By Lisa Rein and Mary Otto
Washington Post Staff Writers
Wednesday, September 19, 2007; A01
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.
The Maryland Catholic Conference and some local religious leaders also applauded the decision. "Our argument is not against gays," said Bishop Harry Jackson Jr., pastor of Hope Christian Church in Lanham and leader of a conservative group of black pastors. "It is to protect marriage."
But Kevin-Douglas Olive, a Baltimore teacher who is gay, said he plans to meet with a group of Quaker elders and seek their advice: Should he move away from a state that doesn't legally recognize his union with Russell Groff, who died in 2004?
"I grew up in the South and thought if I moved north, things would be better," said Olive, 35. "I feel like I keep getting pushed. Or maybe I'm running."
Partners Patrick Wojahn and Dave Kolesar of College Park, who were plaintiffs in the lawsuit, said they tried to prepare for the defeat but were still shocked and disappointed.
"I had gone through both scenarios for what they could decide over and over again," Wojahn, 32, said. "I was disappointed, but this isn't the first thing like this we've had to face."
Gay voters are a loyal constituency for the Democratic-controlled legislature, particularly in the Washington suburbs of Montgomery and Prince George's counties. But an effort to legalize same-sex marriage will be a tough sell in Annapolis, particularly in the Senate, where it would probably be filibustered by lawmakers from the state's more rural, conservative districts.
"It would be a tall order for the legislature to overturn existing law . . . but it's not out of the realm of possibility," said Sen. Brian E. Frosh (D-Montgomery), chairman of the Judicial Proceedings Committee. In the past, legislative battles over legalization of gay marriage and a constitutional amendment to ban it have ended in standoffs.
In a statement, Gov. Martin O'Malley (D) said those "of us with the responsibility of passing and enforcing laws have an obligation to protect the rights of all individuals equally." Spokesman Rich Abbruzzese said the governor backs a civil union law "as a reasonable compromise." But it is unclear how active he would become in the debate.
Frosh said the dynamic might be different on a bill seeking to legalize civil unions, but gay rights advocates said they are not pursuing that route for now.
Republicans said they would try to put a constitutional amendment on the ballot to ensure that legislation does not legalize same-sex marriage.
"It was a very scary proposition that some kind of far-reaching, activist interpretation of Maryland law that clearly was not intended could be foisted on the citizens of Maryland without the say of their elected representatives," said Del. Anthony J. O'Donnell (R-Calvert), the House minority leader.
Maryland's gay residents can adopt children and are protected from discrimination. A new law this year requires insurance companies to provide health benefits to same-sex couples if their employers want to provide them.
But they lack many legal protections, including financial support when a relationship ends, recognition as families for government benefits, and entitlement to property acquired during a marriage. The General Assembly passed a domestic partnership bill in 2005 that would have allowed gay partners to register with the state, but then-Gov. Robert L. Ehrlich Jr. (R) vetoed it.
Yesterday's ruling caps a legal journey that began in 2004, when the ACLU filed the lawsuit on behalf of nine same-sex couples and Olive. Baltimore Circuit Court Judge M. Brooke Murdock ruled for the plaintiffs in January 2006, affirming Maryland's 1973 law as discriminatory and unable to "withstand constitutional challenge." She relied on a 1967 decision by the U.S. Supreme Court, which struck down bans on interracial marriages.
The appeals court majority acknowledged that gay couples can be suitable parents but gave weight to the state's argument that preserving the legal definition of marriage encourages childbearing in households made up of a father and mother. "Marriage enjoys its fundamental status due, in large part, to its link to procreation," the majority wrote.
Some lawyers said yesterday that the plaintiffs probably would have fared better if they had filed the suit later. Two of the judges in the majority, who are viewed as among the most conservative on the court, have retired since the case began and are widely expected to be replaced by O'Malley with more liberal judges. Retired judges are often permitted to continue hearing cases until their replacements are named.
Staff writers Hamil R. Harris, Jenna Johnson, Ernesto Londo¿o, Eric Rich and John Wagner and researcher Meg Smith contributed to this report.