Maine okays same-sex marriage

Law Professor Linda McClain, an expert in family law and policy, says it is interesting how Maine became the fifth state to legalize same-sex marriages when Governor John Baldacci signed the bill passed by the state Senate.

“Maine is interesting because it has a relatively modest domestic partnership law that is not nearly as inclusive as a civil union statute. Also, a court has not spurred either the domestic partnership law or this legislative action.

“The governor’s explanation of this issue as one of equal protection and anti-discrimination is notable. In the past, some governors have defended civil unions as honoring a state’s commitment to anti-discrimination but also upholding its marriage traditions. Governor Baldacci’s signing remarks suggest the growing success of arguments about marriage equality: having a separate legal institutions for same-sex couples is not really equality.

“Maine’s relatively easy ballot initiative process, however, may make this new law vulnerable. The governor clearly expects that there will be some effort to have a ‘people’s veto.’ How Maine voters view this issue — whether one of basic equality or one of preserving traditional marriage — may determine the fate of that initiative.

“The governor’s signing remarks also indicate that the importance of distinguishing civil marriage from religious marriage. He stresses that the law does not impair religious freedom, but it does uphold equal treatment under civil marriage laws. Being able to distinguish between religious and civil marriage once again plays a critical role in courts, legislatures, and governors opening up civil marriage to same-sex couples.

“Being able to distinguish civil and religious marriage allows the Maine legislature and the governor to pass a bill that is framed as ending discrimination in civil marriage and affirming religious freedom. Before, civil unions were defended as preserving marriage tradition while also ending discrimination. Maine has rejected this route as not really providing equality.”

Contact Linda McClain, 617-358-4635,

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