Equality Maryland endorsed Sen. Brian Frosh, a Montgomery County Democrat, for attorney general in 2014.
Equality Maryland endorsed Sen. Brian Frosh, a Montgomery County Democrat, for attorney general in 2014. (By Amy Davis)

Maryland Attorney General Brian E. Frosh issued a legal analysis Monday arguing same-sex marriage bans in states across the country are based solely on "fear, prejudice, and hate," and must be overturned by the U.S. Supreme Court.

The court is set to hear arguments April 28 on several state bans on such marriages -- stemming from cases in Ohio, Kentucky, Michigan and Tennessee -- and to consider the question of whether gay and lesbian couples enjoy a constitutional right to marry nationwide.

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Frosh said his report outlines how prejudice was an established motive in the formation of those bans -- making them "less likely to withstand constitutional scrutiny," he said.

"It's pertinent to [the justices'] determination as to whether or not the various different laws violate the equal protection of the citizens who are affected when the underlying motive was not a motive to improve the lives of the citizens, but really one driven by prejudice, animus, fear, hate, etc.," Frosh said in an interview.

He also said Maryland, where voters approved same-sex marriage by referendum in 2012, should continue to push for marriage rights for gay and lesbian couples beyond its borders.

Gay and lesbian couples now in Maryland who may want or need to move to a state without same-sex marriage are hurt by such bans, he said. Married gay and lesbian Marylanders could also be negatively impacted during visits to states with bans, particularly in the event of a medical emergency, Frosh said.

"It affects our citizens," he said, calling the establishment of a national right to marry "a matter of fundamental fairness."

The findings of Frosh's report, titled "The State of Marriage Equality in America," were included in an amicus brief in support of same-sex marriage that was filed with the court by Massachusetts and signed by Maryland and 15 additional states, he said.

Over the course of 35 pages, including footnotes, the report considers the "origins" of same-sex marriage bans across the country, finding that all were based on "misinformation and venom" rather than the best interests of citizens.

"Claiming that elementary education would be rewritten to corrupt families and expose young children to all forms of sexuality; characterizing gays and lesbians as 'self-indulgent' and 'sinful'; comparing homosexuality to bestiality and pedophilia and polygamy; convincing voters that same-sex marriage leads to disease and mental illness — these are not assertions or arguments worthy of democratic discourse; they are meant to scare and mislead citizens into suppressing and subordinating an unpopular group," the report concludes. "Too often and for too long, this strategy of spilling lies and spreading fear has succeeded. This is one risk of a pluralistic democracy, but it is the very risk that the Framers designed the federal courts, and the Supreme Court in particular, to correct."

The report's look back through history includes the fact that Maryland was the first state in the country to "define marriage by statute as a union between a man and a woman, expressly banning same-sex marriage in 1973 in an apparent response to attempts by same-sex couples to obtain marriage licenses."

The report points to the state's long journey from enacting that statute to enacting same-sex marriage as an example of why courts need to step in on matters of constitutional fairness.

"Although the enactment of marriage equality legislation in Maryland has been a source of pride and a resounding success, the democratic process in Maryland still took nearly 40 years, and in other states the pace of democratic change has been similarly halting and erratic," the report says.

"Contained in the Attorney General's report are illustrations of prejudice and misinformation that make it clear that to ask same-sex couples to be patient asks too much," said Deputy Attorney General Thiru Vignarajah in a statement. "The promise of equality has long been within the province of the Supreme Court to protect."

The Supreme Court case to be heard next month follows another in 2013 that largely dismantled the Defense of Marriage Act, which banned federal recognition of same-sex marriage. That decision helped usher in a string of lower court rulings invalidating same-sex marriage bans in several states.

More than 30 states and the District of Columbia now allow for same-sex marriages.

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Proponents of such unions hope the Supreme Court's decision will establish same-sex marriage nationwide. Opponents of such unions hope for a ruling that would leave marriage law to the states.

The case has attracted filings in support of same-sex marriage from the Obama administration, members of Congress and others.

Frosh's report is not the first example of a Maryland attorney general considering same-sex marriage laws in other states.

In 2010, before same-sex marriage was legal in Maryland, then-Attorney General Douglas F. Gansler issued a decision stating that Maryland would begin recognizing such marriages performed in other states.

Frosh said he and his staff compiled the new report in the last several weeks.

"There were people in our office who felt very strongly about it and wanted to make a contribution," he said. "I'm very proud of them."

Advocates for the lesbian, gay, bisexual and transgender community in Maryland, including some lawmakers who helped pass the same-sex marriage law in 2012, praised the report.

"The rights of Marylanders and families in many other states remain at risk unless the Supreme Court decides this issue once and for all," said state Sen. Rich Madaleno in a statement. "This report bolsters the case for why the Court needs to act this year, and solidify our gains once and for all."

"While we are fortunate in Maryland to have won marriage equality for same-sex couples, the outlook for some states on this issue is not favorable," said Carrie Evans, executive director of Equality Maryland, the state's largest LGBT civil rights advocacy group, in a statement. "This report by Attorney General Frosh underscores the difficulty, and in some instances the almost impossibility, of achieving marriage equality on a state by state basis. We concur with the conclusion of this report that the time has come for the U.S. Supreme Court to hold that the Constitution requires no less than the right of same-sex couples to marry."

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