Judges to hear same-sex lawsuit

State's highest court to directly take appeal of Md. marriage case


The contentious debate over same-sex marriage was reignited in Maryland yesterday when the state's highest court agreed to hear a case that seeks to overturn a state law that defines marriage as an institution between a man and a woman.

The lawsuit is among a handful of similar legal challenges being battled out in high courts around the country as politicians and activists on both sides keep close watch on the outcomes. In Maryland, attorneys will file briefs this fall, and the Court of Appeals plans to hear arguments in the case in late November or early December.

In January, Baltimore Circuit Judge M. Brooke Murdock sided with 19 gay and lesbian plaintiffs in ruling that Maryland's marriage law is discriminatory and unconstitutional, setting off a firestorm of debate in the General Assembly. Some lawmakers hoped to circumvent the legal process altogether and unsuccessfully pushed for a state constitutional amendment to ban gay marriage.

The attorney general's office immediately filed an appeal of Murdock's ruling with the Court of Special Appeals. Yesterday, the state's highest court stepped in and directly took the appeal, a move that attorneys on both sides had expected.

John Lestitian, 40, of Hagerstown, who is one of the plaintiffs, said the Court of Appeals' decision to take the case speeds up the process for the lawsuit's same-sex couples, who are eager for a final ruling.

"I think it's a wonderful progression of our case," he said. "It's very appropriate that the court review the case sooner than later. In the meantime, nontraditional families continue to suffer."

Lestitian said he was motivated to join the lawsuit after his partner died in 2003. Because they were not legally married, Lestitian said he was unable to be in charge of the disposition of his partner's body and was forced to pay taxes on his partner's retirement savings accounts.

"It's hard enough losing a spouse, but the enhanced pain at the hands of the state was devastating," he said.

Kevin Enright, a spokesman for Attorney General J. Joseph Curran Jr., said the case was worthy of being heard before the state's highest court.

"We look forward to making our argument in December," he said.

The Court of Appeals order comes on the heels of a spate of recent decisions from high courts in other states that have dealt significant blows to advocates of gay marriage.

On Wednesday, Washington state's Supreme Court decided in a 5-4 ruling to uphold that state's gay marriage ban. Earlier this month, New York's highest court ruled that its state constitution does not grant same-sex couples the right to wed.

The rulings, both in states with liberal political reputations, were considered setbacks by activists hoping the courts would return decisions similar to that of Massachusetts, the only state where same-sex marriage is legal.

Since Massachusetts' high court handed down its decision in 2003, gay advocates around the country have followed the legal strategy that worked there: petitioning local clerks of courts for marriage licenses and suing once they have been denied.

Maryland's plaintiffs launched their lawsuit in July 2004, and the state has been among a handful, including California and New Jersey, where the issue of gay marriage is being actively litigated. Meanwhile a small group of state legislatures, including those in Vermont and Connecticut, have passed some recognition of same-sex relationships.

Opponents of same-sex marriage have been emboldened by the Washington and New York decisions and say they hope the rulings set a standard for Maryland and other states to follow.

"These decisions will affect how the case is argued and the judges' reason and review of this case - there's no question," said Mat Staver, president of Liberty Counsel, an Orlando, Fla.-based legal group that has fought gay marriage in the courts. "Right now, all of the courts are deciding in favor of heterosexual marriage."

In a letter to supporters, the executive director of Maryland's largest advocacy group for gay men and lesbians expressed disappointment at the Washington ruling and what it means for couples like the lead plaintiffs in the state's case, Lisa Polyak and Gita Deane.

"I am aching for Lisa and Gita, for all of the children of same-sex couples that I know, and most importantly, for those brave couples in Washington state who have been slapped down," Dan Furmansky of Equality Maryland said in the letter sent Wednesday. "In so many ways, this country fails to do right by all its residents, and until it does, it will be the land of the free only for some."

But in an interview yesterday, Furmansky said he is hopeful that the Washington and New York decisions will not have a bearing on Maryland's outcome. Noting the 5-4 decision in Washington, he said: "If one person had looked at the case differently, we'd be having a completely different conversation."

Julie Shapiro, an associate law professor at the University of Seattle, said that while the issues in each state are similar, there's no guarantee that Maryland will reach a decision that mimics the Washington and New York rulings.

"It certainly could come out differently," she said of Maryland. "Two cases are not a trend."

Nevertheless, even if Maryland's highest court rules to overturn its marriage law, it is unlikely the political fight over whether same-sex couples should be allowed to marry will end.

For instance, after the highest court in Massachusetts ruled to allow gay marriage in 2003, state legislators immediately pushed to ban same-sex marriage with an amendment to the state constitution.

"There is no way this ends in the courts," Shapiro said, "not for a very, very, very long time."


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