The gay rights movement was dealt a setback recently as residents of Maine voted not to allow gay couples to be issued marriage licenses in the state. Interestingly though, they also voted to license medical marijuana dispensaries in the state. So, gay couples in Maine: you cannot be married; but you can get stoned in order to stifle your murderous rage at your straight neighbors.
I was surprised by this outcome. Much of my family is located in Maine and they all take a live-and-let-live attitude towards things like this. If gay couples want to settle down and live as married, they don't think it's their business to tell them they can't. Of course, they live in Portland, which voted to allow gay marriage by quite a wide margin. I'm related, by an Uncle, to about half the population of Portland and it's a thriving cosmopolitan city by Maine standards; some of them even pronounce the r's at the end of words ending in r.
The gay rights movement has done a good job of lobbying for these laws; although, maybe not as good as their opponents. I think the first thing they need to do is to make it clear what sort of marriage they want. There are, after all, at least two working definitions of "marriage".
The first thing we call "marriage" is a cultural tradition. In many cases, it's a religious tradition, but not necessarily. By this tradition, the larger community voices its approval about a relationship and welcomes a new family into the community. This definition of marriage, like all cultural traditions, will only change slowly and one mind at a time. It will not be changed by state fiat. And various churches will likely never change how they view marriage. You simply can't legislate thought, and attempts to do so usually amount to cultural imperialism.
On the other hand, with the passing of generations, cultures do change. In fact, the largest change in the definition of marriage (in all of Western history) has already taken place: young people now decide who they want to marry for romantic reasons, instead of their parents telling them who the family wants them to marry. Marriage hasn't been "traditional" in the last few centuries in fact.
And it is a safe bet that, in a year from now, more people who are fine with the idea of a same-sex couple being considered married will be old enough to vote, and more people who can't accept the idea will have died. The people opposed to same-sex marriage are trying to cement their views in the law because they're losing the battle in the culture. People my age generally don't care if gay couples are considered married or not.
The second thing we call "marriage" is a legal definition. This is licensed by the state and, by being licensed by the state, a couple is entitled to a host of legal benefits. This is what the gay rights movement wants to change. At present, only heterosexual couples in Maine can be licensed to wed. There are officials who will perform the ceremony for homosexual couples; however, the state won't issue the license. It is hard to imagine what reason the government has to issue a license to heterosexual couples and not to homosexual couples, aside from specific religious notions about marriage, which the government is not entitled to pass laws to privilege. To that extent, it would seem to be a simple First Amendment issue that should be settled by the courts. Perhaps, someone could make a case that social stability is best served by not issuing marriage licenses to gay couples. In my opinion, letting couples get married is probably more conducive to social stability, regardless of their gender or orientation.
But, if this is a legal issue, it's not clear why the populace should be voting on it in the first place. With these sorts of votes as a precedent, it's fairly easy to imagine a future time of crisis in which the majority "votes" to strip the legal rights of any minority. The protection against that scenario is that the courts are supposed to decide matters like this. Some people have suggested that going through the process of letting everyone and their sister vote on the law will reduce the level of social strife. They point to Roe V. Wade as an example of a law that was passed by the courts, and which has remained controversial ever since. But, there's no reason to believe that two men getting married will forever be as controversial as aborting a fetus. Also, I'm frankly not keen on the idea that the "people" should vote on who they think should have legal protections and who shouldn't. You couldn't get me to vote that anyone couldn't get married; maybe that they couldn't have line dancing at their wedding.
Incidentally, if you'd like to know how laws are made in Maine, here is an online coloring book for children on the subject of How Laws are Made in Maine, apparently illustrated by a sociopath.
Actually, I don't see why people aren't agitating to get the state out of the marriage licensing business altogether. Why should the government decide if I'm married or not? It's an entirely onerous and intrusive bureaucratic process getting the state approve one's marriage- it actually took me three years to prove to the US that I really am married to a Canadian. As for things like hospital visitation rights, they can be tackled one at a time through the courts. But, if the government was put out of the marriage-licensing business altogether, it would solve this problem with, perhaps, a bit less cultural strife. People would, hypothetically, have less reason to think it's their business whether or not two men down the street get married.
Secondly, I understand that many progressives would prefer to settle this issue at the Supreme Court level and be done with it, but if that's not happening, I don't see why people aren't pushing to go the other way. Why not decide the gay marriage question more locally than at the state level? Why should people in Portland, who are fine with gay marriage, have to negotiate with the rural communities in Maine? Why should people in San Francisco have to wait for Orange County to approve of their lifestyle? Why should Manhattanites have to contend with the farmers upstate who are in very different communities with very different values? If we're going to vote over something that should be a judicial matter, why shouldn't every town get to make their own policy about it?
There is already an argument for federalism here. Currently, four states allow for gay marriage. This might not be great, but it means that gay Mainers can move to another state and be married. Or they can come live in Canada! We could use the immigration and they can handle the weather. That's a lot better than waiting until every single state in the union accepts gay marriage. Doing it by town ordinance would be even quicker.
Thirdly, there is a case to be made for separating the cultural and legal versions of marriage altogether and pushing for all the legal rights under a different name. As bizarre as it seems, many people who are opposed to calling gay couples "married" are okay with giving them all of the same legal rights as married people and calling it something else. People do have a sense of justice, after all; but changing the name strikes them as telling them how to think. While marriage-but-not-marriage might sound stupid, it's a workable compromise until people are comfortable with the cultural shift.
I suspect though that the gay rights movement is currently working to change the licensing definition, while hoping to change the cultural definition. What hurts about Maine I would imagine is that the populace has said pretty clearly, "we do not consider your relationships to be valid". That sucks. However, the pragmatic legal issues are more important than the cultural issues; if it takes calling something legally identical to marriage a "civil union", then so be it. Otherwise, I would advise forgetting altogether about the cultural definition and simply go through the courts.
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