Maryland Custody Law (Continued from page 14)
to heterosexual couples and concluded that “tradition and societal values alone cannot sustain an otherwise unconstitu- tional classification.”28 In Conaway v. Deane,29
the Court of
Appeals reversed and concluded that the statute did not discriminate on the basis of gender, that sexual orientation is not a suspect class under equal protection analysis, that there is no fundamental due process right to marry a person of the same gender and that there is a rational basis to restrict marriage to heterosexuals. With its decision, the High Court
demurred to the legislature on the controversial issue of marriage equality for gay and lesbian citizens and, in so doing, failed to seize the opportunity to legitimize the children of homosexual couples. The closely split 4-3 majority concluded that “our opinion should
28
Deane v. Conaway, No. 24-C-04-005390, 2006 WL 148145 (Md. Cir. Ct., Jan. 20, 2006), Memorandum of Trial Court, p. 19.
29
___ Md. ___, ___ A.2d ___ , No. 44, 2007 WL 2702131 (Md. Sept. 18, 2007).
by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex.”30 Enter into the fray our elected civil
servants. Democratic Speaker of the Maryland House of Delegates, Michael E. Busch (Dem., Dist. 30, Anne Arundel Co.) favors reform, “I believe in civil unions. I think that people should have the same right as far as probate is con- cerned, as far as health care is considered, as far as visitation and all those things.”31 Although equivocal at times, Governor Martin O’Malley has also reportedly ex- pressed support for civil unions or even equal marriage rights, provided that churches opposed to same-sex marriage would not be compelled to perform such ceremonies.32 Maryland seems poised to move to-
ward civil unions and/or full marriage equality, although predicting any time- table, let alone passage this legislative
30 31
Id., ___ Md. at ___, ___ A.2d at ___ , 2007 WL 2702131 at 49.
The Daily Record, Oct. 10. 2007, at 11A, as quoted on “The Marc Steiner Show, WYPR-FM radio, Oct. 9, 2007.
32 Id.
session, may be premature. Regardless of powerful emotions on both sides, this is an issue that will likely affect fam- ily law practice in the future. Presently, the children of gay and lesbian parents are in legal limbo, as their parents’ re- lationships are not recognizable under Maryland law. This uncertainty needs to be addressed by the Maryland legislature to provide security and equal protection for the children of same sex couples. n
About the Author
David V. Diggs is a partner with the Bal- timore firm, Kahn, Smith & Collins, P.A. His primary areas of concentration are family law and serious personal injury litigation. Mr. Diggs chairs MTLA’s Fam- ily Law Section and also serves on the editorial board of the Trial Reporter. He is a member of the Maryland State, Bal- timore City and Anne Arundel County Bar associations. Mr. Diggs is co-chair of the CollegeBound Foundation’s Lawyers’ Campaign and was the recipient of the Maryland State Bar Association People’s Pro Bono Award in 1995. He enjoys an AV peer review rating from Martindale- Hubbell.
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Trial Reporter
Winter 2008
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