Loophole to same-sex marriage, or not?

[BiddyPocket]

For those of you who might not know it, within the United States there is something called "common-law marriage." Common Law Marriage basically states that a couple must meet certain requirements in order to be considered a married couply - even if they haven't obtained a marriage license. The marriage, in most states, is recognized as any other legal marriage, and even though the couple never had a ceremony or anything of the sort, they must still become legally divorced if they split up. The requirements in most states are that the couple must cohabitate for at least seven years and consider themselves married. Other states have other specifications and such, such as the couple must fill out taxes together, must have the same last name, must proclaim themselves as a married couple to the public, etc. There is not common-law marriage in every state.

But, there are only a handful of states that specifically state, to my knowledge, that the common law marriage must be between a man and a woman. Could this be a loophole to same-sex marriages? If no marriage license is needed, then what's stopping a gay couple from proclaiming themselves as married?

My opinion: I think someone should go for it! Who knows, we could totally undermine the entire concept of marriage in this way...I mean, here Bush and everyone goes claiming that the "sanctity" of marriage is being ruined by same-sex couples, meanwhile a heterosexual couple can be legally viewed as a married couple even without obtaining a license. All they have to do is say they're married...what's up with that?

Sources: http://www.unmarried.org/common.html, http://en.wikipedia.org/wiki/Common-law_marriage, http://www.expertlaw.com/library/family_law/common_law.html

[novaseeker]

It would only work in those states where marriage is not defined, by statute or constitution, as being between a man and a woman -- that's only five states -- see this map (http://hrc.org/Template.cfm?Section=Center&CONTENTID=28225&TEMPLATE=/ContentManagement/ContentDisplay.cfm).

The idea behind common law marriage is basically that it is a different *means* of the state recognizing the relationship apart from the formal license process, but if the state itself already defines the relationship itself as being between a man and a woman only, then regardless of what "means" are used to form the relationship, a same-sex situation would not be recognized. Common law or not, it's still a marriage, and the statute or constitutional amendment would apply to common law marriages as well.

Keep in mind also that the laws and/or constitutional amendments, in many cases the provisions are broad and disallow anything "marriage-like", so the idea of construing the provisions narrowly in these states would likewise be extremely difficult legally.

[BiddyPocket]

hm, you're right. But even in states like New York, where, to my knowledge, gay marriage/civil union isn't legal, could it work?

It's just so sad, really...Mass. is now trying to revoke civil union because of hoards of religious groups that have gathered and signed petitions against any kind of same-sex union.

But still, the whole concept of it...that all a couple has to do is SAY they're married (and some other stuff) and suddenly their union has more legal standing that a homosexual couple's does. Uhg. I wish the US was a democracy, and not a theocracy.

[novaseeker]

It's an interesting idea.

It might be worth a try if the NY legislature and Governor Spitzer do not deliver as he indicated he would relating to these issues. The main problem with it is that it is very easy for a legislature to head the process off at the pass, if you will, if they learn that people are trying to form common law same sex marriages, by simply saying that there isn't any marriage other than between a man and a woman.

The other problem, of course, is that most other states would not recognize such a same-sex common law marriage due to state laws that say they can't, nor would the federal government due to the Defense of Marriage Act (the federal government also doesn't recognize MA's gay marriages for purposes of federal law, for example).

But it's an interesting idea.

[nmwolfboy]

My state (New Mexico) is one of the states that doesn't define marriage as being only between a man & woman. So far we've managed to defeat the attempts at a DOMA here.

You may have heard that a few years ago a county clerk in New Mexico took it upon herself to issue marriage licenses to glbt couples, who then promptly married, legally, in our state.

Turns out that the county clerk in question was not a friend to the glbt community. She had decided to issue the licenses to force the issue of gay marriage in our state and build statewide momentum for the passage of a DOMA.

Luckily our Attorney General, who is a friend to the local glbt communities quickly shut down the clerk and put a stop to the issuance of any more licenses. The AG to this day has managed to avoid nullifying the marriages of the gay folk who were able to obtain a license. So they're still legally married in the eyes of our state. But no one publicizes that because we don't want to make our fight against the ever-present threat of a DOMA any harder.

It's the hope of many here to get civil partnerships passed. There are many who support it, including many representatives of churches in the state, though every year we've had to (successfully!) fight the introduction of a DOMA. Our state legislature started this year's 60 day session yesterday. Wish us luck!

[BruceChris]

Joe, when it comes to getting around these laws, almost everything has been tried. At the Univ. of Minn., back in the 60's or 70's, I forget, Jack Baker and Michael McConnel tried to get married. Jack was a law student, and he knew the legal system, but with every maneuver, and every court he tried, he ran into a brick wall.

Jack was elected student body president, though. I guess the students always liked a rebel. Or maybe they just found him irresistable, on a campaign poster, posing in those pink high heels. :lol: :lol:

Jack and Mike are still together, which is better than many married couples have done. And they're still battling the legal system.

Down in Texas, there are 17 counties that are so conservative that they refuse to legally recognize transsexualism. So a Texas couple, a woman and a trans woman, were legally married, and now live in Minnesota. I assume that their marriage is legal, here. I'm no lawyer, though. And I definitely would not go to THAT much hassle, personally. (I've just never looked all that good in a dress) :disagree: :eek: :disagree:

I'm pretty sure that if there were an easy loophole, everybody on this website would know it.

Peace and Love, Bruce Chris

[Daniel]

You may have heard that a few years ago a county clerk in New Mexico took it upon herself to issue marriage licenses to glbt couples, who then promptly married, legally, in our state.


I'd forgotten about this. They're still married? That's fascinating. Though I hadn't heard about the person issuing the licenses as being a foe- that's a neat twist!

There is geat hope here in NY that Spitzer is going to make good on his promise to introduce legistlation. He's said as much a short while ago.

http://www.nysun.com/article/46141/

Spitzer: Gay Rites Ahead
By JACOB GERSHMAN
Staff Reporter of the Sun
January 5, 2007

By Day 365, Governor Spitzer will propose legislation legalizing gay marriage in New York, a top aide to the governor said yesterday.

The Spitzer administration moved to reassure gay-rights advocates that it wasn't backing down from a campaign promise to support a same-sex marriage bill. The governor did not address the issue specifically in his 61-minute State of the State address on Wednesday.

"The governor made a commitment to advancing it this year, and he will do so," Mr. Spitzer's communications director, Darren Dopp, told The New York Sun.

And we expect gay marriage- not civil unions- to be on the menu. ;)

[BiddyPocket]

Well, I guess it's better than nothing...

but that's a really funny concept BruceChris...having one of the men go through a sexchange and then get married...heh.

I guess all we can do now is wait, and hope.

[BruceChris]

A M to F trans person, upon completing all of the legal and medical requirements, can then be a woman legally, and marry any elegible male. An F to M trans person can likewise become legally a male, and marry a woman.

Any male and female married couple, if one of them then crosses over, and you now have two women, or two men, the marriage is still legal, as far as I know. I know of one such couple personally. What happened down in Texas was that there was a couple, a woman, and a man who was transitioning, who was becoming a woman. And they got married after they were both women.

So what happened was that this (born) woman, and this now trans woman, post-op,who is legally a woman in most of the country, managed to get legally married. They did it in one of the 17 Texas counties that is so conservative, that they look at your birth certificate, and they say, "once a man, always a man, so you, Mary are still legally a man in this county". - (Or whatever her name was)

So this is the only legal loophole that will get you to same sex marriage. A lot of us still don't look all that good in a dress, not to mention ALL of that cutting, and bleeding. :eek:

I hope that that clears things up, a little. Peace and Love, Bruce Chris