Maryland's highest court, the Court of Appeals, ruled unanimously on May 18 in Port v. Cowan, 2012 WL 1758629, that a same-sex couple married in 2008 in California could get divorced in Maryland. Applying the state's common law comity rule for marriage recognition, the court held that recognizing the marriage was neither "repugnant" to the state's public policy nor specifically prohibited by the state's statutory ban on same-sex marriages.
The court is deciding this issue at a peculiar time, since the legislature passed and the governor signed the Civil Marriage Protection Act on March 1, 2012. This law, scheduled to go into effect on January 1, 2013, would replace the statutory ban on same-sex marriage with language making same-sex marriage available in Maryland. Presumably, same-sex couples married out of state could count on their marriages being recognized in Maryland beginning on that date, but opponents of the measure have undertaken a campaign to put a repeal initiative on the ballot in November.
"Putting aside for present purposes whatever may turn out to be the view of the Maryland electorate regarding recognition of the performance in Maryland of domestic same-sex marriages," wrote Justice Glenn T. Harrell, Jr., for the court, "the treatment given such relationships by the Maryland legislature (until recently) may be characterized as a case of multiple personality disorder." Justice Harrell cited as "Exhibit One in this lay diagnosis" the current marriage law, which was upheld against constitutional attack in a 5-4 decision by the Court of Appeals in 2007, Conaway v. Deane, 401 Md. 219. "Exhibit Two," on the other side of the ledger, is "a long list of enactments protecting gay persons and same-sex couples from discrimination (by reason of their sexual orientation and relationships) in employment, health care, estate planning, and other areas."
This "disorder" will be cured if the Civil Marriage Protection Act goes into effect as scheduled. But what if it does not go into effect? Anticipating this question, the court held that whether there is a referendum and whether the CMPA is repealed by the voters "has no bearing on our consideration and resolution of the present case." That is, the court's finds that the marriage recognition issue is separate and distinct from the question whether same-sex couples can get married in Maryland.
The parties, Jessica Port and Virginia Anne Cowan, separated two years after having married in California, and Port filed a divorce complaint, on the ground of "voluntary separation," in the Prince George's County Circuit Court, as she was a resident of that county. Although Cowan did not contest the action, the circuit judge refused to grant a divorce, explaining that the marriage was "not valid" and "contrary to the public policy of Maryland," and the court could only grant divorces to dissolve valid marriages. The parties each appealed, with Port represented by Maryland attorney Michele Zavos and the National Center for Lesbian Rights Legal Director Shannon Minter, and Cowan represented by Mark Scurti, Leslie Stellman and Lambda Legal's Director of Constitutional Litigation Susan Sommer.
While the case was pending before the Court of Special Appeals, which is Maryland's intermediate appellate court, the Supreme Court reached out on its own initiative to issue a writ of certiorari and bring the case directly up to the highest state court, reacting to a developing situation in which trial courts in different counties of the state have taken different positions on whether Maryland same-sex couples who had married elsewhere were entitled to get a divorce in their home state.
The cross-appellants advanced two different theories. First, they argued, under the doctrine of comity that Maryland courts have applied in the past to determine marriage recognition issues, a same-sex marriage lawfully contracted elsewhere should be recognized. Second, they argued, the failure to recognize their marriage for this purpose violated their equal protection and due process rights under the Maryland constitution. No party, either governmental or amicus curiae, filed any opposition to this appeal, but the court noted receiving seven amicus briefs in support of the appellants. The court decided that it could resolve the question in the appellants' favor based on comity, making it unnecessary to consider the constitutional argument.
The doctrine of comity, as applied in Maryland, has a strong bias in favor of recognizing marriages that were lawful where they were contracted. The court uses the Latin term lex loci celebrationis when considering "foreign" marriages. There are two exceptions to the rule of recognition: where the foreign marriage is "repugnant" to Maryland public policy, and where recognition of the marriage is "prohibited expressly by the General Assembly." The court recounted the liberal application of this rule in past cases. For example, although Maryland does not allow common law marriages (under which a cohabiting couple can be legally married simply by holding themselves out as such to the community), it will recognize common law marriages formed in other states. Applying this rule, the court once recognized a common law marriage based on a two-week cohabitation by a Maryland couple staying in Pennsylvania, a state that still allows common law marriage.
The court pointed out that Maryland has also recognized an uncle-niece marriage of a Maryland couple who specifically went to Rhode Island to get married in order to avoid the prohibition of such marriages under Maryland law. The point is that a marriage is not automatically "repugnant" just because Maryland would not issue a license to perform such a marriage, or even might subject such a marriage to criminal penalties, such as those formerly imposed under the state's ban on interracial marriages (which was repealed in 1967). These days, the only way a marriage will be deemed repugnant would be through a serious incest violation (such as a marriage between brother and sister or parent and child) or a polygamous marriage.
Furthermore, the fact that Maryland's marriage statute provides that only a marriage between a man and a woman is valid in Maryland was not seen by the court as an express prohibition on recognizing a same-sex marriage contracted out of state. The court pointed out that eight attempts have been made to enact language expressly forbidding the recognition of same-sex marriages performed out of state, and they have all been unsuccessful. The court also noted an Attorney General Opinion issued in 2010, and a subsequent directive by the governor to state agencies, as reinforcing its view that same-sex marriages performed elsewhere should be recognized in Maryland.
The court concluded, "recognizing valid foreign same-sex marriages is consistent actually with Maryland public policy," noting the "array of statutes" that "prohibit public or private discrimination based on sexual orientation," the gubernatorial executive order banning such discrimination by the state government, and the state's limited domestic partnership law, which "extends to same-sex couples, who qualify as domestic partners, certain medical and decision-making rights as regards one another."
The court also pointed out a recent enactment that granted "recordation, transfer, and inheritance tax exemptions to same-sex couples who qualify as domestic partners," and also cited its own past decisions in child custody and visitation cases that had recognized rights in same-sex co-parents. Finally, the court noted the many ways in which the state government and other public actors had recognized same-sex partners through employee benefits policies, and the action by the Department of Health and Mental Hygiene changing birth certificate procedures to recognize same-sex partners as birth parents of children.
The court also noted decisions from other states – Wyoming and New York – that had applied comity principles in this manner, and observed that states that had refused to grant divorces to same-sex couples who were married out of state had done so consistent with express statutory prohibitions.
"Under the principles of the doctrine of comity applied in our State," concluded the court, "Maryland courts will withhold recognition of a valid foreign marriage only if that marriage is 'repugnant' to State public policy. This threshold, a high bar, has not been met yet; e.g., no 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."