The Initiative & Referendum Institute’s Ballotwatch

Same-Sex Marriage: Breaking the Firewall in California?

California voters seem poised to reject Proposition 8 in November, thereby affirming the right to same-sex marriage in the state that helped set off the movement to ban gay marriage. Since 2000, when California’s Proposition 22 — a statutory initiative banning same-sex marriage — was approved, gay rights supporters have scored victories in the Supreme Courts of Massachusetts and California, but been completely routed at the ballot box. A total of 30 ballot propositions concerning gay marriage have come before the voters in the last 10 years, and 29 of them have passed, often with margins greater than 30 points. The only measure to fail, Arizona’s Proposition 107 in 2006, lost because it included limits on civil unions as well as marriage; even that measure failed by only a narrow margin.

Proposition 8 proposes to amend California’s constitution to define marriage as existing between only one man and one woman. Voters approved a similar measure, Proposition 22, in 2000, but it was a statutory initiative rather than a constitutional one, and thus was vulnerable to being overruled on constitutional grounds. That is exactly what happened in May 2008, when the California Supreme Court ruled (In re Marriage Cases) that the state constitution contained a right to gay marriage, and invalidated Proposition 22.

Skirmishing over gay marriage began in 1993, when the Hawaii Supreme Court ruled (Baehr v. Lewin) that under the state constitution, a refusal to grant same-sex marriage licenses was sex discrimination. State legislators responded by placing a constitutional amendment on the ballot in 1998, giving the Legislature the power to define marriage as solely between one man and one woman. The measure was approved 68 to 32. At about the same time, fearing similar judicial developments in their states, conservative activists placed “defense of marriage” measures on the ballot in Alaska (1998), California (2000), Nebraska (2000) and Nevada (2000) — all of which were approved. The situation appeared to be static.

But then, in May 2004, the Massachusetts Supreme Judicial Court ruled (Goodridge v. Department of Public Health) that the state constitution contained a right to gay marriage. This ruling set off a pitched battle across the nation over the next three years, as marriage traditionalists in 24 states qualified for the ballot constitutional amendments prohibiting gay marriage. Two-thirds of these amendments were proposed and placed on the ballot by state legislatures, and one-third were proposed and qualified by citizen groups using the initiative process. All of them passed (generally by large margins), with the exception of Proposition 107 in Arizona.

Spending on California’s Proposition 8 is likely to reach a record level for a social issue, with total contributions of $55 million reported by early October. The record amount of spending on a single proposition is $154 million, on California’s Proposition 87 in 2006, which would have placed a windfall profits tax on oil companies. A handful of other measures have exceeded $100 million in spending — but in every case, the measures had significant financial ramifications for an industry with deep pockets: gambling, oil, tobacco or insurance. The playing field for Proposition 8 is balanced so far, with each side having raised about $27 million. Much of the money has come from individual donations in relatively small amounts, and apparently more than usual has come from outside the state.

The huge amount of money being channeled to fight this proposition, despite its minimal economic impact, reflects the view of both sides that California is a critical firewall in the battle over gay marriage. Rejection of Proposition 8, in effect a popular affirmation of the right to gay marriage, would provide tremendous momentum to the gay rights side, especially since California is a huge state perceived as a trendsetter. Passions also run high among supporters of Prop 8, many of whom feel that the issue’s impact on the family could profoundly alter the foundation of American society.

Opinion surveys indicate that Proposition 8 is headed toward rejection. Field and Public Policy Institute of California polls conducted in late September showed the measure trailing by more than 10 points — essentially where it stood in August. Since support for ballot propositions tends to erode over time, the substantial deficit currently faced by Proposition 8 strongly suggests that prospects for passage are dim. (The SurveyUSA poll from October 6 appears to be anomalous.)

In addition to California, Arizona (Proposition 102) and Florida (Amendment 2) will vote on gay marriage bans in November. A poll in late September found Proposition 102 heading toward passage, with 49 percent in favor and 40 percent opposed. Recent polls show majority support for Florida’s measure, but it requires 60 percent approval to pass, which is looking like a difficult hurdle to clear.

For more on USC’s Initiative & Referendum Institute, go to www.iandrinstitute.org or call (213) 740-9690. To download a PDF version of this report, complete with a list of recent opinion surveys on Proposition 8 and a state-by-state list of same-sex marriage ballot measures, click here.

John G. Matsusaka, president of the institute, can be reached at matsusak@usc.edu.

Please direct media inquiries to Gilien Silsby, director of Public Relations, at (213) 740-9690 (office), (213) 500-8693 (cell) or gsilsby@law.usc.edu.

More stories about: Election 2012, LGBTQ, Politics