Md. Ban On Gay Marriage Is Upheld

By Lisa Rein and Mary Otto
Washington Post Staff Writers
Wednesday, September 19, 2007

Maryland's highest court yesterday upheld a 34-year-old state law banning same-sex marriage, rejecting an attempt by 19 gay men and lesbians to win the right to marry.

In reversing a lower court's decision, the divided Court of Appeals ruled that limiting marriage to a man and a woman does not discriminate against gay couples or deny them constitutional rights. Although the judges acknowledged that gay men and lesbians have been targets of discrimination, they said the prohibition on same-sex marriage promotes the state's interest in heterosexual marriage as a means of having and protecting children.

The 4 to 3 decision cannot be appealed to the U.S. Supreme Court because the lawsuit relied solely on state law. But the judges appeared to invite gay rights advocates to pursue their goals through the political system: "Our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex," Judge Glenn T. Harrell Jr. wrote for the majority.

Chief Judge Robert M. Bell issued a sharp dissent, accusing the majority of failing to recognize gay people as a "suspect class," a group that warrants special protection from discrimination. Bell dismissed the majority view that gays are politically empowered and should not be viewed as such a class.

The opinion was a setback for gay advocates, who thought the Maryland court -- considered liberal on social and criminal issues -- was their best shot at victory in the nationwide movement to win marital rights. They vowed to take to the General Assembly their fight for the rights to health care, tax benefits and medical decision-making, which are accorded to married heterosexual couples.

"This is not the day we were hoping for," Lisa Polyak, an engineer and one of the lead plaintiffs in the case, said on the steps of a Baltimore church after the ruling. Polyak and her longtime partner, Gita Deane, are raising two daughters. "I wish those judges would have to face my children" to break the news, she said.

The state law was defended by the office of Attorney General Douglas F. Gansler (D). Spokeswoman Raquel Guillory said the office thinks the judges "reached the correct legal conclusion," adding that they were "also correct in recognizing that it is now up to the General Assembly to decide whether same-sex couples should be given the right to form civil unions or to marry."

Massachusetts is the only state that recognizes same-sex marriage, but nine others, including New Jersey, Vermont, Connecticut and New Hampshire, have approved civil unions or legal protections in recent years in response to court rulings or political pressure. The District and several local governments allow gay couples to formalize their relationships through domestic partnership, which offers some of the rights of marriage.

The Maryland ruling immediately touched off a battle between liberal Democrats and social conservatives in the General Assembly, with the first group announcing bills to legalize same-sex marriage and the second pledging to preempt such action with a constitutional amendment defining marriage as a union between a man and a woman.

"We will be pushing for full, legal equality in the Maryland General Assembly," said Dan Furmansky, executive director of Equality Maryland, a partner in the American Civil Liberties Union's lawsuit, which was filed in 2004. "Eventually, Maryland will have civil marriage equality for same-sex couples."

The ruling follows recent decisions in New York, Washington state and California that dismissed gay couples' claims to marriage and its legal rights.

"We're happy that still another court has found that the definition of marriage is placed in the hands of the legislature, not in the hands of judges," said Bruce Hausknecht, judicial analyst for Focus on the Family Action, which opposes same-sex marriage. Nineteen states, including Virginia, have enacted constitutional amendments banning same-sex marriage.

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