(In)Formal Marriage Equality

59 Pages Posted: 17 Sep 2020 Last revised: 28 Jul 2021

See all articles by Michael J. Higdon

Michael J. Higdon

University of Tennessee College of Law

Date Written: September 1, 2020


In 2015, same-sex couples throughout the United States obtained formal marriage equality. But is the prospective ability to obtain marriage licenses sufficient to achieve Obergefell’s promise of equality? What about individuals whose same-sex relationship did not survive — either through death or dissolution — to see marriage equality become the law of the land? Or those who did ultimately wed but now have a marriage that appears to be artificially short when considering just how long the couple has actually been together in a marriage-like relationship? With marriage benefits conditioned not only on the fact of marriage but also the length of marriage, individuals in both categories continue to suffer harm as a result of the unconstitutional laws that prevented them from marrying at an earlier point in time. Although some states have attempted to remedy this problem by backdating same-sex marriages, the reality is that the availability of such relief varies by state and, even so, no state has yet to formulate a test to adequately protect the interests of those individuals. This Article is the first to propose a specific solution to these problems — a solution that requires states to formulate and adopt a new equitable remedy, referred to here as Equitable Marriage. Drawing upon existing equitable doctrines that states have already developed to extend formal family law benefits to those in informal family-like relationships, Equitable Marriage would treat same-sex relationships that pre-dated formal marriage equality as the equivalent of a legal marriage with all the attendant rights and obligations. In the case of same-sex couples who ultimately wed, Equitable Marriage would require that this time count as part of the formal marriage so as to extend all marital benefits conditioned on length of marriage. To succeed, claimants would need to establish that the couple would have wed during that time period but for the unconstitutional laws depriving them of that fundamental right. Understanding the complexity of such an approach, this Article offers guidance on how courts should implement and apply Equitable Marriage so as to achieve full marriage equality while, at the same time, resisting impermissible gender stereotypes and hetero-sexist notions of how marriage “should” look.

Keywords: Obergefell, Same-Sex Marriage, Marriage Equality

Suggested Citation

Higdon, Michael J., (In)Formal Marriage Equality (September 1, 2020). 89 Fordham Law Review 1351 (2021), University of Tennessee Legal Studies Research Paper No. 397, Available at SSRN: https://ssrn.com/abstract=3655687 or http://dx.doi.org/10.2139/ssrn.3655687

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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