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Md. schools, county differ on same-sex benefits

Thursday - 6/30/2011, 9:37am  ET

By RICK HUTZELL
The Capital of Annapolis

ANNAPOLIS, Md. (AP) - If you're a gay county school employee and get married in another state, your partner qualifies for health benefits starting Friday.

If you work for county government, your partner does not qualify.

In a split that might be unique in Maryland, county schools and county government have parted ways on benefits for same-sex marriages.

School officials say they are backed by an opinion from state Attorney General Douglas Gansler.

County officials cite an opinion from County Attorney Jonathan Hodgson.

The disagreement is just the latest between officials for county government and the schools, who have diverged over everything from interpretation of state law on county spending on schools to the definition of a raise.

"Do you find that surprising?" County Executive John R. Leopold said.

Gansler, who said all state agencies and most counties will follow the school system's example, said county government has it wrong.

"Is it illegal for Anne Arundel County government not to recognize same-sex marriages from other states? Probably not," he said. "Is it disingenuous not to follow what one knows is the legal underpinnings of this? Yeah."

In response to a request from a state senator, Gansler issued a 45-page opinion last year that state government is legally bound to honor marriage contracts issued by other states under the full faith and credit clause of the Constitution. There was a failed bid to remove Gansler because of the opinion, but Gov. Martin O'Malley ultimately said the opinion would be binding as state policy.

Months after Gansler released his opinion, Hodgson was asked by the county Office of Personnel to consider a request for same-sex benefits from someone married to a county employee. The couple got married in Washington, D.C., which has a law allowing same-sex marriages.

In a five-page opinion issued in June 2010, Hodgson cited the family law portion of state law and the federal Defense of Marriage Act as defining marriage as being between a man and a woman. He also referred to 2004 legislative testimony by an assistant attorney general that Maryland law prohibits the recognition of same-sex marriages granted by another state.

"Although there is a possibility that the courts of Maryland may grant recognition to out-of-state same-sex marriages, the courts have not yet ruled on this matter and I cannot confidently advise that the courts are likely to grant such recognition," he wrote.

"Therefore, until such time as the appropriate court decides this question, or the General Assembly legislates to the contrary, it is my opinion and advice that the Office of Personnel may continue to interpret `spouse' to mean a person of the opposite sex to whom an employee is married."

The claim for benefits was denied. Hodgson said no appeal has been filed.

Gansler called relying on existing laws "misguided" because there is no law spelling out whether the state should recognize other states' same-sex unions. He said the issue is separate from whether Maryland can grant same-sex marriages, which are not permitted under current law.

He also said the 2004 testimony was offered years before other states started legalizing the partnerships, and called using it to set policy "inappropriate."

"Clearly the Anne Arundel County school system is correct. Anne Arundel County government is not up to speed on the recognition of same-sex marriage."

Gansler suggested the policy opens the county to legal challenges that could ultimately decide the overall issue in the Maryland Court of Appeals.

Alex Szachnowicz, chief operating officer for county schools, said school system legal and human resources officials determined that the schools were obligated to go by Gansler's opinion.

"We felt we did not have any latitude or any option other than to recognize this," he said.

Szachnowicz said the decision might have been easier for the school system because it is much more like a quasi-state agency than county government. Schools operate under the authority of the Maryland State Department of Education, and school board members are appointed by the governor.

"Clearly we're much more aligned with a state agency than a local government would be," he said.

Hodgson wasn't surprised by the disagreement with schools, noting that the subject of same-sex marriage is one of great public interest that naturally would generate a lot of legal opinions until the courts rule on the subject.

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Information from: The Capital of Annapolis, Md., http://www.hometownannapolis.com/


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