Gay marriage fight escalates

Case starts in high court tomorrow as both sides brace for long battle

December 03, 2006|By Kelly Brewington | Kelly Brewington,Sun reporter

More than two years after nine gay and lesbian couples challenged local clerks of courts to issue them marriage licenses, Maryland's battle over same-sex marriages moves to the state's highest court tomorrow -- an emotion-charged case whose consequences seem sure to reverberate across the legislature and the electoral landscape.

The arguments before the Maryland Court of Appeals will propel the state toward what legal experts predict will be a long, bitterly fought struggle over who is entitled to the rights and benefits of marriage.

The case also thrusts Maryland onto the national spotlight as one of a handful of states whose high courts are deliberating the thorny issue of same-sex nuptials under the watchful eyes of politicians, advocates of gay rights and foes of same-sex marriage.

In Maryland, the plaintiffs and their supporters are eager to place the state in the same category as Massachusetts, the only state that sanctions gay marriage. Meanwhile opponents, including some vocal members of the General Assembly, continue to assert that the public should decide the issue at the polls.

But on one thing, both sides agree: The fight over same-sex marriage is likely to be a long haul.

"It's the beginning of the wait," said Dan Furmansky, executive director of the gay-rights group Equality Maryland. "If you look at this in the context of civil rights struggles, if you just won and won, it wouldn't be a struggle."

"It's not going to go away," said Rick Bowers, whose Defend Maryland Marriage group unsuccessfully pushed this year for a state constitutional amendment banning same-sex marriage. "It will not go away in the short term because I don't think either side will be satisfied."

In arguments before the Court of Appeals, attorneys representing the plaintiffs, who filed the lawsuit in July 2004, will contend that Maryland's 1973 law defining marriage as a union between one man and one woman violates their constitutional rights.

The primary argument of the state attorney general's office will be that the matter should be decided by the legislature.

In January, Baltimore Circuit Judge M. Brooke Murdock sided with the 19 gay and lesbian plaintiffs in ruling that the state's marriage law is discriminatory. That ignited an explosive debate within the General Assembly, with some lawmakers hoping to take the question directly to the public with a November referendum to ban gay marriage in the state's constitution.

The attorney general's office immediately appealed Murdock's decision, and the Court of Appeals agreed in July to hear the case.

Tomorrow's arguments come on the heels of a spate of court decisions in the summer in states such as Washington and New York that rejected same-sex marriage. But it also follows an election season where the issue was less contentious than in years past, political observers say.

After Massachusetts' 2004 ruling sanctioning gay marriages, gay rights advocates quickly pressed the issue in courts around the nation, and anti-gay marriage groups pushed for referendums to amend state constitutions to explicitly restrict the definition of marriage.

In 2004, voters in 11 states approved ballot measures to ban same-sex marriage in their constitutions. This year, seven states voted the same way, while Arizona rejected a proposed amendment. Legal challenges are under way in California, Connecticut, Iowa and Oklahoma.

Julie Shapiro, an associate professor at the Seattle University School of Law, said recent activity underscores that no single case will resolve all questions on gay marriage.

"I think increasingly Massachusetts and maybe one or two other states will stand alone, and the rest of the country is going to be in a lot of different places for a long time," she said.

Shapiro said she expects Maryland's high court to deliver a somewhat middle-of-the-road ruling.

"My guess is people are expecting some kind of moderate middle opinion that recognizes some kind of justice claims, but maybe stops short of saying the word marriage," she said.

That could be similar to the ruling in October by New Jersey's highest court, which declared that gay couples should have the same protections as straight couples but left it to the legislature to work out the specifics -- including whether to use the term marriage.

But a ruling that falls short of marriage would be a disappointment to advocates of gay rights in Maryland. "Plenty of folks would be much more enthusiastic to take the safe route than grant full legal parity," Furmansky said. "It's simply wrong to exclude people from the same legal institution that has been set up to protect other families. It would be an incompletion toward the process of fairness and justice."

Whatever the Court of Appeals decides, it seems likely to embroil the General Assembly in a nasty struggle.

Del. Donald H. Dwyer Jr. said he plans to push a bill next year to ban gay marriage in the state constitution, a measure he has backed unsuccessfully in three legislative sessions.

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