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Md. AG: Gay marriage must be recognized

ANNAPOLIS, Md. (AP) -- State agencies in Maryland must now recognize out-of-state gay marriages until the Legislature or courts decide otherwise, Maryland's attorney general said Wednesday after issuing a long-awaited legal opinion.

Attorney General Doug Gansler told reporters he believes his opinion will be addressed "in the near future by litigants."

"This will be ultimately resolved in the courts," Gansler told reporters.

Gansler's opinion concluded that the state's highest court likely would rule that legal gay marriages in other states are valid in Maryland, but he noted the matter "is not free from all doubt."

Maryland law defines marriage as between a man and woman, but Gansler wrote that the state generally acknowledges couples married elsewhere. Maryland is one of six states that does not specifically address the validity of same-sex marriages from other states.

"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, a Democrat, wrote in a 45-page opinion.

While the opinion doesn't change the law, it represents an interpretation that can guide a state agency. The attorney general's office would defend a state agency in court for recognizing a same-sex marriage from another state.

As expected, same-sex marriage supporters cheered the opinion, while opponents denounced it.

Morgan Meneses-Sheets, executive director of Equality Maryland, described it as a strong step forward for the rights of gay couples.

"Certainly there's still work to be done, but this in fact affirms that Maryland law has standing to honor these marriages, and that is a big move forward," Meneses-Sheets said.

Delegate Donald Dwyer, an Anne Arundel County Republican who adamantly opposes recognition of same-sex marriages, said Gansler should be impeached for issuing the opinion, which he said "circumvents and usurps the authority of the Maryland General Assembly."

"Attorney General Gansler has violated the public trust by his actions and he will be held accountable," Dwyer said in a statement.

Recent legislation has failed that would have explicitly stated in law that same-sex marriages valid in other states would not be recognized in Maryland.

Measures to allow gay marriages also have failed, but Maryland lawmakers have extended protections to same-sex couples.

For example, domestic partners who co-own homes are exempt from the state inheritance tax. Same-sex partners are permitted to make medical and burial decisions for each other and are eligible for tax benefits that married people get when transferring property.

"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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