Maryland High Court Stands for Marriage

Family North Carolina Magazine—Nov/Dec 2007

by Tami Fitzgerald

In a stunning defeat for proponents of same-sex marriage, the Maryland Court of Appeals (the state’s highest court) issued a decision on September 18, 2007 affirming marriage as a union between one man and one woman. Conaway v. Deane is the case that was filed by nine same-sex couples who had sought and been denied marriage licenses in various counties in Maryland. State law requires that no individual can marry “in the state without a license issued by the clerk for the county in which the marriage is performed.” In each county where these nine couples sought marriage licenses, the court clerk denied the application on the basis of Maryland’s Defense of Marriage Act (DOMA) that provides: “[O]nly a marriage between a man and a woman is valid in this state.”

The nine couples filed suit against the court clerks, challenging as unconstitutional the state’s definition of marriage contained in its DOMA. They claimed that the marriage law: (1) unconstitutionally discriminates based on sex, in violation of Maryland’s Equal Rights Amendment (ERA), (2) unjustifiably discriminates based on sexual orientation in violation of equal protection, and (3) inhibits the same-sex couples’ fundamental rights to marry in violation of the equal protection clause and due process. In January 2006, a state circuit court ruled that denying marriage to the couples was “sex discrimination” and in violation of the state’s ERA, which provides that: “equality under the law may not be abridged or denied because of sex.” The Maryland high court agreed to hear the case, and the ruling was stayed pending the appeal.

The Maryland high court refused to apply the state’s ERA to same-sex marriage, stating it was intended only to end discrimination against men or women as a class. When the General Assembly and the voters of Maryland enacted the ERA in 1972, they did not intend for the law to apply to classifications based on sexual orientation, but on disparate treatment of men and women. The court stated: “Its [the ERA’s] primary purpose was to remedy the long history of subordination of women in this country, and to place men and women on equal ground as pertains to the enjoyment of basic legal rights under the law.” The Court reasoned that since Maryland’s marriage laws “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,” the statute does not “place men and women on an uneven playing field. Rather, the statute prohibits equally both men and women from the same conduct [same-sex marriage].” Therefore it did not constitute “sex discrimination.” The Court noted that its decision on the ERA is in line with courts of other states which have refused to apply the ERA to same-sex marriage.

In ruling on the contention that the Maryland DOMA violated the equal protection and due process rights of same-sex couples, the Court looked at whether a strict scrutiny should be applied to the distinction between heterosexuals and homosexuals in their ability to marry. The Court reviewed indicia of suspect classes used by the Supreme Court: (1) immutable or distinguishing characteristics that define the groups as a discrete minority, (2) historically unequal treatment or political powerlessness, and (3) stereotypical characteristics not truly indicative of their abilities. It noted that while the Supreme Court has routinely characterized distinctions based on race, alienage, and national origin as suspect classes, it has not addressed sexual orientation as a suspect class requiring strict scrutiny. The Court acknowledged that the Maryland DOMA clearly draws a distinction based on sexual orientation but refused to label sexual orientation as a suspect classification warranting increased scrutiny.

Noting that, “While there is a history of purposeful unequal treatment of gay and lesbian persons, and homosexual persons are subject to unique disabilities not truly indicative of their abilities to contribute to society,” the Maryland court ruled that gays and lesbians are not so politically powerless that they constitute a suspect class. The Court went into great detail about the prejudice and legal disabilities historically experienced by homosexuals. It concluded, however, that, in light of recent legislative and legal gains in Maryland, such as prohibiting discrimination on the basis of sexual orientation in the areas of public accommodation, employment, housing, and education: “a history of unequal treatment does not require that we deem suspect a classification based on sexual orientation.”

In addressing whether sexual orientation is an immutable characteristic (i.e. defined as “a human characteristic that is determined ‘solely by the accident of birth’”), the Court declared: “Based on the scientific and sociological evidence currently available to the public, we are unable to take judicial notice that gay, lesbian, and bisexual persons display readily recognizable, immutable characteristics that define the group.” Noting in a footnote all the specific scientific and sociological studies presented, the Court stated that none of them conclusively support an argument that sexual orientation is an immutable characteristic. The Court concluded:

“In the absence of some generally accepted scientific conclusion identifying homosexuality as an immutable characteristic, and in light of the other indicia used by this court and the Supreme Court in defining a suspect class, we decline on the record in the present case to recognize sexual orientation as an immutable trait and therefore a suspect or quasi-suspect classification.”

Further, the Court ruled that there is no fundamental right to same-sex marriage guaranteed by due process. Fundamental rights are those that are “‘so rooted in the traditions and conscience of our people’ that they are considered ‘implicit in the concept of ordered liberty.’” Recognizing a fundamental right to marry, the Court noted that it is and always has been subject to regulation by the State, including the requirement that it be limited to heterosexuals. Furthermore, previous cases recognizing a fundamental right to marry “infer that the right to marry enjoys its fundamental status due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species.” By definition, then, the right to marry is based on the heterosexual nature of the participants, as explained by the Court:

“[V]irtually every Supreme Court case recognizing as fundamental the right to marry indicates as the basis for the conclusion the institution’s inextricable link to procreation, which necessarily and biologically involves participation by a man and a woman.”

The State’s interest in fostering procreation was found by the Court to be a legitimate governmental interest in limiting marriage to heterosexual couples. It stated: “This ‘inextricable link’ between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is the relationship that is capable of producing biological offspring of both members.”

While firmly ruling against same-sex marriage, the Maryland court acknowledged the personal concerns of same-sex couples. It said:

“We are not unmindful of the fact that the relationships gay, lesbian, and bisexual persons seek to enter involve intimate and private decisions that extend to the core of the right to personal autonomy. Those decisions do not necessarily require us or the State to recognize formally those relationships in the form of State-sanctioned marriage.”

The Maryland decision is explained in a 109-page opinion and leaves open the question of legislative recognition of same-sex marriage or civil unions. The decision in Conaway v. Deane will likely be very influential in other states that find themselves defending their DOMAs in court. While the Maryland decision is well-reasoned and certainly a victory for traditional marriage, it points out the need for a constitutional amendment that would put beyond the reach of a court or the legislature the power to redefine marriage.

Even though North Carolina, like Maryland, has a DOMA, it is subject to being challenged in court. A constitutional amendment that would once and for all define marriage as between one man and one woman at one time would settle this issue in North Carolina.

Tami L. Fitzgerald is staff attorney with the North Carolina Family Policy Council.