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Appellant and Appellee were two women validly married in California. The parties later agreed to separate, and Appellant filed a divorce complaint in Maryland. The circuit court denied the requested relief, explaining in its written order that the marriage was not valid pursuant to Maryland law and was contrary to the public policy of Maryland. The parties filed timely appeals. The Supreme Court noted that, under the principles of comity applied in the State, Maryland courts will withhold recognition of a valid foreign marriage only if that marriage is "repugnant" to State public policy. The Court reversed the circuit court, holding (1) no viable decision by the Court had 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; and (2) therefore, 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 the State. Remanded with direction to grant a final divorce to the parties.Receive FREE Daily Opinion Summaries by Email
Jessica Port v. Virginia Anne Cowan, No. 69, September Term, 2011
FAMILY LAW – DIVORCE – RECOGNITION OF VALID FOREIGN SAME-SEX
MARRIAGE – DOCTRINE OF COMITY: Under the common law doctrine of comity,
a valid out-of-state marriage will be recognized in Maryland, for purposes of application of
its domestic divorce laws, if it is not statutorily prohibited or “repugnant” to Maryland public
policy. The “repugnancy” threshold is very high. Maryland statutes do not treat as void
expressly foreign same-sex marriages. Rather, a review of Maryland statutes and executive
branch policies demonstrates that recognizing valid foreign same-sex marriages is consistent
with Maryland public policy. Therefore, the parties’ valid California same-sex marriage is
cognizable in this State for purposes of adjudicating a divorce complaint.
Circuit Court for Prince George’s County
Case No. CAD10-22420
IN THE COURT OF APPEALS
September Term, 2011
VIRGINIA ANNE COWAN
Raker, Irma S., (Retired, Specially
Opinion by Harrell, J.
Filed: May 18, 2012
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 samesex marriages, the treatment given such relationships by the Maryland Legislature (until
recently) may be characterized as a case of multiple personality disorder.1 Exhibit One in
this lay diagnosis is the currently effective version of § 2-201 of the Family Law Article of
the Maryland Code, defining marriage, for purposes of such ceremonies conducted in
Maryland, as being only between a man and a woman.2 See Conaway v. Deane, 401 Md.
The essential feature of multiple personality disorder (also known as dissociative
identity disorder) is the existence within a person of two or more distinct identities or
personality states. American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 484 (4th. ed. 1994). There are at least two fully developed personalities,
each having unique memories and behavior patterns. Id.
The General Assembly enacted, during the 2012 session, the Civil Marriage
Protection Act (“CMPA”), H.B. 438, 2012 Leg., 429th Sess. (Md. 2012). The Governor
signed the bill into law on 1 March 2012. The law, when effective, will change § 2-201 [to
219, 325, 932 A.2d 571, 635 (2007) (rejecting constitutional challenges to § 2-201). Exhibit
Two is a long list of enactments protecting gay persons and same-sex couples from
discrimination (by reason of their sexual orientation and relationships) in employment,3
health care,4 estate planning,5 and other areas.6
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
become § 2-201(b)] to read “only a marriage between two individuals who are not otherwise
prohibited from marrying is valid in this State.” The law provides a prospective effective
date of 1 January 2013, or later if litigation is pending on 1 January 2013 arising from an
anticipated petition referendum initiative to place the measure on the ballot before the
Maryland electorate for the November 2012 general election. See 2012 Md. Laws 2, §§ 5,
7. Thus, if the petition initiative receives successfully the State Board of Elections’ approval
of the requisite number of signatures of eligible voters, but that approval spawns litigation
that is not resolved finally by 1 January 2013, or the electorate rejects the law at the polls in
November 2012 and litigation results from that action which is not resolved finally on or
before 1 January 2013, the effective date of the CMPA (if it should become effective at all)
may be later than 1 January 2013. At the time this opinion is filed, the petition initiative is
ongoing. For reasons explained infra, whether the CMPA becomes effective is of no impact
on the resolution of the present case. See infra note 11.
Md. Code Ann., State Gov’t § 20-606 (LexisNexis 2009).
See, e.g., Md. Code. Ann., Health-Gen. § 6-101 (LexisNexis 2009).
Md. Code Ann., Tax-Prop. §§ 12-101(e-2), -108(c)(1)(ix), (d)(1)(ii), 13207(a)(2)–(3) (LexisNexis Supp. 2011).
See infra note 18 and accompanying text.
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 2008.7 At that time, California recognized
domestic same-sex marriage.8 That the parties’ marriage was formed validly in California
is neither contested nor at issue on this record. Therefore, we assume, for purposes of this
appeal, that the parties’ marriage was, and is, valid in California.
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
Presently, Connecticut, the District of Columbia, Iowa, Massachusetts, New
Hampshire, New York, and Vermont solemnize same-sex marriages. D.C. Code § 46-401
(LexisNexis through 23 Dec. 2011); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407
(Conn. 2008); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Goodridge v. Dep’t of Pub.
Health, 798 N.E.2d 941 (Mass. 2003); N.H. Rev. Stat. Ann. § 457:1 (LexisNexis through
chapter 9 of 2012 session); N.Y. Dom. Rel. Law § 10-a (LexisNexis through 2012 released
chapters 1–8, 10–24, 50–55); Vt. Stat. Ann. tit. 15, § 8 (LexisNexis through 2011 session).
Several foreign countries solemnize same-sex marriage, including Canada. Civil Marriage
Act S.C. 2005, c. 33 (Can.).
Approximately one month after the parties’ marriage, the voters of California
adopted Proposition 8, which enacted a state constitutional provision limiting the definition
of marriage to a man and a woman. Strauss v. Horton, 207 P.3d 48, 59 (Cal. 2009).
Proposition 8, however, did not affect the validity of same-sex marriages formed in
California during the time when it was legal to do so. Strauss, 207 P.3d at 119. In any event,
the federal Ninth Circuit Court of Appeals concluded subsequently that Proposition 8
violated the Fourteenth Amendment to the Constitution. Perry v. Brown, 671 F.3d 1052,
1063 (9th Cir. 2012). The mandate is stayed presently, however, pending the outcome of an
en banc rehearing. See Fed. R. App. P. 41; 9th Cir. R. 41-1, -2.
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 dispositve
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 elements of voluntary separation are “(i) an express or implied
agreement to separate, accompanied by a mutual intent not to resume the marriage
relationship; (ii) voluntarily living separate and apart without cohabitation for twelve months
prior to the filing of the bill of complaint; and (iii) that the separation is beyond any
reasonable hope of reconciliation”); Fletcher v. Fletcher, 95 Md. App. 114, 123, 619 A.2d
561, 565 (1993) (explaining that jurisdiction over a divorce requires at least one of the parties
to the marriage be domiciled in the State). Despite these conclusions, the Circuit Court
denied Port’s divorce request. The trial judge reasoned solely that the “same sex marriage
in which the parties hereto participated is not valid pursuant to Maryland law. . . . [T]o
recognize the alleged marriage would be contrary to the public policy of Maryland.”
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. Cowan, 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.9 Because we resolve this appeal on the non-constitutional
No one moved to file an amicus brief arguing against Port’s and Cowan’s position.
On the other hand, we received amicus briefs in support of the parties’ position from the
American Civil Liberties Union of Maryland, the Deans and Faculty of the University of
Baltimore School of Law, the Deans and Faculty of the University of Maryland Francis King
Carey School of Law, Equality Maryland, Inc., Maryland Black Family Alliance, the
ground of comity, we shall not reach the parties’ equal protection and due process arguments.
Prof’l Staff Nurses Ass’n v. Dimensions Health Corp., 346 Md. 132, 138–39, 695 A.2d 158,
161 (1997) (quoting State v. Lancaster, 332 Md. 385, 404 n.13, 631 A.2d 453, 463 n.13
(1993)) (noting that the Court of Appeals will not reach a constitutional issue when a case
may be decided on a non-constitutional ground).
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.” Md. Code Ann., Fam. Law § 2-201 (LexisNexis 2006). In 2007, we
concluded that this prohibition on domestic same-sex marriage did not violate Articles 24 and
46 of the Maryland Declaration of Rights. Conaway, 401 Md. at 325, 932 A.2d at 635.
Thus, Maryland will recognize a marriage solemnized within its boundaries if it is between
a man and a woman only.10
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,
National Black Justice Coalition, and Rainbow Families.
Subject, of course, prospectively to whether the CMPA becomes effective. See
supra note 2..
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,
93 A. 358, 369 (1916).11
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-D-10-001660DA (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
Like the legislation considered in Conaway v. Deane, 401 Md. 219, 932 A.2d 571
(2007), the CMPA governs domestic same-sex marriages, not whether valid foreign same-sex
marriages should be recognized in Maryland. According to its terms, it will become effective
on 1 January 2013 (or thereafter, if at all, based on the outcome of related litigation that may
be undertaken), as explained in footnote 2, supra. The CMPA authorizes domestic same-sex
marriage by amending Family Law Article § 2-201. Whether the ongoing referendum
petition “drive” to place this law on the November 2012 election ballot succeeds, and if so,
whether the electorate rejects the CMPA, however, has no bearing on our consideration and
resolution of the present case. If the electorate rejects the CMPA, § 2-201 will remain in its
present formulation. As we shall explain infra, such a petition initiative, should it occur and
succeed, does not evince that the recognition of valid-where-performed same-sex marriages,
for the purposes application of domestic divorce laws, are “repugnant” to the public policy
of this State. The result of that initiative has no bearing on the application of the principles
of comity to the question before us in the present case.
(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 celebrationis,12 applying the substantive law of the
place where the contract of marriage was formed. Jackson v. Jackson, 82 Md. 17, 28, 33 A.
317, 318 (1895).
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
Although we use the Latin phrase lex loci celebrationis, which means the law of
the place of the ceremony, Maryland common law uses actually the alternative phrase lex loci
contractus, meaning the law of the place where a contract is executed (marriage is, after all,
a contract). If Latin is to be used at all, it is more correct in the present context to use
celebrationis. Black’s Law Dictionary 995 (9th ed. 1990) (“[Lexi loci celebrationis usually]
governs when the validity of a marriage is at issue.”); see also William M. Richman &
William L. Reynolds, Understanding Conflict of Law § 116(a), at 362 (2d ed. 1993).
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 (1916) (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.13 Liberal recognition of out-of-state
marriages promotes “uniformity in the recognition of the marital status, so that persons
legally married according to the laws of one state will not be held to be living in adultery in
another State, and that children begotten in lawful wedlock in one State will not be held
illegitimate in another.” Henderson, 199 Md. at 458; 87 A.2d at 408 (citing, among other
authorities, Lando v. Lando, 127 N.W. 1125 (Minn. 1910)). Further, the recognition of
This Court has denied, however, recognition to a foreign divorce. Aleem v. Aleem,
404 Md. 404, 947 A.2d 489 (2008). The wife filed in Maryland for a limited divorce from
her husband. Aleem, 404 Md. at 406, 947 A.2d at 490. The husband argued that his talaq
divorce, obtained in and recognized by Pakistan, deprived Maryland courts of jurisdiction
to hear the wife’s marital property claims. Id. We declined to extend comity to the talaq
divorce because it was contrary to Maryland public policy regarding equitable distribution
of marital property, in the absence of a valid agreement to the contrary. Aleem, 404 Md. at
425, 947 A.2d at 502.
foreign marriages instills stability in “one of the most important of human relations.” Eugene
F. Scoles & Peter H. Hay, Conflict of Laws 429 (2d ed. 1991); see also William M. Richman
& William L. Reynolds, Understanding Conflict of Laws § 116(a), at 362 (2d ed.1993).
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 408–09 (recognizing, for purposes of
divorce, a common law marriage formed in the District of Columbia); Whitehurst v.
Whitehurst, 156 Md. 610, 620, 145 A. 203, 207–08 (1929) (recognizing, for purposes of
administering the deceased husband’s estate, a common law marriage formed in New York).
The Court of Special Appeals has gone so far as to infer that a couple’s two-day sojourn in
Pennsylvania, a common law marriage state, created a valid foreign marriage, where their
relationship fulfilled otherwise the common law marriage requirements. Blaw-Knox Constr.
Equip. Co. v. Morris, 88 Md. App. 655, 669–72, 596 A.2d 679, 685–87 (1991) (concluding
that, for purposes of maintaining a wrongful death claim, there was sufficient evidence for
the jury to consider whether a couple was married).
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.14
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 §
In addition to the briefs of the parties and amici curiae, we are guided by the
Maryland Attorney General’s opinion, which concluded that foreign same-sex marriages are
valid in Maryland. See Marriage—Whether Out-of-State Same-Sex Marriage That is Valid
in the State of Celebration May Be Recognized in Maryland, 95 Op. Att’y Gen. Md. 3
(2010). Although certainly not binding on this Court, we consider for its persuasive value,
if any, the Attorney General’s opinion. See, e.g., Dodds v. Shamer, 339 Md. 540, 556–57,
663 A.2d 1318, 1326 (1995).
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 is no violation of [it].’” (quoting Waston v. People’s Ins. Co., 322 Md. 467, 478,
588 A.2d 760, 765 (1991))); Azarian v. White, 140 Md. App. 70, 95, 779 A.2d 1043, 1057
(2001) (citing Robinson v. State, 353 Md. 683, 693, 728 A.2d 698, 702–03 (1999)).
Moreover, we note that same-sex marriages are not listed in Family Law Article § 2-202 as
among those marriages considered void.
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).15
The language of § 2-201, by comparison, fails to void for present purposes valid foreign
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,
For additional examples, see Ala. Code § 30-1-19(e) (LexisNexis through 2012
regular session) (“The State of Alabama shall not recognize as valid any marriage of parties
of the same sex that occurred or was alleged to have occurred as a result of the law of any
jurisdiction regardless of whether a marriage license was issued.”); W. Va. Code Ann. § 482-603 (LexisNexis through 4th 2011 extraordinary session) (stating that foreign same-sex
marriages “shall not be given effect”).
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, “public policy” is an amorphous legal concept.16 It is agreed,
however, that wherever found and identified, that public policy prohibits generally conduct
that injures or tends to injure the public good. Md.-Nat'l Capital Park & Planning Comm'n
v. Wash. Nat'l Arena, 282 Md. 588, 605–06, 386 A.2d 1216, 1228 (1978) (quoting Egerton
v. Brownlow, 4 H.L. Cas. 1, 196 (1853)). The primary sources of public policy (and where
typically we look to divine it) are the State’s constitution, statutes, administrative regulations,
and reported judicial opinions. Adler v. Am. Standard Corp., 291 Md. 31, 45, 432 A.2d 464,
In Maryland-National Capital Park & Planning Commission v. Washington
National Arena, Judge Levine wrote that “jurists to this day have been unable to fashion a
truly workable definition of public policy.” 282 Md. 588, 605, 386 A.2d 1216, 1228 (1978).
He noted further that “conceptions of public policy tend to ebb and flow with the tides of
public opinion, making it difficult for courts to apply the principle with any degree of
certainty.” Md.-Nat'l Capital Park & Planning Comm'n, 282 Md. at 606, 386 A.2d at 1228
(citing 1 W. Story, A Treatise on the Law of Contracts § 675 (5th ed. 1874)). For example,
in 1895, this Court grounded its notion of public policy on “Christendom,” deeming foreign
marriages “contrary to the law of nature as generally recognized in Christian countries” to
be invalid in this State. Jackson v. Jackson, 82 Md. 17, 29–30, 33 A. 317, 318–19 (1895).
Although the ecclesiastical underpinning of Jackson may not be without some continuing
efficacy, the modern conception of public policy is not so limited and includes an objective,
472 (1981) (quoting Md.-Nat’l Capital Park & Planning Comm’n, 282 Md. at 605–06, 386
A.2d at 1228). Although courts are not confined to these emanations of public policy in their
search, secondary sources are perceived generally as less persuasive. See Adler, 291 Md. at
45, 432 A.2d at 472.
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.17 The
dictum in Henderson has been discredited, Conaway, 401 Md. at 304 n.66, 932 A.2d at 622
n.66, and the anti-miscegenation statute repealed, 1967 Md. Laws 6. For present purposes,
however, the dictum demonstrates how elevated a standard “repugnancy” is. At the time of
Henderson, interracial marriage was condemned by statute (“an infamous crime”) and carried
a severe penalty—imprisonment for not less than eighteen months and not more than ten
Despite Henderson and the above referenced dictum, the Board of Immigration
Appeals concluded subsequently that Maryland would recognize an interracial marriage,
solemnized validly in another state, despite being against the law and a criminal violation in
Maryland at the time. In re C, 7 I. & N. Dec. 108, 110–11 (B.I.A. 1956). In that case, a
Filipino man married a Caucasian woman in the District of Columbia to avoid purposefully
Maryland’s anti-miscegenation statute. In re C, 7 I. & N. Dec. at 109. The board noted that
the Maryland statute did not “in express terms make void the marriage of persons domiciled
in Maryland who attempt to evade this statutory provision by marriage in another state.” In
re C, 7 I. & N. Dec. at 110–11.
years. Md. Code (1935), Art. 27 § 365, repealed by 1967 Md. Laws 6. By comparison, a
same-sex marriage performed in Maryland does not carry for the couple (or the celebrant)
a serious criminal penalty. See, e.g., Md. Code Ann., Fam. Law § 2-406(d)(2) (LexisNexis
2006) (providing that an individual who marries knowingly two people prohibited by Family
Law Article § 2-202 is guilty of a misdemeanor, punishable by a fine). Thus, based on the
Fensterwald–Henderson line of cases, we cannot conclude logically that valid out-of-state
same-sex marriages are “repugnant” to Maryland public policy.
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.18 Md. Code. Ann.,
The Health-General Article (LexisNexis 2009) extends to qualifying domestic
Health-Gen § 6-101 (LexisNexis 2009); see also Madeleine N. Foltz, Comment, Needlessly
Fighting an Uphill Battle: Extensive Estate Planning Complications Faced by Gay and
Lesbian Individuals, 40 U. Balt. L. Rev. 495, 523–24 (2011). The General Assembly granted
also recordation, transfer, and inheritance tax exemptions to same-sex couples who qualify
as domestic partners. Md. Code Ann., Tax-Prop. §§ 12-101(e-2), -108(c)(1)(ix), (d)(1)(ii),
13-207(a)(2)–(3) (LexisNexis Supp. 2011); Md. Code Ann. Tax-Gen. § 7-203(l) (LexisNexis
2010). Finally, this Court rejected discrimination based on sexual orientation in the context
of certain family law situations. In Boswell v. Boswell, we concluded that sexual orientation
of a parent ordinarily is irrelevant in a visitation dispute (unless the court finds that the child
would be impacted adversely in a demonstrable way because of the parent’s conduct with
his/her partner in front of the child). 352 Md. 204, 237–38, 721 A.2d 662, 678 (1998); see
also North v. North, 102 Md. App. 1, 16–17, 648 A.2d 1025, 1032–33 (1994) (concluding
that the trial court abused its discretion by denying overnight visitation to a father based on
partners the following rights: visiting a domestic partner in a health facility or nursing home
(§ 6-201 & § 19-344(k)(2)); sharing a nursing-facility room (§ 19-344(h)); accompanying
a domestic partner in a medical-emergency transport (§ 6-202); surrogate decision-making
authority when the other partner is incapacitated and has not granted power of authority to
another (§ 5-605(a)(2)(ii)); authority to consent to a postmortem examination of a deceased
partner (§ 5-501(b)(iii)); authority over the disposition of a deceased partner’s remains (§ 5509(c)(1)); and, access to burial permits related to a deceased partner (§ 4-215(e)(5)(iii)).
Further, a surviving domestic partner is a “person of interest” as regards the deceased
partner’s burial site. Md. Code Ann., Real Prop. § 14-121(a)(4)(iii).
his sexual orientation).19
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. See
Marriage—Whether Out-of-State Same-Sex Marriage That is Valid in the State of
Celebration May Be Recognized in Maryland, 95 Op. Att’y Gen. Md. 3 (2010); Press
Release, Statement from Governor O’Malley on Attorney General’s Same Sex Marriage
Recognition Opinion (24 Feb. 2010) (“I expect all State agencies to work with the Attorney
General’s office to ensure” recognition of out-of-state same-sex marriages). The Department
of Budget and Management changed its paid-leave and employee-benefit policies to include
same-sex spouses of eligible State employees. See Same Sex Domestic Partner and Same
Sex Spouse FAQ’s, Md. Dept. of Budget and Mgmt., http://dbm.maryland.gov/benefits/
Documents/SameSexDPSpouseFAQs.pdf (lasted visited 16 May 2012); Important Benefit
visited 16 May 2012). The Board of Regents of the University System of Maryland, for
purposes of tuition remission and other policies, redefined spouse to be “consistent with the
advice given by the Office of the Attorney General.” Clarification of the Definition of
“Spouse” in BOR Policies, University System of Maryland Board of Regents (12 Sept.
Although the issue has not been addressed in a holding by the Court, Judge Raker,
in her concurring/dissenting opinion in Conaway, expressed her view that Family Law
Article § 5-3A-29 permits same-sex couples to adopt children. Conaway, 401 Md. at
334–36, 932 A.2d at 641–42 (2007) (Raker, J., concurring/dissenting).
2010), available at http://www.usmd.edu/BORPortal/Materials/2010/FB/20100917/6f.pdf.
Finally, the Department of Health and Mental Hygiene changed its procedure so that a female
same-sex spouse (who did not give birth) can be listed as a parent without having to obtain
a court order. Letter from Geneva G. Sparks, State Registrar and Deputy Director, to Birth
Registrar (10 February 2011), available at http://data.lambdalegal.org/in-court/downloads/
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, 897 N.Y.S.2d 298, 299–301 (N.Y. App. Div. 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
Some states have elected not to recognize valid foreign same-sex marriages for
purposes of domestic divorce proceedings. See, e.g., In re J.B., 326 S.W.3d 654 (Tex. Ct.
App. 2010); Kern v. Taney, 11 Pa. D. & C.5th 558 (Pa. C.P. Ct. 2010). Those states, unlike
Maryland, expressed clear public policies against honoring foreign same-sex marriages. In
re J.B., 326 S.W.3d at 665 (“Section 6.204(b) [of the Texas Family Code] declares same-sex
marriages void and against Texas public policy.”); Kern, 11 Pa. D. & C.5th at 562 (“‘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.’” (quoting
23 Pa. Cons. Stat. § 1704)).20
The Supreme Court of Rhode Island opted also not to honor foreign same-sex
marriages for purposes of domestic divorces. Chambers v. Ormiston, 935 A.2d 956 (R.I.
2007). Although that state does not have a clear public policy against recognizing such
marriages, Chambers is distinguishable from In re J.B., Kern, and the present case. The issue
in Chambers was whether the Rhode Island family court, a legislatively created court of
limited jurisdiction and authority, had jurisdiction, under the prevailing statute, over parties
seeking to annul their valid foreign same-sex marriage. 935 A.2d at 962–63. The statute
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.
JUDGMENT OF THE CIRCUIT COURT
FOR PRINCE GEORGE’S COUNTY
REVERSED; CASE REMANDED TO THAT
COURT WITH DIRECTION TO GRANT A
FINAL DIVORCE TO THE PARTIES.
PARTIES TO BEAR EQUALLY THE COSTS
IN THIS COURT.
provides that the Rhode Island family court could “hear and determine all petitions from the
bond of marriage.” R.I. Gen. Laws § 8-10-3 (LexisNexis through January 2011 session).
The Chambers court resolved that the word “marriage” in the statute connoted opposite-sex
marriage only. Chambers, 935 A.2d at 962–63.
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)