GLBT People in Maryland Lose a Round

From the Baltimore Sun:

In a split decision today, the Maryland Court of Appeals upheld a state law declaring that marriage must be between a man and a woman.

The 4-3 ruling essentially sends the issue of same-sex marriage back to the state legislature and ruled that a ban on gay marriage does not discriminate on the basis of gender and does not deny any fundamental rights.

This press relase from Equality Maryland contains reaction from the losing side:

The American Civil Liberties Union and Equality Maryland today denounced the divided Maryland Court of Appeals decision upholding a state law that bars same-sex couples from marrying and accessing the hundreds of family protections provided to married couples and their children under state law. The organizations vowed to take their struggle for marriage for same-sex couples to the General Assembly, where Sen. Gwendolyn Britt (D-Prince George's County) and Delegate Victor Ramirez (D-Prince George's) have vowed to sponsor bills to extend marriage to same-sex couples.

"We're deeply disappointed in the court's ruling," said Lisa Kebreau, who is raising three children with her partner of four years, Mikki Mozelle. "The court decided that we are undeserving of the family protections given to married couples simply because we're partners of the same sex. That's simply not right." Added Kebreau, "We aren't giving up. We'll continue to fight for marriage in the legislature."

The vote in the case was 4 to 3. One of the dissenting judges said the legislature should either be required to adopt civil unions or marriage. The other two said that the case should be sent back to the lower court for a trial to see if government has a good enough reason to bar same-sex couples from marriage.

The majority opinion rejects the ACLU's arguments that barring same-sex couples from marriage is sex discrimination. While the court agrees that marriage is a fundamental right, it says there is no fundamental right to marry someone of the same sex. The court says gay people aren't entitled to special protection from the court because, although there has been a history of unfair discrimination against gay people, as a group gay people are not politically powerless. The court then uses the least demanding form of constitutional analysis to determine if the ban violates the state's equal protection guarantees, and says that excluding same-sex couples from marriage might rationally be related to fostering procreation, so the state can continue to deny same-sex couples the ability to marry and its family protections.

"The court refused to recognize that lesbian and gay couples form committed relationships and loving families just like heterosexual couples," said Ken Choe, a senior staff attorney with the ACLU Lesbian Gay Bisexual Transgender Project who argued the case before the court. "We're hopeful that, unlike the court, the legislature will see that lesbian and gay Marylanders shouldn't be barred from the hundreds of important protections that come with marriage simply because the person whom they love is a person of the same sex."

"Today's court decision will not deter us," said Dan Furmansky, Executive Director of Equality Maryland. "All lesbian and gay Marylanders, including the brave couples who petitioned the court in this case, need and deserve the protections and stability of marriage for our relationships and our families. It is now time for the General Assembly to honor Maryland's tradition of tolerance and justice, and to strike down the ban on marriage for same-sex couples."

Here is more from State Senator Britt in another release from Equality Maryland:

"I am very disappointed that the court has decided to prolong discrimination against same-sex couples in Maryland," said Sen. Britt. "Same-sex couples in Maryland form committed relationships and loving families, and they need access to the many family protections that the state provides to married couples. It is now up to the General Assembly to do the right thing, and I am proud to lead the effort to pass a bill ending discrimination in marriage in Maryland."

There are more than 400 provisions in state law and 1,100 provisions in federal law that protect married couples. Civil marriage assures that same-sex couples will not be shut out of hospital rooms during the illness of a partner, lose a home after the death of a partner, or be denied health insurance because they cannot get coverage through a partner."

I operate under the premise that we are all created equal, not under certain circumstances, but in all circumstances," added Sen. Britt. "Discriminatory practices should be challenged wherever they exist, and this state must again mature and recognize injustice in its denial or of rights that should be available to all Maryland families."

More political reaction is recorded by The Advocate:

Legislators on both sides of the debate predicted action on the issue in the next session.

State senator Richard Madaleno, who is gay, said he plans to introduce a bill to allow same-sex marriage. He also expects a proposal to create civil unions.

''I think we'll have a lengthy discussion next session about what the options are for legal recognition for gay people,'' Madaleno said.

Don Dwyer, one of the general assembly's most conservative members, said he would introduce a constitutional amendment banning same-sex marriage as ''insurance.''

Senator Dwyer seems to have taken on discrimination toward GLBT people as his mission in life. He has at least twice introduced this type of amendment in the Maryland legislature only to see it soundly defeated each time.

I would expect Dwyer's efforts to fall short again in the 2008 legislative session, but I'm also not optimistic on seeing the legalization of same-sex marriage either, particularly in an election year. Maryland has some very liberal pockets in the DC and Baltimore suburbs, but there are some equally conservative areas in the state also. It would take a few of the moderate legislators to stick their neck out and turn the tide in favor of that type of legislation, something politicians are notoriously poor at doing these days.

The excerpt from The Advocate also mentioned Senator Madaleno, who happens to represent my district. Senator Madaleno is the first openly gay state senator in Maryland and, in my opinion, is an exceptional legislator who I would love to see become governor someday. He is well spoken and has both a brilliant political mind and also an empathetic spirit. He hasn't gotten so bogged down in policy that he has lost track of the people it affects. That is clear in this e-mail he sent to his constituents about today's court decision:

As I am sure you have heard by now, today the Maryland Court of Appeals denied equal rights for gay and lesbian couples in our state. While I am disheartened by this decision, I am more incensed by the poor quality of the majority opinion, which relies on several flawed arguments.

The Court held that the current law does not unlawfully discriminate on the basis of sex because it “prohibits equally both men and women from the same conduct.” If that argument sounds familiar, it should: it is the same discredited argument that southern racists used to claim that anti-miscegenation laws did not discriminate on the basis of race, because everyone was subject to the same restriction. In fact, Judge Lynne Battaglia noted in her dissent that “In reaching this result, the majority breathes life into the corpse of separate but equal…” The US Supreme Court saw through that twisted logic four decades ago. It is sad that the Maryland Court grasped onto such a discredited argument today.

After reciting a long history of the often-brutal discrimination that gays and lesbians have faced in our society, the Court went out of its way to hold that laws discriminating on the basis of sexual orientation are nevertheless not subject to the same elevated level of scrutiny as those based on race or sex, in part because the gay and lesbian community is not so politically powerless that they constitute a suspect class. Under that reasoning, race and sex should no longer be suspect classes. As General Counsel to the General Assembly, Robert Zarnoch, pointed out in his argument against upholding Judge Murdock’s decision, “In Maryland, we have openly gay legislators who, in fact, are legislative powerhouses in leadership.” While I and my openly gay colleagues are flattered at the idea of being legislative powerhouses, to say that we as a class are more politically powerful than our African-American or women colleagues is a bit of a stretch.

Another reason that the Court said discrimination against gays and lesbians is constitutionally permissible is that sexual orientation - unlike race or sex - may not be immutable. That’s certainly an interesting viewpoint, totally at odds with reality. Do the judges who are in the majority routinely change their sexual orientation? I doubt it. Regardless, we prohibit discrimination - and rightfully so - on other bases that are not at all immutable - religion being chief among them.

Perhaps the worst argument the court used to deny marriage equality was the one that right-wing activists have espoused all along: that marriage is explicitly about procreation. Judge Irma Raker recognized the failed logic in her dissenting opinion, stating that “This disparate treatment of committed same-sex couples, exhibited in a multitude of Maryland laws discussed supra, directly disadvantages the children of same-sex couples, and there is no rational basis to allow such disadvantages when the State’s proffered interest is to promote a stable environment for procreation and child rearing. Each child raised in a household headed by a same-sex couple in Maryland needs and is entitled to the same legal protections as a child of married parents.” For those of us who are lucky enough to be proud gay and lesbian parents, the idea that the state has less desire to protect our children than those of our heterosexual neighbors is particularly disturbing.

Today, gay and lesbian Marylanders feel a devastating kick in the gut, as the Court blithely writes us out of our own constitution with little or no thought to the impact on real people. Regardless of what the Court says, those of us who are prohibited from civil marriage by the state can attest that we are being denied a fundamental right. And the glee with which this decision will be greeted by anti-gay forces intent on dehumanizing us by denying us the fundamental human right to marry indicates that the reason behind retaining the discriminatory law is animus, and nothing more.

Yet, our struggle does not end with this decision. As the Court makes clear, there are no constitutional barriers to the General Assembly and the Governor taking action on expanding the legal recognition of same-gender couples. I fully expect bills to legalize marriage equality will be introduced next session as well as bills to authorize civil unions and the like. Rest assured, I will be advocating for full marriage equality. However, as a community, we will face a major decision over the next few months as to what we might accept out of the legislative process. I hope you will stay engaged with me and Equality Maryland as the debate unfolds.

I would like to leave you with a comment I read today on the blog www.freestatepolitics.us: "SCREW DESPAIR! It's time for a strong pot of coffee and some political work ethic." Let’s get to work and redouble our efforts in Maryland . Make no mistake, we will prevail. Not as soon as you and I had hoped, but it will happen. Please stay involved and let your elected officials know that you want action now that our courts have let us down.

With hope for the future,
Rich Madaleno

Of course, the senator is absolutely right. Marylanders who believe in equal rights for all the state's residents need to contact their elected officials and tell them so. Those who value their poltiical future or religious right doctrine over equality need to be held accountable, and they need to know it's coming.