Breaking News: Maryland High Court Upholds Marriage Ban
September 18, 2007 at 9:38 am 1 comment
From the Washington Post:
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.
“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.”
The challenge to the marriage ban in Maryland was considered one of the best chances to expand the number of states in which same-sex couples are able to marry. Massachusetts remains the only states where same-sex couples are able to marry. The California state legislature passed a marriage equality bill recently which is now sitting on Governor Arnold Schwarzennager’s desk. Schwarzennager said in a press conference yesterday that he will veto the bill.
More information coming soon.
Entry filed under: Advocacy, Family, LGBT, Marriage, Politics.
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Elizabeth Schmitz | September 18, 2007 at 3:35 pm
From Schmitz Blitz: schmitzblitz.wordpress.com
The Supreme Court has stated that fundamental rights are “those liberties that are deeply rooted in this Nation’s history and tradition,” and have repeatedly found that marriage is included in the list of fundamental rights. Opponents to marriage equality argue correctly that same sex marriage has never been apart of our nation’s history or tradition.
Marriage itself, has. Herein lies the distinction. Same sex couples are not asking for the right of some special same sex marriage, they are asking for the right to be included in the preexisting institution of marriage, pure and simple.
The way that a right is defined plays a huge role in determing if its is in fact a legitimate right or no. The more broadly defined, the more likely it is to fit within tradition, thus being upheld, and vice versa.
Imagine if this ‘most specific’ methodology had been applied in Loving v. Virginia, which struck down the state’s ban on interracial marriage. Had the Lovings claimed that the right to a mixed race marriage was rooted in our nation’s history and tradition, they would have been instructed to review the long history of America’s antimiscegenation laws. The first antimiscegenation law in North America was enacted in Virginia in 1691. Thirty one states maintained such laws by 1945; sixteen states still held them by the time Loving was decided.
Further, in Dred Scott v. Sandford, Chief Justice Taney cited the long standing antimiscegenation laws in his decision to deny citizenship to blacks, stating, “intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes” The Lovings’ claim was upheld, because they called upon the more general right to marry, rather than the specific right to marry someone of a different race, which clearly went against the longstanding traditions of the United States.
The Loving decision provides an important comparison for those who support same sex marriage. First it establishes that one of the most basic decisions in family life is the decision of whom one chooses to marry. It shows that the right to marry is not limited to longstanding legal or cultural traditions of exclusion. It also provides a framework by which the right of gays to marry should be addressed.
Just as the Lovings petitioned for, and the courts recognized, the fundamental right to marry, rather than the fundamental right to marry someone of a different race, so too should courts recognize that gays seek the right to marry in the broadest sense, rather than the specific right to marry someone of the same sex.
All of that being said, though I would have welcomed a decision from the court that recognized the equality of gay families, I respect their restraint. I have said before that I believe decisions involving divisive social issues such as gay equality are better decided by the legislature rather than judges, even if it means the path to equality is slower. I believe the legislature lends an air of legitimacy that the judiciary is largely lost.