Judge Strikes Down Md. Ban on Gay Marriage
Ruling Is Stayed as Constitutional Fight Ignites

By Matthew Mosk and John Wagner
Washington Post Staff Writers
Saturday, January 21, 2006

A Baltimore judge ruled yesterday that Maryland's law banning same-sex marriage is discriminatory and "cannot withstand constitutional challenge," throwing open the possibility of a bruising legislative battle over a constitutional amendment.

Unlike decisions in Massachusetts and New York state, the Maryland ruling will not immediately bring lines of same-sex couples to city hall for civil ceremonies. Circuit Court Judge M. Brooke Murdock immediately stayed her decision, and the attorney general's office has voiced plans for an appeal.

Nevertheless, the judge's decision thrilled the 19 gay men and lesbians who filed suit last year after being denied marriage licenses in courthouses across the state. They challenged a 1973 state statute that defines marriage as a union between a man and a woman.

"It really is exciting," said Dave Kolesar, 28, an engineer at the U.S. Naval Research Laboratory and one of the plaintiffs, who said he was bowled over by the victory. "I wasn't ready, mentally, for success."

The effect of the ruling could be far more immediate in how it alters Maryland's political landscape. The decision comes during the state's contentious 2006 campaigns for governor and U.S. Senate. And it lands as the Maryland General Assembly's 90-day session has just gotten underway.

Although Democratic leaders who control both chambers have not embraced gay marriage, they signaled strong resistance yesterday to a constitutional ban. Those opposing same-sex unions vowed to force the issue to the top of the legislature's agenda.

"The evidence is now on the table. We must pass a constitutional amendment," said Del. Donald H. Dwyer Jr. (R-Anne Arundel). "This issue is not for the courts to decide."

Gov. Robert L. Ehrlich Jr. (R) expressed dismay with the court at an afternoon news conference. He hinted that he would get behind a drive to amend the constitution, saying he would "take the appropriate steps to protect marriage."

"Obviously, I'm disappointed," Ehrlich said. "Again, Maryland is in the national limelight, and it's not positive."

Eighteen states define marriage in their constitutions, many in amendments approved since 2003, when a Massachusetts court opened the door to same-sex marriages there, according to the National Conference of State Legislatures. Massachusetts is the only state that issues marriage licenses to same-sex couples, though Vermont and Connecticut recognize civil unions. Four states, the District and several dozen localities allow couples to formalize relationships through domestic-partnership registries.

The Virginia House of Delegates has approved a constitutional amendment that would bar same-sex marriages. If approved in the Senate, the measure would appear on the ballot in November.

In the long-awaited 20-page Maryland court ruling, Murdock took the position that banning same-sex marriage was no less discriminatory than outlawing interracial marriage, saying that "although traditions and values are important, they cannot be given so much weight that they alone will justify a discriminatory statutory classification."

Advocates for gay rights hailed the ruling as a significant landmark. "Truly, a historic moment," said Dan Furmansky, executive director of Equality Maryland.

Yesterday afternoon, Gita Deane, 42, and Lisa Polyak, 44, partners for a quarter-century who are raising two daughters and are lead plaintiffs in the lawsuit, sat together in their comfortable living room in north Baltimore, finishing each other's sentences. Deane held a cup of tea in both hands and savored the stillness and the goodness of the moment.

But they know this is just a pause in the challenge they accepted when they became a couple so many years ago -- a connection that has been questioned by many authorities along the way: the doctor who ejected Polyak from the delivery room as Deane gave birth; the immigration official who separated Deane from Polyak and their daughters as the little girls looked on, confused and frightened.

"I feel relieved," Deane said quietly. "People listened. They realized our family needed the protections that other families have."

Others, though, criticized the court ruling as a step toward eroding marriage and family. "My concern is legalizing same-sex unions teaches a society that marriage is only about fulfilling sexual and emotional desires," said the Rev. Eric Redmond of Hillcrest Baptist Church in Temple Hills. "I think homosexuals can have equal civil rights . . . without altering the historic definition of marriage."

Lawmakers in Annapolis who have long advocated for gay rights said the ruling was just the first step. "Hold the corks in the bottles," Del. Maggie L. McIntosh (D-Baltimore) said. "We're still a long way from a final decision."

McIntosh said Democrats recognize that the ruling unleashes the politically combustible issue into a legislative environment fraught with partisan tension.

Even before the ruling yesterday, House Democrats took steps to try to prevent a constitutional ban from reaching a vote on the floor. House leaders made a technical change in procedural rules Thursday, over the objections of Republicans. Residual resentment from that move spilled into yesterday's floor session.

Minority Whip Anthony J. O'Donnell (R-Calvert) admonished his Democratic colleagues for what he said was an attempt to shield them from casting a tough vote in an election year. "We should not fear having a debate," he said.

Yesterday, House and Senate leaders met to discuss how to deal with the issue. Senate President Thomas V. Mike Miller Jr. (D-Calvert) and House Speaker Michael E. Busch (D-Anne Arundel) have cast votes supporting the 1973 law against same-sex marriage.

But both also took the position that a constitutional amendment would be premature, because yesterday's ruling came from a single Circuit Court judge, not from the state's precedent-setting high court.

Sen. Brian E. Frosh (D-Montgomery), who chairs the Senate committee that would have to approve an amendment for it to advance, said he saw no reason to act before the Court of Appeals has ruled. "One Circuit Court judge's opinion is not cause for amending the constitution," Frosh said.

Political strategists said Ehrlich and Democrats in the legislature probably have recognized the potential for a ballot initiative to provide the governor with a significant political edge as he seeks reelection. Republican political consultant Kevin Igoe said the ruling was like "waving a red flag at a bull" for Ehrlich's conservative base. If the issue appears on a ballot, he said, it would almost certainly drive up GOP turnout.

For the issue to make the ballot, though, three-fifths of lawmakers must approve it, a prospect that is doubtful. Maryland law does not allow citizens to petition measures directly onto the ballot.

The two leading Democratic gubernatorial candidates showed no sign they would embrace the court ruling. In a statement, Baltimore Mayor Martin O'Malley affirmed his belief that marriage should be between a man and woman, but he said he supports legislative steps to broaden health care decision-making rights for same-sex couples.

Montgomery County Executive Douglas M. Duncan issued a statement touting his past support for expanded rights. Although he has opposed same-sex marriage in the past, his statement yesterday was silent on the subject. .

Deane and Polyak acknowledged feeling anxious about where the issue is headed as they waited for their daughters to come home from school.

"I worry about what the General Assembly is going to do with this decision," Polyak said hesitantly. "That it will be used to make political hay at the expense of our families. I hope that doesn't happen."

Staff writers Hamil R. Harris, Ann E. Marimow, Mary Otto and Eric Rich contributed to this report.

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