The debate in Maryland, where the House of Delegates approved a gay-
marriage bill on Friday, made clear that the decision finding unconstitutional California’s ballot initiative banning gay marriage will have consequences nationwide—at least until the Supreme Court visits the issues.
The decision in Perry v. Brown last week by a panel of the Ninth Circuit Court of Appeals to overturn Proposition 8 was not considered legally consequential when it was issued. The ruling was tightly worded so that it only applied to those states where gay marriages were performed prior to being invalidated, a condition that applied only to California.
But the debate in Maryland, where Gov. Martin O’Malley has pushed the bill, which is expected to be approved by the State Senate next week, shows how Perry will shape future state legislation legalizing same-sex marriage. It means that allowing gay marriage has become the equivalent of opening Pandora’s box. Once a state has allowed just one gay or lesbian couple to marry, legally there is no going back.
The crux of the Ninth Circuit’s decision was that Proposition 8 violated the due process and equal protection clauses of the 14th Amendment by creating a situation where “a privilege or protection is withdrawn without a legitimate reason from a class of disfavored individuals, even if that right may not have been required by the Constitution in the first place.” It cited the 1996 Supreme Court case of Romer v. Evans to support this proposition. In that decision, the court invalidated an initiative passed in Colorado that prohibited the state, and any jurisdiction therein, from passing a law prohibiting discrimination based on sexual orientation. This meant, in the Ninth Circuit’s view, that once California had allowed same-sex couples to marry, it could not then rescind that allowance through Proposition 8.
There have been two significant amendments to the Maryland marriage bill, both intended to insure no same-sex couples in the state can be married until all legal challenges are exhausted. The first amendment, which changed the effective date of the legislation from Oct. 1 to Jan. 1, induced Wade Kach, a conservative Republican from Baltimore’s outer suburbs, to back the bill. The change in date ensured that there was no possibility of same-sex marriages occurring before a possible voter referendum on the bill. The second amendment, from Tiffany Alston, a Democrat from Prince Georges County, an African-American majority jurisdiction just outside of Washington, D.C., suspends the law from coming into force until all legal challenges have been heard and would also invalidate the law should any of its protections for religious institutions be overturned in court. Alston, who is currently under indictment for theft, had flip-flopped on same-sex marriage last year, co-sponsoring the bill but then voting against it in committee.
Both amendments have significant consequences in the aftermath of Perry v. Brown. Their inclusion in the final bill means that no gay marriage can be performed in Maryland until all legal and political remedies to prevent it have been exhausted. This language will likely become boilerplate in future statewide efforts to pass same-sex marriage, just as language allowing conscience-based exemptions for religious institutions has become a legislative staple. It forecloses any rush to the courthouse for same-sex couples, as occurred in California in 2008 when many gays and lesbians hurried to wed before the Election Day referendum. The earliest that any same-sex couple could be wed in Maryland is January 2013, and even that date may prove optimistic.
The Prop 8 decision made allowing gay marriage the equivalent of opening Pandora’s box. Once a state allows just one such couple to marry, legally there is no going back.
These changes to the Maryland bill are not epochal. In fact, they are dry and procedural enough that it is unlikely they will spark significant outrage. But they will have real practical effects. Perry v. Brown’s ultimate consequences will be to drag out the state-by-state legal battles after legislative approval. The Ninth Circuit’s reasoning was elegantly crafted to invalidate Proposition 8 on the narrowest possible legal grounds. But that reasoning, intended to aid same-sex couples in California, will likely force gays and lesbians in Maryland and other states that pass similar legislation in the future to wait even longer to be married.