ANNAPOLIS – When Attorney General Douglas Gansler issued his February opinion recognizing same-sex marriages from out of state, it made Maryland the next state to watch on gay marriage.
The prediction seems logical in a state dominated by Democratic voters and legislators, many of them liberal-leaning.
But far from calling a victory, advocates are counting on a counterintuitive strategy: Stalling.
That’s because a referendum is likely to follow passage of any new marriage law, and voters have not favored gay marriage in states where a popular vote was held. Advocates here want to put off that possibility until public opinion moves more in their favor.
In more than a decade of bills on same-sex marriage, none have passed the General Assembly. And as Maryland follows the trajectory of states that have legalized gay marriage, advocates may not want a vote anytime soon.
For the third year, Delegate Ben Barnes, D-Prince George’s, and Sen. Richard Madaleno, D-Montgomery, have filed bills to statutorily legalize same-sex marriage.
“Every year we’ve put the bill in, we’ve gotten progress,” Barnes said.”That says a lot about where this assembly and where this state is going.”
But advocates don’t expect either bill to pass in what little time is left in the legislative session, and that may work to their advantage.
“The national partners we work with are experts on how this has worked in other states, and they agree we are well-poised,” said Morgan Meneses-Sheets, executive director of Equality Maryland. “We will be in a stronger place a year from now, even six months from now.”
Part of the strategy is to not rock the boat. Advocates also want to avoid a high-profile legal challenge that could trump Gansler’s opinion — even from gay couples seeking to enforce the directive Gov. Martin O’Malley made to state agencies to honor out-of-state marriages.
Instead, advocates want to build grassroots support from churches and African-American groups while fallout from the opinion settles.
Black voters turned out in large numbers for California’s Proposition 8 in 2008, with 70% voting against gay marriage. But religion was a much larger factor there, something advocates in Washington addressed by assembling an advocacy board of more than 200 clergy members. The district began allowing same-sex marriages earlier this month.
About a quarter of Maryland residents are African-American. And though several black churches have come out in support of same-sex marriage, Bishop Harry Jackson of Beltsville’s Hope Christian Church was a powerful voice against gay marriage in the district.
But as supporters bide their time, opponents have been spurred to action.
Delegate Don Dwyer, R-Anne Arundel, has promised to bring impeachment charges against Gansler on the House floor next week, despite a warning from Speaker Michael Busch, D-Anne Arundel, that he would be ruled out of order. Dwyer has sponsored bills defining marriage as between a man and a woman for the past five years.
Delegate Joseph C. Boteler III, R-Baltimore County, asked the state prosecutor last week to bring charges of “willful neglect of duty” against Gansler.
And House Minority Leader Anthony O’Donnell, R-Calvert, introduced an emergency bill to halt enforcement of the opinion until the legislature or a court rules on the issue. A companion bill is in the Senate.
“The monopoly here in control of the legislature doesn’t want to address the political controversy,” O’Donnell said. “Let there be no doubt, the Democrat party are the ones who make sure those bills die.”
But one Democrat wants to bring the issue directly before voters as soon as possible. Delegate Frank M. Conaway Jr., D-Baltimore, sponsored a bill that would redefine marriage in Maryland as between two consenting adults. As a constitutional amendment, it would require a referendum.
The delegate is not the first Conaway to be involved in this issue. Conaway’s father, Baltimore City Circuit Court Clerk Frank M. Conaway Sr., was sued in 2004 by a group of gay couples for refusing to issue them marriage licenses.
Judge M. Brooke Murdock initially ruled in favor of the couples, finding that prohibiting them from marrying violated the state’s Equal Rights Amendment. Dwyer attempted to impeach Murdock. The decision was reversed by the Court of Appeals, setting legal precedent that opponents have cited against Gansler’s recent opinion.
But the younger Conaway said he aims to break years of political stagnation in the House Judiciary Committee with his bill. Conaway said he sees himself, Barnes and Dwyer as united in that effort, if not in ideology.
“You can see now there are three people on the same committee that are making motions towards resolving the same problem,” he said. “We are trying to resolve the issue this year, instead of in the next three years.”
Conaway’s bill makes advocates uneasy.
“(T)his would not be the way to go for a number of reasons,” said Meneses-Sheets. “To have the majority voting on the rights of a minority population is just never a good idea, and it’s a pretty unacceptable way to try to make progress.”
Conaway said his intent was to offer the Judiciary Committee some course of action they could agree on.
“It’s a secondhand choice,” Conaway said. “Some people might not want to vote on it in an election year … but they might allow it to be brought to the voters.”
O’Donnell said a referendum would work in favor of traditional marriage.
“Like it has in every other state where it’s gone to the people, I’m confident as to how the people are going to decide on that,” O’Donnell said.
But how Marylanders would vote on the issue isn’t so clear.
A poll of 960 voters released in January by Greenberg Research found Marylanders supported same-sex marriage 47 percent to 44 percent. The poll, commissioned by Equality Maryland, found that if gay marriage were legalized, more than half of voters would vote to preserve the law. Thirty-nine percent would vote to overturn it.
Nationally, a majority of Americans do not support same-sex marriage. A 2009 Pew Research Center poll found that 53 percent of Americans were against legalizing it, while 39 percent supported it.
Age presents one of the biggest divides, with 58 percent of Americans under 30 supporting same-sex marriage, compared with 22 percent of those over 65.
Such fluctuations could make legislators reluctant to commit in an election year, said Matthew A. Crenson, professor emeritus of political science at Johns Hopkins University.
“The elderly vote in large numbers,” he said. “And that’s where you’re likely to find the most opponents of gay rights.”
For politicians who have long been vocal either for or against gay marriage, taking a public stance poses little risk. The real action, say advocates, will come from the “moveable middle.”
The Third Way, a Washington-based, moderate think tank, polled more than 600 voters in both Maine and Washington state following their November referenda on gay marriage. They looked at voters who did not support gay marriage, but did support some rights for gay couples.
Voters in the “moveable middle” are turned off by gay marriage being presented as a civil-rights issue, the polls found. They object to marriage being “redefined.” However, these voters also tend to know gay people in their personal lives.
According to a 2007 national poll by the Pew Research Center, people who report having a gay family member or friend are twice as likely to support gay marriage as those who don’t know anyone who is gay.
Crenson said this social shift could affect attitudes among voters and legislators alike.
“The fact that so many people have come out, especially public figures, has promoted a sea change in attitudes toward gays,” he said.
There are four openly gay members in the General Assembly, including Madaleno and Delegate Heather Mizeur, D-Montgomery.
“It’s been my experience that having a seat at the table and a presence in the chamber has given me opportunities to forge relationships that would be considered strange bedfellows,” Mizeur said.
“When you have out gay and lesbian legislators in the same chamber, it causes folks to take a deep breath and step back and contemplate the humanity side of the issues we are dealing with here,” she said.
Those who hoped Gansler’s opinion would bring immediate changes may be frustrated by another session of legislative inaction.
But O’Donnell said waiting out the election year would ultimately allow both sides more time to strategize around Gansler’s opinion, something his bill seeks to force by suspending recognition of out-of-state gay marriages.
“We need the benefit of time to determine what the people want,” O’Donnell said.
“Marriage has been between a man and a woman since Maryland has existed,” said O’Donnell. “So, if it’s another four months or another 400 years … I don’t think there’s any urgency. It’s more important to get it right than to get it quick.”
For Madaleno, Barnes and their supporters, the time will allow them to build a dialogue in the legislature.
“With each passing legislature, you’re going to see more and more support for this,” Barnes said. “You have a lot of reasonable people here who want to do the right thing.”