AUGUSTA — This year Maine is a battleground in a national struggle over the place of homosexuals in American society.
On Nov. 7, Maine voters will be asked to approve a resident-initiated referendum that would prevent enactment of municipal gay rights ordinances, and could have the political effect of preventing the Legislature from enacting a gay rights law.
This will be the first time that voters throughout the state have been able to make their wishes known on the volatile issue of homosexual rights. And it will be the only referendum on a gay rights issue in the nation this fall.
“The eyes of the country are on Maine,” said Patricia Peard, a Portland lawyer who is chairwoman of Maine Won’t Discriminate, the broad-based and well-financed coalition that is battling to defeat the referendum.
“If we lose, it will be because out-of-state militant forces came into the state and fooled some of the people,” said Carolyn Cosby, the Portland homemaker who leads Concerned Maine Families, which is campaigning for passage of Question 1. “We’ll keep right on fighting if we lose. … But I think we’re going to win.”
The proposal would limit state and local human-rights laws to protecting only classes of people now listed in the Maine Human Rights Act. Those classes against which it is illegal to discriminate are race, color, sex, physical or mental disability, religion, age, ancestry, national origin, familial status and marital status.
Because sexual orientation is not a protected class under state law, the referendum is widely viewed as preventing gays and lesbians from achieving civil rights protection.
The measure would repeal gay rights ordinances in the city of Portland and the southern Maine town of Long Island. It would prevent any city or town from enacting a gay rights ordinance in the future.
But because a law cannot bind future Legislatures, passage of this referendum would not prevent the Legislature from enacting a gay rights law in the future. The political effect of the referendum’s passage, however, probably would prevent lawmakers from passing a gay rights law anytime soon.
“The referendum is just legislation and the Legislature can change it,” said Deputy Attorney General Stephen L. Wessler, who opposes Question 1. “It will not prevent a gay rights law, but the practical effect would be that gay rights would not pass. If the people speak, the Legislature is going to listen.”
There is a possibility that passage of the referendum could repeal the protection from hate crimes that homosexuals have held since 1989. There also is a possibility that groups as diverse as whistle-blowers and veterans could lose some of their protected status under different laws.
Whether groups other than homosexuals lose some of their privileges could only be decided by court rulings after voters pass the referendum. Opponents staunchly maintain that a long list of groups could lose privileges. Supporters say that’s nonsense because the other protections are not part of human rights laws.
“This is the politics of fear,” said Paul Madore, leader of the Coalition to End Special Rights, of the claims that many different groups would be affected by the referendum.
While this is the first time that all Maine voters will decide a gay rights question, the issue is not new to Maine.
Between 1977 and 1993, a gay rights bill came before the Maine Legislature nine times and was the subject of hot debate. The gay rights bill would make it illegal to discriminate in employment, housing, public accommodations and credit against people just because they were homosexual.
In 1993, for the first time, both the House and Senate approved the gay rights bill, but Republican Gov. John R. McKernan vetoed it.
In 1992, the Portland City Council enacted a gay rights ordinance. A resident petition resulted in a referendum in which Portland voters decided to keep the gay rights ordinance on the books. Carolyn Cosby worked to defeat the ordinance.
In 1993, the Lewiston City Council enacted a gay rights ordinance, but a vigorous resident campaign led by Paul Madore resulted in Lewiston voters overturning the ordinance.
Maine is also part of a national debate. In 1992, Colorado voters approved a referendum that repealed gay rights ordinances in Denver, Aspen and Boulder. It also blocked future gay rights ordinances and laws.
The Colorado measure is different from the proposed Maine law because it is a constitutional amendment that specifically lists homosexuals as those who will be denied rights. The Maine law bars any group not now included in the human rights law, not just homosexuals.
An effective economic boycott followed passage of the Colorado measure, and the state lost an estimated $120 million in tourism and convention business in the year after the vote.
Legal challenges also followed passage of the Colorado referendum, as they probably would in Maine, and the Colorado measure is tied up in the U.S. Supreme Court.
Wessler says because the wording of the Colorado measure is different from Maine’s, Supreme Court justices could strike down the Colorado amendment without touching the Maine law. It’s also possible that the Maine law could be linked to the Colorado measure and be brought down by a court decision.
Concerned Maine Families put Question 1 on the ballot with a successful petition drive that netted more than 67,000 voter signatures. Since the petition drive was approved, Maine Won’t Discriminate has geared up a powerful opposing organization.
On the surface, the campaign looks like a mismatch. Through early October, Maine Won’t Discriminate had raised $655,000 or more than 10 times as much as Concerned Maine Families and the Coalition to End Special Rights combined.
Maine Won’t Discriminate is broadcasting a series of television and radio ads, and Concerned Maine Families can’t afford to respond.
A visit to each group’s campaign offices also is a study in contrast. Concerned Maine Families works out of the basement of Carolyn Cosby’s home and three other homes around the state.
Maine Won’t Discriminate has six offices, numerous paid staff and an army of volunteers. While two people were working in the Cosby basement on the day of an interview, 15 or more people were working the phones at the office of Maine Won’t Discriminate on Free Street in Portland.
But Cosby and her supporters are counting on a big vote for their side from people who think gays are trying to win “special rights.” She looks at this group as a silent majority.
“I think we’re seeing a tidal shift in public opinion,” Cosby said. “People are beginning to see the colossal fraud of our opponents’ campaign. Lack of money is a benefit to us. It illustrates what I’ve said all along — these are people with money and they are very well organized.
“Why do they need millions of dollars to fight our little citizens’ initiative? How come they have 10 times as much money as we have? They have had an organized political action group for 20 years,” she said.
Lawrence Lockman of Seboeis Plantation, another leader of Concerned Maine Families, said, “I’m encouraged. I am firmly convinced that a solid majority of Maine voters agree with our position.”
Lockman believes if there is a big voter turnout on Nov. 7, his side will win, but if it’s a light turnout, the referendum could go either way.
“This one-sided TV blitz and radio blitz could knock our numbers down,” he said.
Polling by Maine Won’t Discriminate suggests the campaign may be closer than expected. Recent polls indicate an even split with 40 percent of likely voters lining up on each side of the question and 20 percent undecided, according to pollster Christian Potholm.
“I think our prospects for success are good, but we have a big job to help undecideds to move into the `no’ column,” said Patricia Peard of Maine Won’t Discriminate. “We have built a much stronger and broader grass-roots organization than Concerned Maine Families.
“The main concern about this referendum is that it’s so confusing and misleading. It’s very unclear what the consequences would be. Although they’re targeting gay men and lesbians, it’s clear that many other groups would be hurt,” she said.
Maine Won’t Discriminate has won endorsements from virtually all the mainstream government, business and religious leaders in the state. Opponents of Question 1 include all four members of Maine’s congressional delegation, Gov. Angus S. King, Attorney General Andrew Ketterer, legislative leaders, the Maine Chamber and Business Alliance, the Maine Council of Churches, the Roman Catholic Diocese of Portland, the Episcopal Diocese of Maine, the Maine AFL-CIO, Bath Iron Works, Fleet Bank of Maine and Key Bank of Maine.
Division on the right
Cosby’s group hired Virginia attorney Bruce Fein to help draft its initiative. Opponents criticized them for using Fein because of his involvement in other conservative campaigns around the country.
Cosby says Fein is only a legal consultant and that she and other Maine residents actually wrote the question.
“My dining-room table mainly was where it was hammered out,” Cosby said.
Midway through the campaign, referendum supporters split into two camps.
Paul Madore of Lewiston formed the Coalition to End Special Rights with strong support from the Christian Civic League of Maine. Madore and Michael Heath, director of the civic league, said Cosby’s group was straying from the central issue of homosexuality.
Cosby said her group passed up a lot of money that would have flowed from national right-wing organizations because they refused to take a more strident anti-gay position in the campaign.
Cosby refused help from Focus on the Family, a Colorado-based organization that’s providing radio ads to Madore’s group.
So far the Maine campaign has been waged without the kind of vicious anti-gay advertising used in Colorado. Cosby insists she and her supporters don’t hate gays.
And she says she and her volunteers have been subjected to threats and harassment from the pro-gay side.
“There is a huge debate on the right about whether to follow the Colorado model or the Maine model,” said Cosby. “The issue is not whether a group is immoral or not, the issue is whether they qualify for special status.”
Central to the debate is whether gays and lesbians qualify as a class of people that has been discriminated against.
Cosby and her allies maintain that stories of discrimination against gays are exaggerated. She said gays have more money than heterosexuals and therefore shouldn’t qualify for what she calls special rights.
Opponents of the referendum argue that a gay rights bill is a separate issue from Question 1. They say Cosby uses faulty criteria for establishing minority status, and that discrimination against gays is very real.
“Are they measurably disadvantaged as an entire class? Have they been shut out of the opportunities? The answer is a resounding `no,’ ” said Cosby. “You don’t create a special class for an entire group of people just because once in awhile someone is denied something.”
Peard said, “It’s very clear that there is discrimination in the state. A lot of people do not report discrimination because they are afraid. They don’t have basic protection under the law.
“Being rich doesn’t disqualify you from human rights. Besides, it’s not true that gay people are rich … [Concerned Maine Families] think they have the prerogative to decide who should have basic rights.
“If you follow her argument to the logical conclusion, you would have to repeal the entire Human Rights Act,” said Peard.
Mark Sullivan of Maine Won’t Discriminate noted that the referendum would box out any groups that might be eligible for human rights protection in the future.
“The Human Rights Act has been a living, breathing document that we’ve added to over time,” said Sullivan. “If this (Question 1) was passed 10 or 15 years ago, we wouldn’t have protection for the elderly and disabled.”
Cosby believes homosexuals are grasping for a series of privileges they don’t deserve.
If a gay rights bill is enacted, Cosby thinks gays will then try to win affirmative action programs, hiring quotas, block grant funding for gay-owned businesses, and recognition of gay marriages. That could lead to treatment of gay partners the same way as heterosexual spouses on health insurance policies.
“It is not projecting any more that there is a gay agenda, a gay wish list for the state of Maine,” Cosby said. “It revolves substantially around jobs.”
Peard said Cosby’s claims are absurd because none of the groups already listed in the Human Rights Act has won affirmative action or job quotas in Maine.
Both sides dispute the economic fallout that would follow passage of Maine’s Question 1.
In his television ad, Gov. King says a “yes” vote would give the state a black eye and would hurt efforts to create jobs and improve the economy.
Maine Won’t Discriminate cites the $120 million loss in tourism business after Colorado’s passage of a similar referendum, and an $18 million loss when a company apparently decided not to locate in Colorado because of the vote.
But Lawrence Lockman of Concerned Maine Families said an anti-gay law actually could help business.
“In Colorado, the economy is booming and tourism is up,” Lockman said. “Forty-one states do not have sexual orientation as a protected class. To suggest that these 41 states are at a competitive disadvantage is absurd.
“In a state where you don’t have a gay rights law, businesses know they don’t have the extra burden of frivolous lawsuits by disgruntled employees.”
And Friday, Senate Majority Leader R. Leo Kieffer, R-Caribou, denounced King for saying that Colorado’s economy suffered from its referendum. Kieffer cited a 1995 report card that gave Colorado A grades in economic performance, business vitality and development capacity. Maine got D’s in the same report.
Last weekend, legislative leaders voted 6-4 to allow a gay rights bill to be considered for the 10th time during the 1996 legislative session. The timing of the action, only two weeks before Election Day, was not helpful to the campaigners of Maine Won’t Discriminate.
“Maine Won’t Discriminate had absolutely nothing to do with the gay rights bill,” said Peard. “To me, that’s an issue that comes at another time, another place.”
But Cosby said the same people who are fighting the referendum also are preparing to push for a gay rights bill. That weakens opponents’ arguments for local control, she said.
Opponents such as King have said the referendum proposal would take away local control by banning municipal gay rights ordinances. But the same can be said for a statewide gay rights law — it takes away local control by forcing all communities to observe gay rights.
The referendum would repeal Portland’s gay rights ordinance. But a gay rights law would negate the vote by Lewiston residents to turn down gay rights.
“You want to protect the Portland voter against my initiative,” said Cosby. “But you don’t want to protect the Lewiston voter against a statewide gay rights law. That’s hypocritical.”