Maryland Attorney General issues advisory opinion on legal status of out-of-state, same-sex marriages

Maryland Attorney General Douglas F. Gansler has issued an advisory opinion on the legal status of same-sex couples married in other states. He has determined that the state may recognize these out-of-state marriages in any of three ways - through legislation, court rulings, or administrative action. (Gay Couples Law Blog) "This opinion addresses the second way in which out-of-state marriages may be recognized in Maryland. It describes the legal landscape against which the Court of Appeals would assess the question of recognition of an out-of-state same-sex marriage and our view of how it would likely resolve this issue." Gansler concludes that the "Court is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction." He also concludes that the Governor lacks constitutional authority to establish out-of-state recognition by executive order.

Law professor Arthur Leonard favors his readers with a careful analysis of the opinion, and for comparison considers the origins and scope of out-of-state recognition in New York.

The National Center for Lesbian Rights praises Gansler, and has provided legal analysis about Maryland law and policy" to his office. While Lambda Legal welcomes the opinion, it underscores two concerns. First, same-sex couples who reside in Maryland will still have to travel where they can marry. Second, they will face discrimination under the federal DOMA, and in states that don't recognize their marriages. Michael Cole raises similar concerns at HRC Back Story. (Click here and here for press releases by other advocacy organizations.) At least gay and lesbian Marylanders won't have far to travel for a marriage license, if - as expected - D.C.'s marriage-equality law takes effect on March 3rd. (According to the Washington Post, the Alliance Defense Fund is still waging a last-ditch, legal battle to block the law. Click here for more details.)

How will same-sex couples in Maryland gain recognition of their out-of-state marriages? Until Gansler held a press conference later today, his opinion created "uncertainty" about the legal and "policy implications" the moment he issued it. (Washington Post) If same-sex couples had waited on the state legislature to act, they would have waited indefinitely, given recent controversy over failed legislation against out-of-state recognition. A state agency with jurisdiction could independently recognize such marriages in matters within its jurisdiction. For example, the Maryland Comptroller, which collects income taxes, could have allowed married same-sex couples to claim whatever exemptions, deductions, or credits married, heterosexual couples now qualify for as joint, income tax filers. (Or rather it could have made this change, unless state tax law follows the requirements of the federal DOMA. I haven't checked.) But married same-sex couples would have hardly accepted ongoing administrative uncertainty about whether they can claim marital rights and benefits. And, at any rate, each agency action on their behalf would face legal challenge. So it looked as if state court court was the most likely venue for removing uncertainty about out-of-state recognition.

At his press conference, Gansler announced that, under the opinion, his office was exercising its authority to establish the validity of same-sex marriages. The news, of course, all but guarantees a court intervention:

"Maryland Attorney General Douglas F. Gansler (D) said Wednesday that effective immediately, and until challenged in court [highlight added], the state recognizes same-sex marriages performed elsewhere and that Maryland agencies should begin affording out-of-state gay couples all the rights they have been awarded in other places. 'State agencies in Maryland will recognize out-of-state gay marriages as of right now,' Gansler said at a news conference explaining the effect of a long-awaited opinion he released Wednesday morning ... [E]ven advocates said that they expected lengthy court battles [highlight added] and discussions with [Governor Martin] O'Malley's administration would be needed to further refine what Maryland may offer same-sex couples from elsewhere. (Washington Post)