From the Washington Blade

Legal analysis

Experts call ruling 'troubling'

by Joshua Lynsen

Friday, September 21, 2007

Some legal experts called "troubling" and "narrow" a ruling this week that affirmed Maryland's ban on same-sex marriage, while others praised it as the right decision.

Jana Singer, a University of Maryland law professor who filed papers supporting the 19 gay and lesbian plaintiffs who challenged the ban, said the decision represented "a step backward" for the court.

"It seems in many ways to have taken a step backward in its interpretation of the Maryland Declaration of Rights," she said, "and the protections it had affirmed for individuals under the Maryland Constitution."

Singer said the decision has "troubling implications that go beyond the context of marriage" and "throw into question" a long line of decisions protecting Marylanders against discrimination.

Barbara Babb, director of the Center for Families, Children & the Courts at the University of Baltimore, also noted the ruling had a surprisingly "cruel tone."

"I was left with a feeling of almost hopelessness after reading this," she said. "I know that's not the case -- I know legislatively there are possibilities -- but it certainly was very negative."

Maryland's highest court on Tuesday upheld a state law defining marriage as a union between a man and a woman, ending a lawsuit filed in 2004 by 19 gay Marylanders who claimed they were being denied fundamental rights.

Ken Choe, the American Civil Liberties Union attorney who represented the plaintiffs, said the decision was "dehumanizing" to gay Marylanders and their families.

"It's very technical," he said, "and refuses to acknowledge the fact that there are real families whose lives are at stake."

In the majority opinion, Judge Glenn Harrell Jr. noted the state is under no obligation "to sanction same-sex marriage," that no scientific studies have proven homosexuality to be innate and that gay couples are not entitled to marriage because "fostering procreation is a legitimate governmental interest."

Sen. Rich Madaleno (D-Mont-gomery County), who is gay, said he found the opinion insulting.

"It's one thing to lose," Madaleno said. "It's another thing to feel like you've been completely disrespected by the judiciary."

Unexpected opinions

Many legal experts, including Singer, had expected the court to declare the state's ban on same-sex marriage unconstitutional because it conflicts with the Equal Rights Amendment.

But the court dismissed that argument, noting that law was not intended "to reach classifications based on sexual orientation" and it protects men and women as classes, not individuals.

"I would say the majority got it backwards," Singer said. "Treating women and men as members of a class rather than treating them as individuals is an evil that the Equal Rights Amendment was designed to protect against."

She said under the court's reasoning, legislators could pass a law that requires judges to have clerks of the same gender.

"The Maryland Equal Rights Amendment, if it means anything, it means the right to be free of classifications and decisions based on one's sex," Singer said. "So it's troubling to see the court retreat to a vision of gender equality that I think is inconsistent with widespread understandings."

Some experts also said they were befuddled that the opinion noted gay couples could not marry in part because they could not reproduce.

"To elevate procreation to that level of importance in our society and use that as the justification for the state to support marriage as something between a man and a woman is really out of touch with what's happening," Babb said. "That just doesn't reflect the reality of today's society."

Singer said the ruling could have unintended consequences for couples who want to marry, but are unable or unwilling to bear children.

"It's a narrow view of the reason why we as a society protect and value marriage," she said. "It's not just about procreation. I think the Supreme Court has made it clear that it's about support and building a life together and making a commitment and undertaking obligations. And certainly procreation is an important part of marriage for some couples, but not all heterosexual couples who are married are able or interested in biological procreation."

Madaleno noted the court's recitation of such reasoning was surprising because state attorneys had not raised the issue to judges.

"They bought into all these arguments that were brought forth by the reactionary right and brought it into the decision, and that is both unfortunate and disheartening," he said. "I mean it seems like they went out of their way to establish what is truly an anti-gay ruling."

Though it will take a few days for legal analysts to carefully read the lengthy rulings, initial reactions found them divided along ideological lines -- those who found fault with the judgment had expressed support for the plaintiffs while conservative groups found the legal rationales sound.

Jenny Tyree, associate marriage analyst for Focus on the Family Action, told Citizen Link, an online newsletter of the organization, the judges did the right thing.

"The Maryland court upheld two important ideas -- that the marriage laws do not discriminate, and that procreation is a rational basis for the Legislature to protect marriage in the state," she said. "It's an especially heartening decision as we see evidence that children do best with a married mom and dad. This decision confirms that marriage is not a legal institution for the purpose of equality; it's a social institution with children at its heart."

More difficult to predict, perhaps, was Raquel Guillory, a spokesperson for the office of state Attorney General Doug Gansler, who told the Washington Post that Gansler's office felt the judges "reached the correct legal conclusion" and said it is correct to now let the General Assembly decide whether same-sex couples should be allowed to marry.

Ruling 'inconsistent'

The court also noted that gay Marylanders are not "so politically powerless that they are entitled to" the "extraordinary protection" that was sought.

Madaleno said that was another way for the court to say, "We don't have to guarantee your rights because you've been able to wrestle a few of them, so the rest is up to you."

"It's one of the things that again comes back to how this decision is so annoying and disappointing," he said.

Singer said she was disappointed and confused that the court would tell the 19 plaintiffs to "just try harder in political arenas."

"I think that's inconsistent with the role of the court in safeguarding both equality principles and fundamental rights principles," she said.

Babb noted that while Tuesday's decision concludes the legal battle over this case, it does not end discussion of the issue.

She said Marylanders would only hear more about marriage equality in the months to come, as state lawmakers prepare for what could be a contentious session in Annapolis.

"It's going to be a very polarizing legislative session," Babb said. "And because we're talking about people's lives -- and people who are your neighbors, and your coworkers, and members of families who have children, and their children are your children's school buddies -- it will be a very difficult and emotionally charged time. And that I don't look forward to."