By Lisa Keen
The supreme court of Maryland reversed a lower court decision Tuesday which had found a constitutional right for gay couples to marry, making Maryland the fifth state where the high court upheld bans on gay marriage in the past two years.
But it was apparently no easy decision for the Maryland Court of Appeals to reach. The seven-member bench – all but one of whom is a Democratic appointee – was deeply divided and rendered its decision by a 4 to 3 margin with an unprecedented 244 pages of discussion.
Maryland did not pass a specifically anti-gay marriage statute, like many states, but the ACLU lawsuit, Conaway v. Deane, challenged the state's law which, in 1973, defined marriage as being only between a man and a woman. The ACLU argued that the restriction amounted to sex discrimination against gay people.
But the majority upheld the law as written, and concluded that, because gay people have never been legally designated as a "suspect class" – or oppressed minority – the government did not need to show any compelling reason for denying them equal treatment under the marriage law. Instead, said the majority, all the government need show was a simple rational reason – the lowest level of review for the statute.
The majority concluded that the government's reasoning – that it issues licenses to heterosexual couples in order to foster procreation and encourage the traditional family structure – is plausible. And because that claim is plausible, said the majority, the court has no need to take judicial action against the law.
Equality Maryland's Dan Furmansky vowed to continue the fight for equal marriage rights, and called on the state legislature to rewrite the law. Meanwhile, Democratic State Senator Gwen Britt announced she would introduce legislation next year to allow same-sex couples to marry.
The Maryland decision essentially parrots the harsher of two models for state supreme court decisions on gay marriage. The harsher model – that carved out by the supreme court of New York in July of last year – finds nothing in that state's constitution to require equal treatment of same-sex couples when it comes to marriage licensing and uses the lowest level of legal review – one that requires only that the government's reason for a law be "rational." New York accepted as rational the state's claim that its restriction of marriage licenses to heterosexual couples was intended to provide a special "inducement" for heterosexuals to marry. That model was essentially adopted by the Washington Supreme Court later in 2006 when it said "the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation … and furthers the well-being of children by encouraging families where children are reared in homes headed by the children's biological parents."
The second model -initiated by the Vermont Supreme Court in 1999 – finds that the state's constitution requires gay couples be treated equally but allows the equal treatment to be delivered through a different means than "marriage" licensing. New Jersey adopted that approach in October of last year with its ruling in Lewis v. Harris.
Last year, other state supreme courts -in Tennessee and Georgia– allowed ballot measures seeking to ban gay marriage to proceed.
Only one state supreme court – the Massachusetts Supreme Judicial Court, in November 2003 – declared that a state's constitutional promise of equal protection of the law requires the state to issue marriage licenses to same-sex couples the same as it does to heterosexual couples.
A decision on a similar case is now pending in the Connecticut Supreme Court and will be argued soon in the California Supreme Court.
The first ever state supreme court ruling concerning same-sex marriage came in 1971 when the Minnesota Supreme Court ruled that the state could deny a marriage license to a same-sex couple. That lawsuit, Baker v. Nelson, was dismissed by the U.S. Supreme Court with no explanation beyond "want of a substantial federal question." In what might also be considered a piece of the silver lining in the ruling, the majority rejected the notion that the Baker dismissal required it to reject plaintiffs' case out of hand.
