In 1997, Maine's Legislature passed “An Act to Protect Traditional Marriage and Prohibit Same-Sex Marriages” (Act). The summary attached to the bill states that the bill “prohibits persons of the same sex from contracting marriage.” The bill was the verbatim text of an initiative petition. Civil marriage in Maine and other states is regulated by state statute, and marriage regulation is generally considered to be within the state's police power. However, the state's power to regulate marriage is subject to constitutional limitations. I maintain that “heightened scrutiny” should be applied to the Act because the Act creates a gender-based classification, burdens fundamental rights, and discriminates on the basis of sexual orientation. The Act would not survive heightened scrutiny. In addition, if the less exacting “rational basis scrutiny” test is applied to the Act, it would not survive that scrutiny either, particularly applying the ideas contained in Romer v. Evans. This analysis will demonstrate that the Act is unconstitutional and should either be repealed or struck down.

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