Same-sex couples were already equal in marriage in the Free State. But now, it appears they’re also equal when it comes to divorce.
Maryland Attorney General Brian Frosh issued an opinion on Thursday clarifying that sexual intimacy between a married person and another person who is not their spouse qualifies as adultery, regardless of the gender of the parties involved in the infidelity. Frosh’s finding is significant in that it places same-sex marriages on par with opposite-sex marriages, for which adultery is one of several “fault-based” justifications for seeking a divorce. Though not binding, opinions from an attorney general have generally held significant weight when being considered by judges and lawyers.
Frosh issued the opinion, which is dated July 24, 2015, in response to a question from openly gay Del. Luke Clippinger (D-Baltimore City), who sought clarification on whether the term “adultery” applied equally to all married couples, as opposed to historical interpretations that apply only to heterosexual couples.
In his opinion, Frosh determined that “the term ‘adultery’ includes a spouse’s extramarital sexual infidelity with a person of the same sex.” He also argues that a enforcing a narrower interpretation in divorce laws, in which adultery only applies to heterosexual sex, may be unconstitutional.
“In our view, this conclusion is compelled not only by the broad purposes behind the concept of adultery in the family law context, but also by the respect and dignity owed to same-sex marriages as equal to opposite-sex marriages under State law,” Frosh writes in his conclusion. “We see no reason either to define adultery so narrowly as to ignore ‘the sexual realities of our world,’ or to deny same-sex couples the ability to divorce on the same terms as other married couples.”
LGBT advocates praised the significance of Frosh’s opinion.
“This thoroughly researched opinion will be very helpful to Maryland judges and lawyers, as well as divorcing couples, who might otherwise assume incorrectly that Maryland’s legal definition of ‘adultery’ is limited to opposite-sex relations,” Jer Walter, the managing attorney and deputy director of FreeState Legal, said in a statement.
Keith Thirion, the acting director of Equality Maryland, has praised the opinion as “common-sense.”
“To say the law applies equally to same-sex and opposite sex-couples says that same-sex marriages are entitled to dignity and respect,” says Thiron.
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