Same-Sex Common Law Marriage: An Examination of the Constitutionality of State Processes in Determining a Valid Common Law Marriage Post Obergefell v. Hodges

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Cook, Curtis
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2022-09
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Journal Article
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INTRODUCTION|This Note will first explore Obergefell, explain common law marriage, and explore the elements present in the various cases from Colorado, Washington, D.C., Montana, Pennsylvania, and Texas to determine how Obergefell has been applied to common law marriage. Next, this Note will look to the hurdles preventing same-sex couples from proving the requisite elements to satisfy common law marriage. This review covers the three main elements to satisfy common law marriage and contains a fourth catchall section comprised of other various state requirements. Second, this Note will address the constitutional concerns relating to the hurdles in place for same-sex couples to prove common law marriage under the Equal Protection Clause. Third, and finally, this Note will explore the difference in element-based and factor-based tests and propose what courts should adopt to satisfy the Obergefell decision.
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Creighton University School of Law
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