Same Sex Marriage

Gansler weighs in on same-sex marriage recognition in Md.

by Steve Lash

ANNAPOLIS – In a victory for gay rights advocates, Maryland Attorney General Douglas F. Gansler issued an opinion Wednesday endorsing the view that the Court of Appeals would — and the state should — recognize as married same-sex Maryland couples who are legally wed in other states.

The immediate effect of Gansler’s opinion is to put state agencies on notice that they should extend to these same-sex couples all the rights and benefits afforded to married heterosexual couples in the state, Gansler said after issuing his opinion. For example, the legally wed partner of a state employee should be entitled to the same pension benefits as any other spouse.

Maryland Gov. Martin O’Malley issued a call to state agencies in light of the opinion.

“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 and I expect all state agencies to work with the attorney general’s office to ensure compliance with the law,” O’Malley said in a statement.

Gansler’s opinion lacks the force of law, but makes clear that the attorney general, the state’s top legal adviser, believes the state is constitutionally required to recognize the same-sex marriages legally performed in other states. Gansler, in his written opinion and public comments Wednesday, expressed his belief that the Court of Appeals will rule likewise when the issue inevitably reaches the state’s top court.

“This will ultimately be resolved in the court,” Gansler said during a press conference. “The court will ultimately have a say.”

Under the federal Constitution’s Full Faith and Credit Clause, the 45-page opinion explained, states are bound to recognize legally binding agreements, including marriage contracts, issued by other states. The only exception to this rule is if the contract so deeply offends a state’s public policy that it cannot extend such recognition.

Maryland’s recognition of same-sex marriages performed in other states does not offend the state’s public policy, Gansler concluded.

“While the matter is not free from all doubt, in our view, the Court of Appeals is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction,” Gansler wrote in his opinion. “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” that states recognize legally binding agreements, including marriage contracts, from other states, Gansler added.

In recent years, the opinion explained, the state has extended many rights — short of actual marriage — to same-sex couples. These include the right to adopt and the right of same-sex partners to be involved in medical decisions affecting their loved ones.

The attorney general also cited the Court of Appeals’ history of recognizing marriages from other states that would have been invalid had they occurred or been performed in Maryland. These unions include a common-law marriage that was accepted in another state, as well as a legal Rhode Island marriage between an uncle and his niece.

Gansler, who supports gay marriage, said his personal views played no part in his advisory opinion.

“We’re not in the policy business,” Gansler said of the attorney general’s office. “We’re in the interpretation of law business.”

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