Attorney General Finds Maryland Must Recognize Gay Marriages from Outside State


ANNAPOLIS (Feb. 24, 2010) - Beginning Wednesday, Maryland state agencies will legally recognize same-sex marriages performed in other states.

The change comes with state Attorney General Douglas Gansler's long-awaited opinion on the matter, released Wednesday. The opinion does not create law regarding same-sex marriage, but interprets the state's overall law on recognizing out-of-state marriages.

Maryland law has defined marriage as a union between a man and a woman since 1973, and recognizes marriages performed in other jurisdictions according to the "full faith and credit" clause of the U.S. Constitution.

Five states currently allow same-sex marriage, and Maryland now joins New York and Washington, D.C., in recognizing same-sex marriages performed in other states. The district will begin performing same-sex marriages early next month.

The federal Defense of Marriage Act allows states to decide whether to recognize same-sex marriages. Before Gansler's opinion, Maryland law did not address recognition of same-sex marriages.

"This has absolutely nothing to do with whether or not (gay) people can get married in the state of Maryland. They cannot," said Gansler at a press conference Wednesday.

"What this opinion does is give a snapshot of where we are today in the United States on this issue," said Gansler, a Democrat. "Ten years from now, every state will most likely have marriage equality, but it's an evolving issue."

In a separate press conference with advocates of same-sex marriage, Sen. Richard Madaleno, D-Montgomery, said Gansler's opinion was a first step toward legalizing gay marriage in Maryland.

"This will give same-gender couples who are legally married in other states peace of mind and confidence that, should they ever need to have that recognition in a time of crisis or transition in their relationship, they know that the force of law is behind them in the state of Maryland," Madaleno said.

Madaleno, who is openly gay, made the formal request for Gansler's opinion in May.

Beginning immediately, the opinion will guide state agencies that administer benefits and privileges according to marital status.

For example, state spousal inheritance-tax privileges would be extended to a same-sex couple that had married in Iowa, where gay marriage is legal.

Gansler said his opinion will have no effect on federal or state income taxes for same-sex couples, since marital status in those cases is determined federally.

Gansler's opinion will serve as the "law of the land" on the issue of recognizing gay marriages until the Court of Appeals or the legislature takes a formal action.

Such action is likely to come through a lawsuit by a couple seeking recognition of their marriage by a private entity, such as an employer. In such a case, Gansler's opinion would be influential and shape case law.

"This will be addressed by litigants," Gansler said. "This will be ultimately resolved in the courts."

The Catholic Bishops of Maryland issued a statement Wednesday evening decrying the attorney general's action.

"The attorney general's opinion demonstrates a fundamental disregard for the nature and purpose of marriage and its impact on society, as well as for the expressed will of the legislature and previous attorney general opinions," the statement read. "We urge lawmakers, the governor, and the courts to uphold the definition of marriage through all appropriate means."

Gov. Martin O'Malley said in a statement Wednesday that he will "expect all State agencies to work with the Attorney General's office to ensure compliance with the law" and that he is "confident that the Attorney General and his office will provide all necessary advice to State agencies on how to comply with the law."

There is not across-the-board support for same-sex marriage in the legislature.

A house bill introduced last month by Delegate Emmett Burns, D-Baltimore, would have banned recognition of same-sex marriages performed outside the state. The bill was defeated earlier this month.

Burns said he was "stunned" by Gansler's opinion because of the attorney general's previous interpretations of the law.

Gansler's office issued an "advice letter" on this issue in 2004 that said out-of-state same-sex marriages "would likely not be recognized under Maryland law," according to Wednesday's opinion. An advice letter does not have the force of a formal opinion. Gansler said his interpretation of the law today took into consideration recent laws recognizing domestic partnerships and extending some other benefits to same-sex couples.

Gansler is up for reelection this November. Burns said that election-year politics were a factor in Gansler's opinion.

"Everything is political around here this year," he said.

Burns said that even if a bill allowing same-sex marriage got to the House floor, a majority of legislators would be reluctant to publically support it for reasons of political safety.

"The risks of being against it are not as great as the risks of being for it," Burns said. "(Voters) will decide if it comes to a referendum at the ballot box."

Delegate Don Dwyer, R-Anne Arundel, was blunter about his disappointment with Gansler's opinion, and said Wednesday that he intends to bring impeachment charges against the attorney general.

"By his actions today, the Attorney General has clearly violated his oath of office and has usurped the authority of the General Assembly," Dwyer said in a statement. "Attorney General Gansler has violated the public trust by his actions and he will be held accountable."

But Madaleno said that he was hopeful about legislation now before the House and Senate that would legalize gay marriage, and noted that the bills have more than 50 co-sponsors. Committees will hear testimony on those bills next week.

"(Gansler) has brought us as far as he possibly could with this opinion," Madaleno said. "It has reaffirmed the responsibility that all of us have who care about this issue to continue to work in the legislature to get this done."

Capital News Service contributed to this report.

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