
Should the court uphold same-sex unions, the fight will likely continue. The state’s Republican opposition has vowed to take the battle to the ballots, hoping to repeal the court’s ruling through popular referendum. Says Republican State Senator Bill Sharer, “I think the most important thing here is no matter what [the court’s] decision is, the issue will not be settled until the people speak.”
Odds: 4 to 1
Oregon was one of 11 states that constitutionally banned same-sex unions in 2004, after Massachusetts became the first state in the nation to legalize marriage equality. But just 10 years later, Selene Kaye, the National Marriage Campaign Manager of ACLU, thinks the tide is changing. “In Oregon, there’s a coalition moving toward a ballot initiative in 2014,” says Kaye. This would give voters the chance to undo the 2004 marriage ban through public referendum, similar to Minnesota last year.
For Kaye, preparing for the 2014 ballot measure will require public education – or what Ms. Kaye calls “persuasion campaigns.” “The idea is to engage people who are supportive in efforts to talk to additional people,” explains Kaye. “When we get stories out there and make people start to understand us, we create an infrastructure to make a difference.”
Should Oregon United for Marriage collect enough signatures to get the initiative on the ballot in 2014, statewide polling suggests voters will back the measure. According to research from the Public Policy Poll, a strong majority of Oregon residents support same-sex unions, and 54 percent claimed that they would vote to make equality state law.
Odds: 20 to 1
Michigan is one of a few states with pending legal battles over the definition of marriage. In October, the state’s LGBT rights activists hoped that Judge Bernard Friedman would make an immediate decision the case of Jayne Rowse and April DeBoer, a Detroit couple who sued for marriage rights. The state was one of many to ban same-sex unions in 2004 – by a wide majority – and workers can still be legally fired in Michigan on grounds of sexual orientation.
Despite these challenges, advocates remain optimistic about the case’s February 25th court date. Regardless, Michigan is likely to see the issue come up again in the 2016 election cycle in the form of ballot measures.
Marc Solomon, the Campaign Manager for Freedom to Marry, says that activists need to win a critical mass of public support in battleground states where same-sex marriage was once an impossibility. “The overall goal is to grow public support between now and 2016,” says Solomon. “A lot of those amendments passed almost a decade ago, and since been there’s been a historically significant growth in support nationwide.” According to Gallup statistics, approximately 54 percent of Americans now support marriage for same-sex couples.
Solomon says that the real battles will be playing the long game, as we move past 2013’s string of marriage equality victories. “We’ve had quite a run as of late, but we’re going to be out of this mode of needing to win every few weeks,” states Solomon. “We need to continue to build momentum.”
Odds: 50 to 1
Proponents of equality in Virginia have a few aces up their sleeves: Ted Olson and David Boies – the lawyers who successfully argued against California’s Prop. 8 before the Supreme Court – have vowed to make the state their next target.
Back in 2006, Virginia joined the club of states to ban marriage equality in a landslide 57 percent to 43 percent voter decision. Earlier this year, a Virginia couple, Tony London and Timothy Bostic, applied for a marriage license in the state and were rejected. Just over two weeks later, London and Bostic took it to the state courts – and with Olson and Boies behind them, many are optimistic that Virginia could make history as the first southern state to legalize same-sex unions.
According to Anthony Martinez, it’ll all come down to the argument. “All they need is a well-structured case,” says Martinez, “and Ted Olson and David Boies are in a good position to make that happen.”
The good news for same-sex marriage advocates is that the state’s newly elected Democrat governor, Terry McAuliffe, supports marriage equality, as do most Virginians. A poll from the Washington Post and the Human Rights Campaign indicated that 55 percent of state residents favored same-sex unions.
This consensus is a good indication of potential court support, according to Camilla Taylor, the National Marriage Project Director for Lambda Legal. “The court likes to see itself doing a clean-up job,” says Taylor, and Marc Solomon agrees, “They don’t like to be ahead of the public on this issue.”
Odds: 100 to 1
On November 18th, the LGBT advocacy group Lambda Legal announced that it had filed an opening brief with Nevada’s Ninth Circuit Court of Appeals on behalf of eight couples to challenge the state’s marriage amendment.
In a statement, Lambda Legal Staff Attorney Tara Borelli said, “After the U.S. Supreme Court’s ruling striking down Section 3 of DOMA, Nevada’s ban on marriage for same-sex couples has become exponentially more harmful to same-sex couples who are barred from a sweeping array of federal benefits as well.”
Bernard Cherkasov, CEO of Equality Illinois, hopes that states like Nevada will provide a “tipping point” for marriage equality, especially leading into 2016. “Politicians may be slow to react,” says Cherkasov, “but the thing we have on our side is our amazing polling numbers. No one wants to stand in the way of historic record support. No one wants to stand in the way of what’s right. I think the wide majority support is going to shift the politicians’ views as well.”
October polls from the Retail Association of Nevada indicate that Nevadans support equality by a wide margin – with 57 percent in favor and just 36 percent opposing. Should the courts not overturn the state’s ban on equality, the Nevada legislature recently introduced a measure to put it to a public vote. Says long-time LGBT activist Tom Bellino, “It’s a three-year process to overturn the ban, and the process just started this year.”
Look for marriage on the Nevada ballot in 2016, where it’s likely to pass.
On the Bubble for 2016: Colorado, Ohio, Utah and Pennsylvania
In addition to potential ballot measures in Nevada and Virginia, advocates expect to see states like Ohio and Colorado take up the issue in 2016. Anthony Martinez argues that Colorado is on a similar path to Illinois and New Jersey – states that allowed civil unions before moving toward full marriage equality.
“We just saw civil unions pass in May [in Colorado],” says Martinez. “Civil unions have always been a stop-gap measure toward equality. Now we need to wait a while to let people see that the sky isn’t falling before we move toward full marriage.”
Camilla Taylor says Ohio, in particular, “has a lot of movement going on the ground.” A Cincinnati gay couple, John Arthur and James Obergefell, fought to be buried together. As an unmarried couple, Arthur and Obergefell lack the legal right to such allowances, but Arthur is dying of Lou Gehrig’s disease. After his passing, the two want to “officially remember and record their union as a married couple.”
They won, in a ruling that suggested that the state may be moving toward same-sex marriage. Federal judge Timothy Black argued that the state has historically upheld out-of-state unions, even “marriages between cousins and involving minors.” Wrote Black, “How then can Ohio, especially given the historical status of Ohio law, single out same-sex marriages as ones it will not recognize? The short answer is that Ohio cannot.”
Marc Solomon says Republican support has been crucial in Ohio, especially from U.S. Senator Rob Portman, whose son is gay. However, he believes that advocates should stay focused on overall momentum rather than winning each state one by one. “People shouldn’t feel discouraged that we’re only at 16 states and we have 34 to go,” says Solomon. “Ultimately, our national win is going to come from the United States Supreme Court. It’s how other civil rights have succeeded. Our job right now is to show the court that the country is ready.”