Obergefell v. Hodges in 2015 guaranteed equal rights for same-sex couples to get married, but can treating same-sex couples exactly equal in the context of common law marriage actually have a discriminatory effect? A party in a Colorado case argues yes, and the Colorado Supreme Court has agreed to decide how to analyze whether a same-sex couple has a common law marriage.
The Supreme Court on Sept. 30 granted a petition to hear In re the Marriage of Edi Hogsett and Marcia Neale. In their case, the Arapahoe County District Court used an established test to decide the couple did not have a common law marriage. The Court of Appeals affirmed the decision and noted the district court’s conclusion assumes the U.S. Supreme Court’s Obergefell decision can apply retroactively to find a same-sex common law marriage. Now, Hogsett has appealed the decision finding she did not have a common law marriage with Neale.
Partners’ intent is key when courts look at their relationship to see if they have a common law marriage. The existing test for establishing a common law marriage, known as the Lucero test, looks at mutual agreement to be husband and wife and the couple’s mutual open assertion of their marital relationship. The relationship has to meet both elements for a common law marriage to exist.
But Griffiths Law senior counsel Ann Gushurst, who represents Edi Hogsett, said the Lucero test discriminates against same-sex couples. She said especially in a pre-Obergefell time, a same-sex couple openly declaring they consider themselves married had a political element. Gushurst said courts should instead look at actions that are particular to committed couples but don’t have the political implications of a same-sex couple publicly asserting their relationship, such as owning property together and having children.
“Pick the things that distinguish [a marital relationship] that aren’t heteronormative,” she said.