A step toward marriage equality

Our view: Gansler's opinion on out-of-state same-sex marriages advances the cause of justice

February 25, 2010

Maryland Attorney General Douglas F. Gansler advanced the cause of civil rights in Maryland yesterday with his opinion that the state must recognize same-sex marriages from other states. The decision is not only a huge victory for the gay and lesbian community but also for the principles of equality and fairness to all.

With Washington on the verge of allowing same-sex marriage -- as recent efforts to send the District statute to voter referendum have proven unsuccessful -- the issue was at Maryland's doorstep. Mr. Gansler's opinion is unlikely to be the last word on the subject, but absent a state court ruling or action by the General Assembly, it is the law of the land, and state agencies must now recognize out-of-state same-sex marriages in all legal matters, from licensing and health care to real estate transactions and inheritance.

The opinion will not, however, change those services that come under federal oversight, such as income taxes; the federal government was directed not to recognize same sex marriages under the ill-conceived Defense of Marriage Act signed into law by President Clinton in 1996.

Social conservatives will no doubt decry Mr. Gansler's findings as both wrong and politically motivated. But as the 40-page opinion makes clear, there is no shortage of legal precedent for recognizing these unions.

Under a principle known as "comity," states have historically offered reciprocity for legal, executive and judicial acts. While the requirements for a marriage license vary from state to state, Maryland has long recognized out-of-state marriages anyway.

The best example may be common-law marriages -- a union created by cohabitation and agreement rather than the usual ceremony. Maryland recognizes the legality of such marriages from other states even though the law here does not actually provide for them.

Some may be surprised by the opinion in light of Maryland's 37-year-old law specifically defining marriage as a union between a man and a woman. That misguided law was briefly held unconstitutional by a city circuit court judge until that decision was overturned by the Court of Appeals in 2007.

The state ban on same-sex marriage still holds, but as the law never spoke to marriages created in other states, the principle of comity applies.

Admittedly, the situation is unusual. Today, 39 states ban same-sex marriage and the recognition of out-of-state same-sex marriages, while five states and the District of Columbia have passed laws allowing them. Maryland is one of only six states where they law does not speak specifically to out-of-state same-sex marriage.

Mr. Gansler's decision rightly puts Maryland in the vanguard of those states. The matter has proven too contentious for the General Assembly, which is unlikely to either affirm or reject the attorney general's opinion through legislation.

It's far more likely that the issue will once again land in the state's highest court -- perhaps when opponents sue to prevent marriage benefits from being offered to a same-sex couple. But Mr. Gansler's position is likely to prevail -- not only by its soundness but by the absence of two judges who ruled with the majority in the 4-3 Court of Appeals decision upholding the state ban on same-sex marriage. Judges Alan M. Wilner and Dale R. Cathell have retired, and their replacements have been appointed by Gov. Martin O'Malley.

Historically, this is how civil rights advances. Much the same happened in 1957, when Maryland's ban on interracial marriage was ruled illegal by a Baltimore circuit court judge. It was only a decade later that similar state bans were struck down by the U.S. Supreme Court.

Critics may be correct on one point: The opinion puts Maryland further down the road toward eventually adopting same-sex marriage. At least, it should. That same-sex partners and their children should continue to be denied the civil benefits of marriage is grossly unfair to them and the broader community.

Readers respond

Let me start by saying I'm a Republican and pretty conservative. This issue is all about rights. You can't give rights to one group and not another without a very good reason, and sexual orientation is not good enough. I was just hired as a bartender by a lesbian women who teaches 8th grade English in Baltimore City, then manages her business in the evening. Denying her the same rights I have is the most un-American thing I've ever heard.

Mark Morgan

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