Same-sex marriage in Maryland
has been legally recognized in Maryland since January 1, 2013. In 2012, the state's Democratic representatives, led by Governor Martin O'Malley, began a campaign for its legalization. After much debate, a law permitting same-sex marriage was passed by the General Assembly in February 2012 and signed on March 1, 2012. The law took effect on January 1, 2013 after 52.4% of voters approved a statewide referendum held on November 6, 2012. The vote was hailed as a watershed moment by gay rights activists and marked the first time marriage rights in the United States had been extended to same-sex couples by popular vote. Maryland was the ninth U.S. state to legalize same-sex marriage.
Upon the rise of the same-sex marriage movement in the early 1970s, Maryland established the first law in the United States that expressly defined marriage to be "a union between a man and a woman". Attempts to both ban and legalize same-sex marriage in the 1990s and 2000s failed to gain enough support from central committees of the General Assembly. Roman Catholic authorities throughout the state were adamantly opposed to the legalization of same-sex marriage, saying it deeply conflicted with the best interests of society, and would threaten religious liberty. The debates produced disputes between individuals who had been traditionally aligned on causes and prompted sharp criticism from African-American religious leaders who said same-sex marriage would "disrupt the fabric of the culture".
Before passage of the Civil Marriage Protection Act, the state recognized same-sex marriages performed in other jurisdictions following the 2010 release of a legal opinion from Attorney General Doug Gansler in his nine-month analysis of comity laws. In 2012, the Maryland Court of Appeals maintained Gansler's analysis. It issued a unanimous decision in Port v. Cowan finding that a same-sex marriage performed out-of-state must be considered equal and valid under state law, despite its earlier decision in Conaway v. Deane in 2007, in which the court upheld the statutory ban on same-sex marriage as constitutional.
Legal history
Background
Maryland holds a unique place in the history of same-sex marriage in the United States. In 1973, it became the first U.S. state in the nation to define marriage as "a union between a man and a woman", expressly banning same-sex marriage. The Maryland General Assembly passed the law a short time after voters in the state ratified Article 46 of the Maryland Declaration of Rights, commonly referred to as the Equal Rights Amendment, in November 1972. The constitutional provision prohibited discrimination in equality of rights on the basis of sex. In 1975, a marriage license was issued to two women, Michele Bernadette Bush and Paulette Camille Hill, in Montgomery County. Although the county clerk had issued the license and Attorney General Francis B. Burch had published an opinion that county officials could not challenge the validity of the marriage, the license was later revoked.During the 1990s, attempts to both ban and legalize same-sex marriage did not pass through the General Assembly. After a committee in the Maryland House of Delegates voted in March 2004 to reject a pair of marriage bills that would have submitted a constitutional amendment against same-sex marriage to voters and invalidated same-sex marriages performed in another state or foreign country, the American Civil Liberties Union and Equality Maryland filed a lawsuit, Deane & Polyak v. Conaway, to challenge the existing law on behalf of nine same-sex couples and one bereaved man whose partner had died. The lead plaintiffs, from whom the case received its name, were Gita Deane, a learning specialist at Goucher College, and her partner Lisa Polyak, an environmental engineer for the U.S. Army Medical Department. The plaintiffs had applied for marriage licenses in several different counties but were denied by county clerks. In their complaint, the plaintiffs argued that the state's statutory ban on same-sex marriage violated constitutional protections of due process, equality, and prohibitions against sex discrimination in Articles 24 and 46 of the Maryland Declaration of Rights.
In January 2006, Baltimore Circuit Court Judge M. Brooke Murdock granted summary judgment to the plaintiffs, writing that "Family law §2-201 violates Article 46 of the Maryland Declaration of Rights because it discriminates, based on gender against a suspect class, and is not narrowly tailored to serve any compelling governmental interests." She added that "tradition and social values alone cannot support adequately a discriminatory statutory classification", because "when tradition is the guise under which prejudice or animosity hides, it is not a legitimate state interest." The judge immediately stayed the decision pending an appeal by the Attorney General of Maryland, J. Joseph Curran Jr., which occurred later that day.
While the decision was favored by the plaintiffs, gay rights groups and their supporters, including more than 100 religious leaders and child welfare advocates across the state who filed amicus briefs, other local religious leaders and evangelical ministers were upset by the decision and looked to state legislators to propose a constitutional ban on same-sex marriage. Such an amendment was favored by Governor Bob Ehrlich who said "my politics on this are very clear. We're going to protect marriage. Traditional marriage." In February 2006, the proposed ban was rejected after opponents successfully amended it to legalize civil unions. Consequently, Delegate Don Dwyer introduced a resolution to impeach Judge Murdock in 2006, alleging "misbehavior in office, neglect of duty, and incompetency" for her trial court decision. In 2007, he introduced a law that would ban discussion of same-sex unions in public schools. One lawmaker said "It is a clear attempt to intimidate judges and to make the judiciary subservient to the legislature", and Michael Conroy, former president of the Maryland State Bar Association, said that "No basis in fact or law exists to support any suggestion to impeach Murdock for her recent decision on same-sex marriage." David Rocah, an attorney for the ACLU, called the resolution "a frivolous, dangerous and extremist response from the lunatic fringe." Both of the measures failed to pass through committee.
''Conaway v. Deane & Polyak''
The Court of Appeals, Maryland's highest court, agreed to hear the state's appeal in 2006, bypassing the intermediate court. To the surprise of spectators, there were almost no questions from the judges during oral argument, which took place on December 4, 2006, causing speculation that the court may have taken the appeal just to reverse the Circuit Court ruling. On September 18, 2007, the court issued its decision in Conaway v. Deane & Polyak, overturning the trial court ruling for the plaintiffs in a 4–3 decision, and holding that the statutory ban on same-sex marriage did not violate the Maryland Constitution.Judge Glenn T. Harrell, Jr. wrote that, because the statute equally barred both men and women from marrying partners of the same sex, it was not discriminatory on the basis of sex and thus did not violate the Equal Rights Amendment as plaintiffs had argued. Judge Harrell said that the ERA was intended to prohibit sex discrimination against women and did not apply to this case, which he said was a matter of sexual orientation. Judge Lynne A. Battaglia wrote a dissenting opinion stating that the statutes and ordinances in Maryland barring discrimination based on sexual orientation, in addition to the state's lack of prohibiting adoption by same-sex couples and its recognition of same-sex couples as co-parents, support the argument that denying committed same-sex couples the full benefits and privileges of marriage is not related to any rational government interest. Judge Battaglia said she would have remanded the case to circuit court for a full trial in order to settle what she deemed a central factual issue: whether the state could demonstrate that it had "broad societal interest" in retaining marriage in the traditional form. The dissenting opinion from Chief Judge Robert M. Bell faulted the majority for not recognizing gay people as a suspect class in need of protection from discrimination. He dismissed the majority view that gays and lesbians are politically empowered and should not be viewed as constituting such a class.
Evan Wolfson, founder of Freedom to Marry, said that the decision was "deeply flawed" because the 4–3 majority did not answer the question of how denying marriage to same-sex couples affected the ability of heterosexual couples to procreate. President of the Human Rights Campaign, Joe Solmonese, called the decision a "setback" and Ken Choe, the ACLU attorney who argued on behalf of the plaintiffs, expressed hope that, unlike the majority of the bench, the General Assembly would be able to see "that lesbian and gay couples form committed relationships and loving families just like heterosexual couples":
Recognition of out-of-state marriages
Gansler opinion
State Senator Richard Madaleno requested in 2009 that Attorney General Doug Gansler answer the question of whether same-sex marriages could be recognized by the state. In February 2010, Gansler issued an opinion after a nine-month analysis of state laws, stating that valid same-sex marriages performed in states that permit same-sex marriage could be recognized under Maryland law. Gansler stated that the opinion was not binding on the courts, and state agencies could begin immediately to recognize out-of-state same-sex marriages. He said that he expected the opinion to be quickly challenged in court.The opinion garnered negative reactions from some Republicans, socially conservative Democrats, and several African-American lawmakers, including delegates Emmett C. Burns, Jr. and Don Dwyer, who spoke out against the opinion and promised to initiate impeachment proceedings against Gansler. "It is not up to the attorney general, and that's the reason I will be bringing charges of impeachment," Dwyer said in a statement where he described the Attorney General as usurping the law. The Roman Catholic Archbishops of Washington and Baltimore and the Bishop of Wilmington also took "strong exception" to the decision.