A Sad Day in Maryland
Submitted by linda on September 18, 2007 - 1:10pm.
I didn't expect the high court in Maryland to get it so wrong. They reversed a lower court decision that struck down Maryland's ban on same sex marriage.
To make the argument that gay citizens are a politically empowered class when at the state and federal level there exists so much blatant legislative discrimination is absurd. While great strides have been made, the fact is that gay people are still political fodder for wrong wing extremists.
Then we get the idea that prohibiting gay marriage promotes procreation and the traditional family unit. Prohibiting gay marriage won't procreate one new person or preserve one nuclear family. All it does is make it harder for committed couples to have or adopt children and to protect their own families. Any judge who can turn a blind eye to that fact is actually practicing the kind of discrimination they claim doesn't exist.
That's what makes this so difficult. In many ways the law has become like statistics. You can make anything out of it you want if you try hard enough. Unfortunately, our friends in Maryland are the latest group to suffer from this institutionalized discrimination.
While I'm sure they will continue work for equality, today has to be a hard day for the friends of equality in Maryland. I know it is for me and I'm only from Maryland and haven't lived there since I graduated from high school.
The cliche is that Rome wasn't built in a day and equality certainly won't be won in a day either. Setbacks are going to happen and we have to keep working toward that goal. Ultimately that's going to require us to become as politically powerful as the poor deluded justices believe we already are.
There is still progress to be made at the federal level with the Employment Non-Discrimination Act and trhe Hate Crimes bill. At the state level, there is still work to be done both in Maryland and Virginia. Marriage would get us a big chunk of that progress in one step but it looks like we have to keep taking the small steps. So, while today may be a disapointment, we can get there. The silver lining of this decision is that it will win sympathy for our cause in Maryland and even here in Virginia. Most people don't like to see groups singled out and with every bad decision we get a little stronger. We have to build on that and continue to change public opinion.
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legal analysis
From Schmtiz Blitz: schmitzblitz.wordpress.com
From Schmitz Blitz: schmitzblitz.wordpress.com
The Supreme Court has stated that fundamental rights are “those liberties that are deeply rooted in this Nation’s history and tradition,” and have repeatedly found that marriage is included in the list of fundamental rights. Opponents to marriage equality argue correctly that same sex marriage has never been apart of our nation’s history or tradition.
Marriage itself, has. Herein lies the distinction. Same sex couples are not asking for the right of some special same sex marriage, they are asking for the right to be included in the preexisting institution of marriage, pure and simple.
The way that a right is defined plays a huge role in determing if its is in fact a legitimate right or no. The more broadly defined, the more likely it is to fit within tradition, thus being upheld, and vice versa.
Imagine if this ‘most specific’ methodology had been applied in Loving v. Virginia, which struck down the state’s ban on interracial marriage. Had the Lovings claimed that the right to a mixed race marriage was rooted in our nation’s history and tradition, they would have been instructed to review the long history of America’s antimiscegenation laws. The first antimiscegenation law in North America was enacted in Virginia in 1691. Thirty one states maintained such laws by 1945; sixteen states still held them by the time Loving was decided.
Further, in Dred Scott v. Sandford, Chief Justice Taney cited the long standing antimiscegenation laws in his decision to deny citizenship to blacks, stating, “intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes” The Lovings’ claim was upheld, because they called upon the more general right to marry, rather than the specific right to marry someone of a different race, which clearly went against the longstanding traditions of the United States.
The Loving decision provides an important comparison for those who support same sex marriage. First it establishes that one of the most basic decisions in family life is the decision of whom one chooses to marry. It shows that the right to marry is not limited to longstanding legal or cultural traditions of exclusion. It also provides a framework by which the right of gays to marry should be addressed.
Just as the Lovings petitioned for, and the courts recognized, the fundamental right to marry, rather than the fundamental right to marry someone of a different race, so too should courts recognize that gays seek the right to marry in the broadest sense, rather than the specific right to marry someone of the same sex.
All of that being said, though I would have welcomed a decision from the court that recognized the equality of gay families, I respect their restraint. I have said before that I believe decisions involving divisive social issues such as gay equality are better decided by the legislature rather than judges, even if it means the path to equality is slower. I believe the legislature lends an air of legitimacy that the judiciary is largely lost.
Air of legitimacy?
I understand what you are saying Elizabeth, however, why on earth do we think this way about courts?
Courts are a very critical and constitutionally provided for EQUAL branch of government. Courts exist to correct what legislatures or executives who misapply law get wrong, and all are equally important, equally legitimate, and equally constitutionally necessary to prevent any branch from becoming too powerful.
The framers intended courts to create rightful progress when legislative and executive leadership fails.
Different from other negative decisions?
Indeed, it is disappointing. I have not read the decision itself yet and probably won't have time to do so until this weekend, but one question pops into my mind.
Is the rationale used in this decision any better, or any worse, than some of the very (in my opinion) erroneous, inaccurate, and highly discriminatory argument used in the New York state, and Washington state rulings?
I can recall some extremely offensive and grossly inaccurate statements and rationale in those decisions, and I hope the court in Maryland did not stoop to the same level. I am concerned about this given your comments on the "encouragement of procreation" and the role of the so-called "traditional" family having to be composed on one man and one woman, instead of simply two loving committed parents who do everything in their power to provide a good family and home life to the children they love and cherish.
You know that expression freedom isn't free? Well, that certainly applies to GLBT couples who are discriminated against in multiple facets of our laws. On to the Maryland legislature, I suppose.
I think it's similar
I'm not a lawyer and I won't even pretend to fully understand the legal jargon they write in these decisions. But, from a very brief skim it appeared to be similar to the New York decision.
They appeared to give credence to the procreation argument even though banning gay marriage does nothing to promote procreation. They also said that since there's no tradition of gay marriage there's no fault of the legislature for banning it. This fails to acknowledge the fact that at various times there have been traditions of marriage-like things (afrerement, romantic friendship, Boston marriages) and that there have been literally centuries of institutionalized discrimination.
children should be warned
I hear you....