Did Maine's 2009 marriage equality law require Maine public schools to teach about same-sex marriage?

Subject

Whether PL 2009, c. 82 ("An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom"), which extended civil marriage to same-sex couples, required Maine public schools to teach about same-sex marriage.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

Maine's marriage-equality bill (LD 1020) was enacted in May 2009 and signed by Governor John Baldacci. A people's veto referendum was scheduled to put the law on the November 2009 ballot as Question 1. In the months before the vote, opponents argued that the new law would force Maine public schools to teach about same-sex marriage, citing a Massachusetts case, Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008).

Department of Education Commissioner Susan Gendron asked AG Janet Mills for a legal view. The AG's answer: the new law had no effect on school curricula.

The reasoning rested on three points. First, PL 2009, c. 82 amends Title 19-A, the marriage statute. It governs who may marry, premarital agreements, divorce, support obligations, and division of marital property. It says nothing about education.

Second, the AG searched Maine's education laws for any reference to marriage in school curricula and found none. The Maine Learning Results (20-A M.R.S.A. § 6209) set educational standards in math, reading, science, and graduation requirements. They do not specify content related to marriage. Local school boards approve curriculum content under § 1001(6) and (10-A); state law does not dictate textbooks or reading materials.

Third, Maine already had a religious-accommodation safeguard built into the Learning Results statute. Section 6209 requires "accommodation provisions for instances where course content conflicts with sincerely held religious beliefs and practices of a student's parent or guardian." The AG noted the example: parents whose religion prohibits voting can already seek accommodation from the civics curriculum requirement; parents whose religion prohibits dancing can seek accommodation from PE classes that involve dancing. Department of Education rule 05 071 CMR 127-3.07 sets out the local-superintendent process for handling those requests.

On the Parker v. Hurley question, the AG explained that the case did not stand for what the opponents claimed. Parker held that there is no federal First Amendment right to opt-out review of public-school books, in a case where there was no formal curriculum requirement, no coercion, and no indoctrination. The decision turned on federal constitutional law, not state marriage statutes, and pointedly directed parents to local school board political processes for curriculum changes.

The AG concluded: neither LD 1020 nor Parker v. Hurley requires or allows the teaching of any particular subject in Maine public schools. Private and religious schools remain free to teach according to their own beliefs.

Common questions

Q: Did the same-sex marriage law force schools to use particular textbooks or lesson plans?

No. The law amends Title 19-A (marriage law). Title 20-A (education law) has its own structure for setting curriculum, and the marriage law did not change that structure.

Q: What is the religious-accommodation rule for Maine public schools?

20-A M.R.S.A. § 6209 requires accommodation when course content conflicts with a parent's or guardian's sincerely held religious beliefs. The implementing rule, 05 071 CMR 127-3.07, has the local superintendent attempt to provide accommodation; if that fails, the Commissioner is involved.

Q: What did Parker v. Hurley actually hold?

The First Circuit held that a Massachusetts public school's use of books depicting same-sex couples did not violate the First Amendment rights of parents who objected on religious grounds. The court emphasized that there was no federal First Amendment right to advance review of school books, and that parents' remedy lies through local political processes. The case did not decide what state law requires schools to teach.

Q: How did the referendum on Question 1 turn out?

The opinion was issued in October 2009, before the November vote. The referendum result, and the later Maine same-sex marriage history (including the 2012 ballot question that ultimately legalized marriage equality in Maine), are factual matters outside the opinion's scope.

Background and statutory framework

Maine's marriage statutes live in Title 19-A. PL 2009, c. 82 expanded civil marriage to same-sex couples, reaffirmed prohibitions on related-party marriage and disability-based marriage, and added a religious-conscience exception preventing courts and government entities from interfering with religious institutions' policies.

Maine's school curriculum framework is in Title 20-A. The Maine Learning Results under § 6209 set educational standards and graduation requirements but leave curriculum content to local school boards under § 1001(6) and (10-A). Section 6209 requires religious accommodation when content conflicts with parent religious beliefs.

Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), addressed federal First Amendment claims by parents seeking to opt their children out of public-school books depicting same-sex couples. The First Circuit rejected the claims, finding no constitutional right to advance review and no coercion or indoctrination in the underlying record.

Citations

• PL 2009, c. 82 (LD 1020) (civil marriage equality)
• Title 19-A M.R.S.A. (marriage)
• 20-A M.R.S.A. § 6209 (Maine Learning Results; religious accommodation)
• 20-A M.R.S.A. § 1001(6), (10-A) (local school board curriculum approval)
• 05 071 CMR 127-3.07 (Department of Education accommodation rule)
• Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), cert. denied, 129 S.Ct. 56 (2008)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2009/ag_20091015.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

MAINE STATE LEGISLATURE

    The following document is provided by the
   LAW AND LEGISLATIVE DIGITAL LIBRARY

at the Maine State Law and Legislative Reference Library
http://legislature.maine.gov/lawlib

Reproduced from scanned originals with text recognition applied
(searchable text may contain some errors and/or omissions)
 2009-05
REGIONAL OFFICES:
84 HARLOW ST .. 2ND FLOOR
BANGOR, MAJNE,04401
TEL (207) 941.,3070
FAX: (207) 941-3075
]ANETT. MILLS
ATTORNEY GENERAL 44 OAK STREET, 4TH FLOOR
PORTLAND, MAINE,04101-3014
TEL, (207) 822-0260
FAX: (207) 822-0259
TDD: (877) 428-8800
STATE OF MAINE
TEL: (207) 626-8800 OFFICE OF THE ATTORNEY GENERAL 14 ACCESS HIGHWAY, STE. l
TTY: 1-888-577-6690 CARIBOC, MAINE,04736
6 STATE HOUSE STATION TEL (207) 496-3792
AUGUSTA, MAINE 04333,0006 FAX: (207) 496-3291

                                        October 15, 2009

Susan A Gendron, Commissioner
Maine Department of Education
23 State House Station
Augusta, ME. 04333-0023

                  RE:   Referendum Question 1

Dear Commissioner Gendron:

You have asked about the implications of LD 1020, PL 2009, ch. 82, "An Act to End
Discrimination in Civil Marriage and Affirm Religious Freedom," on the development of school
curricula in our state. My office's analysis of the issue reveals no impact on the curricula of
Maine's public schools.

LD 1020, as enacted by the Legislature and signed into law by the Governor on May 6, 2009,
expands the availability of civil marriage to couples of the same gender. It also reaffirms the
strict prohibitions on marriage by related parties, marriage by persons under disability and
multiple marriages. It then allows a specific religious conscience exception, prohibiting any court
or state or local governmental entity from interfering with any religious institution's policy or
teachings.

The provisions of this new law pertain expressly to Title 19-A, which defines in what instances
the state will recognize a couple's marriage, when a premarital agreement is authorized, how a
marriage is dissolved by the court through divorce or separation, how married individuals are
obligated to support one another and their children, the rights of children and the division of
marital property upon dissolution of a marriage and many other rights and responsibilities
surrounding the legal institution of marriage.

The status of marriage as legally defined in Title 19-A also incidentally determines rights of
inheritance, rights to tort claim damages, right to medical information, the right of privilege
against disclosure of private communications, the right of priority as guardian or conservator or
custodian of a deceased's remains and other rights and responsibilities under Maine's civil laws.

I have scoured Maine laws relating to the education of its children for any references to marriage
in the public school curricula. I have found none.

As you are well aware, the guidelines for Maine's public school curricula are established by the
"Maine Learning Results," which set out educational standards for mathematics, reading, science
and technology, as well as minimum graduation requirements in English, math, science and other
core subjects. These guidelines are then reviewed at the local level as locally elected school
boards determine the exact content of each district's curricula. Nothing in state law dictates that
any particular text books or other reading materials should be used or made available in the
public schools.

In fact, for parents concerned about educational practices in Maine, safeguards for persons with
religious beliefs are already provided in the law: The Maine Learning Results statute, 20-A
M.R.S.A. sec. 6209, requires "accommodation provisions for instances where course content
conflicts with sincerely held religious beliefs and practices of a student's parent or guardian."

Thus, if parents with religious beliefs which do not permit them to vote do not wish their
children to be taught about their duty to vote in civics classes, for instance, they could seek
accommodation under this law. Likewise, parents with religious beliefs which prohibit dancing
might seek accommodation for their child regarding physical education classes that involved
dancing. (See Dept. of Educ. 05 071 CMR 127-3.07, which requires the local superintendent to
make accommodations before asking the Commissioner for assistance.).

The political process, to which the courts often refer, also provides a recourse for families who
wish to pmiicipate in the development of curricula in their local schools. See 20-A M.R.S.A.
secs. 1001(6) & (10-A) (duty of the school board to "approve educational materials").

I have reviewed the one Massachusetts case cited by ce1iain advocates in opposition to the
maITiage measure passed by our legislature. That case, Parker v. Hurley, 514 F.3d 87 (1st
Cir.2008), cert. den., 129 S.Ct. 56 (U.S.2008), does not stand for the proposition that any
paiiicular educational materials must be taught, used or referred to in that state's public schools.
That case declared, regardless of that state's definition of marriage, that there is no federal First
Amendment right to prior review of books made available in the public schools. The case does
pointedly make reference to the parents' political recourse through the local school board.

Impo1iantly, there was no allegation in the Parker case of "a formalized curriculum requiring
students" to read books "affirming gay marriage" or anything that constituted "coercion" or any
viable claim of "indoctrination," according to the comi, ibid, 105-07; any such practices which
offend religious beliefs would probably have been struck down. Nor did the decision turn on any
provision of state law relating to either marriage or education.

The holding of the Parker case would apply to any parents who might not want their child to be
exposed to certain viewpoints in a public school, whether it be discussions limited only to
traditional heterosexual marriage; or depictions of adoption families, foster care and other
nontraditional family situations; or discussions of differing theories of government, religion,
philosophy, science or history. Parker simply states that there is no automatic federal judicial
remedy for such objections to educational materials.

Whatever the benefits and burdens of the civil institution of mmTiage, the state's definition of
marriage has no bearing on the cmTicula in our public schools, either under cuITent law or under
LO 1020. Neither the Parker decision nor passage of LO 1020 "requires" or "allows" the
teaching of any pmiicular subject in our schools, in answer to the citizen question attached to
your letter.
What is taught in private or religious schools, of course, may include the principles and religious
tenets of those organizations regarding family institutions and other subjects, and nothing in LD
1020 would change that prerogative of private or religious institutions to instill those beliefs in
their children either at home or at their schools.

I trust this letter adequately addresses your question and the concerns of citizens who have
sought advice from your department.

                                                 Very truly yours,



                                            %~:~ Attorney General

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