The XX Factor

Maine Didn’t Give Gay Marriage a Chance

When the Supreme Judicial Court of Massachusetts legalized same-sex marriage in 2003, the polls showed disapproval by a margin of 53 percent to 35 percent. After the ruling went into effect, legislators geared up to reverse it by amending the state constitution. But two years later, the poll numbers had flipped, and the backlash never came. That’s because reversing the court’s ruling was a long process, not a quick and hasty ballot initiative like the one that Maine passed in Tuesday’s election. In Maine, the law passed last May and never even went into effect. In Massachusetts, by contrast, as I wrote last year :

According to state law, lawmakers had to vote twice, both chambers together and in two separate years, to reject the court’s ruling. And even then, they would succeed only in getting their state constitutional amendment on the state ballot, where voters would have had one more chance to save gay marriage.

The champagne and the marriage licenses began flowing in Massachusetts in May 2004, around the time the clock started on the complicated process to overturn the gay-marriage decision. The Legislature’s first vote went against same-sex marriage-though for civil unions-by a bare majority, 105 votes to 92. No supporter of gay marriage lost his or her seat in the next election, according to Yale law professor William Eskridge. Opponents got nervous. So, they started down a different road: If they gathered enough signatures to get their amendment on the ballot, they’d need only 25 percent support from the Legislature at two constitutional conventions to put it to a statewide vote.

This meant more years and more marriage licenses-10,000-plus in the state. And time proved to be gay marriage’s best friend. Plenty of signatures were collected, and on its first go-round, the amendment-anti-gay marriage, pro-civil union-won 62 of 200 votes in the Legislature-enough to make it past the 50-vote threshold. But when the Legislature took up the measure again in 2007, Democratic Gov. Deval Patrick lobbied hard against the amendment, and 17 lawmakers defected. To the surprise of the same-sex marriage opponents, their amendment couldn’t even muster support from 25 percent of the Legislature and went down to defeat.

In Massachusetts, familiarity with same-sex marriage bred the opposite of contempt. In Maine, as in California last year, voters didn’t give themselves time to get used to the new unions. Andrew Sullivan is right to take heart in the closeness of the vote (53 percent to 47 percent, it looks like) and to remind us that, “A decade ago, the marriage issue was toxic. Now it divides evenly.” He also predicts that, “Soon, it will win everywhere.” He’s more likely to be right the fewer insta-cook ballot initiatives we have. That’s the reality of direct democracy right now.

Photograph of a gay rights march in Washington, D.C. in October by Getty Images.