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Dec 31, 2004 8:56 am

Marriage? Montana Money

The Montana State Supreme Court has just ruled that, irrespective of issues of marriage, denying spousal benefits to the domestic partners of homosexual employees is a denial of their economic rights. Montana is, apparently, a common-law-marriage state, but allowing only heterosexuals to claim the benefits of marriage by simple affidavit was seen as a violation of equal protection.

It's kind of surprising, really, that common-law marriage hadn't entered the debate before now.

Update: Ralph's comment reminded me that I meant to post a link to this discussion of contemporary marriage which has nice demographic discussions. One of the interesting things it points out which I hadn't really considered was the way in which the liberalization of adoption and foster parenting rules has broadened the definition of"family" in ways that reflect on our definition of"marriage." In related news, as the NYTimes article cited above notes, an Arkansas judge struck down that state's ban on gay foster parents, but strictly on procedural grounds.

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Richard Henry Morgan - 12/31/2004

The New York State courts, more than a decade back, danced around the question of marriage, etc., by expanding (by judicial fiat) the definition of family. The case involved a law that allowed family members to maintain control of rent-control property -- you remember rent-control, that "temporary" wartime provision? It ruled that homosexual partners qualify as family, and therefore qualify to retain the right to hold on to rent-control property.

Jonathan Dresner - 12/31/2004

You're right, on the specifics of marriage. You might be able to show a tradition of same-sex non-sexual domestic partnerships (e.g. unmarried siblings) recognized in law as having some of the same legal attributes as marriage (common property, inheritance.

But what I meant was the more general principle expressed in the common law marriage, the recognition of functional hallmarks (intention, sexual relationship, pooled property and community recognition being the obvious ones) instead of administrative procedures as the basis for understanding marriage.

Parenting is a wedge issue, too (see my update).

Ralph E. Luker - 12/31/2004

I should think that one would have a very hard time trying to show that a case can be made in common law that marriage can be anything other than a relationship between a man and a woman.

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