Gay-Marriage Activists Look Ahead After Big Defeat in Maine

By MICHAEL A. LINDENBERGER

Mainers' 53-47 vote to reject gay marriage does more than simply slap down a law that just six months ago had made Maine America's second state to permit same-sex couples to wed. With voters thronging to the polls, the closely watched - and ultimately not very close - vote extended the winning streak of gay marriage opponents nationwide, who have now prevailed in more than 30 straight state elections over whether to allow gays to marry. Just like Californians one year ago, Maine voters insisted on having their own say on an issue that simply will not go away.

Watching the results come in at the historic Eastland Park Hotel in downtown Portland, Scott Fish of the Stand for Marriage Maine campaign told TIME the other side had acted with too much haste, and too little respect for voters' wishes. "What's the hurry [for gay marriage]?" asked Fish, whose group began seeking a so-called "people's veto" almost immediately after Maine's Democratic (and Catholic) Gov. John Baldacci signed the gay marriage bill in May.

But Maine's vote, much like all of the states before it, including California's vote on Prop 8 12 months ago, will do little to slow the fight over gay marriage. Not in Maine, where Tuesday's vote is only the equivalent of a veto and can be easily reversed by lawmakers when they next meet, and not in the rest of America, where the issue continues to roil courthouses and statehouses alike. "Ultimately this is going to have to have a national resolution," says same-sex marriage activist Mary Bonauto, one of the nation's top lawyers involved in the campaign to legalize gay marriage. "It's about aligning promises found in the Constitution with America's laws." A leader in Maine's campaign to uphold gay marriage, Bonauto is best known for arguing the same-sex case that led the Massachusetts Supreme Court to strike down prohibitions against gay marriage in a hugely influential 2003 decision that paved the way for that state to become the first to permit gay marriage in 2004.

That decision has been cited in numerous cases that have followed, as the number of states whose courts have demanded equal marriage rights for gays has grown. But those same cases have also helped fuel opponents, who argue gay marriage is being foisted upon America by out-of-touch judges. In order to counter that argument, Bonauto and other gay-marriage activists in Maine who began organizing to press for gay marriage in Maine decided to avoid taking the issue to court. Instead, they set about electing lawmakers friendly to their cause two years ago, and this year successfully convinced the legislature to become the nation's first to establish gay marriage by statute, rather than decree. "Frankly, we had heard the criticisms about going the court route, and so we said, 'Fine, we'll go to the legislature,'" says Bonauto. "And it has been an incredible campaign."

That campaign looked to be winning for much of Tuesday evening. Looking at early vote totals, CNN legal affairs analyst Jeffrey Toobin said if the trend held, the vote in Maine would have enormous implications in favor of gay marriage elsewhere. "That's a big cultural change," he said. "Every time voters have spoken - every time - they have rejected gay marriage. But this shows the country is changing."

But what Toobin and others were seeing early were the returns from the cities, towns and suburbs in Maine. In more rural areas, votes were being counted by hand. By midnight, the momentum had swung the other way, and gay-marriage opponents' lead continued to grow into the morning.

Supporters were left early Wednesday morning looking for silver linings. Eight thousand volunteers manned the campaign to keep same-sex marriage, says Bonauto, and by far most of those people were not gay. "One way or another, after this vote, the people of Maine are not going to allow gay and lesbian people to remain strangers to the law," she says. "Gays and lesbians have met their non-gay neighbors, and they have introduced their families, and their children." In Washington state, voters appeared to have ratified a law passed earlier this year giving its 6,000 registered domestic partners the same state law rights as married couples. Cities as different as Chapel Hill, N.C. and Houston supported openly gay candidates for mayor, though the top-vote getter in Houston will have to win a run-off before she takes office.

Still, with the loss in Maine, the focus inevitably turns back to the courts, and for now that means back to California. That's where former U.S. Solicitor General Ted Olson and powerhouse attorney David Boies have brought their suit insisting that the U.S. Constitution forbids any law that prohibits gay marriage. Bonauto won't comment on the criticism gay rights groups heaped on Olson when he filed the case, saying it was premature given the heavily conservative bent of the federal judiciary. But she said to win across the country, gay rights supporters must press the marriage case wherever the fight takes them, be it in courthouses, state capitols or voting booths. "It's never been an either/or choice," she says. "When the issue is one of social justice, we have to get the judicial branch involved. There is absolutely a role for the courts."

Pushing the issue to the courts, however, has paid uneven dividends for gay marriage supporters. While courts have followed Massachusetts's lead in Vermont, New Hampshire, Iowa, Connecticut and California, voters who have had a chance to weigh in have uniformly rejected that thinking.

Maine was supposed to be different. To begin with, it was the first state to legalize gay marriage by statute, and with the governor's support. When the unprecedented new law was challenged, supporters hoped that political backing from the governor, coupled with Maine's traditionally independent mindset, would provide the breakthrough that gay marriage supporters have been waiting for.

The vote prompted an outpouring of cash and other resources from far beyond the borders of the Pine Tree State. From New Jersey, the National Organization for Marriage sent a $1.8 million check to help defeat gay marriage. Gay couples in California and others still heartbroken over Prop 8 vote last year also sent lots of smaller checks to help bring the 'Vote No on 1' coalition some $4 million. On Tuesday, Californians manned phone banks to help encourage the vote, which Maine's Secretary of State told reporters Tuesday was exceptionally large.

But while money may talk in politics, it rarely has the last word. Just ask outgoing New Jersey Jon Corzine, who hugely outspent his opponent, and still lost.

So what now for gay marriage? More of the same for several more years, to be sure. Gay marriage bills are under consideration in New York and New Jersey, and Washington, D.C., city leaders are mulling whether to expand rights for same-sex couples, too. Olson and Boies' case is set for trial in January, and gay activists could learn soon how valid their fears about the federal judiciary are.