The other day, I said that Maryland Attorney General Gansler's opinion about recognition of out-of-state same-sex marriages was just a prediction of what the courts would say, not legally binding.
It looks like I wasn't quite right about that. Or I may have been mostly right about the opinion itself, but I wasn't aware of the context around it, which apparently gives it more weight than I thought it had.
My new impression—which may still be wrong—is that although his opinion does not have the force of law, it does direct state agencies to recognize out-of-state same-sex marriages starting almost immediately.
I'm surprised by that. It seems to me that the opinion clearly states that it's a prediction rather than a prescription.
But a Maryland Daily Record article says:
The immediate effect of Gansler's opinion is to put state agencies on notice that they should extend to these same-sex couples all the rights and benefits afforded to married heterosexual couples in the state, Gansler said after issuing his opinion.
[Maryland Governor Martin O'Malley said,] "I am confident that the attorney general and his office will provide all necessary advice to state agencies on how to comply with the law and I expect all state agencies to work with the attorney general's office to ensure compliance with the law."
Gansler's opinion lacks the force of law, but makes clear that the attorney general, the state's top legal adviser, believes the state is constitutionally required to recognize the same-sex marriages legally performed in other states.
(Fwiw, I don't believe the opinion says the state is constitutionally required to recognize those marriages. I think it says that, because of a long-established legal principle and a lack of opposing public policy, the courts probably won't decide not to recognize them—which is a very different and much weaker statement.)
In a different article (can't link directly to it; scroll down and click headline "Gansler's opinion spurs lawmakers to call for referendum"), a Republican state delegate is quoted as saying: "Without changing Maryland's law, the attorney general's opinion has had the effect of law." And an ACLU attorney is quoted as saying: "[W]e have every expectation that the various state agencies will act in accordance with the A.G.'s view of the law."
(Side note to the Daily Record's web staff: People, don't put curved apostrophes in URLs!)
And a Corridor Inc article says: "Beginning Wednesday, Maryland state agencies will legally recognize same-sex marriages performed in other states."
So it looks like my understanding that this opinion would have no immediate effect was wrong. I'm sorry to have misled y'all.