From the Baltimore Sun

Court hears gay marriage arguments

Judges to decide whether state has right to deny rights to same-sex couples

by Ben Nuckols

Monday, December 4, 2006

To many proponents of gay marriage, the struggle to legalize same-sex unions represents the final wave of the decades-long civil rights movement. To many opponents, it's an effort that seeks to subvert the will of the majority and undermine traditional families.

Yet the fate of gay couples who seek to marry in Maryland will come down to how seven judges decide the pricklier question of whether the state constitution guarantees people the right to marry whomever they choose.

That question was at the center of dry but rigorous arguments today before the state's highest court, the latest hearing in a 2004 lawsuit filed by nine same-sex couples and a gay man whose partner is dead. The suit names court clerks who denied the couples' requests for marriage licenses.

The Court of Appeals gave no indication of how it would rule; a decision could take months.

An attorney for the plaintiffs argued that the state has no rational basis for denying gays and lesbians the fundamental right to marriage. An attorney for the state countered that Maryland's 1973 ban on same-sex marriage did not constitute gender discrimination because it applies equally to both genders.

"There is no fundamental constitutional right to same-sex marriage," said Robert Zarnoch, counsel to the General Assembly, who said the question should be decided by the legislature, not the courts.

Said American Civil Liberties Union attorney Kenneth Choe, who argued on behalf of the plaintiffs: "The exclusion of same-sex couples from marriage violates the most fundamental guarantees of equality and liberty for all."

Deborah Weimer, a professor at the University of Maryland School of Law, said the case will turn on whether the judges believe the constitution applies to gay marriage or not. She said it could go either way and expects "a close vote," but like an overwhelming majority of law professors at the university, she believes the question should be decided by the court.

"The argument for the state was basically, 'Let the legislature decide.' But this is a constitutional question," Weimer said. "It's up to the court to make that decision. I understand that some courts have ducked that responsibility, but I hope the Maryland court would not."

Weimer co-wrote a brief in support of the plaintiffs that was signed by more than two-thirds of the law professors at the university.

Massachusetts is the only state that allows gays and lesbians to marry, and New Jersey's Supreme Court ruled in October that homosexuals are entitled to the same rights as heterosexuals but left it to lawmakers to decide whether same-sex unions should be called marriages.

Voters in seven states approved gay-marriage bans this year, joining 20 states that had done so in previous elections. In Arizona, however, voters rejected a ban.

Delegate Don Dwyer, R-Anne Arundel, hopes Maryland voters have the chance to decide the issue as well. Dwyer intends to introduce a constitutional amendment banning gay marriage, as he has in three previous legislative sessions.

"This issue will remain in the courts unless we pass a constitutional amendment," said Dwyer, who argues that homosexuality would be taught in public schools if gay marriage is legalized. "I think that is against the views of the majority of parents who have their children in public schools."

Dwyer was one of many voices on both sides of the issue who spoke outside the courthouse today. There was talk about the history of the gay-rights movement, the definition of family and the practical difficulties confronted by couples who cohabitate and raise children but are unable to marry.

"The times have changed. We're not invisible anymore," said Dan Furmansky, executive director of the gay-rights group Equality Maryland. "What we can't do is be legally married and legally related to our partners.... We ask our fellow Marylanders today to walk a mile in our shoes."

Recalling a time when her partner and fellow plaintiff, Joanne Rabb, was hospitalized with a mysterious illness, Takia Foskey of Baltimore said she couldn't provide essential support to the woman she loves.

"I couldn't get any information in her medical condition because I wasn't recognized as her partner," Foskey said. "I couldn't make any decisions on anything."

Said Robb: "She's pretty much the only one I have."

About two dozen demonstrators from religious organizations gathered in solidarity with the diverse group of plaintiffs, holding signs that read "Presbyterians Support Same-Sex Civil Marriage" and "Equal Rights for the Free State."

Plaintiffs Alvin Williams and Nigel Simon of Upper Marlboro, who are black, stood alongside their pastor, the Rev. Dennis Wiley of Covenant Baptist Church in Washington.

Some believe that "the black church is uniformly against gay marriage," Wiley said. "The black church is not a monolith."

Much of Choe's argument before the court centered on the question of whether the state has a rational basis to deny same-sex couples the right to marry while it concedes that marriage is beneficial to opposite-sex couples.

"It is not enough that there is a reason for including the included class. There must also be a reason for excluding the excluded class," Choe said. "The state could grant right-handed people but not left-handed people the right to marry simply by observing that marriage benefits right-handed people and their children."

In his rebuttal, Zarnoch argued that such a statute would be "wholly arbitrary," while the gay-marriage ban was not. Weimer said that rebuttal highlighted the difficulties the state faced in proving its case.

"The argument from the state was really quite weak, in terms of trying to argue that there was some rational basis for the discrimination that's happening here," Weimer said. "He really couldn't answer that question."

Earlier, Zarnoch argued that when examining whether a right is fundamental, "you apply words like 'history' and 'tradition.' They're not dirty words in the context of a fundamental right analysis."

That argument resonated with gay marriage opponents.

"Certain things are just natural definitions," said Doug Stiegler, executive director of the Maryland Family Protection Lobby, a conservative advocacy group. "A family is a man and a woman and children."