MD case movs to high court

Gay marriage battle moves to high court
A 1973 law defining marriage as between a man and a woman was ruled unconstitutional earlier this year
Wednesday, Nov. 29, 2006

by Douglas Tallman
Staff Writer

ANNAPOLIS — Both sides are sharpening legal arguments for Monday’s hearing before the Maryland Court of Appeals over whether gays and lesbians should have the right to marry.
‘‘What’s going to matter is whether the court wants to do the right thing. If they want to do the right thing, it’s all right in front of them, and it’s on our side,” said Dan Furmansky, executive director of Equality Maryland, an advocacy group of gay rights.
On Jan. 20, Baltimore City Circuit Court Judge M. Brooke Murdock ruled that Maryland’s 1973 statute, which established marriage as between one man and one woman, ran afoul of the equal rights provisions in the state constitution.
The American Civil Liberties Union brought the case on behalf of nine same-sex couples and a widower from Hagerstown.
The case has drawn attention from a number of quarters. At least 20 friend-of-the-court briefs have been filed looking at the issues from spiritual and legal points of view.
At least one opponent of gay marriage believes the judges should rule that the matter is not one for the courts.
‘‘There’s an element in the decision that is not judicial in nature. It’s social in nature, and those issues are better left to a legislature,” said Owen M. Taylor, an Annapolis lawyer who filed an amicus brief on behalf of the American Center for Law and Justice. ACLJ, based in Washington, specializes in constitutional law as it relates to religious freedom. ‘‘The law as written ... requires no interpretation. The court ought to uphold it,” Taylor said.
The ACLJ’s filing also says that if Maryland defines marriage to include same-sex unions, the state would not be able to prevent unions of two or more people who have a close personal relationship.
David Rocah, a staff attorney for the ACLU, dismisses that notion. The case centers on whether limitations to marriage are justifiable. Prohibitions on other unions could be justified. ‘‘It is not the case that a ruling in our case means all bets are off for everything,” Rocah said.
The Family Research Council, represented by Columbia lawyer Steven L. Tiedemann, argues that the court should not use a new meaning for ‘‘marriage” for an old law.
The Maryland chapter of the American Academy of Matrimonial Lawyers argued children with same-sex parents are treated unequally when it comes to protections involving trusts, estates and inheritances.
‘‘Only by extending the right to marry to same-sex couples can Maryland afford the full range of legal rights and benefits to their children,” according to the chapter’s filing.
The NAACP’s Legal Defense and Educational Fund, based in Washington, drew comparisons to the U.S. Supreme Court’s 1967 decision that overturned laws banning interracial marriage.
The state, which opposes the ACLU in the case, disagreed with the analogy to the 1967 Supreme Court case. Laws banning interracial marriage were not created with a ‘‘neutral marriage classification” because they were to justify white supremacy, according to the brief filed by the Maryland Attorney General’s Office.
Forty-seven religious and faith-based groups wrote they supported advocates of same-sex marriage because they believe that ‘‘as lesbians and gay men, [they] have the same capacity to love, to form relationships, to commit to one another, and if they desire, to nurture children, as do heterosexuals.”
Included in the filing are Jewish synagogues, Friends meetinghouses, as well as United Church of Christ, Lutheran and Presbyterian churches, among other denominations.
The Murdock decision came just as the 2006 General Assembly was just starting. It galvanized lawmakers for weeks as conservatives tried to craft a constitutional ban on same-sex marriage. Democratic maneuvering prevented the ban from reaching the floor of the House of Delegates.

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