Please ensure Javascript is enabled for purposes of website accessibility

Same-sex marriage, lead paint top legal issues

Maryland will become the next state to permit same-sex couples to marry this year if Gov. Martin O’Malley’s new pledge of support for the legislation is worth at least the few Democratic House votes by which the measure fell short in 2011.

The General Assembly’s focus on the same-sex marriage issue in 2012 will supplant, for the second year, any consideration of repealing the death penalty, according to the Senate’s chief opponent of capital punishment.

However, the coming session will differ from its predecessors on legal issues in at least one significant way: Landlords, who usually fight legislation, will find themselves in the unusual position of doing the proposing on a measure to limit their liability in at least some tenants’ lead-poisoning cases.

This change in posture results from an Oct. 24 Maryland Court of Appeals decision that struck down as unconstitutional a statutory provision that immunized landlords of properties built before 1950 from liability if they met state registration requirements and offered $17,000 payments for the medical expenses of children at risk of lead poisoning.

“That will be a real battle,” said Senate Judicial Proceedings Committee Chairman Brian E. Frosh, of the landlords’ effort to restore a limit on liability. “The landlords will try to get something passed. That’s not their usual posture. They’re usually trying to kill something.”

On same-sex marriage, the lack of three more Democratic votes in the House of Delegates cost supporters of the measure an historic victory last session. Sensing defeat, House leaders pulled the measure from the floor before a vote could be taken.

O’Malley, then a backer of less controversial civil unions, said at the time that he would have signed the measure had the General Assembly passed it.

This year, O’Malley has thrown his full weight behind same-sex marriage and will make the bill’s passage an administration priority. O’Malley changed course after watching New York Gov. Andrew Cuomo, a fellow Democrat, get much of the credit for steering similar legislation to passage in his state.

Same-sex marriage has become a key issue nationally for the Democratic Party. As chairman of the Democratic Governors Association, O’Malley frequently represents party views on political issues.

“When ultimately Maryland passes equal marriage rights for all people regardless of sexual orientation, it will be because of our recognition of the dignity of every individual, and the importance, especially in a pluralistic society that places a high, high value on freedom of religion, to protect rights equally without regard to a person’s sexual orientation, without regard to religious belief, without regard to race,” O’Malley said last month. “That’s ultimately what’s going to pass this bill.”

Sen. Jamin B. “Jamie” Raskin, the Senate’s most vocal supporter of same-sex marriage last year, said O’Malley and General Assembly members who back the legislation will make “specific efforts to move very specific delegates.” But the Montgomery County Democrat did not specify the efforts or delegates.

“I would be willing to make a gentleman’s bet that this will pass in the coming session,” Raskin added. “I’m convinced justice is going to win here.”

But Del. Michael D. Smigiel Sr., who opposes same-sex marriage but supports civil unions, said that if the bill passes the General Assembly this year it will be because of hardball politics within the Democratic-run House and not because of a vote of conscience by the delegates.

The Democrats who oppose same-sex marriage — and cost the bill’s passage this year — will be “sent a message [that] opposition to the governor’s policy will not be tolerated,” said Smigiel, an Upper Shore Republican. “It will be done behind closed doors but you will be able to hear the twisting and breaking of arms.”

Had the Democrats truly believed that the same-sex marriage issue was a vote of conscience, they would not have withdrawn the bill last year, even if it meant the measure’s defeat, Smigiel said.

“The majority party has made it clear to the members [that] ‘you’re allowed a vote of conscience in the Maryland legislature as long as we have the votes,’” he added.

With regard to the death penalty, Sen. Lisa A. Gladden said her strong opposition to it will have to wait until the 2013 legislative session, as her signature issue will be overshadowed by the same-sex marriage bill.

Consideration of death penalty repeal would also be made difficult this year by expected efforts to repeal by legislation or referendum a 2011 law providing in-state tuition credits to the children of illegal immigrants in Maryland, said Gladden, a Baltimore Democrat.

“I need to be quiet and not let my issue, though it’s important, get lost in the fray,” Gladden said. “I don’t know if it’s the right time. I wish it were.”

On the lead-paint issue, the Maryland Court of Appeals said the immunity provision of the 1994 Reduction of Lead Risk in Housing Act violated Article 19 of the Maryland Declaration of Rights, which grants people the right of access to the courts and to a remedy for their injuries.

“For a child to be permanently brain damaged from ingesting lead paint, proximately caused by the landlord’s negligence, the maximum amount of compensation under [the] offer is minuscule,” retired Judge John C. Eldridge wrote for the unanimous court in Jackson v The Dackman Co. “It is almost no compensation.”

The limited liability in the 1994 act was a compromise between landlords and tenants-rights groups when the two sides were more or less on equal legal footing. The high court’s decision striking down the law ends that crucial balance, said Frosh, D-Montgomery.

“It’s going to be hard to achieve consensus this time around, because the tenants really have the upper hand” as the landlords strive for a bill that limits their liability rather than defeat one that would favor tenants, Frosh said.

“It’s much easier to kill a bill than it is to get one passed,” he said. “They will be in an unaccustomed position this year.”

Daily Record business writer Nicholas Sohr contributed to this article.