Dec 01, 2006  |  By: LOU CHIBBARO J  | COMMENTS     

Nine same-sex couples are expected to be present in an Annapolis courtroom Monday, when Maryland’s highest court hears arguments over whether the state constitution allows the couples to cement their relationships through marriage.
 
The couples, who filed a lawsuit in 2004 challenging a state law banning same-sex marriage, say they are hopeful that the seven-member Maryland Court of Appeals will issue a decision sometime next year allowing Maryland to join Massachusetts and New Jersey in providing full, equal marriage rights to same-sex couples.
 
“This court is not ideologically driven,” said University of Maryland Law School professor Dan Friedman. “It is difficult to predict how they will rule on this case. It’s a wild card issue.”
 
Friedman, who also practices law with the Bethesda firm Saul Ewing, and other attorneys familiar with the appeals court, said most of the judges are liberal to moderate and are supportive on civil rights issues. But the attorneys expressed caution that the marriage issue is complex and not all judges and legal analysts link marriage to civil rights.
 
The appeals court is being asked to decide whether to uphold or overturn a Jan. 20 lower court decision that struck down a 1973 Maryland law limiting marriage to opposite-sex couples.
 
Baltimore City Circuit Court Judge M. Brooke Murdock ruled that denying same-sex couples the right to marry violates the state constitution’s Equal Rights Amendment, which bans discrimination based on gender.
 
Voters approved the ERA as part of the Maryland Constitution in 1972 in a statewide referendum, with women’s rights groups playing a key role in pushing the amendment.
 
Murdock declared the state marriage law’s ban on same-sex marriage unconstitutional and invalid, but put her decision on hold until the appeals court rules on the issue.
 
The case, known as Deane v. Conaway, stems from a lawsuit filed in July 2004 by the American Civil Liberties Union on behalf of the nine gay couples. A gay man whose partner died also signed on as a plaintiff in the suit. Equality Maryland, a statewide gay organization, is assisting in the case.
 
Maryland Gov. Robert Ehrlich joined conservative religious groups in condemning Murdock’s ruling, saying marriage should be defined and regulated by the legislature and the voters rather than unelected judges.
 
Ehrlich asked Maryland Attorney General J. Joseph Curran to initiate a “vigorous appeals process” to challenge Murdock’s ruling before the appeals court. He also called on the state legislature to pass a state constitutional amendment banning same-sex marriage, which he said was needed to prevent or overturn future court rulings favorable to gay marriage.
 
A proposed constitutional ban on same-sex marriage died in the legislature earlier this year. And Ehrlich, a Republican, lost his re-election bid last month to Baltimore Mayor Martin O’Malley, a gay rights-supportive Democrat.
 

 
trong>Too late for O’Malley
to stop appeals process
 
O’Malley has said he opposes same-sex marriage but also opposes a constitutional ban on such unions. During his election campaign, he said he favors civil unions for gay couples. But he did not say whether he would have pushed for the state to appeal the lower court ruling invalidating the marriage law, as Ehrlich did.
 
Legal experts noted that O’Malley does not take office as governor until January, and it would be too late for him to stop the appeals court process from moving forward.
 
All but one of the seven appeals court judges have been appointed by Democratic governors, with most appointed by former Gov. Parris Glendening. Ehrlich’s sole appointment to the appeals court bench, Judge Clayton Green Jr., has had a liberal-leaning record on the court, according to Maryland gay rights attorney Charles Butler.
 
Chief Judge Robert Bell also has a liberal-leaning record on the court since his appointment by Glendening in 1996, court observers have said. Law school professor Friedman noted that Bell, who is black, was considered an esteemed civil rights advocate prior to his long career as a judge on various courts in the Maryland judicial system.
 
“He led a sit-in as a teenager to protest segregation at a Baltimore restaurant,” Friedman said.
 
“These are professional judges,” Friedman said, in referring to each of the appeals court judges. Nearly all of them have risen from lower court judgeship positions and have spent most of their careers as judges or practicing law, he said.
 
Other attorneys said the court nevertheless has a reputation for issuing decisions that most ...