Maryland Attorney General Finds No Impediment to Recognizing Same-Sex Marriages

Maryland’s Attorney General, Douglas F. Gansler, issued a formal opinion on February 23, 2010, opining that there was no impediment under Maryland law to the state recognizing same-sex marriages that were contracted lawfully in other jurisdictions, and predicting that the Maryland courts would likely conclude that such marriages should be recognized. At the same time, Gansler said, the governor does not have broad authority to order the state government to recognize such marriages, but might be able to direct recognition more narrowly focused on issues that are solely within the purview of the executive branch of the state government.

With a District of Columbia law authorizing same-sex marriages probably going into effect in March, whether same-sex marriages contracted in D.C. will be recognized in neighboring states has become a matter of significant concern. It is clear that such marriages will not be recognized in Virginia, where legislation prohibits such recognition. But Maryland is a different matter. Although the state’s marriage statute does not permit same-sex couples to marry in Maryland, and that statute was upheld in a narrow 5-4 vote by the state’s highest court in 2007 in Conaway v. Deane, 932 A.2d 571, there is no direct statutory prohibition on recognizing such marriages.

Openly-gay Maryland State Senator Richard S. Madaleno, Jr., lead sponsor of proposed legislation to allow same-sex couples to marry in the state, sent a formal request to Attorney General Gansler, posing the question whether the state may recognize same-sex marriages contracted elsewhere, and also whether the governor could issue an executive order requiring state agencies to recognize such marriages. In his request, Senator Madaleno referenced the actions taken by New York Governor David Paterson in 2008.

The Attorney General’s response, titled "Marriage - Whether Out-of-State Same-Sex Marriage That is Valid in the State of Celebration May be Recognized in Maryland," 95 Op. Att’y Gen. 3 (2010), answers the first question affirmatively and the second question negatively. The Opinion is careful to observe that it is "not itself the law of Maryland" and that "what we say in this opinion is a prediction, not a prescription, as to how the Court [of Appeals] would approach this issue under current law." Ultimately, a definitive answer to whether such marriages actually will be recognized would rest with the legislature or the courts. The A.G. Opinion is about 50 pages long.

Turning first to the question whether Maryland may recognize such marriages, Gansler notes that under the traditional principle of comity followed in Maryland as well as other states, there is a presumption that marriages that were lawful where they were celebrated will be recognized as valid in Maryland. Such marriages would not be recognized if there was a strong public policy against recognition.

One basis for such a public policy would be a state constitutional provision or statute specifically prohibiting their recognition, and there is no such provision in Maryland. Although the state has specifically prohibited issuance of marriage licenses to same-sex couples, it has not specifically prohibited recognizing their marriages formed in other jurisdictions. "A statute that limits marriage in Maryland to opposite-sex couples could be said to embody a policy against same-sex marriage," Gansler commented, but he pointed out that there are many restrictions on marriage under Maryland law that have not been seen as impediments to recognizing marriages contracted out-of-state.

For example, Maryland has abolished common law marriage. Maryland couples who live together without obtaining a marriage license and performing the necessary civil or religious ceremony are not regarded as married. However, a different-sex couple that moved to Maryland from a state where common law marriage is recognized will be considered married for purposes of Maryland law if their relationship would have been recognized as a marriage in their prior state of domicile. In another example, Gansler pointed out that Rhode Island permits marriages between an uncle and a niece, which are not authorized in Maryland, but if an uncle and niece were married in Rhode Island and their marital status became an issue in Maryland, it would be recognized there.

"While the matter is not free from all doubt," wrote Gansler, "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." He also noted that Madaleno had posed the question "in the abstract," but that in matters of marriage recognition "context matters," noting as an example that if federal law governs a particular situation, the federal Defense of Marriage Act (DOMA) might get in the way of Maryland’s recognition of the marriage for that purpose. In fact, this is an important issue in the State of Massachusetts lawsuit challenging the federal Defense of Marriage Act, with Massachusetts arguing that it is compelled not to recognize same-sex marriages in certain joint federal-state programs because of the overriding effect of DOMA.

As an example of what Gansler is getting at in referring to the context issue, consider the situation in New York. Governor Paterson, Attorney General Andrew Cuomo, and many other state officials have taken the position, consistent with rulings by several intermediate state appellate courts, that same-sex marriages contracted elsewhere should be recognized in New York. Some New York trial courts, building on this foundation, have recognized such marriages for various specific purposes in pending cases involving employee benefits, divorce, and probate of wills, and some state agencies have revised their procedures to recognize the marriages for particular purposes. But the state Tax Department is still telling people that they need to file their tax returns as unmarried individuals, because the state’s tax statute requires that New York taxpayers file their state tax returns using the same status as their federal tax returns, and DOMA precludes filing federal taxes in the married status. Context matters.

Thus, Gansler predicts that the Maryland courts would recognize such marriages in appropriate contexts, and opines that they should do so, consistent with existing law on marriage recognition in Maryland. His position is significant because as chief lawyer for the state government, he would be looked to by state agencies for advice about how to deal with the issue, and if there are court proceedings, he would be defending state agencies that extend recognition should that be challenged. Furthermore, one would expect that in any litigation over marriage recognition, the Attorney General’s Office would take positions consistent with this published opinion, and would not raise legal arguments that had been rejected in this opinion.

Since anti-gay organizations such as the Alliance Defense Fund and Liberty Counsel have proven eager to bring law suits challenging any state action recognizing same-sex marriages, it seems likely that this ruling will be tested in the courts through test cases, even if state agencies decide to comply with it.

On the issue of an executive order, Gansler stated that "the Governor cannot legislate through an execute order. An executive order of the Governor must be consistent with existing Maryland law, as enacted by the General Assembly and construed by the courts." He rejected as "not entirely analogous" what happened in New York in 2008. Contrary to occasional imprecise statements found in news reports, Governor Paterson did not issue an executive order requiring New York State agencies to recognize same-sex marriages. He authorized the distribution to state agencies of a memorandum signed by his legal counsel, advising agencies about an appellate court opinion on marriage recognition, Martinez v. County of Monroe, and asking what they were doing to avoid liability by complying with that decision. The key is that an appellate ruling construing the law provided a basis for the governor to take this limited action. Significantly, although former Attorney General Eliot Spitzer’s office had issued a letter in 2004 opining that same-sex marriages from other jurisdictions would be recognized in New York, it was not until an appellate court ruled that trial courts began to accept the proposition and that Governor Paterson authorized the memorandum to state agencies.

Gansler commented that the Maryland governor could not issue an order that was binding on the courts or the legislature, but could direct executive branch agencies on matters solely within their purview to recognize same-sex marriages.  He noted that the governor's power to issue executive orders was at its most well-established in matters of executive branch employment policy, so, for example, the governor might be able to direct state agencies to treat out-of-state same-sex marriages the same as all other marriages for purposes of their employee benefit programs.  The governor's executive order power is at its weakest when it comes to affecting the activities of private actors, and, of course, as to employee benefits, private employers subject to the federal Employee Retirement Income Security Act could not be directed by the state government to modify their eligibility rules due to ERISA's broad preemption of state law.

Attorney General Gansler’s Opinion is a major step forward for marriage recognition in Maryland. It gives state agencies a legal basis to extend such recognition in particular cases, and it signals what position the Attorney General’s Office will take in any subsequent legal contest about the issue. But, as Gansler stated in his Opinion, it is not yet the law, as such, Maryland couples thinking of going to D.C. or other places to get married should understand that this issue is not yet finally settled in Maryland, although it is likely that it will be settled in the direction of marriage recognition.

Comments

[Art Leonard]

This posting was based on analysis of the written Opinion issued by Attorney General Gansler. Local press is reporting that Gansler held a press conference in the afternoon to deal with questions raised by the Opinion, and stated his view that as chief legal advisor to the Executive Branch, he expected that executive branch agencies would immediately begin to recognize same-sex marriages from out-of-state consistent with his opinion. Later, the governor issued a statement echoing this expectation. So it seems that although the Opinion itself was phrased merely as predictive of what the courts might do, Gansler (and Governor O'Malley) are now publicly committed to immediate implementation by the executive branch.

Of course, as the Opinion points out, it is up to the courts whether to recognize same-sex marriages in the context of legal disputes over, for example, child custody and visitation, estates administration, wrongful death actions, evidentiary privileges, and other situations in which marital status may be relevant, so one could hardly assert that everything is now settled in Maryland about marriage recognition.

In addition, of course, the usual suspects may move quickly to file lawsuits and seek temporary injunctive relief. Those steps proved ineffectual in New York, so we'll have to see how the Maryland judiciary reacts.

[silagra]

Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting the unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
Legal recognition of same-sex marriage continues to be one of the most socially and legally controversial issues of the day. The legality of same-sex marriage varies greatly by jurisdiction both in the United States and around the world.

[Art Leonard]

The Attorney General disagrees with you, and opines that a same-sex marriage contracted elsewhere (e.g., in the District of Columbia) is valid and will be recognized by the state government in Maryland. It is quite simple. Under comity rules prevailing in the U.S., marriages that were lawful where contracted are recognized in other states unless the state has a strong public policy reason not to recognize the marriage. A state constitutional provision or statute specifically declaring that same-sex marriages are not recognized would prevent recognition through comity, but otherwise it is a policy question for the courts to consider. The grounds you state for refusing recognition have been decisively repudiated by courts in several jurisdictions.

Since a significant number of same-sex couples are raising children, the policy results you cite would not be advanced by refusing to recognize their marriages. And anyone who maintains that all the legal incidents of marriage were created with procreation in mind have had their head in the sand for decades....