Md. AG: Gay marriage must be recognized

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“In light of Maryland’s developing public policy concerning intimate same-sex relationships, the court would not readily invoke the public policy exception to the usual rule of recognition,” Gansler wrote.

Gansler was responding to state Sen. Richard Madaleno, a Democrat who is openly gay who asked for the opinion in May.

“You have asked whether those marriages may be recognized under the state law,” Gansler wrote, with the word “may” in italics. “The answer to that question is clearly ‘yes.’”

Madaleno said it’s not too late to approve legislation this year to recognize same-sex marriage in Maryland.

“We still have a lot of work to do this session to talk about this issue and I am sure we will,” Madaleno said shortly after the opinion became public.

There are no formal prerequisites to recognize an out-of-state marriage, Gansler noted.

Gansler noted there is an exception to the rule “if the particular marriage is contrary to a strong state public policy,” and he wrote that a law limiting 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,” Gansler wrote.

As an example, Gansler pointed out that Maryland has recognized common law marriages from other states, even though there is no common law marriage in Maryland. He also cites an example when the state recognized a Rhode Island marriage between an uncle and niece, while Maryland law prohibits marriage between an uncle and niece.

“Indeed, the public policy exception is a very limited one that the court has seldom invoked,” Gansler wrote.

Gay marriages have been legalized in New Hampshire, Massachusetts, Iowa, Connecticut and Vermont. In December, the District of Columbia passed a bill legalizing same-sex marriage. The measure likely won’t go into effect until March.

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