In an, at best, questionable ruling the Maryland High Court Upholds State Law Banning Gay Marriage
Okay, a high court ruling based upon thinly veiled homophobia couched as "family values" as opposed to actual sound reasoning is not news.
What I believe is news about this ruling is the distinction that the court drew between gender and sex and its unintended consequences.
But the high court said the state's Equal Rights Amendment was meant to prevent discrimination based on gender, not sexual orientation
There are a number of problems with this ruling including the definition of "traditional households" but, this one appears to be the most interesting because it appears to invalidate some portion of the laws against sexual dicrimination or sexual harassment in the workplace.
There are two ways of looking at the distinction between gender and sex that the court drew.
The first way of looking at it was that the court felt that homosexuality was an aspect of an indivuduals sexuality that was not covered under the equal rights laws. This view was almost supported by the majority opinion.
Judge Glenn T. Harrell Jr. wrote in the majority opinion that the Equal Rights Amendment was intended to "combat discrimination between men and women as classes," not discrimination based on sexual orientation.
According to this view, sexual discrimination or harassment cannot occur between members of the same sex. This would mean that an employer or supervisor would be free to discriminate if he or she thought you were a homosexual or if they were homosexuals and the employee spurned their advances.
As I said, it was almost supported, the last phrase calls the whole thing into question.
A more likely explanation of the distinction was that the court was drawing a line between gender, which they see as fixed with two categories, and sexual orientation which they see as behavior, a choice.
If we look at the ruling this way, sexual discrimination or harrassment can only be gender based.
This would mean that an employer or supervisor could not discriminate against an employee because they were male or female, but could discriminate because of sexual behavior.
So, while a supervisor could not say he or she didn't promote Mary because she was a woman, under this interpretation they could say they didn't promote Mary because she wouldn't sleep with him or her.
At this point we cannot claim that sexual advances are different from a person choosing their sexual orientation as the court have not provided us with a list of protected behaviors.
I am looking forward to the court providing this list of protected behaviors though, given their demonstrated capacity for reasoning the mental gymnastics will be awesome.
Interestingly, while the court ruled that gender was protected while sexual orientation was not, Article 46 of Maryland's Declaration of Rights says equal rights "shall not be abridged or denied because of sex." and nothing about gender.
Another interesting aspect of the ruling was the court stated:
that the state law defining marriage as between a man and woman has the "legitimate interest" of promoting child-rearing in traditional households.
Once again , I look forward to the court devoloping a definition of "traditional households" that pisses off less than half of the residents of Maryland. Are these WASP Saturday Evening Post households only or can the parents be divorced? What if dad is unemployed? Is it okay for dad to beat mom as long as he is a manly man?
The final interesting statement came from one of the two dissenting opinions:
Chief Judge Robert M. Bell wrote that the issue is "not whether a same-sex marriage, with all the pejorative emotions that evokes, is a fundamental right; the real issue in this case, when properly framed, is whether marriage is a fundamental right."