November 30, 2001

by Kara Fox

ANNAPOLIS -- The group seeking to invalidate Maryland’s anti-discrimination law that protects gays conceded a legal challenge to its repeal drive last week out of concern that the legal process could reveal negative information about its signature-collection process, an attorney for the pro-gay side told the Blade this week.

Charles J. Butler, who represented two Maryland organizations and a group of activists challenging a November 2002 referendum effort by the conservative group Take Back Maryland, said he told that organization’s lawyer that a motion Butler intended to file on Nov. 19 "contained things that would not look favorable to Take Back Maryland and they didn’t want that to get out." Brian Fahling, the Take Back Maryland attorney, reportedly told Butler that he "strongly recommended to [Take Back Maryland] to accept the stipulation."

Fahling did not return a reporter’s call seeking comment.

Butler’s motion sought "summary judgment" on the lawsuit -- asking the judge to rule on the case’s merits without a trial.

"We didn’t think they were going to give in," he said Wednesday, acknowledging that asking for the stipulation was a long shot. "[But] they could sense that we were going to win."

The anti-discrimination law, passed by Maryland’s legislature and signed by Gov. Parris Glendening this spring, was scheduled to take effect Oct. 1, but was put on hold after Take Back Maryland submitted signatures to put the issue on the November 2002 ballot. Because of the outcome of the lawsuit last week, the law took effect the afternoon of Nov. 21, immediately after Anne Arundel Circuit Court Judge Eugene M. Lerner certified the stipulation that the two sides signed. The stipulation acknowledged that the group seeking the referendum vote had not gathered enough valid signatures to proceed.

Tres Kerns, chair of Take Back Maryland, had contended from the beginning that his organization had gathered enough signatures, but this week he admitted defeat.

"We can all honestly say we were outgunned and outmaneuvered in the court system," Kerns said. "The ACLU, Free State Justice, and Mr. Butler had a lot more resources than we did and it became apparent that we weren’t going to win. … To be honest and fair, we were beat."

Said Butler, "The evidence just eventually came out. We didn’t have any fancy legal argument. They just didn’t get the petition properly. It was still a surprise [that they agreed to a stipulation.] A part of me is disappointed -- it would have been a fun court fight. But the important thing is that the law went into effect -- that was the important thing."

Blake Humphreys, managing director of the statewide gay civil rights group Free State Justice, said, "This was a surprise that they conceded, but it wasn’t a surprise that they didn’t have enough valid signatures."

Free State and the Gay, Lesbian, Bisexual & Transgender Community Center of Baltimore & Central Maryland were the two organizations behind the lawsuit, along with a group of Maryland citizens.

After the law went into effect, Glendening, a Democrat who strongly backed the civil rights law, released a statement hailing the victory.

"With this law now in effect," Glendening wrote, "Maryland begins the 21st century as a beacon of fairness, justice and inclusion. We move forward in the new economy knowing that every Marylander will be able to reach his or her full potential, without regard to race, gender, ethnicity, or whom they happen to love. … Today the people of Maryland indeed have reason to be thankful as we take a new step toward achieving the vision we have set for ourselves as a nation and as a people."

Take Back Maryland’s Kerns reflected that his group recognized that the facts were against the referendum effort, but criticized the state’s process for bringing an issue before voters.

"There were not enough valid signatures to keep on going," he said. "We needed more signatures -- we needed more time. The whole process should be geared for the typical citizen. … The homosexual movement is well organized and methodical. We have a lot to learn. … I hope both sides can learn from this."

Kerns said he has contacted Dwight Sullivan from the American Civil Liberties Union, who was on the legal team representing the gay advocates in the lawsuit, for help in restructuring the state’s referendum law.

"We learned the pitfalls and the deficiencies in the referendum law. For example, Maryland is one of the only states where you only have 60 days [between when a law passes to when petition signatures need to be handed in]," Kerns said. "We will probably go to the General Assembly session to improve the referendum law. We need to spell out some areas where people messed up. The average citizen had a hard time following the rules. We’re going to make a recommendation on extending the time."

Butler, who is an attorney with Washington-based law firm Covington & Burling, said that even though petition circulators admitted to not following state procedures while gathering petition signatures, he would not pursue the case any further and would not release any evidence he has.

"We can’t control whether the state decides to prosecute these people. We can’t control what they do, but we’re not pursuing anything ourselves," Butler said. "As far as we are concerned, this case is over unless Take Back Maryland starts misrepresenting why they went along with the stipulation."

Assistant Attorney General Michael D. Berman, who represented the state, said he signed the stipulation because "when both parties reached that agreement, we had no reason to dispute that." When asked whether the state will seek to prosecute the petition gatherers, Berman said he had no comment.

Observers noted that the upset to the referendum drive in Maryland is the first statewide court win of its kind.

Deputy Attorney General Carmen Shepard told the Baltimore Sun that Maryland courts have struck down referenda because of invalid signatures before, but she said she knew of no such cases since the 1960s. Seth Kilbourn, national field director for the Human Rights Campaign, the largest national gay political organization, said other gay-related referenda have been overturned in courts, but not on a statewide level.

"On a statewide level, this is the first time signatures have been invalidated by the court," Kilbourn said.

He noted the success in Maryland comes on the heels of ballot battle successes for the gay community in Michigan and Miami, painting a positive picture for gays. Two pro-gay ballot measures in Miami Beach, Fla., won by large margins; three cities in Michigan voted down anti-gay ballot initiatives.

"When you look at it all together, it paints a picture that the backlashes don’t work," he said. "We as a community are becoming better at the ballot box and [at fighting these battles.]"

Free State Justice’s Humphreys said he hopes the win in Maryland will help other states that go through similar referenda.

"I do see this as a historical event," Humphreys said, "especially combined with the elections in Michigan and Florida. … I hope other states will look at how Maryland was fighting this. We were blessed to have won in the courts."

Kilbourn added that the gay community needs to develop the resources to be ready to fight these kinds of battles across the country.

The work of Free State Justice and the resources and help of the ACLU and partnerships that were formed with HRC and other groups -- those kind of partnerships worked really well there," he said. "We need to do that in other places as well. That is a good model to replicate."

Humphreys noted that this was only the "first step in our civil rights struggle in the state of Maryland," but that the next focus will be on the upcoming November 2002 Maryland general election.

"We will be focusing on next year’s election to make sure fair-minded officials are elected and to support the overwhelming majority of legislators who supported us."

Other activists agreed.

"This should be a time for the community to reflect and think about what they want," said Cathy Brennan, a gay civil rights activist. "The community needs to be smart about their next step. Our job is to protect those [legislators] who voted in our favor. If we don’t vote those [into office] who are friendly to our community, this law could be repealed."

Brennan said she didn’t think the gay civil rights issue would be a talking point in upcoming campaigns, except by "fringe" groups and individuals.

"This is an issue of fairness," Brennan said.

The law that took effect last week makes it illegal to discriminate on the basis of sexual orientation in the areas of employment, housing, and public accommodations across the state. Maryland now joins 11 other states and the District of Columbia in enacting anti-discrimination laws that protect gays.

Free State Justice
P.O. Box 13221
Baltimore, Md. 21203
301-891-1111
www.freestatejustice.org

GLCBB
241 W. Chase St.
Baltimore, Md. 21201
410-837-5445

ACLU
2219 St. Paul Street
Baltimore, Md. 21218
410-889-8550
www.aclu.org

Human Rights Campaign
1101 14th St., NW
Suite 200
Washington, DC 20005
202-628-4160
www.hrc.org

Take Back Maryland
7911 Allentown Rd.
Ft. Washington, Md. 20744
www.takebackmaryland.org

Charles J. Butler
Covington & Burling
1201 Pennsylvania Ave., NW
Washington, DC 20004
202-662-5677

Brian Fahling
American Family Association Center for Law & Policy
P.O. Drawer 2440/100 Parkgate Dr.
Tupelo, MS 38803
662-680-3886

Michael D. Berman
Office of the Attorney General
200 St. Paul Place
Baltimore, MD 21202
410-576-6345

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