Maryland judge who ruled against gay marriage ban retires

M. Brooke Murdock has presided at three same-sex weddings since 2006 decision

  • From left, Larry Mason, Jessica Damen, Rufus Lusk and Sarah Humphreys stand behind Brooke Murdock, a judge of the circuit court, as they toast during a small ceremony at the Mitchell Courthouse to honor Maj. Emory of the 320th Infantry, killed in action on this date in 1918, in World War I.
From left, Larry Mason, Jessica Damen, Rufus Lusk and Sarah… (Karl Merton Ferron, Baltimore…)
May 08, 2014|Dan Rodricks

In the years since Baltimore Circuit Judge M. Brooke Murdock's famously controversial ruling helped energize the movement to overturn Maryland's ban against same-sex marriage, three gay men have invited her to officiate at their weddings. One was a lawyer and old friend. One was a fellow judge. The third was a man who used to walk his dog in Federal Hill at the same time of day Murdock did.

Some time after her 2006 ruling that Maryland's marriage law was discriminatory, the dog-walker asked Murdock to preside at his wedding — once, he said, same-sex marriage became legal.

Murdock's decision had not made it so. In fact, anticipating an appeal by the state, the judge had stayed her own decision. The following year, the Maryland Court of Appeals reversed her, a setback for gay rights advocates who had been encouraged by Murdock's decision, but also a rallying call to fight harder.

The rest is history: In 2012, the Maryland General Assembly repealed the ban against gay marriage, and on November 6 of that year a majority of voters affirmed the new law in a referendum.

"I never thought it would pass," Murdock said the other day, which is what a lot of people believed in the years between her decision and the vote on Election Day 2012. Maryland's ban against same-sex marriage ended on Jan. 1, 2013.

The judge reflected on her role in Maryland's recent civil rights history on the eve of her retirement dinner Wednesday night in Baltimore. Though Murdock officially retired Jan. 1 after 17 years on the bench, she still takes judicial assignments. She spoke from chambers the other day during a recess in an armed-robbery trial, far more typical than the civil case that brought her more attention than she had ever anticipated.

"There's more to me than my 2006 decision," Murdock said. "Don't get me wrong, I understand that my decision affected a lot of people. But judges make decisions that affect people every day."

Of course. But it's no stretch that Murdock's decision in the same-sex marriage case pushed the clock toward full repeal of the discriminatory law.

"Judge Murdock has left an indelible mark on Baltimore's judicial history," said Mark Scurti, a District Court judge who as an attorney represented numerous gay couples.

In the Baltimore Circuit Court case, 19 gay and lesbian plaintiffs challenged Maryland's definition of marriage as a union between a man and a woman, claiming it deprived them of rights and benefits enjoyed by heterosexual couples. Murdock ruled that the same-sex ban, enacted in 1973, violated a state constitutional amendment against sex discrimination approved by voters just the year before. She said the law could not withstand constitutional challenge.

"Having concluded that preventing same-sex marriage has no rational relationship to any other legitimate state interest," Murdock wrote in her 20-page opinion, "this Court concludes that tradition and social values alone cannot support adequately a discriminatory statutory classification."

Here's another memorable passage: "When tradition is the guise under which prejudice or animosity hides, it is not a legitimate state interest."

After the decision came down, there was predictable outrage from religious leaders and conservative politicians. The governor at the time, Republican Bob Ehrlich, vowed a "vigorous appeals process," and said, "I firmly believe the institution of marriage is for one man and one woman only."

Leading Democrats didn't exactly hail Murdock's ruling, either. It was an election year, after all.

Martin O'Malley, the mayor of Baltimore who ran for governor against Ehrlich in 2006, said he opposed gay marriage and called on the Court of Appeals to promptly take up the state's appeal. (Years later, as governor, O'Malley changed his tune and supported same-sex marriage.)

Mike Miller, the state Senate president, suggested that the gay and lesbian plaintiffs had gone shopping for a sympathetic judge when they took their case to Baltimore. "They're idiots," Miller said.

Murdock received even stronger reactions, including a death threat that prompted Baltimore police to conduct 24-hour surveillance of her Federal Hill home for 10 days. She said she received numerous angry letters and emails about the decision. Del. Don Dwyer, the Anne Arundel County Republican, called for her impeachment on the floor of the House of Delegates. "And Bill O'Reilly [of Fox News] invited me on his show," she said. "I declined the invitation. He put up a picture of me and debated my picture."

Her take-away from the experience: "Judicial independence is so important. It's what [former Supreme Court Justice] Sandra Day O'Connor has been going around the country saying — you appoint the best people you can to be judges and let them do their jobs, let them make the hard calls."

Among the many who appreciated Murdock's hard call in 2006 was John Lestitian of Hagerstown, one of the gay plaintiffs. "Judge Murdock had it right," he wrote in an email. "So often with history that is the way it works. Leaders lead, and years later everyone else starts to get it. Judge Murdock, thank you for leading."

Dan Rodricks' column appears each Tuesday, Thursday and Sunday. He is the host of "Midday" on WYPR-FM.

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