The power vested

July 08, 2004

DOES MARYLAND law discriminate by not allowing same-sex marriages? It's the fundamental question raised by the lawsuit filed in Baltimore yesterday by the American Civil Liberties Union on behalf of nine same-sex couples and a gay man whose partner recently died.

The ACLU argues that the prohibition violates a state constitution that, among other things, expressly forbids discrimination based on gender. The lawsuit is part of a national campaign to challenge state marriage laws on similar grounds.

There is considerable merit in the ACLU's argument. For all the concern about its religious implications, marriage is a civil institution, a state-sanctioned legal contract, and the government ought to provide equal access to this government benefit to all its citizens. Whether or not the lawsuit is successful, no church or synagogue would ever be forced by the government to give its blessings to same-sex couples. But if the ACLU succeeds, the state couldn't forbid same-sex couples from obtaining a marriage license from a clerk of the court.

It may take years for Maryland's judicial system to render a final verdict in this case, and the issue clearly transcends local government. Many other states and Congress may yet weigh in on the debate, too. But Maryland is a logical place for the same-sex marriage movement. It's one of 14 states that has passed laws to ban discrimination against gays and lesbians, and recent court decisions suggest that Maryland judges have grown increasingly sympathetic to some of these issues, too.

Still, the concept of same-sex marriage remains a difficult one for many people, Maryland residents included. Gay and lesbian rights advocates recognize that their case must first win favor in the court of public opinion. No legal remedy would stand if it provoked a backlash from voters.

In this regard, the strength of the ACLU's case can be found in the troubling stories of the plaintiffs. Such as the two Baltimore women who have been forced apart by deportation - a problem they wouldn't have faced had they been allowed to marry. Or the couple who can't get health insurance for their children because their employer doesn't recognize same-sex partners. Others tell stories of hospitals refusing to recognize their family relationships during medical emergencies or fear they'd be unable to make medical decisions for a partner if a crisis arose.

It's difficult to believe that most fair-minded people, when offered this evidence, would not be sympathetic to the plaintiffs' case. There are interim measures the General Assembly could take to lessen some of these problems. A good start would be to approve the bill (that failed during the last session) to grant registered domestic partners health care and medical decision-making rights on par with married couples.

Ultimately, we believe same-sex couples are destined to have the right to a marriage license - and to have their married status recognized anywhere in the country. The ACLU's lawsuit may be remembered as an important step in that journey.

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