Maryland Highest Court Narrowly Rejects Freedom To Marry Lawsuit

The Maryland Court of Appeals ruled 4-3 in the case of Conaway v. Deane (pdf) today that Maryland's marriage law survives multiple constitutional challenges. Mad Professah has been following this same-sex marriage case (as well as those in California, Washington, Oregon, New York, Iowa and New Jersey) closely while it has been winding it's way through the Maryland judicial system for the last few years. Specifically, the court ruled (in 240 pages!) today that:

CONSTITUTIONAL LAW - EQUAL RIGHTS AMENDMENT - MD. CODE (1957, 2006 REPL. VOL.), FAMILY LAW ARTICLE, § 2-201, (MARRIAGE IS BETWEEN A MAN AND A WOMAN ONLY) DOES NOT DISCRIMINATE ON THE BASIS OF GENDER

CONSTITUTIONAL LAW - EQUAL PROTECTION - SUSPECT AND QUASI-SUSPECT CLASSIFICATIONS - SEXUAL ORIENTATION IS NOT A SUSPECT OR QUASISUSPECT CLASSIFICATION

CONSTITUTIONAL LAW - DUE PROCESS - FUNDAMENTAL RIGHTS - THERE IS NO FUNDAMENTAL RIGHT TO MARRY A PERSON OF YOUR OWN SEX

CONSTITUTIONAL LAW - RATIONAL BASIS REVIEW - FAMILY LAW § 2-201 IS
RATIONALLY RELATED TO A LEGITIMATE GOVERNMENTAL OBJECTIVE

This summary basically means that the Maryland chapter of the ACLU and Equality Maryland (representing the plaintiffs, Gita Deane et al) lost on every point of law they raised. The first of these rulings is exactly the opposite of the famous Baehr v. Lewin case in Hawaii way back in 1993 and rejects the Andrew Koppelman-Sylvia Law legal argument that sexual orientation discrimination is itself a form of sex discrimination. The second decision by the Maryland Court is even more devastating, it is saying that lesbian and gay people do not form a ``suspect class" like racial and religious minorities and thus the lowest form of judicial review can be used to review laws which treat people of different sexual orientations differently. The reason? Because although lesbian and gay people are an "insular minority" that have been subject to discrimination through history they are not politically powerless! The third ruling, that there is no fundamental right to marry someone of the same sex is unsurprising because I know of no court which has accepted this argument (not even the successful gay marriage decisions in Baehr or Massachusett's Goodridge or New Jersey's Harris). The fourth decision follows from the first three, in that once you have rejected the legal legs the plaintiffs are standing on to challenge the statute, all the justices have to do is come up with a reason ``rationally related" to a legitimate government purpose to uphold the discriminatory law. The reason the judges came up with was the odious decision which showed up in both the Washington and New York cases: ``fostering procreation and the traditional family structure"(!)

The Baltimore Sun quoted from the dissent by Chief Judge Robert M. Bell, whom they noted is African American,

Bell said sex-based classifications are analogous to race-based classifications.

"It, therefore, is clear that an equal application approach cannot render constitutional a discriminatory sex-based classification," Bell wrote.

Bell, who is black, said: "To be sure, there are important differences between the African American experience and that of gay men and lesbians in this country, yet many of the arguments made in support of the anti-miscegenation laws were identical to those made today in opposition to same-sex marriage."

Someone needs to give that man a medal! Well, I guess the decision makes tonight's rally in favor of marriage in Hollywood even more important!