State by State: The Legal Battle over Gay Marriage
Same-sex couples do not have the constitutional right to marry in Maryland, according to a decision made by the state's highest court Tuesday. The close decision — four to three — upheld a 1973 law that limited marriage to one man and one woman.
The ruling was a major blow to advocates of same-sex marriage, who had prevailed in the lower court in early 2006. That case was brought by Gitanjali Deane and Lisa Polyak — who have been together for more than a quarter century and have two children — and eight other couples. The trial judge in the 2006 case found that the 1973 law violated the state constitution, because it treated gay couples differently from straight ones.
But the couples' victory lasted less than two years.
In Tuesday's ruling, the Court of Appeals, which is Maryland's highest court, found virtually no basis for same-sex marriage. Writing for the majority, Judge Glenn Harrell Jr. ruled that there is no historical foundation for the state to recognize marriages between people of the same gender. Moreover, he wrote, homosexuality is not an "immutable characteristic," such as gender or race, that one is born with; therefore it does not deserve special consideration by the state. In other words, the state may regulate marriage any way it likes — setting the marriagable age at 15, for example, and limiting marriage to heterosexual couples.
Asked whether there is any bright spot in the opinion, one gay rights lawyer responded, "No."
Mathew Staver, who heads the conservative law group Liberty Counsel, said Maryland is the latest in a train of states that have refused to recognize gay marriage.
"The push for same sex marriage through the courts is losing steam," he says. "It hasn't been very successful. If you look back at the history of all the cases ever filed, only one court has ruled that same sex marriage is permissible and required under their constitution."
That state is Massachusetts, which extended marriage rights to gay couples in 2003. Since that time, there has been an avalanche of states that passed amendments to their constitutions banning marriage between people of the same gender. A handful of cases have worked their way through the courts, and gay couples have enjoyed some success at the trial court level; but, so far, no high court other than Massachusetts has required the legislature to recognize gay marriage.
The supreme courts in Iowa and California are considering such a move. But many lawyers believe that civil unions or domestic partnerships — which are recognized in New Jersey, California, Connecticut, Vermont, New Hampshire and Oregon — are the wave of the immediate future.
And the Maryland decision left open that possibility. "Our opinion," Judge Harrell wrote, "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."