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How Gay Marriage Advocates Will Learn to Love the Ballot

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By Josh Barro

After going 0-for-32 in states where gay marriage was on the ballot through this summer, gay marriage won in all four states where it was on the ballot last night. Gay marriage backers should get comfortable with that, as they are likely to be going to the polls a lot over the next decade.

In Maine, Maryland and Washington, gay marriage will now be legal. Minnesota voters rejected a constitutional ban on gay marriage; they also returned both houses of their legislature to Democratic majorities, so watch for legislative action on gay marriage this year.

Gay marriage supporters went from losing big to losing small and have now shown they can win at the ballot box. And societal shifts -- increasing acceptance of gays, plus old people with anti-gay attitudes dying and being replaced by accepting young voters -- mean that gay marriage will likely be able to obtain a majority vote in nearly every state within a decade.

This presents a pleasant dilemma for gay marriage advocates. For the past decade, they have made a passionate (and correct) case that gay marriage should not be subject to referendum. Minority rights should not be subjected to the will of the majority. Gays are entitled to equal marriage even over the objections of the popular will.

But what if the majority is prepared to grant those minority rights? Then a referendum goes from being an injustice to being an inconvenience -- and it will be an inconvenience gay marriage advocates will increasingly have to bear in pursuit of legalization.

In many states, there are only two available avenues to legalize gay marriage: a Supreme Court decision mandating gay marriage nationally, or a popular referendum. Gay marriage bans have been written into 30 state constitutions, and in most cases, amending the state constitution will require a popular vote.

So if the Supreme Court does not take care of the issue, gay marriage proponents will have to get used to going to the polls -- perhaps in Colorado, Nevada and Oregon, for starters. And they will have to get used to winning.

(Josh Barro is lead writer for the Ticker. E-mail him and follow him on Twitter.)

Read more breaking commentary from Josh Barro and other Bloomberg View columnists and editors at the Ticker.

-0- Nov/07/2012 14:24 GMT

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