- The Washington Times - Monday, December 4, 2006

ANNAPOLIS — Lawyers for the state of Maryland yesterday said there is no constitutional right for same-sex “marriage,” but advocates for homosexuals argued that marriage is a fundamental right for all state residents.

“There is no fundamental, constitutional right to same-sex marriage,” Robert A. Zarnoch, an assistant state attorney general, told the state Court of Appeals.

Kenneth Y. Choe, a lawyer with the American Civil Liberties Union, 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 seven-member Court of Appeals — the state’s highest court — heard arguments in a lawsuit brought by nine same-sex couples and one homosexual man seeking to “marry.” The court is expected to issue a ruling in weeks.

The lawsuit challenges a 1973 amendment to the state constitution that defines marriage as a union only between one man and one woman.

Representing the state, Mr. Zarnoch said the lawsuit seeks to redefine the law and the institution of marriage. He recommended that the court allow the legislature to settle the issue.

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

The state’s case rests largely on the original intent of the Equal Rights Amendment (ERA) to the state constitution and on the authority of the legislature to change laws.

Enacted in 1972, the ERA was created to eliminate discrimination against men or women based on sex.

The lawsuit aims to include “sexual orientation” under the term “sex.”

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

High courts of several other states have ruled that their ERAs do not cover sexual orientation and cannot be used to justify same-sex “marriage.”

Mr. Choe of the ACLU said the court should not let the legislature decide the matter and asked the judges not to “capitulate.”

Judge Dale R. Cathell 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.

The state is appealing a ruling in favor of the plaintiffs issued in January by Baltimore Circuit Court Judge M. Brooke Murdoch.

Judge Murdoch ruled that maintaining traditional marriage “is not a legitimate state interest” if it discriminates against homosexuals.

Voters in 27 states, including seven in the most recent election, have opted to define marriage in their state constitutions as a union only between a man and a woman.

Last month, 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 upholding traditional marriage laws similar to those in Maryland. Only Massachusetts allows same-sex “marriages.”

Outside the courthouse after the hourlong hearing, Delegate Don Dwyer Jr. told reporters he would try again to put the marriage issue to the voters in the coming legislative session.

Mr. Dwyer, Anne Arundel County Republican, has failed to win enough support for the measure in the Democrat-controlled legislature in the last few years.

Before Mr. Dwyer addressed reporters, 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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