More than two years after nine gay and lesbian couples challenged local clerks of courts to issue them marriage licenses, Maryland's battle over same-sex marriages moves to the state's highest court tomorrow — an emotion-charged case whose consequences seem sure to reverberate across the legislature and the electoral landscape.
The arguments before the Maryland Court of Appeals will propel the state toward what legal experts predict will be a long, bitterly fought struggle over who is entitled to the rights and benefits of marriage.
… In arguments before the Court of Appeals, attorneys representing the plaintiffs, who filed the lawsuit in July 2004, will contend that Maryland's 1973 law defining marriage as a union between one man and one woman violates their constitutional rights.
The primary argument of the state attorney general's office will be that the matter should be decided by the legislature.
It will probably be a long, bitter fight, but I think there's a good shot that we'll end up with civil unions, if not full marriage equality. Either way, I intend to be a part of helping make it happen in whatever way I can. (To that end, I've already joined Equality Maryland, and will take part in whatever actions or activities they're engaged in.)
A little background. Earlier this year a circuit court judge ruled that the state's ban on same-sex marriage wouldn't stand up to constitutional challenge. Now the nine couples who challenged the ban are having their day in court, and telling their all-to-familiar stories.
Plaintiffs and their supporters are hopeful that opponents will see the human face of the issue.
The plaintiffs represent longtime committed couples from throughout Maryland, including an older gay couple who say that without marriage, they cannot be guaranteed the right to make medical decisions for each other.
Another couple, Lisa Kebreau, 38, and Mikkole Mozelle, 30, say they have spent nearly $6,000 on legal documents, including medical directives and reciprocal powers of attorney, to ensure that their children are protected if one of them were to fall ill or die.
"That's a little scary," Kebreau said. "Since there is no established legal relationship, then technically my partner would be a stranger to the child she helped conceive."
And, before the usual crazies descend, I'm pretty sure "helped to conceive" means her partner contributed financially to the IVF conception process and/or supported her emotionally, financially, etc. from conception through birth, and continue that support after birth. You know, the way spouses do when they have kids. Ideally anyway.
By the way, Kebreau and Mozelle are an African American lesbian couple. In fact three of the nine couples that make up the plaintiffs are African American gay and lesbian couples. Interestingly enough, all three couples are also parenting. You can meet them and the others via the ACLU profiles of plaintiffs. They also include a couple that had to deal with a deportation notice and a forced parting that a married heterosexual couple wouldn't have to face; one family in which one partner and her children had to go without health insurance a married spouse would have been eligible for, and was barred from seeing her partner in the hospital after gall bladder surgery; a senior citizen couple with 28 years together, worried about being separated in a nursing home; and one man who's story is more familiar than perhaps most people know.
John, 40, is the chief code compliance officer for the City of Hagerstown in Western Maryland. He previously worked as a police officer and deputy sheriff in Virginia. John's late partner Jim died suddenly in 2003 at 33. Jim had worked in the hotel industry as an internal auditor. They had been together nearly 14 years.
The home John and Jim shared in Hagerstown was in Jim's name. Had John and Jim been able to marry, John would have inherited the home. Although Jim had a will leaving his entire estate to John, it was legally invalid because it was signed by only one witness and Maryland requires two. As a result, John had no rights to his partner's property. Had John and Jim been able to marry, John would have inherited the home under state inheritance laws that protect family members. Because John could not afford to purchase their home from Jim's estate, he was forced to move out of his own home in his time of grief.
And before you start in on "legal documents," remember Lisa Kebreau and Mikolle Mozelle spent $6,000 on legal documents to give them just a few of the rights that heterosexuals can get for the cost of a marriage license and a short wait. The cost of a marriage license is $55 in my area of Maryland, and the wait is about three days. That and a blood test gets you about 1,040 federal rights and protections in addition to whatever you get from the state. And those rights, the federal ones at least, will follow you anywhere you go. Marry in Maryland, and you're married in Mississippi, Montana, Mexico, and Moldavia. And no matter what happens, you don't even have to draw up so much as a will, because your spouse will automatically inherit a portion of your estate. (Business licenses in your name are inheritable too, as part of those 1,040+ rights and protections you got for $55 and a 3-day waiting period.)
By contrast Kebreau and Mozelle spent something like 109 times the cost of a marriage license, for legal documents that get them a tenuous hold on maybe three of the 1000+ benefits and protections of marriage, and the process of drawing up their documents probably took more than three days. And even then there's no guarantee those documents will be recognized or honored when presented at the hospital, as happened to Bill Flanigan. And the few rights you may secure at a much higher price, you must leave at the state line if you so much as take an overnight trip or a vacation, because you can't take them with you. So, if you're gay, you pay more, wait longer, and get less. And what you get may turn out to be nothing, but you won't know that until you really need it. Nevermind that some states have tried to nullify even those few meager, shaky legal protections. Meanwhile, you keep contributing to Social Security, pensions, and health insurance your partner can't share or inherit; basically subsidizing heterosexuals who do get all the rights and protections of marriage, at a discount compared to what the "gay tax" gets you.
It will be interesting to see what the court decides and how, but I fear I don't know enough about the legal and political issues particular to Maryland, being new to the state. So, I take my cue from those who have more insight than I do on those issues. In that regard, it's encouraging to note that Dave over at the Maryland Politics blog says that if the Court of Appeals upholds the lower court's decision it will be difficult to overturn in the legislature. And it's encouraging to see that Bruce over at Crablaw expects a "New Jersey-like" decision, that dodges the marriage question and throws it to the legislature.
If that happens, I expect that we'll end up with a civil unions bill when the dust settles. After all, the legislature in Maryland is inclined to offer legal rights and protections to same-sex couples. They did it last year, only to have the Republican governor veto it and then turn around and try to present his own bill to do pretty much the same thing. That suggests to me that the state legislature and the state voters are at least somewhat inclined to support legal rights and protections for same-sex couples, if not marriage itself.
But there will probably still be a huge, bitter legislative fight. And one of my concerns is how it will play out in African American communities. Maryland's black legislators were split over the circuit court decision earlier this year, and that combined with the strength of black homophobia in some quarters could be a serious challenge to overcome. I hope that in the battle sure to ensue if the court rules in favor of equality that the African American couples among the plaintiffs will be be front and center, putting a face on the issue and telling their stories to people in black communities.
And of course, if there's anything I can to do help, I will.
After all, I've got a man I want to marry legally, and a tuxedo that's been hanging in my closet for too long.