Tomorrow, gay couples across Maryland can take the first step toward equal recognition of their relationships when county clerks of courts for the first time will be allowed to issue licenses for same-sex marriages. And we may get a hint of just how equal those marriages will be on Friday, when the Supreme Court is due again to debate which, if any, of several key lawsuits about the status of same-sex marriages under federal and constitutional law it will take up during this term.
One of the compromises proponents of same-sex marriage struck in order to get enough votes in the House of Delegates was a provision that prevented the new law from taking effect before midnight Dec. 31. But that left some unanswered questions. Would court clerks only be able to issue the licenses after the law goes into effect? That would mean no licenses until Jan. 2, since the courts are closed on the 1st, and no marriages until Jan. 4 because of a waiting period in Maryland law. Given how long gay couples have waited to wed legally here, a delay until the 4th may not seem like a big deal, but it certainly lacks a bit of the romance of a New Year's Day wedding.
Attorney General Douglas F. Gansler weighed in on the matter and concluded that clerks may issue licenses as soon as the governor declares the gay marriage law to have been approved by voters, which he plans to do tomorrow. The only restriction is that the licenses cannot be effective before midnight on Jan. 1.
The attorney general's opinion also included what might be a bit of disappointing news for some gay couples. Marylanders who already wed in another state where gay marriage is legal cannot now legally marry in their home state. Since Maryland already recognized legal gay marriages from other states, the logic is the same as if a straight couple who got married in, say, Hawaii, tried to hold a second legal wedding here. And in further proof that a civil union is not the same as a marriage, those who were joined in such an arrangement in another state can get married here — but not if they are trying to marry someone new.
Mr. Gansler's opinion goes to some length to make the point that county clerks should do nothing that would treat same-sex marriages differently in practice than opposite-sex ones; in fact, there is a section at the end dealing with how to handle the question of gender references in marriage vows ("I now pronounce you husband and husband," etc.) to avoid the possibility that any couple, gay or straight, would feel discriminated against or disappointed at the language used.
But under federal law, same-sex marriages in Maryland, as with those performed in other states, will still be less than equal. Because of the 1996 Defense of Marriage Act, the federal government is prohibited from recognizing same-sex marriages, which has significant implications for taxes and Social Security survivor benefits, among other things. But that, too, could soon change. The Supreme Court justices are debating whether to take up several cases related to gay marriage that are before it, including challenges to the Defense of Marriage Act and to California's Proposition 8, which outlawed gay marriage there.
Theoretically, the Proposition 8 case could lead to the recognition of a federal constitutional right to gay marriage, as a federal district judge ruled. But it is also possible that, if the judges take it up, they could affirm an appellate court's narrower rejection of Proposition 8, which in practice only applies to the particular circumstances of California. The Defense of Marriage Act cases, which have a strong states' rights component, may be an easier sell for a court that is expected to be narrowly divided on the issue.
In the meantime, though, Maryland lawmakers' work with respect to marriage equality is not quite done. Although same-sex couples can be wed here starting Jan. 1, they will still be considered as single for state income tax purposes. Maryland is what is known as a "conforming state," which means that absent a specific tax law change, it treats people the same way the IRS does. Comptroller Peter Franchot is examining whether that could be fixed through regulatory changes, but when the General Assembly returns to Annapolis, it should take up legislation to ensure that same-sex couples are treated equally in the eyes of the taxman as well as the law.