Defining fundamental rights

December 07, 2006

It may mean nothing to the ultimate decision, but the state's argument before the Court of Appeals this week in defense of Maryland's ban on same-sex marriage was remarkably weak.

Essentially the case made by Robert Zarnoch, counsel to the General Assembly, was that there is no fundamental right in Maryland to same-sex marriage, there is no violation of equal rights guarantees because both genders are equally affected, and if gay couples suffer legal, financial and emotional hardships because of their relationships, only the legislature can address their grievances.

Under that logic, the state's ban on interracial marriage would likely still be in place, and unpopular minorities or those without political clout would have little prospect of equal treatment under the law.

The central issue of whether marriage itself is accepted as a fundamental right of liberty and privacy may well be, as some courts have suggested, an evolutionary matter. As this page has frequently observed, it seems a social as well as legal question that is advancing by fits and starts with the increasing acceptance of gays in society.

Even the tone of the debate has elevated, losing some of its shrillness.

But to contend that legal and financial discrimination can only be remedied by a majority vote of the General Assembly is to ignore the courts' critical role in the system of checks and balances. Such a contention also ignores the pattern of history, which shows that legislatures are notoriously slow at correcting abuses of fairness and human dignity - often requiring the courts to kick them into action.

New Jersey's high court tried to split the difference in a ruling this fall. The court unanimously endorsed the principle that same-sex couples must be accorded the "same financial and social benefits and privileges" as more traditional partners. But by a narrow margin, the court left up to the legislature the question of whether same sex unions should be called "marriage" or something else.

Maryland's top jurists gave little hint during the arguments of their inclination. But at a minimum, they should soundly reject the notion that they have no role in protecting the rights and addressing the grievances of the thousands of gay couples in this state.

If that's the best case the state can make, it deserves to lose.

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