Upholding equality

California's ban on same-sex marriage is overturned, for now, but it's time for Maryland to take a stand for the right of gay people to marry

August 05, 2010

It would be easy for Marylanders to look at Wednesday's federal court ruling in favor of gay marriage as being a bit like an earthquake — the kind of thing that happens all the time in California but doesn't matter much here. Although the ruling was made based on constitutional principles, it only affects California, and, at least for the moment, it won't even result in the resumption of same-sex marriages there, as the judge stayed his order pending more arguments. Many believe the case will eventually make it to the Supreme Court, where a decision would affect the entire nation, but that may not be for years.

But what's important here is not just the fate of the 2008 California voter referendum that made same-sex marriages there illegal. It is the way the trial and the judge's decision laid bare the hollowness of the case against gay unions. In the end, all opponents of gay marriage could muster was an argument that the state had an interest in promoting heterosexual marriage because of its role in procreation — absurd since we do not require married couples to have children and do not prohibit couples who do not intend to or cannot have children from marrying — and because of a desire on the part of the majority of California voters to preserve the traditional definition of marriage.

Maryland lawmakers should take a close look at Judge Vaughn R. Walker's opinion. He concluded that opponents of gay marriage were unable to demonstrate any rational state interest for prohibiting same-sex unions. Unable to provide evidence that children raised by heterosexual parents fare better than those raised by gay parents, same-sex marriage opponents were left with a desire to perpetuate tradition, and tradition is no legitimate basis for the state to discriminate against its citizens. Segregation was traditional, but that made it no less abhorrent to our values.

Judge Walker's ruling required no leaps of logic or twisted reasoning, just a reading of the plain language of the Constitution, which promises that no state may "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

California's Proposition 8, and by logical extension prohibitions on gay marriage in general, are "premised on the belief that same-sex couples simply are not as good as opposite-sex couples," Judge Walker wrote. "Whether that belief is based on moral disapproval of homosexuality, animus toward gays and lesbians or simply a belief that a relationship between a man and woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate."

Indeed, Maryland lawmakers have repeatedly concluded in recent years that sexual orientation should not be the basis for discrimination in any number of individual areas — employment, public accommodations, visitation rights in hospitals, and so on. But they have been uncomfortable or afraid to carry that principle to its logical conclusion. Attempts to overturn a 1970s law defining marriage as being between a man and a woman have never advanced out of General Assembly committees, and while the state's top leaders almost universally profess a belief that discrimination against gays is wrong, virtually none of them have expressed support for gay marriage.

The sole exception is Attorney General Douglas F. Gansler, who in addition to outspokenly supporting gay marriage issued an advisory opinion this year saying Maryland should recognize same-sex marriages performed in other states. This led to quick and theatrical condemnation from arch-conservatives in the General Assembly, but the public reaction was a collective yawn. Lawmakers concerned about the political implications of supporting gay marriage should note that Mr. Gansler, alone among statewide elected officials, faces no opponent in either the primary or general elections this year.

Despite the soundness of Judge Walker's reasoning, there is no guarantee that the appellate court or Supreme Court won't manufacture some way to overturn him. Indeed, history is filled with examples of decisions in which the Supreme Court found ways to make the Constitution mean what they wanted it to, not what it actually says. But there is no reason for Maryland lawmakers to wait to find out. When a new General Assembly convenes in January, lawmakers should affirm once and for all that discrimination is inimical to our values and that we will not perpetuate laws that create a second class of citizens.

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