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By Annie Linskey |

February 25, 2010

Attorney General Douglas F. Gansler released a long-awaited opinion Wednesday saying that Maryland should recognize same-sex marriages performed in other states, drawing cheers from gay-rights supporters and igniting immediate debate on a highly contentious issue in an election year.

With the ruling, state agencies will be required to extend all benefits that heterosexual couples enjoy to married gay couples. These could include health insurance expansion, spousal legal immunities, property rights, the ability to file wrongful-death suits and perhaps some tax benefits, experts said yesterday.

“There is no law in Maryland that says we don’t recognize out-of-state marriages between same-sex couples,” Gansler said. “Based on the law and the state of the law in Maryland and the Constitution of the United States, this is what the law is.”

The ruling does not enable same-sex couples to wed here, as neighboring Washington recently decided to allow starting next week. Five states and a handful of foreign countries issue marriage certificates to gay couples. In Maryland, gay couples can register as domestic partners, which affords them some, but not all, of the rights that come with marriage.

Gansler’s ruling does not carry the weight of law but is meant to guide judges and state agencies.

“What we say in this opinion is a prediction, not a prescription” as to how a court would interpret the law, Gansler wrote. “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.”

Gansler said his opinion doesn’t affect private companies, in that, for example, they would not now be required to extend medical benefits to spouses of gay employees who were married elsewhere.

The opinion was met enthusiastically nonetheless by gay-rights advocates, who hastily organized a rally in Baltimore and a news conference in Annapolis. It likely will represent the most significant progress on their agenda, as legislative initiatives on marriage equality are unlikely to pass during an election year.

But detractors just as quickly raised their voices. The Maryland Catholic Conference, which is chaired by Archbishop Edwin F. O’Brien of Baltimore, issued a joint statement Wednesday evening, saying the opinion “chips away at our society’s foundational institution.” Some lawmakers vowed to overturn the attorney general’s opinion by passing a law barring the recognition of same sex-marriages performed elsewhere, though such efforts have faltered this session. One state delegate is threatening to launch impeachment proceedings against Gansler.

Gov. Martin O’Malley said Wednesday that the attorney general took “a lot of time with it and wanted to be thorough. … I think he gave us his best advice.” Later, his office issued a statement saying the governor is confident that Gansler “will provide all necessary advice to state agencies on how to comply with the law.” He added, “I expect all state agencies to work with the attorney general’s office to ensure compliance with the law.”

Henry Fawell, a spokesman for Robert L. Ehrlich Jr., who is considering a challenge to O’Malley, said the former governor “continues to believe very firmly that marriage is a union between a man and a woman” and is reviewing the opinion.

The House Judiciary Committee rejected a bill this month that would have pre-empted Gansler’s opinion by barring the recognition of same-sex marriages. Del. Emmett C. Burns Jr., the Baltimore County Democrat who introduced the measure, said he is “not surprised at all” by what he called a political ruling.

“The attorney general has made a big mistake,” Burns said. “I don’t understand that kind of rationale coming from a legal mind. All it does is muddle. It doesn’t clarify anything.”

Burns said Gansler, whom he said might have his eye on a higher office, “is simply trying to develop a political base.”

Sen. Norman R. Stone Jr., a Baltimore County Democrat, is pursuing a bill similar to Burns’ failed effort. It will be heard next week.

Meanwhile, the House Judiciary Committee is considering a separate bill that would allow same-sex marriages to be performed in Maryland. Burns said that if the measure comes to the floor, it would cause “pandemonium in an election year.”

Advocates say that is unlikely. Such a measure would require the support of House Speaker Michael E. Busch, a Democrat, who reiterated Wednesday his stance that same-sex couples should be allowed to form civil unions – an arrangement short of marriage.

Senate President Thomas V. Mike Miller, a Democrat, said he believes that marriages should be between a man and a woman but that as a lawyer, he understands Gansler’s opinion.

“I believe the state must give full faith and credit to the laws of our sister states,” Miller said.

Maryland law specifies that marriage should be defined as a union between a man and a woman, but Gansler found that the law does not preclude recognition of out-of-state unions, noting that there are other types of marriages barred here that state law recognizes when performed elsewhere. Maryland, for example, does not allow common-law marriages but honors them when couples wed under that arrangement move here, he said. Also, the state does not allow an uncle and a niece to marry, but will accept such a union if performed elsewhere.

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