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Maryland High Court Upholds Same-Sex Marriage Ban

BY ERIC RICH AND JOHN WAGNER
WASHINGTON POST STAFF WRITERS

Maryland's highest court upheld the state's ban on gay marriage in a ruling issued this morning, reversing a lower court decision and turning back the most formidable legal challenge to date of the controversial law.

The Court of Appeals held that the ban does not, as the American Civil Liberties Union had argued, violate the state constitution. The ruling cannot be appealed to the U.S. Supreme Court, the plaintiffs said when the case was argued in December.

The court took the case after the state appealed a ruling by Baltimore Circuit Court Judge M. Brooke Murdock, who held in January that the 1973 law banning same-sex marriage is discriminatory and "cannot withstand constitutional challenge." In anticipation of an appeal, Murdock stayed her decision when she announced it.

The court's ruling today reverses Murdock's decision, which thrust Maryland into a debate that has raged across the country at least since 1996, when Congress passed a law barring federal recognition of same-sex marriages and allowing states to do the same.

In an opinion signed by four judges, Judge Glenn T. Harrell Jr., citing a Supreme Court holding on judicial restraint, wrote that, absent evidence of discrimination, "judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted."

"In declaring that the State's legitimate interests in fostering procreation and encouraging the traditional family structures in which children are born are related reasonably to the means employed by [the law banning same-sex marriage], our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the reasons," wrote Harrell, who is retired from the court but participated in the decision because he was a member when the case was argued.

Harrell was joined by judges Dale R. Cathell, Clayton Greene Jr. and Alan M. Wilner. A fifth judge, Irma S. Raker, concurred in part and dissented in part. Chief Judge Robert M. Bell and Lynne A. Battaglia wrote dissenting opinions.

Gay rights advocates called the ruling a surprise and disappointment given that several states, including Massachusetts and New Jersey, have struck down marriage bans. But they said the case galvanized not only the gay community but a wider group of Maryland citizens--and pledged to push the General Assembly to take up a gay marriage bill when the legislature convenes in January.

"We will be pushing for full, legal equality in the Maryland General Assembly," said Dan Furmansky,executive director of Equality Maryland. "This is a social justice struggle. Eventually, Maryland will have civil marriage equality for same-sex couples. It's inevitable."

Leading lawmakers said the gay rights advocates will likely face an uphill battle in Annapolis, particularly in the Senate, where a bill would be subject to a filibuster.

"It would be a tall order for the legislature to overturn existing law ... but it's not out of the realm of possibility," said Sen. Brian E. Frosh (D-Montgomery), chairman of the Judicial Proceedings Committee.

In past years, both efforts to legalize gay marriage and efforts to write a ban into the Constitution have not gained much traction.

On behalf of 19 gay and lesbian Maryland residents, ACLU attorney Kenneth Y. Choe argued that the ban should be struck down because there is "no constitutionally sufficient justification" for denying his clients and their children protections that only marriage affords.

Assistant Attorney General Robert A. Zarnoch, the general assembly counsel, urged the court to let stand the statute that defines marriage as the union of a man and a woman. Arguing that the judiciary should defer to the legislature, Zarnoch noted that no federal or state appellate court in the country has held that, as the plaintiffs argue, there is a fundamental right to same-sex marriage.

During an hour-long argument last year in a crowded chamber of the Court of Appeals in Annapolis, Choe invoked the civil rights struggle and said the ability to marry is a fundamental right that belongs to all Marylanders, not only to those for whom that right has always been recognized.

"Despite the fact that plaintiffs have formed committed relationships and loving households, the state excludes them and their children from the numerous important protections that come with marriage solely because the person whom they love is a person of the same sex," he said.

But Zarnoch said, "An invalidation of Maryland's law would have the unfortunate consequence of placing these issues outside the arena of public debate, outside the legislative and democratic process."

Plaintiffs, activists on both sides and legal observers packed the wood-paneled courtroom in Annapolis during the hearing in what was one of the court's most well-attended sessions in recent memory.

Later, on the steps of the courthouse, the legal abstractions faded as the plaintiffs described the protections they do not have because their relationships are not legally recognized: inheritance and adoption rights, decisions about life support, hospital visitation.

Patrick Wojahn, a disabilities lawyer, said his partner, Dave Kolesar, a broadcast engineer, had experimental brain surgery some time ago. Wojahn worried that he might not be able to ride in an ambulance if Kolesar's medical condition recurred and he had to be taken to a hospital.

"We just want to have the security to know that if something happens to him, or to me even, we will be able to be there for each other," Wojahn said.

Among those on the steps was RoseMarie Briggs of the Family Leader Network, a national lobbying organization that backs a constitutional amendment prohibiting same-sex marriage. She said children who are raised "in the home with their married mother and father in a low-conflict marriage" are more likely to succeed in school and to avoid such social hazards as illegal drug use.

"Our laws should reflect what is best for children, not what is best for adults," she said.

In court, Zarnoch argued that the disputed statute is "gender-neutral" because it does not benefit or burden one sex more than the other.

He also argued that gay men and lesbians do not constitute a "suspect class," a designation applied to racial minorities and other groups that have faced discrimination and are held to be deserving of special protections under the law.

Such classes, Zarnoch said, are typically politically powerless. By contrast, he said, "in Maryland, we have openly gay legislators who, in fact, are legislative powerhouses in leadership."

Choe disputed that, saying that if gay men and lesbians were politically powerful, they would have been able to achieve their aims through the legislature.

In a lengthy dissent issued yesterday, Battaglia wrote that the she would have remanded the case to circuit court, where a trial could have settled what she deemed a central factual issue: whether the state could demonstrate that it had "broad societal interest" in retaining marriage in the traditional form.

"Especially in light of the grave issues of constitutional dimension presented here, I believe it is inappropriate to reach this issue on the basis of such an undeveloped record," she wrote in an opinion joined by Bell.

In his own dissenting opinion, Bell faulted the majority for not recognizing gay people as a "suspect class," a group that warrants special protections from discrimination. Bell dismisses the majority view that gays are politically empowered and should not be viewed as constituting such a class.

"The fact is that Maryland has not adopted, and it may be safely said, is not on the verge of adopting, a comprehensive statewide domestic partnership scheme for same-sex couples that approximates the institution of civil marriage, and thereby confers upon such couples the approximate rights and responsibilities of married heterosexual couples," Bell wrote.

Staff writer Lisa Rein also contributed to this story

By Anne Bartlett  |  September 18, 2007; 9:35 AM ET
 
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