Sep 02, 2005   | COMMENTS     

BALTIMORE — Nine gay Maryland couples and one man whose partner died finally had their day in court Tuesday, when the Baltimore Circuit Court heard arguments in a marriage equality case that is being watched closely by advocates on both sides of the issue around the country.

The suit, Deane and Polyak vs. Conaway, was filed in July 2004 by the American Civil Liberties Union. It challenges the constitutionality of a 1973 Maryland provision that limits marriage to a man and a woman, according to David Rocah, an attorney with the ACLU working on the case.

It could take a couple of months for the judge to issue a ruling, which will likely be appealed whichever side prevails.

“I just don’t look at it as good for our society,” said Rick Bowers, chair of Defend Maryland Marriage, shortly before arguments started. “It’s just wrong scripturally.”

Once the hearing began, Kenneth Choe, an attorney for the plaintiffs, implored the judge to examine when courts have intervened to correct once acceptable, but unconstitutional, forms of discrimination, like bans on interracial marriage.

“The fundamental right to marry is not only enjoyed by those who historically enjoyed the right to marry,” Choe told the court. “History often shows there was persistent discrimination. That does not absolve the court to examine the constitutionality in the here and now.”

Attorneys for the state asked that the issue be left to the legislature and said there was not enough known about the societal impact of same-sex marriage to assess its consequences. Assistant Attorney General Steven M. Sullivan said the state prefers to take a “step by step approach.”

After the hearing, Lisa Polyak, a plaintiff in the case, took issue with Sullivan’s argument. In Loving vs. Virginia, a case cited often by Choe, it took 30 years for the majority of Americans to agree with the Supreme Court ruling that permitted whites and blacks to marry, Polyak pointed out.

“Was it appropriate to wait?” Polyak said.

Gita Deane, her partner and fellow plaintiff, interjected, “Is it appropriate to vote on civil rights?”

When asked to respond to the opponents’ view that “activist judges” should not decide marriage rights, Polyak said, “We went to the legislature [for the vetoed Medical

Decision Making Act.] We had support from both parties. It took one person to undo all that. What course do we have?”

The state also argued that permitting gays the right to marry would put Maryland at odds with the federal government, triggering a crisis.

But Choe pointed out that there are several areas in which state and federal law conflict and that there has been no “crisis” in Vermont and Massachusetts, where civil unions and marriages are permitted respectively.

“The legislation has broad authority, but it is not unchecked,” Choe said. Their laws must not violate the state or federal constitution, he added.

The state’s ban on same-sex marriage constitutes discrimination based on sexual orientation, as well as sex because it is the person’s gender that prohibits the right to marry, Choe said.

“It’s no defense that the law equally burdens males and females,” he said. “Whether a man can marry a man turns on sex.”

Cutting through all the legalese, Judge M. Brooke Murdock asked the state’s attorney Sullivan a question repeatedly posed by gay rights advocates: “What is the tangible harm” of allowing gays to marry?

Sullivan did not directly answer the question, causing Murdoch to say that absent “tangible harm” it was difficult to comprehend the “rational basis for opposing this.” Later Sullivan told the judge that if hearings were held in Annapolis on the issue, then harm could be demonstrated.

“They never articulate the harm,” said Polyak after the arguments. “I’m waiting for the answer to that question.”

When Doug Stiegler, executive director of the Association of Maryland Families, was asked to explain the harm caused by same-sex marriage, he said it would discriminate against children who need a mother and father.

“That’s a wrong situation,” he said outside the courthouse. “Those kids are not in a right environment.”

He said that the country was based on “moral laws, God’s laws, God’s rights” and that the separation of church and state is a “figment of people’s imagination.”

The plaintiffs endeavored to show the damage done to them and their families by Maryland’s family law barring same-sex marriage.

For instance, when Polyak’s partner, Gita Deane, was in labor, the anesthesiologist refused to administer the epidural until Lisa left the room.

When her partner was ...