By Ben Nuckols

A.P. writer

BALTIMORE—The fight over gay marriage in Maryland moved from the courts to the legislature after the state’s highest court threw out a lawsuit challenging the constitutionality of a law that defines marriage as a union between a man and a woman.

In a 4-3 decision, the Court of Appeals ruled Sept. 18 that Maryland’s 1973 ban on gay marriage does not discriminate on the basis of gender and does not deny any fundamental rights. The court also found that the state has a legitimate interest in promoting opposite-sex marriage.

“Our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex,” Judge Glenn T. Harrell Jr. wrote for the majority.

Harrell’s 109-page opinion prompted three lengthy dissents, including one from Chief Judge Robert M. Bell, who compared the law to those that barred interracial marriage.

“Many of the arguments made in support of the anti-miscegenation laws were identical to those made today in opposition to same-sex marriage,” Bell wrote. “Their goal is to restrict the right of an individual to marry the person of his or her choice.”

Maryland’s Equal Rights Amendment, ratified in 1972, bans discrimination based on gender, but it was not intended to apply to sexual orientation, the court found.

The court also found that the state has an interest in promoting procreation and that the General Assembly “has not acted wholly unreasonably in granting recognition to the only relationship capable of bearing children traditionally within the marital unit.”

Many of the plaintiffs in the lawsuit have children, and they were angered that the court decided against giving their children the same legal protections that the offspring of married couples enjoy.

“I feel like this decision was needlessly cruel to lesbian and gay families,” plaintiff Lisa Polyak said, her voice cracking. “I wish that those judges would have to face my children today, because I have to.”

Polyak said history would judge the decision harshly.

Because the lawsuit challenged a state law, the Court of Appeals has the final say. The plaintiffs and their supporters vowed to continue their struggle in Annapolis, where the heavily Democratic legislature has passed several gay-rights laws in recent years but has not voted on legalizing same-sex marriage or civil unions.

Gov. Martin O’Malley, a Democrat, supports civil unions.

Sen. Richard Madaleno (D-Montgomery), who is gay, said he plans to introduce a bill to allow same-sex marriage. He also expects a proposal to create civil unions.

“I think we’ll have a lengthy discussion next session about what the options are for legal recognition for gay people,” Madaleno said.

The Maryland lawsuit began in 2004, when the plaintiffs—including nine same-sex couples and a gay man whose partner has died—sued court clerks who denied their applications for marriage licenses. Baltimore Circuit Judge M. Brooke Murdock in January struck down the law defining marriage as a union between one man and one woman, but the state immediately appealed.

Murdock’s ruling was put on hold during the appeal and never took effect—unlike in Iowa, where same-sex marriage was legal for less than 24 hours last month. Massachusetts is the only state where gay marriage is legal, but nine other states have approved spousal rights in some form for same-sex couples—California, Connecticut, Hawaii, Maine, New Hampshire, New Jersey, Oregon, Vermont and Washington.

Proponents of gay marriage insisted that they were undeterred by the defeat in the courts.

“Nontraditional families are at home with loss. …We know what it is to lose a partner and be denied the basic rights and dignities that others enjoy,” said plaintiff John Lestitian of Hagerstown, who joined the lawsuit after his partner died. “We will prevail.”