Gansler lets personal view get in way of duty
Last year, Maryland Attorney General Doug Gansler surprised the political establishment by becoming the first state official to back same-sex marriage. Hey, it's a free country and Gansler has every right to go where his conscience and political instincts take him.
But last week Gansler crossed the line by letting his personal views override his duty as the state's chief legal adviser. On Feb. 24, Gansler issued his attorney general's opinion saying same-sex marriage, while illegal in Maryland, should nevertheless be permitted here if performed in one of the nation's five states (and the District of Columbia) where such marriages are allowed.
In order to reach his conclusion Gansler had to turn Maryland law, legal precedent and logic upside down. Instead of following state law, Gansler put himself above it.
In 1973, the Maryland legislature passed a ban on same-sex marriages. The statute's language doesn't leave much to the imagination: "Only a marriage between a man and a woman is valid in this state." Is that clear enough for you?
But Gansler argues that the statute does not expressly ban recognition of same-sex marriages performed elsewhere. True, Doug, but in 1973 that wasn't an issue because no states permitted such marriages. Do you really think Maryland's 1973 statute intended to recognize out-of-state same-sex marriages while banning them in-state?
Well, Gansler continues, both the Constitution and common law require states to honor contracts and agreements (including marriages) made in other states. Otherwise, we would have legal chaos.
Yes, that's true with one big exception "The State of Maryland may not be compelled to recognize a marriage performed in another state if that foreign marriage is repugnant to Maryland's public policy," noted Maryland's highest court in 2007. This is called the "public policy exception." In order to get around this public policy exception, Gansler disregards the preponderance of Maryland law and hangs his hat on an obscure 1916 court case.
Decide for yourself if same-sex marriages are repugnant to Maryland's public policy: Maryland state law bans same-sex marriages; then-Attorney General Joe Curran issued an opinion in 2004 that out-of-state, same-sex marriages should not be recognized here; Maryland's highest court upheld Maryland's same-sex marriage ban in 2007; attempts in the Maryland legislature to legalize same-sex marriages have gone nowhere, and every Maryland public opinion poll shows majority opposition to same-sex marriage.
Also, in states with same-sex bans similar to Maryland's (and even in one state without such a ban), the courts and attorneys general have refused to recognize out-of-state same sex marriages, federal law bans same-sex marriage, and in every state where voters were allowed to decide even in "anything goes" California same-sex marriage lost. The homosexual lobby is batting 0 for 31!
But none of that impresses Gansler. Instead, he says, Maryland must recognize outside same-sex marriages because, in 1916, Maryland's courts recognized a Rhode Island niece/uncle marriage that would have been illegal if performed in Maryland (Fensterwald v. Burk).
But Fensterwald is a tricky case. Niece/uncle marriages were illegal in Rhode Island, too, but permitted there in this case under a religious exemption because such marriages are permissible under Jewish Law. Using similar reasoning, some U.S. courts have upheld foreign polygamous marriages, too.
Only a legal contortionist could make Fensterwald into Maryland's controlling law while ignoring state statute, prior attorney general's opinions and Maryland court rulings. Yet, Gansler has decided to make the exception into the rule so he can reach the political conclusion he seeks. This is what gives lawyers and politicians a bad name.
Think about it, under the Gansler loophole recognizing out-of-state, same-sex marriages Maryland's same-sex marriage ban becomes meaningless. Every homosexual couple living in Maryland will simply drive to D.C., get married and return to Maryland where, according to Gansler, their otherwise illegal union is now legal.
It's like parents telling their teenage daughter that she can't wear her risqué outfit around the house. So she goes to the neighbor's, puts on the outfit and returns home saying, "You never said that I couldn't put it on next door and then wear it around the house." That's the "logic" of the Gansler loophole.
Even though Gansler's opinion hasn't been tested in court, Gov. Martin O'Malley is directing his agencies to quickly comply. This is the same governor who is well into his fourth year blocking revision of Maryland's lethal injection protocols because he opposes Maryland's death-penalty statute. Maryland's elected officials only enforce the laws they feel like enforcing.
As for Gansler, in Maryland there are three branches of government, and the Attorney General's Office isn't one of them. If Doug Gansler wants to repeal Maryland's ban on same-sex marriages, he should look to the General Assembly, not an attorney general's opinion.
Blair Lee is CEO of the Lee Development Group in Silver Spring and a regular commentator for WBAL radio. His column appears Fridays in The Gazette. His e-mail address is email@example.com.