Peter Nicolas

Document Type

Article

Abstract

In this Essay, I demonstrate that, with the extension of the right to marry to same-sex couples in Iowa, the District of Columbia, and New Hampshire (all states that recognize common law marriage), there now exists the possibility that—for the first time in the United States—a same-sex couple may enter into a legally recognized common law marriage. In the Essay, I first show, as a doctrinal matter, that same-sex couples have the right to enter into common law marriages in these three jurisdictions, and I explain and compare the criteria for entering into common law marriages in each of them. I then address the question whether it makes sense—as a policy matter—to expand the concept of common law marriage to include same-sex couples, including an analysis of whether being a closeted same-sex couple is consistent with being in a common law marriage. I conclude that the lack of consistent access to religious and public officials willing to perform same-sex marriages coupled with the libertarian spirit underlying both same-sex marriage and common law marriage militate in favor of recognizing common law same-sex marriages. I also demonstrate the advantages that common law marriage—with its lack of a paper trail—provides to same-sex couples who need to keep their relationships closeted, such as those in the military or foreign nationals with temporary visas. Finally, on the assumption that the U.S. Supreme Court may eventually hold that same-sex couples have a constitutional right to marry, I examine the criteria for entering into common law marriages in the remaining nine states that recognize common law marriage. With respect to these remaining states—nearly all of which have bans on same-sex marriage enshrined into their state constitutions and that thus will allow same-sex marriage only if ordered to do so by a federal court—I conclude that the policy arguments in favor of recognizing same-sex common law marriage are even more compelling than they are in jurisdictions that currently recognize same-sex common law marriage.

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