Maryland Attorney General Opinion 95 OAG 003

FAMILY LAW

M ARRIAGE – W HETHER O UT-OF-S TATE S AME-S EX M ARRIAGE

T HAT IS V ALID IN THE S TATE OF C ELEBRATION M AY B E

R ECOGNIZED IN M ARYLAND

February 23, 2010

The Honorable Richard S. Madaleno, Jr.

Maryland Senate

You asked whether the State may recognize same-sex

marriages legally performed in other jurisdictions, including other

countries. You also noted action taken by the Governor of New

York in 2008 concerning recognition of out-of-state marriages and

asked whether a Maryland Governor can issue an executive order

concerning recognition of such marriages.

Same-Sex Marriages from Other Jurisdictions in Maryland

This opinion does not concern whether individuals of the same

sex may wed in Maryland. The General Assembly has clearly

answered that question “no” – an answer that the Court of Appeals

has found to be constitutional.

Rather, your inquiry raises the question whether the State may

recognize a same-sex marriage that is valid in the jurisdiction in

which it was contracted. Several states and foreign countries now

provide for same-sex marriage under their own laws.

Although two individuals are married in another jurisdiction,

their marital status in Maryland can become significant in a variety

of ways. A same-sex couple validly married in another state or

country may move to Maryland for employment. A same-sex couple

validly married in another state or country may vacation in the State

– or may stop temporarily in the State while traveling to another

destination. A same-sex couple in Maryland may go to another state

for the specific purpose of marrying under that state’s law, and then

return to Maryland. A same-sex couple married in another state may

never set foot in Maryland, yet their marital status may have legal

significance for others in Maryland.

3

4 [95 Op. Att’y

You have asked whether those marriages may be recognized

under State law. The answer to that question is clearly “yes.”

How the State May Recognize Such Marriages

Such marriages may be recognized in several ways. First,

legislation enacted by the General Assembly could provide for

recognition of out-of-state same-sex marriages generally, or for

particular purposes. Second, in the absence of legislation, the Court

of Appeals, applying common law choice-of-law principles, could

decide that such marriages will be recognized in Maryland, either

generally or in particular circumstances. Finally, a State agency may

also address the recognition of out-of-state marriages on particular

matters within that agency’s jurisdiction, so long as the agency’s

action is consistent with any relevant statutes and court decisions,

including federal laws that may govern the agency’s activities.

Scope of this Opinion

Because you have asked about the current state of the law

concerning recognition of out-of-state marriages, this opinion

addresses the second way in which out-of-state marriages may be

recognized in Maryland. It describes the legal landscape against

which the Court of Appeals would assess the question of recognition

of an out-of-state same-sex marriage and our view of how it would

likely resolve this issue.1 This opinion does not discuss the

mechanics of passing legislation or the particular laws that govern

the actions of specific agencies.

1

An Attorney General opinion is not itself the law of Maryland in

the same sense as a statute enacted by the Legislature or court decision

elaborating the common law or construing a statute. Rather it is an

interpretation of the statutory or common law that can guide a client

agency and may be persuasive to a court reviewing agency action based on

the opinion. See, e.g., Brown v. Handgun Permit Review Board, 188 Md.

App. 455, 982 A.2d 830 (2009) (upholding Board decisions predicated in

part on legal conclusions stated in Attorney General opinion). Thus, what

we say in this opinion is a prediction, not a prescription, as to the how the

Court would approach this issue under current law.

Gen. 3] 5

We are aware that many have strong views on what the

answers should be concerning recognition of same-sex marriages.2

Personal policy views do not dictate the answer to the question you

have posed. One could favor, as a matter of policy, the extension of

marriage under Maryland law to same-sex couples, but concede that

valid out-of-state unions may not be recognized under current law.

Conversely, one could oppose, as a matter of policy, the extension

of marriage to same-sex couples in the State, but acknowledge that

unions contracted validly under the laws of other states must be

respected.

To answer your question, we must put aside personal policy

views concerning same-sex marriage and focus on how the Court of

Appeals would apply choice-of-law rules about out-of-state

marriages. Choice-of-law, or conflict-of-laws, is the body of

common law that the courts apply when the laws of more than one

jurisdiction potentially govern a particular situation. In regard to

out-of-state marriages the courts apply the principle of comity, a

term that describes the respect that one state has for the laws of

another in light of its own public policy.

Out-of-State Marriages and the Principle of Comity

The Court of Appeals would start from the general principle

that a marriage that is valid in the place of celebration remains valid

in Maryland. There is an exception to that rule if the particular

marriage is contrary to a strong State public policy. A statute that

limits marriage in Maryland 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. For example, it has recognized common law

marriages from other states, although there is no common law

marriage in Maryland, and has recognized a Rhode Island marriage

between an uncle and a niece, although a statute prohibits marriage

2

You originally requested that this advice be provided on a

confidential basis, but subsequently withdrew that request. In accordance

with our usual procedure for official opinions, we posted the opinion

request on our website in the event interested parties wished to submit

legal memoranda or information relevant to the request. We received

several memoranda and other submissions, which we carefully considered

in preparing this opinion.

6 [95 Op. Att’y

between an uncle and a niece in Maryland. Indeed, the public policy

exception is a very limited one that the Court has seldom invoked.

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. 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. You have posed

the question in the abstract, but, of course, context matters. For

example, to the extent that a particular matter is governed by federal

law, the federal Defense of Marriage Act, which limits marriage for

federal purposes to opposite-sex couples, would prevent recognition

of the marriage for that particular purpose.3

Executive Orders

Finally, with respect to your question concerning the

Governor’s authority to issue an executive order, the Governor

cannot legislate through an executive order. An executive order of

the Governor must be consistent with existing Maryland law, as

enacted by the General Assembly and construed by the courts.

While the State Constitution and statutes accord the Governor broad

powers in certain areas – for example, in matters concerning

executive branch employees – many questions concerning

recognition of out-of-state marriages arise in the courts and cannot

be addressed in an executive order. The action of the New York

Governor’s office in 2008 is not entirely analogous. In New York,

the Governor’s counsel issued a memorandum to various agencies

in that state directing them to comply with a state court decision

3

An advice letter of this Office written six years ago gave a

qualified answer that out-of-state same-sex marriages would likely not be

recognized under Maryland law. While we reach a different conclusion

today, in light of developments in the law concerning intimate same-sex

relationships, we realize that State agencies have relied on that advice in

setting agency policies concerning recognition of out-of-state marriages.

In the absence of legislation or a definitive opinion of the Court of

Appeals, a State agency that intends to change its existing policy

concerning recognition of out-of-state same-sex marriages should first

adopt any necessary regulations and conduct any appropriate deliberative

process that permits consideration of the particular circumstances to which

the agency’s policy will apply and consider the possible applicability of

federal law to those circumstances.

Gen. 3] 7

concerning recognition of out-of-state marriages; there is no similar

court decision in Maryland.

I

Availability of Same-Sex Marriage in Other Jurisdictions

The laws of several jurisdictions allow for same-sex marriage.

In the United States, a same-sex couple may currently marry under

the laws of four New England states and Iowa.4 In addition, a same-

sex marriage contracted in California prior to a recent amendment of

that state’s constitution to ban same-sex marriage remains valid

under California law. Strauss v. Horton, 207 P.3d 48 (Cal. 2009).

The District of Columbia has enacted a bill, subject to congressional

review, that would authorize same-sex marriage in that jurisdiction

beginning in the spring of 2010. D.C. Law 18-9 (Jury and Marriage

Amendment Act of 2009); see T. Craig, Message appended to

marriage bill, Washington Post (December 19, 2009), p. B1.

Finally, a number of foreign countries have also authorized same-sex

marriage.5

II

Marriage under Maryland Law

A. Regulation by Common law and Statutes

Since Maryland’s origin as a British colony, marriage has been

recognized as a civil contract subject to significant regulation.6

4

See 15 Vt. Stat. Ann. §8; N.H. Rev. Stat. Ann. §457:1-a;

Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 798 N.E.2d 941

(2003); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008);

Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).

5

We understand that such marriages are currently authorized in

Belgium, Canada, the Netherlands, Norway, South Africa, Spain, and

Sweden.

6

Maryland has adopted the common law of England as of July 4,

1776, subject to modification by the General Assembly, development by

(continued...)

8 [95 Op. Att’y

Early laws required a ceremony and specified the content – at one

time the liturgy of the Church of England, but later broadened to

encompass other faiths and ultimately to dispense with the

requirement that the ceremony be religious in nature.7 While that

regulation was originally based on the canon and civil law of

England, it is now subject to the “plenary” authority of the General

Assembly. See Harrison v. State, 22 Md. 468, 493 (1864).

State law continues to regulate the manner by which

individuals can get married in a number of ways. They must obtain

a license from the clerk of the county’s circuit court. Annotated

Code of Maryland, Family Law Article (“FL”), §2-401. The clerk

is to withhold the license if aware of a legal reason why the

applicants may not marry, and there is ordinarily a brief waiting

period before a license becomes effective. FL §2-405(d), (e). The

marriage must be solemnized in a ceremony performed by an

authorized person. FL §2-406; Henderson v. Henderson, 199 Md.

449, 454, 87 A.2d 403 (1952). The ceremony is to be documented

by a marriage certificate. FL §2-409. These statutory requirements

are designed “to discourage deception and seduction, to prevent

illicit intercourse under the guise of matrimony, to relieve from

doubt the status of parties who live together as man and wife, and to

furnish evidence of the status and legitimacy of any offspring.”

Henderson, 199 Md. at 455.

State law also regulates who may marry within the State. It

sets a minimum age for the parties, FL §2-301, limits how closely

those individuals may be related, FL §2-202, and restricts the

institution to monogamous heterosexual relationships. FL §2-201.

We discuss the last element in greater detail in the next section.

6

(...continued)

the State courts, and provisions of the State and federal constitutions. See

Maryland Constitution, Declaration of Rights, Article 5.

7

See, e.g., Chapter 72, Acts of the General Assembly 1704

(requiring person presiding at wedding to use Liturgy of the Church of

England); Chapter 12, Laws of Maryland 1777 (specifying that marriage

ceremony may be performed by officials of various religions listed in

statute); Chapter 406, Laws of Maryland 1963 (eliminating requirement

of religious ceremony).

Gen. 3] 9

B. Same-Sex Marriage in Maryland

1. Family Law Article, §2-201

For many years, it has been well established that, under

Maryland law, a marriage is between one man and one woman. 57

Opinions of the Attorney General 71 (1972). The General Assembly

codified that understanding in 1973. Chapter 213, Laws of

Maryland 1973, then codified at Annotated Code of Maryland,

Article 62, §1. That provision states:

Only a marriage between a man and a woman

is valid in this State.

FL §2-201. Since 1973, the Legislature has declined to broaden or

narrow this language 8 and has reaffirmed its sentiment in other

enactments. For example, in 2001, as part of a bill adding certain

anti-discrimination measures relating to sexual orientation to the

State’s human relations law, the Legislature enacted a provision

stating that those anti-discrimination measures “may not be

construed to authorize or validate a marriage between two

individuals of the same sex.” Chapter 340, §2(1), Laws of Maryland

2001;9 see also Maryland Commission on Human Relations v.

Greenbelt Homes, Inc., 300 Md. 75, 83-84, 475 A.2d 1192 (1984)

(“The law of Maryland does not recognize ... relationships of

homosexuals or lesbians as legally bestowing upon two people a

legally cognizable marital status”) quoting Prince George’s County

v. Greenbelt Homes, Inc, 49 Md. App. 314, 431 A.2d 745 (1981).

The constitutionality of FL §2-201 was recently upheld by the Court

of Appeals. Conaway v. Deane, 401 Md. 219, 932 A.2d 571 (2007).

8

See Part V.C. below.

9

The codified portion of Chapter 340 was recently recodified as part

of the State Government Article in a non-substantive code revision bill.

Chapter 120, Laws of Maryland 2009. This non-substantive revision did

not, of course, affect the uncodified provision quoted in the text. See id,

§3. As we have suggested in other contexts, to avoid confusion and to

comply with a directory provision of the State Constitution, we

recommend that the Legislature either codify or repeal such provisions.

See 85 Opinions of the Attorney General 190, 195 (2000).

10 [95 Op. Att’y

2. Conaway v. Deane

In Deane, the Court of Appeals held that FL§2-201 does not

violate the Maryland Equal Rights Amendment10 or the Maryland

constitutional provision that guarantees equal protection and

substantive due process of law.11 The majority opinion held that the

statute was subject to rational basis review and that the statute was

plausibly related to the State’s interest in promoting procreation.

The majority acknowledged that the “legal landscape surrounding

the rights of homosexual persons is evolving,” with the trend toward

recognizing additional rights and protections. 401 Md. at 308-9.12

It also cautioned that its holdings did not diminish the authority of

the General Assembly to “grant and recognize for homosexual

persons civil unions or the right to marry a person of the same sex.”

Id. at 325. The Court did not address the question of recognition of

out-of-state same-sex marriages.

In a footnote, the Court stated that “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” as

an example of the “vital principle” that marriage is subject to the

police power of the State. Deane, 401 Md. at 304 n. 66. However,

the Court did not analyze whether recognition of a foreign same-sex

marriage would be repugnant to Maryland’s public policy.13

10

Maryland Declaration of Rights, Article 46.

11

Maryland Declaration of Rights, Article 24.

12

In a concurring and dissenting opinion, Judge Raker drew a

distinction between the right to marry and an entitlement to the rights of

marriage. 401 Md. at 326. In her opinion, she catalogued the many

benefits that marriage confers on married persons by operation of law. Id.

at 343-46. She concluded that the State had not demonstrated a rational

relationship between the State interest in procreation and stable child-

rearing and the denial of the benefits and privileges of marriage to same-

sex couples. Id. at 352. She would have held that the General Assembly

was required to craft at least a civil union or domestic partnership statute.

Id. at 352-53. Two dissenting judges argued that the strict scrutiny

standard under the Equal Rights Amendment should have been applied

and would have remanded the case to the trial court for further factual

development. Id. at 356, 421.

13

The Court noted that the case that it cited for this proposition had

(continued...)

Gen. 3] 11

C. Recognition of Out-of-State Marriages in Maryland

There are no formal prerequisites to recognition of an out-of-

state marriage.14 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 of the forum.” Henderson,

199 Md. at 458. This is often referred to as the principle of comity.

The Court of Appeals has explained the rationale for this rule:

The reason for this rule is that it is desirable

that there should be uniformity in the

recognition of the marital status, so that

persons legally married according to the laws

of one State will not be held to be living in

adultery in another State, and that children

13

(...continued)

been “discredited” for the particular application of that principle that it had

offered – whether to recognize an interracial marriage. See Henderson v.

Henderson, 199 Md. 449, 459, 87 A.2d 403 (1952) (stating that an

interracial marriage would not be recognized in Maryland, even if valid

elsewhere).

In other portions of its opinion, the Deane majority cited favorably

two cases in which a court declined to recognize a valid same-sex

marriage from another jurisdiction – Wilson v. Ake, 354 F.Supp.2d 1298

(M.D. Fla. 2005) and In re Kandu, 315 B.R. 123 (W.D. Wash. 2004). See

Deane, 401 Md. at 270-71, 279-81, 294, 313. However, those references

concerned whether homosexuality is a suspect class and whether there is

a fundamental right to same-sex marriage that would trigger strict scrutiny

review. Those references do not appear to augur how the Court of

Appeals would resolve the question you have posed.

14

Each circuit court has a “foreign marriage” record book in which

a certificate of an out-of-state marriage signed by the celebrant or a

certified copy of a record of such a marriage may be recorded. FL §2-502.

The statute defines a “foreign marriage” as one performed outside

Maryland in which one or both parties “were or are citizens of

[Maryland].” FL §2-502(a). However, the statute does not make

recordation of an out-of-state marriage a prerequisite to its recognition in

Maryland. Nor would a clerk’s ministerial action in recording a certificate

be conclusive as to whether the particular marriage is recognized in the

State. The foreign marriage book was apparently created as a convenience

to parties who desired to have an official record in Maryland of their out-

of-state marriage. See Chapter 69, Laws of Maryland 1912; see also

Annotated Code of Maryland (1924), Article 62, §§9, 17.

12 [95 Op. Att’y

begotten in lawful wedlock in one State will

not be held illegitimate in another.

Id. This rule is similar to that followed by many other states. See 52

Am. Jur. 2d Marriage §63 (2000 & 2009 Cum. Supp.); Grossman,

Resurrecting Comity: Revisiting the Problem of Non-Uniform

Marriage Laws, 84 Or. L. Rev. 433, 460-61 (2005).15 As noted in

Deane, this rule is subject to a “public policy” exception.

We shall discuss in greater detail the application of the

principle of comity under Maryland law to an out-of-state same-sex

marriage. However, we shall first review the possible impact of

federal law, and survey the answers developed in other states to

similar questions.

15

The First Restatement expresses a similar rule with somewhat

more emphasis on the public policy of the state(s) where the parties are

domiciled. See Restatement (First), Conflict of Laws, §§121, 131, 132.

The Second Restatement expresses a further variation on this rule:

(1) The validity of a marriage will be determined

by the local law of the state which, with respect to

the particular issue, has the most significant

relationship to the spouses and the marriage under

[general choice of law principles].

(2) A marriage which satisfies the requirements of

the state where the marriage was contracted will

everywhere be recognized as valid unless it

violates the strong public policy of another state

which had the most significant relationship to the

spouses and the marriage at the time of the

marriage.

Restatement (Second), Conflict of Laws, §283. See generally Grossman,

supra, 84 Or. L. Rev. at 472-77 (comparing Restatement versions).

Despite the growing acceptance of the “most significant relationship”

standard of the Second Restatement, Maryland courts have adhered to an

older standard, sometimes referred to as lex loci contractus (“law of the

place of the contract”), on choice of law issues concerning other forms of

contract, as well as marriage. See American Motorists Insurance Co. v.

ARTRA Group, Inc., 338 Md. 560, 659 A.2d 1295 (1995).

Gen. 3] 13

III

Federal Law Affecting Recognition

of Out-of-State Marriages

The Full Faith and Credit Clause of the federal Constitution

and a federal law known as the Defense of Marriage Act both

potentially affect a state’s recognition of out-of-state marriages.

A. Full Faith and Credit Clause

The Full Faith and Credit Clause of the United States

Constitution states:

Full Faith and Credit shall be given in each

State to the public Acts, Records, and judicial

Proceedings of every other State. And the

Congress may by general Laws prescribe the

Manner in which such Acts, Records, and

Proceedings shall be proved, and the Effect

thereof.

United States Constitution, Article IV, §1; see also 28 U.S.C. §1738

(full faith and credit for legislative acts and judicial proceedings).

The Full Faith and Credit Clause clearly requires one state to respect

a judgment rendered by a court of another state. Nevada v. Hall, 440

U.S. 410, 421 (1979). However, the constitutional provision does

not require a state to recognize or apply another state’s laws if doing

so would run contrary to its own “legitimate public policy.” Id. at

422. Thus, the Full Faith and Credit Clause would not dictate that

one state recognize and abide by the legislative judgments of another

state concerning the validity of a marriage if doing so would be

contrary to its own public policy.16

B. Federal Defense of Marriage Act

In the mid-1990s, Congress enacted the federal Defense of

Marriage Act in reaction to the possibility that a state might

16

While a state’s decision whether to issue a marriage license is not

entitled to the highest level of protection under the Full Faith and Credit

Clause, the dissolution of a marriage – a divorce – is a judgment that

receives special respect under that provision. See Williams v. North

Carolina, 317 U.S. 287 (1942).

14 [95 Op. Att’y

authorize same-sex marriage. See Pub. L. 104-199, 110 Stat. 2419

(September 21, 1996). That law addressed interstate recognition of

same-sex marriages and also established a general definition of

marriage – restricted to heterosexual couples – for purposes of

federal law.

1. Interstate Recognition of Same-Sex Marriages

With respect to effect of federal law on interstate recognition

of same-sex marriages the federal Defense of Marriage Act

provides:

No State, territory, or possession of the United

States, or Indian tribe, shall be required to

give effect to any public act, record, or

judicial proceeding of any State, territory,

possession or tribe respecting a relationship

between persons of the same sex that is treated

as a marriage under the laws of such other

State, territory, possession, or tribe, or a right

or claim arising from such relationship.

28 U.S.C. §1738C. In other words, there is no mandate under

federal law for one state to recognize a same-sex marriage formed

in another state. This provision has been held to be constitutional by

a federal district court. Wilson v. Ake, 354 F. Supp. 2d 1298, 1303

(M.D. Fla 2005) (rejecting constitutional challenges to Defense of

Marriage Act and holding that Florida was not required to recognize

Massachusetts same-sex marriage because it would conflict with

Florida’s public policy opposing same-sex marriage).

2. Definition of “Marriage” under Federal Law

The Defense of Marriage Act also created definitions of

“marriage” and “spouse” for purposes of federal law:

In determining the meaning of any Act of

Congress, or of any ruling, regulation, or

interpretation of the various administrative

bureaus and agencies of the United States, the

word “marriage” means only a legal union

between one man and one woman as husband

and wife, and the word “spouse” refers only to

a person of the opposite sex who is a husband

or a wife.

Gen. 3] 15

1 U.S.C. §7. The courts have rejected constitutional challenges to

this provision.17 In re Kandu, 315 B.R. 123 (W.D.Wash. 2004)

(rejecting constitutional challenges to Defense of Marriage Act and

holding that same-sex couple could not file joint bankruptcy

petition); Bishop v. Oklahoma, 447 F. Supp. 2d 1239 (N.D. Okla.

2006), rev’d in part on other grounds, 333 Fed. Appx. 361 (10 th Cir.

2009).

This definition does not directly concern one state’s

recognition of a same-sex marriage from another state under state

law. However, to the extent that a state law is linked to a federal law

or regulation, the federal definition of marriage may affect whether

or how an out-of-state same-sex marriage is recognized for purposes

of state law.

C. Summary

There is no requirement under federal law that the Maryland

courts recognize out-of-state same-sex marriages. Nor is there any

general federal prohibition against recognition of such marriages.

The federal constitution expresses a general principle that legal acts

recognized in one state will be respected by other states, subject to

a public policy exception, similar to the common law principle of

comity. The Defense of Marriage Act provides that one state need

not recognize a same-sex relationship established in another state as

a marriage and thus essentially defers to state law on that question.

That Act also limits marriage to heterosexual couples for federal

purposes and thus may affect recognition of out-of-state same-sex

marriages when Maryland law is linked to federal law.

17

Massachusetts has challenged the constitutionality of this

provision, arguing that it interferes with the state’s sovereign authority to

define marriage and requires that state to treat same-sex couples married

under Massachusetts law differently from married heterosexual couples.

The case is pending in federal district court. Massachusetts v. Department

of Health and Human Services, et al., Civil No. 1:09-11156 JLT.

16 [95 Op. Att’y

IV

Recognition of Out-of-State Same-Sex Marriages by Other

States

Your questions concern Maryland law. However, the same

questions have arisen in other states and the answers provided in

those jurisdictions are instructive, although not controlling, with

respect to the answer in Maryland.

Although recognition of out-of-state marriages has long been

a staple of choice-of-law treatises and case law, there was scant

discussion of the recognition of same-sex marriages prior to the mid-

1990s for the obvious reason that no state allowed such a marriage.18

The question whether a state, such as Maryland, that would not issue

a marriage license for a same-sex marriage, would recognize such a

marriage solemnized in another state became the subject of

discussion in the mid-1990s after a widely publicized decision of the

Hawaii Supreme Court. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).

In that case, a plurality of the court concluded that a statutory

limitation of marriage to heterosexual couples in Hawaii

presumptively violated the equal protection provision of the state

constitution; the court remanded the case to give the state an

opportunity to demonstrate a compelling interest for limiting

marriage to heterosexual couples. This led to speculation that same-

sex couples from around the country would soon be able to marry in

Hawaii and seek to have their unions recognized in their home

states. See, e.g., Hovermill, A Conflict of Law and Morals: The

Choice of Law Implications of Hawaii’s Recognition of Same-Sex

Marriages, 53 Md. L. Rev. 450 (1994); Note, In Sickness and in

Health, In Hawaii and Where Else?: Conflict of Laws and

Recognition of Same-Sex Marriages, 109 Harv. L. Rev. 2038 (1996).

18

A 1995 survey reported that no state or foreign country allowed

same-sex marriage at that time. Wardle, International Marriage and

Divorce Regulation and Recognition: A Survey, 29 Fam. L. Q. 497, 500

(1995). Even then, a treatise on conflict of laws observed that “[t]he

asserted rule that no recognition will be given to foreign marriages which

are not monogamous unions of one man and one woman for life can no

longer be accepted.” Scoles & Hay, Conflict of Laws (1984) at p. 441.

The treatise did not discuss recognition of same-sex marriages, but did

devote a number of pages to the possible recognition, at least for some

purposes, of foreign polygamous marriages that are valid in the

jurisdiction where contracted.

Gen. 3] 17

In reaction to Baehr, Congress passed the federal Defense of

Marriage Act19 and various states enacted similar state provisions,

presumably in anticipation of Hawaiian same-sex marriages.

However, that consequence did not materialize as the Hawaii

constitution was amended to authorize the state legislature to reserve

marriage for opposite-sex couples and the legislature later passed a

statute to that effect. Hawaii Constitution, Article I, §23; Haw. Rev.

Stat. §572-1. Accordingly, the question whether a state would be

called upon to recognize a same-sex marriage contracted in another

state again became an academic question.

The issue began to receive greater attention again in 2003

when the Massachusetts Supreme Judicial Court ruled that the

limitation of marriage to opposite-sex couples violated the equal

protection guarantee of the Massachusetts constitution. See

Goodridge v. Dept. of Public Health, 798 N.E.2d 941, 969 (Mass.

2003); see also Opinion of the Justices, 802 N.E.2d 565, 571 (Mass.

2004). Additional state statutes and constitutional provisions

precluding recognition of out-of-state same-sex marriages were

enacted in reaction to the Massachusetts decision.

Baehr, Goodridge, the Defense of Marriage Act, and the

various state statutes and constitutional provisions passed in reaction

to them, have spawned an ever-growing body of academic

commentary exploring their choice-of-law ramifications with respect

to same-sex marriages. See, e.g., Yarwood, Breaking Up is Hard to

Do: Mini-DOMA States, Migratory Same-Sex Marriage, Divorce,

and a Practical Solution to Property Division, 89 B.U. L .Rev. 1355

(2009);Wolff, Interest Analysis in Interjurisdictional Marriage

Disputes, 153 U. Penn. L. Rev. 2215 (2005); Koppelman, Interstate

Recognition of Same-Sex Marriages and Civil Unions: A Handbook

for Judges, 153 U. Penn. L. Rev. 2143 (2005); Grossman,

Resurrecting Comity: Revisiting the Problem of Non-Uniform

Marriage Laws, 84 Or. L. Rev. 433 (2005).

The legal landscape with respect to recognition of out-of-state

same-sex marriages is a patchwork. Only a few states have statutes

similar to FL §2-201 – i.e., that prohibit same-sex marriage, but that

do not explicitly address out-of-state marriages. Most states have

statutes that specifically prohibit same-sex marriage as well as

recognition of such marriages celebrated in other jurisdictions. The

few states that have authorized same-sex marriage presumably will

19

See Part III.B. above.

18 [95 Op. Att’y

recognize a same-sex marriage that is valid in another jurisdiction.

A small number of states do not allow for same-sex marriage under

their own laws, but have not explicitly barred recognition of such

marriages from other jurisdictions by statute. Each group of states

is discussed below.

A. States with Statutes Similar to FL §2-201

There are very few marriage statutes in the United States that

read similarly to FL §2-201. From our review, the only states that

currently have statutes with arguably similar language are Iowa

(“Only a marriage between a male and a female is valid”)20 and

Wyoming (“Marriage is a civil contract between a male and a female

person to which the consent of the parties capable of contracting is

essential”).21 Recently, the Iowa Supreme Court held that the Iowa

statute violated that state’s constitution,22 without specifically

construing the statute’s effect on recognition of out-of-state

marriages. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). We are

not aware of any case law in Iowa or Wyoming that concerns

whether such a statute bars recognition of valid out-of-state same-

sex marriages. Therefore, we can draw little insight into the

meaning of FL §2-201 from those parallel laws.23

20

Iowa Code Ann. §595.2.

21

Wyo. Stat. Ann. §20-1-101.

22

As indicated in Part II.B. above, the Court of Appeals of Maryland

reached the opposite conclusion with respect to FL §2-201.

23

As of early 1996, the North Carolina marriage statute contained

somewhat similar language: “The consent of a male and female person

who may lawfully marry ... shall be a valid and sufficient marriage...”

N.C.G.S. §51-1 (1996). The North Carolina Attorney General opined that

North Carolina could decline to recognize out-of-state same-sex

marriages, based upon that statute. Opinion of the North Carolina

Attorney General, 1996 WL 925102 (May 14, 1996). However, shortly

thereafter, the North Carolina legislature amended the state marriage law

to explicitly deny recognition of such marriages. See N.C.G.S. §51-1.2

(“Marriages ... performed outside of North Carolina between individuals

of the same gender are not valid in North Carolina”).

Gen. 3] 19

B. States with Laws that Prohibit Recognition

In a large majority of states – approximately 40 – the issue of

recognition has been resolved by constitutional amendments or

legislative enactments that explicitly bar recognition of out-of-state

same-sex marriages. See, e.g., Del. Code Ann. Tit. 13, §101(d) (“A

marriage obtained or recognized outside the State between persons

[of the same gender] shall not constitute a legal or valid marriage

within the State.”); Kan. Stat. Ann. §23-115 (“It is the strong public

policy of this state only to recognize as valid marriages from other

states that are between a man and a woman”); 23 Pa. Cons. Stat.

Ann. §1704 (“A marriage between persons of the same sex which

was entered into in another state or foreign jurisdiction, even if valid

where entered into, shall be void in this Commonwealth”); Va. Code

Ann. §20-45.2 (“Any marriage entered into by persons of the same

sex in another state or jurisdiction shall be void in all respects in

Virginia and any contractual rights created by such marriage shall be

void and unenforceable”); W.Va. Code Ann. §48-2-603 (“A public

act ...of any other state ... respecting a relationship between persons

of the same sex that is treated as marriage under the laws of the other

state ... shall not be given effect by this state”); see generally

Koppelman, supra, 153 U. Penn. L. Rev. at 2165-94 (2005)

(compiling state laws concerning recognition of out-of-state same-

sex marriages). 24 Many of these laws were enacted in reaction to

either the Baehr or the Goodridge decisions.

To date, provisions prohibiting recognition of out-of-state

same-sex marriages have been upheld against federal constitutional

challenge. See Citizens for Equal Protection v. Bruning, 455 F.3d

859 (8 th Cir. 2006) (upholding Nebraska constitutional provision that

precludes recognition of out-of-state same-sex marriages); Wilson v.

Ake, 354 F. Supp.2d 1298 (M.D. Fla. 2005) (holding that Florida

statute precluding recognition of out-of-state same-sex marriages is

constitutional and upholding refusal of Florida officials to recognize

Massachusetts same-sex marriage).

24

An appendix to the Koppelman article surveyed the state laws

concerning recognition of out-of-state same-sex marriages shortly after the

Goodridge decision. Approximately 37 states had statutory or

constitutional provisions that clearly barred recognition of out-of-state

same-sex marriages. Since that time, Wisconsin and South Dakota have

enacted constitutional provisions for that purpose. Wisconsin

Constitution, Article 13, §13; South Dakota Constitution, Article XXI, §9.

In addition, some of the states with statutory prohibitions against

recognition have added constitutional provisions to the same effect.

20 [95 Op. Att’y

Unsurprisingly, when the question of recognition of an out-of-

state same-sex marriage has arisen in such a state, Attorneys General

in those states have concluded that the state would decline to

recognize such marriages. See, e.g., Opinion of the Michigan

Attorney General No. 7160, 2004 WL 2096457 (September 14,

2004) (Massachusetts same-sex marriage would not be recognized

in Michigan); Opinion of the Louisiana Attorney General, No. 06-

0325, 2007 WL 1438453 (April 18, 2007) (Louisiana not required

to recognize adoption by same-sex couple in a state that permits

same-sex marriages); Opinion of the Idaho Attorney General No. 06-

1, 2006 WL 467700 (February 8, 2006) at *8 (Full Faith and Credit

Clause would not require Idaho to recognize same-sex marriage

contrary to public policy expressed in its statute); Opinion of the

Alabama Attorney General 2000-129, 2000 WL 33310632 (April 20,

2000) (Alabama not required to recognize Vermont same-sex civil

union). Nevertheless, there may be circumstances in which a court

in such a state may accord some effect, however indirect, to an out-

of-state same-sex union.25

C. States That Allow Same-Sex Marriage

The states that permit same-sex marriage under their own laws

presumably would ordinarily recognize a same-sex marriage validly

contracted under the laws of another state. For example, after the

Connecticut Supreme Court held that the state’s ban on same-sex

marriage violated equal protection rights under that state’s

constitution, Kerrigan v. Commissioner of Public Health, 957 A.2d

407 (Conn. 2008), the Connecticut Attorney General opined that out-

of-state same-sex marriages would be recognized in Connecticut.

25

An example is Miller-Jenkins v.Miller-Jenkins, 637 S.E.2d 330

(Va. App. 2006). In that case, two women had entered into a civil union

under Vermont law and one of the women had a child as a result of

artificial insemination. The woman who had given birth later sought to

dissolve the civil union in a Vermont court, which issued a temporary

order concerning custody and visitation. In the meantime, she had moved

to Virginia with the child where she sought a declaratory judgment that

she was the sole parent. The Virginia Court of Appeals held that the trial

court was obligated to give full faith and credit to the Vermont custody

and visitation order pursuant to the federal Parental Kidnapping

Prevention Act; the court stated that it was not addressing recognition of

the Vermont civil union under Virginia law. The Virginia Supreme Court

later affirmed the Court of Appeals decision on procedural grounds

without reaching the substantive issue. Miller-Jenkins v. Miller-Jenkins,

661 S.E.2d 822 (Va. 2008).

Gen. 3] 21

Opinion of the Connecticut Attorney General No. 2008-019, 2008

WL 4760988 (October 28, 2008) at *1.26

D. States Without a Statute Allowing or Proscribing Same-Sex

Marriage

Four states – Rhode Island, New Jersey, New Mexico, and

New York – have no statute that specifically precludes same-sex

unions or that explicitly addresses recognition of out-of-state same-

sex marriages, although all currently do not issue licenses for same-

sex marriages. Recently, there has been substantial attention in three

of those states to the question of recognition of same-sex marriages

validly contracted in another jurisdiction, perhaps driven by the

relative proximity of those three states to Massachusetts.

1. Rhode Island

Attorney General opinions

In 2004, the Rhode Island Attorney General opined that a party

to a valid same-sex marriage in Massachusetts would be eligible to

receive “spouse’s benefits” under a Rhode Island statute concerning

teacher retirement benefits. Letter of Rhode Island Attorney General

Patrick C. Lynch to General Treasurer Paul J. Tavares (October 19,

2004). 27 The brief opinion was based on the gender-neutral

definition of “spouse” in the retirement statute.

26

Prior to that decision, the Connecticut Attorney General had

opined that “same-sex marriages performed under laws of any other State

violate Connecticut’s expressly articulated public policy and are not

required by the Full Faith and Credit Clause of the United States

Constitution to be recognized here.” Opinion of the Connecticut Attorney

General No. 2005-024, 2005 WL 2293060 (September 20, 2005) at *1.

However, the Attorney General also concluded that a same-sex couple

married under the laws of another state could obtain a civil union under

Connecticut law. Id. At that time, Connecticut law stated: “The General

Assembly finds that ... the current public policy of the state of Connecticut

is now limited to a marriage between a man and a woman.” Conn. Gen.

State. Ann. §45a-727a(4). The Connecticut legislature deleted that

provision from its code in 2009.

27

The two Rhode Island Attorney General opinions discussed here

are apparently not available through Westlaw.

22 [95 Op. Att’y

In 2007, the Rhode Island Attorney General reached a similar

conclusion and elaborated on the justification for recognizing

Massachusetts same-sex marriages in an opinion concerning whether

Rhode Island’s higher education agency should treat an employee

who is a party to such a marriage as a married person. Letter of

Rhode Island Attorney General Patrick C. Lynch to Commissioner

Jack R. Warner (February 20, 2007). The Rhode Island Attorney

General reasoned that the answer to that question depended, under

both the Full Faith and Credit Clause and common law comity

principles, on whether recognition would be contrary to the public

policy of Rhode Island. He noted that Rhode Island does not have

any statutes prohibiting same-sex marriage and that neither the

Rhode Island legislature nor its courts had expressed disagreement

with his 2004 opinion. Opinion at p. 5 & n. 8 (noting that the only

marriages declared to be against Rhode Island public policy are

bigamous marriages, incestuous marriages, and marriages between

two mentally incompetent persons). Finally, he pointed to Rhode

Island statutes prohibiting discrimination on the basis of sexual

orientation, recognizing de facto parental status for same-sex

partners, and extending health insurance benefits to domestic

partners.

State Supreme Court decision

However, later that same year, the Rhode Island Supreme

Court gave a different answer to a similar question. In Chambers v.

Ormiston, 935 A.2d 956 (R.I. 2007), that court considered whether

the state’s family court could recognize a Massachusetts same-sex

marriage for the purpose of entertaining a divorce petition from that

couple. In a 3-2 decision, the court held that the family court could

not entertain such a petition, reasoning that the legislature that had

created the family court in the early 1960s and given it jurisdiction

to grant divorces would have understood the term “marriage” to

mean a heterosexual union. The court relied upon contemporary

dictionary definitions of marriage, as well as gender related

references (“male party”, “female party”) in related statutes. The

dissenting judges would have recognized the Massachusetts

marriage for the limited purpose of entertaining the divorce petition

without determining whether Rhode Island law would recognize it

as a valid marriage for other purposes. The dissenting judges

suggested that resolution of the general issue whether same-sex

marriage is strongly against the public policy of Rhode Island

“resides in the State House and not the courthouse.” 935 A.2d at

974.

Gen. 3] 23

2. New Jersey

State Supreme Court decision

In Lewis v. Harris, 908 A.2d 196 (N.J. 2006), the New Jersey

Supreme Court ruled that same-sex couples are entitled, under the

equal protection principles of that state’s constitution, to the same

privileges and benefits as are accorded to heterosexual couples,

whether or not the same-sex relationship is denominated

“marriage.” 28 The New Jersey legislature enacted a civil union law

to implement that decision. 2006 N.J. Laws c. 103.

Attorney General opinion

After the Lewis decision and the enactment of the state’s civil

union law, the New Jersey Registrar of Vital Statistics asked the

New Jersey Attorney General how the state would recognize same-

sex relationships sanctioned under the laws of other states or

countries. The New Jersey Attorney General offered a functional

test that related the nature of the rights granted in the other

jurisdiction to the types of same-sex relationships recognized under

New Jersey law. Opinion of the New Jersey Attorney General 3-

2007, 2007 WL 749807 (February 16, 2007). Accordingly, same-

28

Prior to the Lewis decision, the New Jersey Tax Court had

considered the question of recognition for an out-of-state same-sex

marriage. Hennefeld v. Township of Montclair, 22 N.J. Tax 166 (N.J. Tax

Ct. 2005). In that case, one member of a same-sex New Jersey couple had

been disabled as a result of military service. Consequently, they received

a 50% disabled veteran’s exemption from real estate taxes based upon the

disabled individual’s portion of the taxes of their joint residence. They

subsequently established a civil union in Vermont and later were legally

married under Canadian law in Niagara Falls, Ontario. They then filed an

application with the local tax assessor in New Jersey to qualify for a 100%

disabled veteran’s tax exemption, which the assessor typically awarded to

married couples.

Based largely on the fact that New Jersey law does not provide for

same-sex marriage, the New Jersey Tax Court held that the couple’s

Canadian marriage would not be recognized in New Jersey. It also held

that New Jersey was not required by the Full Faith and Credit clause of the

federal Constitution to give full effect to the couple’s Vermont civil union.

However, the court construed the recently-passed New Jersey Domestic

Partnership Act to permit the award of an exemption available to a

married couple – such as the 100% exemption sought by the plaintiffs –

to a same-sex couple.

24 [95 Op. Att’y

sex marriages solemnized under the laws of other states or countries

would be treated as civil unions in New Jersey, but the parties would

not be required to obtain a New Jersey civil union license. The New

Jersey Attorney General reasoned that “[r]ecognizing same-sex

marriages established under Massachusetts law as civil unions in

New Jersey both gives substantial effect to the Massachusetts

relationships by providing all of the rights and obligations of

marriage and comports with the intent of the New Jersey Legislature

to provide those rights to same-sex couples through a civil union.”

Id. at p. 7 n.1.

3. New Mexico

Attorney General advisory letter

After the Goodridge decision, the New Mexico Attorney

General was asked whether a county clerk could issue a marriage

license to a same-sex couple. The Attorney General answered the

question in the negative in a brief advisory letter. See 2004 WL

2019901 (February 20, 2004). Although no statute in New Mexico

explicitly limits marriage to heterosexual couples, the marriage

statutes use the terms “husband” and “wife” and the state legislature

has adopted a marriage application form that presupposes a male and

female applicant. Accordingly, the New Mexico Attorney General

concluded that New Mexico law did not allow for same-sex

marriage. The advisory letter did not address whether that state

would recognize same-sex marriages celebrated in other

jurisdictions. To our knowledge, there are no reported court

decisions in New Mexico concerning recognition of an out-of-state

same-sex marriage.

4. New York

As in the other states outlined above, no statute in New York

expressly permits or prohibits same-sex marriage, but the state law

has been interpreted to limit marriage to opposite-sex couples. The

question of recognition of out-of-state same-sex marriages has been

the subject of an Attorney General opinion, as well as a number of

appellate decisions.

Attorney General opinion

In 2004, the New York Attorney General was asked whether

there were any circumstances under which a same-sex marriage

would be valid in New York. 2004 N.Y. Op. Atty. Gen. 1, 2004 WL

Gen. 3] 25

551537 (March 3, 2004). The New York Attorney General reasoned

that the use of gender-specific terms (e.g., “groom”, “bride”,

“husband”, “wife”, “himself”, “herself”) in New York statutes

concerning marriage evidenced a legislative intent not to extend

marriage to same-sex couples, but opined that this conclusion raised

constitutional questions best resolved by the courts. (The Court of

Appeals of New York, that state’s highest court, later agreed with

the Attorney General’s statutory interpretation and held that the

limitation of marriage to heterosexual couples was constitutional.

See Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006)).

After concluding in the 2004 opinion that marriage was not

available under New York law to same-sex couples, the New York

Attorney General then proceeded to deal with the separate question

of whether New York law would recognize a same-sex marriage

validly performed in another jurisdiction. The Attorney General

stated that New York common law generally provides for the

recognition of valid, out-of-state marriages, regardless of whether

the union would be permitted under New York law. 2004 WL

551537 at *11. “The only exceptions to this rule occur where

recognition has been expressly prohibited by statute, or the union is

abhorrent to New York’s public policy.... The abhorrence exception

is so narrow that only marriages involving ‘polygamy or incest in a

degree regarded generally as within the prohibition of natural law’

have been deemed abhorrent by the courts.” Id. (citations omitted).

The opinion noted that the only New York court to have addressed

the question of recognition of a same-sex foreign union had held that

a party to a Vermont civil union must be treated as a “spouse”

eligible to bring a wrongful death action. See Langan v. St.

Vincent’s Hospital, 765 N.Y.S.2d 411 (Sup. Ct. 2003). The opinion

concluded that “[c]onsistent with the holding of the only state court

to have ruled on this question, New York law presumptively requires

that parties to such unions must be treated as spouses for purposes

of New York law.” Id. at *12.29

29

Subsequent to the Attorney General opinion, Langan was

reversed. Langan v. St. Vincent’s Hospital, 802 N.Y.S. 2d 476 (App. Div.

2005), appeal dismissed, 850 N.E.2d 672 (2006); see also Langan v. State

Farm Fire & Casualty, 849 N.Y.S.2d 105 (2007) (holding that partner to

a Vermont civil union was not a surviving “spouse” for purposes of the

workers’ compensation law); see also Valentine v. American Airlines, 791

N.Y.S.2d 217 (App. Div. 2005) (registered same-sex domestic partner not

a “surviving spouse” for purposes of worker’s compensation law).

26 [95 Op. Att’y

State court decisions

Since the New York Attorney General’s opinion, several cases

concerning recognition of out-of-state same-sex marriages by state

or local officials have been litigated in New York courts. In one

case, a governmental body refused to recognize the marriage and

denied certain benefits; the intermediate appellate court held that the

marriage should have been recognized and the benefits provided. In

three other cases, government officials sought to affirmatively

recognize such marriages and were challenged in taxpayer suits; the

appellate courts upheld the actions of the officials. Thus, in each

instance the appellate court ruled in favor of the party favoring

recognition of such marriages. However, the state’s highest court

has not ruled definitively on whether out-of-state same-sex

marriages are recognized in New York generally.

In Martinez v. County of Monroe, 850 N.Y.S.2d 740 (App.

Div. 2008), an employee of a New York community college married

her same-sex partner in Ontario, where the marriage was valid under

Canadian law. She then applied to the community college for

spousal health care benefits for her partner, but the application was

denied. A panel of the state’s intermediate appellate court held that

the marriage was entitled to recognition under New York law. The

court stated that New York law recognized marriages solemnized

outside its borders with two exceptions: (1) marriages prohibited by

the “positive law” of New York; and (2) marriages prohibited by

“natural law.” Because no statute expressly forbade recognition of

out-of-state same-sex marriages, the first exception was not

applicable. The court further held that the “natural law” exception

was limited to polygamy, incest, and marriages “offensive to the

public sense of morality to a degree regarded generally with

abhorrence”, but the exception did not apply to same-sex marriages.

The court concluded that, until the state legislature enacted a statute

prohibiting recognition of same-sex marriages solemnized outside

New York, such marriages were entitled to recognition in that state.

The state’s highest court recently considered recognition of

out-of-state same-sex marriages, but was able to decide the

controversies before it without ruling on the general question of

recognition. Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009).

Godfrey concerned two separate directives by government officials

calling for recognition of out-of-state same-sex marriages. In one,

the state’s civil service department announced that it would

recognize lawful out-of-state same-sex marriages for the purpose of

extending health benefits to the spouses of state employees who

Gen. 3] 27

were parties to such marriages. Plaintiffs sought a declaratory

judgment that this action was contrary to New York law. In the

other, a county executive issued an executive order directing county

officials under his jurisdiction “to recognize same sex marriages

lawfully entered into outside the State of New York in the same

manner as they currently recognize opposite sex marriages for the

purpose of extending and administering all rights and benefits

belonging to these couples, to the maximum extent permitted by

law.” Plaintiffs brought a taxpayer suit, challenging the order as

inconsistent with New York law.

The New York Court of Appeals declined to decide the

question whether New York law allows generally for recognition of

out-of-state same-sex marriages. Rather, it held that the civil

service commission had not abused its discretion under the pertinent

statute in deciding to extend benefits to the same-sex spouses of

employees. With respect to the county executive’s directive, the

court noted that no county funds had been expended that would not

have been expended in the absence of the order and thus could not

be the basis for a taxpayer suit under New York law. The majority

expressed the hope that the state legislature “will address this

controversy; that it will listen and decide as wisely as it can; and that

those unhappy with the result – as many undoubtedly will be – will

respect it as people in a democratic state should respect choices

democratically made.” 2009 WL 3849908 at *8 (internal citation

omitted). Three concurring judges would have decided the broader

question, reasoning that the majority’s rationale could result in “an

unworkable pattern of conflicting executive and administrative

directives promulgated pursuant to the individual discretion of each

agency head.” Id.30 See also Godfrey v. DiNapoli, 866 N.Y.S. 2d

844 (Sup.Ct. 2008) (upholding decision of state comptroller to

recognize Canadian same-sex marriages for purposes of determining

spousal retirement benefits); Golden v. Patterson, 877 N.Y.S.2d 822,

830 (Sup.Ct. 2008) (holding that Governor’s office directive to

executive branch agencies concerning recognition of out-of-state

same-sex marriages did not exceed executive authority as it deferred

to statutes and controlling court decisions on the subject).31

30

The New York legislature recently rejected a bill to legalize same-

sex marriage in that state. Peters, New York State Senate votes down gay

marriage bill, New York Times (December 3, 2009).

31

The directive of the New York Governor’s office is described in

(continued...)

28 [95 Op. Att’y

In the context of divorce actions, lower courts in New York

have asserted jurisdiction to dissolve same-sex marriages contracted

in other states. See, e.g., C.M. v. C.C., 867 N.Y.S. 2d 884 (Sup. Ct.

2008) (finding jurisdiction to consider divorce of a same-sex couple

who had been married in Massachusetts); Beth R. v. Donna M., 853

N.Y.S.2d 501 (Sup. Ct. 2008) (recognizing Canadian same-sex

marriage for purposes of considering divorce complaint); but cf.

B.S. v. F.B., 883 N.Y.S. 2d 458 (Sup. Ct. 2009) (dismissing divorce

petition because Vermont civil union could not be treated as

marriage). We are not aware whether recognition in this context has

yet been considered by the state’s appellate courts.

E. Summary

In the vast majority of states, the question of recognition of

out-of-state same-sex marriages is relatively straightforward. Either

state law clearly forbids recognition or state law allows same-sex

marriage and would presumably recognize such a marriage from

another state. The remaining states – Wyoming, which has a statute

similar to Maryland, and the four states without a statute on same-

sex marriage – illustrate several possible responses to the question

of recognition of out-of-state same-sex marriages, but have not

arrived at a consensus that suggests a particular answer in Maryland.

Rhode Island does not recognize an out-of-state same-sex

marriage, at least for purposes of granting divorces, according to the

decision of the state’s highest court. New Jersey recognizes a same-

sex marriage from another state as a civil union rather than a

marriage, according to the New Jersey Attorney General. Lower

courts in New York have recognized same-sex marriages from other

states for the purpose of granting a divorce and the appellate courts

have upheld the discretion of executive branch officials to recognize

same-sex marriages for specific purposes; however, neither New

York’s highest court nor its legislature has definitively answered

whether that state recognizes out-of-state same-sex marriages. It is

not clear whether New Mexico will, or will not, recognize an out-of-

state same-sex union. Wyoming has similarly been silent on the

question.

31

(...continued)

greater detail in Part VI.B. of this opinion.

Gen. 3] 29

V

Whether the Court of Appeals

Would Recognize a Same-Sex Marriage

We are not aware of any case in Maryland that directly

addresses recognition of an out-of-state same-sex marriage that is

valid in the location in which it was celebrated. 32 Without any

specific precedent to guide us, we review the general principles

concerning recognition of out-of-state marriages employed by

Maryland courts.

A. General Rule of Recognition Subject to Public Policy

Exception

As summarized in Part II.C. of this opinion, Maryland courts

follow the general rule that a marriage that is valid in the jurisdiction

where it is contracted is valid in Maryland “unless it is contrary to

the public policy of [Maryland].” Henderson, 199 Md. At 458.33

32

The Circuit Court for Baltimore County has held that its equity

jurisdiction to annul a marriage under FL §1-201(a)(3) does not

encompass a complaint to annul a Vermont same-sex civil union. Lewis

v. Smith, Case No. C-07-13986 (Cir.Ct. Balto. Co. March 28, 2008). The

circuit court reasoned that the civil union was not a marriage under

Vermont law, which distinguishes civil unions from marriages, or under

Maryland law, citing FL §2-201 and the Deane case. While the court’s

discussion of FL §2-201 and Deane might be read to imply that an out-of-

state same-sex marriage would also not be recognized in Maryland, the

case before it clearly did not involve an out-of-state marriage and, as noted

in Part II.B. above, the Court of Appeals did not address the question of

recognition of out-of-state same-sex marriages in Deane.

Prior to Deane, a 1993 opinion by a master for the Howard County

Circuit Court analyzed in some detail the State law concerning marriage

in considering whether to annul a marriage contracted by two female

Maryland residents in Virginia during the 1980s. See Maryland Family

Law Monthly Supplement (May 1993) at pp. 37-44. However, it appeared

that the marriage was prohibited by the law of Virginia at the time it was

contracted. Thus, that case did not concern recognition of a marriage valid

in the place of celebration.

33

In one passage the Henderson court describes the Maryland public

policy exception as applying to marriages that are “contrary” to the public

policy of Maryland; in another, it appears to refer to a public policy

(continued...)

30 [95 Op. Att’y

This rule is based on the principle of comity, by which one state

accommodates its own law to the law of another jurisdiction that is

pertinent to a particular transaction or event. In the context of

recognition of marriages, it presupposes that there are significant

variations among states in the requirements for a valid marriage;

otherwise, there would be no need for such a principle. The utility

of the principle is based on the practical observation that “it would

be ridiculous to have people’s marital status blink on and off like a

strobe light” as they traveled about the country. Koppelman, supra,

153 U. Penn. L. Rev. at 2155; see also Scoles & Hay, Conflict of

Laws (1984) at p. 429 (“Refusal to recognize the validity of a

foreign marriage ... tends to render uncertain one of the most

important of human relations, a relationship in which certainty is

surely as imperatively demanded as in commercial transactions”).

However, the principle of comity does not require that a

jurisdiction cede all its policy preferences to another jurisdiction

simply because someone has crossed a state line. The principle of

comity is “neither a matter of absolute obligation, on the one hand,

nor of mere courtesy and good will, upon the other.” Aleem v.

Aleem, 404 Md. 404, 413, 947 A.2d 489 (2008) (holding that divorce

obtained in Pakistan pursuant to civil analog of Islamic law would

not be recognized because it was contrary to Maryland public policy

expressed in Equal Rights Amendment). The public policy

exception attempts to distinguish those prerequisites central to the

state’s conception of the institution of marriage from regulations that

may be important but less critical. Applying the public policy

exception is not a simple exercise and the answer with respect to a

particular requirement may evolve over time. Cf. Kramer v. Bally

Park, 311 Md. 387, 535 A.2d 466 (1988) (in deciding whether to

recognize an out-of-state debt that arguably could not have been

33

(...continued)

exception in stating generally that a state is not bound to give effect to

marriages “repugnant” to its own laws and policies. Henderson, 199 Md.

at 458-59. We attach no significance to the Court’s use of these different

terms. What is clear from Henderson and the other cases cited in the text

is that the public policy exception is a limited exception to the general rule

that a foreign marriage need not satisfy all the prerequisites of Maryland

law to be valid in Maryland.

Gen. 3] 31

contracted in Maryland, the Court reviewed changes in Maryland

law to assess public policy exception).34

B. The Public Policy Exception in Maryland

More than a century ago, the Court of Appeals elaborated on

the public policy exception to the general rule of recognition of out-

of-state marriages, quoting at length from a Tennessee case.

Jackson v. Jackson, 82 Md. 17, 29-30 33 A. 317 (1895). Under that

formulation, the exception encompasses two categories:

(1) marriages that are “contrary to the

law of nature as generally recognized in

Christian countries”; and

(2) certain marriages prohibited by

statute – in particular, statutes relating

to “the morals and good order of

society.”

As examples of the first category – i.e., marriages contrary to the law

of nature – the Court listed polygamous marriages and incestuous

marriages involving either the direct line of consanguinity or

brothers and sisters. As to the second category, the Court noted that

not all statutory limitations in Maryland law would trigger the public

policy exception – for example, statutory provisions relating to

“form and ceremony” would not.

As an example of a statute that would trigger the public

policy exception, the Jackson Court cited a Maryland law that

forbade interracial marriages – a prohibition enforced by criminal

penalties. Id. at 30; see also Henderson, 199 Md. at 459. The

Maryland statutes criminalizing interracial marriage were repealed

shortly before the Supreme Court declared unconstitutional a similar

34

In Kramer, a Maryland resident wrote a bad check to cover a

gambling debt incurred at a New Jersey casino. When the casino sued

Kramer in Maryland, he argued that Maryland’s public policy against

gambling would override the general choice-of-law principle under which

Maryland courts would enforce a contract valid under the laws of another

state – i.e., New Jersey. Assuming for the sake of argument that the

contract would be illegal under Maryland law, the Court of Appeals traced

the development of various forms of legalized gambling in Maryland and

held that Maryland’s public policy against enforcement of gambling debts

was not so strong as to preclude recognition of the New Jersey contract.

32 [95 Op. Att’y

prohibition in Virginia. See Chapter 6, §1, Laws of Maryland 1967;

Loving v. Virginia, 388 U.S. 1 (1967). However, the public policy

exception to the general rule of recognition of out-of-state marriages

may still pertain to other types of out-of-state marriages. Deane, 401

Md. at 304 n.66.

Two decades after Jackson outlined the public policy

exception, the Court of Appeals considered its application in a case

involving an out-of-state marriage that would have been prohibited

in Maryland under the statute limiting marriages between related

individuals. Fensterwald v. Burk, 129 Md. 131, 98 A. 358 (1916).

That case arose out of an estate contest between a nephew and a

niece of the decedent. It was alleged that, to enhance the prospects

for her inheritance, the niece had persuaded the uncle to marry her

and, to avoid the prohibition in Maryland against uncle-niece

marriages,35 to travel to Rhode Island for the wedding.36 After the

uncle died, the nephew sought an order that the marriage be declared

null and void as contrary to the law of Maryland. After quoting at

length from Jackson on the general rule of recognition of out-of-

state marriages and the public policy exception, the Court concluded

that the marriage should be recognized. It reasoned that the marriage

was not incestuous “according to the generally accepted opinion of

Christendom” and therefore not contrary to natural law. Moreover,

prior Maryland case law had characterized uncle-niece marriages as

“voidable” rather than “void”; thus, the statutory prohibition did not

place it in the category of marriages that would never be recognized.

Similarly, the courts have held that the fact that a Maryland

statute requires a marriage ceremony and does not allow for common

law marriages would not preclude recognition of a common law

marriage contracted in a state that allows for such marriages. See,

e.g., Henderson, 199 Md. at 459.

From this limited case law applying the public policy

exception, it appears that the analysis begins, but does not end, with

35

That prohibition currently appears in FL §2-202(c)(1)(xi), (xii).

36

Like Maryland law, a Rhode Island statute forbade a marriage

between a niece and an uncle. However, a religious exception to that

statute recognized the validity of a Jewish marriage of an uncle and niece,

if permitted by Jewish law. That exception was apparently invoked by the

niece and uncle in Fensterwald. The Maryland court declined to hold the

Rhode Island statute unconstitutional. 129 Md. at 137.

Gen. 3] 33

statutes governing marriage in Maryland. In discerning whether a

particular limitation triggers the public policy exception,

consideration must also be given to the State’s criminal law and

other statutes regulating the conduct of couples. Changes in those

laws may signal a change in the State’s public policy that affects

application of the public policy exception. In addition, consideration

must be given as to whether the type of marriage is within the same

category as polygamous and incestuous marriages.

C. Discerning the Current Public Policy of Maryland

1. FL §2-201

The Maryland statute that most directly speaks to same-sex

marriage is FL §2-201. It could be argued that this statute, which

states simply that “[o]nly a marriage between a man and a woman is

valid in this State,” broadly prohibits any recognition of same-sex

marriage in Maryland. After all, it does not say that only a

heterosexual couple may obtain a marriage license in Maryland or be

joined in a marriage ceremony in the State. Rather, it states that only

such a monogamous heterosexual marriage is “valid” in the State.

It would not be wholly unreasonable to conclude that the statute

itself precludes recognition of an out-of-state same-sex marriage.

On the other hand, the vast majority of states that have enacted

statutes or constitutional provisions prohibiting same-sex marriage

have used language that much more clearly addresses out-of-state

same-sex marriages. See Hovermill, supra, 53 Md. L. Rev. at 487-

88 (arguing that statutes should be explicit to express a strong public

policy against recognition of an out-of-state marriage). Furthermore,

the term “valid” can be a term of art that does not itself determine

whether an out-of-state marriage would be recognized.37

37

A law review article that pre-dated the enactment of FL §2-

201categorized various types of marriages with respect to Maryland law

as “valid,” “voidable,” or “totally void.” Strahorn, Void and Voidable

Marriages in Maryland and their Annulment, 2 Md. L. Rev. 211 (1938).

The term “valid” was used to denote a marriage “that meets all the

requirements and encounters none of the impediments so that it can

withstand both direct and collateral attack.” Id. The article noted that, of

the marriages that were not “valid” in Maryland – i.e., those that were

either “totally void” or “voidable” – State courts would recognize out-of-

state marriages that fell within the “voidable” category under Maryland

law and that were valid in the place of celebration. This may suggest that

the term “valid” is not determinative of application of the public policy

(continued...)

34 [95 Op. Att’y

It is unclear from the text of FL §2-201 whether the statute

was intended to address recognition of out-of-state marriages. As

noted above, at the time the statute was enacted in 1973 no

jurisdictions allowed same-sex marriage. There is no extant

legislative history that indicates what prompted the General

Assembly to enact this statute. However, the historical context may

offer a clue. It appears that, during the early 1970s, same-sex

couples had attempted to obtain marriage licenses in several states,

arguing that there was no express statutory prohibition against the

issuance of a license to such a couple in those states. See, e.g.,

Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974); Jones v.

Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973); Baker v. Nelson,

191 N.W.2d 185 (Minn. 1971); see also Note, The Legality of

Homosexual Marriage, 82 Yale L.J. 573 (1973) (analyzing same-sex

marriage with respect to equal protection and proposed equal rights

amendment).38 An Attorney General opinion issued a year before

37

(...continued)

exception. See also Grossman, supra, 84 Or. L. Rev. at 447 & n. 70, 478

(suggesting that the fact that certain state statutes such as FL §2-201 that

bar same-sex marriage but do not classify such marriages as “void” leaves

open the possibility that out-of-state marriages would be recognized).

38

In Baker, two men had sought a marriage license in Minnesota,

arguing that there was no express statutory provision in Minnesota against

issuing a license to a same-sex couple. The Minnesota Supreme Court

rejected that contention, as well as an argument that such a prohibition

would be unconstitutional. Baker v. Nelson, 191 N.W.2d 185 (Minn.

1971). The appeal of the constitutional issue to the United States Supreme

Court was later dismissed “for want of a substantial federal question.”

Baker v. Nelson, 409 U.S. 810 (1972).

The continuing significance of the Supreme Court’s disposition of

Baker has been the subject of some debate. Compare Lockyer v. City and

County of San Francisco, 95 P.2d 459, 503-4 (Cal. 2004) (Kennard, J.,

concurring and dissenting) (Baker remains controlling precedent on

federal constitutional issues) and Wilson v. Ake, 354 F.Supp.2d 1298,

1305 (M.D. Fla. 2005 (“Baker v. Nelson is binding precedent”) with

Hernandez v. Robles, 855 N.E.2d 1, 9 (N.Y. 2006) (rejecting argument

that Baker controls resolution of constitutional issues) and In re Kandu,

315 B.R. 123, 138 (W.D. Wash. 2004) (“Baker is not binding precedent”).

The case has also been a subject of questioning at recent Supreme Court

confirmation hearings. See New York Times, Transcript - Sotomayor

Confirmation Hearings – Day 3 (July 16, 2009), available at

<http://www.nytimes.com/2009/07/15/us/politics/15confirm-text.html?

pagewanted=62>.

Gen. 3] 35

the predecessor of FL §2-201 was enacted indicated that “an

increasing number of persons of the same sex have been seeking

marriage licenses...” 57 Opinions of the Attorney General 71

(1972). It seems quite likely that the Legislature enacted the statute

simply to forestall the type of challenge to Maryland’s practice in

issuing marriage licenses that had been brought in Minnesota and

other states.

It would not be until 1993 that a state court decision – Baehr

– raised the possibility that a state would authorize a valid same-sex

marriage that might possibly migrate to Maryland.39 After the Baehr

decision, there were repeated efforts in the General Assembly to

amend FL §2-201 to include language similar to that in the laws of

other states that prohibited recognition of such marriages. Those

bills would have amended FL §2-201 to state explicitly that “[a]

marriage between two individuals of the same sex that is validly

entered into in another state or in a foreign country is not valid in

this State.” House Bill 1268 (1996); House Bill 398 (1997); Senate

Bill 565 (1998); House Bill 1128 (1999); House Bill 531 (2001). All

of those bills failed in the House Judiciary Committee.40

The efforts to amend FL §2-201 were redoubled after the

2003 Goodridge decision authorizing same-sex marriage in

Massachusetts. One of those bills resulted in this Office considering

the question of recognition of out-of-state same-sex marriages six

years ago.

2. 2004 Advice Letter

In early 2004, a proposal was made in the General Assembly

to amend the Maryland Constitution to incorporate the language of

FL §2-201 barring same-sex marriage in an amendment to the State

39

By early 1996, Ms. Baehr and her partner had moved from Hawaii

to Baltimore. See L. Denniston, Gay couple’s final frontier; same-sex

marriage: two women who applied for a marriage license in Hawaii and

now live in Baltimore helped begin a new quest in the gay-rights

movement, Baltimore Sun p.1A (February 26, 1996).

40

There was also an effort to amend FL §2-201 to substitute “two

consenting adults” for “a man and a woman”, which not only would have

would have permitted recognition of out-of-state marriages, but would

have allowed same-sex marriage in Maryland itself. House Bill 609

(1997); House Bill 1259 (1998); House Bill 919 (2000). All of those bills

also received an unfavorable report from the House Judiciary Committee.

36 [95 Op. Att’y

Constitution. House Bill 16 (2004); Senate Bill 673 (2004). 41

Other bills would have amended FL §2-201 to state explicitly

that “[a] marriage between two individuals of the same sex that is

validly entered into in another state or in a foreign country is not

valid in this State” and to specify that “[m]arriages between

individuals of the same sex are against the public policy of this

State.” House Bill 728 (2004); Senate Bill 746 (2004). In

connection with the consideration of those bills, the question

arose as to whether an out-of-state same-sex marriage would be

recognized in Maryland under the existing law.

An advice letter from this Office thoroughly reviewed

the existing law concerning the public policy exception to the

general rule that out-of-state marriages are recognized in Maryland.

Letter of Assistant Attorney General Kathryn M. Rowe to Delegate

Joseph F. Vallario, Jr. (February 24, 2004) (“2004 Advice Letter”).

At that time there were no cases, even in other states, that

specifically addressed the recognition of same-sex marriages

across state lines. The 2004 Advice Letter concluded that the

policy expressed in FL §2-201 would likely be read to create a

public policy exception to the general rule that a marriage valid

where it is performed is considered valid in Maryland. 42

However, the 2004 Advice Letter observed that the results in

marriage recognition cases sometimes appeared driven by the

situations of sympathetic parties and that courts were

reluctant to deny recognition “in light of the

consequences to offspring and others.” Thus, it concluded that

the application of the public policy exception in this context “is far

from clear or settled” and that a court might reach a different

conclusion. Id. at pp. 6-7. The 2004 Advice Letter advised that the

amendment of FL §2-201 consistent with the proposed bills would

increase the

41

The proposed constitutional amendments would have added a new

Article XV, §8 to the Maryland Constitution that would provide that

“[o]nly a marriage between a man and a woman is valid in this State.”

The bills were not passed.

42

In a related letter, the Attorney General’s Office indicated that, if

a State official declined to recognize an out-of-state same-sex marriage

and were sued for that decision, it would make this argument in defense

of the official. Letter of Assistant Attorney General Robert A. Zarnoch to

Delegate Luiz R.S. Simmons (February 27, 2004).

Gen. 3] 37

likelihood that a court would hold that the statute creates a public

policy exception to the general rule of recognition. Id. at p.7.43

In the six years since the 2004 Advice Letter provided that

qualified answer, there have been significant legal developments in

Maryland’s public policy toward committed same-sex intimate

relationships and, as outlined in Part IV of this opinion, in the law of

many other states. However, there has been no amendment of FL

§2-201.

3. Legislative Efforts after 2004 Advice Letter

Since 2004, several bills have been introduced in the General

Assembly that would have affected the conclusion of the 2004

Advice Letter concerning recognition of out-of-state same-sex

marriages. Some of those bills would have affirmed the tentative

conclusion of the 2004 letter; others would have effectively reversed

it.

Several bills would have explicitly stated in statute that same-

sex marriages valid in other states would not be recognized in

Maryland. Senate Bill 746 (2004); House Bill 728 (2004); House

Bill 693 (2005); House Bill 90 (2010); Senate Bill 852 (2010).44

Other bills proposed constitutional amendments. There were several

proposals for a State constitutional amendment providing, like FL

§2-201, that only a marriage between a man and a woman is valid in

Maryland. Senate Bill 673 (2004); House Bill 16 (2004); House Bill

1220 (2005); House Bill 1393 (2006); Senate Bill 262 (2006); House

Bill 48 (2006); Senate Bill 690 (2006); House Bill 1716 (2006);

House Bill 919 (2007); Senate Bill 564 (2007); Senate Bill 169

(2008). Two bills would have amended the State Equal Rights

Amendment (Declaration of Rights, Article 46) to prevent it from

being a basis for overturning the statutory prohibition against same-

sex marriage. Senate Bill 900 (2006); House Bill 1637 (2006).

Other proposed amendments would have also made clear that out-of-

state same-sex marriages are not valid in Maryland. House Bill 1345

43

The bills did not pass.

44

Senate Bill 852 remains pending in the Senate Judicial

Proceedings Committee as of the date of this opinion.

38 [95 Op. Att’y

(2008); Senate Bill 647 (2009); House Bill 913 (2009); House Bill

1079.45 All measures filed in sessions through 2009 failed.

More recently, several bills have been introduced to amend

FL §2-201 to allow same- sex marriages in Maryland. Senate Bill

290 (2008); House Bill 351 (2008); Senate Bill 565 (2009); House

Bill 1055 (2009); Senate Bill 582 (2010); House Bill 808 (2010);

House Bill 1279 (2010).46 If the statute had been modified in that

way, the analysis of the 2004 Advice Letter would have been

effectively overruled, as the basis for a public policy against

recognition of such out-of-state marriages would no longer exist.

However, those measures filed in sessions through 2009 also

failed.47

In failing to amend FL §2-201, the General Assembly has not

buttressed, as suggested by the 2004 Advice Letter, the tentative

conclusion that out-of-state same-sex marriages would not be

recognized by Maryland courts. Conversely, it has not explicitly

spoken in favor of recognition of such marriages by the courts.

However, other enactments of the Legislature demonstrate an

evolution in public policy toward intimate same-sex relationships.

4. Evolution of Public Policy Relating to Same-Sex

Relationships

Maryland’s public policy concerning marriage has not been

static. As previously recounted, during part of the colonial period,

only marriages consecrated according to the liturgy of the Church of

England were authorized in Maryland. Within living memory, the

Court of Appeals could describe interracial marriage as not only

against the State’s public policy, but “repugnant” to it. Neither

policy has endured. Undoubtedly, a same-sex marriage, even if valid

in another state, would have been obviously contrary to the public

policy of Maryland in the past, given the laws criminalizing

45

House Bill 1079 remains pending in the Senate Judicial

Proceedings Committee as of the date of this opinion.

46

The 2010 bills listed are pending in either the Senate Judicial

Proceedings Committee or the House Judiciary Committee as of the date

of this opinion.

47

As of the date of this opinion, the latest version of such a bill is

pending in the State Senate. See Senate Bill 582 (2010).

Gen. 3] 39

homosexual sexual activity. However, the same cannot be said

today.

Criminal laws

At one time the public policy of Maryland, as expressed in its

criminal laws, prohibited same-sex intimate sexual conduct. See

Annotated Code of Maryland, Criminal Law (“CR”), §3-322

(prohibiting “unnatural or perverted sexual practices”). The State

ceased enforcement of such laws some years ago. See Schochet v.

State, 320 Md. 714, 580 A.2d 176 (1990) (construing statute not to

restrict private, non-commercial, consensual sexual conduct of

heterosexual couple); Williams v. Glendening, No. 98036031/CL-

1059, 1998 WL 965992 (Balto. City Cir. Ct 1998) (enjoining

application of statute to same-sex couples); Letter of Assistant

Attorney General Robert N. McDonald to Delegate Sue Hecht

(October 29, 1999) (concluding that Court of Appeals would likely

reach same result as circuit court did in Williams). The Supreme

Court subsequently held that such laws are unconstitutional.

Lawrence v. Texas, 539 U.S. 558 (2003).48

In 2005, the Legislature amended the statutes concerning

“hate crimes” to include violent crimes motivated by animus toward

a person’s sexual orientation. Chapter 571, Laws of Maryland 2005,

codified in CR §10-301 et seq.

Anti-discrimination measures

Subject to some exceptions, State law prohibits discrimination

based on sexual orientation in public accommodations, housing, and

employment. Annotated Code of Maryland, State Government

Article (“SG”), §§20-304 (public accommodations), 20-601 et seq.

(employment), 20-701 et seq. (housing). In addition, it forbids such

discrimination by private entities regulated by the Department of

Labor, Licensing, and Regulation. SG §20-402. While the law that

enacted these prohibitions was carefully drafted to make clear that

it did not authorize same-sex marriage itself or endorse any

48

The Court in Lawrence declined to address the validity of same-

sex marriage, stating that the case did “not involve whether the

government must give formal recognition to any relationship that

homosexual persons seek to enter.” 539 U.S. at 578.

40 [95 Op. Att’y

particular form of sexual behavior,49 it reflects a change in public

policy concerning the acceptable treatment of gay and lesbian

individuals.

An executive order entitled the State Code of Fair

Employment Practices prohibits employment discrimination in State

employment based on sexual orientation, among other things.

COMAR 01.01.2007.16 at Article I(A)(13). Many executive branch

agencies in the State have adopted regulations forbidding

discrimination on the basis of sexual orientation in the conduct of

various State programs. See Deane, 401 Md. at 338-39 n.17 (Raker,

J., concurring and dissenting) (cataloging various anti-discrimination

provisions). Other regulations prohibit such discrimination by

individuals licensed by the State in the conduct of their professions

or occupations. Id. Various county and municipal laws similarly

prohibit discrimination on the basis of sexual orientation in matters

within the purview of the local government. Id. at 340-41.

In 2006, the Legislature enacted a statute barring

discrimination on various bases, including sexual orientation, in

connection with State contracts. Chapter 283, Laws of Maryland

2006, codified at Annotated Code of Maryland, State Finance &

Procurement Article, §19-101 et seq.

49

The law included uncodified language stating that it:

(1) may not be construed to authorize or validate

a marriage between two individuals of the same

sex;

(2) may not be construed to require or prohibit an

employer to offer health insurance benefits to

unmarried domestic partners;

(3) does not mandate any public or private

educational institution to promote any form of

sexuality or sexual orientation or to include such

matters in its curriculum; and

(4) is intended to ensure specific defined rights

and not to endorse or confer legislative approval

of any form of sexual behavior.

Chapter 340, §2, Laws of Maryland 2001. See Part II.B.1 & n. 9 above.

Gen. 3] 41

Adoption

The Court of Appeals has not had occasion to address

whether same-sex couples may adopt a child together in Maryland.

See Janice M. v. Margaret K., 404 Md. 661, 665 & n.3, 696 & n.1,

948 A.2d 73 (2008). However, this Office has previously concluded

that Maryland law permits adoption by same-sex couples, a

conclusion endorsed by some members of the Court. See Letter of

Assistant Attorney General Kathryn M. Rowe to Delegate Sharon

Grosfeld (June 9, 2000); see also Deane, 401 Md. at 332-36 (Raker,

J., concurring and dissenting) (analyzing parental rights of same-sex

partners under Maryland law).

Rights and Benefits of Domestic Partners

The General Assembly recently enacted legislation

recognizing domestic partnerships,50 a term that includes same-sex

couples as well as couples of different sexes, for the purpose of

conferring rights concerning medical decision-making and hospital

visitation, among other things. Chapters 590, 599, Laws of

Maryland 2008; Chapter 602, Laws of Maryland 2009. In particular,

50

A “domestic partnership” is defined 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 a member of

a civil union or domestic partnership with

another individual;

(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.

Annotated Code of Maryland, Health-General Article, §6-101. For

purposes of a recordation and transfer tax exemption, domestic partners

must also share a common residence where they both live. Annotated

Code of Maryland, Tax-Property Article, §12-101(e-2).

42 [95 Op. Att’y

a domestic partner is entitled to make health care decisions for an

incapacitated partner under certain circumstances. Annotated Code

of Maryland, Health-General Article (“HG”), §§5-605, 5-612. A

domestic partner has visitation rights with respect to a partner in

health care facilities and during emergency medical transport. HG

§6-202. Domestic partners who are in a nursing home have a right

to share a room, as well as to have private visits. HG §19-344(h),

(k). A domestic partner may consent to the autopsy of a deceased

partner, has certain rights concerning disposition of the remains, and

may consent to organ donation. HG §§4-215, 5-501, 5-509, 19-310.

Transfers of residential property between domestic partners are

exempt from recordation and transfer taxes. Annotated Code of

Maryland, Tax-Property Article, §§12-108(c)-(d), 13-207(a)-(b), 13-

403(b). The State inheritance tax does not apply to a primary

residence held in a joint tenancy that passes from a decedent to his

or her domestic partner. Annotated Code of Maryland, Tax-General

Article, §7-203(l).

While the 2008 domestic partner legislation extended many

rights and benefits to committed same-sex couples, it explicitly

disclaimed any intent to alter Maryland’s policy concerning same-

sex marriage. See Chapter 590, §3; Chapter 599, §2, Laws of

Maryland 2008 (“this Act may not be construed to have any effect

on §2-201 of the Family Law Article”).

During the past year, the State Department of Budget and

Management (“DBM”) amended its regulations to recognize same-

sex domestic partners of State employees as dependents eligible for

health insurance and certain other benefits tied to public

employment.51 See COMAR 17.04.13.03A9(c). That policy

development was subject to legislative oversight by the Joint

Committee on Administrative Executive, and Legislative Review, as

well as the budget committees. See SG §10-110; Department of

Legislative Services, Analysis of the FY 2010 Maryland Executive

51

The regulations were carefully crafted to ensure that they did not

contravene related federal standards that, under the federal Defense of

Marriage Act, limit the concept of “spouse” to heterosexual couples. See

Part III.B.2 above. Guidance later issued by DBM reiterated the

understanding that an out-of-state same-sex marriage of an employee

would not be recognized under Maryland law as a marriage and that the

employee’s domestic partner would not be considered a “spouse” (as

opposed to a domestic partner) for the purpose of employee benefits.

DBM, Same Sex Domestic Partner Frequently Asked Questions (July

2009-June 2010) at. p. 4.

Gen. 3] 43

Budget (2009), F10A02 at p.21. Some local governments have

accorded similar recognition to domestic partners, which the Court

of Appeals has found to be consistent with the powers of home rule

governments under Maryland law. See Tyma v. Montgomery

County, 369 Md. 497, 801 A.2d 148 (2002) (county had authority to

extend health insurance to same-sex domestic partners of county

employees).

Summary

At the time that FL §2-201 was enacted in the early 1970s,

one might have said, with confidence, that same-sex marriage was

so contrary to the State’s public policy, as expressed in a number of

ways in addition to FL §2-201, as to trigger the public policy

exception. Thirty years later, as the 2004 Advice Letter indicated,

that conclusion could still be drawn, but with considerably less

confidence. As the various opinions in the Deane case

acknowledged and as these enactments demonstrate, the State’s

public policy toward committed intimate same-sex relationships has

gradually shifted from one of condemnation to one of respect and,

in certain ways, support. While the Legislature has been steadfast in

maintaining the limitation expressed in FL §2-201,52 at the same

time, the statute no longer expresses a public policy of the State that

so condemns same-sex relationships as to create an exception to

principle of comity that usually governs recognition of out-of-state

marriages.

5. Comparison to Polygamous and Incestuous

Marriages

Two categories of marriages frequently identified as subject

to the public policy exception are polygamous marriages and

incestuous marriages. See Jackson v. Jackson, supra, 82 Md. at 29-

30. Maryland’s developing public policy concerning intimate same-

52

See Chapter 590, §3, Laws of Maryland 2008; Chapter 599, §2,

Laws of Maryland 2008; Chapter 340, §2, Laws of Maryland 2001.

These provisions stated that the Legislature did not intend to “authorize”

or “validate” same-sex marriage or affect FL §2-201 in providing certain

protections to same-sex couples, thus reaffirming the policy underlying FL

§2-201. However, they did not address the question of recognition of out-

of-state marriages or whether the policy underlying FL §2-201 would

override the general principle of comity.

44 [95 Op. Att’y

sex relationships may be contrasted to its policies concerning

polygamous and incestuous relationships.

Polygamous marriages

Some have suggested that arguments in favor of recognizing

out-of-state same-sex marriages valid in the place of celebration

could also be applied to foreign polygamous marriages that are valid

in the jurisdiction of celebration. See, e.g., Epstein, Of Same Sex

Relationships and Affirmative Action: The Covert Libertarianism of

the United States Supreme Court, 12 Sup. Ct. Econ. Rev. 75, 96

(2004); Sunstein, Liberty After Lawrence, 65 Ohio St. L.J. 1059,

1073 (2004); Myers, Polygamist Eye for the Monogamist Guy:

Homosexual Sodomy ... Gay Marriage ... Is Polygamy Next?, 42

Hous. L. Rev. 1451, 1472-73 (2006).

It is true that there are more jurisdictions in the world that

permit polygamous marriage than same-sex marriage. See

Smearman, Second Wives’ Club: Mapping the Impact of Polygamy

in U.S. Immigration Law, 27 Berkeley J. Int’l L. 382, 385-87 (2009)

(noting that a half-million immigrants from countries in Africa, Asia,

and the Middle East where polygamy is legal gained permanent

resident status in the United States in 2007). And there are many

more polygamous marriages valid in the place of celebration than

same-sex marriages. Also, the statute that prohibits same-sex

marriage in Maryland – FL §2-201– is also one of the statutes that

most clearly reflects the State’s policy in favor of monogamy.

However, there is a critical distinction between Maryland’s

public policy concerning same-sex relationships and its policy

concerning polygamous relationships. While Maryland law does not

allow for same-sex marriages, it provides significant recognition and

support of same-sex relationships. Maryland law provides no

recognition or support of polygamous relationships. Indeed, it

remains a crime and a basis for disqualifying an individual from

certain inheritance rights. CR §10-502 (bigamy); Annotated Code

of Maryland, Estates & Trusts Article, §1-202(d) (an individual

convicted of bigamy is not a “surviving spouse”).53

53

While it remains extremely unlikely that Maryland – or any state

– would recognize foreign polygamous marriages generally, such

marriages have been recognized by American courts for specific purposes,

such as inheritance and property succession. For example, in a case

(continued...)

Gen. 3] 45

Incestuous marriages

With respect to incestuous marriages, some courts have found

out-of-state marriages to be void as incestuous in violation of the

forum state’s public policy even though the local statute did not

explicitly address marriages performed in other states. See Osoniach

v. Watkins, 180 So. 577, 580 (Ala. 1938) (refusing to recognize

Georgia marriage between nephew and uncle’s widow); Catalano v.

Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (refusing to recognize

incestuous marriage between uncle and niece obtained through

dispensation in Italian law).

However, most such out-of-state marriages are recognized, as

the variations among states do not appear to reflect basic differences

in policy, but in the precise degree of relationship permitted. See

Scoles & Hay, Conflict of Laws (1984) at p. 435 (while some

statutes refer to marriages “‘in violation of divine law’, there

certainly is a difference of legislative opinion as to what is divine”).

As the Fensterwald case described above indicates, Maryland courts

will recognize out-of-state incestuous marriages that would be

considered “voidable” if performed in Maryland. In any event, as

with polygamous relationships, there is no developing public policy

in Maryland that supports incestuous relationships, even of the type

recognized in Fensterwald. Indeed, incest remains a felony under

Maryland law. CR §3-323.

6. Application of Public Policy Exception in

Particular Contexts

A legislature may choose to accord universal recognition to

a particular type of marriage – or not. A judicial determination

53

(...continued)

involving a native of India who died intestate in the United States, the

court held that his two legally wedded wives in India would be allowed to

share in the estate, and indicated that the public policy exception would

have precluded recognition “only if decedent had attempted to cohabit

with his two wives in California.” In re Dalip Singh Bir’s Estate, 188

P.2d 499, 502 (Cal. App. 1948); see also Scoles & Hay, Conflict of Laws

(1984) at 446 (“The courts do recognize the legal existence of and give

effect to foreign matrimonial unions that do not conform to requirements

for the marriage relationship among their own people.... It may be

doubted whether a foreign visitor would be permitted to cohabit here with

his four wives, although even this is uncertain. Children of the union

would probably be recognized as legitimate.”).

46 [95 Op. Att’y

whether to give effect to a particular out-of-state marriage will arise

in the context of the facts of a particular case involving a

determination of particular rights, benefits, and responsibilities. A

decision whether to recognize an out-of-state marriage may be the

predicate to a variety of questions for example:

g Does each partner owe the statutory obligation

of spousal support to the other?

g Are confidential communications between the

partners privileged from discovery? Does one

have a privilege not to testify against the other?

g If one partner dies, is the other a “surviving

spouse” for purposes of death benefit payments

and other benefits from the decedent’s

employment? Will the partner be treated as a

spouse under the estate and inheritance laws?

What is the surviving partner’s right to custody

of a child of the deceased partner?

g May the couple obtain a divorce under

Maryland law?

g If a party to a valid same-sex marriage in

another state abandons the marriage without

obtaining a divorce and moves to Maryland, is

that individual eligible to marry under

Maryland law?

g Do ethics provisions relating to spouses apply?

For example, do ethical restrictions and

reporting requirements relating to spouses

apply with respect to the partner?

You have not asked us to answer questions like these – nor would

we attempt to do so in an Attorney General opinion. The facts of a

particular case matter, as do other laws pertinent to the particular

right, benefit or responsibility. What we can do is identify some of

the factors that may affect the Court’s decision in a particular case.

Relationship of Out-of-State Marriage to Maryland

As suggested at the outset of this opinion, an out-of-state

marriage may come within Maryland’s jurisdiction in a variety of

Gen. 3] 47

ways.54 Some commentators have analyzed various situations by

organizing them into several categories. Koppelman, supra, 153 U.

Penn. L. Rev. at 2152-63; Silberman, Same-Sex Marriage: Refining

the Conflict of Laws Analysis, 153 U. Penn. L. Rev. 2195 (2005).

Those commentators have suggested that the particular category to

which a marriage belongs may affect a court’s application of the

public policy exception. While it is not clear whether Maryland

Court of Appeals will draw such distinctions among these

categories, the categories provide a useful rubric for describing the

circumstances in which the question of recognition of a marriage

may arise.

“Migratory” or “mobile” marriages. A couple marries in

the jurisdiction where they happen to reside at the time of their

marriage. They move to Maryland for reasons that have nothing to

do with the marriage laws of the respective jurisdictions. This is the

classic scenario in which the Maryland courts apply the standard rule

that a marriage that is valid in the place of celebration is also

generally valid in the couple’s new residence, subject to the public

policy exception. Some commentators have suggested that, even if

a court would otherwise be inclined to apply the public policy

exception to such a marriage, there may be circumstances where the

court would recognize the marriage for particular purposes. See

Hammerle, Free Will to Will? A Case for the Recognition of

Intestacy Rights for Survivors to a Same-Sex Marriage or Civil

Union, 104 Mich. L. Rev. 1763 (2006).

“Transient” or “visitor” marriages. The couple marries in

another jurisdiction in which they reside. They later travel to or

through Maryland temporarily without any intention of residing in

the State, but their marital status becomes legally significant for

some reason. For example, a same-sex couple validly married in

Massachusetts may travel to Maryland for vacation or pass through

en route to Washington, D.C. An event may occur while the couple

is in Maryland in which their marital status plays a role. In such a

situation, the State is called upon to recognize the married status of

a couple that had never resided in Maryland, and indeed never

intended to do so, for a very specific purpose. A court may be

54

See pp. 3-4 above.

48 [95 Op. Att’y

particularly reluctant to invoke the public policy exception in such

circumstances.55

“Extraterritorial” marriages. The couple marries in the

jurisdiction in which they reside outside Maryland. However, unlike

the previous two categories, in this scenario, the married couple

never sets foot in Maryland. The validity of their marriage is

significant in Maryland only because it affects a legal determination

being made in Maryland, such as the probate of an estate. Again, a

court may be reluctant to invoke the public policy exception,

particularly if there are adverse effects on third parties. See

Developments in the Law, Constitutional Constraints on Interstate

Same-Sex Marriage Recognition, 116 Harv. L. Rev. 2028, 2043

(2003). 56

“Evasive” marriages. Residents of a state that bars same-sex

marriage travel to a jurisdiction that allows same-sex marriages for

the specific purpose of avoiding the prohibition in their own state.

They contract a valid marriage in the other jurisdiction – the place

of celebration – and return to their own state. This may be the

category in which a court would be least sympathetic to recognition

of the marriage. See Wolff, supra, 153 U. Penn. L. Rev. at 2237-

38.57 Unlike some other states,58 however, Maryland has never had

55

One commentator posits a hypothetical situation in which one

member of a same-sex couple travels to a state such as Maryland with

their child. They are in an automobile accident and the adult dies. Is the

child an orphan in the eyes of the State or will the State recognize the

parental rights of the surviving spouse? See Koppelman, supra, 153

U.Penn. L.Rev. at 2160.

56

It was in just such a context that American courts have sometimes

recognized polygamous marriages. See note 53 above.

57

A state that has adopted the “most significant relationship”

standard of the Second Restatement may tend to apply the law of the state

of domicile of the parties to determine the validity of the marriage.

However, the Maryland courts have not adopted that standard and thus

look to the law of the state in which the contract (i.e., marriage) was

formed. See note 15 above.

58

Some states have statutes that specifically withhold recognition of

evasive marriages. See, e.g., Ariz. Rev. Stat. Ann. §24-112(c) (“parties

residing in this state may not evade the laws of this state relating to

(continued...)

Gen. 3] 49

a statute directing the courts to withhold recognition of evasive

marriages. In fact, the evasive nature of the marriage contracted in

Rhode Island in Fensterwald did not prevent the Court of Appeals

from recognizing it. Moreover, the factual inquiry required to

distinguish “evasive” marriages from others might make such a

distinction impractical in many contexts.

Particular Incidents of Marriage at Issue

As noted above, a judicial decision whether to recognize an

out-of-state marriage is often incidental to the determination of some

other issue – e.g., a right to inherit property of a deceased individual,

a right to employment benefits, a right to sue for wrongful death.

Some commentators have observed that the courts frequently look

to the policies underlying the ultimate issue to decide whether to

recognize the particular marriage.59 This is sometimes referred to as

the “incidents” approach to conflict of laws issues involving

marriage. See Reese, Marriage in American Conflict of Laws, 26

Int’l & Comp. L. Q. 952 (1977); Engdahl, Proposal for a Benign

Revolution in Marriage Law and Marriage Conflicts Law, 55 Iowa

58

(...continued)

marriage by going to another state or country for solemnization of the

marriage”); Wis. Stat. §765.30 (providing criminal penalty for marrying

in another state to evade Wisconsin marriage law).

A few states have had statutes designed to discourage out-of-state

couples from marrying in that state to evade a marriage prohibition in the

law of their domicile. See, e.g., Mass. G.L., §11 (“No marriage shall be

contracted ... by a party residing and intending to continue to reside in

another jurisdiction if such marriage would be void if contracted in such

other jurisdiction, and every marriage in violation hereof shall be null and

void”), repealed by Mass. Laws of 2008, Chapter 216, §1. This provision

was derived from the Uniform Marriage Evasion Act, approved by the

National Conference of Commissioners of Uniform State Laws in 1912.

The Commissioners withdrew their approval in 1943 and few states have

enacted the provision. See Cote-Whitacre v. Department of Public Health,

, 844 N.E.2d 623, 632 n.3 (Mass. 2006); see also Grossman, supra, 84 Or.

L. Rev. at 465.

59

As a review of the judicial application of various state statutes

against inter-racial marriage to out-of-state marriages concluded: “These

precedents hold that even an exceedingly strong public policy does not

entail a blanket rule of nonrecognition. Finer distinctions have to be

drawn.” Koppelman, Same Sex, Different States: when Same-Sex

Marriages Cross State Lines (Yale Univ. Press 2006) at p.49.

50 [95 Op. Att’y

L. Rev. 56 (1969-70). It has been suggested that this approach is

likely to be employed by courts presented with a question whether

to recognize an out-of-state same sex marriage. “By considering

only the incident of marriage before the court and the policies behind

providing that incident of marriage to married couples, some courts

may recognize the marriage, civil union, or domestic partnership for

that particular purpose, even while refusing to honor the relationship

for other purposes.” Cox, Using an “Incidents of Marriage”

Analysis When Considering Interstate Recognition of Same-Sex

Couples’ Marriages, Civil Unions and Domestic Partnerships, 13

Widener L.J. 699 (2004).

Relationship of Federal Law to the Particular Incident

As noted in Part III.B. above, the federal Defense of Marriage

Act limits the definition of marriage to opposite-sex couples for

purposes of federal law.60 In some instances, State law incorporates

federal law. In other instances, the Legislature or an agency

delegated authority by the Legislature, has designed a State

requirement to coincide with federal law. While federal law does

not dictate whether or not an out-of-state same-sex marriage may be

recognized in Maryland, it may affect that determination when State

law is linked to federal law.

7. Summary

FL §2-201 embodies a policy against same-sex marriage, but

likely was not originally intended to govern recognition of out-of-

state marriages. The development of Maryland’s public policy as to

committed same-sex relationships over the past decade makes it

increasingly unlikely that the Court would rely on the statute to

invoke the public policy exception to the general rule of recognition

of out-of-state marriages. Thus, in our view, the Court is likely to

abide by the general rule of recognition, especially if the particular

circumstances fit within the migratory, transient, or extraterritorial

60

Even if Maryland courts ultimately decide to recognize out-of-

state same-sex marriages in all respects, federal law still constrains

extension of some benefits of marriage to such couples. For example,

unless the federal Defense of Marriage Act is repealed or held

unconstitutional, favorable federal tax treatment of employee benefits for

married workers would not pertain to such couples. See Koppelman,

Same Sex, Different States at pp. 120-130 (listing examples of federal

laws for which marital status is relevant).

Gen. 3] 51

categories described above. While the Court may be least

sympathetic in the context of an evasive marriage, there may be little

basis under Maryland law for distinguishing that category from the

others. Whether the Court will in fact recognize such an out-of-state

marriage may also be affected by the facts and circumstances of the

particular case before it, the particular incident of marriage at stake,

and whether the particular issue is governed by or linked to federal

law.

VI

Executive Orders

Finally, you asked whether the Governor may issue an

executive order concerning the recognition of out-of-state same-sex

marriages. Because you referenced a directive issued by the New

York Governor’s office concerning recognition of out-of-state same-

sex marriages, we first briefly discuss that directive.

A. New York Governor’s Directive

In your request for this opinion you alluded to a directive

issued by the New York Governor’s Office in 2008. Some have

suggested that the New York directive could serve as a model for an

executive order in Maryland. See Rethinking marriage, Baltimore

Sun (May 10, 2009) at p. 24A. The suggestion is perhaps based on

the fact that, like Maryland, New York law does not permit same-sex

marriages to be contracted in that state. See Part IV.D. of this

opinion above.

However, the circumstances are not entirely analogous. The

New York Governor did not issue a formal executive order. Nor

was the informal directive that was issued by his office based solely

on an opinion of the state attorney general. Rather, the directive

consisted of a memorandum by the New York Governor’s counsel

to state agency counsel advising them of the Martinez decision 61 and

of similar lower court decisions in the New York state courts.

Memorandum of David Nocenti to All Agency Counsel (May 14,

61

See description of the Martinez decision in Part IV.D. above. In

contrast to the situation in New York, we have no direct guidance from

Maryland courts on whether an out-of-state same-sex marriage is

recognized under Maryland law.

52 [95 Op. Att’y

2008). The memorandum warned that, in light of those decisions,

agencies that did not afford comity or full faith and credit to same-

sex marriages valid in other jurisdictions might incur liability under

the New York Human Rights Law. The memorandum advised

agency counsel to review their respective agency’s statutes,

regulations, and policy statements to ensure that terms such as

“spouse”, “husband,” and “wife” were construed in a manner that

encompassed valid same-sex marriages, unless another provision of

law prevented such a construction. A taxpayer challenge to the

authority of the counsel’s memorandum was rejected by a New York

state trial court. Golden v. Patterson, 877 N.Y.S.2d 822, 830 (N.Y.

Sup.Ct. 2008) (holding that directive did not exceed executive

authority as it deferred to statutes and controlling court decisions on

the subject).62

B. Governor’s Authority under Maryland Law

In Maryland, the Governor, as head of the executive branch,

has broad powers to issue executive orders concerning guidelines,

rules of conduct, or rules of procedure for State employees, units of

State government, and persons who deal with State employees and

agencies. See SG §3-401(2). The Governor’s authority over the

employment rights, obligations, and working conditions of executive

branch employees is particularly well established. McCulloch v.

Glendening, 347 Md. 272, 282-87, 701 A.2d 99 (1997) (executive

order granting unionization and collective bargaining rights to State

employees); MCEA v. Schaefer, 325 Md. 19, 28, 599 A.2d 91 (1991)

(executive order increasing work week of State employees).

Similarly, an executive order may govern how executive branch

employees deal with providers of services reimbursed by the State.

State v. Maryland State Family Child Care Ass’n, 184 Md. App.

424, 445-49, 966 A.2d 939 (2009).

The Governor has less authority over private parties when

promulgating an executive order and, in the absence of statutory

authority, an executive order may not regulate the conduct of private

parties. See 78 Opinions of the Attorney General 148, 152 (1993)

(while the Board of Public Works could adopt a regulation under its

62

Also, as noted in Part IV.D. above, a recent decision by New

York’s highest court has affirmed the discretion of certain executive

branch officials, within their respective areas of authority to recognize out-

of-state same-sex marriages for specified purposes. Godfrey v. Spano, 920

N.E.2d 328 (N.Y. 2009).

Gen. 3] 53

statutory procurement authority to require State contractors to

institute drug testing programs, the Governor could not do so by

executive order).

In sum, unless the Legislature specifically delegates to the

Governor the authority to issue an executive order on a particular

subject, the Governor may not legislate by means of an executive

order.63 Rather, any executive order issued by the Governor must

concern matters within the purview of the executive branch and must

be consistent with Maryland law, as enacted by the General

Assembly and construed by the courts.

You have asked generally about the Governor’s authority to

issue an executive order concerning out-of-state same-sex marriages

without reference to particular circumstances. Any executive order

issued by the Governor concerning recognition of out-of-state same-

sex marriages would have to concern a subject within the purview

of the executive branch. (Many of the questions concerning

recognition of marriages arise in the judicial branch). Any executive

order would also have to be consistent with any existing law relating

to the particular subject.

VII

Conclusion

Our opinion is as follows:

The Court of Appeals would start from the general principle

that a marriage that is valid in the place of celebration remains valid

in Maryland. There is an exception to that rule if the particular

marriage is contrary to a strong State public policy. A statute that

limits marriage in Maryland 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. For example, it has recognized common law

63

The State Constitution allows the Governor to reorganize the

executive branch by issuing an executive order, but any changes

inconsistent with existing law must be set forth in statutory form and are

not effective if disapproved by either house of the Legislature. Maryland

Constitution, Article II, §24.

54 [95 Op. Att’y

marriages from other states, although there is no common law

marriage in Maryland, and has recognized a Rhode Island marriage

between an uncle and a niece, although a statute prohibits marriage

between an uncle and a niece in Maryland. Indeed, the public policy

exception is a very limited one that the Court has seldom invoked.

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. 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. You have posed

the question in the abstract, but, of course, context matters. For

example, to the extent that a particular matter is governed by federal

law, the federal Defense of Marriage Act, which limits marriage for

federal purposes to opposite-sex couples, would prevent recognition

of the marriage for that particular purpose.64

Finally, with respect to your question concerning the

Governor’s authority to issue an executive order, the Governor

cannot legislate through an executive order. An executive order of

the Governor must be consistent with existing Maryland law, as

enacted by the General Assembly and construed by the courts.

While the State Constitution and statutes accord the Governor broad

powers in certain areas – for example, in matters concerning

executive branch employees – many questions concerning

recognition of out-of-state marriages arise in the courts and cannot

be addressed in an executive order. The action of the New York

Governor’s office in 2008 is not entirely analogous. In New York,

the Governor’s counsel issued a memorandum to various agencies

in that state directing them to comply with a state court decision

64

An advice letter of this Office written six years ago gave a

qualified answer that out-of-state same-sex marriages would likely not be

recognized under Maryland law. While we reach a different conclusion

today, in light of developments in the law concerning intimate same-sex

relationships, we realize that State agencies have relied on that advice in

setting agency policies concerning recognition of out-of-state marriages.

In the absence of legislation or a definitive opinion of the Court of

Appeals, a State agency that intends to change its existing policy

concerning recognition of out-of-state same-sex marriages should first

adopt any necessary regulations and conduct any appropriate deliberative

process that permits consideration of the particular circumstances to which

the agency’s policy will apply and consider the possible applicability of

federal law to those circumstances.

Gen. 3] 55

concerning recognition of out-of-state marriages; there is no similar

court decision in Maryland.

Douglas F. Gansler

Attorney General

Robert N. McDonald

Chief Counsel

Opinions and Advice