The Issues:
Marriage Equality
Questions and Answers
Here are answers to some questions frequently asked about Conaway v. Deane and Polyak, Equality Maryland and the ACLU's historic marriage equality lawsuit.
What are the American Civil Liberties Union and Equality Maryland hoping to accomplish through Conaway v. Deane and Polyak?
The ACLU is representing same-sex couples who are in committed relationships and would like to marry as well as a gay man whose partner passed away who would like to have the right to marry one day. These couples have brought a lawsuit challenging Maryland law that discriminates against same-sex couples in marriage. In doing so, the ACLU has worked closely with Equality Maryland, the leading advocacy organization for lesbian, gay, bisexual and transgender (LGBT) Marylanders and their families. The lawsuit charges that excluding same-sex couples from marriage violates the state constitution's guarantees of equality. The state provides hundreds of rights and protections to straight couples who marry but denies those rights and protections to lesbian and gay couples who, like straight couples, need to be able to protect their families during times of hardship such as illness and death. The goal of this lawsuit is to make legal marriage, as well as the protections that come with it under state law, available to same-sex couples just as it is to different-sex couples.
Why is the ACLU suing Maryland county clerks?
Maryland law expressly restricts marriage to different-sex couples. As a result, Maryland county clerks cannot issue marriage licenses to same-sex couples who want to marry. The ACLU has brought suit against Maryland county clerks who have refused to issue marriage licenses to same-sex couples in order to challenge the constitutionality of the law. If the Maryland courts agree with the ACLU that the law is unconstitutional, county clerks -- and the State of Maryland more generally -- will no longer be able to deny same-sex couples the many protections that come with marriage.
How are same-sex couples harmed by being unable to marry in Maryland?
Married couples receive hundreds of protections under state law, and hundreds more under federal law, which are unavailable to same-sex couples. This lawsuit only directly addresses protections under state law. It is these protections, however, that grant married couples some of their most important safeguards during times of greatest need. Under Maryland law, it is possible for same-sex couples to be barred from visiting their partners in the hospital and left out of conversations about emergency medical care. Maryland inheritance laws refuse to recognize same-sex couples, often leaving surviving partners with nothing if their partners die without valid wills. Similarly, it is possible for surviving partners to be barred from making funeral arrangements.
Laws that ban lesbian and gay couples from marriage also have devastating effects on the children of same-sex couples. While Maryland allows the non-biological and non-adoptive parents in lesbian and gay families to seek second parent adoptions, this process is costly and leaves children vulnerable while the adoption is being finalized. But perhaps more importantly, children of same-sex couples are denied the security of knowing that their parents have a legally recognized relationship with one another, setting them apart from many of their friends and classmates.
Will this lawsuit affect other same-sex couples in Maryland besides the plaintiffs?
Yes. If the Maryland courts agree with the ACLU that it is unconstitutional to bar same-sex couples from marriage, all same-sex couples otherwise eligible to marry in Maryland will be able to do so. A victory would also ensure that the state recognizes the marriages of same-sex couples that have entered into valid marriages in other states and countries.
Wouldn't civil unions for same-sex couples be just as good?
No. While better than no protections at all, civil unions would serve to highlight the discrimination that same-sex couples face because they cannot marry. Even if civil unions could grant same-sex couples the same benefits that marriages grant to different-sex couples -- which they cannot -- it is inherently stigmatizing to force same-sex couples into a separate institution that does not enjoy the universal recognition that marriage does. Saying to same-sex couples that their relationships must be referred to as "unions" rather than the more preferred and socially accepted term "marriage" that straight couples are entitled to use, sends the painfully clear message that same-sex couples are unworthy of full recognition by the state. What other reason could the state possibly have for creating a system that serves only to segregate same-sex couples from different-sex couples?
Civil unions would also create huge practical problems. Marriage is universally recognized, but civil unions are completely foreign to most people. In fact, they only exist now in Vermont and Connecticut. Rather than helping to protect same-sex couples, civil unions would create confusion and hinder their attempts to protect their families. Most businesses, employers, insurers and hospitals have no idea what civil unions are and don't have rules in place for dealing with them. As Vermont's system has taught us, civil unions become even more problematic when couples leave their home state.
Civil unions would also cause harm to the children of same-sex couples. Having their parents' relationships referred to by a different name would alienate these children from their friends and classmates and create unnecessary anxiety about the meaning of their parents' relationships.
Is marriage for same-sex couples a civil rights issue? Are you saying that the struggle for rights for LGBT people is the same as that for African-American people?
Marriage for same-sex couples is a civil rights issue because lesbian and gay couples are denied the same protections under the law that straight couples take for granted. It is unnecessary to compare one civil rights movement to another. Every group of Americans that has been treated unfairly has faced unique challenges: no two kinds of discrimination are ever the same. That said, there are common threads that run throughout our civil rights history, recognized by the NAACP Legal Defense & Education Fund, which filed a friend-of-the-court brief (PDF, 408 kb) in the case. Opponents of equality frequently try to enshrine discrimination in the law. In doing so, they typically insist that the group they want to fence out is less worthy because they believe that its members are morally inferior. This was the justification for laws that kept women out of the voting booth and out of the workplace, as well as the justification for racial segregation. History has taught us that it is important to fight discriminatory laws and attempts to amend state and federal constitutions that seek to make some Americans unequal for no reason other than who they are. Lesbians and gay men are no exception.
Hasn't marriage been traditionally defined as relationship between a man and a woman?
At various times in the past, marriage has meant something different than what it means today: Marriage used to be a forced union of two individuals for economic or political gain, but now it is a free choice of two people who love each other. Women who married used to lose all ability to act for themselves, instead becoming the property of their husbands, while now wives are not property but can act independently. Marriage used to be restricted along racial and religious lines, while now people of different races and religions are free to marry. Marriage used to be a permanent bond from which there was no escape, but now we allow divorce. In short, what has remained constant about marriage is that it is about commitment, love, sharing, and compromise. People who make that commitment to each other should not be denied the protections of marriage just because they are of the same sex.
What about religious groups that oppose marriage for same-sex couples -- will this pressure them to recognize same-sex couples or accept marriage of gay and lesbian couples?
No. We are not asking people to change their religious beliefs. The First Amendment protects the right of people of faith to organize themselves according to their own beliefs and traditions. No law recognizing marriages of lesbian and gay couples will limit the freedom of religions to define marriage as each sees fit. At issue here is civil marriage -- a legal institution regulated by the government that grants more than 1,000 legal rights and obligations. Civil marriage and religious marriage are different. Every year, at least 40% of heterosexual couples in the United States choose to marry in a non-religious civil ceremony.
What about those people who say that their religious beliefs are threatened by the marriages of lesbian and gay couples?
The United States Constitution protects religious freedom. Religious organizations and their followers cannot and should not be asked to change their religious views. In fact, religious organizations often have views that differ from the law. Divorce, birth control and the death penalty are just a few examples of issues where the law may not conform to the religious beliefs of some people.
Don't the majority of Americans oppose marriage of same sex couples?
Americans' attitudes toward marriage are complex. Americans' attitudes toward the rights of gays and lesbians are evolving just as their attitudes toward the rights of other groups of Americans have evolved over time. Polling data shows that a majority of Americans oppose discrimination against LGBT people. With time and additional public education, Americans will realize that it is unfair to deny same-sex couples the ability to protect their relationships through marriage.
What is the ACLU doing to ensure that same-sex couples are entitled to federal rights and protections provided to married couples?
While this lawsuit does not directly address federal protections for married couples, the ACLU is firmly committed to working to abolish laws that deny gay people the ability to marry and the many protections that come with marriage, including the 1,100 plus rights, responsibilities, benefits and obligations that the federal government grants to married couples. The ACLU believes that it is important to continue to build public support for marriage for same-sex couples before initiating litigation against the federal government. That's why the ACLU is committed to working with organizations like Equality Maryland on an extensive public education campaign that helps to educate Americans about the harms that same-sex couples face because they are unable to marry.
How do recent decisions from New York and Washington high courts ruling against marriage for same-sex couples affect the Maryland case?
The Maryland case was brought in the Maryland courts arguing that it is a violation of the state constitution to continue to deny same-sex couples the ability to marry and the many protections that come from marriage. The New York and Washington cases were decided by state courts that were interpreting the state constitutions in those states. The decisions in those cases are not binding at all on the Maryland courts. The Maryland Court of Appeals will likely look at the decisions of all the state courts that have addressed the issue of marriage for same-sex couples, including the bad decisions in New York and Washington as well as the good decisions from Massachusetts, New Jersey and Vermont. However, ultimately the Court will have to decide if it is fair under the Maryland constitution to continue to deny same-sex couples the hundreds of protections that come with marriage.
If this lawsuit is successful, will I be able to sponsor my same-sex foreign national partner for immigration purposes?
No. Current federal law says the U.S. government will not recognize any same-sex marriage, and that includes for purposes of immigration. Consequently, Americans in committed same-sex relationships are unable to sponsor their foreign national partners for green cards. Any challenge to this policy in court would put the foreign national partner at risk of deportation. Please tell Congress to change this discriminatory policy by supporting the Permanent Partners Immigration Act.
If this lawsuit is successful, will same-sex couples who marry be able to file joint tax returns?
If the Maryland courts agree that same-sex couples must be permitted to marry, all married couples will be subject to the same state tax rules. However, this will not be the case with respect to federal tax rules. The Internal Revenue Service has made it clear that it will not recognize same-sex marriages. If possible, talk to an accountant before you file.
If the lawsuit is successful, will same-sex couples who don't live in Maryland be allowed to marry here?
Yes. If the court rules that same-sex couples can no longer be denied the ability to marry, same-sex couples would be allowed to come to Maryland to marry in the same way that opposite sex couples from outside the state can marry in Maryland. However, like the federal government, most states have laws that say they will not recognize same-sex marriages from other states. Whether private business will recognize a same-sex marriage from Maryland is more complicated. Businesses that already recognize same-sex couples (through domestic partnerships or similar systems) will. It's hard to say what will happen with businesses that don't recognize same-sex couples yet. Some probably haven't been asked and may be willing. Some are doubtless opposed and will refuse.
If this lawsuit is successful, does that mean same-sex couples will be able to marry right away?
In every court decision, there is usually some delay between the time the case is decided and when the ruling goes into effect. It is up to the court to determine when the ruling will go into effect.
When is the Court of Appeals expected to decide the issue?
It is impossible to predict exactly how long it will take the Court of Appeals to decide the case, but it will probably be several months.
Can the case be appealed beyond the Court of Appeals?
No. The Court of Appeals has the final say on cases raising issues related to the Maryland constitution.
What is Maryland's track record with regard to Lesbian, Gay, Bisexual and Transgender rights?
The citizens of Maryland have a history of support for equal rights for LGBT people. Maryland is among the 17 states with an anti-discrimination law that includes gays and lesbians in the class of those who may not be discriminated against in employment, housing, or public accommodations. During the 2005 Maryland General Assembly, state legislators passed the Medical Decision Making Act that would have granted registered domestic partners health care and decision-making rights on par with married couples and a bill that would have eliminated an unfair property tax levied only on unmarried couples. Even though the bills passed by wide margins, Governor Ehrlich caved to pressure from anti-gay activists and vetoed both bills.
In 1998, an ACLU of Maryland lawsuit led to the Maryland courts striking down the state’s sodomy law on equal protection grounds.
Several Maryland jurisdictions offer domestic partner benefits to the partners of lesbian and gay employees, including Montgomery and Howard Counties, and the cities of Baltimore, Rockville, Hyattsville, College Park, Greenbelt, Mount Rainier and Takoma Park. A challenge to Montgomery County's domestic partnership benefit policy was rejected by the Maryland Court of Appeals in 2002, unanimously affirming a lower court ruling that Montgomery County's gay employees are eligible to receive health and other benefits for their domestic partners.
The courts also have a good record on custody and visitation issues for LGBT parents. Gays and lesbians are able to adopt children individually, and same-sex couples are regularly granted second parent adoptions. However, this process is a time-consuming and expensive procedure that leaves children vulnerable during the adoption process.
Now that this lawsuit is underway, should my same-sex partner and I travel to another state or country to marry, or should we wait until this lawsuit is decided?
If you would like to marry now, there is no legal reason to wait for this lawsuit to be completed. (To learn more about getting married in Massachusetts and Canada, visit the ACLU's "Get Busy, Get Equal" site) However, just as it won't allow same-sex marriages within the state, Maryland will not recognize same-sex marriages from Massachusetts or Canada. This lawsuit raises the necessary legal issues, and if successful, will likely result in the state recognizing the same-sex marriages of Marylanders from outside the state.
How can I stay informed about developments in this lawsuit?
The ACLU and Equality Maryland will post updates about the lawsuit as well as the legal documents on their websites. To stay informed, visit www.aclu.org/caseprofiles, www.aclu-md.org, or www.equalitymaryland.org/marriage_case.htm.
Who is behind this lawsuit?
The ACLU is working hand-in-hand with Equality Maryland, the state's leading LGBT advocacy organization, as well as with allies across the state who support equality for all Marylanders.
Who is the legal team?
This lawsuit is being litigated by the ACLU's Lesbian and Gay Rights Project, the ACLU of Maryland, and by cooperating attorneys Andy H. Baida and Caroline D. Ciraolo of the Baltimore City law firm of Rosenberg Martin Funk Greenberg, LLP.
What is Equality Maryland?
Equality Maryland (formerly Free State Justice) is Maryland's largest LGBT civil rights organization, with thousands of members across the entire state. Its mission is to make life better for LGBT Marylanders. Equality Maryland works to secure and protect the rights of LGBT Marylanders by promoting legislative initiatives on the state, county and municipal levels. Its professional lobbyists and legislative team work with its allies in the Maryland General Assembly to shape and pass positive legislation in Annapolis and to beat back discriminatory legislation. Equality Maryland has fought diligently in the state capitol and counties and cities throughout the state to win equal rights. In 2001, it succeeded in a 10-year effort to win an anti-discrimination law in the state that protects Marylanders from discrimination based on sexual orientation. In 2002, it secured anti-discrimination protections for transgender individuals in Baltimore City.
Equality Maryland's sister arm, the Equality Maryland Foundation, works to eliminate prejudice and discrimination against LGBT Marylanders through outreach, education, research, community organizing, training and coalition building.
What is the ACLU?
America's foremost advocate of individual rights, the American Civil Liberties Union is a nonpartisan organization founded in 1920. With national headquarters in New York and Washington and 52 affiliates throughout the country, it is widely regarded as the nation's premier public interest law firm. The ACLU believes that the only way to protect freedom is to stand fast for the idea that everyone, no matter how unpopular, has the same rights. The Lesbian and Gay Rights Project is a special division of the ACLU that was founded in 1986. The goal of the Project is equal treatment for lesbian, gay, bisexual and transgender people. That means no discrimination by government, no discrimination in employment, housing, schools and public places, and fair treatment of LGBT families and relationships.
What is the ACLU of Maryland?
The ACLU of Maryland was founded in 1931. In recent years, the ACLU of Maryland has undertaken major initiatives to fight for the constitutional rights of citizens who are politically and economically marginalized -- including our case on behalf of 100,000 Baltimore City schoolchildren, our case representing 14,000 African American families residing in public housing in Baltimore City, and our landmark racial profiling lawsuit. The ACLU of Maryland also has fought for LGBT rights by overturning the state's sodomy law and successfully challenging petition signatures that had been collected by a group seeking to bring the state's Anti-Discrimination Act to referendum.
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