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Legal Musings, or Maybe Illegal Ones
Mar. 5th, 2004 06:21 pmWhile listening to the radio this evening, I caught a segment about the mayor of New Paltz, New York, who had been solemnizing weddings for same-sex couples. The mayor is now facing misdemeanor criminal charges, but not for marrying same-sex couples per se. Rather, the county clerk had not issued marriage licenses to these couples, so the mayor is facing charges of solemnizing unlicensed marriages.
This may seem to you a fine distinction, but it's also a significant one. Presumably if the county clerk1 had been persuaded to go along, no one would be charged with anything, although the validity of the marriages would remain an issue. As an aside, this also means that those who demonstrate outside Mayor Bloomberg's office are barking up the wrong tree; get the New York County clerk to issue licenses, and Bloomberg's no longer part of the equation.
But it made me think about the marriages that don't need a license in the first place: common-law marriages. Contrary to the widespread belief, common-law marriage has nothing to do with living together for seven years. You can know someone for a day and have a common-law marriage as of that day. Conversely, you can live with your partner for thirty years and still never be married. In a jurisdiction that allows common-law marriage, all a couple need do is agree with each other that they are married and hold themselves out to the world as such.
Most U.S. states allow common-law marriage, although some (including New York) do not. Still if a common-law marriage is valid where contracted, all states will recognize it.
If you're wondering what this has to do with gay marriage, well, so am I. That's the point, sort of. It's not obvious to me either way.
My first thought is that it doesn't really have any bearing on the validity or no of any gay marriages. On the other hand, I think it affects the position from which one approaches the legal system. It certainly removes the county clerk as the gatekeeper to being married, but the interesting question is, what next?
(Again as an aside, is there something lost to "the movement" by not having a public, governmentally-sanctioned ceremony?)
In a jurisdiction that has in some way (say, by amendment of the state constitution) got its supreme court to state authoritatively that marriage is between a man and a woman, it probably doesn't make any difference at all. No government official need take any notice of the marriage, the state courts will uphold their decision, and I don't expect the federal courts to take an equal-protection challenge seriously in any case.
In the other states, though, I wonder what happens if same-sex couples start contracting common-law marriages, and then expect them to be recognized. At some point, a couple would have to sue to get some government agency to recognize the marriage, but does it matter if they start by asserting that they're married?
Maybe. Maybe not. It's something I want to think about, though.
I will now turn it over for questions.
1Or whoever is responsible for issuing marriage licenses around here—Lauren and I got married in Pennsylvania, so I don't know how it works here.
This may seem to you a fine distinction, but it's also a significant one. Presumably if the county clerk1 had been persuaded to go along, no one would be charged with anything, although the validity of the marriages would remain an issue. As an aside, this also means that those who demonstrate outside Mayor Bloomberg's office are barking up the wrong tree; get the New York County clerk to issue licenses, and Bloomberg's no longer part of the equation.
But it made me think about the marriages that don't need a license in the first place: common-law marriages. Contrary to the widespread belief, common-law marriage has nothing to do with living together for seven years. You can know someone for a day and have a common-law marriage as of that day. Conversely, you can live with your partner for thirty years and still never be married. In a jurisdiction that allows common-law marriage, all a couple need do is agree with each other that they are married and hold themselves out to the world as such.
Most U.S. states allow common-law marriage, although some (including New York) do not. Still if a common-law marriage is valid where contracted, all states will recognize it.
If you're wondering what this has to do with gay marriage, well, so am I. That's the point, sort of. It's not obvious to me either way.
My first thought is that it doesn't really have any bearing on the validity or no of any gay marriages. On the other hand, I think it affects the position from which one approaches the legal system. It certainly removes the county clerk as the gatekeeper to being married, but the interesting question is, what next?
(Again as an aside, is there something lost to "the movement" by not having a public, governmentally-sanctioned ceremony?)
In a jurisdiction that has in some way (say, by amendment of the state constitution) got its supreme court to state authoritatively that marriage is between a man and a woman, it probably doesn't make any difference at all. No government official need take any notice of the marriage, the state courts will uphold their decision, and I don't expect the federal courts to take an equal-protection challenge seriously in any case.
In the other states, though, I wonder what happens if same-sex couples start contracting common-law marriages, and then expect them to be recognized. At some point, a couple would have to sue to get some government agency to recognize the marriage, but does it matter if they start by asserting that they're married?
Maybe. Maybe not. It's something I want to think about, though.
I will now turn it over for questions.
1Or whoever is responsible for issuing marriage licenses around here—Lauren and I got married in Pennsylvania, so I don't know how it works here.
