From the Maryland Daily Record

Same-sex marriage: The big day approaches

State's highest court to hear argument early next month

by Ann W. Parks

Friday, November 17, 2006

They met in college classrooms, in workplaces and airports and coffee shops. Two were introduced through a mutual friend; two had a mutual interest in roller hockey.

Some are raising children. Others are retired and looking forward to spending their "golden years" on travel, art, theater and music.

One couple has been together since 1978. One was parted by death after a 13-year-relationship.

Indeed, they are not terribly different from other couples in Maryland, except for one thing.

They do not, as of yet, have the right to marry.

On Monday, Dec. 4, nine same-sex couples and one homosexual man will head to the Court of Appeals for oral arguments in their highly publicized legal battle against the county court clerks standing in their way of a marriage license.

The fight began in July 2004, when the 19 gay and lesbian Marylanders -- represented by the American Civil Liberties Union Foundation -- filed suit in Baltimore City Circuit Court, attempting to invalidate the state's one man/one woman definition of marriage.

The definition, found in Family Law Article §2-201, was enacted by the General Assembly in 1973. A year earlier, the same legislature had passed the state's Equal Rights Amendment. After ratification by voters in November 1972, the ERA became Article 46 of the Maryland Declaration of Rights.

Three decades later, however, the plaintiffs in this case argue that §2-201 violates the ERA. Baltimore City Circuit Judge M. Brooke Murdock agreed and, on Jan. 20 of this year, struck down the definition.

"After much study and serious reflection, this Court holds that Maryland's statutory prohibition against same-sex marriage cannot withstand this constitutional challenge," Murdock wrote in a 20-page opinion. "Family Law §2-201 violates Article 46 of the Maryland Declaration of Rights because it discriminates, based on gender, against a suspect class; and it is not narrowly tailored to serve any compelling governmental state interest."

Murdock, however, stayed the effect of her decision while the appeal is pending.

'They told us no'

On a drizzly Sunday afternoon, the routine at the Simon-Williams household is probably no different than that of any of the neighbors on their quiet Upper Marlboro cul-de-sac.

Alvin Williams, 51, is sporting a tie, having just come from church. Nigel Simon, 37, didn't quite make it to services this week and is more casually dressed.

They met at a discussion group for black gay men. Simon admired Williams' forthright, articulate responses to certain questions. Williams admired Simon's honesty.

Williams had been married before, to a heterosexual woman. This was Simon's first openly gay relationship.

Though neither seemed to be the other's type, they have been together nine years.

"There was something about us...," Simon said. "It was refreshing."

Their living room is peaceful, neat and quiet -- until the kids come in, asking for brownies.

Kiran, 9, was adopted by the couple in 2001. Renee, 10, and Mateo, 9, were adopted in 2005. All were born to drug-addicted parents in Baltimore, Simon said; Kiran was in an abuse situation.

"His transformation has been nothing less than phenomenal," Williams said. "When he first came to us, he didn't speak above a whisper... the social worker came back two weeks later and said, 'this is not the same child.' He was speaking, talking, laughing."

Adopting the children was a double process, they say. Simon had to do the initial adoption and then, months later, petition the court to add Williams as a second parent.

If they had been married, they would have been able to adopt as a couple.

"When it benefits us, we're not a couple," Simon said, explaining wryly that when the couple looked into receiving Social Security disability benefits for one of the children, they were considered effectively married for that purpose. The income of the "household," he said, was the determining factor -- and the couple's combined income was too high.

Interestingly, both pastors at their traditional Baptist church acknowledge their relationship and recognize them as a family. They were introduced to the congregation as a family.

"Our pastors would marry us in a heartbeat," Williams said. "We went to court in Prince George's County and asked for a marriage license. They were very polite and told us no."

Province of the legislature

Of course, there's no shortage of opinion on the matter. Amicus briefs in favor of the same-sex couples have been filed by national and local chapters of the American Academy of Matrimonial Lawyers; American Psychological Association; NAACP Legal Defense and Educational Fund Inc.; National Association of Social Workers; American Academy of Pediatrics; and a group of Maryland law professors -- to name a few.

Briefs in favor of the court clerks have been filed by the Citizens for Traditional Families (a Maryland-based citizens' organization promoting family welfare); the Marriage Law Project at The Catholic University of America; and the Washington, D.C.-based Family Research Council, among others.

Baltimore-based attorney Matt M. Paavola, who filed a brief on behalf of 10 members of the 2006 General Assembly in support of the current law, said his clients are all over the place in terms of their backgrounds and ideologies but agree on one thing.

"This isn't about gay marriage... it's all about separation of power," he said. "They just believe that the Family Law Article in question, the one that says marriage is meant to be between one man and one woman, was enacted by the legislature. It is such a huge significant social policy to make any change to that... they believe it is the province of the legislature... and not the province of the court."

And, like the state, Paavola argues that there is no equal-rights violation since the law burdens both genders equally.

"A man can't marry a man, and a woman can't marry a woman," he said. "Judge Brooke Murdock does a brilliant analysis if you accept her premise on what the [Equal Rights Amendment] is historically and how it's applied. It's just that her premise is faulty and that's where the rest of the analysis and the conclusions are wrong."

For others, though, the issue is the well-being of children. Paul C. Smith, a Rockville-based lawyer who has filed an amicus brief in the case on behalf of the Maryland-based Citizens for Traditional Families, said children are more likely to avoid welfare problems, drug problems and psychological problems if they are in a traditional marriage with a man and a woman as father and mother.

"I'm sure the appellees would dispute that, but the studies are there," he said.

While he acknowledged that a statistical study allows for exceptions in individual cases, Smith said the exceptions should not become the rule.

"You can always come up with anecdotal evidence of a particular situation where the children would do just as well, perhaps, in a gay marriage as in a traditional marriage...," he said. "The state needs to take the broader view in what is best to promote the welfare of our kids."

Continuum

Glen Dehn and Charles Blackburn met at a social function in Bolton Hill 28 years ago. They have no children together, though Blackburn has an adult daughter from a former marriage.

Blackburn found Dehn to be a very solid stable influence. "I was more of the performing-arts type," he said. "It was just a good complementary relationship."

Both retired, their joint interests include theater, ballet, symphony, opera, cooking and foreign travel. They are planning a three-week trip to India in January.

They show no signs of slowing down, though, like any retired couple, they have concerns about the future.

"There are a number of legal issues that would automatically be taken care of if we were legally married," Blackburn said. "We cannot begin to cover the thousand rights, benefits, privileges and responsibilities that are bestowed by civil marriage through legal action; we can only take care of a handful of those issues."

They do not have the automatic inheritance rights that come with marriage, and they cannot share their retirement benefits.

"One of the things that's most frightening... is that you could be excluded from the hospital room of your partner because you were not a relative or married, by the whim of a doctor or a nurse, unless you have original legal documents of power of attorney for health care in your hand."

(While both houses of the Maryland legislature passed a Medical Decision Making Act in 2005 that would have set up a registry of couples and their wishes on health care issues, it was vetoed by the governor.)

They also fear being separated in a nursing home because they are not married or related to each other. "It would be a horrible way to end a long relationship," Dehn said.

For Blackburn -- a former Unitarian minister from Alabama who participated in the marches on Selma during the civil rights movement of the 1960s and later served as a member of the American Civil Liberties Union -- the same-sex marriage fight is a logical next step.

"The [ACLU] thought that we would well represent not only this continuum of the civil rights and civil liberties struggle, but as a stable, loving committed relationship of many, many years," he said.

"I think Massachusetts broke the ground," he said, referring to the only state in the country that recognizes same-sex marriage.

Though courts in New York, Washington and New Jersey refused to recognize same-sex marriage this year, the couple was heartened by the dissenting opinions in those cases. And while New Jersey's Supreme Court did not find a fundamental right to same-sex marriage, it held that the unequal dispensation of rights and benefits had to be addressed by the state legislature, by a rewrite of the marriage laws or through allowing civil unions as Vermont has done.

"I think things are changing," Blackburn said.