MEMORANDUM

To: Members of Maine Media

From: Senate President Elizabeth Mitchell (Vassalboro); Speaker of the House Hannah
Pingree (North Haven); Representative Emily Cain (Orono); Former Attorney
General Steven Rowe; Former Attorney General James Tierney; Dean Peter
Pitegoff, University of Maine School Of Law; David Cluchey, Professor,
University of Maine School of Law
Re: Yes on 1 (Stand for Marriage) Advertisements of Sept. 15, 2009
Date: Sept. 18, 2009

The Television and Radio Ads

The Yes on 1 Campaign began running a television advertisement providing as follows:

Narrator: Special interest groups got the legislature to approve homosexual

marriage, and tried to prevent Mainers from voting. But Question 1 gives us our
vote.

Professors Scott Fitzgibbon (Boston College Law School): Unless Question 1

passes there will be real consequences for Mainers. Legal experts predict a flood
of lawsuits against individuals, small businesses and religious groups. Church
organizations could lose their tax exempt status. Homosexual marriage – taught
in public schools whether parents like it or not.

Narrator: Vote yes on question one to preserve traditional marriage between one
man and one woman.

In addition, the Yes on 1 Campaign is running a radio advertisement as follows:

Speaker Pingree: The Chair recognizes the representative from Brunswick.

Narrator: Special interest groups got the legislature to approve homosexual

marriage and tried to prevent Mainers from voting on it. Representative Charles
Priest.

Rep. Charles Priest: We ought not to sent it out to referendumNarrator: But

Question 1 gives us our vote. Scott Fitzgibbon, Professor of Law of Boston
College Law School

Scott Fitzgibbon: “Unless Question 1 passes, there will be real consequences for
Mainers. It will not longer be live and let live. Homosexual marriage will be the
law whether Mainers like it or not.”

Voice Over: Dear Governor Baldacci, we write to provide you with an analysis
of the effects…”

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 Professor Fitzgibbon: Distinguished legal scholars wrote the Governor warning
of the flood of lawsuits against individuals, small businesses, and religious
groups. Church organizations could lose their tax exemption. And in
Massachusetts, homosexual marriage is taught in public schools. Federal courts
have ruled that parents have no right to notice, or to pull their children out of this
instruction.

Narrator: Vote Yes on Question 1 to preserve traditional marriage between one

man and one woman. Paid for by Stand for Marriage Maine. Titles for
identification only. No university endorsement implied.

The Ads Are False and Misleading.

As the legislative leaders, former Attorneys General, and as the Dean and a long-time
faculty person of the School of Law, we take issue with the false and misleading
allegations and insinuations in these advertisements.

The Legislative Process Was Fair and Open.

Senator Damon announced he would be filing a marriage bill on January 13, 2009. From
that point forward, thousands of Maine voters contacted their legislators to make their
opinions known. These opinions were expressed in a variety of forms: conversations in
the legislative districts; one-on-one or group meetings between constituents and their
elected representatives; constituent letters, phone calls, emails and postcards; and contact
with legislative staffers. In these nearly five months of deliberations, the simple fact is
that far more supporters of the bill came forward than opponents. For example, it has
been reported that Equality Maine sent the legislature 50,000 postcards from Maine
voters in favor of marriage equality.

All legislative bills are filed and considered in the light of day and go through a public
process. Not only was the marriage bill the subject of direct public comment, this was an
issue and process that received enormous media attention, with views on both sides of the
issue widely reported throughout the state.

Leadership made the decision to move the public hearing before the Joint Committee on
the Judiciary to the Augusta Civic Center to accommodate what was expected to be an
overflow crowd. Media reports confirm approximately 4,000 came to the hearing. The
Committee organized the testimony so that each side was given alternating 30 minute
blocks, with a total of nearly 12 hours of live testimony. Those who wanted to speak did,
and in addition, the Committee accepted written comments. Those written comments
filled two compact discs that were available to all Committee members and legislators.

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Nonetheless, it was clear to all of us that the public hearing drew many more supporters
of marriage equality than opponents, an observation supported by the media in
attendance.

More importantly, we note that while individuals testified on both sides, many more of
the bill’s proponents testified on behalf of organizations, such as the Maine Chapter of
the American Academy of Pediatrics, Maine’s Chapter of the National Association of
Social Workers, the Maine Children’s Alliance, and the Portland and Bangor NAACP
chapters.

In terms of religious voices heard that day, Bishop Richard Malone testified for the
Roman Catholic Diocese in opposition to the bill, as did pastors of many churches
scattered throughout Maine. Yet, the religious testimony was balanced with supporters of
marriage equality including the Bishop of the Episcopal Diocese of Maine Steven Lane,
the Rev. David Gaewski, the Executive Minister of the Maine Conference of the United
Church of Christ (accompanied by dozens of clergy), three rabbis, an American Baptist
Minister, dozens of Unitarian Universalist ministers, and lay Catholics.

At their best, legislators make informed judgments while consulting their constituents
who elected them to make critical decisions on behalf of Maine. The intensity of
constituent contacts supporting marriage equality made a difference.
In summary, we believe it is both cynical and disrespectful to turn the public debate and
discussion on this law into a “special interests” campaign slogan. While we understand
the heartfelt opposition to marriage equality, we cannot believe that the parents from Fort
Fairfield, Farmington, Biddeford and Yarmouth testifying about their gay and lesbian
children, or two mother families testifying on behalf of themselves and their children, are
“special interests.”

The People’s Veto Process Is Working As Intended.

As support for Senator Damon’s bill grew, some legislators began discussions about
passing the bill with a referendum provision attached. Other legislators intensely
opposed this effort, reasoning that they should take an up or down vote on the bill, and
not “pass the buck.” Rather than impose such a vote on Maine’s electorate, legislators
also knew full well – as does the Yes on 1 campaign - that the voters may use the
constitutionally available People’s Veto process to challenge a legislative measure on the
ballot. (See Me. Constitution, Art. IV, Pt. 3, § 17.) In fact, Representative Charles Priest
went on to say just that, a fact omitted from the radio ad. The fact is, there is a method
for obtaining a referendum, and it begins with five voters taking it upon themselves to
begin the process. As a result, the Legislature rarely attaches a referendum provision to
any legislation. There was no reason to treat this measure any differently. In the end,
the proposed referendum amendments were easily defeated, as has been the common
practice with other legislation.

In summary, to suggest that the Legislature (or anyone else) “tried to prevent Mainers
from voting” is false and misleading. Even as the Governor signed the law, he

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acknowledged his signature was not likely to be the last word. The truth is that the
process is working as intended and a vote is scheduled for Nov. 3, 2009. Even the
advocacy groups supporting the bill – and opposed to Question 1 -- are on record saying
they look forward to the referendum and discussing marriage equality with the people of
Maine. We would also add that there was no organized opposition to the signature
gathering process for Question 1, and there has been no legal challenge to the ballot
question. This is simply another red herring.

Real Consequences

We agree that Question 1 has real consequences for Mainers. As will become clear
below, we differ with the Yes campaign about what those consequences are. In our view,
the consequences are that a No vote means that the promises of the Maine Constitution to
all of its citizens will be upheld. Maine’s Constitution guarantees everyone rights to
“enjoying and defending life and liberty.” Me. Const. Art. 1, § 1. The Constitution also
says that no person shall “be denied the equal protection of the laws, nor be denied the
enjoyment of that person’s civil rights, or be discriminated against in the exercise
thereof.” Me. Const., Art. 1, Pt. 1, § 6-A.

Denying committed couples the ability to join in marriage, in our view and in the view of
the majority of legislators, violates these bedrock promises in our Constitution. Quite
simply, a No on 1 vote means gay and lesbian couples in Maine and their children will be
treated equally under law. By contrast, a Yes on 1 vote means that same-sex couples and
their children will face continued obstacles and legal discrimination.

There are over 600 laws in Maine that use the terms “spouse,” “husband,” or “wife,” and
another 400-plus that use the terms “marriage,” or “marital.” A significant number of
these laws provide either protections or responsibilities on a married couple, such as a
duty to support one another, treatment as an economic unit for tax and financial purposes,
and safety nets when a spouse is injured, disabled or dies. (For example, see the
testimonies of Maine School of Law Professor Jennifer Wriggins on behalf of the League
of Women Voters, and of the Family Law Advisory Commission.). Same sex couples do
not have access to the vast majority of these marital protections. Our state’s limited
domestic partner registry is a separate system that provides a handful of important rights
in the area of probate, such as the ability to inherit without a will. All the same, we heard
from two women who lost their long-term partners in the last year and were told they
could not arrange for cremation because they were not the real family.

There is No Flood of Lawsuits.

While Boston College Law Professor Fitzgibbon predicts a “flood of lawsuits against
individuals, small businesses and religious groups” if the law is not repealed, there is
simply no, and we repeat, no evidence for that assertion. His home state of
Massachusetts has the longest experience with marriage of same-sex couples (dating back
to May 2004), but he cannot point to any lawsuits, let alone a flood, against individuals,

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small businesses and religious groups.1 That is because there are none. The
Massachusetts Discrimination Law Reporter identifies no cases between 2004 and the
present raising the kinds of issues Professor Fitzgibbon characterizes as “a flood.”

The television advertisement references a New Mexico case, “Elaine Photography v.

Willock (N.M. 2d Jud Dist.),”2 but that case cannot bear the weight placed on it. It
involved a discrimination claim under the New Mexico state law forbidding businesses
from discriminating based on sexual orientation. In that case, a photographer refused to
take pictures of a lesbian couple’s commitment ceremony because they were a lesbian
couple. Like New Mexico, Maine has also decided to forbid such discrimination: when a
business holds itself out to the commercial, secular marketplace, it must abide by the
rules of equal treatment for all. Maine voters upheld this law at referendum in 2005.
The real issue is not about marriage, but about those who object to non-discrimination
laws and want the rights to treat gay people differently from others. The issue could just
have easily arisen if the New Mexico couple had wanted photographs of a birthday party
for one of them.

While this portion of the television ad is playing, a banner across the top of the ad refers
viewers to a letter from legal experts to Governor Baldacci on the Stand for Marriage
website, a letter that is also referenced in the television ad. We have reviewed that letter,
and it is virtually identical to letters received by Senate President Mitchell and Speaker
Pingree from these same individuals in the few days before the marriage bill’s final
passage in the Senate. The letter also makes the same kinds of assertions that were made
by Bishop Malone, an attorney from the Arizona-based Alliance Defense Fund, and
several others at the public hearing on the bill on April 22. Like the photographer
example above, the letter wraps it in marriage, but really attacks the idea that civil rights
laws should protect against discrimination based on sexual orientation.

We reject the assertions raised in the letter for several reasons. First, as will become
clear, these law professors – none of whom are from Maine – are not familiar with Maine
law that protects religious liberties already.

Second, the letter points to a few other examples of conflicts, but concedes that the issue
is “state anti-discrimination laws.” (Letter, page 2) This is like the New Mexico
photographer all over again. It bears repeating that all businesses – whether run by
people who object to dealing with gay people or not – have an obligation under anti-
discrimination laws to treat everyone fairly in the commercial, secular marketplace. That
is why the Amish have to pay social security taxes even though they oppose them on
religious grounds. In Maine, we cannot abide a situation in which a Protestant baker

1
Surely, the ad cannot be referring to issues that arose in Massachusetts concerning, for example,
whether couples could avail themselves of marital protections at times when they were not yet permitted to
marry legally but would have if they had been able to. (See Charron v. Amaral, 451 Mass. 767 (2008). Nor
can they mean the case involving residency restrictions applied only to same-sex couples from out of state.
Cote-Whitacre v. Dept. of Public Health, 446 Mass. 350 (2006). Notably, that law was later repealed by
the Massachusetts legislature. Mass. Statutes 2008, chapter 216, § 1.
2
The actual case citation is Elaine Photography v. Willock, New Mexico Human Rights
Commission, Decision and Final Order, HRD 06-12-20-0685 (April 9, 2008)).

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could invoke her faith as an excuse not to bake a cake for a First Communion celebration.
As U.S. Supreme Court Justice Antonin Scalia wrote in an important case about free
exercise of religion, individuals have an obligation to comply with valid and neutral laws,
even if those laws impose some modest burden on a person’s freedom to act on their
beliefs.3 We cannot have an ordered society if people can pick and choose what laws
they will obey.

Religious Organization Freedoms Are Protected.

Third, any impact of marriage laws on religious organizations is minimal to non-existent.

For one thing, the marriage law has explicit provisions to “affirm religious freedom” and
ensures that no religious faith and no person authorized to perform a marriage will be
subject to any fine or penalty for refusing to do so. It also clarifies that matters of
doctrine, teaching and belief belong with each religious faith. Beyond the marriage law,
exiting Maine law already religious faiths and groups from many aspects of the non-
discrimination law. For example, the letter suggests that a church or religiously operated
not-for-profit organization could be sued if it fired a newly married church secretary.
(Letter, page 3) Not in Maine. Existing Maine law provides exemptions allowing
religious organizations to require that employees conform to the tenets of those
organizations. 5 Me. Rev. Stat. § 4553 (4). In addition, non-profit religious or fraternal
corporations may limit employment to members of the same faith. 5 Me. Rev. Stat. se.
4573-A(2). Notably, there are also exemptions for religious housing and for educational
facilities owned or operated by religious institutions. 5 Me. Rev. Stat. § 4553 (6)(C); 5
Me. Rev. Stat. § 4602 (4).

The letter cites the example of Catholic Charities in Boston as an example of how
religiously operated organizations that receive public funds can lose those funds if they
do not follow non-discrimination rules. It is true that when a sectarian organization does
the public’s business, it is obliged to treat people on the same terms that the government
would treat them. In that case, as detailed by Pierce Atwood attorney Catherine Connors
in her testimony to the Judiciary Committee, then Archbishop O’Malley instructed
Catholic Charities to stop placing children with gay and lesbian families, as it had
occasionally done over the years – long preceding the advent of marriage in
Massachusetts. In response, many members of the board quit the organization, saying
that child welfare issues should predominate in placement decisions. The Archdiocese of
Boston, on behalf of Boston Catholic Charities, sought an exemption from state laws,
even though it was funded by the state to do its adoption work. It chose to cease
providing services rather than place a few special needs children with qualified gay and
lesbian parents -- whether married or not. The salient point is here again, this decision by
the Archbishop had nothing to do with marriage equality, but the non-discrimination law
in Massachusetts long on the books.

After noting a variety of concerns from other states, the letter builds “Examples of
Conflicts in Maine” and points to one: married student housing at religious colleges.
3
Employment Division, Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872, 878-79 (1990).

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(Letter, page 5). The letter claims that many universities in Maine can offer married
student housing, but that for institutions like St. Joseph’s College (a Catholic institution),
that would mean choosing between offering the housing at all or offering it on non-
discriminatory terms. The problem with this example is that St. Joseph’s offers housing
to students, but not married student housing to anyone. The only one concrete example
the authors offer is not even real, but only hypothetical.

Tax Exempt Statuses Are Secure.

At one point, the ad flashes a headline about an IRS complaint filed by an individual in
California about the Roman Catholic Diocese of Portland using its money for political
activities. Marc Mutty, the Diocese’s lobbyist and now and employee of Stand for
Marriage, has acknowledged that the Church has set aside substantial sums for this
campaign.

We think it is notable that no organization in Maine filed this complaint. We also expect
this complaint will not result in an audit or any action against the Portland Diocese. The
reason is simple: churches, like other not-for-profit organizations, are allowed to spend a
percentage of their budgets advocating for or against particular issues. (Expenditures on
candidates are different.) The Yes on 1 campaign knows better. In the past, choice
groups sought to address the tax exempt status of the Catholic Church because of its
many anti-abortion activities and spending. Just as the Catholic Church did not lose its
tax exempt status over that issue, it will not lose its tax exempt status over its
involvement in this campaign.

In Maine, Marriage is Taught At Home, Not At School.

Whatever the situation in other states, Maine’s public school curriculum is governed by
state-wide learning standards.4 “Marriage” of any sort does not appear in those broad
guidelines about what must be taught in Maine’s public schools for any grade level.
Question 1 is not about schools or the curriculum, but about whether committed same-sex
couples in Maine can join in marriage. Instruction about marriage, if it happens, happens
in the home.

The television ad noted “Parker v. Hurley, 414 F.3d 87” as support for the claim that
“Homosexual marriage taught in the public schools – whether parents like it or not.” A
similarly false claim is made in the radio ad.

Mr. Parker lives in Lexington, Mass., where state law since the 1990s has required age
appropriate education about the “diversity of the Commonwealth.” Mass. Gen. Laws ch.
69, § 1D. At the elementary level, schools teach children about “the significance of

4
See 20-A Me. Rev. Stat. § 4711 (basic course of study); 20-A Me. Rev. Stat. se. 6209 (Department
of Education to prepare learning results); 20-A Me. Rev. Stat. § 4502 (learning results implemented at local
level).

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family generally” and desire students to be able to “[d]escribe different types of
families.” “Marriage” is not taught.

The Parkers objected to a book that came home in their son’s “Diversity Book Bag called
“Who’s In A Family?” As Steve Wessler, Executive Director of the Center for the
Prevention of Hate Violence, testified at the Legislature’s public hearing on the bill, the
book is about the love parents have for their children and the love children have for their
parents. It features drawings of many types of families. One family is two women and
their two children. The text of that page is as follows: “Laura and Kyle live with their
two moms, Joyce and Emily, and a poodle named Daisy. It takes all four of them to give
Daisy her bath.” This book says nothing about “marriage, but is the “indoctrination” Mr.
Parker complained of at the public hearing and in federal court.

In the same lawsuit, another family complained that the fairy tale picture book King &
King was read to their son in the second grade. It is about a prince whose mother wants
him to marry a princess, but he falls in love with and marries another prince. They then
rule the kingdom together. Like many other books read to the class, it was not discussed.

Both the Federal District Court and United States Court of Appeals rejected the claims
that mere exposure to these books infringed on the parents’ rights parental or religious
rights Parker v. Hurley, 514 F.3d 87, 102 (1st Cir. 2008) (“[W]e have found no federal
case under the Due Process Clause which has permitted parents to demand an exemption
for their children from exposure to certain books used in public schools.”). Neither child
was forced to affirm anything or punished for their beliefs. Parker, 514 F. 3d at 105. As
the Federal Appeals Court noted, the parents remain free to instruct their children
differently and at home. Parker, 514 F.3d at 105.

Whatever the situation in other states, in Maine, the Learning Results control the broad
content of the curriculum, and “marriage” is not part of those. The Learning Results are
not due for review until 2015.5 Moreover, the local community always has a check on
the process since the specific implementation of the Learning Results is accomplished at
the local level.

If the ad refers to the Comprehensive Family Life Education program, something recently
suggested by Pastor Bob Emrich. See Bill Nemitz, “Gay marriage critic’s email fails the
test,” Portland Press Herald, Sept. 11, 2009 (when teachers instruct students about
“marriage” under “the curriculum,” they would have no choice but to include same-sex
marriage in their lesson plans”). This is simply wrong. Again, that program does not
involve marriage. 22 Me. Rev. Stat. § 1902 (1-A) (describing program). Second, the
program is entirely elective for parents. While the education under that program is not
5
20-A Me. Rev. Stat. § 6209 (4). The process will involve Department of Education officials along
with experts and national consultants. Based on these recommendations, the Department will issue notice
and a call for teachers to volunteer for study panels. No change can be made without the opportunity for
public notice and comment. See generally, 20-A Me. Rev. Stat. § 6211; 5 Me. Rev. Stat. § 8052; 8071-
8072 (changes to Department Regulations in chapter 131 require legislative approval); 5 Me. Rev. Stat. §
8052 (changes to technical rules in chapter 132 are considered by the Board after public notice and
comment).

8
required at schools, but when it does occur in schools, parents have a right to opt out their
children if they choose. 22 Me. Rev. Stat. § 1910. Moreover, the law further provides
that family life education should be “construed to protect the rights of all persons to
pursue their religious beliefs, to follow the dictates of their own consciences, to prevent
imposition upon any person’s moral standards and to respect the right of every person to
self-determination in respect to family planning.” 22 Me. Rev. Stat. § 1909.

Conclusion

It is highly unusual for us to weigh in together in any public campaign. However, we are
all focused on Maine law from our different perspectives as legislative leaders, former
Attorneys General, and as Dean and faculty at the law school. We believe it is paramount
that voters make decisions based on fact and belief, but not on conjecture and distortion.
We can agree to disagree on this matter, but we would suggest the conversation return to
how Maine wants to treat its loving committed gay and lesbian partners who are also co-
workers, neighbors and family members. This is a critical decision for Maine voters, and
we seek to keep the discussion on what is really happening in Maine.