by Lisa Keen

Annapolis, Md.--There were almost no questions from the bench on December 4 as the supreme court of Maryland heard oral arguments in a case seeking equal rights in marriage licensing. That�s a bit unusual and, given that the lower court had ruled in favor of same-sex marriage, it could be taken as a signal that the high court took the case just to reverse it.

But Dan Furmansky, executive director of the statewide gay group Equality Maryland, is not such a pessimist. He points out that Monday morning�s argument in Frank Conaway et al. v. Gitanjali Deane was also the Maryland Court of Appeals� very first live web broadcast of an argument.

�That could have had an effect on their demeanor,� said Furmansky. �I don�t take it as a negative sign that they were not chock full of questions.�

Certainly it could be seen as a positive thing that plaintiffs Gita Deane and 17 others represented by the ACLU, won at the Baltimore Circuit Court level against the city clerks who had refused them marriage licenses. Circuit Court Judge M. Brooke Murdock ruled last January that the 1973 state law against same-sex marriage licensing violates the state constitution�s prohibition of sex discrimination.

It could certainly be seen as a positive that six of the seven judges are appointees of a pro-gay Democratic governor.

But as the state�s attorney noted in his remarks to the court, the track record among state supreme courts weighs heavily against same-sex marriage these days.

Maryland Assistant Attorney General Robert Zarnoch relied heavily on the past as prologue. He told the state high court that six out of seven other state supreme courts have rejected the gender discrimination argument. (The Hawaii Supreme Court, in a preliminary ruling, said a same-sex marriage ban is gender discrimination, but then voters amended the constitution to specifically ban same-sex marriage.)

Zarnoch claimed that a same-sex marriage case from Minnesota in the early 1970s is �binding precedent� on other courts considering same-sex marriage now. That case, Baker v. Nelson, was dismissed by the U.S. Supreme Court with no explanation beyond �want of a substantial federal question.�

He also argued that, in the early 1970s when Maryland was considering whether to ratify the proposed federal equal rights amendment, the legislature did so in part because of assurances that the measure would not open the door for same-sex marriages.

Zarnoch acknowledged that because the state allows the elderly to marry, its claim that marriage exists to ensure procreation is not a perfect one but he said that �perfection is not required.�

Responding to Zarnoch�s emphasis on other state supreme courts� rejection of same-sex marriage--with the exception of Massachusetts--ACLU attorney Ken Choe argued that courts such as this one have often ruled differently than other courts on such matters as interracial marriage, one person-one vote, and other controversial issues.

Without commenting on the procreation argument specifically, Choe noted that �it is not enough� for the state to give a reason for issuing marriage licenses to opposite-sex couples because of procreation. The state must also come up with a rational reason, he said, for why it must exclude same-sex couples.

�Otherwise,� he said, �the state could exclude left-handed people from marriage by saying that marriage benefits right-handed people.�

The Maryland high court is not likely to issue its ruling before the end of the year, but already, 2006 has been a tough year for same-sex marriage in the state courts. The supreme courts of New York and Washington ruled that same-sex couples could be denied equal marriage rights; the New Jersey Supreme Court ruled they were due equal rights but that a vehicle other than �marriage� might suffice; the Georgia court upheld a voter-approved constitutional ban, and the Tennessee court allowed one to proceed to the ballot (where it was approved last month).

Meanwhile, the supreme court of Massachusetts, which ruled in 2003 that the state constitution requires recognition of same-sex marriages, is set to hear arguments later this month on a plea from lame duck Republican Governor Mitt Romney. An unofficial candidate for president in 2008, Romney has been actively supporting an anti-gay ballot measure for the 2008 election. After the legislature maneuvered to avoid a necessary vote on the proposal last month, he asked the high court to force the measure to the ballot.

The court is set to hear that argument on December 20.