Recognition of same-sex unions in Maryland

Same-sex marriage in Maryland has been legal since January 1, 2013. In 2012, the state's Democratic representatives, led by Governor Martin O'Malley, began a campaign for its legalization. A law permitting same-sex marriage was passed by the General Assembly (Maryland's bicameral legislature, composed of the Senate and House of Delegates) in February 2012 and signed on March 1, 2012. To secure initial support from certain lawmakers, an amendment to the bill postponed implementation until the following year to allow for an expected statewide vote during the 2012 general election. On November 6, 2012, voters passed Question 6 with 52.4% approval, marking the first time marriage rights in the United States have been extended to same-sex couples by popular vote.

Before passage of the Civil Marriage Protection Act, the state had only recognized same-sex marriages performed in other jurisdictions, following analysis of state law—conducted by Attorney General Doug Gansler—that released in 2010. In 2012, the Court of Appeals ruled unanimously in Port v. Cowan, that a same-sex marriage performed out-of-state must be considered equally valid under the law, despite an earlier ruling in 2007 that the statute ban on performing same-sex marriages in Maryland was not a violation of the state constitution.

History
Maryland holds a unique place in the history of same-sex marriage in the United States. In 1973, the state legislature became the first in the nation to approve a law that expressly defined "only a marriage between a man and a woman" as valid. The General Assembly passed the law a short time after voters ratified Article 46 of the Declaration of Rights, commonly referred to as the Equal Rights Amendment, in November 1972. The constitutional provision prohibited discrimination in equality of rights on the basis of sex.

During the 1990s, attempts to both ban and legalize same-sex marriage did not pass through the legislature. After the Maryland House of Delegates Judiciary Committee voted in March 2004 to reject a pair of marriage bills that would have submitted a constitutional amendment against same-sex marriage to voters and invalidated same-sex marriages performed in another state or foreign country, the American Civil Liberties Union (ACLU) and Equality Maryland filed a lawsuit, titled Deane & Polyak v. Conaway, to challenge the existing law on behalf of nine same-sex couples and one bereaved man. The lead plaintiffs of the suit, from whom the case received its name, were Gita Deane, a learning specialist at Goucher College, and her partner Lisa Polyak, an environmental engineer for the U.S. Army Medical Department. The named plaintiffs had applied for marriage licenses in several different Maryland counties but were denied by court officials. In their complaint, the plaintiffs argued that the state's statutory ban on same-sex marriage violated constitutional protections of due process, equality, and prohibitions against sex discrimination in Articles 24 and 46 of the Maryland Declaration of Rights.

In January 2006, Baltimore Circuit Court Judge M. Brooke Murdock granted summary judgment to the plaintiffs, writing that "Family law §2-201 violates Article 46 of the Maryland Declaration of Rights because it discriminates, based on gender against a suspect class, and is not narrowly tailored to serve any compelling governmental interests." She added that "tradition and social values alone cannot support adequately a discriminatory statutory classification," because "when tradition is the guise under which prejudice or animosity hides, it is not a legitimate state interest." The judge immediately stayed the decision pending an appeal by the Attorney General of Maryland, which occurred later that day.

While the decision was favored by the plaintiffs, gay rights groups and their supporters, including more than 100 religious leaders and child welfare advocates across the state who filed amicus briefs in support of same-sex marriage, other local religious leaders and evangelical ministers were upset by the decision and looked to state legislators to propose a constitutional ban on same-sex marriage. Such an amendment was favored by then-Governor Robert Erlich who said "my politics on this are very clear. We're going to protect marriage. Traditional marriage." In February 2006, the proposed ban was rejected after opponents successfully amended it to legalize civil unions.

Consequently, Delegate Don Dwyer introduced a resolution to impeach Judge Murdock in 2006, alleging "misbehavior in office, [willful] neglect of duty, and incompetency" for her trial court decision; in 2007, he introduced a law that would ban discussion of same-sex unions in public schools. One lawmaker said "It is a clear attempt to intimidate judges and to make the judiciary subservient to the legislature," and Michael Conroy, former President of the Maryland State Bar Association, said that "No basis in fact or law exists to support any suggestion to impeach Murdock for her recent decision on same-sex marriage." David Rocah, an attorney for the ACLU, called the resolution "a frivolous, dangerous and extremist response from the lunatic fringe." Both of the measures failed to pass through committee.

Conaway v. Deane & Polyak
The Court of Appeals, Maryland's highest court, agreed to hear the state's appeal in 2006, bypassing the intermediate court. To the surprise of some, there were almost no questions from the judges during oral argument, which took place on December 4, 2006, causing speculation that the court may have taken the appeal just to reverse the Circuit Court ruling. On September 18, 2007, the court issued its decision in Conaway v. Deane, overturning the trial court ruling for the plaintiffs in a 4–3 decision, and holding that the statutory ban on same-sex marriage did not violate the Maryland Constitution.

Judge Glenn T. Harrell, Jr. wrote that because the statute equally barred both men and women from marrying partners of the same sex, it was not discriminatory on the basis of sex and thus, does not violate the Equal Rights Amendment as plaintiffs argued. Judge Lynne A. Battaglia wrote a dissenting opinion stating that the statutes and ordinances in Maryland barring discrimination based on sexual orientation, including the state's lack of prohibiting LGBT adoption and its recognition of same-sex couples as co-parents, support the argument that denying committed same-sex couples the full benefits and privileges of marriage is not related to any rational government interest. Judge Battaglia said she would have remanded the case to circuit court in order to settle what she deemed a central factual issue: whether the state could demonstrate that it had "broad societal interest" in retaining marriage in the traditional form. The dissenting opinion from Chief Judge Robert M. Bell faulted the majority for not recognizing gay people as a suspect class in need of protection from discrimination. He dismissed the majority view that gays are politically empowered and should not be viewed as constituting such a class.

Evan Wolfson, founder of Freedom to Marry, said that the decision was "deeply flawed" because the 4–3 majority did not answer the question of how denying marriage to same-sex couples affects the ability of heterosexual couples to procreate. Then–President of the Human Rights Campaign, Joe Solmonese, called the decision a "setback" and Ken Choe, the ACLU attorney who argued on behalf of the plaintiffs, expressed hope that, unlike the majority of the bench, the state legislature would be able to see "that lesbian and gay couples form committed relationships and loving families just like heterosexual couples."

Recognition of out-of-state marriages
State Senator Richard Madaleno requested in 2009 that the Attorney General answer the question of whether same-sex marriages could be recognized by the state. In February 2010, Doug Gansler issued an opinion after a nine-month analysis of state laws on comity, stating that valid same-sex marriages performed in other states that permit same-sex marriage could be recognized under Maryland law. Gansler stated that the opinion was not binding on the courts, only advisory, though state agencies could begin to recognize out-of-state same-sex marriages effective immediately.

Delegates Emmett C. Burns, Jr. and Don Dwyer both spoke out against the opinion and Dwyer promised to initiate impeachment proceedings against Gansler, stating that "It is not up to the attorney general, and that's the reason I will be bringing charges of impeachment." He stated further that "The opinion doesn't change the law. It in effect usurps law." In 2011, a Washington County Circuit Court judge recognized the marriage of a same-sex couple legally married in Washington, D.C., allowing one spouse to invoke spousal privilege and refuse to testify against the other spouse in a criminal case.

Port v. Cowan
The issue of recognizing out-of-state same-sex marriages reached the state's highest court in the case of Port v. Cowan, where two women legally married in California were seeking a divorce in Maryland. The Court of Appeals unanimously held, in its decision on May 18, 2012, that the marriage must be considered valid and "treated by Maryland courts as worthy of divorce" under state law and its recognition of the doctrine of comity because "no viable decision by the Court had deemed a valid foreign marriage to be 'repugnant'," even if illegal or criminal.

Early actions
A committee in the House of Delegates voted in 1997 to reject a bill that would have legalized same-sex marriage in the state, and a bill that would have barred the state from recognizing same-sex marriages performed in other jurisdictions was also rejected. In 2007, former state Senator Gwendolyn Britt of Landover Hills, along with Delegates Victor R. Ramirez and Benjamin S. Barnes, promised to introduce a bill to legalize same-sex marriage, after the Maryland Court of Appeals' decision declaring the state's ban constitutional. Britt died of heart failure on January 12, 2008.

The "Religious Freedom and Civil Marriage Protection Act" was introduced on January 25, 2008 to amend Family Law §2-201 to define marriage as between "two people, not otherwise prohibited from marrying," along protections for religious institutions. In place of Senator Britt, Senators Richard Madaleno and Jamie Raskin introduced the bill in the senate. Nearly one quarter of each legislative chamber signed the bill as cosponsors. The bill was heard by a House committee in February 2008, recorded and aired by Maryland Public Television. Equality Maryland held a rally in support of the bill on February 11, 2008, but it ultimately failed. A constitutional amendment to ban all recognition of same-sex unions, introduced by Delegate Don Dwyer, also failed.

Domestic partnerships
Though efforts to legalize same-sex marriage failed in 2008, the legislature did grant some domestic partnership rights to unmarried couples with the passage of two bills, SB 566 and SB 597. The domestic partner benefits consist of 11 legal protections, including hospital visitation, making of funeral arrangements for each other, and adding or removing a domestic partner on a deed to residential property without incurring a tax liability, equal to married couples. Domestic partners are defined by the state as any two adults in "a relationship of mutual interdependence" who are not related by blood and who are not in a marriage, civil union, or domestic partnership with anyone else. The law did not establish a domestic partnership registry and couples may be required by officials or facilities to prove that their partnership exists by providing a sworn affidavit along with two other documents enumerated in the law, such as evidence of a joint mortgage, checking account, or insurance coverage, among others. Both bills were signed into law by the Governor Martin O'Malley in May 2008 and became effective on July 1, 2008.

Civil Marriage Protection Act
The Maryland General Assembly first considered the Civil Marriage Protection Act to legalize same-sex marriage in 2011. Governor Martin O'Malley, a Catholic, stated that he would sign the bill, although the Archbishop of Baltimore Edwin Frederick O'Brien appealed to O'Malley asking that he resist pressure to do so. O’Malley responded, "I have concluded that discriminating against individuals based on their sexual orientation in the context of civil marital rights is unjust. I have also concluded that treating the children of families headed by same-sex couples with lesser protections under the law than the children of families headed by heterosexual parents, is also unjust." On February 24, 2011, the bill passed the Senate by a 25–21 vote. The Senate was thought to be the biggest obstacle to the bill, but it encountered opposition in the House from black Democratic lawmakers from Prince George's County, who cited religious objections, and conservative Democrats from southern Maryland and the Baltimore suburbs. About a third of the chamber's 98 Democrats opposed the bill.

The debate pitted openly gay lawmakers against activists from the civil rights era. Delegate Emmett C. Burns, Jr. said: "If you want to compare same-sex marriage to civil rights as I know it, show me the Ku Klux Klan that invaded your home." Delegate Keiffer J. Mitchell, Jr., grandson of NAACP chief lobbyist Clarence M. Mitchell, Jr., said "It is a civil rights issue when we as a state and a government deny equal protection under the law." Several delegates who originally co-sponsored the bill began to express doubts after being lobbied by church-going constituents, including Sam Arora and Tiffany Alston, who delayed the bill's vote in the House Judiciary Committee by skipping the voting session. The bill passed the committee after its chairman, who rarely votes in committee, voted for it. The House Majority Whip opposed the bill. On March 11, 2011, the House voted to send the bill back to committee and would not reconsider it before January 2012. Proponents planned to reintroduce again in 2012, and opponents intended to petition the bill to a popular referendum if passed.

Referendum
The Civil Marriage Protection Act was reintroduced on February 1, 2012. This version includes provisions that more explicitly protects religious leaders, institutions, and their programs from lawsuits in the event they refuse to officiate or provide facilities for a same-sex marriage or couple. The Maryland House of Delegates approved the bill by a 72–67 vote on February 17, and the Maryland Senate approved the bill by a vote of 25–22 on February 23. The bill was amended so that it would not take effect until January 1, 2013, to allow it to face a November 2012 voter referendum. Dick Cheney and former Republican National Committee Chairman Ken Mehlman lobbied in support of the same-sex marriage bill, as well as former President Bill Clinton and former Democratic National Committee Chairman Terry McAuliffe.

Governor Martin O'Malley signed the bill on March 1, 2012, and petitioners in support of a voter referendum submitted 109,313 valid signatures in June. At least 55,736 valid signatures were required to gain a place on the ballot. On November 6, 2012, ballot Question 6 informed voters that the Civil Marriage Protection Act allows same-sex couples to obtain a civil marriage license, protect clergy from having to perform any particular marriage ceremony in violation of their religious beliefs, and affirm that each religious faith has exclusive control over its own theological doctrine regarding who may marry within that faith. The measure passed with 52.4% of the vote, making same-sex marriage legal as of January 1, 2013. On November 29, 2012, the Attorney General issued a legal opinion stating that court clerks could accept applications for same-sex marriage licenses immediately and issue them on December 6, 2012, as long as the effective date was specified as January 1, 2013. 21 out of the 24 counties in Maryland chose to issue the licenses ahead of schedule.

Economic impact
A UCLA study in 2007 estimated that extending marriage rights to same-sex couples would result in a net gain of approximately $3.2 million each year to the state budget. The study drew on data from the U.S. Census Bureau and Maryland statistical reports. The gain is attributable to savings in expenditures on means-tested public-benefit programs and an increase in sales and lodging tax revenue from weddings and wedding-related tourism.

Another Williams Institute study conducted in February 2012 estimated that in the first three years after the law takes effect, Maryland same-sex couples will generate between $40 and $64 million for the state economy, in addition to whatever revenue out-of-state couples bring. Several dozen small employers in the state have also said that same-sex marriage will be good for their businesses, helping to attract and retain talent.

Public opinion
The Lawrence Research poll was conducted by Gary Lawrence, an opponent of same-sex marriage, for the National Organization for Marriage (NOM). Eric Hartley of The Capital described this poll as a push poll intended to influence responders to give answers desired by NOM because the poll asked for the opinion of the voter personally on the issue, not the opinion of the proposed law. The stated methodology mentions no normalizing tests, and respondents were found by auto-dialing random digits until they reached a sufficient number of registered voters, rather than using a statistical representation of Maryland's electorate. The Public Policy poll from May, taken a few days after President Barack Obama announced support for same-sex marriage, showed a significant shift in support among African American and Hispanic voters in Maryland, where 55% of African Americans and 51% of Hispanics said they would support the law.
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