“I believe the issue of marriage must be decided by the states, and by the people in the states, not by judges and not even by legislators, but by the people themselves.”
The above quote is from Wyoming Senate hopeful, Liz Cheney. It's actually a thought that a lot of social conservatives like to throw out there. They are all about the federal government not getting involved in the idea of marriage and they prefer each state to decide on their own about whether or not same sex marriage should be legalized. Beyond the very obvious thought that, this is not how we actually decide how laws or civil rights issues are passed, there may be another flaw in this line of thinking.
This idea has become even more popular after the Supreme Court's decision in the Proposition 8 case that allowed the ruling of the 9th Circuit Court to be upheld. Basically, this decision invalidated the "will of the people" in which California voters made same sex marriage illegal based on the votes on the ballot initiative that was Proposition 8.
Proposition 8 was a ballot initiative for California's state constitution. It was also known as the California Marriage Protection Act and stated that "only marriage between a man and a woman is valid or recognized in California." Proposition 8's campaign both for and against raised over $80 million, which eclipsed every race in 2008 except the Presidential election. Further, this campaign nearly tripled the costs of the 22 other similar ballot initiatives combined from 2004-2006.
Former Speaker of the House Newt Gingrich and Presidential candidate John McCain both supported the passage of Proposition 8, stating that it was "the will of the people." This was said despite almost every public poll that showed that more people were against Proposition 8 than were for it. The Roman Catholic Church came out in favor of Proposition 8, as did the Church of Jesus Christ of Latter Day Saints. Most notable religious organizations favored the Proposition being passed, including noted pastor Rick Warren.
Presidential candidate Barack Obama and Vice-President nominee Joe Biden both rallied against Proposition 8. Speaker of the House Nancy Pelosi also campaigned against Proposition 8. So did former governor Arnold Schwarzeneggeer and attorney general Jerry Brown. All 10 of the state's largest papers wrote editorials condemning Proposition 8.
But San Francisco mayor Gavin Newsom released an advertisement that stated that "whether you like [same sex marriage] or not, it's going to happen." Public opinion polls showed that after seeing that advertisement, people were more likely to support Proposition 8.
Because of all of the attention and money spent and partially due to Gavin Newsom, Proposition 8 passed 52-47%. This was a huge upset for those who worked on "protecting" marriage. The line that it was the "will of the people" has been repeated ad nauseum.
The "will of the people"
On November 6, 2012, the people of Maine voted to legalize same sex marriage 53-47 and same sex marriage officially became legal on December 29, 2012. Public Policy Polling has found that 62% of people in Maine say that same sex marriage has not had an impact in their life, at all. 18% say it has had a positive impact on their life. Only 20% say it has had a negative impact on their life. Because of that, the number of people who think same sex marriage should be illegal have fallen to 38%.
In the only state that matters for presidential elections, Ohio, 48% of voters believe same sex marriage should be legal while 42% oppose. 10% are not sure. But in Louisiana, 63% of respondents do not want same sex marriage legalized. 60% of Georgians do not support same sex marriage being legalized. Meanwhile, in Alaska, it is pretty split, as 45% support same sex marriage and 48% do not. 32% of Wyomingites support same-sex marriage and 57% do not support it.
Judges in Iowa declared that same sex marriage should be legal. Since it has been legal, 11% have said it has made a positive impact and 26% have said it has made a negative impact. The majority of people. 63% have said that it has not impacted their life at all. The smallest of margins shows that Iowans support same sex marriage. 47% of Iowans support same sex marriage while 44% say it should be illegal.
Sure, only 34% of Texans think same sex marriage should be allowed in Texas while 57% say they should not. In Montana, it's more or less a coin flip whether or not people support same sex marriage. 42% of people in Montana support same sex marriage and 48% do not support it. The state legislature in Minnesota recently legalized same sex marriage. During the 2012 election, there was a vote to determine whether they should ban same sex marriages or not. The initiative was rejected by the voters. 49% of Minnesotans support the legalization of same sex marriage and 45% do not support it.
Massachusetts was one of the first states to legalize same sex marriage. 25% of people in Massachusetts say that same sex marriage has had a positive impact on their life and 15% say it has had a negative impact. Meanwhile, 58% of people in Massachusetts should continue to be legalized and 32% oppose it. New Hampshire's legalization of same sex marriage has had a negative impact on 16% of people in New Hampshire and 17% say they have been positively impacted. 56% of people in New Hampshire say it should be legal and 34% say it should not.
In another swing state, Colorado, 51% of people there think same sex marriage should be legalized while 43% say it should be illegal. Perhaps this is why sections of Colorado want to secede from the rest of the state. But in Kentucky, 27% think same sex marriage should be legal and 65% think it should be illegal. In the swing state of Pennsylvania, 45% think it should be allowed and 47% think it should not be allowed. Even in Wisconsin, it might be too close to call. 44% of voters think same sex marriage should be legal and 46% think it should be illegal. Despite Congressman Tim Huelskamp's attempt to define marriage nationally, only 51% of Kansans think same sex marriage should be illegal and 39% think it should be legal. I bet Rep. Huelskamp doesn't say things like the states should decide on their own about marriage.
North Carolina spent part of their presidential primary day banning same sex marriage and any unions that were not one man married to one woman. It turns out even if they have the vote now, 38% think same sex marriage should be allowed and 54% think it should not be allowed. In Rhode Island, 57% of people believe same sex marriage should be legalized and 36% think it should not.
These states are not cherry picked they are the only states that are polled by Public Policy Polling about the legalization of same sex marriage. The questions are the same each time. According to Public Policy Polling the states that have the "will of the people" to ban same sex marriage are Texas, North Carolina, Louisiana, Kentucky, Georgia, and Kansas. There can be an argument to be made for Montana, as well. The will of the people in the other states are either not decided or in favor of same sex marriage.
Is this the right way to look at it?
Support for same sex marriage has been on the rise for the last few years. If you don't believe me, scroll through Public Policy Polling's reports on the question. You'll see support growing every month, really, for same sex marriage. So any bans on same sex marriage might reflect the "will of the people" at this moment in time but it may not be the will of the people in the future. In the near future, there will be near universal support for same sex marriage. Do we really need to wait around for that pendulum to swing to legalize same sex marriage?
Consider California. For all of the talk that the United States Supreme Court took away the "will of the people" or ruined democracy in California, maybe we should look at how Californians feel about same sex marriage now. According to a poll put out by USC, 58% of Californians now support same sex marriage. In 2010, when that question was asked 52% of Californians favored same sex marriage. So, what's the real will of the people? The ballot box in 2008 or every poll that is brought out now. What is the more accurate way of measuring public support at this moment, a poll from a month ago or an election 5 years ago?
If we take the argument to the logical conclusion, we should vote to legalize same sex marriage every time a new public opinion poll is out. This just isn't right. You either believe that it's right or not to allow same sex marriage, it should not hinge on whether or not 50.1% of the people support it or not. Once we reach 50.1% of a vote for a civil rights issue, it becomes right? That's the statement being made.
I don't think we should rely on public support for issues of civil rights. It's not as if we voted on whether or not to allow interracial marriage, to end segregation in schools, freeing slaves, etc. It's a bullshit excuse to say that you have to have the states decide whether or not they have the will of the people in a state to legalize something, that you personally think is yucky.