- The Washington Times - Monday, December 4, 2006

ANNAPOLIS — Maryland’s highest court this morning heard arguments for and against homosexual “marriage,” and will issue a ruling in the coming weeks.

The state’s attorney general’s office, arguing against homosexual “marriage,” squared off against attorneys from the American Civil Liberties Union, who argued in favor.

“There is no fundamental, constitutional right to same-sex marriage,” Assistant Attorney General Robert A. Zarnoch told the Court of Appeals.

Mr. Zarnoch recommended that the seven-judge panel allow the legislature to settle the issue. He argued that the lawsuit for homosexual “marriage” seeks to redefine state law and the institution of marriage, rather than appealing to existing laws.

“The General Assembly is the proper venue to weigh these issues,” said Mr. Zarnoch, adding that a redefinition of marriage by the court would have “the unfortunate consequence of placing these issues outside the area of public debate.”

Some conservative lawmakers want to pass the issue on to Maryland voters for a referendum, but so far have been unsuccessful in doing so. They plan to try again in the upcoming session.

Kenneth Y. Choe, an attorney with the ACLU’s lesbian and gay rights project, said that state law should not exclude homosexual couples from “marrying,” because they have “committed relationships and loving households.”

“Fundamental rights belong to all Marylanders,” Mr. Choe said. “They do not belong only to those who have historically enjoyed them.”

The state’s case against homosexual “marriage” rested largely on the original intent of Maryland’s equal rights amendment (ERA) to the state constitution, and on the authority of the legislature to change existing law.

The ERA, passed in 1972, was created to eliminate discrimination against men or women based on their sex, or gender. The lawsuit, brought by 19 homosexual plaintiffs, sought to include “sexual orientation” under the word “sex.”

However, the state made clear that the lawmakers who passed the ERA in 1972 specifically did not want homosexual “marriage” to be allowed under the statute.

The same lawmakers also passed a constitutional amendment one year later, in 1973, that defined marriage as between one man and one woman, the state argued.

The state was appealing the 2004 decision by Baltimore Circuit Court Judge M. Brooke Murdoch, who ruled that the 1973 marriage definition violated the ERA and other parts of the state constitution.

Several other state courts have also ruled that their ERAs do not cover sexual orientation, and cannot be used to justify homosexual “marriage.”

Mr. Choe also said the court should not let the legislature decide the matter, and asked the court not to “capitulate.”

Judge Dale R. Cathell, who was one of only two judges to ask numerous questions, took issue with Mr. Choe’s characterization.

“I don’t equate due deference to the word capitulation […] This court doesn’t have a history of capitulation,” Judge Cathell said, drawing laughter from the packed courtroom.

Outside the courthouse, after the hour-long hearing, Del. Don Dwyer Jr., Anne Arundel Republican, told reporters he would try to put the marriage issue to the voters in the 2007 session. He has failed to garner enough support for the measure in the Democrat-controlled legislature in the last few years.

Voters in 27 states, including seven in the most recent election, have voted to define marriage in their state constitutions as between a man and a woman only. In November, Arizona became the first state in which residents voted against a ban on same-sex “marriage.”

In July, five state courts and one federal court issued rulings that upheld traditional marriage laws similar to those in Maryland.

To date, the only state to legalize same-sex “marriage” is Massachusetts by court fiat. After Maryland, pending right-to-“marry” lawsuits remain in California, Connecticut and Iowa.

Before Mr. Dwyer spoke, the 19 plaintiffs stood behind Mr. Choe and Dan Furmansky, executive director of Equality Maryland, a homosexual lobbying group.

“The only truth that really matters today is the truth that is love, the love of these couples behind me,” Mr. Furmansky said. “They love each other very, very, very much.”

Mr. Zarnoch disagreed.

“You can’t just change the state family law overnight on a court decision,” he said.

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