Thinking about Maine

The Maine result on Question 1 -- the same-sex marriage issue -- is of course dispiriting to same-sex marriage advocates.  It also raises an interesting question about future strategy.

Of course, one should be careful about drawing broad conclusions from individual election results.  But it's hard to deny the reality that, not only has same-sex marriage gone something like zero for 31 in referendums, it has now gone zero for two in referendums in blue or relatively blue states where the question was not whether to grant such rights, but whether to take them away after they've already been granted.  Such defeats, even if by relatively close margins, should force advocates to rethink not just tactics (from what I've heard everyone thought the Maine pro-SSM forces ran a very good campaign) but overall strategy.

So here's what seems to me the paradox.  Commentators are surely right when they suggest that the progress over the past decade has truly been impressive.  And there's no question that raising the SSM issue has helped move public opinion on this issue.  But at the same time raising the issue has led to defeats at the ballot box.  Are defeats so bad?  One might respond, along with Andrew Sullivan, that defeats are the foundation for later victories.  And that makes sense.  But defeats may also solidify the status quo.  I'm not talking about the formal rules for political change: a subsequent referendum can always overturn a prior one, and a state constitutional amendment can always be repealed.  But it seems to me that a series of defeats like those in California and Maine will have effects beyond the formal changes in law that, in theory, can always be reversed the next time around. If nothing else, they may lead to a general sense of inevitable defeat if SSM becomes the topic of a ballot measure.  Maybe more concretely, they may convince wavering voters that there must be nothing wrong with voting against SSM, since majorities everywhere seem to be doing it. Surely some voters on issues like this are influenced by a general sense of what society thinks about a given practice.

It's probably too early to raise this issue; after all, SSM forces are "only" 0-2 in the type of referendum I described above.  But the other 29 or so losses can't be dismssed so easily, in terms of the concerns I have.  And at the very least, the Gay and Lesbian Advocates and Defenders' "6 by 12" campaign" to win marriage rights in all six New England states by 2012, which if successful would establish a solid foundation for SSM marriage rights, appears to have suffered a serious setback. So maybe some strategizing is called for.

So what to do about the paradox that raising the issue both moves the public in the direction of SSM rights while also triggering reactions that thus far have successfully blocked SSM wherever it's been put to a vote?  If those losses really matter in at least the medium-term (and I think they do), then there's a cost to pushing the issue.  If those who know more than I are becoming pessmistic about beating back these referenda then a course correction may be in order. 

Obviously, advocates have already gotten into the habit of targeting states where it's relatively harder to get a referendum on the ballot.  Beyond that, I wonder if it would be a viable strategy to put marriage on the back burner for a while and focus on obtaining boring old domestic partnership rights.  The idea is not just settling for half a loaf, although it's surely not irrelevant that the electorate seems at least marginally more willing to accept same-sex DPs.  Rather, the idea is to get voters accustomed to the idea of legally-sanctioned same-sex relationships, so that marriage seems not such a big leap.  It also partially defangs the we'd-have-to-teach-the-children-about-SSM rationale that appears to be a popular argument against SSM.  And I've always felt that getting legislators to feel like they can vote for gay rights legislation without necessarily getting attacked will do wonders for making them more receptive to SSM arguments in the future.  (This is why I've always favored pushing ENDA and state-level analogues.)  And finally, let's not forget that any legal status at all will be a major boon for the large numbers of gays and lesbians currently living without any legal protections for their relationships and their families.

Is this a retreat?  Sure.  But only a tactical one, to consolidate the undoubted gains that have been made over the last decade.  Is it premature?  Maybe -- after all it was only a few months ago that we were seeing articles like this.  But if the number of SSM states continues to decline, and SSM advocates start playing as much defense as offense, then it may be time to consolidate what we have and start fighting for what we can hold onto, rather than risking unintentionally poisoning the well through a series of close but consistent defeats in fights we insist on triggering.