With another year comes another failure. On November 3rd, Maine voters successfully used the “people’s veto” process and voted to block a law allowing same-sex marriage from coming into effect. Instead of weddings beginning in fall as was planned, the law now stands as it once did, with same-sex marriage being banned in the state. Unlike Proposition 8 in California last year, Question 1 was not a constitutional amendment, but simply a veto to an already passed law. From a legal standpoint, the approval of Question 1 in Maine is hardly as damaging as the passage of Proposition 8, but it is a painful defeat nonetheless.
While those who oppose equality (and non-straight sexuality in general) are going to gloat, saying the people sided with them and the LGBT community will more than likely hold all manner of protests, these reactions are missing the big picture. The simple truth is that waiting on the mechanism of direct democracy to deliver full equality for LGBT people is like waiting on an actual frog to start tap dancing and singing “The Michigan Rag.” It’s an unsustainable and foolhardy strategy to continually pour so much of our blood, sweat and tears into these situations where our very worth as human beings is put up for vote.
Yes, the people of Maine forced this process, and yes, we were right to contest it as we did. That said, despairing over the result isn’t going to do much good for our movement. Right now, we need to set our eyes towards Congress as they now take up the Employment Non-Discrimination Act, which would ban all manner of workplace discrimination against LGBT people nationwide. We need to keep applying pressure to President Obama and Congress to deep-six “don’t ask, don’t tell” and the inarguably cruel Defense of Marriage Act. In addition, we should support efforts to secure civil unions, domestic partnerships and other such arrangements in the various states. While these measures represent a compromise, they are worthy of support and can even be successful on a ballot. On the same night Maine was lost, the people of Washington State demonstrated this by voting yes on Referendum 71, which preserved the “everything but marriage” domestic partnership law.
The only way we will have true marriage equality in the United States will be through a ruling by the United States Supreme Court acknowledging our right to marriage. Anything short of that will never lead to full marriage equality in our lifetimes. We cannot wait on all 50 states to issue same-sex marriage licenses. Barring judicial intervention, we would be waiting until our deathbeds. Had interracial marriage been left to the democratic process without the 1967 Supreme Court ruling in Loving v. Virginia, which fully recognized the right to interracial marriage, I think there’s a decent chance interracial marriage would still be illegal in some states.
Our current best hope for marriage equality is the lawsuit being led by Former Solicitor General Ted Olsen and Clinton’s former lawyer in his impeachment trial, David Boies. They are challenging California’s Proposition 8 in federal court on equal protection grounds. If the lawsuit proves ultimately successful, it would lead to the declaration of a constitutional right to same-sex marriage by the Supreme Court as was held in Loving for interracial couples. It is a high-risk strategy, though, as the ultimate failure of the lawsuit could lead the Supreme Court to hold that the Constitution does not provide for a right to same-sex marriage, which would be a terrible blow that could have generational implications. That said, there are any number of ways the lawsuit could ultimately end, and there is no guarantee at all that the Supreme Court will even hear the case.
For now, let’s keep fighting for what we can and keep our goals realistic. Maine is just one of fifty states, many of which will never fully accept the full rights of LGBT people without judicial intervention. Until that day when full marriage equality comes from the Supreme Court, we have an unprecedented opportunity to fight for other aspects of legal and societal equality on the federal and state levels. Mourning and sulking over Maine is not going to prove productive, but continuing with the good fight and changing hearts and minds will. Onward we go.