Can I Marry My Maine Man?

Purely hypothetical. I don't have a Maine man. Or a Pennsylvania man for that matter.

But, on May 6, 2009, Maine Governor John Baldacci signed a bill that had been passed by that state's legislature, which would allow a Maine man to marry a Maine man, and a Maine woman to marry a Maine woman.

Maine's constitution allows initiative and referendum. The referendum process allows citizens to propose by petition that an act of the legislature be repealed. That process is popularly known in Maine as a "people's veto". If a majority of voters concur on election day, the law in question is repealed.

Opponents of the same-sex marriage law successfully petitioned for a referendum on that legislation, which will be held tomorrow. The constitution provides that the implementation of such a law be suspended, pending the referendum.

Nate Silver, in the 538 blog, cites contradictory poll results, but, after doing his usual slicing and dicing of the numbers, concludes that the "no" position (somewhat confusingly, the pro-same-sex-marriage side) seems likely to prevail in a close vote.

Last week, Abby Goodnough explained, in The New York Times, the importance both sides place on the question of whether support for changing the marriage laws is limited to political elites, such as judges and legislators, or is shared by the electorate at large.

One of the judiciary's functions is to protect the rights of minorities against the tyranny of the majority. Therefore, it is legitimate for courts, such as those of Massachusetts, to direct a legislature to put an end to unconstitutional discrimination.

Judges, when acting properly in such cases, are likely to ignite controversies. They should be prepared to withstand attacks, and the system should ensure that their decisions are implemented. But, if they get too far out of step with public opinion, the judiciary might lose its legitimacy. Also, the political branches have methods at their disposal to reverse court decisions, as I described here, here, here and here.

For that reason, it would be an important victory for those of us who support same-sex marriage rights, to show that they can be adopted through the political process, as would be the case in Maine, where the legislature acted of its own volition, rather than in reaction to a judicial mandate, and with the additional legitimacy that comes from confirmation by the voters.