Port v. Cowan (2012) & Same Sex Marriage in Maryland

Published on
March 7, 2024
Written by
Angel Murphy, Esq
Category
Divorce

Background

Few issues are as controversial in family law as same-sex marriage. Even though same-sex unions have been legal in the State of Maryland since 2013 (the law passed in 2012, but took effect in early 2013), Marylanders remain divided on the desirability and morality of this situation. Many religious Marylanders, in particular, believe that same-sex marriages are ethically problematic; when the law to legalize same-sex unions was passed, only a slight majority of Maryland voters stood behind it. To be exact, 52.5% of Maryland voters favored the law.

Maryland’s conflicted stance on this matter was revealed in the well-known decision of Port v. Cowan (2012). In 2007,Maryland’s Court of Appeal upheld the constitutionality of its prohibition against same sex marriage. Then, in 2008, Maryland courts heard the Port v. Cowan case, a case which paved the way (at least in part) toward the current paradigm. Let’s take a closer look at this important case.

Overview of the Case

The couple in this case consisted of two female partners who originally married in the State of California in 2008. At that time, California had already legalized same sex marriage, and so this foreign (i.e. out of state) marriage was lawfully created. Shortly after the marriage, the couple encountered problems, and ultimately the couple separated. One partner moved to Maryland, specifically Prince George’s County, and eventually filed for divorce in that jurisdiction. When that partner filed for divorce, she had been living in Maryland long enough to claim residency; furthermore, the couple had been separated for more than one year, and there was no desire for reconciliation of either side. When the case went before the trial court, the divorce was denied on the basis that Maryland didn’t presently recognize same sex marriage, and that granting the divorce would be contrary to public policy.

The petitioner then filed for an appeal and the case went before the Maryland appellate court for review.

Outcome & Discussion: Comity & Public Policy

Ordinarily, when Maryland courts handle foreign or out-of-state marriages, the courts apply the principle of “comity” to those marriages. This means that Maryland courts will recognize the validity of those marriages as a matter of respect, as opposed to obligation. In other words, under normal circumstances, Maryland courts will consider a valid foreign marriage as valid, not because Maryland courts must do so but because they typically give deference to foreign practices. However, there is an exception to this general principle, and that exception occurs whenever recognizing a valid foreign marriage would be contrary to public policy. Maryland courts use the word “repugnant” in these instances – that is, recognizing the foreign marriage would be repugnant to Maryland’s public policy, and so it is denied on that basis.

When reviewing this particular case, the appellate division noted that the bar for repugnance is quite high. In Maryland law at that time, there was no express prohibition against recognizing foreign same sex marriages. Seeing this as an exception to comity would be a very powerful statement against same sex marriage, and the appellate division was not prepared to make such a statement. Ultimately, the appellate division found no reason to find this same sex marriage repugnant, and overturned the trial court’s determination. The couple was permitted to divorce.

Contact the Murphy Law Firm for More Information

If you want to know more on same sex marriage issues in Maryland family law, or another family law matter, get in touch with one of the leading attorneys at the Murphy Law Firm today by calling 240-219-8963.

Angel Murphy

Personable. Passionate. Persistent.

Divorce, Same Sex Marriage, Foreign, Comity, Legal Precedent, Family Law, Same-Sex Unions, Court Ruling, Marriage Equality, Appellate Division, Civil Rights, LGBTQ+ Rights, Same-Sex Marriage, Divorce, Maryland, Port v. Cowan, Comity, Public Policy

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