This is a very sad day for Marylanders

Maryland High Court Upholds Same-Sex Marriage Ban

BY ERIC RICH AND JOHN WAGNER

WASHINGTON POST STAFF WRITERS

Maryland's highest court upheld the state's ban on gay marriage in a ruling issued this morning, reversing a lower court decision and turning back the most formidable legal challenge to date of the controversial law.

The Court of Appeals held that the ban does not, as the American Civil Liberties Union had argued, violate the state constitution. The ruling cannot be appealed to the U.S. Supreme Court, the plaintiffs said when the case was argued in December.

The court took the case after the state appealed a ruling by Baltimore Circuit Court Judge M. Brooke Murdock, who held in January that the 1973 law banning same-sex marriage is discriminatory and "cannot withstand constitutional challenge." In anticipation of an appeal, Murdock stayed her decision when she announced it.

The court's ruling today reverses Murdock's decision, which thrust Maryland into a debate that has raged across the country at least since 1996, when Congress passed a law barring federal recognition of same-sex marriages and allowing states to do the same.

In an opinion signed by four judges, Judge Glenn T. Harrell Jr., citing a Supreme Court holding on judicial restraint, wrote that, absent evidence of discrimination, "judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted."

"In declaring that the State's legitimate interests in fostering procreation and encouraging the traditional family structures in which children are born are related reasonably to the means employed by [the law banning same-sex marriage], our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the reasons," wrote Harrell, who is retired from the court but participated in the decision because he was a member when the case was argued.

Harrell was joined by judges Dale R. Cathell, Clayton Greene Jr. and Alan M. Wilner. A fifth judge, Irma S. Raker, concurred in part and dissented in part. Chief Judge Robert M. Bell and Lynne A. Battaglia wrote dissenting opinions.

Gay rights advocates called the ruling a surprise and disappointment given that several states, including Massachusetts and New Jersey, have struck down marriage bans. But they said the case galvanized not only the gay community but a wider group of Maryland citizens--and pledged to push the General Assembly to take up a gay marriage bill when the legislature convenes in January.

"We will be pushing for full, legal equality in the Maryland General Assembly," said Dan Furmansky,executive director of Equality Maryland. "This is a social justice struggle. Eventually, Maryland will have civil marriage equality for same-sex couples. It's inevitable."

Leading lawmakers said the gay rights advocates will likely face an uphill battle in Annapolis, particularly in the Senate, where a bill would be subject to a filibuster.

"It would be a tall order for the legislature to overturn existing law ... but it's not out of the realm of possibility," said Sen. Brian E. Frosh (D-Montgomery), chairman of the Judicial Proceedings Committee.

In past years, both efforts to legalize gay marriage and efforts to write a ban into the Constitution have not gained much traction.