Although monumental for same-sex couples, the recent Supreme Court decision in United States v. Windsor (available here) was narrower than might first appear. The Court addressed only prohibitions on discrimination by the federal government; it left for another day the question of whether states can constitutionally prohibit same-sex marriage – that is, whether same-sex couples have a constitutional right to marry. Nor did it address the related question of the breadth of the fundament right to marry in general, holding instead that DOMA “violates basic due process and equal protection principles applicable to the Federal Government” and expressing concerns related to federalism. That being said, the right for heterosexual couples to marry and the right of all people to engage in consensual intimate relationships have long been recognized as fundamental both in federal jurisprudence and in the state of Maryland.
Shortly after Windsor was decided, the Maryland Court of Special Appeals rendered a decision involving another aspect of the rights to marry and engage in consensual intimate relationships. See Cross v. Baltimore City Police Department, No. 1290, Sept. Term 2011 (available here). Cross considered a female police officer, Meredith Cross, who joined the Baltimore City Police Department after moving to Baltimore to be closer to her boyfriend, Carlito Cabana, who was then incarcerated for second degree murder. Cabana is a member of a prison gang. On April 26, 2009, Cross married Cabana, who was still incarcerated, without notice to her department. Though Cross maintained that her relationship with Cabana in no way affected her ability to be an effective law enforcement officer, she was terminated by the department after being found to have violated multiple General Orders, including an order to report within 24 hours a change in marital status, and an order stating, “Members of the department shall refrain from making personal contacts with persons of questionable character, or visiting places where suspected violations of the law may be occurring, unless necessary to do so in the performance of their duty.” Cross argued that her termination impermissibly interfered with her constitutional right to marry and of intimate association. The Court of Special Appeals disagreed.
The Court of Special Appeals held that although the right to marry is a fundamental right, because the regulation did not “directly and substantially” interfere with that right the court need only apply rational basis, not strict scrutiny, in reviewing the regulation. The Court of Special Appeals held that the regulation did not “directly and substantially” interfere with the right to marry because Cross was allowed to marry Cabana – the fact that she suffered severe collateral consequences was distinguished from a hypothetical situation that would disallow the marriage altogether. In regard to the right of association, the Court of Special Appeals noted that prior to marrying Cabana, Cross was allowed to “visit Cabana in prison, call him on the phone, and give him money.” So COSA found that under either claim, the Department action should be evaluated under rational basis review. Once the Court decided that the appropriate standard to apply was rational basis, it was hard for the Department to lose.
The Court of Special Appeals compared this case to Bautista v. County of LosAngeles, 190 Cal. App. 4th 869 (Cal. Ct. App. 2010), where a sheriff was fired for dating and marrying a “heroin-addicted prostitute.” There the Court found, as in this case, that because the right to marry and maintain the relationship was not denied (only the right to continue his employment) there was no constitutional violation. The California Court of Appeal then applied the rational basis level of scrutiny. Id. at 876-77.
The Court of Special Appeals then tried to distinguish two federal district court cases. In Briggs v. North Muskegon Police Dep’t., 563 F. Supp. 585 (W.D. Mich. 1983), Plaintiff Briggs was terminated from his employment as a police officer because he was cohabiting with a married woman who was not his wife. The District Court for the Western District of Michigan found that Briggs’s constitutional rights were violated by the adverse employment action, noting, “When the state acts as an employer, it may not without substantial justification condition employment on the relinquishment of constitutional rights.” Id. at 587 (citing Pickering v. Board of Education, 391 U.S. 563 (1968)). The District Court went on to hold that “the Court is of the opinion that the privacy and associational interests implicated here are sufficiently fundamental to warrant scrutiny of the defendants’ acts on more than a minimal rationality basis.” Id. at 590. The Maryland Court of Special Appeals distinguished the cases as follows: “The plaintiff in Briggs was not terminated for marrying an incarcerated felon who led a dangerous gang, but for having an adulterous relationship that was assumed by the police department to merit public disfavor.”
In Via v. Taylor, 224 F. Supp. 2d 753 (D. Del. 2002), Plaintiff Toomey was fired for having an intimate, cohabitation relationship with a paroled former inmate. Again, a federal court found that the Plaintiff’s constitutional rights were violated by the adverse employment action. In Via, the District Court of Delaware applied an intermediate level of scrutiny to a constitutional challenge based on the rights of freedom of association and privacy. But in Cross the Court of Special Appeals distinguished Via writing that “[i]n Via, the correctional officer’s relationship with a released and pardoned inmate simply does not rise to the same level of public and legitimate police concern as the facts here.”
In my opinion, the Court of Special Appeals reached the correct outcome, but the way they distinguished the unfavorable federal cases was disingenuous. The Court of Special Appeals found that Cross’s right to marry, though impeded, was not precluded, so rational basis review should be applied. The Court of Special Appeals summarily decided that Cross’s right to intimate association was not violated because she was allowed to visit Cabana in prison, call him on the phone, and give him money throughout the investigation of her marriage. The Court of Special Appeals then distinguished Cross from Briggs and Via based on the compelling nature of the facts, not based on the constitutional violation. But in deciding which standard of review to apply, the differences between the facts of this case and the facts of Briggs and Via are immaterial – in all three cases the Plaintiffs were able to engage in the association and then suffered adverse employment actions. The differences the Court of Special Appeals points to go to the application of the standard of scrutiny, not the question of what standard to apply.
Then, the Cross opinion makes no reference of Lawrence v. Texas, 539 U.S. 558 (2003) (available here) in which the Supreme Court of the United States advised, “This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” The Court went on to hold that a law criminalizing sodomy between two people of the same sex was unconstitutional because it “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
In my opinion, this case should have been decided with an application of a heightened level of scrutiny. Although in Briggs and Via, the heightened level of scrutiny resulted in findings for the Plaintiffs, that would not be the case in Cross because of the more compelling facts. Clearly the Department has an important interest in protecting its confidential information, in the safety of its officers, and in the appearance of propriety of the Department. And this rule, as applied to Cross, is substantially related to those interests. In analyzing the case this way, the Court of Special Appeals would have stayed true to federal jurisprudence, and set a precedent that would protect the constitutional rights of Maryland citizens going forward.
 Windsor, Slip Op. at 20.
 See Windsor, Slip Op. at 22 (“DOMA frustrates [New York’s] objective through a system-wide enactment with no identified connection to any particular area of federal law.”)
 Cross, Slip Op. at 6-7
 Id., at 14
 Id., at 16
 The Cross Opinion incorrectly cites this case as 118 Cal. App. 3rd 714 (Cal. Ct. App. 2010).
 Cross, Slip Op. at 19
 Cross, Slip Op. at 19
 Id., Slip Op. at 16
Id., at 567.
 Id., at 578.