ANNAPOLIS, Md. (ABP) — Maryland's highest court has delivered the latest blow to supporters of same-sex marriage rights, narrowly ruling that the Maryland Constitution does not confer upon gays the right to marry each other.
A sharply divided Maryland Court of Appeals ruled Sept. 18 that a 1973 state law that bans gay marriage does not violate the Maryland Constitution's equal-rights provisions.
“In the absence of some generally accepted scientific conclusions identifying sexuality as an immutable characteristic, we decline on the record in the present case to recognize sexual orientation as an immutable trait,” wrote Judge Glenn Harrell, who penned the court's majority opinion.
He and three colleagues tipped the court's scales against same-sex marriage, while the court's three remaining judges dissented.
The majority argued that the case's central question should be understood not in terms of whether individuals have a right to marry regardless of their beloved's gender but whether same-sex marriage is itself a fundamental right.
“Appellees seek a declaration that the right to marry encompasses the right to marry a person of one's choosing without interference from the government,” Harrell wrote. “[W]e … hold that the issue is framed more properly in terms of whether the right to choose same-sex marriage is fundamental.”
But the dissenting judges said that was a fundamental misunderstanding of the question.
“It is clear to me that the majority misapprehends the nature of the liberty at issue in this case,” wrote Chief Judge Robert Bell, in one of three separate dissents. “It is not whether a same-sex marriage, with all the pejorative emotions that evokes, is a fundamental right; the real issue in this case, when properly framed, is whether marriage is a fundamental right.”
The dissenting judges also took issue with the majority's contention that one reason to decline to recognize a right to same-sex marriage is because the state has an interest in protecting children by providing incentives for solemnizing heterosexual unions likely to produce offspring.
“What is striking, in fact, is that the state's proffered interest — providing a stable environment for procreation and child rearing — is actually compromised by denying same-sex families the benefits and rights that flow from marriage,” wrote Judge Irma Raker.
Raker wrote that she would have preferred the court to handle the issue like New Jersey's highest court recently did. In that case, the judges determined that the New Jersey Constitution required the state to provide the same rights and protections to committed same-sex couples as the state gives to heterosexual couples. However, it left up to legislators whether to call such civil unions “marriage” or to reserve the name for heterosexual couples.
Massachusetts became the only jurisdiction in the United States to offer legalized same-sex marriage after its highest court mandated it in 2004. The Maryland decision disappointed some advocates of same-sex marriage, who thought the Old Line State provided the best chance for expanding same-sex marriage rights. Part of the case was based on Maryland's Equal Rights Amendment, which has some of the nation's strongest protections against gender-based discrimination.
The Maryland case started in 2004, when Baltimore residents Lisa Polyak and Gita Deane, joined by several other gay couples, sued to overturn the 1973 ban on gay marriage. Similar lawsuits are pending in several other states, including California and Iowa.
Groups opposed to gay-rights hailed the decision, which was similar to several others handed down in recent years by state courts.
“We commend the court for upholding the law rather than imposing the views of a persistent minority,” said Tony Perkins, president of the Washington-based Family Research Council, in a statement. “This is an outright rejection of judicial activism and strengthens the legal battle against same-sex marriage. Marriage is a specific union and not an open-ended question, and it benefits all of us to protect that special bond.”
But one of the lead plaintiffs, speaking to reporters on the steps of a Baltimore church after the decision was announced, said it had left her and her family unprotected. “I feel like this decision is needlessly cruel to gay and lesbian families,” said Polyak, tearfully, according to the Baltimore Sun. “I wish these judges would have to face our children today, because I have to.”
The decision is Conaway v. Deane (No. 44, Sept. 2006 term).
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