Decision Day Dawning

With a lot going on elsewhere, LGBT Maryland is quiet… but not for long

By Steve Charing
Senior Political Analyst

Our recent days have been dominated by the news of the Imus idiocy, the tragic shootings at Virginia Tech, the continued prosecution of the screwy war in Iraq, and even the elimination of the oft-chastised Sanjaya from American Idol. That is a full plate to digest in such a short time.

For the lgbt community in Maryland, things are relatively tranquil though. The late emergence of Spring-like weather has re-awakened the normally ebullient mood of the community at this time of year. People are out and about and modeling their new spring threads. They are regaining the appetite to socialize, working on their yards, riding their bikes, and eager to welcome the long-awaited arrival of summer and all that it brings.

Yes, things are normal around here and peaceful. We escaped the state’s 2007 General Assembly without hearing much of the homophobic diatribes from Delegate Donald H. Dwyer, Jr. and others who typically condemn homosexuality and gay folks’ desire for same-sex marriage. Some gains for the lgbt community were realized in this past session, but none were particularly headline grabbing, at least in the mainstream media.

But this serenity may soon end with a thud.

While it may not reach the font level of the Sun’s tabloid imitation by its screaming headline, "MASSACRE" in the wake of the Virginia Tech shootings, an imminent ruling from Maryland’s Court of Appeals—the state’s highest court—may shake some trees around here.

The case that gay activists in Maryland and around the county are keenly watching may soon reach its denouement. The Court of Appeals heard oral arguments this past December from the original plaintiffs—nine lgbt couples and a gay widower—and from the State. (Two of the plaintiffs, Gita Deane and Lisa Polyak are pictured to the right.) The State had appealed a January 2006 Baltimore Circuit Court ruling by Judge M. Brooke Murdock that Maryland’s 1973 marriage law is unconstitutional. The plaintiffs successfully argued that as written, the law violates the Maryland constitution’s guarantees of equality and due process.

While no one knows with any degree of certainty when the high court’s ruling will be handed down, many expect it to be right around the corner if past history of the appeals process is any indication.

Ken Choe, one of the Maryland ACLU attorneys involved in the lawsuit that has been also backed by Equality Maryland, said during a conference call press briefing that he does not know when the decision will be handed down. But he stated that whatever the outcome, it is final and not subject to further judicial appeal (i.e. the Supreme Court).

Observers expect the high court’s decision to take on one of three possibilities: unequivocally extending marriage rights to all gay and lesbian couples; upholding the Maryland statute (and thus overturning the lower court’s ruling) that defines marriage as solely between a man and a woman; or a combination of the above (similar to New Jersey) and throwing it back to the legislature to provide some protections like civil unions but not the full weight that marriage would bring.

Ken Choe is optimistic that the arguments were made sufficiently for the Court to rule favorably on same-sex marriage. "I strongly believe we have met both the strict scrutiny and rational basis of review," he said during the briefing. In other words, Choe is confident the case was presented to meet all judicial tests that would sustain the argument that excluding same couples from marrying violates the state’s constitution. If the Court rules accordingly, it would render Maryland as the only other state besides Massachusetts to extend marriage benefits (statewide only) to same-sex couples.

But then the headlines will scream out, newscasts will lead with that story instead of the usual murder or car accidents and kick off a maelstrom that will dominate the political theater through late 2008.

Demagogues from both sides of the aisle, especially homophobic Republicans, conservative Democrats and politically squeamish moderates, will predictably react to the mantra, "Marriage should be defined as only between one man and one woman." No doubt there will be pressure to convene a special session of the General Assembly, which will be asked to vote on a constitutional amendment to "protect the institution of marriage." Never mind that Massachusetts, the one state with same-sex marriage on the books, has the lowest divorce rate in the country. That fact by itself ought to stifle such rhetoric.

It won’t.

"Gay marriage" remains a very politically charged issue, and with the big election year of 2008 looming, politicians are going to position themselves on this issue that will yield maximum benefits for them. For a constitutional amendment to pass in Maryland, it would need the support of 60 percent in each chamber. The Governor, regardless of the fact he does not support such an amendment, has no authority to veto the measure, but he sure can use the bully pulpit to sway politicians and the electorate—not a trivial contribution to be sure.

Should the amendment bill receive the necessary backing, it will go on the 2008 ballot as a referendum, thus uncharacteristically putting minority rights up for a popular vote. And it would mark the first time the constitution is being used in discriminatory fashion to restrict rights of individuals or a group instead of expanding them.

With all this potential enmity that could result from a favorable Court ruling, the preparation to fight back the rhetoric and venom and to educate the public on the fairness and justice aspects of the issue is essential. In anticipation of "Decision Day," Equality Maryland—the state’s principal lgbt civil rights organization—is strategizing for the potential battles ahead. A less favorable ruling will trigger a different set of battles. Visit their website at http://www.equalitymaryland.org/ to see how you can join in this fight for justice and equality.

Things are quiet right now. It doesn’t figure to last.