Wednesday, February 24, 2010

Gansler Opinion on Same-Sex Marriage

Many media outlets are reporting on Attorney General Doug Gansler's opinion that same-sex marriages originating in other states can be recognized in Maryland. Those who wish to see the opinion itself can find it here. We reproduce the concluding language below.


Our opinion is as follows:

The Court of Appeals would start from the general principle that a marriage that is valid in the place of celebration remains valid in Maryland. There is an exception to that rule if the particular marriage is contrary to a strong State public policy. 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.

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 samesex relationships, the Court would not readily invoke the public policy exception to the usual rule of recognition. You have posed the question in the abstract, but, of course, context matters. For example, to the extent that a particular matter is governed by federal law, the federal Defense of Marriage Act, which limits marriage for federal purposes to opposite-sex couples, would prevent recognition of the marriage for that particular purpose.

Finally, with respect to your question concerning the Governor’s authority to issue an executive order, the Governor cannot legislate through an executive order. An executive order of the Governor must be consistent with existing Maryland law, as enacted by the General Assembly and construed by the courts. While the State Constitution and statutes accord the Governor broad powers in certain areas – for example, in matters concerning executive branch employees – many questions concerning recognition of out-of-state marriages arise in the courts and cannot be addressed in an executive order. The action of the New York Governor’s office in 2008 is not entirely analogous. In New York, the Governor’s counsel issued a memorandum to various agencies in that state directing them to comply with a state court decision concerning recognition of out-of-state marriages; there is no similar court decision in Maryland.