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Same-Sex Marriage: 85,600,000 and Growing

by Professor Will Huhn on February 24, 2012

in Constitutional Law,Equal Protection,Freedom of Speech,Wilson Huhn

More than one-fourth of Americans now live in jurisdictions that recognize same-sex marriage.  Within five years more than half of Americans may live in such jurisdictions.  But there are legal barriers.

Today's Kansas City Star has an article by Curtis Tate, Gay Marriage Question Evolves One State at a Time, in which he reviews the recent progress of the marriage equality movement and observes that this social issue is being decided one state at a time:

Increasingly, courts and state legislatures have decided that same-sex couples shouldn't be treated differently from opposite-sex couples. It's an incremental process, playing out state by state, reflecting the feelings of a changing but still divided public.

Tate concludes his article with observations that public opinion is slowly shifting in favor of same-sex marriage:

According to a Pew Research Center poll in November, 46 percent of Americans supported same-sex marriage, while 44 percent opposed it. That's a dramatic shift from 2006, when the same poll showed that 33 percent supported it, while 56 percent opposed it. Among people from ages 18 to 30, 59 percent supported it last year.  "Public opinion is moving pretty quickly," said Jane Schacter, a law professor at Stanford University and an expert on sexual-orientation law. "The long-term outcome is pretty clear. The question is how long does it take."

Currently, over 85 million Americans live in states where gay and lesbian couples are allowed to marry.  How long will it take before the rest of the country follows suit?

Nate Silver, the noted predictive analyst for the New York Times, tracks the level of acceptance in the United States.  In April, 2011, he found that support for same-sex marriage had increased 8% in two years, or 4% per year, more than double the historical average.  In 2010 Hank Pellissier, writing for the Institute for Ethics and Emerging Technologies, created a model of state-by-state changes that assumed a slower rate of acceptance – 1% per year.  Using this model Pellissier predicted that New Jersey would adopt same-sex marriage in 2011, Washington in 2012, and Maryland in 2013.  I have based the following figures on Pellissier's predictions.

Counting California, at the moment more than 85 million Americans live in nine states and the District of Columbia that recognize same-sex marriage.  According to Pellissier, between 2012 and 2014 another ten states with a population of more than 45 million people will join this group.  In the next two years, according to Pellissier, five more states with a population of 44 million people will embrace marriage equality.  At that point, 175 million Americans – 56% of the country – will live in places where gay and lesbian couples can marry.

However, there is a legal roadblock that may slow this development.  Eight of the states (indicated by an asterisk* below) slated to enact same-sex marriage by 2016 have provisions in their state constitutions prohibiting this.  In order for same-sex marriage laws to be adopted in these states one of three  things would have to happen.  (1) The people of the state would have to amend their constitution; (2) A court would have to rule that under Romer v. Evans it violates the First and Fourteenth Amendments of the United States Constitution for a state constitution to prevent a state legislature from adopting a law opening up marriage to gays and lesbians; or (3) A court would have to rule that the United States Constitution guarantees gay and lesbian couples the right to marry regardless of any state law.

As more jurisdictions recognize these marriages as valid, political and economic factors will increasingly come into play.  When a married same-sex couple moves to a state that does not recognize their marriage as valid, the state that performed the marriage is going to be irritated at the state of their new residence.  There could be negotiation or retaliation between the states.  More seriously, if DOMA is found to be unconstitutional (as two district courts have now ruled), federal employees who are moved from state-to-state will be have their marriages recognized, not recognized, and perhaps recognized again depending on where they live.  People aren't going to like that.  Most significant of all, members of the military have the right to declare their domocile to be anywhere in the United States; they will be living as married couples in states that otherwise do not recognize their marriages.  These and other factors may well lead to a "tipping point" that will accelerate the process of change in the remaining states.

Here are the statistics regarding the population of the states that currently recognize same-sex marriage, and of those that may be next in line.

States That Currently Recognize Same-Sex Marriage

California                   37,700,000

Connecticut                 3,600,000

Iowa                              3,100,000

Maryland                      5,800,000

Massachusetts             6,600,000

New York                     19,500,000

New Hampshire            1,300,000

Vermont                           600,000

Washington                  6,800,000

Washington, D.C.            600,000

Total now                    85,600,000 (27%)

States Predicted to Recognize Same-Sex Marriage 2012-2014

Colorado*                     4,800,000

Delaware                          900,000

Maine                             1,100,000

Michigan*                      9,900,000

New Jersey                    8,800,000

Oregon                           3,900,000

Rhode Island                  1,100,000

South Dakota*                   800,000

Virginia*                          8,100,000

Wisconsin*                      5,700,000

Total 2012-2014            45,100,000

Total by 2014               130,700,000 (42%)

States Predicted to Recognize Same-Sex Marriage 2015-2016

Arizona*                           6,500,000

Alaska *                                700,000

Illinois                              12,900,000

Ohio*                                11,500,000

Pennsylvania                    12,700,000

Total 2015-2016             44,300,000

Total by 2016                 175,000,000 (56%)

Total U.S.                        311,600,000

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