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Appropriate judgment

On Tuesday, the Maryland Court of Appeals turned down a challenge to the state's Defense of Marriage Act, declining to invent a state constitutional right to same-sex marriage. I was surprised but pleased by the opinion, as the Court applied an appropriate standard of review (rational basis) for the existing DOMA, and concluded that the statute did withstand rational basis scrutiny. Moreover, the Court noted that it was following the majority of state courts that have taken up the issue since 2003's Goodridge in Massachusetts. As this was one of the likeliest states to have followed the Massachusetts court (which the plaintiffs certainly believed, having chosen to bring the challenge here and won in the lower courts), it is somewhat of a relief to see the Court, albeit by only a 4-1-2 vote, effectively ruled that the issue was the province of the legislature. Thus, SSM advocates vowed to take the matter to the legislative.

I'm glad they want to go to the legislature now rather than attempting to circumvent the legislative process, but I hope they intend to have a fair debate. Eighteen months ago, Maryland delegates killed by procedural maneuvering an attempt to place a marriage amendment on the 2006 ballot, so that Marylanders could decide the issue for themselves. The delegates at first seemed not to want to place themselves on the record - which I called a cowardly act, since if they were so much in favor of SSM, they ought to have openly supported it instead of hiding their stance from the voters and denying those same voters the chance to decide for themselves. A few days later, the entire House did vote on whether to consider the amendment, and while many Democrats joined Republicans in voting for a full legislative vote, 78 delegates showed by their vote they were not even going to consider allowing Marylanders to decide for themselves on the marriage amendment. I thought the issue might have been more salient in the 2006 elections, though it turned out not to be. Still, with a renewed focus on the issue in light of the Court of Appeals' ruling this week, I am glad to see the Republicans (again, few though they are) intend to try re-introducing an amendment to the legislature (amendments cannot appear on the ballot via popular initiative in Maryland, but must first be approved by the legislature).

"I assure you the constitutional marriage amendment will be reintroduced this session," said Del. Donald H. Dwyer Jr., an Anne Arundel County Republican and leading same-sex marriage opponent in the House. "Without it, there's nothing to preclude a future legal challenge made on a different argument or a different basis. The legislature ought to have the courage and the desire to publicly vote on the issue of marriage."

Now that we know the Court has made the judicially prudent ruling not to strike down Maryland's DOMA, I welcome a debate in the legislature - as long as delegates also act prudently, not patronizingly, by allowing open votes in the House itself and/or giving the state's voters a chance to decide the issue themselves.

Full post as published by Irish Law on September 22, 2007 (boomark / email).