When could Maryland clerks start issuing marriage licenses to same-sex couples after voters approved same-sex marriage?

Plain-English summary

In 2012 Maryland voters approved the Civil Marriage Protection Act (Chapter 2 of the 2012 laws), which amended Family Law § 2-201 to allow marriage between two individuals regardless of sex. The Act had a written effective date of January 1, 2013. Because the law had been petitioned to referendum, it was suspended until the voters ratified it and the Governor proclaimed the result. The Administrative Office of the Courts, fielding a wave of questions from circuit court clerks, asked the Attorney General a series of practical questions about how and when clerks should process marriage licenses for same-sex couples.

On timing, the Attorney General advised that clerks could begin taking applications right away, and could begin issuing licenses once the Governor formally proclaimed that voters had approved Chapter 2 (expected on or about December 6, 2012), provided that any license issued before January 1, 2013, carried an effective date no earlier than January 1, 2013. The opinion reasoned that nothing in the licensing statute forbids a clerk from putting a later effective date on a license, and that the two-day waiting period sets a floor, not a ceiling, on how long a couple waits. The opinion acknowledged this was not the only permissible reading; a clerk could instead decline to act until the new year. Because authorizing same-sex marriage was now the State's clear public policy, the opinion urged clerks to exercise their administrative discretion in a way that facilitated same-sex marriages to the same extent as opposite-sex marriages.

On couples with existing out-of-state relationships, the opinion drew a line. A same-sex couple already validly married in another state could not obtain a new Maryland license, because Maryland recognizes that existing marriage and an existing marriage bars a second one. A couple joined only in an out-of-state civil union, by contrast, generally faced no statutory bar to marrying in Maryland, though the opinion flagged unresolved conflict-of-law questions if a court later treated a particular civil union as the equivalent of a marriage. On the wedding vows, the opinion left the form largely to each circuit's administrative judge but recommended letting couples choose how they are named ("spouse," "husband and wife," "husband and husband," and so on) and avoiding labels like "standard" versus "alternative" that could stigmatize one form of union.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

When did same-sex marriage become legal in Maryland?
The Civil Marriage Protection Act took effect January 1, 2013. The opinion noted that under the Act's own terms, same-sex marriage ceremonies could be performed beginning that date, "at the stroke of midnight on New Year's Eve."

Could clerks issue licenses before January 1, 2013?
Yes, with a condition. The opinion advised that once the Governor proclaimed the referendum result (expected around December 6, 2012), clerks could issue same-sex marriage licenses, but any license issued before January 1, 2013, had to bear an effective date no earlier than January 1, 2013.

Did clerks have to issue licenses early, or was it optional?
It was optional. The opinion described early issuance as an administrative choice, useful mainly to spread out an anticipated crush of applications. A clerk could instead wait until the new year to act. The opinion said this administrative judgment was left to the clerks and the circuit court judges who oversee them.

If a same-sex couple already married in another state, could they marry again in Maryland?
No. The opinion concluded that a couple already validly married out of state could not obtain a new Maryland license while that marriage remained intact, the same rule that applies to opposite-sex couples. Maryland recognizes the out-of-state marriage, and an existing marriage bars a second one.

What about a couple joined in an out-of-state civil union?
The opinion concluded that, absent statutory language prohibiting it, clerks could issue a Maryland marriage license to a couple in an out-of-state civil union who wished to marry each other. It cautioned that whether such a civil union might later be treated as the equivalent of a marriage (and thus bar a second marriage) depended on the specific rights and obligations of that union and could not be resolved in the licensing process.

Did clerks have to use special vows for same-sex couples?
No. The opinion left the form of the ceremony to each circuit's administrative judge but recommended offering all couples a choice of how they would be named in their vows, and avoiding "standard" versus "alternative" labels that could stigmatize one kind of union.

Background and statutory framework

Before 2012, Maryland law provided that "[o]nly a marriage between a man and a woman is valid in this State," a rule codified at Family Law § 2-201 and upheld by the Court of Appeals in Conaway v. Deane, 401 Md. 219 (2007). The Civil Marriage Protection Act (2012 Md. Laws, ch. 2) amended § 2-201 to provide that "[o]nly a marriage between two individuals who are not otherwise prohibited from marrying is valid in this State," and made conforming gender-neutral changes. Enacted by the Governor's signature in March 2012, the Act was petitioned to referendum, which suspended it under Md. Const., Art. XVI, § 2 until the voters approved it. They did so by a reported 52 to 48 percent margin. The Act carried its own effective date of January 1, 2013.

The new right operated within Maryland's existing licensing framework, which Chapter 2 expressly did not disturb (FL § 2-201(a)). A couple must obtain a license from the clerk of the circuit court (FL § 2-401(a)); an applicant appears before the clerk and provides basic information, which has never included the parties' gender (FL § 2-402(b)). If the clerk finds a "legal reason why the applicants should not be married," the clerk withholds the license unless a court orders otherwise (FL § 2-405(e)). A license is generally not effective "until 6 a.m. on the second calendar day after the license is issued" (FL § 2-405(d)(1)), a waiting period a court may shorten "for good cause shown" for a resident or servicemember (FL § 2-405(d)(2)). Under Maryland law, it is the ceremony, not the license, that validates the marriage (Feehley v. Feehley, 129 Md. 565, 570 (1916)).

Working through those provisions, the opinion concluded that the pre-2012 "legal reason" barring same-sex licenses disappeared once Chapter 2 took effect, and that a clerk could issue a license before January 1, 2013, so long as it bore a January 1, 2013, effective date, because § 2-405(d)(1) sets a minimum waiting period and § 2-405(h)(1) bars only predating an application, not a later effective date. On re-marriage, the opinion relied on the rule that an existing marriage bars a second one, and on Maryland's recognition of valid out-of-state same-sex marriages (Port v. Cowan, 426 Md. 435 (2012)), to conclude that couples already married elsewhere could not get a new Maryland license. On civil unions, it read Chapter 2's silence, contrasted with the domestic-partnership law's explicit treatment (Md. Code Ann., Health-Gen. § 6-101(a)), as leaving no bar to marriage, while surveying out-of-state authority (including Elia-Warnken v. Elia and a Connecticut AG opinion construing Kerrigan v. Commissioner of Public Health) on when a civil union is treated as marriage-equivalent. On vows, the opinion found no case law on the required form and cautioned that a substantive difference between same-sex and opposite-sex vows could raise constitutional questions, while purely nomenclatural choices would not.

Citations and references

Statutes and constitutional provisions:
- FL § 2-201, FL § 2-201(a), FL § 2-201(b), Family Law marriage-validity provision as amended by Chapter 2
- FL § 2-401(a), requirement to obtain a license from the circuit court clerk
- FL § 2-402(b), information required in a license application
- FL § 2-405(d)(1), two-day effective-date waiting period
- FL § 2-405(d)(2), court authority to shorten the waiting period for good cause
- FL § 2-405(e), clerk's duty to withhold a license where there is a "legal reason" not to marry
- FL § 2-405(f), delivery of the license
- FL § 2-405(h)(1), bar on predating an application
- FL § 2-406(f)(2), administrative judge's designation of the form of the ceremony
- 2012 Md. Laws, ch. 2, the Civil Marriage Protection Act
- Md. Const., Art. XVI, § 2, referendum suspension of a law pending a vote
- Md. Code Ann., Health-Gen. § 6-101(a), definition of "domestic partnership"

Cases:
- Conaway v. Deane, 401 Md. 219 (2007), Maryland Court of Appeals
- Feehley v. Feehley, 129 Md. 565, 570 (1916), Maryland Court of Appeals
- Port v. Cowan, 426 Md. 435 (2012), Maryland Court of Appeals
- Robey v. Broersma, 181 Md. 325, 336 (1942), Maryland Court of Appeals
- McGinnis v. Board of Supervisors of Elections, 244 Md. 65, 69 (1966), Maryland Court of Appeals
- Elia-Warnken v. Elia, 972 N.E.2d 17, 21 (Mass. July 26, 2012), Massachusetts Supreme Judicial Court
- Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A.2d 407 (2008), Connecticut Supreme Court

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2012/97oag72.pdf

Original opinion text

CLERKS OF COURT
MARRIAGE LICENSES – ISSUANCE OF MARRIAGE LICENSES TO
SAME-SEX COUPLES AFTER APPROVAL OF THE CIVIL
MARRIAGE PROTECTION ACT
November 29, 2012
David R. Durfee, Jr.
Executive Director
Department of Legal Affairs
Administrative Office of the Courts
You have asked for our opinion on a number of questions
relating to the implementation of Chapter 2 of the Maryland Laws
of 2012, which amended § 2-201 of the Family Law Article
(“FL”) so as to remove the statutory prohibition of same-sex
marriages. Chapter 2 was recently approved by the voters on a
referendum and will, therefore, become effective on January 1,
2013—the effective date provided for in the legislation itself. In
anticipation of Chapter 2 becoming effective, the clerks of the
various circuit courts in Maryland have received and made
numerous inquiries about implementation of Chapter 2. You have
collected these inquiries and have synthesized them into the
following questions, which we have slightly re-phrased:
1. On what date can a clerk begin taking
applications for marriage licenses for same-sex
marriages?
2. On what date can a clerk begin issuing
marriage licenses for same-sex marriages?
3. On what date can a clerk begin delivering
issued licenses for same-sex marriages to the
parties?
4. If licenses may be issued earlier than January
1, 2013, how do the provisions for the waiting
period in FL § 2-405(d)1 apply to those
licenses? For example, would a license issued
on December 28, 2012, or earlier take effect at
6:00 a.m. on January 1, 2013, or at 6:00 a.m.
on January 3, 2013 (i.e., 6:00 a.m. on the

 1
 Unless otherwise noted, all statutory references refer to the

current version of the Family Law Article reflected in the 2006
Replacement Volume of the Annotated Code of Maryland and the 2012
Supplement.

       second calendar day after same-sex marriage
       became legal)?
      5.    If a same-sex couple has already been married
       in a state where it was legal prior to January 1,
       2013, and that marriage remains intact, can
       they now get a license and marry in Maryland?
      6.    To the extent the Attorney General has
       previously opined or advised that a couple
       already married cannot get a license, would
       that conclusion still apply in this situation,
       where a couple could not previously be
       married in Maryland, and does Maryland’s
       recognition of out-of-state same-sex marriage
       affect this determination?
      7.    If a couple entered into a “civil union” in a
       state allowing that contract, and the civil union
       remains intact, is their marital status Married,
       Single, or some other status, and can they
       obtain a license to marry in Maryland?
      8.    Should clerks use two sets of vows, one for
       traditional unions and one for same-sex unions,
       or should they only use the new vows
       composed for same-sex unions? In other
       words, may clerks’ offices offer each couple
       the opportunity to select from a standard and
       alternative text (using “spouse” as standard and
       “husband and wife” as alternative)?
      9.    If the clerks may lawfully offer each couple the
       opportunity to select from a standard and
       alternative text for their marriage vows (using
       “spouse” as standard language, and offering
       “husband and wife” as an alternative), should
       this option be available to both opposite and
       same-sex couples?

In light of the volume of inquiries from the clerks and your
request that we provide guidance early enough to allow the clerks
and the public alike to prepare for Chapter 2 becoming effective,
we have addressed your questions on an expedited basis.

                            I
                       Background
 Same-Sex Marriages Under Maryland Law Before
 and After Enactment of Chapter 2
  We recently had occasion to describe the history of marriage

in Maryland and the treatment of same-sex marriages under
Maryland law, see 95 Opinions of the Attorney General 3 (2010),
and do not repeat that description here. For present purposes it
suffices to remember that, prior to the enactment of Chapter 2,
Maryland law specified that a marriage was between one man and
one woman. 57 Opinions of the Attorney General 71 (1972). The
General Assembly codified that understanding in 1973 with the
enactment of § 2-201 of the Family Law Article, which provided
that “[o]nly a marriage between a man and a woman is valid in
this State.” 1973 Md. Laws, ch. 213, then codified at Md. Ann.
Code art. 62, §1 (1974). The constitutionality of § 2-201 was
upheld by the Court of Appeals in Conaway v. Deane, 401 Md.
219 (2007).
In 2012, the General Assembly enacted the Civil Marriage
Protection Act, which, in relevant part, amends § 2-201 to provide
that “[o]nly a marriage between two individuals who are not
otherwise prohibited from marrying is valid in this State.” 2012
Md. Laws, ch. 2, § 1, to be codified at FL § 2-201(b). The Act
also made certain conforming changes to the consanguinity
provisions of the Family Law to make them gender-neutral and,
thus, applicable to spouses of either sex. Id., to be codified at FL
§ 202(b), (c). The clear effect and intent of the 2012 legislation
was to authorize same-sex marriages under Maryland law.
The legislation that ultimately became Chapter 2 (House Bill
438) was passed by both houses of the General Assembly and was
enacted into law by the Governor’s signature on March 1, 2012.
A successful petition drive placed Chapter 2 on the ballot as a
referendum measure in the 2012 election, which suspended the
law pending the voters’ approval or rejection at the polls. See
Md. Const., Art. XVI, § 2; McGinnis v. Board of Supervisors of
Elections, 244 Md. 65, 69 (1966). The voters ultimately approved
the legislation by a reported margin of 52% to 48%. See
Maryland State Board of Elections, “Unofficial 2012 Presidential
General Election Results for All State Questions” (available at
http://elections.state.md.us/elections/2012/results/general/gen_qre
sults_2012_4_00_1.html (last visited Nov. 15, 2012)). Assuming
the Governor proclaims that Chapter 2 was approved by the
voters on November 6, the suspension of the law will expire thirty
days thereafter, or on December 6, 2012. See Art. XVI, § 2; see
also Art. XVI, §5(b) (requiring the Governor to “proclaim the
results of the election” and declare the measure to have been

“adopted by the people of Maryland as a part of the laws of the
State, to take effect thirty days after such election”).
Although the period of suspension is expected to end on
December 6, 2012, the Act itself provides that it “shall take effect
January 1, 2013,” 2012 Md. Laws, ch. 2, § 7, unless, at that time,
litigation were pending “as to the validity or sufficiency of the
signatures” required to petition the bill to referendum. Id., § 5.
There being no such dispute, same-sex marriage will be formally
authorized under Maryland law at the stroke of midnight on New
Year’s Eve.
Obtaining a Marriage License Under Maryland Law
Although Chapter 2 amends Maryland law to allow for
same-sex marriage, it will take effect within an existing statutory
framework for the licensing of marriages, the provisions of which
Chapter 2 “may not be construed to invalidate.” FL § 2-201(a).
Those provisions require that a couple seeking to marry under
Maryland law must first obtain a license issued by the clerk of the
circuit court for the county in which the marriage is to be
performed. FL § 2-401(a); see also FL § 2-101(c) (defining “clerk”).
In order to apply for a license, one of the parties to be married
must appear before the clerk2 and provide certain basic
information about the parties, including their names, place of
residence, age, and social security numbers, and whether the
parties are related by blood or marriage, currently married, or, if
married previously, “the date and place of each death or judicial
determination that ended any former marriage.” FL § 2-402(b).
The statute does not now, and never has, included the parties’
gender within the list of required information.
Although the circuit court clerks generally accept the
representations made by the parties, under oath, in the application
for a marriage license, see 25 Opinions of the Attorney General
120 (1940) and 18 Opinions of the Attorney General 346 (1933),
the clerks are empowered to question the applicants about the
information included within the application. “If, during the
questioning of an applicant for a license, the clerk finds that there
is a legal reason why the applicants should not be married, the
clerk shall withhold the license unless ordered by the court to
issue the license.” FL § 2-405(e).
If, after questioning the applicant, the clerk determines that
the applicants qualify to marry, the clerk may issue and deliver a
license the same day that the application is made and, it is our

2
In Cecil County, both parties to be married must “appear together
before the clerk to apply for a license.” FL § 2-402(e).

understanding, typically does so. See FL § 2-405(a). The license
is not, however, immediately effective; unless the circuit court
orders otherwise, the license does not become effective “until 6
a.m. on the second calendar day after the license is issued.” FL
§ 2-405(d)(1). “For good cause shown,” a judge of the circuit
court for the county in which the application is made may
authorize a license to become effective at a time “before the
waiting period expires” if one of the parties to be married is either
a Maryland resident or a member of the United States armed
forces. FL § 2-405(d)(2). Once issued, the license is valid for six
months, FL § 2-406(b), during which time “any authorized
official”—an official of a religious order, a judge, a clerk, or a
“deputy clerk designated by the county administrative judge of
the circuit court for the county,” FL § 2-406(a)(2)—may perform
the ceremony. Under Maryland law, it is the ceremony, and not
the license, that validates the marriage. Feehley v. Feehley, 129
Md. 565, 570 (1916) (“The regulative purposes of the license
statute are useful and important, but they are sought to be
enforced by pecuniary penalties pronounced against those
officiating at unlicensed marriages, and not by the radical process
of rendering void and immoral a matrimonial union otherwise
validly contracted and solemnized.”); see also 75 Opinions of the
Attorney General 90, 92-94 (1990).
The Genesis of this Opinion Request
Prior to the enactment of Chapter 2, the fact that same-sex
marriage was not authorized under § 2-201 meant that there was a
“legal reason” why same-sex applicants “should not be married,”
which prohibited the issuance of a license under § 2-405(e). See
57 Opinions of the Attorney General at 72 (construing a prior
version of § 2-405(e) and concluding that, because there is a
“legal impediment” to same-sex marriage, clerks are “prohibited
from issuing a license”); see also Letter from Gloria Wilson
Shelton, Assistant Attorney General, to All Clerks of Court (Feb.
24, 2004) (“Because a marriage between persons of the same
gender is not legally valid in Maryland, the clerk is authorized by
statute to withhold the issuance of a marriage license to persons of
the same gender.”). The enactment and approval of Chapter 2
removed the “legal reason” why same-sex couples should not be
married. Accordingly, after January 1, 2013, a same-sex couple
will be entitled to apply for, and obtain, a marriage license and
solemnize their marriage in a civil ceremony in the same manner
as other Maryland couples.
The voters’ reported approval of Chapter 2 prompted several
inquiries to the clerks of the circuit courts about the
implementation of Maryland licensing requirements under the
new law. Specifically, several same-sex couples have inquired as
to how soon they can submit an application, obtain a license, and
be married under Chapter 2. In addition, other questions have

arisen about whether couples who have already entered into an
out-of-state union may obtain a marriage license here in Maryland
and about the vows the clerks are to recite when conducting same-
sex marriage ceremonies. The clerks of the various circuit courts
have compiled the questions they received and have referred them
to the Administrative Office of the Courts, which subsequently
referred them to us for our opinion.
II
Analysis
The questions presented in your request relate to three broad
topics: (1) the timing of the process of applying for and issuing a
marriage license; (2) the ability of couples already joined in out-
of-state unions to obtain marriage licenses and be married in
Maryland; and (3) the form of the vows for same-sex marriage
ceremonies. We shall address them in that same grouped manner.
A. Questions About the Timing of the Application for, and
Issuance of, Marriage Licenses for Same-Sex Couples
Under Chapter 2
Your first group of questions relates to the processing and
issuance of marriage licenses for same-sex couples and asks
whether and to what extent clerks may begin accepting,
processing, and issuing licenses in advance of the January 1, 2013
effective date of Chapter 2. As we will discuss below, we
conclude that the licensing statute, properly construed to advance
the public policies that lie behind it and behind Chapter 2, allows
the clerks to begin accepting and processing license applications
for same-sex couples prior to January 1, 2013, and even to issue
licenses prior to that date under certain conditions. We
acknowledge that the legal basis for doing so is not free from
doubt and that an alternative reading of the Act that would have
the clerks decline to take any action on a license application from
a same-sex couple prior to January 1, 2013, would also be
permissible. We believe that this is an administrative decision
that must necessarily be left to the clerks and, to some extent, the
circuit court judges that oversee their administration of the
marriage laws. However, since the authorization of same-sex
marriage is now established as the clear public policy of the State,
it is important that such administrative judgments be made in a
manner that facilitates same-sex marriage to the same extent that
administrative judgments would be made to facilitate opposite-sex
marriages.

              1.   On what date can a clerk begin taking
          applications for marriage licenses for same-sex
          marriages?
  The statute does not prescribe when a marriage license

application may be submitted or any date by which it must be
acted upon by the clerk. Although the clerk may issue and deliver
a marriage license on the same day the application is submitted,
the statute does not require the clerk to do so. And in 1961,
Attorney General Thomas B. Finan advised that, unlike marriage
licenses, the General Assembly had specified no expiration date
for applications. 46 Opinions of the Attorney General 44 (1961);
see also 26 Opinions of the Attorney General 266 (1941)
(observing that there is “no limitation upon the time within which
an applicant must secure a marriage license after making
application therefor”). For example, we previously concluded
that, in a situation where a minor applied for a license but failed
to provide the required written parental consent along with the
application, “the consent need not be filed at the time the
application is made but may be filed at any time before the license
is actually issued,” and that “[u]ntil a license is actually issued all
that is necessary for you to do is to retain the original application
in your files.” 24 Opinions of the Attorney General 191 (1939).3
We see nothing in the statute, as amended by Chapter 2, that
would cause us to depart from the conclusions we previously have
reached. Just as a clerk may process and retain an application
pending receipt of a necessary parental consent, a clerk who
wishes to accept, process, and retain a marriage license
application submitted by a same-sex couple in anticipation of the
effective date of Chapter 2 may do so.4 We see no statutory
3
In 1963, legislation was passed that authorized the clerk to
“destroy” an application if the parties had not picked up the license
within 90 days after they filed their application. 1963 Md. Laws, ch.
191 (codified at Art. 62, § 7A (1972 Repl. Vol.) and subsequently
recodified at FL § 2-405(j) (1999 Repl. Vol.)). The 1999 legislation
that amended the law to allow for the same-day issuance and delivery
of marriage licenses repealed this provision, which presumably was
rendered unnecessary by the “one-stop shopping for marriage license
applicants” the 1999 legislation authorized. See Senate Judicial
Proceedings Committee, Floor Report, Senate Bill 282 at 2 (1999).
Consequently, there is once again no expiration date for applications.
4
As discussed above, the effect of Chapter 2 is suspended until the
Governor formally proclaims that it has been approved by a majority of
voters. See Art. XVI, §§ 2, 5. To insure against the theoretical
possibility of a miscount or other circumstance that would result in the
legislation not becoming effective on January 1, 2013, we suggest that
clerks wait until the Governor’s proclamation before accepting
applications. However, because clerks “act in a ministerial capacity in
issuing the marriage licenses,” 25 Opinions of the Attorney General at
(continued…)

obstacle to clerks conducting the ministerial process of generating
a signed application prior to the effective date of the bill and
holding it until such time as the license can be issued.
2. On what date can a clerk begin issuing marriage
licenses for same-sex marriages?
We believe clerks may begin issuing same-sex marriage
licenses at any time after the Governor formally proclaims that
Chapter 2 has been approved by the voters, which we would
expect to occur on or about December 6, 2012. Although there is
a “legal reason” why same-sex couples cannot be licensed to
marry before midnight on January 1, 2013, FL § 2-405(e), there is
no such legal reason why they should not be licensed to marry at
any time after the moment the law takes effect. Accordingly, any
licenses for same-sex marriages that the clerks issue prior to
January 1, 2013, must bear an effective date of no earlier than
January 1, 2013. Issuance of licenses in this fashion is not barred
by § 2-405(e).
The provisions of the statute relating to the timing of the
license process similarly do not bar clerks from issuing licenses
with a January 1, 2013 effective date.5 Section 2-405(h)(1)
provides that a clerk “may not predate an application for a
license,” but does not in any way prohibit the clerk from
including a subsequent effective date on the license itself. Section

120, we see no legal obstacle to their accepting applications in
anticipation of Chapter 2’s January 1 effective date in order to alleviate
what may otherwise be the heavy administrative burden of processing
an anticipated high volume of applications, as other jurisdictions have
done. See, e.g., News from the Blue Room, “Mayor Bloomberg,
Speaker Quinn and New York City Clerk McSweeney Announce
Public Lottery For Any Couple Wishing to Marry on Sunday, July
24th” (July 19, 2011) (available at http://www.nyc.gov/portal/site/
nycgov/menuitem.c0935b9a57bb4ef3daf2f1c701c789a0/index.js
p?pageID=mayor_press_release&catID=1194&doc_name=http%
3A%2F%2Fwww.nyc.gov%2Fhtml%2Fom%2Fhtml%2F2011b%
2Fpr260-11.html&cc=unused1978&rc=1194&ndi=1 (last visited Nov.
15, 2012)) (describing how New York City began accepting
applications for marriage licenses from same-sex couples on July 5,
2011—19 days before the effective date of the Marriage Equality
Act—and expected to conduct a record number of marriages on July
24, 2011).
5
It is our understanding that, as a technical matter, clerks can issue
licenses with a delayed effective date. Although the computer program
the clerks commonly use to prepare marriage licenses automatically
generates a license with an effective date of 6:00 a.m. on the second
calendar day after it is issued, the program can be overridden to insert
another effective date.

2-405(d)(1) specifies that “a license is not effective until 6 a.m. on
the second calendar day after the license is issued,” but it does not
expressly prohibit licenses becoming effective after that time.6
See Keppel v. Tiffin Sav. Bank, 197 U.S. 356, 378 (1905)
(observing that the word “until” means “to the time of, or up to”);
Black’s Law Dictionary (6th ed. 1990) (defining “until” as “Up to
time of” and as “[a] word of limitation, used ordinarily to restrict
that which precedes to what immediately follows it, and its office
is to fix some point of time or some event upon the arrival or
occurrence of which what precedes will cease to exist.”). And
while the statute provides a mechanism for authorizing a license
to become effective at a time “before”—but not after—the two-
day period expires, FL § 2-405(d)(2), that does not necessarily
indicate a legislative choice to forbid the practice of issuing
licenses with an extended waiting period. Rather, the policies that
lie behind the establishment of a waiting period for marriage
licenses suggest the opposite.
The purpose of the two-day waiting period is to provide the
couple with a “cooling-off” period that will allow them to
consider the significance of the step they are about to take. See
Marriage License Requirements (available at http://marriage.laws.com/
marriage-license-requirements (last visited Nov. 28, 2012))
(listing state waiting periods of one to six days, which “allow for
a cooling-off period for the couple to determine if they truly wish
to be married”).7 All of the timing provisions of the statute have
as their goal the preservation of the waiting period. For example,

 6
  The requirement that the license does not become effective until

6:00 a.m. on the second calendar day after its issuance was added in
1999, at the request of the Maryland Judicial Conference, to allow for
the same-day issuance and delivery of licenses, either by mail or by
pick-up at the courthouse. 1999 Md. Laws, ch. 336; Department of
Legislative Services, Revised Fiscal Note at 2 (under the bill, “the clerk
is authorized to issue and deliver a marriage license at the time an
application for a license is made”). Prior to 1999, the statute provided
for no delay of the effect of the license, but delayed the issuance of a
marriage license for at least 48 hours after receipt of the application.
See FL § 2-405(d) (1999 Repl. Vol.). Neither version of the law
prohibits the issuance of a license with a delayed effective date.
7
As a historical side note, the General Assembly first enacted a
waiting period in an effort to address the unseemliness caused by the
“marriage mills” of Elkton and other areas, where non-residents took
advantage of Maryland’s relatively liberal marriage requirements to
obtain a license, get married, and immediately leave the State—all in
the same day. See generally State of Maryland v. Clay, 182 Md. 639,
642-44 (1944); 27 Opinions of the Attorney General 253 (1942). A
variety of adjustments to the waiting period requirement ultimately
addressed the “evil” created by the practice. See generally Clay, 182
Md. at 644-45.

clerks may not predate an application to eliminate the waiting
period, FL § 2-405(h)(1), and may not waive the waiting period
on their own. The circuit court may reduce the waiting period,
but only “[f]or good cause shown,” FL § 2-405(d)(2), and then
only if one of the parties to be married is a Maryland resident or a
member of the military. These provisions restrict the shortening
of the waiting period, not the extension thereof.
We do not mean to suggest that clerks or the circuit courts
have the power to impose a longer waiting period over the
couple’s objection. The imposition of an extended waiting period
in those circumstances would appear to be designed to discourage
marriages between certain types of couples, which we believe is a
substantive power inconsistent with the “ministerial” role the
clerks have when issuing marriage licenses. See 25 Opinions of
the Attorney General at 120. Nor do we mean to suggest that
clerks may issue licenses with delayed effective dates to
accommodate the mere possibility that the legal reason why the
couple should not be married will be resolved prior to marriage.
Licenses issued after the formal proclamation that the voters have
indeed approved Chapter 2, with an effective date simply copied
from Chapter 2, and at the couple’s request, present no such
difficulties.8 Thus, it is our view that same-sex marriage licenses
may be issued prior to January 1, 2013, so long as they carry an
effective date no earlier than January 1, 2013.
The conclusion we reach is not the only permissible manner
of implementing the requirements of the statute. The clerk of a
circuit court may choose for purely administrative reasons not to
8
In this respect, we distinguish the instances in which this office
has advised against the issuance of licenses when the resolution of the
legal impediment is not inevitable, as it is here. Cf. 19 Opinions of the
Attorney General 335, 336 (1934) (clerk must refuse to issue a license
when one of the parties has an existing marriage); 57 Opinions of the
Attorney General at 72 (same-sex couple, as of 1972). We also
distinguish 14 Opinions of the Attorney General 167 (1929), in which
this Office advised that a clerk may refuse to issue the license when
independent information indicates that the parties are not of legal age—
an impediment to marriage that admittedly is not permanent. Unlike
the situation addressed in this Opinion, minors are considered incapable
of mature consent to marriage and, thus, equally incapable of
requesting the licensing accommodation we describe. See, e.g.,
Sophanthavong v. Palmateer, 378 F.3d 859, 877 (9th Cir. 2004)
(“Because of this immaturity, juveniles’ ability to participate in various
activities (such as operating automobiles or serving on a jury) or to
make decisions for themselves (regarding matters such as marriage or
undergoing medical procedures) are restricted by law.”) (citing
Stanford v. Kentucky, 492 U.S. 361, 395 (1989)); see also Auclair v.
Auclair, 127 Md. App. 1, 13 (1999) (“As minors, children are not
legally competent to act on their own behalf.”).

issue licenses until January 2, 2013,9 which would make the
licenses effective at 6 a.m. on Friday, January 4, 2013. Or the
clerk could choose to process license applications immediately
and prepare a license with a January 1, 2013 effective date, but
hold the licenses until January 1, 2013, when they could be
handed out to couples as they arrive at the courthouse (assuming
the court remained open for the occasion). For couples in which
one of the parties is either a Maryland resident or a member of the
military, the circuit court could “sign an authorization” allowing
the license to become effective immediately. FL § 2-405(d)(2).
Implementing the statute in this manner would allow couples to
be married on January 1, 2013, but would require a court order.10
We acknowledge that our conclusion might result in
different administrative practices in different circuit courts. For
instance, a circuit court in one jurisdiction may anticipate a high
volume of applications from couples wanting to marry on January
1, 2013, and may wish to use the time before then to spread out
what would otherwise be an unmanageable administrative burden.
Other jurisdictions may determine that such advance processing is
not necessary in order to issue licenses promptly after the
effective date. We believe the legislative scheme allows for this
type of administrative flexibility.
It is important in this respect to recall the limited role that
marriage licenses play within the regulation of marriage under
Maryland law. The license serves primarily as evidence of the
marriage; the clerks maintain a properly indexed “marriage
license book” that contains a complete record of the license, the
applicants’ eligibility therefor, and the date of the marriage
ceremony. See generally FL § 2-501. For religious officials or
lay officiants, the license serves to insulate them from potential
liability under the statute that flows from performing a marriage
9
Because January 1, 2013, is a legal holiday, the clerk’s office will
not be open “unless otherwise prescribed by the judge.” Md. Code
Ann., Cts. & Jud. Pro. § 2-204; see also 24 Opinions of the Attorney
General 513 (1939) (advising a clerk that “[y]ou are not required to
conduct the business of your office from your home and since the law
does not require you to keep your office open on [a legal holiday], you
are not required to conduct any of the business of your office on [a
legal holiday]”).
10
We note that this is roughly the procedure followed by New York
City to accommodate the large number of same-sex couples wishing to
be married on the effective date of that state’s Marriage Equality Act.
See, e.g., News from the Blue Room, supra at 79, n.4; see also New
York State Bar Assn., “New York Marriage Equality, Frequently
Asked Questions (FAQ), FAQ #1 at 2 (July 18, 2011) (available at
http://www.nysba.org/Content/NavigationMenu62/MarriageEquality/NY
MarriageEquality-QAs.pdf. (last visited Nov. 16, 2012)).

ceremony without a license. See FL § 2-406(e). The license does
not, however, validate the marriage. Feehley, 129 Md. at 570; see
also Picarella v. Picarella, 20 Md. App. 499 (1974) (following
Feehley to find the marriage valid despite fraud); 75 Opinions of
the Attorney General 90, 92-94 (1990) (noting that “Maryland
cases have held that failure to comply with certain other statutory
requirements concerning marriage does not invalidate the
marriage”). Rather, it is the marriage ceremony that validates the
marriage and, with respect to same-sex marriages, the General
Assembly has declared that such validation may occur beginning
at the stroke of midnight on January 1, 2013, not 6 a.m. on
January 4. See Robey v. Broersma, 181 Md. 325, 336 (1942)
(“When the legislative body expressly declares that an Act shall
take effect on a certain and reasonable date, the presumption is
that it intended it to take effect on that particular date, and on no
other.”). We believe that the provisions of the statute relating to
the “ministerial act” of issuing marriage licenses should be read to
allow for the effectuation of that legislative intent. Bd. of Educ. v.
Marks-Sloan, 428 Md. 1, 18 (2012) (“The cardinal rule of
statutory interpretation is to ascertain and effectuate the real and
actual intent of the Legislature.”) (internal quotation marks
omitted). Accordingly, it is our opinion that clerks may begin
issuing same-sex marriage licenses with a January 1, 2013
effective date at any time after Chapter 2 is formally proclaimed
to have been approved by the voters, which we expect to occur on
December 6, 2012.
3. On what date can a clerk begin delivering issued
licenses for same-sex marriages to the parties?
We believe our response to the previous question applies
here as well. Although each word in a statute is presumed to have
significance, and the General Assembly appears to use the terms
“issue” and “deliver” to refer to two separate steps in the process
of obtaining a marriage license, compare FL § 2-405(e)
(addressing issuance) with § 2-405(f) (providing for delivery of
the license in person or by mail), none of the timing restrictions
arguably applicable to the issuance of a license applies to
delivery. Accordingly, if clerks may issue a license, or a court
orders the same, they may also deliver the license in the manner
prescribed by § 2-405(f).
We observe, in this respect, that the significance of the term
“delivery” has diminished over time. Prior to 1999, the statute
provided that the clerk could not “deliver” the license until 48
hours after an application had been made. See FL § 2-405(d)
(1999 Repl. Vol.). The 1999 amendments, however, removed the
two-day waiting period for issuance and delivery of the license,
and instead made the license effective two days after issuance.
Thus, although the statute currently contemplates issuance and
delivery to be separate and distinct steps, delivery is now an

entirely administrative task which can be effectuated either
“personally or by mail to” one of the parties or their designee. FL
§ 2-405(f).
4. If licenses may be issued earlier than January 1,
2013, how do the provisions for the waiting
period in FL § 2-405(d) apply to those licenses?
For example, would a license issued on
December 28, 2012, or earlier take effect at 6:00
a.m. on January 1, 2013, or at 6:00 a.m. on
January 3, 2013 (i.e., 6:00 a.m. on the second
calendar day after same-sex marriage became
legal)?
We believe that this question is also answered by our
response to question no. 2 above. Issuance of licenses with a
delayed effective date renders moot any questions about how the
two-day waiting period is applied since the waiting period will, in
effect, be longer than the statute requires. Whether issued on
December 28 or December 8, a license issued in the manner we
describe (i.e., with a specified effective date of January 1, 2013)
would become effective on January 1, 2013, as the statute’s
effective date allows.
Should the clerk elect to issue licenses without specifying a
delayed January 1, 2013 effective date, he or she may not issue
the license prior to December 30, 2012, in the absence of a court
order. Taking the example you provide, a license issued on
December 28, 2012, without a specified effective date of January
1, 2013, would presumably take effect at 6:00 a.m. on December
30, 2012, because the provisions of § 2-405(d) are not affected by
the new law. That would result in a couple holding an effective
same-sex marriage license prior to the date same-sex marriage is
recognized as valid here in Maryland, something that we do not
believe would be permissible without a court order under § 2-
405(e).
B. Questions Concerning Re-Marriage
The next set of questions you pose relates to the
circumstances under which couples who have previously entered
into a union—whether it be a domestic partnership, a civil union,
or a same-sex marriage—in another state may obtain a marriage
license and be married here in Maryland without first dissolving
their previous union.

      5.    If a same-sex couple has already been married
       in a state where it was legal prior to January 1,
       2013, and that marriage remains intact, can they
       now get a license and marry in Maryland?
  Just as opposite-sex couples may not get a marriage license

in Maryland if already legally married in another state, same-sex
couples may not either. In an opinion issued in 1940, Attorney
General William Walsh advised that a license may not be issued
to a couple who had previously been married by a justice of the
peace in Virginia and who subsequently wanted to be married in a
religious ceremony in Maryland. 25 Opinions of the Attorney
General 353 (1940). The first ceremony, held in Virginia, was
sufficient under the law of that state and, thus, “would be
recognized here as a valid marriage.” Id. at 354. Because “the
marital status of both the parties would appear in the application
as ‘married’, and there would be nothing in the record to show
that they were married to each other, or that they had been
divorced,” no license could be issued. Id.; see also 24 Opinions
of the Attorney General 507 (couple who wished to be married in
two separate ceremonies conducted by ministers of different
denominations need not obtain two licenses). This view was also
adopted in a letter to Shirley P. Hill, Chief Deputy Clerk in Prince
George’s County from Catherine M. Shultz, Assistant Attorney
General, dated July 11, 1984, advising that the Clerk should not
issue a license to a married couple who wish to “reaffirm” or
“solemnize” their marriage vows.
We see no reason why this advice does not remain valid and,
therefore, we conclude that a same-sex couple who has already
entered into a valid out-of-state same-sex marriage may not now
obtain a license and marry again in Maryland. Out-of-state same-
sex marriages, valid in the state where entered into, are
recognized as valid under Maryland law. See Port v. Cowan, 426
Md. 435 (2012), see also 95 Opinions of the Attorney General 3
(2010). As “[a]n existing marriage,” a previous out-of-state
same-sex marriage “operates to prevent a subsequent marriage,
and where it appears from the examination which the Clerk is
required to make under [the forerunner of § 2-402(b)], that there
is an existing marriage, it is the duty of the Clerk to refuse to issue
the license until ordered to do so by the Court of which he is the
Clerk.” 19 Opinions of the Attorney General 335, 336 (1934).

      6.   To the extent the Attorney General has
      previously opined or advised that a couple
      already married cannot get a license, would that
      conclusion still apply in this situation, where a
      couple could not previously be married in
      Maryland, and does Maryland’s recognition of
      out-of-state same-sex marriage affect this
      determination?
 As discussed above in response to the previous question,

same-sex couples who were legally married in other states prior to
the adoption of same-sex marriage in this State remain legally
married and, thus, unable to obtain a license under Maryland law.
The enactment of Chapter 2 of 2012 does not change this
conclusion.
Chapter 2 states that “[o]nly a marriage between two
individuals who are not otherwise prohibited from marrying is
valid in this State.” As discussed above, parties to an existing
valid marriage—whether entered in Maryland or out of state—are
prohibited from marrying in Maryland, at least without first
obtaining a divorce. See 19 Opinions of the Attorney General at
336: see also Letter from Julia M. Freit, Assistant Attorney
General, to All Clerks of Court (Oct. 31, 1994) at 3, n.3
(concluding that a “couple may not obtain and use a new license
in Maryland if they already are married under the laws of the state
where the previous marriage occurred”).
The fact that same-sex couples were legally prohibited from
marrying in Maryland prior to the enactment of Chapter 2 does
not change our conclusion. We understand that, prior to en-
actment of Chapter 2, many Maryland same-sex couples may
have wished to marry in Maryland, but were compelled to travel
to other states to be married because of Maryland’s prohibition on
same-sex marriage. But the rule of law barring parties married in
one state from marrying again in another does not rest on the
premise that the parties could have been married in the state of
their choice the first time around. Rather, it rests on the concern
that a person, if marrying a new partner, would “have two legal
spouses, each of whom could expect virtually the same
obligations from him, such as spousal or child support,
inheritance, and healthcare coverage.” Elia-Warnken v. Elia, 972
N.E.2d 17, 21 (Mass. July 26, 2012). Accordingly, any same-sex
marriage validly entered into in another state is recognized in this
State and its existence bars the parties from obtaining a new
marriage license here in Maryland.

      7.    If a couple entered into a “civil union” in a state
       allowing that contract, and the civil union
       remains intact, is their marital status Married,
       Single, or some other status, and can they obtain
       a license to marry in Maryland?
  As noted above, Chapter 2 provides that marriages between

two individuals who are not otherwise “prohibited from
marrying” are valid in this State. Nothing in either current law or
Chapter 2 prevents a marriage between parties who are already in
a civil union entered into in another state. The Legislature, in
enacting Chapter 2, did not address the legal effect of out-of-state
(or in-state) civil unions and domestic partnerships on a same-sex
couple’s ability to marry in Maryland. Rather, it left in place the
pre-existing language of § 2-402, which requires applicants for a
license to state the “marital status of each party” and “whether
either party was married previously, and the date and place of
each death or judicial determination that ended any former
marriage.” FL § 2-402(b) (emphasis added). In the absence of
language expressly prohibiting parties to a civil union or domestic
partnership from entering into a Maryland marriage, a plain text
reading of Chapter 2 would yield the conclusion that they may do
so.
Although the provisions of the Family Law Article
governing marriage do not address the effect, if any, of a prior
civil union, Maryland’s domestic partnership law, enacted in
2008, does. See 2008 Md. Laws, ch. 590. That law defines
“domestic partnership” 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 in a civil union or
domestic partnership with another individual;
and
(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.
Md. Code Ann., Health-Gen. § 6-101(a) (2009 Repl. Vol.)
(emphasis added). As the italicized paragraph provides, parties
who are already in a marriage, civil union, or domestic

partnership may not form a new domestic partnership “with
another individual,” but apparently may do so with their existing
partner.11 The General Assembly did not include a similar
provision addressing civil unions in Chapter 2, and also did not
distinguish pre-existing civil unions between the same people
who now wish to be married and pre-existing unions with third
parties. That the Legislature evidently knew how to include such
provisions suggests that their absence was intended, see Chow v.
State, 393 Md. 431, 457-58 (2006), and that the parties to out-of-
state civil unions would not be precluded from marrying in
Maryland.12
The Attorney General of Connecticut reached a similar
conclusion in an opinion concerning the effects of the decision in
Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957
A.2d 407 (2008), which held that, under that state’s Constitution,

 11
  We acknowledge that, read in isolation, the term “another

individual” could be read simply to refer to the fact that one enters into
a marriage, civil union, or domestic partnership with another
individual. If read in this way, this provision would mean simply that
one cannot enter into a domestic partnership if one is already married
or in an alternative union—arguably a reasonable outcome. This
reading, however, renders the phrase “with another individual” mere
surplusage, which canons of statutory construction caution us to avoid.
See Armstrong v. Mayor of Baltimore, 409 Md. 648, 694 (2009)
(stating that “one of the cardinal rules of statutory interpretation” is to
“ensur[e] that ‘no word, clause, sentence or phrase is rendered
surplusage, superfluous, meaningless or nugatory’”) (quoting Jackson
v. State, 408 Md. 231, 236-37 (2009)). More importantly, the
definition begins with the reference to “two individuals,” the clear
implication being that “another individual” must refer to a third party.
This is how the Register of Wills for Howard County has interpreted
the provision. See Byron E. Macfarlane, Register of Wills, “Domestic
Partner Inheritance Tax Exemption For Real Property (describing
domestic partnership and stating that, in order to qualify, the parties
cannot be “married or in a civil union or domestic partnership with
someone else”) (available at http://registers.maryland.gov/main/
region/howard/Domestic Partner Inheritance Tax Exemption for Real
Property Informational Guide.pdf (last visited Nov. 14, 2012)).
12
We believe it clearer still that same-sex couples who previously
entered into a Maryland domestic partnership may marry under Chapter
2. Whereas the rights and obligations that flow from civil unions under
other states’ laws might not be coterminous with the rights and
obligations attendant to a Maryland marriage, the rights afforded
domestic partners under Maryland law are a subset of those afforded
married couples. See generally Health-Gen. §§ 6-201 through 6-203.
Some states expressly provide for the merger of the two unions, see
Conn. Gen. Stat. § 46b-38qq, rr; others do not, see Elia-Warnken, 463
Mass. at 31, 972 N.E.2d at 19 (discussing the lack of a merger
provision in Vermont law).

same-sex couples had a right to marriage and not just a civil
union. Op. Conn. Att’y Gen., No. 2008-019 (Oct. 28, 2008). The
Connecticut Attorney General’s Opinion concluded that the State
would recognize the validity of out-of-state same-sex marriages
and out-of-state civil unions—a result we believe would hold true
in Maryland as well—but found that the existence of an out-of-
state civil union would not pose an obstacle to marriage by the
same parties. Although Connecticut law prohibited an individual
from entering into a civil union if he or she is already married, the
converse did not hold true: “[T]here is no law that requires a
same sex couple to dissolve their civil union prior to marriage to
each other.” Id.
The Connecticut Attorney General did not opine on whether
a same-sex couple would have to dissolve their civil union prior
to marrying other partners, but the courts of other states have
reached the conclusion that they would. In Elia-Warnken, the
Supreme Judicial Court of Massachusetts held that a Vermont
civil union must be dissolved before a party to that union may
marry another person. The court found that civil unions in
Vermont were equivalent to marriage in that they carried the same
rights and responsibilities, and that refusing to recognize a civil
union in this context would “be inconsistent with the core legal
and public policy concerns articulated in Goodridge [v.
Department of Public Health, 440 Mass. 309, 798 N.E.2d 941
(Mass. 2003)] and [In re] Opinions of the Justices to the Senate[,
440 Mass. 1201, 802 N.E.2d 565 (Mass. 2004)].” 463 Mass. at
33-34, 972 N.E.2d at 21. The court also noted that, if the civil
union were not recognized and dissolved, plaintiff would “have
two legal spouses, each of whom could expect virtually the same
obligations from him, such as spousal or child support,
inheritance, and healthcare coverage.” Elia-Warnken, 463 Mass.
at 34, 972 N.E.2d at 21; see also Hunter v. Rose, 463 Mass. 488
(Sept. 28, 2012) (reaching the same conclusion with respect to
registered domestic partnerships from California).
Although Maryland does not have a statutory procedure for
dissolving civil unions, and there are no reported Maryland cases
on this issue, we think a Maryland court would recognize an out-
of-state civil union within the context of a divorce proceeding.
See Dickerson v. Thompson, 73 A.D.3d 52, 897 N.Y.S.2d 298,
299-301 (N.Y. App. Div. 2010), cited with approval in Port v.
Cowan, 426 Md. at 453-54; Alons v. Iowa Dist. Court, 698
N.W.2d 858, 862 (Iowa 2005). Put another way, a couple who
has entered into a civil union elsewhere and then a marriage in
Maryland might need to dissolve both the union and the marriage
in order to achieve a full “divorce.” That possibility, however,
does not bear on the clerk’s authority to issue them a Maryland
license.

  Synthesizing the law in this developing area yields the

conclusion that couples need not dissolve an out-of-state civil
union to marry each other here in Maryland, but must do so if
they wish to marry third parties. That appears to be the
conclusion reached by others who monitor the development of
these issues. See Equality Maryland, “We Won Marriage – Now
What? Answers to Your Questions” (available at http://
www.equalitymaryland.org (last visited Nov. 14, 2012)) (“As
long as you wish to marry the same person that you entered into
the civil union or domestic partner registry with, you can proceed
with obtaining a marriage license in Maryland.”). Nonetheless,
we acknowledge considerable concern about the ramifications of
this conclusion. Although allowing the parties to un-dissolved
civil unions to marry one another does not involve the obvious
difficulties that arise when the parties seek to marry third parties,
it would still raise potentially difficult conflicts of law when
trying to sort out the privileges and obligations that attend to the
two unions. The same conflicting responsibilities concerning
“child support, inheritance, and healthcare coverage” that
prompted the conclusion in Elia-Warnken that the parties would
have to dissolve their civil union prior to marrying third parties
would apply with similar, if not equal, force when the parties wish
to marry each other.
The resolution of these issues must necessarily depend on
the specific attributes of civil unions formed under the laws of the
state of origin. For example, Maryland courts may, as the
Supreme Judicial Court of Massachusetts did in Elia-Warnken,
recognize an out-of-state civil union “as the equivalent of
marriage” when “the rights and obligations procured by those
entering in a civil union were functionally identical to those of
marriage.” 463 Mass. at 35, 33, 972 N.E.2d at 21, 20; see also
Op. N.J. Att’y Gen. No. 3-2007 (Feb. 16, 2007) (identifying the
foreign same-sex unions that “closely approximate” either New
Jersey civil unions or domestic partnerships and, thus, will be
recognized as such in New Jersey). If the Maryland courts were
to do so, the existence of the out-of-state civil union, recognized
as a marriage under Maryland law, might call into question the
validity of a second marriage. The determination of whether a
particular out-of-state civil union so qualifies, however, must
await a specific factual context. As to the marriage license issue
you have raised, we think the better reading of Chapter 2 is that
the Legislature did not intend to preclude couples who have
entered into a “civil union” in another state from marrying here.13
13
We note in this respect that the decision whether to issue a
marriage license is not the appropriate context for resolving possible
conflicts between Maryland’s marriage laws and the civil union laws of
other states. The clerks “act in a ministerial capacity in issuing the
marriage licenses,” 25 Opinions of the Attorney General at 120, and
(continued…)

C. Questions Concerning the Form that Wedding Vows
Should Take Under Chapter 2
Your remaining questions relate to the form of the vows that
clerks and other authorized State officials, and the parties being
married, recite to solemnize same-sex marriages. Specifically,
you seek our opinion as to what form those vows should take.
The statute provides little guidance; it provides that “[t]he county
administrative judge of the circuit court of the county shall
designate . . . the form of the marriage ceremony to be recited by
the clerk or deputy clerk and the parties being married,” FL § 2-
406(f)(2), but it provides nothing to direct the administrative
judges in their designation. Consequently, the form of the
marriage vows to be performed by the clerks is left largely to the
administrative judge’s discretion.
The discretion to craft marriage vows is not, however,
unbounded. Although we have been unable to find any case
authority specifically governing the form of civil marriage vows,
we expect that any substantive difference between the form of the
vows used to join same-sex couples and those used to join
opposite-sex couples could raise constitutional questions under
Maryland law, which—as of January 1, 2013—will not
distinguish between such marriages. By contrast, non-substantive
nomenclatural differences would likely not raise such
constitutional questions. This is not to say that words do not
matter in how we characterize and solemnize same-sex marriages;
they clearly do. See, e.g., Opinions of the Justices to the Senate,
440 Mass. 1201, 1207 (2004) (“The dissimilitude between the
terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a
considered choice of language that reflects a demonstrable
assigning of same-sex, largely homosexual, couples to second-
class status.”). But differences in terminology that are limited to
the designation of the parties to the marriage—for example,
“husband and husband” versus “husband and wife”—do not
demean the parties or impair the integrity of the bond formed and,
we believe, do not raise constitutional concerns as a result. With
these principles in mind, we turn to the specific questions you
pose.

just as they are “without authority to pass upon the various legal
questions that may arise respecting the validity of a foreign divorce,”
id., they are equally without authority to determine whether a civil
union entered into the laws of a particular state is the equivalent of
marriage here in Maryland.

      8.   Should clerks use two sets of vows, one for
      traditional unions and one for same-sex unions,
      or should they only use the new vows composed
      for same-sex unions? In other words, may
      clerks’ offices offer each couple the opportunity
      to select from a standard and alternative text
      (using “spouse” as standard and “husband and
      wife” as alternative)?
      9.   If the clerks may lawfully offer each couple the
      opportunity to select from a standard and
      alternative text for their marriage vows (using
      “spouse” as standard language, and offering
      “husband and wife” as an alternative), should
      this option be available to both opposite and
      same-sex couples?
 The statute and case law provide little guidance on what

form the vows should take, which leaves the administrative
judges of the circuit courts with a relatively free hand in crafting
the ceremony. When they do so, however, we would recommend
that the administrative judges be mindful of not characterizing
one form of marriage vows as “traditional” or solemnizing
marriages with language that could be seen as stigmatizing the
union into which the parties enter. Using a single, gender-neutral
set of vows for all couples would eliminate any possibility of
discrimination, but it may disappoint opposite-sex couples who
wish to hear the pronouncement of “man and wife,” as well as
same-sex couples who look forward to hearing themselves
declared “husband and husband” or “wife and wife.” We would
instead recommend that the administrative judges offer all parties
a choice of different terminologies or, better yet, the opportunity
to choose exactly how they will be referred to in their vows.
Leaving the nomenclatural decision to the parties themselves will
ensure that all parties receive the ceremony they desire and, thus,
remove any question of discriminatory effect.
III
Conclusion
In summary, our answers to your questions are as follows:
1. Clerks may begin taking applications for marriage
licenses for same-sex marriages immediately.
2. Clerks, if they so choose, may begin issuing marriage
licenses for same-sex marriages once the Governor proclaims that
Chapter 2 has been approved by the voters, which is expected to
be December 6, 2012, but such licenses must specify that they are

not effective until January 1, 2013. Ceremonies may be
performed beginning on January 1, 2013.
3. Clerks may begin delivering issued licenses for same-
sex marriages to the parties on December 6, 2012, if the licenses
bear a January 1, 2013 effective date. If they do not so specify,
the license may not be delivered until January 1, 2013.
4. If the clerk issues a license earlier than December 30,
2012, but with a January 1, 2013, effective date, the provisions for
the waiting period in FL § 2-405(d) are subsumed by the much
longer waiting period effectively established on the face of the
license.
5. A same-sex couple who has already been married in a
state where it was legal to do so prior to January 1, 2013, cannot
now get a license and marry in Maryland as long as the out-of-
state marriage remains intact.
6. The conclusion that a couple already married cannot
get a license would still apply where that couple could not have
previously been married in Maryland. Maryland’s recognition of
out-of-state same-sex marriage does not affect this determination.
7. In the absence of statutory language prohibiting the
issuance of a marriage license to a couple who has entered into a
civil union in another state, we see no obstacle to the issuance of a
license in such situations. We recognize that the extent to which a
civil union performed elsewhere has created rights and
obligations that might run parallel to, or conflict with, those
incident to a Maryland marriage poses novel questions.
Nonetheless, in our opinion, the likelihood that such questions
will arise in the context of such events as a divorce, death, or
adoption does not create such absurd results that an exclusion of
these couples from the right to marry in Maryland should be read
into the statute. Whether a “civil union” entered into in a state
allowing it would be recognized as a marriage in Maryland and,
thus, bar a subsequent marriage, poses a different question, the
answer to which depends on the specific rights and obligations of
the civil union. That question cannot, however, be resolved
within the marriage licensing context.
8. Although the Administrative Judge in each circuit
retains considerable discretion over the form that the vows are to
take, we recommend that the clerks offer each couple the
opportunity to select from a variety of texts that allow them to
specify how they wish to refer to themselves.
9. Although the clerks may lawfully offer each couple the
opportunity to select from various sets of vows, the clerks and
Administrative Judges must avoid labels such as “standard” and

“alternative” vows that would effectively stigmatize one set or the
other.

                              Douglas F. Gansler
                              Attorney General

                              Adam D. Snyder*
                              Chief Counsel
                                Opinions & Advice

• Assistant Attorneys General Kathryn M. Rowe and Stuart
  Cordish contributed significantly to the preparation of this
  opinion.

Editor’s Note:
This opinion has been revised to correct certain citations and
to substitute the term “two-day” for “48-hour” in describing the
waiting period required under FL § 2-405(d)(1).