Maryland Law Review
Volume 68, Issue 4
Conaway v. Deane: To Have and to Hold, From this Day Forward - Maryland’s Unfit Marriage to Federal Equal Protection Analysis
By Rachel A. Shapiro [Full Text]
In Conaway v. Deane, the Court of Appeals of Maryland addressed for the first time the constitutionality of a statutory prohibition on same-sex marriage in Maryland. The Conaway majority upheld the statute under rational basis review after finding that sexual orientation does not establish “suspect class” status for equal protection purposes, despite Maryland’s two-part definition of suspectness, which compelled a different result. In denying suspect class status on the basis of sexual orientation, the majority unreflectively adopted two new federal Fourteenth Amendment indicia of suspectness into its own definition, even though prior Maryland courts had elected not to incorporate those factors into Maryland’s suspectness test. In doing so, the court defeated Maryland’s long-celebrated independence from the federal Constitution’s equal protection analysis and may have locked Maryland courts into step with an increasingly conservative Supreme Court of the United States. Moreover, not only did the Conaway majority unjustly deprive same-sex couples of deserved suspect classification, but it also divested future Maryland groups seeking suspect classification of the potentially greater equal protection Maryland’s own constitution has historically provided. Instead, the court should have applied, or at least given due weight to, Maryland’s own suspect class definition and deemed same-sex couples a suspect class.
Citation: Rachel A. Shapiro, Conaway v. Deane: To Have and to Hold, From this Day Forward - Maryland’s Unfit Marriage to Federal Equal Protection Analysis, 68 Md. L. Rev. 957 (2009).
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