Another expert says Maine is unlikely to rule the way Massachusetts did.
AUGUSTA – What happened in Massachusetts could happen here, according to a University of Southern Maine Law School professor who looked at the constitutions of both states. Another professor, however, doubted it would come to that.
In a 4-3 decision, Massachusetts’ highest court ruled that under the Massachusetts Constitution same-sex couples could not be denied marriage. It ordered the state to begin issuing marriage licenses to gay couples in May.
Throughout last week, the Massachusetts Legislature debated an amendment to the constitution barring such marriages, which, if approved, would override the court decision.
While there are some differences between the states’ constitution, there are enough similarities “that there’d be something to talk about,” said Cabanne Howard, a professor at the University of Maine Law School and a former Maine assistant attorney general.
“It seems to me there’s enough similarities there to suggest somebody could bring to the law court” a case saying Maine could not deny a gay marriage. “They’d have grounds to litigate,” Howard said.
That first sentence of Maine’s Constitution is almost identical to Massachusetts’, Howard said, adding that when Maine broke away from Massachusetts and became a state in 1820 it borrowed from Massachusetts’ Constitution.
One difference, however, is that Massachusetts’ Constitution was amended and an anti-discrimination sentence added to Section 1. In 1963, Maine amended its constitution adding a differently worded anti-discrimination sentence in Section 6-A.
Whether the placement would make a difference to a Maine court, or whether Maine’s court would rule as Massachusetts did, is unknown, Howard said.
There is other language in the Massachusetts Constitution not in Maine’s, but those two sections seem the most applicable in the gay marriage controversy, Howard said.
However, Jennifer Riggins, another law professor at the University of Maine Law School, said she doubted a Maine court would rule as the Massachusetts court did, given the differences in the two constitutions.
She was reluctant to comment further, saying, “It would not be prudent to discuss this now.”
Patricia Peard, a Portland lawyer serving on the Maine Council of Gay and Lesbian Defenders, said it would be difficult to predict what a Maine court would do.
“There’s similar language, but there are variations. We do not have the same provision, so I can’t tell you whether our courts would interpret it in the same manner.”
Like Howard, Peard said Section 1 and Section 6-A of Maine’s Constitution are the “pertinent ones. They deal with natural rights.”
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