Prominent Members of Legal Community Take Position on Maine's Non-Discrimination Law and the Issue of Same-Sex Marriage

Thorough legal analysis made public Thursday to assist Maine voters for upcoming ballot Question 1

PORTLAND – A group of 46 prominent members of Maine’s legal community has concluded that the addition of sexual orientation to the state’s non-discrimination law provides no legal basis for same-sex marriage.

The group’s findings are the result of a thorough legal analysis of Maine’s non-discrimination law as a way to assist voters throughout Maine as they prepare for the November 8 ballot Question 1:

“Do you want to reject the new law that would protect people from discrimination in employment, housing, education, public accommodations and credit based on their sexual orientation?”

A “NO” vote means the law goes into effect as drafted. A “YES” vote would repeal the law.

The allegation that the non-discrimination law, if approved by the voters, will lead to same-sex marriage in Maine has been made repeatedly during the campaign. Further, a similar law in Massachusetts is cited as the basis for the Massachusetts Supreme Court ruling allowing same-sex marriage.

The legal review of both the Maine non-discrimination law that is the subject of Question 1 and the Massachusetts Supreme Court decision in Goodridge v. Dept. of Public Health has led the group, which includes some of Maine’s most respected legal minds, to offer the following statement to the people of Maine:

“The addition of sexual orientation to Maine’s non-discrimination law provides no legal basis for same-sex marriage.

The Legislature anticipated this issue and included language in the law explicitly stating that it cannot be interpreted by the courts to change the current definition of marriage in Maine.

Furthermore, the Massachusetts Supreme Court makes it unequivocally clear that the Goodridge decision was based on the Massachusetts constitution, not the state’s human rights law. In fact, nowhere in the majority opinion is the Massachusetts’ non-discrimination law cited as a basis for the Court’s that ruling that same-sex couples should be able to marry.”

The group issued its legal analysis and conclusions to the public Thursday with the hope the information is helpful to Mainers as they prepare to vote on Question 1.

(MEDIA NOTE: For more information on the legal review, contained below, please contact John M.R. Paterson of Bernstein Shur in Portland at 774-1200; Lois Lupica of the University of Maine Law School at 780-4599; or David Webbert of Johnson & Webbert in Augusta at 623-5110.)


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To: Interested Persons

From: Daniel Amory, Drummond Woodsum; Michael P. Asen, Mittel Asen; Joseph M. Baldacci, Law Offices of Joseph M. Baldacci; Christopher B. Branson, Murray, Plumb and Murray; James E. Burke, Associate Clinical Professor, University of Maine School of Law; George F. Burns, Bernstein Shur; David P. Cluchey, Professor, University of Maine School of Law; Jerrol A. Crouter, Drummond Woodsum; David E. Currier, Warren, Currier & Buchanan; Peter H. DelBianco, Jr., Lambert Coffin; Orlando Delogu, Professor, University of Maine School of Law; Peter J. DeTroy, III, Norman Hanson & DeTroy; Beth Dobson, Verrill & Dana; Martica S. Douglas, Douglas, Denham, Buccina & Ernst; Elizabeth J. Ernst, Douglas, Denham, Buccina & Ernst; James Friedman, Professor of Constitutional Law, University of Maine School of Law; Mark K. Googins, Verrill & Dana; Gordon F. Grimes, Bernstein, Shur; William S. Harwood, Verrill & Dana; Melissa A. Hewey, Drummond Woodsum; Senator Barry J. Hobbins, Hobbins & Gardner; James T. Kilbreth, Verrill & Dana; Susan R. Kominsky, Vafiades, Brountas & Kominsky; Lois Lupica, Professor, University of Maine School of Law; Sean M. Mahoney, Verrill & Dana; Charles E. Miller, Bernstein, Shur; Robert E. Mittel, Mittel Asen; Richard L. O’Meara, Murray Plumb & Murray; John M.R. Paterson, Bernstein Shur; Clare H. Payne, Eaton Peabody; Peter Pitegoff, Professor and Dean, University of Maine School of Law; U. Charles Remmel, II, Kelly, Remmel & Zimmermman; Elizabeth J. Scheffee, Givertz, Hambley, Scheffee & Lavoie; Jack H. Simmons, Berman Simmons; Deirdre M. Smith, Associate Professor and Director Cumberland Legal Aid Clinic, University of Maine School of Law; Kaighn Smith, Jr., Drummond Woodsum; Deborah Turkheimer, Associate Professor, University of Maine School of Law; Nancy A. Wanderer, Professor, University of Maine School Law; Carol G. Warren, Warren, Currier & Buchanan; Curtis Webber, Linnell, Choate & Webber; Rebecca S. Webber, Linnell, Choate & Weber; David G. Webbert, Johnson & Webbert; Patricia E. Weidler, Linnell, Choate & Webber; Jennifer Wriggins, Professor, University of Maine School of Law; Melvyn Zarr, Professor, University of Maine School of Law; Donald N. Zillman, Professor and former Dean, University of Maine School of Law.

Re: Legal Review of the Allegation that Maine’s Non-Discrimination Law is a Legal Basis for Same-Sex Marriage in Maine

Date: October 6, 2005


On November 8, 2005, the people of Maine will vote on the following question that will appear on the ballot as Question 1:

Do you want to reject the new law that would protect people from discrimination in employment, housing, education, public accommodations and credit based on their sexual orientation?

A “no” vote means the law goes into effect as drafted, and Maine will henceforth prohibit discrimination based on sexual orientation in employment, housing, public accommodations, credit and education. A “yes” vote would repeal the law and it would be legally permissible to deny a person a job, housing and so on because of that person’s sexual orientation.

During the debate on this Question the allegation has been made that the non-discrimination law that is the subject of Question 1 would provide a legal foundation for same sex marriage in Maine. What follows is our legal analysis of why these allegations are legally incorrect.

First, opponents of the non-discrimination law state that the law will be the legal basis for a claim of an equal right to marry by same-sex couples in Maine.

The Maine Legislature was clearly aware of marriage-related concerns as the non-discrimination bill was being considered and debated in the last legislative session. They specifically addressed these concerns by adding an amendment to the law reinforcing that the non-discrimination bill and marriage are separate and distinct issues. In language that judges who may face this issue in the future must adhere to, the Legislature stated that the non-discrimination law cannot be interpreted to add or subtract from any right to marry that exists in law. Specifically, the language says,

Construction. This Act may not be construed to create, add, alter or abolish any right to marry that may exist under the Constitution of the United States, the Constitution of Maine or the laws of this State.

It is thus impossible to argue that the non-discrimination law could conceivably be the basis of a claim of an equal right to marry for same-sex partners.

Second, while that language of the statute itself puts to rest the allegation that the non-discrimination law can be used as a basis for marriage rights for same-sex couples here in Maine, some have also looked to the Massachusetts court ruling in favor of equal marriage rights as proof that a non-discrimination law would lead to marriage for gay families in Maine. A review of the Massachusetts decision makes it unequivocally clear that that legal decision was based on the Massachusetts Constitution and not on the state’s non-discrimination law. The very first paragraph of that lengthy decision sets out the constitutional question considered by that Court:

“The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry.”(1)

Nowhere in the majority opinion is the non-discrimination law set forth as a basis for the Court’s opinion that same-sex couples should be able to marry.

Third, despite this precise language in the Massachusetts decision, others assert that the majority opinion cited the state non-discrimination law, thus proving that a non-discrimination law leads to marriage for same-sex couples.

It is correct that the Massachusetts court did make reference to the Massachusetts non-discrimination law. It did so in addressing a friend-of-the-court brief that argued, “prohibiting marriage by same-sex couples reflects community consensus that homosexual conduct is immoral.”(2) In response the court simply noted that “Massachusetts has a strong affirmative policy of preventing discrimination on the basis of sexual orientation,” citing the non-discrimination law, a hate crimes law, a public education law, a court ruling on private sexual conduct, and a court ruling on parental custody.(3)

An argument based on morality was doomed from the outset for several reasons. For one, it has long been the law in Massachusetts (and Maine) that private, consensual conduct of adults is no business of the state. In addition, the United States Supreme Court agreed in 2003 and struck down a Texas law targeting same-sex sexual conduct as a violation of due process rights.(4) Although Texas had raised “morality” as a justification for the law, the Supreme Court stated that “the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history or tradition could save a law prohibiting miscegenation from constitutional attack.”(5) Finally, the Massachusetts court made clear starting in the second paragraph of its opinion that constitutional principles controlled its decision, not differing views of morality. Specifically, the Massachusetts Court stated:

Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently that their heterosexual neighbors. Neither view answers the question before us. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. ‘Our mandate is to define the liberty of all, not to mandate our own moral code.’ Lawrence v. Texas, …(2003), quoting Planned Parenthood of Southeastern Pa. v. Casey…. (1992).”(6)

The Massachusetts court clearly based its decision approving equal marriage rights for same-sex couples on the Massachusetts Constitution and not on the Massachusetts non-discrimination law.

The question of whether same-sex couples should be permitted to marry is under debate and discussion in communities, legislatures and courts throughout our nation. Whatever the outcome of that debate may be, it is very clear that Maine’s non-discrimination law does not provide a legal basis for same-sex couples to marry in Maine.


[1] Goodridge v. Dept. of Public Health, 798 N.E. 2d 941, 948 (Mass. 2003) (emphasis added).
2 Goodridge, 798 N.E.2d at 967.
3 Ibid. at 967.
4 Lawrence v. Texas, 539 U.S. 558, 578 (2003).
5Lawrence, 539 U.S. at 577-578.
6Goodridge, 798 N.E.2d at 948 (emphasis added).