Not even a successful petition drive can tear asunder the Maryland high court’s decision requiring the state to recognize as valid the marriages of same-sex couples who lawfully wed in other states.
The Court of Appeals, in its landmark ruling Friday, said recognition is required by the legal doctrine of comity — under which one state accepts the legal judgments of another — because same-sex marriage is neither “repugnant” to the state’s public policy nor expressly prohibited by state law.
The court’s ruling came as a Maryland state law permitting same-sex marriages is slated to go into effect Jan. 1. But that law, the Civil Marriage Protection Act, will likely be put before Maryland voters this fall, as opponents of the measure have mounted a petition drive to get the 55,736 signatures needed to put it on the ballot on Election Day, Nov. 6.
In a footnote, the court said its decision will stand even if the ballot defeats the pending same-sex marriage legislation, as that would merely leave the status quo in place.
Attorney Susan Sommer, of the gay-rights group Lambda Legal, called that footnote vitally important to same-sex Maryland couples who were legally married elsewhere.
“No matter what happens, these marriages get respect when entered out of state,” said Sommer, the New York-based group’s senior counsel. “This opinion shows an independent path to having your marriage respected in Maryland.”
Even so, Sommer said, that independent path is inferior to the direct option.
The opinion “helps demonstrate why it is so important to allow same-sex couples to marry in their home state,” Sommer said. She added that it “seems downright silly” to compel people to leave Maryland for the limited purpose of getting married.
State Sen. Jamin B. “Jamie” Raskin, chief sponsor of the Civil Marriage Protection Act, called “a crucial point” the decision’s continued vitality even if the law dies in a referendum. But he, like Sommer, said his favored result would be permit same sex couples to have their nuptials — and the money that generates — in Maryland.
“Essentially, the proponents of a referendum are inviting Maryland to create a legal regime in which our citizens can get married in other states and have their marriages recognized in Maryland, but they cannot get married in Maryland,” said Raskin, D-Montgomery. “That argument should be rejected by the hotels, bed and breakfasts, caterers, wedding planners and wedding bands in the state of Maryland. Why should we shoot ourselves in the foot and not recognize our own same-sex marriages?”
But Derek McCoy, who is helping lead the petition drive, said in a statement that he is not discouraged by Friday’s decision. A spokeswoman for Maryland Marriage Alliance, said McCoy, its executive director, was unavailable for further comment because of previous engagements.
“Today’s decision by the Maryland Court of Appeals does not at all affect the commitment that Maryland voters have to protecting the definition of marriage as a union between one man and one woman,” the statement said. “This is merely an example of how the courts and the legislature continue to be out of step with the clear will of the people.”
Public policy question
While observers on both sides see the case as favoring same-sex marriage, the fundamental issue was whether a state court could grant a divorce to a lesbian couple who were legally married in California.
Prince George’s County Circuit Judge A. Michael Chapdelaine had denied Viriginia Anne Cowan and Jessica Port’s divorce petition in 2010, finding it “contrary to the public policy of Maryland.”
The Court of Appeals, in its decision, sent the case back to the circuit court with instructions to grant the divorce.
Sommer represented Cowan before the Court of Appeals.
In contrast to Chapdelaine, Anne Arundel County Circuit Court Judge Ronald A. Silkworth and Baltimore County Circuit Court Judge Susan Souder have granted divorces to same-sex couples.
The Court of Appeals cited those decisions in explaining why it was necessary to render a binding decision.
“Maryland recognizes liberally foreign marriages, even those marriages that may be prohibited from being formed if conducted in this state,” Judge Glenn T. Harrell Jr. wrote for the high court.
“Liberal recognition of out-of-state marriages promotes uniformity in the recognition of the marital status, so that persons legally married according to the laws of one state will not be held to be living in adultery in another state, and that children begotten in lawful wedlock in one state will not be illegitimate in another,” Harrell wrote. “Further, the recognition of foreign marriages instills stability in one of the most important of human relations.”
Harrell also noted that the high court has provided “liberal recognition” of marriages valid in other states but not expressly permitted by Maryland, such as Pennsylvania common-law marriages and a Rhode Island-approved marriage of an uncle and his niece, even though Maryland would have considered such a marriage not only void, but also a misdemeanor.
The 21-page opinion also noted that the Maryland General Assembly has never barred same-sex marriage by statute and, in fact, has rejected such proposals at the committee stage.
The General Assembly, however, has enacted laws supportive of same-sex couples short of marriage, including permitting them medical decision-making rights and exemptions from recordation, transfer and inheritance taxes, the court said.
The court also cited Attorney General Douglas F. Gansler’s non-binding February 2010 advisory opinion that state agencies should recognize as married same-sex couples legally wed in other states. In that opinion, Gansler correctly predicted that the Court of Appeals would agree with his position that comity should be granted.
“This pattern permits an inference, which we take, that the General Assembly intended the doctrine of comity regarding foreign same-sex marriages to remain the proper analysis to employ here,” Harrell wrote. “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.”
Six states and the District of Columbia permit same-sex couples to lawfully wed. The states are Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont, the opinion noted.
Revisiting the issue
The high court’s decision in Port v. Cowan marked its second foray into the same-sex marriage issue.
In Conaway v. Deane, the high court in September 2007 rejected arguments that a state law defining marriage as between a man and a woman violated constitutional guarantees of equal protection because it denied the same right to same-sex couples. Rather, the court said the General Assembly has the authority to define and limit the scope of marriage.
Harrell wrote the majority opinion in Conaway v. Deane, as well as in Friday’s opinion in Port and Cowan’s case.
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. 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.
Chapdelaine refused to grant the divorce on Oct. 27, 2010.
Both Port and Cowan appealed to the intermediate Court of Special Appeals. But the Court of Appeals, acting on its own motion, chose last Oct. 24 to consider the case without it first being heard by the intermediate court.
The top court heard arguments in the case April 6. Shannon Minter, legal director of the San Francisco-based National Center for Lesbian Rights, argued for Port. Sommer and Leslie R. Stellman, of Hodes, Pessin & Katz PA in Towson, represented Cowan
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 Judge Irma S. Raker, a retired judge sitting by special assignment.
Raker was on the court when the court issued Conaway v. Deane. She concurred in part, finding no constitutional right to same-sex marriage, but advocated for providing the benefits of marriage by statute.
WHAT THE COURT HELD
Port v. Cowan, CA No. 69, Sept. Term 2011. Reported. Opinion by Harrell, J. Argued April 6, 2012. Filed May 18, 2012.
Must the circuit court grant a divorce to a same-sex couple validly married in another state and who otherwise meet the criteria for divorce under Maryland law?
Yes; Maryland must recognize the couple’s lawful out-of-state marriage, and if appropriate grant a divorce, under the “comity” doctrine, as same-sex marriages are neither “repugnant” to the state’s public policy nor expressly prohibited by state law.
Shannon Minter for petitioner; Leslie R. Stellman and Susan Sommer for respondent.
RecordFax # 12-0518-20 (23 pages).