Same-sex couples who want to marry have won a victory in the state of Maryland. Baltimore City Circuit Court Judge Brooke Murdock has ruled that a 1973 statute that defines marriage as between a man and a woman violates the state constitution. Murdock stayed the opinion until a higher court has affirmed the decision, so same-sex couples cannot get marriage licenses yet. The state attorney general is appealing the decision to an intermediate court.
Maryland is one of seven states where the definition of marriage is in play. And even though gay rights advocates won big in Massachusetts in 2003, and have won in a few state trial courts, gay rights advocates are finding the road to more wins more tortuous than they had anticipated.
The lead plaintiffs in the Maryland case, Lisa Polyak and Gitanjali Deane, met at a small Catholic college 27 years ago and have been together for the past 25 years. They kept their relationship secret, until Polyak bore their first child through artificial insemination. Three years later, Deane did the same. It was then, when Gita Deane was in the delivery room, that their status as an unmarried couple was driven home. Polyak says the doctor arrived to give an epidural.
"She looked at me and said, 'Who are you?'" Polyak recalls. "And I said, 'I'm her partner.' She looked around the room and said, 'You have to leave.' I was holding (Gita's) hand; she was having contractions, and the doctor said, 'Nothing gets done until you leave the room.' And I left the room because it was either that, or she didn't get the epidural."
Polyak says no matter how many times they visit their lawyer, they cannot get all the protections of a married couple, whether in insurance coverage or medical emergencies or the execution of wills. More than that, Polyak says, she and Deane were troubled by the social stigma that their daughters might encounter. So they decided to sue.
"When we entered the marriage litigation, we explained what we were doing" to their daughters, Polyak recalls. "And my oldest child looked at me, and says, 'What do you mean you're not married? Why didn't you take care of this?' From their perspective, it was obvious that as their parents, we should have a legal relationship as parents, and to have anything less was to in some way be at risk."
Along with eight other couples and a widower, Polyak and Deane sued in Maryland state court, arguing that a 1973 statute prohibiting same-sex marriage violates the state constitution by allowing discrimination based on gender and sexual orientation, and by denying couples the fundamental right to marry. Judge Murdock agreed with them. In a 20-page decision, she wrote that, "after much study and serious reflection," the prohibition on same-sex marriage is unconstitutional.
"Although tradition and societal values are important," she wrote, "they cannot be given so much weight that they alone will justify a discriminatory statutory classification. When tradition is the guise under which prejudice or animosity hides, it is not a legitimate state interest."
"Gay couples in this lawsuit and similar lawsuits are not seeking to redefine marriage," says Kenneth Choe, one of their attorneys at the ACLU. "They're just taking the institution of marriage and saying there has been an historical exclusion for which there is not legal justification."
Gay couples are also suing for marriage licenses in California, New York, Connecticut, New Jersey, Iowa and Washington state, where the high court is expected to hand down a ruling any week now. Couples in these states are all hoping for a Massachusetts-style win: In 2003, the state's highest court became the first to sanction gay marriage.
But it's been a surprisingly tough road for gay activists since Massachusetts, says Matthew Staver, president of Liberty Counsel, a conservative law group. After that ruling, he says, he braced for an avalanche of cases, as gay couples in other states demanded the same right to marry. And indeed, gay couples in San Francisco, Portland, Oregon and parts of New York did demand and receive marriage licenses -- only to be slapped down by the courts.
The same sex couples "began to lose all these cases around the country," Staver says. "They began to realize that this strategy to rush headlong into other states wasn't going to work, that the -- and these are their words -- culture was not ready to accept same-sex marriage."
Jordan Lorence, an attorney for the conservative Alliance Defense Fund, says the public ambivalence became evident on election day 2004.
"Never in American history have 11 states passed essentially the same constitutional amendments on the same day," he says. Those states, including traditionally liberal states like Oregon, passed amendments to their constitutions that defined marriage as between a man and a woman.
"That was a development that neither side really anticipated," Lorence says, "and that slowed a lot of the litigation that was going on."
And even the federal courts -- which are traditionally friendly to issues of individual rights -- began to appear a bit risky for gay marriage advocates. Staver doubts that gay marriage advocates could win before a U.S. Supreme Court with Sandra Day O'Connor on the bench -- much less with Samuel Alito.
"So they ramped back on their time frame," he says, "and they're going at a slower pace in a piecemeal fashion, hoping that the culture will catch up with the courts in some of these jurisdictions."
In other words, trying to win one state at a time. David Buckle, a senior attorney for the gay rights advocacy group Lambda Legal, does not dispute this analysis. "To the extent that our opponents see us being careful, they're right," he observes.
Buckle says it takes time to educate the public on a social and cultural issue like gay marriage, just as it did in the fight to legalize interracial marriages.
"We are smack dab in the middle of a civil rights movement. We have enormous resources marshaled against us, and so we have to be very careful about how we move forward," he says.
Buckle believes time is on the side of same-sex couples. Polls show that people in their 20s and 30s favor gay marriage, and he thinks the courts will eventually follow public opinion. But his opponents doubt that, and they are hoping that a slew of state amendments in this year's elections will make that clear.
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