The march toward marriage equality: Reexamining the diffusion of same-sex marriage among states
| Author | Joshua L Mitchell,Elizabeth Petray |
| DOI | 10.1177/0952076716628620 |
| Published date | 01 October 2016 |
| Date | 01 October 2016 |
| Subject Matter | Articles |
Public Policy and Administration
2016, Vol. 31(4) 283–302
! The Author(s) 2016
The march toward
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marriage equality:
DOI: 10.1177/0952076716628620
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Reexamining the diffusion
of same-sex marriage
among states
Joshua L Mitchell*
The University of Arkansas, Fayetteville, AR, USA
Elizabeth Petray*
The University of Arkansas, Fayetteville, AR, USA
Abstract
The issue of same-sex marriage and lesbian, gay, bisexual, and transgender equality has
received considerable attention from policy scholars. This is unsurprising given the issue
is one of the defining social policy battles of the last decade. State governments at the
forefront of this battle have responded by proposing a multitude of lesbian, gay, bisexual,
and transgender-related policies. In this study, we comparatively assess the diffusion of
two of these policies across US states: the legal recognition of same-sex marriages and
state constitutional amendments defining marriage as exclusively between one man and
one woman. While previous studies have examined the diffusion of same-sex marriage
bans across states, none have offered a comparative examination of how both sides of
this contentious issue have advanced their policy preferences alongside each other.
Using event history analysis, we analyze a unique set of covariates to test two diffusion
hypotheses: learning and imitation. We find that for both policies, policy learning is the
primary mechanism occurring, suggesting that policymakers learn from one another for
the same policy area, even if the policies have different motives or objectives. However,
the effect of learning is more prominent for anti-gay policies, suggesting there are
differences between policies.
Keywords
Policy diffusion, policy adoption, gay marriage diffusion, same-sex marriage, LGBT
policy, gay marriage bans
*The order of authors was determined alphabetically, both authors contributed equally.
Corresponding author:
Joshua L Mitchell, University of Arkansas, Old Main 428, Fayetteville, AR 72701, USA.
Email: jlm038@uark.edu
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Public Policy and Administration 31(4)
Introduction
The issue of same-sex marriage and lesbian, gay, bisexual, and transgender (LGBT)
equality has received considerable attention from policy scholars in the last few
decades. This is unsurprising given that these issues have been among the defining
social policy battles of the past decade. In response, US states have passed several
policies regarding marriage rights for same-sex couples, some that give legal rec-
ognition to same-sex marriage, and others that limit same-sex marriage. Given the
amount of policies that have been adopted by states in a short time span, it is
important to understand the specific factors that contribute to the adoption of
these policies across states.
Policy diffusion, or the external factors that help explain multiple jurisdictions
adopting the same policy, is one framework that can help explain these adoption
patterns. In this study, we examine the diffusion of two related policies across US
states: one that legally recognizes gay marriage and another that defines marriage
exclusively as a union between one man and one woman at the constitutional level.
Using a unique set of covariates, we examine both marriage and amendment laws
from 2004–2015 and 1998–2015, respectively. Using event history analysis (EHA),
we test two diffusion theories: imitation and learning, and compare these two
policies on multiple dimensions to determine specific adoption patterns. We find
that both policies exhibit similar patterns and that states are learning from one
another when adopting these policies. However, the effect of learning is greater for
anti-gay policies, suggesting there are some differences. This adds to the growing
body of literature that isolates mechanisms of policy diffusion and unravels the
complexities of morality policy. In the next section, we provide a background of
same-sex marriage in the US.
Same-sex marriage in the US: A background
While the issue of same-sex marriage has been a hotly contested part of the
national dialogue for the past decade, it is far from a new issue. Cohabitating
homosexual couples have always been a part of American society, albeit one
that was not widely acknowledged and the legal recognition of such unions
would not become a serious subject of debate for some time. Even though it was
not the first time the issue had been raised, a 1970 court case in the state of
Minnesota marks the first legal challenge towards marriage equality with Baker v
Nelson. While ultimately unsuccessful, the case along with the battle over the con-
troversial equal rights amendment (ERA) in the same decade brought the issue of
same-sex marriage into the spotlight. Some social conservatives used the ERA to
push states to recognize homosexual marriages as part of their resistance to the
amendment, and the threat of such a possibility provided an impetus for several
states to proactively ban the practice by the end of the decade (Coontz, 2004).
It would take another 20 years or so before the next legal challenge on the
subject of same-sex marriage. While the ultimate result of a similar 1993 court
Mitchell and Petray
285
case in Hawaii, Baher v Miike, was also unsuccessful, the differing response and
initial successes of the effort showed that times were changing compared to a more
dismissive reaction to Baker. Even though little had changed on the marriage front,
LGBT activists had managed to achieve some success in terms of repealing sodomy
laws in several states, as well as expanding non-discrimination protections in many
parts of the country to include gays and lesbians. In terms of gay marriage though,
the years after Baher saw several more states ban the practice, eventually prompt-
ing federal action in the form of the defense of marriage act (DOMA) in 1996
(Hume, 2013). The final years of the decade also saw the first state constitutional
amendments defining marriage as exclusively between one man and one woman.
The turn of the millennium saw these issues reach a new level of prominence in the
political climate following a 2003 Massachusetts Supreme Court decision making the
state the first in the union to recognize same-sex marriages. This once again brought
the issue to the forefront of American politics and played a pivotal role in the 2004
Presidential elections (Lax and Phillips, 2009). This time period also saw the land-
mark Supreme Court decision in Lawerence v Texas, ruling state sodomy laws
unconstitutional. The rest of the decade was much of the same, especially as
President Bush’s popularity continued to fall and the country swung back towards
more progressive politics. The 2006 Midterm Elections saw the Democratic Party
come into power in both houses of Congress, and with the election of President
Obama two years later the party took control of the White House as well. During
this period of time, public support for same-sex marriage continued to increase
overall, and more states enacted marriage equality. It is worth noting that this
time period also saw a brief rise in an alternative policy position in the form of
either civil unions or domestic partnerships. These policies were seen as a way to
extend the benefits of marriage to same-sex couples, functionally being different from
marriage in name only. While a few states did enact such policies, they ultimately
proved to be a short-lived solution that failed to satisfy either side of the issue.
Conservatives were not fully swayed by the technical difference and still protested
the growing acceptance of LGBT lifestyles in society overall, while LGBT advocates
were wary of civil unions becoming a “separate, but equal” situation that could
easily be co-opted (Hume, 2013). To combat rising support for marriage equality,
the decade also saw more action taken to introduce constitutional definitions of
marriage at the state level as a more permanent form of ban, with the most signifi-
cant victory coming in November 2009 when 11 states ratified such proposals.
Finally, the current decade has shown thus far that the LGBT equality move-
ment is only gaining momentum. Strong signals from the Obama Administration
and policy victories including the repeal of DOMA and “Don’t Ask, Don’t Tell” as
well as the passage of the Matthew Shepherd Act which extended hate crime pro-
tections to cover sexual orientation and gender identity translated into the spread
of same-sex marriage recognition to several states. Prior to the landmark decision
in Obergefell v Hodges, 36 states (as well as the nation’s capital) already recognized
same-sex unions to some degree, leaving only those who had constitutional mar-
riage definition amendments.
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Public Policy and Administration 31(4)
Although this was a monumental victory for LGBT equality, those who oppose
it have not yet given up the fight. While marriage equality is now a foregone
conclusion, social conservatives have started mobilizing for “religious freedom”
bills that would exempt those who are acting on religious grounds from discrim-
ination protections. Attempts to enact such policies have started in several states in
the wake of Obergefell v Hodges, but at the present time it is too early to assess their
popularity or effectiveness.
While morality policy is often tricky, the issue of same-sex marriage in the US is
one that also raises questions about who actually has the power to change it. While
the 14th Amendment...
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