A long way


A decision in a recent reported question before the Maine SJC shows how far and fast the law has traveled on marriage equality.  Kinney v. Busch.

The facts:  two women from Maine, Kinney and Busch, were married in Massachusetts in 2008.  At the time, Maine had a law banning the recognition of marriages of same-sex couples.  That ban was removed in a law enacted effective December 2012.  (19-A MRS s. 650-B)  The couple filed for divorce in Maine in 2013.  One party, Busch, argued that in dividing the marital property, the marriage should be treated as having occurred in December 2012, because there was no express provision for retroactive application of the 2012 law.

We, along with Tammy Ham-Thompson and Mary Bonauto of Gay & Lesbian Advocates & Defenders (GLAD), represented Kinney, taking the opposite view:  the couple was married in 2008, and the court must recognize that.  The district court (Stanfill, J.) agreed, then reported the following question to the SJC under M.R.App. 14

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

An amici brief from former Governor John Baldacci and a host of practitioners in family law, estate planning and other areas was filed in support of Kinney’s position, explaining, among other things, the havoc that would occur across the board under Busch’s theory and unless marriages, legal where celebrated, are not treated as existing from the dates of their celebration.

After briefing and before oral argument, the Supreme Court decided Obergefell v. Hodges, 576 U.S. __ , holding it unconstitutional not to recognize marriages of same-sex couples.

The Law Court sought further briefing, and Busch continued there and in subsequent oral argument to take the position that the marriage had to be treated as having not occurred until December 2012.  Obergefell, this argument asserted, should not be applied “retroactively.”  (Kudos to Pierce Atwood’s Nolan Reichl for arguing Kinney’s contrary position.) 

It did not take long after oral argument for the SJC to issue its decision.  The Law Court discharged the matter, noting that the answer was so “obvious” after Obergefell that the question was not worthy of a report.  Here’s a link to GLAD’s press release on the Kinney (Maine Law Court Confirms State Anti-Marriage Law of No Effect in Light of SCOTUS Marriage Ruling).

A 2008 marriage in Massachusetts is a 2008 marriage, whether the couple is of the same sex or not.  That’s equal protection.  You treat marriages of same-sex couples the same as heterosexual couples.  Simple.  

It didn’t seem that simple just a short time ago.  The Massachusetts SJC became the first jurisdiction to recognize the constitutional right of same-sex couples to marry only in 2003.  (Goodridge v. Department of Public Health, 798 N.E.2d 941)  Now, just 12 years later, this right is so obvious that the “retroactivity” question doesn’t even meet the criteria for a report under Rule 24.

Spearheading this effort all the way has been GLAD and Mary Bonauto (who argued Goodridge and then Obergefell in the Supreme Court).  Pierce Atwood, as you know if you are a regular reader of this blog, has partnered with GLAD for many years.  (video)

Coming up, Mary is going to be giving the Coffin Lecture Oct. 29 at the U Maine Law School, http://mainelaw.maine.edu/events/coffin-lecture/ as well as being honored December 2 as a “Legend” by the Maine Trial Lawyers Association. https://www.mtla.org/index.cfm?pg=events&evAction=showDetail&eid=26770.

Be there or be square!