The American Spectator

Political Hay

On the surface, state constitutional amendments blocking same-sex marriage fared about the same in 2006 as two years ago. In 2004, these amendments sailed to passage in all 11 states where they were on the ballot. This November, traditional-marriage advocates went seven for eight, losing Arizona by about 32,000 votes out of more than 1.1 million cast -- a much better overall record than, say, the Republican Party's.

So maybe defense-of-marriage amendments didn't do much to boost GOP turnout this time around -- ask soon-to-be-former Sen. George Allen in Virginia -- but social conservatives can comfort themselves that on gay nuptials, fluky Arizonans aside, the people have spoken. As the conservative blogger Dan Flynn put it, "Feel free to laugh when liberal news readers continue to label this issue divisive. It's not. It's hard to think of any issue that could pass muster in so many diverse states."

But don't laugh too hard. Take a look at the size of the "no" vote in some of these states. As recently as the 1990s, same-sex marriage was a fringe concern as well as an oxymoron. In 1996, the Defense of Marriage Act sailed through the House by a vote of 342 to 67 and the Senate by 85 to 14. Liberal states like Hawaii and California affirmed traditional matrimony by margins approaching 70 percent.

This year, several states passed marriage amendments by similarly convincing margins. Tennessee's amendment passed with 81 percent of the vote, South Carolina's 78 percent. In Idaho, 63 percent rebuked marriage-redefinition attempts. Yet in the remaining five states, the anti-amendment vote averaged 45.4 percent. A not insignificant 43 percent of Virginians opposed the gay-marriage ban, as did 48 percent of South Dakotans. And Arizona, the state that dealt marital traditionalists their first democratic defeat, is hardly a liberal haven like Massachusetts.

The socially conservative consensus on this issue is showing signs of wear. It isn't an overwhelming victory when 40 percent of voters in a given state doubt the traditional definition of marriage. Nor is it a good sign going into what may be the toughest year yet for same-sex marriage skeptics.

Massachusetts Gov. Mitt Romney has made headlines and won conservative plaudits for filing a lawsuit against the Democratic legislature for blocking a vote on whether to place a defense-of-marriage amendment on the Bay State ballot. This is his latest attempt to roll back the Supreme Judicial Court's imposition of gay marriage on the commonwealth. But Romney's suit is almost certain to fail, as it will be decided by that same court. Significantly, the more democratic branches of government aren't on board either.

And why should they be? No Massachusetts legislator who voted to thwart a referendum on same-sex marriage was punished by the voters this year. The Democratic house and senate leaders whose obstruction elicited Romney's suit don't fear any electoral backlash. Come January, Romney will be replaced as governor by Democrat Deval Patrick. Patrick not only supports the Supreme Judicial Court's marriage regime; he favors repealing the law that has prevented Massachusetts from becoming the Las Vegas of gay marriage.

That would be the 1913 statute prohibiting out-of-state couples who can't wed legally in their own states from getting married in Massachusetts. Throughout this fall's gubernatorial campaign, Patrick assailed the law as unfair and rooted in bigotry against interracial marriage. In a televised debate he argued, "I think something that has origins that are as questionable and discriminatory as they seem to be in this case ought to come off our books." A majority of state senators, at least, seem inclined to agree.

Gay marriage didn't win Deval Patrick the governor's race, but it didn't cause him to lose either. While Massachusetts Family Institute President Kris Mineau complained to Reuters, "It's bizarre for one state to be so socially reckless as to want to export this type of marriage to the other 49 states," the Bay State may be about to get some company. New Jersey's highest court has ordered the legislature to grant same-sex couples either marriage or civil unions and the Garden State has no Massachusetts-style law on the books disqualifying out-of-state couples.

Legislative action by either state could set the stage next year for the first serious challenge to the Defense of Marriage Act brokered a decade ago. For now, judges remain the strongest constituency for gay marriage. The contours of this debate are slowly changing, however. Cultural conservatives may find themselves fighting against a social revolution started by the courts but increasingly accepted by the voters.

The 2006 results showed that the old strategy for combating same-sex marriage -- statewide initiative campaigns that pit the people against unelected judges -- still works far more often than it doesn't. But in Arizona and elsewhere, there are signs that it won't work forever. Social conservatives are going to have to become a lot more innovative.

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