Same-sex marriage in Maryland

Same-sex marriage in Maryland has been legal since January 1, 2013. In 2012, the U.S. state‏‎ Democratic representatives, led by Governor Martin O'Malley, began a campaign for its legalization. After much debate, 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. The law took effect on January 1, 2013 after 52.4% of voters approved the law in a statewide referendum held on November 6, 2012. The vote was hailed as a watershed moment by gay rights activists and marked the first time marriage rights in the United States have been extended to same-sex couples by popular vote.

At the rise of the same-sex marriage movement in the early 1970s, Maryland established the first law in the United States that expressly defined marriage to be a union between a man and a woman. Attempts to both ban and legalize same-sex marriage in the 1990s and 2000s failed to gain enough support from central committees of the state legislature. Roman Catholic authorities throughout the state were adamantly opposed to the legalization of same-sex marriage, saying it deeply conflicted with the best interests of society and would threaten religious liberty. The debates produced disputes between individuals who had been traditionally aligned on causes and prompted sharp criticism from African-American religious leaders who said same-sex marriage would "disrupt the fabric of the culture."

Before passage of the Civil Marriage Protection Act, the state recognized same-sex marriages performed in other jurisdictions following the 2010 release of a legal opinion from Attorney General Doug Gansler in his nine-month analysis of comity laws. In 2012, the Maryland Court of Appeals maintained Gansler's analysis and issued a unanimous decision in Port v. Cowan finding that a same-sex marriage performed out-of-state must be considered equal and valid under state law, despite its earlier decision in Conaway v. Deane (2007) in which the court upheld the statutory ban on same-sex marriage as constitutional.

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 in the state ratified Article 46 of the Maryland 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, 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, 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 spectators, 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 (ERA) as plaintiffs argued. Judge Harrell said that the ERA was intended to prohibit sex discrimination against women and did not apply to this case, which he said was a matter of sexual orientation. Judge Lynne A. Battaglia wrote a dissenting opinion stating that the statutes and ordinances in Maryland barring discrimination based on sexual orientation, in addition to 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 for a full trial 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 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 and state agencies could begin immediately to recognize out-of-state same-sex marriages. He said that he expected the opinion to be quickly challenged in court.

The opinion garnered negative reactions from some Republicans, socially conservative Democrats, and several African-American lawmakers, including delegates Emmett C. Burns, Jr. and Don Dwyer, who spoke out against the opinion and promised to initiate impeachment proceedings against Gansler. "It is not up to the attorney general, and that's the reason I will be bringing charges of impeachment," Dwyer said in statement where he described the attorney general as usurping the law. The Roman Catholic archbishops of Washington and Baltimore and the bishop of Wilmington also took "strong exception" to the decision.

Port v. Cowan
Recognition of same-sex marriages from other states became precedent when the Court of Appeals agreed to hear a case from Prince George's County, where two women who were legally married in California had been denied a Divorce by the circuit court. On May 18, 2012, the court published a unanimous ruling in Port v. Cowan that validated the marriage of Jessica Port and Virginia Cowan because it said "no viable decision by the Court had deemed a valid foreign marriage to be 'repugnant'," even if the marriage was void or punishable as a crime were it performed in Maryland. The opinion cited conflicts that arose from decisions in Anne Arundel and St. Mary’s counties where two same-sex couples had their petitions for divorce granted, and another case in Baltimore City where it was denied. The decision of the court was based on the state's traditional use of the common law doctrine of comity, which specifies that Maryland "will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation but out of deference and respect."

Legislative action
After the Court of Appeals upheld the statutory ban on same-sex marriage in 2007, state senator Gwendolyn Britt of Landover Hills, along with delegates Victor R. Ramirez and Benjamin S. Barnes, sought to sponsor a marriage bill in the legislature. On January 12, 2008, Britt died of heart failure. Equality Maryland executive director Dan Furmansky, who originally approached Britt to sponsor the legislation, said her death was a "devastating loss, but civil rights struggles are greater than any one person, and as our fight for equality in Maryland continues, her spirit will be with us." On January 25, 2008, the Religious Freedom and Civil Marriage Protection Act was introduced in the House of Delegates. The Senate version of the bill was introduced by senators Richard Madaleno and Jamie Raskin the same day. Advocates held a rally in support of the bill on February 11, 2008, but it ultimately failed in committee, alongside a constitutional ban introduced by Don Dwyer.

Domestic partnerships
While early efforts to legalize same-sex marriage failed, the legislature approved two bills in 2008 that granted all unmarried couples certain domestic partnership rights, including the ability to make hospital and nursing home visits, end-of-life choices and other medical decisions, in addition to rights to joint property ownership. Domestic partners must be at least 18 years old and be able to provide an affidavit attesting to their relationship along with two documents, such as joint checking accounts, mortgages or car leases; coverage on health insurance policies or the designation as a primary beneficiary in a will. The laws went into effect on July 1, 2008.

Civil Marriage Protection Act
The General Assembly first considered the Civil Marriage Protection Act in 2011. Governor Martin O'Malley stated that he would sign the bill, despite urges from then-Archbishop of Baltimore Edwin Frederick O'Brien requesting that he "resist pressure to do so." O’Malley said "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 Senate, which was thought to be the biggest obstacle to passage, approved the bill in a 25–21 vote. The House of Delegates proved to be a challenge, where same-sex marriage advocates struggled to gain support from social conservatives from Prince George's County, southern Maryland, and the Baltimore suburbs who cited religious concerns.

The debate highlighted disagreements between openly gay lawmakers and some black lawmakers on whether same-sex marriage is a matter of civil rights. 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 through the committee after its chairman, who rarely votes in committee, voted in favor. The House Majority Whip opposed the bill. Despite pleas from gay lawmakers, the House of Delegates voted to send the bill back to committee on March 11, 2011 and would not reconsider it before January 2012.

Referendum
The Civil Marriage Protection Act was reintroduced to the General Assembly on January 23, 2012. The new version of the bill contained provisions that more explicitly protects religious leaders, institutions, and their programs from legal action if they refuse to officiate or provide facilities for a same-sex marriage or couple as a matter of their doctrine. During the legislative process, several high-profile political figures attempted to persuade legislators to vote in favor of the bill, including former President Bill Clinton, former Vice President Dick Cheney, Terry McAuliffe, and Ken Mehlman. The House of Delegates passed the bill with a 72–67 vote on February 17, 2012 and the Senate passed with a 25–22 vote on February 23, 2012. To secure support from some lawmakers who desired to submit the law to public referendum, the bill was amended to take effect on January 1, 2013.

Governor O'Malley signed the bill on March 1, 2012. In June 2012, referendum supporters submitted 109,313 valid signatures to the state secretary, more than the 55,736 required for a ballot in Maryland. The language of Referendum Question 6 informed voters that the Civil Marriage Protection Act would allow 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. On November 6, 2012, the measure passed with 52.4% of the vote. 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 on the licenses specified January 1, 2013. 21 out of the 24 counties in Maryland chose to issue the licenses ahead of schedule.

Economic impact
A study from the University of California, Los Angeles estimated in 2007 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 support for the law hit 55% and 51%, respectively.
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