From Gay City News:
Focusing “strict scrutiny” on the marriage ban, Murdock wrote, “There is no apparent compelling state interest in a statutory prohibition of same-sex marriage discriminating, on the basis of sex, against those individuals whose gender is identical to their intended spouses. Indeed, this Court is unable to even find that the prohibition of same-sex marriage rationally relates to a legitimate state interest.”
Thus, according to Murdock, the state failed even to meet the lowest legal hurdle for justifying a ban on gay marriage.
This pleases me immensely, not just because it’s a victory, but because judge based her decision on a theory of sex discrimination.
Of course, this is a lower court, so it doesn’t mean that much; the decision has been stayed pending appeals. The big question is, will anti-marriage-equality forces manage to push through a constitutional amendment banning same-sex marriage before the Maryland Supreme Court ever hears the case? Amending the Maryland Constitution is not especially hard (at least, not compared to Massachusetts) – 60% of both houses of the state legislature must approve of the amendment, and once that happens a majority of the voters has to vote for it – so, unfortunately, marriage equality opponents have a pretty good shot. The Maryland House of Reps will be holding hearings January 31st to discuss this court ruling; no doubt someone will propose a Constitutional amendment at that time.
One sliver of hope: the Maryland state legislature is dominated by Democrats (House: 98-43, Senate: 33-14), so maybe there’s a small chance of defeating the anti-SSM amendment, or at least slow-tracking it.
Judge Murdock’s decision can be read here (pdf file).
UPDATE: Here’s a Washington Post article on the reaction among Maryland’s politicians. Shorter version of story: Democrats are fightened and hoping that the Maryland Supreme Court will overturn this decision (what wonderful allies Democrats are!); the Republicans are delighted and hoping that a ballot measure constitutional amendment will bring their voters to the polls. It’s not clear what the Maryland Supreme Court will decide on this issue.
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what really rocks is this tidbit from the decision, which is so obviously true it should be spraypainted on every anti-gay-rights organization’s walls and forbidden from being removed:
what could be more persuasive? (sadly, i doubt anyone vehemently opposed to same-sex marriage would be persuaded, but it’s persuasive, dammit!)
As a right wing conservative Christian I don’t like to agree with my leftist friends very often, but in this case I do. I am not a fan of celebrating homosexuality, but I believe homosexuals give no threat or harm to anyone around them, and there is no reason to have laws against or for their behavior. Gays shouold not be discriminated, and they should not be protected.
As far as the courts offering their lame opinions, I am never impressed that they are judging anything with impartiality or with any regard to the constitution. So I really struggle to give an opinion on what the courts should do.
I’ve been thinking of this along similar lines for a few months now . . . men get to marry women, so women should be allowed to as well, and women get to marry men, so men should be allowed to as well. Awesome to hear a judge come up with the same opinion.
Go Maryland!
Just skimming this blog (which is great btw) and thought I would point interested readers to a helpful and relevant discussion of the “discrimination against gays as sex discrimination” argument by philosopher David Benatar:
http://www.apa.udel.edu/apa/archive/newsletters/v97n1/law/samesex.asp
In short, the argument is cute & neat, but fails to capture to core of the issue that people are actually fighting over – animus toward gay people. When a court mandates gay marriage on any basis, there will be backlash. But if a court of last resort does so on a rationale that fails to engage with and address the central arguments of those opposed to gay marriage, that backlash would be extreme. On a historical note, this is the same rationale on which the Hawaii Supreme Court relied in mandating gay marriage – that is, until the state passed a consitutional amendment overtuning the decision.
Not many replies to this post, so I’ll leave my two cents. As a displaced Marylander living in Missouri–and I might add living with my lesbian partner–I had to watch my new state vote in a marriage “protection” amendment. I nearly got sick to my stomach.
Then the wonderful Governor Ehrlich of my home state vetoed the bill passed several months ago to ensure same-sex partners would have involvement in the healthcare of their significant others. I thought the world was going crazy and I would have to move up to the snowy north in order to live like a human being.
To see Maryland take this step, even while the conservatives clamor to tack on a marriage amendment, is heartening. I came from a conservative evangelical background–even tried to be ex-gay for a while, go to a very conservative seminary–so I can understand the other side. What I’ve never been able to get is why the legal protections that make sense from a social justice standpoint are so horrible to conservative (Christians).
Yes, it is “recognizing” gay relationships–but they exist, always have, and that is the equivalent of opening your eyes. Unless you want to herd us all into camps where we get hormone shots (a la the UAE), or pray over us, or force us to marry people of the opposite sex, we’ll be here for a while.
So why not just let us live in a way that contributes to the society we all share?
Maryland. The state with one of the first laws of religious tolerance in the colonies–and hopefully on the forefront of tolerance in the twenty-first century. I am, right now, proud to have you as my home state.
The rational and normal remedy would be to declare the invalidated law, that of marriage here, as void. It usually goes under the heading of not supplying what is not found in the statute itself.
That would be funny. However, in Maryland, there is a specific and separate law stating that only cross-sex couples may get married, which is distinct from the marriage law itself (they passed it in the early 70s, shortly after they passed the ERA). It’s that specific law which has been declared void.
As a native Marylander recently relocated back to Maryland due to with my girlfriend, we’re both holding our breath on this one. We had discussed the probability that we would be able to get married in Maryland (having been living previously in the Deep South, where we knew there was NO chance anytime soon) and she called me about this at work as soon as she heard. I am, ck, hoping Maryland does me proud as my home state and lives up to the brighter moments of its history.
I’ve long been a fan of state constitutions. Read yours if you haven’t – know your rights!
Some places, they are just pretty words on paper but unenforcable. In Maryland, they have
-or had, it’s been 12 years since I looked at the case law -this cool idea, the absolute bar standard. If the state constitution says you can’t do x, well then, you can’t do x. None of this “compelling interest” “legitimate interest” loopholes. Although, from what you quoted, it looks like they are applying a state interest test. Anyway, it’s good news, thanks for reporting it.
Here, in the dreaded pdf format, is the opinion.
http://www.aclu-md.org/aPress/Deane-Polyak-decision.pdf
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