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Kinney v. Busch



Stating  no “sufficient … doubt” about the validity of a same-sex couple’s marriage from the date of its celebration, the Maine Supreme Judicial Court declined to answer the reported question about whether Maine’s former anti-marriage law delayed the validity of a couple’s marriage licensed in Massachusetts. The Law Court relied on the U.S. Supreme Court’s decision inObergefell 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.”  Read more


Together with the law firm of Pierce Atwood LLP and Farris Law, GLAD represented Elisabeth Kinney, the plaintiff/appellee in a divorce case between two women, on a legal question before the Maine Law Court, which heard oral argument on September 18, 2015.

The question, reported to the Law Court for decision from the Maine District Court 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?

Kinney 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 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.  An audio file will be posted at the Maine Supreme Judicial Court’s website shortly, and will then be available for two weeks, at