Maryland Court Finds SSM Ban Unconstitutional

I see the Circuit Court for Baltimore City has declared the ban on same sex marriage to be unconstitutional.

After carefully considering Plaintiffs’ various arguments, this Court finds that Family Law §2-201 constitutes unjustified discrimination based on gender, in violation of Article 46 of Maryland’s Declaration of Rights.4 The mere creation of a sex-based classification triggers application of the Equal Rights Amendment, under which distinctions drawn based on sex are suspect and subject to strict scrutiny. Because this Court does not find that §2-201 is narrowly tailored to serve any compelling governmental interests, this Court must conclude that the statutory ban on same-sex marriage is unconstitutional.

The ruling can be found here (pdf file 20pgs).

Section 2-201 is part of the Family Law which was amended in 1973 to include: “Only a marriage between a man and a woman is valid in this State.” Plaintiffs agreed that the defendants (county clerks) were following the law when they refused these same sex couples marriage licenses, but they argued that the law itself was unconstitutional. It arbitrarily discriminated against persons who wanted to marry someone of the same gender.

Maryland passed an equal rights amendment to its constitution in 1972 prohibiting discrimination based on gender. It states, “equality of rights under the law shall not be abridged or denied because of sex.” Defendants argued that this did not apply in this case since both men and women were equally allowed to marry as long as (of course) they married someone of the opposite sex. This is similar to the argument in Loving v Virginia in defense of the state anti-miscegenation statute, that both blacks and whites were free to marry, as long as they married someone of the same race.

The court found this argument unpersuasive. To simplify: If Jill, a female can marry Jack, a male, but John, a male, cannot marry Jack, then John is being discriminated against based on his gender. Gender is a protected class and discrimination based on gender is subject to strict scrutiny.There must be a compelling state interest that a law which discriminates based on gender must satisfy in order to stand up to constitutional muster.

Even laws that do not involve a protected class, are still required to have a rational basis. They cannot be arbitrary, they must serve some useful purpose.

The court found that the law banning gay marriage met neither the compelling state interest nor the rational basis criteria.

Defendants claimed that the ban was in support of the state's interest in the traditional family unit, a married mom and dad raising their biological children. Gay and lesbian couples, some with children, already exist. Any suggestion that allowing these couples to marry would have some specific negative effect on the behavior of their heterosexual neighbors exceeds "rational speculation."

The Court concludes that the prohibition of same-sex marriages is not rationally related to the state interest in the rearing of biological children by married, opposite-sex parents. Indeed, the prevention of same-sex marriages is wholly unconnected to promoting the rearing of children by married, opposite sex-parents. This Court, like others, can find no rational connection between the prevention of same-sex marriages and an increase or decrease in the number of heterosexual marriages or of children born to those unions.

I suggested instead that Gay Marriage Reinforces Straight Marriage.

Other defense arguments were similarly dismissed:

Defendants: Allowing SSM would make our laws different then most other states and the federal government. Court: So? Or responsibilities are to the citizens of Maryland.

Defendants: Other laws such as those permitting second parent adoption already protect the rights of gays and their children. Court: If these rights are indistinguishable from those of married couples, then why not simplify things and call it marriage? If not, then the plaintiff's complaint is justified.

Defendants: Promoting and preserving legislatively expressed societal values and the traditional institution of marriage are legitimate state interests. Court:

Although tradition and societal values are important, 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.

All in all, a well thought out decision.