Maryland Decision

The Court of Appeals of Maryland (the state’s highest court) today issued a decision in a case brought by nine same-sex couples and others challenging the state’s definition of marriage. A trial court had ruled that the marriage law was a form of sex discrimination but today’s decision reversed that ruling. The majority in today’s decision consisted of four justices, two of whom had retired but were recalled to participate in the decision.

As to the sex discrimination argument, today’s majority said that the state’s Equal Rights Amendment was intended only to end discrimination against men or women as a class and “to remedy the long history of subordination of women in this country.” Since the marriage laws “do not separate men and women into discrete classes for the purpose of granting to one class of persons benefits at the expense of the other class” and the statute does not “place men and women on an uneven playing field” it is not sex discrimination.

The court then ruled on whether a sexual orientation classification should require the court to subject the marriage law to more exacting scrutiny. The court noted the prejudice and legal disabilities experienced by gays and lesbians but pointed out that they are not politically powerless, having experienced a number of legislative gains in past years. The court also said it could not assume “that gay, lesbian, and bisexual persons display readily recognizable, immutable characteristics that define the group” based on “the scientific and sociological evidence currently available to the public.”

The majority next rejected the idea “that a right to same-sex marriage has taken hold to the point that it is implicit in the concept of ordered liberty or deeply rooted in history and tradition of Maryland.” In fact, the court noted that previous cases recognizing a fundamental right to marry “infer that the right to marry enjoys its fundamental status due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species.” In fact, the court said that virtually all of the cases “indicate[] as the basis for the conclusion the institution’s inextricable link to procreation, which necessarily and biologically involves participation (in ways either intimate or remote) by a man and a woman.”

In terms of the justifications for the current marriage law, the court ruled “fostering procreation is a legitimate government interest” and the “‘inextricable link’ between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding).” The court held “the fundamental right to marriage and its ensuing benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation.”

One justice agreed that the definition of marriage might be justifiable but would have endorsed the New Jersey Supreme Court’s decision that the benefits of marriage must be given to same-sex couples.

Two justices dissented, the first endorsing an absolute reading of the state Equal Rights Amendment (if sex is even mentioned, the law should be presumed unconstitutional) and the second endorsing a dissenting opinion in the New York marriage case.
posted by William Duncan at 4:09 PM VOTE

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