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Maryland legal opinion supports out-of-state same-sex marriages

BALTIMORE – Maryland should recognize same-sex marriages performed in other states, according to a legal opinion filed today by Maryland’s attorney general.

A legal opinion is a guide for judges and state agencies, but does not carry the weight of the law.

In May, a state senator asked for a legal opinion on whether same-sex marriages could be recognized in Maryland.

Attorney General Doug Gansler answered that question in his 40-page legal opinion.

“The answer to that question is clearly ‘yes,’” Gansler wrote in the document. He added that “this opinion is a prediction, not a prescription” on whether the courts would agree with his legal opinion.

Same-sex couples in Maryland still cannot be married in the state.

"This opinion should bring some peace of mind to married same-sex couples and their families in Maryland as this state aligns itself with New York, in making clear that there is no gay exception to long-standing marriage recognition law," said Susan Sommer, director of constitutional litigation at Lambda Legal.

"The Big Apple didn't topple after New York recognized out-of-state marriages of same-sex couples - far from it - and many families in Maryland just got more stability. Under well-settled law, a marriage valid where entered is valid in Maryland, even if the couple could not have married in Maryland.

"Unfortunately, this important step is only part of the story. Same-sex couples who reside in either New York or Maryland still have to leave home to get married, and they are as vulnerable as ever to discrimination in other states and by the federal government. These half-steps are helpful, but not enough – we need marriage equality for same-sex couples," Sommer said.

The Human Rights Campaign, the nation’s largest LGBT civil-rights organization, also lauded the legal opinion.

“Although today’s long-awaited opinion by Maryland Attorney General Douglas Gansler won’t erase many of the inequalities same-sex couples in Maryland face, it is certainly a positive development on the road to marriage equality,” said Joe Solmonese, HRC president.

“Today’s opinion by the Maryland Attorney General only continues to further highlight the burdensome patchwork of unequal laws same-sex couples face across the country. With every step that is taken in the progress towards full equality, it becomes more and more obvious that separate is not equal and marriage by any other name is not marriage.”

Maryland may join New York in providing marriage rights to same-sex couples married out of jurisdiction while not issuing marriage licenses to same-sex couples within the state. The attorney general’s opinion explains that the state may recognize out of jurisdiction marriages either through legislation enacted by the Maryland General Assembly, through a decision of the Court of Appeals, or by state agencies.

With Washington, D.C., poised to begin accepting marriage applications from same-sex couples on March 3, when the congressional review period ends, recognition of same-sex marriages will have a significant practical meaning for many same-sex couples in Maryland.

The Freedom to Marry organization also weighed in.

"As this important Attorney General's Opinion makes clear, Maryland will continue to follow the tradition and common-sense practice of honoring out-of-state marriages, without a ‘gay exception’. As same-sex couples marry next door in the District of Columbia and across America, Maryland will treat those families with respect, giving Marylanders a chance to see neighbor couples legally married, with families helped and no one hurt," said Evan Wolfson, executive director of Freedom to Marry.

On same-sex marriage rights
At this time, five states recognize marriage for same-sex couples under state law: Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire. Five states—California, New Jersey, Oregon, Washington, and Nevada—plus Washington, D.C. provide same-sex couples with access to the state level benefits and responsibilities of marriage, through either civil unions or domestic partnerships.

Hawaii, Colorado, Maine, Maryland and Wisconsin provide same-sex couples with limited rights and benefits. New York, and Washington, D.C., recognize marriages of same-sex couples validly entered into outside of the jurisdiction. California recognized marriage by same-sex couples between June and November of 2008, before voters approved Proposition 8, which purports to amend the state constitution to prohibit marriage equality. Couples married during that window remain married under California law, but all other same-sex couples can only receive a domestic partnership within the state. The state will recognize out of state same-sex marriages that occurred before Nov. 5, 2008. as marriages and those that occurred on or after November 5, 2008 as domestic partnerships. The Prop. 8 vote has been challenged in federal court; a decision is not expected any time soon.

About Lambda Legal
Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

About HRC
The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.

About Freedom to Marry
Freedom to Marry is one of the leading campaigns working to win marriage nationwide. It partners with a diverse range of organizations and supporters across the country to end the exclusion of same-sex couples from the responsibilities, protections, and commitment of marriage.