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Article published Oct 14, 2006
Gay Marriage Losing Punch as Ballot Issue
New York Times
DENVER, Oct. 13 — The debate over same-sex marriage was a black-or-white proposition two years ago when voters in 11 states barred gay couples from marrying.
But this year shades of gray are everywhere, as eight more states consider similar ballot measures. Some of the proposed bans are struggling in the polls, and the issue of same-sex marriage itself has largely failed to rouse conservative voters.
In some cases, other issues, like the war in Iraq and ethics in Washington, have seized voters’ attention. But the biggest change, people on both sides of the issue say, is that supporters of same-sex marriage this year are likely to be as mobilized as the opponents.
The social conservatives, who focused on marriage in 2004 and helped President Bush gain re-election in some hard-fought states in the Midwest, have been offset by equally committed and organized opposition. Slick advertising, paid staff and get-out-the-vote drives have become a two-way street.
“The opponents of these measures have had a lot more time to organize and fund their efforts; that has made for a bit of a different complexion,” said Julaine K. Appling, the executive director of the Family Research Institute of Wisconsin, which supports a constitutional amendment in that state defining marriage as between a man and a woman.
Proposals like Wisconsin’s are also on the ballot in Arizona, Colorado, Idaho, South Carolina, South Dakota, Tennessee and Virginia. And while most of the measures are expected to pass, their emotional force in drawing committed, conservative voters to the polls, many political experts say, has been muted or spent.
Recent polls in Arizona, Colorado, Virginia and Wisconsin, for example, have suggested only narrow majorities in support, in contrast to the 60 to 70 percent or more majorities in most states that voted on the issue in 2004. Two recent polls in South Dakota suggested that the same-sex marriage amendment might actually lose, while a third said it seemed likely to pass.
“As it stands right now, conservative turnout is not going to be as strong as it has traditionally been,” said Jon Paul, the executive director of Coloradans for Marriage, which is supporting a ballot measure that would ban same-sex marriage.
Some pollsters say people might just be burned out on the subject of marriage and its boundaries.
“It doesn’t seem to be salient to what most Tennesseans are concerned about right now,” said Robert Wyatt, the associate director of the Middle Tennessee State University poll. The ballot proposal there will almost certainly pass, Dr. Wyatt said, but few people think it will drive turnout or swing the tight race for the Senate between Bob Corker, a Republican, and Representative Harold E. Ford Jr., a Democrat. Both candidates support a ban on same-sex marriage.
Dr. Wyatt said efforts to stir enthusiasm among conservatives have mostly fallen flat.
“It’s one of those things that’s like preaching to the choir,” he said.
The momentum against same-sex marriage at the ballot box has also been hurt by court cases that have upheld bans on same-sex marriage — notably rulings by the highest courts in New York and Washington this summer — by removing some of the urgency for constitutional amendments.
Here in Colorado, the debate has been complicated by the presence of two ballot measures on the subject that in essence work in opposite directions. One measure would add a ban on same-sex marriage to the Constitution, and the other would create a framework of legal rights for same-sex couples in civil unions.
Scholars who track gender-law issues say that gay rights groups and their allies have worked hard since the last election to create a middle-ground position on the question of partnership rights that could appeal to voters who might not vote for same-sex marriage.
The position, which has been repeated like a mantra across Colorado this year by advocates for the civil union proposal, holds that civil unions are not marriage and that if voters want to hold marriage apart as a separate institution for heterosexuals, that would be fine. But it is only fair and just, they say, that couples in other types of relationships have legal protections, too.
Opponents of the civil union bill say that the moderation line is a smokescreen and that same-sex marriage in Colorado will become a reality in fact, if not in name, if the civil union proposition is approved.
“It is nothing short of Orwellian doublespeak to say it is not marriage,” State Representative Kevin Lundberg, a Republican from eastern Colorado, said at a recent forum in Denver on the ballot proposals.
Political analysts suggest that just like patrons perusing an old-fashioned Chinese restaurant menu, voters in Colorado considering the two measures might take one from Column A and one from Column B. Some people say they plan to do just that.
Joel Sidell and Dona Maloy — longtime unmarried partners who live in the Denver area — show how the lines have fractured. Mr. Sidell, 62, a retired police officer and a Republican, said he would probably vote for the ban on same-sex marriage and against civil unions.
“To me, it still does not seem right for a woman to be able to marry a woman and a male to marry a male,” Mr. Sidell said. “I don’t think it’s the sanctity of the term. It just doesn’t seem proper.”
Ms. Maloy, 61, is a Democrat who said she planned to vote the opposite of her partner — no on the marriage amendment and yes to benefits for same-sex partners.
“I think that marriage is a personal thing; at least it is for me,” she said. “Legally, I don’t see why people can’t all have the same rights.”
The two major party candidates for governor in Colorado have also taken opposite sides on the marriage-civil union debate. The Democrat, Bill Ritter, has said he will vote for civil unions and against the constitutional amendment, while the Republican, Representative Bob Beauprez, has said he plans to vote against civil unions and for the same-sex marriage ban. Pollsters say those positions do not appear to be swaying the race, which Mr. Ritter has led by 10 to 15 percentage points in recent polls.
Tangled legal questions over parental rights, health care decisions and employer benefits have emerged in some states where efforts to ban same-sex marriage and civil unions were successful in the past, complicating calculations about how the bans play out in real life. The case of Lisa Miller and Janet Jenkins is one example.
Ms. Miller and Ms. Jenkins were joined in a civil ceremony in 2000 in Vermont, which allows same-sex contracts. Ms. Miller had a baby in 2002 through artificial insemination, and they raised the child together. Now they have separated, and both Vermont and Virginia, which does not recognize the validity of Vermont’s civil union system, have claimed jurisdiction over the question of child custody.
Legal experts say the case is probably headed for the Supreme Court. In the meantime, Virginia’s same-sex marriage ballot proposal would define marriage as between a man and a woman and also put into the Constitution the legal language at the heart of the custody battle: that civil unions formed in other states are invalid in Virginia.
That prohibition on civil unions is even too far-reaching for some opponents of same-sex marriage, said Larry J. Sabato, director of the University of Virginia Center for Politics.
“It’s so sweeping, it’s giving some people pause,” Mr. Sabato said.
Meanwhile, gay men and lesbians continue to come out in ever greater numbers, especially in some of the states that will be voting on the marriage issue next month.
From 2000 to 2005, the number of people identifying themselves in Census surveys as being in a same-sex couple grew by 30 percent, to about 770,000, according to a study released this week by the Williams Institute at the University of California, Los Angeles, which tracks and researches gay legal issues.
Of the eight states with ballot measures, the study found that six had growth rates higher than the national average, led by Wisconsin, up 81 percent; Colorado, up 58 percent; Virginia, up 43 percent; and South Carolina, up 39 percent.
Conservatives like Mr. Paul of the Colorado marriage group say the low-key tenor of the same-sex marriage debate could change in a thunderclap if a court decision that appears to undermine traditional marriage boundaries is handed down before the election. The New Jersey Supreme Court has a case pending and could issue a decision before Election Day.