Maryland to recognize
gay marriages from other places
By Aaron C. Davis and John Wagner
Washington Post Staff
Writer
Thursday, February 25, 2010; A01
Maryland Attorney General Douglas F. Gansler (D) declared Wednesday that
Maryland will recognize same-sex marriages performed elsewhere and that its
agencies should immediately begin affording gay married couples the same rights
as heterosexual ones.
With Gansler's decision, Maryland in effect joins the District and a handful
of states including New York that recognize same-sex marriages performed in four
New England states and Iowa. The District also has its own measure legalizing those unions that is expected to take
effect next week.
Gansler, a supporter of legalizing same-sex marriages, was asserting his
authority as the top legal adviser to state agencies to answer a question that
experts say had been left unclear by Maryland law. He was responding to a
legislator's request that he issue an opinion.
The attorney general's opinion unleashed a torrent of emotions from both gay
rights advocates and those opposed to same-sex marriage, adding a potentially
explosive issue to election-year politics in Maryland. It is likely to be
quickly challenged in court, Gansler acknowledged.
Republicans, socially conservative Democrats and several African American
lawmakers from Prince George's County to Baltimore blasted the decision. One
Republican lawmaker vowed to bring articles of impeachment against Gansler for
trying to usurp Maryland law, which defines marriage within the state as between
a man and a woman. The Roman Catholic archbishops of Washington and Baltimore
and the bishop of Wilmington said in a statement that they take "strong
exception" to the decision.
Gay and lesbian groups said the decision put the state on track toward
legalizing same-sex marriage and would embolden them to push more strongly for
pending legislation to do so. Similar measures have died in the legislature in
years past.
The exact practical implications of Gansler's decision were unclear. David
Rocah, a staff lawyer with the American Civil Liberties Union of Maryland, said
he thought that the opinion could have "hundreds, if not thousands," of
implications for same-sex couples married elsewhere. Rocah said the opinion
could ensure same-sex spouses' rights to health benefits, inheritances, child
support and even divorce.
Gansler said state laws have more than 1,000 references to spouses or
marriage.
Gov. Martin O'Malley (D), who has consistently voiced support for civil
unions but stopped short of endorsing same-sex marriage, said his administration
would be "guided" by Gansler's legal opinion. Under O'Malley, Maryland has
significantly expanded benefits to couples who register as domestic partners,
but under Gansler's opinion, same-sex couples married elsewhere would no longer
have to go through that step to get many of the same protections.
"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," O'Malley said
in a statement. "I expect all state agencies to work with the Attorney General's
office to ensure compliance with the law."
Gansler's opinion answered a question about recognizing same-sex marriage
that was posed last spring by Sen. Richard S. Madaleno Jr., an openly gay
Montgomery County Democrat.
In a roughly 50-page opinion that took nine months to compose,
Gansler says the starting principle in state law is that a marriage that is
valid in the place of celebration remains valid in Maryland. And even though the
state narrowly defines marriages performed within its borders as between a man
and a woman, Gansler says, such restrictions don't amount to a strong public
policy argument that would override recognizing unions from elsewhere.
The opinion points to several examples Gansler says prove his case: Maryland
has recognized common-law marriages from other states even though it does not
have common-law marriage. The state has even recognized a marriage of a Rhode
Island man and his niece that would have amounted to incest under Maryland law,
Gansler said.
In a news conference, Gansler went beyond the written opinion, saying his
writing should dictate how state agencies respond when same-sex couples from
elsewhere request benefits and legal protections.
"It's not that foreign of a concept. I mean, it's just people. It's just like
any other heterosexual couples," Gansler said. "However a heterosexual couple is
treated that was validly married in Maryland or elsewhere, [a same-sex couple]
will be treated like that here in Maryland, unless and until a court or the
legislature decides differently."
His opinion is certain to have political implications. Democratic leaders in
the state's General Assembly appear to have little enthusiasm for making
same-sex marriage a marquee issue in the 2010 elections.
In the November general election, Baltimore County, a more conservative
jurisdiction, will be among the key battlegrounds for statewide candidates,
including O'Malley. Gansler is also up for reelection this year but has yet to
draw any big-name opposition.
The former Montgomery County state's attorney won office in 2006 on a
reputation as a tough-on-crime prosecutor. Since taking office, he has won
plaudits from the more liberal wing of his party by becoming the first statewide
official to endorse legalizing same-sex marriage. Gansler is believed to be
gearing up for an expected run for governor in 2014, probably against several
other Democrats who favor civil unions.
Gansler said that it will probably be up to the state's highest court to
issue a final verdict but that he thinks his opinion provides a road map for
same-sex couples to win.
Del. Donald H. Dwyer Jr. (R-Anne Arundel) said he is convinced that Gansler's
opinion will be overturned by courts, and he promised to bring articles of
impeachment against the attorney general.
"It is not up to the attorney general, and that's the reason I will be
bringing charges of impeachment," Dwyer said. "The opinion doesn't change the
law. It in effect usurps law."
But even some of the Maryland lawmakers who attended a celebratory news
conference Wednesday afternoon were not entirely clear on all the practical
effects.
"I'm struggling to parse that out," said Del. Heather R. Mizeur
(D-Montgomery), an openly gay delegate who was joined at the event by her
spouse, Deborah.
The couple held a marriage celebration in Maryland in 2005 and was legally
married in California in 2008. At the news conference, Mizeur held up a copy of
their marriage certificate.
"The [attorney general's] opinion says my state can and should recognize my
marriage," Mizeur said.
Staff researcher Magda Jean-Louis contributed to this report.