With the Supreme Court now requiring a same-sex marriage performed in one State be recognized in all states, is there hope for Colorado’s common law married couples facing similar problems?
Like same-sex marriage, common law marriage has been illegally banned in some states as well. Indeed, only 9 States (Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah) recognize common law marriage.
For those unfamiliar with the institution, common law marriage is a marriage without religious or secular endorsement. It is a business contract, and they may occur (like all business contracts) with or without written agreement. Contractual obligations of the marriage are often inferred, and are sometimes non-exclusive (as has been the case with even some of Colorado’s leading citizens who took upon themselves multiple common law, er, contracts in evasion of polygamy laws).
The reason common law marriages are banned in several states is because they are seen typically as truly wild, uninhibited, natural acts of love which troubles neither the conscience of the husband(s) and/or wife(s) or that of any potential God holding a position of authority over them. They are considered a threat to public morality.
Incidentally, most common law marriages are made because of an atheistic opposition to religious marriage, or a political opposition to government-licensed marriage – justifying the moral opposition of governments and religions.
But since they originate out of a basic expression of a constitutional right to freedom of association, the Courts have upheld this human right. When challenged, courts typically uphold the rights of people to undertake common law marriage and, in the past, have forced other states to recognize common law marriage undertaken in other states.
The legal basis for this is founded under the full faith and credit clause of the U.S. Constitution, principles of comity and their rules for choice of law and conflict of laws.
That the Supreme Court has upheld the principle of comity again with application to same-sex marriage gives hope to all those common-law married persons who face similar illegal challenges to their marriages from states opposed to common law marriage.