By 4-3, Maryland's high court today rejected a claim for same-sex marriage under the state constitution. The opinion is more than 100 pages long and is studded with more citations to cases, law reviews and books (including, notably, William Eskridge's Gaylaw), and sociological and scientific studies, than any case yet on the issue.
The Maryland court rejected the argument that the ban on gay marriages is a form of sex discrimination, though it called that argument "beguiling." It rejected the argument that sexual orientation discrimination should be subjected to heightened scrutiny, citing gays' legislative success in the state as evidence the group is not "politically powerless" and thus needs no unusual judicial protection from the majority. It added that there is not yet a sufficient scientific consensus on whether sexual orientation is "immutable." The court also decided that there is no fundamental right to marry another person of the same sex. These conclusions all follow the majority trends in the state courts so far.
Finally, the court concluded that the limitation of marriage to opposite-sex couples is rational because it furthers (however imperfectly) the state's legitimate interest in encouraging procreation. If the correct level of scrutiny is the traditional rational-basis test, this conclusion is hard to dispute.
SSM has lost in every state high court to consider the issue since the stunning success in Goodridge in Massachusetts in 2003. SSM legal advocates lost outright in Washington state and New York in 2006. New Jersey's high court also rejected an SSM claim in 2006, though it did order the recognition of civil unions and left open the possibility of a future pro-SSM ruling. A case is still pending in California's supreme court.
When you consider that SSM legal advocates have carefully chosen the most sympathetic venues since Goodridge, this record of losses is especially significant. It means that strong anti-SSM precedents are being created in the friendliest states, making pro-SSM rulings in other states even more unlikely in the near future. Once California is decided, the initial phase of post-Goodridge litigation will have pretty much run its course. That was the phase that was supposed to start an avalanche of pro-SSM judicial rulings that would quickly lead to gay marriage around the country. It didn't happen. Other cases are pending in states like Iowa, and there's nothing to stop gay couples from filing anywhere else, but the odds are now longer. If SSM is to advance much in the near future, it will probably have to come legislatively.