The Maryland Court of Appeals, Maryland’s highest court, issued a decision last Friday requiring a Prince George’s County circuit judge to grant a divorce to two women who were married in California. On its face, this looks like a simple case of allowing same-sex couples to divorce in Maryland, even though Maryland does not yet allow such couples to marry in Maryland.
However, if one reads the case more carefully, the full impact of the Court of Appeal decision in Port v. Cowan, becomes clear. Maryland must first recognize a marriage between a same-sex couple in order to grant a divorce to the couple. “Recognize” is the operative word here. This decision means that Maryland must RECOGNIZE marriages for same-sex couples when the marriages are valid in the jurisdiction where they were performed. So, for example, Maryland residents who come to the District of Columbia or other jurisdictions to be married, are now married, in every way, in Maryland. This case is not just about divorce, it is about our marriages being recognized in every respect in the state.
Some of the rights that go with marriage in Maryland are the right to inherit from a spouse, exemption from inheritance and estate tax at death, and ability to sue for a wrongful death of a spouse. A summary of these rights and responsibilities, called “Marriage Inequality in Maryland,” can be found at equalitymaryland.org, which commissioned the study. That publication was written in 2006, and how much has changed since then!
Of course, Maryland has passed marriage equality, but it appears that law will be subject to a referendum in November, as the law does not take effect until January 2013. In Maryland, laws passed by the legislature may be overturned by a referendum. However, unlike California, decisions by Maryland courts may not be reconsidered in a referendum. Only the legislature may reverse a decision by Maryland courts. So, the Court of Appeal decision can only be rejected by the legislature, and given that the legislature just passed marriage equality, we can expect that the Port case will remain the law of Maryland.
Even though we now clearly have marriage recognition in Maryland, many of the issues of marriage recognition will continue to play out. I expect that like elsewhere, there will be many bumps in obtaining all of our marriage rights. Some questions immediately coming to mind include whether children of a marriage will be considered the legal children of both parents; whether spouses may put each other on employer provided health insurance; what will happen in a contested divorce when the parties were together a long time then got married, then separated; how will marital rights in Maryland be dealt with when issues involve other states’ laws; how will companies that do business in Maryland but are incorporated elsewhere treat our marriages? Situations and questions like these will have to be addressed for some time before all of the dust settles.
Also, the fact that Maryland now recognizes our marriages does not change anything on the federal level. Although the federal government says it will no longer enforce the Defense of Marriage Act (DOMA), federal law in almost all respects still does not recognize our marriages. Married Maryland residents who are federal employees still are unable to put their spouses on their health insurance and are unable to elect a spousal benefit for a pension, among other marriage benefits. No married same-sex couple has access to each other’s Social Security benefits. There is litigation around the country challenging many of these policies, so this chapter in our fight for equal rights continues to be written.
All in all though, Port v. Cowan is a very significant step forward for marriage equality in Maryland. Of course, we all hope that Marylanders will confirm that marriage equality means that same-sex couples may marry IN Maryland, their home state. That’s an important message of acceptance into a basic societal right. But for now, if Maryland residents cross the line into the District and get married, they’ll be married at home too.
Michele Zavos is a principal at Zavos Juncker Law Group, PLLC, and represented Jessica Port in Port v. Cowan. She is a long-time lesbian activist attorney in the Washington metropolitan area. Reach her at firstname.lastname@example.org.