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.

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