Careful readers of this blog and attendees of my annual review seminars will recall my criticism of the legislative inaction that led to the outrageous outcome in Pippin v. Pippin, a 2-1 decision where Tennessee’s courts deprived a child from receiving the love and support of a de facto parent only because Tennessee denied that parent their constitutional right to marry when the child was born.

I’ve long advocated for a legislative remedy, but our pitiful legislators show no interest in promoting equal rights or the best interests of Tennessee’s children.

So what can Tennessee courts do?

This article by University of Tennessee Law Professor Michael Higdon in the Fordham Law Review proposes a solution to the disparate treatment many same-sex couples face from the pre-Obergefell denial of their constitutional right to marry.

Here is the abstract of Prof. Higdon’s article titled “(In)Formal Marriage Equality”:

In 2015, same-sex couples throughout the United States obtained formal marriage equality.

But is the prospective ability to obtain marriage licenses sufficient to achieve Obergefell’s promise of equality? What about individuals whose same-sex relationship did not survive — either through death or dissolution — to see marriage equality become the law of the land? Or those who did ultimately wed but now have a marriage that appears to be artificially short when considering just how long the couple has actually been together in a marriage-like relationship?

With marriage benefits conditioned not only on the fact of marriage but also the length of marriage, individuals in both categories continue to suffer harm as a result of the unconstitutional laws that prevented them from marrying at an earlier point in time. Although some states have attempted to remedy this problem by backdating same-sex marriages, the reality is that the availability of such relief varies by state and, even so, no state has yet to formulate a test to adequately protect the interests of those individuals.

This Article is the first to propose a specific solution to these problems — a solution that requires states to formulate and adopt a new equitable remedy, referred to here as Equitable Marriage.

Drawing upon existing equitable doctrines that states have already developed to extend formal family law benefits to those in informal family-like relationships, Equitable Marriage would treat same-sex relationships that pre-dated formal marriage equality as the equivalent of a legal marriage with all the attendant rights and obligations.

In the case of same-sex couples who ultimately wed, Equitable Marriage would require that this time count as part of the formal marriage so as to extend all marital benefits conditioned on length of marriage. To succeed, claimants would need to establish that the couple would have wed during that time period but for the unconstitutional laws depriving them of that fundamental right.

Understanding the complexity of such an approach, this Article offers guidance on how courts should implement and apply Equitable Marriage so as to achieve full marriage equality while, at the same time, resisting impermissible gender stereotypes and hetero-sexist notions of how marriage “should” look.

You can read the entire article here.

Source: Michael Higdon, (In)Formal Marriage Equality, 89 Fordham Law Review 1351 (2021).

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