Maryland Court Allows Divorce of Same-Sex California Couple, Does Not Allow Same-Sex Marriage

June 21, 2012
By Thomas M. Huguenor on June 21, 2012 7:49 PM |

NoWedding.jpgThe Maryland Court of Appeals, the state's highest court, ruled unanimously that a same-sex couple with a legal California marriage could obtain a divorce in Maryland. The state currently does not otherwise recognize the legality of same-sex marriages from other states. Same-sex marriage will begin in Maryland in January 2013, although that is subject to a referendum on election day in November. If the law passes the referendum, then the situation that the couple involved in this case found themselves in will be reversed, as Maryland will allow same-sex marriage while California no longer does.

The Court of Appeals considered the appeal of a trial judge's 2010 refusal to grant a divorce to two women who were married in California during the brief period when same-sex marriage was legal there. Jessica Port and Virginia Anne Cowan went from their home in Washington, D.C. to San Francisco, California in 2008 to get married. The exchanged vows in the courthouse and returned home. Two years later, they had separated but could not divorce. Port had purchased a house in Maryland, so she filed a petition there. The separation was reportedly amicable, with the two separating their belongings and even sitting next to each other in court. The judge, however, said that since Maryland law does not recognize their marriage as valid, Maryland courts cannot grant them a divorce.

According to the Baltimore Sun, prior to this Court of Appeals ruling, Maryland courts handled same-sex divorce on a case-by-case basis, with decisions differing greatly from one town or county to another. Some divorces were granted in the same courthouse where the judge denied Port and Cowan’s divorce. In Baltimore, some municipal judges would grant same-sex divorces, and others would not.

An advisory opinion issued by state Attorney General Douglas F. Gansler in February 2010 recommended that Maryland recognize same-sex marriages legally performed in other states. Gansler predicted at the time that the Court of Appeals would eventually rule that valid marriages performed out of state should be recognized by Maryland. He cited changes in laws relating to anti-discrimination and domestic violence as examples of shifting opinions and legal principles.

Lawyers for Port and Cowan argued that, since Maryland recognizes opposite-sex marriages performed in other states, it should also recognize valid out-of-state same-sex marriages. The court seemed to agree in its ruling with the reasoning of the parties’ lawyers and of Gansler. The effect of the court’s ruling may only last until same-sex marriage becomes legal in Maryland, but even if the referendum in November rejects the same-sex marriage law, the court’s ruling will still govern out-of-state marriages.

A Massachusetts appeals court’s ruling in May that found the federal Defense of Marriage Act (DOMA) unconstitutional may make opinions like that of the Maryland Court of Appeals easier to enforce. DOMA, in addition to invalidating same-sex marriages at the federal level, says that no state must recognize same-sex marriages performed in another state, arguably a violation of the U.S. Constitution’s Full Faith and Credit clause. Each state can still make its own laws on the issue, but people crossing state lines may find it easier to at least obtain a divorce, if not get married.

For more than 35 years, San Diego certified divorce lawyer Thomas Huguenor has represented people finding their way through the California divorce process. For a free and confidential consultation, contact us today online or at (858) 458-9500.

More Blog Posts:

"Poster Couple" for California Same-Sex Marriage Files for Divorce, San Diego Divorce Attorney Blog, February 22, 2012

New California Laws for 2012 Include "Gay Divorce Bill", San Diego Divorce Attorney Blog, January 5, 2012

Supreme Court Denies Review of Louisiana Adoption Decision for Same-Sex Couple, San Diego Divorce Attorney Blog, October 13, 2011

Photo credit: 'NoWedding' by Original (Anillos.jpg) :Musaromana ; This one : Tangopaso (Adaptation of File:Anillos.jpg on Commons) [GFDL or CC-BY-SA-3.0], via Wikimedia Commons.