California's Children Need Protection and Family Restoration

California passed into legislation a unique bill that affects all children in schools across the state because it forces public schools to allow gender-questioning youth to choose whether they would like to use the boys or girls restrooms and locker rooms based on their felt "gender identity." Now signed by the governor, AB 1266 also lets students who believe they are the opposite sex participate in sex-segregated activities, including sports teams. The new law would apply to students in elementary, middle and high school.

This legislation leaves all other children without recourse.  While states have a duty to protect children from harm, it seems that California's legislators are disregarding the safety and privacy of the majority of children in exchange for accommodating an extremely small segment of children.  Among the legislation's concerns is also the disregard for the privacy of students who are not transgender or gender-questioning.  General law-making considers notions that are based on principle, rather than on exception.  Making law based on exceptional circumstances to the general rule never proves to be wise lawmaking, and in this case, it may be harmful to most children.  You can read more on this issue here.

Furthermore, last week a particular example of the effects of this new legislation became apparent.  Teen girls are very negatively affected. Journalist Lori Arnold writes this summary on the event:

            The hot topic in recent weeks at Colorado’s Florence High School hasn’t been about calculus, history, English, college admissions or who the Huskies would face on their Friday night football games. Instead, the big news has centered on a transgendered student who, born male but perceiving himself as female, has been using the girls’ bathroom. The situation prompted a parental complaint to administrators, who responded that the boy’s rights as a transgendered student trump the privacy concerns of his peers. “This is a nightmare scenario for the teenage girls—some of them freshmen—and their parents at this school,” said Matthew McReynolds, a staff attorney with Sacramento-based Pacific Justice Institute (PJI). After being contacted by a Florence High School parent, McReynolds sent a letter to Principal Brian Schipper and Superintendent Rhonda Vendetti outlining the privacy rights of students. “This is exactly the kind of horror story we have been warning would accompany the push for radical transgender rights in schools, and it is the type of situation that LGBT activists have been insisting would not happen.” McReynolds said officials at the school, located near Pueblo, warned the complaining students they could be removed from sports teams or be charged with hate crimes if they persisted in voicing their opposition to the policy.

Read her entire article here.  Legislative efforts are underway to reverse the bill.

Gender equality does not have to up children in danger, or kick them off their sports teams for hate speech by voicing safety and fairness concerns.  Find out more about Christianity and Gender Equality by reading "Christianity, Feminism, and the Paradox of Female Happiness" and "A Christian Perspective on Gender Equality."  Marriage and children are inexorably linked to rebuilding strength within families.  Legislation can be helpful to those goals, or unhelpful to those objectives, as this piece of lawmaking evidences.

Abortion Regs that Protect Life Foster Family Restoration

After Texas Governor Perry called for a special session to vote on HB 2, a bill to protect preborn children from pain inflicted by abortion when the child is 20 weeks gestational age, the bill was passed by a margin of 19-11, marking an unparalleled opportunity to protect innocent babies in Texas, while also protection mothers.  To find out more about the bill, the controversy over it, and the future implications of its passage see the New York Times article on it.

The bill will also increase safety standards for licensed abortion facilities, require that chemical induced (RU486) abortions are performed by FDA standards to protect women’s health, and will require physicians who perform abortions to be qualified to treat life-threatening complications after a flawed abortion by having privileges at a hospital within 30 miles of the abortion facility. 

Advocates for both sides of the debate gathered at the Texas capitol to provide testimony and support, but few expected the level of public incivility that followed when in response to #Stand4Life advocates pro-abortion activists throughout the day shouted epithets in an effort to drown out pro-life speeches and an impromptu rendering of "Amazing Grace." It was clearly a spiritual battle as well as a political one.  CNN's Josh Rubin confirmed these events by tweeting on site: "Crowd of anti-abortion activists giving speeches while a group of people chant 'hail Satan' in the background.” 

Most Americans favor banning abortion after the 20th week of pregnancy, according to a new HuffPost/YouGov poll. But the poll also shows many Americans remain conflicted in their views on abortion. 

Texas’ decision to regulate the off-label use of abortion-causing drugs such as RU-486 is similar to a 2011 Oklahoma measure which is now being reviewed by the Supreme Court of the United States (in a case known as  Cline v. Oklahoma Coalition for Reproductive Justice).  Eight women have died from bacterial infections following an RU-486 medical abortion administered according to one of the off-label protocols, whereas no women have died from such infections following use of the FDA-approved protocol.  Thus, the Oklahoma, and now Texas, Legislatures acted to address this serious health and safety problem by requiring that RU-486 and other abortion-inducing drugs be administered according to the FDA's prescribed protocol, though the Oklahoma Supreme Court held--without analysis or discussion--that the Oklahoma law is facially unconstitutional under Planned Parenthood v. Casey.  The U.S. Supreme Court granted the state of Oklahoma's request to review that decision, and asked the Supreme Court of Oklahoma to answer whether the Oklahoma law prohibits: (1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat ectopic pregnancies.  This is an historic review, and the U.S. Supreme Court has stayed further proceedings in this case until they receive a response from the Supreme Court of Oklahoma.

The United States Congress will vote on the Pain-Capable Unborn Child Protection Act (H.R. 1797) which states that because there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, a compelling governmental interest exists in protecting unborn children from this stage. Congressman Trent Franks (R-Az) who has sponsored the bill stated, “Knowingly subjecting our innocent unborn children to dismemberment in the womb, particularly when they have developed to the point that they can feel excruciating pain every terrible moment leading up to their undeserved deaths, belies everything America was called to be. This is not who we are.”  Rep. Trent Franks, R-Ariz., introduced the Pain-Capable Unborn Child Protection Act to Congress in April. The House approved the bill by a vote of 228-196. More information on it is available at CitizenLink. 

All of these bills are pro-woman, pro-child, pro-science, and pro-family.   Finally, the Tenth Circuit Court of the United States provided an important victory for Christian business owners against the HHS Contraception Mandate, as Hobby Lobby and its sister organization, Mardel, a Christian bookstores proprietor, were upheld in their refusal to provide coverage of drugs they believe cause abortion and, therefore, violate their religious beliefs. The Tenth Circuit held "that Hobby Lobby and Mardel are entitled to bring claims under RFRA (the Religious Freedom Restoration Act), have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.” The District Court for the Western District of Oklahoma subsequently granted the injunction.

Protecting lives of mothers and preborn children is a solid key to family restoration.  Texas made a bold step in that direction this past summer.  Congress and federal courts could follow.

Transforming Child Welfare for Restoration of Families

The welfare of children has been a concern of Americans for centuries.  That concern manifested itself in the 20th century as a large bureaucracy of administrative agencies who knew better than parents and families what was best for children.  But child welfare reform is taking place now in the 21st century.

While traditional child welfare work involved mostly agency action, Crystal Foster has worked with the Annie E. Casey Foundation on her research for the Child Advocacy Practicum last spring, developing an understanding of how children can be best protected.  See her presentation here.

The 21st century ideas about child welfare maintain child safety as the primary concern.  A major federal law in favor of that trend was the Adoption and Safe Families Act of 1997 (ASFA), promoting the adoption of children into forever families from foster care.  Child Welfare Agencies now use a family-centered, rather than an agency-centered, focus for children.  The focus ensures the safety and protection of children while preserving and supporting families. 
  

This focus brings a team of players together to help determine the least traumatic situation to promote a child's best interests.  That means that caseworkers, family members, the child, friends, relatives, neighbors, teachers, clergy and counselors all work together toward the solution.  It also means that families are a resource, and anytime a child can be cared for by kin and relatives, that is preferred.

Transforming child welfare for the restoration of families for children will take time, but it is well on its way.  Children deserve our best efforts in the 21st century.

Family Restoration and Advance Directives in Protocal Medical Care

Advance Directives afford individuals an important opportunity to make their wishes regarding end of life decisions known to medical professionals, courts, and family members.  These documents, signed by the creating party, can confer decisions regarding pain management, hospitalization, and resuscitation decisions.

These decisions are important for individuals and families to understand.

Recent Regent Law Graduate, Colby Barron Hein, researched these concerns under Texas law for her article and presentation entitled "Death Panels in Texas?  An Examination of the Texas Advanced Directives Act." She writes about the case of one individual named S.M., and her family's fight for her life:

For several weeks, S.M. had been complaining of severe headaches to her parents.  S.M. was desperate for relief from the pain, so her parents took her to the emergency room to ensure there were no serious problems.  The doctors performed a brain scan and discovered she had severe sinusitis, which had leaked into the brain and caused an abscess.  To drain the abscess, the doctors performed a routine craniotomy.   S.M. was expected to fully recover in a matter of weeks.  However, the day after the surgery S.M. felt nauseous and complained of severe pain.  Nurses gave her morphine, but it failed to alleviate the pain.  S.M. begged for help and started vomiting.  Frantically tearing at the I.V. and the post-surgical wrappings on her head, the nurses strapped her arms with restraints and administered another dose of morphine.  Without warning, S.M.’s body seized up, her back arched, she gasped, and then collapsed onto the bed.  She flat-lined.

 The hospital staff revived S.M., but the swelling pressure in her head necessitated an emergency brain surgery.  After the second surgery, S.M.’s parents were told that their daughter had two strokes and was in a coma that the doctors believed would be permanent.  Within days of the second surgery, the hospital staff began discussing S.M.’s “options” with her parents.  Doctors and nurses began pressuring S.M.’s parents to withhold treatment, food, and water, which would starve S.M. to death.  When her parents refused to withdraw life-sustaining treatment (LST), the hospital repeatedly harassed them to terminate care and “did everything they could to end . . . [S.M.]’s life  . . . .”  The hospital eventually threatened to convene the ethics committee, which under Texas law can withdraw LST from a patient over the objections of the patient or the patient’s surrogate decision maker.  Fortunately for S.M., an experienced attorney intervened and transferred S.M. to another hospital willing to provide medical care.  S.M. will never be able to take care of herself again; but on the other hand, she is still alive.

S.M.’s parents requested medical treatments that would have permitted S.M. to leave the hospital and be cared for at home, but the doctor’s refused alleged that the doctors refused to provide the treatments because the doctors felt S.M. “wouldn’t have a high quality of life.”  The doctors and nurses believed it was futile to provide S.M. with additional medical treatment, for the appropriate course of action was to “pull the plug.”  When a physician views medical treatment as medically inappropriate and refuses to provide the additional care in spite of the express wishes of the patient or surrogate decision maker, this situation is called a futility dispute.  When a doctor refuses to provide “futile” treatment that conflicts with the standard of care, the doctor must determine the appropriate course of action: transferring the patient to another physician, continuing the futile treatment, or unilaterally removing the treatment from the patient.  Most jurisdictions accept transfer as an appropriate resolution to futility disputes, but, if no providers are willing to accept the patient, the physician can either unilaterally withdraw the treatment or be forced by a court to continue providing LST.   In every single state but Texas, the law prohibits healthcare providers from unilaterally overriding a patient or surrogate’s wishes to continue LST.  The Texas Advance Directives Act (TADA) permits doctors to refer futility disputes to a hospital’s ethics or medical committee, which can choose to deny or withhold wanted medical treatment—including LST—over the express wishes of the patient or surrogate.

When S.M.’s parents discovered the ethics committee had the statutory authority to withdraw LST from their daughter, they were shocked.  S.M.’s case was never officially referred to the ethics committee,  but her story is one in a series of cases raising serious ethical and constitutional issues regarding the broad powers given by the TADA to review committees.  Opponents of the law—ranging from the liberal ACLU to conservative right-to-life groups—claim it gives medical providers too much power and encroaches on patient autonomy.  Proponents—primarily those working in health care—argue the TADA is essential to protect physicians when medical standards indicate treatment is inappropriate and emotional relatives cannot objectively determine the best interest of the patient.  The American Medical Association recommended an approach based on due process as the best method for balancing patient and physician rights in futility disputes.  Texas sought to incorporate a process-based approach to futility determinations in the TADA, but the law does not accurately reflect a true due-process model.

Hein's article is an attempt to reconcile advocates and opponents of the TADA by analyzing the existing law and proposing amendments that would incorporate a true process-based method. She discusses the history of futility disputes, different definitions of futility, and clarifies which definition should be adopted. Her work also describes the genesis of the Texas Advance Directives Act and explains the procedures for futility disputes set forth under the TADA, and lays out the flaws of the TADA and submits proposals to alter and improve the current law. Read the entire article here.

An understanding of the law surrounding the use and application of advance directives is necessary for strong families and a nation's attempts toward family restoration.

Abortion Regs that Protect Life Foster Family Restoration

            After Texas Governor Perry called for a special session to vote on HB 2, a bill to protect preborn children from pain inflicted by abortion when the child is 20 weeks gestational age, the bill was passed by a margin of 19-11, marking an unparalleled opportunity to protect innocent babies in Texas, while also protection mothers.  To find out more about the bill, the controversy over it, and the future implications of its passage see the New York Times article on it.

            The bill will also increase safety standards for licensed abortion facilities, require that chemical induced (RU486) abortions are performed by FDA standards to protect women's health, and will require physicians who perform abortions to be qualified to treat life-threatening complications after a flawed abortion by having privileges at a hospital within 30 miles of the abortion facility.  
            Advocates for both sides of the debate gathered at the Texas capitol to provide testimony and support, but few expected the level of public incivility that followed when in response to #Stand4Life advocates pro-abortion activists throughout the day shouted epithets in an effort to drown out pro-life speeches and an impromptu rendering of "Amazing Grace." It was clearly a spiritual battle as well as a political one.  CNN's Josh Rubin confirmed these events by tweeting on site: "Crowd of anti-abortion activists giving speeches while a group of people chant 'hail Satan' in the background."

            Most Americans favor banning abortion after the 20th week of pregnancy, according to a new HuffPost/YouGov poll. But the poll also shows many Americans remain conflicted in their views on abortion.

            Texas' decision to regulate the off-label use of abortion-causing drugs such as RU-486 is similar to a 2011 Oklahoma measure which is now being reviewed by the Supreme Court of the United States (in a case known as  Cline v. Oklahoma Coalition for Reproductive Justice).  Eight women have died from bacterial infections following an RU-486 medical abortion administered according to one of the off-label protocols, whereas no women have died from such infections following use of the FDA-approved protocol.  Thus, the Oklahoma, and now Texas, Legislatures acted to address this serious health and safety problem by requiring that RU-486 and other abortion-inducing drugs be administered according to the FDA's prescribed protocol, though the Oklahoma Supreme Court held-without analysis or discussion-that the Oklahoma law is facially unconstitutional under Planned Parenthood v. Casey.  The U.S. Supreme Court granted the state of Oklahoma's request to review that decision, and asked the Supreme Court of Oklahoma to answer whether the Oklahoma law prohibits: (1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat ectopic pregnancies.  This is an historic review, and the U.S. Supreme Court has stayed further proceedings in this case until they receive a response from the Supreme Court of Oklahoma.

            The United States Congress will vote on the Pain-Capable Unborn Child Protection Act (H.R. 1797) which states that because there is substantial medical evidence that an unborn child is capable of experiencing pain at least by 20 weeks after fertilization, a compelling governmental interest exists in protecting unborn children from this stage. Congressman Trent Franks (R-Az) who has sponsored the bill stated, "Knowingly subjecting our innocent unborn children to dismemberment in the womb, particularly when they have developed to the point that they can feel excruciating pain every terrible moment leading up to their undeserved deaths, belies everything America was called to be. This is not who we are."  Rep. Trent Franks, R-Ariz., introduced the Pain-Capable Unborn Child Protection Act to Congress last month. The House approved the bill by a vote of 228-196.

            All of these bills are pro-woman, pro-child, pro-science, and pro-family.  You can read more at CitizenLink. Finally, the Tenth Circuit Court of the United States provided an important victory for Christian business owners against the HHS Contraception Mandate, as Hobby Lobby and its sister organization, Mardel, a Christian bookstores proprietor, were upheld in their refusal to provide coverage of drugs they believe cause abortion and, therefore, violate their religious beliefs. The Tenth Circuit held "that Hobby Lobby and Mardel are entitled to bring claims under RFRA (the Religious Freedom Restoration Act), have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction."

            Protecting lives of mothers and preborn children is a solid key to family restoration.  Texas made a bold step in that direction this past week.  Congress and federal courts could follow.

 

Proposed Marriage Legislation Would Work to Further Deconstruct Families

This post is reprinted from April 23, 2013, http://www.citizenlink.com/2013/04/23/lawmakers-in-5-states-consider-same-sex-marriage-legislation/ and provides the latest information on state marriage legislation.

Lawmakers in 5 States Consider Same-Sex Marriage Legislation

by Bethany Monk

As lawmakers in five states are considering bills that would redefine marriage, a poll shows a majority of Americans support the institution as a union between one man and one woman. It found 57 percent of likely voters in states where same-sex marriage is not recognized would oppose such a measure. Thirty-four people said they would support it. Harper Polling conducted the automated phone survey last week of 1,741 likely voters for Conservative Intelligence Briefing.

“The poll reflects what we know, that most people understand that marriage unites a man and a woman and any children they will have,” said Jeff Johnston, CitizenLink marriage analyst. “They look around and understand that all our experiments with marriage — no-fault divorce, cohabitation, single-parenting — have been disastrous. They’ve learned from that and don’t want to try yet another experiment with marriage.”
Legislators in five states are considering marriage redefinition bills:

• Delaware: The House approved a bill today that could create same-sex marriage. It would still have to be passed by the Senate and signed into law. Under the legislation, no new civil unions would be performed after July 1, and existing civil unions would be converted to marriages.
• Rhode Island: The Senate Judiciary Committee voted 7-4 today to send a same-sex marriage bill to the full Senate. The House approved the bill in January. It would create same-sex marriage. Civil unions would become marriages on Jan. 1, 2014.
• Illinois: The Senate approved a same-sex marriage bill on Feb. 14. A date has not been set for the full House vote on the legislation.
• Minnesota: Legislation that would create same-sex marriage has not yet reached the floors of the House or Senate. A bipartisan group of legislators introduced the bill in February. It would repeal a 1997 law defining marriage as a union between one man and one woman.  Regent graduate Autumn Levy is working with legislators to maintain marriage.
• Nevada: Lawmakers passed a resolution Monday in the Senate that could redefine marriage. If the entire Legislature approves it this session, they will need to do so again in 2015. Voters would have to approve it in 2016.

The District of Columbia and nine states — Connecticut, Vermont, New Hampshire, Iowa, Washington, Maine, Maryland, Massachusetts and New York — have all redefined marriage.

Thirty-one states have amendments defending marriage.

FOR MORE INFORMATIONView the poll results.
Learn more about Delaware’s HB 75.
Learn more about Rhode Island’s H 5015.
Learn more about Illinois’ SB 0010.
Learn more about Minnesota’s HF 1054. 
Learn more about Nevada’s SJR 13.

****

A great deal of scholarship by Professor Kohm is on the significance of marriage to family strength. It all can be accessed on the Social Science Research Network (SSRN) at http://ssrn.com/author=183817. Law is more than a profession - it's a calling.... and Regent students, professors, and graduates are working to make a difference.

Supreme Court Cases on Marriage Expansion set for October

The Supreme Court of the United States could potentially hear several cases on expanding marriage this fall by eliminating one of the requirements for marriage entry.  These cases could quickly and easily have ramifications for your state law on marriage.

A federal judge has refused to dismiss a Utah lawsuit (Brown v. Herbert) that claims that polygamy is a guaranteed privacy right under the U.S. Constitution. The most recent court order did not address the merits of the constitutional arguments involved in the claim, but only the technical issue of standing, which boils down to whether the challenger has really been injured, in a constitutional sense, sufficient to invoke the authority of the courts to get involved in the dispute.  This polygamy case will now proceed to a trial or some other kind of decision on the merits of the case, but against the backdrop of several marriage-related cases that have already been appealed to (but not yet been accepted by) the Supreme Court. The upcoming term, starting on the first Monday in October, has the potential to be a marriage blockbuster.

The High Court is deciding now whether to accept for full hearing and review any of the following cases:
- Hollingsworth v. Perry  (the California Marriage Amendment, also known as Prop 8);
- Federal Defense of Marriage Act appeals from the 1st, 2nd and 9th Circuits;
- Arizona state employee domestic partner benefit case entitled Brewer v. Diaz. Read the entire piece from CitizenLink at http://www.citizenlink.com/2012/08/21/polygamy-waiting-in-the-wings-while-supreme-court-addresses-the-definition-of-marriage/.

Some pundits strongly suggest that the 2003 U.S. Supreme Court decision in Lawrence v. Texas could control the outcomes of any marriage cases.  A handful of court decisions by lower federal courts that have sought to expand marriage have done so on an argument for same-sex marriage using Lawrence rationale for justification. Lawrence  threw out a Texas criminal sodomy statute as an unconstitutional violation of the right of privacy, the same "right" that was also used in 1973 in Roe v. Wade to constitutionalize abortion. That same rationale could be used to expand marriage to include more than one partner, to eliminate age requirements, or to eliminate incest prohibitions.

Each case the High Court takes is always significant, but the marriage cases that could potentially come before the Supreme Court  of the United States this fall has the potential to alter the marriage policy of every state, particularly if the federal DOMA is overturned, as without DOMA the full faith and credit clause of the U.S. Constitution requires that every state must give credence to the acts, records and rules of every other state.  Furthermore, a federal ruling on marriage definition and expansion would, by supremacy, become the law of the entire nation, regardless of state domestic relations law.

Family restoration relies on a firm marriage foundation for state family law, and now, on federal intervention into state marriage law that protects marriage and those who enter into it, or leaves the matter to the individual states.

Marriage and Election 2012

Marriage was the focus of discussion at the NAACP Convention last week, noting the strong stance for marriage in the African American community:

A study by the Brookings Institution has shown that for those that graduate from high school, who get a full-time job, and wait until 21 before they marry and then have their first child, the probability of becoming poor is two percent. And if those factors are absent, the probability of being poor is 76%," said Gov. Romney, "Here at the NAACP you understand the deep and lasting difference that family makes. [...] Any policy that lifts up and honors the family is going to be good for the country and that must be our goal. As President I will promote strong families and I will defend traditional marriage.

NAACP members in the audience then gave Gov. Romney strong applause in response to his pledge. The significance of marriage to family and community strength is clearly embraced by many of the American electorate.

Voters in four States will face marriage referendums in November. I recently was asked to post this piece in the U Pittsburg JURIST, also available at http://jurist.org/forum/2012/06/lynne-kohm-marriage-referendum.php. Election 2012 will have a significant impact on family restoration.

Marriage and Grassroots Democracy in 2012

JURIST Guest Columnist Lynne Marie Kohm of Regent University School of Law says that the November 2012 elections will involve historic referendums in several states on legislation related to same-sex marriage...
________________________________________

The legislative and democratic events surrounding marriage have been anything but uneventful over the past year, and promise to be all the more interesting through the November elections. Among the states active in marriage legislation, North Carolina has been at the helm, with the state approving a marriage amendment in May 2012. Legal academics from Duke to Campbell [PDF] have been discussing the results of the referendum. Despite the great political pressure surrounding the vote, the people of North Carolina voted to protect and ensure the definition of marriage in their state constitution. Effective immediately, North Carolina joins the 31 other states [PDF] in the US that have made a similar constitutional resolution. That edict is not without question, as a recently filed lawsuit challenging the state's adoption regulations could also implicate the amendment.
Looking ahead to November 2012, other states will vote on constitutional guarantees for marriage, namely Minnesota, Maine, Washington and Maryland — all in the wake of US President Barack Obama's open endorsement of same-sex marriage. Minnesotans will head to the ballot box in November to vote on a referendum that will protect marriage from expansion to same-sex unions. Maine will also vote on marriage in the 2012 ballots — again — but differently than in the past. In 2009 Mainers voted to defeat marriage expansion despite that state's legislative move toward same-sex marriage. As one local news publication reported, "[a]fter the Legislature approved gay marriage three years ago, opponents forced the question before voters, who overturned the law 53 percent to 47 percent." The upcoming vote in Maine will be the first of its kind. Not because it is a rerun of the previous 2009 ballot, but because it is the first democratic test of same-sex unions anywhere in the country — one driven by the people and put to a popular vote.
Washington voters will cast their ballots on a same-sex marriage measure in November similar to, but distinct from, the Maine initiative. This referendum is driven by the state legislature and the vote is framed to endorse the same-sex marriage law approved by legislators earlier this year. If passed, the referendum would effectively expand marriage to include homosexual couples.
Maryland is also set to vote on same-sex marriage in November due to an interesting legislative strategy to expand marriage to include same-sex couples despite legislative and grassroots opposition. In March, Maryland became the eighth state to approve marriage expansion by passing the Civil Marriage Protection Act. Rather than becoming effective immediately, the bill was amended so that it would not take effect until 2013, allowing for a possible voter referendum in November. Recent grassroots efforts will likely force the referendum. Among the major political groups pitted on each side of these referendums are the privately funded Washington, DC-based National Organization for Marriage, which was involved in ballot measures that overturned same-sex marriage in California and Maine, and Marriage Equality, part of the federally funded Human Rights Campaign, which is "the largest civil rights organization working to achieve equality for lesbian, gay, bisexual and transgender Americans," according to its website.
What is happening in Maine and Washington is being analyzed by activists in other states wishing to expand marriage. For example, Oregon is one of 32 states that have already democratically integrated a state constitutional marriage amendment. However, that has not kept innovators from considering how to amend the state's constitution again. A strategy to overturn Oregon's marriage amendment would follow an ambitious two-pronged approach that first requires a state-wide vote to remove the current constitutional amendment, and then a national initiative to have Congress or federal courts act to overturn the Defense of Marriage Act (DOMA).
During the 2012 election season, scholars and political pundits will be interested to observe whether legislatures can lead their constituents to extend marriage to same-sex couples. Prior to this year, all referendum votes have been democratically endorsing marriage without expansion by fairly wide margins [PDF]. The upcoming November 2012 elections regarding marriage will be the feature attraction, second only to the vote for the presidency. The last presidential determination electing Obama suggested a connection between Californians who voted for his candidacy and those in favor of marriage and Proposition 8 [PDF]. Without counting the California vote, Americans have been a part of 32 decisions in 32 state referendums that have affirmed marriage without expansion. The 2012 democratic process promises to be exceptionally interesting.

Reprinted from JURIST.org, at http://jurist.org/forum/2012/06/lynne-kohm-marriage-referendum.php