48 Pages Posted: 7 Mar 2016 Last revised: 18 Apr 2017
Date Written: March 6, 2016
Many same-sex couples have been in committed relationships for years, even decades. Yet it was not until 2004 that any same-sex couples in the United States had the right to marry and not until the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges that the right became available to same-sex couples nationwide. As a result of this longstanding denial of the right to marry, the length of most same-sex relationships appears to be artificially short when measured solely by reference to the couple’s civil marriage date.
This circumstance has important legal consequences for many same-sex couples, as a number of rights associated with marriage are tied not merely to the fact of marriage, but also to its length, measured either in absolute terms or relative to some given legally significant event. Examples include the right to social security benefits, immigration rights, the marital communications privilege, and the rights to division of property and awards of alimony on divorce. Moreover, a same-sex couple whose relationship ended - either due to a breakup or the death of one partner - prior to the legalization of same-sex marriage is potentially denied all rights associated with marriage.
This Article is the first to explore the phenomenon of backdating marriages as a means of ensuring that same-sex couples are made whole for the harms caused by their longstanding inability to legally marry. The Article demonstrates that the Obergefell decision applies not merely prospectively but retroactively, and that same-sex couples have a constitutional right to have their marriages backdated to the date they would have married but for the existence of a legal barrier to doing so. Because such backdating can create significant short-term administrative challenges, the Article provides some alternatives to backdating that are easier for government agencies to administer but that still provide same-sex couples with constitutionally mandated “make whole” relief for the constitutional harms imposed by the preexisting discriminatory scheme.
Keywords: marriage, gay, lesbian, lgbt, glbt, same-sex, backdating, social security, Obergefell, Hodges, divorce, equal protection, due process, fundamental rights, remedies, marry, 14th Amendment, Fourteenth Amendment, retroactive, retroactivity, common law, common law marriage, common law same-sex marriage
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