Maryland's Highest Court Rules Against A Claim to a Right to Same-Sex Marriage: Why, In This Area, Litigation Still Matters

In a ruling that seemed to surprise many, Maryland's highest court recently held that the state's ban on same-sex marriage does not violate the state's constitutional guarantees of due process and equal protection.

In a further surprise to same-sex marriage advocates, the ruling implicitly held that the state also need not guarantee equal access to the benefits of marriage through an alternative legal status like a civil union.

In this column, I'll look at the national landscape regarding same-sex marriage and explain why, in this area, how issues are litigated continues to make an importance difference.

A Current View of the National Landscape

In 2004, Massachusetts became the first state to legalize same-sex marriage, a result dictated by a ruling from its highest court in Goodridge v. Department of Public Health, which held that same-sex couples must be permitted to marry under the state's constitutional guarantee of due process.

Three-and-a-half years later, Massachusetts remains the only state in which same-sex couples can civilly marry on exactly the same terms as opposite-sex couples. But that factoid is misleading, to the extent it suggests that all has been quiet on the same-sex marriage front.

Prior to the ruling in Goodridge, same-sex marriage advocates had achieved a state-wide victory in only one state: Vermont. There, the state's highest court held, in Baker v. State, that same-sex couples must be granted access to the benefits of marriage. The legislature complied with the court's mandate by inventing the "civil union" - an alternative legal status that is identical to civil marriage in all respects other than name.

The spread of civil unions and the increasing public support for them are both important parts of the same-sex marriage story. (A 2006 poll by the Pew Forum on Religion and Public Life found that 54 percent of Americans approve of civil unions as a legally available alternative for same-sex couples.) After being invented in Vermont, civil unions were adopted by legislatures in Connecticut, New Jersey (to comply with the Court's ruling in Lewis v. Harris), and New Hampshire. And California expanded its domestic partnership status to be virtually identical to a civil union (which is itself identical to marriage in all but name).

Although these rulings and legislative enactments qualify as significant victories for the same-sex marriage movement, the losses that took place during the same period were even greater. All but three states (New York, Rhode Island, and New Mexico) now expressly define marriage to include only unions between a man and a woman, and most of those expressly refuse to recognize a same-sex marriage even if validly celebrated elsewhere. New York's highest court has ruled, in Hernandez v. Robles, that it is not unconstitutional to ban same-sex marriage, though the legislature has the power (which it may well exercise) to open civil marriage to same-sex couples. Meanwhile, there have been no court decisions in Rhode Island or New Mexico about same-sex marriage at all.

Twenty-seven states have amended their constitutions to ban same-sex marriage. Only one state - Arizona - has ever voted down a state constitutional amendment to ban same-sex marriage, and eleven more states will consider such amendments in 2008 elections. Moreover, many of these amendments are drafted broadly to ban all forms of legal recognition for same-sex couples, including civil unions and possibly other status-related benefits. Because of the breadth and the inartful drafting of these amendments, courts have been asked to decide, for example, whether the University of Michigan can still voluntarily provide domestic partner benefits to its gay and lesbian employees and, as I have written about in a previous column, whether Ohio's domestic violence law applies to unmarried couples.

The Landscape is Saturated, but Litigation Remains Important

Despite the existence of pro- or anti-same-sex-marriage laws in nearly every state, litigation is still very relevant. Here's a rundown of how it can be relevant in various states:

The twenty-seven state constitutional bans on same-sex marriage can be invalidated only if they are found to violate federal constitutional guarantees of due process or equal protection. State courts are unlikely to reach this question, since same-sex marriage plaintiffs tend only to raise state constitutional challenges in state court litigation, and the U.S. Supreme Court, as currently composed, is unlikely to rule in favor of the claim for same-sex marriage. So, for now, litigation will probably not be fruitful in the twenty-seven states with state-constitutional bans, other than to curtail the unintended consequences.

In at least some of the remaining twenty-three states, however, courts may still have the opportunity to make relevant rulings on the same-sex marriage question. In some of these states, including New York and Washington, the state's highest court has ruled that the state constitution does not require the state to offer marriage to same-sex couples. In those states, the legislature could override that ruling by extending the right of marriage to such couples - but in most, the legislature has already spoken to the contrary on this question, and is unlikely to overrule itself in such short order.

However, in other states, while the legislature has banned same-sex marriage, the courts have not yet decided whether those bans will survive review under the state's constitution. The highest state court in such a state could invalidate the state's legislative ban on constitutional grounds - which would lead, effectively, to the legalization of same-sex marriage. Thus, the adoption of a statute banning same-sex marriage, unlike the adoption of a state-constitutional amendment, does not answer the question once and for all.

Finally, regardless of what laws or constitutional amendments any particular state has enacted, or what its courts have decided with respect to same-sex marriage, courts will be continually asked to recognize same-sex marriages or civil unions outside of the states in which they were validly celebrated. These lawsuits will invoke an entirely different set of doctrines, governing marriage recognition. The question will be whether a given state will recognize an out-of-state marriage or civil union that was valid in the state where it was celebrated, but would not have been valid had it been attempted in the state from which recognition is sought.

Conaway v. Deane: The Maryland Ruling

Until the recent ruling I mentioned at the beginning of this column, Maryland fell into this last category of states: That is, its legislature had passed a statute adopting a so-called mini-DOMA (patterned after the federal Defense of Marriage Act, which defines marriages for federal law purposes as a union between a man and a woman).

Section 2-201 of the Maryland law provides that "only a marriage between a man and a woman is valid in this State." Nine same-sex couples nonetheless sought marriage licenses in several counties in Maryland. When they were denied, they sued, alleging that the state's statutory ban violates the state's constitution, because it discriminates on the basis of sex and sexual orientation, and because it violates the right to privacy (where the constitutional right to marry is situated).

At the trial court level, the nine couples prevailed, convincing the judge that the state law constituted a sex-based classification for which the state has no sufficiently important justification. On appeal to the state's highest court, however, the ruling was reversed.

The court in Conaway was split 5-2 on the core question about whether the state must provide civil marriage to same-sex couples (answer: no), and 4-3 on the question whether same-sex couples are constitutionally entitled to the rights and benefits associated with marriage (answer: no).

The Court Rejected the Argument that a Same-Sex Marriage Ban is Sex Discrimination

The majority rejected each of the plaintiffs' three arguments. First, the court held that a ban on same-sex marriage is not a form of sex discrimination. Under Maryland's Equal Rights Amendment (ERA), adopted in 1972, sex-based classifications are given "strict scrutiny," which means that, to survive, a law must be narrowly tailored to serve a compelling governmental interest. But Judge Harrell, who wrote the majority opinion, concluded that because the state barred both men and women from marrying members of their own sex, it did not constitute a sex-based classification. The ERA, the court concluded, was designed to redress laws that singled out women or men as a class - not an individual woman or man - from operating on equal ground. A ban on same-sex marriage did not "place men and women on an uneven playing field."

This conclusion was sharply opposed by two of the dissenting judges, who argued that Maryland precedent clearly requires any law that classifies on the basis of a person's sex to be reviewed under the exacting strict scrutiny standard.

The Court Refused to Categorize Gays and Lesbians as a Suspect or Quasi-Suspect Class

Second, the court held that while gays and lesbians are discriminated against as a group, they are not entitled to suspect or quasi-suspect status, for purposes of a court's analysis of their constitutional claims. What that means, in a nutshell, is that laws that discriminate against them need only be reviewed under a low standard - to see if they are, at a minimum, rationally related to a legitimate governmental interest.

In a conclusion that earned much criticism, the court concluded that while gays and lesbians have been a "disfavored group," they are not politically powerless enough to justify judicial protection.

The Court Ruled that the Right to Marry Does Not Include a Right to Same-Sex Marriage

Third, the court rejected the argument that the fundamental right to marry, which has long been recognized by the U.S. Supreme Court beginning with its 1967 ruling in Loving v. Virginia (I wrote about the 40^th anniversary of Loving in a recent column), includes the right to marry a person of the same sex. "Whether a particular person may marry often has depended," the court wrote "on who historically has enjoyed that right." (Emphasis in original.) The right of same-sex marriage is not, the court opined, "so deeply embedded in the history, tradition, and culture of this State and Nation that it should be deemed fundamental."

Having concluded that the same-sex marriage ban infringed neither the rights of a suspect class nor a fundamental right, the court then subjected it only to the easiest standard of judicial scrutiny: rational basis review. Under that standard, the state must proffer a legitimate governmental interest. Maryland defended its ban on same-sex marriage by citing two state interests: an interest in maintaining and promoting the traditional institution of marriage; and an interest in fostering procreation.

The court did not consider whether the first interest (in which, conveniently, the means and the end are identical) was legitimate, because it agreed that the second one was legitimate: "[S]afeguarding an environment most conducive to the stable propagation and continuance of the human race is a legitimate government interest." And, the court concluded, there is a sufficient link between restricting marriage to opposite-sex couples and encouraging procreation. Marriage has always been "inextricably linked" to procreation, the court observed, and thus, the court claimed, it is rational to provide marriage only to those couples able to produce biological offspring.

The court did concede that the Maryland law is both under- and over-inclusive - the state permits infertile, heterosexual couples to marry, while denying marriage to those same-sex couples who do become parents through assisted reproduction or adoption. However, it noted accurately that a perfect means-end fit is not required under this standard of review. Under the rational basis test, it reasoned, as long as the legislature has not acted "wholly unreasonably in granting recognition to the only relationship capable of bearing children traditionally within the marital unit, it cannot be overridden by a court.

More Litigation Is Still to Come in the Battle Over Same-Sex Marriage

Like the rulings that preceded it, the Maryland ruling is not the end of the story for same-sex marriage, though it does continue a recent trend of state courts upholding these bans against constitutional challenges.

Both sides in Conaway have vowed to seek legislative action - opponents of same-sex marriage to secure their victory with an anti-same-sex marriage amendment, proponents to push for a new law legalizing same-sex marriage, and some middle-of-the-roaders pushing for a compromise civil union law.

On the litigation front, similar cases are pending in California, Connecticut, and Iowa. A lower state court in Iowa just recently ruled that the state's same-sex marriage ban is unconstitutional. However, the ruling was stayed pending appeal a day after it was issued (one, and only one, lucky couple managed to marry in the interim). In that ruling, Varnum v. Brien, the court held that the ban violates both the due process and equal protection rights of same-sex couples.

Doubtless, the issue of same-sex marriage will be litigated - and legislated -- until there is nothing left to litigate or legislate about. Until we reach a consensus about whether marriage should be opened to same-sex couples, however, there will always be battles to wage.