State Studies Gay Nuptials

Gansler Explores Recognition Of Marriages In Other States

May 30, 2009|By Laura Smitherman | Laura Smitherman,

Attorney General Douglas F. Gansler is exploring whether same-sex marriages performed in other states can be recognized in Maryland, a move that could open an avenue for legal recognition of gay and lesbian couples who have been rebuffed by the courts and legislature here.

The exercise puts Gansler - a Democrat and vocal proponent of same-sex marriage - in a difficult position. Maryland law clearly defines marriage as between a man and a woman, but the state also adheres to a long-standing legal principle that generally acknowledges couples married elsewhere.

Gay-rights activists say the ability to marry would not only strengthen their relationships but confer hundreds of rights, benefits and responsibilities on them, including community property protections, control over funeral arrangements of a spouse and an obligation to pay child support.

For many married same-sex couples living in Maryland, the issue isn't just a legal conundrum but deeply personal.

"In some ways, this could be a back door toward marriage equality," said Del. Heather R. Mizeur, a Montgomery County Democrat who obtained a marriage license with her wife, Deborah, last year in California. "I hold out hope for the day that it's part of our everyday culture here in Maryland, and it's no big deal."

The debate comes after New York Gov. David A. Paterson, a Democrat, signed an executive order last year directing state agencies to recognize same-sex nuptials performed in other jurisdictions.

The District of Columbia did the same through legislation passed by the City Council and signed by Mayor Adrian Fenty this month.

The gay-marriage movement has been building nationwide but so far has been stymied in Maryland.

While Gov. Martin O'Malley and the General Assembly have extended a number of rights and benefits to gay and lesbian couples, they have stopped short of endorsing same-sex unions. The Democratic governor has said he would prefer that the state adopt civil unions.

"You can't understate the significance of being married," said Sen. Richard S. Madaleno, a Montgomery County Democrat who is openly gay and requested the attorney general's opinion. "People in our state get married every day, and to be denied the ability to do that is very dispiriting."

Gansler's office is expected to issue an opinion in the coming weeks. Spokeswoman Raquel Guillory declined comment while the matter is being researched.

Any move to recognize gay marriages could be seen as an end-run around the state legislature and would likely draw legal challenges.

"The attorney general took the same oath that I did to protect the laws and constitution of this state," said Del. Don H. Dwyer, an Anne Arundel County Republican and a staunch opponent of gay-rights legislation. "If he gives an opinion that somehow circumvents that law, I am going to take him to task."

Several Northeastern states issue marriage licenses to same-sex couples, including Massachusetts and Connecticut, and an Iowa Supreme Court ruling last month legalized the practice in that state. Legislatures in New York, New Jersey and New Hampshire are considering gay-marriage bills. And Canada has allowed same-sex unions for several years.

But efforts to legalize gay marriage have faltered or been rejected in many parts of the U.S. California's highest court upheld a voter-approved ban on same-sex marriage this week, though it decided that same-sex marriages that took place before the referendum would continue to be valid.

In Maryland, gay-marriage proposals have remained bottled up in committee. While a legalization bill is expected to have a high-profile sponsor next year in Senate Judicial Proceedings Committee Chairman Brian E. Frosh, a Montgomery County Democrat, the panel's makeup is expected to remain the same, so another deadlock is likely.

Many gay-rights activists are pinning their hopes on the 2010 election to send more supportive lawmakers to Annapolis.

In the meantime, lawmakers have granted same-sex couples tax breaks and hospital-visitation rights, and O'Malley recently extended health care benefits to same-sex partners of state employees. About 200 employees have signed up for the domestic partner benefits.

Many states are likely to wrestle with how to address same-sex couples married outside their borders, said Cynthia Callahan, chairwoman of family and juvenile law at the Maryland State Bar Association.

"This is a decision that has many implications," she said. "If marriages were legal where they happened, the question is shouldn't Maryland honor that? The problem, of course, is that this is so politically charged."

The state attorney general's office has periodically weighed in on the question of gay marriages from other states, through advice letters to lawmakers who have inquired about the issue.

Robert A. Zarnoch, a former assistant attorney general, wrote that Maryland law would prohibit the recognition of same-sex unions validly entered in another state. But he also found that the law in this area is far from clear or settled. For instance, he noted that the state honors common-law marriages from other states even though such unions can't be legally entered into here.

Recognition elsewhere

* States that allow same-sex marriage: Connecticut, Iowa, Maine, Massachusetts and Vermont

* Jurisdictions that recognize gay marriages legally entered into elsewhere: New York, District of Columbia

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