November 11, 2009
Robert N. McDonald
Chief Counsel
Office of the Attorney General
Opinions, Advice & Legislation
200 St. Paul Place
Baltimore, MD 21202-2021
Dear Mr. McDonald:
We, the undersigned deans and faculty of the University of Baltimore School of Law and the
University of Maryland School of Law submit these comments in response to the request of the
Attorney General for views on “whether a same-sex marriage that is valid in the jurisdiction
where it was contracted is recognized under Maryland law.”1 In our view, Maryland precedent,
comity and public policy considerations strongly dictate that Maryland law should recognize as
valid a same-sex marriage validly contracted or solemnized in another state.
SUMMARY OF ANALYSIS
Maryland has endorsed “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.”2 This general rule of
recognition serves important public policy goals, including fostering stable families3, providing
certainty for children4, and strengthening the social fabric of communities.5 Maryland has
applied this rule repeatedly to recognize out-of-state marriages that would have been invalid if
contracted or solemnized in Maryland.6 Only marriages that are repugnant to the state’s clearly
expressed public policy are denied recognition under Maryland law.7 Recent legislative
developments demonstrate that this narrow “repugnance” exception does not apply to same-sex
1
Letter from Richard Madaleno, Senator, Senate of Maryland, to Douglas Gansler, Maryland Attorney General,
(May 19, 2009) available at: http://www.oag.state.md.us/Opinions/recent %20requests/MADALENO.pdf.
2
Henderson v. Henderson, 199 Md. 449, 458 (1952).
3
See id. at 458 (stating that uniformity of marriage law prevents individuals who were married in one state from
then living in adultery in another).
4
Id.
5
Behr v. Behr, 181 Md. 422, 426 (1943).
6
See, e.g., Henderson, 199 Md. 449 (1952); Fensterwald v. Burk, 129 Md. 131 (1916).
7
Henderson, 199 Md. at 459.
marriages. The Maryland legislature has repeatedly declined to enact laws that would prohibit
the recognition of same-sex marriages from other states; it has also extended to same sex couples
many of the benefits and obligations traditionally associated with marriage. Moreover, the Court
of Appeals of Maryland has emphasized that nothing in Maryland public policy would prevent
the state from recognizing same sex unions. For all these reasons, we believe that Maryland law
would recognize as valid a same-sex marriage that is valid in the jurisdiction where it was
contracted.
PUBLIC POLICY SUPPORTING RECOGNITION OF MARRIAGE
Consistent with well-established conflict-of-laws principles, Maryland has long recognized outof-state marriages that are valid where contracted or solemnized. Compelling public policy
concerns support this general recognition rule. Individuals and couples have a strong interest in
the certainty of their marital status. As one scholar has noted, “it would be ridiculous to have
people’s marital status blink on and off like a strobe light” as they move from state to state.8
Moreover, the general principles of comity have particular force in the context of marriage.9
Maryland law regards marriage with a sanctity that is not attributed to other contracts. 10 "In
contracts of marriage there is an interest involved above and beyond that of the immediate
parties. Public policy requires that marriage should not be lightly set aside."11 As a result,
Maryland case law emphasizes the importance of recognizing and upholding marriages
whenever possible.12
MARYLAND PRECEDENT SUPPORTS RECOGNITION OF OUT OF STATE SAMESEX MARRIAGES
Maryland has repeatedly applied the rule in favor of recognition to validate an array of out-ofstate marriages that would have been invalid had they been contracted in Maryland. For
example, in Henderson v Henderson, the Court of Appeals recognized as valid a common law
marriage contracted in the District of Columbia, even though Maryland law prohibits common
law marriage.13 Similarly in Fensterwald v Fensterwald, the Court recognized for inheritance
purposes a marriage between a woman and her uncle – both Maryland residents -- even though a
8
Andrew Koppelman, Interstate Recognition of Same-Sex Marriages and Civil Unions: A Handbook for Judges,
153 U. Penn. L. Rev. 2143 (2005).
Id.; see Henderson, 199 Md. at 458 (emphasizing the importance of “uniformity in the recognition of the marital
status”).
9
10
John Fader and Richard Gilbert, Maryland Family Law § 3-1 (2009).
11
Oswald v. Oswald, 146 Md. 313, 315 (1924).
12
John Fader and Richard Gilbert, Maryland Family Law §3-2(a) (2009); see Picarella v. Picarella, 20 Md. App.
499 (1974) (refusing to annul marriage despite couples’ fraudulent procurement of a marriage license and failure to
comply with statutory parental consent requirement, both of which constituted criminal offenses).
13
Henderson, 199 Md. at 459. Accord, Laccetti v. Laccetti, 245 Md. 97, 101 (1967); Blaw-Knox Constr. Equip. Co.
v. Morris, 88 Md. App. 655, 669 (1991).
2
Maryland statute expressly prohibited such marriages.14 Significantly, the Fensterwald court
upheld the challenged marriage despite evidence that the couple had traveled from Maryland to
Rhode Island for the express purpose of avoiding Maryland’s statutory ban on uncle-niece
marriages.
The fact that Maryland Family Code § 2-201 provides that “only a marriage between a man and
a woman is valid in this State,” does not preclude recognition of same-sex marriages validlycontracted in another state. Indeed, the discrepancy between marriage requirements in Maryland
and the laws of other states is precisely what triggers the recognition question. As the Maryland
Court of Appeals has explained in a related conflict-of-laws context, “for Maryland public policy
to override the lex loci contractus rule, the public policy must be very strong and not merely a
situation in which Maryland law is different from the law of another jurisdiction.”15 Thus,
“merely because Maryland law is dissimilar to the law of another jurisdiction does not render the
latter contrary to Maryland public policy.”16
Maryland recognizes only a narrow exception to the general rule of marriage recognition. The
State may refuse to recognize an out-of-state marriage when the marriage is “repugnant to its
own laws and policy.”17 Such “repugnance” may exist where the legislature has expressly
prohibited recognition of the out-of-state marriage or where the marriage is deemed contrary to
the laws of nature.18 Neither of these narrow exceptions applies to same-sex marriages validly
contracted in another jurisdiction. The Maryland Legislature has repeatedly declined to enact
legislation that would preclude recognition of out-of-state marriages of same sex couples.19 This
legislative choice distinguishes Maryland from other jurisdictions that have included non-
14
MD. CODE ANN. FAM. LAW § 2-202(c)(1)(xii).
15
Kramer v. Bally's Park Place, Inc., 311 Md. 387 (1998); In Kramer, the Court of Appeals considered the
enforceability of a casino gambling debt incurred in New Jersey. Despite “a Maryland statute [that] specifically
forbids, on public policy grounds, the enforcement of a contractual agreement such as that involved here,” the court
held that the debt was enforceable in Maryland as long as the gambling was legal and the debt enforceable in the
state where it was incurred. Id. at 391, 398. In so holding, the court reviewed early cases interpreting the Maryland
statute at issue as voiding all debts created through gambling. Id at 393. The court noted a number of statutes since
those early cases that, while not changing the prohibition on casino gambling, reflect a public policy more tolerant
of gambling. Given this change in public policy as evidenced by these statutes, the court held that “we cannot
conclude that there is a sufficiently strong Maryland public policy against gambling debts that would justify
disregarding the lex loci contractus principle.” Id. at 396.
16
Jackson v. Pasadena Receivables, Inc., 398 Md. 611, 622 (2007) (explicit Maryland statutory provision barring
enforcement of unsigned credit agreements does not represent a sufficiently fundamental public policy of Maryland
to override application of South Dakota law).
17
Henderson, 199 Md. at 459.
18
Fensterwald v. Burk, 129 Md. 131, 137-38 (1916).
19
See, e.g., H.B. 693/2005 (proposed bill declaring 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); H.B. 728/2004 (same).
3
recognition language in their statutes or constitutions.20 Nor has Maryland enacted an antievasion statute that would invalidate marriages by Maryland residents who travel to another state
to contract a marriage that would not be legal if performed in Maryland.21
Moreover, recent legislative and judicial developments demonstrate that recognition of same sex
marriages validly contracted in another state accords with Maryland public policy. Over the
past five years, the legislature has significantly expanded the benefits and protections available to
same-sex partners in Maryland. For example, in 2008 the General Assembly passed two bills
granting rights to domestic partners.22 The first bill extended eleven health-care benefits to
domestic partners.23 The second bill provided domestic partners with inheritance and property
transfer protections comparable to those accorded married couples.24 These legislative
developments belie any assertion that Maryland currently regards same-sex unions as “repugnant
to its own laws and policy;” indeed, they demonstrate that current Maryland policy favors the
recognition and stability of these relationships.
Nor does the Court of Appeals opinion in Conaway v. Deane25 support an exception to the
general rule of recognition for same-sex marriages validly contracted in other states. Although
the Deane Court rejected the argument that the state constitution required Maryland to allow
same sex couples to marry in Maryland, it nowhere suggested that recognition of out-of-state
same-sex marriages would be contrary to Maryland public policy. Indeed, the Deane Court
emphasized that ”our opinion should by no means be read to imply that the General Assembly
may not grant and recognize for homosexual persons civil unions or the right to marry a person
of the same sex.”26 Thus, the Deane court made clear that it was deciding only the constitutional
question before it and that its opinion did not address related issues, including the recognition of
out-of-state same-sex marriages.
Cf., VA. CODE. ANN. § 20-45.2 (“A marriage between persons of the same sex is prohibited. Any marriage entered
into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia . . .”); W.V.
CODE. § 48-2-603 (“A public act, record or judicial proceeding of any other state, territory, possession or tribe
respecting a relationship between persons of the same sex that is treated as a marriage under the laws of the other
state, territory. . . shall not be given effect by this state.).
20
Cf., ARIZ. REV. STAT. ANN. § 24-112(C) (“Parties residing in this state may not evade the laws of this state
relating to marriage by going to another state or country for solemnization of the marriage.”); WIS. STAT. § 765.30
(penalty of up to $10,000 and/or 9 months imprisonment for marrying in another state to evade Wisconsin’s
marriage law).
21
22
2008 Md. Laws Ch. 590, 2008 Md. Laws Ch. 599. Neither bill was intended to have any effect on Maryland
Family Code § 2-201, which governs the validity of marriages performed in Maryland.
23
2008 Md. Laws Ch. 590.
24
2008 Md. Laws Ch. 599.
25
401 Md. 219 (2007).
26
Id. at 325.
4
CONCLUSION
Maryland law supports recognition of same-sex marriages validly contracted in another state.
Such recognition accords with well-established Maryland precedent and furthers important
policy goals. No clearly expressed state policy supports an exception to the general rule that
favors recognition of out of state marriages. Indeed, there is ample evidence that current
Maryland public policy fully supports the recognition of same sex marriages validly solemnized
or contracted in another state.
Respectfully submitted,
1.
2.
3.
4.
5.
Barbara Babb
Clinton Bamberger
Taunya Banks
Barbara Bezdek
Brenda Bratton
Blom
6. Fred Brown
7. Richard Boldt
8. Danielle Citron
9. Phillip Closius
10. Douglas Colbert
11. Robert Condlin
12. Karen Czapanskiy
13. Gloria Danziger
14. Kia Dennis
15. Amy Dillard
16. Eric Easton
17. Deborah Eisenberg
18. Martha Ertman
19. Donald Gifford
20. Michele Gilman
21. Leigh Goodmark
22. Mark Graber
23. Oscar Gray
24. Steven Grossman
25. Phoebe Haddon
26. Susan Hankin
27. Daniel Hatcher
28. Cassandra Havard
29. Deborah Hellman
30. Leslie Meltzer Henry
31. Diane Hoffmann
32. Margaret Johnson
33. Robert Keller
34. Dionne Koller
35. Rebecca Korzec
36. Robert Lande
37. Teresa LaMaster
38. Susan Leviton
39. Matthew Lindsay
40. Mala Malhotra-Ortiz
41. Russell McClain
42. Audrey McFarlane
43. Michael Millemann
44. Nancy Modesitt
45. Paula Monopoli
5
46. Jane C. Murphy
47. Odeana R. Neal
48. Michael Pinard
49. Amanda Pustilnik
50. William Reynolds
51. Sarah Rogerson
52. Karen Rothenberg
53. Robert Rubinson
54. Elizabeth Samuels
55. Jane Schukoske
56. Jack Schwartz
57. Wendy Seiden
58. Stephen Shapiro
59. Jana Singer
60. Rena Steinzor
61. Donald Stone
62. Robert Suggs
63. Kathy Vaughns
64. Ellen Weber
65. Marley Weiss
66. Deborah Weimer
67. Gordon Young