Failure of same-sex marriage casts doubt on measure's future

When the state Senate passed a bill to legalize same-sex marriage last month, supporters and some opponents believed the controversial legislation had cleared its highest hurdle, and had the momentum to reach the governor's desk.

The failure of the measure to find the necessary support in the traditionally more liberal House of Delegates caught both sides by surprise — and sets up the lower chamber as the new battleground.

Opponents of same-sex marriage say the House's decision not to vote on the bill seals its fate through the rest of lawmakers' four-year terms. They predict that the move will have an impact on lawmakers in other states now considering whether to allow same-sex couples to marry.

"This was a big victory," said Brian Brown, president of the National Organization for Marriage. "We were told that this is a done deal, same-sex marriage will pass. If you look back a few months ago, I don't think anyone would have predicted this."

Advocates for gay marriage now say they underestimated the impact of the November election on the makeup of the House. Six Democrats —- including five who had supported same-sex marriage — lost or gave up their seats. And advocates didn't anticipate the mass mobilization of black churches, which began preaching against the legislation and urging parishioners to contact their lawmakers.

Together, those factors helped split the 141-member House. Supporters and opponents alike say the legislation was within a vote or two of passage; the chamber's Democratic leaders sent the bill back to committee on Friday rather than forcing members to take what would have a politically difficult vote.

Advocates say they will use the next nine months to convince the dozen or so delegates who are on the fence in the hope of trying again next year. While polls have indicated more public support for civil unions than for gay marriage, advocates say they will continue to fight for what they call marriage equality.

Del. Maggie McIntosh, the most senior of the legislature's openly gay members, found hope in defeat. The Baltimore Democrat had a speech prepared for the House debate but could not deliver it because she was in tears.

"This is a year I will always celebrate," she said afterward, choking up. She said the supportive speeches she heard from colleagues Friday convinced her that many accept her identity.

"I'm just so overwhelmed. It is not an issue that is going away."

Brown disagreed. He said that proponents want to create a "myth" that same-sex marriage is "inevitable and the dominoes are falling."

As evidence against inevitability, Brown points to 31 states where voters have rejected gay marriage since 1998.

Still, he says, his group will continue to "be vigilant" in Maryland.

Next year appears to be the last best opportunity for gay marriage in Maryland, for a time. Passage after 2012 would likely draw a repeal effort on the 2014 ballot, when lawmakers are up for re-election. At least some would want to avoid association with the controversial issue.

On the day before the House was to vote, Brown's organization pledged $1 million to help defeat any Republican who supported same-sex marriage, and to assist any Democrat who opposed it. Indeed, House leaders say they expected the chamber's 43 Republicans to vote as a bloc against the bill.

African-American churches proved another forceful voice of opposition.

"Black churches have never asked us for anything," Del. Cheryl Glenn said during Friday's debate. "They are asking us now, 'Don't use the word marriage.'"

The Baltimore Democrat said she strongly supports "anyone loving whoever they want to love." She tried to amend the bill to establish civil unions.

As the gay marriage bill appeared to move toward passage, lawmakers said they began hearing about the issue in church nearly every Sunday.

Del. Talmadge Branch said his pastor at Israel Baptist Church in Baltimore City lobbied him heavily. The Baltimore Democrat said leaders at other churches called him out from the pulpit during services.

The Rev. Franklin Lance, pastor at Mount Lebanon Baptist Church in Baltimore, said members asked questions about gay marriage at Bible study.

"From my perspective just in talking to my congregants, we have simply been saying that we believe that marriage should be defined as man and woman," Lance said. "This is not to be negative toward or restricted toward or biased toward anyone else. We do believe that is sacred. We believe it's holy. We believe it's the first institution ordained by Christ."

McIntosh said supporters of gay marriage "have a lot of work to do in the African-American community." She said they erred in drawing parallels to the civil rights movement — a comparison that angered some black opponents.

"That is comparing apples to oranges," McIntosh said.

Advocates have attempted several paths to gay marriage.

In 2004, 19 people filed a lawsuit seeking to overturn the 1973 statute that defines marriage as the union of a man and a woman. Maryland's highest court denied the claim in 2007.

More recently, lawmakers voted to provide hospital visitation rights to gay couples and exempt some property transfer taxes for domestic partners.

Democratic Attorney General Douglas F. Gansler issued an opinion last year that the state should recognize same-sex marriages performed in jurisdictions where it is legal. Though opponents of gay marriage criticized his conclusion, Republicans did not field a candidate against him in November.

Equality Maryland, the state's most visible gay advocacy organization, took an active role in the campaign last year, appealing to Democratic candidates to declare their positions on same-sex marriage.

During the Senate debate, Equality Maryland advocates delivered Valentine's Day carnations to lawmakers. Their hope: that Maryland would follow the neighboring District of Columbia, which began issuing marriage licenses to gay couples last year.

Five states now recognize same-sex marriage, and efforts are on the move in New York and Rhode Island. Hawaii and Illinois recently approved civil unions, which are contracts between any two adults.

Gay Marylanders who watched the legislation's failure in the House said they were not giving up.

"Obviously we just need to fight harder," Jenny McAtee said.

Earlier, McAtee had embraced her partner, Julie Mason.

"This is my wife," Mason said, "and I'd like the state to recognize that."

Gov. Martin O'Malley had pledged to sign the bill if it reached his desk, but began reaching out to lawmakers only in the days before the vote. First lady Katie O'Malley also quietly pushed the issue.

The Democratic governor made calls to undecided delegates, appealing to them as a Catholic. According to a spokesman, O'Malley told delegates that it wasn't an issue of faith, but of equality.

House Speaker Michael E. Busch, also Catholic, met continually with delegates the past week.

The timing proved wrong this year. The 30 newly elected delegates were still moving into their offices in January when they were asked to sponsor legislation that even more senior members didn't fully grasp.

Freshman Dels. Tiffany Alston and Sam Arora both enthusiastically backed the bill at the beginning of the session. Both withdrew their support — Alston, after constituents and her church made their opposition clear, and Arora for religious reasons that he has not explained.

Del. Melvin Stukes said he sponsored the bill, titled the Civil Marriage Protection Act, only because he believed it was a civil unions plan. Records show the Baltimore Democrat has sponsored similarly titled gay marriage legislation three previous times.

As the details of the legislation became apparent, Stukes withdrew his support.

Busch said legislators — and the public — need more time to understand the arguments for gay marriage, and why it is superior to civil unions.

"There has not been enough of an education process," Busch said. "I think you need another year and more information."

Some gay marriage opponents who watched the debate Friday said they felt misunderstood.

"It's hard to be painted as haters, it really is," said Martha Schaerr, a Montgomery County resident. "The commitment to traditional marriage doesn't mean we hate gays. The line that I can't cross is marriage."

Busch, who supports gay marriage, and Senate President Thomas V. Mike Miller, who does not, say the General Assembly could take up the same-sex marriage issue again next year. With the Senate's approval on record, next year's legislation would start in the House.

Some say it will take another election, and a new General Assembly, to get a different result. Lawmakers don't face re-election until 2014.

"They would be foolish to try again next year," said Del. Don H. Dwyer, an opponent of gay marriage and Anne Arundel County Republican. "But if they do, we'll be ready."

Advocates hadn't thought they would need a legislative strategy for 2012, after the Senate voted 25-21 to approve the bill. The Senate has long been considered more conservative than the House.

For supporters, the signs were all positive. Sen. James Brochin, a Baltimore County Democrat who had campaigned against same-sex marriage, became a supporter after being put off by vitriolic remarks by opponents. He was joined by a Republican, Sen. Allan H. Kittleman, who had stepped down as minority leader over the issue.

Sen. Jamie Raskin, a Montgomery County Democrat, sees evidence of a larger philosophical shift in the legislature.

The Senate gained two Democrats last fall as the House lost six. On Monday, the upper chamber is expected to approve a bill that would allow illegal immigrants to qualify for in-state tuition at the state's public colleges and universities. The House hasn't given even preliminary committee approval to the measure this year.

"It may be," Raskin said, "that we are moving into a period of the Senate being the more progressive body."

Baltimore Sun reporter Yeganeh June Torbati contributed to this article.

annie.linskey@baltsun.com

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