Mourning Gay Marriage in Maine
After 31 defeats at the ballot box, America's gay community can't rely on the majority to promote their right to marry
Tuesday night in Maine, supporters of a state law that would have legalised same-sex marriage lost, 53-47%. Marriage equality advocates had hoped that Maine would be the first state in the US to approve gay marriage in a statewide ballot, but the record of majorities saying no to marriage equality remains unbroken.
After whinging about "activist judges" for a decade, the rightwing has convinced a plurality of Americans that decisions about same-sex marriage shouldn't be made in the courts - and it's because they know, and here is more evidence, that putting the rights of a marginalised class to the majority means those rights will be denied. The judiciary, however, is generally less susceptible to persuasion by expensive campaigns run by the anti-gay industry.
Historically, we have depended on the courts to make decisions about the application of constitutional guarantees in spite of popular opinion, and they have repeatedly secured protections for marginalised groups decades before Congress and state legislatures, which more closely track public opinion, would have done. John Rogers once noted that "when the supreme court struck down the bans against interracial marriage in 1968 through Virginia v Loving, 72% of Americans were against interracial marriage. As a matter of fact, approval of interracial marriage in the US didn't cross the positive threshold until - sweet God - 1991".
That's exactly 30 years after our current president was born to an interracial couple.
Waiting for the whole of society to be on board with granting equal rights to everyone is simply not in our collective best interest. There is no legitimate claim to be made by opponents of marriage equality that their lives will be diminished by extending marriage rights to same-sex couples. Too much evidence to the contrary, even now in their own country (I'm looking at you, Massachusetts), debunks that assertion thoroughly. There is only the reality that people denied their equal rights stand to gain - and that is a net benefit to the entire community.
Sometimes the stragglers at the tail end of this slow march of progress need a boot to get them moving forward. When the legislatures haven't provided it, it has been the judiciary's job to deliver it instead, as marginalised groups were never meant to have no recourse against discriminatory practices, even if the will of the majority is to extend the codified biases in perpetuity. Just because something is popular doesn't make it right.
And so came the howling about "activist judges". But in Maine, it was not left to a judge to decide the fate of same-sex marriage, but instead to the state legislature. And then - what a surprise - that wasn't good enough, either. It still had to be brought before Maine's voters, so that every straight person in the state would be allowed to cast their own opinion on whether their gay neighbours should be allowed their rights, which is only fair. On some planet where "fair" means "deferential to the tyranny of the majority so as not to hurt their precious wee feelings".
This country is not, and never has been, well-served by leaving the civil rights of the minority in the hands of the majority. Putting that up to a vote which is subject to deeply held prejudice is ruling not by democracy, but by mob mentality.
There is, at this point, only one thing to be done: The US Congress needs to repeal the Defence of Marriage Act. It stands, currently, as a wall between gay couples and the courts. Couples have no right to sue if their home state won't recognise the legal marriage they can get in another state.
We need to rescind any and all barriers to marriage equality being decided in the judiciary, lest we allow the anti-gay industry, which funnelled millions from out of state into Maine, to continue calling the shots.
© 2009 Guardian News and Media Limited