High Court Ruling is a Detour on the Road to Equality

By Steve Charing
Senior Political Analyst

September 18, 2007 marked the beginning of a new chapter in the history book for Maryland’s gay and lesbian community. On that fateful day, the Maryland Court of Appeals by a razor-thin 4-3 margin upheld the state’s 34 year-old marriage law that defines marriage as solely between a man and a woman.

A lawsuit that was initiated three years ago by 19 plaintiffs challenging this statute primarily on the basis of the equal protection clause in the state's constitution and gender discrimination was successful in a lower court proceeding. But the state took it to the Court of Appeals, and oral arguments were presented by the Attorney General’s office and Maryland’s ACLU. The latter, along with Equality Maryland, shepherded the case through the courts and the court of public opinion. The panel deliberated for nearly ten months.

Using what many gay activists and legal experts saw as dubious findings, such as the state’s interest to promote procreation and that gays already have political power, the Court knocked down any hope that the judiciary would help bring justice and equality to gays and lesbians. Instead, pro-marriage advocates saw the ball thrown back to the unpredictable, highly politicized state legislature, where it faces an uncertain future.

Anger and Frustration
The ruling left a bitter taste in the mouths of the nine gay and lesbian couples and a widower who initiated the lawsuit. They were demonstrably saddened at rally appearances and at a press conference following the Court’s announcement.

It was also acrid to the broader community who was confident that this blue state would join Massachusetts as the only ones in the nation to allow same-sex unions. If marriage was not going to be legalized, then many hoped that a lesser arrangement like civil unions would be mandated by the Court. Neither happened.

While nobody can and should fault the hard work on the part of the ACLU in the presentation of the case and Equality Maryland for its efforts in securing a diverse representation of the community for the lawsuit, exasperation has been leveled at some of our elected leaders who agreed with the decision.

The most notable target was Governor Martin O’Malley, who during his election, received vast support—in both effort and dollars—from the LGBT community. Glenn Dehn, one of the plaintiffs in the lawsuit, was miffed that Governor O’Malley responded to the ruling on local television by saying no one should redefine the sacraments.

"He should know better that this wasn’t about religious sacraments," Dehn, trembling in anger, told me at the rally outside the First Unitarian Church of Baltimore in Mount Vernon. "It was about civil marriage, and he knew that." His partner of nearly thirty years, Charles Blackburn agreed and was equally agitated by the remark.

Revelations that appeared in the Washington Blade indicated O’Malley had once supported civil marriage. But he had reportedly backtracked from e-mails with another plaintiff, Lisa Polyak, assuring support for marriage equality and changing his views several times since 2004.

Predictable Rhetoric
Everyone expected the number one homophobe in the House of Delegates, Donald H. Dwyer, Jr. (R-Anne Arundel), to celebrate the decision. He vowed to extinguish any possibility of state recognition of gay and lesbian couples by once again introducing a constitutional amendment to ban same-sex marriage.

Dwyer is concerned that another "activist" judge may hear a future case arguing from a different perspective and rule that same-sex marriage be made legal. An amendment would be an insurance policy for Dwyer and his ilk. (The Appeals Court ruling on this case cannot be reintroduced in the future using the same basis for the lawsuit; it would require a different rationale.)

Of course, other conservative homophobic Republicans in the legislature want to nail the marriage coffin shut as well. Anthony J. O’Donnell, House Republican leader from Southern Maryland, chimed in on the need for a constitutional amendment. "In order to prevent an activist judge from taking a provision of the law to make a far-reaching decision that was never intended, we need to clarify the law," he was quoted as saying in the Baltimore Sun.

What can we expect from the Democrats?
There are no known Republican legislators who can be counted on to support same-sex marriage. The challenge pro-marriage equality activists face, however, will be the Democrats, who hold a seemingly decisive majority in both chambers of the General Assembly.

Although O’Malley hinted in an interview that civil unions might be a possible option, his lack of support for same-sex marriage underscores the challenges gay activists will face as they take the battle to the legislature. Without the Democratic governor’s leadership and backing on marriage equality or similar support from Senate Leader Thomas V. "Mike" Miller (who also opposes civil unions), it is extremely difficult for legislators to stick their necks out on this issue.

Nonetheless, other Democrats immediately stepped up to the plate. Senator Gwendolyn T. Britt and Delegate Victor R. Ramirez, both of Prince George’s County, plan to sponsor marriage equality bills in 2008. Northeast Baltimore County Delegate Todd Schuler appeared at the Baltimore rally to announce that he wants to be the first to support such a bill, which has been named the Religious Freedom and Civil Marriage Protection Act.

Long time supporter of the lgbt community and an unabashed advocate for same-sex marriage, Delegate Elizabeth Bobo (D-Columbia), took a wider view and was unhappy about the Court’s decision. "I’m concerned, and everybody should be concerned," she told me the day after the ruling. "It’s not just about gays and lesbians. When anyone’s rights are eroded, everybody’s rights are eroded."

Will the legislation come to the floor?
A number of observers including politicians and those in the media believe that neither the pro-marriage bill nor the constitutional amendment will gather enough steam during the 2008 session to make it to the floor for a vote. Legislative committees—the graveyard for unpopular bills—will decide their fate. These pundits point to the bruising budget battle that must be resolved during the upcoming General Assembly as a basis for deferring this contentious issue to a future legislative session.

The Democratic leadership, although not in our camp, has no appetite for a constitutional amendment to be on the table during an election year. And for the same reason, few legislators would be expected, at this time, to vote for a marriage bill. The Court issued their ruling, and there is no ostensible emergency. This matter can wait, they will say.

But pro-marriage advocates, especially those in same-sex relationships, certainly disagree. Their lives and those of their families are being adversely affected each day by the lack of protections that are afforded heterosexual couples.

The challenges ahead
Pressure will be on Equality Maryland, the state’s largest gay rights advocacy group to deliver over these next few years. The organization has aggressively raised money and increased its staff since the lawsuit was initiated to position itself for the long fight ahead.

It must deal with a divided gay and lesbian community where many are not fully committed to marriage for an assortment of reasons. In addition, more than a few are angry over the risky strategy to shoot for marriage while the more attainable accommodation of civil unions was ignored. They maintain that civil unions are better than nothing at all.

Civil unions or as some call "marriage light" may be the only practical short-term compromise that can be reached between anti-gay Republicans and election-conscious queasy Democrats.

But Equality Maryland is adamant about seeking full marriage equality. "[We] will move full steam ahead by taking our case to the General Assembly and asking our elected officials to extend marriage to same-sex couples," according to an e-mail statement following the ruling.

Unless the state’s leadership stands unequivocally behind marriage equality, it will be unlikely that a legislative remedy will be enacted in the near future. Recall how the last General Assembly failed to enact discrimination protection for transgendered individuals despite broad support. Realistically speaking, what are the odds for anything resembling marriage being enacted in the near term? It’s a major challenge, but nothing is impossible.

For politicians to vote our way, they will have to go against the wishes of the majority of voters who still, by a diminishing margin, oppose same-sex marriage according to polls. Advocates must separate civil marriage from religious marriage as a prerequisite to convincing the electorate to get on board. The proposed bill will attempt to do just that. The mantra, "Civil Marriage is a Civil Right" must continue. Putting human faces on this campaign is also vital.

The trend has been slowly inching in our direction, however. For the 19 plaintiffs and others in long-term same-sex relationships, it’s painfully too slow and as we’ve seen, disappointing. But the road to equal rights is always long and uphill and yes, it is sometimes impeded by detours.