IT’S EASY TO FORGET that same-sex marriage bans did not start with California Proposition 8, nor did they originate with the rash of marriage bans across the country in 2004. They did not even start in 1998 in Hawaii and Alaska. If we truly want to understand where same-sex marriage bans come from, we need to look back much further. Same-sex marriage was included in some of the most draconian anti-gay ballot measures of the early 1990’s. And the strategy behind most marriage bans—to proactively prevent GLBT rights before they happen rather than repealing existing laws—has been used by the religious Right since the late 70’s. To pass these proactive laws, the Right has developed a series of political messages over time that position gays and lesbians (and increasingly transgendered people) as outsiders attempting to invade and “take over” valued American institutions.
Most of the early anti-gay ballot measures were either referendums to repeal a recently passed law—as in the infamous Dade County, Florida, referendum of 1977—or in some cases an initiative in response to an existing law. Lacking protection at the federal level, the GLBT movement had pursued a strategy of trying to pass non-discrimination laws at the local or state level. However, it turned out these laws could easily be challenged by referendum in many cities and states. Thus, most ballot measures in the late 70’s and early 80’s were entirely reactive, as a newly constituted religious Right—small and disorganized by today’s standards—responded to a spate of local non-discrimination laws.
There were a few variations on these reactive ballot measures, even early on. During the first wave of referendums in 1978, religious Right activists in Seattle were stymied by their inability to use a referendum to repeal a local non-discrimination law that included sexual orientation, because too many years had gone by since the law was passed. Instead, they tried to pass a new law by initiative, which repealed the existing non-discrimination law and prohibited all future action on the part of Seattle city officials in granting rights based on sexual orientation. In a similar vein, after Austin city officials passed a fair housing law, right-wing activists in Austin launched an initiative in 1982 that declared “It shall not be unlawful to deny housing on the basis of sexual orientation.” Both ballot measures failed at the ballot box, and non-discrimination protections were upheld in both cities. Although these two ballot measures were primarily reacting to existing laws, there was something new and frighteningly innovative about both of them: they sought either to legalize discrimination or to prevent GLBT equality in the future. Scholar John Green refers to these kinds of ballot measures as “offense as defense” or “proactive opposition.”
For the religious Right, these proactive ballot measures were partly inspired by attempted anti-gay federal and state legislation in the 1980’s. Right-wing opposition to non-discrimination legislation and the repeal of sodomy laws decried the dangers of the “government promotion of homosexuality.” The unsuccessful Family Protection Act of 1981 would have allowed for school prayer and parental control over textbook content, along with prohibiting the promotion or support of homosexuality by the government. Attempts to pass the Family Protection Act on the statewide level may have inspired proactive anti-gay ballot measures. In the mid-1980’s in Washington state, representative Glenn Dobbs sponsored a bill that would have overturned state and local gay rights ordinances and prevented both the government and schools from hiring gays. In 1986, right-wing activists attempted both a statewide and a local initiative in King County, Washington. Both initiatives would have eliminated “special rights” for gays and lesbians while pre-empting any future gay rights laws. Neither initiative made it to the ballot box due to legal challenges and insufficient petition signatures. But they introduced new language about “special rights” that positioned lesbians and gays as outsiders trying to secure privileges reserved for “deserving minorities.” They argued that these “special rights” would go beyond the rights of “normal” citizens, which is a common way of framing opposition to civil rights. In one broad stroke, the religious Right was able both to build on conservative antagonism toward civil rights in general and to convince many liberals and minority voters that gay activists were trying to steal minority rights away from African Americans. This use of “special rights” arguments and proactive ballot measures continued into the 1990’s, buoyed by a tide of conservative activism centered around “family values.” The 90’s was a decade of especially dramatic and draconian innovation on the far Right. In 1991 alone, there were eight attempted proactive initiatives across the country. These ballot measures included unsuccessful attempts to require voter approval for lesbian and gay rights laws in Maine, California, and St. Paul, Minnesota; to prohibit the government from promoting homosexuality in the California cities of Irvine, Concord, and Riverside; and to bar gay and lesbians from being foster parents in Massachusetts. None of these initiatives made it to the ballot box due to problems collecting petitions or early legal challenges. However, this anti-gay organizing did eventually produce a series of proactive and divisive ballot measures. In Oregon, the Oregon Citizens Alliance (OCA), led by vocal activist Lon Mabon, sponsored initiatives in the cities of Corvallis and Springfield that eliminated existing non-discrimination laws and prevented future ones based on sexual orientation. These initiatives were test cases for the Oregon statewide initiative in November 1992 as Ballot Measure 9, which has been described by many activists as the most draconian anti-gay ballot measure ever. It was a broad, moralistic initiative that eliminated future and existing gay rights legislation across the state, equated homosexuality with sadomasochism and pedophilia, and prohibited the government from “promoting” homosexuality. Ballot Measure 9 required the firing of lesbian and gay teachers from public schools (along with anyone openly supportive of lesbian and gay rights) and the removal of all books approving of homosexuality from government-funded libraries. The campaign period before Ballot Measure 9’s defeat by voters was marred by a frightening escalation of hate crimes against GLBT Oregonians. In the same year, right-wing activists in Colorado sponsored their own statewide initiative when a group called Colorado for Family Values (CFV) sponsored Amendment 2, an initiative with legalistic language that eliminated future and existing gay rights laws in Colorado, along with banning affirmative action based on sexual orientation. CFV had originally been created to defeat a gay rights ordinance in conservative Colorado Springs. Amendment 2 distinguished between “true” minorities and gay people with legalistic language about “protected classes” and “minority status.” This language exploited garden variety homophobia along with hostility from racial minorities over gays’ supposed appropriation of the tactics of the civil rights movement. This argument was popularized by a widely distributed article by Tony Marco, mastermind of the Colorado initiative, who asked whether gays were “oppressed minorities or counterfeits.” The implication was that civil rights was a zero-sum equation in which gains for one group meant a loss of money and standing for another. Oregon’s Ballot Measure 9 was defeated at the ballot box, but Colorado’s Amendment 2 passed. Both outcomes had consequences for subsequent anti-gay strategies. Ballot Measure 9 was defeated so narrowly that OCA spawned a series of proactive initiatives in small towns across Oregon in order to boost support for the next statewide initiative in 1994, Ballot Measure 13. These initiatives became less moralistic and more legalistic, borrowing strategies from Colorado’s success. For example, the Ballot Measure 13’s language prohibited the government from “advising or teaching children, students, employees that homosexuality equates legally or socially with race” rather than invoking parallels between homosexuality and bestiality. Colorado’s Amendment 2 was overturned in the Supreme Court case Romer v. Evans in 1996. But before that happened, buoyed by their victory, CFV trained right-wing activists across the country and helped campaigns in Florida, Maine, and Ohio. Between 1993 and 1996, they launched proactive initiatives in thirteen states and thirty cities and towns. Less than half of these ended up on the ballot, and very few statewide initiatives came to fruition due to problems with constitutionality and signature-gathering. Of those that survived, few won at the ballot box, the exceptions being Cincinnati, Ohio, and a few small towns in Oregon. After the Supreme Court ruling in Romer v. Evans, the religious Right no longer attempted statewide initiatives modeled after Amendment 2. There was a wave of proactive “special rights” ballot measures in Michigan, all of which were defeated. And the OCA struck again in Oregon in 2000 with the sponsorship of an unsuccessful ballot measure that would have eliminated the promotion of homosexuality in public schools. These early proactive ballot measures were soon replaced by same-sex marriage bans. It was in this contentious period that same-sex marriage came onto the agenda for the first time. In 1993, the Hawaii Supreme Court case Baehr v. Lewin ruled in favor of legalizing same-sex marriage and attracted media attention across the country. The Right was quick to respond by challenging domestic partnership ordinances in a few cities with referendums and by including the prohibition of same-sex marriage in Oregon’s Ballot Measure 13 in 1994. A flyer put out by the OCA explained that “In Hawaii, the ‘gay-rights’ lobby forced the issue on the people of that state. … Now this powerful political movement is looking for another state to try for homosexual marriages. Ballot Measure 13 will settle this question in favor of traditional marriage.” Ballot Measure 13 did not succeed at the ballot box—one of the few times that a same-sex marriage ban was rejected by voters. By the late 1990’s, the far Right had shifted its strategy from attempting to prohibit any kind of government recognition of gay rights to a narrower strategy of prohibiting any future recognition of same-sex marriage. This shift was inspired by the growing recognition of same-sex relationships in court cases in Hawaii, Alaska, Vermont, and Massachusetts. It is significant that in 1996 the GLBT movement experienced both a record court case advocating for equal protection of lesbian and gay citizens, the Supreme Court Case Romer v. Evans, and the restriction of same-sex marriage by federal legislation in the Defense of Marriage Act (DOMA). Federal DOMA legislation was quickly adopted in states across the country, and some states like California adopted these laws through a ballot measure initiative. However, the first ballot measures that exclusively addressed same-sex marriage were not until 1998, when voters in Hawaii and Alaska faced ballot measures to counteract local court cases. Anti-gay campaigns in those states warned voters that the sanctity of marriage would be undermined, that “gay activists” were invading both states from the contiguous 48 states, and that children would be forced to learn about same-sex relationships in school. Hawaii and Alaska were an omen of things to come: same-sex marriage bans proliferated across the country in states that typically did not sponsor anti-gay ballot measures. The impetus for these initiatives was the legalization of civil unions in Vermont in 1999 and especially the legalization of same-sex marriage in Massachusetts landmark Goodridge v. Department of Public Health decision of 2003. One of the innovations of these marriage bans was their passage as constitutional amendments, as the Goodridge case pointed up that statutory DOMA legislation could be overturned by state courts. In many states, constitutional amendments have to pass both through the legislature and at the ballot box. Some of these bans were both constitutional amendments and so-called “super-DOMAs.” These originated in Nebraska in 2000. As California voters faced the Knight Initiative, a ballot measure to establish a statutory DOMA, Nebraska voters faced a draconian constitutional amendment that eliminated both the recognition of same-sex marriage and anything similar to marriage rights for same-sex couples, banning domestic partnerships and any recognition of same-sex relationships from out of state. In the 2004 election, twelve states voted to enact constitutional amendments and nine of these were super-DOMAs. (President George W. Bush’s campaign for a second term shamelessly exploited widespread panic arising from the Goodridge case.) Recently, these same-sex marriage bans have shifted from entirely proactive ballot measures to ballot measures reacting to legalized same-sex marriage in a given state. California’s Proposition 8 in 2008 and Maine’s Question One in 2009 are examples of attempts to overturn court rulings that legalized same-sex marriage. These reactive efforts join earlier proactive initiatives aimed at precluding same-sex marriage before it could be considered, and these measures have been overwhelmingly successful at the ballot box on the statewide level. Although recent polls point to increasing support for same-sex marriage, on average two-thirds of voters have elected to ban same-sex marriage at the ballot box. The most dramatic passage of marriage bans have been in Southern states like Mississippi (86 percent), Alabama (81 percent), Tennessee (81 percent), and Louisiana (78 percent). On the flip side, Arizona voters are the only ones to reject a same-sex marriage ban, although it was passed on a second try, and domestic partnership rights have been more widely supported by voters there. Other “near victories” include California (52 percent), South Dakota (52 percent), and Maine (53 percent), where voters narrowly passed marriage bans. Although the U.S. Supreme Court may yet reverse the situation, same-sex marriage bans have been upheld at the state court level. These two types of proactive ballot measures have much more in common. First and foremost, they are instigated by the religious Right, often occurring in areas that do not have same-sex marriage or even GLBT rights on the political agenda of the local movement. Unlike referendums, which are a response to GLBT movement advances and often have an existing political group to fight the ballot measure, proactive initiatives require the movement to mobilize in areas where there may or may not be an existing GLBT political group. In some of the states that faced a same-sex marriage ban, there was no existing statewide GLBT organization and few local ones, making organization of a large scale campaign difficult. Second, both types of ballot measures enact the most draconian anti-gay legislation. They often change the constitution to circumvent legal challenges. They raise anti-gay sentiment to a fever pitch throughout the election season. And they position gays and lesbians as outsiders attempting to dismantle traditional American institutions. Amy L. Stone, assistant professor of sociology at Trinity University in San Antonio, is the author of Gay Rights at the Ballot Box
