Positive Liberty

Tremendous news from nearby Maryland: Baltimore Judge M. Brooke Murdock has ruled that the state’s prohibition of same-sex marriages does not withstand constitutional scrutiny (the Washington Post), also see the Washington Blade, a gay community newspaper, and the Baltimore Sun.

The decision is not yet in effect; it has been stayed pending a possible challenge in the Court of Appeals, Maryland’s highest court. But whether the decision stands or not, this case is another step forward: Even unsuccessful acts of justice create a powerful lesson for the future.

Not only that, but the reasoning of the decision is particularly eloquent and well-considered. Among the many same-sex marriage decisions I have encountered, this one should serve as a model.

More quotes, links, and analysis below the fold.

Here is the text of the case, Deane v. Conaway. Not only did it hold that a ban on same-sex marriage fails a strict scrutiny review (the standard that all sex-based statutes must meet under Maryland’s Equal Rights Amendment), it also found that the ban could not even be justified under the much looser rational basis test.

This second and otherwise wholly unnecessary claim is a further sign that — as I’ve argued in the past — the rational basis test has been steadily gaining in strength in recent years, even while the orthodox three-tiered system for deciding discrimination cases has steadily decayed.

Now this is exactly how I think things should be, as I have never been able to detect the three distinct standards of review — rational basis, heightened scrutiny, and strict scrutiny — in any constitution that I have ever read. They strike me as fabrications, and they are perhaps useful as such, but I suspect we could arrive at the very same results that we have today (or perhaps even better ones) without this extraconstitutional interpretive crutch.

Gays and lesbians, moreover, would be better served if they were not turned into a suspect class, that is, a group subject to either heightened or strict scrutiny, as racial groups are under the U.S. Constitution and as genders are under Maryland’s. (Notably, this decision did not consider homosexuals as a suspect class; it considered instead the rights of women and of men as classes singled out in the law, and noted that the rights of each were being diminished in reciprocal ways. This to me was exactly the right way to approach the matter, as anyone at all should have the right to marry either a man or a woman).

Making homosexuals a suspect class would deny the occasional but very real mutability of human sexuality, as suspect-class status has traditionally entailed an immutable characteristic. Sexuality is not always immutable, and I would not want anyone to think that their rights hinged on attempting to change in one direction or the other. I would also prefer to avoid the multiplication of suspect classes merely for the sake of legal economy, and if justice may be obtained through other channels, as I think it can, and as this case strongly demonstrates, then that is the path we should take.

Here are some highlights from the opinion:

Defendants argue that promoting the traditional family unit, in which the heterosexual parents are married, and encouraging procreation and child-rearing within this traditional unit, are legitimate government interests… Plaintiffs do not contend that these are not legitimate state interests. Therefore, the analysis will be confined to whether Section 2-201 is related to these goals. The Court concludes that the prohibition of same-sex marriages is not rationally related to the state interest in the rearing of biological children by married, opposite-sex parents.

Indeed, the prevention of same-sex marriages is wholly unconnected to promoting the rearing of children by married, opposite-sex parents… This Court is similarly unable to find that preventing same-sex marriage rationally relates to Maryland’s interest in promoting the best interests of children. Courts finding such a rational relationship exists conclude that it is reasonable for the state to decide that children born and raised by two married, opposite-sex parents “will have better opportunities to be nurtured and raised by two parents within long-term, committed relationhips, which society has traditionally viewed as advantageous for children.” [...] This Court is unable to agree to such broadly stated principles because the vast number of assumptions necessary to do so exceeds the scope of reasonable legislative speculation….

To support 2-201, the Legislature would have to have concluded that children raised by opposite-sex married couples are better-off than children raised by same-sex married couples. To do so, the General Assembly may have assumed that opposite-sex marriages less frequently end in divorce, that opposite-sex couples are better parents, or that opposite-sex couples focus more on their children’s eduction. But these assumptions are not rational speculation; they are broad unsupported generalizations…

…The court finds unpersuasive the arguments of Defendants and others that statutory prohibitions on same-sex marriage do not create gender-based classifications because each prohibition applies equally to both sexes. These arguments are illogical and inaccurate. The equal application theory must be rejected because the theory has already been addressed and rejected in Maryland. Burning Tree Club, Inc. v. Bainum (Burning Tree I) 305 MD. 53, 501 A2d 817 (1985); Giffin v. Crane 351 MD 133, 716 A.2d 1028 (1998). Proponents of the equal application theory argue that prohibiting same-sex marriage does not constitute gender discrimination because all men and all women are equally precluded from marrying someone of their own sex; neither gender has greater or lesser rights than the other…. According to this theory, no gender classification exists and a state’s Equal Rights Amendment is not implicated. Thus, a state need not show that compelling interests support its discrimination.

Proponents of the equal application theory distinguish statutory bans on same-sex marriage from the now defunct anti-miscegenation statutes prohibiting marriage between interracial couples. In Loving v. Virginia, where the Supreme Court struck down Virginia’s anti-miscegenation statute, Virginia advanced an equal application theory to defend the statute prohibiting interracial marriage… However, the Supreme Court struck down the statute, finding that the State did not meet its heavy burden of justifying the racial classification. Courts finding same-sex marriage bans constitutional declare their holdings consistent with Loving’s holding because of key factual and logical differences between the two cases. This Court is unpersuaded that sufficient differences exist to distinguish the cases…

It makes little sense… to deny that the same-sex prohibition created a gender-based classification; and, then to state that the “operative distinction” between Loving and the same-sex marriage case is the legal union of a man with a woman. Despite the insistence that no gender classification exists, the relative genders of a same-sex couple are the very crux of the matter.

This Court finds that the equal application theory fails as a matter of law because it is inherently illogical as a matter of fact. It is inaccurate and overly abstract to describe 2-201 as equally prohibiting men and women from marrying members of their own sex. Section 2-201 bars a man from marrying a male partner when a woman would enjoy the right to marry that same male partner. As compared to the woman, the man is disadvantaged solely because of his sex.

Although tradition and societal values are important, they cannot be given so much weight that they alone will justify a discriminatory statutory classification… Similarly, expressing moral disapproval of a class is not sufficient to sustain a classification where there is no other legitimate state interest.

This last point strikes me as one of the most salient in the entire debate. Where, for instance, Jews may find eating pork immoral or even revolting, and where Catholics may think it utterly depraved to consume any meat at all during Lent, there is no state interest to either of these determinations. The same applies to mainstream Christians’ disapproval of homosexuality. It must go the way of dietary prohibitions, which may be utterly binding — and no less sacred — to the faithful, even while the religious groups themselves would never dream of using the government to impose such practices on others. A state action springs from a state interest, not from a moral injunction alone.

Also see footnote 9, page 10, which was a lovely added bonus:

Vermont considered “civil unions” to be a constitutionally adequate alternative to same-sex marriage. Without disparaging the value of unions created in those jurisdictions, this Court concludes that such a “separate but euqal” remedy is not a remedy at all.

Wow. I’m thrilled. Just about Kitzmiller thrilled. Now the big question…

Are we getting married?

I hate to disappoint, but we aren’t.

Even if no appeal emerges — an unlikely scenario — Scott and I already are married under the laws of Canada, and, even in this best-case scenario, there should be no need to do it again as far as Maryland is concerned. We’ve long talked about some kind of renewal-of-vows ceremony once our marriage was recognized at home, yet even that is still a long way off. We now live in Washington, DC, not in Maryland, and DC will likely be one of the last places in the country to get same-sex marriage: So long as Congress controls the city, and so long as the Republicans control Congress, our union will be relatively unprotected.

Still, all in all, it’s been a great day for gays and lesbians — and marriage.