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Md. Court Urged To Toss Out Ban On Gay Marriage

Dave Kolesar, left, had surgery some time ago, and his partner, Patrick Wojahn, said he fears that he would not be allowed to ride in an ambulance if Kolesar's medical condition recurred.
Dave Kolesar, left, had surgery some time ago, and his partner, Patrick Wojahn, said he fears that he would not be allowed to ride in an ambulance if Kolesar's medical condition recurred. (By Robert A. Reeder -- The Washington Post)

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By Eric Rich
Washington Post Staff Writer
Tuesday, December 5, 2006

An attorney for 19 gay and lesbian Maryland residents urged the state's highest court yesterday to strike down a law banning same-sex marriage, saying there is "no constitutionally sufficient justification" for denying his clients and their children protections that only marriage affords.

During an hour-long argument in a crowded chamber of the Court of Appeals in Annapolis, attorney Kenneth Y. Choe of the American Civil Liberties Union invoked the civil rights struggle and said the ability to marry is a fundamental right that belongs to all Marylanders, not only to those for whom that right has always been recognized.

"Despite the fact that plaintiffs have formed committed relationships and loving households, the state excludes them and their children from the numerous important protections that come with marriage solely because the person whom they love is a person of the same sex," he said.

Assistant Attorney General Robert A. Zarnoch, the general assembly counsel, urged the court to let stand the statute that defines marriage as the union of a man and a woman. Arguing that the judiciary should defer to the legislature, Zarnoch noted that no federal or state appellate court in the country has held that, as the plaintiffs argue, there is a fundamental right to same-sex marriage.

"An invalidation of Maryland's law would have the unfortunate consequence of placing these issues outside the arena of public debate, outside the legislative and democratic process," Zarnoch said.

The court took the case after the state appealed a ruling by Baltimore Circuit Court Judge M. Brooke Murdock, who held in January that the 1973 law banning same-sex marriage is discriminatory and "cannot withstand constitutional challenge." In anticipation of an appeal, Murdock stayed her decision when she announced it.

With Murdock's ruling, Maryland was thrust into a debate that has raged across the country at least since 1996, when Congress passed a law barring federal recognition of same-sex marriages and allowing states to do the same.

Massachusetts alone recognizes same-sex marriage, but several states and the District allow domestic partnerships or civil unions that offer some of the rights of marriage.

Plaintiffs, activists on both sides and legal observers packed the wood-paneled courtroom in Annapolis yesterday in what was one of the court's most well-attended sessions in recent memory. The potential audience was wider still; the court began a webcast of its proceedings Thursday.

The judges asked few questions, and little hint of their leanings could be detected. Judge Dale R. Cathell was notably vocal during Choe's presentation, when he interjected questions five times -- once to ask whether in some instances the proper function of the court was, as Zarnoch had suggested, to defer to the legislature.

Later, on the steps of the courthouse, the legal abstractions faded as the plaintiffs described the protections they do not have because their relationships are not legally recognized: inheritance and adoption rights, decisions about life support, hospital visitation.

Patrick Wojahn, a disabilities lawyer, said his partner, Dave Kolesar, a broadcast engineer, had experimental brain surgery some time ago. Wojahn worried that he might not be able to ride in an ambulance if Kolesar's medical condition recurred and he had to be taken to a hospital.


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© 2006 The Washington Post Company

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