MD Marriage Mess: Looking Back to Move Forward

Every football coach in America scrutinizes the video of the previous game to identify errors in strategy and execution. They learn from these mistakes so that they can implement the necessary changes and go out and win the next game.

In the case of the failed Civil Marriage Protection Act during the 2011 Maryland General Assembly, it was not a game. But it merited a review of the action nonetheless. Thousands of gay and lesbian couples throughout the state were denied the rights, benefits and responsibilities that opposite sex couples receive because there were insufficient votes in the House of Delegates to push the legislation to the Governor’s desk.

Instead, a voice vote to recommit the bill to committee without an actual floor vote took place. This was the decision by the bill’s proponents and House leadership. It prevented a certain defeat on the floor but left the community in the dark as to who supported us and who were against us. The hopes of these couples ended abruptly with a thud.

Accordingly, there was not just heartbreak, but also bitter disappointment and palpable anger. Fingers were pointed at all parties involved. While the targets of the blame game are understandably upset over the recriminations, many in the community who were stunned by this legislative maneuver were equally distressed.

All involved in this debacle are looking at the footage—not simply to point fingers but hopefully to make some changes in the game plan.

For Maryland’s gay and lesbian community there was enormous, unprecedented sanguinity heading into this horrible day on March 11. The reasons for the optimism were numerous:

· We have heard and read the mantra that we are on the cusp of marriage equality.

· Attorney General Douglas Gansler issued a landmark opinion last year suggesting that the state should recognize the valid same-sex nuptials conducted in other jurisdictions.

· Just over a year ago, Washington D.C. legalized marriages for same-sex couples, which sent a message (one would hope) to all elected officials in Maryland that crucial dollars involved in the wedding industry would be leaving the state.

· Recent polls had shown a positive trend towards acceptance of same-sex marriage.

· We have a supportive Governor, if not aggressively so, who pledged to sign marriage equality legislation.

· We had eight LGBT members in the legislature—one of, if not the highest total in the U.S.

· The construction of the critical Senate Judicial Proceedings Committee had for the first time a number of supporters that would likely move the bill to the floor for debate and vote.

· Even Senate President Mike Miller, an opponent of same-sex marriage, announced he would vote against a potential filibuster.

· The committee sent the bill to the Senate, and it sailed through without much fuss. A one-time opponent to marriage equality, Sen. James Brochin, switched sides after hearing disgusting testimony from the opposition.

· Then Republican Minority Leader, Sen. Allan H. Kittleman, courageously sacrificed his position to support marriage equality.

· Several “celebrations” were held by Equality Maryland after the Senate passage that led some in the community to believe a House victory was attainable, if not expected.

· The House was widely considered the less conservative of the two chambers.

·The villainous National Organization for Marriage with their $1 million war chest to reward Democrats opposing the legislation saw the inevitability of the measure being passed and began gearing up for the likely referendum battle ahead.

· Despite the shenanigans from wavering delegates on the House Judiciary Committee, the bill moved to the floor with the help of the anti- marriage equality committee chairman.

Yes, the stars were aligned, and Maryland was poised to be the sixth state and D.C. to legalize marriage for same-sex couples. And the entire country was watching.

But the horror of March 11 left a bitter taste in all of our mouths. Equality Maryland, the state’s principal LGBT civil rights organization who took on the fight, received its fair share of flak. Others included: fickle legislators who had signed up as co-sponsors but backtracked; Gov. O’Malley for not being proactive and effective; outside LGBT rights organizations and House leadership for ostensibly advocating sending the bill back to committee without a vote; the lack of activism on the part of the larger gay and lesbian community; and the influence of religious organizations and pastors that had an impact on some freshman and even veteran delegates.

Equality Maryland, in particular, became an easy target, mainly because their visibility during legislative struggles, past and present. Community members demanded an explanation of the recommitment to committee tactic, and such an elucidation had not yet been made public.

Suspicion mounted that the decision was made to prevent a clear defeat, which would impact the marriage efforts in Rhode Island in New York and that the national groups—Gill Action, HRC and Freedom to Marry—dictated the strategy. Moreover, there was a good bit of controversy surrounding Equality Maryland’s removal of Facebook posts that were critical to the organization’s strategy and decision.

But before the wolves circle and devour their prey, keep in mind that marriage equality never advanced this far before in Maryland. There was a deficit of only a few votes that prevented it from becoming a reality. Equality Maryland cannot be responsible for that shortfall; they, like everyone else, were blindsided by the backtracking of positions, especially from bill co-sponsors.

There were probably some missteps along the way. It would be helpful if Equality Maryland acknowledges them publicly so that we may move on. We have seen the film and now we must devise a game plan for the future.

The quandary is that there is no guarantee that the bill will see the light of day next year. Legislators are loath to take on controversial matters two years in a row. House Speaker Michael Busch promised to bring it up next session, but that’s where the bill would originate. The Senate will only act on it if it passes the House.

If the bill does not advance next year, we can forget it until 2015 because of election politics. And if a referendum occurs, any chance of marriage equality would not take place until 2016—five years down the road.

So it behooves all of us to file the footage of this loss and start a game plan for 2012. In the next issue I will present my ideas on how we can achieve marriage equality once and for all.

Punting Equality to the People

Following questioning by reporters on March 2, Governor Martin O’Malley received plaudits from Equality Maryland folks and other marriage equality advocates for his urging the House of Delegates to get on with the Civil Marriage Protection Bill (“Religious Freedom” was unfortunately dropped from the title in the final Senate version). After the hemming and hawing by several delegates, who were co-sponsors no less, the Governor seemed to have had enough of this issue, which unlike in previous years is dominating the 2011 General Assembly.

"I hope the House comes together and passes this bill," O'Malley said.

A perfect time it was for the Governor to show some leadership on the controversial measure, who up until now has been reluctant to get out in front of the cameras to actually advocate for passage. Better late than never, I suppose. So three cheers for Governor O’Malley!

But moments later, O’Malley, who had pledged to sign the bill into law if voted by the legislature, acknowledged that even if the General Assembly approves the bill, voters will likely decide its fate because it can be petitioned to a referendum that would appear on the 2012 ballot. "We should let the people decide," he said. Ouch!

One respected Equality Maryland board member, upon learning of the added comment wrote on Facebook, “He always finds a way to disappoint.”

And O’Malley is not alone in his idea that the people should decide. Senate President Thomas V. Mike Miller, an opponent of marriage for same-sex couples or even civil unions for that matter, cleared the way for a debate and vote in the Senate by constructing the crucial Judicial Proceedings Committee (JPR) in such a way that there were sufficient supporters of the measure to vote it out of committee and onto the floor. He even pledged to end a filibuster but would vote against the bill.

Why would Miller allow the bill—one to which he is firmly opposed—to finally see the light of day? He could have easily stacked the JPR with opponents to kill it once again. Some speculate that the time is right for Maryland to finally deal with the issue once and for all.

Miller had been accused of encouraging the JPR to keep the bill from moving to the floor because he does not like another contentious issue to have to be debated. More likely he reasoned that since the Governor said he would support the measure the legislature may as well take up the issue and as O’Malley said, leave it up to the people to decide.

Wavering delegates on the House Judiciary Committee have indicated, as of this writing, they would eventually vote for the bill and ultimately on the floor. The slim 12-10 victory in the committee on March 4 that enabled the full House to consider the bill came after several lawmakers backtracked from their original co-sponsorship to a position where they had to give it more thought, pray, grandstand for legislation unrelated to the marriage bill or other reasons for not immediately committing to the bill.

Freshman Delegate Same Arora (D-Montgomery) had been aided in his election bid largely by LGBT activists and donors specifically for his pro-marriage equality stance. Then he held the committee vote up while he grappled with second thoughts and vigorous pressure from the likes of the Maryland Catholic Conference and the National Organization for Marriage. Arora endured intense pressure from his constituents who pointedly reminded him of his original position. [See Bruce Garrett's cartoon]

After he finally decided that he would vote for the measure, Arora said, “On the floor, I will vote to send the bill to the governor so that Marylanders can ultimately decide this issue at the polls. I think that is appropriate." In the end, Committee Chair, Joseph F. Vallario Jr., an opponent of marriage equality, cast the decisive 12th vote—not so much that he flip-flopped but because again, the people should decide.

I call that “punting.” This is where politicians do not want to take a courageous stand on a controversial issue and instead let others decide. Should the House go on to pass the bill and O’Malley signs it, the people through the referendum process will make their decision at the ballot box and the politicians will not have to bear the heat from constituents regardless of the outcome. Instead, they are supporting the horrendous notion that the rights of a minority should be at the mercy of the will of the majority.

Those opponents of marriage for same-sex couples who will have voted for the bill or those, such as Mike Miller who had eased the way for its consideration in the legislature, had done so because they believe that the referendum to overturn the law will be approved by the voters in 2012.

In the coming weeks, I will present the challenges of the referendum should the House of Delegates go on to approve the Civil Marriage Protection Act. I will outline what I believe will be the reasons why it is an uphill battle and also point out how we as a community can overcome those challenges.

www.SteveCharing.blogspot.com.