Judge Rejects Md. Anti-Gay Marriage Law

Matthew Mosk
Washington Post Staff Writer
Monday, January 23, 2006 11:00 AM

A Baltimore judge ruled Friday morning that Maryland's law banning same-sex marriage "cannot withstand constitutional challenge," throwing open the possibility of a ferocious legislative battle over a constitutional amendment on the issue. (Read More.)

Washington Post staff writer Matthew Mosk was online Monday, Jan. 23, at 11 a.m. ET to field your questions and comments.

More From The Post:

Many Md. Democrats Seek Quick End to Gay Marriage Debate (Post, Jan. 22)

Interactive Graphic: Gay Marriage State-by-State

The transcript follows.

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Matthew Mosk: Good morning. Last week brought the unexpected introduction of a fiery issue into Maryland's legislative and campaign debates--same sex marriage. It has every chance of altering both the just-begun legislative session and the 2006 campaigns for governor and, possibly, U.S. Senate. I'm eager to hear your questions and thoughts.

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Bethesda, Md.: It sounds like the Governor and his conservative allies are considering a Constitutional amendment limiting the pursuit of happiness to just heterosexuals. Procedurally how would they go about this? Can it be done without a public vote? Please forgive my ignorance of how our state government works.

Matthew Mosk: What's under discussion is turning a 1973 state statute into language that's in the constitution. That law says marriage is between a man and a woman. To put that in the constitution, the legislature would need to pass it with a three-fifths majority. The language would then go on the ballot in November and need approval from the voters.

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Fort Wayne, Ind.: Question 1

In saying that this is discrimination, are not all laws "discriminatory"? (A philosopher named Gadamer made that point). Isn't the question really about just and unjust discrimination, hence the real issue is about whether the limitation of a marriage to a man and a woman is unjust discrimination.

Question 2

If state recognition of the relationship between a man and a woman is unjust, what kind of basis do any laws possess? In other words, what kind of basis for legal thinking left? Is it just special interest groups--which really means its relative to those who have the loudest voices and the most money?

Matthew Mosk: I'm not a lawyer, but I believe Judge Murdock's opinion relies on the notion that preventing woman 1 from marrying woman 2 is discriminatory, because Man 1 is legally entitled to marry woman 2. In other words, any act, whether it's joining a country club, or joining in matrimony, should be open to both sexes.

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UpMo, Md.: Could you give us an idea of how long it will take to get a constitutional referendum or whatever is needed to put this to a vote? Will it be within the next two years?

Matthew Mosk: In theory, the whole process of amending the constitution could be completed in November. But there's a pretty high hurdle in the path of it happening--the Maryland General Assembly. Lawmakers who are in Annapolis right now have resisted this idea in the past. The question now is whether the Baltimore circuit court ruling changes that.

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Annapolis, Md: Hi.

Thanks for taking my question. Who is this judge? I thought that the only ones who could decide constitutional questions was the supreme court.

Matthew Mosk: Judge Murdock serves on the Baltimore City Circuit Court. That's the first level state court that handles civil disputes. The judge came to the bench as an expert on sex discrimination, and was appointed by Democrat Gov. Parris N. Glendening.

Some folks believe the plaintiffs in this case--19 gay men and lesbians--"forum shopped" for a friendly court and judge, and in Judge Murdock, they found one.

The case is being appealed.

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Rockville, Md.: What are the chances that this ruling will be sent directly to the MD Supreme Court and what is the likelihood that the ruling will be overturned? (i.e. is there any precedent in Maryland that would give us a sense of where the judges on the Supreme Court might stand on this issue?)

Matthew Mosk: The case in all likelihood will be taken up quickly by Maryland's highest court, the Court of Appeals. Your question about how the court will rule is the $64,000 question here. The Maryland high court is generally perceived as a fairly liberal court. But the folks I've spoken to who follow this seven-member panel say they are pretty split on social issues such as this. The x-factor is the newest judge, Judge Clayton Green Jr., a Democrat who was appointed by the Republican governor, Bob Ehrlich.

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Harrisburg, Pa.: Would a constitutional amendment go before the voters? If so, is there any polling data? If so, are there any signs, as has been claimed by at least one Politial Scientist studying the recent gay marriage election voting, that there appears to be a significant backlash in Democratic voting areas that increased Democratic voting strength more significantly than the increased turnout in Republican areas? In sum, could this issue cut politically both ways?

Matthew Mosk: You're asking a question that is being closely examined by all the politicians who are running for office in Maryland in 2006. I have not seen polling on same-sex marriage. But my first clue as to how it polls is in the answers we got from many of the Democratic candidates running for governor and U.S. Senate this year: namely, they support granting rights to gay couples but stopped short of supporting same-sex marriage. My sense is that their polling signaled to them that actual marriage ceremonies would turn off the moderate Democrats they need to get elected. (Of course, I'm not suggesting they all formed their opinions on this by taking polls!)

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Downtown Washington, D.C.: I applaud the judge's ruling. But, I'm curious as to your thoughts on the likelihood of the ruling being overturned?

Matthew Mosk: Again on this, the people I speak with think the court could go either way. Perhaps the biggest political factor here is how quickly the court will rule. If they rule before the legislature adjourns April 10, the General Assembly will have time to respond, either by pursuing a constitutional amendment, or by declaring one unneeded.

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Kensington, Md.: Thank you for taking my question. I am a relatively new resident of Maryland, and was very excited to hear about Judge Murdocks decision. I have never been able to figure out why other people would be affected if I were to marry my partner.

My question is this. What is Marylands history regarding this issue? Is there the potential for same sex marriage to actually be legalized here, or will we just see another amendment to outlaw it like we have seen in other states.

Thanks in advance.

Matthew Mosk: I think Judge Murdock's ruling certainly increases the chance for same-sex marriage to be legal in Maryland. But the recent history in the legislature (and with the governor) suggests that the political support is behind something other than marriage. Both the legislature and the governor have supported varying forms of expanded legal rights for same-sex couples, so you can visit your partner in the hospital, or gain the rights of a married couple with respect to taxes.

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washingtonpost.com: Ehrlich Proposes Advance Directives Legislation (Post, Jan. 19)

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Gaithersburg, Md.: I doubt many will take the time to read the Judge's decision (could you possibly provide a link to it?), but I did last week. As a gay man with a partner of over a year, I was more impressed by the clear logical conclusion of the decision than in its immediate impact. I only wish it could have waited until January 2007 - I only see complications and headaches as right-wingers will try to portray this as a Democratic activist judiciary gone wild. I don't envy O'Malley or Duncan for what they will face in the campaign this year, and I'm not even sure if I could fault them from running from the issue.

Matthew Mosk: That's interesting. I think you're reflecting something that we're hearing from many gay rights advocates--that they have mixed feelings on the timing of this. Gay marriage was not destined to be a top issue in the 2006 governor's race until this ruling came down. Now, it all depends on how the courts and the legislature respond. But it seems much more likely to become a political football.

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Bethesda, Md.: As a gay person who has been in a relationship for 10 years, I am really turned off by the wave of gay marriage demands. What gay people should be focused on is to fight against prejudices and misperceptions. Americans either conservative or liberal do not support gay marriage. It really scares a lot of moderated fair minded people and they end up voting for republicans.

Matthew Mosk: The long lines in front of court houses in San Francisco and other municipalities that agreed to perform marriages between same-sex partners would suggest that you are not speaking for all gays and lesbians on this. But what I'm hearing from those lobbying this in Annapolis is that their concern is less with the ceremony than with the rights gained by married couples. Most substantially, the discussion has focused on the rights of partners when confronting medical decisions.

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Baltimore, Md.: My question is why aren't Gay and Lesbian activists pursuing a universal "civil union" definition of marriage? If everyone had to have a civil ceremony regardless if they then choose to have a separate Religious ceremony wouldn't that be more equitable and reflect a true separation of state and religion?

Matthew Mosk: I think if you look back at our coverage from last year, you'll see signs that this is precisely what was happening. The legislature passed something called the Medical Decision Making Act, which was vetoed by Gov. Ehrlich. Ehrlich said he was looking for a slightly different set of rules governing these issues, and proposed his own bill this session. Early reaction from lobbyists for the gay community was favorable to the governor's bill.

The new wrinkle here is the court ruling, which actually could hamper efforts to get the governor's bill passed.

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Bethesda, Md.: Doesn't the legal issue here boil down to the nature of homosexuality. If homosexuality is an innate/biological/fixed characteristic, then doesn't the Constitution require equal protection under the law for those who are homosexual? It's easier than your most basic SAT analogy: a homosexual marriage is to same-sex partners, as a heterosexual marriage is to different-sex partners.

Doesn't the opposition to gay marriage have to argue that homosexuality is a "choice" so that they are not unfairly targeting one part of the population from having the same rights that another part has? Perhaps this why we hear so many arguments comparing gay marriage to polygamy and beastiality.

I suppose that an alternative is that they argue something about God's will, but I'm sure that any Constitutional scholar will say that is an unconstitutional argument.

Matthew Mosk: In fact, the Murdock ruling points out a number of legal issues at hand here.

In one instance, she refers to a Virginia ruling that reversed a ban on inter-racial marriage. In another, she refers to a case that deals with discrimination in country club memberships.

Murdock makes clear that she recognizes her ruling will be controversial, but says she believes it boils down to a matter of sex discrimination.

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Wheaton: One of my delegates has reported that someone on the Republican side (I forget exactly who) is pushing to go beyond prohibiting marriage for same-sex couples and ban the assignment of any legal rights whatsoever to someone of the same sex. This would go way too far, he commented, preventing him from being able to have a power of attorney for his father. What impact do you think the judge's ruling would have on this effort?

Matthew Mosk: Del. Don Dwyer, a Republican from Anne Arundel County, has proposed a constitutional amendment that does go beyond cementing the 1973 law. It precludes gays and lesbians from gaining rights afforded to married couples. Gov. Ehrlich, when discussing his own views on a constitutional amendment, suggested that Dwyer's proposal needed some adjusting.

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Easton, Md.: Your coverage on the gay marriage ruling excluded the Democrat-led rule change that would prohibit a constitutional amendment being added to the bill. Is that more one sided reporting or "oversight"?

Matthew Mosk: Actually, we made mention of the rule change in our story Friday. But I think you may be a little confused about the meaning of the change.

The new rule does not prevent a constitutional amendment from being approved by the legislature. It only blocks attempts to amend a bill on the House floor to turn it from a bill (which needs a simple majority to pass) into a constitutional amendment (which needs a super-majority).

Still, when we wrote about this Friday, we made clear the goal here on the part of House leaders was in all likelihood to make it tougher to get a marriage constitutional amendment through the process.

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washingtonpost.com: Judge Strikes Down Md. Ban on Gay Marriage (Post, Jan. 21)

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North Beach, Md.: Is Senate President Mike Miller really nervous about this issue hurting Democrats? He's commented on how it hurts the Democratic Party but is this just another example of Miller's ruses?

Matthew Mosk: I suspect the Senate President is concerned about what this issue would mean for moderate Democrats who could face tough challenges from Republicans this November. In the past, Senator Miller has been very protective of these senators by helping them avoid tough votes, and raising money for their campaigns. Miller is among the longest serving senate presidents in the country, and these moderate Democrats represent his powerbase in Annapolis.

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Olney, Md.: This is an issue that should go before the voters. Why are politicians like Miller and Busch opposed to letting voters decide?

Matthew Mosk: The House and Senate leaders have not explicitly said they are against letting voters decide this issue. What they have said is that Murdock's ruling was just a single circuit court decision, not a precedent-setting ruling from the state's high court. There is a tradition in Annapolis of letting an issue like this move through the entire process before making a dramatic change, like amending the constitution.

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Pikesville, Md.: Where is the Catholic Church on this issue? It's very surprising that they have not been actively speaking on this issue. Is Cardinal Keeler only willing to go before the cameras on more liberal positions?

Matthew Mosk: I'll throw this message out there in hopes of eliciting a reply from the church. I don't know where the church stands on a constitutional amendment this year. But I would be very surprised if they didn't make their views known, probably through their extremely well-regarded lobbyist in Annapolis, Dick Dowling.

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Olney, Md.: Do you think the Democrats' concern is warranted? I know that I and many other liberals have started voting Green and Libertarian and otherwise abandoning the Democratic party because of its unwillingness to take a stand on important issues like gay marriage.

So I wonder whether moderate and conservative Democrats have hard data to back up their assertions that this issue will hurt them, or if they're just caving to their prejudices. Any thoughts? Or better yet, poll data?

Matthew Mosk: I'm sure there's polling data around on this. I just have not seen it myself. I would guess, especially in the Senate race, we will see at least some of the Democratic candidates get behind same-sex marriage as a way to capture support among the left wing of the party. With so many candidates in the senate race now, constituencies within the party, such as gays and lesbians, can gain much more clout during a primary campaign. This is something we'll be exploring as the campaign season heats up.

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Arizona Bay, Ariz.: Is this another example of "legislating from the bench?" A horrible concept that has only brought this country DE-segregation and the right to privacy. How absurd!

Matthew Mosk: I'm going to resist responding to the second part of your posting, Arizona Bay, but I will say that you raise an objection we're hearing from Gov. Ehrlich and other top Republicans--namely, that the court is overstepping its bounds and legislating from the bench.

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Oberlin, Ohio: Hi, I'm a college student from Maryland originally (and likely to return after I graduate).

Brought up in a liberal household and ending up gay myself, I've certainly never seen the difference between heterosexual and homosexual love, and what I wonder most is how can people who claim to be conservative (i.e. in favor of small government that exists primarily to provide a judicial system, infrastructure and a national defense) want this aspect of life regulated. If one is a true conservative, doesn't that mean that they should be completely in favor of homosexual marriage? Because then the government is existing purely as a judiciate, to enforce the contract of marriage (which is in essence all it is).

My question is just, what are actual reasons (other than tradition) that people would oppose this?

Matthew Mosk: There is quite a bit of opposition to same-sex marriage coming from religious quarters. Like it or not, moral issues are frequently the terrain of government and politics.

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Chapel Hill, N.C.: Any thoughts about how Virginia might react to this if gay marriages are eventually allowed in Maryland, seeing as how right now Va is trying to pass some of the most stringent gay marriage bans in the nation?

Matthew Mosk: I have not following the Virginia debate closely, but my understanding from our coverage of their legislative session is that a constitutional amendment banning same-sex marriage is still very much under consideration there.

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Washington, D.C.: In you opinion, do the efforts in many states to ban 'same-sex' legislation, etc., stand much chance of being upheld by this new U.S. Supreme Court? The intensity of the ultra-conservatives' rancor has not been seen since their similar efforts to defeat racial integration. With thanks for this opportunity, Bob

Matthew Mosk: I have not the first clue about that. But what you're seeing in this issue, and many others, is the primacy of the state legislatures and courts when it comes to many of the nation's most divisive social debates. Over time, I would expect we'll see every state confront this issue, and create a patchwork of laws, much as has happened with other hot-button issues.

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New to Silver Spring, Md.: I will be very sad if this ruling galvanizes the anti-gay marriage movement in MD. I was happy to move to MD because I perceived it to me a more Democratic state than where I was living. I am also sad for the women who were recently profiled in The Post -- they are lifetime partners who moved away from their longtime home in VA to MD because of their fear of VA banning gay marriage and thereby decreasing their legal rights to see each other in the hospital. I hope that their move to MD was not a move into the face of more hateful legislation.

Matthew Mosk: That was a very powerful magazine piece, and the fact that Maryland is now at the center of the gay marriage debate just speaks to how quickly the landscape on this issue can shift. But there is a big difference between Maryland and Virginia right now. In Maryland, the Republican governor is pushing legislation that would enhance the rights of same-sex couples, including with respect to medical decisions and hospital visitation.

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washingtonpost.com: Paradise Lost (Post Magazine, Dec. 18)

 Church Ceremony Celebrates Gay Pairs (Post, Jan. 23)

Stage Set for Battle Over Gay Marriage (Post, Jan. 14, 2005)

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Washington, D.C.: Most Democrats favor gay marriage whether they say so in public or not. Does their strategy seem to be to avoid having a vote (either in the legislature or among the public) and let the courts enact gay marriage by fiat, then say "the courts made us do it..."?

Matthew Mosk: I suspect there are many Democrats in Annapolis who would want to see the court leave this issue alone. Moderate Democrats have always taken refuge behind the 1973 statute to avoid a bruising fight over a constitutional amendment. It may be that the court forces the legislature to resolve this issue, one way or another.

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Matthew Mosk: Thank you so much for all the insightful comments and questions. This is going to be a very interesting issue to follow over the next three months, and right up until November. I look forward to your readership, and reactions to our coverage.

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