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OpEd in Examiner: Maryland Marriage Evolving Towards Equality

The following editorial opinion was written by PJC Murnaghan Appellate Advocacy Fellow Janet Hostetler, following up on the PJC's briefs in Maryland courts showing that marriage in Maryland has been on a long road of evolution towards greater inclusiveness and equality. Commentary Janet Hostetler: Marriage still overcoming past Janet Hostetler, The Examiner Apr 19, 2007 3:00 AM (6 hrs ago) Current rank: # 141 of 6,279 BALTIMORE - When Maryland’s highest court heard oral arguments in the lawsuit seeking marriage for same-sex couples in December, James and Colette Roberts paid attention. These Marylanders, married in 1959, could not have done so in the Free State at that time because state law prohibited interracial marriages until 1967. The Roberts married in New York, where such marriages were allowed, and later moved to Columbia. When opponents of same-sex marriage speak of a “traditional institution of marriage” threatened by unnatural unions against the will of God, James and Colette hear echoes of the not-so-distant past. The same arguments were used to fight the expansion of Maryland marriage laws to include historically excluded religious groups and the non-religious, to include couples of different racial backgrounds, and finally to eliminate marriage laws stripping women of legal rights and power. The Roberts hope that exposing Maryland’s shameful history on marriage will give the court pause when considering the discriminatory arguments made by those trying to bar same-sex couples from marriage and the hundreds of family legal protections that come with it. The Roberts joined the Organization of American Historians (the largest learned society devoted to the study of American history), 34 individual historians and scholars, the Bar Association of Baltimore City, a number of local and national civil rights organizations, and the City of Takoma Park in submitting a “friend of the court” legal brief to the Court of Appeals, Maryland’s highest court. Their brief on the history of marriage in Maryland debunks the myth that there is a unique institution of traditional marriage needing salvation from the legal union of same-sex couples. The reality is that marriage has always been an evolving institution. Consider: In Colonial Maryland, marriage was limited to couples complying with the mandates and liturgy of the Church of England. It wasn’t until later that the institution was later opened to all Christian ceremonies, and even later to all religious ceremonies. And civil ceremonies, common today, were not permitted until 1963. Likewise, Maryland prohibited marriage between slaves until 1867, soon after slavery ended. And Maryland, which holds the unfortunate distinction of being the first state to outlaw interracial marriage, did not lift that prohibition until 1967. Gender discrimination within marriage made married women lose substantial legal rights and economic power. This discrimination also evolved over the years, gradually eliminated by the 19th-century Married Women’s Acts, and then Maryland’s adoption of the Equal Rights Amendment in 1972. But the legal doctrine preventing a wife from suing her husband for damages caused by him was not fully reversed until 2003. Much heard in the debate about marriage for same-sex couples is the argument that the traditional institution of marriage will be eroded (if not destroyed) by an expansion of the marriage definition. According to the Roberts, however, an accurate understanding of Maryland’s marriage history belies this fear, even if there was a “traditional” institution of marriage to point to. Each time Maryland’s marriage law evolved — to permit civil ceremonies, to allow interracial couples to marry, and to treat men and women equally within the institution of marriage — the institution was strengthened, with significant increases in the numbers of people participating. As James and Colette Roberts await the decision by the Maryland Court of Appeals, their thoughts are not on the past but the future. They have four grown children and seven grandchildren. Three of the Roberts’ children are happily married. But the fourth, their lesbian daughter, is prohibited by Maryland’s laws from marrying. As the Roberts saw legal prohibitions to their love fall during their lifetime, they hope they will see Maryland’s courts take this opportunity to end the exclusion of their daughter from the institution of marriage. Janet Hostetler is an attorney at the Public Justice Center in Baltimore. Examiner

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