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 奧貝格費爾 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 奧貝格費爾」

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 奧貝格費爾, 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 奧貝格費爾訴霍奇斯案.  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 奧貝格費爾, are available here.

緬因州通過了一項先進的法律，明確了誰是合法父母——無論是基於父母意願、婚姻、將孩子視為自己的孩子、長期照顧和責任，還是遺傳因素。緬因州議會兩院於6月30日投票推翻了州長勒佩奇的否決，通過了LD 1017/SP 358法案，即《緬因州親子法》。該法案將於2016年7月1日生效。

這項影響深遠的法律優先考慮父母的責任以及青少年和兒童的穩定性。

我們知道家庭形式多種多樣：美國每年生育超過 40% 兒童的未婚女性和同性伴侶（以及 LGBT 人士）也利用醫學輔助生殖和妊娠載體安排來生育和養育下一代。

LGBT 個人、同性伴侶以及我們的孩子都將從這項最先進的立法中受益匪淺。

由於法律滯後於家庭生活的現實，同性戀者反歧視聯盟 (GLAD) 的案件記錄中經常出現一些令人心碎的案例，這些案例涉及保護缺乏婚姻或遺傳紐帶的家庭中的親子關係，或開闢了成為父母的新途徑，例如共同監護、事實上的父母身份和共同收養。關於誰是「父母」的、充滿爭議的「贏家通吃」式訴訟，可能會破壞孩子們所依賴的穩定關係。

這項影響深遠的法律優先考慮父母的責任以及青少年和兒童的穩定性。

家庭法律諮詢委員會 (FLAC) 是一個由立法機構任命的機構，負責對緬因州的家庭法律提出更新建議。該委員會任命了 GLAD 律師瑪麗·博諾托 (Mary Bonauto)，以及律師瑪格麗特·拉沃伊 (Margaret Lavoie)、布倫達·布坎南 (Brenda Buchanan)、朱迪思·貝裡 (Judith Berry)、朱麗葉·霍姆斯-史密斯 (Juliet Holmes-Smith) 和社會工作者弗蘭克·布魯克斯 (Frank Brooks) 組成由緬因州的親子研究小組起草。起草委員會由法官韋恩·道格拉斯 (Wayne Douglas) 和司法工作人員黛安·肯蒂 (Diane Kenty) 共同主持，廣泛徵求意見，經過兩年的努力，起草了一份法案，該法案已獲得 FLAC 批准並提交給立法機關。

由於法律落後於家庭生活的現實，同性戀者反歧視聯盟 (GLAD) 的案件記錄中經常出現一些令人心碎的案例，這些案例涉及保護缺乏婚姻或遺傳聯繫的家庭中的親子關係，或開闢成為父母的新途徑的勝利，例如共同監護、事實上的父母身份和共同收養。

根據新法，所有兒童應享有同等的法律權利，不論父母的婚姻狀況、性別或兒童的出生狀況。新法明確規定，為維護現有的親子關係，法院可以宣告兒童擁有多於兩位的父母。由於新法著重於維護現有的親子關係，與兒童有遺傳關係的人並不總是能夠僅基於遺傳學就取代現有的父母。

該法也正式確立了單親家庭、非婚家庭和已婚家庭中合法的親子關係。它澄清並確認了現有的親子關係認定依據——出生、收養、自願承認親子關係、遺傳親子關係認定和事實親子關係認定。它承認已婚和未婚夫婦的親子關係推定，對於未婚夫婦，要求那些根據其他一些州使用的「出面承認父母」概念尋求親子關係的人證明其承擔父母責任。它也承認使用醫學輔助生殖和妊娠載體協議的父母所生子女的親子關係。

這是緬因州首部關於輔助生殖親子關係的法規。與許多其他州一樣，使用卵子、精子或胚胎捐贈者的預期父母即為孩子的父母，在緬因州，無論預期父母是否已婚，均視為孩子的父母。

法律要求在此情況下確立合法的親子關係需要正式的“同意”，並且提供捐贈卵子、精子或胚胎的個人在各方書面同意的情況下可以成為父母。法律也對代孕人和代孕協議提出了嚴格的要求。在遵守這些標準的情況下，合法的親子關係歸於預期父母，而不是代孕者。法律也允許在有限的情況下進行「傳統」代孕。法官可以在孩子出生之前或之後宣布合法的親子關係。

LGBT 個人、同性伴侶以及我們的孩子都將從這項最先進的立法中受益匪淺。