By Lisa Keen
There were almost no questions from the bench Monday, December 4, as the Supreme Court of Maryland heard oral arguments in a case seeking equal rights in marriage licensing.
That's a bit unusual and, given that the court below had ruled in favor of same-sex marriage, it could be taken as a signal that high court took the appeal just to reverse it.
But Dan Furmansky, executive director of the statewide gay group Equality Maryland, is not such a pessimist. He points out that Monday morning's argument in Frank Conaway et al. v. Gitanjali Deane was also the Maryland Court of Appeals' very first live Web broadcast of an argument.
"That could have had an effect on their demeanor," said Furmansky. "I don't take it as a negative sign that they were not chocked full of questions."
Certainly it could be seen as a positive thing that plaintiffs Gita Deane and the 17 other plaintiffs represented by the ACLU, won at the Baltimore Circuit Court level against the city clerks, including Baltimore City clerk Frank Conaway, who refused them marriage licenses. Circuit Court Judge M. Brooke Murdock ruled last January that the state law's prohibition of same-sex marriage licensing violates the state constitution's prohibition of discrimination on sex.
And certainly it could be seen as a positive that six of the seven judges are an appointee of a pro-gay Democratic governor.
But as the state's attorney made prominent note of in his own remarks to the court, the track record among state supreme courts is weighted heavily against same-sex marriage these days.
Maryland Assistant Attorney General Robert Zarnoch relied heavily on the past as prologue. He told the state high court that six out of seven other state supreme courts have rejected the gender discrimination argument. (The Hawaii Supreme Court, in a preliminary ruling, said a same-sex marriage ban is gender discrimination but then voters amended the constitution to specifically ban same-sex marriage.)
He claimed that a same-sex marriage case from Minnesota in the early 1970s is "binding precedent" on other courts considering same-sex marriage now. That case, Baker v. Nelson, was dismissed by the U.S. Supreme Court with no explanation beyond "want of a substantial federal question."
And he argued that, in the early 1970s when the state was considering whether to ratify the proposed federal equal rights amendment, the legislature did so in part because of assurances that the measure would not open the door for same-sex marriages.
Zarnoch acknowledge that because the state allows the elderly to marry that its claim that marriage exists to ensure procreation is not a perfect one but he said that "perfection is not required."
Responding to Zarnoch's emphasis on the fact that other state supreme courts ruling on same-sex marriage cases have -with the exception of Massachusetts–rejected them, ACLU attorney Ken Choe argued that courts, such as the Maryland supreme court, have often ruled differently than other courts -on such matters as interracial marriage, one person-one vote, and other controversial issues.
Without commenting on the procreation argument specifically, Choe noted that "it is not enough" for the state to give a reason for issuing marriage licenses to opposite-sex couples because of procreation. The state must also come up with a rational reason, he said, for why it must exclude same-sex couples.
"Otherwise," he said, "the state could exclude left-handed people from marriage by saying that marriage benefits right-handed people."
The Maryland Supreme Court is not likely to issue its ruling before the end of the year, but already, 2006 has been a tough year for same-sex marriage in the state courts. State supreme courts in New York and Washington ruled that same-sex couples could be denied equal marriage rights; the New Jersey Supreme Court ruled they were due equal rights but that a vehicle other than "marriage" might suffice; the Georgia court upheld a voter approved constitutional ban, and the Tennessee court allowed one to proceed to the ballot (where it was approved last month).
Meanwhile, in supreme court of Massachusetts, which ruled in 2003 that the state constitution requires recognition of same-sex marriages, is set to hear arguments later this month on a plea from lame duck Republican Governor Mitt Romney. Romney, an unofficial candidate for president in 2008, has been actively supporting an anti-gay ballot measure for the 2008 election. After the legislature maneuvered to avoid a necessary vote on the proposal last month, he asked the high court to force the measure to the ballot.
The court is set to hear that argument on Dec. 20.
