Same-Sex Marriage in Maryland

The quest for Marriage Equality taken to Maryland’s Highest Court

By Steve Charing

Senior Political Analyst

ANNAPOLIS—Just before 10:00 a.m. on December 4 in a stark, dimly lit, wood-paneled room in Maryland’s Court of Appeals, the next step in the long, tough journey towards marriage equality was taken.

Before a seven-judge, crimson-robed panel, consisting of two women and five men, the state of Maryland, through the oral arguments presented by Robert Zarnoch, appealed to overturn the decision handed down in January by Baltimore Circuit Court Judge M. Brooke Murdock. That decision determined that the state’s marriage law is unconstitutional based on Maryland’s Equal Rights Amendment. The ruling was stayed pending appeal, which the state promptly filed.

Ken Choe of the American Civil Liberties Union argued on behalf of the plaintiffs. The ACLU with the cooperation of Equality Maryland brought the legal challenges. Both sides had presented to the Court thousands of pages of legal briefs.

The original lawsuit, Deane and Polyak v. Conaway, was filed nearly three years ago by nine gay and lesbian couples and a widowed gay man. It sought relief from Maryland’s 1973 law that defines marriage as solely between a man and a woman. Every plaintiff contributed his or her own unique perspective as to how the current statute, which denies them the rights, benefits, responsibilities and obligations that are accorded to heterosexual couples, harms them and their families.

With Maryland now in the forefront of the same-sex marriage debate, this case is being watched closely by lgbt activists and opponents from all over the country. Thus far, only courts in Massachusetts and New Jersey have ruled favorably on same-sex marriage.

Each attorney presented arguments that lasted approximately 30 minutes in the courtroom that was jammed with 90 spectators. A component of the state’s appeal is that gays and lesbians are not a suspect class, meaning they are not as powerless as the plaintiffs allege and that the matters of marriage and state’s rights should be settled in the state’s General Assembly—not in the courts.

The state’s attorney Mr. Zarnoch as part of his argument to discredit the plaintiffs’ contention that they are of a suspect class had referred to Dan Furmansky, Executive Director of Equality Maryland, but not by name. He said, "We have a gay-rights activist who is incredibly successful with our General Assembly in terms of getting bills passed."

Choe argued that fundamental rights belong to all Maryland’s citizens and the Court should protect them. He maintained that denying gays and lesbians the right to marry is in violation of the state’s constitution and is discriminatory.

Surprisingly, very few questions were asked by the judges, who will now deliberate for an unspecified length of time. Some observers predict it may take at least five months. Lisa Polyak, who along with her partner Gita Deane, is a plaintiff in the case, said, "It’s been three years. We are grateful to reach this threshold."

Another plaintiff, Glen Dehn and his partner Charles Blackburn, felt confident in the arguments presented but could not predict the outcome. "I can’t read the judges," Dehn said. That cautious optimism was echoed by fellow plaintiff Patrick Wojahn and his partner David Kolesar.

Following the hour-long proceeding, about 50 supporters of the plaintiffs and others gathered outside the front of the Robert C. Murphy Courts of Appeals Building. Despite the high level of passion from both sides during the legal struggle and the extensive media coverage, the scene was surprisingly subdued and lacked the "circus" atmosphere that one would have expected. No heckling or vocal demonstrations by either side took place.

The supporters of the plaintiffs clearly outnumbered the opponents. They carried signs and stood behind Dan Furmansky as he addressed the media and other interested parties at a post-hearing press conference.

"They don't want the state of Maryland to redefine what a legal marriage means," said Furmansky, referring to the plaintiff couples in the case. "They want the state of Maryland to open up legal marriage to them and let them be a full part of their communities and this state."

He continued, "No Marylander should ever have to know what it's like to be denied a legal relationship to the person they have chosen to share their life with. No child should ever have to live with the insecurity of having two parents who are legal strangers… We ask our fellow Marylanders to walk a mile in our shoes, and then help us in your hearts to protect our children, help us live longer, help us be healthier, and help us know the stability and security of marriage."

Not everyone present was in agreement. Del. Donald H. Dwyer (R-Anne Arundel), arguably the most outspoken opponent of same-sex marriage in the legislature, predicted the ruling would be overturned. If not, he is prepared to push for a constitutional amendment to go before the General Assembly for a vote. He has already pre-filed a bill to resurrect his previously failed attempts in the legislature to ban same-sex marriage.

"I don’t believe this issue should be before the courts," Dwyer told Baltimore OUTloud. "It belongs in the legislature and even if it doesn’t pass, I would accept it as long as there is a vote." He denied with a straight face that he is homophobic and said he had been "painted that way." Of course, that flies in the face of his past inflammatory rhetoric on the floor of the House of Delegates and his homophobic comments on his website.

Dwyer is among many opponents who have used the Bible as a justification to discriminate against the lgbt community. An important group that has opposed same-sex marriage on those grounds is African-American clergy. "The black churches are not a monolith," said Dr. Alvin Williams during the press conference who with his partner Nigel Simon, are also plaintiffs in the case. "Not all are against same-sex marriage." He added, "Those that oppose same-sex marriage focus on the sin, which is contained in a brief biblical reference. But they fail to consider the rest of the Bible that speaks to love and human dignity."

Nonetheless, this case is about civil recognition of same-sex couples and is not an attempt to force religious sanctification of unions. The arguments presented before the Court by either side made no references to the religious aspects, but it is religion that fuels much of the opposition, which would likely ignite a strong backlash if the ruling is upheld.

At the conclusion of the press conference, Dan Furmansky told Outloud, "I am leaving the arguments really hopeful. The state is grasping at straws to justify the discrimination at hand. We have truth, case law and the amazing families representing us."