Legal Memorandum Challenges Yes On 1 Claims

The No On 1/Protect Maine Equality has released a challenge to the “Laycock Letter” use in the recent Yes On 1 campaigns.   You can read the Laycock letter here (pdf warning)

The NO on 1/Protect Maine Equality campaign today slammed the latest attempt by the Yes campaign to distract voters from the real issues surrounding Question 1.  On Thursday, the Yes campaign produced — for the first time — a letter by University of Michigan law professor Douglas Laycock to Gov. John Baldacci urging him not to sign the bill unless it contained certain provisions Laycock claimed would address religious liberty.

The Laycock letter is dated April 30, 2009, just days before the Legislature passed and the Governor signed the bill on May 6, 2009.  Professor Laycock, who represents himself as a supporter of marriage equality, did not participate in what was a very public and open process that began early in 2009 when the bill’s filing was announced.  On Friday (September 18, 2009), NO on 1 released a detailed memorandum by distinguished Maine legal experts that methodically refutes the claims in both Professor Laycock’s letter and the Yes Campaign’s television and radio ads.

“Unfortunately, the Yes Campaign is rolling out another out-of-state lawyer to set up a legal smoke screen in an attempt to divert attention away from the hallmarks of the legislation — equality and fairness for all Mainers,” said State Senator Barry J. Hobbins, a member of the Maine Legislature’s Joint Standing Committee on the Judiciary and a lawyer with 30 years experience practicing in the state.  “This bill was carefully and thoughtfully written to protect religious liberties.  Opponents are spewing the same tired arguments to fight against civil rights.”

“This is nothing more than political gamesmanship,” said NO on 1 campaign manager Jesse Connolly.  “Professor Laycock did not participate in the public debate, never contacted the bill’s sponsors and literally FEDEXed his letter to the governor in the final hours before passage.”

The Yes On 1 campaign posted a rebuttal on their Stand For Marriage website:

“Unfortunately for Jesse Connolly and the No on 1 campaign, the shot they thought was aimed at us instead has ricocheted and is now squarely lodged in their own foot,” said Marc Mutty, Chairman of Stand For Marriage Maine, the official Yes on Question 1 campaign. “One of the legal scholars they dismiss as ‘liars’ includes Professor Douglas Laycock, a prominent scholar who supports homosexual marriage. In their desperation to avoid the legitimate discussion of serious issues raised by the legalization of homosexual marriage, the No on 1 campaign has wounded itself and done a great disservice to the people of Maine.”

Stand For Marriage Maine is running a television ad featuring Boston College Law School Professor Scott FitzGibbon discussing the consequences of legalizing homosexual marriage. Professor FitzGibbon references a letter sent to Governor Baldacci from four prominent legal scholars from:

  • University of Notre Dame Law School;
  • Washington and Lee University School of Law;
  • University of Missouri; and
  • The University of St. Thomas School of Law.

Responding to the commercial, No on 1 Campaign Manager sent an email saying, “Our opponents know that to defeat us, they need to flood the airwaves with fear-mongering, lies and distortion. They need to mislead the good people of Maine and change the subject by inventing so-called consequences of marriage equality.”

Unfortunately for Connelly, a prominent pro same-sex marriage legal scholar, Professor Douglas Laycock of the University of Michigan Law School, separately wrote Governor Baldacci endorsing the conclusions of the other scholars. “…[T]heir analysis of potential legal conflicts is accurate, and their proposed statutory language is necessary to legislation that is fair and just to all sides.” Professor Laycock went on to say, “I support same-sex marriage. I think the pending bill can be a great advance for human liberty. But careless or overly aggressive drafting could create a whole new set of problems for the religious liberty of those religious believers who cannot conscientiously participate in the new regime.”

Stand for Marriage has it wrong.  You can read in the response from No On 1 that no one called Professor Laycock a liar.  To say that No On 1 disagrees with Prof. Laycock, even if he is a same-sex marriage supporter, is not labeling the professor a liar.  In good debate we argue back and forth, present a claim, refute the other sides claims.  Also, because one pro same-sex marriage law professor does not support certain parts of LD 1020, doesn’t mean all law professionals agree.  No On 1 has provided their own legal rebuttal to Yes On 1 claims, which you can read here (pdf warning).  Two former attorney generals(including Steve Rowe), two law professors, as well as Senators Libby Mitchell and Hannah Pingree worked to produce the memorandum.

The memorandum refutes many of the claims made by Yes On 1.  I present you with a few of the claims that the “Fitzgibbon Ad” raises and the memorandum’s replies.

There will be a flood of lawsuits individuals, small businesses and religious groups if LD 1020 is upheld.

There is simply no, and we repeat, no evidence for that assertion.  Massachusetts has the longest experience with marriage of same-sex couples (dating back to May 2004), but [Professor Fitzgibbon] cannot point to any lawsuits, let alone a flood, against individuals,small businesses and religious groups. 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.”

Religious institutions tax exemptions are at stake

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.

Same-Sex marriage will be taught in schools whether parents like it or not.

Whatever the situation in other states, Maine’s public school curriculum is governed by state-wide learning standards. “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.

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.  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 notrequired 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.

Many times I have said that Maine is not like other states.  You can’t just copy and past what happens in other states and say the exact same thing will happen here.  This includes same sex-marriage.  What has happened in Iowa, California, or Massachusetts can not be guaranteed to happen here.  Because we are later to the game, Maine has had time to learn from other state’s mistakes.  Maine has it right.  LD 1020 is the right bill.  It has the right civil rights assertions for same-sex couples with the right protections for religious freedoms.  It is the right time to make everyone equal in the great state of Maine.

One Response

  1. Another thoughtful and well-constructed post. I certainly agree.

    I do wonder, on issues such as this, how many people ever switches positions based on a campaign’s efforts? Gay Marriage and abortion rights come to mind as two topics where most people’s opinions are strongly set in stone one way or the other. Or maybe more to the point, I sometimes wonder if the outcome of a vote on gay marriage would be any different if it happened on the day that it was put on the ballot vs. the day the votes are cast. I can’t imagine that the numbers would be much different in any state. Anyhow, that’s just me ranting!

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