Another boost for same-sex marriage

Our view: The Maryland Court of Appeals decision to recognize out-of-state same-sex marriages fundamentally shifts the terms of the marriage rights debate

May 20, 2012

How ironic that a divorce will be remembered for strengthening the rights of all Marylanders to be married regardless of sexual orientation.

With its slam-dunk 7-0 opinion issued Friday in the matter of two women seeking a divorce, the Maryland Court of Appeals has ruled that Maryland must recognize same-sex marriages legally certified elsewhere. It's a huge victory for the ongoing efforts to legalize same-sex marriage in Maryland and adds a whole new dimension to this fall's referendum.

Instead of deciding whether same-sex marriages should be legal in Maryland, voters will effectively be choosing only whether such ceremonies are conducted within the state or in the nearby District of Columbia — or some other jurisdictions where they have already been legalized. In either case, it appears same-sex marriages are here to stay.

It's also a noteworthy validation for Maryland Attorney GeneralDouglas F. Gansler, who was roundly condemned by conservative lawmakers for issuing an opinion two years ago that came to the very same conclusion as the high court. Indeed, the court's opinion follows the same line of reasoning as the attorney general — that out-of-state same-sex marriages must be recognized as valid even in a state where marriage was previously defined as being between a man and a woman.

At the heart of the matter is a legal doctrine of comity — or legal reciprocity. Maryland has long recognized out-of-state marriages despite differing standards of states. For instance, some states have common-law marriages, unions created by cohabitation and agreement rather than ceremony, and Maryland has long recognized them even though Maryland has no common-law marriage statute.

Since Maryland law does not expressly prohibit the recognition of out-of-state same-sex marriages (and the legislature has repeatedly rejected efforts to do just that over the years), the only matter at issue was whether same-sex marriages might be legally "repugnant" to public policy. It isn't because, as Judge Glenn T. Harrell notes in the opinion he wrote on behalf of the full court, Maryland has actually adopted multiple provisions to protect the rights of same-sex couples in matters ranging from employment to public accommodations and housing.

Unfortunately, the ruling does not mean the court will revisit its 2007 decision in which a majority of the judges rejected same-sex marriage — specifically overturning a city circuit court judge's decision that found denying same-sex couples the right of civil marriages was unconstitutional. That decision may yet be challenged at some future date (if only because of several retirements and new appointments in the court in the interim) should this fall's expected referendum turn out badly.

Nevertheless, the decision would seem to boost the chances that voters will approve the same-sex marriage law Gov.Martin O'Malleyproposed and the General Assembly passed earlier this year. One can argue that voting against the law now guarantees only that the legal ceremonies will be conducted elsewhere — and the state will be deprived the financial benefits as couples hold ceremonies (and perhaps receptions and hotel stays) elsewhere.

That economic boost is not insignificant. One study conducted last year estimated that same-sex weddings in Iowa alone generated $12 million in economic activity.

Still, that's a minor consideration compared to the need for Maryland to protect the legal rights of all its citizens. Banning same-sex marriage denies certain legal benefits to couples and their children in matters ranging from health insurance, property rights, custody and inheritance that are patently unfair and clearly not in the broader public interest.

No doubt Jessica Port and Virginia Anne Cowan, the two women who married in California in 2008 and filed for divorce inPrince George's County, did not expect to be Maryland civil rights figures, but social progress can sometimes take an unexpected path.

Now it's up to voters to further advance the cause of civil rights and approve same-sex marriage — potentially becoming the first state in the nation to do so at the ballot box. Recent polls have shown the measure will be close, but President Barack Obama's recent announcement that he personally supports same-sex marriage, as well as the court's welcome decision to recognize out-of-state same-sex unions, gives momentum to the cause.

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