Gansler weighs in on same-sex marriage recognition in Md. 

Posted: 8:14 pm Wed, February 24, 2010
By Steve Lash
Daily Record Legal Affairs Writer

ANNAPOLIS – In a victory for gay rights advocates, Maryland Attorney General Douglas F. Gansler issued an opinion Wednesday endorsing the view that the Court of Appeals would — and the state should — recognize as married same-sex Maryland couples who are legally wed in other states.

The immediate effect of Gansler’s opinion is to put state agencies on notice that they should extend to these same-sex couples all the rights and benefits afforded to married heterosexual couples in the state, Gansler said after issuing his opinion. For example, the legally wed partner of a state employee should be entitled to the same pension benefits as any other spouse.

Maryland Gov. Martin O’Malley issued a call to state agencies in light of the opinion.

“I am confident that the attorney general and his office will provide all necessary advice to state agencies on how to comply with the law and I expect all state agencies to work with the attorney general’s office to ensure compliance with the law,” O’Malley said in a statement.

Gansler’s opinion lacks the force of law, but makes clear that the attorney general, the state’s top legal adviser, believes the state is constitutionally required to recognize the same-sex marriages legally performed in other states. Gansler, in his written opinion and public comments Wednesday, expressed his belief that the Court of Appeals will rule likewise when the issue inevitably reaches the state’s top court.

“This will ultimately be resolved in the court,” Gansler said during a press conference. “The court will ultimately have a say.”

Under the federal Constitution’s Full Faith and Credit Clause, the 45-page opinion explained, states are bound to recognize legally binding agreements, including marriage contracts, issued by other states. The only exception to this rule is if the contract so deeply offends a state’s public policy that it cannot extend such recognition.

Maryland’s recognition of same-sex marriages performed in other states does not offend the state’s public policy, Gansler concluded.

“While the matter is not free from all doubt, in our view, the Court of Appeals is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction,” Gansler wrote in his opinion. “In light of Maryland’s developing public policy concerning intimate same-sex relationships, the court would not readily invoke the public policy exception to the usual rule” that states recognize legally binding agreements, including marriage contracts, from other states, Gansler added.

In recent years, the opinion explained, the state has extended many rights — short of actual marriage — to same-sex couples. These include the right to adopt and the right of same-sex partners to be involved in medical decisions affecting their loved ones.

The attorney general also cited the Court of Appeals’ history of recognizing marriages from other states that would have been invalid had they occurred or been performed in Maryland. These unions include a common-law marriage that was accepted in another state, as well as a legal Rhode Island marriage between an uncle and his niece.

Gansler, who supports gay marriage, said his personal views played no part in his advisory opinion.

“We’re not in the policy business,” Gansler said of the attorney general’s office. “We’re in the interpretation of law business.”

A first step

Gansler’s opinion drew praise from Sen. Richard S. Madaleno Jr., D-Montgomery, who requested the attorney general’s views on whether Maryland recognizes same-sex marriages legally performed elsewhere.

“It [the opinion] certainly moves Maryland forward,” said Madeleno, who is gay. The opinion will bring “peace of mind” to same-sex Maryland couples legally wed in other states, he added.

But Madaleno said the fight for equality will not be complete until Maryland passes a law the permits same-sex marriages to be performed in the state, an effort that has failed in recent years.

House Speaker Michael E. Busch, D-Anne Arundel, voiced little confidence that a pending gay-marriage bill will have greater success this year.

“Right now, the statute in Maryland is marriage between a man and a woman and it will continue to be that way,” he said. “I don’t see where there’s the votes in both houses to change that.”

Del. Heather R. Mizeur, D-Montgomery, who legally wed her same-sex partner in California two years ago, praised Gansler’s opinion as “a small step in advancing to equality” the rights of people in homosexual unions.

“My state can and should recognize my marriage,” Mizeur said.

A man and a woman

But Del. Don H. Dwyer Jr., R-Anne Arundel, called Gansler’s opinion “invalid” and contrary to state law.

“Maryland’s current law is so clear,” that marriage is between a man and woman, a law never disturbed by the Legislature, he said.

Dwyer added that the Court of Appeals in 2007 rejected the argument that the Constitution requires the state to permit same-sex couples to marry, saying that defining marriage is the duty of the General Assembly.

And in 2004, the office of Attorney General J. Joseph Curran issued an advice letter to the Legislature stating that Maryland law provides that marriage is between a man and a woman, Dwyer said.

Gansler should respect the Court of Appeals’ ruling and the advice letter provided by his predecessor, Dwyer said.

Gansler rejected Dwyer’s argument saying the Court of Appeals in Conaway v. Deane ruled on the legality of marriages performed in Maryland, not the state’s recognition of those legally performed in other states. He also said times have changed since the 2004 letter.

“The world is quite different” now than it was in 2004, Gansler said, noting that five states currently permit gay marriages.

The attorney general also expressed sardonic surprise at Dwyer’s opposition to the opinion, in light of the delegate’s outspoken support for states’ rights and limited governmental intrusion.

“He should be in favor of states’ rights and the right of people to contract without governmental interference,” Gansler said, noting that marriage is a form of contract.

Same-sex marriages are legally performed in Connecticut, Iowa, Massachusetts, New Hampshire and Vermont.

California permitted gay marriages from June 16 until Nov. 4, 2008, when voters struck it down in a referendum. Marriages performed during that span, such as Mizeur’s, remain valid under California law.

Washington, D.C., has passed a gay-marriage ordinance that will go into effect by early spring if approved by Congress.

Staff writer Nicholas Sohr contributed to this story.