Court Rejects Same-Sex Marriage
General Assembly Battle Expected in 2008
by Marcia Reinke
In a 240 page, four to three decision, issued September 18, 2007, Maryland’s highest court rejected same-sex marriage and upheld a 34-year-old statute defining marriage as a union between a man and a woman.
Although the ruling was a blow to gay and lesbian couples who brought suit in Baltimore three years ago, advocates pledged to continue their efforts to overturn the state’s marriage law. And two lawmakers have already said they will sponsor the legislation.
The Maryland League, following a year-long study and consensus process, determined that the state’s definition of marriage is discriminatory, the position taken by the Baltimore Circuit Court. (See League statement)
Opponents of same-sex marriage applauded the decision, calling it a victory for traditional families. These opponents will also be seeking legislative action to enshrine what is now a statute into a Constitutional Amendment, an effort which has stalled in committee in recent years.
Massachusetts, as a result of a 2003 court decision, remains the only state where same-sex marriage is allowed. Same sex couples are, however, allowed to enter civil unions in Connecticut, New Jersey, New Hampshire and Vermont, and are allowed limited spousal rights in Maine, California, Washington and Oregon. Twenty-seven states have banned same sex marriage in their constitutions.
It is expected that legislation will be filed here, not only to overturn the 1973 statute, but also to provide the more limited rights offered by civil unions or domestic partnerships, and to target laws where discrimination is extreme. In fact the majority opinion specifically reminds lawmakers that they have the right to consider a law permitting same sex marriage. “By no means should our opinion be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex,” it says.
Baltimore Circuit Court Judge M. Brooke Murdock had held that the 1973 statute was unconstitutional and discriminatory in the 2004 case brought by 19 gays and lesbians, entitled Conaway v. Deane. The state attorney general immediately filed an appeal. Arguments were heard by the Court of Appeals in December 2006.
The Court of Appeals rejected the plaintiffs claim that denying gay marriages is a form of sex discrimination, saying sex discrimination applies only to groups, not individuals. The court recognized a history of unequal treatment for homosexuals but said such recognition does not require that it deem suspect a classification based on sexual orientation.
Joining in the majority opinion, written by Judge Glenn T. Harrell were Judges Dale R.Cathell, Clayton Greene, Jr and Alan M. Wilner. Judge Irma S. Raker concurred in part and dissented in part. Chief Judge Robert M. Bell and Lynne A Battaglia wrote the dissents.