By Jamie Raskin, a Maryland State Senator representing Silver Spring and Takoma Park, and a professor of constitutional law at American University Washington College of Law, where he directs the Program on Law and Government. He was a lead sponsor of the Religious Freedom and Civil Marriage Protection Act, which passed the Maryland Senate earlier this year and, as floor leader, managed several days of legislative debate on the measure. Raskin is a Senior Fellow at People For the American Way.
Advocates of marriage equality in Maryland are delighted that our Governor, Martin O’Malley, has decided to introduce a marriage bill next year and throw himself with vigor into this important fight for equal rights for gay and lesbian Marylanders. As a lead sponsor of this year’s legislation in the State Senate--where it passed on a vote of 25-21, I have a strong sense that the Governor’s decision puts us on a clear path to victory in the House of Delegates--and soon.
To be clear, I am not one who ever faulted O’Malley (pictured) for the way things fell apart in the House of Delegates in spr
ing of 2011. Those of you watching the Bermuda Triangle-style events that took place there may recall that freshman Democratic sponsors of the bill dropped off, pleading ignorance of its meaning, while other Delegates decided to play “Let’s-Make-a-Deal” with this major piece of civil rights legislation, offering their votes only in return for a juicy piece of legislative pork for their districts. It’s true that a robust lobbying effort by the Governor might have tamed some of the wilder behavior displayed on the House side, but even the extremely able and popular House Speaker, Michael Busch, could not put out the strange political brushfires that seemed to break out on a daily basis. Three of his six Committee Chairmen themselves took a walk on us, along with one member of his Democratic whip hierarchy. The Speaker finally made the call to send the bill back to Committee without a floor vote.
I am not sure what anyone could have done in that environment to turn things around. We can’t forget that the bill that passed the Senate was a sturdy and sea-worthy vehicle that reconciled every conceivable legitimate desire for religious liberty exemption with the overriding constitutional and legal command of equal rights under law. We can’t forget that there were seven -- yes, seven -- openly gay and demonstrably eloquent Delegates in the House who beseeched their colleagues from the floor to do the right thing. (In the Senate, we have only one, the estimable Rich Madaleno.) We can’t forget that every House Republican voted against us whereas, on the Senate side, the Minority Leader, the refreshingly old-fashioned Allan Kittleman, actually gave up his party leadership post in order to support the bill and show that the party of Lincoln still has a heartbeat, however lonely and faint. We also can’t forget that there was a huge conservative religious mobilization in the state against marriage equality after we saw victory in the Senate and that Maryland, after all, was the Catholic colony back in the day.
Montesquieu had a wonderful dictum that, if failure in a battle seems to follow from one mistake or incident (i.e., the Governor was not sufficiently using his bully pulpit), don’t obsess about it because there were larger forces in motion that determined your defeat. I think that is the case here with respect to what happened in 2011. Although we had already seen at the beginning of this year dramatic changes in public opinion favoring marriage rights for all, the fact is that some elements of religious opposition remained implacable: the self-righteous fervor of some fundamentalist Christians, the intensely effective lobbying of the Catholic Conference trained on elected officials from Baltimore County and Anne Arundel, and perhaps, above all, the mobilization of several large African-American mega-churches, especially in Prince George’s County, to attack the idea that marriage rights for gay and lesbian Americans have anything to do with civil rights as we have understood them over the last half-century.
Of all these forces of resistance, the strongest and most disappointing was, of course, the last. Despite passionate pleas by Julian Bond, Coretta Scott King, Al Sharpton and other civil rights leaders to African-American legislators to break down the walls of discrimination against the gay community, I heard a lot of angry rhetoric in Annapolis about how the legislation had nothing to do with civil rights and how the experience of gay Americans could not be compared in any way to that of African-Americans.
The first problem with that formulation, of course, is that it completely denies the experience of gay and lesbian African-Americans, many of whom came to testify on behalf of the legislation, including many decorated war veterans, such as an impressive police officer from Baltimore who had served several tours of duty in Iraq and wanted only the security of knowing that, if something happened to her on the job, her partner of many years and family would still be able to survive with dignity. I heard Julian Bond say that he could never turn his back on his gay and lesbian brothers and sisters, both black and white, who marched with him shoulder-to-shoulder against segregation in the South. Anyone tempted to suppress or belittle the existence of gay African-Americans all around us should, therefore, go out right now and rent an extraordinary documentary called Brother Outsider, about the legendary Bayard Rustin, a key adviser to Dr. Martin Luther King and the organizer of the 1963 March on Washington. The stories of Rustin’s encounters with police harassment and homophobic discrimination are riveting and shocking. This film will stop dead in his tracks anyone with a conscience who still thinks it acceptable to pit the African-American and gay communities against one another.
That documentary also makes the key point missed by some of the legislators who correctly insisted that gays and lesbians as a class have faced much less violence and oppression than African-Americans as a class in our history. Freedom struggles are linked because they demand the right of everyone to live on a free, equal and dignified basis. Civil rights are not the exclusive demand of those who have seen the worst oppression and discrimination – and in our history that, of course, means African-Americans, who spent centuries in slavery. But the paradigm struggle for civil rights and voting rights for African-Americans in the 19th and 20th centuries clearly set off a passionate fight for the voting rights and civil rights of women, including African-American women, and the great Frederick Douglass himself was an early and passionate feminist who saw that one struggle for freedom is always linked to another, not only because we are all members of intersecting and overlapping communities, but because the struggle for dignity and rights is universal. Both the Civil Rights Movement and the women’s movement were important sources of insight and hope for early gay rights leaders like Harvey Milk and the multiracial crowds that fought back at Stonewall and elsewhere for basic civil rights. It is true that many more African-Americans were lynched in our history because of their race than gay and lesbian Americans who were killed because of their sexual orientation, but does anyone think that this fact undermines arguments for civil rights protections for both groups? Could anyone face the family of Matthew Shepard and tell them that his murder at the hands of homophobic fanatics does not justify civil rights protections for other gay people because not enough of his kind have been killed compared to other minorities?
When it comes to marriage, the analogies are actually pretty compelling. For centuries, in our state and in our nation, interracial marriage was banned and criminalized. It was taken for granted that people could not cross the color line to marry and all kinds of religious arguments were brought to bear on the subject. The Maryland General Assembly finally repealed our anti-miscegenation law in 1967 just months before the Supreme Court knocked all of them down on Equal Protection grounds in Loving v. Virginia. The Court emphasized that the ban on marriage was a feature of “White Supremacy” that interfered with the right of many people who love each other to marry and lead their lives on an equal basis.
Today, as a significant Equal Protection and Due Process challenge to marriage inequality makes its way to the Supreme Court, the ban on marriage rights for gay and lesbian citizens in our state operates to deny tens of thousands of people the opportunity to access the bundle of hundreds of public benefits, rights and responsibilities bound up in the institution of marriage. As with the case for our disgraceful multi-century anti-miscegenation law, there is no articulable public justification for this discrimination other than the mere fact that other people disapprove of gay people’s relationships. That is a fine reason for a church to decide never to perform weddings for gay people – and I will defend with my life the right of that church to refrain forever – but it cannot be a constitutionally, morally or politically adequate reason to deny gay people the right as citizens of the state to obtain a marriage license from the County clerk. The whole issue becomes very clear when we distinguish between the rights that all citizens must enjoy at the City Hall or County Hall versus the rights that religious institutions must enjoy in the church hall.
The Maryland Senate, I think, did an admirable job in our Religious Freedom and Civil Marriage Protection Act of reconciling the rights of all citizens with the rights of all churches. After establishing the right of all adult Marylanders to marry, we restated the constitutional standard that no minister or officiant would ever be compelled in our state to perform a ceremony he or she does not want to (and this goes also for interracial and interfaith unions). We amended the legislation to permit church-operated non-profits, like the Knights of Columbus, to deny the use of their facilities and services for the solemnization or celebration of unions they want nothing to do with. We similarly exempted a religiously operated insurance collective from having to write policies for families they did not want to.
Yet, at the same time we carefully rejected a series of ludicrously excessive proposed “religious conscience” amendments that actually sought to undermine existing civil rights laws and inscribe new rights to discriminate against the gay community. We rejected the absurd suggestion that places of public accommodation, like hotels, motels, caterers, grocery stores, and restaurants, could categorically refuse to do business with or serve gay people’s weddings. This was not only an obvious affront to the dignity of gay citizens but also would have created an anomaly in the law that a hotel could refuse to rent space for a gay wedding but had to rent space for a gay retirement party or indeed a fundraising event for Equality Maryland! We similarly voted down the outrageous amendment that court clerks and judges who had a personal religious objection to gay marriage could refuse to issue marriage licenses to gay couples. Why not interracial or interfaith couples? Can a public school teacher refuse to teach the children of a Maryland gay couple that married in Washington, D.C. or Massachusetts? The whole idea cuts directly against our state Constitution, which requires all public officials and employees to swear an oath to uphold and defend and enforce the law for all Marylanders on a fair and impartial basis. As the President of the State Senate Mike Miller (who did not vote for the bill but whose views are clearly evolving on the subject) shrewdly observed about this Amendment, perhaps the right thing for a public official to do who does not want to enforce the law is simply to resign.
There were a lot more pernicious amendments like these that we wrestled with on the floor –suggestions that public school teachers never have to acknowledge the existence of marriage for gay people or that current adoption law, which guarantees all Marylanders the right to adopt, suddenly be changed to allow adoption agencies to discriminate against gay couples – but our pro-marriage majority was well-educated and sophisticated on the public-private divide. Equal rights and status in public for all citizens, no compulsion against churches to solemnize, celebrate or support marital unions they disavow. I know that the New York legislators who championed the successful legislation there learned very carefully from our experience, as I know that we will now learn from theirs.
So I am thrilled that Governor O’Malley, head of the Democratic Governors Association and a gifted politician, has decided to make this project personal now. But I’m equally heartened for what it shows about the tremendous changes in public opinion – clearly driven by the fair-mindedness and civil libertarianism of younger generations – that are already taking place as I am for what it means for next year’s legislative push. Marriage equality is an idea, whose time has come, and one day, not long from now, people are going to scratch their heads the way teen-agers and children are doing today and they are going to ask, “What was the big deal about that?” I should probably note, in closing, that the first person to come give me a hug on the floor after we passed marriage equality in the Senate was the celebrated First Lady of Maryland, Katie O’Malley, a judge in Baltimore and the daughter of our former state Attorney General, the great civil rights hero Joe Curran, who led the fight in the 1960s to repeal the state’s anti-miscegenation law. Speaking personally, I never had any doubts about where the O’Malleys would stand on a bill for fairness and equal rights under law.
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