By Aaron C. Davis and John Wagner
Washington Post Staff Writers
Thursday, February 25, 2010; A01
Maryland Attorney General Douglas F. Gansler (D) declared Wednesday that Maryland will recognize same-sex marriages performed elsewhere and that its agencies should immediately begin affording gay married couples the same rights as heterosexual ones.
With Gansler's decision, Maryland in effect joins the District and a handful of states including New York that recognize same-sex marriages performed in four New England states and Iowa. The District also has its own measure legalizing those unions that is expected to take effect next week.
Gansler, a supporter of legalizing same-sex marriages, was asserting his authority as the top legal adviser to state agencies to answer a question that experts say had been left unclear by Maryland law. He was responding to a legislator's request that he issue an opinion.
The attorney general's opinion unleashed a torrent of emotions from both gay rights advocates and those opposed to same-sex marriage, adding a potentially explosive issue to election-year politics in Maryland. It is likely to be quickly challenged in court, Gansler acknowledged.
Republicans, socially conservative Democrats and several African American lawmakers from Prince George's County to Baltimore blasted the decision. One Republican lawmaker vowed to bring articles of impeachment against Gansler for trying to usurp Maryland law, which defines marriage within the state as between a man and a woman. The Roman Catholic archbishops of Washington and Baltimore and the bishop of Wilmington said in a statement that they take "strong exception" to the decision.
Gay and lesbian groups said the decision put the state on track toward legalizing same-sex marriage and would embolden them to push more strongly for pending legislation to do so. Similar measures have died in the legislature in years past.
The exact practical implications of Gansler's decision were unclear. David Rocah, a staff lawyer with the American Civil Liberties Union of Maryland, said he thought that the opinion could have "hundreds, if not thousands," of implications for same-sex couples married elsewhere. Rocah said the opinion could ensure same-sex spouses' rights to health benefits, inheritances, child support and even divorce.
Gansler said state laws have more than 1,000 references to spouses or marriage.
Gov. Martin O'Malley (D), who has consistently voiced support for civil unions but stopped short of endorsing same-sex marriage, said his administration would be "guided" by Gansler's legal opinion. Under O'Malley, Maryland has significantly expanded benefits to couples who register as domestic partners, but under Gansler's opinion, same-sex couples married elsewhere would no longer have to go through that step to get many of the same protections.
"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," O'Malley said in a statement. "I expect all state agencies to work with the Attorney General's office to ensure compliance with the law."
Gansler's opinion answered a question about recognizing same-sex marriage that was posed last spring by Sen. Richard S. Madaleno Jr., an openly gay Montgomery County Democrat.
In a roughly 50-page opinion that took nine months to compose, Gansler says the starting principle in state law is that a marriage that is valid in the place of celebration remains valid in Maryland. And even though the state narrowly defines marriages performed within its borders as between a man and a woman, Gansler says, such restrictions don't amount to a strong public policy argument that would override recognizing unions from elsewhere.
The opinion points to several examples Gansler says prove his case: Maryland has recognized common-law marriages from other states even though it does not have common-law marriage. The state has even recognized a marriage of a Rhode Island man and his niece that would have amounted to incest under Maryland law, Gansler said.
In a news conference, Gansler went beyond the written opinion, saying his writing should dictate how state agencies respond when same-sex couples from elsewhere request benefits and legal protections.
"It's not that foreign of a concept. I mean, it's just people. It's just like any other heterosexual couples," Gansler said. "However a heterosexual couple is treated that was validly married in Maryland or elsewhere, [a same-sex couple] will be treated like that here in Maryland, unless and until a court or the legislature decides differently."
His opinion is certain to have political implications. Democratic leaders in the state's General Assembly appear to have little enthusiasm for making same-sex marriage a marquee issue in the 2010 elections.
In the November general election, Baltimore County, a more conservative jurisdiction, will be among the key battlegrounds for statewide candidates, including O'Malley. Gansler is also up for reelection this year but has yet to draw any big-name opposition.
The former Montgomery County state's attorney won office in 2006 on a reputation as a tough-on-crime prosecutor. Since taking office, he has won plaudits from the more liberal wing of his party by becoming the first statewide official to endorse legalizing same-sex marriage. Gansler is believed to be gearing up for an expected run for governor in 2014, probably against several other Democrats who favor civil unions.
Gansler said that it will probably be up to the state's highest court to issue a final verdict but that he thinks his opinion provides a road map for same-sex couples to win.
Del. Donald H. Dwyer Jr. (R-Anne Arundel) said he is convinced that Gansler's opinion will be overturned by courts, and he promised to bring articles of impeachment against the attorney general.
"It is not up to the attorney general, and that's the reason I will be bringing charges of impeachment," Dwyer said. "The opinion doesn't change the law. It in effect usurps law."
But even some of the Maryland lawmakers who attended a celebratory news conference Wednesday afternoon were not entirely clear on all the practical effects.
"I'm struggling to parse that out," said Del. Heather R. Mizeur (D-Montgomery), an openly gay delegate who was joined at the event by her spouse, Deborah.
The couple held a marriage celebration in Maryland in 2005 and was legally married in California in 2008. At the news conference, Mizeur held up a copy of their marriage certificate.
"The [attorney general's] opinion says my state can and should recognize my marriage," Mizeur said.
Staff researcher Magda Jean-Louis contributed to this report.