Friday, January 20, 2006


Hey Maryland, let me tell you what you think...

Judge Rejects Md. Marriage Law

Judge M. Brooke Murdock first heard arguments on this matter back in August 2005. The state constitution requires Circuit Court judges to render their decision within two months of hearing a case (Part II, Section 23 - Maryland Constitution - Article IV) so there have been some grumblings about the length of time it was taking her to render her decision. Well, the wait is over and, first impression: I think she could’ve used more time (Judge Murdock’s decision).

First of all, I don’t agree with the way she frames the issue. She refers to the statute in question as a “same-sex marriage prohibition” (as does obviously the Washington Post and other media outlets). But here’s how the statute reads: “Only a marriage between a man and a woman is valid in this State” So yeah, I guess it’s a prohibition on same-sex marriage but it also prohibits you from marrying your goldfish, motorcycle or the Bobbsey Twins. It’s an affirmative statement of who will be recognized as married in Maryland.

This leads to my biggest complaint with her decision: a total disregard for the timeline of events leading to the passage of the Maryland statute. In November 1972, Maryland voters ratified a constitutional amendment that more or less mirrored the proposed federal ERA. A few months later, the Maryland legislature passed the above-referenced statute. Now comes Judge Murdock, more or less telling then-Governor Marvin Mandel and the then-members of the Maryland legislature that they were morons who just didn’t understand the intent and meaning of the just-ratified Maryland ERA .

So now we have two ways to look at this decision and I don’t think either one reflects well on the Judge: Either Judge Murdock believes that when the Maryland voters were ratifying the ERA they knew they were also ratifying same-sex marriages (or at least that that knowledge wouldn’t have been a show stopper) or she is a proud adherent to Justice Brennan’s “Living Constitution” ideal.

2006 is an election year here in Maryland and I’m fairly confident that Judge Murdock’s decision will find little support with Governor Ehrlich. He should have no problem stating so unequivocally. I think this will be a little more problematic for his Democratic opponents. Let the squirming begin.

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