Whose right to marry?

August 31, 2005

WHEN TAKIA Foskey's partner, Joanne Rabb, had emergency gall bladder surgery two years ago, Ms. Foskey was not allowed to see her or get information about her condition.

Similarly, Steve Palmer and Ryan Killough, who both work in health-related jobs, worry about making medical decisions for each other in the event of serious illness.

And even though Gitanjali Deane is now a U.S. citizen, immigration laws once pushed her out of the country and she and her partner of 24 years, Lisa Polyak, did not know if she would be allowed to return.

These are some of the real-life concerns that prompted these and six other same-sex couples to file a lawsuit challenging the state's refusal to issue marriage licenses to them as a violation of the state constitution's prohibition against discrimination based on gender. While some may think this should be a matter strictly for the General Assembly, it's entirely proper for the courts to interpret the constitution. In this case, we think that interpretation should be broadly inclusive of same-sex unions.

While acceptance of gay marriage is still met with fierce resistance, particularly from many religious groups, it is slowly gaining favor in some unexpected parts of the world, including Spain. Maryland's lawsuit was organized by the American Civil Liberties Union as part of a national campaign to challenge state marriage laws.

Yesterday marked a major step as Judge M. Brooke Murdock of Baltimore Circuit Court heard oral arguments from both sides, while many of the plaintiff couples sat among the audience in the ceremonial courtroom. The hearing was part of the opening round in a protracted legal struggle, with the likely last word coming eventually from the state Court of Appeals.

The argument touched on lofty legal principles, with the plaintiffs stating that marriage is a fundamental right that must be examined closely by the courts when the state says that it can only be recognized as a union between a man and a woman. Among other things, the state countered that the legislature should be allowed to address issues related to same-sex partners - and consider the implications of any changes in their status - in its own time.

Admirably, the legislature is tackling some of these issues in a sensible and sensitive manner. While the General Assembly did not pass a constitutional ban on same-sex marriage, as some religious leaders urged, it gave domestic partners such as Mr. Palmer and Mr. Killough the right to make medical decisions for each other. But, as the attorney for the plaintiffs responded to one of Judge Murdock's questions, while it's good that the legislature is making progress, the rights of real people are being compromised every day. However and whenever Judge Murdock might rule, that should not be tolerated in Maryland.

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