Several friends and a number of my YouTube subscribers have asked me to weigh in on the electoral success of Proposition 1 in Maine, which repealed a statute enacted by the Maine legislature and signed into law by its governor that extended the legal right to marry to same-sex couples in the state. 53% voted to repeal the statute, 47% voted to retain it – a result similar to the 2008 vote for Proposition 8 in California (52% in favor, 48% against), but well short of the trouncing same-sex marriage took at the ballot box in Florida last year (62% voted to ban it).
Some bristle at any comparison between same-sex marriage and interracial marriage. If you, dear reader, are among those who do, prepare for a flare up because the battle against anti-miscegenation laws provides some useful parallels and context for the current discussion. In the introduction to his excellent anthology Same-Sex Marriage: Pro And Con (A Reader), Andrew Sullivan notes that in 1968, the year after the United States Supreme Court struck down anti-miscegenation laws as unconstitutional in Loving v. Virginia, a Gallup poll found that 72% of Americans disapproved of interracial marriage. It was not until 1991 that a narrow majority emerged to approve of them. One can scarcely imagine anyone – except the most intransigent bigots and, perhaps, the recently (and appropriately) disgraced Keith Bardwell of Louisiana – seriously arguing that out of respect for the democratic process, interracial couples should have continued to be denied marriage equality until the last decade of the 20th century when a majority of Americans finally got beyond this particular manifestation of bigotry. The Supreme Court did the right thing in 1967 in Loving v. Virginia, unanimously sweeping aside duly enacted laws against interracial marriage in nearly one-third of the states. Despite substantially adverse majoritarian sentiment at the time, the Court unequivocally stated, “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
Opponents of marriage equality for same-sex couples have been intoning the words “democratic process” in mantra-like fashion since 1996, when the prospect of Hawaii being the first state to allow gays and lesbians to marry initially sent homophobic chills up and their spines. And by “democratic process” they mean whatever process results in gays and lesbians continuing to be denied civil marriage. For example, when legislation allowing same-sex couples to marry is duly enacted by the majority of a state legislature’s elected members and signed into law by a duly elected governor – as was the case in Maine – the opponents of marriage equality will insist that the “democratic process” has not been respected and that the matter must go directly to the people, as if we were in ancient Athens and direct democracy (with its tyranny-of-the-majority potential) were the rule in the United States.
This articulated affection for “democratic process” – more correctly, whichever version of “democratic process” gets the opponents of marriage equality the result they seek – should be identified as what it is: a product of expedience, not principle. More importantly, those fighting for marriage equality should not buy into the spin pushed by their opponents that victory in court is less legitimate than victory in the democratic process (whether in a legislature or at the ballot box). It is not. The judicial branch of government is just that: a branch of government. Many of the major victories of the various civil rights movements, victories that propelled the movements forward, were won in the courts. The marriage equality movement in particular and the LGBT civil rights movement in general are no different and should not feel the need to be different.
To be sure, demographic trends favor marriage equality for same-sex couples. Most young voters support it, including, according to some research, a significant number of young Evangelical Christians. However, the reality of the status quo is that a slim majority of Americans opposes same-sex marriage and it has gone down to electoral defeat in 31 states (including Maine).
So it seems to me that the primary lesson of Proposition 1’s success in Maine is to remind us, as if a reminder were truly needed, that the necessary and sufficient conditions do not yet exist for marriage equality to emerge victorious through the democratic process. While the proponents of marriage equality should not give up on the democratic process – keep pressing elected officials and support and vote for candidates favorable to marriage equality – we must be at peace with the fact that for the foreseeable future, when we win it is overwhelmingly likely that the victory will be legal rather than political. And that’s OK.