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New York's lessons for Maryland on gay marriage

ElectionsFamilyMarriageSame-Sex MarriageExecutive Branch

The passage late last month of a gay marriage bill in New York has renewed hope among advocates in Maryland who were disappointed by the narrow defeat of similar legislation here this year. New York's law doubled the number of people living in states where same-sex marriages are legal, it pushed President Barack Obama even closer to embracing gay marriage, and it proved that a gay marriage bill can even succeed in a legislative chamber controlled by Republicans. New York's vote, and Gov. Andrew Cuomo's quick signature of the bill into law, unquestionably added to a sense that the issue has momentum nationally.

But a sense of momentum doesn't necessarily translate into votes in Annapolis. A massive lobbying effort got a same-sex marriage bill through the state Senate this year, but the measure encountered unexpected difficulties in the House of Delegates, and the fact that lawmakers embraced the issue in a state capitol 300 miles away doesn't change that. Still, the path to success in New York does offer several lessons for Marylanders as they prepare to push for gay marriage again next year.

The governor

Gov. Martin O'Malley is getting a lot of taunting these days about how Governor Cuomo has suddenly vaulted to the top of the list of Democratic presidential contenders in 2016. Mr. Cuomo took ownership of the gay marriage bill and personally rounded up the votes to make it happen. In the wake of New York's vote, the Maryland governor sounded a little defensive about his stance on the issue, pointing out that he worked behind the scenes in the waning days of the effort to round up votes in the House of Delegates and saying he thought a more public effort "would have kicked it into the gutter of partisan division."

The Cuomo example suggests that isn't necessarily so. All of the votes the New York governor was lobbying for in the end were among Republicans.

The Cuomo case also shows the benefit of the governor, rather than gay rights activists, taking the lead. Mr. O'Malley said he made phone calls at advocates' direction this year to try to sway a dozen or so wavering votes. That's similar to the role Mr. Cuomo, then New York's attorney general, played in a previous, failed attempt to legalize gay marriage. This time around, he took charge and produced a more forceful, organized and strategic lobbying effort. There is no reason to believe the same wouldn't be true in Maryland. Governor O'Malley's chief legislative aide, Joseph C. Bryce, is the best in the business. With all due respect to Equality Maryland and the other advocacy groups that worked on this issue, the governor is delusional if he thinks they know better how to round up votes in Annapolis than Mr. Bryce does.

The other reason why it's critical that Mr. O'Malley take the lead in pushing for gay marriage is that he, uniquely, can reassure wavering legislators that they won't suffer political consequences for taking a vote that is controversial in their districts. But he can't do that with quiet, behind-the-scenes lobbying. He needs to give wavering lawmakers confidence that he will publicly back them up and campaign for them if they vote for gay marriage.

Mr. O'Malley has a quarter-million dollars in his state campaign account and the ability to raise more at will. He can't use the money for a run for federal office, but he can dole it out to whatever candidates he chooses in state and local races. Even more critically, he can help supportive lawmakers through the redistricting process, which will be occurring simultaneously with the gay marriage debate.

There is no reason for Mr. O'Malley not to directly engage. Previously in favor of civil unions, he is now out of the closet, so to speak, as a supporter of gay marriage. He can now choose whether he wants to be an effective one. There's no need to throw some imaginary competition with Governor Cuomo in his face to make him realize that.

The Republicans

In New York, four Republican senators voted for gay marriage. In Maryland, as many as three Republicans were on the fence in the House of Delegates, though the GOP caucus put pressure on its members to maintain a unified front against gay marriage, and none had committed to supporting the measure before it was pulled.

There's some hope among advocates that the mere fact of the Republican support in New York will crack the party's façade of unanimity here and elsewhere, and that the Republicans who voted for the bill in Albany might be enlisted to persuade a few Maryland Republicans. But we need not look so far afield; there are two Marylanders who can do the job.

Former Republican National Committee Chairman Ken Mehlman, who recently acknowledged publicly that he is gay, was a key lobbying force in New York. He is a native of Pikesville, and he needs to help the cause in his home state.

And across the hall from Maryland's House Republicans, Sen. Allan Kittleman, who was the minority leader until he resigned over his position on the marriage issue, voted for the bill and has lived to tell the tale. He said he has gotten push-back among Republican clubs in his Howard County district, but out in the public, he has received a tremendous amount of support, even from people who disagree with him on the issue but respect him for standing up for his beliefs. "I have never once regretted my vote," he said.

Religious exemption

One of the key developments in the push for gay marriage in New York was the agreement by the governor and other advocates to an amendment strengthening the protections for religious organizations that do not recognize gay marriage. Maryland's bill had a provision that was substantively similar to the clause in the New York law, and the differences are largely insubstantial. For example, the New York law specifically addresses employment discrimination by religious institutions, which the Maryland bill did not. However, that issue is covered in other parts of Maryland code, and the bill's backers thought it was unnecessary to include.

Similarly, backers declined to accept an amendment proposed in the final hours of the debate in the House by Del. John A. Olszewski Jr. in an attempt to strengthen the religious exemption clause. As written, it specified that religious institutions could not be required to provide services or accommodations related to the promotion of marriage "through religious programs, counseling, educational courses, summer camps, and retreats, in violation of the entity's religious beliefs." Mr. Olszewski wanted to eliminate the specifics and leave that exemption open-ended. The sponsors of the bill declined to accept it, believing it did little to advance the cause from either a legal or political perspective.

This time around, backers need to consider the language of the religious clause more strategically. Those who were undecided on the bill this year need some kind of tangible change in the legislation to help them change their position. It will be easier for those who want to support for the bill but are worried about what their constituents think to vote yes if they can go back home and say they secured a stronger religious exemption clause. The fact that the clause may be redundant with other areas of state law is irrelevant.

Moreover, advocates need to think not only about how to get to 71 votes in the House of Delegates but also how to get a majority on a statewide ballot when, as would be almost inevitable, a gay marriage bill is petitioned to a voter referendum. Having a religious exemption clause exactly like the one in New York, which was accepted on a bipartisan basis, would cut off a whole avenue of argument for same-sex marriage opponents.

The lobbying

In both New York and Maryland, the most persuasive lobbying came not form professional advocates but from gay couples and their families, and from others who simply believe the time has come for the state to recognize same-sex marriage. In New York, advocates were able to marshal thousands of gay marriage supporters from individual lawmakers' districts to contact them to make their views known.

In Maryland last year, advocates had relatively little time to gear up for the debate — it only became clear that they had any chance of success in December, when Senate President Thomas V. Mike Miller (himself a gay marriage opponent) rearranged a key committee so that it had a majority in favor of same-sex marriage. Next year, they will know which lawmakers they need to persuade and will have time to marshal grass-roots support in those legislators' districts.

Challenges and opportunities

One key difference between Maryland and New York that will make the path more difficult here is the political influence of African-American churches, which helped ensure the defeat of the gay marriage bill this year. Attempts to enlist their support by analogizing the push for gay marriage to the civil rights struggle proved largely unpersuasive and may have done more harm than good. Advocates might have more success couching the issue in terms of shared family values.

Unlike New York, Maryland also has to cope with the voter referendum process. If there had been any doubt before that opponents would successfully petition a gay marriage bill to referendum, it was erased by the avalanche of signatures submitted in the effort to overturn Maryland's illegal immigrant tuition bill. The prospect of a referendum adds to the pressure for gay marriage advocates to succeed next year as opposed to later in the term. That way it would go on the ballot in 2012, not 2014 when senators and delegates are also up for election.

That said, gay marriage advocates are in a good position in Maryland. They know where the votes are in the Senate, and that is unlikely to change. They also know who in the House is persuadable, and because a vote was never taken in that chamber, they don't need to get anyone to reverse themselves, a factor that made the effort in New York more difficult.

They also now have the object lessons of what happened to those politicians who came out in favor of gay marriage this year, such as Governor O'Malley and Senator Kittleman, and Sens. Jim Brochin, Kathy Klausmeier, Edward Kasemeyer andRonald Young.

Senator Brochin had long opposed gay marriage, insisting on civil unions instead, until he changed his mind during a committee hearing this year. After the legislative session was over, he sent out his customary annual letter to constituents he had met over the years by knocking on doors, some 8,800 households and 14,000 voters.

"While my decision to support same-sex marriage did not come easily," he wrote, "I am convinced that it was the right decision. In the end, I could not let my preconceived notions and my own uneasiness over the word 'marriage' trump my commitment to provide equal protection under the law, and to allow same-sex couples to raise their families in peace, without fear of discrimination."

Before the letter went out, he said, people in his district were "pretty skeptical." But not now.

"When I'm at swim meets with my daughter, or at the Giant, or wherever, overwhelmingly people come up to me and say, 'I got your letter, and I understand why you did what you did. I'm not crazy about the word marriage, but I understand,'" he said.

And that, more than a sense of momentum from New York, is why gay marriage proponents should feel good about their chances next year.

Copyright © 2014, The Baltimore Sun
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