Port v. Cowan: Still Significant or Diminished Dicta?

 

In May 2012, the Court of Appeals of Maryland granted immediate certiorari to Port v. Cowan, a case involving denial of a same-sex divorce in the Circuit Court for Prince George’s County.  On appeal, the parties jointly argued that their California marriage should be recognized in Maryland for purposes of application of Maryland’s divorce laws.  In addressing this question, the Court of Appeals opened its opinion by stating that “the treatment given such relationships by the Maryland Legislature (until recently) may be characterized as a case of multiple personality disorder.”

The parties were validly married in California in 2008, approximately one month before the voters of California passed the controversial Proposition 8 which enacted a constitutional provision defining marriage as between a man and a woman.    Approximately eight months after marrying, the parties separated.  After waiting the requisite time period, the parties attempted to go forward with an uncontested divorce hearing.  After receiving testimony establishing and corroborating the grounds for a divorce based on mutual separation, the Court ultimately denied the parties’ request for a divorce, finding that same-sex marriage is not valid pursuant to Maryland law and to recognize the alleged marriage would be contrary to Maryland’s public policy.

At the outset, the Court of Appeals noted that there was a conflict among the Circuit Courts of the state regarding recognition of a valid same-sex marriage for purposes of applying Maryland’s divorce laws.  For example, Baltimore City had denied recognition whereas the Circuit Courts for Anne Arundel and St. Mary’s Counties had granted divorces to same-sex couples married outside the state.  According to the Court of Appeals, these divergent outcomes demonstrated the need for the Court to resolve the conflict.

The Court of Appeals held that under the common law doctrine of comity, Maryland is required to recognize valid out-of-state same-sex marriages for purposes of divorce actions.  “Comity” means that Maryland courts will give effect to laws and judicial decisions of another state or jurisdiction out of deference and respect.  In deciding to apply comity, the Court noted that liberal recognition of out-of-state marriages promotes “uniformity in the recognition of marital status.”  Furthermore, the Court had previously applied the doctrine to recognize common-law marriages formed in other states, as well as a marriage between an uncle and niece (both considered void in Maryland).

The Court went on to explore the Maryland Legislature’s actions in applying the comity doctrine.  The Court found that other states intending to prevent recognition of valid foreign same-sex marriages (such as Missouri, Pennsylvania and Virginia) have done so expressly and clearly, rather than by implication, subtlety or indirection.  Furthermore, the Maryland General Assembly had at least eight occasions to amend the statute to preclude valid out-of-state marriages from being recognized and failed to do so.  According to the Court, the failure to amend the statute permits an inference that the General Assembly intended the doctrine of comity to apply to foreign same-sex marriages.

Lastly, the Court found that recognition of foreign same-sex marriages did not violate Maryland public policy, but rather is actually consistent with such public policy.  The General Assembly had enacted several laws that protect and support same-sex couples in the areas of employment, public accommodations, leasing commercial property, housing, and inheritances for same-sex couples who qualify as domestic partners.  Additionally, the State of Maryland expressed a panoply of policies explicitly recognizing out-of-state same-sex marriages. Accordingly, the Court ultimately found that 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 the State.

Later that same year, in November 2012, the Maryland electorate made history when it passed a ballot referendum to legalize same-sex marriage, which took effect on January 1, 2013.  The referendum legalizing gay and lesbian marriage brought with it the obvious implication of same-sex divorce, leaving some people wondering what the significance of Port v. Cowan would continue to be.

Additionally, in January 2013, the Maryland Attorney General Douglas F. Gansler issued an opinion addressing a number of issues and questions about the implementation of marriage equality in Maryland.  Some of the key issues addressed in the 19-page opinion include the following:

  • Throughout the Maryland Code, there are many provisions that use the terms “husband” and “wife” in a manner that would appear to exclude same-sex spouses.  According to the Attorney General, those Code sections should be interpreted to include same-sex spouses without waiting for the Legislature to amend the Code.
  • Tenancy by the entireties is extended to include same-sex spouses as married couples.
  • An insurance plan that offers spousal coverage must recognize a new same-sex marriage as a qualifying event.
  • Maryland insurance companies are prohibited from discriminating on the basis of sexual orientation.

Although Port v. Cowan may seem moot in light of the referendum enactment of same-sex marriage, its significance still remains important for recognition of foreign same-sex marriages.  While the referendum legalized gay and lesbian couples’ ability to marry in Maryland, it did not address the specific issue in Porti.e., whether foreign same-sex marriages would be recognized.  Although some may argue that such a view is implicit in the initiative, Port v. Cowan provides an explicit basis for recognition of foreign same-sex marriages in the state.  Such recognition is important to same-sex couples who previously were unsure on a county-by-county basis of their respective ability to divorce in Maryland.  Therefore, the case’s significance is not entirely diminished, and it remains a strong statement by the Court of Appeals demonstrating the general shift of public opinion in Maryland on this issue.