Maryland A.G.’s opinion on out-of-state same-sex marriages

There've been a lot of news articles about Maryland Attorney General Douglas Ganser's recent opinion statement about whether Maryland can or will recognize same-sex marriages performed in other states.

I've now finally read the opinion (55-page PDF; I skimmed parts of it), and I think a lot of people have gotten the wrong idea about what it says.

In particular, the A.G.'s opinion does not determine the outcome of court cases. As the opinion itself states:

[W]hat we say in this opinion is a prediction, not a prescription, as to the how the Court would approach this issue under current law.

The A.G. was asked a couple of questions regarding recognizing out-of-state same-sex marriages, and this opinion is his response. At such point as the question comes up in a Maryland court, the court may well consider this opinion, but the opinion isn't binding on anyone.

The gist of the opinion is that, although the answer is uncertain, the A.G. thinks that the Maryland courts are likely at this point to rule in favor of recognizing out-of-state same-sex marriages.

The whole opinion is worth reading, or at least skimming, if you're interested in this stuff. There's not much there that well-informed readers don't already know, and it's a little repetitive in places, but it's a good and thorough survey, both of relevant Maryland law and of some relevant laws from other states.

Here's an excerpt from the overall summary from the end of the opinion:

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. [Maryland's] statute that limits marriage [...] 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. [...] 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.

Some further discussion and details:

I've written before about the popular misconception that the "full faith and credit" clause of the US Constitution requires states to recognize each others' marriages. The reason that's a misconception is that the public policy exception allows states to ignore each others' laws under some circumstances. As I've discussed before, the US Supreme Court said, in Pacific Employers Insurance v. Industrial Accident (1939), that "the full faith and credit clause does not require one state to substitute for its own statute [...] the conflicting statute of another state." This exception has been applied to marriage laws on several occasions in the past, notably to laws regarding marriage between people of two different races, and marriages between relatives. So there's lots of precedent for US states to decide not to recognize marriages performed in other states.

However, states generally do recognize each others' marriages (even though not required to do so by the US Constitution), under the principle of comity. (Which more or less means recognition of other jurisdictions' relevant laws.) And as noted above, A.G. Gansler pointed out that Maryland doesn't often invoke the public policy exception:

For example, [the Maryland Court of Appeals] has [...] recognized a Rhode Island marriage between an uncle and a niece [in 1916], although a statute prohibits marriage between an uncle and a niece in Maryland.

(And by the way, the A.G. incidentally gives me more fuel for my arguments against the "marriage has never changed in any way" crowd: in Maryland, from 1704 until 1777, there was a legal requirement that the person performing the wedding use the Church of England liturgy; from 1777 until 1963, Maryland nobly allowed officials of other religions to perform wedding ceremonies; and since 1963, there's been no requirement of a religious ceremony. If we really want to preserve traditional marriage, we ought to return to the days of requiring the liturgy of the good old Church of England!)

It turns out that the Maryland courts, going back to 1895, have generally said that marriages performed in other jurisdictions would be recognized unless they were "contrary to the law of nature as generally recognized in Christian countries" (give them a break, it was 1895); the usual examples of unnatural marriages are those involving polygamy or close incest (siblings or direct line-of-descent). So the question may largely boil down to whether same-sex marriages are considered to be like polygamous or incestuous marriages.

However, the A.G. notes, Maryland has increasingly recognized committed same-sex relationships in various ways over the past decade, whereas it hasn't done anything to legitimize polygamous or incestuous relationships.

Although he also notes:

Whether the Court will in fact recognize [...] an out-of-state marriage may also be affected by the facts and circumstances of the particular case before it, the particular incident of marriage at stake, and whether the particular issue is governed by or linked to federal law.

The opinion has a bunch of interesting stuff about the history and practice of comity. For example:

In the context of recognition of marriages, [comity] presupposes that there are significant variations among states in the requirements for a valid marriage; otherwise, there would be no need for such a principle. The utility of the principle is based on the practical observation that "it would be ridiculous to have people's marital status blink on and off like a strobe light" as they traveled about the country. Koppelman, [Interstate Recognition of Same-Sex Marriages and Civil Unions: A Handbook for Judges], 153 U. Penn. L. Rev. at 2155

Of course, for some people (such as trans people who are married, and people in same-sex marriages), their marital status does indeed blink on and off as they travel from state to state. But I agree that it's ridiculous.

One thing I didn't know: Maryland is unusual in that its law that specifies that marriage is between a man and a woman was enacted in 1973, long before any American jurisdiction recognized same-sex marriage. Turns out that:

[...] during the early 1970s, same-sex couples had attempted to obtain marriage licenses in several states, arguing that there was no express statutory prohibition against the issuance of a license to such a couple in those states.

Nifty! He lists four such attempts from 1971 to 1974; there may well have been others as well.

Anyway, he suggests that Maryland's law may have been a preemptive law to prevent such attempts.

So Maryland's law has been around a long time, and the state has had plenty of opportunities to change it to explicitly address the question of whether to recognize out-of-state same-sex marriages, as most such state laws do.

And indeed (according to the A.G.'s opinion), from 1993 through 2001, five bills were introduced in the state House to amend state law to explicitly prohibit recognizing same-sex marriages performed elsewhere. All of those bills failed in the House Judiciary Committee. (Interestingly, during that same period there were three bills introduced to amend state law to recognize same-sex marriage in Maryland (even if performed in Maryland), but those bills similarly never made it out of committee.) There've been further attempts since 2001, but none have succeeded. Several bills on various sides of these issues are currently pending in the MD state legislature.

So it's not clear that it's against Maryland's public policy to recognize these marriages; the MD legislature has declined to make a firm statement about it.

But what is clear, as the A.G. points out, is that things have changed a lot in recent years:

As the various opinions in the Deane case acknowledged and as these enactments demonstrate, the State's public policy toward committed intimate same-sex relationships has gradually shifted from one of condemnation to one of respect and, in certain ways, support.

The state even provides a domestic partnership system, though not a marriage-in-all-but-name one.

All of which lends support to the A.G.'s conclusion that the courts are unlikely to invoke the public policy exception when this issue comes before them.

But again, he doesn't know for sure; he's just saying what he thinks will happen.

One more interesting thing I didn't know:

Some commentators have suggested that, even if a court would otherwise be inclined to apply the public policy exception to such a marriage, there may be circumstances where the court would recognize the marriage for particular purposes.

On the one hand, that suggests to me that courts may be more willing to recognize same-sex marriages in limited circumstances, which I view as all to the good. On the other hand, sadly, that suggests to me that such instances of limited recognition won't be binding in the more general case, which may mean the battle will have to be re-fought over and over. But this paragraph is all my speculation, not from the opinion.

More generally: As usual, I'm not a lawyer; this whole entry is just my understanding of what A.G. Gansler wrote (plus some interpolations and commentary of my own). Apologies for any mistakes I may've made.

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