Opinions from the high court

Excerpts

September 19, 2007

Majority opinion

Judge Glenn T. Harrell Jr.:

In declaring that the State's legitimate interests in fostering procreation and encouraging the traditional family structure ... our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex.

It is clear that homosexual persons, at least in terms of contemporary history, have been a disfavored group in both public and private spheres of our society. ... This Court nevertheless finds that ... a history of unequal treatment does not require that we deem suspect a classification based on sexual orientation.

In spite of the unequal treatment suffered possibly by Appellees and certainly a substantial portion of other citizens similarly situated, we are not persuaded that gay, lesbian and bisexual persons are so politically powerless that they are entitled to "extraordinary protection from the majoritarian political process." To the contrary, it appears that, at least in Maryland, advocacy to eliminate discrimination against gay, lesbian and bisexual persons based on their sexual orientation has met with growing successes in the legislative and executive branches of government.

The irony is not lost on us that the increasing political and other successes of the expression of gay power works against Appellees in this part of our analysis of the level of scrutiny to be given the statue under review.

In the absence of some generally accepted scientific conclusion identifying homosexuality as an immutable characteristic ... we decline on the record in the present case to recognize sexual orientation as an immutable trait ...

Indeed, the fundamental right to marry is not absolute. Under Maryland law, a minor may not marry if the minor is under the age of 15. ... Individuals within a certain degree of lineal or collateral consanguinity may not marry. ... In order for a marriage to be valid within the State, the parties to it must be mentally competent ... Bigamous relationships are likewise subject to regulation by the State ...

With the exception of Massachusetts, virtually every court to have considered the issue has held that same-sex marriage is not constitutionally protected as fundamental in either their state or the Nation as a whole.

We agree that the State's asserted interest in fostering procreation is a legitimate government interest.

Dissenting opinions

Chief Judge Robert M. Bell

To be sure, there are important differences between the African American experience and that of gay men and lesbians in this country, yet many of the arguments made in support of the antimiscegenation laws were identical to those made today in opposition to same-sex marriage.

The majority determines that same-sex marriage is not deeply rooted in this State or in the United States, and, therefore, does not implicate a fundamental liberty interest. ... That determination, however, only recognizes and gives voice and substance to an undisputed prejudice and objection - against and to homosexuality - that is not legally cognizable.

The right to marry, encompassing as it does the related and critically important element of choice - the freedom to choose whom to marry, to select the "lucky" person - is not inherently party-centric. Neither is it either hetero- or homo-sexual.

Judge Lynne A. Battaglia

This court repeatedly affirmed its commitment to uphold the will of the People of Maryland to eradicate state sanctioned unequal treatment based on the happenstance of a particular person's sex.

The majority offers no principled basis for applying equal protection analysis to couples rather than to individuals, for the simple reason that there is no principled basis for the distinction.

In reaching this result, the majority breathes life into the corpse of separate but equal ...

Today this Court denies the commitment to equal rights made by the General Assembly and ratified by the People of this state in 1972.[The majority's] strained interpretation ignores what until today had been well-settled in Maryland: the ERA is intended to address the rights of individuals, not the rights of "men and women as classes."

The correspondence between opposite-sex marriage and biological necessity has never been more tenuous than it is today. What had always been an imperfect fit between marriage and procreation is now called into question.

Judge Irma S. Raker

It is clear that there are significant differences in the benefits provided to married couples and same-sex couples in the areas of taxation, business regulation, secured commercial transactions, spousal privilege and other procedural matters, education, estates and trusts, family law, decision-making regarding spousal health care, insurance, labor and employment, child care and child rearing, pensions, and the responsibilities attendant to spousal funeral arrangements.

Despite the fact that Maryland provides some rights and benefits in the area of procreation to same-sex couples, the State asserts it has a rational basis for excluding same-sex couples from the full benefits of marriage. This is not a rational assertion.

What is striking, in fact, is that the State's proffered interest - providing a stable environment for procreation and child rearing - is actually compromised by denying same-sex families the benefits and rights that flow from marriage.

In short, while there may be a legitimate basis for retaining the definition of marriage as one between a man and a woman, there is no legitimate basis for denying committed same-sex couples the benefits and privileges of marriage.

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