On October 16, 2007, the Maryland Court of Appeals upheld a state law providing that marriage licenses could only be issued to a man and a woman. The law was being challenged on equal protection grounds by same sex couples, some of whom had children.

The Maryland Court, in Conaway v. Deane (2007), said:

So long as the Legislature has not acted wholly unreasonably in granting recognition to the only relationship capable of bearing children traditionally within the marital unit, we may not substitute our social and economic beliefs for that of legislative bodies.

Compare this to Goodridge vs. Dept of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003), where the Massachusetts Court found that a similar law did violate the equal protection provisions of the constitution.

No one disputes that the plaintiff couples are families, that many are parents, and that the children they are raising, like all children, need and should have the fullest opportunity to grow up in a secure, protected family unit. Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children. The preferential treatment of civil marriage reflects the Legislature’s conclusion that marriage “is the foremost setting for the education and socialization of children” precisely because it “encourages parents to remain committed to each other and to their children as they grow.” In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation.

Justice Oliver Wendell Holmes, Jr. said we have a “great experiment” with different states trying out different laws to see which ones work and which ones do not. I was struck this week by the difference in approaches that two state appellate courts have taken in dealing with the difficult issue of same sex marriages.