Common Law Same-Sex Marriage

Abstract:     
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.

Number of Pages in PDF File: 18

Keywords: same-sex marriage, gay marriage, homosexual marriage, common law marriage, same-sex common law marriage, gay, homosexual, same-sex, GLBT, LGBT

Accepted Paper Series