Maryland Court Decision Summary

« Maryland Marriage Decision
Divided Maryland High Court Rejects Same-Sex Marriage Claim
by Arthur Leonard Leonard Link
In a ruling sharply reminiscent of last year’s decision by the Washington State Supreme Court, which was similarly sharply divided, the Maryland Court of Appeals, that state’s highest court, ruled by a vote of 5-2 on September 18 that the state’s denial of the right to marry to same-sex couples does not violate the Maryland constitution. By an even narrower vote, 4-3, the court also implicitly ruled that same-sex couples are not constitutionally entitled to the rights and benefits associated with marriage through some alternative arrangement, such as a civil union.
Writing for a majority of the court, Judge Glenn T. Harrell, Jr., rejected the reasoning that had been adopted in January 2006 by Baltimore Circuit Judge M. Brooke Murdock, who had found that the state’s policy violated the Equal Rights Amendment (ERA), Article 46 of the Maryland Constitution. The ERA, adopted in 1972, provides that "Equality of rights under the law shall not be abridged or denied because of sex." The Maryland courts have ruled that state laws that discriminate based on sex are subject to strict scrutiny on judicial review, meaning they will only be upheld if they are necessary to achieve a compelling government interest and are narrowly tailored to achieve that interest.
The plaintiffs, nine same-sex couples who had been denied marriage licenses and one gay single man with future marital hopes who were represented by the ACLU Lesbian and Gay Rights Project, argued their case based on the ERA as well as other provisions of the Maryland Constitution guaranteeing equal protection and due process of law, but Circuit Judge Murdock had focused on the ERA, finding that because the right to marry turned on the sex of the parties, the law created a classification based on sex subject to strict scrutiny, and that the state had failed to show that the discrimination was necessary to achieve a compelling interest.
In rejecting this holding, Judge Harrell’s decision embraced an interpretation of the ERA that the dissenters claimed was contradictory to its past interpretation by Maryland courts. Harrell reasoned that because the statute equally barred both men and women from marrying partners of the same sex, it was not discriminatory on the basis of sex, pointing to contemporary news reports about the debates at the time of its passage indicating that its proponents were motivated by a desire to end discriminatory treatment of women as compared to men. "Based on our precedents interpreting Article 46, 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."
Explaining his conclusion that the marriage statute did not violate this non-discrimination requirement, Harrell wrote, "The limitations on marriage effected by Family Law Section 2-201 do not separate men and women into discrete classes for the purpose of granting to one class of persons benefits at the expense of the other class. Nor does the statute, facially or in its application, place men and women on an uneven playing field. Rather, the statute prohibits equally both men and women from the same conduct. . . To accept Appellees’ contention that Family Law section 2-201 discriminates on the basis of sex would be to extend the reach of the ERA beyond the scope intended by the Maryland General Assembly and the State’s voters who enacted and ratified, respectively, the amendment."
This brought a sharp rejoinder from Judge Lynne A. Battaglia, whose dissent was joined by Chief Judge Robert M. Bell. Battaglia devoted almost half of her eighty-page dissenting opinion to a thorough review of the past Maryland cases interpreting the ERA, concluding that any statute that classifies people based on their sex is subject to strict scrutiny review. Battaglia and the Chief Judge agreed with Circuit Judge Murdock that strict scrutiny was the appropriate standard here, that the state could not prove a compelling interest, and thus that same-sex couples are entitled to equal marriage rights.
For Judge Harrell, however, this was more properly viewed as a sexual orientation discrimination case and, following the approach that most lower courts have embraced, he concluded that such discrimination invokes only the rationality test, under which legislation is presumed to be constitutional and the burden is on challengers to demonstrate its irrationality. Referring to the recent successes of the gay rights movement in Maryland in getting legislation passed, most notably the law against discrimination, he rejected the content that sexual orientation should be considered a "suspect classification" under which such discrimination would invoke strict scrutiny judicial review. He also rejected the argument that the plaintiffs’ claim involved a "fundamental right," arguing that the issue should be evaluated based on the particular claim for same-sex marriage rather than the more general claim that same-sex couples have a right to marry. (If the difference between those two seems a matter of semantics, then welcome to the fantastical world of constitutional argument.)
Ultimately, Harrell’s opinion trod the well-worn path now familiar from adverse marriage decisions in Washington, Indiana, and New York, focusing on the unquestioned assertion that only different-sex couples can conceive children through sexual intercourse with each other. "The question remains whether there exists a sufficient link between an interest in fostering a stable environment for procreation and the means at hand used to further that goal, i.e., an implicit restriction on those who wish to avail themselves of State-sanctioned marriage," he wrote. "We conclude that there does exist a sufficient link," noting that in Loving v. Virginia, the U.S. Supreme Court decision from 1967 striking down a criminal prohibition on mixed-race marriage, the Court had referred to marriage as "fundamental to our very existence and survival." "This ‘inextricable link’ between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only," he continued, "because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding)."
Harrell bolstered his opinion by citations to the prior decisions denying same-sex marriage claims, most of which have emphasized procreation as a central feature of marriage. While Harrell acknowledged statistics showing that the traditional nuclear family was a declining proportion of all families, and that many children are now being raised by same-sex adult partners, as well as the fact that many different-sex couples marry without having children, he nonetheless concluded that "so long as the Legislature has not acted wholly unreasonably in granting recognition to the only relationship capable of bearing children traditionally within the marital unit, we may not ‘substitute [our] social and economic beliefs for the judgement of legislative bodies.’"
Harrell ended his 109 page decision by indicating that the 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 Battaglia’s dissenting opinion echoed some of the Washington State dissenters, and the partial dissenters on the New Jersey Supreme Court who had argued that state constitutional equality requirements demanded opening up marriage to same-sex partners. "The correspondence between opposite-sex marriage and biological necessity has never been more tenuous that it is today," she wrote. "What has always been an imperfect fit between marriage and procreation is now called into question." She pointed out that the state’s procreation arguments had not been subjected to strict scrutiny by any appellate court majority, since the past decisions had all treated the question as one of rationality. While these arguments might satisfy the deferential rational basis test as applied by the Maryland court majority, she argued that they could not survive strict scrutiny, which she argued was the appropriate test under the state ERA.
In his brief separate dissenting opinion, Chief Judge Bell quoted extensively from the 2006 dissenting opinion by New York’s Chief Judge, Judith Kaye, in Hernandez v. Robles, pointing out the actual irrationality of attempting to justify the exclusion of same-sex couples from marriage by citing the state’s interest in bolstering the reproductive activities of different-sex couples. He argued that "it is disingenuous indeed to surmise that the ‘possibility of procreation’ creates a reasonable relationship in this context. As simply put by Chief Judge Kaye, ‘marriage is about much more than producing children,’ and yet the majority leaves open gaping questions such as ‘how offering only heterosexuals the right to visit a sick loved one in the hospital . . . conceivably furthers the State’s interest in encouraging opposite-sex couples to have children."
"The sheer breadth of the benefits appurtenant to marriage that are, pursuant to Family Law section 2-201, made unavailable to same-sex couples renders justification ‘impossible to credit,’" he concluded, again quoting Judge Kaye.
Judge Irma S. Raker tried to carve out a middle ground. She argued in her separate opinion that the New Jersey Supreme Court had adopted the appropriate analysis and had come up with the appropriate remedy. Echoing the majority opinion in last year’s Lewis v. Harris ruling from that state, she argued that the issue of the rights and benefits of marriage should be analyzed separately from the issue of the right to marry as such, and concluded that same-sex couples are constitutionally entitled to the former but not the latter, as she agreed with the Maryland majority on the right-to-marry question.
To get to this point, she conceived of the discrimination at issue as being between similarly situated "committed same-sex couples" and "married opposite-sex couples" – at least, similarly situated with respect to the various rights and benefits that are provided by the state through marriage. She could find no rational justification for the state to distinguish between these two classes of couples with respect to such rights and benefits, especially in light of the family law developments in Maryland under which same-sex couples already enjoy a fair number of parental rights as a result of particular court decisions.
"Despite the fact that Maryland provides some rights and benefits in the area of procreation to same-sex couples," she wrote, "the State asserts it has a rational basis for excluding same-sex couples from the _full_ benefits of marriage. This is not a rational assertion. There is no doubt that the State has a legitimate interest in promoting procreation and child rearing, but it cannot rationally further this interest by only granting the full rights of marriage to opposite-sex couples when it _already_ provides some legal protections regarding procreation and child rearing to same-sex couples. Maryland’s equal protection jurisprudence requires that a legislative distinction _reasonably_ relate to the achievement of a legitimate State interest. Here, where Maryland has granted _some_ rights regarding procreation and child-rearing to same-sex couples, it cannot rationally claim that its interest in providing a stable environment for procreation and child rearing is then actually furthered by the exclusion of same-sex couples from the equal rights and benefits of marriage."
Judge Raker found it "striking. . . that the State’s proffered interest - providing a stable environment for procreation and child rearing – is actually compromised by denying same-sex families the benefits and rights that flow from marriage. That is, there is not a sufficient link between the State’s proffered legitimate interest and the means utilized by the State to further that interest."