State rep.'s constitutional challenge to same-sex marriage fails

The question of whether the U.S. Constitution's guarantee of equal protection under the law applies to same-sex marriage has been a thorny one. As the issue has progressed, it seems as if principled judges at both the state and federal levels have disagreed on various aspects. In 2013, the U.S. Supreme Court ruled in Windsor v. U.S. that some aspects of the federal Defense of Marriage Act were unconstitutional. In April, the high court heard oral arguments in Obergefell v. Hodges to decide whether states will be required to issue marriage licenses to same-sex couples, and whether states must recognize same-sex marriages legally performed in other states.

Maryland has been at the forefront of the issue for the last several years, particularly in light of former governor O'Malley's strong support for legalizing same-sex unions. We haven't been the only state in the news, however.

You may have heard about a new challenge being brought against same-sex marriage in Hawaii. Like Maryland, that state legalized same-sex marriage in 2013. Shortly afterward, a lawsuit was filed to block legalization.

The lawsuit was interesting in part because the plaintiff was a member of the state legislature, Republican representative Bob McDermott. It was also interesting because he was making some interesting arguments, including the contention that allowing same-sex couples to legally marry would serve to dilute the meaning of the term, making marriage less valuable to opposite-sex couples.

That may be true, but the Hawaii Supreme Court recently determined that dilution of the term's value isn't the kind of harm courts can be asked to redress.

When same-sex couples complained that non-marriage alternatives didn't offer the same legal protections for them as marriage did for heterosexuals, the legal protections they cited were concrete. Marriage is tied to innumerable benefits, such as tax breaks, inheritance preferences, and shared workplace benefits, for example.

Conversely, the harm McDermott described wasn't concrete. Even if his contention that broadening the definition of marriage to encompass same-sex unions changes the word's social, emotional and religious meaning were true, in other words, that harm doesn't confer to him the right to sue.

"The Legislature's decision to extend the right to marry to same-sex couples does not, in any way, diminish the right to marry that appellants remain free to exercise," Chief Justice Mark Recktenwald wrote on behalf of the unanimous court.