The media have dubbed state referenda that define, for constitutional purposes, marriage as a union between a man and woman as "gay-marriage bans," as if these thirteen measures take something away. Given that same-sex marriage has never been legally recognized, and remains unrecognized in every state except Massachusetts, these measures do nothing of the sort, as they cannot ban something that doesn't exist. If anything, the referenda do just the opposite-they leave things related to marriage alone. The only things they ban are state courts from rewriting, as they did in Bay State, marriage law.
Shedding additional light on the push to strengthen marital statutes, a study by University of Arizona sociologist Sarah A. Soule explores the political, legal, and social environments of 37 states that adopted explicitly heterosexual marriage laws largely between 1996, when the federal Defense of Marriage Act was passed, and 2000. Although she uses the loaded phrase gay-marriage bans, her findings reveal a democratic process at work and debunk the caricature of the 13 state referenda of 2004 as redneck gay bashing.
Many of her findings went against her own expectations, including the demographic makeup of the states that enacted such legislation. In all four of her statistical models, none of her three control variables (rural state, Southern state, and a state with a less-educated population) yielded a significant correlation with the dependent variable, the probability of a state upholding traditional marriage law.
Other anticipated correlations were reversed as she found that "gay friendly" states were actually more likely to pass gay-marriage prohibitions. In all four models, states with "hate crime" laws that include sexual orientation, as well as states that had repealed sodomy laws, were more likely to prohibit same-sex marriage (p<.05 in all but one of eight coefficients). In the first model, which examined the effect of the "political opportunity structure" of a state adopting a same-sex ban in a given year, states with "hate crime" statutes, relative to states without such statues, were eight times more likely to do so; states that had repealed sodomy laws, relative to states that had not, were twice as likely.
Of interest to pro-family groups, her third model found that "bans were more likely to be passed in states characterized by active interest organizations on both sides of the same-sex marriage debate" (p<.001). While an earlier model found that the presence of a homosexual lobby reduced the likelihood of a gay-marriage prohibition (while the presence of a "family policy council" yielded the opposite effect), that former correlation disappeared when the two were combined into one interaction variable: "In states in which a bill has been introduced, the presence of a Family Policy Council trumps efforts by the gay and lesbian organizations to prevent passage of the bill."
That third model also found, contrary to Soule's expectation that Republican strength in a state legislature would render a family policy council more effective, that "interest organizations are more important than political parties" in the passage of these laws.
While perhaps not Soule's intention, her study demonstrates that recent actions of state legislatures and electorates to confirm traditional marriage law represent a remarkable exercise in democratic decision-making, elevating "We the People" over the courts in adjudicating a pressing issue of the times.
