Maryland Likely To Legalize Marriage Equality

Maryland is starting to garner mainstream attention as the next state which marriage equality advocates are predicting will be the one to enact a law ending discrimination.

Maryland is poised to become the sixth state to recognize same-sex marriage as proponents say they believe they have enough support to pass such a measure in the upcoming legislative session.

The expansion of gay rights appears to have gained significant traction as Maryland's General Assembly begins its 90-day session Wednesday. Not only are Democrats optimistic about their chances of approving same-sex marriage, but a leading Republican, sensing momentum on the issue, has instead countered with a proposal to grant civil unions to gay couples.

Democratic Gov. Martin O'Malley has publicly stated that he would sign a marriage bill into law. Maryland then would join Massachusetts, Connecticut, Iowa, New Hampshire, Vermont and Washington, D.C., in sanctioning same-sex marriages.

Interestingly, the top Republican in the State Senate has now proffered a civil unions bill which would provide all the state-sanctioned rights and responsibilities of marriage except for the word marriage and call that relationship a civil union, in response to the momentum for full marriage equality.

"Civil unions would grant the same rights as marriage, but just shift the role of something that is viewed as a religious institution to something more secular," [State Senator Allan] Kittleman said. "I just really believe, it is more the libertarian in me, that government needs to be out of something that is religious. The disagreement we have in society on gay marriage is from the religious aspects of it."

Calling same-sex relationships anything other than marriage is a nonstarter for gay rights advocates.

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Six states -- California, Illinois, Nevada, New Jersey, Oregon and Washington -- currently grant same-sex couples all the same rights as marriages, short of the designation. Four other states -- Colorado, Hawaii, Maine and Wisconsin -- offer lesser levels of protections for gay couples.

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Even if same-sex marriage eventually becomes law in Maryland, opponents could collect 55,000 signatures and force a referendum on the subject in 2012.

Equality Maryland and its allies are expecting such a referendum to be held and said they are hopeful that it will be the first time that a same-sex marriage law is approved in a statewide popular vote.

Proposition 8 Take 2 in 2012, perhaps in a state where up to 30% of the population is African-American. Should be interesting. Maryland also has the largest number of openly gay or lesbian elected officials, at least two of whom are also Black.

CA and MD Openly LGBT Caucuses Reach Seven Each

Congressman-elect David Cicilline (RI-01)

Last night was a big night for openly LGBT candidates, with the most ever being elected nationwide, including a fourth openly gay member of Congress in David Cicilline, the openly gay mayor of Providence, Rhode Island who was elected to represent the 1st Congressional District.

There are now five African Amererican LGBT state representatives around the country: Simone Bell (GA), Mary Washington (MD), Marcus Brandon (NC), Jason Bartlett (CT) and Gordon Fox (RI). Two states have the largest LGBT legislative contingents ever: seven in both Maryland and California.

Maryland: Senator Rich Madaleno (D-18) and Delegates Maggie McIntosh (D-43), Heather Mizeur (D-20), and Anne Kaiser (D-14), Bonnie Cullison (D-19), Mary Washington (D-43), and Luke Clippinger (D-46)

California: Senators Mark Leno (SD-3) and Christine Kehoe (SD-39), Assemblymembers John Perez (AD-46), Ricardo Lara (AD-50), Tom Ammiano (AD-13), Toni Atkins (AD-76) and Rich Gordon (AD-21)

So, it's not all bad news out there.

Hat/tip to Denis Dison of the Victory Fund.

MD Attorney General Issues Favorable Marriage Opinion

Maryland Attorney General Douglas F. Gansler made big news on Wednesday by finally issuing an advisory opinion (53 page pdf) on whether Maryland law allows recognition of legal same-sex marriages performed in other jurisdictions. His conclusion? It does!

Law Dork Chris Geidner analyzes the opinion:

The A.G.’s Opinion basically says that the law could be interpreted so as to allow out-of-state marriages to be recognized and that Gansler believes the Maryland courts would decide that way. He reaches this conclusion despite the state’s ban on performing same-sex marriages in the state.

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Nonetheless, to the extent that Gansler determined the current legal landscape would result in a court decision upholding out-of-state recognition, the opinion set the law as it stands in Maryland unless the courts rule otherwise.

Interesting side note, some of the stilted and awkward language in the opinion comes from the opinion’s steadfast avoidance of whether recognition of out-of-state marriages is required, which would have gotten into the due process and equal protection arguments that marriage equality-watchers know also would apply to the state’s prohibition on performing same-sex marriages in the state. It is in that sense that the opinion is quite limited.

What this means is that agencies will begin adopting regulations and policies to allow for recognition of out-of-state same-sex marriages. This, obviously, will include the District of Columbia, where the marriage equality bill is to take effect on March 3. The opinion noted that such changes will be made to the extent possible when not constrained by federal law (primarily, the Defense of Marriage Act). In other words, there are still complications to be resolved.

Equality Maryland will be hosting a national blogger call Friday morning at 11:30am EST but I am supposed to be at the Providence airport trying to get back to Los Angeles despite the snowicane on the Eastern Seaboard.

It will be interesting to see how the Maryland news will interact with the fact that starting March 3rd (next Wednesday!) same-sex couples will start being issued marriage licences in the District of Columbia, which neighbors Maryland.

The main question to be answered is:

Starting March 3rd, 2010, can Maryland residents go to DC (which could be as easy as getting on the Metro for some of them), get legally married in DC and be considered legally married in Maryland as well?

I suspect the answer is YES. Stay tuned.

Lesbian Conductor Marin Alsop In Town Friday

Marin Alsop of the Baltimore Symphony Orchestra is the first female head of a major metropolitan orchestra. She is also an out lesbian. She is guest conducting with the Los Angeles Philharmonic this Friday, December 12 in a program that contains two "wickedly difficult" pieces composed by Brahms (with a violin solo by Nikolaj Znaider) as part of their Casual Friday concerts at the beautiful Walt Disney Concert Hall in downtown Los Angeles.

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!