Gay marriage initiatives on four states' ballots

Ballot initiatives in three states would make gay marriage legal; a fourth would ban it. Who's fighting this battle, and why? Photo: Associated Press

WASHINGTON, D.C., October 24, 2012 — Same-sex marriage initiatives will appear on the ballots of four states next month: Maine, Maryland, Minnesota and Washington. The Minnesota initiative would ban same-sex marriage via constitutional amendment. The initiatives in the other three states would allow voters to approve such marriages.

In the six states that currently permit same-sex marriage, it was either approved by the legislature or mandated by the courts. It has been rejected every time it’s appeared on a state ballot, 32 times so far. If it passes in any of the state elections in November, it will be the first time it has been approved by public referendum.

Language in the Maryland and Washington bills would explicitly exempt clergy and churches from having to perform marriages in violation of their religious beliefs. Maryland’s Civil Marriage Protection Act “protects clergy from having to perform any particular marriage ceremony in violation of their religious beliefs; affirms that each religious faith has exclusive control over its own theological doctrine regarding who may marry within that faith; and provides that religious organizations and certain related entities are not required to provide goods, services, or benefits to an individual related to the celebration or promotion of marriage in violation of their religious beliefs.” 

Washington’s Referendum 74 would “preserve the right of clergy or religious organizations to refuse to perform, recognize, or accommodate any marriage ceremony.” Maine’s Question 1 asks merely, “Do you want to allow the State of Maine to issue marriage licenses to same-sex couples?” 

Maryland and Minnesota both currently ban same-sex marriage, while Washington and Maine recognize same-sex domestic partnerships. Washington’s referendum would legalize same-sex marriage but preserve domestic partnerships only for seniors.

These initiatives are drawing heavy fire from conservative religious groups. The Minnesota anti-same-sex marriage initiative has the backing of the Catholic Church, which is also backing campaigns in the other three states to kill their ballot measures in support of such marriages. The National Organization for Marriage is also fighting gay marriage in all four states, and is providing much of the funding for the effort.

Frank Schubert, who ran the successful campaign to pass Proposition 8 in California, is chief strategist for the anti-gay-marriage forces in all four states. Schubert, a former public relations executive, is a consultant for the National Organization for Marriage. His campaign ads have been effective at creating a distinction between opposition to same-sex marriage and dislike of gays. One of his ads in Minnesota declares, “Everyone has a right to love who they choose, but nobody has a right to redefine marriage.”

The notion of “redefining marriage” is a slippery one. Marriage in the United States isn’t quite the same as marriage in Europe. In the U.S., religious authorities can perform legally binding wedding ceremonies, while in most of Europe they cannot. There, a civil marriage creates the legal contract between husband and wife, while the religious ceremony serves sacramental purposes. If you wish to be legally married in the eyes of the state and the church, you must endure two ceremonies.

The definition of marriage in the U.S. is far from traditional. It involves a fusion of civil and religious definitions of marriage into one, making clerics into servants of the state. Because the objections to same-sex marriage are largely religious, an obvious answer to religious objections would be to follow the European model and split the two apart again. Religions should perform weddings as they please, between men and women in any permutation they please according to any criteria they please. That is a matter of religious freedom.

What the state recognizes as marriage is a different matter. In a society based on the idea that the Constitution doesn’t create rights, but rather lays out rights that must be protected, a right can only be restricted when restriction serves a compelling social need. That, at least, would be the default (American) conservative position. In other words, what isn’t expressly forbidden is allowed. This is in contrast to the position that what isn’t expressly allowed is forbidden, or that rights are granted by the state, not protected by it.

It is in fact a huge social shift to include same-sex marriage in our definition of legal marriage. It doesn’t, however, require a religious redefinition of marriage (religions define marriage as they please). The reticence of many people to make that leap is understandable, and any changes in marriage laws should take into account anxieties that marriage might be weakened. It must not be. Marriage is important to the health of our society, and any changes to the law should ensure that it be strengthened, never weakened.

That doesn’t, however, preclude same-sex marriage. There is no evidence that legalizing same-sex marriage is likely to weaken the institution, though admittedly there is little data on the subject. Opponents of same-sex marriage should be required to demonstrate that it would cause harm to society, not simply offend their beliefs about what a marriage should be, before we ban it. 

There is plenty of evidence that marriage is in trouble, and that this is bad for kids and the future adults they will become. Proponents and opponents of same-sex marriage should both be concerned about adjusting laws to make civil marriages (the only kind the law should be concerned with) more stable. The causes of instability aren’t found in the gay community, but in our laws. In terms of infidelity, divorce rates, marriage rates and duration, marriage started breaking down well before gays even dared come out of the closet. 

The trend of popular opinion is in the direction of same-sex marriage. The odds are good that same-sex marriage will eventually be a legal option in most states. The efforts of the warriors in this battle would be better spent in trying to find ways to make that happen in ways that are good for married couples, families, and kids. It should not be a conservative-liberal or GOP-Democratic issue, lest like abortion it become another permanent fracture line in our political landscape. It doesn’t have to be that way, and for the good of everyone, we should work to ensure that it not be. 


James Picht is the Senior Editor for Communities Politics and teaches economics at the Louisiana Scholars’ College in Natchitoches, La., where he went to take a break from working in Moscow and Washington. But he fell in love with the town and with the professor of Romance languages, so there he stayed. Now he teaches, annoys his children, and makes jalapeno lemonade. He’s opposed to letting stupid people marry. He tweets, hangs out on Facebook, and has a blog he totally neglects at



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Jim Picht

James Picht is the Senior Editor for Communities Politics and teaches economics and Russian at the Louisiana Scholars' College in Natchitoches, La. After earning his doctorate in economics, he spent several years working in Moscow and the new independent states of the former Soviet Union for the U.S. government, the Asian Development Bank, and as a private contractor. He returned to Ukraine recently to teach principles of constitutional law and criminal procedure at several Ukrainian law schools for a USAID legal development project. He has been writing at the Communities since 2009.

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