Deane & Polyak v. Conaway - Questions & Answers

Document Date: September 18, 2007
Affiliate: ACLU of Maryland

Deane and Polyak v. Conaway - Questions & Answers

What was the court's decision in Deane and Polyak v. Conaway?
In a 4 to 3 decision, the Maryland Court of Appeals ruled that the state may continue to treat committed same-sex couples as legal strangers, barring them from hundreds of family protections that the state provides through marriage.

What was the court's reasoning?
The court rejected the ACLU's arguments that barring same-sex couples from marriage is sex discrimination. While the court agreed that marriage is a fundamental right, it said there is no fundamental right to marry someone of the same sex. The court also says that laws discriminating against gay people are not subject to stringent judicial review. Although the court acknowledges that there has been a history of unfair discrimination against gay people, as a group gay people are not politically powerless. The court then used the least demanding form of constitutional analysis to determine if the ban violated the state's equal protection guarantees and said that excluding same-sex couples from marriage might rationally be related to fostering procreation, so the state can continue to deny same-sex couples the ability to marry and its family protections.

What is the next step?
The ACLU and Equality Maryland are committed to securing marriage for same-sex couples in Maryland and will now take this issue to the state legislature. Several state lawmakers have already agreed to sponsor a bill that would change the state's marriage laws to include same-sex couples.

Is the court's decision final? Can it be appealed?
The decision is final. The Maryland Court of Appeals has the final say in cases brought under the Maryland constitution, like this case, and there can be no more appeals.

What was the goal of Deane and Polyak v. Conaway?
In this lawsuit, the ACLU represented nine lesbian and gay couples who are in committed relationships and who would like to marry as well as a gay man whose former partner passed away and who would like to marry his current partner. On their behalf, the ACLU challenged a Maryland law that discriminates against same-sex couples in marriage. In doing so, the ACLU worked closely with Equality Maryland, the leading advocacy organization for lesbian, gay, bisexual and transgender (LGBT) Marylanders and their families. The lawsuit charged that excluding same-sex couples from marriage violates the state constitution's guarantees of equality. The state provides hundreds of protections to straight couples who marry but denies those protections to lesbian and gay couples who, like straight couples, need the protections of marriage for their families during times of hardship such as illness and death. The goal of this lawsuit was to extend marriage and the protections that come with it under state law to same-sex couples.

How are same-sex couples harmed by their inability to marry?
Married couples and their children enjoy hundreds of protections under state law, and hundreds more under federal law, which are unavailable to same-sex couples and their children. This lawsuit directly addressed only protections under state law. These protections, however, would grant same-sex couples some of the most important safeguards during their times of greatest need. Under state law as it currently exists, it is possible for individuals to be barred from visiting their same-sex partners in the hospital and to be left out of conversations about emergency medical care for their same-sex partners. State inheritance laws refuse to recognize same-sex couples, often leaving surviving partners with nothing if deceased partners die without valid wills. Similarly, surviving partners can be barred from making funeral arrangements for deceased partners.

Laws that ban lesbian and gay couples from marriage also have devastating effects on their children. While Maryland allows the non-biological and non-adoptive parents in lesbian and gay families to seek second-parent adoptions, this process is costly and leaves children vulnerable while the adoption is being finalized. Perhaps more importantly, children of same-sex couples are denied the security of knowing that their parents have a legally recognized relationship with one another, setting them apart from many of their peers.

Wouldn't civil unions be just as good as marriage?
No. While better than no protections at all, civil unions would highlight the discrimination that same-sex couples face because they cannot marry. Even if civil unions could grant same-sex couples the same protections that marriage grants to different-sex couples - which they cannot - it is inherently stigmatizing to force same-sex couples into a separate institution that does not enjoy the universal recognition that marriage does. Telling lesbian and gay couples that their relationships must be referred to as "civil unions" rather than the socially accepted and preferred term "marriage" that straight couples are entitled to use, sends the painfully clear message that they are unworthy of full recognition by the state. What reason other than creating a sense of "otherness" could the state possibly have for creating a system that serves only to segregate same-sex couples from different-sex couples?

Civil unions would also create practical problems. Marriage is universally recognized, but civil unions are completely foreign to many people. In fact, civil unions are legal only in Vermont, New Hampshire, Connecticut and New Jersey. Comprehensive domestic partnership laws have been passed in California and Oregon. Hawaii, Maine and Washington have lesser forms of relationship protections. Rather than helping to protect same-sex couples, civil unions would create confusion and thereby hinder their attempts to protect their families. Many businesses, employers, insurers and hospitals have no idea what civil unions are and do not have rules in place for dealing with them. As Vermont's system has taught us, civil unions become even more problematic when couples leave their home state.

Civil unions would also cause harm to the children of same-sex couples. Having their parents' relationships referred to by a different name would alienate these children from their peers and create unnecessary anxiety about the meaning of their parents' relationships.

How can same-sex couples legally protect themselves?
The court decided that the host of protections afforded to married couples-from hospital visitation rights to inheritance rights to tax benefits-are not available to same-sex couples in Maryland. Although they do not provide the same level of security that a marriage does, there are legal documents available to everyone that can help same-sex couples protect their joint assets and dictate who they want to make important medical and other decisions in the event of death or disability. For more information, visit /getequal/rela/protect.html.

Is marriage for same-sex couples a civil rights issue? Are you saying that the struggle for rights for LGBT people is the same as that for African American people?
Marriage for same-sex couples is a civil rights issue because lesbian and gay couples are denied the same protections under the law that straight couples can afford to take for granted. It is unnecessary to compare one civil rights movement to another. Every group of people that has been treated unfairly has faced unique challenges: no two kinds of discrimination are the same. That said, there are common threads that run throughout our civil rights history, as recognized by the NAACP Legal Defense & Education Fund, which filed a friend-of-the-court brief in support of the plaintiffs in this case. Opponents of equality frequently try to enshrine discrimination in the law. In doing so, they typically insist that the group that they want to fence out is less worthy because they believe that its members are morally inferior. This was the justification for laws that kept women out of the voting booth and out of the workplace, as well as the justification for racial segregation. History has taught us that it is important to fight discriminatory laws and constitutional amendments that seek to make some people unequal for no reason other than who they are. Lesbians and gay men are no exception.

Hasn't marriage been traditionally defined as relationship between a man and a woman?
In the past, marriage meant something different than what it means today. In the past, women who married lost the ability to act for themselves in matters of finance and property, having no legal identity separate from that of their husbands. Now wives are co-equal partners in a marriage as a matter of law. And marriage used to be restricted along racial and religious lines, but now people are free to marry whom they love without regard to race or religion. In short, marriage was much more exclusive and restrictive in the past, but has evolved to remedy such discrimination. What has remained constant about marriage is that it is about commitment and love. Couples who make that commitment to, and have that love for, each other should not be denied the protections of marriage just because they are of the same sex.

What about religious groups that oppose marriage for same-sex couples - are you saying that they must marry gay and lesbian couples within their religion?
No. Religious organizations cannot and should not be forced to change their religious views. The constitution protects the right of people of faith to organize themselves according to their own religious beliefs and traditions. In fact, religious organizations often have religious views that differ from the law. Divorce, birth control and the death penalty are just a few examples of issues where the law may not conform to the religious beliefs and traditions of some people.

No law recognizing marriages of lesbian and gay couples would limit the freedom of religious organizations to recognize marriages within their religion as each sees fit. At issue here is civil marriage - a legal institution established and regulated by the government that grants hundreds of legal protections. Civil marriage and religious marriage are different. Indeed, every year, at least 40% of heterosexual couples in the United States choose to marry in a non-religious civil ceremony.

Don't the majority of Americans oppose marriage for same-sex couples?
Americans' attitudes toward marriage are complex. Americans' attitudes toward the rights of gay men and lesbians are evolving just as their attitudes toward the rights of other groups of Americans have evolved. Polling data show that a majority of Americans oppose discrimination against gay and lesbian people. With time and additional dialogue with the gay and lesbian community, more and more Americans will realize that it is unfair to deny same-sex couples the ability to protect their relationships and their children through marriage.

What is the ACLU doing to ensure that same-sex couples are extended the federal protections that are enjoyed by married couples?
While this lawsuit did not directly address federal protections for married couples, the ACLU is firmly committed to working to abolish laws that deny lesbian and gay people the ability to access the 1,100-plus protections that the federal government grants to married couples. The ACLU believes that it is important to continue to build public support for marriage for same-sex couples before initiating litigation against the federal government. This is why the ACLU is working with organizations like Equality Maryland on a long-term campaign that helps to educate the public about the harms that same-sex couples suffer because they are unable to marry.

What is Maryland's track record with regard to lesbian, gay, bisexual and transgender rights?
The citizens of Maryland have a history of support for equal rights for LGBT people. Maryland is among the 17 states with an anti-discrimination law that protects gay men and lesbians from discrimination in employment, housing, and public accommodations. During the 2005 session of the Maryland General Assembly, state legislators passed the Medical Decision-Making Act, which would have granted registered domestic partners health care decision-making rights on par with married couples, and a bill that would have eliminated an unfair property tax levied on unmarried couples. Even though the bills passed by wide margins, then-Governor Ehrlich vetoed both bills.

Several Maryland jurisdictions offer domestic partner benefits to the partners of lesbian and gay employees, including Montgomery and Howard Counties, and the cities of Baltimore, Rockville, Hyattsville, College Park, Greenbelt, Mount Rainier and Takoma Park. The Maryland Court of Appeals rejected a challenge to Montgomery County's domestic partnership benefit policy in 2002, unanimously affirming a lower court ruling that Montgomery County's lesbian and gay employees may be offered health and other benefits for their domestic partners.

In 1998, an ACLU lawsuit led to the Maryland courts striking down the state's sodomy law on equal protection grounds.

The Maryland courts have a good record on child custody and visitation issues involving lesbian and gay parents. Gay men and lesbians are able to adopt children, and same-sex partners are regularly granted second-parent adoptions.

Who was behind this lawsuit?
The ACLU worked hand-in-hand with Equality Maryland, the state's leading LGBT advocacy organization, as well as with allies across the state who support equality for all Marylanders.

Who was the legal team?
This lawsuit was litigated by the ACLU's Lesbian Gay Bisexual Transgender Project, the ACLU of Maryland, the ACLU of the National Capital Area, and by cooperating attorneys Andrew H. Baida and Caroline D. Ciraolo of the Baltimore City law firm of Rosenberg Martin Greenberg, LLP.

What is Equality Maryland?
Equality Maryland (formerly Free State Justice) is Maryland's largest LGBT civil rights organization, with thousands of members across the entire state. Its mission is to make life better for LGBT Marylanders. Equality Maryland works to secure and protect the rights of LGBT Marylanders by promoting legislative initiatives at the state, county and municipal levels. Its professional lobbyists and legislative team work with allies in the Maryland General Assembly to shape and pass positive legislation in Annapolis and to beat back discriminatory legislation. Equality Maryland has fought diligently in the state capitol and counties and cities throughout the state to win equal rights. In 2001, it succeeded in a 10-year effort to win an anti-discrimination law in the state that protects Marylanders from discrimination based on sexual orientation. In 2002, it secured anti-discrimination protections for transgender individuals in Baltimore City.

Equality Maryland's sister arm, the Equality Maryland Foundation, works to eliminate prejudice and discrimination against LGBT Marylanders through outreach, education, research, community organizing, training and coalition building. To learn more, visit

What is the ACLU?
America's foremost advocate of individual rights, the American Civil Liberties Union is a nonpartisan organization founded in 1920. With national headquarters in New York and Washington and 52 affiliates throughout the country, it is widely regarded as the nation's premier public interest law firm. The ACLU believes that the only way to protect freedom is to stand fast for the idea that everyone, no matter how unpopular, has the same rights. The Lesbian Gay Bisexual Transgender Project is a special division of the ACLU that was founded in 1986. The goal of the Project is equal treatment for lesbian, gay, bisexual and transgender people. That means no discrimination by government, no discrimination in employment, housing, schools and public places, and fair treatment of LGBT families and relationships.

What is the ACLU of Maryland?
The ACLU of Maryland was founded in 1931. In recent years, the ACLU of Maryland has undertaken major initiatives to fight for the constitutional rights of citizens who are politically and economically marginalized -- including its case on behalf of 100,000 Baltimore City schoolchildren, its case representing 14,000 African-American families residing in public housing in Baltimore City, and its landmark racial profiling lawsuit. The ACLU of Maryland has also fought for LGBT rights by overturning the state's sodomy law and successfully challenging petition signatures that had been collected by a group seeking to bring the state's Anti-Discrimination Act to referendum.

To learn about the plaintiffs and for copies of the legal documents filed in the case, visit the case profile page.

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