After Maine Question 1

Voters in Maine passed Question 1 on Tuesday, rejecting same-sex marriage legislation in the state by an even larger margin than California voters passed Proposition 8.  Many analysts were quite surprised by the result—pre-election polling showed that the sides were close.  There was a record turnout of around 60% of voters.  Same-sex marriage supporters vow to continue their efforts, but the referendum result is clearly a setback.

Punditry inevitably abounds in the wake of a dramatic vote like this, but I have a few thoughts on the matter that I think are worth mentioning.  First, as I mentioned earlier, the Mormon Church was not directly involved in the Maine campaign, having used up its political capital in the California campaign in 2008.  Individual Mormons certainly participated, and there are plenty of allegations that the National Organization for Marriage (NOM) is a front for the LDS Church, but I think it’s clear that Mormon Leaders stood on the sidelines on this one.  Much more active was the Roman Catholic Church.  I will be interested from a free speech and free exercise perspective to see whether Catholics and the Catholic Church face the same animosity as did Mormons after Prop. 8, and whether some of the anger at Mormons will be transferred to other groups.  My guess is that the backlash, if any, will be far lesser, since the whole process has been much more measured and quiet than the tumultuous history leading up to Prop. 8, and many people have already fixated on the Mormon Church.

My second thought is that Maine’s decision to stay implementation of the same-sex marriage legislation seems to have been justified.  This avoided the retroactive problems experienced in California, and will likely result in less litigation.  Regardless of your opinion of the result, I think Maine’s leaders and legislators deserve recognition for taking the right approach to this sort of legislation.

Thirdly, it seems that legislation is an increasingly common tool or weapon by both sides of these sorts of contentious issues.  Question 1 opponents accused NOM of hiding its financial records, and NOM fired back by subpoenaing financial information from the group Californians Against Hate.  Litigation is ill-suited for this sort of dispute, but unless it is somehow curtailed, lawsuits may inevitably precede, accompany, and follow controversial legislation or referendums in the future.

The fourth thought is that critics of the result of Prop. 8 cried foul over the amount of money poured into the California campaign by out-of-state contributors.  The situation in Maine was reversed, with millions of dollars in support of the No on 1 campaign coming from out of state.  The No campaign had roughly twice the amount of money that the Yes campaign did, but the result was the same.  (This may say a lot about how ineffective campaign advertising can be.)  I wonder if these two situations might not spur some states to limit the amount of out-of-state funding available for a state referrendum.

My fifth and final thought is that the result in Maine will likely produce a shift in focus away from the state level to the national level.  This will almost certainly come in the form of litigation, since federal legislation would likely require a constitutional amendment in order to supercede the states’ exclusive authority in regulating marriage.  Two major lawsuits are already in the works, including a lawsuit out of California and another equal protection challenge to the Defense of Marriage Act (DOMA).