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Maryland’s top court hears same-sex divorce case

Maryland’s highest court appears poised to require the state to recognize same-sex marriages legally performed in other jurisdictions, if only to allow the lawfully wedded couples to divorce in the Free State.

Jessica Port and her spouse both want the Court of Appeals to allow them to divorce in Maryland.

No judge of the Court of Appeals voiced disagreement Friday as attorneys for a married lesbian couple argued that a Prince George’s County judge unlawfully denied them a divorce on the grounds that same-sex marriages are not yet recognized in Maryland. Both spouses want to divorce in Maryland.

The attorneys said same-sex marriages do not offend the Maryland’s public policy and therefore must be recognized — and even dissolved, if the prerequisites for divorce under Maryland law are met.

Susan Sommer, an attorney for litigant Virginia Anne Cowan, told the court that requiring a lawfully wedded couple to remain married against their wishes “gives wedlock a whole new meaning.” Sommer is senior counsel at New York-based Lambda Legal, a gay rights advocacy group.

The high court’s consideration of Judge A. Michael Chapdelaine’s 2010 denial comes amid the backdrop of a recently enacted law to permit same-sex marriage in Maryland. That law is slated to go into effect Jan. 1, but a petition drive by opponents threatens to put the fate of the pending statute on the state ballot this November.

Lawyers for Jessica Port and Cowan presented a united front as they told the judges that neither the recent enactment nor potential referendum should affect the Court of Appeals’ decision. The sole issue before the court is whether Maryland’s recognition of same-sex marriages lawfully performed in other states would offend Maryland public policy, the attorneys said.

The lawyers said the General Assembly made clear that Maryland public policy favors recognition when the legislature in recent sessions rejected bills that would have expressly prohibited the state from recognizing same-sex unions.

Judge Irma S. Raker, in apparent support for the lawyers’ position, raised the specter that a high-court ruling against recognition would invalidate same-sex divorces that have been granted by judges in other Maryland jurisdictions, including Anne Arundel and Baltimore counties.

Comity

Much of the discussion during the 50-minute court session concerned the common-law principle of comity, under which one state accepts the legal judgments of another. The major exception to comity is if a judgment is repugnant to the public policy of the other state.

In February 2010, Maryland Attorney General Douglas F. Gansler predicted, in a 50-page opinion, that the Court of Appeals would recognize same-sex marriages legally performed in other states because such unions do not offend the state’s public policy. Gansler’s opinion put state agencies on notice that they should extend the rights of heterosexual married couples to same-sex couples who married legally out of state.

Shannon Minter, an attorney for Port, cited Gansler’s opinion in urging the Maryland court to recognize out-of-state marriages.

But Judge Mary Ellen Barbera said the attorney general’s opinion is just that, an opinion, and need not be relied upon by the court.

Minter responded that the opinion itself, coupled with Gov. Martin O’Malley’s acceptance of it, shows that recognition of out-of-state same-sex marriages would not offend and in fact would be in keeping with Maryland policy.

But Judge Glenn T. Harrell Jr. asked if a statewide referendum vote striking down the pending law would provide sufficient evidence that Maryland public policy opposes recognition of same-sex marriage.

Minter said such a vote would indicate only that Marylanders do not want same-sex marriages to be performed in the state, not that they find such unions so “hurtful or detrimental” that recognition would violate public policy.

“They would be speaking only to whether same-sex couples should marry” in Maryland, said Minter, legal director of the San Francisco-based National Center for Lesbian Rights.

Picking up that theme, another attorney for Cowan said legislatures give voice to a state’s public policy. Leslie R. Stellman, of Hodes, Pessin & Katz P.A. in Towson, pointed to the U.S. Congress’ clear statement in the Defense of Marriage Act that marriage is between a man and a woman and same-sex unions.

Maryland has no such restrictive statute, and that would not change if the referendum passes, Stellman added.

“Maryland is not putting on the ballot a mini DOMA,” he said.

Courts differ

Port and Cowan had been together for four years before deciding to marry, which they did on a trip to San Francisco in October 2008. However, the relationship quickly soured and by the summer, of 2009, the marriage was over — but not legally.

Port, who lived in Maryland, filed for divorce on July 12, 2010, in Prince George’s County Circuit Court. Cowan had moved to Washington, D.C., and the couple had lived separate and apart for one year, satisfying the voluntary separation requirement for a Maryland divorce.

Judge Chapdelaine refused to grant the divorce on Oct. 27, 2010, finding it “contrary to the public policy of Maryland.”

In contrast to Chapdelaine, Anne Arundel County Circuit Judge Ronald A. Silkworth and Baltimore County Circuit Judge Susan Souder have granted divorces to same-sex couples.

Both parties appealed to the Court of Special Appeals. But the Court of Appeals, acting on its own motion, chose to consider the case without it first being heard by the intermediate court.

Court of Appeals Judge Robert N. McDonald, who was Gansler’s chief counsel for opinions and advice at the time of his same-sex marriage opinion, recused himself from the case. He was replaced by Raker, a retired judge sitting by special assignment.

The high court did not indicate when it will render a decision in Port v. Cowan, No. 69 Sept. Term 2011.