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Same-sex marriage in Maryland

AG recognizes of out-of-state SSMs. Impeach AG?
Try referendum?
Bill? 2009-FEB to 2010-MAR:

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2009-FEB-26: SSMs recognized but not available in Maryland:

CitizenLink, a news source from Focus on the Family reported:

"Maryland Attorney General Douglas Gansler said Wednesday the state will recognize same-sex marriages performed elsewhere. Gansler also said state agencies should acknowledge the unions, and afford them the same rights as heterosexual ones. Maryland joins Washington, DC, New York and several other states in recognizing out-of-state gay marriage." 1

Washington DC has since legalized same-sex marriage in the District.

The opinion came in the form of a 55 page letter from Attorney General Gansler to state Senator Richard S. Madaleno, Jr. who requested the ruling. 2 Gansler noted that Maryland recognizes common-law marriages from other states even though there is no common-law marriage in MD. He referred to recognition of an out-of-state marriage between an uncle and niece, even though such a marriage cannot be entered into in MD. He wrote that Maryland courts observe:

"the general rule that a marriage valid where contracted or solemnized is valid everywhere, unless it is contrary to the public policy of the forum. ... This is often referred to as the principle of comity. The Court of Appeals has explained the rationale for this rule:

'The reason for this rule is that it is desirable that there should be uniformity in the recognition of the marital status, so that persons legally married according to the laws of one State will not be held to be living in adultery in another State, and that children begotten in lawful wedlock in one State will not be held illegitimate in another'." 3

AG Gansler also referred to Article IV, Section 1 of the U.S. Constitution, commonly referred to as the Full Faith and Credit Clause:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." 4

There is a conflict between state marriage law, which specifies that a marriage must be between one man and one woman, and the U.S. Constitution which requires that states recognize marriages that have been legally contracted in other states. In case of a conflict between state law and the U.S. Constitution, the latter rules.

Loving, committed same-sex couples can now go to a nearby jurisdiction that allows same-sex marriage -- like Connecticut, Washington DC, Massachusetts, or Vermont -- get married, return to Maryland, and have good reason to expect that their marriage license will be fully recognized. However, they are not allowed to be married in Maryland directly.

CitizenLink continues:

"Derek McCoy, president of the Association of Maryland Families, said the attorney general circumvented the legislative process. 'The law in Maryland is simple,' he said. 'Only a marriage between a man and a woman is valid in this state. Yet, our attorney general takes 53 pages to provide an opinion, or justification, to break the law'."

McCoy appears to refer to a Maryland law passed in 1973. It does indeed prohibit same-sex marriage in the state. However, he may be unaware of Article 46 of the Maryland Declaration of Rights, which provides that "[e]quality of rights under the law shall not be abridged or denied because of sex." Also, as noted above, the state has no other alternative because of the "Full Faith and Credit Clause" in the U.S. Constitution. The attorney general, faced with the alternatives of obeying his interpretation of the Maryland and U.S. constitutions or his interpretation of the 1973 law, chose to follow the Constitutions. If he were to do otherwise, he would would violate his oath of office which includes a committment to obey the Maryland Constitution and the U.S. Constitution.

Some have suggested that the AG has circumvented the authority of the Legislature. In reality, he issued opinion in his capacity as the Chief Legal Officer of Maryland, in response to the request of a Senator. The ruling is based on many legal precedents that have established the principle that couples who have been legally married out-of-state are considered married in Maryland.

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Movement to impeach the Attorney General:

There is a provision in the Maryland State Constitution to impeach the Attorney General. Article 5, Section 1 [4] states that the Attorney General:

"... shall be subject to removal for incompetency, willful neglect of duty or misdemeanor in office, on conviction in a Court of Law."

Article III, Sec 26 states that impeachment would require a 2/3rds vote in the Senate and a simple majority in the House:

"The House of Delegates shall have the sole power of impeachment in all cases; but a majority of all the members elected must concur in the impeachment. All impeachments shall be tried by the Senate, and when sitting for that purpose, the Senators shall be on oath, or affirmation, to do justice according to the law and evidence; but no person shall be convicted without the concurrence of two-thirds of all the Senators elected." 5

Delegate Don Dwyer led the impeachment drive. He expected that charges would likely be filed against the Attorney General because of his decision, perhaps by the end of 2010-MAR. Dwyer said:

"What the attorney general has done is end-run around the court and around the legislative process. I plan on holding him accountable. I do plan to bring charges of impeachment against him on the Maryland House floor." 6

Len Lazarick of the Maryland Reporter wrote:

"Dwyer and supporters think the [Attorney General's] opinion is wrong, and a lot of Marylanders don’t like it. But he has not made a case for how the opinion is illegal, criminal, negligent, unconstitutional or even something the attorney general is not allowed to do. Though it seems to Dwyer to undermine current Maryland law, Gansler and Dwyer simply interpret the law differently."7

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2010-MAR-08: House bill to outlaw recognition of out-of-state SSMs:

House Minority Leader, Delegate Anthony J. O'Donnell (R), introduced Bill 1532 which has been referred to the Judiciary Committee. It would prohibit recognition of same-sex marriages legally peformed in other jurisdictions, thus over-ruling the Attorney General's earlier ruling. 8 Loving, committed same-sex couples who marry in another state would be deprived of hundreds of rights, privileges and protections for themselves and their children. The bill is registered as an emergency measure "... for the immediate preservation of the public health or safety." If passed, it would be retroactive as of 2010-FEB-22.

It is not clear whether the sponsor of the bill regards recognition of out-of-state SSMs to be a public health issue, or a public safety issue, or perhaps both.

  • It is not likely to be a public health issue. A case can be made that marriage reduces the degree of promiscuity in a state, and thus the rate of transmission of STDs.

  • It is difficult to see how a loving, committed people committing themselves to mutual support for the rest of their lives represents a public safety issue. Perhaps the sponsors are expecting rioting in the streets?

The text of the House "emergency" bill 1532 is available online. 9 It was referred to the House Judiciary Committee on MAR-15, but no further action was taken over the next nine months; it appears to be dead. 10

The companion Senate "emergency" bill is 1120 was referred to the Senate Rules committee. On 2010-MAR-18, it was referred to the Judicial Proceedings Committee. Nine months later, during 2010-DEC, no action had been taken; it appears to be dead. 11

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Maryland to recognize out-of-state gay marriages," CitizenLink, 2010-FEB-26, at: http://www.citizenlink.org/
  2. Douglas Gansler, "Family Law: Marriage...," Page 5 & 6, 2010-FEB-23, at: http://www.oag.state.md.us/ This is a PDF file.
  3. Ibid, Page 11 & 12.
  4. Ibid, Page 13.
  5. "Devvy," "MD Attoprney General claims ... "I cannot be impeached." Rense.com, 2010-MAR-09, at: http://www.rense.com/
  6. Nima Reza, "Maryland AG May Face Charges after Sanctioning Out-of-State Gay Marriages," CitizenLink, 2010-MAR-02, at: http://www.citizenlink.org/
  7. Len Lazarick, "Analysis: Is Maryland’s attorney general an unimpeachable source?," Maryland Reporter, 2010-MAR-29, at: http://www.marylandreporter.com/
  8. House Bill 1532," Maryland state government, 2010-MAR-08, at: http://mlis.state.md.us/
  9. Text of House Bill 1532 is at: http://mlis.state.md.us This is a PDF file.
  10. "House bill 1532," Maryland House, at: http://mlis.state.md.us/
  11. "Senate bill 1120," Maryland Senate, at: http://mlis.state.md.us/

Site navigation: Home > Homosexuality > Same-sex marriage > Menu > MD > here

Copyright © 2007 to 2010 by Ontario Consultants on Religious Tolerance
Originally written: 2007-MAR-03
Latest update: 2010-DEC-10
Author: B.A. Robinson

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