Maine, Marriage Equality, and Lessons
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a number of my YouTube subscribers have asked me to weigh in on the electoral success of Proposition 1 in Maine, which repealed a statute enacted by the Maine legislature and signed into law by its governor that extended the legal right to marry to same-sex couples in the state. 53%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.
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.
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Comment by Morgan Matthew on November 5, 2009 at 5:20pm -
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Comment by Matthew on November 5, 2009 at 10:05pm -
I think that very soon, they will pass more bills in the states allowing same sex marriage and they will start passing. peoples values are shifting more toward humanism but there is the gap meaning that some will never be ok with it all.
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Comment by Reggie on November 5, 2009 at 10:17pm -
I have thought for a number of years that gay rights are (is?) the civil rights movement of this era. Some time ago on a close knit forum far away, I reacted angrily to a politician's remarks that gay marriage would ruin the world. Or something to that effect. I became so enraged at the dishonesty that I begged anyone on the forum, which is populated by many conservatives, to give me one good reason why. I only required one. I made it a condition that the Bible didn't count.
It began a heated debate that eventually was closed by mods, but no opponents to gay rights could come up with anything. What they did come up with was lame reasons that were easily disposed of. In a private message, months later, one poster confessed that I had changed his mind about some things. If I had to guess, it was the gay rights issue because it was the one time he and I went toe to toe.
The point I am trying to make is not how awesome I am, because we all know this already (I kid). The point is that the fight for what is right is never in vain, no matter how much it may seem like it is. My one personal internet battle on a small forum meant something. It may have changed a mind or two. It demonstrated the weakness of the bigoted position, at the very least.
But what I'd like to see of more from people is a willingness to fight for what is right even if it benefits them none. We shouldn't wait to have a gay child to decide to support gay rights. We shouldn't wait to have an autistic child to donate to autism charities. We should do what is right because it is right.
I'm a married man to a wonderful woman, but it makes me sick that other people are denied the same rights I enjoy for no damned good reason.
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Comment by Gaytor on November 6, 2009 at 3:35am -
Referendum 71 was passed in Washington State by a narrow margin. It's not exactly equality, it's called the "everything but marriage act". The unfortunate problem with social change is that it comes in baby steps unless forced upon us. We got one more baby step in over here.
In terms of strategy, maybe the intermediate step is yet another good way to demonstrate to those who live in fear of the gay osmosis problem, that they really don't have anything to fear? If we continue to get the baby steps in some areas then push for the next step in another 10 years, it might be more successful. It's not a good solution, but it might be the best we have... today.
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Comment by Shine on November 6, 2009 at 9:31am -
Civil rights are inappropriate to be decided by popular vote. How is protection for minorities supposed to be achieved through the opinion of the majority? It makes no sense.
The parallel between past anti-miscegenation and today's opposition to homosexual unions exposes this flaw perfectly. How many people today would claim that the majority's disapproval of interracial marriages should have prevailed in the 1960s, or even today?
I remember writing a paper for one of my government classes a few years ago refuting several anti-gay marriage arguments. Beyond the moronic religious opposition, what made me really angry were the crassly intellectualized arguments that many have proposed to fight gay marriage. In particular, a few essays I read claimed that homosexuals gaining marital and parental status would undermine biological fathers' basic obligation to their offspring by making parenthood "elective." Of course, this logic is completely convoluted and easily refuted. (I suppose we should ban all impotent couples from adoption as well, by this thinking.)
Here is book full of this drivel that I remember reading for the paper: http://bit.ly/PolmP (link is to GoogleBooks with a limited preview). There are also some good essays in defense of gay marriage.
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Comment by Auston on November 7, 2009 at 2:49am -
I'm pretty disappointed that it's played out this way. I live in Iowa and proud that we still have equal marriage rights, I just hope it stays that way.
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Comment by Joann Brady on November 7, 2009 at 7:37am -
When people pull out the whole "god hates gays" argument, perhaps we should point out a few things to them. That bit comes from Leviticus, in the old testament, and for one thing, the fundies insist that Jesus came to change all the stuff in the OT. But more importantly, we can point out that on the SAME page as the gay thing, god tells them to stone to death unruly teenagers!! ( there are other ridiculous things there, but this one is a favorite of mine........who DOESN'T have an unruly teenager?!?) So how do the fundies know that god was serious about the gays, but kidding about the teenagers?
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Comment by Cara Coleen on November 30, 2009 at 3:04am -
The content here is awesome. On a side note, I have to say I love your writing style. Thank you for writing something my brain found pleasurable to take in. ;)
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