COURT OF APPEALS UPHOLDS STATUTE LIMITING MARRIAGE TO OPPOSITE-SEX COUPLES

On September 18, 2007, the Maryland Court of Appeals issued the long-awaited ruling in the case of Conaway v. Deane (September Term, 2006, Case No. 44), upholding the constitutionality of the Maryland law that “[o]nly a marriage between a man and a woman is valid in this State” (Family Law Article, Section 2-201). The Court of Appeals by a 4-3 vote, rejected the plaintiffs’ arguments that the Maryland law violated both the State Equal Rights Amendment (Article 46) and the Equal Protection Clause of the Fourteenth Amendment. The Court also rejected the argument that there is a “fundamental right” to same-sex marriage.[1]

Background.
Around the country, those who follow the development of gay rights and the effort of gays to secure the right to same-sex marriage had been waiting anxiously for almost a year for the Court of Appeals to rule. Several other states have weighed in on this issue, and except for Massachusetts,[2] all have upheld state marriage laws that restrict marriage to opposite- sex couples. In late 2006, New York’s high court ruled on this issue;[3] and the Maryland Court followed that court’s holding on the main points. Also in 2006, the Supreme Court of New Jersey came down with a ruling that upheld traditional marriage, but ordered its state legislature to create within 180 days a new law providing civil unions for gay partners.[4] But the vast majority of states that have addressed the issue, have resolved it much like the Maryland Court of Appeals. Judge Glen Harrell’s majority opinion gives a thorough treatment of all the key issues.[5]

Even though Circuit Court Judge Brooke Murdock had ruled in favor of plaintiffs (Deane et al, appellees), it was still the plaintiffs who had the greater burden on appeal because the appeal was primarily based upon questions of law rather than questions of fact; and the established law was not on plaintiffs’ side. If Deane et al were to prevail, the Court of Appeals would have to depart from traditional interpretations of the applicable law. Those around the country who have followed this issue saw the possibility that Maryland might depart from traditional interpretations because of its long history of recognizing and legislating rights and benefits for gays. But while Maryland was certainly at the forefront of such national trends, this history had a flip side that argued against the plaintiffs because for the last 30+ years, almost every time the Maryland Legislature would pass a law extending special rights to gays, the Legislature would also pass a disclaimer that specifically qualified the application of such rights—that the bestowal of new rights was not to be construed in any way to affect the Maryland law that limits marriage to only a man and a woman. Thus, while Maryland was at the forefront in recognizing rights for gays, the State also made it specifically clear from the outset that both the State ERA and the bestowal of state rights for gays did not extend to a right to same-sex marriage.

Maryland’s ERA.
With that background, when the case came before the Court of Appeals, the State’s history of recognizing gay rights was of only limited value—it was a double-edged sword, so to speak. The Court first addressed whether the marriage statute’s prohibition of same-sex marriages violated the State ERA. The Court had never before construed the ERA to invalidate the statute restricting marriage to opposite-sex couples. And the majority opinion again declined to do so.

Standard of Review.
The next major issue addressed in Judge Harrell’s opinion was which of the three levels of scrutiny to apply to the Maryland law—strict scrutiny, intermediate scrutiny, or rational basis review.[6] The Court made a lengthy analysis of and rejected plaintiffs’ (appellees’) arguments that gays were a protected class, that heightened or strict scrutiny was warranted, and that there existed a fundamental right to marry someone of the same sex. By a 4-3 vote, the Court found no “protected class,” no “suspect criteria” and no “fundamental right”; and the Court therefore ruled that strict scrutiny was not proper. The Court also failed to find a basis to apply the intermediate (or heightened) scrutiny.[7] The Court held that the rational basis standard was the proper one (Conaway, p. 96).

To satisfy the minimal, “rational basis” test, “a statute reviewed under the rational basis test enjoys a strong presumption of constitutionality, [and] can be invalidated only if the classification is without any reasonable basis and is purely arbitrary” Conaway, at 97, citing Whiting-Turner Contract Co. v. Coupard, 304 Md. 340, 352 (1985). As long as the court can find any conceivable reasonable basis for the statute, it will pass muster. Thereafter, predictably, the Court found that there existed a rational basis for the disparate treatment.[8] The Court held that “the State’s legitimate interest in fostering procreation and encouraging the traditional family structure in which children are born” is an adequate and proper basis to supports limiting marriage to opposite-sex couples.[9] Judge Battaglia, in her dissent, argued that the statute should be subject to strict scrutiny (not rational basis scrutiny), and she further stated that she would have remanded the case for a thorough hearing on the issue of whether or not the State could meet the burden to show that it had a compelling interest to justify the discriminatory treatment.[10]

The Equal Protection Clause.
In determining whether the Equal Protection Clause has been violated, if a challenged law affects a “protected class,” then the Maryland statute could be upheld only if the state had a “compelling interest” to justify the disparate treatment, and only if the court would “strictly scrutinize” the statute and the state interests to make sure that the stringent test had been satisfied. But, if no protected class and no suspect criteria is involved, then the Maryland statute need only satisfy the rational basis test (as explained above). Appellees’ argument that strict scrutiny must be applied was based primarily upon the argument that the marriage law discriminated against a class of people; and they argued that Loving v. Virginia, 388 U.S. 1 (1967) supported this view.[11] But the majority disagreed and held that the Virginia law in Loving was blatant “anti-black legislation” and that the rule articulated in Loving was a prohibition from subordinate treatment of either women to men or men to women, as a class.[12] The majority applied the traditional, most widely accepted interpretation of Loving—that it prohibits classifying males or females as a class in the absence of a compelling state interest. Accordingly, because the Maryland marriage restriction applies to males the same way it applies to females, therefore the statute does not impinge upon the rights of any protected class.[13]

The Fundamental Right Argument.
The remaining major issue in the case was whether or not there existed a “fundamental right” of one person to marry another person of the same sex. To start with, it was acknowledged by all that there is a fundamental right to marry. But the definition of that right was subject to dispute. Deane et al argued that the fundamental right to marry included the right to marry someone of the same sex. But the State countered that the fundamental right to marry has always been limited by the traditional meaning of marriage—that it is between a man and a woman, and that therefore the right to marry has always been limited to the right to marry someone of the opposite sex. The latter interpretation was adopted by the majority.

The Future.
The majority opinion in Conaway v. Deane is 110 pages in length, and the three dissenting opinions added another 130 pages. (Judge Bell concurred with both Judge Battaglia and with part of Judge Raker’s opinion; then Judge Bell added a brief dissent of his own for good measure.) With that many pages of reasoning and rhetoric, one could certainly identify other important parts of the opinions that I have failed to address. And it is not expected that this ruling will end all debate of this important social issue. I don’t think anyone is predicting that the issue is now settled. In Maryland, I would predict that the next forum for this debate will be in the Legislature, where in 2008 I expect to see both a bill to amend the Constitution to restrict marriage to a man and a woman, and opposing bills to both legitimize same-sex marriage and to authorize civil unions for same-sex couples. On that point it is of interest to note that there is now pending before the Supreme Court of California, several “Marriage cases,” which have been combined together, and in which that Court is being asked to rule on the constitutionality of California Referendum No. 22, where the voters rejected civil unions and voted to restrict marriage to only opposite-sex couples.[14]


[1] It is not known at this time whether Deane and the other plaintiffs will petition the Supreme Court for a writ of certiorari, or whether such a petition would be granted.
[2] Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003).
[3] Hernandez v. Robles 855 N.E.2d 1 (N.Y. 2006).
[4] Lewis v. Harris, 908 A.2d 196, 200 (N.J. 2006). The Vermont Supreme Court had ruled similarly in 1999. Baker v. State, 744 A.2d 864 (1999).
[5] At the circuit court level, Judge Murdock had based her ruling on Article 46 (the state ERA) and on the Equal Protection Clause, but not on the basis of a “fundamental right.” The Court could have declined to deal with any issues other than those that were addressed by Judge Murdock. But at the outset of the majority opinion, Judge Harrell explained that the Court would be addressing other issues that are relevant, including the fundamental rights issue.

[6] Conaway, pp. 43-47. At these pages Judge Harrell identified the three types of scrutiny, and then proceeded to discuss which level of scrutiny was warranted to address the Maryland statute.
[7] With regard to the intermediate level of review, the Court addressed the issue of whether or not homosexuality was innate, and implied that if it were that the Court might apply either strict scrutiny or heightened scrutiny. But the Court, after examining various scientific studies on the issue, specifically declined to find homosexuality to be an immutable characteristic. Conaway, pp. 66-70.
[8] Of the dissenting Judges, Chief Judge Bell and Judge Battaglia argued that strict scrutiny was warranted. Judge Raker agreed with the majority, that the rational basis test should be applied (Conaway, Raker, J., dissenting, at p. 5). However, Judge Raker went on to argue that the Maryland statute could not withstand rational basis scrutiny. While Chief Judge Bell argued that “strict scrutiny” applied, he nevertheless concurred with Judge Raker’s analysis that the statute failed to meet the rational basis test. I would submit that Judge Raker’s application of the rational basis analysis is a major departure from the traditional interpretation and application of that test.
[9] Conaway, pp. 98 and 109.
[10] Conaway, Battaglia, J., dissenting, at p. 80. Judge Battaglia correctly pointed out that the case had not yet fully developed and explored: “Neither party has explored this issue in the depth appropriate to an issue of such permanent, transcendent magnitude.” Id. Of course, the case was decided on the basis of summary judgment motions, and the court had only been presented sparse evidence on sociological and societal impact of various child-rearing possibilities, and therefore the court was not in a position where it could properly rule on the compelling interest issue.
[11] Conaway, pp. 37-41. In Loving the Supreme Court held unconstitutional a Virginia Miscegenation statute that prohibited marriages between blacks and whites.
[12] Id., 41.
[13] Appellees argued that the Court of Appeals had previously ruled in Giffin v. Crane, 351 Md. 133, 716 A.2d 1029 (1998), that if a law makes sex a factor in a legal distinction, then the state ERA is violated. However, Judge Harrell pointed out that a review of the reasoning of Giffin in its context made it clear that the Court was speaking of distinctions between men and women as classes. Conaway, at 27. Judge Harrell pointed out that his conclusion is supported by the majority of the federal and state courts that have addressed this issue, including the Court of Appeal of Washington, that stated in Singer v. Hara,522 P.2d1186 (Wash. App. 1974) that to interpret an ERA in a way that requires states to permit same-sex marriages “would be to subvert the purpose for which the ERA was enacted.” Id., at 1194. The three dissenting Judges (Chief Judge Bell, Judge Raker and Judge Battaglia) all agreed with Judge Murdock that this interpretation is erroneous; they argued that since the law prohibits someone from marrying another based upon the sex of the partner, that this is sexual discrimination that violates both the State ERA and the Equal Protection Clause of the Fourteenth Amendment.

[14] That case if both interesting and important. The State’s Attorney General argued successfully against Referendum 22 at the first appellate level, where that court ruled that the Referendum was unconstitutional. The issue in California involves some of the same issues covered by the 2006 New Jersey case (Lewis v. Harris, 908 A.2d 196, 200 (N.J. 2006) ) and the 1999 Vermont case (Baker v. State, 744 A.2d 864 (1999)).