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Md. may recognize out-of-state gay marriages

Attorney general issues opinion as D.C. couples prepare to wed

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Maryland Attorney General Doug Gansler (Photo courtesy of Maryland state government)

Maryland Attorney General Douglas Gansler issued a long-awaited opinion Wednesday saying same-sex marriages performed in other states or countries most likely would have full legal standing in the state.

But in his 53-page legal opinion, Gansler said the Maryland Court of Appeals would have the final say in the matter should opponents of same-sex marriage choose to contest the legal standing of married same-sex couples living in or visiting the state.

Gansler’s opinion comes one week before a law allowing same-sex marriages to be performed in D.C. is expected to take effect March 3. Same-sex couples in Maryland have said they would likely make wedding plans in the District in response to a favorable opinion from Gansler.

The attorney general’s opinion comes nine months after state Sen. Richard Madaleno (D-Montgomery County), who is gay, asked Gansler to issue an official opinion on the question of whether the state could legally recognize same-sex marriages from other jurisdictions.

“You have asked whether those marriages may be recognized under state law,” Gansler said in his opinion, which is addressed to Madaleno. “The answer to that question is clearly ‘yes.’”

Madaleno could not immediately be reached for comment, but he told the Washington Post in a brief interview that changes in state policy could now result from a court ruling, legislation or administrative action, though none of those is imminent.

Gansler says in the opinion that while he believes the legal concept of state “public policy” favors recognition of out-of-state gay marriages, others might raise legal grounds to contest that view.

In particular, he points to the 2007 ruling by the Maryland Court of Appeals upholding the state’s marriage law banning same-sex marriages from being performed in the state. In that 4-3 ruling denounced by LGBT activists, the court ruled that restricting marriage to a man and a woman doesn’t discriminate against same-sex couples or deny them rights under the state constitution. The court held that the ban on same-sex marriage instead promotes the state’s “interest” in traditional heterosexual marriage as a means of fostering procreation and protecting children.

But Gansler says in his opinion that the appeals court decision should not be a key factor in determining whether Maryland could recognize same-sex marriages from other jurisdictions.

“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,” he said in his opinion. “There are exceptions 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, Gansler noted that the Court of Appeals has not prevented the state from recognizing various types of marriages performed in other states that are not allowed to be performed in Maryland under the state’s marriage law. Among them are common law marriages, which are recognized in many other states. The Court of Appeals also upheld a Rhode Island marriage between an uncle and a niece, even though the Maryland marriage law prohibits such a marriage, Gansler says in his opinion.

“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,” he says. “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.”

In response to a second question raised by Madaleno, Gansler says in his opinion that Maryland Gov. Martin O’Malley does not have authority to issue an executive order recognizing same-sex marriages from other jurisdictions.

In his May 19, 2009, letter to Gansler requesting the same-sex marriage recognition opinion, Madaleno pointed out that New York Gov. David Paterson issued such an order, clearing the way for New York to recognize out-of-state same-sex marriages, even though the legislature had not approved a same-sex marriage bill.

“An executive order of the governor must be consistent with existing Maryland law, as enacted by the General Assembly and construed by the courts,” Gansler says.

LGBT rights groups hailed Gansler’s opinion as an important breakthrough for the marriage equality movement.

“Today is a day to celebrate,” said Morgan Meneses-Sheets, executive director of Equality Maryland, a state LGBT advocacy group.

“Equality Maryland applauds a favorable opinion released by the Office of Attorney General Doug Gansler that states that the marriages of same-gender couples legalized in other jurisdictions have standing to be honored here at home.”

But Rick Bowers, director of Christian Impact Alliance, a Maryland group opposed to same-sex marriage, said Gansler acted without legal authority to issue such a ruling.

“The governing body over a decision like this should be the General Assembly or the people of the state of Maryland through a vote by referendum,” Bowers said.

Gay rights groups, however, disputed Bowers assessment, saying Gansler has authority to issue such an opinion.

Lambda Legal, a national LGBT group, praised Gansler’s opinion for “saying that recognition of out-of-state marriages of same-sex couples is consistent with Maryland law.”

Susan Sommer, director of the group’s Constitutional Litigation program, said the Gansler opinion “should bring some peace of mind to married same-sex couples and their families in Maryland as this state aligns itself with New York, making clear that there is no gay exception to long-standing marriage recognition law.”

Evan Wolfson, executive director of the national same-sex marriage advocacy group Freedom to Marry, said he was confident that the Maryland Court of Appeals would uphold Gansler’s assessment that valid same-sex marriages from other jurisdictions have full legal standing in Maryland.

“Maryland’s typical practice, like all states historically, is to honor marriages rather than destabilize them,” Wolfson said. “The Maryland Attorney General is concluding, looking at Maryland law, that there is no reason for a gay exception to that tradition and common sense practice.”

While praising Gansler’s opinion as an important development for same-sex marriage equality, some LGBT organizations said it focuses attention on the need for all states to adopt same-sex marriage laws.

“Today’s opinion by the Maryland Attorney General only continues to further highlight the burdensome patchwork of unequal laws same-sex couples face across the country,” said Joe Solmonese, president of the Human Rights Campaign. “With every step that is taken in the progress toward full equality, it becomes more and more obvious that separate is not equal and marriage by any other name is not marriage.”

The action by Gansler on Wednesday also comes less than a month after the Maryland House Judiciary Committee voted 12-8 to defeat a bill that would have banned same-sex marriage in the state. The measure was introduced by Del. Emmett Burns (D-Baltimore County), who said he anticipated Gansler’s opinion would back same-sex marriage recognition.

Maryland Del. Don Dwyer (R-Anne Arundel County), meanwhile, is “definitely” moving ahead with plans to file impeachment papers against Gansler for his same-sex marriage recognition opinion, according to spokesperson Louisa Baucom.

“His position about the opinion is that Attorney General Gansler had no right to issue the opinion, regardless of what the opinion is — that his constitutional limitations prohibit that,” Baucom said.

“He will be drawing up letters of impeachment against Attorney General Gansler,” she said, adding that the charges would be based on “violation of his oath of office.”

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7 Comments

7 Comments

  1. Steve

    February 25, 2010 at 9:06 am

    Will someone impeach Dwyer. Every time someone goes against what he “believes” he wants to impeach them.

  2. Jerry

    February 25, 2010 at 2:42 pm

    Since I am not a lawyer nor particularly well versed in the law, I have to ask for some help. If a man and woman get married in Massachusetts, or the Netherlands or Spain, I believe that the state of Maryland and all other states and the District recognize those marriages as valid. If two men or two women marry in a jurisdiction that recognizes such marriages, what legal basis is there for a state to refuse recognition.

    Currently I would assume that it would be under DOMA, but in the case of Maryland, I don’t think they have passed a marriage law that only permits heterosexual marriages.

  3. Tim

    February 25, 2010 at 4:31 pm

    The LGBT community in Maryland really needs to rund candidates against the anti-gay Democrats who sit on key committees and replace them with pro-LGBT Democrats. The Republicans, (Like Delegate Dwyer) are almost always against us, but really, its a handfull of homophobic Democrats on these committees that are keeping Maryland from recognizing and allowing same-sex marriage.

  4. John B.

    February 26, 2010 at 1:43 pm

    Hey, does this mean that Harry Jackson will go home to Maryland and re-register to vote there so he can oppose this? He won’t even have to rent an apartment or buy a condo to pretend he lives there, as he’s doing now in the District.

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Gay man attacked, beaten by neighbors in Northeast D.C.

Police list incident as hate crime but courthouse ‘backlog’ could delay arrests

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Antonio Zephir was beaten by neighbors and fears for his life. (Photo courtesy of Zephir)

A woman, her daughter, and a man believed to be the daughter’s father repeatedly punched a gay man in the face while the mother called him a “Jewish faggot” and other anti-gay slurs during an Oct. 13 incident on the grounds of an apartment building where the victim and the two women live, according to the victim and a D.C. police incident report.

The victim, Antonio Zephir, 51, told the Washington Blade the incident began after the mother began shouting anti-gay slurs at him as he walked past her and his roommate outside the Northwood Gardens Apartments at 4870 Fort Totten Dr., N.E. at about 12:40 p.m. on Wednesday, Oct. 13. 

Zephir identifies the mother as Aurlora Y. Ellis in court papers seeking a restraining order against her that he filed in D.C. Superior Court. He said she had acted in a hostile way toward him before the assault incident.

“For several months, every time Ms. Ellis sees me, she shouts homophobic slurs and I continued to ignore her,” Zephir told the Blade in an email.

He said that minutes before the Oct. 13 attack, Ellis yelled the words “Jewish faggot” when he walked past her as she was talking to his roommate, Steven Johnson. Zephir said it is well known among his neighbors at the apartment complex that he is of the Jewish faith.

“I responded with not-so-kind words. She ran towards me and assaulted me with hard punches toward my face,” Zephir wrote in his email to the Blade. 

“I punched back in an attempt to defend myself,” he wrote. “Mr. Johnson tried to break us up when her daughter Latera Cox and [Cox’s] father assaulted me,” according to Zephir’s account of the incident. “Ms. Ellis yelled, ‘Call the police, you bitch faggot. They’re not going to do anything. This isn’t over yet.”

At that point, Ellis, her daughter Latera Cox, and the man Zephir believes to be Cox’s father fled the scene, Zephir told the Blade.

The D.C. police incident report, which lists the assault as a suspected hate crime, says, “All three suspects then fled east bound” on the 4800 block of Fort Totten Dr., N.E.

Zephir said he immediately called police, who arrived on the scene and took a report on the incident. The report obtained by the Blade lists the incident as a simple assault, which is a misdemeanor under D.C. law.

But Zephir said a detective working on the case told him this week that police were looking into speeding up the process of obtaining warrants for the arrest of the three attackers based, in part, on the injuries Zephir suffered from the attack. He provided the Blade with a medical report issued by the Washington Hospital Center, where his roommate took him to the emergency room the day following the attack, in response to severe pain he was experiencing to his face and head.

The report from the hospital, which treated and released him on Oct. 14, says he was diagnosed as having a fractured nose; a fracture of the “interior orbital wall,” which is the bone surrounding one of his eyes; subconjunctival hemorrhage or bleeding of his left eye; and “laceration of oral cavity” which means an injury inside his mouth caused by trauma from the assault.

Zephir told the Blade that the same detective told him last week that due to a “backlog” in cases at the D.C. Superior Court, it could take between one and two months for police and prosecutors to obtain warrants for the arrests of the two women and the man who assaulted him.

A police spokesperson told the Blade the case remains under active investigation. A spokesperson for the Office of the U.S. Attorney for the District of Columbia, which acts as the prosecutor for adult criminal cases in D.C., said he would look into whether the office could publicly comment on the status of efforts to obtain arrest warrants for the three attackers.

Zephir said rumors had surfaced prior to the assault incident that Ellis may have access to a gun. Based on what he feared was a threat by Ellis when she told him during the attack that “this isn’t over yet,” he said he persuaded his roommate to drive him to the courthouse on the same day as the attack to apply for a court restraining order to prevent Ellis from harming him again.

Court records show he also filed a civil complaint against Ellis, Ellis’s daughter, and Ellis’s roommate, Linda Miller, who Zephir says in the complaint acted as an “enabler” for Ellis’ hostility toward him.

The complaint, which is a civil lawsuit that Zephir wrote by hand and filed by himself without hiring a lawyer, calls for $18,000 in damages.  

“I have nightmares,” Zephir told the Blade. “I can’t believe it happened. I keep reliving the experience over and over and over in my head,” he said. “And I feel like I’m a prisoner in my own apartment. I don’t feel safe because I, honest to God, feel like she is going to bodily harm me and I might be, God forbid, murdered.”

Ellis, Cox, and Miller could not immediately be reached for comment.

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Biden endorses Roem for re-election

Former journalist is first out trans person in any state legislature

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Virginia state Del. Danica Roem (D-Manassas) speaks to supporters following her re-election on Nov. 5, 2019. President Biden has endorsed her for re-election. (Washington Blade photo by Michael Key)

President Biden on Tuesday endorsed Virginia state Del. Danica Roem (D-Manassas) for re-election.

Speaker Eileen Filler-Corn (D-Fairfax County) is among the other Democratic members of the Virginia House of Delegates who Biden backed. Biden in his tweet also stressed his support of Terry McAuliffe, who is running against Republican Glenn Youngkin to succeed Democratic Gov. Ralph Northam.

“Building back better starts in the states,” tweeted Biden. “Since flipping the legislature in 2019, Virginia Democrats have been a model of progress—including helping us vaccinate folks to beat the pandemic. To keep our progress, we must elect Terry McAuliffe and Democrats up and down the ballot.”

Roem, a former journalist, in 2018 became the first openly transgender person seated in any state legislature in the U.S.

Biden called Roem on the night she defeated then-state Del. Bob Marshall and congratulated her. A Washington Post picture that showed Roem crying moments later went viral.

The Manassas Democrat who represents the 13th District in 2019 easily won re-election. Christopher Stone, the Republican who is running against Roem in this cycle, opposes marriage and adoption rights for same-sex couples.

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Conservatives blame pro-trans policy after assaults in Loudoun schools

‘Gender fluid’ 15-year-old accused of attacking female students

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The Loudoun County, Va., public school system’s recently adopted policy of allowing students to use the bathroom that matches their gender identity has come under fire over the past two weeks by outraged parents and conservative political activists following reports that a 15-year-old “gender fluid” boy allegedly sexually assaulted two girls in different high schools.

The parents of one of the girls released a statement through the Virginia-based Stanley Law Group blaming school officials for failing to put in place safeguards to prevent the boy, who they say was dressed in a skirt, from entering the girl’s bathroom to assault their daughter at Stone Bridge High School in Ashburn, Va., on May 28.

The statement accuses Loudoun County Schools officials and the Loudoun County Board of Education of failing to take steps to prevent the same 15-year-old boy from allegedly sexually assaulting another female student at Broad Run High School, also located in Ashburn, on Oct. 6 in a vacant classroom.

School officials acknowledge that the boy was transferred to the second school after law enforcement authorities released him from a juvenile detention facility following his arrest for the first case, in which the Loudoun County Sheriff’s Office said he was charged with two counts of forceable sodomy against his female victim. 

“The sexual assault on our daughter and the subsequent sexual assault by the same individual were both predictable and preventable,” the parents’ statement says. “Subsequent to the sexual assault on our daughter, Loudoun County Public Schools formalized the policy regarding restroom use that was easily exploitable by a potential sexual assailant,” the statement continues. 

“Because of poor planning and misguided policies, Loudoun Schools failed to institute even minimal safeguards to protect students from sexual assaults,” says the statement.

Loudoun County Schools Superintendent Scott A. Ziegler apologized at an Oct. 15 news conference for what he acknowledged was the school systems’ mishandling of the two sexual assault cases. He noted that school officials should have publicly disclosed the two cases or at least alerted parents at the time they occurred. But he said a federal civil rights law known as Title IX that mandates how schools must respond to cases of sexual harassment appeared to prevent Loudoun school officials from initially disclosing the two cases of sexual assault until they were investigated by law enforcement authorities.

Ziegler said the school system was revamping its disciplinary procedures and its interaction with the Loudoun Sheriff’s Office to ensure that parents and students are alerted to potential danger similar to the cases where the 15-year-old boy allegedly assaulted the two female students.

Meanwhile, school officials and the LGBTQ advocacy group Equality Loudoun have pointed out that law enforcement officials have yet to confirm whether the 15-year-old boy charged in the two cases was actually dressed in women’s clothes during the first incident or whether he is trans or gender fluid.

Equality Loudoun’s president, Cris Candice Tuck, released a statement to the Washington Blade on Oct. 18 that she said was the first official known statement responding to the Loudoun school controversy from an LGBTQ organization.

“In light of the reporting of recent sexual assault allegations, the Board of Directors of Equality Loudoun wishes to extend our deepest sympathies to the victims of these heinous attacks and their families,” the statement says. “Equality Loudoun advocates for due process and justice for the victims regardless of whether the alleged perpetrator was a member of the LGBTQ+ community,” the statement continues. “Such actions have no place in our community, and Equality Loudoun does not condone any form of sexual violence, assault, or harassment,” it says.

“However, the accusations that the alleged perpetrator of these assaults is transgender or genderfluid have so far been unverified,” the Equality Loudoun statement asserts. “Attempts to shift blame of this incident to any individual, group, or policy – other than the alleged perpetrator – does a grave disservice to the victims of these crimes and already marginalized youth in our community.”

The statement adds, “We remind those advocating for change to the laws and policies that the initial assault predated any enactment of Policy 8040 by almost 4 months.”

The Equality Loudoun statement was referring to the fact that the Loudoun County School Board did not vote to approve the school system’s trans nondiscrimination policy until August of this year, more than three months after the first of the two sexual assault incidents occurred. 

The policy, among other things, allows transgender and genderfluid students to use the school bathrooms and locker rooms that match their gender identity. The policy also requires that teachers, school administrators and fellow students address a trans or genderfluid student by their chosen name and pronouns.

“Inadvertent slips in the use of names and pronouns may occur,” the policy states. “However, staff or students who intentionally and persistently refuse to respect a student’s gender identity by using the wrong name and gender pronoun are in violation of this policy,” it states.

The statement says that rumors of a bathroom “pilot” program that predated the official approval of Policy 8040 that would have allowed female trans or genderfluid students to use the girls’ bathrooms “are simply untrue” and were never put in place.

In a separate statement to the Blade, Equality Loudoun’s Cris Candice Tuck challenged claims by some parents and conservative political activists, some of whom are supporting Virginia’s GOP gubernatorial candidate Glenn Youngkin over Democrat Terry McAulliffe, that the trans nondiscrimination policy is placing students at risk for sexual assault.

“The adoption of nondiscrimination policies are in no way endangering students,” Candice Tuck said. “Across the country, sexual assaults have occurred in schools for decades before any transgender inclusive policies were passed,” she said. “And in those counties and states where such protections have passed in recent years, there has been no verified incidence of anyone abusing such policies to commit such attacks in schools.”

Candice Tuck added, “The focus should be on improving systems of reporting, coordination, and investigation, protecting the victims of these attacks, and creating safer school environments by creating modernized areas and bathrooms that increase protection for all students, including LGBTQ+ students who are statistically more likely to be the victim of such a crime.”  

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