The Maryland attorney general takes a step in the direction of gay marriage

Saturday, February 27, 2010

THE ATTORNEY GENERAL of Maryland does not have the power to legalize same-sex marriage; the legislature almost 40 years ago determined that "only a marriage between a man and a woman is valid in this state." His opinions do not carry the weight of law; only legislative pronouncements and court rulings do.

What he can do is provide an authoritative reading of what the law commands. That is what Maryland Attorney General Douglas F. Gansler (D) has done in concluding that same-sex marriages performed in other jurisdictions may -- and should -- be recognized under Maryland law. In the process, he has produced a legal compass that should be followed to provide overdue equality for gay and lesbian couples in Maryland.

Most states that ban gay marriage also bar recognition of such unions lawfully performed in other jurisdictions. Maryland is just one of two states where the law limits marriage to one man and one woman but is silent on same-sex marriages performed elsewhere. Maryland has traditionally recognized all marriages performed in other states unless "it is contrary to the public policy of Maryland"; polygamous and incestuous marriages have been rejected. In 2004, the office of then-Attorney General J. Joseph Curran Jr. concluded that, while the matter was "far from clear or settled," Maryland law likely argued against recognizing out-of-state marriages of gay couples.

Mr. Gansler makes a compelling case that legal and policy changes since then dictate a different answer. Since 2004, lawmakers repeatedly have declined to pass legislation barring recognition of out-of-state same-sex marriage. Maryland meanwhile has continued to adopt policies that extend protections to gay residents. The legislature also recently passed measures allowing domestic partners visitation rights in hospitals and the ability to make medical decisions for each other if incapacitated. Mr. Gansler argues that Maryland courts therefore would be unlikely to use the "public policy exception" to bar legal benefits and rights to same-sex couples.

Mr. Gansler's opinion and the possibility that gay couples in Maryland may soon be able to marry in the District are welcome developments. But they are no substitutes for permanent protections in Maryland itself. Gov. Martin O'Malley (D) should direct state agencies to begin applying the attorney general's advice immediately.

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