The Power of Citizens' Initiatives and the Marriage Vote in Maine

JURIST Guest Columnist Jennifer B. Wriggins of the University of Maine School of Law says that the legalization of same-sex marriage in Maine through a citizens' initiative is a significant milestone and model for other states seeking to legalize same-sex marriage...

Just after midnight on December 29, 2012, same-sex couples became eligible to marry in Maine, and marriages celebrated elsewhere will be valid in Maine. How did the nation's most rural state come to support marriage licensing for same-sex couples by a margin of 53 percent to 47 percent in November, particularly after voting against marriage in 2009? This vote came from a citizen's initiative petition for a law which had been signed by over 105,000 voters and certified by the state's secretary of state. Of the three states that passed marriage measures in November, Maine's was the only initiative. Citizens in Maryland and Washington state also voted, as did citizens in Maine's 2009 referendum, whether or not to repeal a legislative enactment.

The new law's title is crisp and descriptive: "An Act to Allow Marriage Licenses for Same Sex Couples and Protect Religious Freedom." The reference to "marriage licenses" clearly connotes that only civil marriage and not religious marriage is at issue — a point of confusion for voters in 2009. The initiative allowed marriage for same-sex couples, added a religious exemption and repealed operative parts of a marriage ban enacted in 1997.

The law's title clearly identified that initiative proponents were supporters of religious freedom. In substance, the law clarified that clergy and religious institutions could refuse to perform or host marriages in accord with their religious beliefs. The lead signer of the initiative, a Methodist minister whose own church opposes religious marriage rites for same-sex couples, cited the religious exemption as crucial to clergy support. The religious exemption sets forth existing First Amendment protections allowing religious denominations to make their own choices about what marriages to perform, and it provides that no church or religious institution must "host" any marriage — even when that institution rents its facilities to the general public. Underscoring the point, a religious institution's refusal to "perform or host" a marriage "cannot be the basis for a lawsuit or liability and does not affect the tax exempt status" of the religious institution in question. Apart from this minor modification to the non-discrimination law in public accommodations, existing non-discrimination laws affecting housing, public accommodations, credit and employment stayed on the books, unchanged.

A little background highlights the significance of the vote. The 1997 state ban on same-sex marriage, an initiative sponsored by "Concerned Maine Families," had been devised specifically to "inoculate" the state from the "threat" of "same-sex marriage." As other groups did in other states, "Concerned Maine Families" argued that the 1993 Hawaii Supreme Court decision in Baehr v. Lewin, which came near to allowing marriage for same-sex couples, created an urgent need for "protection." After the group gathered sufficient signatures to force a vote, the legislature was required either to pass it and bypass the vote, or reject it and allow the vote to go forward. The legislature passed the law and then-Governor Angus King (now a US Senator) let it become law without his signature.

Rather than mount a state constitutional challenge to the new law, supporters of marriage equality organized and worked hard for the next fifteen years to win the "hearts and minds" of the people with a variety of legislative and public engagement efforts. Advocates' first major victory on marriage was followed by painful defeat. In 2009, the Maine legislature repealed the 1997 law and became the first state in the nation to pass a marriage law and have it signed by the governor. Opponents promptly initiated a "people's veto" repeal referendum, blocking it from going into effect. After a campaign featuring television ads claiming that "homosexual marriage" would be taught in schools, that churches could lose their tax-exempt status, and that a flood of lawsuits would ensue, voters in 2009 repealed the law by a margin of 53 percent to 47 percent.

Advocates learned important lessons in that vote. In early 2010, they started a state-wide effort to have conversations with conflicted or unsupportive voters focusing on finding common ground and shared values about why marriage matters. Ultimately, the largely volunteer effort resulted in over 160,000 conversations with those conflicted or unsupportive voters — 17 percent of all registered voters. Advocates discovered many unlikely supporters along the way. Some were later featured in television ads expressing their love for their gay family members or friends and their wish that they could share in the freedom to marry. The ads featured a World War II veteran and his wife at the dining room table with four generations of their family talking about their lesbian granddaughter and her partner, firefighters talking about one of their brothers on the force and an Episcopal priest whose son had just returned from military service in Iraq but who did not himself enjoy the freedom to marry here at home. One rural father and his wife simply stated: "We have a set of twin boys [who are now adults], one is straight, one is gay [and] marriage matters to both of them." A large and diverse coalition, including the Religious Coalition Against Discrimination and Catholics for Marriage Equality, played a visible role in the campaign. The campaign focused on love, family and commitment rather than rights or legal equality.

Does the Maine vote mark a turning point in the national quest for same-sex couples to marry? The Maine vote certainly is significant, and reflects amazing change over a decade and a half. But nothing is inevitable. Turnout was high from the presidential election with a president popular in Maine who had recently come to support marriage and shared his own journey in arriving at that support. (President Barack Obama won Maine's popular vote with a margin of 56 percent to 41 percent). Also, Mainers are more accustomed to voting on issues pertaining to the lesbian, gay, bisexual and transgender (LGBT) citizenry, since anti-gay groups have forced popular votes on legislation for over 20 years.

Maine provides a powerful example that a citizens' initiative petition can be used to grant rights at the ballot box rather than to preempt protections or reverse rights granted by legislatures, marking a huge milestone and creating momentum for other states. The example of Maine shows both that enough voters can be persuaded to support marriage equality to win, even in some surprising places. It also shows that superb ground organization and tenacious, consistent work are essential for victory.

Jennifer B. Wriggins is the Sumner T. Bernstein Professor of Law and Associate Dean for Research at the University of Maine School of Law in Portland, Maine. She is an expert in family law and previously served as an Assistant Attorney General in the Civil Rights Division of the Massachusetts Attorney General.

Suggested citation: Jennifer B. Wriggins, The Power of Citizens' Initiatives and the Marriage Vote in Maine, JURIST - Forum, Jan. 17, 2012, http://jurist.org/forum/2013/01/jennifer-wriggins-marriage-maine.php.



This article was prepared for publication by Alex Ferraro, an assistant editor for JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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