Afractured Maryland Court of Appeals couldn't agree on a constitutional basis for affirming the right of same-sex couples to marry or even to share in the legal benefits that marriage provides.
But yesterday's ruling, issued in four separate versions by the seven judges, pointedly invited the General Assembly to provide the statutory underpinnings that will allow Maryland to reflect the societal shift under way toward acceptance of gay unions.
That's an entreaty Gov. Martin O'Malley and the lawmakers ought to quickly accept.
The high court's tortured decision underscores how difficult it is to continue to defend limiting marriage to a man and a woman on the basis of tradition and antiquated notions about procreation.
Chief Judge Robert M. Bell was among two vigorous dissenters. He equated denying a marriage license on the basis of gender to the prohibition on interracial marriages long ago voided by the Supreme Court. Only four of the seven judges, including two who postponed retirements to finish work on the case, could justify denying committed homosexual couples the myriad statutory and financial benefits that come along with marriage.
In holding that same-sex marriage is not a fundamental right protected in Maryland or a guarantee of the state's Equal Rights Amendment, the court sounded downright uncomfortable with the status quo.
"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," said Judge Glenn T. Harrell Jr., writing for those who concluded neither such right exists under current law.
The decision was disappointing in part because courts in other states have gone much further to assert marital benefits, if not necessarily the right to marry. Further, the high court overturned a courageous ruling last year by Baltimore Circuit Judge M. Brooke Murdock, who called a 1973 state law limiting marriage to one man and one woman "an unjustified discrimination based on gender." Her ruling so outraged anti-gay activists that they launched an unsuccessful drive to impeach her.
Such small but vocal minorities make legislating on this issue very difficult. But a progressive state such as Maryland, where voters have affirmed gay rights on referendum, should not falter in taking it on.
For longer than anyone knows, gay couples have made Maryland their home. They live here, work here and raise their children here. They share communities with single mothers and divorced fathers and longtime heterosexual companions who choose not to marry even if they do have children.
Nothing the legislature does is likely to change the patterns of human behavior. But it can ensure that all those who make up the fabric of Maryland are treated as equally as possible by the law.