Maryland’s high court hears gay marriage argument

Posted on 07 Dec 2006 at 8:03pm
By Ann Rostow Contributing Writer

Attorney for plainntiffs presents reasoned, cohesive arguement; state’s case appears seattled

The gay marriage spotlight has now fallen on the Maryland Court of Appeals, where the seven judges of the state’s highest court heard oral arguments in a same-sex marriage case on Monday.

According to press reports, Maryland’s court is considered one of the more liberal high courts in the country. But such evaluations are not particularly useful when it comes to the contentious issue of same-sex marriage, arguably one of the most politically difficult subjects a modern court can face.

New Jersey’s high court also had a strong civil rights reputation, yet last October a majority fell short of ordering equal marriage laws, preferring instead to let the state legislature opt for a civil union plan.

The Maryland judges gave away little during Monday’s arguments, remaining mostly silent on the bench save for a few questions that provided scant indication of their views as a whole. With a relatively new Web camera recording the hearing live, it’s possible that the justices were camera- shy, or at least aware of their expanded audience.

Speaking for the American Civil Liberties Union and its 19 plaintiffs, attorney Kenneth Choe argued that the court should apply a strict level of judicial review rather than the baseline “rational basis” test. Courts are obliged to apply a strict review when a law burdens a “fundamental” right, or when a law discriminates against a suspect class of people, essentially those who have historically been victims of bias for reasons that have nothing to do with their ability to contribute to society.

Strict scrutiny, in turn, requires the state to demonstrate that a law is narrowly tailored to serve a compelling state interest. The easier test, by contrast, merely obliges the plaintiff to show that a law bears no rational relationship to a legitimate state interest.

Discriminatory marriage laws have generally managed to squeak under the lower bar, but applying strict scrutiny to the denial of marriage rights is fatal to the state’s case.

Choe split his 30-minute allotment into a discussion of three reasons why the marriage case deserved heightened scrutiny:

First, marriage is an acknowledged fundamental right, upheld by the Supreme Court as such in cases involving interracial couples, incarcerated prisoners and deadbeat dads.

Second, the denial of marriage to same-sex couples amounts to classic sex discrimination, preventing an individual from marrying the person of his or her choice on the basis of gender, a suspect class.

Finally, Choe told the court that same-sex couples arguably represent a suspect class as well, despite the fact that few courts have put gays and lesbians into this highly significant legal category.

(If they had, gay rights law would be a downhill slide rather than an uphill battle.)

In contrast to Choe’s well-organized presentation, the lawyer for the General Assembly, Robert Zarnoch, began the hearings by making successive points that were not connected to an over-arching legal theory.

The lower court in this case had ruled that the marriage law was an unconstitutional violation of the state’s Equal Rights Amendment, impermissibly discriminating on the basis of gender. While Judge M. Brooke Murdoch remained silent on the other constitutional issues such as fundamental rights and sexual orientation discrimination, these questions were still before the court. Nonetheless, Zarnoch undertook a lengthy historical analysis of the Maryland Equal Rights Amendment, as well as the federal version, insisting that the lawmakers who considered the law against sex bias never anticipated that it could lead to same-sex marriage rights.

The legislative intent behind the ERA was interesting, but arguably not central to the case before the justices.

Zarnoch also made much of the fact that “17 other courts” had ruled against marriage plaintiffs, and that no court of appeal had ever acknowledged that gay couples had a fundamental right to marriage. At one point when Chief Judge Robert Bell asked whether these numbers should carry any weight with the court, Zarnoch was forced to admit that they should not.

Like other marriage opponents, Zarnoch suggested that the state’s interest in steering accidental families into marriage was enough of a reason to restrict the institution to heterosexual couples.

As for the fundamental right to marry, like many before him, he insisted that because marriage was inherently heterosexual, the fundamental right in question did not extend to same-sex couples.

Zarnoch also argued that gays could not be considered a suspect class because they did not lack political power. And finally, he maintained that the sex restrictions on marriage applied equally to men and women and thus could not be considered discrimination. Choe, in turn, made the standard case for marriage rights with non-standard eloquence. A fundamental right, he told the court, is defined by the right itself, not the people who have historically enjoyed it. An equal protection analysis, he went on, must examine not just the reasons for including the favored group, but the reasons for excluding the disfavored group.

Can a state limit marriage to right-handed people because right-handed people and their families are better off married than not, Choe asked. Not without a clear reason for excluding left-handed people, he said in answering his own question.

In this case, as in others we’ve seen this year, the state argues that marriage improves life for heterosexual couples and their offspring, planned or unplanned. But how on earth, gay advocates continue to ask, does a ban on same-sex marriage contribute to that worthy goal?

According to the ACLU, the Maryland court could rule in three weeks, or in a year or so. Given the long lag times of other courts (with the notable exception of New York) we might start looking for a decision next summer.

Meanwhile, Connecticut’s high court will hear oral arguments this spring, and California’s justices will decide whether to review the Golden State’s marriage law by Feb. 14.

This article appeared in the Dallas Voice print edition, December 8, 2006.

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