Lawyers for eight state legislators and a county clerk who oppose same-sex marriage asked the state's highest court yesterday to let their clients become defendants in the hot-button lawsuit filed by couples who want Maryland's ban on gay marriage declared unconstitutional.
Several judges on the Court of Appeals indicated they might consider letting in the county court clerk - Republican Robert P. Duckworth of Anne Arundel County - asking to join the five already named as defendants. But he'd get the same lawyer they have - the state attorney general, Democrat J. Joseph Curran Jr. - not the private counsel he prefers.
The judges asked why the eight legislators should be allowed to join the lawsuit, noting that they do not represent the General Assembly.
Last July, nine same-sex couples filed suit in Baltimore challenging the constitutionality of a state law that says marriage is a union of a man and a woman. The legislators, Duckworth and a Baltimore resident asked to become defendants. A city judge turned them down, prompting the appeal. They contend, in part, that the issue should not be decided by the courts, but by voters and the legislature.
The attorney general's office and lawyers for the couples, including the American Civil Liberties Union Foundation, contend there is no reason to add a sixth clerk as a defendant. They also argued that individual legislators can't intervene in the lawsuit just because the constitutionality of the law is important to them.
Judges were skeptical of arguments that the attorney general's office was not aggressive enough in defending the clerks and the law.
When Matt M. Paavola, an attorney for the eight legislators, faulted the attorney general's office for not signing on as a party in the case, Chief Judge Robert M. Bell asked, "Why should he? He is in the case."
University of Baltimore law professor Byron Warnken said Duckworth may have standing to become a defendant because, like other clerks, he issues marriage licenses and performs marriages. Legislators do not.
"They are not the ones who have been denied a license and they are not the ones denying a license," he said.