From The Gazette

Same-sex marriage goes to state's high court

Miller unsure gay rights supporters will get what they want; Busch awaits courts ruling before next step

by Douglas Tallman

Friday, December 8, 2006

ANNAPOLIS -- The question of same-sex marriage should be decided by the General Assembly, not the judges on the Court of Appeals, an assistant attorney general argued Monday.

But one of the legislature's presiding officers isn't so sure gay rights activists will get what they want from lawmakers.

"The General Assembly can do the job. They're the proper forum for handling these kinds of issues," said Robert A. Zarnoch, who serves as counsel to the General Assembly.

Zarnoch asked the court to uphold a 1973 Maryland law that defines marriage as the union of one man and one woman.

The law was overturned Jan. 20 when a Baltimore City Circuit Court judge ruled it violated equal rights provisions of the Maryland constitution.

"I don't think the General Assembly has evolved on the issue the way the plaintiffs want the General Assembly to react," Senate President Thomas V. Mike Miller Jr. (D-Dist. 27) of Chesapeake said Tuesday.

At the same time, Miller said, he does not expect his colleagues to be reactionary or punitive toward gays and lesbians.

The American Civil Liberties Union, which brought the suit along with Equality Maryland, a gay rights organization, argued the court is the proper place to rule on same-sex marriage.

"Courts are where disfavored classes go when they are unable to obtain the protections to which they are entitled under the constitution. We're only asking the courts to do its job here," said Kenneth Y. Choe, an ACLU staff attorney.

Courts have ruled in past controversial cases, such as one-man, one-vote or upholding the rights of illegitimate children, Choe said.

House Speaker Michael E. Busch said he believed the appeals court would stay its ruling until the General Assembly has had a chance to look into legislative remedies.

"We'll want to see the full decision of the court before we go forward," said Busch (D-Dist. 30) of Annapolis.

Regardless of the court's ruling, Del. Donald H. Dwyer said outside the Annapolis courthouse on Monday that he plans to move forward with an amendment to the state constitution that would define marriage as between a man and a woman.

"I will fight for that for the next four years regardless of what the court decides on," said Dwyer (R-Dist. 31) of Glen Burnie.

Dwyer was at the center of conservative lawmakers who tried to react to Baltimore City Circuit Court Judge M. Brooke Murdock's ruling during the 2006 General Assembly session. Democratic maneuvering in the House prevented conservatives from crafting a reaction to the Murdock ruling before the appeals court rules.

Sen.-elect Richard S. Madaleno Jr., who is gay, said he expects the next stop of the debate over same-sex marriage will be the legislature.

"No matter what the outcome is, the next arena is the General Assembly," Madaleno (D-Dist. 18) of Kensington told Gazette editors and reporters Thursday.

If the ACLU and Equality Maryland lose at the Court of Appeals, he said, he and other proponents of same-sex marriage will push legislation to allow it. If they win, the same group will be tasked with blocking any legislation challenging the court's decision.

On Monday, Zarnoch and Choe presented their arguments to the court. Choe asked the judges to uphold Murdock's ruling. Zarnoch argued in favor of upholding the state's law.

The ACLU brought the case on behalf of nine same-sex couples and a widower from Hagerstown.

The case has drawn wide attention with at least 20 organizations filing friend-of-the-court briefs. The courtroom Monday was packed with reporters and other observers.

The seven judges asked few questions that would tip off observers how they would rule. They are not expected to make a quick decision.

There are three possible outcomes: Gay-rights advocates win. They lose. Or the court says the Maryland statute is unconstitutional, but does not provide a remedy, similar to what New Jersey and Vermont courts have done, said David Rocah, staff attorney for the ACLU.

Such a ruling would pass the remedy to the legislature, which might then compromise by establishing civil unions, Rocah said in The Gazette meeting.

Outside the appeals court offices on Monday, Equality Maryland's executive director, Dan Furmansky, outlined some of the arguments in favor of the state recognizing same-sex unions: The couples face discrimination in bringing partners on employer health plans. They cannot take bereavement leave at the passing of a partner. They face obstacles in inheritance that opposite-sex couples do not. They can be barred from hospital rooms when a partner faces a health crisis.

"The only fact that matters today is love," Furmansky said.

Staff Writer Judson Berger contributed to this report.