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Appeals Court upholds Maryland marriage ban
ACLU represented nine couples and a widower

by Wanda Pico . Contributing Writer

Among the nine couples suing for marriage rights were 25-year partners Lisa Polyak, 45, and Gita Deane, 44.

ANNAPOLIS, Md. — The Maryland Court of Appeals, the state’s highest court, ruled Sept. 18 that same-sex couples do not have a constitutional right to marriage equality. The 4-3 decision reversed a lower-court ruling that Maryland’s ban on gay marriage violates the state’s Equal Rights Amendment.

The lawsuit, Conaway v. Deane and Polyak, was brought by the American Civil Liberties Union (ACLU) and cooperating attorneys at Equality Maryland on behalf of nine same-sex couples, including 25-year partners Gita Deane and Lisa Polyak, and a widowed gay man (see sidebar) who had been denied marriage licenses.

In January 2006, the Baltimore City Circuit Court ruled that denying same-sex couples marriage licenses violates their equal protection and due process rights.

One of the dissenting Appeals Court judges agreed. He said the legislature should either be required to adopt civil unions or marriage. The other two felt that the case should be sent back to the lower court for a trial to see if the government has a good enough reason to bar gay couples from marriage.

The majority opinion rejected the ACLU’s arguments that barring same-sex couples from marriage is sex discrimination. While the court agreed that marriage is a fundamental right, it said there is no fundamental right to marry someone of the same sex.

Patrick Wojahn, 31, and Dave Kolesar, 29, have been together for six years.

Ken Choe, a senior staff attorney with the ACLU Lesbian Gay Bisexual Transgender Project, argued the case before the court. Following the proceeding he said, “The court refused to recognize that lesbian and gay couples form committed relationships and loving families just like heterosexual couples.”

He added that the court used the least demanding form of constitutional analysis to determine that excluding same-sex couples from marriage might rationally be related to fostering procreation, which means the state is within its rights to deny gay couples the ability to marry.

Looking ahead, Choe said, “We’re hopeful that, unlike the court, the legislature will see that lesbian and gay Marylanders shouldn’t be barred from the hundreds of important protections that come with marriage simply because the person whom they love is a person of the same sex.”

Equality Maryland Executive Director Dan Furmansky echoed Choe’s call for legislative relief. “It is now time for the General Assembly to honor Maryland’s tradition of tolerance and justice, and to strike down the ban on marriage for same-sex couples,” he said.

When gay marriage advocates take their struggle to the General Assembly, they will have two vocal allies supporting them. Prince George’s County Democrats Sen. Gwendolyn Britt and Delegate Victor Ramirez have vowed to sponsor bills in their respective chambers to legalize gay marriage.

In a statement, Matt Foreman, executive director of the National Gay and Lesbian Task Force, said, “All of Maryland’s families want, need and deserve the protections, rights and responsibilities that support and sustain them in good and bad times. We applaud the tremendous courage of the plaintiffs and the hard work of the ACLU attorneys.

“This is not the end of the fight for marriage equality in Maryland; instead, it sparks a persevering and determined movement to push onward.”

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