Enemies of the states: as part of a national right-wing get-out-the-vote effort, an unprecedented number of state-level marriage bans will go before voters on November 2 and are expected to pass. Are we losing the battle for equality?

Several days after Hurricane Ivan slammed into the state, Louisiana voters turned out to slam marriage rights for same sex couples. During a special election on September 18, 78% of residents voted to approve a state constitutional amendment that not only bans same-sex marriage but could also be used to prohibit civil unions.

The vote was the second of its kind this election year, following one on August 3 in Missouri in which 71% of voters approved changing that state's constitution to prohibit same sex marriage. Missouri and Louisiana we only the beginning in what may eventually be known as the year of the marriage ban. Spurred by the legalization of same-sex marriage in Massachusetts and the issuance of marriage licenses to gay couples by mayors and county clerks across the country, as many as 11 states will put similar measures before voters on November 2, seeking to change their state constitutions to define marriage as the union of one man and one woman: Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, Oklahoma, Ohio, Oregon, North Dakota, and Utah. Several of the proposals also seek to ban all legal recognition for same-sex couples, including civil unions and domestic partnerships.

"It's no question we are starting as an underdog," says David Fleischer, director of organizing and training for the National Gay and Lesbian Task Force, which has committed considerable time and resources to defeating the marriage bans. "It would be very easy for us to lose everywhere, and it is highly probable we will lose in most places."

So why fight so many losing battles? "If you just let a bully run over you, then they are going to keep coming back," Fleischer explains. "It is intolerable for us not to fight. Also, the psychological consequences of us not fighting are devastating." And you can't just choose the easier battles, Fleischer adds. Despite limited money and resources, his group is battling hard against all the proposed amendments. If it were to focus solely on states where defeating a proposed ban was possible, it would send a dangerous message to the opponents of gay rights, he says.

Much is being learned in the gay tights movement this year, says Seth Kilbourn, national field director for the Human Rights Campaign, which is also fighting the state amendments. He said the Missouri and Louisiana votes taught local and national gay rights groups a sobering lesson. "To run a statewide campaign, you need $2 million or $3 million," Kilbourn says. "As hard as the folks in Missouri worked, they were only able to raise $500,000 or $600,000 to get their message out."

"It's a little bit like going into Tiffany's with a nickel," adds Fleischer. "You're not going to come out with very much."

Despite all the gloomy predictions about a clean sweep for gay-marriage opponents in November, there are some potential victories out there, say Fleischer and Kilbourn. Oregon, where a proposed constitutional ban was quickly placed on the ballot after more than 3,000 marriage licenses were issued to same-sex couples in Multnomah County earlier this year, has a number of gay rights groups with track records of success. Some have been fighting antigay statewide initiatives since 1988 and already have a stable of volunteers and donors to draw from.

"We've started the conversations [with voters] so much earlier than anywhere else," says Aisling Coghlan, campaign manager for No on 36, a new Oregon group leading the fight against the state's marriage amendment. Coghlan's campaign is also running television ads to show that the amendment is less about protecting "traditional values" and more about hurting gay and lesbian families. "The Oregon campaign is making some really smart decisions," Fleischer says, adding that it is still a tough fight. "My guess it will be decided 50.5% to 49.5% one way or the other."

Michigan also appears to offer a glimmer of hope for marriage equality activists this year. On September 14, CNN released poll results showing 44% of Michigan voters for a proposed state constitutional amendment but 51% against it. The news heartened Wendy Howell, campaign manager for Coalition for a Fair Michigan. Unlike the amendment passed in Missouri and the one proposed in Oregon, Michigan's measure would not only prohibit same-sex marriage, it would bait any form of domestic-partner benefits offered to unmarried couples, gay or straight. "Our opponents have been playing the same rune all along about activist judges and gay marriage, and we're the only ones out there really telling people what tiffs amendment would do," Howell says.

From a legal perspective, dealing with a constitutional amendment is a high-stakes battle in the fight for civil rights, says Jay Kaplan, staff attorney for the GLBT Project of the American Civil Liberties Union in Michigan. Once a state changes its constitution, he says, state judges can no longer review the issue. "We wouldn't be able to challenge it in state court, because the Michigan constitution is the last word in Michigan law," Kaplan says. That leaves the federal courts, which can rule on state constitutions if they violate the U.S. Constitution. Currently a federal court is weighing Nebraska's constitutional marriage ban enacted in 2000. "It survived a motion to dismiss, and we're waiting for a district court decision," Kaplan says.

But what the federal courts might do and what role they might play in the future is uncertain. "I don't think we have a history yet of federal courts finding a federally protected right for gay people to be able to marry," Fleischer says. And federal challenges, he says, could be hampered by the proposed Federal Marriage Amendment, which seeks to change the U.S. Constitution to ban same-sex marriage nationwide. Or eliminated altogether by the Marriage Protection Act, which was passed by the U.S. House of Representatives in July and would prohibit federal judges from ruling on state gay marriage cases.

Even though the poll numbers don't look good, Ian James, political director for Ohioans Protecting the Constitution, is optimistic about defeating his state's proposed amendment, which would ban same sex marriage and other forms of legal recognition for gay and lesbian couples. At press time James was fighting a court battle to keep the proposal off the November ballot, while girding for a statewide campaign to convince voters to reject it. If gay rights opponents win big on November 2, James argues, it will set the stage for statewide antigay proposals across the country for years to come. "We've got a great opportunity to show folks this isn't just about the gay community," he says, noting that Ohio is one of many swing states in the presidential election where gay marriage baits will appear on the ballot, potentially helping George W. Bush by bringing out conservative voters. "This is a state we can win, and this is a state we can win where the entire nation is watching."

November 2:

Orange states: Voting on constitutional amendments to ban same-sex marriage.

Red states: Voting on amendments to ban same-sex marriage and all legal recognition for gay and lesbian couples.

In 2004:

Missouri and Louisiana passed state constitutional amendments banning same-sex marriage. Louisiana's ban also could prohibit recognition of civil unions.

Before 2004:

Alaska, Nebraska, and Nevada have constitutional gay marriage bans in place. Hawaii passed an amendment allowing the legislature to outlaw same-sex marriage.

Lisotta has also written for L.A. Weekly and The Nation.