Today, the Maryland Court of Appeals ruled against a number of individuals and couples seeking to marry spouses of the same sex, holding that the statute barring same-sex marriage does not violate the U.S. or Maryland constitutions. While I am not happy with this ruling, indeed very disappointed, it's time to organize. Screw despair: it's time for strong coffee and strategy.
Maryland is a blue state, let there be no mistake. But its Court of Appeals, equivalent to most states' Supreme Courts, is a relatively conservative institution, despite the blue politics of the state. I had expected the three dissenters to go as they did, but expected them to have two of the more moderate judges (in MD, we don't call them "justices") join them. Instead, it went 4-3 against the plaintiffs. Interestingly, two of the judges in the majority are about to retire, as will one of the 3 who joined part of the dissent (Judge Raker). So Maryland's governor will have some interesting appointments ahead of him.
To the case itself.
Judge Murdock of the Baltimore City Circuit Court had ruled in favor of the plaintiffs on three grounds:
* substantive due process (the constitutional jurisprudence creating rights of privacy, access to contraception, etc.),
* 14th Amendment equal protection principles and
* Maryland's gender equality amendment (Article XLIV of Maryland's Declaration of Rights.)
I had thought that the plain meaning of that Maryland-specific amendment would provide the basis for affirming the Circuit Court's view. If a man may marry a willing and otherwise qualified woman, a woman may not be deprived of that same right to marry that same woman on the basis of her own gender. To argue otherwise is to state that taking a wife and taking a husband are substantively equivalent - something that both the plaintiffs and defendant should concede is nonsense. I had less confidence in the federal equal protection argument and especially in the substantive due process argument. The Court of Appeals' majority disagreed.
The majority opinion did provide a useful history of organized political discrimination against gays and lesbians; indeed, the very fact of LGBT political success was evidence that the pervasive and debilitating political oppression against Black Americans justifying equal protection suspect-class status did not also characterize the plight of LGBT citizenry. Since I am "white" and straight, I won't venture a guess as to which community suffered the fist of specifically political oppression worse and if so when; others can swing at that pitch. The opinion also discussed how the Maryland ERA closely tracked in substance the federal ERA and was passed overwhelmingly by Maryland's General Assembly and ratified 2 to 1 by voters in 1972.
To quote the opinion, what I consider the "money quote" of the majority from pages 36-37:
Turning to the language of Family Law § 2-201, it becomes clear that, in light of the aforementioned purpose of the ERA, the marriage statute does not discriminate on the basis of sex in violation of Article 46. The limitations on marriage effected by Family Law § 2-201 do 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. Nor does the statute, facially or in its application, place men and women on an uneven playing field. Rather, the statute prohibits equally both men and women from the same conduct. A legislative enactment should be construed according to the ordinary and natural import of the language used ithout resorting to subtle or forced interpretations for the purpose of limiting or extending its operation." Massage Parlors, Inc. v. Mayor & City Cou ncil of Balt., 284 Md. 490, 494, 98 A.2d 52, 55 (1979) (quoting Burch v. State, 278 Md. 426, 429, 365 A.2d 577 (1976)). To accept Appellees’ contention that Family Law § 2-201 discriminates on the basis of sex would be to extend the reach of the ERA beyond the scope intended by the Maryland General Assembly and the State’s voters who enac ted and ra tified, res pectively, the amendment. In other words, it "stretch[es] the concept of gende r discriminatio n to assert that [the marriage statute] applies to treatment of same-sex couples differently from opposite-sex couples." Dean v. Dist. of Columbia, 653 A.2d 307 , 363 n.2 (D.C. 199 5) (Steadman, J., concurring.)
I guess I just find it sad that Maryland would look to D.C. for its jurisprudence when historically it was the other way around - the D.C. Court of Appeals often looks to Maryland because all of D.C. was once Maryland and both jurisdictions are demographically and politically more similar to each other than either is to (horrors) Virginia. I digress.
I guess I just disagree: women get damaged here for being women, as do men. A wife is not a substitute for a husband or vice versa: ask a same-sex marriage opponent or proponent and you will get the same answer. One need not even get to "separate but equal" analyses: it ain't equal, as required by Maryland's own Constitution, to hell with what's "separate."
I respect this unfortunate opinion because it is lengthy, exhaustively thorough in the presentation of Maryland law and the history of discrimination against gay and lesbian people in this regard. Now is the time to give Equality Maryland as much support as possible: they have work to do, their leadership could use some help. I have been a critic of Equality Maryland's endorsements in the past but the General Assembly runs for reelection in 2010. What does this mean? It means that our Senators and Delegates have some time to get a civil unions or - better - a same-sex marriage statute enacted, before taking heat in purple districts. We have a Democratic majority in both houses, strong ones, veto-proof ones if all Democrats are united, though I am not fearful of Martin O'Malley vetoing any bill that actually makes it out of the General Assembly.
There are some very, very good people in Maryland's Senate; we have a number of openly gay and lesbian delegates and one Senator - Senator Madaleno, whom no Republican or Democrat dared run against meaningfully, who is known as a guru on budgetary matters. Delegates Mizeur, McIntosh, Kaiser are openly lesbian and won convincingly. Senator Jamie Raskin is a liberal-left giant, who was LOUD on his website in favor of marriage equality in his sapphire-blue district. Screw despair: it's time for a pot of strong coffee and some political work ethic.
Peace to all. People who want to contact a LGBT-friendly Maryland lawyer on this, feel free to email me at godfreyprofessional *** gmail *** com.