Marriage in Maryland

Today, a state court judge in Baltimore ruled that Maryland’s statutory ban on same-sex marriages served no legitimate state interest. The opinion is not yet up on the Baltimore City Circuit Court website, but the link should go to it; it’s hard to imagine the court wouldn’t post the opinion. However, the ACLU, which brought the suit on behalf of nine gay and lesbian couples and a bereaved man, has posted the opinion on its website and you can read it here.

The common rebuttal to equal protection challenges to “defense of marriage” laws is the statement that “gays are free to marry; they can marry someone of the opposite sex like anyone else.” But the judge responds to this argument on page 10, stating “…[the law] bars a man from marrying a male partner when a woman would enjoy right to marry that same male partner. As compared to the woman, the man is disadvantages soley because of his sex.” Because of that, the judge said, the burden rests on the state to justify the law, not on the challengers to demonstrate that it is arbitrary (page 14).

However, the judge adds some dicta (pages 14-15) suggesting that even under the much more deferential rational basis test, a prohibition on same-sex marriages would nevertheless fail analysis, since “…this Court is unable to even find that the prohibition of same-sex marriage rationally relates to a legitimate state interest.” For instance, applying this more deferential test, the Indiana Supreme Court upheld a prohibition on same-sex marriages because it found that the “special status” of marriage encouraged heretosexual couples who accidentally concieve to marry and raise their children together.

The court in Maryland today rejected that argument as predicated upon “…such broadly stated principles [and a] vast number of assumptions [which] exceeds the scope of legitimate legislative speculation;” the Court insisted that the Maryland Legislature required at least “rational speculation” to support such a law (pages 15-16). Here, I think the Court is on troublesome ground and it comes close to second-guessing the Legislature. It is for the Court to decide if the legislature was rational or not; not whether the Court agrees with a decision but rather whether that decision had some basis in reason and logic. It is an extraordinary thing for a court to find that a legislature acted on irrational speculation, as we see here.

Generally, the strong rhetorical flourishes in cases like this come at the end, and I like this bit of language quite a bit:

When tradition is the guise under which prejudice or animosity hides, it is not a legitimate state interest. See, e.g., Romer v. Evans, 517 U.S. 620, 634-35, 116 S.Ct. 120, 1628 (1996) (animus against homosexuals, a politically unpopular group, is not a legitimate state interest); Cleburne v. Cleburne, 473 U.S. 432, 448, 105 S.Ct. 3249, 3259 (1986) (prejudice against the mentally handicapped is not a legitimate state interest). Similarly, expressing moral disapproval of a class is not sufficient to sustain a classification where there is no other legitimate state interest. Lawrence v. Texas, 539 U.S. 558, 582-583, 123 S.Ct. 2472, 2486 (2003).

This Court has found that there is no other legitimate state interest rationally served by preventing same-sex marriage. Therefore, we need not engage in speculation as to whether § 2-201 was enacted out of prejudice or animus toward Maryland’s homosexual population. Tradition and society values alone cannot sustain an otherwise unconstitutional classification. 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. As others assessing the constitutionality of preventing same-sex marriage note, justifying the continued application of a classification through its past application is ‘circular reasoning, not analysis,’ and that it is not persuasive. Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941, 961 n. 23 (Mass. 2003); Anderson v. King County, No. 04-2-04964-4-SEA, 2004 WL 1738447, at *8 (Wash. Super. Aug. 4, 2004).

A long quote, I know. But I include it all, and the citations, so that the lawyers amongst the Loyal Readership can go and look at the cites. Most of them are by now pretty famous decisions. I, for one, applaud the Baltimore court for its gutsiness in sticking its neck out this way; the ruling is sure to attract controversy and criticism. It is for the judiciary to issue unpopular opinions when the unpopular opinion is the right one. This will be an unpopular opinion, but it is also correct.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.