Spring 2004 #2. Same-sex marriage: Pro & Con - Denying marriage rights is unconstitutional.

Author:by Mary L. Bonauto

Maine Bar Journal


Spring 2004 #2.

Same-sex marriage: Pro & Con - Denying marriage rights is unconstitutional

Maine Bar JournalSpring 2004SAME-SEX MARRIAGE: PRO & CON - DENYING MARRIAGE RIGHTS IS UNCONSTITUTIONALby Mary L. BonautoAccording to the 2000 Census, gays and lesbians report living as families in every Maine county.1 These families travel in all walks of life - as taxpayers, parents, business owners, community volunteers, and workers. But in Maine, no matter how long they have been together, no matter what they have sacrificed for one another, the state government denies them marriage rights.

By denying marriage, the state denies people the right to a profound personal choice synonymous with the pursuit of happiness through a loving commitment and partnership with another: "Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family." Goodridge v. Dept. of Public Health, 798 N.E.2d 941, 954 (Mass. 2003). By denying access to this "a vital social institution," id. at 948, the state works "a deep and scarring hardship on a very real segment of the community for no rational reason." Id. at 968.

Far more than ideals, marriage is also an enormous legal institution and the government's major vehicle for recognizing families. As the Massachusetts Supreme Judicial Court explained, "[t]he benefits accessible only by way of a marriage license are enormous, touching nearly every area of life and death." Goodridge, 708 N.E. 2d at 955. Hundreds of legal rights, responsibilities and protections are tied exclusively to marriage in Maine;2 at the federal level, the number of protections totals 1138.3

Real people and real families experience the consequences of the state's denial of marriage. Without marriage, committed gay and lesbian couples have no automatic right to visit each other in the hospital and make medical decisions, no automatic right to inherit from each other,4 no right to share social security or private pensions, no right to tax deferral on estates, no right to inherit IRAs or 401(k)s without devastating tax consequences, and many other bread-and-butter consequences.5

While marriage also has profound religious significance for some, the law's power extends only to the state-created regime of civil marriage and not the religious rite of marriage. Under state and federal constitutional guarantees, every faith remains absolutely free to decide who to marry and on what terms. At the same time, no faith may dictate the terms of equal protection and due process under law: a court's "obligation is to define the liberty of all, not to mandate our own moral code." Lawrence v. Texas, 123 S.Ct. 2472, 2480 (2003) (quotation omitted).

The Legal Case In A Nutshell6

Maine's requirements for marriage are like those of many other states: any two competent adults of the proper age who are unmarried and not closely related may marry. 19-A M.R.S.A. secs. 652, 701. The only people who meet these requirements but may not marry are gay people: "Persons of the same sex may not contract marriage." 19-A M.R.S.A. sec. 701 (5). By adopting an "Act To Protect Traditional Families and Prohibit Same-Sex Marriages" in 1997, the Legislature altered the previously gender-neutral statute and also made void the legal marriage of a same-sex couple licensed and certified elsewhere. Id. & id. at sec. 701 (1-A).7

The Constitutional Claims

Given the clear denial of marriage rights, the question is whether Maine's ban survives the simple and broad non-discrimination guarantee of the Maine Constitution: "No person shall be deprived of life, liberty or property without due process of law, nor be denied the enjoyment of that person's civil rights or be discriminated against in the exercise thereof." Me. Const., Art. 1, sec. 6-A.8 What the Massachusetts SJC said of that state's Constitution can be said of Maine's Constitution as well: "The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens." Goodridge, 440 Mass. at 948.9

While Maine's equal protection and due process guarantees are often regarded as coterminous with one another, there are important textual and historical differences between them, and it would be unfortunate to foreclose an independent examination of the state charter. As one former chief justice noted, "[w]hether the Law Court gets and decides issues of Maine constitutional law depends largely upon the advocacy of lawyers . . . ".10 At the same time, the state's marriage ban also likely violates the federal 14th Amendment. See e.g. Lawrence v. Texas, 123 S.Ct. 2472 (2003)(striking state sodomy law).11

Notably, in the last decade, every state supreme court to reach the constitutionality of a state's marriage ban has found the denial unconstitutional under state constitutions. See Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003); Baker v. State, 744 A.2d 864 (Vt. 1999); Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).12

Due Process & Fundamental Rights Arguments

While the Law Court has not specifically addressed whether marriage is a fundamental right under the state constitution, it has a strong basis for doing so.13 The...

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