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Court upholds marriage law

The Baltimore Sun

Maryland's highest court rejected same-sex marriage yesterday and upheld the state's 34-year-old statute defining marriage as a union between a man and a woman.

In a case watched closely around the nation, the Maryland Court of Appeals' 4-3 ruling dealt a blow to gay and lesbian advocates who launched their fight to overturn the state's marriage law three years ago. Yesterday, those advocates pledged to take the battle for marriage to the General Assembly, where two lawmakers have already said they will sponsor legislation to legalize same-sex marriage.

Opponents of same-sex marriage applauded yesterday's 240-page decision, calling it a victory for traditional families and noting that most appellate courts in other states have reached similar conclusions. They also promised to mount a legislative effort of their own, vowing an aggressive push to explicitly ban same-sex nuptials in the state Constitution.

The court's majority opinion rejected the plaintiffs' claim that the 1973 statute discriminates on the basis of gender. In addition, the court concluded that while marriage is a fundamental right, it is not a right extended to gays and lesbians under current state law.

Within hours of the decision, many of the same-sex couples who had served as plaintiffs in the legal challenge gathered outside a Bolton Hill church to express anger and disappointment with the court's ruling.

Lisa Polyak and her partner of 25 years, Gita Deane, the lead plaintiffs, said they would keep fighting for legal protections for their 11- and 8-year-old daughters - security they said would only be guaranteed through marriage.

"I feel like this decision is needlessly cruel to gay and lesbian families," said Polyak, speaking through tears during a news conference at Brown Memorial Church. "I wish these judges would have to face our children today because I have to."

David Rocah, staff attorney for the ACLU of Maryland and one of the lawyers representing the plaintiffs, said that the decision, while disappointing, did not mark the end.

"This is not the first time that the courts have not gone our way in this and other civil rights battles and it won't be the last time," he said. "I believe the march of history in this country is indeed a march toward justice."

Though the majority opinion rejected same-sex marriage, lawmakers who have for years made unsuccessful attempts at barring the unions in Maryland's Constitution said a ban was needed now more than ever.

"I assure you the constitutional marriage amendment will be reintroduced this session," said Del. Donald H. Dwyer Jr., an Anne Arundel County Republican and leading same-sex marriage opponent in the House. "Without it, there's nothing to preclude a future legal challenge made on a different argument or a different basis. The legislature ought to have the courage and the desire to publicly vote on the issue of marriage."

Since Massachusetts became the first - and remains the only - state to allow gays and lesbians to wed in 2003, an explosive debate over same-sex marriage has played out in courts and state capitals nationwide. Cases are pending in California and Vermont, but Maryland had been eyed as a bellwether state because of its strong liberal leanings.

Twenty-seven states have voted to ban same-sex marriage in their constitutions, while a handful - Vermont, Connecticut, New Jersey and New Hampshire - have adopted civil unions, which confer some of the rights of marriage.

Maryland's journey to the national spotlight began in July 2004, when 19 gays and lesbians filed a lawsuit in Baltimore Circuit Court challenging the 1973 statute. In January 2006, Baltimore Circuit Court Judge M. Brooke Murdock held that the law was unconstitutional and discriminatory. The Attorney General's Office immediately appealed the decision. Last December, the Court of Appeals heard arguments.

The bitterly divided court was passionate in its opinions, with four judges supporting the majority, two penning dissents and one concurring in part and dissenting in part.

In the majority opinion, Judge Glenn T. Harrell Jr. wrote that the state has a legitimate interest in promoting opposite-sex marriage. But he also reminded lawmakers that they have the right to consider a law permitting same-sex marriages.

"In declaring that the State's legitimate interests in fostering procreation and encouraging the traditional family structure ... our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex," he said.

Harrell was joined by judges Dale R. Cathell, Clayton Greene Jr. and Alan M. Wilner. Judge Irma S. Raker concurred in part and dissented in part. Chief Judge Robert M. Bell and Lynne A. Battaglia wrote dissenting opinions.

The majority opinion rejected the plaintiffs' claim that denying gay marriages is a form of sex discrimination. In fact, sex discrimination does not apply to individuals, only to groups, the court stated.

"The court was unusually clear in choosing the side that sex discrimination is only from the point of view of the group," said Julie Shapiro, an associate professor at the University of Seattle School of Law. While Washington's highest court reached a similar conclusion in that state's same-sex marriage case, it did not articulate it so clearly, she said.

"The court seems to be saying that discriminating because someone is lesbian or they are gay is not as big of a problem," she said.

While the court recognized that gays and lesbians face discrimination, it also notes that as a group they are not "politically powerless," and therefore not entitled to protections.

"It is clear that homosexual persons, at least in terms of contemporary history, have been a disfavored group in both public and private spheres of our society," the decision reads. "This court nevertheless finds that a history of unequal treatment does not require that we deem suspect a classification based on sexual orientation."

"I don't think that's true," said Jana Singer, a law professor at the University of Maryland who was among the 58 professors from the University of Maryland and University of Baltimore law schools who filed friend-of-the-court briefs supporting the plaintiffs. "I think the fact that same-sex couples are excluded form the hundreds of protections of marriage indicates they are not politically powerful."

In his dissenting opinion, Bell said the majority underestimates the societal barriers facing gays and lesbians. He compared denying them the right to wed to the bans on interracial marriage, which were struck down 40 years ago in the landmark U.S. Supreme Court case Loving v. Virginia.

"To be sure, there are important differences between the African American experience and that of gay men and lesbians in this country, yet many of the arguments made in support of the antimiscegenation laws were identical to those made today in opposition to same-sex marriage," Bell wrote.

In her dissent. Battaglia said her fellow judges offer no "principled basis" for denying the plaintiffs' sex discrimination claim. "In reaching this result, the majority breathes life into the corpse of separate but equal," she wrote.

Raker, meanwhile said she favored a decision similar to that of New Jersey's highest court, which last year required the state to extend the rights and benefits of marriage to gay couples within 180 days, but left it up to the state legislature whether to call such unions "marriage."

The court's ruling - coming on the heels of similar conclusions reached by the high courts of many other states - suggests that advocates of same-sex marriage are going to need to turn to legislative action, said Carl Tobias, the Williams Professor at the University of Richmond School of Law.

"It's another decision in what has become a pretty long line of decisions upholding these statutes," he said. "Perhaps these issues are not going to be resolved favorably to the plaintiffs in the courts. They may have to convince their legislatures, which may be more difficult."

In defending the state's 1973 law last year, the Attorney General's Office had argued that the question of same-sex marriages should be left to the legislature, not the courts.

"We believe the majority opinion of the Court of Appeals, following the lead of most courts across the country, reached the correct legal conclusion on the very serious questions presented by the plaintiffs," said Raquel Guillory, a spokeswoman for the office. "The majority was also correct in recognizing that it is now up to the General Assembly to decide whether same sex couples should be given the right to form civil unions or to marry."

Religious opponents of same-sex marriage in Maryland and elsewhere are gearing up for what is certain to be a legislative fight. Bishop Bart Pierce, pastor at Rock City Church, an independent Christian church in Towson, said the more than 1,000 religious bodies that make up Defend Marriage Maryland would respond to efforts to legalize same-sex marriage with their own lobbying push.

"If the legislature picks this up and tries to make this an issue, you can believe that the churches and Defend Marriage Maryland are going to put everything into making sure it does not go through," he said.

But those disappointed by the ruling noted that faith communities are not of one mind on same-sex marriage. Faith leaders who support allowing gays and lesbians to wed also expect to continue the fight.

"I hope the legislature will address it," said the Rev. Tom Harris of Govans Presbyterian Church in Baltimore, a Presbyterian Church (USA) which has worked with Equality Maryland, the state's largest gay and lesbian rights group. His church has done same-sex commitment ceremonies, though he has yet to perform one. Such ceremonies carry no legalstanding.

"Marriage is not about the sex of the two people," he said. "It is about the love they share and the commitment between the couple."

kelly.brewington@baltsun.com

Sun reporters Andrea F. Siegel and Stephanie Desmon contributed to this article.

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