Stating 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 law had the effect of making the marriage of a same-sex couple from Maine who married in Massachusetts in 2008 a non-entity until Maine’s equal marriage initiative law went into effect in 2012. Elizabeth Kinney sought a divorce from Tanya Busch in 2013. The question of the effective date of their marriage –when licensed in 2008 or when Maine’s law became effective 2012 – matters to what counts as martial property in the divorce proceedings.

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 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. Attorney 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 and perpetuating its injustices against same-sex couples.”

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, along with Catherine R. Connors at Pierce Atwood LLP was also appellate counsel and argued the case. Attorney Reichl stated: “We had two strong arguments. First, the Maine law lifting the previous ban provides 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, it 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 is the type of law invalidated by the Supreme Court in Obergefell.”

GLAD’s Bonauto noted an amici curiae brief of “Governor John Baldacci and Concerned Maine Lawyers” filed urging the Court 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.

Today, the Maine Law Court heard oral argument in a pending divorce case between two women on a legal question reported to them for decision from the Maine District Court.  The question 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?

Together with the law firm of Pierce Atwood LLP and Farris Law, Gay & Lesbian Advocates & Defenders represents Kinney who argues that her marriage was valid in Maine from day one.  Busch counters that argument by pointing to the anti-marriage law enacted in Maine in 1997, prohibiting such marriages, remained in effect until December 29, 2012, the effective date of the Maine voter initiative repealing the old law and allowing same-sex couples to marry.

Kinney’s argument for validity is two-fold.  First, the law Maine voters enacted at the ballot in 2012 specifically accorded recognition to existing marriages validly licensed elsewhere.  When Kinney filed her divorce action in January 2013, the previous bar on recognition had been lifted.  And since the Maine referendum said marriages were to be recognized “for all purposes,” it would be nonsensical to recognize a marriage partially or on some date other than when it was licensed and certified.  Busch counters that this is a retroactive application of the law – something Maine disfavors.  To the contrary, Kinney is applying the law as it exists now to her pending action and in line with the mandate passed by the voters.

Second, while the text of the 2012 law provides the answer to the reported question, there is an additional argument based on the Supreme Court’s June 2015 ruling in Obergefell v. Hodges.  When the Supreme Court announces a new constitutional rule in a civil case, as it did in holding that state marriage bans and recognition bans violate the Constitution, that rule is applied to pending cases like Kinney’s.  Stated another way, constitutional rulings in civil cases are retroactively applied to pending cases. Busch’s argument simply seeks 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.  That doubly defunct law can provide no recourse for Busch.

One issue of contention at oral argument today was whether the case is now properly before the Court, or whether these arguments must be advanced after trial.  Maine allows a “report” of a legal issue in certain instances, including where there is an important public issue.  Although Busch’s attorney sought the report, Kinney agrees it is an important question since there is no authoritative answer in Maine to this question, and it can 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.

Appellate counsel for Kinney include Tammy Ham-Thompson of Farris Law, who also represents Elisabeth in the District Court, Catherine R. Connors and Nolan Riechl of Pierce Atwood LLP, and Mary L. Bonauto of Gay & Lesbian Advocates & Defenders.  Attorney Riechl presented oral argument to the Court.

You can listen to a recording of the argument now at the Maine Supreme Judicial Court’s website. The recording will be available for two weeks.

The briefs in the case, including briefing on the effect of Obergefell, are available here.

Maine has adopted a state-of-the-art law clarifying who is a legal parent – whether based on intent to parent, marriage or holding out a child as your own, long term-caretaking and responsibility, or genetics. Both houses of the Maine legislature voted June 30 to override Governor LePage’s veto in order to pass LD 1017/SP 358, the “Maine Parentage Act,” into law. It will take effect July 1, 2016.

This far-reaching law prioritizes parental responsibility and stability for youth and children.

We know that family forms are diverse: unmarried women giving birth to over 40% of the children in the U.S. each year and same-sex couples (and individual LGBT persons) are among those using medically assisted reproduction and gestational carrier arrangements to bear and nurture the next generation.

Individual LGBT persons and same-sex couples and our children are among those who will benefit enormously from this state-of-the-art legislation.

Because the law lags behind the realities of family life, GLAD’s docket consistently features heart-rending cases about protecting parent-child relationships in families that lack marital or genetic ties, or victories opening up new pathways to parenthood, such as joint guardianship, de facto parenthood and joint adoption. Contentious “winner takes all” litigation about who is a “parent” can disrupt settled relationships that children count on.

This far-reaching law prioritizes parental responsibility and stability for youth and children.

The Family Law Advisory Commission (FLAC), a legislatively appointed group that recommends updates to Maine’s family laws, tapped GLAD attorney Mary Bonauto, along with attorneys Margaret Lavoie, Brenda Buchanan, Judith Berry, Juliet Holmes-Smith and social worker Frank Brooks to serve on a drafting subcommittee to update Maine’s laws about parentage. Co-chaired by Judge Wayne Douglas and judicial employee Diane Kenty, the drafting committee consulted widely and with two years of effort crafted a bill that was approved by FLAC and submitted to the legislature.

Because the law lags behind the realities of family life, GLAD’s docket consistently features heart-rending cases about protecting parent-child relationships in families that lack marital or genetic ties, or victories opening up new pathways to parenthood, such as joint guardianship, de facto parenthood and joint adoption.

Under the new law, all children are to be accorded the same rights under law without regard to the marital status or gender of the parents or the circumstances of the child’s birth. It explicitly acknowledges that to preserve an existing parent-child relationship, courts may declare that a child has more than two parents.Because of the focus on preserving existing relationships, a person with a genetic relationship to a child may not always displace an existing parent on the basis of genetics alone.

The law also formalizes legal parent-child relationships in single parent as well as coupled non-marital and marital families. It clarifies and confirms existing grounds for parentage – birth, adoption, voluntary acknowledgement of paternity, adjudication of genetic parentage and adjudication of de facto parentage. It recognizes a presumption of parentage for both married and unmarried couples, and as to unmarried couples, requires demonstrated parental responsibility from those who seek parentage based on the “holding out as a parent” concept used in some other states. It also recognizes parentage of children born to parents who use medically assisted reproduction and gestational carrier agreements.

This is the first statute in Maine addressing parentage by assisted reproduction. As in many other states, the intended parent or parents who use an egg, sperm or embryo donor is/are the parent(s) of the child, and in Maine this is true whether the intended parents are married or not.

The law requires a formal “consent” to establish legal parentage in this context, and an individual who provides the donated egg, sperm or embryo may be a parent when all parties agree in writing. It also sets forth strict requirements for gestational carriers and gestational carrier agreements. When those standards are followed, legal parentage vests in the intended parents and not in the gestational carrier. The law also allows “traditional” surrogacy in limited contexts.  A judge may declare legal parentage before or after the birth of the child.

Individual LGBT persons and same-sex couples and our children are among those who will benefit enormously from this state-of-the-art legislation.