Maryland Attorney General Opinion 97 OAG 072

72 [97 Op. Att’y

CLERKS OF COURT

MARRIAGE LICENSES – ISSUANCE OF MARRIAGE LICENSES TO

SAME-SEX COUPLES AFTER APPROVAL OF THE CIVIL

MARRIAGE PROTECTION ACT

November 29, 2012

David R. Durfee, Jr.

Executive Director

Department of Legal Affairs

Administrative Office of the Courts

You have asked for our opinion on a number of questions

relating to the implementation of Chapter 2 of the Maryland Laws

of 2012, which amended § 2-201 of the Family Law Article

(“FL”) so as to remove the statutory prohibition of same-sex

marriages. Chapter 2 was recently approved by the voters on a

referendum and will, therefore, become effective on January 1,

2013—the effective date provided for in the legislation itself. In

anticipation of Chapter 2 becoming effective, the clerks of the

various circuit courts in Maryland have received and made

numerous inquiries about implementation of Chapter 2. You have

collected these inquiries and have synthesized them into the

following questions, which we have slightly re-phrased:

1. On what date can a clerk begin taking

applications for marriage licenses for same-sex

marriages?

2. On what date can a clerk begin issuing

marriage licenses for same-sex marriages?

3. On what date can a clerk begin delivering

issued licenses for same-sex marriages to the

parties?

4. If licenses may be issued earlier than January

1, 2013, how do the provisions for the waiting

period in FL § 2-405(d)1 apply to those

licenses? For example, would a license issued

on December 28, 2012, or earlier take effect at

6:00 a.m. on January 1, 2013, or at 6:00 a.m.

on January 3, 2013 (i.e., 6:00 a.m. on the

1

Unless otherwise noted, all statutory references refer to the

current version of the Family Law Article reflected in the 2006

Replacement Volume of the Annotated Code of Maryland and the 2012

Supplement.

Gen. 72] 73

second calendar day after same-sex marriage

became legal)?

5. If a same-sex couple has already been married

in a state where it was legal prior to January 1,

2013, and that marriage remains intact, can

they now get a license and marry in Maryland?

6. To the extent the Attorney General has

previously opined or advised that a couple

already married cannot get a license, would

that conclusion still apply in this situation,

where a couple could not previously be

married in Maryland, and does Maryland’s

recognition of out-of-state same-sex marriage

affect this determination?

7. If a couple entered into a “civil union” in a

state allowing that contract, and the civil union

remains intact, is their marital status Married,

Single, or some other status, and can they

obtain a license to marry in Maryland?

8. Should clerks use two sets of vows, one for

traditional unions and one for same-sex unions,

or should they only use the new vows

composed for same-sex unions? In other

words, may clerks’ offices offer each couple

the opportunity to select from a standard and

alternative text (using “spouse” as standard and

“husband and wife” as alternative)?

9. If the clerks may lawfully offer each couple the

opportunity to select from a standard and

alternative text for their marriage vows (using

“spouse” as standard language, and offering

“husband and wife” as an alternative), should

this option be available to both opposite and

same-sex couples?

In light of the volume of inquiries from the clerks and your

request that we provide guidance early enough to allow the clerks

and the public alike to prepare for Chapter 2 becoming effective,

we have addressed your questions on an expedited basis.

74 [97 Op. Att’y

I

Background

Same-Sex Marriages Under Maryland Law Before

and After Enactment of Chapter 2

We recently had occasion to describe the history of marriage

in Maryland and the treatment of same-sex marriages under

Maryland law, see 95 Opinions of the Attorney General 3 (2010),

and do not repeat that description here. For present purposes it

suffices to remember that, prior to the enactment of Chapter 2,

Maryland law specified that a marriage was between one man and

one woman. 57 Opinions of the Attorney General 71 (1972). The

General Assembly codified that understanding in 1973 with the

enactment of § 2-201 of the Family Law Article, which provided

that “[o]nly a marriage between a man and a woman is valid in

this State.” 1973 Md. Laws, ch. 213, then codified at Md. Ann.

Code art. 62, §1 (1974). The constitutionality of § 2-201 was

upheld by the Court of Appeals in Conaway v. Deane, 401 Md.

219 (2007).

In 2012, the General Assembly enacted the Civil Marriage

Protection Act, which, in relevant part, amends § 2-201 to provide

that “[o]nly a marriage between two individuals who are not

otherwise prohibited from marrying is valid in this State.” 2012

Md. Laws, ch. 2, § 1, to be codified at FL § 2-201(b). The Act

also made certain conforming changes to the consanguinity

provisions of the Family Law to make them gender-neutral and,

thus, applicable to spouses of either sex. Id., to be codified at FL

§ 202(b), (c). The clear effect and intent of the 2012 legislation

was to authorize same-sex marriages under Maryland law.

The legislation that ultimately became Chapter 2 (House Bill

438) was passed by both houses of the General Assembly and was

enacted into law by the Governor’s signature on March 1, 2012.

A successful petition drive placed Chapter 2 on the ballot as a

referendum measure in the 2012 election, which suspended the

law pending the voters’ approval or rejection at the polls. See

Md. Const., Art. XVI, § 2; McGinnis v. Board of Supervisors of

Elections, 244 Md. 65, 69 (1966). The voters ultimately approved

the legislation by a reported margin of 52% to 48%. See

Maryland State Board of Elections, “Unofficial 2012 Presidential

General Election Results for All State Questions” (available at

http://elections.state.md.us/elections/2012/results/general/gen_qre

sults_2012_4_00_1.html (last visited Nov. 15, 2012)). Assuming

the Governor proclaims that Chapter 2 was approved by the

voters on November 6, the suspension of the law will expire thirty

days thereafter, or on December 6, 2012. See Art. XVI, § 2; see

also Art. XVI, §5(b) (requiring the Governor to “proclaim the

results of the election” and declare the measure to have been

Gen. 72] 75

“adopted by the people of Maryland as a part of the laws of the

State, to take effect thirty days after such election”).

Although the period of suspension is expected to end on

December 6, 2012, the Act itself provides that it “shall take effect

January 1, 2013,” 2012 Md. Laws, ch. 2, § 7, unless, at that time,

litigation were pending “as to the validity or sufficiency of the

signatures” required to petition the bill to referendum. Id., § 5.

There being no such dispute, same-sex marriage will be formally

authorized under Maryland law at the stroke of midnight on New

Year’s Eve.

Obtaining a Marriage License Under Maryland Law

Although Chapter 2 amends Maryland law to allow for

same-sex marriage, it will take effect within an existing statutory

framework for the licensing of marriages, the provisions of which

Chapter 2 “may not be construed to invalidate.” FL § 2-201(a).

Those provisions require that a couple seeking to marry under

Maryland law must first obtain a license issued by the clerk of the

circuit court for the county in which the marriage is to be

performed. FL § 2-401(a); see also FL § 2-101(c) (defining “clerk”).

In order to apply for a license, one of the parties to be married

must appear before the clerk2 and provide certain basic

information about the parties, including their names, place of

residence, age, and social security numbers, and whether the

parties are related by blood or marriage, currently married, or, if

married previously, “the date and place of each death or judicial

determination that ended any former marriage.” FL § 2-402(b).

The statute does not now, and never has, included the parties’

gender within the list of required information.

Although the circuit court clerks generally accept the

representations made by the parties, under oath, in the application

for a marriage license, see 25 Opinions of the Attorney General

120 (1940) and 18 Opinions of the Attorney General 346 (1933),

the clerks are empowered to question the applicants about the

information included within the application. “If, during the

questioning of an applicant for a license, the clerk finds that there

is a legal reason why the applicants should not be married, the

clerk shall withhold the license unless ordered by the court to

issue the license.” FL § 2-405(e).

If, after questioning the applicant, the clerk determines that

the applicants qualify to marry, the clerk may issue and deliver a

license the same day that the application is made and, it is our

2

In Cecil County, both parties to be married must “appear together

before the clerk to apply for a license.” FL § 2-402(e).

76 [97 Op. Att’y

understanding, typically does so. See FL § 2-405(a). The license

is not, however, immediately effective; unless the circuit court

orders otherwise, the license does not become effective “until 6

a.m. on the second calendar day after the license is issued.” FL

§ 2-405(d)(1). “For good cause shown,” a judge of the circuit

court for the county in which the application is made may

authorize a license to become effective at a time “before the

waiting period expires” if one of the parties to be married is either

a Maryland resident or a member of the United States armed

forces. FL § 2-405(d)(2). Once issued, the license is valid for six

months, FL § 2-406(b), during which time “any authorized

official”—an official of a religious order, a judge, a clerk, or a

“deputy clerk designated by the county administrative judge of

the circuit court for the county,” FL § 2-406(a)(2)—may perform

the ceremony. Under Maryland law, it is the ceremony, and not

the license, that validates the marriage. Feehley v. Feehley, 129

Md. 565, 570 (1916) (“The regulative purposes of the license

statute are useful and important, but they are sought to be

enforced by pecuniary penalties pronounced against those

officiating at unlicensed marriages, and not by the radical process

of rendering void and immoral a matrimonial union otherwise

validly contracted and solemnized.”); see also 75 Opinions of the

Attorney General 90, 92-94 (1990).

The Genesis of this Opinion Request

Prior to the enactment of Chapter 2, the fact that same-sex

marriage was not authorized under § 2-201 meant that there was a

“legal reason” why same-sex applicants “should not be married,”

which prohibited the issuance of a license under § 2-405(e). See

57 Opinions of the Attorney General at 72 (construing a prior

version of § 2-405(e) and concluding that, because there is a

“legal impediment” to same-sex marriage, clerks are “prohibited

from issuing a license”); see also Letter from Gloria Wilson

Shelton, Assistant Attorney General, to All Clerks of Court (Feb.

24, 2004) (“Because a marriage between persons of the same

gender is not legally valid in Maryland, the clerk is authorized by

statute to withhold the issuance of a marriage license to persons of

the same gender.”). The enactment and approval of Chapter 2

removed the “legal reason” why same-sex couples should not be

married. Accordingly, after January 1, 2013, a same-sex couple

will be entitled to apply for, and obtain, a marriage license and

solemnize their marriage in a civil ceremony in the same manner

as other Maryland couples.

The voters’ reported approval of Chapter 2 prompted several

inquiries to the clerks of the circuit courts about the

implementation of Maryland licensing requirements under the

new law. Specifically, several same-sex couples have inquired as

to how soon they can submit an application, obtain a license, and

be married under Chapter 2. In addition, other questions have

Gen. 72] 77

arisen about whether couples who have already entered into an

out-of-state union may obtain a marriage license here in Maryland

and about the vows the clerks are to recite when conducting same-

sex marriage ceremonies. The clerks of the various circuit courts

have compiled the questions they received and have referred them

to the Administrative Office of the Courts, which subsequently

referred them to us for our opinion.

II

Analysis

The questions presented in your request relate to three broad

topics: (1) the timing of the process of applying for and issuing a

marriage license; (2) the ability of couples already joined in out-

of-state unions to obtain marriage licenses and be married in

Maryland; and (3) the form of the vows for same-sex marriage

ceremonies. We shall address them in that same grouped manner.

A. Questions About the Timing of the Application for, and

Issuance of, Marriage Licenses for Same-Sex Couples

Under Chapter 2

Your first group of questions relates to the processing and

issuance of marriage licenses for same-sex couples and asks

whether and to what extent clerks may begin accepting,

processing, and issuing licenses in advance of the January 1, 2013

effective date of Chapter 2. As we will discuss below, we

conclude that the licensing statute, properly construed to advance

the public policies that lie behind it and behind Chapter 2, allows

the clerks to begin accepting and processing license applications

for same-sex couples prior to January 1, 2013, and even to issue

licenses prior to that date under certain conditions. We

acknowledge that the legal basis for doing so is not free from

doubt and that an alternative reading of the Act that would have

the clerks decline to take any action on a license application from

a same-sex couple prior to January 1, 2013, would also be

permissible. We believe that this is an administrative decision

that must necessarily be left to the clerks and, to some extent, the

circuit court judges that oversee their administration of the

marriage laws. However, since the authorization of same-sex

marriage is now established as the clear public policy of the State,

it is important that such administrative judgments be made in a

manner that facilitates same-sex marriage to the same extent that

administrative judgments would be made to facilitate opposite-sex

marriages.

78 [97 Op. Att’y

1. On what date can a clerk begin taking

applications for marriage licenses for same-sex

marriages?

The statute does not prescribe when a marriage license

application may be submitted or any date by which it must be

acted upon by the clerk. Although the clerk may issue and deliver

a marriage license on the same day the application is submitted,

the statute does not require the clerk to do so. And in 1961,

Attorney General Thomas B. Finan advised that, unlike marriage

licenses, the General Assembly had specified no expiration date

for applications. 46 Opinions of the Attorney General 44 (1961);

see also 26 Opinions of the Attorney General 266 (1941)

(observing that there is “no limitation upon the time within which

an applicant must secure a marriage license after making

application therefor”). For example, we previously concluded

that, in a situation where a minor applied for a license but failed

to provide the required written parental consent along with the

application, “the consent need not be filed at the time the

application is made but may be filed at any time before the license

is actually issued,” and that “[u]ntil a license is actually issued all

that is necessary for you to do is to retain the original application

in your files.” 24 Opinions of the Attorney General 191 (1939).3

We see nothing in the statute, as amended by Chapter 2, that

would cause us to depart from the conclusions we previously have

reached. Just as a clerk may process and retain an application

pending receipt of a necessary parental consent, a clerk who

wishes to accept, process, and retain a marriage license

application submitted by a same-sex couple in anticipation of the

effective date of Chapter 2 may do so.4 We see no statutory

3

In 1963, legislation was passed that authorized the clerk to

“destroy” an application if the parties had not picked up the license

within 90 days after they filed their application. 1963 Md. Laws, ch.

191 (codified at Art. 62, § 7A (1972 Repl. Vol.) and subsequently

recodified at FL § 2-405(j) (1999 Repl. Vol.)). The 1999 legislation

that amended the law to allow for the same-day issuance and delivery

of marriage licenses repealed this provision, which presumably was

rendered unnecessary by the “one-stop shopping for marriage license

applicants” the 1999 legislation authorized. See Senate Judicial

Proceedings Committee, Floor Report, Senate Bill 282 at 2 (1999).

Consequently, there is once again no expiration date for applications.

4

As discussed above, the effect of Chapter 2 is suspended until the

Governor formally proclaims that it has been approved by a majority of

voters. See Art. XVI, §§ 2, 5. To insure against the theoretical

possibility of a miscount or other circumstance that would result in the

legislation not becoming effective on January 1, 2013, we suggest that

clerks wait until the Governor’s proclamation before accepting

applications. However, because clerks “act in a ministerial capacity in

issuing the marriage licenses,” 25 Opinions of the Attorney General at

(continued…)

Gen. 72] 79

obstacle to clerks conducting the ministerial process of generating

a signed application prior to the effective date of the bill and

holding it until such time as the license can be issued.

2. On what date can a clerk begin issuing marriage

licenses for same-sex marriages?

We believe clerks may begin issuing same-sex marriage

licenses at any time after the Governor formally proclaims that

Chapter 2 has been approved by the voters, which we would

expect to occur on or about December 6, 2012. Although there is

a “legal reason” why same-sex couples cannot be licensed to

marry before midnight on January 1, 2013, FL § 2-405(e), there is

no such legal reason why they should not be licensed to marry at

any time after the moment the law takes effect. Accordingly, any

licenses for same-sex marriages that the clerks issue prior to

January 1, 2013, must bear an effective date of no earlier than

January 1, 2013. Issuance of licenses in this fashion is not barred

by § 2-405(e).

The provisions of the statute relating to the timing of the

license process similarly do not bar clerks from issuing licenses

with a January 1, 2013 effective date.5 Section 2-405(h)(1)

provides that a clerk “may not predate an application for a

license,” but does not in any way prohibit the clerk from

including a subsequent effective date on the license itself. Section

120, we see no legal obstacle to their accepting applications in

anticipation of Chapter 2’s January 1 effective date in order to alleviate

what may otherwise be the heavy administrative burden of processing

an anticipated high volume of applications, as other jurisdictions have

done. See, e.g., News from the Blue Room, “Mayor Bloomberg,

Speaker Quinn and New York City Clerk McSweeney Announce

Public Lottery For Any Couple Wishing to Marry on Sunday, July

24th” (July 19, 2011) (available at http://www.nyc.gov/portal/site/

nycgov/menuitem.c0935b9a57bb4ef3daf2f1c701c789a0/index.js

p?pageID=mayor_press_release&catID=1194&doc_name=http%

3A%2F%2Fwww.nyc.gov%2Fhtml%2Fom%2Fhtml%2F2011b%

2Fpr260-11.html&cc=unused1978&rc=1194&ndi=1 (last visited Nov.

15, 2012)) (describing how New York City began accepting

applications for marriage licenses from same-sex couples on July 5,

2011—19 days before the effective date of the Marriage Equality

Act—and expected to conduct a record number of marriages on July

24, 2011).

5

It is our understanding that, as a technical matter, clerks can issue

licenses with a delayed effective date. Although the computer program

the clerks commonly use to prepare marriage licenses automatically

generates a license with an effective date of 6:00 a.m. on the second

calendar day after it is issued, the program can be overridden to insert

another effective date.

80 [97 Op. Att’y

2-405(d)(1) specifies that “a license is not effective until 6 a.m. on

the second calendar day after the license is issued,” but it does not

expressly prohibit licenses becoming effective after that time.6

See Keppel v. Tiffin Sav. Bank, 197 U.S. 356, 378 (1905)

(observing that the word “until” means “to the time of, or up to”);

Black’s Law Dictionary (6th ed. 1990) (defining “until” as “Up to

time of” and as “[a] word of limitation, used ordinarily to restrict

that which precedes to what immediately follows it, and its office

is to fix some point of time or some event upon the arrival or

occurrence of which what precedes will cease to exist.”). And

while the statute provides a mechanism for authorizing a license

to become effective at a time “before”—but not after—the two-

day period expires, FL § 2-405(d)(2), that does not necessarily

indicate a legislative choice to forbid the practice of issuing

licenses with an extended waiting period. Rather, the policies that

lie behind the establishment of a waiting period for marriage

licenses suggest the opposite.

The purpose of the two-day waiting period is to provide the

couple with a “cooling-off” period that will allow them to

consider the significance of the step they are about to take. See

Marriage License Requirements (available at http://marriage.laws.com/

marriage-license-requirements (last visited Nov. 28, 2012))

(listing state waiting periods of one to six days, which “allow for

a cooling-off period for the couple to determine if they truly wish

to be married”).7 All of the timing provisions of the statute have

as their goal the preservation of the waiting period. For example,

6

The requirement that the license does not become effective until

6:00 a.m. on the second calendar day after its issuance was added in

1999, at the request of the Maryland Judicial Conference, to allow for

the same-day issuance and delivery of licenses, either by mail or by

pick-up at the courthouse. 1999 Md. Laws, ch. 336; Department of

Legislative Services, Revised Fiscal Note at 2 (under the bill, “the clerk

is authorized to issue and deliver a marriage license at the time an

application for a license is made”). Prior to 1999, the statute provided

for no delay of the effect of the license, but delayed the issuance of a

marriage license for at least 48 hours after receipt of the application.

See FL § 2-405(d) (1999 Repl. Vol.). Neither version of the law

prohibits the issuance of a license with a delayed effective date.

7

As a historical side note, the General Assembly first enacted a

waiting period in an effort to address the unseemliness caused by the

“marriage mills” of Elkton and other areas, where non-residents took

advantage of Maryland’s relatively liberal marriage requirements to

obtain a license, get married, and immediately leave the State—all in

the same day. See generally State of Maryland v. Clay, 182 Md. 639,

642-44 (1944); 27 Opinions of the Attorney General 253 (1942). A

variety of adjustments to the waiting period requirement ultimately

addressed the “evil” created by the practice. See generally Clay, 182

Md. at 644-45.

Gen. 72] 81

clerks may not predate an application to eliminate the waiting

period, FL § 2-405(h)(1), and may not waive the waiting period

on their own. The circuit court may reduce the waiting period,

but only “[f]or good cause shown,” FL § 2-405(d)(2), and then

only if one of the parties to be married is a Maryland resident or a

member of the military. These provisions restrict the shortening

of the waiting period, not the extension thereof.

We do not mean to suggest that clerks or the circuit courts

have the power to impose a longer waiting period over the

couple’s objection. The imposition of an extended waiting period

in those circumstances would appear to be designed to discourage

marriages between certain types of couples, which we believe is a

substantive power inconsistent with the “ministerial” role the

clerks have when issuing marriage licenses. See 25 Opinions of

the Attorney General at 120. Nor do we mean to suggest that

clerks may issue licenses with delayed effective dates to

accommodate the mere possibility that the legal reason why the

couple should not be married will be resolved prior to marriage.

Licenses issued after the formal proclamation that the voters have

indeed approved Chapter 2, with an effective date simply copied

from Chapter 2, and at the couple’s request, present no such

difficulties.8 Thus, it is our view that same-sex marriage licenses

may be issued prior to January 1, 2013, so long as they carry an

effective date no earlier than January 1, 2013.

The conclusion we reach is not the only permissible manner

of implementing the requirements of the statute. The clerk of a

circuit court may choose for purely administrative reasons not to

8

In this respect, we distinguish the instances in which this office

has advised against the issuance of licenses when the resolution of the

legal impediment is not inevitable, as it is here. Cf. 19 Opinions of the

Attorney General 335, 336 (1934) (clerk must refuse to issue a license

when one of the parties has an existing marriage); 57 Opinions of the

Attorney General at 72 (same-sex couple, as of 1972). We also

distinguish 14 Opinions of the Attorney General 167 (1929), in which

this Office advised that a clerk may refuse to issue the license when

independent information indicates that the parties are not of legal age—

an impediment to marriage that admittedly is not permanent. Unlike

the situation addressed in this Opinion, minors are considered incapable

of mature consent to marriage and, thus, equally incapable of

requesting the licensing accommodation we describe. See, e.g.,

Sophanthavong v. Palmateer, 378 F.3d 859, 877 (9th Cir. 2004)

(“Because of this immaturity, juveniles’ ability to participate in various

activities (such as operating automobiles or serving on a jury) or to

make decisions for themselves (regarding matters such as marriage or

undergoing medical procedures) are restricted by law.”) (citing

Stanford v. Kentucky, 492 U.S. 361, 395 (1989)); see also Auclair v.

Auclair, 127 Md. App. 1, 13 (1999) (“As minors, children are not

legally competent to act on their own behalf.”).

82 [97 Op. Att’y

issue licenses until January 2, 2013,9 which would make the

licenses effective at 6 a.m. on Friday, January 4, 2013. Or the

clerk could choose to process license applications immediately

and prepare a license with a January 1, 2013 effective date, but

hold the licenses until January 1, 2013, when they could be

handed out to couples as they arrive at the courthouse (assuming

the court remained open for the occasion). For couples in which

one of the parties is either a Maryland resident or a member of the

military, the circuit court could “sign an authorization” allowing

the license to become effective immediately. FL § 2-405(d)(2).

Implementing the statute in this manner would allow couples to

be married on January 1, 2013, but would require a court order.10

We acknowledge that our conclusion might result in

different administrative practices in different circuit courts. For

instance, a circuit court in one jurisdiction may anticipate a high

volume of applications from couples wanting to marry on January

1, 2013, and may wish to use the time before then to spread out

what would otherwise be an unmanageable administrative burden.

Other jurisdictions may determine that such advance processing is

not necessary in order to issue licenses promptly after the

effective date. We believe the legislative scheme allows for this

type of administrative flexibility.

It is important in this respect to recall the limited role that

marriage licenses play within the regulation of marriage under

Maryland law. The license serves primarily as evidence of the

marriage; the clerks maintain a properly indexed “marriage

license book” that contains a complete record of the license, the

applicants’ eligibility therefor, and the date of the marriage

ceremony. See generally FL § 2-501. For religious officials or

lay officiants, the license serves to insulate them from potential

liability under the statute that flows from performing a marriage

9

Because January 1, 2013, is a legal holiday, the clerk’s office will

not be open “unless otherwise prescribed by the judge.” Md. Code

Ann., Cts. & Jud. Pro. § 2-204; see also 24 Opinions of the Attorney

General 513 (1939) (advising a clerk that “[y]ou are not required to

conduct the business of your office from your home and since the law

does not require you to keep your office open on [a legal holiday], you

are not required to conduct any of the business of your office on [a

legal holiday]”).

10

We note that this is roughly the procedure followed by New York

City to accommodate the large number of same-sex couples wishing to

be married on the effective date of that state’s Marriage Equality Act.

See, e.g., News from the Blue Room, supra at 79, n.4; see also New

York State Bar Assn., “New York Marriage Equality, Frequently

Asked Questions (FAQ), FAQ #1 at 2 (July 18, 2011) (available at

http://www.nysba.org/Content/NavigationMenu62/MarriageEquality/NY

MarriageEquality-QAs.pdf. (last visited Nov. 16, 2012)).

Gen. 72] 83

ceremony without a license. See FL § 2-406(e). The license does

not, however, validate the marriage. Feehley, 129 Md. at 570; see

also Picarella v. Picarella, 20 Md. App. 499 (1974) (following

Feehley to find the marriage valid despite fraud); 75 Opinions of

the Attorney General 90, 92-94 (1990) (noting that “Maryland

cases have held that failure to comply with certain other statutory

requirements concerning marriage does not invalidate the

marriage”). Rather, it is the marriage ceremony that validates the

marriage and, with respect to same-sex marriages, the General

Assembly has declared that such validation may occur beginning

at the stroke of midnight on January 1, 2013, not 6 a.m. on

January 4. See Robey v. Broersma, 181 Md. 325, 336 (1942)

(“When the legislative body expressly declares that an Act shall

take effect on a certain and reasonable date, the presumption is

that it intended it to take effect on that particular date, and on no

other.”). We believe that the provisions of the statute relating to

the “ministerial act” of issuing marriage licenses should be read to

allow for the effectuation of that legislative intent. Bd. of Educ. v.

Marks-Sloan, 428 Md. 1, 18 (2012) (“The cardinal rule of

statutory interpretation is to ascertain and effectuate the real and

actual intent of the Legislature.”) (internal quotation marks

omitted). Accordingly, it is our opinion that clerks may begin

issuing same-sex marriage licenses with a January 1, 2013

effective date at any time after Chapter 2 is formally proclaimed

to have been approved by the voters, which we expect to occur on

December 6, 2012.

3. On what date can a clerk begin delivering issued

licenses for same-sex marriages to the parties?

We believe our response to the previous question applies

here as well. Although each word in a statute is presumed to have

significance, and the General Assembly appears to use the terms

“issue” and “deliver” to refer to two separate steps in the process

of obtaining a marriage license, compare FL § 2-405(e)

(addressing issuance) with § 2-405(f) (providing for delivery of

the license in person or by mail), none of the timing restrictions

arguably applicable to the issuance of a license applies to

delivery. Accordingly, if clerks may issue a license, or a court

orders the same, they may also deliver the license in the manner

prescribed by § 2-405(f).

We observe, in this respect, that the significance of the term

“delivery” has diminished over time. Prior to 1999, the statute

provided that the clerk could not “deliver” the license until 48

hours after an application had been made. See FL § 2-405(d)

(1999 Repl. Vol.). The 1999 amendments, however, removed the

two-day waiting period for issuance and delivery of the license,

and instead made the license effective two days after issuance.

Thus, although the statute currently contemplates issuance and

delivery to be separate and distinct steps, delivery is now an

84 [97 Op. Att’y

entirely administrative task which can be effectuated either

“personally or by mail to” one of the parties or their designee. FL

§ 2-405(f).

4. If licenses may be issued earlier than January 1,

2013, how do the provisions for the waiting

period in FL § 2-405(d) apply to those licenses?

For example, would a license issued on

December 28, 2012, or earlier take effect at 6:00

a.m. on January 1, 2013, or at 6:00 a.m. on

January 3, 2013 (i.e., 6:00 a.m. on the second

calendar day after same-sex marriage became

legal)?

We believe that this question is also answered by our

response to question no. 2 above. Issuance of licenses with a

delayed effective date renders moot any questions about how the

two-day waiting period is applied since the waiting period will, in

effect, be longer than the statute requires. Whether issued on

December 28 or December 8, a license issued in the manner we

describe (i.e., with a specified effective date of January 1, 2013)

would become effective on January 1, 2013, as the statute’s

effective date allows.

Should the clerk elect to issue licenses without specifying a

delayed January 1, 2013 effective date, he or she may not issue

the license prior to December 30, 2012, in the absence of a court

order. Taking the example you provide, a license issued on

December 28, 2012, without a specified effective date of January

1, 2013, would presumably take effect at 6:00 a.m. on December

30, 2012, because the provisions of § 2-405(d) are not affected by

the new law. That would result in a couple holding an effective

same-sex marriage license prior to the date same-sex marriage is

recognized as valid here in Maryland, something that we do not

believe would be permissible without a court order under § 2-

405(e).

B. Questions Concerning Re-Marriage

The next set of questions you pose relates to the

circumstances under which couples who have previously entered

into a union—whether it be a domestic partnership, a civil union,

or a same-sex marriage—in another state may obtain a marriage

license and be married here in Maryland without first dissolving

their previous union.

Gen. 72] 85

5. If a same-sex couple has already been married

in a state where it was legal prior to January 1,

2013, and that marriage remains intact, can they

now get a license and marry in Maryland?

Just as opposite-sex couples may not get a marriage license

in Maryland if already legally married in another state, same-sex

couples may not either. In an opinion issued in 1940, Attorney

General William Walsh advised that a license may not be issued

to a couple who had previously been married by a justice of the

peace in Virginia and who subsequently wanted to be married in a

religious ceremony in Maryland. 25 Opinions of the Attorney

General 353 (1940). The first ceremony, held in Virginia, was

sufficient under the law of that state and, thus, “would be

recognized here as a valid marriage.” Id. at 354. Because “the

marital status of both the parties would appear in the application

as ‘married’, and there would be nothing in the record to show

that they were married to each other, or that they had been

divorced,” no license could be issued. Id.; see also 24 Opinions

of the Attorney General 507 (couple who wished to be married in

two separate ceremonies conducted by ministers of different

denominations need not obtain two licenses). This view was also

adopted in a letter to Shirley P. Hill, Chief Deputy Clerk in Prince

George’s County from Catherine M. Shultz, Assistant Attorney

General, dated July 11, 1984, advising that the Clerk should not

issue a license to a married couple who wish to “reaffirm” or

“solemnize” their marriage vows.

We see no reason why this advice does not remain valid and,

therefore, we conclude that a same-sex couple who has already

entered into a valid out-of-state same-sex marriage may not now

obtain a license and marry again in Maryland. Out-of-state same-

sex marriages, valid in the state where entered into, are

recognized as valid under Maryland law. See Port v. Cowan, 426

Md. 435 (2012), see also 95 Opinions of the Attorney General 3

(2010). As “[a]n existing marriage,” a previous out-of-state

same-sex marriage “operates to prevent a subsequent marriage,

and where it appears from the examination which the Clerk is

required to make under [the forerunner of § 2-402(b)], that there

is an existing marriage, it is the duty of the Clerk to refuse to issue

the license until ordered to do so by the Court of which he is the

Clerk.” 19 Opinions of the Attorney General 335, 336 (1934).

86 [97 Op. Att’y

6. To the extent the Attorney General has

previously opined or advised that a couple

already married cannot get a license, would that

conclusion still apply in this situation, where a

couple could not previously be married in

Maryland, and does Maryland’s recognition of

out-of-state same-sex marriage affect this

determination?

As discussed above in response to the previous question,

same-sex couples who were legally married in other states prior to

the adoption of same-sex marriage in this State remain legally

married and, thus, unable to obtain a license under Maryland law.

The enactment of Chapter 2 of 2012 does not change this

conclusion.

Chapter 2 states that “[o]nly a marriage between two

individuals who are not otherwise prohibited from marrying is

valid in this State.” As discussed above, parties to an existing

valid marriage—whether entered in Maryland or out of state—are

prohibited from marrying in Maryland, at least without first

obtaining a divorce. See 19 Opinions of the Attorney General at

336: see also Letter from Julia M. Freit, Assistant Attorney

General, to All Clerks of Court (Oct. 31, 1994) at 3, n.3

(concluding that a “couple may not obtain and use a new license

in Maryland if they already are married under the laws of the state

where the previous marriage occurred”).

The fact that same-sex couples were legally prohibited from

marrying in Maryland prior to the enactment of Chapter 2 does

not change our conclusion. We understand that, prior to en-

actment of Chapter 2, many Maryland same-sex couples may

have wished to marry in Maryland, but were compelled to travel

to other states to be married because of Maryland’s prohibition on

same-sex marriage. But the rule of law barring parties married in

one state from marrying again in another does not rest on the

premise that the parties could have been married in the state of

their choice the first time around. Rather, it rests on the concern

that a person, if marrying a new partner, would “have two legal

spouses, each of whom could expect virtually the same

obligations from him, such as spousal or child support,

inheritance, and healthcare coverage.” Elia-Warnken v. Elia, 972

N.E.2d 17, 21 (Mass. July 26, 2012). Accordingly, any same-sex

marriage validly entered into in another state is recognized in this

State and its existence bars the parties from obtaining a new

marriage license here in Maryland.

Gen. 72] 87

7. If a couple entered into a “civil union” in a state

allowing that contract, and the civil union

remains intact, is their marital status Married,

Single, or some other status, and can they obtain

a license to marry in Maryland?

As noted above, Chapter 2 provides that marriages between

two individuals who are not otherwise “prohibited from

marrying” are valid in this State. Nothing in either current law or

Chapter 2 prevents a marriage between parties who are already in

a civil union entered into in another state. The Legislature, in

enacting Chapter 2, did not address the legal effect of out-of-state

(or in-state) civil unions and domestic partnerships on a same-sex

couple’s ability to marry in Maryland. Rather, it left in place the

pre-existing language of § 2-402, which requires applicants for a

license to state the “marital status of each party” and “whether

either party was married previously, and the date and place of

each death or judicial determination that ended any former

marriage.” FL § 2-402(b) (emphasis added). In the absence of

language expressly prohibiting parties to a civil union or domestic

partnership from entering into a Maryland marriage, a plain text

reading of Chapter 2 would yield the conclusion that they may do

so.

Although the provisions of the Family Law Article

governing marriage do not address the effect, if any, of a prior

civil union, Maryland’s domestic partnership law, enacted in

2008, does. See 2008 Md. Laws, ch. 590. That law defines

“domestic partnership” as a relationship between “two

individuals” who:

(1) Are at least 18 years old;

(2) Are not related to each other by blood or

marriage within four degrees of

consanguinity under civil law rule;

(3) Are not married or in a civil union or

domestic partnership with another individual;

and

(4) Agree to be in a relationship of mutual

interdependence in which each individual

contributes to the maintenance and support of

the other individual and the relationship,

even if both individuals are not required to

contribute equally to the relationship.

Md. Code Ann., Health-Gen. § 6-101(a) (2009 Repl. Vol.)

(emphasis added). As the italicized paragraph provides, parties

who are already in a marriage, civil union, or domestic

88 [97 Op. Att’y

partnership may not form a new domestic partnership “with

another individual,” but apparently may do so with their existing

partner.11 The General Assembly did not include a similar

provision addressing civil unions in Chapter 2, and also did not

distinguish pre-existing civil unions between the same people

who now wish to be married and pre-existing unions with third

parties. That the Legislature evidently knew how to include such

provisions suggests that their absence was intended, see Chow v.

State, 393 Md. 431, 457-58 (2006), and that the parties to out-of-

state civil unions would not be precluded from marrying in

Maryland.12

The Attorney General of Connecticut reached a similar

conclusion in an opinion concerning the effects of the decision in

Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957

A.2d 407 (2008), which held that, under that state’s Constitution,

11

We acknowledge that, read in isolation, the term “another

individual” could be read simply to refer to the fact that one enters into

a marriage, civil union, or domestic partnership with another

individual. If read in this way, this provision would mean simply that

one cannot enter into a domestic partnership if one is already married

or in an alternative union—arguably a reasonable outcome. This

reading, however, renders the phrase “with another individual” mere

surplusage, which canons of statutory construction caution us to avoid.

See Armstrong v. Mayor of Baltimore, 409 Md. 648, 694 (2009)

(stating that “one of the cardinal rules of statutory interpretation” is to

“ensur[e] that ‘no word, clause, sentence or phrase is rendered

surplusage, superfluous, meaningless or nugatory’”) (quoting Jackson

v. State, 408 Md. 231, 236-37 (2009)). More importantly, the

definition begins with the reference to “two individuals,” the clear

implication being that “another individual” must refer to a third party.

This is how the Register of Wills for Howard County has interpreted

the provision. See Byron E. Macfarlane, Register of Wills, “Domestic

Partner Inheritance Tax Exemption For Real Property (describing

domestic partnership and stating that, in order to qualify, the parties

cannot be “married or in a civil union or domestic partnership with

someone else”) (available at http://registers.maryland.gov/main/

region/howard/Domestic Partner Inheritance Tax Exemption for Real

Property Informational Guide.pdf (last visited Nov. 14, 2012)).

12

We believe it clearer still that same-sex couples who previously

entered into a Maryland domestic partnership may marry under Chapter

2. Whereas the rights and obligations that flow from civil unions under

other states’ laws might not be coterminous with the rights and

obligations attendant to a Maryland marriage, the rights afforded

domestic partners under Maryland law are a subset of those afforded

married couples. See generally Health-Gen. §§ 6-201 through 6-203.

Some states expressly provide for the merger of the two unions, see

Conn. Gen. Stat. § 46b-38qq, rr; others do not, see Elia-Warnken, 463

Mass. at 31, 972 N.E.2d at 19 (discussing the lack of a merger

provision in Vermont law).

Gen. 72] 89

same-sex couples had a right to marriage and not just a civil

union. Op. Conn. Att’y Gen., No. 2008-019 (Oct. 28, 2008). The

Connecticut Attorney General’s Opinion concluded that the State

would recognize the validity of out-of-state same-sex marriages

and out-of-state civil unions—a result we believe would hold true

in Maryland as well—but found that the existence of an out-of-

state civil union would not pose an obstacle to marriage by the

same parties. Although Connecticut law prohibited an individual

from entering into a civil union if he or she is already married, the

converse did not hold true: “[T]here is no law that requires a

same sex couple to dissolve their civil union prior to marriage to

each other.” Id.

The Connecticut Attorney General did not opine on whether

a same-sex couple would have to dissolve their civil union prior

to marrying other partners, but the courts of other states have

reached the conclusion that they would. In Elia-Warnken, the

Supreme Judicial Court of Massachusetts held that a Vermont

civil union must be dissolved before a party to that union may

marry another person. The court found that civil unions in

Vermont were equivalent to marriage in that they carried the same

rights and responsibilities, and that refusing to recognize a civil

union in this context would “be inconsistent with the core legal

and public policy concerns articulated in Goodridge [v.

Department of Public Health, 440 Mass. 309, 798 N.E.2d 941

(Mass. 2003)] and [In re] Opinions of the Justices to the Senate[,

440 Mass. 1201, 802 N.E.2d 565 (Mass. 2004)].” 463 Mass. at

33-34, 972 N.E.2d at 21. The court also noted that, if the civil

union were not recognized and dissolved, plaintiff would “have

two legal spouses, each of whom could expect virtually the same

obligations from him, such as spousal or child support,

inheritance, and healthcare coverage.” Elia-Warnken, 463 Mass.

at 34, 972 N.E.2d at 21; see also Hunter v. Rose, 463 Mass. 488

(Sept. 28, 2012) (reaching the same conclusion with respect to

registered domestic partnerships from California).

Although Maryland does not have a statutory procedure for

dissolving civil unions, and there are no reported Maryland cases

on this issue, we think a Maryland court would recognize an out-

of-state civil union within the context of a divorce proceeding.

See Dickerson v. Thompson, 73 A.D.3d 52, 897 N.Y.S.2d 298,

299-301 (N.Y. App. Div. 2010), cited with approval in Port v.

Cowan, 426 Md. at 453-54; Alons v. Iowa Dist. Court, 698

N.W.2d 858, 862 (Iowa 2005). Put another way, a couple who

has entered into a civil union elsewhere and then a marriage in

Maryland might need to dissolve both the union and the marriage

in order to achieve a full “divorce.” That possibility, however,

does not bear on the clerk’s authority to issue them a Maryland

license.

90 [97 Op. Att’y

Synthesizing the law in this developing area yields the

conclusion that couples need not dissolve an out-of-state civil

union to marry each other here in Maryland, but must do so if

they wish to marry third parties. That appears to be the

conclusion reached by others who monitor the development of

these issues. See Equality Maryland, “We Won Marriage – Now

What? Answers to Your Questions” (available at http://

www.equalitymaryland.org (last visited Nov. 14, 2012)) (“As

long as you wish to marry the same person that you entered into

the civil union or domestic partner registry with, you can proceed

with obtaining a marriage license in Maryland.”). Nonetheless,

we acknowledge considerable concern about the ramifications of

this conclusion. Although allowing the parties to un-dissolved

civil unions to marry one another does not involve the obvious

difficulties that arise when the parties seek to marry third parties,

it would still raise potentially difficult conflicts of law when

trying to sort out the privileges and obligations that attend to the

two unions. The same conflicting responsibilities concerning

“child support, inheritance, and healthcare coverage” that

prompted the conclusion in Elia-Warnken that the parties would

have to dissolve their civil union prior to marrying third parties

would apply with similar, if not equal, force when the parties wish

to marry each other.

The resolution of these issues must necessarily depend on

the specific attributes of civil unions formed under the laws of the

state of origin. For example, Maryland courts may, as the

Supreme Judicial Court of Massachusetts did in Elia-Warnken,

recognize an out-of-state civil union “as the equivalent of

marriage” when “the rights and obligations procured by those

entering in a civil union were functionally identical to those of

marriage.” 463 Mass. at 35, 33, 972 N.E.2d at 21, 20; see also

Op. N.J. Att’y Gen. No. 3-2007 (Feb. 16, 2007) (identifying the

foreign same-sex unions that “closely approximate” either New

Jersey civil unions or domestic partnerships and, thus, will be

recognized as such in New Jersey). If the Maryland courts were

to do so, the existence of the out-of-state civil union, recognized

as a marriage under Maryland law, might call into question the

validity of a second marriage. The determination of whether a

particular out-of-state civil union so qualifies, however, must

await a specific factual context. As to the marriage license issue

you have raised, we think the better reading of Chapter 2 is that

the Legislature did not intend to preclude couples who have

entered into a “civil union” in another state from marrying here.13

13

We note in this respect that the decision whether to issue a

marriage license is not the appropriate context for resolving possible

conflicts between Maryland’s marriage laws and the civil union laws of

other states. The clerks “act in a ministerial capacity in issuing the

marriage licenses,” 25 Opinions of the Attorney General at 120, and

(continued…)

Gen. 72] 91

C. Questions Concerning the Form that Wedding Vows

Should Take Under Chapter 2

Your remaining questions relate to the form of the vows that

clerks and other authorized State officials, and the parties being

married, recite to solemnize same-sex marriages. Specifically,

you seek our opinion as to what form those vows should take.

The statute provides little guidance; it provides that “[t]he county

administrative judge of the circuit court of the county shall

designate . . . the form of the marriage ceremony to be recited by

the clerk or deputy clerk and the parties being married,” FL § 2-

406(f)(2), but it provides nothing to direct the administrative

judges in their designation. Consequently, the form of the

marriage vows to be performed by the clerks is left largely to the

administrative judge’s discretion.

The discretion to craft marriage vows is not, however,

unbounded. Although we have been unable to find any case

authority specifically governing the form of civil marriage vows,

we expect that any substantive difference between the form of the

vows used to join same-sex couples and those used to join

opposite-sex couples could raise constitutional questions under

Maryland law, which—as of January 1, 2013—will not

distinguish between such marriages. By contrast, non-substantive

nomenclatural differences would likely not raise such

constitutional questions. This is not to say that words do not

matter in how we characterize and solemnize same-sex marriages;

they clearly do. See, e.g., Opinions of the Justices to the Senate,

440 Mass. 1201, 1207 (2004) (“The dissimilitude between the

terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a

considered choice of language that reflects a demonstrable

assigning of same-sex, largely homosexual, couples to second-

class status.”). But differences in terminology that are limited to

the designation of the parties to the marriage—for example,

“husband and husband” versus “husband and wife”—do not

demean the parties or impair the integrity of the bond formed and,

we believe, do not raise constitutional concerns as a result. With

these principles in mind, we turn to the specific questions you

pose.

just as they are “without authority to pass upon the various legal

questions that may arise respecting the validity of a foreign divorce,”

id., they are equally without authority to determine whether a civil

union entered into the laws of a particular state is the equivalent of

marriage here in Maryland.

92 [97 Op. Att’y

8. Should clerks use two sets of vows, one for

traditional unions and one for same-sex unions,

or should they only use the new vows composed

for same-sex unions? In other words, may

clerks’ offices offer each couple the opportunity

to select from a standard and alternative text

(using “spouse” as standard and “husband and

wife” as alternative)?

9. If the clerks may lawfully offer each couple the

opportunity to select from a standard and

alternative text for their marriage vows (using

“spouse” as standard language, and offering

“husband and wife” as an alternative), should

this option be available to both opposite and

same-sex couples?

The statute and case law provide little guidance on what

form the vows should take, which leaves the administrative

judges of the circuit courts with a relatively free hand in crafting

the ceremony. When they do so, however, we would recommend

that the administrative judges be mindful of not characterizing

one form of marriage vows as “traditional” or solemnizing

marriages with language that could be seen as stigmatizing the

union into which the parties enter. Using a single, gender-neutral

set of vows for all couples would eliminate any possibility of

discrimination, but it may disappoint opposite-sex couples who

wish to hear the pronouncement of “man and wife,” as well as

same-sex couples who look forward to hearing themselves

declared “husband and husband” or “wife and wife.” We would

instead recommend that the administrative judges offer all parties

a choice of different terminologies or, better yet, the opportunity

to choose exactly how they will be referred to in their vows.

Leaving the nomenclatural decision to the parties themselves will

ensure that all parties receive the ceremony they desire and, thus,

remove any question of discriminatory effect.

III

Conclusion

In summary, our answers to your questions are as follows:

1. Clerks may begin taking applications for marriage

licenses for same-sex marriages immediately.

2. Clerks, if they so choose, may begin issuing marriage

licenses for same-sex marriages once the Governor proclaims that

Chapter 2 has been approved by the voters, which is expected to

be December 6, 2012, but such licenses must specify that they are

Gen. 72] 93

not effective until January 1, 2013. Ceremonies may be

performed beginning on January 1, 2013.

3. Clerks may begin delivering issued licenses for same-

sex marriages to the parties on December 6, 2012, if the licenses

bear a January 1, 2013 effective date. If they do not so specify,

the license may not be delivered until January 1, 2013.

4. If the clerk issues a license earlier than December 30,

2012, but with a January 1, 2013, effective date, the provisions for

the waiting period in FL § 2-405(d) are subsumed by the much

longer waiting period effectively established on the face of the

license.

5. A same-sex couple who has already been married in a

state where it was legal to do so prior to January 1, 2013, cannot

now get a license and marry in Maryland as long as the out-of-

state marriage remains intact.

6. The conclusion that a couple already married cannot

get a license would still apply where that couple could not have

previously been married in Maryland. Maryland’s recognition of

out-of-state same-sex marriage does not affect this determination.

7. In the absence of statutory language prohibiting the

issuance of a marriage license to a couple who has entered into a

civil union in another state, we see no obstacle to the issuance of a

license in such situations. We recognize that the extent to which a

civil union performed elsewhere has created rights and

obligations that might run parallel to, or conflict with, those

incident to a Maryland marriage poses novel questions.

Nonetheless, in our opinion, the likelihood that such questions

will arise in the context of such events as a divorce, death, or

adoption does not create such absurd results that an exclusion of

these couples from the right to marry in Maryland should be read

into the statute. Whether a “civil union” entered into in a state

allowing it would be recognized as a marriage in Maryland and,

thus, bar a subsequent marriage, poses a different question, the

answer to which depends on the specific rights and obligations of

the civil union. That question cannot, however, be resolved

within the marriage licensing context.

8. Although the Administrative Judge in each circuit

retains considerable discretion over the form that the vows are to

take, we recommend that the clerks offer each couple the

opportunity to select from a variety of texts that allow them to

specify how they wish to refer to themselves.

9. Although the clerks may lawfully offer each couple the

opportunity to select from various sets of vows, the clerks and

Administrative Judges must avoid labels such as “standard” and

94 [97 Op. Att’y

“alternative” vows that would effectively stigmatize one set or the

other.

Douglas F. Gansler

Attorney General

Adam D. Snyder*

Chief Counsel

Opinions & Advice

* Assistant Attorneys General Kathryn M. Rowe and Stuart

Cordish contributed significantly to the preparation of this

opinion.

Editor’s Note:

This opinion has been revised to correct certain citations and

to substitute the term “two-day” for “48-hour” in describing the

waiting period required under FL § 2-405(d)(1).