The repeal of Maine's gay marriage law by voters Tuesday is forcing gay rights advocates to regroup and recalibrate their strategy. Legal experts say if other social movements are a guide, it should also teach them to be patient.
"Every time people have had an opportunity to vote, they've voted it down," said University of Chicago law professor Gerald Rosenberg. "Is the [Supreme Court] really going to step in here?"
Maine became the 31st state where voters rejected marriage equality for gay couples through a referendum. The defeat -- the first time the vox populi reversed a decision by its own elected representatives -- took gay advocates by surprise. Their side outspent, out-canvassed and outmaneuvered their foes in the state legislature only to lose in the most politically friendly region of the country. Except for Iowa, every state with same-sex marriage is in New England. Since 2004, when a court in Massachusetts became the first to sanction gay marriage, Connecticut, Vermont and New Hampshire have decided through judicial or legislative action to allow same-sex couples to marry.
"It just goes to show that even in a very, very liberal state like Maine, where the legislature and the governor came out and supported it, when people have a chance to affirm traditional marriage, they do it. Thirty-one out of 31 states," said former Republican presidential candidate Mike Huckabee, a social conservative. "While there are many politicians who are going to push this, the people are not accepting of it."
For gay rights activists who have ridden a roller coaster of victories and defeats in Congress, statehouses and at the ballot box, it was clear they had more work to do to nudge public opinion their way.
"None of the great movements toward equality would have passed if they had been subjected to an up or down popular vote in the early stages," said Evan Wolfson of Freedom to Marry, a gay-rights group. "It's very difficult to persuade a majority to just vote to change the way they've been discriminating."
Richard Socarides, a gay rights activist who worked in the Clinton White House, called Maine a setback but not a fatal one. "It's still a question of when and not a question of if there will be full rights for gays and lesbians," he said. "We should have been able to pull it out in Maine, but it may be that same-sex marriage is just on the wrong side of the tipping point."
Voters in Washington state approved a measure to give gay couples all the rights and benefits of marriage, only without the name, but gays have prevailed most often in the courts. It was a decision by the California Supreme Court to allow same-sex marriage there that sparked last November's Proposition 8 ballot initiative that repealed the ruling after more than 18,000 gay and lesbian couples had legally tied the knot.
The votes on Prop 8 and in Maine are the latest examples of popular backlash when judges are viewed as out of the mainstream. Legal scholars note that when the U.S. Supreme Court struck down the death penalty as unconstitutional in 1972, a majority of states soon after passed new statutes to address the justices' concerns about the way it was imposed. The next year, when the high court legalized abortion in Roe v. Wade, it set off a wave of efforts at the state level to restrict the circumstances under which women could legally terminate a pregnancy. "In retrospect, the court didn't realize how big a deal abortion was," said Sanford Levinson, a University of Texas-Austin constitutional law expert.
When the political odd couple of Republican Theodore B. Olson and Democrat David Boies -- the two lawyers squared off against each other in the 2000 Florida presidential election recount -- filed a federal lawsuit earlier this year to throw out the Prop 8 ban on same-sex marriage, many gay rights activists objected. They argued it was too early to fight their way to the Supreme Court, a sharply divided body that often leans right under Chief Justice John Roberts.
Court watchers agree. "Historically, courts have been reluctant to get too far ahead of the crowd on issues like this," said New York University law professor Barry Friedman. "The Supreme Court is going to be extremely reluctant to do anything on this for some time and that's probably good for the gay rights movement."
Rosenberg, a self-described "court skeptic" and author of "The Hollow Hope: Can Courts Bring about Social Change?" said, "The conditions under which courts can promote progressive agendas are very limited." He and others cited several landmark cases in which the country's highest court knocked over barriers but only because most of the country had jumped over them:
-- Brown v. Board of Education, 1954. By the time the court banned segregation, only 17 Southern states mandated that black and white children go to separate schools.
-- Loving v. Virginia, 1967. Just 16 states, mostly in the South, prohibited interracial marriage when the court struck down anti-miscegenation laws.
-- Roe v. Wade, 1973. In the year before the court's controversial decision, nearly 600,000 legal abortions were performed in 16 states where it was either legal or where restrictions had been loosened.
At a time when 20 states have constitutional amendments or laws banning gay couples from marrying, the nation's highest court "will inevitably put its finger up to the wind and say the time isn't right to invest their scarce capital in protecting same-sex marriage," said Levinson. "It's a losing cause right now. The votes are not there" on the court.
Peter Sprigg of the conservative Family Research Council agreed, predicting the fight will continue to play out in the states and not at the high court in Washington. He said the Maine vote could check pressure on legislators in New York and New Jersey -- where Republican Chris Christie ousted pro-gay-marriage Gov. Jon Corzine -- the next likely battlegrounds over the issue.
Friedman, author of "The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution," said gays have time on their side. Polls show young people are more tolerant than their parents or grandparents who show up in greater numbers at the polls. The Supreme Court also has changed with time.
In 1986, at the height of the AIDS epidemic, the court upheld a Georgia anti-sodomy law in Bowers v. Hardwick. By 2003, less than two decades later, it reversed itself in Lawrence v. Texas, ruling that that state's sodomy law was unconstitutional. "This really is an issue where there is an evolution and the court reflects that evolution," Friedman said. "This one's a matter of time."