On September 18, in Conaway v. Deane, Maryland became the latest in a string of non-Bible Belt states whose high courts have declined to impose recognition of same-sex marriages.
Last year, the same result came from New York and Washington. On the other hand, New Jersey's Supreme Court gave gay marriage advocates more than it denied them: It said no to same-sex marriage per se, but then required the state to recognize "civil unions." Gay marriage opponents argue (rightly) that this issue is better decided by legislatures than by courts, so New York's legislature is moving ahead with a same-sex marriage bill that Governor Spitzer, unlike Governor Pataki, will almost certainly sign (though it's being effectively blocked by Joseph Bruno, the Republican head of the state senate). Also on the horizon is both judicial and legislative action in California, and possible legislative action in New Jersey.
The voluminous Maryland opinion, accompanied by extensive dissents, has several noteworthy features:
(1) Maryland's Equal Rights Amendment cannot be read to require same-sex marriage, the court found. Here a historic role-reversal is going on: To win passage of the various ERAs, both the federal one and its duplicates in the states, ERA advocates minimized its scope. Because the Maryland ERA tracks the language of the (failed) federal ERA, the Conaway opinion quotes heavily from congressional ERA supporters and proponents in elite law reviews. Back in the day, ERA opponents, led by Phyllis Schlafly, argued that courts might interpret the amendment to require gay marriage. The majority of the Maryland court in Conaway simply reaches back into the denials of ERA proponents, and takes them at their word. (The timing of Maryland's law banning recognition of same-sex marriage--1973--may have something to do with its state ERA, enacted in 1972.)
(2) Equal Protection analysis: The Maryland Supreme Court joins the majority of federal and state courts in holding that "gay, lesbian, and bisexual persons" are not "suspect or quasi-suspect classifications." "In spite of the unequal treatment suffered possibly by Appellees and certainly a substantial portion of citizens similarly situated," the court writes, "we are not persuaded that gay, lesbian, and bisexual persons are so politically powerless that they are entitled to 'extraordinary protection from the majoritarian political process.' To the contrary, it appears that, at least in Maryland, advocacy to eliminate discrimination against gay, lesbian, and bisexual persons based on their orientation has met with growing successes in the legislative and executive branches of government."
Therefore, legislation that treats them differently from straight people need only pass the most lenient level of review, the "rational basis" test. This test is met by the state's interest in procreation and family life. Which brings us to:
(3) Fundamental rights: Isn't marriage one, and hasn't the U.S. Supreme Court said so? Yes--but always, and only, in connection with relationships that are by nature procreative. The history of the legal treatment of marriage in the United States (reaching back well before the term "fundamental rights" was thrown around with such abandon as it is now) shows that marriage was always considered both a natural, pre-political institution and something about which the state can and should make rules for the common good. So, there's a "fundamental right to marry," but you still can't marry your sister, or your mother, or a 12-year-old, or a tree, or anyone at all while you're already married, or someone of the same sex as yourself.
Absolutist "rights talk," of the sort used by same-sex marriage advocacy groups and aspiring California politicians, is not about "protection" or "equality" or "justice": It's about blanking the mind so that we don't ask questions such as, What is marriage for? Why do we legally recognize this kind of human relationship, out of all the human relationships that exist? Why have societies that have been all over the map on how they think about homosexual acts been as one in not even remotely considering them a basis for marriage?
As the legal history nicely amassed by the Maryland court shows, the right to marry has always been linked to procreation. That link has been emphasized by the Supreme Court, or at least mentioned by it as an important component of the marriage right, even in those "privacy" cases most relied on by gay marriage advocates. That link has frayed once or twice, in the prison cases: In Skinner v. Oklahoma (1942), Mr. Skinner, being an inmate, had no immediate marriage prospects, but he might have had, when his sentence was up, so the part of his sentence that he was challenging--sterilization--plainly interfered with his right to marry and to procreate. And Turner v. Safley (1987) involved a desired jailhouse wedding: No conjugal visits or parenting were in immediate prospect. But neither inmate was a lifer, and so (as the Maryland court points out) consummation and childrearing were future possibilities. So the link between procreation and the right to marriage bends but never breaks.
The procreation connection will be a factor in California's In re: Marriage Cases, mentioned above. There, a group of family law and policy scholars (Hadley Arkes, Robert P. George, Leon Kass, James Q. Wilson, Steven Calabresi, and others), represented by attorney Joshua Baker of Maggie Gallagher's Institute for Marriage and Public Policy (iMAPP), argues in an amicus brief for the positive value to society of marriage as traditionally understood.
If they thought advocates on the other side would be hostile, perhaps they weren't prepared for those on their "own" side. California's attorney general--former Gov. Jerry Brown, considered a friend of gay rights when he was governor in the 1970s--has specifically repudiated iMAPP's brief--although as attorney general he is at least nominally supporting California's statute. The scholars' latest brief opens: "Our brief filed at the appellate level was inappropriately repudiated by the Attorney General, who seriously misunderstood our argument. We do not here assert the state's interest in marriage is grounded in negative views about gay people or their families. Instead we argue that marriage has a historic public and legal purpose which is not only rationally related, but deeply rooted in facts specific and unique to opposite sex couples."
The heart of the scholars' brief centers on an argument that Maggie Gallagher has often made in public debate: Society needs future generations; sex tends to make babies, even in the contraceptive era; and a child needs a mother and a father. Thus, the case for traditional marriage is hard to make to someone who thinks human extinction is desirable or a matter of indifference (a value judgment); or who thinks contraception is flawless (contrary to fact); or who thinks that mothers and fathers are interchangeable parenting units (the most common objection).
Instead, Brown's brief defending California's restriction of marriage to opposite-sex couples argues that marriage is a "constitutionally insignificant label" under California law, and that it confers no benefits not equally secured by domestic partnerships, which already exist. To win on that basis might not be to win at all.
Maryland's Conaway decision is an important step in the marriage debate; but so too will be the California court, and also legislation pending in New York and (ironically, considering the fuss being made in its courts) California.
David M. Wagner teaches constitutional law at Regent University and blogs at ninomania.blogspot.com.