GOP calls for protection from ‘activist’ judges

Bushwa, say Dems, who accuse Republicans of playing politics

Hogwash, say Democrats.

They accuse O’Donnell of trying to use a lightning-rod issue for political gain.

Senate President Thomas V. Mike Miller Jr. called O’Donnell’s comments ‘‘ridiculous,” adding that the Court of Appeals gave Republican lawmakers what they wanted by upholding the ban.

‘‘The law [banning same-sex marriage] has been the law since 1973, and the highest court in the land upheld the law,” said Miller (D-Dist. 27) of Chesapeake Beach. ‘‘People want this just to generate discussion and to use it for political purposes. The General Assembly is not going to fall for that trap.”

Republicans acknowledged that the state appellate court judges did not overstep their bounds in this case.

But they also said they are worried about judges in other states and at the federal level using the courts to influence public policy.

Asked if the Maryland court had been out of step with the electorate in Tuesday’s same-sex marriage decision, Senate Minority Leader David R. Brinkley (R-Dist. 4) of New Market said: ‘‘On this issue, not in this state. But in other states, they have been.”

In decrying so-called activist judges, Republicans often cite the U.S. Court of Appeals for the Ninth Circuit in California, which banned teachers from leading the Pledge of Allegiance in schools because of the phrase ‘‘under God.” The U.S. Supreme Court overruled the Ninth Circuit’s decision.

‘‘I really am concerned about dictating to churches what they are forced to accept even if it is in conflict with their fundamental theology,” said Del. Richard B. Weldon Jr. (R-Dist. 3B) of Brunswick.

Weldon said he was ‘‘frankly a little surprised” that the Maryland court upheld the same-sex marriage ban.

‘‘Looking at the history of judicial decisions on social issues in Maryland, I thought this was going to go another way,” he said.

Still, given what has happened elsewhere — including in the Ninth Circuit — Maryland should consider ways to prevent any future judicial attempts to redefine marriage, Weldon said.

The Maryland Court of Appeals reversed the January 2006 decision of Baltimore City Circuit Court Judge M. Brooke Murdock, who said the state’s 1973 law barring same-sex marriage violated the state constitution.

‘‘[The court’s] logic ... is exactly what we’ve been saying, in that the judge overreached in making her decision that there was an inherent right in the Equal Rights Amendment that allows for same-sex marriage,” O’Donnell said.

‘‘It always makes me laugh — although laugh with a lot of pain — when Republicans use the term ‘activist judges,’” said Sharon M. Grosfeld, a Democrat from Kensington who represented Montgomery County in the state House and Senate. ‘‘Because what they really mean is judges who interpret the law in a way they don’t like.”

Look at the U.S. Supreme Court, said Grosfeld, a family law attorney.

‘‘The Roberts court is the most activist judicial body in this country,” she said. ‘‘Because they have in two years turned the Constitution upside down, inside out to the point where it is unrecognizable. Those are the real activist judges, not the ones who interpreted Maryland’s law to be unconstitutional.”

David Rocah, who was part of the American Civil Liberties Union team that argued the same-sex marriage case before the Court of Appeals, called O’Donnell’s worries over activist judges ‘‘farcical.”

‘‘His activist judge is not an activist to me, and my activist judge is not an activist to him,” Rocah said. ‘‘It’s a meaningless term thrown out as political rhetoric.”

Staff Writer Alan Brody contributed to this report.