Gay Marriage Shot Down In Maryland & California genre: Gaylingual & Polispeak
A ruling by Maryland's Court of Appeals and a statement issued by California Governor Schwarzenegger effectively kills efforts to adopt same sex marriage in both states.
The ruling in Maryland reverses a lower court ruling that determined a 1973 ban on gay marriage was unconstitutional. In its decision, the higher court rejected the argument though it stated that the ruling in no way prevented the legislature from adopting same sex marriage if it was so inclined.
With regards to California, despite hopes for a change of heart, the announcement from the Governor was in line with his prior veto of similar legislation. Schwarzenegger contends that signing such legislation would nullify Proposition 22, a voter initiative passed in 2,000 which bans the recognition of same sex marriages enacted in other states. Supporters of the new legislation argued that Proposition 22 didn't specifically ban same sex marriage in the state.
The California Supreme Court is scheduled to take up the issue of same sex marriage later this year or in early 2008.
BALTIMORE -- Maryland's highest court on Tuesday upheld a state law defining marriage as a union between a man and a woman, ending a lawsuit filed by same-sex couples who claimed they were being denied fundamental rights.
Maryland's 1973 ban on gay marriage does not discriminate on the basis of gender and does not deny any fundamental rights, the Court of Appeals ruled. It also said the state has a legitimate interest in promoting opposite-sex marriage.
"Our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex," Judge Glenn T. Harrell Jr. wrote for the majority.
(Sacramento, California) Gov. Arnold Schwarzenegger has announced he again will veto legislation that would allow same-sex couples to marry in California. And he warned lawmakers that they can keep on passing the bill and he will continue to veto it.
The only thing that would change his mind, he said Monday, is if voters overturned Proposition 22 which was passed by the electorate in 2000 to stop gay marriage, but which courts have ruled only applies to marriages performed out of state.
"It would be wrong for the people to vote for something and for me to then overturn it," Schwarzenegger told reporters at a news conference.
While the decisions are disappointing, the issue is far from over as efforts to enact same sex marriage are ongoing in a number of states as well as through the judicial system. With the upcoming 2008 election, the timing of any legislation or court rulings in favor of same sex marriage would have the potential to motivate evangelical voters who currently appear less motivated than they have been in past elections.
Despite predictions that same sex marriage will not be an issue of significant attention in the upcoming election, I expect the GOP to utilize the controversy in the period just prior to the election. Past campaigns suggest that raising the fear of same sex marriage in values voters proximate to an election serves as an effective motivating tool. There is little reason to believe that the GOP would forego the use of any weapon in their arsenal.
Tagged as: 2008 Election, Arnold Schwarzenegger, California, LGBT, Maryland, Same-Sex Marriage
Daniel DiRito | September 18, 2007 | 9:22 AM
Comments
1 On September 18, 2007 at 2:20 PM, Elizabeth Schmitz wrote —
From <a href="http://schmitzblitz.wordpress.com Schmitz Blitz
I’m not familiar with the intricacies of the Maryland constitution, but I’m going to offer some thoughts on point 3 it relates to the United States constitution (and maybe some of the others in future posts, time permitting).
The Supreme Court has stated that fundamental rights are “those liberties that are deeply rooted in this Nation’s history and tradition," and have repeatedly found that marriage is included in the list of fundamental rights. Opponents to marriage equality argue correctly that same sex marriage has never been apart of our nation’s history or tradition.
Marriage itself, has. Herein lies the distinction. Same sex couples are not asking for the right of some special same sex marriage, they are asking for the right to be included in the preexisting institution of marriage, pure and simple.
The way that a right is defined plays a huge role in determing if its is in fact a legitimate right or no. The more broadly defined, the more likely it is to fit within tradition, thus being upheld, and vice versa.
Imagine if this ‘most specific’ methodology had been applied in Loving v. Virginia, which struck down the state’s ban on interracial marriage. Had the Lovings claimed that the right to a mixed race marriage was rooted in our nation’s history and tradition, they would have been instructed to review the long history of America’s antimiscegenation laws. The first antimiscegenation law in North America was enacted in Virginia in 1691. Thirty one states maintained such laws by 1945; sixteen states still held them by the time Loving was decided.
Further, in Dred Scott v. Sandford, Chief Justice Taney cited the long standing antimiscegenation laws in his decision to deny citizenship to blacks, stating, “intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes" The Lovings’ claim was upheld, because they called upon the more general right to marry, rather than the specific right to marry someone of a different race, which clearly went against the longstanding traditions of the United States.
The Loving decision provides an important comparison for those who support same sex marriage. First it establishes that one of the most basic decisions in family life is the decision of whom one chooses to marry. It shows that the right to marry is not limited to longstanding legal or cultural traditions of exclusion. It also provides a framework by which the right of gays to marry should be addressed.
Just as the Lovings petitioned for, and the courts recognized, the fundamental right to marry, rather than the fundamental right to marry someone of a different race, so too should courts recognize that gays seek the right to marry in the broadest sense, rather than the specific right to marry someone of the same sex.
All of that being said, though I would have welcomed a decision from the court that recognized the equality of gay families, I respect their restraint. I have said before that I believe decisions involving divisive social issues such as gay equality are better decided by the legislature rather than judges, even if it means the path to equality is slower. I believe the legislature lends an air of legitimacy that the judiciary is largely lost.
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