129 Yale L.J. F. 1 (2019)

handle is hein.journals/yljfor129 and id is 1 raw text is: 

JULY 30, 2019

While They Waited: Pre-Obergefell Lives and the Law

of  Nonmarriage

Michaelj.   Higdon

AB S TRAC  T. 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 pro-
vides 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 protec-
tions for nonmarital relationships.


    To this day, couples who  choose to cohabitate without  marrying  do so at their
legal peril.' For this reason, the law of cohabitation, and  of nonmarriage   more
generally, has been  subject to quite  a bit of criticism.2 This Essay revisits that
criticism in light of the marriage  equality movement,   which  of course  scored a
major  victory in Obergefell v. Hodges almost five years ago.

1.  Lynn D. Wardle, Marriage and Domestic Violence in the United States: New Perspectives About
    Legal Strategies to Combat Domestic Violence, 15 ST. THOMAs L. REv. 791, 802 (2003) (describing
    cohabitation without marriage as the riskiest form of intimate living arrangement).
2.  See infra Part II.
3.  135 S. Ct. 2584 (2015).


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