Maryland's highest court today will take up the thorny question of whether state legislators and other gay-marriage opponents can become part of the highly charged lawsuit filed by couples who want the state to allow same-sex marriage.
Eight lawmakers and the Anne Arundel County court clerk are appealing a Baltimore judge's ruling that they cannot join the lawsuit as defendants.
They contend that the social policy question of same-sex marriage is one for the legislature and Maryland voters - not the courts - to decide. They say they also believe that the state attorney general's office will not adequately represent their lawmaking interests.
The same-sex couples and the attorney general's office oppose the bid by the legislators and others, saying they have no role in defending the constitutionality of the Maryland law. They argue that it is the attorney general's job to defend state laws.
A bill calling for a constitutional amendment banning same-sex marriage is dying in the General Assembly. Its proponents, some of whom are the legislators trying to intervene in the court case, pledged to push for passage next year.
The quest to become part of the court case might be "done as much for the publicity value as anything," said University of Maryland Law School Professor Robert J. Condlin.
If allowed in, he said, the lawmakers can tie the case in procedural knots to delay reaching the real issue.
"If they are allowed to intervene, this case will be decided in the next millennium," said Andrew H. Baida, a lawyer for the gay couples.
But the lawmakers say they are neither grandstanding nor being obstructionist.
"We don't want to tie up the lawsuit. We want to establish that marriage is between a man and a woman," said Del. Herbert H. McMillan, an Anne Arundel Republican.
Nationally, it is rare for lawmakers to want to become parties in lawsuits. Legislators' bids in other states to become defendants in same-sex marriage cases have been denied.
The Maryland Court of Appeals, which is to hear arguments in the case today, has never ruled on the question.
The case began in July, when nine gay couples sued in Baltimore City Circuit Court asking to have Maryland's marriage law found unconstitutional.
The legislators, Anne Arundel County Clerk of the Court Robert P. Duckworth, who was running for Congress at the time, and a Baltimore woman asked to become parties in the lawsuit.
Judge M. Brooke Murdock ruled against them in September, without a hearing and before either the attorney general's office or the couples filed responses to their request. They appealed.