Wednesday, October 28, 2009

How Maine Q. 1 is different from Prop 8

The campaign has mostly stayed below the radar, but voters in Maine will soon decide whether same-sex marriage will be legalized in their state.  Question 1 on this November’s ballot is very similar to last year’s California Proposition 8, but there are some big differences that I think are important.

Same-sex marriage was briefly legalized in California as a result of the state Supreme Court decision In re Marriage Cases.  The court refused to stay its holding to allow legal challenges, resulting in the voter initiative know as Prop. 8.  That vote and the subsequent California Supreme Court review brought gay marriages to a halt in California, but did not invalidate those already performed.

Contrast that tumultuous history with the background in Maine.  Like in New Hampshire, same-sex marraige was legalized in Maine through legislative act rather than judicial opinion.  I consider this to be a far preferable method of implementing new laws, for several reasons.  For example, the Maine statute included specific language about religious freedoms and addressed how the new law would (and would not) alter the obligations of religious organizations, clergy, and individuals.  I don’t think the Maine statute went far enough to protect individuals, but it’s a lot better than the silence in California on the topic.

Maine was also prudent enough to delay issuing marriage licenses to gay couples pending the outcome of Question 1.  While this may delay the ability of some couples to marry, I think it is much better to avoid the legal limbo and further litigation that happened in California.  The Maine statute also seems to address legitimate interests of gay citizens, rather than the ephemeral social acceptance the California Supreme Court attempted to mandate.  In general, I think legislators and officials in Maine have taken a far better approach to the question of legalizing same-sex marriage than their counterparts in California.

For Mormons, one of the biggest differences in the two campaigns is that the LDS Church has not taken an active role in the Maine initiative like it did in California. Individual Mormons are active in the campaign, but there have been no letters read from the pulpit or public statements from Mormon officials like in Prop. 8. I think this may be due to the fact that there is a smaller LDS population in Maine than in California, and perhaps the legislative approach to the law change and religious protections were more palatable to Mormon leaders. However, given the backlash and hostility following the outcome of Prop. 8, perhaps Mormon leaders are reluctant to get involved in a firefight again.

Despite their differences, Maine Question 1 and California Proposition 8 do have one thing in common: just days before the election, both initiatives were too close to call.  Maine Question 1 is running about even in the polls, so it won’t be until November 3 before we know the outcome.

Photo credit: J. Stephen Conn.This content is cross-posted from LDS Law.