In 2012, Governor O’Malley led a campaign for the legalization of same-sex marriage. This led to the General Assembly passing a law permitting same sex marriage in February 2012. 52.5% of Maryland voters approved the law in a referendum on November 6, 2012. This was the first time marriage rights have been given to same-sex couples through a popular vote. It was a particularly significant change because Maryland was the first state to specifically define marriage as a union between a man and a woman in the early 1970s. The law took effect on January 1, 2013.
In 2007, the court found that the statutory ban on gay marriage was constitutional. However, last year, the Maryland Court of Appeals issued a decision in the case Port v. Cowan, which suggested the tides of opinion were changing.
Port v. Cowan arose when two women, Jessica Port and Virginia Anne Cowan, married in California in 2008 at a time when California recognized domestic same-sex marriages. The couple separated voluntarily for more than a year. About two years later, Port filed for divorce in the Circuit Court for Prince George’s County where she lived then. Cowan did not contest the divorce.
The court recognized that Port met the residency requirement for divorce, had separated from Cowan for more than one year, and didn’t hope to reconcile. However, the court denied the relief, solely on the basis that the marriage was not valid and was contrary to public policy in Maryland.
The women appealed the ruling asking the Maryland Court of Appeals to answer one question: “Must the Circuit Court grant a divorce to two people of the same sex who were validly married in another jurisdiction and who otherwise meet the criteria for divorce under Maryland law?” They argued that failing to recognize their marriage violated equal protection and due process. Nobody appeared at the Maryland Court of Appeals to argue otherwise.
The Maryland Court of Appeals explained that in deciding whether a foreign marriage is legal, the court employs the doctrine of “comity.” Comity is the principle that a jurisdiction recognizes the validity of another jurisdiction’s executive, judicial and legislative acts out of respect, rather than obligation. The court reasoned that this means Maryland applies the substantive law of the place where a marriage was formed in considering a foreign marriage.
The court set forth an exception to comity: the marriage could not be repugnant to the public policy in Maryland. The public policy in Maryland was for Maryland courts to recognize liberally valid foreign marriages. Same-sex foreign marriages were not expressly forbade by the General Assembly. In fact, on eight different occasions, the General Assembly had chosen not to amend the law to expressly prevent same-sex foreign marriages. The court also noted that the standard for “repugnance” was set very high and that same-sex marriages did not meet it.
If you are dealing with family law matters such as same-sex marriage or divorce, the well being of your children may depend on hiring a qualified and knowledgeable attorney who can navigate the new rules for you. Contact lawyer Anthony Fatemi and his legal team for a legal consultation. They have years of experience in Maryland family law, including matters of divorce, prenuptial agreements, separation agreements, property distribution, custody arrangements, alimony, and domestic violence.