Marriage ban began without a hitch

THE BALTIMORE SUN

While working at the Allegany County courthouse decades ago, William A. Wilson saw many couples step up to his counter for marriage licenses. Perhaps not two men or two women, but Wilson apparently considered the possibility of such things happening and was concerned enough to do something.

What he did after he was elected to the Maryland Senate was simple, if puzzling to some of his colleagues. In January 1973, Wilson, a Republican, sponsored Senate Bill No. 122, requiring "that a marriage must be between a man and a woman in order to be valid."

The point that seemed too obvious - a "housecleaning" measure to some members of the General Assembly - has emerged 33 years later as the object of heated legal, legislative and cultural contest. Now encoded in state Family Law, the provision was declared unconstitutional last month by a Baltimore Circuit Court judge, who stayed her decision pending an appeal by the state.

This month, the House Judiciary Committee defeated a Republican attempt to amend the state Constitution to include some version of the bill sponsored by Wilson, who died at age 72 in 1986. Some Republicans have publicly promised to continue fighting.

Fighting was about the last thing anybody wanted to do when the bill was introduced, according to recollections of several people there at the time. It seems nobody even wanted to talk about it.

"I have no recollection of any discussion," said Maryland Attorney General J. Joseph Curran Jr., who at the time was chairman of the 13-member Senate Judicial Proceedings Committee, which would have held a hearing and moved the bill to the full Senate.

Curran remembers legislative chambers noisy with debate on such topics as abortion rights and the death penalty, and he figures he would have recalled any hot argument about gay marriage.

"I don't remember anyone mentioning same-sex marriage as a controversial issue," Curran said.

Stuart Buppert, who was counsel to the Senate Judicial Proceedings Committee, recalls a quick hearing before the panel, during which one member asked Wilson something to the effect of, "'Why is this even necessary?' ... I don't remember what the answer was."

The bill "went out of the committee without any fuss," said Buppert, now an assistant attorney general with the state Department of Natural Resources.

The measure went to the full Senate on Jan. 24, 1973, and was approved 37-1, said legislative librarian David A. Warner. Sen. Newton I. Steers Jr., a Montgomery County Republican, cast the one vote against, Warner said. Steers died in 1993.

In April 1973, the measure went to the House of Delegates, where it passed 112-1. The no vote was cast by Montgomery County Democrat Woodrow M. Allen.

Asked about the vote recently, Allen at first recalled that he supported the measure. When reminded that the record shows otherwise, he said he must have thought the measure was "either not necessary or precluded arrangements" such as civil unions. "See, I'm ahead of my time," Allen said, laughing.

"I have no idea what the motivation of the sponsor was."

The accounts of his three daughters and local associates describe Wilson as an affable man who enjoyed a good laugh and the camaraderie of the Midland Volunteer Fire Department, where he was a member for decades. Daughter Ruth Hutcheson of Maryland Heights, Mo., called firefighting "his second love, after politics."

He took an interest in law and counted many lawyers among his friends, but he never formally studied law, said another daughter, Willeda Mosser of Keyser, W.Va.

Before being elected to the state Senate in 1971, Wilson served four years as an Allegany County commissioner, then was appointed a judge on the Maryland Tax Court. The 1973-1974 Maryland Manual shows that he was deputy clerk of the Allegany County Circuit Court, though the current chief clerk, Dawne D. Lindsey, said she found no record of Wilson's being sworn into the job of deputy clerk. Lindsey said he could still have worked at the courthouse.

Eleanor Albright of Cumberland, who retired after 45 years as an Allegany court clerk, said Wilson was working in the courthouse when she started there in 1942 and that she worked with him for years. Among other responsibilities, Albright said, Wilson issued marriage licenses.

Retired chief clerk Raymond W. Walker of Midlothian recalled that Wilson said the question of whether a marriage license could be issued to two men or two women had come up at the courthouse a few times. It was not clear, Walker said, whether the question was posed by a same-sex couple seeking a license or came up as a point of curiosity.

In his 2004 book Why Marriage?, historian George Chauncey wrote that with the emergence of gay activism across the United States in the late 1960s and early 1970s, "dozens of gay liberationists began the campaign for equal marriage rights by walking into county clerks' offices to demand their licenses to marry."

Such demands landed before Paul L. Chester, clerk of Baltimore's Court of Common Pleas. While rejecting these license bids, he sought guidance from the state attorney general.

In a two-page response dated June 21, 1972, state Attorney General Francis B. Burch and Assistant Attorney General Francis X. Pugh said Chester reported that "an increasing number of persons of the same sex have been seeking marriage licenses and you request a legal opinion on the propriety of your denial of these applications."

Citing case law from 1828 through 1971 in Maryland, New York and Minnesota, and a Black's Law Dictionary definition of marriage, the opinion held that marriage is reserved for heterosexual couples.

The opinion said, "In the present state of the law it is perfectly clear that sameness of sex of the parties constitutes a legal impediment to marriage," and therefore Chester should not issue marriage licenses to same-sex couples.

Wilson might have known about that opinion. In any case, on Oct. 10, 1972, he asked the office of legislative services to draft a bill defining marriage as between a man and a woman. Maryland was moving toward the forefront of a national wave of such legislation.

In 1973, Chauncey said, Maryland, Texas and Colorado became the first states to pass laws explicitly limiting marriage to heterosexuals. By 1978, 15 states had done so, most of them in the South and West.

Until recent years, the point hardly seemed worth arguing. Buppert, the former Senate committee counsel, said the civility of those 1973 legislative proceedings seems remote.

"It's amazing how these things do change," Buppert said.

arthur.hirsch@baltsun.com

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