“As Maine goes, so goes Vermont.” Was the gleeful taunt of Democrats after those were the only two states to vote against Franklin D. Roosevelt in 1936.

Now the question is: as Vermont went (and New Hampshire, too, this time), will so go Maine?

Vermont went first in April, becoming the first state to legalize same-sex marriage by legislation unaffected by court order. New Hampshire and Maine followed weeks later, but Maine is one of those states that empower the general public to overturn legislation by referendum.

A vote to overturn this law is on the ballot ten days from now. It’s Question 1, and it’s close. The last poll, by Public Policy Polling (PPP) of Raleigh, N.C., released Wednesday morning, showed 48 percent of Maine voters in favor of overturning the law, 48 percent opposed.

In one way, it was close in Vermont, too, with just enough members of the House voting to override Gov. Jim Douglas’s veto. But just enough was 100 out of 150 House members, after an easy override vote in the Senate. Just judging by the Legislative margin, Vermont’s approved of gay marriage wasn’t close at all.

But Maine is not Vermont, and vice versa. For starters, Vermont’s constitution doesn’t bother with referendums, or referenda, as the fancy folks say. During the marriage debate – as during the civil unions dispute of 2000 – some opponents argued that “the people” should have the power to overturn the new laws, or at least to register their views in an advisory, officially non-binding, vote.

What’s happening in Maine right now shows why that may be a bad idea.

Not that the referendum campaign has torn Maine apart. At least viewed from afar (really, reporters should go on site for stories about political campaigns, but in this case a trip proved impractical), the campaign seems to be taking place with at least a minimal amount of civility, and a local onlooker agrees. Intense it may be, but, in the words of Portland Press-Herald columnist Bill Nemitz, it “hasn’t turned all that nasty.”

Still, there are reasons the Founding Fathers set up a system of representative, rather than direct, democracy. It wasn’t just that government by plebiscite could lead, in James Madison’s words, to a “tyranny of the majority.” It was also that it provided an incentive for political combatants to accentuate the visceral – if not the primitive – and downplay the rational and the civil.

Some of which is happening in Maine, in part because the folks there may in fact have been influenced by what happened here.

One reason this year’s marriage debate aroused less passion than Civil Unions did in 2000 was that, for most Vermonters, the impact of Civil Unions was…well, it wasn’t.

A phenomenon (or absence of phenomenon) most notably reported not by a gay activist, but by Tom Torti, executive director of the Lake Champlain Regional Chamber of Commerce, who noted that after Civil Unions took effect, “the sun rose, people went off to work, businesses continued to locate here, tourism continued to flourish and…the doomsday scenarios that were pronounced failed to materialize.”

Hence the political pickle in which gay marriage opponents find themselves. They can count on a hard core of supporters who simply believe, for religious or other reasons, that homosexuality is wrong, or at least that it should not be endorsed by society. But that’s probably not a majority in any state in New England or elsewhere in the Northeast. To win, then, the opponents (in Maine, that means the proponents of a “yes” vote in the referendum) have to convince middle-of-the-road voters that legalizing same sex marriage won’t just legalize same sex marriage, but will bring about other, undesirable, consequences.

They tried that in Vermont, arguing, for instance, that clergymen might face “hate speech charges” if they read certain parts of the Bible in church, or that society would “lose all legal rational for limiting the size of families.”

None of that worked because none of it was true, and legislators, who had both the time and the ability to sift through the facts, could figure out it wasn’t true.

Voters are not legislators. They have jobs to go to, kids to raise, bills to pay. Nor are they trained to parse the fine print of legislation. So they can be easier to persuade, convince, or worry.

As the Maine campaign heads for its finish, gay marriage opponents are increasingly concentrating on their argument that the law will be “pushed onto Maine students” because the schools will “teach homosexual marriage.”

The law passed by the Legislature says nothing about schools or curriculum.

But in several states, with or without legal same sex marriage, schools are increasingly treating homosexuality as “part of the social norm,” as one anti-gay marriage writer put it, and Scott Fish, the spokesman for Stand for Marriage, Maine, said legalizing gay marriage would only hasten that trend.

Conceding that “homosexual marriage is being discussed in Maine schools to some degree already, usually in family life education courses,” Fish said that “common sense says that if it is legalized the discussion will broaden.”

Furthermore, he said parents can now make sure their children “opt out” of these classes, an option they might not have if gay marriage became legal. But several prominent lawyers, including two former Maine attorneys general, issued a memorandum insisting that legalizing gay marriage would have no effect on the curriculum, or on parental “opt out” rights.

Even if they’re right, the school allegations could be politically helpful to proponents of the referendum. Even if parents aren’t sure that the “Yes on Question 1” side is right on the facts, they might vote ‘yes’ if they’re not entirely convinced to the contrary.

As with all close elections, this one might depend on turnout, and here the pro- gay marriage “vote no” faction may have the advantage. It has more money, and at least as much enthusiasm. It also has the support of what might be considered the state’s establishment – most office-holders, educators, business executives, newspapers.

Then again, that’s not always an advantage.

There having been no post Friday, and there being several loose ends to tie, let’s tie them.

A couple of corrections. Whoever read the April 6 Post (A Few Final (One Hopes) Musings on This Marriage Business) before 10:30 AM or so saw a reference to the Founding Fathers creating our system of government tin the late 1770s.

Yeah, that’s when the Revolution started, so technical accuracy may be claimable. But the Constitution was written in the late 1780s; there’s accuracy that need not be claimed, being unassailable.

Until corrected (when both errors were noted that morning) the same post made the National Organization for Marriage ten years older than it is. It was founded in 2007, not 1997.

(We will return to the subject of this organization shortly)

The next day’s post (We Can Afford It) prompted a helpful but challenging comment from policy analyst Doug Hoffer,. The challenge was to the conclusion that whether a $75,000-a-year household pays more in state and local taxes in Vermont than it would in most other states “probably depends on how big it is, where it lives, and other variables.”

“There’s no need to guess,” he said, pointing to a Joint Fiscal Office Study showing that at both $40,000 and $80,743, Vermonters pay less than households in eight selected states, more than their counterparts in only three.

True, and interesting. But that JFO study dealt with only twelve states. The other eleven were chosen because they were deemed comparable, not out of a hat, but there are still 38 other states not included in the analysis.

Also, as Hoffer acknowledged, the study doesn’t deal with property taxes, Vermont’s or anywhere else’s. Considering the “income sensitivity” provision (apparently unique to Vermont) of the statewide school income tax, putting the   property tax comparisons into the analysis would in all likelihood still leave the typical lower or middle-income Vermonter paying less than folks in other states.

(To see the whole comment, just scroll all the way down to the end of the last post on this page [A Day to Remember] and click “older entries.” It’s the very next post. Click on “1 comment” at the bottom of it).

But isn’t it time Vermonters (and everyone else) stopped comparing tax liabilities? It’s simplistic if not dishonest. We plan to return to this subject in greater detail in a later post, but just for starters: in most of the states in which a person is likely to pay less in taxes than he/she pays here, he/she is also likely to earn less income. Paying a smaller percentage of a smaller total can easily leave him/her with….less money to spend

Back for a moment to the April 6 post, which inspired a comment from a reader who identified him/her self only as “Bokweb,” but who may be a lawyer, or who at least seems familiar with the law.  The post, he said, got the law wrong.(To read the whole comment, follow the same procedure explained above).

Specifically, Bokweb says it was an error to conclude that the Mormon Church probably “endanger(ed) its tax exempt status” when it set up a political organization to lobby against gay marriage in Hawaii in 1995.

That organization, like its successor, the above-mentioned NOM, was “established as a 501(c)(4) ‘community welfare’ organization under the Internal Revenue Code. A 501(c)(4) can make legislative lobbying its principal activity,” Bokweb wrote, and  ”a church, as a 501(c)(3) organization, may also engage in a certain amount of legislative lobbying – including paying a 501(c)(4) like NOM to lobby on its behalf – with the limits defined as an ‘insubstantial’ percentage of annual expenses.”

At this point, I’m not going to do the reporting required to confirm Bokweb’s interpretation. He seems to know what he’s talking about. Whether what actually happened in 1995 (or in 2007 when NOM was created) met the test of an “insubstantial” percentage of expenses is another question.

Then there remains the broader political question of how deeply should religious organizations insert themselves into the political debate even if they scrupulously obey the law.

That’s easy: as deeply as they choose. If enough people find a church’s political activity distasteful, they will react against it. The church’s political activity will then become politically counter productive.

When will voters react negatively to a church’s political activity? We may be about to find out. NOM has produced an anti-gay marriage commercial, so far only on the Internet via You-tube. It shows people claiming to be “a California doctor,” and “a Massachusetts parent” worrying that gay marriage will “change the way I live.”

But everyone in the commercial was an actor. Somebody got a tape of an audition and posted that tape on You-tube, though it has apparently been expunged from the system. (Here’s the link by which it was available the other day, but the ad seems to be gone).

In response, an organization called Californians Against Hate has prepared ads with the tag line, “The Mormons are Coming,” a la the Longfellow poem about Paul Revere, on the assumption that there will be a backlash against the church’s political actions.

Fred Karger of the California group said both sides were preparing to fight it out in all the Northeastern states, including Vermont, where the fight seemed to be over and done with last week when the Legislature overrode Gov. Jim Douglas’s veto of the bill legalizing same-sex marriage.

Maybe. And maybe not.

Beth Robinson

First of all, several readers wrote in unhappy about (though not refuting) the assertion in Friday’s post (scroll down; it’s right below this one) that if the Mormon Church did in fact set up the National Organization for Marriage, it acted within its rights..

Though worded differently, the several emails made the same two points: (1) Doesn’t this kind of political activity by a church violate the spirit ,if not the letter, of church-state separation; (2) Doesn’t a church endanger its tax-exempt status when it engages in such political activity?

The answers are yes and yes. In fact it’s hard to see how the Mormon Church was not practicing politics on “company” time and using church facilities back in 1995, when it set up a similar group called Hawaii’s Future Today to help defeat same-sex marriage in that state.

Assuming that the letters obtained by Fred Karger of Californians Against Hate are not forgeries (and no one has claimed they are), church officials put the group together by communicating with one another on stationary bearing the “Church of Jesus Christ of Latter Day Saints” letterhead.

One of the letters, on February 11, 1997, was sent to Gordon Hinckley, then the Church’s president. It suggested using the Hawaii organization as a model for establishing a similar group in California.

It isn’t clear whether anything can be done about this kind of violation. Eliminating the tax exempt status of religious organizations seems politically impossible, and maybe a bad idea, anyway. Not just the churches, but also the elaborate social service systems they support, would be discombobulated if taxpayers could no longer deduct their contributions to religious institutions.

Perhaps more realistic (though also politically tough) would be simply to ban religious organizations and clergy from political activity while on the job. The defenders of various faiths object that this limits their free-speech rights. But law enforcement officers may not engage in most political activity. Neither, come to think of it (though in this case it is not a matter of law) may journalists, who can be fired for advocating candidates or causes. It isn’t really a deprivation of rights because nobody has to be a cop, a reporter, or a minister.

Second, let’s deal just a little more with this “referendum” business. A recent post noted how ironic (deceptive?) it was that conservatives – traditionally foes of ‘government-by-plebiscite’ – were calling for a non-binding referendum on the gay marriage question. But perhaps a little skepticism should also be applied to the other side’s reply — that gay marriage is a basic right, and therefore not subject to majority decision.

“We don’t typically think of individual rights as appropriate fodder for public referenda,” wrote Vermont Freedom To Marry’s Board Chair Beth Robinson. Elsewhere, advocates of gay marriage have expressed the same outlook even more forcefully.

“Equality is a basic value underlying human rights standards and cannot be retracted at the whim of a simple majority,” is the way Human Rights Watch put it.

But on the face of it, here in America, saying that the people have no right to make any major decision is a pretty tough sell. The ‘whim of a simple majority” sounds  both dismissive and elitist. “Here the people rule,” said President Gerald Ford as he took office in 1974. No one really disputes that. Under the system of government the Founders designed 220 or so years ago and still in operation, “the people,” if they really want to, can do away with individual rights altogether by Constitutional amendment.

But not quickly or easily. There’s the genius of the system those guys put together in the late 1780s, and the better answer to the calls for a referendum. What few like to acknowledge is that the Founders created a truly elitist form of government, one that would be dominated by the real elite – not wimps who eat brie and drive Volvos, but men with immense wealth and power.

Only white males with some property could vote in those days, and even they weren’t trusted to elect U.S. senators or presidents directly. State legislatures chose the senators, and (at first) the electors who chose the presidents. The Founders established checks and balances to restrain all power centers, and there was no power center they feared more than “the people,” especially when in the throes of some public passion.

Such as, for instance, being for or against gay marriage.

The country has grown less elitist and more democratic, but representative democracy retains the power to sift and filter passions. The people will vote on same-sex marriage, on Election Day, 2010, when all voters can throw out the representatives whose vote displeased them.

Whereupon we segue, as the TV folks put it, to another matter about which no one else seems to have examined: which outcome this week is more likely to put the issue to rest, or at least to dampen the debate in the months to come?

Granted, putting the issue to rest has not been a priority of the combatants on either side of the dispute. But some legislators have looked forward to “getting this issue behind us,” and no doubt so have some citizens.

The best way to do that is to pass the bill.

This is not a recommendation to any legislator as to how to vote. As Gov. Jim Douglas said, they all ought to vote for what they think is right. This is just an observation based on political analysis. The analysis concludes that passing the bill will calm things down more (or at least heat things up less) than defeating it.

As noted here Friday, no one expects the gay marriage advocates to let up if they lose. Why would they? They’ve won big majorities in both houses. They have the momentum and the energy. If they lose they will try again in the next legislative session. If they lose there they will fight in next year’s elections.

They will not be alone. Their allies from outside the state have plans to help them. More outside money and more outside political operatives will come to the state on their behalf. So, then, will outside money and operatives on the part of their opponents. Political consultants for both sides will set up shop in Montpelier and/or Burlington. They will establish the tone of the debate. They are not always bound by the standards of intellectual honesty.

Or common decency, for that matter.

But won’t the same thing happen, just in reverse, if the bill becomes law?

Probably not. Because while the path to victory for the gay marriage advocates may not be easy, the path for the opponents (should they have to overturn a law already passed) is pretty close to un-doable.

Vermont does not have referendums. To repeal the gay marriage law, opponents would have to defeat more than 20 representatives and 11 senators. The former task is difficult, the second nigh on to impossible. Six of the senators who voted for the bill are elected at large from Chittenden County. None will be defeated over this issue. That means the opponents have to turn around 11 of the 20 other senator who voted ‘yes.’

Only the knowledge that nothing in politics is impossible prevents calling this task impossible.

The opponents of gay marriage know this. They can raise just as much money as the other side and they are no less committed to their cause. But they are not fools. Their resources are not unlimited, and they have to establish priorities.

Vermont is not likely to be among them. They can write it off. It’s tiny, and it’s weird anyway; it has a socialist senator, for crying out loud. (OK, Bernie Sanders isn’t really a socialist; we’re dealing with perceptions here). Their time and  money would be  better spent in Maine, in New Hampshire, in Iowa, where the state Supreme Court just legalized gay marriage. Chances are, they’ll give Vermont a pass.

Of course, like all prognostications based on political analysis, this one could be wrong.