Lesbian Couple Can Divorce in Maryland: Court Rules State Recognizes Valid Same-Sex Marriages Performed Elsewhere

Posted by Chris Geidner
May 18, 2012 1:30 PM |

Maryland's highest court today held that a lesbian couple who had been married in California can get divorced in Maryland, echoing and making law a 2010 Attorney General's opinion that same-sex couples legally married outside of Maryland would have their marriage recognized in Maryland.

Today's opinion from the Maryland Court of Appeals was unanimous and applies regardless of the outcome of the expected November referendum on Maryland's marriage equality bill, which was passed earlier this year.

Setting up the question, Justice Glenn Harrell writes for the court:

Appellant, Jessica Port, and Appellee, Virginia Anne Cowan, married in California in 2008. Approximately two years later, Port and Cowan agreed mutually to separate. Port filed ultimately a divorce complaint, on the ground of voluntary separation, in the Circuit Court for Prince George's County (at the time, she was a resident of the County). Cowan answered the complaint in a "no contest" manner. The court denied the requested relief, explaining in its written order that the marriage was "not valid" and "contrary to the public policy of Maryland."

The question before the appeals court, the court noted, was, "Must the Circuit Court grant a divorce to two people of the same sex who were validly married in another jurisdiction and who otherwise meet the criteria for divorce under Maryland law?"

mdflad.gifLooking at the status of Maryland treatment of same-sex couples -- which the court says "may be characterized as a case of multiple personality disorder" -- the court notes that it need not look at the recent passage of the "Civil Marriage Protection Act" passed earlier this year, but likely subject to a referendum this fall, to allow same-sex couples to marry in Maryland.

Saying that the issue is a matter of "comity," which relates to states' respect for other states' judgments, the court held:

The parties' California same-sex marriage is valid. Therefore, in order for their marriage to be valid for purposes of whether Maryland will adjudicate its dissolution, it must not run afoul of either exception [to recognizing out-of-state marriages]: it cannot be prohibited by statute or "repugnant" to the public policies of Maryland. For the following reasons, Port's and Cowan's entitlement, on this record, to a Maryland divorce from their California same-sex marriage is not prohibited, as a matter of law and on this record, by these exceptions.

When looking at why this is so despite Maryland's current law (in place until the outcome of a referendum on the marriage equality bill) limiting in-state marriages to opposite-sex couples, the court notes:

Other states intending to prevent recognition of valid foreign same-sex marriages have done so expressly and clearly, rather than by implication, subtlety, or indirection. For example, the Pennsylvania Code provides, "A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth."

Although not controlling the court's opinion, the court does mention and discuss the Attorney General's opinion, issued in 2010 by Maryland Attorney General Douglas Gansler (D), that concludes that this court would recognize out-of-state same-sex marriages valid where they were entered.

The court concludes:

[N]o still viable decision by this Court has deemed a valid foreign marriage to be "repugnant," despite being void or punishable as a misdemeanor or more serious crime were it performed in Maryland. The present case will be treated no differently. A valid out-of-state same-sex marriage should be treated by Maryland courts as worthy of divorce, according to the applicable statutes, reported cases, and court rules of this State.

READ the opinion: 69a11.pdf

UPDATE @ 2:30P: The National Center for Lesbian Rights and Michele Zavos represented Jessica Port, and NCLR's Shannon Minter argued the case. Lambda Legal and Mark Scurti represented Virgnia Cowan and Lambda's Susan Sommer argued for them.

In a joint statement by NCLR and Lambda, Minter said: "There are many same-sex spouses who married elsewhere who now live in Maryland. This ruling ensures that they have all the same rights as any other married couple in Maryland. This is a powerful decision that will provide enormous security and protection to thousands of families."

Sommer added: "The high court of Maryland confirmed today in this divorce case that out-of-state marriages of same-sex couples are entitled to legal recognition under longstanding principles of comity, allowing this couple the same access to a divorce as other married couples whose relationships have ended. The Court of Appeals’ ruling establishes that Maryland law respects marriages of same-sex couples entered elsewhere, bringing clarity to the legal recognition due these marriages."

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