Do you want to reject the new law that lets same-sex couples marry and allows individuals and religious groups to refuse to perform these marriages?”
There are at least two major problems with this referendum question as approved by state election officials. It may appear on the ballot, possibly as early as November, if those groups seeking to overturn the law LD 1020 are able to gather a sufficient number of signatures.
For a ballot initiative that actually bolsters religious liberty, it is bizarre that religious groups primarily are behind the attempt to overturn the law. The new law, as it stands, follows the First Amendment of the U.S. Constitution and keeps government separate from religion. Under the new law, no church or religious body will be required to legitimize same-sex marriages. So why then are the Roman Catholic Diocese of Portland and the Maine Family Policy Council (formerly the Christian Civic League) opposed to a law that celebrates religious freedom?
The answer, unfortunately, is that these religious groups seek to compel the state of Maine to use a ballot initiative as a means of imposing their own particular religious beliefs on all residents, not just on members of their own religious bodies. Anyway you cut it, this is unconstitutional.
But the second problem with the possible referendum question is the wording itself. What if it were to read instead (with additions in bold):
“Do you want to reject the new law that gives same-sex couples the same right to wed as heterosexuals currently enjoy, but that also gives individuals and religious groups the right to refuse to perform these marriages?”
The change in wording from that endorsed by the secretary of state is significant. The law’s intent, after all, is to extend equal rights to homosexuals while not compelling any religious group to sanctify the new right. In this way, the law respects the distance between church and state and upholds religious liberty. Adding the “but” and eliminating the “and” between the two clauses helps emphasize the state’s desire to stay out of religious matters and thereby avoid the constitutional error of favoring any particular religion’s theological beliefs, in this case about homosexuality.
The Maine Legislature’s wisdom and Gov. John Baldacci’s courageous endorsement combined to enact a law that extends equal liberty to a social minority. The new law should be regarded as one of a piece in American democracy’s moving force of expanding individual freedoms. To permit religious minorities to cynically use the state to impose these same minorities’ notion of morality would injure democracy and distort the meaning of the First Amendment.
We may be stuck with the wording approved by the secretary of state, but if a vote is forced, it can only be hoped that voters will vote no and in so doing not only affirm the importance of equal liberty but also reject the anti-egalitarians’ moralistic attempt to use the state to affirm their own religious beliefs.
Roger W. Bowen is former president of State University of New York at New Paltz and author of “Japan’s Dysfunctional Democracy.” He lives in Prospect Harbor.