By Tim Craig
Washington Post Staff Writer
Friday, February 6, 2004; B04
Maryland could be forced to recognize same-sex marriages performed in other states unless the General Assembly steps in this year, a key state lawmaker said yesterday, setting up a battle over gay rights that Democratic leaders said they were hoping to avoid.
With the Massachusetts Supreme Court clearing the way for same-sex marriages in that state as soon as May 17, there is growing concern among some lawmakers that Maryland could be vulnerable to court challenges if a married gay couple moves to the state expecting similar rights.
"The problem arises when someone from another state asks for relief in this state regarding their marriage rights," said Del. Joseph F. Vallario Jr. (D-Prince George's), chairman of the House Judiciary Committee. "We are in a dilemma. . . . This is another big issue we are going to have to face this year."
Since 1973, Maryland law has defined marriage as being between a man and woman. But Maryland is one of 13 states that has yet to pass a "defense of marriage bill" designed to explicitly deny recognition to gay couples' marriages or civil unions performed in other jurisdictions.
Vallario said he expects to schedule a hearing as soon as possible on legislation that would amend the state law to make it clear that gay couples married in Massachusetts or elsewhere will not be entitled to marital benefits in Maryland.
"I want to close the door while the horses are in the stable rather than try to close it later when they get out," said Del. Emmett C. Burns Jr. (D-Baltimore County), the sponsor of the legislation. "They are at the gate right now."
But gay rights supporters in the General Assembly are vowing to put up stiff resistance to Burns's proposal and others, calling them a divisive, knee-jerk reaction designed to hurt the state's gay and lesbian residents.
"I think these are mean-spirited, homophobic and totally unnecessary, and it bothers me greatly to see legislators react in such a paranoid fashion," said Sen. Sharon M. Grosfeld (D-Montgomery).
The two openly gay delegates in the General Assembly -- Maggie L. McIntosh (D-Baltimore) and Richard S. Madaleno Jr. (D-Montgomery) -- said Burns's legislation is not necessary because gay marriage is already prohibited in Maryland.
"Have you ever seen the movie 'Animal House'?" Madaleno asked. "I feel like these proposals are akin to double secret probation. It is already against the law, but we feel a need to make it double against the law."
Although Vallario said he expects his committee to take up the matter, Sen. Brian E. Frosh (D-Montgomery), chairman of the Senate Judicial Proceedings Committee, recently said he would likely resist the legislation. "I am not so sure marriage needs protecting," he said.
Legal experts said they don't know which side is right.
Kathryn M. Rowe, an assistant state attorney general, said the issue could end up in court if a gay couple married in another state decided to challenge Maryland's law. The full faith and credit clause of the U.S. Constitution generally requires a state to accept a marriage performed in another state, but there can be exceptions, Rowe said.
"It is clear there are exceptions for things that are clearly against the policies of the state, but where that line can be drawn, that is not clear," she said.
The issue puts Democratic leaders in a bind. Although a Washington Post poll last month found that 58 percent of Maryland residents oppose same-sex marriage, gays traditionally have been one of the most loyal Democratic constituencies.
House Speaker Michael E. Busch (D-Anne Arundel) said yesterday he would rather leave the issue up to the courts. Senate President Thomas V. Mike Miller Jr. (D-Calvert) said he doesn't want to touch the issue this year, either.
"Maryland is a moderate and temperate state, and I don't think the issue will be addressed this year," Miller said.
Paul E. Schurick, communications director for Gov. Robert L. Ehrlich Jr. (R), said the governor is strongly opposed to gay marriages but is not sure whether additional legislation is needed at this time.
Del. Charles R. Boutin (R-Harford) has proposed a largely symbolic measure seeking voter approval of a constitutional amendment to define marriage as being between a man and a woman.
Gay rights activists said they feel so threatened by the marriage legislation that they are abandoning a push for civil unions to concentrate on defeating the bill. "Clearly, our top priority is to beat back any legislation that is going to write discrimination into Maryland's law and Maryland's constitution," said Dan Furmansky, executive director of Equality Maryland, an advocacy group for gay rights.
The group and others also are lobbying to have sexual orientation and gender identity added to the state's 1988 hate crimes law. Similar legislation passed the House last year but failed by one vote in a Senate committee.
Another measure seeks to ensure that gay partners can make medical decisions for one another.