While They Waited: Pre- Obergefell Lives and the Law of Nonmarriage

Yale Law Journal Forum, Vol. 129, p. 1, July 2019

17 Pages Posted: 3 Aug 2019

See all articles by Michael J. Higdon

Michael J. Higdon

University of Tennessee College of Law

Date Written: July 30, 2019

Abstract

In the wake of Obergefell, the United States now has a large class of married, same-sex couples whose relationships began at a time when marriage was unavailable to them. The law must therefore wrestle with the question whether any portion of a pre-Obergefell relationship should count toward the length of the ensuing marriage — an important question given the number of marital benefits tied directly to this calculation. As courts and legislators alike wrestle with this difficult question, they will need to examine how these couples ordered their relationships during a time when “nonmarriage” was the only option. This Essay argues that such an examination provides a unique opportunity for the law to not only move toward true marriage equality, but also reconsider its overall approach to nonmarriage in general. Specifically, this Essay identifies three lessons that can be gleaned from same-sex couples whose relationships spanned both sides of the marriage equality movement. It argues that each of these lessons can help us craft greater protections for nonmarital relationships.

Keywords: obergefell, same-sex marriage, nonmarriage, cohabitation

Suggested Citation

Higdon, Michael J., While They Waited: Pre- Obergefell Lives and the Law of Nonmarriage (July 30, 2019). Yale Law Journal Forum, Vol. 129, p. 1, July 2019. Available at SSRN: https://ssrn.com/abstract=3429446

Michael J. Higdon (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996
United States

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