From Baltimore City Paper

Wedding Suit
ACLU files against state, calling ban on same-sex marriage unconstitutional

by Anna Ditkoff

July 14, 2004

Last Wednesday, July 7, longtime partners Lisa Polyak and Gita Deane stood in a room decorated with flowers. Photographers' flashes went off as they snapped photos of the two announcing their love and commitment to one another before a group that included their friends and two daughters.

But despite the wedding cake in the next room, this was not the couple's wedding. It was a press conference announcing a lawsuit the American Civil Liberties Union filed that day on behalf of Polyak and Deane, eight other same-sex couples, and one widower. The suit claims that Maryland's policy of
forbidding gay and lesbian couples to marry is unconstitutional.

"It just doesn't make sense to have some families at such a staggering disadvantage," Polyak says. "It seems that if public policy is created to enhance and assist people's ability to take care of their families and children, then all families and all children should be able to take advantage of those rights."

She and the other plaintiffs cited the hundreds of rights that same-sex couples are denied because of their inability to marry and the expenses incurred to protect their families under the law. For example, many same-sex couples must draw up legal documents for such things as second-parent adoptions to ensure that both parents have the right to raise their children.

At the press conference, individuals shared their stories and frustrations about how the state's current laws prevent them from basic protections enjoyed by married people.

Takia Foskey was unable to make medical decisions for her partner when she was in the hospital having surgery, for example. "The doctors would not tell me whether or not she was OK, when she was coming home, how long she'd be in there, and it caused a great great anxiety for me and my children," Foskey recalls.

John Lestitian lost his partner of nearly 13 years in 2003. "Surviving the death of a spouse is like having an amputation without anesthetic," he says."That's hard enough, but then when the great state of Maryland looked at my relationship with Jim, the state said, ŒWell, on the forms that you have to
file for the estate, you're a friend.' The term that acquaintances use, co-workers in the office."

As a result, Lestitian had to pay inheritance tax on his own savings account and was unable to keep the house the couple had shared because it was in his partner's name. "The pain that the state of Maryland causes gay and lesbian families is not right," he says. "It's not fair and it does have to stop."

The Maryland Attorney General's Office has repeatedly said that same-sex couples are not eligible for marriage, citing the Maryland Family Code, which states that "only a marriage between a man and a woman is valid."

"We agree that the statutory code does not allow lesbian and gay couples to marry," ACLU attorney Ken Choe says. "But we believe that those statutes are unconstitutional, that it's inconsistent with the guarantees of equality in the Maryland State Constitution."

Gov. Robert Ehrlich has been a vocal opponent of same-sex marriage. His press secretary Shareese DeLeaver says that "the governor believes that the institution of marriage is the cornerstone of our society and should be limited to a man and a woman." In response to the ACLU's allegations that
this stance is discriminatory, DeLeaver says "the governor has had this position long before he was elected governor. I can't say anything beyond that."

The same-sex marriage issue is the source of heated discussion throughout the nation. Earlier this month a new law went into effect in Virginia prohibiting same-sex marriages, civil unions, and "other arrangement between persons of the same sex purporting to bestow the privileges or obligations
of marriage." On Friday, July 9, the U.S. Senate began debating a constitutional amendment forbidding gay and lesbian couples to marry.

The ACLU lawsuit is expected to bring the Old Line State to the forefront of the same-sex marriage debate. The Maryland Attorney General's Office has 30 days to respond to the suit, but the matter is likely to go to Maryland Court of Appeals before it is resolved, which could take several years.

Choe says the ACLU is optimistic because Maryland courts have consistently upheld the rights of gay and lesbian families over the years. He also points out that two bills in the Maryland General Assembly that would have further solidified the state's objection to same-sex marriage were defeated during
the last legislative session.

Dan Furmansky, executive director of Equality Maryland, a lesbian, gay, bisexual, and transgender civil-rights organization, says the suit not only aims to gain equality for same-sex couples, but it also shows Marylanders how individuals are personally affected by the ban on same-sex marriage.

"This whole concept of gay marriage is very abstract for a lot of people," he says. "These are very tangible individuals with tangible stories of harm because they're not allowed to marry."