From the Gazette

C is for civil union, compromise

by Sean R. Sedam

Friday, September 21, 2007

Some lawmakers are trying to find middle ground between proponents of same-sex marriage and those who want to add a ban on it to the state constitution.

After the Maryland Court of Appeals upheld the state's ban on gay marriage, advocates on both sides of the debate held fast to their all-or-nothing positions.

But that is not deterring some lawmakers from trying to find compromises, such as civil unions, domestic partnerships and other legal protections for same-sex couples, that ultimately will be rejected by both ends of the debate, such as promoting civil unions.

Some say the legal recognition of civil unions -- adopted in Connecticut, New Jersey, New Hampshire and Vermont -- is a viable compromise. Others say it could be a first step toward full marriage rights. Still others say it would be a hollow victory that would further relegate gays and lesbians to second-class status.

"I think civil unions are separate and unequal," said Sen. Richard S. Madaleno Jr., who is gay. "I think there will be plenty of people talking about civil unions as the next step. And it may be where we wind up as this discussion continues."

Sen. Gwendolyn T. Britt (D-Dist. 47) of Landover Hills and Del. Victor R. Ramirez (D-Dist. 47) of Mount Rainier have pledged to sponsor a marriage equality bill.

The bill will have an uphill climb, said Senate President Thomas V. Mike Miller Jr.

"There's not going to be a single Republican vote, in my opinion, to change the law," said Miller (D-Dist. 27) of Chesapeake Beach. On the other side, "there are a lot of Democrats affected by their families, affected by their religion, affected by a host of other issues that are not ready to move forward for change at this time."

Nor is there the three-fifths majority in each chamber needed to put a constitutional amendment on the ballot, he said.

Del. Donald H. Dwyer Jr. (R-Dist. 31) of Glen Burnie, a staunch opponent of gay marriage, has promised to again sponsor a constitutional amendment barring same-sex marriage. His effort this year failed.

At least one Republican said he sees allowing civil unions as a way of bridging concerns about the religious meaning of marriage and the legal rights of same-sex couples.

"I certainly don't think we need to redefine marriage in the state code," said Del. Richard B. Weldon Jr. (R-Dist. 3B) of Brunswick. "I think when the state starts dictating theology to the faith communities, it's a train wreck."

But that does not mean same-sex couples should be denied rights, he said. "If legal rights are being denied it seems the appropriate thing to do to extend legal rights."

That could include civil unions, Weldon said.

Civil unions should not be seen as a way to get equality for same-gender couples, said Madaleno (D-Dist. 18) of Kensington. "It's more than we have now," he said. "It's truly not marriage equality."

Civil union avoids the use of the word marriage in an attempt to make rights for same-sex couples "more palatable," but it is not marriage, said David Rocah, who was part of the American Civil Liberties Union team that argued the same-sex marriage case before the Court of Appeals.

"I think the ACLU, as an organization that is committed to the constitutional principle of equality under the law -- it's hard to imagine that we'd ask for anything less than equality," he said. "The only way for gay and lesbian families to get equality is the right to marry."

A civil union constitutes whatever the legislation creating it says it constitutes, Rocah said. But the idea "conveys a sentiment that lesbian and gay people's relationships are somehow not worth as much as heterosexual relationships."

Past efforts include passage of a 2005 bill to give same-sex couples who register with the state 11 rights, including hospital visitation and medical decision-making rights. Gov. Robert L. Ehrlich Jr. (R) vetoed the bill.

Marriage rights can help unravel other complicated legal issues, said Sharon M. Grosfeld, a family law attorney and a former state senator and delegate.

"Without the legal status of marriage, the question of custody when same-sex partners break up and children are involved is much more complicated," Grosfeld (D) said. "If a child is the biological child of one party and not the other, what are the legal rights of that other party, particularly if the child was nurtured by the other party since birth?"

Questions about funerals and inheritance without a will can be difficult for same-sex couples, she said.

Civil union rights often do not go far enough to clarify those questions, lawmakers said.

The experience in New Jersey is that families were promised rights through civil unions, but they never received them, said Del. Anne R. Kaiser (D-Dist. 14) of Olney.

In the General Assembly, advocates are often told to accept a compromise as a step toward passing what they seek. Would civil unions be half a loaf?

"Civil unions may be half a loaf, but I'm not sure how many other citizens would want only half their civil rights," said Kaiser, who is gay.

Civil unions are "crumbs," not even half a loaf, said Dan Furmansky, Equality Maryland's executive director.

"We've clearly moved past the point where we ask for crumbs from the General Assembly when there are hundreds of protections that a family needs to navigate through difficult times," he said.

Could civil unions be a first step?

"When we start talking about creating separate legal constructs from the one that exists, what rights do we exclude from same-sex couples and why?" Furmansky responded.

Gov. Martin O'Malley (D) has called civil unions "a reasonable compromise," said O'Malley spokesman Rick Abbruzzese.

Some lawmakers believe such a compromise could happen.

"Start counting heads on both sides," Weldon said. "I think the numbers on the fringes of both are the minority of the number of people who could pass a vote."

But Miller said there are enough votes to pass a civil union law.

Even if the General Assembly were to do so, gay rights advocates say there would be more to be done.

"I'm not going to say no to civil unions, nor will I feel completely satisfied by them," Madaleno said.

Grosfeld said the legislature could pass a bill that gives same-sex couples the legal rights granted to married couples.

"Otherwise, I do believe that a full marriage bill can get through, but it will take much longer," she said.

Her reason for optimism is the General Assembly's passage of a 2001 law that prohibits discrimination against gays and lesbians in housing, employment and accommodations.

"No one ever thought that would be possible," Grosfeld said. ''And now it is expected, not just in Maryland but in many, many parts of the country."

Weldon is also confident that same-sex couples could gain more rights, if not the right to marry, through legislation.

"In five years of experience, I have not been able to find an issue where there is not the opportunity for compromise," he said.

Staff Writer Douglas Tallman contributed to this report.