Maryland's Gay Marriage Ruling: Can You Spell Confused?
In a narrowly reasoned ruling that acknowledges that social change is happening at a faster pace than legal change, the Maryland Court of Appeals today said it will not be the tool by which gay marriage becomes legal in Maryland. That may happen someday, the court said, but it will have to be elected legislators who make that decision--not the courts.
For now, said a majority of four justices on the seven-member court, marriage remains a legal arrangement between a man, a woman and the state--a deal made expressly for the purpose of encouraging procreation.
But three justices said the majority is willfully ignoring both social and legal change, including a long string of moves by Maryland's legislature to assure that gays receive the same guarantees of fundamental rights as other citizens.
The 244 pages of opinions break down like this: The court decided there is no constitutional claim to gay marriage in Maryland, but three of the seven justices said the state should provide people in committed gay relationships the same legal rights as men and women who are protected by marriage laws.
Two justices, Chief Justice Robert Bell and Irma Raker, said that while there is no right to gay marriage, gays must be granted the same rights of marriage as any other citizen. The dissenters said they would have adopted the conclusion of New Jersey's top court, which ruled that "to comply with this constitutional mandate [of equal rights for all], the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples."
But the majority opinion by Justice Glenn Harrell attempts no such Solomonic division. Rather, the justices found a fundamental difference between the question of gay marriage and the relatively simple issue of sex discrimination. Maryland law forbids discrimination by sex in matters of housing, accommodation, employment and so on. The law around social club membership--including whether a private men's club, for example, may exclude women--clearly has been interpreted to mean that you may not discriminate on the basis of a person's sex.
But the majority says those laws were never intended to deal with sexual orientation. The purpose of the state's Equal Rights Amendment was "to prevent discrimination between men and women as classes," the court ruled, looking back at old Washington Post articles from the 1972 debate over the ERA for guidance on the original intent of that law. And the court concludes that the state's marriage law does not "separate men and women into discrete classes for the purpose of granting to one class of persons benefits at the expense of the other class."
Gay marriage proponents based their argument on two main ideas: 1) It's discrimination on the basis of sex to let men and women marry but forbid that legal recognition for same-sex couples. The majority was unimpressed. 2) There are fundamental rights protected by Maryland's constitution that same-sex couples cannot enjoy because the marriage law excludes them. On this point, the majority agreed that the law treats gays differently and excludes them from the benefits associated with marriage. (Justice Irma Raker's dissent says there are 425 legal protections that marriage grants to Marylanders--protections that same-sex couples don't enjoy.)
The court fully accepted that being gay can mean suffering considerable pain at the hands of an unaccepting society. Quoting the U.S. Surgeon General, the court noted that "[O]ur culture often stigmatizes homosexual behav ior, identity and relationships. These anti-homosexual attitudes are associated with psychological distress for homosexual persons and may have a negative impact on mental health."
But the justices said the unequal treatment gays often receive does not render them politically powerless--the standard the court would have to reach before it could justify declaring gays a "protected class" eligible for special legal status. To the contrary, the majority said, rising gay power in the state's political process has won gays all manner of legal protection from discrimination in housing, education, employment and so on. Given that "increasing political coming of age," the majority said, gays don't need any additional constitutional protection.
The majority also rejected the idea that homosexuality is immutable, saying that it had no scientific or sociological evidence to show that people are born gay and therefore are being discriminated against on the basis of something over which they have no control--another argument the same-sex couples had made to bolster their view that their fundamental rights were being violated. There is no such thing as a fundamental right of marriage for same-sex couples, the ruling repeatedly says, quoting from the Bible, Maryland law and the laws of every other state in the Union but for Massachusetts to support the idea that marriage is rooted in the man-woman relationship.
In the end, the main split between the court and the same-sex marriage advocates took place on the purpose of marriage: The pro-gay marriage side says the fundamental right in question is the right to marry, and the question of who gets to do that is secondary. "The proper inquiry is what has historically been enjoyed (e.g., the right to marry), not who has historically enjoyed it (e.g., people in heterosexual relationships)," the proponents of gay marriage argued.
But the court sided with most other state courts in rejecting that idea, arguing that "the right to marry enjoys its fundamental status due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species."
Here's where you can hear the structural foundation of the anti-gay marriage argument starting to creak toward collapse. If marriage is solely a matter of giving legal sanction to procreation, then what to make of the U.S. Supreme Court's decision in a Missouri case granting the right to marry to prison inmates who had zero prospect of procreating? In that 1987 case, the court said marriage was a fundamental human right--kiddies notwithstanding. The majority in the Maryland case acknowledged that the prison case blows something of a hole in their procreation argument but took refuge in a simple declaration that they just don't care: The Missouri case just "does not persuade us," the court ruled.
And indeed states put all different kinds of restrictions on marriage--rejecting some relationships because of age, incest, other genetic connections, or existing marital ties.
Marriage is all about "safeguarding an environment most conducive to the stable propagation and continuance of the human race" and that's what makes regulation of marriage "a legitimate government interest," the majority said.
But Justice Lynne Battaglia in her dissent said that defense of marriage as a legal status is crumbling: "The correspondence between opposite-sex marriage and biological necessity has never been more tenuous than it is today." Indeed, the majority notes that "As of 2000, there were just as many married households in the United States without marital children as those households with marital children." And "according the Census Bureau, 67 percent of all children in Baltimore lived outside of a married couple household."
So why does the court cling to the idea of marriage as an institution existing primarily to sanction childbearing? "The fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation," the majority says. Ah--this would be the if-you-build-it, they-might-come theory.
The majority concludes by noting that the state legislature is free to change the law and bless either civil unions or gay marriage or both--it's just not something Maryland law as written now allows.
Raker's dissent puts it more strongly, advocating for the state legislature to address the gap between the rights gay citizens already enjoy and those they are denied because of the marriage law. She notes that Maryland already "supports procreation that occurs in both opposite-sex and same-sex couple environments. Maryland appears to grant adoptions to both homosexual and heterosexual couples, and adoption agencies 'may not deny an individual's application to be an adoptive parent because . . . [o]f the applicant's . . . sexual orientation.'"
If the state's purpose is to give kids a stable and supportive environment, then the lack of equal rights for gay couples actually undermines that purpose, Raker argues. "While there may be a legitimate basis for retaining the definition of marriage as one between a man and a woman, there is no legitimate basis for denying committed same-sex couples the benefits and privileges of marriage."
Raker would give the General Assembly 180 days to come up with either a civil unions law or some other way to grant gay couples the same rights that marriage bestows upon opposite-sex couples. But Raker was in the minority, so there is no such mandate from the court.
"The right to marry," Chief Justice Bell wrote in his dissent, "encompassing as it does the related and critically
important element of choice - the freedom to choose whom to marry, to select the "lucky" person - is not inherently party-centric. Neither is it either hetero- or homo-sexual."
Except that it will remain exclusively heterosexual in Maryland, until the legislature changes that. Or--as I've argued before--until some smart state decides to get out of the marriage business entirely, leaving the moral questions of when to sanction marriage to the various religious faiths and ethical beliefs that will continue to come to different conclusions for many years, if not forever.
By Marc Fisher |
September 18, 2007; 12:47 PM ET
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