The organizations litigating the Maryland marriage case, Equality Maryland and the ACLU of Maryland, appear to be sticking to their original strategic decision: accept no less than marriage equality. The updated Q&A on both organizations websites affirms the position that civil unions are not an acceptable substitute, and declares lobbying for a marriage bill the next step. Good luck.
Speaking of legislative action, for the moment Equality California is still holding out hope and gathering signatures urging Gov. Schwarzenegger to sign that state's marriage equality bill this time around. He justified his earlier veto by reference to Proposition 22 and the popular will. One can counter that the popular will was more recently expressed by sending those who passed the 2005 marriage bill back to the statehouse, plus one more LGBT ally.
Tuesday, September 18, 2007
MD court denies marriage; reserves civil unions?
Things to note about today's decision of the Courts of Appeals of Maryland:
The court split three ways: 4-1-2. The split was 5-2 in rejecting the plaintiff couples' arguments that they were constitutionally entitled to marry. However, only four judges accepted the state's argument that the couples were not entitled to the rights and benefits of married couples. Out of the remaining four, one would have found the plaintiffs entitled the the rights and benefits of marriage but not to marriage qua marriage, while two would have struck down the marriage ban altogether.
In a lengthy footnote, the majority criticizes Judge Raker's partial concurrence for proposing the "alternate remedy" of civil unions, because the plaintiffs expressly disavowed that they wanted such a remedy. Indeed, the plaintiffs clearly stated that a separate-but-equal solution a la New Jersey would not fully remedy their injuries and might even constitute a fresh dignitary harm.
It's possible that the plaintiffs' litigation strategy determined, at least in part, the result in this case. If a new lawsuit sought a New Jersey-style remedy, the majority's analysis (at least on my cursory skimming) does not seem to rule out a victory altogether. Whether such a suit will be pursued, I'm not sure.
Another note of potential interest is that two of the judges in the majority are now past the mandatory retirement age. (Then again, the author of the partial concurrence soon will be, too.) One wonders whether marriage-equality advocates will look to the choice of new judges in considering a follow-up suit -- or, perhaps, vice versa.
The court split three ways: 4-1-2. The split was 5-2 in rejecting the plaintiff couples' arguments that they were constitutionally entitled to marry. However, only four judges accepted the state's argument that the couples were not entitled to the rights and benefits of married couples. Out of the remaining four, one would have found the plaintiffs entitled the the rights and benefits of marriage but not to marriage qua marriage, while two would have struck down the marriage ban altogether.
In a lengthy footnote, the majority criticizes Judge Raker's partial concurrence for proposing the "alternate remedy" of civil unions, because the plaintiffs expressly disavowed that they wanted such a remedy. Indeed, the plaintiffs clearly stated that a separate-but-equal solution a la New Jersey would not fully remedy their injuries and might even constitute a fresh dignitary harm.
It's possible that the plaintiffs' litigation strategy determined, at least in part, the result in this case. If a new lawsuit sought a New Jersey-style remedy, the majority's analysis (at least on my cursory skimming) does not seem to rule out a victory altogether. Whether such a suit will be pursued, I'm not sure.
Another note of potential interest is that two of the judges in the majority are now past the mandatory retirement age. (Then again, the author of the partial concurrence soon will be, too.) One wonders whether marriage-equality advocates will look to the choice of new judges in considering a follow-up suit -- or, perhaps, vice versa.
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