Md. lawmakers begin preparing for 2008 battle

The Baltimore Sun

Within minutes of Maryland's high court upholding a ban on same-sex marriage, lawmakers from both sides of the aisle began preparing for what is sure to be a pitched battle in the next General Assembly session over what rights -- if any -- gay couples should be afforded.

"I see it being a fight," said Sen. Brian E. Frosh, the Montgomery County Democrat who chairs the Senate Judicial Proceedings Committee. "And it's hard to predict the outcome."

Conservative lawmakers promised to reintroduce a constitutional amendment that would make clear that marriage is an institution limited to heterosexual couples, an amendment that has stalled in committee in years past.

Others said they intend to propose that same-sex couples be given the same state rights as their heterosexual counterparts, a concept that activists are calling civil marriage. Still others are already talking compromise, which could resemble the civil unions that exist in several other states or could look like something else altogether.

What they agree on is that the court ruling gives a legislature that was already expecting a busy session another -- and likely contentious -- set of issues to sort out come January. Most legislators had been avoiding the same-sex marriage issue while waiting for the court to rule.

Del. Donald H. Dwyer Jr., an Anne Arundel County Republican, has been at the forefront of past efforts to pass a constitutional amendment to ban same-sex marriage. While he called yesterday "a wonderful day" in the wake of the court ruling, he wasn't dialing back the rhetoric. Even though the court agreed with his stance, he still thinks a constitutional amendment -- which would have to be approved by voters -- is a necessity.

"The amendment is simply an insurance policy," he said.

Del. Anthony J. O'Donnell, the House Republican leader from Southern Maryland, said that the case even got to the Court of Appeals -- a lower court found the state's marriage law discriminatory -- proves the need for the amendment.

"It highlights the vulnerability of our law, and so it may be important that in order to prevent an activist judge from taking a provision of our law to make a far-reaching decision that was never intended, we need to clarify the law," he said.

To pass a constitutional amendment, opponents of same-sex marriage would need to win the votes of two-thirds of the legislators in each house. The measure would then be placed on the ballot in the next statewide elections -- which are in even years in Maryland.

If the Assembly were to pass a bill allowing same-sex marriage, or some version of civil unions, opponents could put the measure on the ballot if they can gather enough signatures.

Those who support civil marriages for same-sex couples, which confer all of the legal rights of marriage including a state license, say now is the time to push for equality under the law. They say they aren't interested in civil unions, which some call "marriage lite," because by definition they perpetuate a separate and unequal system.

"I think the next step in Maryland will be to evaluate whether a civil marriage bill can pass the legislature," said Del. Maggie L. McIntosh, a Baltimore City Democrat who is openly gay. "I don't know the answer to that. I would think it would be very difficult."

But, she said, "In 2007, a family unit where people have respect for each other, people live in committed and trusting relationships, people who are dependent in some way on one another, come in all shapes and sizes, and there's some value to recognizing that."

Del. Victor R. Ramirez and Sen. Gwendolyn T. Britt, both Prince George's County Democrats, said they will introduce bills legalizing same-sex marriage in the coming session. "It's the right thing to do," Ramirez said.

Only the California legislature has passed same-sex marriage legislation without being instructed to do so by a court. The first time it was vetoed by Gov. Arnold Schwarzenegger. A second bill is on the governor's desk.

States that do not ban same-sex marriage in their constitutions, but whose high courts have upheld same-sex marriage bans, have become battlegrounds over issues of gay and lesbian rights, said Julie Shapiro, an associate professor at Seattle University Law School.

For example, Washington's highest court upheld its same-sex marriage ban, but earlier this year lawmakers there adopted limited same-sex partnerships, allowing gay couples the right to visit a partner in the hospital or plan a partner's funeral.

"People are moving to the legislatures," Shapiro said. "And many people believe that's the way it should be discussed. You can't say this is activist judges imposing their ideology. After all, state legislatures, who are responsive to their electorate, are free to do as they want."

The Maryland legislature has made a few steps toward giving benefits to gay couples, including passage of a 2005 law allowing unmarried couples to enroll in a domestic registry, giving them 11 benefits, including medical decision-making and hospital visitation rights.

Gov. Robert L. Ehrlich Jr. vetoed it, and proponents did not attempt to override it after Ehrlich said he would work with them on a compromise.

House Minority Whip Christopher B. Shank, a Washington County Republican, said he sees no reason to change the law at all in light of yesterday's affirmation of the state's marriage law.

"That was the law put into effect in the 1970s," he said. "I see no reason that needs to change now. Same-sex marriage has no place in Maryland society, and this decision affirms that."

Shank said he would resist any effort to create civil unions or domestic partnerships but said he is willing to talk point by point about what advocates want to accomplish. If they are looking to pass property on to loved ones without a will, he said, he would look at finding a way to do that while leaving out the issue of sexual orientation. If the issue is insurance, he said he is willing to talk as well.

"If you want to legitimize this and create a special category of marriage likeness, that's a non-starter," he said. "If it's rights [they want], we're human beings. We believe they're human beings."

Officials with Equality Maryland, a gay rights group, have said they want civil marriage and not civil unions. And they weren't budging from that position yesterday.

Gov. Martin O'Malley, meanwhile, told WBAL-TV yesterday that he would be willing to talk about civil unions as a "reasonable compromise."

"Whether there is the political will for that yet, I'm not sure," he said.

Sen. Richard S. Madaleno Jr., a Montgomery County Democrat who is openly gay, said he wants to see full marriage benefits for gay couples. But he will listen to what others are saying.

"There are real-world problems that same-gender couples face every day," he said. "They need relief and they've been unable to get relief thus far."

stephanie.desmon@baltsun.com

Sun reporters Kelly Brewington and Andrew A. Green contributed to this article.

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