Gansler’s opinion spurs lawmakers to call for referendum 

Posted: 7:36 pm Wed, February 24, 2010
By Caryn Tamber
Daily Record Legal Affairs Writer

In a literal sense, the attorney general’s opinion on recognizing same-sex marriages performed elsewhere doesn’t change anything.

“It’s not self-executing in any way,” said Nancy Polikoff, a professor at American University Washington College of Law who has written and argued cases in support of gay marriage.

In a practical sense, though, foes and advocates alike agree it could change everything.

“Without changing Maryland’s law, the attorney general’s opinion has had the effect of law,” said Del. Don Dwyer Jr., R-Anne Arundel. “I’m not an attorney, but basically, the way that I read the 40-page opinion, I think it does open the door to allowing out-of-state same-sex marriages to be recognized in Maryland.”

Dwyer said he plans to begin impeachment proceedings against Attorney General Douglas F. Gansler. “The attorney general needs to be held accountable for usurping the authority of the General Assembly,” he said.

ACLU of Maryland staff attorney David Rocah, though, praised Gansler’s decision, which said the Maryland Court of Appeals would probably recognize same-sex marriages that were performed legally

“I think it’s correct and I think it makes clear what we had thought and asserted, which is that well-established Maryland law makes clear that valid out-of-state marriage should be recognized, including in this context, and we have every expectation that the various state agencies will act in accordance with the A.G.’s view of the law,” Rocah said.

While it does not have the force of law, the opinion is nonetheless “extraordinarily important and helpful,” Rocah said.

“In that sense, nothing changed today,” he said. “The law was what the law was and is what the law is, but we now have a clear opinion about it from the person who is … constitutionally directed to represent the state itself and the various state agencies and to advise them about the law.”

Lawyer Mark F. Scurti, who has both a personal and a professional interest in the opinion, said he is unsurprised but thrilled.

“I’m actually elated that he’s come out and basically stated that the Court of Appeals should recognize out-of-state marriage and I think it goes a long way toward moving toward answering some unanswered questions,” said Scurti, a Hodes, Pessin & Katz P.A. lawyer who has worked extensively on same-sex legal issues.

Scurti said he was expecting this result, and that he and his partner planned their July 2010 wedding in Massachusetts with the hope that by the time they tied the knot, Gansler would have written in support of recognizing out-of-state gay marriages.

Scurti predicted “a rush south” by same-sex Maryland couples, now that Washington, D.C. is about to start allowing gay marriage. Some of those couples may not fully consider what they are doing, leading to the likelihood of gay divorces down the line.

Family law, tax  implications

Scurti said he thinks that gay couples whose marriages are recognized in Maryland will be able to get divorced here, too. The opinion could also lead to legal recognition for same-sex parents; Scurti said it might allow him to become a stepparent to his partner’s two children.

Barbara A. Babb, a professor at the University of Baltimore School of Law and director of the Center for Families, Children and the Courts, said she believes the opinion clarifies the rights of same-sex partners and their children.

“Whether one likes it or not, same-sex couples who have validly married in another state have formed a family relationship,” she said. “They’re still protected by each state’s family law regime. I think that’s very helpful to families and children.”

Scurti called the opinion potentially “a tremendous mess” for tax law. Same-sex couples might be allowed to file joint Maryland tax returns but would then have to file federal returns as if they were single.

Similar complications would arise for the transfer between same-sex spouses of pensions, 401(k) plans and anything else controlled by the federal government, he said.

The opinion could even affect criminal law, as same-sex partners would be able to invoke spousal immunity to keep from testifying, Scurti said.

And, of course, it could have political ramifications.

Del. Emmett C. Burns Jr., D-Baltimore County, noted the opinion is not binding on any state agency. But, like Dwyer, he has harsh words for Gansler and wants to send the same-sex marriage issue to the voters in the form of a referendum.

“I am not surprised but I am stunned that the attorney general would go this far in light of the fact that he argued for the state prohibiting same-sex marriage at the circuit court level and at the Court of Appeals level,” he said. “Now to turn around and issue an opinion in contradistinction to what he was sworn to uphold — the law — is anathema to me and it is also incomprehensible to me.

“What he has opined is repugnant and is in contradistinction to the policy of this state,” he added.