Democrats fear voter ire over AG's gay-marriage opinion
For Blue Dogs, it could be tough,' legislator says
ANNAPOLIS A long-awaited attorney general's opinion on same-sex marriage thrust the polarizing issue into an election year spotlight that had Democrats cringing as they braced for an expected onslaught of Republican campaign rhetoric.
"In my opinion, it couldn't have been worse timing," Del. Galen R. Clagett said of the opinion, released Wednesday, in which Attorney General Douglas F. Gansler (D) found that Maryland courts could recognize same-sex marriages performed out-of-state. "You know they say in politics, timing is everything."
Clagett said he does not expect issues raised by Gansler to come up for a floor vote in the House of Delegates, but that the opinion could complicate re-election chances for Democrats in more conservative parts of the state.
"It'll be a campaign issue, I think. And for Blue Dog Democrats, it could be tough," said Clagett (D-Dist. 3A) of Frederick.
"Those are issues we'd rather not have to deal with in an election year," said Sen. John C. Astle (D-Dist. 30) of Annapolis. "We may not have a choice. If it comes to the floor, then we'll obviously have to face it."
While coinciding with the 90-day legislative session, the 53-page opinion's release was not specifically timed to elicit a response from the General Assembly, Gansler said Wednesday.
"We don't play politics with opinions because obviously you get in trouble, and you don't do the right thing," he said.
Because of the depth of analysis required, formal opinions often take months, sometimes years, to issue, he said. Gansler received a request for the opinion in May from Sen. Richard S. Madaleno Jr. (D-Dist. 18) of Kensington, who is openly gay and is the lead sponsor on a same-sex marriage bill in the Senate.
By Thursday, many lawmakers had not yet read the opinion and were hesitant to comment about Gansler's legal argument, much as some are hesitant to take a position on legalizing same-sex marriage unless forced to cast a vote.
Under the opinion, "state agencies in Maryland will recognize out-of-state gay marriages as of right now," Gansler said.
That includes all the rights that married heterosexual state employees are afforded "unless a court or the legislature decides differently," he said.
The much-anticipated opinion says nothing about allowing same sex couples to wed in Maryland, but it provides an interpretation of the law and a "projection as to how our Court of Appeals would and will resolve this issue when confronted with it," Gansler said.
"What an Attorney General opinion does is it becomes the law of the land unless or until a legislature or a court overturns that decision," he said.
Several states and the District of Columbia have passed measures to allow same-sex marriage in recent years, and Gansler said he expects the opinion will lead to court cases challenging the Maryland law.
Earlier this month, the House Judiciary Committee gave an unfavorable report to a bill to ban Maryland from performing same-sex marriages or recognizing those performed out-of-state.
The bill would allow same-sex marriages to be performed in Maryland is scheduled to be heard in House and Senate committees next week.
Gay rights advocates did not expect big gains for the bill this year. Equality Maryland Executive Director Morgan Meneses-Sheets said her organization hoped to use 2010 as "a building year."
But some lawmakers said that Gansler's opinion has the potential to reignite debate over the controversial issue, the likes of which are usually left alone during an election year session.
While Del. Benjamin S. Barnes (D-Dist. 21) of College Park, the lead sponsor of the bill in House, said there are enough votes to move the legislation out of committee, legislative leaders predicted that the legal opinion is likely to see a challenge in the courts before it will see a General Assembly vote.
"My belief is the current statute is going to stand, which is marriage between a man and a woman," said House Speaker Michael E. Busch (D-Dist. 30) of Annapolis. "I don't see where there are the votes in both houses to change that."
The issue of recognizing same-sex marriages performed elsewhere is likely to be dealt with through the courts, though not necessarily quickly, said Senate President Thomas V. Mike Miller Jr. (D-Dist. 27) of Chesapeake Beach.
"The far right will look to find the right case, probably in Harford County or somewhere on the Eastern Shore," Miller said Thursday. "They'll forum-shop and try to get a lower court decision to say what they want them to say, and then it'll be ultimately decided by the Court of Appeals."
Miller said that he does not expect the opinion to elevate same-sex marriage as a topic of debate for the current legislative session or to change re-election prospects.
But Democrats in more conservative districts expect their stance on same-sex marriage to be scrutinized by voters.
"My district is not exactly a bastion of liberalism anymore," Astle said. The voter registration ratio was four Democrats to every Republican when Astle was first elected in 1983, he said.
"It's almost even now," he said.
"So I've got to be a moderate, sometimes have to walk a little on the right side of the center line," he said.
Clagett said he expects Republicans to try to capitalize on the marriage issue by painting Democrats "as being too liberal" after a Democratic attorney general issued an opinion that some feel "flies in the face of the law that the state of Maryland has."
Del. Donald H. Dwyer Jr. said Wednesday that he will seek to impeach Gansler for issuing an opinion that "usurps the law."
Each year, Dwyer (R-Dist. 31) of Glen Burnie introduces a bill calling for a statewide voter referendum on a constitutional amendment to ban same-sex marriage.
Clagett said he fears that the opinion adds to a triumvirate of tools that Republicans could use to bludgeon Democrats.
Other potential prongs of the Republican attack could include the budget and a bill sponsored by Del. Samuel I. "Sandy" Rosenberg (D-Dist. 41) of Baltimore that would increase reporting requirements for gun shops and prohibit handgun ownership for anyone with two drunken-driving convictions in a five-year period.
"You know, it's God, gays and guns, and sometimes taxes," Clagett said. "They're going to hit us with all that stuff and try to paint us as wild and crazy liberals who spend money like drunken sailors."