September 19, 2007

Gay Marriage Fails in Maryland

Marc Comtois

Dale Carpenter writes (h/t):

By 4-3, Maryland's high court today rejected a claim for same-sex marriage under the state constitution. The opinion is more than 100 pages long and is studded with more citations to cases, law reviews and books (including, notably, William Eskridge's Gaylaw), and sociological and scientific studies, than any case yet on the issue.


SSM has lost in every state high court to consider the issue since the stunning success in Goodridge in Massachusetts in 2003. SSM legal advocates lost outright in Washington state and New York in 2006. New Jersey's high court also rejected an SSM claim in 2006, though it did order the recognition of civil unions and left open the possibility of a future pro-SSM ruling. A case is still pending in California's supreme court.

When you consider that SSM legal advocates have carefully chosen the most sympathetic venues since Goodridge, this record of losses is especially significant. It means that strong anti-SSM precedents are being created in the friendliest states, making pro-SSM rulings in other states even more unlikely in the near future. Once California is decided, the initial phase of post-Goodridge litigation will have pretty much run its course. That was the phase that was supposed to start an avalanche of pro-SSM judicial rulings that would quickly lead to gay marriage around the country. It didn't happen. Other cases are pending in states like Iowa, and there's nothing to stop gay couples from filing anywhere else, but the odds are now longer. If SSM is to advance much in the near future, it will probably have to come legislatively.

Carpenter also explains that:
  • The Maryland court rejected the argument that the ban on gay marriages is a form of sex discrimination...

  • It rejected the argument that sexual orientation discrimination should be subjected to heightened scrutiny, citing gays' legislative success in the state as evidence the group is not "politically powerless" and thus needs no unusual judicial protection from the majority.

  • It added that there is not yet a sufficient scientific consensus on whether sexual orientation is "immutable."

  • The court also decided that there is no fundamental right to marry another person of the same sex.

  • Finally, the court concluded that the limitation of marriage to opposite-sex couples is rational because it furthers (however imperfectly) the state's legitimate interest in encouraging procreation. If the correct level of scrutiny is the traditional rational-basis test, this conclusion is hard to dispute.

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    No right to sodomy marriages? Gee, next thing you reactionaries will be telling us there's no Constitutional right to paid babysitters.

    Posted by: Mike at September 19, 2007 10:27 AM

    The Rhode Island Supreme Court would probably not support gay marriage, either. And even though gay marriage may get a majority of votes by now if it hits the Assembly floor, it won't become law as long as Carcieri and Montalbano are in power (like we need another good reason to overthrow Montalbano).
    I just wonder how long both sides in the Assembly can forestall the inevitable bloodshed over this.

    Posted by: rhody at September 19, 2007 11:12 AM

    I just mailed a $100 check,to Marraige
    Equity Rhode Island

    Posted by: Earl at September 19, 2007 2:16 PM

    If you knew me and my family, Mike, you wouldn't call our marriage such hateful names.

    Or maybe you would, but not to our faces, and you'd feel guilty about it afterwards.

    I thank God every day that my family (Republicans and Libertarians all) are more enlightened than people like you. My marriage is not a shameful thing, it is not a dirty thing, it is not an immoral thing. And more and more people are realizing this; the next generation will look back on people with your attitude with both bewilderment and disgust - the exact way we look back on everyone who's been on the wrong side of civil rights debates through our nation's history.

    Posted by: Karen at September 19, 2007 4:03 PM

    And perhaps, Karen, the generation after that generation will look back and wonder why its predecessors couldn't see the consequences of attenuating the institution that presents the family unit of a mother, a father, and their mutual children as the ideal or the inevitability of marriage's demise (as an institution, if not a legal arrangement) once its opposite-sex nature is repudiated.

    Posted by: Justin Katz at September 19, 2007 6:39 PM

    Perhaps by the next generation science will have come up with a cure (perhaps a treatment in utero?) so that no child need be born afflicted with the homosexual orientation.

    For millennia it has been universally understood to be an institution between a man and a woman, an institution which advances the interests of society (mainly by promoting the continuance of a healthy and growing society by encouraging to formation of committed family units that will be inclined to raise well adjusted children). Homosexual relationships may be sexually and emotionally gratifying for the direct participants who are so oriented, but they offer nothing beneficial for society at large. Once there is a cure for homosexuality all of this nonsense attempting to redefine marriage merely to suit a political special interest group will stop.

    Posted by: Ragin' Rhode Islander at September 19, 2007 10:25 PM

    Perhaps the next generation will see those who cling to their stubborn opposition to gay marriage as the George Wallaces and Bull Connors of the early 21st century.

    Posted by: rhody at September 19, 2007 11:42 PM

    The analogy flawed Rhody, which no doubt is one reason that many Blacks aren’t happy that the homosexual lobby keeps trying to equate their efforts to the Black civil rights movement of the 1950’s-1960’s.

    Race is a normal biological variation within the human species, is biologically normal, and thus “discrimination” against people of different races is irrational.

    A basic knowledge of basic biology mandates the conclusion that homosexuality is a biological abnormality. After all, males being attracted to females, and vice-versa, is a biological necessity – it’s the way things are supposed to work. Males being attracted to males, and females to females, is unquestionably biologically abnormal, an aberration.

    Simple compassion and common sense tells us that we should display compassion and understanding toward those afflicted with homosexuality. But it sure as hell doesn’t mean that we should effectively dismantle the institution of marriage merely to accommodate an abnormality.

    So please stop with the attempt to discredit and/or intimidate into silence those who don’t agree with by using flawed analogies to erroneously associate your opponents with discredited figures from the past.

    Posted by: Ragin' Rhode Islander at September 20, 2007 12:15 AM

    Well said, Karen!

    And, Earl, I'll scrape together some $$ to send to Marriage Equity too!

    And, Big Thanks, to our host, Marc, for prompting our consciences.

    Posted by: bam in barrington at September 20, 2007 12:45 AM

    So now the truth is hateful Karen? If your relationship if founded on sodomic practice rather than natural practice, it doesn't really qualify as marriage no matter what the deluded state lets you believe.

    Posted by: smmtheory at September 20, 2007 9:21 AM

    Ragin's "Cure"

    If someone is working on a cure for Katz/Comtois Syndrome,I will send a check to that good cause also.

    Also Known as "Fred Phelps Syndrone"

    Posted by: Earl at September 20, 2007 11:20 AM

    Great to see some discussion on making equal marriage happen here in Rhode Island. We've got some upcoming opportunities to make change, and I hope some of you will join us to gather signatures, show support, and make waves. For more info call us at 401-463-5368 x344 or email info [at]

    North Smithfield Inaugural Great Pumpkin Festival
    Saturday, September 22
    10 AM - 1 PM
    (Rain or Shine)
    Meeting Location: North Smithfield Elementary School grounds, Route 5, at 2214 Providence Pike.
    Help gather signatures to be hand-delivered to state legislators asking them to support marriage equaltiy in RI. Festival features events for the whole family (including opporutnity to be photographed with a 1000 lb. pumpkin!). Great way to identify new supporters in your community. Training provided.

    Rally for 1 year of Marriage!
    Saturday, September 29th
    10 AM
    Meeting Location: RI State House Steps, Providence Place Mall side.
    Celebrate the first year of Rhode Island same-sex couples marrying in Massachusetts with a short rally and press conference. If you're a married or soon-to-be-married same sex couple, dress festively and bring your wedding photos for a group picture. Others are invited to show your support.

    19th Annual Taste of Rhode Island, Newport
    Saturday, September 29
    2 PM - 5 PM
    Meeting Location: Sidewalk, America's Cup Way and Commercial Wharf
    In front of Newport Yachting Center
    Help gather signatures to be hand-delivered to state legislators asking them to support marriage equaltiy in RI. A culinary experience on the beautiful Newport harbor waterfront featuring restaurants from all over the state, this event is likely to draw a large and supportive crowd! Training provided before shift.

    Autumnfest, Woonsocket
    Saturday, October 6
    Noon - 3 PM
    Meet at: World War II Memorial State Park, Social Street entrance
    Autumnfest is a weekend of song, dance, food, and a great place to identify new supporters of marraige equality and ask them to sign postcards for their state legislators. Kick off Colombus Day Weekend with us! Training provided before shift.

    Posted by: Jenn Steinfeld at September 20, 2007 1:41 PM

    Those last four words of the previous post say it all. People have to be trained (read: indoctrinated) to support the travesty of marriage redefinition. It doesn't come naturally.

    Posted by: smmtheory at September 21, 2007 11:35 AM

    According to Carpenter:

    >> When you consider that SSM legal advocates have carefully chosen the most sympathetic venues since Goodridge, this record of losses is especially significant. It means that strong anti-SSM precedents are being created in the friendliest states, making pro-SSM rulings in other states even more unlikely in the near future.

    * * *

    Justice Marshall et al were reckless with their studious disregarded the core of marriage.

    The Goodridge opinion, and the subsequent advisory opinion on civil union, will stand as one of the most ridiculous opinions written in a high court in the USA.

    And, to this day, the imposition of SSM's merger with marriage recognition in Massachusetts stands on Marshall's very flimsy opinions.

    The SSM campaign's courtcentric efforts have undermined the principles of self-governance as much, if not more, than it has attacked the nature of the social instiutition of marriage.

    To what end? Not "marriage equality" for SSM is not marriage. Rather, this has been about pressing identity politics into marriage law. It was unjust when the old racist identity filter was pressed into marriage; and it is unjust today when the identity filter happens to be gay.

    The nature of marriage is 1) integration of the sexes, and 2) contingency for responsible procreaton, and 3) these combined in a coherent whole.

    Meanwhile the nature of SSM is gay identity politics and little else.

    Posted by: Chairm at September 22, 2007 9:31 AM
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