Dec 08, 2006  |  By: JOSHUA LYNSEN  | COMMENTS     

ANNAPOLIS, Md. — Legal experts familiar with the Maryland marriage lawsuit, which went to the state’s highest court this week, said gay rights supporters made a strong argument, but judges offered few clues as to how they might rule in the high-profile case.

Evan Wolfson, director of Freedom to Marry, said the seven Court of Appeals judges might consider cultural factors in addition to weighing the legal arguments.

“I think how the court rules will, in part, depend on the climate we create that enables the court to do the right thing,” he said. “The court does not operate in a vacuum.”

Opponents of same-sex marriage said if the court takes cultural attitudes into consideration, then their side will win.

“I think, clearly, the majority of the people in this state support a constitutional marriage amendment,” said Republican Del. Don Dwyer, who wants to amend the Maryland Constitution to ban same-sex marriage.

“I think that, quite honestly, as we look at this issue,” he said, “I think the court will ultimately send it back to the legislature for a decision, since we’re dealing with the definition of marriage.”

Nine gay and lesbian couples asked the Maryland Court of Appeals this week to overturn a state law that bans same-sex marriage.

The couples, along with a gay man whose partner died, asked the court to review a lower court’s ruling earlier this year that struck down a 1973 state law limiting marriage to opposite-sex couples.

Baltimore City Circuit Court Judge M. Brooke Murdock ruled Jan. 20 that denying same-sex couples the right to marry violates the state constitution’s Equal Rights Amendment, which bans discrimination based on gender.

Murdock’s decision is on hold while the higher court reviews her ruling. A decision in the case, known as Deane v. Conaway, could come from the high court at any time.

ACLU: Marriage a basic right

American Civil Liberties Union attorney Kenneth Choe, who represented the 19 plaintiffs, argued at Monday’s hearing that marriage is a “fundamental right.”

He said the right should be available to all Marylanders, regardless of sexual orientation.

“Fundamental rights belong to all Marylanders,” Choe said. “It is not enough that there is a reason for including the included class. There must also be a reason for excluding the excluded class.”

But Court of Appeals Judge Dale Cathell said that Choe sought to “redefine marriage.” Cathell also denied any infringement of the Equal Rights Amendment.

“If marriage is defined as a relationship between people of the opposite sex,” he said, “then people of the same sex would have the same right to marry, if they wanted to marry someone of the opposite sex.”

Choe said the plaintiffs nonetheless believe they have a right to marry their partners.

“The plaintiffs would have the court focus on the right to marry,” he said. “The state would have the court focus on the right to marry a person of the same sex.”

Wolfson said Choe’s rebuttal echoed the arguments that overturned bans on interracial marriage.

“The point is individuals are being restricted based on who they are and who they love,” he said, “and that restriction is what runs afoul of the Constitution.”
 

State: Let lawmakers decide

State attorneys countered in court that changes to state law should come from the legislature, not the courts.

“The General Assembly can do the job with respect to state benefits and state rights,” said Assistant Attorney General Robert Zarnoch. “And we suggest they are the proper forum to deal with these kinds of issues.”

Zarnoch also noted that Maryland’s same-sex couples are not allowed to marry because they cannot procreate, an act he argued was central to marriage.

Court of Appeals Judge Lynne Battaglia, however, challenged Zarnoch on that point.

“Could the state tomorrow, then, prohibit marriage between a sterile woman and a man?” she said. “And, let’s do it in terms of age, because there’s a certain period of time after which a woman, biologically, cannot have children.”

Zarnoch said sterile women remain eligible for marriage because the state cannot constitutionally stop them.

“The state really cannot make inquiry of opposite-sex couples, as to their intentions of having children, or whether they’re fit or capable of having children,” he said. “There’s no way to make that inquiry constitutionally, because you would be violating their privacy.”

Despite the challenge Battaglia posed, same-sex marriage opponents were confident they would prevail.

“I, personally, hold fast to the concept that marriage was designed by God for a man and a woman,” said Rick Bowers, who leads Defend Maryland Marriage. “And no man has the authority to rewrite that.”

‘Open up your hearts’

Equality Maryland Executive Director Dan ...