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Lawmakers lose bids in suit over gay marriage

October 03, 2004|by ANDREW SCHOTZ

andrews@herald-mail.com

WASHINGTON COUNTY - A Baltimore judge has refused to let eight state legislators voluntarily become defendants in a lawsuit aimed at overturning Maryland's gay marriage ban.

"They're trying to go through the courts. ... We feel that's a legislative issue," said Sen. Alex X. Mooney, R-Frederick/Washington.

Mooney and Del. Christopher B. Shank - members of Washington County's delegation to the Maryland General Assembly - were among the eight.

"We say the courts have no business determining these issues," Shank, R-Washington, said, criticizing a Massachusetts court decision that advocated gay marriage.

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In a one-sentence order on Sept. 17, Baltimore City Circuit Judge M. Brooke Murdock rejected the lawmakers' motion. "[T]he intervention would unduly delay and prejudice the adjudication of the rights of the original parties," Murdock wrote.

The American Civil Liberties Union sued five circuit court clerks - including Washington County's - over the gay marriage ban on July 7.

Same-sex couples were refused marriage permits in Prince George's, St. Mary's and Dorchester counties and Baltimore City, the suit alleges.

A Hagerstown man, John Lestitian, is the Washington County plaintiff, even though he did not ask for a marriage permit.

Lestitian has said that his lack of standing as a spouse created a legal ordeal when his longtime partner, James Bradley, died in 2003 and that he merely is seeking equal rights.

The lawsuit seeks to invalidate Maryland Family Law, which says: "Only a marriage between a man and a woman is valid in this state."

Dan Furmansky, the executive director of Equality Maryland - an advocacy group for gay, lesbian, bisexual and transgendered people - said the lawmakers' attempt to intervene was a sign of desperation.

"Of course, we didn't want to be cocky, but we felt that they were grasping at straws," he said.

Furmansky said the legislators' cries of "judicial activism" don't withstand scrutiny.

"What we're challenging is the constitutionality of Maryland's marriage law," he said. "Would they roll back all of the important civil rights decisions ... because society wasn't legislatively ready to make them happen - lowering the voting age, granting the right to vote to women, Brown v. Board of Education? ... The public was overwhelmingly opposed.

"They toss around the term 'activist judges' because they don't agree with the decisions."

Shank said the legislators wanted to assert that if the rules governing marriage change - which could happen in court - they should be involved.

Asked if there was a difference between enacting a new law and striking down an existing one, Shank said, "It's pretty much the same concept."

Besides Shank and Mooney, the other legislators who sought to be co-defendants were: Sen. Andrew P. Harris of Baltimore and Harford counties; Sen. Janet Greenip, Del. Herbert H. McMillan and Del. Donald H. Dwyer Jr., all of Anne Arundel County; and Del. Joseph C. Boteler III and Del. Emmett C. Burns Jr., both of Baltimore County.

Burns is a Democrat; the other seven are Republicans.

Shank said Friday that the group hadn't decided if it will appeal Murdock's decision.

The American Center for Law and Justice - which says it has a "national network of attorneys who are committed to the defense of Judeo-Christian values" - is representing the group, according to Mooney.

Even if the legislators don't appeal - or if the appeal fails - they will monitor the case and likely will file an amicus brief, Shank said.

Then, "we'll go on the offensive," he said.

An attempt to amend the state constitution to forbid gay marriage failed during the last legislative session. Shank said it will be introduced again this coming session.

Gay marriage is being debated in several other states and at the federal level.

On Thursday in the U.S. House of Representatives, 227 members voted to amend the U.S. Constitution to ban gay marriage and 186 voted no. Because the measure required a two-thirds majority to pass, it failed, according to The Associated Press.

In July, the U.S. Senate also failed to pass an amendment to ban gay marriage.

After the ACLU filed the Maryland lawsuit in July, the office of Attorney General J. Joseph Curran, a Democrat, released a statement that quoted him saying, "It is not surprising that given the recent national wave of lawsuits and activism surrounding the issue of same sex marriage, a challenge has been filed to Maryland law ...

"This Office has advised repeatedly that, in our view, the Family Law Article unambiguously defines marriage in a way that excludes same sex couples. However, it seems appropriate that the issue, which has been framed as a matter of civil rights, be decided by the courts."

Shank said Curran's welcoming attitude toward judicial involvement helped spur the eight lawmakers to do something.

But Lestitian said the plaintiffs correctly took their grievance to court.

"It is the job of the judiciary to interpret the laws and to interpret the constitution," he said.

The legislators' attempt to intervene "shows their clear willingness to impose their individual will, not a collective will," Lestitian said.

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