The Volokh Conspiracy

There's Always Next Year:

The 53%-47% loss for gay marriage in Maine is a beginning, not an end. We have been down this road many times, with gay-equality advocates losing the first (or first few) rounds in popular referenda on lots of issues other than marriage. In fact, gay-rights measures have historically not fared well in popular votes. In Maine in the 1980s, the state legislature passed a state anti-discrimination law, only to have it rejected by voters. It passed the law again, and voters rejected it again. It passed the law a third time, and voters approved it. It was never repealed. A similar pattern might be reproduced with gay marriage in that state. A narrow loss can be made a narrow win. It's coming.

There will be the usual post-mortems about the campaign in Maine. My sense from a thousand miles away is that "No on 1" did a pretty good job of raising money, running an ad campaign, and operating a get-out-the-vote field effort. (Disclosure: I contributed to No on 1.)

Some will say that we should have included broader protection for religious liberty in the legislature's SSM bill. But I don't get the sense that the supposed erosion of religious liberty was the main Maine issue or that broader protection would have made a difference. It also wasn't about procreation, which never featured in any ads. And it wasn't a concern about the possibility that SSM might send a "message" that family structure doesn't matter. People don't really buy the notion that granting legal protection to existing families could send that message, any more than allowing second marriages or step-parent adoptions sends a message that it's unimportant to have married biological parents raise their own offspring.

Instead, the central concern seems to have been what will be taught to the children of heterosexuals in public schools. Once again, as in California, but with even less justification, SSM opponents falsely but effectively claimed that allowing gay couples to wed would mean "teaching" gay marriage in public schools when in fact kids will be taught about the existence of gay marriages in any event. The not-so-subtle subtext of that message, which has historically poisoned just about every public policy issue involving homosexuals, from decriminalizing sodomy to passing antidiscrimination laws, is that the gays are coming to get your kids. Exactly what "coming to get your kids" means will vary from person to person, but it's not something parents want to chance.

It's hard to counter that message without admitting a core truth: that allowing gay marriage will mean kids will think somewhat better of homosexuals. That's a benefit of SSM, though not the most important one. SSM advocates haven't quite figured out how to say that softening anti-gay attitudes will make us better citizens in a pluralistic society without making kids into little Liberaces.

Maine was disappointing, though the bigger loss for SSM may have been the defeat of a pro-SSM governor in New Jersey, where the campaign had nothing to do with SSM and the governor ran on a platform of, "my opponents is a fatso." New Jersey was within months of adopting gay marriage legislatively, but that may now have been put off for a few years.

Something is turning in this debate, though. With close popular votes in two states in the last year, little prospect of additional anti-SSM state constitutional amendments, coming legislative action in more states, the first-ever victory for civil unions in an election last night in Washington state, and a federal marriage amendment in rigor mortis, the question now is not whether, but where and when.

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.