Common Law Same-Sex Marriage

Peter Nicolas (Jeffrey & Susan Brotman Professor of Law, University of Washington School of Law) recently published his article entitled Common Law Same-Sex Marriage, 43 Conn. L. Rev. (forthcoming 2011). The abstract as provided on SSRN is below:

In this manuscript, 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 manuscript, I first show, as a doctrinal matter, that same-sex couples have the right to enter into common law marriages in each of these 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.