The Colorado Supreme Court on Monday made history by becoming the first in the nation to recognize common-law same-sex marriages with their update to the 30-year-old legal standard. Read on for the full story.
Colorado Becomes First State to Recognize Common-Law Same-Sex Marriages from Before 2015
On Monday, the Colorado Supreme Court voted to change the way the state courts define common-law marriage and make it more inclusive of same-sex couples. Over three opinions, the justices completely revamped the old law and created a whole new legal standard.
A common-law marriage is defined as, “a marriage without a civil or ecclesiastical ceremony, generally resulting from an agreement to marry followed by the couple’s living together.” Not all states recognize them, but Colorado is among those that do.
Under the state’s old 1987 standard, judges were instructed to consider certain “markers” to determine whether a couple fit the criteria. Did the couple own property in both of their names? File joint tax returns? Did the woman take the man’s last name? As we can see, not only did these criteria exclude many same-sex couples, they were based on very archaic ideas of marriage in general.
Other factors for determining common-law marriage were downright LGBTQ-exclusionary. For example, under the old ruling, judges were to look at whether couples presented themselves as a married couple publicly. However, as discrimination against LGBTQ couples isn’t only running rampant throughout the nation, but even backed by US Supreme Court justices, many same-sex couples opted to keep their relationships private. Remember, Colorado is the very state where a Christian baker won the right to refuse to bake a cake for a gay couple.
In his June argument, Justice Richard L. Gabriel pointed out,
“It would also seem to me at least potentially unfair to say, ‘hey, you weren’t out to the world as a married couple,’ even though they were out to their closest friends, because there certainly has been historic discrimination against the LGBTQ community,”
The Supreme Court justices pointed out that even some licensed marriages wouldn’t meet the criteria for the previous common-law marriage standards. Consider this- t’s not uncommon for women to keep their own last name, for couples to file taxes separately, and even own property in just one of their names.
With the new ruling, the court simplified the criteria. Now, courts look at whether both halves of the couple mutually entered into and lived in a marriage-like relationship- whether privately or publicly.
Of the ruling, Michael Crews, of One Colorado (and LGBTQ activist group) said,
“We are pleased to see that the Colorado Supreme Court today validated [that] common law same-sex marriages that started before the Obergefell decision are still valid marriages. This ruling signifies that LGBTQ Coloradans are equal under the eyes of the current law, regardless of the discriminatory practices of the time.”
Justice Marquez concluded the trio of opinions by writing,
“We recognize that common-law marriage determinations present difficult, fact-intensive inquiries. But we have full faith that our judges, who interact daily with Colorado families in all their diversity, can fairly make these sensitive assessments.”