Maryland high court to hear same-sex divorce case

Posted at 1:47 PM, Apr 11, 2012
and last updated 2012-04-11 13:47:14-04

By David Ariosto, CNN

(CNN) – Maryland’s highest court is considering a case involving a lesbian couple married in California but denied a divorce in Maryland because the state does not currently allow same-sex couples to wed.

Jessica Port, 29, and Virginia Anne Cowan, 32, were married in San Francisco in 2008 when the state was issuing marriage licenses to same-sex couples. They filed for divorce in Maryland nearly two years later when their relationship turned sour, their attorneys have said.

But a Maryland judge denied the couple’s filing, ruling in 2010 that the divorce could not be recognized under the current state constitution.

Port and Cowan appealed and Maryland’s Court of Appeals took up their case last week, according to court documents. It’s unclear when a ruling might be issued.

While the case highlights state differences in the recognition of same-sex marriages, analysts say it will likely have little influence outside Maryland because federal law allows states to ignore how other states define marriage.

“This is simply going to be a case about the Maryland state constitution,” said Mark A. Graber, a law professor at the University of Maryland School of Law.

Passed in 1996 by a Republican-controlled Congress and signed into law by then-President Bill Clinton, the Defense of Marriage Act bars federal recognition of same-sex marriages and prevents states from imposing their definition of marriage elsewhere.

Gay rights activists say the matter often leaves same-sex couples in legal limbo when moving between states, claiming Maryland state courts have also inconsistently ruled on issues relating to same-sex marriages.

“Divorce is never easy, but when a couple has made the decision to end their marriage, there is no reason why the state should prevent them from ending their legal relationship and moving on with their lives,” said Erik Olvera, a spokesman for the National Center for Lesbian Rights.

Last month, Gov. Martin O’Malley signed into law a bill that made Maryland the eighth state to permit same-sex couples to wed. The law, however, isn’t scheduled to take effect until January 1, 2013.

The measure’s opponents have pledged to challenge it by holding a referendum during November’s election.

The Maryland Marriage Alliance group says it’s gathered thousands of signatures and is approaching the threshold required to put the issue on the ballot, adding further uncertainty to the Port and Cowan case.

“If anything, it shows the nuttiness of the interim period,” said Graber, referring to the unclear nature of Maryland state law in apparent transition.

A recent public opinion poll conducted by the Annapolis-based firm Opinion Works found that a slight majority of residents would vote for repealing the new law.

Of those responding, 43% “would vote to make same-sex marriage illegal in Maryland, while 40% would vote to make it legal,” the poll said. The poll had a sampling error of 4%.

“Although this result is within the poll’s margin of error, it is the intensity of feeling among same-sex marriage opponents that causes the overall result to lean slightly towards repeal,” said Steve Raabe, OpinionWorks president.

Currently, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and the District of Columbia issue marriage licenses to same-sex couples.

In February, Washington Gov. Christine Gregoire signed a bill into law that legalizes same-sex marriage, but it does not take effect until June. Opponents there have pledged to block the bill, also calling for a referendum.

Five states — Delaware, Hawaii, Illinois, New Jersey and Rhode Island — allow civil unions that provide rights similar to marriage.

In California, meanwhile, a federal appeals court recently ruled against a voter-passed referendum that outlawed same-sex marriage. It said such a ban was unconstitutional and singled out gays and lesbians for discrimination. The case appears to be eventually headed to the U.S. Supreme Court.