Momentum in the states to allow gay marriage may be about to stall.
Recent victories have given same-sex marriage advocates hope that the tide has turned in their long-running fight for marriage equality, given the number of states approving same-sex marriage has doubled since Election Day 2012.
But 36 states still ban such unions, and there's little sign of change in those states anytime soon.
While national public opinion polls show Americans warming to same-sex marriage, voters in many states remain staunchly opposed. And even where the politics and sentiment have changed, bans enshrined in many state constitutions could prove especially difficult to overturn — exactly the reason opponents pushed for constitutional measures in the first place.
In some states, public opinion is overwhelmingly opposed to same-sex marriage. In Kentucky, a recent poll found nearly two-thirds opposed to same-sex marriage; just one in three Democrats supported it. In Montana, about half of voters opposed legalizing gay marriage. Both states have Democratic governors and GOP control of the legislature. In Louisiana, meanwhile, one poll found same-sex marriage support at just 29 percent.
The trend follows regional lines. Aggregated data from four 2012 surveys by the Pew Research Center found gay marriage support in New England at 62 percent — those states all allow the unions. In the central south (Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee and Texas), opposition was 56 percent. Each of those states has a gay marriage ban.
The disparate trend has led to a patchwork of laws covering same-sex marriage, civil unions, domestic partnerships and even benefits for state workers. The Supreme Court is weighing a pair of cases that could shift the debate. But absent a broad ruling from the justices when the decision comes, likely in late June, the current landscape will probably remain static.
The issue facing supporters is straightforward: In many states where supporters could win, they already have. Now they'll be taking their fight to more challenging territory. Even where they see favorable odds, advocates face other obstacles — particularly the 30 states where bans of same-sex marriage are in their constitutions.
Colorado, which legalized civil unions earlier this year, is a key example. Voters there approved a constitutional ban on same-sex marriage in 2006. Changing it requires either a signature drive to get a referendum on the ballot or a supermajority in each chamber before it could go to voters.
Those hurdles mean that despite Democratic majorities and public support for same-sex marriage in the state, advocates had to settle for civil unions this year. House Speaker Mark Ferrandino, the state's first openly gay lawmaker, said that a same-sex marriage referendum optimistically could be sent to voters by the end of the decade.
“I would love to be able to do marriage,” Ferrandino said. “But given our constitutional amendment, the farthest we could go was civil unions.”
More broadly, Ferrandino said Colorado offers a cautionary tale about constitutional amendments. “It's very difficult for the legislature to change with the changing times,” he said. “And there's nothing changing quicker than attitudes on equality" for the gay community.
Colorado isn't alone. More than half the states require a supermajority for any amendment to pass. Twelve require that a proposal pass two consecutive legislative sessions. And in many cases, the amendment is eventually put to a popular vote before enactment, raising the prospect of an expensive, hard-fought statewide campaign that can be decided on turnout or other ballot items. Democrats, for example, tend to vote more heavily in presidential election years.
That's what same-sex marriage supporters face in Oregon, where the state allows domestic partnerships for same-sex couples but where marriage for them has been banned constitutionally since 2004. Activists are in the early stages of getting an amendment on the ballot for 2014, a process that will require more than 100,000 signatures — all before the actual campaign begins.
An eventual vote could be a close one. A recent poll found 49 percent support changing the constitution to allow same-sex marriage with 42 percent opposed. Nine percent are undecided.
Even in other states where the public is closely divided, the amendment process is just one hurdle, and not even the most difficult one. There's also legislative reality.
In Wisconsin and Virginia, for example, constitutional amendments to allow same-sex marriage require successive legislative approvals before voters weigh in. For now, supporters say there's little chance of even preliminary success.
“Virginians are in the right place, unfortunately our House of Delegates is not,” said James Parrish, Equality Virginia's executive director. “I personally just don't see the House of Delegates moving.”
The situation is similar in Wisconsin. “You have to have legislative support for repeal, which we do not have right now,” said Fair Wisconsin executive director Katie Belanger. “That's going to be a multi-year and multi-electoral-cycle process.”
The staying power of constitutional bans on same-sex marriage harkens back to the debate in many states when the measures were first debated. To supporters of the bans, they're a bulwark against activist lawmakers and judges and a way to protect the interests of religious groups from laws that would “redefine” marriage.
To gay marriage supporters, the bans make it harder for lawmakers to respond to public opinion.
Minnesota illustrates the difference. The state has had a law banning same-sex marriage since 1997, but last fall voters rejected an effort to make it a constitutional ban. That measure was put on the ballot by the then Republican-controlled legislature.
In November, Democrats retook control, and six months later, lawmakers overturned the state law. Democratic Gov. Mark Dayton's signature made the change official.
“It definitely proves our point that the constitutional amendment was necessary (to preserve the ban),” said Autumn Leva of Minnesota for Marriage, which campaigned in favor of the measure last year. “That's why we were pushing for the constitutional amendment.”
The National Organization for Marriage, too, called the turnaround in Minnesota a warning sign for other states.
“The recent actions in Minnesota should serve as a wakeup call to other states that have not yet passed Marriage Protection Amendments,” Brian Brown, the organization's president, said in a statement after the Minnesota vote. “If you do not protect marriage proactively in your constitution, the powerful and wealthy gay marriage lobby will target your state for their next campaign to change your laws.”
In Nevada, same-sex marriage supporters face a stiffer challenge, even though the state has seen a significant shift since voters approved a constitutional ban in 2002. Democrats now control the legislature, and LGBT-friendly measures, like a bill to allow harsher sentences for crimes against transgender victims, have gained currency with Republican Gov. Brian Sandoval.
But there, like in many other states, the system is designed to slow-walk change. The process for amending the state's constitution requires successful votes in two legislative sessions before a statewide vote. The earliest the state could repeal its ban would be Election Day 2016.
“It's frustrating,” said Nevada state Sen. Kelvin Atkinson, a Democrat who came out as gay on the Senate floor while his colleagues were debating the repeal amendment.
“You look at things as momentum, and momentum is on our side,” he said. “We would like to ride that wave.”
The Nevada Senate eventually approved a measure to allow same-sex marriage, and it's on its way to passage in the Assembly. If it passes again in 2015, the issue would head to voters the following year.
How that vote would turn out is anyone's guess. Atkinson is optimistic, even as he wishes the process could move more quickly. “I wish we could just go ahead and do it,” he said. “The good thing is I won't have to come out again.”