ME High Court Cites Obergefell in Confirming State Anti-Marriage Law Has No Effect

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gladStating there is no “sufficient … doubt” about the validity of a same-sex couple’s marriage from the date of its celebration, the Maine Supreme Judicial Court has declined to answer a reported question about whether Maine’s former anti-marriage law delayed the validity of a couple’s marriage licensed in Massachusetts.

The specific issue in Kinney v. Busch was whether Maine’s 1997 anti-marriage had the effect of wiping away the marriage of a same-sex couple from Maine who married in Massachusetts in 2008 until the effective date of Maine’s equal marriage initiative law went into effect in 2012.  Elizabeth Kinney sought a divorce from Tanya Busch in 2013.  The effective date of their marriage—whether when licensed in 2008 or when Maine’s law became effective 2012—matters to what counts as martial property in the divorce proceedings. [pullquote]According to Mary L. Bonauto of Gay & Lesbian Advocates & Defenders, co-counsel in the case at the Law Court, “the U.S. Supreme Court wiped away any lingering effect of state anti-marriage laws to people who have pending cases or proceedings…”[/pullquote]

According to Mary L. Bonauto of Gay & Lesbian Advocates & Defenders, co-counsel in the case at the Law Court, “the U.S. Supreme Court wiped away any lingering effect of state anti-marriage laws to people who have pending cases or proceedings. The Law Court has relied on the U.S. Supreme Court’s decision in Obergefell to say that there is no “substantial doubt” about the legal question, and quoted that ruling to the effect that: ‘[T]here is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.’ Marriages of same-sex couples lawfully joined are valid—period—and that rule applies to any pending civil case or proceeding.”

Kinney’s divorce attorney, Tammy Ham-Thompson of Farris Law, previously won a trial court ruling that the marriage was valid as of the date it was entered. It was that legal ruling that prompted Busch to seek a report on the legal question from the Law Court. Ms. Ham-Thompson said, “This provides certainty and clarity for the courts, the public and our clients. There is no legal basis for resurrecting Maine’s old anti-marriage to perpetuate the injustice of that now repealed, and constitutionally invalidated law to treat married same-sex couples differently.” The Supreme Judicial Court’s order discharges the “report” requesting a legal ruling because the answer to the legal question is already clear.

Nolan Reichl, who along with Catherine R. Connors at Pierce Atwood LLP was also appellate counsel for Kinney and argued the case, stated: “We had two strong arguments. First, the Maine law lifting the previous ban states that marriages must be recognized “for all purposes.” Recognizing a marriage for purposes of divorce means recognizing all of the marriage from when it began.  Second, there is black letter law that constitutional rulings in civil cases are retroactively applied to pending cases.  Busch’s argument simply tried to breathe life into a discriminatory ban that Maine voters repealed in 2012 and which was of a kind that the Supreme Court invalidated this year in Obergefell.” [pullquote]There is no legal basis for resurrecting Maine’s old anti-marriage to perpetuate the injustice of that now repealed, and constitutionally invalidated law to treat married same-sex couples differently.”—Tammy Ham-Thompson of Farris Law[/pullquote]

GLAD’s Bonauto noted an amici curiae brief of “Governor John Baldacci and Concerned Maine Lawyers” filed with the Court urging it to reject the attempt to resurrect Maine’s discriminatory law against same-sex couples. It also explained that an answer was important because the “date of marriage” issue would affect open matters ranging from public benefits like state pensions and social security, to estate, probate and tax issues, to parental rights and child support.

The reported question that was discharged is:

May property acquired between October 14, 2008 and December 29, 2012, by a same-sex couple married in the State of Massachusetts on October 14, 2008, be treated as marital property for the purposes of a divorce action filed on January 18, 2013?

The order was issued on October 13, 2015.  The briefs in the case, including briefing on the effect of Obergefell, are available on GLAD’s website.

Through strategic litigation, public policy advocacy and education, Gay & Lesbian Advocates & Defenders works in New England and nationally to create a just society free of discrimination based on gender identity and expression, HIV status and sexual orientation.

[From a News Release]

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