JURIST Guest Columnist Lynne Marie Kohm of Regent University School of Law says that the November 2012 elections will involve historic referendums in several states on legislation related to same-sex marriage…

The legislative and democratic events surrounding marriage have been anything but uneventful over the past year, and promise to be all the more interesting through the November elections. Among the states active in marriage legislation, North Carolina has been at the helm, with the state approving a marriage amendment in May 2012. Legal academics from Duke to Campbell [PDF] have been discussing the results of the referendum. Despite the great political pressure surrounding the vote, the people of North Carolina voted to protect and ensure the definition of marriage in their state constitution. Effective immediately, North Carolina joins the 31 other states [PDF] in the US that have made a similar constitutional resolution. That edict is not without question, as a recently filed lawsuit challenging the state’s adoption regulations could also implicate the amendment.

Looking ahead to November 2012, other states will vote on constitutional guarantees for marriage, namely Minnesota, Maine, Washington and Maryland — all in the wake of US President Barack Obama’s open endorsement of same-sex marriage. Minnesotans will head to the ballot box in November to vote on a referendum that will protect marriage from expansion to same-sex unions. Maine will also vote on marriage in the 2012 ballots — again — but differently than in the past. In 2009 Mainers voted to defeat marriage expansion despite that state’s legislative move toward same-sex marriage. As one local news publication reported, “[a]fter the Legislature approved gay marriage three years ago, opponents forced the question before voters, who overturned the law 53 percent to 47 percent.” The upcoming vote in Maine will be the first of its kind. Not because it is a rerun of the previous 2009 ballot, but because it is the first democratic test of same-sex unions anywhere in the country — one driven by the people and put to a popular vote.

Washington voters will cast their ballots on a same-sex marriage measure in November similar to, but distinct from, the Maine initiative. This referendum is driven by the state legislature and the vote is framed to endorse the same-sex marriage law approved by legislators earlier this year. If passed, the referendum would effectively expand marriage to include homosexual couples.

Maryland is also set to vote on same-sex marriage in November due to an interesting legislative strategy to expand marriage to include same-sex couples despite legislative and grassroots opposition. In March, Maryland became the eighth state to approve marriage expansion by passing the Civil Marriage Protection Act. Rather than becoming effective immediately, the bill was amended so that it would not take effect until 2013, allowing for a possible voter referendum in November. Recent grassroots efforts will likely force the referendum. Among the major political groups pitted on each side of these referendums are the privately funded Washington, DC-based National Organization for Marriage, which was involved in ballot measures that overturned same-sex marriage in California and Maine, and Marriage Equality, part of the federally funded Human Rights Campaign, which is “the largest civil rights organization working to achieve equality for lesbian, gay, bisexual and transgender Americans,” according to its website.

What is happening in Maine and Washington is being analyzed by activists in other states wishing to expand marriage. For example, Oregon is one of 32 states that have already democratically integrated a state constitutional marriage amendment. However, that has not kept innovators from considering how to amend the state’s constitution again. A strategy to overturn Oregon’s marriage amendment would follow an ambitious two-pronged approach that first requires a state-wide vote to remove the current constitutional amendment, and then a national initiative to have Congress or federal courts act to overturn the Defense of Marriage Act (DOMA).

During the 2012 election season, scholars and political pundits will be interested to observe whether legislatures can lead their constituents to extend marriage to same-sex couples. Prior to this year, all referendum votes have been democratically endorsing marriage without expansion by fairly wide margins [PDF]. The upcoming November 2012 elections regarding marriage will be the feature attraction, second only to the vote for the presidency. The last presidential determination electing Obama suggested a connection between Californians who voted for his candidacy and those in favor of marriage and Proposition 8 [PDF]. Without counting the California vote, Americans have been a part of 32 decisions in 32 state referendums that have affirmed marriage without expansion. The 2012 democratic process promises to be exceptionally interesting.

Professor Lynne Marie Kohm is the John Brown McCarty Professor of Family Law at Regent University School of Law. She was honored with the Chancellor’s Award for Faculty Excellence as the Regent University Professor of the year in 2005 for her work in defending marriage, equality issues in estate planning, training lawyers in family restoration and mentoring women law students.

Suggested citation: Lynne Kohm, Marriage and Grassroots Democracy in 2012, JURIST – Forum, June 26, 2012, http://jurist.org/forum/2012/06/lynne-kohm-marriage-referendum.php.