Equal Rights Under Maine Law: a History Lesson


On Friday, applying intermediate scrutiny, the Connecticut Supreme Court held, as did the highest courts in Massachusetts and California, that under its state constitution, marriage rights could not be denied to same-sex couples: http://www.jud.state.ct.us/external/supapp/archiveAROsup08.htm (click on Kerrigan v. Commissioner of Public Health).

What’s Maine’s history of relying on its own constitution in examining rights? That could be the topic of a long law review article (or several), not a short blog entry. But here’s one short snapshot about which all Maine citizens can feel justifiably proud.

Name the most depressing U.S. Supreme Court decision. Dred Scott must be up there, right? Scott v. Sanford, 60 U.S. (19 How.) 393 (1857): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=60&invol=393

That’s where the majority, citing, among other things, racial inferiority, held that blacks couldn’t be citizens. See e.g., id. at 409 (citing “the deepest degradation” “fixed upon the whole race.”). Among other things, this decision helped instigate the Civil War. Not the Supremes’ finest hour.

Well, the Maine Court, I am happy to say, would have none of this. Noting that the U.S. Supreme Court could do whatever it wanted, the Maine Court said that this racial inferiority line was nonsense, and at least up here in Vacationland, citizenship wouldn’t be dependent on color. Opinion of the Justices, 44 Me. 507 (1857). Writing separately in support of this conclusion, Woodbury Davis specifically cited the quotation I noted above from the Supreme Court’s decision, expressly rejecting it. Opinion of Judge Davis, 44 Me. 576 (“It seems to me that such assertions and such doctrines need only to be stated, in order to be rejected. They are so clearly in conflict with the whole tone and spirit, both of the writings and the deeds of the great men of the revolution, that it is difficult to conceive how they can be credited by any intelligent, unprejudiced mind. The worst enemy of our institutions could hardly say anything better adapted to blacken the character of our ancestors, and cast reproach upon their memories.”)

Good for ME. There’s a reason why the state motto is Dirigo.