Friday, May 18, 2012

Maryland court's approval of same-sex marriages from elsewhere includes nod to adoption by same-sex couples

Port v Cowan, the decision of the Maryland Court of Appeals today (that's the state's highest court) that Maryland recognizes same-sex marriages validly performed elsewhere, is notable in a number of respects.  The case arose in the context of a divorce action, with the trial judge refusing to grant the divorce because Maryland does not allow same-sex marriage.  A Wyoming trial court judge did the same things a couple of years ago.  But when the Wyoming Supreme Court reversed, as I write about here, it did so only to extent of ruling that the couple could divorce in Wyoming, not that the state would recognize a marriage. The Maryland court, on the other hand, was clear that Maryland will recognize same-sex marriages from elsewhere.  Period.  In reasoning that recognizing such marriages is not "repugnant" to Maryland public policy, the court listed all the ways in which state law recognizes and protects gay men and lesbians.  Also, the state's ban on same-sex marriage -- upheld just a few years ago -- does not ban recognition of such marriages from elsewhere.  Although the legislature could write such a ban into Maryland law, that's not going to happen --- not from a legislature that just passed marriage equality!  In a cute quip, the court's opinion refers to Maryland as suffering from "multiple personality disorder" when it comes to treatment of same-sex couples.

Here's perhaps the most amazing part of this ruling -- it was unanimous! And written by the same (conservative) judge who five years ago wrote the majority opinion in Conaway v. Deane upholding the state's ban on same-sex marriage.  In other words, the same judge who wrote that the Maryland constitution does not require the state to marry same-sex couples has now ruled that recognizing such marriages from elsewhere is not repugnant to the state's public policy and therefore they are valid in Maryland under the doctrine of comity.

My favorite part of the opinion, however, is what it says about gay people raising children.  First it refers to its own decisions banning discrimination in custody/visitation disputes.  (I'm proud to say that I was appellate counsel on one of the cited cases, Boswell v. Boswell.)  Then there's a footnote that says the following:

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 is the case upholding the ban on same-sex marriage.  The code portion cited is that which says that any adult may petition to adopt a child.  No appeals court in Maryland has ruled on whether two same-sex partners can adopt a child together.  One argument for permitting it is the usual statutory construction rule that the singular means the plural.  Trial judges have been granting joint and second-parent adoptions for maybe 15 years, but without a definitive ruling from an appeals court  there was always the possibility that some appeals court, in some context, would say that the Maryland statute does not allow it.  There was absolutely no need for the court in this case to even mention same-sex couples adopting children.  So I take this mention by the judge who ruled against same-sex marriage of something written in the same-sex marriage opinion by a judge who wanted to rule in favor of same-sex marriage as a sign that he and his colleagues think adoption by same-sex couples is indeed permitted.  Yippee!!!!


Teammm said...

Such great news of the confirmation that marriages will be considered valid & equal. Also, very insightful regarding adoption rights for gay couples. Thank you for your analysis.

Hopefully, we'll see more positive news by the end of the day on November 6th. Go Maryland! :)

Unknown said...