May 04, 2007  |  By: JOSHUA LYNSEN  | COMMENTS     

Win, lose or punt. That’s how Marylanders closely watching a key marriage case describe the likely outcomes.

As the Maryland Court of Appeals began its sixth month of deliberations this week in a case that could grant gays and lesbians in the state the ability to marry, observers said the court is poised to follow one of three paths.

Judges could grant the marriage equality that’s being sought by 19 plaintiffs, deny the request or nullify the state law that bars gay marriage and leave the final decision to lawmakers in Annapolis.

A decision in the case, known as Conaway v. Deane, could come at any time.

Lisa Polyak of Baltimore, a lead plaintiff in the case, said there’s no indication which option among the “win, lose and punt scenarios” the court will choose.

That conundrum has left her and other observers, such as Dan Furmansky, executive director of Equality Maryland, preparing for any outcome.

“I don’t believe we will lose this lawsuit,” he said. “But we’re preparing ourselves strategically for any number of outcomes, be it an outright win, a punt to the legislature or a rejection of our arguments outright.”

‘All-out war’

Furmansky said he’s hopeful the court will affirm a January 2006 ruling by Baltimore City Circuit Court Judge M. Brooke Murdock that gays must be allowed to marry.

“In which case,” he said, “they’ll probably stay the ruling for several months while the state gets ready for same-sex couples to marry and at which point several legislators in the General Assembly will try to do that popular thing where we define marriage in the state constitution, which, of course, is a way to write LGBT people and our families out of the state constitution.”

State Del. Don Dwyer (R-Anne Arundel County) told the Capital newspaper in Annapolis that if the court grants marriage equality, he will wage “all-out war” and “shut down” the General Assembly.

Polyak said Dwyer’s vitriolic comments and promised attacks would temper a court victory.

“I think we’ll be holding our breath to see what the Maryland General Assembly does,” she said. “I especially worry that the language that’s been used to describe what might happen if the courts give us full marriage equality has been very violent.”

Rick Bowers, chair of Defend Maryland Marriage, told the Blade his organization is “willing to do whatever would seem to be the best strategy” to counter a ruling for marriage equality, but did not elaborate.

Furmansky said a courthouse defeat would spur Equality Maryland to lobby lawmakers to grant marriage equality.

He said state Sen. Gwendolyn Britt (D-Prince George’s County) and Del. Victor Ramirez (D-Prince George’s County) have pledged to introduce such bills.

But those measures could face an uphill battle, Bowers said, because “the majority of Marylanders do not want homosexual marriage in Maryland.”

According to a June 2006 poll conducted by the Washington Post, 56 percent of Marylanders oppose laws that would allow gay and lesbian couples to get married.

Polyak, however, said the poll might not accurately reflect the attitudes of many Marylanders.

“I think there’s a better way of asking that question,” she said. “Do the citizens of Maryland want equal rights for all families? I think that their answer would be yes.”

But Polyak said she hopes that debate won’t be needed.

“I may just have my head in the sand, but I don’t think the Maryland Court of Appeals is going to kick us to the curb here,” she said. “I don’t see the court acting to completely deny our requests. I don’t think our court has shown itself to be that cold hearted.”

Passing the buck

Polyak said the court could skirt the issue, however, and pass the buck to legislators.

She said such a decision would be akin to the high court’s ruling in New Jersey, where lawmakers responded by creating civil unions.

“I feel like civil unions are all about people with privilege telling me to drink at my own water fountain — that somehow they feel their water is special and they don’t want it tainted by gay and lesbian couples,” Polyak said. “Civil unions would be a very disappointing outcome.”

Bowers said he hopes the court rejects the arguments from Polyak and others outright, but noted a dodge is likelier.

“Because it requires no courage, it requires no character,” he said, “and it allows [the judges] to at least say that they did all they could to bring it to a conclusion, and they exhausted all their efforts and their resources, and save face.”

Furmansky said a dodge is unlikely, though, because the Maryland Court of Appeals “is not one that shies ...