Maryland Marriage Victory

Baltimore trial ruling, stayed pending appeal, finds bar on gay nuptials is gender discrimination

A Baltimore trial judge ruled in favor of an American Civil Liberties Union lawsuit seeking same-sex marriage in Maryland on January 20. The ruling by Circuit Judge M. Brooke Murdock found that a statute banning same-sex marriages violated the Equal Rights Amendment of the Maryland Constitution, which forbids the state from discriminating on the basis of sex.

ACLU filed the lawsuit in 2004 on behalf of 19 Marylanders, some of them couples who had been denied marriage licenses by county clerks. ACLU staff attorney Ken Choe argued on the motion for summary judgment on behalf of the plaintiffs.

The plaintiffs argued that the ban on same-sex marriage violates the state Constitution on several different theories, but Murdock focused on one, that the statutory definition of marriage creates a classification based on sex or gender. Under the Maryland Constitution, sex classifications are subject to “strict scrutiny” by the courts, which means that the state bears the burden of showing that the classification is necessary to achieving a compelling governmental interest and that it is also narrowly tailored to achieve that interest without unnecessarily violating constitutional rights.

Before getting to the strict scrutiny portion of his analysis, Murdock had to counter the argument, which has been accepted by courts in some other states, that the same-sex marriage ban is not sex discrimination at all. That line of argument posits that because men and women are equally prohibited from marrying persons of their own sex, there is no discrimination, but rather equal application of the law. If that were the case, then the statute is presumptively constitutional, and the plaintiffs have the burden of showing that it lacks even a rational basis.

This kind of reasoning was decisively rejected by the U.S. Supreme Court in 1967 when it struck down Virginia’s law against interracial marriage, but some courts have refused to see the analogy between race and sex classifications.

Murdock, however, found the analogy fully applicable.

“This Court finds that the equal application theory fails as a matter of law,” she wrote, “because it is inherently illogical as a matter of fact. It is inaccurate and overly abstract to describe section 2-201 [the statute that defines marriage as exclusively between one man and one woman] as equally prohibiting men and women from marrying members of their own sex. Section 2-201 bars a man from marrying a male partner when a woman would enjoy the right to marry that same male partner. As compared to the woman, the man is disadvantaged solely because of his sex. In the opinion of the Court, Family Law Section 2-201 discriminates on its face based on gender.”

Murdock’s conclusion was bolstered by past Maryland appellate rulings that rejected the equal application theory in other contexts, including a decision from 1985 that struck down a provision of state law purporting to exempt male-only private clubs from the general ban on sex discrimination because there were also social institutions whose membership was only female.

Focusing “strict scrutiny” on the marriage ban, Murdock wrote, “There is no apparent compelling state interest in a statutory prohibition of same-sex marriage discriminating, on the basis of sex, against those individuals whose gender is identical to their intended spouses. Indeed, this Court is unable to even find that the prohibition of same-sex marriage rationally relates to a legitimate state interest.”

Thus, according to Murdock, the state failed even to meet the lowest legal hurdle for justifying a ban on gay marriage.

The state, confident that the court would not subject the statute to strict scrutiny, had failed to suggest a compelling interest. Apparently basing its strategy on recent mid-level appellate rulings rejecting marriage claims in Indiana and New Jersey, the state argued that the law was rational, and that the court should refrain from intervening in a public policy issue that should be decided by the Legislature and governor.

Murdock was having none of this, however, pointing out that in a strict scrutiny case, the burden is on the state to justify the statute.

Turning to the state’s rationality arguments, Murdock found them all unavailing. The state’s primary argument, which had proven successful, so far, in New Jersey and Indiana courts, was that the state has a legitimate interest in promoting “the traditional family unit” and “encouraging procreation and child-rearing within this traditional unit.”

“The Court concludes that the prohibition of same-sex marriage is not rationally related to the state interest in the rearing of biological children by married, opposite-sex parents,” responded Murdock. “Indeed, the prevention of same-sex marriages is wholly unconnected to promoting the rearing of children by married, opposite-sex parents.”

Murdock noted that the Massachusetts Supreme Judicial Court had reached the same conclusion in 2003 in its marriage decision.

She also rejected the claim that the state could prefer traditional families as a better vehicle for child-rearing, because, she said, such a conclusion must rest on “rational speculation,” and she found nothing rational about that bare conclusion in the absence of any evidence.

Murdock also rejected the argument that banning same-sex marriage was necessary to preserve “federal and interstate definitional uniformity,” another old chestnut that governments have been trotting out in support of marriage bans.

“Under Defendants’ analysis,” she wrote, “a denial of right, invalid under the Maryland Constitution, would be validated in Maryland when another state acted identically, engaging in conduct that would have been unconstitutional in Maryland except for the very fact of the other state’s action.”

This, she found in agreement with the plaintiffs, is contrary to our federal system, under which states are free to have differing legal approaches to policy issues.

Murdock rejected the argument that the limited recognition of same-sex partners already afforded under a few state laws was sufficient to meet the equality requirement.

“If these ancillary statutes make a married couple and a non-married couple essentially equivalent with respect to the effects of marriage,” she observed, “there simply is no rational reason to prevent the marriage.”

She noted that arguments based on tradition are ruled out by the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, which had rejected tradition and legislative moral judgments as grounds for criminalizing gay sex.

“The Court is not unaware of the dramatic impact of its ruling,” she wrote, “but it must not shy away from deciding significant legal issues when fairly presented to it for judicial determination.”

While granting the plaintiffs’ motion for summary judgment, Murdock wrote, “because of the nature of this action, and the logistical ramifications that may affect the Clerks’ Offices across the State of Maryland as a result of the Court’s decision, the operation of this Court’s order is stayed pending any appeal.”

Of course, the state will appeal, the bigger question being whether the political branches of the state government will attempt to intervene by proposing a constitutional amendment to the voters for ratification, and whether that could plausibly occur before an appeal is decided.

In at least two prior instances, in Hawaii and Alaska, trial court rulings in favor of same-sex marriage were ultimately lost by the enactment of state constitutional amendments while the state Supreme Courts dallied in considering the state’s appeal of those decisions. Early press reports indicated that a direct appeal to the state’s highest court, the Court of Appeals, may be possible in this case, and there is some hope that the Maryland Legislature will not push for a quick amendment.

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