Maryland legalized same sex marriage by popular vote in 2012. The Supreme Court has this year acknowledged the validity of same sex marriage throughout the country. However, some of the doctrines surrounding divorce were traditionally applied to long standing heterosexual marriages and it is unclear how those doctrines will be applied to same sex marriages.
One of those areas to be clarified is adultery. Adultery is a traditional ground through which a party can obtain a divorce. Adultery has historically be given a limited and narrow definition, involving traditional physical intercourse between a married person and someone of the opposite gender other than the spouse. If the historical definition of adultery as intercourse between a man and woman is not expanded, it would technically not be applicable to infidelity in a same sex relationship. Our courts will need to address and clarify whether and to what extent adultery is available as ground for divorce in a same sex relationship.
However, the Attorney General of the State of Maryland has very recently offered his opinion on this topic. He has expressed that extramarital sexual conduct should be treated in precisely the same manner for all married couples, regardless of sexual orientation. The opinion acknowledges that the primary purpose of adultery is to recognize that sexual infidelity is a breach of the marriage vow. Because it causes damage to the marriage, the injured party should be allowed to dissolve the marriage on that ground. That rationale, according to the opinion, applies whether the unfaithful spouse has relations with a man or a woman. For that reason, the Attorney General has expressed the opinion that Maryland courts should recognize same sex infidelity as adultery in Maryland.
The Attorney General expressed that Maryland’s highest court, the Court of Appeals, has recognized that adultery laws were designed to punish a party for breaking the marriage vow, and that purpose is consistent whether the adultery occurs with a man or a woman. Given the fact that same sex couples now have the right to marry, the opinion expressed that it makes little sense to decide that same sex infidelity does not constitute a breach of the marriage vows.
Maryland’s highest court has not ruled on this topic yet. However, it is anticipated that the court may well apply the same concept of infidelity to a same sex marriage as it has traditionally applied to a heterosexual marriage.