More Separate But Equal

"The right to marry, encompassing as it does the related and critically important element of choice -- the freedom to choose whom to marry, to select the 'lucky' person -- is not inherently party-centric. Neither is it either hetero- or homo-sexual." -- Maryland Chief Judge Robert M. Bell in his dissent in the 4-3 decision upholding Maryland's same-sex marriage ban, issued Sept. 18


Leave it to the courts to take the English language and turn it on its head. That's exactly Maryland's high court did by a 4-3 vote in September when it ruled that denying gay couples the right to marry does not discriminate against them or deny them their constitutional rights.

The court's four-vote majority called marriage a "fundamental right" but also found that "it is not a right extended to gays and lesbians under current state law," according to the Baltimore Sun.

The court said the state had "legitimate interests in fostering procreation and encouraging the traditional family structure" via the 34-year-old law, though it added that "our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex."

The court acknowledged the discrimination faced by gays and lesbians, but refused to grant them special status.

"It is clear that homosexual persons, at least in terms of contemporary history, have been a disfavored group in both public and private spheres of our society," the majority wrote. "This court nevertheless finds that a history of unequal treatment does not require that we deem suspect a classification based on sexual orientation."

The decision bears a striking resemblance to last year's New Jersey high court ruling, which forced the state to extend marriage benefits to gays and lesbians but not to allow them to marry. Like the New Jersey court, the Maryland decision also invites advocates for gay and lesbian couples to take their case to the state's General Assembly, saying that the definition of marriage -- including who can marry -- is a legislative function.

The Maryland decision may be correct on legal grounds, though I have to question any use of the law to endorse a doctrine that treats classes of people differently.

Two separate dissenting opinions -- including one by Chief Judge Robert Bell -- make this point. Bell compared same-sex marriage bans to earlier bans on interracial marriage, which were struck down by the US Supreme Court 40 years ago.

"To be sure, there are important differences between the African American experience and that of gay men and lesbians in this country, yet many of the arguments made in support of the antimiscegenation laws were identical to those made today in opposition to same-sex marriage," he wrote (quoted from excerpts in the Baltimore Sun).

Judge Lynne A. Battaglia also disputed the majority's reasoning, saying it "offers no principled basis for applying equal protection analysis to couples rather than individuals, for the simple reason that there is no principled basis for the distinction."

She said the decision "breathes life into the corpse of separate but equal" and that it is denying a "commitment to equal rights" made by the state of Maryland in 1972. She said that state's Equal Rights Amendment was "intended to address the rights of individuals, not the rights of 'men and women as classes' and that "the words of the ERA are clear and unambiguous and can only mean that the rights of any person under the law cannot be abridged because of sex."

Battaglia's dissent -- like the dissent offered by then-New Jersey Chief Justice Deborah Poritz -- crystallizes what the real issues are in this debate. The issue is not marriage, per se, but the right for all people to be treated equally under the law.

The absurdity of the majority's reasoning is underscored by its reliance on a point that Battaglia rightly deems outdated: the state's interest in promoting procreation and the "traditional family structure."

Battaglia, however, calls that link "an imperfect fit," adding that the "correspondence between opposite-sex marriage and biological necessity has never been more tenuous than it is today" - thanks to technology and to the changing legal landscape.

The endorsement of the state's right to make laws that encourage the creation of traditional families implies that the state also has the right to pass laws that discourage the creation of nontraditional family structures - which might include a host of possibilities. The reality, however, is that legal impediments are targeted at one class of individuals -- which is the definition of discrimination.

That is the point Bell makes in his dissent.

"The majority determines that same-sex marriage is not deeply rooted in this State or in the United States, and, therefore, does not implicate a fundamental liberty interest," he wrote. "That determination, however, only recognizes and gives voice and substance to an undisputed prejudice and objection -- against and to homosexuality -- that is not legally cognizable."

Hank Kalet is a poet and the managing editor of the South Brunswick Post and The Cranbury Press in central New Jersey. E-mail His blog, Channel Surfing, is at

From The Progressive Populist, October 15, 2007

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