The People’s Veto

In the days leading up to Maine’s gay marriage vote on November 3, it seemed like a big, possibly momentous, shift in American culture was about to take place, one that could give major momentum to the gay rights movement.

All the major outlets reported that it was close. “Most polls suggest the electorate is evenly divided on the issue,” reported the Los Angeles Times. The Washington Post breathlessly told readers, “Public opinion polls in Maine show a dead heat.” It followed that with a quote from Maine Governor John Baldacci, a Democrat, who explained that, “I believe it is something in the water or the air in this state that recognizes individual rights and anti discrimination.”

Nate Silver, a pollster for the popular political website fivethirtyeight.com, wrote that “the grassroots energy has been reversed, with the pro-gay marriage side feeling more emboldened than traditional marriage groups. This is true both outside the state of Maine and within it.”

On election night, CNN legal analyst Jeffrey Toobin was positively giddy. He explained that a victory for gay rights groups in Maine would be “a big cultural change. Every time voters have spoken—every time—they have rejected gay marriage. But this shows the country is changing.” Apparently nobody told the Maine voters about their historic role.

With a 60 percent turnout—impressive for an off-year election—they voted 53-47 percent to repeal a law the legislature had passed earlier that year to allow gay marriage. “The institution of marriage has been preserved in Maine and across the nation,” said Frank Schubert, chief organizer of Stand for Marriage Maine—which lobbied for the repeal—on election night.

The defeat represented the 31st time in a row that gay marriage had lost in a statewide ballot. It’s only success has come in the courts and in legislatures, notes Maggie Gallagher, president of the National Organization for Marriage, a key player in getting the Maine law repealed.

“It was a well-run campaign on our side but fundamentally we were able to win because the American people do not believe in gay marriage,” Gallagher told CWR. “It was not our brilliance. It’s just that we showed up and gave the majority a chance to have a voice.”

THE CONTEXT

The fight in Maine began in early 2009 when Democratic state Senator Dennis Damon introduced a bill titled “An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom.” Despite the Orwellian second half of the title, this was legislation to allow gays to marry. His legislation was championed by the American Civil Liberties Union and state and national gay rights groups.

This was only a few months after California voters surprised many observers with their vote on Proposition 8, which rejected gay marriage. Gay rights groups wanted to regain their momentum and began looking to other states. Maine represented fertile ground.

None of this was spontaneous, explained Mark Sullivan, who was spokesman for No on 1/Protect Maine Quality, the group that led the charge for gay marriage in the state.

“We had been working on it for at least three years in terms of building support, going back several election cycles, trying to make sure we had elected legislators who supported marriage equality,” Sullivan told CWR.

The Maine effort was part of a larger campaign launched by the legal organization Gay and Lesbian Advocates and Defenders called “6×12.” Its goal is to have gay marriage in all six New England states by 2012, according to the alternative weekly Portland Phoenix.

The man who ran the pro-gay marriage campaign in Maine was Jesse Connolly, an extremely well-connected Democratic political insider. He was pretty much born for the part. His father had been a state senator, one of the first to support gay marriage.

Connolly became involved in politics himself and eventually went on to run Baldacci’s 2006 gubernatorial campaign. He was chief of staff to Maine House Speaker Hannah Pingree before taking a leave of absence to run the gay marriage campaign full-time in 2009.

Gay rights groups were cognizant that their victories had come in the courts and their losses had come at the ballot box. A victory in the Maine legislature would provide the argument that they were moving beyond the courts.

“The gay marriage movement is very good at crafting narratives and getting the media to accept them,” Gallagher noted. “This Maine and the whole New England thing was part of a coordinated strategy to craft a narrative that the culture had turned on gay marriage.”

By April, Damon’s legislation had gained momentum and was being pushed through the statehouse. The sole public hearing was a marathon session on April 24 that drew an overflow crowd in which gay rights activists clearly outnumbered the rest.

Six days later Maine’s state Senate passed the bill, 21-14. The House passed it 89-57 on May 5. The final version sailed through the Senate the next day, 21-13. Baldacci signed it into law that afternoon.

“In the past, I opposed gay marriage while supporting the idea of civil unions. I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage,” the governor said in an official statement.

However, the legislative fight did not end with the governor’s signature. The state constitution has a provision that allows for a “People’s Veto.” Opponents of a new law have 90 days after it is signed to gather sufficient signatures to have the law placed on the ballot for repeal in the next election.

During this time period the law does not go into effect, and it remains inactive if a repeal gets on the ballot. Thus, there were no gay marriages in Maine.

The National Organization for Marriage donated about $1 million initially to get a grassroots organization up and running. (NOM would eventually donate about $1.6 million over the course of the campaign.) Stand for Marriage Maine was created and its volunteers went to work.

“There was a phenomenal response on the ground. They needed 55,000 signatures. They got more than 100,000 in five weeks,” Gallagher said.

And so the issue was put on the ballot and became a fight for the hearts and minds of the voters of Maine. Gay rights activists had assumed it would get on the ballot and already had their own grassroots group up and running.

“It’s not a big deal for us,” Connolly told the Portland Phoenix at the time. “We knew it was coming.”

THE CHURCH’S DECISIVE ROLE

In what was in retrospect likely the decisive turning point in the campaign, the Catholic Diocese of Portland, which oversees the Church for the entire state, came out strongly against the gay marriage law and worked closely with NOM to win support for the repeal.

The Church was the second largest financial supporter of the repeal movement, after NOM itself, donating more than a half million dollars. More significantly, though, Bishop Richard Malone addressed the issue directly with the state’s 200,000 Catholics.

“Same-sex marriage is a dangerous sociological experiment that I believe will have negative consequences for society as a whole,” Malone said in a May statement. Malone went on to say that children in schools would be taught that gay marriages and straight marriages were “simply different expressions of the same thing.” This previewed what would become the key issue of the campaign.

The bishop also worked hard internally to ensure that the Church spoke with one voice on the issue. “He asked me to come up in September and to meet with Catholic priests up and down the state and brief them on the issues and why the marriage issue matters. There was a very vigorous internal effort to ensure that the Catholics who attend church regularly in Maine understood at least what their bishop would like for them to do on this issue,” Gallagher said.

She added: “He also did something I’ve never seen another Catholic bishop do, although Protestant churches do this kind of thing quite often: he took up a collection for the Stand for Marriage campaign.”

Despite the Church’s support, the pro-repeal side was facing a truly formidable campaign effort from the pro-gay marriage side. On fundraising, No on 1/Protect Maine Equality outraised Stand for Marriage Maine nearly 2-1, having raised $4.6 million.

The group had the active support of much of the state’s political elite, from Governor Baldacci on down. It had five full-time campaign offices around the state and thousands of volunteers knocking on doors and manning phone banks. And it received what even its own activists considered favorable press coverage. By the end of the campaign it would have the editorial endorsement of every major state paper.

To counter this, Frank Schubert, who ran the successful Proposition 8 campaign in California, was brought in to manage the repeal campaign. Schubert emphasized an issue that had been used in the California campaign, one that Malone had also raised: How would marriage be taught in the schools?

A series of TV ads repeatedly made Malone’s argument about how schools would begin to teach gay marriage to students if the law was not repealed. No on 1/Protect Maine Equality quickly ran ads in response, but those ads may have inadvertently reinforced the earlier message.

The response ads cited an op-ed by state Attorney General Janet Mills. “Allowing same-sex marriage does not require teaching gay marriage in the schools any more than allowing divorce requires teaching of divorce in the schools, or allowing adoption requires teaching of adoption in schools,” Mills wrote.

While the gay rights groups argued that that settled the matter, Mills’ statement likely did little to reassure those worried over what would be taught. To say the law “does not require” something to be taught does not mean it won’t be taught, as the Stand for Marriage Maine people pointed out.

The ads were so effective that Sullivan was still steaming about them weeks after the election. “The emphasis of their campaign was to try to distract away from the real issues about marriage equality and make the campaign about a bogus issue of marriage equality and what would be taught in Maine schools. This is a tactic they imported directly from the campaign in California,” he said.

A TIPPING POINT IN THE RACE

That argument got harder to make in the wake of the case of Don Mendell. He was a high school guidance counselor who had appeared in one of the ads urging the repeal of the law. Subsequently a school teacher filed an ethics complaint against him based on his appearance in the ad. The state requires guidance counselors to be licensed social workers. The complaint could have cost Mendell his license and therefore his job.

No on 1/Protect Maine Equality said the complaint was filed independently of them and later issued a statement opposing the ethics filing. But the pro-repeal side seized on it as proof of how the law could be used to punish people who were publically critical of gay marriage.

“What [the] complaint is really saying is it’s OK for school counselors to have one viewpoint of marriage. If the opinion is marriage should be between one man and one woman, then, according to the complaint, you shouldn’t be a counselor. That’s a chilling thing and also sends a real warning to anybody in Maine,” Scott Fish, a Stand for Marriage Maine spokesman, told the Morning Sentinel.

Gallagher believes the news of the ethics complaint, which broke in the last week before the campaign, may have been the tipping point in the race.

“This story broke all over Maine and [Mendell] turned out to be very effective in talking about why this was wrong,” she said.

Equally important is the fact that gay marriage, while its support has grown in recent years, just isn’t as popular as many of its supporters like to claim. An August 2009 poll by the Pew Research Center found that 53 percent of Americans oppose gay marriage, whereas only 39 percent are in favor of it. The same poll found that 49 percent consider homosexual behavior “morally wrong.”

This news was obscured by the politically correct spin Pew put on its own data. The headline on the report was: “Majority continues to support civil unions.”

After the Maine repeal, Marc Mutty, public affairs director of the diocese, credited that quiet opposition with their victory.

“We all knew we were the little guy going up against the big guy, but we prevailed. We prevailed because the people of Maine—the silent majority, the folks back home—spoke with their votes,” Mutty said, according to the Bangor Daily News.

Connolly ruefully agreed, explaining in a column for the Huffington Post: “It’s clear that polling research, both ours and others’, did not capture the intensity of Yes on 1 support…. We weren’t alone: our opponents, political observers, and field operatives all believed a high turnout benefited the No on 1 vote. With voting approaching 60 percent in Maine, it’s clear that wasn’t true.”

Some gay marriage backers lashed out in anger. “In the future those who oppose gay marriage now will appear as ignorant, mean, and foolish as those who opposed interracial marriage 50 year ago,” wrote Michael Stone in the Portland Progressive Examiner.

But others openly wondered if the gay marriage crusade was worth it. “Throughout this and other gay-marriage campaigns, some queer activists have expressed their own discomfort about feeling obligated to fight for an institution about which they feel ambivalent while other essential battles—against HIV/AIDS, homelessness, domestic violence, and general discrimination—struggle for money and media attention,” wrote Deirdre Fulton in the Portland Phoenix.