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| Maryland marriage lawsuit plaintiffs Dave Kolesar (left) and Patrick Wojahn are ‘anxiously waiting’ for the state’s high court to rule on their challenge of state laws barring same-sex couples from marrying. (Photo courtesy of Kolesar and Wojahn) |
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Maryland lawmakers granted gay residents new rights to sue in cases of discrimination in the legislative session’s closing days, but it was unclear whether they would tackle other gay issues.
Still pending at Blade deadline were votes on bills to require insurance companies to write policies that are inclusive of domestic partners and their children, and grant such partners the benefits of group life insurance.
Maryland’s first openly gay state senator, Rich Madaleno (D-Montgomery County), said he didn’t appreciate his colleagues waiting to cast votes on the bills.
“I can’t say I completely appreciate this desire to wait on everything to the very end,” he said. “Especially on controversial issues or complex issues, it seems as though the desire is to push everything to the end and do everything at the last minute.”
The bill requiring inclusive insurance policies passed the House 104-30, while the group life insurance bill passed the Senate 38-8.
Lawmakers are scheduled to adjourn for the year April 9. Any bills not voted on by that time die by default.
Both chambers have, however, passed a bill that gives gays and others the right to sue locally for damages in cases of employment discrimination. The measure passed the House 137-0 and the Senate 39-8.
That action came after the legislature failed to pass a measure to bar discrimination against the state’s transgender residents and workers.
Madaleno said although activists have pledged to raise the issue again next year, it could be endangered.
“I’m just worried it could get totally lost next year,” he said. “It could be overwhelmed by a marriage debate and that people who would normally vote for it would say, ‘I’m already voting against the constitutional amendment, don’t make me vote for this too,’ which is one of the very frustrating parts of politics.”
Despite that, Madaleno said gay Marylanders shouldn’t overlook last month’s legislative defeat of a proposed constitutional amendment to ban same-sex marriage.
“We continue to fight off a constitutional amendment, which you can’t say in many states that that’s the case,” he said. “I’m sure in Virginia, they’re trying to figure out how to come up with yet another constitutional amendment.”
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HOME > NEWS > LOCAL
By: JOSHUA LYNSEN
COMMENTS
 
With the legislative session concluding next week, gay Marylanders are turning their attention to the state’s high court and a marriage case that could redefine their lives.
“We’re still anxiously waiting,” said Patrick Wojahn, who is gay and lives in College Park, Md. “We know it could come down any day now.”
Wojahn and his partner, Dave Kolesar, are among the 19 plaintiffs who are waiting for the Maryland Court of Appeals to rule on the case, which seeks to overturn a state law that bars same-sex marriage.
Nine gay and lesbian couples and a gay man whose partner died asked the court to review a lower court’s ruling that struck down a 1973 state law limiting marriage to opposite-sex couples.
Baltimore City Circuit Court Judge M. Brooke Murdock ruled in January 2006 that denying same-sex couples the right to marry violates the state constitution’s Equal Rights Amendment, which bars discrimination based on gender.
Murdock’s decision is on hold while the higher court reviews the ruling. A decision in the case, known as Conaway v. Deane, could come at any time.
“God only knows,” Wojahn said. “It could be tomorrow, it could be a year from now.”
The high court takes an average of just under four months to issue its rulings. Had it adhered to that timetable, a decision would have come this week.
But Ken Choe, the American Civil Liberties Union attorney who represented the 19 plaintiffs, said it’s impossible to predict when Maryland’s high court will issue a ruling.
The high court in Washington state announced its decision more than 16 months after oral arguments were made. A decision in New York, though, came after just two months of judicial deliberation.
“In other states, these marriage cases tend to defy averages,” he said. “So it’s hard to look to that law of averages here and see that as a good barometer as to when that [decision] might come down.”
Outcome unpredictable
Also impossible to predict, legal experts said, is the case’s outcome.
Barbara Babb, director of the Center for Families, Children & the Courts at the University of Baltimore, said there have been few indications of how the court will rule.
“We have judges who are very equality conscious,” she said. “That’s who they are as human beings and that’s how they’ve ruled in prior decisions. On the other hand, Maryland is a state that clings to its sort of traditional, ecclesiastical roots, so it’s really hard to determine where they’ll come out on this.”
Dan Friedman, a state constitutional law expert and University of Maryland law school professor, agreed. He noted that even the court’s lack of questions during the Dec. 4 oral arguments gave no clues.
“I always caution folks about reading too much into the questioning of the bench,” Friedman said. “So I would caution reading too much into the lack of questions.”
Experts said perhaps the only real indicator of how the court might rule in Conaway v. Deane comes from how it’s previously decided equality issues.
And in that regard, Choe said, Maryland’s high court has ruled favorably.
“That suggests this court is open to considering fairly issues of LGBT people,” he said. “Whether that translates into success in this case, of course, is far from certain.”
Experts said precedent exists in Maryland law to overturn the state’s ban on same-sex marriage.
In a brief filed with the high court, Friedman and more than 50 other law professors and faculty members from the universities of Maryland and Baltimore reviewed previous case rulings that could support such a ruling.
The brief says the ban is unconstitutional because it conflicts with the ERA, which says, “equality of rights under the law shall not be abridged or denied because of sex.”
State laws that define marriage as the exclusive union of one man and one woman are therefore unconstitutional, the brief says, because they present “an unjustified sex-based classification that rests on impermissible gender stereotypes and enforces state-mandated gender roles.”
“There are many forms of gender discrimination,” Choe said. “One of which is the perpetuation of gender stereotypes.”
Friedman notes in the brief two cases — one from 1977 and another from 1998 — wherein the Maryland high court was plain in its interpretation of the ERA.
“The words of the ERA are clear and unambiguous,” says the 1977 ruling. “They say without equivocation that equality of rights under the law shall not be abridged or denied because of sex. This language mandating equality of rights can only mean that sex is not a factor.”
Choe said Maryland courts previously invoked the ERA in rulings that rendered the state’s child support and ...
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