New York Times columnist and political analyst Nate Silver examines the options that are facing Americans over the next years in the marriage equality battle. He doesn't deal with court cases nor Rhode Island, New Jersey or Maryland. Silver presents four models that explore either stopping constitutional amendments or repealing them. He is most optimistic on repealing the constitutional amendments in California, Maine and Oregon. He believes the Minnesota race is close and odds are very much against us in North Carolina. Here is his summary of his models for the key states.
Minnesota. The Minnesota measure, which would ban same-sex marriage but not domestic partnerships, should be considered something of a tossup. Under the Accelerated Model, it would fail with about 49 percent of the vote, while under the Linear Model it would pass with 54 percent — both forecasts well within the models’ respective margins of error.
One additional factor, however, is that Minnesota rules require a majority of all voters to cast a ballot in favor of a constitutional amendment in order for it to pass. So someone who turns out to vote next November and punches her ballot only for the presidential election is essentially a “no” vote. Historically, about 5 percent of Minnesota voters undervote constitutional amendment proposals despite casting ballots for other races, so what this means is that the ban on same-sex marriage will de facto need something like 52 percent of the vote in order to pass. For this reason, I’d conclude that the Minnesota measure is a slight underdog.
In addition, the most recent poll in the state finds that 55 percent of voters oppose the ban on same-sex marriage while 39 percent support it. Polls on this issue have historically underestimated the support for bans on same-sex marriage — but not by such a wide margin to account for this discrepancy. Instead, the rule of thumb is that you should assume that all undecided voters will vote for the marriage ban. But since an outright majority of Minnesotans oppose the initiative in the poll — even after accounting for the undecided — it provides some meaningful guidance.
The ban is certainly not a heavy favorite to be defeated: see this blog post for someone who thinks it will pass, and consider that there are two plausible Republican presidential nominees from Minnesota, which could affect the dynamics of the vote. But I’d set something like 5-to-3 odds against its passage.
North Carolina. The other state that is most likely to consider an initiative against same-sex marriage in 2012 is North Carolina — the only remaining Southern state that does not ban same-sex marriage in its Constitution. A ban on same-sex marriage alone would be a heavy favorite to pass in North Carolina: although the state is becoming bluer, it is still fairly socially conservative, and many of the voters who allowed Barack Obama to win the state in 2008 were African-Americans, who have historically been opposed to same-sex marriage.
The proposed text of the amendment would seem to apply to domestic partnerships in addition to marriage, however, which makes its prospects more tenuous. We’d project such a measure to receive about 60 percent of the vote under the Linear Model, but 54 percent under the Accelerated Model, making it a favorite but not a prohibitive one.
New York. New York’s new law is unlikely to be overturned. If a constitutional amendment to ban same-sex marriage were on the ballot next year, we’d project it to receive 40 percent of the vote under the Accelerated Model or 44 percent under the Linear Model, making its passage doubtful but not impossible.
But New York law is quite unfriendly to constitutional amendments, and even groups that would like see the law overturned are unlikely to get a proposition on the ballot before November 2015. Unless the trend toward greater acceptance of same-sex marriage abruptly reverses itself, such a measure would probably be defeated, perhaps by a wide margin.
Iowa. Among the six states where same-sex marriage is allowed today, Iowa is the only one in which the model projects a majority of voters would want to overturn it — either 52 or 58 percent of voters, depending on which model is used.
But Iowa is another state in which the constitutional amendment process is cumbersome. Ballot initiatives must be approved by both chambers of the Legislature for two consecutive sessions, and with Democrats having held onto control of the State Senate, it is likely to be at least 2013 before the initiative passes through the Legislature the first time, let alone the second.
If and when an amendment eventually makes the ballot, Iowans will have lived with same-sex marriage for several years at a minimum, during which time support for marriage equality is likely to increase both within the state and nationally. Therefore, the law is relatively likely to stick, the more promising route for overturning it perhaps being a court challenge.
New Hampshire. New Hampshire is another state in which there are discussions about overturning the new marriage law. Public opinion, however, is more likely than not to resist to such measures. Although the state can be fiscally conservative, it is also highly secular, and the models would project around 60 percent of the voters there to reject a ban on same-sex marriage if one were voted upon next year.
Maine. With the important caveat that the model had incorrectly deemed Question 1 to be an underdog in 2009, the results might be different if a similar measure were voted upon again. Between the growth in support for same-sex marriage over the past three years and the fact that the ballot initiative in 2009 may have benefited from standing alone on the ballot rather than being coupled with other races, the model thinks Mainers are likely, although not certain, to affirm same-sex marriage if given another chance.
California and Oregon. These are the states in which there has been the most discussion about overturning an existing ban on same-sex marriage. The model suggests that these are the right targets: of those states where there is a constitutional ban on same-sex marriage, they are by some margin the most friendly toward gay rights.
However, there is not yet a precedent for overturning a constitutional amendment that the voters in a state had previously approved, and the model might or might not be reliable in such cases.
Nevertheless, even the relatively cautious Linear Model predicts that 54 percent of Californians would vote against a measure like Proposition 8 if one were on the ballot next year, while 55 percent of Oregonians would vote against a ban on same-sex marriage like the one the state’s voters approved in 2004. Neither prediction seems too far out of line: Oregon’s marriage ban was rejected by 43 percent of voters seven years ago, and California’s by 48 percent two years ago, and public opinion has shifted meaningfully in favor of same-sex marriage since then.
In short, the future for same-sex marriage looks to be reasonably bright. Most of the states that were fertile ground for passing a constitutional ban on it did so long ago. Minnesota and North Carolina are potential exceptions, but the six states that have gender-neutral marriage laws on the books now are unlikely to see them reversed, while some of those that don’t are in a position for gay rights advocates to go on offense.