What's next for gay marriage

February 19, 2011

Congratulations to Jim Rosapepe, whose announcement Thursday that he will support the gay marriage legislation moving through the legislature makes him the crucial 24th vote in the Senate, and to the seven senators who voted in the Judicial Proceedings Committee to endorse the bill. These are crucial developments, but much more needs to be done before marriage equality is the law of the land in the Free State.

Senate President Thomas V. Mike Miller, an opponent of gay marriage but also an unsung hero in the push for its legalization here, says debate will begin in earnest Tuesday and a vote could come as soon as the following Monday. Although he plans to vote against gay marriage, Senator Miller made the changes on Judicial Proceedings that ensured a majority there for gay marriage, and he has announced that he will vote to stop any filibuster of the gay marriage bill and will work to end debate.

Nonetheless, cloture will be a key hurdle. Until 2004, it took 32 votes to cut off debate. But at the time, an enlarged Republican minority in the Senate, backed by a Republican governor, made the filibuster a real threat to Senator Miller's control of the chamber, and he was able to lower the standard to 29 votes, or three-fifths of the chamber. That means the 24 Senators plus Mr. Miller will have to round up four more votes to shut off debate.

But things wouldn't have gotten this far if Senator Miller, who is still scarred by an abortion filibuster in the early 1990s, didn't have the votes to end debate — and nobody counts votes better than he does.

After that, attention moves to the House of Delegates. Advocates have long believed they have the votes in the House, which is somewhat more liberal than the Senate and lacks the filibuster rule. A committee hearing on the House version of the bill is scheduled for Friday, most likely before the Senate takes final action. That forum will give the House Judiciary Committee time to vet the issue, but advocates in the House plan to work from the Senate version of the bill, which would go straight to the governor's desk if it were passed without amendment.

If the House does pass its own bill or amends the Senate one, it could throw a wrench in the process, as it would have to go through the Senate all over again. And the exact wording of the legislation could be crucial; at least one senator, Mr. Rosapepe, has hinted that the terms of a "conscience clause," which guarantees that those with religious objections to same-sex marriage won't have to perform them, is important to him. Advocates in the House worked with senators on that and other elements of the Senate bill, and they anticipate that they will be able to pass the legislation without changes.

If a bill does get to Gov. Martin O'Malley, he has pledged to sign it. But the story isn't over there. Citizens have the right to petition any act of the General Assembly to referendum, although it happens rarely on statewide issues. A petition would need 55,736 signatures to get on the ballot — difficult, certainly, but on an issue like this, hardly insurmountable. For context, the petition that put the Arundel Mills slots casino on the ballot collected 22,000 signatures in Anne Arundel County alone (though in fairness, that effort benefited from the backing of the Maryland Jockey Club, which hired professional canvassers).

Opponents of gay marriage would have to submit a third of the signatures, 18,579 of them, by June 1 and the rest within 30 days after that. If they meet those deadlines, the law would be prevented from going into effect until after the public voted on the issue in November. Thus, Maryland would not have a situation like the one in California, in which thousands of same-sex couples were married in the period between a court ruling declaring gay marriage legal and the approval of a voter referendum that outlawed it.

What would happen in a statewide vote on the issue is anyone's guess. Gay marriage has suffered a string of defeats at the ballot box in other states, but the latest polling on the question in Maryland found majority support for it. Public opinion is steadily moving in that direction, and supporters appear to have the energy and momentum on their side. This week's developments were crucial but small steps, with many more to go. Still, those eager to see all of the state's residents treated equally under the law have good reason for optimism that this will be the year.

—Andrew A. Green

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