By Matthew Mosk
Washington Post Staff Writer
Wednesday, January 25, 2006
Maryland Democrats concerned about the political fallout from last week's court ruling on same-sex marriage are considering a plan to block any final court ruling from taking effect until after the November elections.
The proposal would be offered in legislation by Del. Luiz R.S. Simmons (D-Montgomery) that would freeze any decision from the state's highest court until the General Assembly has time to evaluate it.
"What we're trying to do is see if we can craft a bill allowing the legislature to seek an injunction, at least until 2007, when we'll have the opportunity to consider a constitutional amendment" banning same-sex marriage, Simmons said.
Attorneys for the 19 gay and lesbian plaintiffs who sued to overturn Maryland's law said they believe the legislature lacks the authority to intervene that way. And some Republican lawmakers say they see no need to delay. "We have the ability to deal with this issue right now," said Del. Donald H. Dwyer Jr. (R-Anne Arundel).
The proposal is just one of several approaches Democrats were contemplating yesterday to respond to a Baltimore Circuit Court ruling that struck down Maryland's law against same-sex marriage last week, calling the ban discriminatory and unconstitutional. The Circuit Court judge stayed the decision, and the attorney general's office immediately appealed.
Although many Democrats, including Simmons, said they support the rights of gays and lesbians to marry, they also said they recognize that the ruling could hurt the party during key elections this year -- the governor's office and a U.S. Senate seat are at stake.
They said the ruling could galvanize Republican Gov. Robert L. Ehrlich Jr.'s conservative base, increasing Election Day turnout for him and for Lt. Gov. Michael S. Steele (R), who is running for U.S. Senate.
"I don't want to see the gubernatorial election, or any other election, tangled up in this issue," said Sen. Brian E. Frosh (D-Montgomery).
Republicans are planning an aggressive push to cement the state's ban on same-sex marriage in the Maryland Constitution, which would entail placing the issue on this year's ballot.
Ehrlich said yesterday that his legal counsel has outlined his options for responding to the Baltimore court ruling. But, he said in an interview, "my politics on this are very clear. We're going to protect marriage. Traditional marriage."
And Republican lawmakers are planning a news conference this morning to outline their plans, which are being made clear by Dwyer, who has sponsored a constitutional amendment banning same-sex marriage. A House committee will hold a hearing on same-sex marriage Tuesday.
Dwyer also sought a legal opinion on the procedure he would need to impeach Circuit Court Judge M. Brooke Murdock. The attorney general's office advised that the process is available only "for high crimes and misdemeanors."
Democrats appear to have support to block efforts to sanction Murdock and thwart Republican efforts to push through a constitutional amendment during this year's 90-day legislative session.
But two camps are forming within the party about what should happen next. Some, including Senate President Thomas V. Mike Miller Jr., believe Democrats' position would be strengthened if the Court of Appeals sped up the process, grabbing the case from the mid-level appeals court and ruling before the General Assembly adjourns April 10.
Others, including Simmons, believe that if no firm decision occurred before the election, the court ruling would not affect Democratic candidates' fate this fall.
Simmons acknowledged that his proposal to put a court ruling on hold so the legislature can address it next year would be novel.
Assistant Attorney General Robert A. Zarnoch, the legislature's attorney, said that he is researching the idea but that there is something approximating a precedent -- a case in which the legislature passed a bill saying the court could not stay a judgment from the commission that reviews medical disciplinary cases. "This is the flip side," Zarnoch said.
Andrew H. Baida, an attorney for a plaintiff in the marriage case, said he saw no room for the legislature to bind the court that way.
"I'm unaware of the legislature having the power to instruct the Court of Appeals not to decide a constitutional issue," Baida said. "That's a prerogative that belongs to the court."
David Bogen, a University of Maryland law professor, was more emphatic. "They don't have that authority," he said.
Miller (D-Calvert) said yesterday that he is not a fan of Simmons's approach, which he called "gimmickry." Instead, he said, he is among those hoping that the Court of Appeals will act "as expeditiously as possible." If the high court were to reverse Murdock's opinion, it would instantly defuse the political situation, he said.
"The situation would only be politically perilous [for Democrats] if the Court of Appeals sustains the Circuit Court, and the people are not given an opportunity to have a referendum," Miller said .