AG Gansler Lets Personal Opinion Override State Precedent

In 2004, the Attorney General’s office issued a letter of advice to House Judiciary Chairman Joseph Vallario stating the same-sex marriages performed in other states would not be recognized under Maryland’s statutes. That letter of advice was used to derail pending legislation that would have added specific language to Maryland's statute to deny recognition of other states’ civil unions or same-sex marriages. The Judiciary Committee was told that such language wasn't necessary. The Attorney General at the time was J. Joseph Curran, Jr. (to see the entire letter of advice, click here)

Last week, current Attorney General Douglas Gansler issued a new Attorney General’s Opinion that, in essence, orders state agencies to recognize same-sex marriages performed in other state – a complete turnabout of his office’s prior advice. (to see the entire opinion, click here)

What has happened in the last five years other than a change in the person who holds the office of Attorney General? What Maryland statute, appellate ruling or other case law has altered the legal landscape? The answer to both is nothing.

As explained by commentary by Blair Lee in The Gazette, the only rationale for the diametrically opposite opinion is that Gansler allowed his personal opinion to outweigh years of established precedent under Maryland law:

“But last week Gansler crossed the line by letting his personal views override his duty as the state's chief legal adviser. On Feb. 24, Gansler issued his attorney general's opinion saying same-sex marriage, while illegal in Maryland, should nevertheless be permitted here if performed in one of the nation's five states (and the District of Columbia) where such marriages are allowed. In order to reach his conclusion Gansler had to turn Maryland law, legal precedent and logic upside down. Instead of following state law, Gansler put himself above it.”

To read the entire column by Blair Lee, click here.