Court of Appeals says since gays not considered “‘suspect class,’ government only needs to meet lowest standard
 |
| Dan Furmansky |
The supreme court of Maryland on Sept. 18 reversed a lower court decision which had found a constitutional right for gay couples to marry, making Maryland the fifth state high court to uphold bans on gay marriage in the past two years.
But it was apparently no easy decision for the Maryland Court of Appeals to reach. The seven-member bench all but one of whom is a Democratic appointee was deeply divided and rendered its decision by a 4-to-3 margin with an unprecedented 244 pages of discussion.
Maryland did not pass a specifically anti-gay marriage statute, like many states, but the ACLU lawsuit, Conaway v. Deane, challenged the state’s law which, in 1973, defined marriage as being only between a man and a woman. The ACLU argued that the restriction amounted to sex discrimination against gay people.
But the majority upheld the law as written, and concluded that, because gay people have never been legally designated as a “suspect class” or oppressed minority the government did not need to show any compelling reason for denying them equal treatment under the marriage law. Instead, said the majority, all the government needed to show was a simple rational reason the lowest level of review for the statute.
The majority concluded that the government’s reasoning that it issues licenses to heterosexual couples in order to foster procreation and encourage the traditional family structure is plausible. And because that claim is plausible, said the majority, the court has no need to take judicial action against the law.
Gay civil rights supporters were dismayed.
Human Rights Campaign President Joe Solmonese called the decision a “setback.” National Gay and Lesbian Task Force Executive Director Matt Foreman called it “demeaning.”
Equality Maryland’s Dan Furmansky pledged to continue the fight and called on the state legislature to rewrite the law. That same day, Democratic State Sen. Gwen Britt announced she would introduce legislation next year to allow same-sex couples to marry, assuring the fight would now move to the state legislature.
State Sen. Richard Madaleno, who is openly gay, said he also plans to introduce a bill to allow same-sex marriage. He also expects a proposal to create civil unions.
But gay marriage opponents in the legislature said they would come out fighting, too. Don Dwyer, one of the General Assembly’s most conservative members, said he would introduce a constitutional amendment banning gay marriage as “insurance.”
Lawmakers have approved a law barring discrimination based on sexual orientation.
Ken Choe, the ACLU attorney who argued on behalf of the gay couples, expressed hope that, unlike the majority of the bench, the legislature would be able to see “that lesbian and gay couples form committed relationships and loving families just like heterosexual couples.”
The Maryland Court of Appeals majority decision essentially parroted the harsher of two models for state supreme court decisions that have been emerging on gay marriage since 1999. That harsher model carved out by the supreme court of New York in July of last year finds nothing in the state constitution to require equal treatment of same-sex couples when it comes to marriage licensing. And it uses the lowest level of legal review to determine whether the state has a legitimate reason to treat gay couples differently.
That level of review requires only that the government’s reason be “rational.”
In New York’s case, the court accepted as rational the state’s claim that the marriage law was intended to provide a special “inducement” for heterosexuals to marry.
That model was essentially adopted by the Washington Supreme Court later in 2006 when it said “the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents.”
Maryland argued that the purpose of the state’s marriage law was “fostering procreation and encouraging the traditional family structure.”
The second model initiated by the Vermont Supreme Court in 1999 finds that the state’s constitution requires gay couples be treated equally but allows the equal treatment to be delivered through a different means than “marriage” licensing. New Jersey adopted that approach in October of last year with its ruling in Lewis v. Harris.
A decision on a similar case is now pending in the Connecticut Supreme Court and will be argued soon in the California Supreme Court.
The Associated Press contributed to this report.
This article appeared in the Dallas Voice print edition September 21, 2007