MARRIAGE DIGEST: Maryland A.G.'s opinion on out-of-state 'gay marriages' criticized
Posted on Feb 26, 2010 | by Michael Foust
ANNAPOLIS, Md. (BP)--In a decision that likely will lead to a lawsuit, Maryland Attorney General Douglas F. Gansler issued a 53-page opinion Wednesday saying the state could recognize out-of-state "gay marriages" despite a state law that explicitly says marriage is only between a man and a woman.
Gansler's opinion does not mean the state will begin issuing marriage licenses to same-sex couples; the state's highest court, the Court of Appeals, in 2005 upheld current law and refused to legalize such relationships. But Gansler's opinion -- unless challenged -- does mean the state may begin recognizing "gay marriages" from the five states that have legalized it, such as Massachusetts.
His opinion is not a complete surprise to conservatives. In 2008 he publicly backed a bill that would have legalized "gay marriage."
"Maryland courts observe 'the general rule that a marriage valid where contracted or solemnized is valid everywhere, unless it is contrary to the public policy,'" Gansler's opinion read, adding that Maryland has no law stating "gay marriage" is contrary to the state's public policy. "... [T]here 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."
For example, Gansler, a Democrat, said Maryland has in the past recognized a marriage between an uncle and a niece, even though he said such a marriage would not be allowed to be performed in-state.
Conservatives quickly criticized Gansler's opinion and pointed not only to the court's 2005 opinion but also to Maryland law, which states: "Only a marriage between a man and a woman is valid in this State."
David Lee, executive director of the Baptist Convention of Maryland/Delaware, said he was "deeply saddened" by Gansler's opinion.
"It is my opinion that this decision goes beyond just legal issues and stands in direct opposition to God's Word," Lee told Baptist Press. "While we seek to extend God's love to every Maryland resident, Maryland/Delaware Baptists must stand on the biblical principles of family. I am grateful for our legislators in Annapolis who are standing strong for the traditional and biblical definition of marriage currently stated in Maryland law."
Republican Del. Donald H. Dwyer Jr. also criticized Gansler's opinion.
"It is not up to the attorney general, and that's the reason I will be bringing charges of impeachment," Dwyer said, according to The Washington Post. "The opinion doesn't change the law. It in effect usurps law."
The 2005 ruling by the Maryland Court of Appeals came via a 4-3 decision and was widely applauded by conservatives because it tied the need for traditional marriage laws to procreation.
"[V]irtually every Supreme Court case recognizing as fundamental the right to marry indicates as the basis for the conclusion the institution's inextricable link to procreation, which necessarily and biologically involves participation (in ways either intimate or remote) by a man and a woman," the majority opinion read.
Two of the four justices who signed that opinion have retired.
AUSTRALIA SAYS NO TO 'GAY MARRIAGE' -- Australia's Senate easily defeated a bill Thursday that would have legalized "gay marriage" by a vote of 45-5, The Age newspaper reported.
Worldwide, seven countries recognize "gay marriage": the Netherlands, Belgium, Spain, Canada, South Africa, Norway and Sweden.
Michael Foust is an assistant editor of Baptist Press. With reporting by Erin Roach, staff writer for Baptist Press.