Editorial: Gansler opinion should stand

Posted: 7:32 pm Thu, February 25, 2010
By Daily Record Staff

Impeach Doug Gansler? Not hardly.

The attorney general issued his long-awaited opinion Wednesday, saying that same-sex marriages performed legally outside of Maryland should be recognized here although Maryland law does not allow such marriages to be performed here.

The opinion does not have the force of law, but it does have the effect of notifying state agencies that they should extend to these same-sex couples the same rights and benefits afforded to married heterosexual couples. Gov. Martin O’Malley has asked all state agencies to comply.

The opinion generated outrage and bombast in some quarters, including a call from Del. Don Dwyer Jr., R-Anne Arundel, that Mr. Gansler be impeached “for usurping the authority of the General Assembly.”

Whether you agree with Mr. Gansler’s opinion — and we do — or not, there is not a scintilla of evidence to support Mr. Dwyer’s position. The attorney general was simply doing his job, interpreting the law. We believe he did it well.

The 45-page opinion explained that under the U.S. Constitution, states are required to recognize legally binding agreements, including marriage contracts, issued by other states.

The only exception to this rule occurs when a contract so deeply offends a state’s public policy that the state cannot extend such recognition. Mr. Gansler concluded that Maryland’s recognizing same-sex marriages legally performed elsewhere does not meet that test.

The attorney general noted that in recent years, Maryland has extended numerous rights short of marriage — such as the right to adopt and the right of partners to be involved in medical decisions involving their loved ones — to same-sex couples. He also cited the Court of Appeals’ history of recognizing marriages from other states, including common-law marriages, that are not allowed in Maryland.

In all likelihood, the Court of Appeals will get the chance to decide this issue. But until then, the attorney general’s opinion is reasonable, sound and fair, and it should stand.