Gay marriage wars move to Court of Special Appeals, legislature

John Lestitian, a 40-year-old plaintiff in the case brought by 19 gay and lesbian Marylanders challenging the state's one-man, one- woman definition of marriage, won't be celebrating Friday's circuit court victory with his partner of 13 years, James Bradley. Bradley died in 2003 - too soon to witness what his partner, and many others, described as an important first step towards granting same- sex couples the protections of marriage. While Baltimore City Circuit Judge M. Brooke Murdock's decision striking down Maryland's statutory definition of marriage comes too late for Bradley, it was not too late for Lestitian.The hope that one day we will [all] be protected gives me hope as I rebuild my life, the City of Hagerstown employee said Friday. Someday, when it happens again, I need to know that the person I love will be protected; today we are a step closer to that. One step, down quite a long road. Murdock's 20-page decision invalidating Maryland's statutory prohibition against same- sex marriage has been stayed pending appeal; the attorney general's office said Friday that an appeal has been noted to the state's intermediate court, the Court of Special Appeals.A decision there could easily take a year or more, according to ACLU staff attorney Kenneth Y. Choe, who argued the case for the plaintiffs in the circuit court last August. After that, the losing side is likely to seek review by the state's highest court.We always knew the case would be decided by the Court of Appeals, said Choe, who relished his victory nonetheless. The most important thing is what it means for lesbian and gay families across Maryland; they need protections that married couples and families enjoy.For Lestitian, a plaintiff- friendly outcome means that same-gender surviving spouses would not have to be forced to negotiate with a partner's family over funeral arrangements, as he had to do.We were a valid family, he said. In our hearts and minds, we were married.For Jodi Kelber-Kaye, a professor at University of Maryland, Baltimore County, and Stacy Kargman-Kaye, a naturopathic physician, it means one of them would be able to get health insurance for the couple and their two children as a family unit. It means they would have unlimited access to each other in a medical setting, and that it would be easier to get recognized as a viable family unit - for example, by the school system.Others have gone down this road, Kelber-Kaye said, referring to Massachusetts same-sex couples who have gained the right to marry. I'm following in some lovely footsteps.But Reverend Richard C. Bowers, chairman of Defend Maryland Marriage, said the case never should have been heard in court at all. Last year, our position was all about the issue; this year, it's all about the process, he said. Lawmakers make the laws and our lawmakers felt no constitutional amendment [banning same-sex marriage] was necessary [last year] because they had confidence in the law.Bowers says his main priority, now, is to see that the General Assembly put the constitutional amendment on the ballot in November to be settled once and for all.Marriage Protection ActA new Marriage Protection Act, prefiled in September, would add a section to the Maryland Constitution to establish that only a marriage between a man and a woman is valid in the State. It would submit the amendment to the voters for their adoption or rejection. Hearings will be held in the House Jan. 31.Bill sponsor Del. Donald H. Dwyer Jr., R-Anne Arundel, called it a sad day for Maryland, asserting further that the circuit court was acting outside its constitutional authority by not issuing an opinion within 60 days. I've worked on a lot of significant cases, and I'd have to rank this at the top, Andrew H. Baida, one of the plaintiffs' attorneys, said Friday - noting that he wasn't particularly concerned with any threats by opponents to get a constitutional amendment. One battle at a time, he said. Discrimination for the sake of discrimination is not a constitutionally sufficient justification for treating these families differently. That's a principle we'll continue to fight for.The case, Deane & Polyak v. Conaway, was brought in 2004 by the American Civil Liberties Union on behalf of nine same-sex couples and Lestitian, against five Maryland circuit court clerks. The case was argued in August 2005. The plaintiffs, who were denied marriage licenses in the courts, claimed there was no sufficient justification for Maryland's statutory definition of marriage. Judge M. Brooke Murdock, to their delight, agreed on Friday.After much study and serious reflection, this Court holds that Maryland's statutory prohibition against same-sex marriage cannot withstand this constitutional challenge, Murdock wrote. Family Law Section 2- 201 violates Article 46 of the Maryland Declaration of Rights because it discriminates, based on gender, against a suspect class; and it is not narrowly tailored to serve any compelling governmental state interest.A sex-based classification, the court noted, implicates the Equal Rights Amendment, imposing a strict-scrutiny analysis. Not only is there no compelling state interest in a statutory prohibition of same-sex marriage, the judge concluded, there is not even a rational relation (a lower standard than strict scrutiny) to a legitimate state interest such as promoting procreation, child rearing, and the best interests of children. It further rejected the defendants' contention that there was no sex- based classification if the prohibition applied equally to men and women. The relative genders of the two individuals are facts that lie at the very center of the matter, Murdoch wrote. Those whose genders are the same as their intended spouses may not marry, but those whose genders are different from their intended spouses may. Even within her opinion, Murdock acknowledged the storm that was likely to follow.The Court is not unaware of the dramatic impact of its ruling, but it must not shy away from deciding significant legal issues when fairly presented to it for judicial determination, the judge wrote. WHAT THE COURT HELDCase:Deane & Polyak v. Conaway, Baltimore City Circuit Court No. 24-C-04-005390. Published. Opinion by Murdock, J. Decided Jan. 20, 2006.Issue:Is Family Law Article Section 2-201, defining a marriage as between one man and one woman, a violation of the Maryland Declaration of Rights?Holding:Yes. The provision discriminates based on gender against a suspect class and is not narrowly tailored to serve any compelling governmental interest.Counsel:Andrew H. Baida, Caroline D. Ciraolo, Kenneth Y. Choe, James D. Esseks, David R. Rocah and Arthur B. Spitzer for plaintiffs; J. Joseph Curran Jr., Margaret Ann Nolan, Steven M. Sullivan, Robert A. Zarnoch and Kathryn M. Rowe for defendants.

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