Testing marriage equality and civil unions at the polls

Building upon their successes in California and Maine, marriage-equality opponents have announced plans to let voters deprive same-sex couples of a state-constitutional right to marry, or to prevent them from exercising that right. Efforts to repeat electoral successes will continue, of course, unless the Perry plaintiffs succeed. Their success would mean that the well-financed opponents could no longer hold the right to marry of same-sex couples captive to the whims of a voter majority. For the plaintiffs to ultimately succeed, they need five U.S. Supreme Court justices to rule that same-sex couples have no less right to marry than heterosexual couples.

Consider these latest examples of appeals to voters. The Iowa Family Policy Center is launching its LUV ("Let Us Vote") Campaign. In Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), the state Supreme Court invalidated the restriction of marriage to heterosexual couples. The Family Policy Center and its supporters want to give Iowans an opportunity to vote on a constitutional amendment - which they call a "marriage protection" amendment (MPA) - that would reverse the Varnum ruling. Their vehicle is the LUV ("Let Us Vote") Campaign. In New Hampshire, advocates have started LetNHVote.com, with an MPA already proposed. They want voters to have comparable opportunity to overturn the state's marriage equality law. Walter Fauntroy, a champion of civil rights in the 1960s, has joined plaintiffs in a lawsuit to place the D.C. Marriage Initiative on the ballot. Stand for Marrige D.C. filed the initiative, as it says, "to preserve traditional marriage and stand up for the right of voters to decide whether to legalize homosexual marriage." One New Jersey Senator who opposed marriage equality legislation said that New Jersey voters should decide the issue in a referendum. Finally, WVForMarriage.com continues to seek legislative approval of an MPA, so that West Virginians can vote on it, with the hope that they will prevent same-sex couples from challenging the state's marriage law. In fact, Jeremy Dys of the Family Policy Council of West Virginia accuses state legislators of suppressing a vote on the question. He says that "the very process used to put lawmakers into office is being denied to the same voters when it comes to the definition of marriage in West Virginia."

Given defeats of marriage equality in New York and New Jersey, marriage-equality supporters in some states have understandably responded with plans to enact laws establishing or expanding domestic partnerships. Domestic partnerships appear to have more popular support than recognition of marriage equality. The Referendum 71 campaign in Washington was able to sustain that state's "all-but-marriage-law" for same-sex couples. Coloradans For Family Equality provides what appears to be the first example of an effort to place a civil union measure on the ballot.