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Quick and Dirty

Barely Protested, Not Ruled Out

By Anna Ditkoff | Posted 9/7/2005

The most noticeable thing about the hearing of the American Civil Liberties Union’s suit against the state of Maryland over same-sex couples’ right to marry Aug. 30 wasn’t what happened but what didn’t. Anti-gay marriage groups that have been fighting to keep Maryland marriage a hetero-only institution took the day off. When the plaintiffs in the case exited the Clarence M. Mitchell Jr. Courthouse downtown, they were greeted only by supporters waving rainbow flags and cheering. The only visible dissenting presences, besides the state’s attorneys, were a few people wearing DEFEND MARYLAND MARRIAGE stickers, who quietly watched the post-hearing festivities from the courthouse steps.

It was a surprising turn of events considering that several organizations have been holding rallies and actively opposing the case. Eight state legislators, including delegates Don Dwyer of Anne Arundel County (R-31st District) and Emmett Burns of Baltimore County (D-10th), even petitioned the court to become defendants in the case but were denied. So why not wave their signs by the courthouse during a case that might be the first step to legalizing same-sex marriage in Maryland? “If I hold a press conference, most likely it will be in Annapolis, because Annapolis is where this should be decided,” said Pastor Rick Bowers, the chairman of Defend Maryland Marriage, before the hearing.

The state’s lawyers seemed to agree, arguing that this was an issue for the legislature, not the court. “At issue here is the authority of the legislature,” Assistant Attorney General Robert Zarnoch told the court, arguing that the state was taking a “one-step-at-a-time approach” to the issue.”

But ACLU senior staff attorney Kenneth Choe, who is representing the 19 plaintiffs in the case, responded that denying same-sex couples the right to marry violates equality provisions in the Maryland Constitution. The “state [doesn’t get] to come into compliance with the state constitution when it’s good and ready,” Choe said.

The other hotly debated issue was whether or not prohibiting same-sex marriage was a “legitimate governmental interest.” The state argued that it was, because the legalization of same-sex marriage would put state law in conflict with federal law and overturn Maryland’s historical definition of marriage.

“Maintaining tradition for its own sake is not a legitimate governmental interest,” Choe said during the proceedings. “It cannot be that the most entrenched government discrimination is the most shielded.”

In the end, the issue of harm to the state may be the defining one. Baltimore Circuit Court Judge M. Brooke Murdock said during the proceedings that “this court believes that if there is no rational harm to the state, that it’s hard to deny” the plaintiff’s petition.

For now, all both sides can do is wait. It could be days, weeks, or even months before Murdock issues her written opinion. The plaintiffs, who have waited more than a year for the case to be heard, are used to being patient. As plaintiff Lisa Polyak said after the hearing, “We’ve been waiting all our lives for someone to take seriously the harms we’ve incurred.”

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