Maryland Supreme Court Upholds Ban on Gay Marriage

Prof. William N. Eskridge of Yale Law School was online Wednesday, Sept. 19 at 12:15 p.m. ET to offer his analysis of the Maryland Supreme Court's decision to uphold the state's ban on same-sex marriage.

A transcript follows.

Prof. Eskridge has written extensively about the legal and political basis for how states treat sexual and gender minorities. His most recent book, written with Darren Spedale, is "Gay Marriage: For Better or For Worse?," an examination of the long-term results of legal same-sex partnerships in Scandinavia.

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washingtonpost.com: Prof. Eskridge was running a bit behind and will begin answering questions shortly.

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Linthicum, Md.: I find it interesting how gay couples are describing marriage as "ironclad" when half of all marriages are currently ending in divorce. I believe that traditional marriage has long been on life support and gay marriage will be enough to kill it. If this is truly a rights issue, why can't the government allow insurance companies, etc. to alter their policies instead of heading down this precarious road?

William Eskridge Jr.: Marriage in this country is often the triumph of hope over reality, as you say. But I should add: the recidivism rate is high (hope springs eternal). Many Americans of all orientations aspire to a lasting married union.

Will "gay marriage" kill marriage? It did not in Canada. In the Canadian provinces that recognized gay marriages in 2003 (before the national government did so in 2005), the overall marriage rate went up, while the overall marriage rate declined in the other Canadian provinces. I do not have data for post-2005 Canada, but this is a possible trend worth following.

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Brambleton, Va.: Prof. Eskridge, I have not read your book on the purported effects of same-sex marriage in Scandinavia, but just this morning Washington Post's own "truth squad" debunked Sen. Sam Brownback's claims that gay marriage is the cause of 80 percent of the first-born children in northern Europe being born out of wedlock. Care to comment?

William Eskridge Jr.: Yes, Senator Brownback's claim is not based on solid empirical evidence.

In Denmark between 1971 and 1989, the rate of nonmarital births skyrocketed from 11% of all births to 44%. In 1989, Denmark recognized same-sex unions as registered partnerships. After 1989, the rate of nonmarital births stabilized; after 2000, when Denmark was allowing joint adoption by same-sex couples, the rate of nonmarital births declined slightly.

Unlike the Senator, I'd be reluctant to attribute a "causal" relationship here, but this kind of evidence certainly demonstrates that state recognition of lesbian and gay unions does not "cause" higher rates of nonmarital births.

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Silver Spring, Md.: The court majority says that gays and lesbians are not members of a "suspect class" triggering heightened scrutiny because they have had some successes in the political/legislative sphere.

Surely the political strength of African Americans and women is FAR greater than that of gays and lesbians. Under the court's tortured reasoning, shouldn't they then be using Rational Basis for race-based and sex-based classifications?

William Eskridge Jr.: I agree with this posting. The Supreme Court recognized sex as a "quasi-suspect" classification in 1976 -- after women (a majority of voters) won significant legislative victories. Even race was not clearly a "suspect classification" at the U.S. Supreme Court level until McLaughlin in 1963, on the eve of the Civil Rights Act of 1964.

The Maryland court is confused about what has traditionally been entailed in finding a "suspect" classification. The U.S. Supreme Court and the highest courts in New York, California, and other states have focused on whether the classification is usually a rational one, whether it has traditionally been deployed to oppress groups, and whether it is hard to change ("immutable"). Other posters have addressed the immutability and other issues.

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Washington, D.C.: Professor Eskridge, what are your thoughts about FN 71? I've often been concerned that the GLBT community might be harmed in the long run by litigating for "marriage" instead of focusing on perhaps more achievable civil unions. Thus, I was in some respects frustrated to read the court's statement that plaintiffs had opted not to seek that relief, even as an alternative. Yet, FN 71 also seemed disingenuous in that the court seems to rely too conveniently on the procedural failure of the plaintiffs, even while it seems highly doubtful the majority would have granted civil unions had that been what was asked for. Thoughts? Any chance this will have an impact on the strategy of GLBT groups in the future?

William Eskridge Jr.: I wrote a whole book on this, Equality Practice: Civil Unions and the Future of Gay Rights (Routledge 2002), where I argue that for most states LGBT groups cannot expect marriage until there has been further education etc., often through domestic partnership or civil union options. I wish that were not the reality we face, but it is. Masschusetts was an unusual case, because LGBT rights had already progressed much further than it has in Maryland.

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St. Mary's City, Md.: From my reading, the Court of Appeals seems to have sensibly rejected the hysterical claim that legalizing gay marriage would threaten the institution of marriage.

However, I find the "possibility of procreation" argument to be questionable. I'm concerned that this might be used to deny marriage to naturally infertile couples, including a fertility test as a condition for obtaining a marriage license. Is this concern valid? If my scenario sounds unrealistic, there are many conservative Christians who claim that a government interest in procreation would justify outlawing contraception.

I'm a straight married man, and I am concerned about any government body deciding what the "purpose" of my marriage should be. From a legal standpoint, marriage is simply a contract that gives the partners certain rights and responsibilities. Obviously, the license also gives certain protections to the children from the marriages. But for the partners themselves, those rights and responsibilities would be the same whether the couple is straight or gay.

So does government have any compelling interest in limiting legal marriage to straight couples? I simply don't see that interest - gay marriage doesn't prevent straight couples from procreating, and it doesn't cause any other harm to society. Would you agree?

William Eskridge Jr.: I agree with this post.

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D.C.: So how does banning gay marriage promote the state's interest in having and protecting children?

Are the children of gays not worthy of being born, and not deserving of the same protections as other kids? Are the children of heterosexuals actually better off in any way whatsoever because gay couples and their children are denied legal families and legal protections? Does giving special, privileged status to heterosexual childless couples while denying it to gay people with kids do anything to help or protect those kids, or anyone's kids?

Do heterosexuals only have kids and care for them well when they see that the state favors them over their gay neighbors, whether those neighbors have kids or not? Is heterosexual parental love so worthless, so fragile that we need special privilege from the state to promote it?

William Eskridge Jr.: I agree with this post and would only add that the Maryland court seems to believe that the State is free to deprive lesbian and gay couples of hundreds of legal benefits and duties so that the State can make a symbolic statement about marriage and procreation.

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Hillburn, N.Y.: Since the term "Gay Marriage" has such a negative denotation, would it really make a difference and be more accepted if people just started calling it a "Civil Union?"

Thank you.

William Eskridge Jr.: Polls demonstrate that many Americans are comfortable with civil union but not marriage for gay and lesbian couples. the reason is probably that those Americans have tolerant feelings for LGBT people but do consider them and their unions "not quite as good" as those of straight people. Also, some Americans believe marriage should be left alone, except when most of the public demands a change (e.g., no fault divorce is OK, but not same-sex marriage).

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Cheverly, Md.: In any of the same-sex marriage decisions, has there been actual proof or evidence that a same-sex marriage threatens different-sex marriage? I just don't see it happening. Also, the rise in gay families adopting should possibly count for something as the procreation debate sizzles on.

William Eskridge Jr.: There has never been actual "evidence" that same-sex marriage harms "marriage" as an institution.

My and Darren Spedale's book, Gay Marriage: For Better or For Worse? (Oxford 2006), demonstrates that same-sex partnership legislation in Denmark and other Scandinavian countries did not harm marriage. Indeed, marriage rates went up in Denmark (after years of decline), divorce rates went down (after years of rising), and nonmarital birth rates stabilzied (after geometric increases) after Denmark recognized lesbian and gay unions in 1989. Also dramatic evidence from Canada, which I mention in a previous response.

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Washington, D.C.: The majority also rejected the idea that homosexuality is immutable, saying that it had no scientific or sociological evidence to show that people are born gay and therefore are being discriminated against on the basis of something over which they have no control -- isn't there growing scientific evidence to the contrary? What studies would you have recommended to these judges? Are they using the Bible as some type of evidence here, when they really should be looking at real medical evidence provided by the leading medical societies worldwide that homosexuality is in fact immutable, not a choice or something that can be changed?

William Eskridge Jr.: Immutability is not always a bar to a finding that a classification is fishy or "suspect." Religion, for example, is a classification most jurisdictions find suspect, yet it is not immutable.

I do not know how "mutable" sexual orientation is, but scientists say that its paramters are determined early in life and that it is not subject to conscious "choice." Straight readers might ask themselves this question: Did I "choose" to be heterosexual?

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Laurel, Md.: Please explain why this ruling cannot be appealed to the U.S. Supreme Court. Isn't this a surprise that a "liberal" state like Maryland has a Supreme Court that makes a ruling like this?

William Eskridge Jr.: Maryland is liberal in some ways, not others. It is more progressive and humane in its policies toward LGBT people than Virginia, but less progressive than California or Massachusetts.

LGBT lawyers do not believe the U.S. Supreme Court is "ready" for this issue. They are correct.

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Mt. Vernon, Va.: Please help me understand whether my thoughts are too narrowly focused from a straight perspective:

For gays and lesbians, it seems to me that whether you call it a marriage or civil union isn't so much the issue, but aside from two people wanting to show their love and commitment to one another (which they should be able to), shouldn't the goal be to obtain rights that are afforded to traditional married couples such as having a hand in critical medical decision making, having inheritance rights, insurance, and so forth?

I think people on both sides of the issue are too wrapped around the axle with respect to what you call it as opposed to what it achieves...

William Eskridge Jr.: I agree with this post, for the most part, for the reasons I develop in Equality Practice (2002): we need to lower the stakes of this issue and move slowly.

Experience in Europe suggests that it is useful to achieve statewide domestic partnership or civil union legislation first, and then seek same-sex marriage if public opinion moves in that direction.

On the other hand, consider this. Loving v. Virginia (1967) struck down Virginia's law barring different-race marriages. If Virginia had responded to Loving with a statute creating civil unions for different-race couples, wouldn't the Supreme Court have struck that down? Given a history of discrimination and stigma, isn't it unfair to give the long-excluded group a "separate" institution?

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Arlington, Va.: Do you agree with the court's opinion that the primary purpose of marriage is procreation? This seems to me a very 19th century view, when many children died before reaching their 5th birthday and people viewed progress in terms of how populated their nation was. Indeed, the court cited a case from 1888 to support their view of marriage. Surely, these days marriage has more to do (both in fact and in law) with the quality of the family's life than its quantity.

William Eskridge Jr.: I agree with this post.

St. Augustine laid out two goals of marriage in DeConjugalis: the procreative purpose and the unitive purpose. He saw them as intertwined, as did American law before World War II. Especially since the 1960s, American marriage has as a legal matter focused largely on the unitive goal.

Consider, too: In a world that is way overpopulated, should state policy be so focused on procreation?

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SW DC: I'm not a legal scholar, but hope that you'll take this simplistic question: Would the answer not be to make 'marriage' a religious ceremony that has to be preceded by a civil union. My understanding is that's the way it's done in France. That way, all couples get a civil union, and only couples that want to add a religious dimension would be married in a church. The church then would be the judge if they want to sanction it and couples have the option of choosing an institution that is accepting of them. I believe that is the South African model.

William Eskridge Jr.: Many Americans and Europeans believe that the state should get out of the "marriage" business and give everyone a civil union. This is an intelligent post, and I appreciate it a lot.

Other Americans believe that state-supported unions get some extra oopmh from the cultural as well as religious background and connotations of "marriage."

I am not sure who is right; it is a debate worth having, however.

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Champaign-Urbana, Ill.: I'm curious as to why the gay community doesn't focus more of their efforts on amending the federal Civil Rights Act to prohibit discrimination based on sexual preference in the work place, housing, etc.? Aside from being an easier battle to win, it could take a lot of the more homophobic people out of the debate by potentially exposing their bigotry.

William Eskridge Jr.: I agree with this post. The LGBT community has invested a lot of time and resources in the job discrimination bill now before Congress. This bill will not be enacted during the current Administration, however, and there is doubt that it can be enacted so long as there is a GOP President (even Giuliani? I do not know, but he is pretty fickle on LGBT issues).

I argue in Equality Practice: Civil Unions and the Future of Gay Rights (2002) that it is hard to win same-sex marriage if a jurisdiction has not adopted a sexual orientation job discrimination law. This helps explain the loss in Maryland.

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Olney, Md.: As a gay man in a committed relationship, I found yesterday's ruling not necessarily a set back for gay marriage.

I agree with you that the movement should embrace civil unions more openly, and let the public experience first-hand these type of official government sanctioned unions.

I think after this form of "marriage" has gained more wide acceptance from the public, then it would be a very opportune time to direct our efforts for the enactment of gay marriage in as many states as possible, including Maryland.

William Eskridge Jr.: I agree with this post. Unfortunately, Maryland is also unlikely to adopt a civil unions law. The LGBT community should press the Governor to create a domestic partnership registry for state employees and provide benefits to their same-sex partners. (I am not aware that Maryland has such a registry, but I am not an expert on your government.)

Also press the Democratic Party to adopt anti-discrimination laws for the state and to initiate hearings on civil unions.

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Racine, Wisc.: Already some states are recognizing same sex marriages from other jurisdictions, for various purposes. I assume if a straight couple marries in a foreign country, their marriage is valid if they move to the U.S. and establish residence and possibly citizenship here. Will states and the US government be forced to recognize same sex marriages at some point?

William Eskridge Jr.: Generally states cannot be "forced" to recognized same-sex marriages from either foreign countries or other states. Some states or some judges will give limited recognition under certain circumstances.

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Washington, D.C.: I'm not an expert, but I thought that the Plaintiffs' decision to approach the case from a sex discrimination standpoint was interesting. That is, I gather, that it is unlawful discrimination based on gender to prohibit one woman from marrying another woman. It obviously worked for Judge Murdoch. What did you think of that strategy?

Since Courts seem to be loathe to recognize gays as a suspect class, or even a quasi-suspect class, the "discrimination based on sexual orientation is unlawful" argument doesn't seem to be working well.

William Eskridge Jr.: I agree with the sex discrimination argument for same-sex marriage.

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William Eskridge Jr.: Thanks for your questions.

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