E-Alert Case Updates

Court of Appeals of Maryland Recognizes Same-Sex Marriages Performed in Other States

Port v. Cowan
Civil Case No.: CAD10-22420 (Court of Appeals of Maryland, May 18, 2012
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In this opinion, the Court of Appeals of Maryland officially recognized valid out-of-state same-sex marriages. The case arose when the parties to such a marriage were seeking a divorce in Maryland and were denied by a Prince George’s County trial judge.

Jessica Port and Virginia Cowan married in California in 2008, at a time when same-sex marriage was legal in that state. Approximately two years later, Port and Cowan agreed mutually to separate. Port filed a divorce complaint, on the ground of voluntary separation, in the Circuit Court for Prince George’s County. Cowan answered the complaint in a “no contest” manner. The Court denied the requested relief, explaining in its written order that the “alleged marriage” was “not valid” and “contrary to the public policy of Maryland.” Being aggrieved equally, the parties appealed, asking why an out-of-state, same-sex marriage, valid when and where performed, was not cognizable in Maryland for purposes of the application of its domestic divorce laws.

The Court of Appeals noted that there was a conflict among Circuit Courts of the State regarding whether to grant divorces to same-sex couples—the Circuit Court for Baltimore City denied a same-sex divorce, but the Circuit Courts for Anne Arundel and St. Mary’s Counties had granted such divorces. Because of these inconsistent rulings, the Court of Appeals determined that it must resolve this discrepancy. In doing so, the Court stated that it would put aside the recently enacted Civil Marriage Protection Act (providing for the performance of same-sex marriages in Maryland) in its calculus. The status of the Civil Marriage Protection Act is currently in flux since opponents have threatened to challenge it by referendum in the next election. Therefore, the Court applied principles of comity to determine whether the parties’ same-sex marriage could be recognized in Maryland for purposes of domestic divorce laws.

The Court noted that generally, Maryland will honor a foreign marriage under comity principles so long as the marriage was valid in the state where performed. Maryland liberally recognizes foreign marriages, even those marriages that are prohibited in this State, such as a marriage between an uncle and a niece, and common law marriages. The two exceptions to the rule are when the foreign marriage is “repugnant” to Maryland public policy or where the marriage is expressly prohibited by statute. The latter exception did not apply because same-sex marriages were not expressly voided by statute, as they were in some states. In fact, attempts to void such marriages by statute failed in Maryland at least eight (8) times.

Moreover, the Court concluded that recognition of same sex marriages in Maryland was not “repugnant” to Maryland’s public policy. In fact, to the Court, recognition of same-sex marriages in Maryland was actually “consistent” with Maryland public policy. This was due to an array of laws that protected and supported same-sex couples from discrimination in employment, health care, and estate planning. Ultimately the Court held that Maryland recognizes valid out-of-state same-sex marriages; and so, the parties were entitled to a divorce in Maryland under Maryland’s domestic relations laws.