“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.

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.

If not, what’s wrong with you?

It seems that almost everybody who is anybody in Vermont got the calls, by opponents of the gay marriage bill, and some folks were plenty miffed about it. They complained to their local newspaper or the Secretary of State’s office, in some cases suspecting political dirty tricks .

In the blogosphere in and out of Vermont appeared allegations that the National Organization for Marriage, which organized the automated telephone calls, was a “front group” established by the Mormon Church.

But robo-calls, which are used by candidates and causes across the ideological spectrum, are legal, and the NOM seems to have followed the rules by identifying itself at the end of the calls. That’s being transparent, not sneaky.

As to “front groups,” they, too, are legal and used across the political spectrum. Whether this one was started by the Church of Jesus Christ of Latter Day Saints is open to debate. If so, the Church appears to have violated no law.

None of which means that the calls do not portend some difficult days ahead here. Perhaps Vermonters should fasten their seat belts. The state could be in for a politically bumpy 18 months.

Not because there is anything necessarily wrong (though there is certainly something aggravating) with robo-calls. But because they are a sign that political big bucks from outside the state may be coming into it, increasing the likelihood that the discussion over this contentious issue will get more intense, and possibly much more divisive.

The likely impending defeat of the same-sex marriage bill (it passed the House, but with not enough votes to override Gov. Jim Douglas’s promised veto) means that the issue will stay front-and-center until Election Day, 2010. In fact, it might be only a slight exaggeration to suggest that the political campaigns – for governor and for the Legislature – began last night. Considering all the economic and budget battles, it’s too early to say that gay marriage will be the dominant issue. But it will be a big one.

So far this year, outside operatives and outside money have played a relatively minor role in the marriage debate, a smaller role than during the civil unions debate of 2000.

That may not last. Pro gay-marriage forces from California and elsewhere are planning activities throughout the Northeast in coming months

Whether or not the National Organization of Marriage is a creature of the Mormon Church, it is allied with it, and with its prodigious fund-raising powers. The robo-calls of this week were cheap. NOM has the capacity to do much more. In last year’s contentious Proposition 8 campaign in California, which overturned a state Supreme Court decision authorizing gay marriage,  NOM spent more than $1 million.

Whatever the specific impact of this week’s robo-calls, their presence indicates that NOM is likely to continue to be active here. In raw numbers, the dollars spent here will not approach California levels. But they could be more than enough to change the way politics is conducted in Vermont, perhaps just for this election cycle, perhaps for longer.

Nor are the proponents of gay marriage likely to be outspent. This is a battle in which both armies have roughly equal access to money and equal passionate commitment to their cause.

No one expects Beth Robinson and her Vermont Freedom to Marry allies to stop fighting. They got a huge majority in the Senate and a substantial one in the House. Only one office-holder stands between them and victory. They will go after him. So far this year, their side has dominated the debate inside the state’s borders. It’s the opponents who need more outside help. These robo-calls could be the first sign that they are going to get it.

Robo-calls are legal, Constitutionally protected  political activity. They are also probably a waste of time and money.

Yale University Professor Donald Green, the co-author of a book on the subject (Get out the Vote: How To Increase Voter Turnout Brookings Institute, 2008), said studies show that robo-calls do nothing to increase voter turnout, and you “don’t see that much effect on persuasion, either.”

Robo-calls are inexpensive, he said, and politicians who use them are “hoping to get a small effect by paying small amount of money.” But the effect is so small, he said, that even in close races it was not clear that robo-calling was decisive. According to an article in Newsweek last October, half the people who get robo-calls hang up in the first ten seconds.

It’s hard to see how the calls could have been decisive for last night’s vote in the Vermont House of Representatives. The final count was pretty much what had been predicted before the calls began. House members had already been deluged by letters, emails and personal visits from their constituents. It’s hard to believe that any of them didn’t know what the voters wanted.

Robo-calls can be and have been used for political dirty tricks. Often they provide false information about an opposing candidate, or are used as part of a “push poll,” in which respondents are asked questions such as, “would you vote for John Jones if you knew he approved of terrorism.”

But that’s not what the NOM robo-calls did. They urged people who answered the phones to call their legislators (providing the name and phone number of the representative) urging them to “support Governor Jim Douglas” in opposing the same-sex marriage bill.

Then, to comply with federal law, the message identified the calling organization and provided a telephone number, 804-934-1092, in Richmond, Virginia.

NOM does not seem to have violated any Vermont regulation, either. As of yesterday, it had not yet registered as a lobbyist, which it would have to do if it spent more than $500 (not on the calls, but on staff time arranging for the Vermont robo-call operation), according to Kathy DeWolfe, head of the Secretary of State’s Election Division.

As to the NOM-Mormon connection, Maggie Gallagher, NOM’s president, says there is none.

“We’re an inter-faith, secular, organization,” she said. We have Protestants, Mormons, Catholics, Jews, and if you know any atheists who are against same-sex marriage I’d love to talk to them.”

Besides, she said, “there’s no reason why people involved in churches can’t help found secular organizations. There would be nothing underhanded in any church helping to found secular or interfaith organizations.”

The claim that the Mormon Church did start NOM comes from Fred Karger of Californians Against Hate, which opposed the California proposition that outlawed gay marriage. On the organization’s web site, Karger wrote, ” the Mormon church appears to have created the National Organization for Marriage… as a Mormon front group, exactly as they did with a very similar organization called Hawaii’s Future Today (HFT) in that state in 1995.”

Karger has obtained copies of letters from high-ranking Church officials which seem to demonstrate that the Church was instrumental in setting up the Hawaii group. But his most recent letter is from 1998. Gallagher said NOM was founded only two years ago. There are prominent Mormons in its hierarchy, but its chairman of the board is Robert P. George , the McCormick Professor of Jurisprudence at Princeton University, and a well-known conservative Catholic intellectual. NOM is based in Princeton.

But the similarity between the Hawaii outfit and NOM, while not conclusive proof that the Church set up NOM, at least suggests a connection. Top officials of the  LDS Church have been working against gay marriage for more than a decade, and not just as individuals; the Church as an institution has been part of the effort. There seems to be little doubt that the Church and NOM worked together in California, where the Church took a leading role in campaigning for Proposition 8.

Because political robo-calls do not try to sell anything or raise money, they are not subject to the national “Do Not Call” system coordinated by the Federal Communications Commission. But there is a voluntary National Political Do Not Contact Registry with which people can register.

Elsewhere, the Swedish Parliament approved same-sex marriage in that country by a vote of 261 to 22

Who tends to make her own decisions at a time of her own choosing.

Not that Douglas’s decision to announce that he would veto the gay marriage bill does not need analysis. But the analysis could use a little humility. How this will all play out in the end will be known in the end, whatever and whenever that is. Not before.

To begin with, there is no reason not  to accept the governor at his word when he says he genuinely opposes the bill. Contrary to what may be public opinion, politicians do have real values, feelings, and predilections. So when Douglas said, “like President Obama and other leaders on both sides of the aisle, I believe that marriage should remain between a man and woman,” he probably meant it.

(As, it seems, does the President. Yes, it’s the safer political opinion, but according to several reports from folks close to the White House, Obama means it).

But sincerity is in no way inconsistent with calculation. To the contrary, it is common for people – and not just politicians – to conclude that what is in their interest also reflects their values.

In this case, it is easy to see why killing the bill – or at least doing his best to kill it – is in Douglas’s political interest.

First of all, most Vermonters who are so pro-gay marriage that they might vote against him on this issue alone are going to vote against him anyway. They tend to be Democrats and liberals, who don’t vote for any Republican, even this one.

Sure, lots of Republicans and conservatives favor gay marriage. For one thing, lots of Republicans and conservatives are gay, and some of them want to get married. No doubt  some of them are plenty miffed at the governor right now. But miffed enough 19 months from now to vote for a Democrat? A few (perhaps the gays who were hoping to get married) but not many.

So in making his announcement Wednesday, Douglas was angering (mostly) his political foes. But he was placating his political base. In Vermont, unlike most of the rest of the country, the anti-gay marriage side is the minority. But it is not a small minority, and it is mostly Republican. Incumbent office-holders do not like to displease their base.

Because doing so threatens to create the one thing incumbent office-holders hate most – a primary.

At first glance, it seems absurd even to consider the possibility that Jim Douglas – who is all that stands between the Vermont Republican Party and annihilation – could lose a primary. But here are two scenarios under which it just might happen:

1-A really competitive Democratic primary leaving only the most conservative voters to choose a Republican ballot next year;

2-A really un-competitive Democratic primary inspiring thousands of Democrats to meddle in the GOP primary to vote for the challenger, who’d presumably be easier to beat in the general election.

Then there’s scenario three: not a primary but an independent challenger from the right in the general election. Sure, this is the state in which the so-called religious right is probably weaker than anywhere. Still, incumbent office-holders dislike third-party challenges almost as much as they abhor primaries.

All this is speculation. If Douglas and his advisors have been talking of such matters, no word of the discussions has leaked out. Nor is there any evidence that the anti-gay marriage faction has transmitted any political threat to the governor.

But perhaps it didn’t have to. Craig Benson, head of the anti-gay marriage organization Take it to the People, said (by e-mail message), that to his knowledge “no one credible was saying that Douglas would be challenged in the Primary.”

But, Benson added, ” every once in a while …a ‘bad’ choice by a top Republican does bring out a strong Primary Candidate or GOP split-off party or coalition. Douglas knows this VT political history. No one should ever make the mistake of assuming that Douglas and his team have not fully (explored) all the possibilities on the table before a choice is made.”

There is another reason to suspect that the governor carefully calculated the potential political benefit of his veto threat. The reason is that he probably understands the personal price he might be paying.

To understand that price, it’s necessary to undertake a quick look at Douglas’s political prospects beyond the governorship, and  a very abbreviated assessment of his six years as governor.

His prospects , though he’ll only be 58 this June, are dim. Absent some unlikely political tsunami, he couldn’t beat either Sen. Patrick Leahy or Sen. Bernie Sanders. Even with this move to the right, he’s still far too moderate (just look at how he’s cozying up to Obama) to get a cabinet seat in a Republican administration, if there is one.

So governor of Vermont is what he’s going to be and how he’s going to be remembered. And at the risk of  inspiring opprobrium from the state’s liberal commentariate, one has to say that it’s hard to avoid judging his governorship a success.  It has been free of scandal (not counting his penchant for putting political operatives on the public payroll; but that’s a common and relatively inexpensive abuse). It has been competent. It has been steady. The state pays its bills and has a high credit rating.

But the Douglas years and the Douglas Administration have been neither inspiring nor innovative nor audacious. They have trod no new paths. Douglas’s de facto campaign motto is “Vote for Me. I Won’t Do Much.”

Not a bad motto. Perhaps a governor who doesn’t do much is better than a governor who tried to do a lot. Especially in a state with a gung-ho Legislature. One need not be a conservative Republican to suspect that this state is better off because some of the proposals of the liberal Democrats who run the Legislature never became law.

The essential fact here is that what Douglas did this week is how he will be remembered. He has no other legacy. Improper though it may be to say out loud (this is something reporters often say in private), in making his announcement Wednesday, Douglas determined what will follow the first comma of his obituary (may it not be printed for years), which will start something like, “Former Vermont Gov. Jim Douglas, who stopped his state from becoming the first to enact same-sex marriage without a court order….”

He must know this, and he must know that it could put him on that “wrong side of history.”

Or maybe not. Right now, a substantial majority of Americans oppose gay marriage. According to one recent poll – by the Pew Forum on Religion and Public Life -it’s a 59-to 32 percent majority. But that’s only because the margins of everybody over 35 are so huge – two-to-one for respondents in their 40s and 50s, even higher for older folks.

But it isn’t that younger people are overwhelmingly in favor of same-sex unions. They’re split. The younger they are, the more likely they are to be in favor. Maybe, then, teenagers under 18, who are not polled but who will be of voting age in a few years, are even more pro-gay marriage, so in another 15 or 20 years, the majority will be on that side.  Adding to that suspicion is that another fast-growing segment of the population – the college educated -  are also more evenly split, with younger college graduates most likely to be in favor. There is even some indication that the country is getting less religious, especially in the Northeast and most especially in New England, where about a third of the people report themselves un-churched or religiously indifferent.

But then, some people tend to get more conservative as they get older. Some of them even get more religious.

The right side of history, this being a democracy, will probably end up being the side where most of the people are.  Whether Douglas ends up on that side remains un-knowable. What is indisputable is that he has chosen his side.

So you’d think – and no doubt many would hope – that everything that can be said about the situation has been said.

But maybe not. As the process nears its end, the latest developments have revealed a few interesting tidbits, and not just about the same-sex marriage issue.

The first and most obvious (though rarely remarked upon, which is why it is being remarked upon here) is how thoroughly the “pro” side of this debate has become the position of The Establishment.

Everybody knows what The Establishment is, though officially it does not exist. It’s the folks who really run the joint – the leading businesspeople; the bankers, lawyers, and realtors who serve on the United Way boards and all those other do-good (but make no waves) committees; the president, provost, top deans and senior faculty (not including the ones who make waves) at the nearest college or university; the editor and publisher of the newspaper.

Overwhelmingly, if not quite unanimously, The Establishment’s Vermont chapter now favors gay marriage.

An extraordinary development, when you think about it. Here is a cause that only a decade or so ago was embraced by only a fringe of the fringe. Remember, the Legislature passed civil unions in 2000, probably against the wishes of most Vermonters, only because it was effectively under court order to do so. Back then, even most politicians who supported civil unions were careful to point out that they opposed same-sex marriage.

Now the pro-gay marriage stance seems to be the default position in corporate boardrooms and country club locker rooms.

Otherwise it’s unlikely that Tom Torti , president of the Lake Champlain Regional Chamber of Commerce, would have endorsed the bill so enthusiastically before the Senate Judiciary Committee last week. Chamber presidents tend to talk to their members, who are actually their bosses,  and to be careful not to outrage them

And note how Torti said that by adopting  gay marriage  ”Vermont is poised to reinforce its legacy.” Being in favor of the bill, he was saying, was being a traditional Vermonter, a member of the state’s establishment rather than a rebel.

Clearly, not everyone will agree with that. But it was noteworthy that no business leader challenged Torti. Mike Belya, the legislative director of the Vermont Chamber of Commerce, told the Burlington free Press that his organization would take no position on the gay marriage bill because it wasn’t “a business issue.”

In this case, though, “no position” is the functional equivalent of “it doesn’t bother us.”

At least not enough of “us” to make big deal over it.

Then, of course, there was the Free Press itself, reversing its 1999 position that marriage was not a right and that some discrimination was acceptable. “The years since then have proven our position to be unfounded,” last Wednesday’s editorial said, adding that some of its reasoning was “pure nonsense.”

Rarely do newspapers talk that way about themselves, especially newspapers known for…well, shall we charitably say for not being on the cutting edge. The Free Press’s motto could be “Taking Chances ‘R’ Not Us.” There is reason to presume that the top honchos there knew that what they were doing was good public relations and good business. The Free Press editor and publisher are not fools.

(More debatable is whether they are journalists. By reliable report , both of them attended one of Gov, Jim Douglas’s January speeches to the Legislature, sat in the press section, and…..Arggghhh! applauded. Journalists do not do that. “No Cheering In The Press Box.”  If you want to applaud, go sit with the hacks. They’ll make room for you).

Erasing any doubts that the pro-gay marriage side has become dominant was a thoughtful article explaining the conservative case for gay marriage by Emerson Lynn, the editor and publisher of the St.Albans Messenger, who wrote:

“Marriage connotes commitment. The more couples that seek that commitment, the more stable we are as a society. The greater the barriers to that commitment, the less stable we are. That has been conservative dogma for eons.”

The other interesting new wrinkle has been noticed, but insufficiently documented. This year’s marriage bill seems to be arousing far less passion than did the civil unions legislation in 2000. Perhaps that’s because the actual impact of the civil unions law on the lives of most Vermonters was effectively nil

“On July 1 of that year the sun rose,” Torti noted in his testimony,  ”people went off to work, businesses continued to locate here, tourism continued to flourish and Vermont reinforced its legacy as a state founded on individual rights and tolerance. The doomsday scenarios that were pronounced failed to materialize.”

Those doomsday scenarios mostly had to do with the possible effect of Civil unions on “traditional marriage.” Just what those effects were supposed to be was never spelled out, but we now know what they were: also nil.

Since civil unions became law, Vermont’s divorce rate has gone down, from 4.1 (per thousands of people) in 2000 to 3.6 in 2007.

Because of civil unions? No, of course not. Divorce rates have gone down nationwide, too, but Vermont’s rate of decrease has kept pace, and the state’s divorce rate remains below the national average.

(Though not because of civil unions perhaps because of the state’s disproportionate secularism. This is the state, according to several studies, whose citizens are least likely to be regular religious worshipers. Divorce rates, according to other studies, are highest among Evangelical/Fundamentalist Christians, whose teenage children are also more likely to be sexually active and get pregnant. Perhaps a reason Vermont has a low teen-age pregnancy rate).

What about the marriage rate? That’s gone down, too, from 10.3 in 2000  to 8.6 in 2007. But not because of civil unions. The marriage rate, too, has declined nationwide, and in many states the decline has been greater than in Vermont. In short, civil unions have made no discernible difference to marriage in Vermont, suggesting (though by no means proving) that gay marriage won’t, either.

Of course all this might be wrong. A huge uprising against same-sex marriage might be festering beneath the surface, to emerge after the bill becomes law (if it does) and sweeping supporters out of the Legislature as the “Take Back Vermont” movement did in 2000.

But back then, the bill passed just a few months before the election. This time there would be 19 months after passage before the lawmakers have to face the electorate again. Ample time for other issues to enrage other constituencies.

BUT FIRST, THIS NOTE: In what may be an excess of courtesy (those who are criticized should be given more than ample time to defend themselves) the investigative report originally scheduled for today (the one mentioned in Tuesday’s brief post) will be delayed until tomorrow.

Instead, we will do something unusual today. We will pay the debaters in Vermont’s current squabble over same sex marriage the (perhaps unwanted) honor of taking them seriously.

As this is being written, the debate still rages at the public hearing in Montpelier. No matter, enough has been said on both sides to cast the same skeptical eye on both sides, assessing not their political clout, but their knowledge and rationality, or lack thereof, taking both sides equally seriously.

Uhhhh, except where that’s impossible, such as in Aaron Melville’s Burlington Free Press column asserting that “marriage consists of one slice of bread covered in peanut butter (man) and [one] slice covered in jelly (woman).”

David playing the Harp for Saul, by Rembrandt

In vain, you seek for a sign that this is parody. In mercy, you consider ignoring it. But Melville did have it published, and he is a political quasi-official (chairman of Vermont Young Republicans).

Welcome to the NFL, kid. Next time think before you write.

On firmer ground in opposition to same sex marriage was The Most Rev. Salvatore R. Matano, the Bishop of Burlington, who said the proposed law would “alter the definition of marriage as the…legal union of one man and one woman.”

That’s indisputable because it’s true. Indisputable because it is a statement of faith, rather than an assertion of fact, is Bishop Matano’s contention that marriage is “not a purely human institution,” because “the love of a husband and wife reflects the love between the church and Christ.”

One does not argue that. One either believes it or not. Either way, it is what a Bishop is going to say.

Unfortunately, when he descended to the secular, Bishop Matano was less impressive. He worried that if the law passed religious people would “be penalized for adhering to our beliefs and creeds,” though nothing in the bill justifies such concern. Then he worried that because there are aggressive atheists abroad in the land, the practice of religion might soon be considered “odious,” and Catholics will become “objects of hate.”

Reality to Bishop Matano: The Roman Catholic  Church is among the most august, powerful, honored institutions in…well, in the history of the world. It need not join today’s woe-is-us victimology shtick.

As if to demonstrate ecumenicism in the whining department, Scott Libby, the pastor of the Grace Brethren Church in Irasburg, charged that, “the further civil laws move away from God’s law, the closer Christians come to being persecuted by the government.”

By which standard Jews and Muslims could cry persecution because pork is legal at the supermarket.

Let no one assume, though, that only gay marriage opponents seemed muddled at times. True, they seemed more muddled, not because they are more foolish, but because they made more assertions. The basic message of the bill’s supporters is simply that it is right. They need no factual claim to back that up.

Technically, Tom Torti of the Lake Champlain Regional Chamber of Commerce didn’t make a factual claim. But he suggested one when he said, “Vermont is poised to reinforce its legacy and in doing so to set in place an environment and culture that will foster business growth and development,”

The suggestion, seconded by others, was that legalizing gay marriage would be good for Vermont’s economy. But there is neither evidence that it would have any impact either way, nor much reason to think that it would.

And not everything asserted by the opponents was wrong. When Pastor Ethan Kallberg of the Lamoille Valley Grace Brtheren Church in Morrisville said “homosexuality and by extension homosexual marriage is offensive to God,” and when the Rev. David Lisner of the Newport Baptist Church said the legislation “stands in direct violation of scripture,” they had a point. In Chapter 18, Verse 22, the Book of Leviticus prescribes death for any man who “lie(s) with mankind as with womankind. It is an abomination” (King James translation).

In the spirit of taking everyone seriously, let’s take these objectors seriously on their own terms. Accepting homosexuality may not be “in direct violation of scripture,” but only of Leviticus.

Later on, the Bible repeats several times that God kept the House of David on the throne of Judah, because “David had done what was pleasing to the Lord and never turned throughout his life from all that He had commanded him, except in the matter of Uriah the Hittite.” (Masoretic translation)

A sin inspired by rampant heterosexual lust.

A creative enough reader can figure out a way to interpret I Samuel to mean something other than that David and Jonathan, the son of Saul, were teenage lovers. But that’s the plain meaning of the text. It was certainly what Saul thought when he claimed Jonathan had chosen David “to your own shame and the shame of your mother’s nakedness.”

That’s Bible talk for mifkie-pifkie in the bushes.

OK, Saul was the Richard Nixon of Israel’s First Commonwealth – brilliant but bonkers. But if David and Jonathan were lovers, and that was not a sin, then…well, the whole thing becomes substantially more ambiguous, does it not?

Besides, don’t these clergymen realize that no one – no one! -in America has to do anything just because the Bible says so?  Even most of the Ten Commandments can be violated without consequences here on earth. Any one of us is allowed to dishonor our parents, ignore the Sabbath, or covet our neighbor’s ox. In fact, you’d best not do some things the Bible commands, such as stoning to death your stubborn and rebellious son in obedience to Deuteronomy 21:18.

In short, stating that a law should pass or fail because the Bible does or does not approve is saying nothing. Law and government are secular, as should be the debates surrounding them.

Descending to the secular, then, let’s consider a not-so-absurd anti-gay marriage suggestion by writer John McClaughry and Sen. Kevin Mullin, a Rutland Republican, that the question be put to the entire electorate in a non-binding referendum.

A very democratic suggestion that can not be dismissed even while observing the irony of two conservatives suggesting government by plebiscite. Alexander Hamilton would not be amused.

From their own perspective, though, there are two problems. One is that, from the polling available, the electorate would probably vote yes. The other is: be careful about getting what you want. Suppose, say, that anti-hunting forces wanted to put a hunting ban proposal to the entire electorate. They’d probably lose, now. But five years from now?  And what about a referendum on outlawing trapping?  It would win in a walk. Especially for a conservative, representative democracy is not a bad deal. If the Legislature approves gay marriage and the people don’t like it, they can elect new legislators who will repeal the law.

Sadly, some of the rest of McClaughry’s column in the Free Press are less well-grounded, starting with the claim that  ”prohibiting discrimination against same-sex couples seeking marriage cannot be limited to just those couples. If two men or two women can marry, why not two of each as a foursome? Or a Muslim taking four wives?

But nothing stops the members of any democratic society from legalizing any or all of those arrangements now. They are not on the political radar not because gay marriage is illegal. They are not on the political radar because no constituency supports them.

Finally, let’s return to Bishop Matano, who helpfully noted that marriage is not now simply a union between one man and one woman. He pointed out that it is between a man and a woman who love one another. That’s the real definition of marriage: an officially recognized union between a man and a woman who love one another and wish to live together and comprise a family, with or without children.

As Bishop Matano said, passing the gay marriage bill would “alter the definition.” What he did not say was…what else is new? The definition has been altered before, and indeed is not universal now. As McClaughry acknowledged, Moslem men may have four wives, which is legal in much of the world.

This love business isn’t universal either. Arranged marriages happen all over, even in the United States. They used to be the norm. Centuries ago, kings married not for love but for territory. Then they and their consorts each took lovers, not infrequently of the same sex. Henry II didn’t marry Catherine of Aragon for love. He married her for the Aragon. If the movie A Lion in Winter is historically accurate, they developed passionate relationship which ranged between love and hate. But that was incidental.

Passage of this legislation would, as the bishop said, alter the definition to mean an officially recognized relationship between any two people who love one another and wish to live together and comprise a family.

The question then occurs: Just what is so terrible about that?

The biggest Vermont political surprise of last week wasn’t the announcement by legislative leaders that they were going to put the gay marriage bill on the agenda, and probably pass it within weeks.

That was the second biggest surprise.

The biggest surprise was the reaction. Or, more accurately, the lack of reaction. Unlike 2000, when the Civil Union debate inspired a passionate and (mostly) spontaneous grass-roots uprising in opposition, the declaration from Speaker Shap Smith and Senator Peter Shumlin produced the sound of silence. Where had all the opponents gone?

This week, the temptation is to say that they’re in the governor’s office. Let’s resist it. Gov. Jim Douglas did tell the editorial board of the Barre-Montpelier Times-Argus Tuesday that he did not support the bill, that “the civil union law we have now is sufficient,” and that he did not ” see the need to have … a divisive debate about this topic.”

What he did not say is whether he would veto the bill if it passes.

And passage is likely, even according to the Rev. Craig Benson, who will demonstrate next week that there really are opponents of gay marriage in Vermont. Benson, the head of Take it to the People, said the real question was whether there will be “enough  (no votes) in either the House or the Senate so that a veto by the Governor can be sustained.”

To inspire those no votes, Benson said,  opponents would take advantage of one or more of the “several opportunities for folks to show up in Montpelier next week,” starting with the Senate Judiciary Committee meeting on the bill (H-178)  Monday afternoon. Benson is on the schedule, as is Beth Robinson, the head of  Vermont Freedom to Marry.

“The test is really in that first week to see if the grass roots rise up, or if some in the Legislature actually listen to the opposition testimony, where they might find reasonable doubt about the question, and decide it should be thought through some more.” Benson said.

But gay marriage opponents face a disadvantage in their efforts to orchestrate a popular uprising: Most of the populace seems to support the bill.

Such at least is the conclusion of the only recent polling on the subject. A January survey by Macro International, a reputable polling firm, found that 58 percent of Vermonters (a 400-person sample) said they supported or were “leaning toward support” of legal marriage for gay and lesbian couples. Thirty-nine percent opposed or were “leaning against.”

As Benson pointed out, there is a difference between supporting an idea in the abstract and supporting a particular bill before the Legislature. The poll was taken before the bill was introduced and did not ask about it. It is also possible that this is one of those issues on which some people are reluctant to express an opinion that they know is regarded as unenlightened in some circles.

But the pro-marriage majority has held steady in Vermont polls for four years, and unless Benson and his allies can really flood the Statehouse with opponents next week, there seems to be little reason for a lawmaker to think there’s a big political risk in voting for the bill. There may be a bigger one in voting against it.

Unless that opposition testimony Benson talked about can instill some “reasonable doubt” in that lawmaker’s mind about the merits of the case.

Benson presented four arguments:

–The proposed law threatens religious freedom by threatening to “follow the Canadian example (in which) there would be certain sections of the Bible a priest or minister can’t read in public (without the risk of facing) hate speech charges.”

–If the law is passed, society would “lose all legal rationale for limiting the size of families,” which would open the door to “polygamy and group marriage.”

–The new law would create “big questions about changes of language in family and child law practice.”

–Social science research indicates that children are best raised by a mother and a father.

But the bill itself includes a provision allowing “clergy the right to refuse to solemnize a marriage,” and U.S. laws and legal traditions are quite different from Canada’s when it comes to free speech issues.

The bill also specifies that all “gender-specific terms” in family and child law “shall be construed to be gender neutral for all purposes throughout the law,” which would seem to take care of the language problem.

Furthermore, the bill defines marriage as a “legally recognized union of two people,” not three or four or more. Besides, if advocates of polygamy or group marriage want to agitate for legal acceptance, they can do so now. They don’t, because there are so few of them. There is no noticeable group marriage constituency.

Benson is right that the proposed law – like any landmark legislation – could have “unknowable” consequences. Among them may be the impact on children, though there is scant evidence that children raised by same-sex couples do worse financially, socially, or psychologically than other children. Either way, it seems unlikely that many legislators are going to be swayed by the opposition arguments.

That means the opponents are going to have to try to revive fury that inspired the “Take Back Vermont” movement backlash against Civil Unions in 2000. Right now, that fury is nowhere to be seen. It could re-emerge next week; as Benson said, gay rights is a “polarizing” issue.

But as Beth Robinson pointed out, there is passion on the other side of the issue, too.

“Passions run high on this issue in both directions,” she said. “.When people talk about the divisiveness of moving forward, they fail to recognize the divisiveness of not moving forward. Action is going to bring some people out of woodwork, but inaction also going to bring some people out of woodwork. Saying to the gay and lesbian community that you’re not fully equal is untenable.”

The man in the middle, of course, will be the governor. The conventional wisdom in Montpelier is that even if he does not sign the bill, he will not veto it, allowing it to become law without his signature.

But the pressure on him is likely to be intense. That 40 percent or so who oppose gay marriage are part of his base. No politician can afford to ignore his base. He has to show them at least that he is sensitive to their point of view.

Maybe he just did that at the Montpelier editorial board, and maybe that will suffice. After all, Jim Douglas is not likely to hold any higher office; neither Vermont senator is politically vulnerable and even if a Republican becomes president in 2012, he is likely to find Douglas insufficiently right-wing for a cabinet post.

That means that if Douglas is remembered at all beyond Vermont’s borders, it could be for whether he tries to stop Vermont from legalizing same-sex marriage. The odds are that he would find that a displeasing prospect.