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PJC Files Brief Supporting Right to Same Sex Marriage in Maryland

On October 19, 2006, the PJC filed a friend of the court brief in the Maryland Court of Appeals in support same-sex couples in Maryland who wish to marry. This brief is in the appeal of the Conaway v. Deane & Polyak case, in which the trial court judge found that Maryland’s statute denying same-sex couples the right to marry violates the Maryland Declaration of Rights (the PJC also filed an amicus brief in 2005 for that stage of the proceedings).

The PJC's brief provides the Court with a full picture of the history of marriage in Maryland. Much heard in the debate about same sex marriage is the argument that the traditional institution of marriage will be eroded (if not destroyed) by an expansion of the traditional definition.  However, an accurate understanding of Maryland’s marriage history belies this fear.  In colonial Maryland only members of the Church of England were allowed to marry under the law.  Throughout our 200 years of slavery, no slaves or even free blacks were allowed to legally marry each other (much less interracial marriages, which Maryland law prohibited until 1967).  In addition, it was relatively recently that Maryland courts invalidated the common law doctrine of interspousal immunity, which prevented a wife from suing her husband for damages caused by him.  PJC’s brief explores the history of marriage in Maryland starting with its extremely exclusionary beginning.  Episodically, through legislative and judicial action, and against arguments that expansion would doom the institution, Maryland has expanded its definition of marriage and ended practices of exclusion and discrimination.  In each and every case, the expansion has not only avoided the erosion or destruction of marriage, but has strengthened that very institution. These historical examples show the propriety and capacity of the courts to play a critical role in this historical progression, by ameliorating the effects of or, in some cases, invalidating discriminatory marriage laws based on constitutional principles.

Written on behalf of a number of Maryland-based and national civil rights organizations, the City of Takoma Park and 34 historians and other scholars from universities in Maryland and around the country, it is the first amicus brief filed in a same sex marriage case by either the Organization of American Historians (the country’s largest learned society devoted to the study of American history) or the Bar Association of Baltimore City. Finally, we had two individual signatories on the brief who offered a very special perspective: the Roberts are an interracial couple who were married in New York forty-six years ago when it would have been illegal to marry in Maryland. They are also the parents of a lesbian daughter whom they hope will be allowed to marry and thus obtain the same protections for her family that their other children and grandchildren have obtained.

The amicus brief was written for the Public Justice Center by pro-bono counsel (and former Murnaghan Appellate Advocacy Fellow) Beth Mellen Harrison, Appellate Advocacy Director Suzanne Sangree, and our new Murnaghan Appellate Advocacy Fellow, Janet Hostetler.

Click here to read the complete brief.

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