Same-sex marriage on MD state's agenda - Top Stories - (HometownAnnapolis.com)

Same-sex marriage on state's agenda - Top Stories - (HometownAnnapolis.com)

Same-sex marriage on state's agenda
County will be at center of legislature's marriage debateBy LIAM FARRELL, Staff Writer
Published October 14, 2007
When the Court of Appeals overturned a gay marriage ruling last month, it made sure to say the General Assembly could still take up the issue.
And two Anne Arundel County legislators will be seizing that chance for different sides of the debate.
Del. Ben Barnes, D-College Park, will sponsor a bill to allow gay couples to have civil marriages.
"(The court's decision) is their legacy, not ours," Mr. Barnes said this week. "The court failed to act with courage and conviction and it absolutely opens up an opportunity to act."
The legislation will be focused on granting gay couples the same rights as heterosexual couples, Mr. Barnes said, such as pension benefits, health care coverage, and hospital visitation rights.
Religious organizations would not be required to perform any marriage service for homosexual relationships, the delegate said.
"It is completely about treating different classes of people equally under the law," Mr. Barnes said. "When government gives rights and privileges, we have to do it uniformly."
Whether the bill could pass the Senate is questionable because Senate President Thomas V. Mike Miller, Jr., D-Calvert, is an opponent of civil unions.
But other powerful politicians are supportive of expanding rights.
Both Gov. Martin O'Malley and House Speaker Michael E. Busch, D-Annapolis, support civil unions - a different classification than civil marriages - for homosexual couples, although gay rights activists are quick to caution creating that new legal class could still endanger or limit their marriage benefits.
Mr. O'Malley will meet with Equality Maryland, an advocacy group for gay, lesbian, bisexual and transgender people, in the next few weeks to discuss the issue, spokesman Rick Abbruzzese said
"(Mr. O'Malley) will advocate for civil unions bill … (so) all Marylanders are treated equally under Maryland state law," Mr. Abbruzzese said.
But on the other side, Del. Don Dwyer, R-Glen Burnie, plans to file a bill to create a constitutional amendment prohibiting same-sex marriages and civil unions.
Such legislation, if passed, would have to be approved by voters.
"This issue is so important, the people of the state have to be able to vote on it," said Mr. Dwyer, a vociferous opponent of same-sex marriage.
Mr. Dwyer put a similar bill in during the last General Assembly session. Although it received an unfavorable report from the House Judiciary Committee, it was supported by every other Republican delegate in Anne Arundel County: Bob Costa, Ron George, James King, Nic Kipke, Tony McConkey and Steve Schuh.
But the delegate doubts any marriage bill on either side of the debate will come out of committee because many politicians do not want to deal with such a controversial issue.
"As long as we don't act one way or the other, politicians aren't put at risk," he said. "I'm willing to lay my service on the line."
The problem with same-sex marriage and civil unions is that the government would be giving rights based on private sexual behavior, Mr. Dwyer said - behavior that could then be taught in public schools as normal.
"It shouldn't be taught to the children of my constituents in a public setting," he said.
The ruling
Maryland's gay marriage case - also known as Frank Conaway, et. al., v. Gitanjali Deane, et. al. - came to the Court of Appeals of Maryland after the Circuit Court of Baltimore City found the state's Family Law Article violated the Equal Rights Amendment to the Maryland constitution.
The Family Law Article says "only a marriage between a man and a woman is valid in this state" while the ERA says "equality of rights under the law shall not be abridged or denied because of sex."
Although the case was about gay marriage, much of the majority and minority opinions are dedicated to the intent of the ERA.
In the majority opinion, written by Judge Glenn T. Harrell, Jr., the court holds a ban on gay marriage is not a constitutional violation because it applies equally to both sexes - i.e., a man cannot marry another man, and a woman cannot marry another woman.
Sexual orientation does not constitute a "suspect or quasi-suspect classification," the majority opinion states, because the gay community has enjoyed an "increasing political coming of age;" there is no scientific or other evidence homosexuality is an "immutable characteristic;" and same-sex marriage is not a fundamental right like heterosexual marriage because it is not linked to procreation and, therefore, human survival.
Because sexual orientation does not meet that test, the Family Law article is only given a "rational basis review." Under that term, the court can only overturn a law if the government's actions were irrational and it is assumed the state acted constitutionally even if some inequality has occurred.
Ultimately, the majority opinion finds Maryland has a legitimate public interest in encouraging heterosexual marriage because it is "uniquely capable" of producing children.
"We are unwilling to hold that a right to same-sex marriage has taken hold to the point that it is implicit in the concept of ordered liberty or deeply rooted in the history and tradition of Maryland," the majority opinion states.
But the majority's opinion is very "myopic" when it comes to its interpretation of the ERA and the importance of marriage, said Jana Singer, a professor at the University of Maryland School of Law.
Allowing men and women to be considered as classes is contrary to the purpose of state and federal protection laws that are meant to safeguard people as individuals, Ms. Singer said.
That point is echoed in a dissent written by Judge Lynne A. Battaglia, who decries the majority's opinion as supporting a "separate but equal" society.