Judge hears argument for gay marriage in Maryland

Lawyer for 9 couples says state law violates rights

August 31, 2005|By Matthew Hay Brown | Matthew Hay Brown,SUN STAFF

An attorney for nine gay couples told a judge yesterday that the state law that defines marriage as the union of one man and one woman violates their rights under the Maryland Constitution.

Attorneys for the state, representing five city and county clerks who have refused to issue marriage licenses to the gay men and lesbians, said there is no right to same-sex marriage.

The lawsuit, filed in Baltimore Circuit Court, has propelled Maryland into the national debate over who may enjoy the emotional, psychological and legal benefits of marriage.

The New York-based Lesbian and Gay Rights Project of the American Civil Liberties Union, which is working with the state affiliate of the ACLU and local attorneys to represent the couples, said they chose to file the lawsuit here last year in part because of a comparatively friendly legal and political environment.

Still, some religious leaders and conservative lawmakers have vowed to fight any efforts to recognize same-sex marriage.

Dozens of supporters and a few opponents filled the courtroom where Judge M. Brooke Murdock heard arguments yesterday. Murdock warned the gallery at the outset against outbursts during the proceedings.

Kenneth Choe, a senior staff attorney with the ACLU, told Murdock that the 1973 state law that defines marriage discriminates against homosexuals on the basis of both sex and sexual orientation. He said it was denying committed partners and their children hundreds of rights and protections commonly available to married couples, in areas such as health benefits, hospital visitation rights and property inheritance.

"The plaintiffs do not seek the creation of a new right," Choe said. "They are asking that the fundamental right to marry not be limited to those who have historically enjoyed it."

Assistant Attorney General Robert A. Zarnoch, who is representing Baltimore City Clerk Frank Conaway and the clerks of Dorchester, Prince George's, St. Mary's and Washington counties, questioned whether there exists a "fundamental right" to same-sex marriage.

He noted the passage of several recent bills in Maryland to expand legal protections to homosexuals, and suggested that they amounted to a "one-step-at-a-time approach" that was a more appropriate way to confront such concerns.

"At issue here is really more than a 32-year-old state law," Zarnoch said. "At issue is the authority of the legislature to address same-sex issues."

Murdock asked how recognizing same-sex marriage would harm the state. Assistant Attorney General Steven M. Sullivan said it would disrupt a history of maintaining traditional marriage as defined by the legislature, and could create conflict with federal law. As an example, he named the potential for confusion over federal income tax returns, on which state tax returns are based.

Choe said recognizing same-sex marriage would cause no harm to the state and would ease problems experienced by gay and lesbian couples. He said Massachusetts, the only state to recognize same-sex marriage, has not suffered from conflict with federal law.

No further hearings are scheduled. Murdock said she would issue a written opinion, but gave no timetable. Any ruling is likely to be appealed.

New York, California, New Jersey, Washington state and Connecticut all are facing lawsuits challenging prohibitions of same-sex marriage. Sixteen states have approved constitutional amendments banning it.

Clergy in Maryland led a rally of about 1,000 same-sex marriage opponents at the State House this year calling for a similar amendment here. The legislature did not act on the proposal. About 50 local religious leaders met this week to pledge their support for same-sex marriage.

Supporters cheered yesterday as the couples emerged from the Clarence M. Mitchell Jr. Courthouse after the 90-minute hearing. Some held signs reading, "My gay son deserves the right to marry" and "Separate but equal is still wrong -- marriage is a human right."

Addressing the crowd, Dan Furmansky, executive director of the gay-rights group Equality Maryland, called the hearing "an exciting moment in time for us."

"We stand here today ... not as a radical group of people, not as rabble-rousers seeking to harm society, but as a group of ordinary citizens trying to take care of our families and work toward basic fairness under the law," he said.

The ACLU distributed information about each of the plaintiffs, detailing the impact on each of not being able to marry. Donna Myers can't sponsor her Costa Rican partner, Maria Barquero, for a green card. When John Lestitian's partner died suddenly in 2003, he lost the house they shared.

Opponents of same-sex marriage, appearing in a smaller contingent, said they had not wanted to stage a rally because they believe the issue is more appropriately addressed in the state legislature.

"What we have the potential for here is a judge making law," said Richard Bowers, chairman of Defend Maryland Marriage. "That's not how we do law here in Maryland."

Lee Merrell, director of the Christian Coalition of Maryland, said many of the legal concerns of same-sex partners amounted to individual financial issues that could be addressed by means such as writing wills and granting powers of attorney. He said he opposed "validating homosexual relationships" by allowing such couples to marry.

Gita Deane, 43, a learning specialist at Goucher College, and Lisa Polyak, 44, an environmental engineer for the Army, will celebrate 25 years together this fall. They are raising two daughters.

Coming out of the courtroom Tuesday, Polyak expressed relief.

"This 90 minutes was the culmination of all the years of work for someone to finally listen and take seriously all the harms and concerns we experience," she said. "I've been waiting a long time for this."

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