On Tuesday, Washington, D.C.'s city council voted to make the District the sixth place in the nation where gay couples can legally marry. By voting to permit same-sex marriages in the District between people from anywhere in the country, the council struck a historic blow for equal rights that has drawn the attention of supporters and opponents both locally and nationally.
Although D.C. Mayor Adrian Fenty has indicated he will sign the measure, it still faces several hurdles before it can become law. Congress could block the council's decision during the 30-day review period mandated under the District's home rule charter, and opponents still hope to mount a challenge at the ballot box by forcing the city to put the issue up for referendum.
Given that both houses of the Democrat-controlled Congress currently have their plates full dealing with health-care reform and other matters, it seems unlikely either will divert much time or energy to meddle in the District's affairs. And the District's own human rights ordinance in general prohibits referendums that potentially violate the rights of individuals based on their race, religion, national origin, sexual orientation or gender identity.
Thus, it appears that the issue of gay marriage has now arrived at Maryland's doorstep, and that increases the urgency for Attorney General Douglas F. Gansler to issue an opinion on whether the state is permitted to recognize same-sex marriages from other states.
The District already has such a law, and it seems reasonable to expect that many gay couples in Maryland may now choose to get married there, even though they maintain their residences in this state. Recognizing those unions would afford gay couples the same legal protections regarding health care, inheritance, sick leave to care for a partner and other domestic arrangements enjoyed by heterosexual couples.
Maryland's law specifying that marriage is between a man and a woman survived a test in the Court of Appeals, and efforts to legalize gay marriage through the legislature have been unsuccessful. But Gov. Martin O'Malley has said he would like to be able to recognize same-sex marriages performed in states where they are legal but is waiting to hear from the attorney general about whether doing so would be legal.
The attorney general has now been researching the question since May. It's hard to conceive of what, exactly, is taking Mr. Gansler so long, but with thousands of gay couples in Maryland likely about to be tempted by a quick jaunt to D.C. for a wedding, he needs to hurry up.
Every state has always had the option to recognize out-of-state marriages unobtainable within that state, like first cousin marriages, whose legality varies. Therefore, the first clause in the federal Defense of Marriage Act providing that no state need recognize out-of-state marriages has always been just empty political theater.
The Constitution provides that court decrees/licenses like marriage and divorce must be recognized across state lines, but there is a huge loophole called the strong public policy exemption. All states could ignore sister states' court decrees if they were against that state's strong public policy. Too bad there's no clear definition of "strong public policy," so it's up to a state's top brass to define it.
Will Maryland give more weight to national unity expressed by full faith and credit or cower with fear of out-of-state gay married couples? It's up to the governor and attorney general to set the bar, and thus it's a purely political calculation. Sad, but true.