Running the numbers for an anti-Gay Marriage Constitutional Amendment
In the face of “Judicial Activism,” many conservative activists are calling for an amendment to the Constitution banning gay marriage. This would entail Congress approving such an initiaive and then sending it out as a referendum to the states. Two thirds of our 50 states would have to then approve the initiative. For those reaching for their calculators, no need. I’ve done the math for you. It comes out to 33 states.
The initial math makes it look like a slam dunk for these activists. Thirty nine states have currently have laws limiting gay marriage to heterosexual couples, thirty of which have passed amendments to their constitutions. It seems like the path to victory is clear.
That being said, public opinion is always shifting on this issue and many young voters, who were not eligible to vote on the initial laws and are generally more accepting to gay rights, would be added to the electorate.
So what would the path to victory look like for gay rights activists? Their task is easier mathematically because they would only need to win 18 states to prevent passage of the amendment. Here are the current numbers:
-5 states (Iowa, Connecticut, Massachusetts, Vermont, New Hampshire) and DC currently allow gay marriage. CAVEAT: Iowa and Massachusetts both legalized through judicial action which was in response to popular approval of anti-gay marriage laws. Iowans, however, have grown more accepting according to polls since the ruling.
-5 states (California, New Jersey, Oregon, Nevada, and Washington) allow the equivalent to marriage in terms of spousal rights, but not marriage. CAVEAT: California, of course, passed Proposition 8.
-4 states (Colorado, Maryland, Hawaii and Wisconsin) allow gay couples some, but not all spousal rights. CAVEAT: Hawaii passed a gay marriage law, but it was vetoed by the Republican governor.
ADDITIONAL CONSIDERATIONS:
-Arizona rejected a constitutional ban in 2006, but approved it 2008, so their response to a federal amendment is no sure thing.
-Maine has similarly oscillated passing laws allowing marriage and then banning it.
-It is worth questioning whether all 39 states that currently have statutes in place would agree to a federal ban.
-Before the referendum could even go out, it would have to get passed the Senate. Even if Republicans take control in November, any such law would have to get passed a filibuster, which I doubt Democrats will hesitate to use after the current session. A national referendum is therefore highly unlikely.
POINT BEING:
18 is the magic number for gay rights activists. They don’t even need to pass laws there. They must simply build up enough opposition to a federal amendment.
