Who's Next? The Marriage Equality Waiting Room

By Michelle Garcia

Originally published on Advocate.com June 05 2013 2:41 PM ET


Within just a few weeks, Delaware, Rhode Island, and Minnesota have established marriage equality for same-sex couples, following an equally successful Election Day in Maryland, Maine, and Washington last November. In the past year, the number of states that extend marriage rights to same-sex couples has literally doubled. But now that same-sex couples in 12 states plus the District of Columbia can legally wed, LGBT people in 38 other states are left waiting for full marriage rights. That's why we've ranked the remaining states in the order of likeliness to establish marriage rights for same-sex couples.

The Advocate's ranking takes into account current relationship laws, pending lawsuits and legislation, the number of gay state officials, the percentage of gay couples, the latest opinion polls, the governor's political affiliation, and whether there has been any attention from national organizations such Freedom to Marry, the Human Rights Campaign, or the American Civil Liberties Union on particular states. The states were awarded points based on these various factors, with the number after each state representing its total score. This produces a list of sure bets and surprises that outline the marriage equality lobby's playbook for the next couple of years. That is, of course, unless the U.S. Supreme Court miraculously decides to not only overturn the Defense of Marriage Act but also Proposition 8 and all constitutional marriage bans in every state.

If the miracle route doesn't take shape, James Esseks of the ACLU says the first step is to continue winning marriage in states where passing a law is all that's required. The next battle would target states with constitutional amendments by working on repealing them, and then replacing those laws with marriage equality laws, as is currently the plan in Nevada and Oregon. Those states also would require a voter initiative to legalize marriage, which has become a successful effort for marriage equality activists as of late.

"We're going to need to keep doing this work and keep working in state legislatures where there isn't a constitutional amendment and pushing to get every one of those states," Esseks says.


The Sure Things

13. California, 14.998

Outside of the Proposition 8 case that has finally made its way to the Supreme Court, California is one state that seems to be completely primed for extending marriage equality to same-sex couples. The Golden State has the largest population of gay couples and the most LGBT representatives, and it already has some state recognition of same-sex relationships through a domestic-partnership registry. Even though the makeup of the country's most populous state includes religious proselytizers, farmers, and impossibly rich conservatives, alongside Hollywood liberals and the progressive Silicon Valley and Bay Area crowd, at least 50% of voters support marriage equality. So LGBT people in more conservative states may hope that the phrase, "As California goes, so goes the nation," is proven true again, at least in this case.


14. Colorado, 14.817

California has only had a slight edge over Colorado, another Western state that mixes rural and suburban conservatism with urban progressiveness. The effort to establish civil unions in Colorado proved to be a lengthy but worthy test run for the next level of recognition for same-sex couples.


15. Oregon, 11.986

Esseks of the ACLU says that Oregon could likely provide the first legislative victory for marriage advocates in 2014. "There's a very serious effort led by Basic Rights Oregon and a coalition of organizations including the ACLU, with the goal of putting the amendment on the ballot, to take back the marriage amendment that was passed there in 2004 and instead insert a provision with the freedom to marry for same-sex couples into the constitution." With a high percentage of gay couples, existing relationship recognition laws, and a majority of Oregon voters supporting the right to marry, a ballot initiative in 2014 might be successful.


16. Hawaii, 11.933

Legal activity in Hawaii during the 1990s was the major catalyst for the rest of the country, as states scrambled to institute bans on marriage equality. Nowadays Hawaii extends civil unions to gay and lesbian couples, but the next step is marriage. "In Hawaii, there was a marriage bill that we all pushed in the state legislature this session," Esseks says. "It did not pass, but the legislature has set up a study commission to evaluate the successes or failures of civil unions. That report will come out sometime in the next year, and we — the ACLU and many other partners — are going to be pushing hard for a marriage law in that legislature." The study was commissioned by the legislature and is being conducted by the University of Hawaii, with the results due November 1.


17. New Jersey, 6.75

Politically, New Jersey is similar to its big neighbor New York (before marriage, of course). In the grand scheme of things, the Garden State leans to the left, but that's despite its Republican governor, Chris Christie, a moderate who vetoed New Jersey's legislature-approved marriage bill last year. "I think our side still has a shot," Esseks says. "It might mean getting the freedom to marry through a legislative override [possible through January 2014], or potentially even with Governor Christie evolving on the issue while he's still in office."

Whether Christie is called to run for president in 2016 or is termed out of office may also affect how and when the state establishes legal marriage equality.

"If it doesn't happen before [2016] I don't see why we wouldn't be able to get a marriage equality law passed with the next governor, because the legislature has already voted for the freedom to marry, and I don't see them going back on that," Esseks says. In either case, a Democratic governor would be expected to support marriage equality, while a Republican governor could express his support without losing a ton of political capital in a state like New Jersey.


18. Nevada, 5.926

The major factor in establishing a marriage equality law in Nevada is time. "The effort in Nevada involves putting a repeal-and-replace initiative on the ballot in 2016, but that has to be passed by the current legislature [as it recently was] and then the next legislature before heading to the voters." When Nevada's state Senate passed the measure, Sen. Kelvin Atkinson came out to his colleagues and constituents in the process, and the state Assembly approved the bill shortly thereafter.


Likely/The Wild Cards

19. Illinois, 0.671

The only thing holding Illinois back is its House of Representatives. The state Senate approved marriage equality legislation on Valentine's Day, and Gov. Pat Quinn has said he would sign the law if it reached his desk, but the House failed to vote on the bill before the end of the General Assembly's regular session on May 31. But still it may come up in a special session or the "veto session" later this year. Recent polls show at least half of Illinoisans supporting marriage equality.


20. New Mexico, -2.016

At this point, New Mexico is the only state lacking both a law providing relationship recognition (like civil unions or domestic partnerships) and a statewide ban on same-sex marriage. This prompted Santa Fe's city council to urge the state attorney general to determine whether county clerks could just start issuing marriage licenses to same-sex couples. While that is being evaluated, marriage litigation was filed in March. "I think the New Mexico constitution is very protective of civil rights," Esseks says.



21. Pennsylvania, -6.33

State representative Daryl Metcalfe proposed a constitutional amendment in early May that would bar same-sex couples from marrying. But according to out state representative Brian Sims's office, the proposal has only 27 cosponsors; the last time it was introduced, there were 40 cosponsors.

"There is perhaps no better indication of how effectively we are moving forward on the advancement of LGBT civil rights in this state than Representative Metcalfe’s bill," Sims said in a statement shortly after Metcalfe's bill was introduced. "He has been trying to codify his personal religious beliefs surrounding LGBT Pennsylvanians since becoming a representative and each session, he receives less and less support. This year, his support has hit an all-time record low and at this rate, in the 2015 session he may be introducing this bill by himself. Ultimately, what matters here is that common sense, decency and compassion are winning the day against cruel attempts to harm Pennsylvania’s families."


Long Shots/Not Unless They're Forced

The remaining 29 states all have constitutional or statutory provisions to prevent same-sex couples from marrying, and the support for marriage equality among them averages at about 38%. As Esseks says, the states with constitutional bans will require efforts to not only repeal those bans  but then to replace them with marriage equality laws. This seems unlikely to happen without a lawsuit or more LGBT or allied lawmakers in those states to start working on the effort (Georgia has three LGBT state lawmakers, the most of any of these states, and the average is less than one per the remaining states). Georgia, Florida, and Arizona also have a relatively high percentage of gay couples, similar to Colorado's.

 

22. Wisconsin, -1.402

23. Arizona, -7.12

24. Montana, -7.44

25. Alaska, -8.283

26. South Dakota, -9.569

27. Florida, -11.116

28. Virginia, -11.328

29. Ohio, -12.379

30. Michigan, -12.438

31. Wyoming, -13.494

32. Idaho, -14.44

33. Kansas, -14.445

34. North Dakota, -14.604

35. Georgia, -15.168

36. Indiana, -15.343

37. North Carolina, -16.272

38. Missouri, -16.358

39. Nebraska, -17.48

40. Oklahoma, -19.329

41. Utah, -19.338

42. Texas, -21.244

43. Kentucky, -21.327

44. South Carolina, -21.36

45. Mississippi, -21.437

46. West Virginia, -22.314

47. Alabama, -22.402

48. Tennessee, -23.345

49. Louisiana, -24.297

50. Arkansas, -24.389