Lawsuit challenges state law barring same-sex marriage


Propelling Maryland into the national debate over the nature of marriage, nine same-sex couples filed suit yesterday in Baltimore Circuit Court to overturn a law prohibiting gay marriage, saying it violates the state constitution.

The plaintiffs, following a strategy similar to the one used to legalize gay marriage in Massachusetts, sued Baltimore City Clerk Frank Conaway and clerks in four other Maryland jurisdictions for refusing to issue them marriage licenses last week. In the 39-page complaint, the plaintiffs argue that a 1973 Maryland law that says only a marriage between a man and a woman is valid violates constitutional protections of due process, equality and prohibitions against sex discrimination.

At a news conference yesterday, the couples said they were suing not only on legal principle, but also to receive the practical benefits of marriage, from access to health insurance under a spouse's policy to family visitation rights in hospitals.

"Today, we are here to seek marriage equality in the interest of creating a stable, safe and secure future for our families and children," said Lisa Polyak, 43, an environmental engineer with the U.S. Army Medical Department, as she stood with her partner, Gita Deane, 42, a learning specialist at Goucher College. "I hope there will come a time when no family is set aside and all the children and parents in Maryland will be treated equally in the eyes of the law."

The American Civil Liberties Union Foundation in New York, its Maryland branch and local attorneys collaborated on the complaint. With its filing, Maryland joins at least five other states - Oregon, New York, Washington, Florida and New Jersey - where gay rights advocates have sued to marry.

The drive for gay marriage in the United States has moved at a rapid speed that even proponents did not predict. Many say the turning point came in February when San Francisco Mayor Gavin Newsom began issuing marriage licenses to several thousand gay couples. Although the California Supreme Court halted the practice in March, the images of joyous couples in the news media energized the nation's gay community, activists say.

So far, Massachusetts is the only state which permits gay marriage. It began issuing licenses in May.

Maryland Attorney General J. Joseph Curran Jr., whose office will defend the case for the state, said he was not surprised by the filing given the wave of related lawsuits around the country, but he insisted that state law clearly forbids same-sex marriage.

"This Office has advised repeatedly that, in our view, the Family Law Article unambiguously defines marriage in a way that excludes same sex couples," Curran said in a statement.

'Common sense'

Yesterday, Gov. Robert L. Ehrlich Jr. reiterated his opposition to gay marriage and said Maryland needs a Defense of Marriage Act, which would add another legal hurdle to the suit filed yesterday. "Traditional marriage, in my view and in the view of the vast majority of Marylanders and Americans, is the cornerstone of society," Ehrlich said. "That used to be common sense. I look forward to the day when that returns to the category of common sense."

The attorney general's office has 30 days to respond to the complaint. Regardless of how the Circuit Court rules, the case is almost certain to be resolved by the Maryland Court of Appeals, the state's highest court. Kenneth Choe, a staff attorney with the ACLU's Lesbian and Gay Rights Project in New York, said the U.S. Supreme Court has no jurisdiction over the matter because it pertains to a state constitution.

Choe said the ACLU is pursuing a case in Maryland for reasons that include strong support from the gay community here, as well as what gay rights activists say is a relatively friendly legal and political environment.

Dan Furmansky, head of Equality Maryland, the state's largest gay rights organization, said many gay people expressed interest in becoming plaintiffs after recent town meetings his group organized around the state. Choe said some legal decisions suggested that Maryland courts might be open to their arguments as well.

Choe cited a 1998 ruling in which the Maryland Court of Appeals said that sexual orientation is not relevant in determining the best interests of a child regarding custody and visitation. He also said that for many years, Maryland courts have permitted both members of a gay couple to serve as legally adoptive parents, which he said recognizes that gay couples can form families.

Legal opponents, though, questioned whether Maryland was the best state in which to file such a suit now. An official at the state attorney general's office said that Maryland judges tend to follow federal legal protection standards, which do not extend to gay marriage.

"I don't think our courts will go that far," said the official, who requested anonymity so as not to upstage the attorney general's statement. "I think because we don't have a history of great activism in interpreting state constitutional law provisions, I don't think you will see a decision that will expand equal protection to include a right to same-sex marriage."

Mat Staver heads Liberty Counsel, a conservative legal defense organization in Orlando, Fla., that is fighting gay marriage suits around the country. He said he thought a more favorable place to file suit might have been New Mexico, which does not have a statute expressly forbidding same-sex marriage.

"I think from a national strategic standpoint, Maryland was not on the high list," Staver said in a phone interview.


Furmansky said gay rights advocates have been encouraged by the General Assembly's willingness to defend their interests. He said that Maryland is one of 14 states that prohibits discrimination regarding employment and public accommodation based on sexual orientation. Furmansky also cited the House of Delegates' overwhelming passage of a bill this year that would have extended to gay partners many of the legal rights married people have regarding serious medical decisions involving their spouses.

"It's clear that the Maryland General Assembly is representative of Marylanders who are fair-minded and don't want to discriminate," said Furmansky, who noted that the bill died by one vote in a Senate committee.

However, whether legislators would extend that "fair-mindedness" to same-sex marriage is another question. Even one of the legislature's most liberal members, who supported the medical decisions bill, said yesterday he was unsure whether he would back gay marriage.

"It's an issue I'm still trying to sort out," said Sen. Brian E. Frosh, chairman of the Senate Judicial Proceedings Committee and a Montgomery County Democrat.

Senate President Thomas V. Mike Miller said he did not expect the suit to provoke a legislative backlash and a flurry of bills for the next legislative session, which begins in January.

"I don't think there's going to be any act or legislation because of this lawsuit," said Miller, a Democrat who represents Prince George's and Calvert counties. "Hopefully, the matter can be decided by the court."

Sun staff writers Ivan Penn and David Nitkin contributed to this article.

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