Maine’s new marriage law in context

By Emily Shaw, Special to the BDN
Posted Jan. 08, 2013, at 12:05 p.m.

On Dec. 29, Maine became the seventh state to permit same-sex couples to marry and the first to legalize same-sex marriage through popular vote. While advocates of marriage equality are rightly celebrating this momentous event, it’s also important to explore the meaning of this outcome in broader context. In fact, because of the multiple political dimensions implicated in this change, it is worth exploring our new marriage law in several broader contexts.

Regional context

With Maine’s legalization of same-sex marriage, we join the rest of the Northeast (with the present — and likely short-lived — exception of Rhode Island) and parts of the West Coast in allowing gay couples to marry. Meanwhile, this regional trend runs up against an earlier and opposing regional trend to ban same-sex marriage. The mid-2000s witnessed a wave of state-level amendments in which states across the southern and central U.S. adopted constitutional bans on same-sex marriage. The regional element of both supporting and opposing movements remains strong.

While the West Coast states of California, Washington and even Oregon (which passed a marriage-ban amendment in 2004) have moved or are now moving towards permitting same-sex marriage, North Carolina passed the country’s first new same-sex marriage ban amendment in four years. Seven of the 10 states with the greatest public opposition to same-sex marriage are in the South, while nine of the 10 states with the greatest public support for same-sex marriage are in the Northeast. This regional consolidation of public opinion on this issue reflects regional political trends on other matters, including recent partisan movements consolidating Democratic control of state legislatures in the Northeast and Republican control of state legislatures in the South.

Constitutional context

The U.S. Supreme Court takes up two cases on same-sex marriage this year. One concerns California’s “Proposition 8,” the state’s constitutional ban on same-sex marriage, and the other concerns the federal Defense of Marriage Act. Neither ruling would directly affect Maine’s same-sex marriage law as it was passed as statute rather than as result of a judicial decision. However, a Supreme Court decision to overturn DOMA would allow Maine’s same-sex married couples to enjoy the same federal marriage privileges that heterosexual married couples do. A ruling to overturn DOMA may also open the question of whether, in accordance with the Constitution’s “full faith and credit” clause, all states must also recognize same-sex marriages solemnized in other states.

An affirmative resolution to that question would ensure that same-sex married couples from Maine could leave the state with their union intact. Potentially even more significant, it is possible that the court’s decision on the California marriage amendment could determine that all same-sex couples have the right to marry as a matter of equal protection under U.S. law. Many observers see this as an unlikely outcome, however, predicting that the court will further weaken or overturn DOMA, while permitting each state to determine its own course on same-sex marriage.

Context of national public opinion

Polls on same-sex marriage demonstrate strong generational differences, with younger voters being more than twice as likely to support same-sex marriage as older voters. President Barack Obama’s decision to publicly support same-sex marriage may have also influenced opinion among liberal Democrats who showed more support of same-sex marriage following his announcement.

The effect of these and other factors can be seen in the 2012 passage of a tipping point in national opinion polls. While a majority of respondents to national polls opposed legalizing same-sex marriage in 2004, majorities began supporting legalizing same-sex marriage, per national polls, as of 2010. By 2012, national polls routinely showed majority support for legal same-sex marriage. In this sense, Maine’s 2009 and 2012 ballot votes mirrored a national movement across the median line of support for same-sex marriage.

Republican context

With the national GOP continuing to strategize new approaches to the changing political landscape, we may witness the party’s evolution on same-sex marriage. Maine Sen. Susan Collins’ sponsorship of an immigration bill permitting same-sex couples to petition for a foreign-born spouse’s legal status indicates an opening in the party line. Young Republican voters are, at present, nearly as likely as older Democratic voters to support same-sex marriage; women are generally more likely than men to support same-sex marriage. These are two groups that the party must energize in order to regain ground. With opposition to same-sex marriage declining even among the most conservative groups, Maine’s libertarian-leaning Republicans — who prefer a government that stays out of private lives — might have good reason to suggest that as Maine goes, so goes the party.

Emily Shaw is an assistant professor of political science at Thomas College in Waterville, where she focuses on state and local politics. She is a member of the Maine Regional Network, part of the Scholars Strategy Network, which brings together scholars across the country to address public challenges and their policy implications. Members’ columns appear in the BDN every other week.

http://bangordailynews.com/2013/01/08/opinion/maines-new-marriage-law-in-context/ printed on September 18, 2014