ACLU and Equality Maryland Denounce 4 to 3 Decision by Maryland High Court Denying Marriage Protections for Same-Sex Couples

Affiliate: ACLU of Maryland
September 18, 2007 12:00 am

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Struggle for Fairness Moves to the State Legislature

ANNAPOLIS, MD - The American Civil Liberties Union and Equality Maryland today denounced the divided Maryland Court of Appeals decision upholding a state law that bars same-sex couples from marrying and accessing the hundreds of family protections provided to married couples and their children under state law. The organizations vowed to take their struggle for marriage for same-sex couples to the General Assembly, where Sen. Gwendolyn Britt (D-Prince George's County) and Delegate Victor Ramirez (D-Prince George's) have vowed to sponsor bills to extend marriage to same-sex couples.

"We're deeply disappointed in the court's ruling," said Lisa Kebreau, who is raising three children with her partner of five years, Mikki Mozelle. "The court decided that we are undeserving of the family protections given to married couples simply because we're partners of the same sex. That's simply not right." Kebreau added, "We aren't giving up. We'll continue to fight for marriage in the legislature."

The vote in the case was 4 to 3. One of the dissenting judges said the legislature should either be required to adopt civil unions or marriage. The other two said that the case should be sent back to the lower court for a trial to see if government has a good enough reason to bar same-sex couples from marriage.

The majority opinion rejects the ACLU's arguments that barring same-sex couples from marriage is sex discrimination. While the court agrees that marriage is a fundamental right, it says 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, it says that as a group, gay people are not politically powerless. The court then uses the least demanding form of constitutional analysis to determine if the ban violates the state's equal protection guarantees and says 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 family protections.

"The court refused to recognize that lesbian and gay couples form committed relationships and loving families just like heterosexual couples," said Ken Choe, a senior staff attorney with the ACLU Lesbian Gay Bisexual Transgender Project who argued the case before the court. "We're hopeful that, unlike the court, the legislature will see that lesbian and gay Marylanders shouldn't be barred from the hundreds of important protections that come with marriage simply because the person whom they love is a person of the same sex."

"Today's court decision will not deter us," said Dan Furmansky, Executive Director of Equality Maryland. "All lesbian and gay Marylanders, including the brave couples who petitioned the court in this case, need and deserve the protections and stability of marriage for our relationships and our families. It is now time for the General Assembly to honor Maryland's tradition of tolerance and justice, and to strike down the ban on marriage for same-sex couples."

The couples in the case include:

  • Alvin Williams and Nigel Simon, who live in Prince George's County, describe their meeting ten years ago at a discussion group for black gay men as "love at first sight." Both active Baptists, the couple exchanged vows at a holy union ceremony in July 2000. The adoptive parents of three former foster children (two boys and a girl), the couple would like to be able to legally marry in order to give their children the comfort and security that come only with marriage.
  • Takia Foskey and Jo Rabb have been a family for four years and reside in Baltimore. Rabb is a bus driver for the state. Their romance began after Rabb showed kindness to Foskey's children when Foskey was struggling to get them on the bus. Although they are now raising the children as a family, Rabb cannot enroll Foskey or the children in her state employer's health plan. For a while, Foskey and her children were forced to go without insurance. Although Foskey's new employer provides insurance for her and her children, the coverage is inferior to the coverage Rabb receives from the state. In 2003, Rabb had an emergency gallbladder operation at a Baltimore hospital, and Foskey was barred from seeing Rabb or receiving any information about Rabb's condition because they were not recognized as spouses.
  • Charles Blackburn and Glen Dehn of Baltimore are senior citizens who have been together for 29 years. Ordained a Unitarian minister in 1962, Blackburn was heavily involved in the civil rights movement in Alabama in the mid-1960s. Dehn worked for 31 years as a legislative planner and analyst for the U.S. Social Security Administration. Now that the couple is in their 70s, they wonder what will happen if one of them becomes ill or incapacitated and the protections of marriage are not available to them.

The ACLU filed the challenge to the Maryland law barring same-sex couples from marrying on July 7, 2004, in partnership with Equality Maryland, the state's leading LGBT rights organization. The case was argued before Baltimore City Circuit Court Judge Brooke Murdock on August 30, 2005. In January 2006, Murdock ruled that it is a violation of the state constitution to bar same-sex couples from marriage. Following an appeal of that ruling by the state, the Maryland Court of Appeals heard argument on December 4, 2006.

In addition to Choe and David Rocah, a staff attorney with the ACLU of Maryland, the legal team includes Art Spitzer, Legal Director of the ACLU of the National Capital Area, and Andrew H. Baida and Caroline D. Ciraolo of the Baltimore law firm Rosenberg Martin Greenberg, LLP.

Biographical information on all of the plaintiffs, the legal documents, and other background materials, including a set of FAQ's about Deane and Polyak v. Conaway, are available at:, and

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