Md. doesn't recognize gay marriage, but what about gay divorce?

Last year, Attorney General Douglas F. Gansler issued an opinion suggesting that Maryland can and should recognize same-sex marriages performed in other states, even though such marriages are not allowed under Maryland law. Since several states and the neighboring District of Columbia now grant gay marriages, it seemed likely to be an issue when it came to how state agencies should handle things like pension and benefit rights for married same-sex couples.

But Mr. Gansler's opinion amounted to an educated guess as to how the state's courts might rule on such issues — and until they do, it remains mere advice.

It looks like that uncertainty may soon be lifted, but in an ironic twist, it will be related to a right all married couples have but none ever hope to assert: divorce. A handful of cases working their way through the courts, and likely to wind up in the Court of Appeals, ask the question: Can same-sex couples who were married in states where such unions are legal be divorced in Maryland, where they are not?

Maryland's lower courts so far have produced contradictory rulings on the matter, a situation that makes it likely that sooner or later Maryland's highest court will have to step in to decide the issue. In the meantime, same-sex couples whose marriages don't work out face a bewildering legal obstacle course. Last year, a judge in Anne Arundel County quietly approved a petition for divorce brought by two women who were married in Massachusetts, the first state to legalize gay marriage. Lawyers familiar with the case say the court has made several such rulings in recent years.

At the same time, however, judges in Prince George's County and Baltimore City have taken just the opposite position, refusing to grant divorces to gay couples in their jurisdictions on the grounds that Maryland doesn't recognize same-sex unions. In the Baltimore case, the judge initially approved the divorce order prepared by a court master but then took the highly unusual step of rescinding it a month later, after he realized the plaintiff and defendant were both the same sex.

In a more recent, conceptually related ruling, a judge in Washington County recognized a woman's right to exercise spousal privilege to avoid testifying against her wife in a criminal case.

Mr. Gansler's opinion does not have the force of law and is not binding on judges. Moreover, Mr. Gansler was careful to note that Maryland's highest court had not ruled on the matter, and therefore his opinion was offered as a prediction of how the court would probably rule, not as a definitive statement of settled law.

Nevertheless, his reasoning was compelling: Based on past rulings by the state's highest court, he argued, Maryland has generally recognized the validity of marriages legally performed in other states and would continue to do so even when such marriages would not be legal in Maryland. As examples, he cited marriages between certain close relatives or those involving minors under the age of 16. Such unions are legal in some states but not in Maryland.

The only exception to the rule is when recognition would violate an important public policy goal. That was the exception judges in Prince George's County and Baltimore City cited in rejecting divorce petitions from same-sex couples, claiming their courts lacked jurisdiction in such cases.

The plaintiff in Prince George's County, who is considering appealing her case to the Court of Special Appeals, could also bring her case in the District of Columbia, where her former partner resides and where gay marriage is legal. But that wouldn't affect the situation of other same-sex couples in Maryland, who should have the same right to seek recourse in state courts as their heterosexual peers, regardless of where they live.

If the case does go to appeal, one of its novel features would surely be that attorneys for both the plaintiff and the defendant (who is not contesting the divorce) would find themselves on the same side, since both will be seeking to overturn the lower court judgment and allow the divorce to be finalized. (Who would represent the other side is something of a mystery; the state is not a party to the action, and the attorney general has already made known his position against the lower court's ruling. The appellate court could ask an outside party or parties to submit friend of the court briefs — there probably would be groups on both sides willing to do so — but overall it would be a highly unusual procedure.)

It's also difficult to conceive of a situation in which the appeals court could uphold the lower court judge's refusal to recognize same-sex marriages performed in other states without at the same time invalidating all the divorces between same-sex couples that have already been granted by Maryland courts. All those people's lives would be thrown back into legal limbo, which surely is not good policy.

The right to divorce is probably not the one Maryland's gay couples had in mind when they pushed for the General Assembly to legalize same-sex marriage this year, and the circumstances of the couples whose cases are in legal limbo are certainly no cause to cheer. But the question of gay divorce may offer the clearest avenue for those legally married elsewhere to confirm that Maryland recognizes their unions just the same as anyone else's.