From the Washington Post

As Md. Court Weighs Same-Sex Marriage, Plaintiffs Hear Echoes of Previous Fight

by Mary Otto

Monday, December 4, 2006

Those days in Alabama are seared into Charles Blackburn's memories: the bombings, a friend's death by bludgeoning, the marches and prayers for deliverance.

He went to Huntsville in 1964 with a wife and a small daughter, a new minister bent on helping to turn back centuries of injustice. A sheriff locked him in a foul jail cell for trying to register black voters. Vandals smashed the windows of his church when he joined marchers in Selma. In the years since, the prophecies of the civil rights movement have continued to unfold.

And with them has Blackburn's journey of self-acceptance. Over time, he would leave the ministry and his marriage, and come to terms with the fact that he is gay.

Blackburn has resumed his march for civil rights, this time beside his partner of 28 years, Glen Dehn, and 17 other gay and lesbian plaintiffs in a lawsuit asking Maryland to legalize same-sex marriage.

"It is self-affirming to be part of this civil rights continuum," said Blackburn, 73.

Today, the case goes before Maryland's highest court, where lawyers will debate whether a 33-year-old law defining marriage as between a man and a woman violates constitutional protections against discrimination. The court is not expected to rule immediately.

In January, a Baltimore Circuit Court judge ruled in favor of the plaintiffs, finding that the state's definition of marriage was discriminatory and could not withstand a constitutional challenge.

"When tradition is the guise under which prejudice or animosity hides, it is not a legitimate state interest," wrote Judge M. Brooke Murdock in a 20-page opinion.

The state appealed Murdock's decision and will argue at today's hearing that the law meets constitutional muster and that questions concerning the definition of marriage would be better handled by the state legislature.

Del. Donald H. Dwyer Jr. (R-Anne Arundel) said he is planning to resubmit a constitutional amendment for voter approval that would effectively ban same-sex marriage.

"If the state of Maryland legalizes same-sex marriage," he said, "there will be nothing to prevent it from being taught in the public schools as a normal sexual lifestyle."

Historically, the federal government has allowed states to define marriage. For years, Maryland banned interracial marriage. In 1973, it defined marriage as the union of one man and one woman. Currently, only Massachusetts recognizes same-sex marriage, but several states and the District allow domestic partnerships or civil unions that offer some of the rights of marriage.

Meanwhile, many other states, including Virginia, have passed laws banning same-sex marriage.

In Maryland, Blackburn, Dehn and the other plaintiffs who have applied for and been denied marriage licenses throughout the state say they are not asking for the creation of a new right, just the chance to share in one that has been fundamental for heterosexuals.

Blackburn compares this suit for real marriage -- as opposed to some form of civil union -- as akin to breaking down segregation in the nation's schools.

"The schools could not be separate without being inherently unequal," said the veteran civil rights campaigner, sitting in the home he and Dehn have carefully restored in Baltimore's Bolton Hill neighborhood.

He acknowledged that some people become angry when gay men and lesbians liken their struggle for equality to that of blacks.

Blackburn was listening to a radio talk show on gay rights recently when a caller complained about such comparisons.

"I'm black every day of my life. They can hide," the caller said.

"But why should 'they' have to?" Blackburn asked in response. "We're not saying we've suffered as long, or as much. But we have rights that need to be defended."

The way Blackburn sees it, a person compelled to live in a closet of secrecy also suffers the effects of segregation. "The closet is a very fearful place, a very lonely place. You are living a lie," he says.

"It eats you up inside."

In addition to the intangible benefits, marriage also confers such rights as spousal immigration benefits, hospital visitation privileges and the right to inherit property. Among the plaintiffs is a lesbian couple forced to live separately because of immigration law. After another plaintiff lost his longtime partner to suicide, he also lost the home they had shared. Others in the suit have been denied the ability to extend insurance coverage to their partners and children.

More than 15,000 same-sex couples live in Maryland, and between a quarter and a third of them are raising children, according to the Baltimore-based Advocates for Children and Youth.

As they have grown older together, Blackburn and Dehn have gotten specialized help in estate planning. But they are still haunted by concerns about issues such as medical decision making or being separated in a nursing home.

"We have heard of this happening to two old guys at the very end," Blackburn said.

Attorneys for the state are not speaking about their case until after today's oral arguments. But in briefs filed in November, they laid out their case.

"No appellate court in the country has declared a right to same-sex marriage to be fundamental," the state argues, pointing to recent decisions in New Jersey and California that emphasize the importance of state legislatures in helping to resolve the matter.

The New Jersey Supreme Court ruled in October that the state constitution guarantees same-sex couples the same rights as opposite-sex couples. However, a four-justice majority of the court left it to the state legislature to decide whether same-sex unions should be known as marriage or given some other name.

Also in October, a California appeals court ruled the state's ban on such marriages did not violate the state constitution and pointed to the state's domestic partnership law to counter claims of discrimination.

"The legislative forum is the most appropriate to address the issue of same-sex marriage and extension of benefit to same-sex families," attorneys for the state of Maryland argue in their brief.

Dwyer, an outspoken critic of same-sex marriage, agrees.

"The legislature in Maryland must deal with this issue," he said. Last year he unsuccessfully pushed the "Marriage Protection Act," which would amend the state constitution to prohibit same-sex marriages and civil unions. He plans to take up the cause in the session that begins next month.

In 2001, Maryland passed a law banning discrimination on the basis of sexual orientation. And in 2005, the legislature created a life partnership for medical decision making and authorized an exemption from recordation and transfer taxes for domestic partners. Both bills were vetoed by Gov. Robert L. Ehrlich Jr. (R) as undermining "the sanctity of traditional marriage."

That's why, said David Rocah, an ACLU lawyer for the plaintiffs, "You resort to the courts."