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Maryland AG opinion: To make Free State slightly more so?

by Jeremy Hooper

GanslerToday in Maryland, state Attorney General Douglas Gansler (pic.) will release an opinion regarding local same-sex couples' right to have their out-of-state unions recognized upon returning home. And according to The Washington Post, who has apparently obtained an advanced copy, the outlook looks like it's going to have positive implications for our side:

A long-awaited opinion by Maryland Attorney General Douglas F. Gansler (D) out Wednesday morning concludes that the state's highest court is likely to rule at some point that same-sex marriages performed in other states are valid in Maryland.
State likely to recognize same-sex marriages [WaPo]

This matter is on many people's radars, since D.C. is only moments away from having marriage in their district. Out-of-state recognition would essentially expand the reach of those marriages into neighboring Maryland, much in the same way that CT, VT, MA, NH marriage legalization has expanded into New York (another state with out-of-state recognition).

We'll have to wait and see what the full report says and what it all means in terms of influence. Though it's looking like local lawmaker Don Dwyer might wanna start writing up those wacky plans for impeachment.


**UPDATE: The full opinion is now up. Here's the link and some snippets:

"You have asked whether those marriages may be recognized under State law. The answer to that question is clearly “'yes.'
"How the State May Recognize Such Marriages

Such marriages may be recognized in several ways. First, legislation enacted by the General Assembly could provide for recognition of out-of-state same-sex marriages generally, or for particular purposes. Second, in the absence of legislation, the Court of Appeals, applying common law choice-of-law principles, could decide that such marriages will be recognized in Maryland, either generally or in particular circumstances. Finally, a State agency may also address the recognition of out-of-state marriages on particular matters within that agency’s jurisdiction, so long as the agency’s action is consistent with any relevant statutes and court decisions, including federal laws that may govern the agency’s activities."
"While the matter is not free from all doubt, in our view, the Court is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction. 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 of recognition. You have posed the question in the abstract, but, of course, context matters. For example, to the extent that a particular matter is governed by federal law, the federal Defense of Marriage Act, which limits marriage for federal purposes to opposite-sex couples, would prevent recognition of the marriage for that particular purpose."

Bottom line seems to be that the AG expects the courts to grant out-of-state recognition in MD. However, there must be a court ruling -- the governor can't do it by executive order without a ruling. Which is consistent with what we know, based on NY.

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Your thoughts

This is great news - remember that DC's public schools have a very lacklustre reputation and public schooling is a major factor for a lot of parents when they choose to live in Virginia or Maryland.

Since it's illegal to even replicate same-sex partnership in Virginia, this would be fantastic for gay DC couples planning to raise children.

Posted by: DN | Feb 24, 2010 10:37:51 AM

Ohhhh Goody: We get to watch Batshit Harry Jackson's head explode.

Posted by: Mykelb | Feb 24, 2010 11:43:31 AM

The opinion's claim that the Governor lacks authority to issue an executive order directing agencies to recognize out-of-state same-sex marriage is completely bogus. It is the AG giving cover to the MD governor, who is a complete gay-coward and backstabber.

Posted by: Skeptical Cicada | Feb 24, 2010 11:43:49 AM

So if a lawsuit needs to be initiated by a couple who have an out of state marriage, how about I file a Maryland State Tax Return and claim "Married". When they reject it because my husband is the same gender, then we have standing to sue. Right?

Posted by: Mykelb | Feb 24, 2010 11:47:46 AM

I have to get more into the opinion, but it actually looks like it's drafted to have the least impact possible. It repeatededly emphasizes that it's just a prediction as to whether the Maryland courts might recognize the validity of an out-of-state marriage, and not a conclusive interpretation of state law that state agencies should follow in carrying out their duties. In fact, it warns state agencies not to change what they're doing without promulgating new regulations first, and construes the Governor's authority to direct state officials to recognize out-of-state same-sex marriages very narrowly. There's some good language in there, and AG opinions like this tend to get picked up over time in judicial decisions, but I wouldn't expect anything concrete to come from this in terms of day-to-day decisions by state officials on benefits and the like.

Posted by: Jon F | Feb 24, 2010 12:28:53 PM

I can tell you that groups are THRILLED with the opinion. I got a press release from Lambda Legal that pretty much suggests that MD recognition is a done deal. Here's that text:


Maryland Joins New York in Recognizing Out-of-State Marriages of Same-Sex Couples: Lambda Legal Applauds AG Opinion [Lambda Legal]

"The Big Apple didn't topple after New York recognized out-of-state marriages of same-sex couples - far from it - and many families in Maryland just got more stability."

(New York, February 24, 2010) - Today Maryland Attorney General Douglas F. Gansler issued an opinion saying that recognition of out-of-state marriages of same-sex couples is consistent with Maryland law. Lambda Legal applauds the opinion that follows similar analysis in other states like New York.

Statement from Susan Sommer, Director of Constitutional Litigation at Lambda Legal:

"This opinion should bring some peace of mind to married same-sex couples and their families in Maryland as this state aligns itself with New York, in making clear that there is no gay exception to long-standing marriage recognition law. The Big Apple didn't topple after New York recognized out-of-state marriages of same-sex couples - far from it - and many families in Maryland just got more stability. Under well-settled law, a marriage valid where entered is valid in Maryland, even if the couple could not have married in Maryland.

"Unfortunately, this important step is only part of the story. Same-sex couples who reside in either New York or Maryland still have to leave home to get married, and they are as vulnerable as ever to discrimination in other states and by the federal government. These half-steps are helpful, but not enough – we need marriage equality for same-sex couples."

Lambda Legal has worked to secure recognition of out-of-state marriages of same-sex couples in New York, establishing important precedent for Maryland to follow. New York's highest court recently upheld government recognition of out-of-state marriages in two Lambda Legal cases, Godfrey v. Spano and Lewis v. NY State Dept of Civil Service. As a resource to the Maryland Attorney General's Office, Lambda Legal provided detailed analysis of Maryland legal principles calling for marriage recognition. Sommer also provided testimony to the Maryland legislature against proposed legislation to block recognition of out-of-state marriages; that bill was successfully opposed.

Posted by: G-A-Y | Feb 24, 2010 12:46:01 PM

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