A Defeat for Gay Marriage
Maryland's legislature should take up the challenge in a Court of Appeals decision.

Saturday, September 22, 2007; A16

IN 2004, NINE same-sex couples in Maryland challenged the state's ban on gay marriage; in 2006 they achieved a surprising victory before Baltimore trial Judge M. Brooke Murdock. Judge Murdock concluded that the state's law defining marriage as a union between one man and one woman violated a state law that prohibited discrimination on the basis of sex. Yet in handing the couples this win, Judge Murdock also sowed the seeds for a predictable defeat this week before Maryland's highest court. By a 4 to 3 vote, the Maryland Court of Appeals rightly rejected Judge Murdock's reasoning, noting that the law preventing discrimination on the basis of sex was written in the 1970s to protect women; lawmakers never intended it to stop discrimination based on sexual orientation. Still, the analysis in the decision was disturbing. Before upholding the ban as constitutional, the court had to examine whether Maryland had a rational basis for limiting marriage and its benefits to heterosexual couples. The court explained its finding in support of the state this way: "The State has a legitimate interest in encouraging . . . a union that is uniquely capable of producing offspring within the marital unit."

This gem of illogic became the foundation for maintaining a status quo that continues to leave the nine couples and thousands of others with no legal avenues of appeal and without a panoply of benefits, including rights of inheritance and the right to make medical decisions for incapacitated partners.

Fortunately, the Court of Appeals all but invited gay rights advocates to take their case to the legislature: "[O]ur 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." The American Civil Liberties Union, which helped to represent the nine couples in court, is poised to push a same-sex marriage law in January when the state legislature reconvenes; the group says it has no interest in considering a compromise involving civil unions.

While we see no reason that committed same-sex couples should not enjoy all the benefits of marriage, we worry that the refusal to discuss civil unions could be shortsighted. Now that the Maryland high court has spoken and the matter has returned to the political arena where it belongs, Gov. Martin O'Malley (D), who favors civil unions, should take up the cause. He would be ensuring nothing more and nothing less than that all Marylanders have the possibility of equal treatment under the law.