What’s Up in Maryland

Wednesday’s “development in need of more explanation” is the Maryland Attorney General’s Opinion (pdf) issued by A.G. Douglas Gansler (D) about state recognition of same-sex marriages performed out of state.

First, let me explain an A.G.’s opinion generally. As the chief lawyer for the state, generally speaking, the attorney general advises client agencies and officeholders on the state’s legal obligations. As such, attorneys general regularly offer guidance on any number of questions regarding the interpretation of state laws. This can be done in a variety of traditional lawyer-client ways, but many states also allow a more public, formal process of A.G. opinions.

In an A.G.’s opinion, a question is formally presented to the attorney general on a topic of application or interpretation of state or federal law. States differ on who can ask for a formal opinion, but there generally are limitations on who can ask for an opinion.

Also differing across the states is the impact of those opinions. More or less, though, the effect of the opinions is generally controlling on state entities until a court declares to the contrary. There are, of course, times when a governor might disagree with the attorney general and take the issue to court. In the absence of that or a similar situation or court action contrary to the opinion, an A.G. opinion becomes, effectively, the law once it has been issued. The opinions also often are persuasive, but not controlling, authority for a court to use in addressing the issue.

Maryland A.G. Gansler (D)

Which brings us to Wednesday’s actions in Maryland.

The A.G.’s Opinion basically says that the law could be interpreted so as to allow out-of-state marriages to be recognized and that Gansler believes the Maryland courts would decide that way. He reaches this conclusion despite the state’s ban on performing same-sex marriages in the state.

Gansler writes, “It is unclear from the text of FL §2-201 [Maryland's law restricting marriages to opposite-sex couples] whether the statute was intended to address recognition of out-of-state marriages.” Md. A.G. Op., at 34.

He then discusses the impact of the public policy exception, which allows states to refuse to recognize marriage legally performed elsewhere if to do so would be against the strong public policy of the state.

He writes:

Undoubtedly, a same-sex marriage, even if valid in another state, would have been obviously contrary to the public policy of Maryland in the past, given the laws criminalizing homosexual sexual activity.  However, the same cannot be said today.

Md. A.G. Op., at 38-39. He writes about changes to criminal and anti-discrimination laws, as well as adoption and domestic partnership law. He concludes that “the statute no longer expresses a public policy of the State that so condemns same-sex relationships as to create an exception to principle of comity that usually governs recognition of out-of-state marriages.” Md. A.G. Op., at 43.

Additionally, he argues, Maryland’s invocation of the “public policy exception” has been very narrow. As Gansler writes:

A statute that limits marriage in Maryland to opposite-sex couples could be said to embody a policy against same-sex marriage.  However, there are many restrictions in the State’s marriage statutes and the Court of Appeals has not construed the public policy exception to encompass all those restrictions.  For example, it has recognized common law marriages from other states, although there is no common law marriage in Maryland, and has recognized a Rhode Island marriage between an uncle and a niece, although a statute prohibits marriage between an uncle and a niece in Maryland.  Indeed, the public policy exception is a very limited one that the Court has seldom invoked.

Md. A.G. Op., at 5-6.

(NOTE TO JOHN ARAVOSIS AND HIS READERS: Gansler, the first statewide elected official in Maryland to support marriage equality, “compared” our relationships to incest, as John would say. Also, on page 44, to polygamy. John has harshly and unjustifiably attacked the Department of Justice for such legal references for the past months, yet today, writes nothing of it. That’s because it’s not a comparison in the sense that he uses the word. It is, instead, a simple legal comparison of the underlying legal issue about marriage recognition. Lawyers cite cases as precedent and, thus, can only turn to issues that have been litigated in the past when doing so. As I’ve written often, it’s been an unfair attack since day one that he’s continued as recently as his interview with The Advocate earlier this month. I’m interested in seeing if this leads to John admitting his assessments have been unfair.)

Once Gansler established that the courts are unlikely to invoke the public policy exception in this situation, the conclusion pretty much writes itself:

While the matter is not free from all doubt, in our view, the Court is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction. In light of Maryland’s developing public policy concerning intimate same-sex relationships, the Court would not readily invoke the public policy exception to the usual rule of recognition.

Md. A.G. Op., at 54.

Now, when the opinion was released Wednesday morning, most people were interpreting the opinion as saying that the courts would likely determine that out-of-state marriages would be recognized. Which sounded like “not much.” And, technically, that is what the opinion says.

But, once the opinion has been issued, that is the legal position of the A.G.’s office and, therefore, the advice given to all state agencies. For that reason, it was not surprising that, likely after consultation with the governor’s office, Gansler clarified that the state would be recognizing out-of-state same-sex marriages effective immediately. From The Washington Post:

UPDATE 2:50 P.M.: Maryland Attorney General Douglas F. Gansler (D) says effective immediately the state recognizes same-sex marriages performed elsewhere and state agencies should begin giving gay couples the rights they were awarded elsewhere.

So, to the extent that Gansler decided that there was room for “argument” on either side of the issue, he clearly took the policy position that he wouldn’t wait to be the defendant of a lawsuit seeking out-of-state recognition — which would, technically, pit him against the LGBT community — and instead chose that he would rather be the defendant of a case challenging the state’s recognition of out-of-state same-sex marriages — which would put him in the role of defending the LGBT community. This makes all the more sense in light of his position supporting marriage equality.

Nonetheless, to the extent that Gansler determined the current legal landscape would result in a court decision upholding out-of-state recognition, the opinion set the law as it stands in Maryland unless the courts rule otherwise.

Interesting side note, some of the stilted and awkward language in the opinion comes from the opinion’s steadfast avoidance of whether recognition of out-of-state marriages is required, which would have gotten into the due process and equal protection arguments that marriage equality-watchers know also would apply to the state’s prohibition on performing same-sex marriages in the state. It is in that sense that the opinion is quite limited.

What this means is that agencies will begin adopting regulations and policies to allow for recognition of out-of-state same-sex marriages. This, obviously, will include the District of Columbia, where the marriage equality bill is to take effect on March 3. The opinion noted that such changes will be made to the extent possible when not constrained by federal law (primarily, the Defense of Marriage Act). In other words, there are still complications to be resolved.

Although just one (big) step in a complicated process, and though a court challenge appears almost inevitable, this was an important step toward equality that Gansler and his office did a good, honest job of preparing.

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