Maryland AG Release Opinion on Marriage UPDATED

Attorney General Douglas Gansler's opinion opens the way for immediate recognition of out-of-state marriages

Just days before Washington, D.C.’s new marriage equality law is set to go into effect, the attorney general of neighboring Maryland issued a long-awaited opinion on whether same-sex marriages validated in other jurisdictions “may be recognized” under Maryland state law.

“The answer to that question,” wrote Attorney General Douglas Gansler, in an opinion dated February 23 and released February 24, “is clearly ‘yes’.”

And the answer ricocheted around the state quickly, drawing both praise and promises of undoing. Gay civil rights groups were understandably happy and right-wing entities, such as the Catholic Church, were predictably unhappy with the opinion. And one delegate in the state House suggested the attorney general should be impeached.

But importantly, Gov. Martin O’Malley (D), choosing his words carefully, said the state would be “guided” by the “thorough analysis and legal advice.”

“I expect all State agencies to work with the Attorney General’s office to ensure compliance with the law,” he said.

Gansler’s 55-page memorandum is addressed to openly gay State Senator Richard Madaleno, who requested an opinion last May as to whether Maryland could recognize same-sex marriages licensed elsewhere. Madaleno also asked whether the governor could issue an executive order — similar to that issued by New York Governor David Paterson in 2008 — that directed state agencies to recognize same-sex marriages licensed elsewhere.

Gansler noted, however, that Paterson’s executive order had been based on a state court order and no such court decision had been rendered in Maryland, so O’Malley was not at liberty to issue a similar directive.

In fact, Gansler took considerable pains to make clear that even his memorandum was not such a directive.

The memo “is not itself the law of Maryland in the same sense as a statute…or court decision,” said Gansler. “Rather it is an interpretation of the statutory or common law that can guide a client agency and may be persuasive to a court reviewing agency action based on the opinion. …

“Thus, what we say in this opinion is a prediction, not a prescription, as to the how the [state] Court would approach this issue under current law.”

And, in his opinion, the state court would “likely respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction.”

Gansler’s opinion comes with another important limitation.

“While this is welcome news for those couples who were legally married in one of the growing number of states with equality in marriage, nothing in the Attorney General’s opinion changes the fact that same-sex couples cannot obtain marriage licenses in Maryland,” said Madaleno.

Currently, only five states issue marriage licenses to same-sex couples, and only two others — New York and Rhode Island — recognize such marriage licenses validly obtained elsewhere, according to the national Freedom to Marriage group. The states that issue marriage licenses are Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire.

Washington, D.C., is set to begin implementing its new marriage equality law on Wednesday, March 3, though there is still at least one effort underway to block the law through a court challenge.

© 2010 Keen News Service