Defending Marriage
Maryland High Court Cites Value to State in Upholding Traditional Marriage
By Dennis Durband, UFI's Director of Publications
September 19, 2007
Far-encompassing in its reach, Tuesday's decision by the Maryland Court of Appeals to uphold marriage is riveting in its construction. Though the concurrence was just 4-3, the majority deftly deflected an array of arguments used by appellants in their quest for court-imposed same-sex "marriage."
For example, the court actually reviewed social science research on the claims that homosexuality is a genetic condition that renders it immutable. This is impressive considering that the court rejected three attempts to intervene in the case. Searches for previous reviews of social science research cited in court cases on marriage have largely come up empty.
The highest court in Maryland over-ruled a lower court which had found in favor of nine same-sex couples and a homosexual individual who had sought – and been denied -- marriage licenses in clerk of court offices. Counsel for the appellants' cited the state's 1972 ratification of the Equal Rights Amendment, Maryland 's Family Law statute and other factors in seeking a legal remedy.
The Court of Appeals majority provided ample fodder for future challenges to marriage law. Appellants trotted out the typical overtures forwarded by same-sex “marriage” advocates. This majority was clearly not buying in to these oft-repeated refrains.
The appellants invoked “equal application theory” and compared their plight to previous bans on inter-racial marriage. The Court of Appeals would have none of it, stating, “The analogy to the present case is inapt. The obscure word “inapt” means “not suitable, inappropriate.”
Additionally, the same-sex “marriage” advocates sought a declaration that the right to marry encompasses the right to marry a person of one's choosing without interference from the government, even if the other person is of the same sex. That prompted this response from the majority:
Our task, therefore, is to determine whether the right to same-sex marriage is so deeply embedded in the history, tradition, and culture of this State and Nation that it should be deemed fundamental. We hold that it is not.
The majority dispelled fears that the 2003 U.S. Supreme Court ruling in Lawrence v. Texas trail-blazed new openings for same-sex “marriage.” The Supreme Judicial Court of Massachusetts acted upon the higher court's Lawrence ruling to justify its decision for SSM in the Goodridge decision later that year. The Maryland court stated, “Lawrence does not establish a fundamental right to same-sex marriage” and added, “Nor does Lawrence establish as deeply rooted the right to same-sex marriage.”
Regarding attack on state marriage law, the court found: “The point is that despite the long-established presence of Family Law § 2-201, the laws of our State historically, and continue to, employ sex-specific language that reflects Maryland 's adherence to the traditional understanding of marriage as between a man and woman.” Additionally, the court said, “We are unwilling to hold that a right to same-sex marriage has taken hold to the point that it is implicit in the concept of ordered liberty or deeply rooted in the history and tradition of Maryland.”
Additional language to that effect further serves to deflate advocates of same-sex “marriage”:
In spite of the changing attitudes about what constitutes a “nuclear family,” Congress, as well as nearly every state in the Nation, has taken legislative action or otherwise enacted constitutional amendments limiting explicitly the institution of marriage to those unions between a man and a woman. With the exception of Massachusetts, virtually every court to have considered the issue has held that same-sex marriage is not constitutionally protected as fundamental in either their state or the Nation as a whole.
The court cited three lesser-known court decisions:
- Standhardt: [A]lthough many traditional views of homosexuality have been recast over time in our state and Nation, the choice to marry a same-sex partner has not taken sufficient root to receive constitutional protection as a fundamental right.”;
- Lewis: “Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people . . . that it ranks as a fundamental right.”; and
- Kandu: holding that there is no fundamental right to same-sex marriage based on the Supreme Court's cautionary statements that courts should “exercise the utmost care” in establishing a new fundamental liberty interest.
The Maryland court recognized people's right to free association, but refused to enshrine such in marriage:
We are not unmindful of the fact that the relationships gay, lesbian, and bisexual persons seek to enter involve intimate and private decisions that extend to the core of the right to personal autonomy. Those decisions do not necessarily require us or the State to recognize formally those relationships in the form of State-sanctioned marriage. That a liberty interest such as the argued-for right to marry a person of the sex of one's choosing, even if assumed to be important, does not render automatically fundamental that liberty interest.
When dealing in the realm of due process, furthermore, we are hesitant to recognize new fundamental rights, especially when the Supreme Court has either failed or declined to do so. “[W]here social or economic legislation [such as the regulation of marriage] is involved, ... [we] have generally avoided labeling a right as fundamental so as to avoid activating the exacting strict scrutiny standard of review.”
More importantly, the court recognized that the state has a legitimate interest in encouraging marriage between two members of the opposite sex because it is a union that is uniquely capable of producing offspring within the marital unit.
The State of Maryland argued in favor of maintaining the same definition of marriage as that mandated by the federal Defense of Marriage Act, “ensuring that dramatic cultural changes be adopted through vigorous public debate culminating in legislative decisions” and maintaining the traditional institution of marriage because it is “so deeply ingrained in our history and traditions.”
Justices asserted that benefits are conferred on opposite-sex couples not because of a distinction between whether various opposite-sex couples actually procreate, but rather because of the possibility of procreation.
Appellants also failed in their attempt to paint homosexuality as genetic and immutable. United Families International has documented this as well in its “Guide to Family Issues: Sexual Orientation.” The court dismissed assertions of immutability:
Based on the scientific and sociological evidence currently available to the public, we are unable to take judicial notice that gay, lesbian, and bisexual persons display readily-recognizable, immutable characteristics that define the group such that they may be deemed a suspect class for purposes of determining the appropriate level of scrutiny to be accorded the statute in the present case. The Ninth Circuit indeed held there that “[s]exual orientation and sexual identity are immutable; [and that] they are so fundamental to one's identity that a person should not be required to abandon them.”
These reports, considered three of the most important in the field, however, are not without challenge. Their imperfections and limitations are well-documented. Other studies have found contrary indicia and have concluded that culture and environment, at least in part, play a factor in the development of an individual's sexual orientation. Even the authors, most notably Simon LeVay, have indicated that the biological studies do not establish that biology is the primary indicator of sexual orientation. We by no means are able to form any sort of merits-driven conclusion based on the forgoing studies. We note only that there does not appear to be a consensus yet among “experts” as to the origin of an individual's sexual orientation.
Finally, the Maryland Court of Appeals ruled against claims of unconstitutional discrimination based on sex in violation of Article 46 of the Maryland Declaration of Rights. Justices also said that homosexual persons are not so powerless that they cannot attempt to work through the legislative process to enact change in marriage law.
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