Maryland court recognizes out-of-state, same-sex marriages

Maryland's highest court handed a victory to same-sex couples Friday in a ruling that the governor and other advocates hailed as an endorsement of administration policies recognizing gay marriages performed in other states.

"To treat families differently under the law because they happen to be led by gay or lesbian couples is not right or just," Gov. Martin O'Malley said in a statement. "Today's decision is another step forward in our efforts to ensure that every child is protected equally under the law."

However, the ruling, in a case over whether Maryland courts could grant divorces to same-sex spouses, met with skepticism from groups fighting a recently passed state law legalizing gay nuptials.

Mathew Staver, founder and chairman of Liberty Counsel, a conservative international legal group, said the ruling "did not extend beyond divorce at this stage."

"I think the decision is flawed, because if Maryland does not recognize same-sex marriage … then the courts don't have the authority to either solemnize it or dissolve it," Staver said. "It shouldn't be recognized for any purpose, including the dissolution."

The case arose after Jessica Port and Virginia Anne Cowan, who were married in California, appealed the denial of their uncontested divorce in Prince George's County. Before Friday's ruling, judges in Maryland have variously granted or denied divorces for same-sex couples.

"It's great news. It's great for the state of Maryland, and it's great for me," said Port, 29.

Cowan, 32 could not be reached for comment.

Michele Zavos, an attorney who represents Cowan, called the court's action "a game-changer in Maryland." The Court of Appeals' unanimous decision, she said, means that married same-sex couples will have "the same rights as every couple in Maryland."

Maryland Attorney General Douglas F. Gansler, who supports same-sex marriage, said the decision will affect not only the dissolution of gay marriages performed out of state but will provide same-sex spouses with other legal protections that married couples enjoy.

The 21-page ruling does not affect the pending gay marriage law or the potential referendum on it, attorneys said.

The General Assembly passed legislation this year allowing same-sex weddings to be performed in the state, and it is scheduled to take effect in January. Opponents are trying to put the measure on the November ballot in hopes that voters will overturn it.

Opponents shook their heads over the Court of Appeals decision.

The Rev. Derek McCoy, executive director of the Maryland Marriage Alliance, part of a coalition seeking a referendum on the new law, said more than two-third of the signatures needed to have the measure placed on the ballot have been collected.

He called Friday's ruling "merely an example of how the courts and the legislature continue to be out of step with the clear will of the people."

Even if the law were to be overturned in the referendum, same-sex couples from Maryland who were wed outside the state still would return home married, said Mark Scurti, a lawyer for Port.

"That just means folks will go elsewhere to get married," Scurti said. "You are basically letting dollars go south to D.C. or north to other jurisdictions."

Port said she and Cowan decided to appeal after learning what a favorable ruling in Maryland might produce, she said. They could have filed in Washington, where Cowan relocated.

Because marriage laws vary from state to state and federal law does not force states to recognize same-sex marriages performed elsewhere, the inability to divorce can lead to odd situations. Port or Cowan could have married a man in Virginia, which does not recognize same-sex marriages, but could not have married anyone in New York without being labeled a bigamist, lawyers said.

Estranged same-sex couples in Maryland have been waiting for a ruling in this case to file for divorce, and at least one divorce petition is pending, Scurti said. The decision came less than two months after the case was argued before the high court.

"I think this ruling will encourage more couples to get married, especially here in Maryland after Jan. 1," Scurti said.

The court's decision hinged on Maryland's practice of "liberally" recognizing marriages from other states unless they are "repugnant" to public policy — the state has no law barring recognition of same-sex marriages, according to the ruling.

"The present case will be treated no differently. 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 this state," Judge Glenn T. Harrell Jr. wrote for the court.

Gansler, who wrote an advisory opinion in 2010 that led state agencies to extend benefits to same-sex spouses of state employees, said, "This case itself demonstrates very clearly the logistical impossibility of having the opinion going the other way."

However, the Maryland ruling does not affect federal law on gay and lesbian couples. Because federal law defines marriage as between a man and a woman, the surviving member of a same-sex couple cannot collect the federal pension of a deceased spouse, and same-sex couples face tax and asset division concerns that married heterosexual couples do not.

National advocacy groups worked on the women's cases, and other organizations had supported their divorce effort .

"It's an important and positive development," said Jana Singer, a professor of family and constitutional law at the University of Maryland Law School, who was among those supporting the women. She said the court's unanimous decision "means the legal issue was pretty clear-cut."

The ruling

A divorce petition by a same-sex couple legally married out of-state cannot be turned down by a Maryland judge on the basis of the marriage being "repugnant" to Maryland policy. Maryland courts generally recognize valid marriages performed elsewhere unless they are contrary to public policy.

What happens next: The case will be returned to Prince George's County Circuit Court with instructions that a judge grant the divorce petition of Jessica Port and Virginia Anne Cowan.

Effect on state's same-sex marriage law:

This case is not linked to the petition drive and possible referendum in November, which will determine whether the law takes effect in January. If the law goes into effect, same-sex weddings would be legal in Maryland, and therefore same-sex divorces would be, too.