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baltimoresun.com
Court upholds Md. gay
marriage ban
Md. high court rules
state's traditional marriage statute
does not violate
constitutional rights
By a Sun reporter
from the Web, September 18, 2007
BALTIMORE -- In a 4-3 decision
issued today, the Maryland Court of Appeals upheld a ban on same-sex marriage
and ruled that a statute declaring that marriage must be between a man and a
woman does not violate constitutional rights.
The ruling essentially kicked the issue of same-sex marriage back to the state
legislature.
Attorneys for 19 gay and lesbian plaintiffs had argued before the Court of
Appeals in December that Maryland's 33-year-old statute defining marriage as a
union between one man and one woman infringes upon their clients' constitutional
rights.
Assistant Attorney General Robert A. Zarnoch defended the state's 1973 marriage
statute and said any change in the law should be a question for the legislature.
The case came to the court after court clerks around the state refused to issue
marriage licenses to same-sex couples in 2004, citing the state's family laws,
which restrict marriage to a man and a woman. A Baltimore City Circuit
Court judge, however, ruled that the law violated an equal rights provision of
the state constitution.
In its 240-page opinion, the Court of Appeals also said that the state has a
legitimate interest in promoting opposite-sex marriage.
"In declaring that the State's legitimate interests in fostering procreation and
encouraging the traditional family structure ... 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 right to marry a person of the same sex,"
Judge Glenn T. Harrell Jr. wrote for the majority.
The decision included several dissenting opinions, including one authored by
Chief Judge Robert M. Bell.
Bell said sex-based classifications are analogous to race-based classifications.
"It, therefore, is clear that an equal application approach cannot render
constitutional a discriminatory sex-based classification," Bell wrote.
Bell, who is black, said: "To be sure, there are important differences
between the African American experience and that of gay men and lesbians in this
country, yet many of the arguments made in support of the anti-miscegenation
laws were identical to those made today in opposition to same-sex marriage."
In rejecting the argument that the state's Equal Rights Amendment protected the
rights of same-sex couples to marry, the court scoured the legislative and media
record of the debate during the 1970s and concluded it does not apply.
The measure, which was passed by the General Assembly and ratified by voters,
was not intended to address sexual orientation, the majority decided.
"We conclude that the legislature's and electorate's ultimate goal in putting in
place the Maryland ERA was to put men and women on equal ground, and to subject
to closer scrutiny any governmental action which singled out for disparate
treatment men or women as discrete classes," the majority wrote in its opinion.
Plaintiffs in the case said they will continue to advocate for same-sex
marriage.
"We're very disappointed that they did not find this was an equal rights issue,"
said Charles Blackburn, 74, who with his partner, Glen Dehn, was one of the
plaintiffs in the case. "We were really optimistic. I just hadn't
given any thought or any time to the fact that [the decision] might be
negative."
He said he and Dehn, 69, were so confident the court would support same-sex
marriage rights that they were already planning their wedding. It was
going to be at First Unitarian Universalist Church in Mount Vernon. "We
were going to invite the world," Blackburn said.
While upset by the court's ruling, he said he would work with the American Civil
Liberties Union and the gay rights group Equality Maryland to lobby the
legislature for same-sex marriage rights, which he believes will come
eventually. "It's inevitable, absolutely inevitable," Blackburn said.
The ACLU and Equality Maryland denounced the decision today.
"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," Dan Furmansky, Equality Maryland's
executive director, said in the statement. "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."
Sun reporter Steve Kiehl contributed to this article.
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