Maryland followup

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.

One Response to “Maryland followup”

  1. Nathaniel Smith

    I believe the logic is, one of an AG’s jobs is to give legal advice to other parts of the state government, so that they can avoid breaking the law in the first place (as compared to the courts, who get to decide how to clean up after the law has potentially been broken). Sort of like a company asking its in-house counsel for legal advice before they do something that might be questionable.

    So, when the AG says that as far as he can tell, the courts would decide in favor of recognizing such marriages — which is the same as saying that he believes that the current law in MD is that such marriages are recognized — then this has the practical effect that all the other state agencies must start acting *as if* that’s what the law says. And since they’re the ones who actually recognize marriages and provide benefits and etc. etc., this has the effect of making that *be* the law, for many practical purposes.

    Other parties — e.g. companies in the state when deciding on how to offer benefits, particular hospitals making rules on care decisions, etc. — may or may not decide to respect his opinion, depending on what their own lawyers say. Those lawyers will probably take the AG’s opinion very seriously, but not as seriously as they’d take a court ruling.

    And of course, if and when an actual court rules on this, that’ll override whatever guesses people have made until then.



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