October 21, 2008
Ever since California county clerks began issuing marriage licenses to same-sex couples last June, Proposition 8 — the proposed constitutional amendment to eliminate marriage equality — has appeared likely to lose at the ballot box. Throughout the summer, statewide surveys from the Field Poll and the Public Policy Institute of California (PPIC) consistently found that the measure lacked majority support. In fact, it was opposed by more than 50% of likely voters.
But earlier this month, a new poll of Californians’ voting intentions on Proposition 8 was released, sponsored by several CBS local affiliates and conducted by SurveyUSA. Here’s a section of the news report on the poll findings:
According to the poll, likely California voters overall now favor passage of Proposition 8 by a five-point margin, 47 percent to 42 percent. Ironically, a CBS 5 poll eleven days prior found a five-point margin in favor of the measure’s opponents.
The only demographic group to significantly change their views during this period were younger voters — considered the hardest to poll and the most unpredictable voters — who now support the measure after previously opposing it.
Last week, the same survey organization released new data showing that the ballot race is a statistical dead heat, with 48% supporting Prop. 8 and 45% opposing it (the margin of error is +/- 4 points).
In combination, these polls indicated a surprising shift in California opinion, and they received a lot of media attention. The No On 8 campaign publicized them to warn Californians that Proposition 8 has a serious chance of passage and to galvanize marriage equality supporters to donate to the campaign. Many couples moved up their wedding date in order to have their marriage officially recorded before the election, banking on Attorney General Brown’s opinion that Proposition 8, if passed, won’t apply retroactively.
A Closer Look At Those Data
I certainly agree that the race will probably tighten as November 4 approaches. A September Field poll revealed that voters who haven’t previously thought much about Proposition 8 can be swayed by the measure’s wording on the ballot. And the multi-million dollar media campaign that is now being waged is likely to have already influenced some voters. Thus, in the next two weeks, undecided voters will make their choice, and some “soft” supporters and opponents of the measure will change their minds.
So marriage equality supporters can’t afford to be complacent. Nevertheless, I’d like to register my skepticism about the recent polling data.
The polls showing Prop. 8 winning or tied were conducted by SurveyUSA, a New York firm that specializes in automated surveys. These are surveys that don’t use a human interviewer. Instead, when someone answers the phone, they hear a prerecorded voice (perhaps a local newscaster) asking them to use the telephone keypad to register their answers to a few questions.
According to its website, SurveyUSA:
is the first research company to appreciate that opinion research can be made more affordable, more consistent and in some ways more accurate by eliminating the single largest cost of conducting research, and a possible source of bias: the human interviewer.
The company claims that its polls are superior to others because they eliminate the variability in quality that results from having human interviewers.
A point not mentioned on their website is that many people have a tendency to hang up when they answer the phone and hear a recorded voice. Another problem is that, because no human interviewers confirm a respondent’s eligibility, anyone who answers the telephone — a child or teenager, a babysitter, an out of town guest — can complete the survey. These factors might affect the accuracy of SurveyUSA data.
On the other hand, survey participants are sometimes more willing to reveal potentially sensitive or embarrassing information about themselves to a computer than to a human interviewer. A 2006 study, for example, found that adults were more likely to acknowledge having had sex with a person of their same sex when the interview was conducted via computer rather than with a live interviewer. But it’s not clear that a significant number of Californians are reluctant to say whether they support or oppose Prop. 8. And, unlike SurveyUSA polls, the 2006 survey was first introduced and explained to respondents by a live interviewer.
To repeat a recurring theme of this blog, any poll is merely a snapshot of public opinion at one moment in time. Because opinion can shift and polls vary in their accuracy, it’s important to evaluate a survey’s findings in comparison to other polls that addressed the same topic.
So here are the SurveyUSA findings:
June 9: 44% support, 38% oppose (18% undecided)
September 25: 44% support, 49% oppose (7% undecided)
October 6: 47% support, 42% oppose (10% undecided)
October 17: 48% support, 45% oppose (7% undecided)
For comparison purposes, here are the results from the Field and PPIC polls:
May 28 (Field): 42% support, 51% oppose (6% undecided)
July 18 (Field): 42% support, 51% oppose (7% undecided)
August 27 (PPIC): 40% support, 54% oppose (6% undecided)
September 18 (Field): 38% support, 55% oppose (7% undecided)
September 24 (PPIC): 41% support, 55% oppose (6% undecided)
All of the polls show support for Proposition 8 hovering in the low-to-mid 40s, except the most recent SurveyUSA data, which have it gaining - but still not at 50%.
Where they disagree the most is in their estimates of the proportion of Californians who oppose Prop. 8. The Field and PPIC polls put opponents in the majority. Survey USA has them ranging between 38% and 49%.
Election polls can differ for many reasons, including how questions were worded, when the poll was fielded, and how the survey organization defined what constitutes a “likely voter.” Activists and pundits have assumed that the dramatic differences between the SurveyUSA polls and the PPIC and Field polls reflect a real shift in public opinion. They attribute that shift to the Yes On 8 media campaign — which has included images of San Francisco Mayor Gavin Newsom gleefully proclaiming that marriage equality is here “whether you like it or not,” as well as inaccurate claims that failing to pass Proposition 8 will lead to the harassment of churches and pro-gay indoctrination of children.
Those ads may indeed have affected undecided voters and Californians whose opposition to Prop. 8 wasn’t strong. But my guess is that the big difference between SurveyUSA and the Field and PPIC polls lies in the quality of their samples.
The Field and PPIC polls are conducted over a longer time period. This usually results in better data because more people in the original sample are reached than is possible when a poll is in the field for only one or two days. When Field and PPIC researchers don’t reach a respondent on their first attempt, they phone back at least five times.
With overnight and 2-day polls, by contrast, anyone who isn’t home on the first or second try is simply dropped from the sample. This creates an accuracy problem if those people differ from the poll respondents in a way that is relevant to the survey question — in the case of Prop. 8, for example, if they are younger or more liberal than the people who happened to be home when the phone rang. Pollsters try to account for the missing respondents by mathematically weighting the data, but this always involves guesswork.
A second strength of the Field Poll sample is that it’s drawn from official voter registration lists, and respondents are contacted through the address and phone number they provided when they registered. So the Field Poll sample includes registered voters who rely mainly or exclusively on a cell phone. By contrast, the SurveyUSA and PPIC samples were selected through random-digit dialing (RDD), a method widely used in telephone surveys. Individuals without a land line are almost always excluded from RDD samples.
Are cell phone users different from other voters in a way that is relevant to Prop. 8? Maybe. Data from the Pew Research Center suggest that samples based exclusively on land-line calling probably underestimate support for Barack Obama by about 2 percentage points because Obama has a disproportionate amount of youth support, and many young voters rely exclusively on cell phones.
More to the point, Pew researcher Scott Keeter and his colleagues used data from a national survey that included cell-phone users to compare the opinions of adults under 30 on a range of topics. They found that only 37% of young adults in land-line households supported marriage equality, compared to 51% of those who relied on cell phones.
Keeter also found that Pew statisticians were able to effectively compensate for this discrepancy by applying statistical weights to the data from land-line surveys.
We don’t know if SurveyUSA weighting procedures are comparable.
Relevant to this point, the recent SurveyUSA polls have found that voters under 35 either strongly support Proposition 8 (by a margin of 53% to 39% in the October 6 poll) or are closely divided (44% Yes to 46% No in the October 17 poll). By contrast, most polls in California and elsewhere have found that young adults generally favor marriage equality. In my mind, this raises some doubts about the accuracy of the SurveyUSA data.
My own guess is that the Field Poll, by virtue of its sample drawn from the voter registration rolls, probably describes current opinion among California voters more accurately than the SurveyUSA data. The fact that the PPIC poll data have closely tracked the Field Poll results over the summer further boosts my confidence in both surveys. I suspect that the SurveyUSA data are more or less accurately stating the number of likely voters who support Prop. 8, but are undercounting the number who oppose it.
But this is only an educated guess. We’ll have a better sense of current California opinion on the ballot measure when the next round of PPIC and Field Poll results are released, which is likely to be soon.
Meanwhile, even if the SurveyUSA results have important limitations, they highlight two key facts.
First, many Californians are still making up their minds about Prop. 8 and can be swayed during the next two weeks by conversations with their friends and family, endorsements by public figures whom they respect, and media campaigns. This means it’s important for marriage equality supporters to continue to donate to the No On 8 campaign, to declare their opposition to Prop. 8 in public forums, and to personally explain their views about the measure to their friends and family.
Second, voter turnout will be critical. Regardless of whether most Californians support or oppose Proposition 8 today, what truly matters is who votes — whether by absentee ballot, in early voting, or at their polling place on November 4th.
Thus, equality supporters should make sure that their friends, family, roommates, classmates, coworkers, and neighbors vote.
* * * * *
For more information about surveys and cell phones, see the article by Scott Keeter et al., “What’s Missing from National Landline RDD Surveys?: The Impact of the Growing Cell-Only Population,” in Public Opinion Quarterly, 2007, vol. 71(#5), pp. 772-792.
September 18, 2008
In previous posts, I’ve discussed research showing that some survey respondents are more reluctant to forbid or ban something than to simply “not allow” it. And I’ve discussed how this pattern might be relevant to Proposition 8, the California ballot initiative that would amend the state constitution to bar same-sex couples from marrying.
Briefly stated, past studies suggest that at least some voters might be influenced by how the ballot measure is worded — somewhat less likely to support a proposition framed as banning marriage equality, somewhat more likely to support one that is framed as simply defining marriage as the union of a man and a woman.
Opponents of marriage equality apparently understand the importance of wording, and they’ve gone to court about it.
Originally, the official ballot summary was set to use language developed by Proposition 8 backers, which titled it “Limit On Marriage” and characterized it as amending the California Constitution “to provide that only marriage between a man and a woman is valid or recognized in California.”
After the Supreme Court’s historic May ruling on marriage equality, however, Attorney General Jerry Brown changed the title to “Eliminates the Right of Same-Sex Couples to Marry.”
Proposition 8 supporters challenged Brown’s revised wording, but last month a California Superior Court judge gave the go-ahead for it to appear on the ballot.
The New Field Poll
Now an experiment embedded in a new Field Poll has shown that the wording does have an impact, mainly on voters who aren’t already knowledgeable about Proposition 8.
The latest poll was conducted with a statewide sample of 830 likely voters drawn from the voter registration rolls. Roughly half of the respondents — selected at random — were read the official ballot description of Proposition 8:
Proposition 8 is the initiative to Eliminate the Right of Same-Sex Couples to Marry constitutional amendment. It changes the California Constitution to eliminate the right of same-sex couples to marry and provides that only marriage between a man and a woman is valid or recognized in California. Fiscal impact: Potential revenue loss, mainly to sales taxes, totaling several tens of millions of dollars to state and local government over the next few years. If the election were being held today, would you vote YES or NO on Proposition 8?
The other half were read the original description:
“Proposition 8 is the Limit on Marriage constitutional amendment. It amends the California constitution to provide that only marriage between a man and a woman is valid or recognized in California. Fiscal impact: Potential revenue loss mainly to sales taxes, totaling several tens of millions of dollars to state and local government over the next few years. If the election were being held today, would you vote YES or NO on Proposition 8?”
In the sample as a whole, the different ways of framing the amendment showed only a minor impact — 55% opposed Proposition 8 when it was framed as eliminating marriage rights, compared to 52% who opposed it when it was framed as merely placing a limit on marriage. Regardless of the wording, 38% of likely voters said they would support Proposition 8.
This overall pattern, however, masks the wording’s big impact on a particular group — the 30% of likely voters who reported they hadn’t previously heard about Proposition 8. Only a plurality of these respondents opposed the measure when it was described as a limit on marriage — 42% versus 37% who supported it. But when the ballot measure was framed as eliminating marriage rights for same-sex couples, a whopping 58% opposed it while only 30% supported it.
The different versions also affected the level of uncertainty among those who otherwise weren’t aware of Prop. 8. In this group, 21% of those who were read the “limit on marriage” description said they were undecided, compared to only 12% of those who were read the actual ballot version.
Increased Opposition Among Key Groups
The new survey also reveals increased opposition to Prop. 8 among some key demographic groups, compared to the mid-July poll. Opposition has increased among Democrats from 63% to 75%, and among men from 49% to 54%.
Notably, despite Proposition 8’s endorsement by California’s Catholic bishops, the latest poll finds that Catholic voters are substantially more likely to oppose it than in the past (55% oppose it now, compared to 45% in July).
And even in the state’s inland counties, support for Prop. 8 has shrunk considerably. In July, inland voters favored it by a margin of 54% to 40%. Now it’s a statistical dead heat: 48% oppose it, 44% support it.
Despite the good news for marriage equality supporters, the latest poll data shouldn’t lead them to be complacent. California voters oppose Proposition 8 now, but what will count is the actual vote on November 4. The amendment can still pass if its supporters turn out their voters in disproportionate numbers.
Thus, the success of each side’s get-out-the-vote effort could be the key to whether or not marriage equality survives in California.
* * * * *
The report on the latest Field Poll is available on their website.
August 28, 2008
Supporters of marriage equality got some good news last night when the results of the latest statewide poll by the nonpartisan Public Policy Institute of California were released.
The telephone survey of 2,001 California adults, including 1,047 likely voters, reveals that Proposition 8 — the proposed constitutional amendment to bar same-sex couples from marrying — is losing badly. Among likely voters, only 40% plan to vote for the amendment, compared to 54% who say they will vote against it. The remaining 6% are undecided. (The margin of error is +/- 3 percent.)
The PPIC data are identical to those obtained in a May Field Poll, which found the same 54-40% split in response to the question, “Do you favor or oppose changing the California State Constitution to define marriage as between a man and a woman, thus barring marriage between gay and lesbian couples?” (In the same Field Poll, a differently-worded question also elicited majority opposition to a constitutional amendment, 51-43%.)
In the new survey, PPIC interviewers essentially read the ballot description to each respondent before asking their voting intentions:
“Proposition 8 is called the ‘Eliminates Right of Same-Sex Couples to Marry Initiative Constitutional Amendment.’ It changes the California Constitution to eliminate the right of same-sex couples to marry. It provides that only marriage between a man and a woman is valid or recognized in California. Fiscal impact over the next few years includes potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, it will likely have little fiscal impact on state and local governments. If the election were held today, would you vote yes or no on Proposition 8?
Thus, the new poll gave respondents the same information they’ll receive when they cast their ballot.
Who Supports and Opposes Proposition 8?
The PPIC hasn’t yet released detailed breakdowns of responses to the Prop. 8 question, which was part of a lengthy survey about candidates and issues related to the November election. However, their press release and report highlighted some key patterns:
- Consistent with previous polls, geography and political ideology are important predictors of support for Prop. 8. Among likely voters, the amendment is favored by Republicans (60%) and those who reside in the state’s Central Valley (51%). But it’s opposed by 66% of Democrats, 59% of independents, 65% of San Francisco Bay Area residents, and 54% of Los Angeles residents.
- Among likely voters, women strongly oppose Prop. 8 (58% would vote no, 35% yes), while men are more closely divided (49% no, 45% yes).
- Married likely voters are less likely than the never-married to oppose Prop. 8 (51% vs. 66%).
- Prop. 8 is opposed by similar proportions of Latino (54%) and non-Hispanic White (55%) likely voters.
Another interesting finding is that opposition to Prop. 8 doesn’t come exclusively from those who say they generally favor allowing gay and lesbian couples to legally marry. The sample was evenly split on that question — 47% of likely voters favoring marriage equality and 47% opposing it. Thus, consistent with other polls, some respondents who don’t personally support marriage equality nevertheless oppose enacting anti-equality legislation. Indeed, Prop. 8 is supported by only 69% of the likely voters who generally oppose allowing same-sex couples to marry.
Proposition 8 Backers Rationalize The Results
Marriage equality opponents blamed the results on Prop. 8’s official title and summary description, which explicitly frames it as eliminating marriage rights for same-sex couples. As I explained in a previous post, survey research over the years has shown that wording can make a difference. Although “not allowing” something would appear to be equivalent to “forbidding” it, people are generally more reluctant to forbid than to not allow.
Indeed, a July Field Poll that described the ballot measure with the language favored by its supporters (the survey question said Prop. 8 would “provide that only marriage between a man and a woman is valid or recognized in California”) registered slightly less opposition. However, likely voters still rejected it by a margin of 51% to 42%.
Prop. 8 backers tried to find a ray of hope in the PPIC data, noting that amendment supporters were more likely to say the outcome of the vote is “very important” to them — 57% versus 44% of amendment opponents.
Unfortunately for them, the math in this argument is flawed because it doesn’t take into account the fact that there are fewer Prop. 8 supporters than opponents. 57% of the 40% who would vote YES = 23% of respondents saying they support Prop. 8 and the vote is “very important” to them. But 44% of the 54% who would vote NO = 24% of likely voters saying they oppose the amendment and it’s very important.
In other words, about the same number on each side of the issue feel strongly about the initiative. And if we include respondents who said the vote is “somewhat important,” 40% of the sample oppose Prop. 8 and consider the vote important, compared to only 34% who support the initiative and feel it’s important.
Conclusion: Cautious Optimism For Equality Supporters
Not only do the data indicate that Prop. 8 is losing — conventional wisdom holds that ballot measures should have more than 50% support at this stage of the campaign if they’re going to pass — but they may contribute to a widespread expectation that the initiative will go down in flames. Such a perception could affect fundraising (donors often don’t want to throw money at a lost cause) and might create a bandwagon effect (undecided voters may opt to go with the side they believe will win).
Nevertheless, it would be a big mistake for Prop. 8 opponents to be overconfident. The election will be decided by the Californians who actually vote, and Prop. 8 backers are busy mobilizing their base, especially in church congregations. And it’s always possible that events during the next 10 weeks will affect voters’ perceptions in a way that favors Prop. 8.
Noting those caveats, however, the PPIC data are certainly cause for optimism among marriage equality supporters.
* * * * *
The report on the latest PPIC statewide poll is available on their website.
July 18, 2008
The first California statewide poll to directly measure public opinion about Proposition 8 — the so-called California Marriage Protection (CaMP) Act, a proposed constitutional amendment that would ban marriage equality — suggests the ballot measure is in serious trouble.
As reported at ProtectMarriageEquality.com, a Field Poll commissioned by Oakland’s KTVU-TV found that the marriage ban is supported by only 42% of Californians, while 51% oppose it. The remaining 7% are undecided.
Consistent with previous polls by the LA Times and the Field Research Corporation, the new survey found that support for the amendment is strongest in California’s politically conservative Central Valley, where it is favored by 54%. By contrast, coastal residents — who constitute 69% of the population of likely voters — oppose it by a margin of 56% to 37%. The percentages against Prop. 8 were 67% in the San Francisco Bay Area and 51% in Los Angeles County.
Republicans overwhelmingly support the amendment by a margin of 68% to 27%, while Democrats oppose it 63% to 30%. Notably, Independents oppose it 66% to 27%.
Proposition 8 is opposed by a majority of women (54%, versus 40% who support it) and a plurality of men (49% to 45%).
The only ethnic group tending to support the amendment is Latinos, who favor it by a 49% to 38% plurality. However, 13% of Latinos are still undecided. Non-Hispanic Whites, African Americans, and Asian-Americans all oppose Proposition 8.
The amendment is supported by a plurality of Californians who say they don’t personally know anyone who is gay or lesbian. However, that group constitutes only one fourth of the respondents. Those who know or work with a gay or lesbian person oppose the amendment 54% to 40%.
Good News for Equality Supporters
The poll numbers offer a double dose of hope for supporters of marriage equality. Not only do the data indicate that the ballot proposition is currently losing outright, they also suggest that its prospects for gaining support during the coming months may be dim.
In a previous post about an earlier LA Times poll (which was conducted before marriages of same-sex couples actually began in California and which found slight majority support for a hypothetical ballot measure), I quoted the Times‘ observation that:
“…[B]allot measures on controversial topics often lose support during the course of a campaign” and, for this reason, “strategists typically want to start out well above the 50% support level.” According to Susan Pinkus, the Times Poll Director, “Although the amendment to reinstate the ban on same-sex marriage is winning by a small majority, this may not bode well for the measure.”
Thus, the measure’s lack of majority support now — less than 4 months before the election — indicates that the Christian conservatives who propose to write marriage inequality into the California constitution have their work cut out for them.
Reasons for Caution
Although the poll results are good news for equality supporters, it would be a mistake to take victory in November for granted for at least three reasons.
First, we’ll need data from more surveys with comparable samples to be sure that the Field Poll results accurately describe California opinion at this time.
Second, although it is indeed a hopeful sign that the amendment lacks majority support at this point in the campaign, many things can happen between now and the November election that might shift voters’ opinions.
Third, past experience indicates that polls may understate the true opposition to marriage equality among the California electorate. In 2000, the final Field Poll before the election indicated that 53% of likely voters supported Proposition 22, the anti-equality Knight Initiative that the California Supreme Court recently ruled unconstitutional. On election day, 61% voted for it.
Thus, the new poll should invigorate supporters of marriage equality in California. But it shouldn’t make them complacent.
* * * * *
The KTVU/Field Poll data were obtained through telephone interviews conducted in English and Spanish with a random sample of 672 California likely voters from July 8-14. The margin of error for the question about Proposition 8 is 3.9 percentage points.
Poll respondents were asked the following question: “Proposition 8 is the ‘Limit on Marriage Constitutional Amendment.’ It amends the California constitution to provide that only marriage between a man and a woman is valid or recognized in California. If the election were being held today, would you vote YES or NO on Proposition 8, the Limit on Marriage Constitutional Amendment?”
The full report is available at the Field Poll website.
Note: This entry has been updated to include additional details about the survey that were released subsequent to its initial posting.
June 26, 2008
On June 26, 2003, the US Supreme Court issued its opinion in the Lawrence v. Texas case, ruling that state laws restricting adults’ rights to engage in private, consenting sexual behavior are unconstitutional.
Today, on the fifth anniversary of that historic decision, it seems appropriate to recall the events leading up to it and to consider what has happened since.
Consistent with this blog’s focus, I’ll emphasize the social science research data relevant to the case as presented to the Court in an amicus brief filed by the American Psychological Association (APA) and other professional organizations. I had the privilege of helping to write the APA’s briefs for Lawrence and the other cases mentioned below, all of which sought to inform the Court about current scientific knowledge related to homosexuality and sexual orientation.
Bowers v. Hardwick
Before discussing Lawrence, it’s important to recall the Court’s decision 17 years earlier in Bowers v. Hardwick.
Michael Hardwick was arrested in his Atlanta home after a police officer (who had been admitted to the home by a houseguest) peered through Hardwick’s partially open bedroom door and saw him engaging in oral sex with a male companion. Georgia had a sodomy law that, like the laws in many other states at the time, criminalized oral and anal sex between same-sex and different-sex partners alike.
With assistance from the American Civil Liberties Union, Hardwick brought a suit against the state Attorney General, Michael Bowers, challenging the law’s constitutionality. The case reached the US Supreme Court in its 1985–1986 term, and the APA filed an amicus brief jointly with the American Public Health Association.
That brief detailed the current state of scientific thinking and empirical research about homosexuality, explaining that the sexual conduct made illegal by the Georgia statute was common in both heterosexual and homosexual relationships, and was neither pathological nor harmful to the individual. Rather, the brief argued, such behaviors play a key role in maintaining intimate relationships, which in turn are important for the psychological well-being of heterosexual and homosexual individuals alike. The brief also explained that homosexuality is not a psychological disorder and it rebutted arguments by the Georgia Attorney General that the statute was an effective deterrent to the spread of AIDS.
By a 5–4 majority, the Court upheld the Georgia statute, declaring that states can legally regulate the private sexual behavior of consenting adults. This outcome was made all the more disappointing by later revelations that Justice Powell had initially sided with the justices who wanted to overturn the statute but then changed his vote. Justice Powell commented that he had never personally known any gay people. Ironically, several of his law clerks over the years had been gay but, out of concern for their careers, none had disclosed that fact to Justice Powell.
Three aspects of the majority opinion by Justice White and the concurring opinion by Chief Justice Burger are especially noteworthy.
- First, the opinions framed the legal question very narrowly and addressed only homosexual conduct even though the Georgia statute made both heterosexual and homosexual sodomy illegal. As Justice White put it, “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time” (p. 190).
- Second, both opinions found justification for their legal reasoning in religious and moral traditions. Justice White wrote that proscriptions against homosexual conduct “have ancient roots” (p. 194). Chief Justice Burger asserted that “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching” (p. 197).
- Third, the opinions constructed same-sex sexuality as something very different from heterosexuality, declaring that it has no relationship to families. Justice White wrote, “No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent” (p. 191). Elaborating further on this theme, he equated homosexual behavior with incest and heterosexual adultery, predicting that if the court were to decide that the Constitution protects the right to “voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home” (p. 194).
The Bowers decision was a great blow to proponents of equality for sexual minorities. However, an opportunity to challenge it came surprisingly soon.
Lawrence v. Texas
In 1998, John Lawrence and Tyron Garner were arrested in Texas for having consensual sex in Lawrence’s bedroom. The Texas sodomy law was similar to Georgia’s in that it criminalized oral and anal sex. Unlike the Georgia statute, however, the Texas law applied only to conduct between people of the same sex. In a lengthy series of appeals, the lower courts refused to overturn the law, citing Bowers v. Hardwick as precedent. Lawrence and Garner finally appealed to the US Supreme Court, which heard the case in the spring of 2003.
For several reasons, legal experts believed it might be possible to overturn Bowers v. Hardwick at this time. Many states had eliminated their sodomy laws, either through the legislative process or because courts had found them to be in violation of the state constitution. Gay people had become much more openly integrated into American life, and public opinion surveys revealed widespread opposition to antigay discrimination. The membership of the Supreme Court had also changed since 1986, and the Court’s 1996 Romer v. Evans ruling suggested it was more receptive to gay issues than in the past. In addition, many legal scholars regarded the Bowers v. Hardwick opinion as not well reasoned and considered it an embarrassment to the Court.
The APA — joined by the American Psychiatric Association and the National Association of Social Workers — filed an amicus brief, one of more than two dozen such briefs submitted in the Lawrence case. As in Bowers v. Hardwick, the APA brief summarized the current state of scientific knowledge relevant to the case, citing an extensive list of empirical studies and literature reviews in support of its conclusions.
Although some aspects of the Lawrence brief were very similar to the earlier Bowers brief, a much larger body of scientific research on sexual orientation was available than had been the case 17 years earlier. In addition, consistent with the Texas statute, the Lawrence brief focused on research about homosexuality. It stressed three major conclusions from behavioral and social science research findings:
- Homosexuality is a normal form of human sexuality. In connection with this point, the brief explained why and how sexual orientation is important to the individual; how sexual orientation develops, and the fact that most people do not perceive their sexual orientation to be a choice; and the mental health professions’ recognition that homosexuality is not a mental disorder.
- Trying to legally suppress sexual intimacy among same-sex partners deprives gay men and lesbians of the opportunity to participate in fundamental aspects of human experience. In this regard, the brief discussed the importance to gay men and lesbians of sexual intimacy and committed relationships; the centrality of the specific behaviors proscribed by the Texas statute to sexual intimacy and, therefore, to the intimate relationships that are at the core of lesbian and gay families; the similarities between same-sex and heterosexual intimate relationships; and the ability of gay men and lesbians to be good parents.
- Sodomy statutes — such as the Texas law — reinforce prejudice, discrimination, and violence against gay men and lesbians. Related to this point, the brief presented research findings on the discrimination, prejudice, and violence routinely encountered by gay people, and discussed how antisodomy statutes reinforce and help to perpetuate those enactments of sexual stigma.
Five years ago today, the Court declared the Texas law unconstitutional by a 6–3 majority, reversing Bowers v. Hardwick.
Justice Kennedy’s majority opinion was sweeping in its language and its recognition of the basic humanity of gay people. This is evident in his criticism of how the 1986 Court majority had approached Bowers v. Hardwick:
To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse…. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice (p. 567).
Justice Kennedy also noted that the continuance of Bowers as precedent “demeans the lives of homosexual persons” (p. 575), and asserted that “Bowers was not correct when it was decided, and it is not correct today” (p. 578). Near the end of the opinion, he wrote, “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime” (p. 578).
These statements represented a dramatic break with the Bowers Court’s view of gay people.
What was the impact of the APA briefs on the Court? In 1986, Justice Blackmun cited the APA brief in his impassioned dissent to Bowers v. Hardwick. Subsequently, in overturning their sodomy laws, some state courts relied on information from the APA amicus briefs submitted to them. The 2003 brief wasn’t explicitly cited in the written opinions for the Lawrence case, although some of Justice Kennedy’s recurring themes — his recognition of the humanity of gay men and lesbians, and the fact that sexuality is central to personal identity and intimate relationships — were repeatedly stressed in it.
Although we don’t know whether and to what extent the brief affected the Lawrence decision, what matters is that it was filed. As a joint effort by the largest mental health professional associations in the United States — whose memberships also include many of the country’s leading behavioral scientists — the brief illustrated just how far psychology and psychiatry have come in their understanding of human sexuality and their renunciation of sexual stigma.
The Marriage Equality Cases
The ink had barely dried on Justice Kennedy’s decision when questions began to be raised about its impact on marriage laws. Indeed, the justices directly addressed this question in their opinions, with Justice Scalia’s dissent interpreting the majority opinion as leading inevitably to marriage equality (an outcome not to his liking), and Justice Kennedy denying that such a conclusion was in any way inevitable. Justice O’Connor, who wrote a separate concurring opinion, made a point of separating the Lawrence decision from the marriage issue.
Less than six months after the Lawrence decision, the Massachusetts Supreme Judicial Court cited it in their ruling that prohibiting same-sex couples from marrying violated the state constitution. A few months later, Mayor Gavin Newsom directed the San Francisco County Assessor to issue marriage licenses to same-sex couples, and officials in a few other jurisdictions did likewise. Thus began a period of intense legal, political, and cultural focus on the issue of marriage equality.
In the past 4 years, several state courts have considered challenges to their marriage laws. The APA and other professional groups filed amicus briefs in those cases which summarized the social science research related to three major lines of argument:
- In psychological terms, intimate same-sex relationships are not fundamentally different from different-sex relationships.
- Gay and lesbian couples are currently raising children, and are just as capable as heterosexual couples in this regard.
- Marriage confers a variety of tangible and intangible benefits that have important effects on psychological and physical health; because they cannot marry, same-sex couples are currently denied these benefits.
I’ve discussed the social science data supporting these arguments in previous posts to this blog.
To date, most of those laws have been upheld by state courts, although the New Jersey Supreme Court ruled that same-sex couples must be granted the same rights and responsibilities as different-sex married couples.
The important exception, of course, is California, whose Supreme Court ruled on May 15 that it is unconstitutional to deny marriage rights to Californians simply because they are gay.
That decision — which also declared that sexual orientation will now be considered a “suspect classification” and that laws and policies discriminating on the basis of sexual orientation will be subjected to strict judicial scrutiny — repeatedly cited the Lawrence v. Texas opinion. It also cited the APA amicus brief, as detailed in a previous post.
In the months ahead, Californians will debate whether or not the Court’s ruling should be undone by a constitutional amendment that has qualified for the November ballot. Meanwhile, a decision about Connecticut’s marriage law is expected from that state’s Supreme Court at any time, and an appeal is pending for an Iowa lower court judge’s opinion that the state’s ban on marriage rights for same-sex couples is unconstitutional.
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Back in 1975, soon after the American Psychiatric Association removed homosexuality from its official roster of mental illnesses, the American Psychological Association (APA) adopted a resolution that not only endorsed the psychiatrists’ action, but also recognized psychologists’ responsibility to undo the harm their profession had historically done to sexual minorities. That resolution committed psychologists to “to take the lead in removing the stigma of mental illness that has long been associated with homosexual orientations.”
The APA’s amicus briefs in the Bowers, Lawrence, and related cases were translations of that resolution into concrete action.
Because current debates about law and policy concerning sexual orientation inevitably raise questions about the nature of intimate relationships, parenting, family dynamics, and the personal impact of sexual stigma — phenomena that have been extensively studied by behavioral and social scientists — psychologists and other behavioral scientists have an ongoing role to play in communicating our knowledge to policy makers, jurists, and the public.
By doing so, we will continue to fulfill our longstanding commitment to take the lead in removing the stigma historically attached to homosexuality and same-sex intimate relationships.
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This essay is adapted from sections of a longer article titled “Confronting Sexual Stigma and Prejudice: Theory and Practice,” which was published in 2007 in the Journal of Social Issues, vol. 63, pp. 905-925. The original article is copyright © 2007 by Gregory M. Herek. Sources and bibliographic references can be found in the published article.
June 25, 2008
On Wednesday morning at 10 am (PDT), “pastors, friends and Christian leaders” from across California will join a Pastors Strategic Conference Call convened by Jim Garlow, the pastor of Skyline Church in San Diego.
As detailed on ProtectMarriageEquality.com, Garlow’s invitational letter promised that:
[T]he information shared [during the call] will be extremely beneficial for the future of the cause of Christ in California. Saying it another way, it is worth canceling all other appointments in order to be present….
The letter promises that “Christian attorneys will instruct and guide” participants on legal and public relations issues.
The letter also refers readers to a website registered to an Internet domain proxy service in Scottsdale, Arizona, located near the offices of the Alliance Defense Fund. (A Christian legal firm founded by James Dobson, D. James Kennedy, and other Christian Right leaders, the ADF has played a central role in promoting antigay laws and policies.)
That website (ProtectMarriageSD.com) provides resources for opponents of marriage equality in California, including a timeline of planned events leading up to the fall election.
Titled the “Civic Serve Strategy,” the timeline begins with this week’s conference call. The next major scheduled event is a 40-day statewide fast, beginning September 25 and continuing to November 2. During the fast, a “Family Voting Weekend” will be observed on October 18-19. The focus of that weekend apparently will be a push to get absentee ballots submitted. At the end of the 40 days will come “The Call” on November 1, a 12-hour prayer rally at San Diego’s Qualcomm Stadium. It will involve “men and women of God from every denomination — all united to create a climate of ongoing prayer and fasting in our state and across the nation.”
The California Challenge
The fact that the organizational impetus for the CaMP (California Marriage Protection) Act comes mainly from conservative Christians will come as no surprise to most observers. In California, however, anti-equality religionists face a special challenge, namely, how to convince a majority of voters — many of whom don’t subscribe to Christian Right principles — to amend their state Constitution to endorse a quintessentially religious proposition that disenfranchises an entire segment of the population.
In states where conservative Christians dominate electoral politics, winning majority votes on anti-marriage initiatives has not been a problem. But California is a more secular state than most, and the statewide politics tend to be moderate and Democratic.
Some relevant information about Californians’ religious preferences can be gleaned from the U.S. Religious Landscape Survey released this week by the Pew Forum on Religion & Public Life. According to the Pew survey, the population of California is less religious than the nation as a whole. For example,
- While 56% of all US adults say religion is very important in their lives, only 48% of Californians do so. And 23% of Californians say religion is not too important or not at all important, compared to 16% nationally.
- 24% of Californians said they believe their religion’s holy book (e.g., the Bible, the Torah) is to be taken literally, word for word, compared to the national average of 33%. Such beliefs are often considered a defining feature of religious fundamentalism.
These comparisons understate the differences between Californians and other Americans because the figures for the entire nation include California. However, the differences are readily apparent from the national maps on the Pew web site, which reveal that California tilts decidedly toward the less religious end of the spectrum compared to many other states, especially those in the Midwest and South.
Californians also are somewhat less likely than the nation as a whole to belong to religious denominations whose members take a negative view of homosexuality.
- More than half of the Mormons, Christian Evangelicals, Jehovah’s Witnesses, and Muslims in the Pew sample believed that “Homosexuality is a way of life that should be discouraged by society.” These denominations comprise only about 22% of the California population, compared to about 30% nationally.
- By contrast, more than half of Mainline Protestants, Catholics, Jews, Buddhists, and those categorized as “other faith,” “other Christian” or “unaffiliated” believed “Homosexuality is a way of life that should be accepted by society.” These groups constitute about 73% of the California population, compared to about 62% nationally.
Data from the Field Poll published last month further confirm that conservative religious beliefs are linked with opposition to marriage equality in the Golden State. The problem for CaMP Act supporters is that religious conservatives don’t come close to constituting a majority of California voters. For example, marriage equality was opposed by 68% of self-described born-again Christians, but that group comprised only one fifth of the Field Poll sample. The other four-fifths supported marriage equality by 58%.
The CaMP Strategy
All of this suggests that marriage equality opponents can’t count on passing the amendment solely with votes from conservative Christians.
To be sure, they will work hard to turn out their religious base through events such as the 40-day fast, the Family Voting Weekend, the November 1 “Call,” and ongoing massive voter registration drives through churches.
However, they will also be trying to attract moderate voters. Recognizing that most Californians support marriage equality or, at least, civil unions and domestic partnerships, they’re already tailoring their tactics, trying not to appear extreme and mean-spirited.
For example, in a June 16 letter, ProtectMarriage.com urged anti-equality activists to present a tolerant face in public:
The major media would love to see us engage in fierce protests and hostile demonstrations of outrage against the licensing of same-sex “marriages”. Of course they will take any opportunity they can find to portray us as unreasonable. We must not fall into this trap.
In a similar vein, in his letter convening the Pastors Strategic Conference Call, Jim Garlow offered this advice about dealing with media when same-sex couples began to marry last week:
If (and I repeat “if”) you are (1) called of God to do it (don’t do it if you are not called by Him), and (2) if you are inherently media savvy, and (3) if you truly know the key issues upon which to focus for a secular audience, and (4) if you will not be inflammatory in your language, but loving in both speech and demeanor, then may I recommend you to go to your respective County Clerk’s office on Monday evening or Tuesday morning — or both. Hand your card to media personnel and let them know who you are and that you are willing to make comments. For the most part, they do prefer to attempt to present “opposing views.”
I cannot emphasize enough the importance of being firm, be loving. If you appear to be scared or angry or portraying “hate,” then that will be trumpeted by the anti-biblical crowd. It is imperative that we are as loving as Christ, while not flinching under pressure. My suggestion, do not go if you feel you cannot follow the four principles above.
And in Sacramento on Monday, Frank Schubert, a GOP consultant who will manage the pro-initiative campaign, said he will run a “positive, uplifting campaign”and pledged “There will not be any gay bashing in our campaign.”
CaMP Talking Points
If they avoid overt gay bashing and expressions of anger and hostility, what will they actually say? Jim Garlow’s letter offers 9 talking points, many of which will probably sound familiar. The three main points are:
- Four judges overruled the will of the people, Prop. 22 which passed by 61.4% in 2000, and was placed in the California Family Code indicating marriage is the union of a man and a woman. Key words: “usurping,” “tyranny of the judges,” “preempting the will of the people.” The judges overturned Prop. 22 on May 15. They were asked if they would put a stay on their ruling until the citizens of California could vote on the Marriage Amendment, since the necessary signatures were being validated (694,000 required; 1.1 million obtained). On June 4, the judges refused to do so, thus creating legal chaos for the state when the Marriage Amendment vote is successful. In other words, people will be married under the ruling of four judges, and those marriages will have to be reconsidered in the light of the Marriage Amendment in November. All of these are key issues that honest minded people find offensive.
- Children deserve a chance to have a father and a mother. This produces the best environment for producing healthy human beings.
- Do not use the phrase “ban same sex marriage;” that plays into the opposition’s court. Use correct phrasing: “destroying the definition of marriage that has existed in California’s 158 year history — since 1850, and the history of most of Western Civilization.”
Garlow’s letter offers 6 more points “only if you need them” and advises that this likely won’t be the case:
- Virtually every culture has affirmed the role of heterosexual marriage. There is a reason. It works.
- Two pronged approach: (a) for people who see themselves as Christians, the Bible speaks clearly on this; (b) for those who are not concerned with the Bible or Christianity, there is an awareness of “natural law,” in that males and females function together in a particular role that sustains and provides health to the human race.
- Loss of religious liberties; loss of freedom of speech, in that Canada and Sweden, for example, are now ruling that the Bible is “hate speech,” at some point, pastors will lose their right to speak out on this issue; pastors will be forced to perform homosexual weddings or face imprisonment and fines;
- Social experiments are costly and devastating to the health of humans and societies.
- If we redefine marriage, why stop with same sex? Why not polygamy? Why not incest (under age)? What is the basis for stopping with this definition of marriage? Why not further expand it?
- Do we need public school curriculum to advocate homosexual activity?
Whether or not following this plan will ultimately persuade a majority of California voters to support the anti-equality amendment remains to be seen. And, no doubt, the conservative Christians promoting the marriage ban will adjust and modify their tactics as the campaign develops in the months ahead.
At the moment, it appears that the amendment’s proponents face an uphill battle. But it would be foolish to underestimate their ability to meet this challenge in November.
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ProtectMarriageEquality.com is a resource for recent news about Marriage Equality, in California and elsewhere.
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