The New Alabama
While the United States has a long tradition of advancing the rights of citizens who previously had experienced discrimination, once progress occurs, voters very rarely have re-imposed discrimination. In fact, passage of Question One marks only the third occasion since World War II in which voters had taken away a fundamental right that either the legislature or the courts had conferred upon a minority group.
The other two occasions occurred in California: last year, when Californians passed Proposition 8; and in 1964, when voters approved Proposition 14, which overturned a California law prohibiting racial discrimination when buying and selling homes. The U.S. Supreme Court eventually held that Proposition 14 violated the U.S. Constitution; a federal court challenge to Proposition 8, filed by former Bush Solicitor General Theodore Olson, is currently underway.
It’s doubtful that the policy preference of the 53 percent who voted for Question One will stand the test of time, given the yawning generational gap that exists on the subject of same-sex marriage. According to a Research2000 poll of likely voters in Maine, voters under 30 supported marriage equality by a 14-point margin—as their counterparts over the age of 65 backed Question One by 15 points. National polls and the 2008 exit polls in California reflected similar or even greater gaps between younger voters and senior citizens on the issue. So by 2016 or—at the latest—2020, Maine voters likely will restore the right to same-sex marriage, as today’s teenagers enter the electorate.
That’s not to say that Maine’s vote will not have a profound impact. First, of course, marriage equality by 2020 will do little for the children of same-sex couples prominently (and effectively) featured in the No on 1 ads. They will reach adulthood in a state that continues to deny their parents the right to marry.
Second, the vote will yield some economic distress in a state that’s been quite hard-hit from the recession. Maine certainly will lose the indirect economic benefits that would have accompanied being the first state to approve same-sex marriage through popular as well as legislative vote. It’s almost certain that our tourist-heavy economy will lose some business from the politically correct; and we also will probably sacrifice a few small businesses that rely on recruiting high-intelligence workers who want to live in a tolerant environment. These businesses (and pro-equality tourists) can avoid association with our difficulties and still get the benefits of a northern New England location by setting up shop in New Hampshire or Vermont.
Finally, the Maine vote surely will cause other legislatures—at least in states with people’s vetoes or low thresholds in getting constitutional amendments on the ballot—to delay before enacting marriage equality laws. If support for same-sex marriage continues to grow, skittish legislators might well wait a few years, until less of a chance exists that voters will undo the legislation. That means, unfortunately for the state’s historical reputation, Maine could very well end up the last state whose voters used the ballot box to annul same-sex marriage rights already on the books.
If so, Maine will go down as the Alabama of the gay marriage debate. Although the U.S. Supreme Court in 1967 struck down laws banning interracial marriage, Alabama voters didn’t repeal their ban until 2000. Even then, 40 percent of Alabama residents (and, according to study by Micah Altman of the Harvard-MIT Data Center, half of the state’s white voters) voted to keep the inoperable ban in place. Much like advocates of Question One, they affirmed that respect for tradition, not prejudice against a minority group, guided their actions. I suspect that history will judge differently, in both instances.
Indeed, the poor quality of the Yes on 1 campaign makes it hard to see rational explanations as the primary basis of the measure’s appeal. In its television advertisements, the Yes side offered six, sometimes mutually contradictory, messages. Among them: Yes on 1 claimed at various points in the campaign that rejecting Question One would mandate teaching gay marriage in the schools; that, in fact, there would be no mandate, but that local districts might choose to teach it anyway since the legislature hadn’t passed a law forbidding all discussion of the concept in the schools; and that the rights of gays and lesbians could be protected by expanding the state’s domestic partnership law—which, by the Yes on 1 campaign’s logic, would then have been taught in the public schools. By the end of the campaign, as the polling expert Nate Silver pointed out, the Yes on 1 “arguments against gay marriage literally stop making sense.”
Yet this sort of campaign persuaded a majority of Maine voters to strip a fundamental right from their fellow citizens. Perhaps the most eye-raising tally came from Maine’s southernmost county, York, a middle-class (and in some instances upper middle-class) county, filled with towns and small cities. Portions of it are as much in the Massachusetts cultural orbit as that of Maine. Most of the county receives Boston television on its cable TV; a small segment of its residents work in Massachusetts. So of all the people in Maine, York County voters were in the best position to understand the misleading nature of a central Yes on 1 argument: that the arrival of same sex-marriage in Massachusetts had radically transformed the state’s public school curriculum to require doses of “teaching gay marriage.”
Yet even as its residents knew or had easy access to information showing that Yes on 1 spokespeople were describing a Massachusetts that didn’t exist, and even as its demographics suggested a county that would be disinclined to support Question One, York County favored marriage equality by a scant 51-49 margin.
In their two closing television ads, the No on 1 campaign asked Maine voters to “take a stand.” We did, and sent two clear messages. To our state’s gay and lesbian citizens: if you want equal rights and benefits, move to New Hampshire. To the nation: putting fundamental rights up to popular vote can cause a black eye even for a basically decent state like Maine.