The Maine Marriage Law

Yesterday Governor John Baldacci signed into law a statute amending the Maine marriage statutes to open up marriage to same-sex couples.  The actual bill, LD 1020, is interestingly minimalist when compared to the Connecticut and Vermont marriage bills enacted recently.  In addition, it is possible that the Maine bill will never actually go into effect, due to the peculiar "people's veto" process that they have in that state.

First, to the bill itself.  The bill provides that marriage and all related terms are to be construed as gender neutral, and specifically provides that the state will recognize same-sex marriages that are "validly licensed and certified in another jurisdiction."  It amends the section on marriage license applications to provide that they may be issued to any two persons who are otherwise qualified to marry "regardless of the sex of each person."  The incest provisions are revised to be gender neutral, and the existing prohibition on same-sex marriages is deleted from the marriage law.

The important thing, however, is the section titled "Affirmation of religious freedom," which is actually much narrower than the comparable provisions in Connecticut and Vermont in some respects.  The provision states: This Part does not authorize any court or other state or local governmental body, entity, agency or commission to compel, prevent or interfere in any way with any religious institution's religious doctrine, policy, teaching or solemnization of marriage within that particular faith's tradition as guaranteed by the Maine Constitution, Article 1, Section 3 or the First Amendment of the United States Constitution.  A person authorized to join persons in marriage and who fails or refuses to join persons in marriage is not subject to any fine or other penalty for such failure or refusal."

This exemption is limited to "any religious institution," but there is no definition in the bill of the term "religious institution," so it is unclear whether it is as wide-ranging as the partial exemption from the public accommodations law that has been enacted in Vermont and Connecticut for religiously-affiliated organizations that are not themselves churches.  On the other hand, the Maine law seems to go beyond Vermont and Connecticut by saying that those who perform marriages may refuse to perform a marriage for any particular couple without incurring any penalty. 

According to Maine practice, the law goes into effect 90 days after the legislature adjourns.  The legislature usually meets well into June, according to press reports, so that would put the effective date sometime in September.  From the date the legislature adjourns, the opponents of same-sex marriage in Maine will have 90 days to gather sufficient signatures to put a repealer on the ballot.  According to press reports, they need more than 55,000 signatures of registered voters in order to do that.  Based on past referendum efforts, it seems likely that they can get the signatures if they spend the money and try hard enough.  If they turn in the signatures early enough for the verification process to be completed on time, the measure would go on the general election ballot in November.  If it takes longer, there would be a special election next spring.   In Maine, the weather can make a big difference.  An measure repealing a state gay rights law was passed by referendum when a major winter storm affected turnout, but after the legislature had gone back to the drawing board, a subsequent referendum attempt to repeal a gay rights law was unsuccessful when the voting was held on a milder day. 

So the passage of the law is just the first stage of the process.  There is, of course, a possibility that the idea of same-sex marriage has become sufficiently familiar and acceptable in Maine that the anti-marriage organizers will fall short in their petition drive.  Only time will tell.

Comments

[Theresa]

"A person authorized to join persons in marriage" [may refuse, etc.]

I know this is directly after a sentence about religious institutions, but could it still be interpreted to mean that a county clerk or justice of the peace, i.e. a govt. employee, could refuse to perform a marriage in City Hall?

[Art Leonard]

Yes, I think the interpretation of this sentence, standing alone, would be that any marriage officiant, whether a religious or non-sectarian official, is given a "conscience" exemption from having to perform a wedding for any couple as to whom they have objection. I think this was one of the compromises that had to be accepted for Senate adoption of the bill. While one might argue that its placement in the religious freedom section of the statute means it should be restricted to religiously-ordained officiants, that is not the plain meaning of the language used.