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Gay groups say loss won't alter strategy

By Ashley Surdin
Washington Post Staff Writer
Thursday, November 5, 2009

Gay rights advocates across the country are regrouping after a crushing defeat at the ballot box in Maine, pledging to continue their state-by-state effort to promote marriage equality and to turn their attention to a federal court case in California.

On Tuesday, Maine became the 31st state to block same-sex marriage through a public referendum. Just over half the voters there repealed a state law that would have allowed same-sex couples to wed, a statute passed by the legislature in May and signed by Gov. John E. Baldacci (D). The law had been on hold, pending the vote.

Gay rights advocates had been optimistic about the Maine referendum, having collected more money, political support and volunteers than in other campaigns nationwide. Polls leading up to the vote indicated a dead heat on Question 1, as the measure was known.

Courts and legislatures have made it possible for gay men and lesbians to marry in five states, but Tuesday's results mirror what has happened in every state where the question of same-sex marriage has gone before voters.

"I think the reality is that we came very close but didn't succeed in dispelling the distractions and fears that are keeping a small slice of people from treating others fairly," said Evan Wolfson, executive director of Freedom to Marry, a national gay rights group. Wolfson, as well as spokespeople for other gay rights organizations, blamed an opposition ad campaign for stoking voters' fears.

The campaign against same-sex marriage in Maine drew heavily from a similar effort in California last year; there, a ballot measure known as Proposition 8 overturned the state Supreme Court ruling allowing such unions. Maine voters were exposed to TV commercials, such as one featuring parents lamenting that their children were being taught about same-sex marriage in school, that were nearly identical to ads used in California.

For the gay rights movement, the defeat is another setback to its long-held strategy of building the case for marriage equality state by state. Historically, the tactics have been to target places where conditions seem favorable, and Maine, characterized by its governor as a libertarian state, seemed to fit that criterion.

Still, advocates say the strategy remains effective. They point to Tuesday's balloting in Kalamazoo, Mich., where voters approved an anti-discrimination ordinance that provides gays protections in employment, housing and public accommodations. Another victory appeared to be likely in Washington state, where incomplete returns indicate that a majority of voters have approved the legislature's expansion of domestic partnership rights.

Advocates say there was a partial victory even in Maine, where the vote was closer than it had been in previous campaigns.

"We're hopeful that it's a signal that there is increasing support for gay couples to marry," said Dan Hawes, field director for the National Gay and Lesbian Task Force. "Nationally, we're going to continue education efforts to move the needle of public opinion, especially in California."

California remains a key battleground. Some gay rights organizations are considering putting the same-sex marriage issue before voters there again as early as next year.

But most of the focus on the state stems from a federal lawsuit challenging Proposition 8 that is expected to go to trial in January. Lawyers David Boies and Theodore B. Olson, onetime opponents in the legal battle over the 2000 presidential election, are representing same-sex couples in the case, arguing, among other things, that Proposition 8 violates gays' right to due process and equal protection under the Constitution.

The federal case marks a shift in direction for the gay rights movement. Activists and legal strategists historically have avoided taking the issue to a narrowly divided Supreme Court, fearing a major setback. And though not all gay rights advocates agree on the timing, there is a growing consensus that there may never be a perfect time for a federal challenge.

"The whole idea that somehow you have to choose between federal and state work is a false 'either or.' The reality is, every movement needs to do both," Wolfson said. "You don't win on the federal level without engaging in those conversations and legal victories in states and communities. At the same time, you want to be part of a national conversation that helps create a climate for more states to move in the right direction."

The increasing push for change on the federal level has been heightened by arguments that President Obama has not adequately addressed gay rights. One group, Equality California, has urged him to file a brief in federal court challenging Proposition 8.

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