Maryland High Court Rules Against Same-Sex Marriage Suit

Maryland High Court Rules Against Same-Sex Marriage Suit

The Maryland Court of Appeals (which is Maryland's highest court) has ruled against a lawsuit that claimed that "one man, one woman" violates the Maryland Constitution's equal rights regardless of sex provision. To my surprise, the Court of Appeals examined the evidence from contemporary documents to demonstrate that (surprise, surprise) in 1972, there is simply no evidence that this provision was intended to give women a right to marry women. No surprise; if anyone had claimed that this was the purpose, and been taken seriously, it would have gone down to defeat. The objective of the clause was to prohibit discrimination against women as a class that gave them less legal rights than men--and incidentally, guaranteed the reverse as well--that men could not be given less legal rights than women.

I'm glad to see the Court of Appeals decision deals with the Loving case, in which the U.S. Supreme Court struck down a Virginia law that punished interracial marriages contracted elsewhere, pointing out that the Virginia law was intended to promote white racial superiority, as evidenced by how it only prohibited whites from marrying non-whites; blacks could marry Asians, for example, without breaking the law.

Most importantly, the Court of Appeals concluded that there was no fundamental right to marry members of the same sex, and that such a law only has to pass the rational basis standard of review.

Unfortunately, the Court of Appeals repeats the falsehoods of Lawrence v. Texas (2003) that

For a significant period of American history, homosexual persons generally were not the object of regulatory focus because sexual and gender orientations differing from “traditional” sexual preferences were not well conceptualized by the public until after the Civil War.

... [T]he “concept of the homosexual as a distinct category of person did not emerge until the late 19th century”.

This is clearly false--not even open to serious argument, since a number of Colonial statutes did specifically prohibit homosexual conduct. The concept certainly existed, even though the word itself did not. As an example, consider this New Haven statute published in a 1656 law book:

If any man lyeth with mankinde, as a man lyeth with a woman, both of them have Committed abomination, they both shall surely be put to death. Levit. 20. 13.