In a 4-3 decision issued today, the Maryland Court of Appeals upheld a ban on same-sex marriage and ruled that a statute declaring that marriage must be between a man and a woman does not violate constitutional rights. The ruling essentially kicked the issue of same-sex marriage back to the state legislature.
Attorneys for 19 gay and lesbian plaintiffs had argued before the Court of Appeals in December that Maryland's 33-year-old statute defining marriage as a union between one man and one woman infringes upon their clients' constitutional rights. Assistant Attorney General Robert A. Zarnoch defended the state's 1973 marriage statute and said any change in the law should be a question for the legislature. The case came to the court after court clerks around the state refused to issue marriage licenses to same-sex couples in 2004, citing the state's family laws, which restrict marriage to a man and a woman. A Baltimore City Circuit Court judge, however, ruled that the law violated an equal rights provision of the state constitution.
In its 240-page opinion, the Court of Appeals also said that the state has a legitimate interest in promoting opposite-sex marriage. "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," Judge Glenn T. Harrell Jr. wrote for the majority.
The decision included several dissenting opinions, including one authored by Chief Judge Robert M. Bell. Bell said sex-based classifications are analogous to race-based classifications. "It, therefore, is clear that an equal application approach cannot render constitutional a discriminatory sex-based classification," Bell wrote. Bell, who is black, said: "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 anti-miscegenation laws were identical to those made today in opposition to same-sex marriage."
In rejecting the argument that the state's Equal Rights Amendment protected the rights of same-sex couples to marry, the court scoured the legislative and media record of the debate during the 1970s and concluded it does not apply. The measure, which was passed by the General Assembly and ratified by voters, was not intended to address sexual orientation, the majority decided. "We conclude that the legislature's and electorate's ultimate goal in putting in place the Maryland ERA was to put men and women on equal ground, and to subject to closer scrutiny any governmental action which singled out for disparate treatment men or women as discrete classes," the majority wrote in its opinion....
Because of the state's "legitimate interest" in fostering procreation and traditional family structures. Yes. Quite. Because people, as a group, find it so difficult to procreate when they're not married, don't they? And all those people outside traditional family structures, the state has no interest in their welfare at all. Let 'em all die. Yes, even the children, too; what the hell are they doing outside a traditional family? Ain't they got no values?
To a certain extent, I almost, but not quite, understand how the court gets where it gets. On the issue of whether or not it is a denial of equal rights to specific classes of men or women for the state to deny them the right to marry the person of their choice ... I don't quite see how you can fail to reach the decision that a sex-based denial -- men marrying men or women marrying women -- is, in fact, not a inequitable treatment purely on the basis of sex. That would seem to be obvious on its face, wouldn't it? And yet, apparently not, in Maryland. On the very narrow ground of the historical record for Maryland's equal rights amendment, I suspect the decision would seem on more solid ground. At the time that the Equal Rights Amendment was being ratified and added to various state constitutions, most wouldn't even have considered the issue of gay rights. It was difficult enough dealing with the "women are people with recognized rights, too" aspect without throwing sexual orientation into the mix. Nonetheless, the gender discrimination aspects would seem to be plain on the face. Oh, but that whole fostering babymaking thing, yes, I see. Gay people don't have children, therefore, the state has no interest in them. (That gay people don't have children would come as a surprise to something over half the actual gay people that I know. Apparently, their children are a figment of our collective imagination. Who knew? And since they're only figments, then clearly, they don't need whatever security and structure that traditional marriage would provide that is such a benefit to the nonfigmentary children of straight people.)
I really do wish that state supreme courts would resist the temptation to say that state legislatures have a legitimate interest in making their residents make babies and specific family structures. When they do that, they are strongly implying that people who don't want or plan to have children, or who can't have children together, have no business being married, whether heterosexual or homosexual. And they are also strongly implying that only those who are in traditional family structures are worthy of the state's notice. Given that marriage is being delayed until later ages, that divorce is quite prevalent, and that people are living longer, the number of people in nontraditional family structures, whether heterosexual or homosexual, will be increasing. It seems only sensible not to have precedent on the records that says, "Oh, you people who aren't married with children? The state hates you. Really, just fuck off and die now. Thanks awfully!"
Posted by iain at September 18, 2007 12:24 PM
