Maryland's highest court is poised to hear arguments in a precedent-setting case involving two women who married in California but were denied a divorce in Maryland, which does not currently allow same-sex weddings.
The Court of Appeals of Maryland in Annapolis was set to hear arguments Friday from lawyers for the lesbian couple who are seeking to end their marriage. A Maryland judge declined to grant their divorce in 2010, basing his decision on the conclusion that the women's marriage is not valid under Maryland law.
But lawyers for the women disagree, saying the state should recognize gay marriages performed elsewhere even though Maryland does not allow same-sex weddings at the present time. As a result, the couple should be allowed to divorce in the state, the lawyers say.
The high court's ultimate decision may have limited effect since same-sex weddings, and by extension divorces, are set to start in the state in January 2013 under a law passed this year. But opponents of the new law are seeking to overturn it in a potential voter referendum.
Meanwhile, judges in Maryland are inconsistent about granting divorces for gay couples who married in another state. Lawyers involved in Friday's case say they believe judges have granted about a half a dozen divorces for gay couples, but their clients, Jessica Port and Virginia Anne Cowan, and at least one other couple were recently denied that.
Divorces "shouldn't depend on what judge you get," said Shannon Minter, legal director for the National Center for Lesbian Rights in San Francisco and one of the attorneys representing Port.
Port and Cowan were married in California in 2008 during a window in which gay marriage was legal in the state. Almost two years later, the couple filed for divorce in Maryland, where Port lives. A hearing in the case before Prince George's County Judge A. Michael Chapdelaine lasted seven minutes, and in a written ruling a week later he declined to grant the divorce.
"The Court finds that to recognize the alleged marriage would be contrary to the public policy of Maryland," Chapdelaine wrote in a two-page opinion.
Lawyers for Port and Cowan write in court papers filed before Friday's hearing that Chapdelaine was wrong to find the couple's marriage invalid in Maryland.
Maryland has long recognized marriages entered into in other states, they say, even if the state 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. The state also has no express prohibition banning the recognition of same-sex marriages from other states, lawyers wrote.
Cowan and Port are not the first gay couple to find divorcing a difficult legal process. In recent years, judges in states including 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.
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.
It is unclear when the seven-member Court of Appeals will rule.