Maryland routinely grants divorces for couples who married in other states, and divorces for same-sex couples should be no different, lawyers for a lesbian couple told the state's highest court Friday.
The case involves two women who were married in California and denied a divorce in 2010 by a Maryland judge who said their marriage was not valid in the state.
Maryland does not currently allow same-sex weddings, but lawyers for the women told the seven-member court that it would be unprecedented for the state not to recognize gay marriages performed elsewhere.
"If you're validly married somewhere else, the rule in Maryland is your marriage is going to be respected in Maryland, and that's what we're asking the court to do here," said Shannon Minter, legal director for the National Center for Lesbian Rights in San Francisco.
Judges in Maryland have been inconsistent about granting divorces for gay couples. Lawyers said judges have granted divorces for about half a dozen gay couples, but their clients and at least two other couples were denied. As a result, some couples are waiting for a ruling from Maryland's high court before filing for divorce, the lawyers said.
The Court of Appeals' ultimate decision may have limited effect because same-sex weddings, and by extension divorces, are set to start in the state in January. Opponents of the law passed this year are seeking to overturn it in a potential voter referendum. The Maryland Marriage Alliance says it has collected 20,000 of the nearly 56,000 signatures needed to get the issue on the ballot.
The high court's judges asked about that potential referendum and its effect on the current case. Lawyers said the outcome of any referendum was not relevant. They said it will only address whether voters want to allow same-sex marriages in Maryland, not whether the state should recognize same-sex unions performed elsewhere. Even if voters decide not to allow same-sex marriages, state courts should grant divorces for same-sex couples, the lawyers said. They cited Wyoming and New Mexico as states with similar practices.
The case involves Maryland resident Jessica Port and District of Columbia resident Virginia Anne Cowan. Port, 29, and Cowan, 32, were married in California in 2008 during a window in which gay marriage was legal there. Almost two years later, the couple filed for divorce in Maryland, where they both then lived. Prince George's County Judge A. Michael Chapdelaine declined to grant it.
"The court finds that to recognize the alleged marriage would be contrary to the public policy of Maryland," Chapdelaine wrote.
Lawyers for Port and Cowan told the Court of Appeals that Chapdelaine was wrong. Maryland has long recognized marriages entered into in other states, they said, even if Maryland itself has barred those marriages. For example, Maryland law bars an uncle and a niece from marrying, but the state will recognize that marriage if it legally occurred in another state.
Unlike other states, Maryland has no ban on recognizing same-sex marriages from other jurisdictions. Moreover, in 2010 state Attorney General Douglas Gansler issued an opinion that said out-of-state, same-sex marriages may be recognized under Maryland law. As a result, state agencies have extended benefits to same-sex spouses of state employees and issued birth certificates that recognize the same-sex spouse of a woman who gives birth as a parent.
In recent years, judges in Nebraska, Pennsylvania, Texas and Rhode Island have refused to grant gay couples divorces.
Responding to those cases, California and the District of Columbia recently passed laws allowing gay couples married in their jurisdictions to divorce there if their home state will not dissolve the marriage.
Lawyers for Port and Cowen said they hope not to have to resort to trying to use those laws, which could cost the couple more time and money. They said they hope the Court of Appeals will make a decision in the next several months.
"We both want to move forward with our lives," Port said.
Six states and the District of Columbia currently permit gay couples to marry. Those states are Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont. Lawmakers in Washington state have also passed a law permitting gay couples to marry, but it doesn't take effect until June and could be put on hold by a proposed voter referendum seeking to overturn the law.