Appellant, Jessica Port, and Appellee, Virginia Anne Cowan, married in California in 2008. Approximately two years later, Port and Cowan agreed mutually to separate. Port filed ultimately a divorce complaint, on the ground of voluntary separation, in the Circuit Court for Prince George's County (at the time, she was a resident of the County). Cowan answered the complaint in a "no contest" manner. The court denied the requested relief, explaining in its written order that the marriage was "not valid" and "contrary to the public policy of Maryland." Being aggrieved equally, the parties filed appeals timely, asking why an out-of-state, same-sex marriage, valid when and where performed, was not cognizable in Maryland for purposes of the application of its domestic divorce laws.
Putting aside for present purposes whatever may turn out to be the view of the Maryland electorate regarding recognition of the performance in Maryland of domestic same-sex marriages, the treatment given such relationships by the Maryland Legislature (until recently) may be characterized as a case of multiple personality disorder.
These perceptually mixed legal messages bear directly on resolving the question presented in the present case because they are where we find most often the public policy of Maryland. In order for the parties' foreign same-sex marriage to be recognized in this State for purposes of the application of our domestic divorce laws, that marriage cannot be "repugnant" to Maryland public policy, as that term is understood under the common law doctrine of comity.
I. FACTUAL AND PROCEDURAL HISTORY
The evidence is undisputed in the record of this case. Port and Cowan were wed in a civil ceremony in California on 10 October 2008.
Approximately eight months after marrying, the parties agreed to separate on or about 24 June 2009. After the requisite period of separation, Port filed in the Circuit Court for Prince George's County on 12 July 2010 a complaint for an absolute divorce. Cowan filed timely a "no contest" answer to Port's divorce complaint. The couple were not parents. There was no dispute identified or decision sought by the parties regarding marital property, alimony, or support submitted to the court.
The Circuit Court received testimony at a hearing on 15 October 2010 establishing and corroborating the divorce ground of mutual separation. In its 22 October 2010 dispositive order, the court concluded that Port met the residency requirements for divorce, had been separated voluntarily for more than one year, and had no hope or expectation of reconciliation. See, e.g., Wallace v. Wallace, 290 Md. 265, 275, 429 A.2d 232, 238 (1981) (stating that the three
Port filed timely an appeal to the Court of Special Appeals. Cowan filed timely a cross-appeal. Despite being opposing parties technically, Port and Cowan agree that their California marriage should be recognized in Maryland for purposes of the application of Maryland's divorce laws, and a divorce granted. Prior to the intermediate appellate court deciding the appeal, we issued, on our initiative, a writ of certiorari. Port v. Cowen, 422 Md. 353, 30 A.3d 193 (2011).
II. QUESTION PRESENTED
Port and Cowan present in their respective appeals the same, single question for our consideration: "Must the Circuit Court grant a divorce to two people of the same sex who were validly married in another jurisdiction and who otherwise meet the criteria for divorce under Maryland law?" Because this question is purely a legal one, we review without deference the Circuit Court's conclusions. See, e.g., Taylor v. Giant of Md., LLC, 423 Md. 628, 651, 33 A.3d 445, 459 (2011) (citing Rosemann v. Salsbury, Clements, Bekman, Marder & Adkins, LLC, 412 Md. 308, 314, 987 A.2d 48, 52 (2010)).
The parties posit that an affirmative response by us to their question is compelled by proper application of the principles of the common law doctrine of comity. They argue alternatively that the Circuit Court's failure to recognize their marriage violated their equal protection and due process rights, contained within Article 24 of the Maryland Declaration of Rights. No one appeared before us, in writing or in person, to argue that we should affirm the Circuit Court's judgment.
As we noted at the outset, § 2-201 of the Family Law Article provides (now and at the time the Circuit Court decided this case) that "[o]nly a marriage between a man and a woman is valid in this State."
This appeal, however, does not require us to revisit Conaway, nor does the resolution of this case implicate the Civil Marriage Protection Act (CMPA), enacted by the General Assembly during its 2012 session. H.B. 438, 2012 Leg., 429th sess. (Md.2012). Instead, we are asked whether a valid out-of-state, same-sex marriage may be recognized in this State, for purposes of a domestic divorce action. Courts deciding whether a foreign marriage is valid in this State, for purposes of divorce or otherwise, employ the common law doctrine of comity, not principally our domestic marriage laws. See, e.g., Henderson v. Henderson, 199 Md. 449, 457-58, 87 A.2d 403, 408 (1952); Fensterwald v. Burk, 129 Md. 131, 137-38, 98 A. 358, 369 (1916).
We note that there appears to be a conflict among the Circuit Courts of this State regarding the issue before us. In addition to the present case, the Circuit Court for Baltimore City denied recognition to an apparently valid foreign same-sex marriage for purposes of applying Maryland's divorce laws. The Baltimore City case is pending before the Court of Special Appeals. Brown v. Keller, No. 24-D10-001660DA (Cir.Ct.Balt.City, Md.2011), appeal filed, No. 816, September Term, 2011 (Md.Ct.Spec.App.2011). Conversely, the Circuit Courts for Anne Arundel and St. Mary's Counties granted divorces to same-sex couples, married validly outside-of-the-State. Migues v. Johnson, No. 02-C-10-155341DA (Cir. Ct. Anne Arundel Cnty., Md.2011); Cole v. Clover, No. 18-C-10-000327 (Cir. Ct. St. Mary's Cnty., Md.2010). The divergent treatment of foreign same-sex marriages by these Circuit Courts demonstrates the need for this Court to resolve the conflict.
A. The Doctrine of Comity
Under the doctrine of comity, long applied in our State, Maryland courts "will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation but out of deference and respect." Wash. Suburban Sanitary Comm'n v. CAE-Link Corp., 330 Md. 115, 140, 622 A.2d 745, 757 (1993) (citing Galloway v. Watts, 395 F.Supp. 729, 731 (D.Md.1975)). When considering a foreign marriage specifically, Maryland courts follow the choice-of-law rule of lex loci celebrations,
Generally, Maryland courts will honor foreign marriages as long as the marriage was valid in the state where performed. Henderson, 199 Md. at 458, 87 A.2d at 408; Bannister v. Bannister, 181 Md. 177, 180, 29 A.2d 287, 288 (1942); accord Restatement (Second) of Conflict of Laws § 283(1) (1971). There are two exceptions to this rule: the foreign marriage may not be "repugnant" to Maryland public policy and may not be prohibited expressly by the General Assembly. See Henderson, 199 Md. at 459, 87 A.2d at 409 ("[T]he State is not bound to give effect to marriage laws that are repugnant to its own laws and policy. Marriages that are tolerated in another state but are condemned by the State of Maryland as contrary to its public policy will not be held valid in this State."); Fensterwald, 129 Md. at 137-38, 98 A. at 360 (quoting Jackson, 82 Md. at 29-30, 33 A. at 318-19); accord Restatement (Second) of Conflict of Laws § 283(2).
Maryland recognizes liberally foreign marriages, even those marriages that may be prohibited from being formed if conducted in this State. Research by the parties, amici, and this Court failed to reveal a case, decided by this Court, voiding a valid out-of-state marriage that was prohibited from being formed in Maryland.
The following cases illustrate the liberal recognition of valid foreign marriages in this State. Maryland law prohibits the formation of common law marriages within the State. Mendelson v. Mendelson, 75 Md.App. 486, 502, 541 A.2d 1331, 1339 (1988). Yet, Maryland courts will recognize out-of-state common law marriages, if valid where formed. See, e.g., Henderson, 199 Md. at 458-60, 87 A.2d at
We recognized, for domestic law purposes, a Rhode Island marriage between an uncle and a niece. Fensterwald, 129 Md. at 137-38, 98 A. at 360. At that time in Maryland, an uncle-niece marriage was void and constituted further a misdemeanor, subject to a fine. Md.Code (1904), Art. 27 § 297, Art. 62 § 2. The couple traveled to Rhode Island expressly for the purpose of avoiding the Maryland prohibition (and possibly criminal prosecution). Fensterwald, 129 Md. at 134, 98 A. at 359. Despite these facts, we deemed the marriage so formed in Rhode Island to be valid in this State.
B. Applying Lex Loci Celebrationis to the Parties' Valid Foreign Same-Sex Marriage
Henderson, Fensterwald, and the other cases considered above demonstrate that Maryland courts will recognize liberally valid foreign marriages. See also Frey v. Frey, 298 Md. 552, 560, 471 A.2d 705, 709 (1984) ("[N]o state interest exists in preserving a marriage in which the relationship has broken down irretrievably."). The parties' California same-sex marriage is valid. Therefore, in order for their marriage to be valid for purposes of whether Maryland will adjudicate its dissolution, it must not run afoul of either exception to lex loci celebrationis: that is, it cannot be prohibited by statute or "repugnant" to the public policies of Maryland. For the following reasons, Port's and Cowan's entitlement, on this record, to a Maryland divorce from their California same-sex marriage is not prohibited, as a matter of law and on this record, by these exceptions.
Regarding the statutory prohibition exception, Family Law Article § 2-201 does not forbid expressly valid-where-formed foreign same-sex marriages. The plain wording of § 2-201 provides that "[o]nly a marriage between a man and a woman is valid in this State." It does not preclude from recognition same-sex marriages solemnized validly in another jurisdiction, only those sought-to-be, or actually, performed in Maryland. To preclude the former from being valid, the statute in question must express a clear mandate voiding such marriages and abrogating the common law. Molesworth v. Brandon, 341 Md. 621, 630, 672 A.2d 608, 613 (1996) ("`[A]bsent a statute expressing a clear mandate of public policy, there ordinarily
Other states intending to prevent recognition of valid foreign same-sex marriages have done so expressly and clearly, rather than by implication, subtlety, or indirection. For example, the Pennsylvania Code provides, "A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth." 23 Pa. Cons.Stat. § 1704 (LexisNexis through 2011). The Virginia Code provides, "Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable." Va.Code Ann. § 20-45.2 (LexisNexis through 2011). The Missouri Statute provides, "A marriage between persons of the same sex will not be recognized for any purpose in this state even when valid where contracted." Mo. Rev.Stat. § 451.022(4) (LexisNexis through 96th General Assembly).
On at least eight occasions, the Maryland General Assembly failed to amend § 2-201 to preclude valid out-of-state same-sex marriages from being recognized in Maryland. For example, during the 2010 legislative session, House Bill 90 (cross-filed with Senate Bill 852) sought to add the following language to § 2-201: "A marriage between two individuals of the same sex that is validly entered into in another state or foreign country is not valid in this State." H.B. 90, 2010 Leg., 427th Sess. (Md.2010) (died in a House committee). Similar amendments have failed to become law on at least seven other occasions, by our count. See H.B. 693, 2005 Leg., 420th Sess. (Md.2005) (died in a House committee); H.B. 728, 2004 Leg., 418th Sess. (Md.2004) (died in a House committee); H.B. 531, 2001 Leg., 415th Sess. (Md.2001) (died in a House committee); H.B. 1128, 1999 Leg., 413th Sess. (Md.1999) (died in a House committee); S.B. 565, 1998 Leg., 412th Sess. (Md. 1998) (passed on third reading in the Senate, but died in a House committee with an unfavorable report); H.B. 398, 1997 Leg., 411th Sess. (Md.1997) (died in a House committee); H.B. 1268, 1996 Leg., 410th Sess. (Md.1996) (died in a House committee). This pattern permits an inference, which we take, that the General Assembly intended the doctrine of comity regarding foreign same-sex marriages to remain the proper analysis to employ here. See Potomac Valley Orthopaedic Assocs. v. Md. State Bd. of Physicians, 417 Md. 622, 639-41, 12 A.3d 84, 94-95 (2011) (citations omitted).
We conclude also that the parties' same-sex marriage is not "repugnant" to Maryland "public policy," as that term is understood properly in applying the doctrine of comity in modern times. Admittedly,
The bar in meeting the "repugnancy" standard is set intentionally very high, as demonstrated in Fensterwald and Henderson. In the former case, this Court recognized an uncle-niece marriage solemnized in Rhode Island, despite the fact that it would be void and a misdemeanor had it been attempted to be formed in Maryland. Fensterwald, 129 Md. at 139, 98 A. at 360. In the latter case, we ruminated, in dictum, that a valid interracial marriage solemnized in another jurisdiction would be deemed invalid in Maryland.
With regard to the second exception to lex loci celebrationis, recognizing valid foreign same-sex marriages is consistent actually with Maryland public policy. Prior to the Attorney General's opinion surmising that this Court would recognize foreign same-sex marriages (valid where entered), the General Assembly enacted several laws that protect and support same-sex couples, as alluded to earlier in this opinion. An array of statutes prohibit public or private discrimination based on sexual orientation in the areas of employment, public accommodations, leasing commercial property, and housing. Md.Code Ann., State Gov't §§ 20-304, 401, 501, 606, 705, 901 (LexisNexis 2009); see also Md.Code Regs. 01.01.2007.16(A)(13) (2007) (gubernatorial executive order protecting State executive branch employees and applicants from sexual-orientation discrimination). Maryland's domestic partner statute extends to same-sex couples, who qualify as domestic partners, certain medical and decision-making rights as regards one another.
After the Attorney General published his opinion in 2010, the State of Maryland expressed a panoply of policies recognizing explicitly out-of-state same-sex marriages.
A number of other states with similar comity principles and relevant domestic marriage laws to those of Maryland have recognized foreign same-sex marriages for purposes of their domestic divorce laws. In Christiansen v. Christiansen, a same-sex couple, whose marriage was formed validly in Canada, appealed the denial of their divorce request by the courts of Wyoming. 253 P.3d 153, 154 (Wyo.2011). Wyoming has a statute limiting marriage to a man and woman, but fails to proscribe by legislation recognition of valid foreign same-sex marriages. See Wyo. Stat. Ann. § 20-1-101 (LexisNexis through 2011 regular session). It also recognizes foreign marriages pursuant to lex loci celebrationis (although the principle is codified, rather than a creature of the common law) and will not validate a foreign marriage "contrary to the policy of [Wyoming] laws." Christiansen, 253 P.3d at 155-56 (citing Wyo. Stat. Ann. § 20-1-111 (LexisNexis through 2011 regular session)). The court, noting that the "policy exception is necessarily narrow, lest it swallow the rule," concluded that recognizing a valid foreign same-sex marriage for purposes of a domestic divorce proceeding "does not lessen the law or policy in Wyoming against allowing the creation of same-sex marriages [in Wyoming]." Christiansen, 253 P.3d at 156. New York, which prior to enacting a marriage-equality law in 2011 had comity and marriage laws similar to Maryland and Wyoming, recognized foreign same-sex civil unions for purposes of divorce. See Dickerson v. Thompson, 73 A.D.3d 52, 897 N.Y.S.2d 298, 299-301 (2010) (no subsequent appeal). See also New Mexico Opinion Attorney General 11-01 (2011), available at 2011 WL 111234, concluding that "same-sex marriage that is valid under the laws of the country or state where it was consummated would likewise be found valid in New Mexico."
Under the principles of the doctrine of comity applied in our State, Maryland courts will withhold recognition of a valid foreign marriage only if that marriage is "repugnant" to State public policy. This threshold, a high bar, has not been met yet; e.g., no still viable decision by this Court has deemed a valid foreign marriage to be "repugnant," despite being void or punishable as a misdemeanor or more serious crime were it performed in Maryland. 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.
Maryland Circuit Courts, by comparison, are courts of general jurisdiction with common law and equitable powers. Md.Code Ann., Cts. & Jud. Proc. § 1-501 (LexisNexis 2006). The Family Law Article grants jurisdiction to equity courts, i.e., the Circuit Courts, over "divorce," without using the term "marriage." Md.Code Ann., Fam. Law § 1-201(a)(4) (LexisNexis 2006).