Marriage Victory in Maryland

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Marriage Victory in Maryland

Special Report - September 20, 2007
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 which was filed by nine same-sex couples who had sought and been denied marriage licenses in various counties in Maryland. They challenged as unconstitutional the state’s definition of marriage contained in its Defense of Marriage Act (DOMA) that provides that: “[O]nly a marriage between a man and a woman is valid in this state.” In January 2006, a state circuit court ruled that denying marriage to the couples was “sex discrimination” and in violation of the state’s Equal Rights Amendment (“equality under the law may not be abridged or denied because of sex”).

The Maryland high court refused to apply the state’s Equal Rights Amendment to same-sex marriage, stating it was intended only to end discrimination against men or women as a class and “to remedy the long history of subordination of women in this country.” 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.”

On the issue of 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: “[W]e decline on the record in the present case to recognize sexual orientation as an immutable trait and therefore a suspect or quasi-suspect classification.” After acknowledging all the known studies, the court found that: “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….”

As to the claims that denying gays the right to marry violates equal protection and due process, the Court ruled that there is no fundamental right to same-sex marriage, because it is not “implicit in the concept of ordered liberty or deeply rooted in the history and tradition of Maryland.”

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.”

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. North Carolina Family Policy Council staff attorney Tami Fitzgerald stated, “While the Maryland decision is well-reasoned and certainly a victory for traditional marriage, it points out the need for a constitutional amendment in North Carolina that would put beyond the reach of a court or the General Assembly the power to redefine marriage. It is important that the North Carolina General Assembly pass a bill allowing the people of North Carolina to vote on a constitutional amendment that would once and for all define marriage as between one man and one woman at one time.”