A Right Not to Marry

February 22, 2016

In Obergefell v. Hodges, the United States Supreme Court recognized a constitutional right for same-sex couples to marry. Although the decision is an important milestone in the struggle for equality, it also threatens to destabilize the relationships of those who previously entered into civil unions or domestic partnerships and may, for a variety of reasons, prefer not to trade their existing status for marriage. That is because states have routinely responded to the legalization of same-sex marriage by eliminating their nonmarital statuses. Some states have terminated such statuses and have required couples to opt into marriage to continue receiving the rights to which they had become accustomed. Other states have converted the nonmarital statuses to marriages and have required couples wishing to avoid marriage to dissolve their legal relationships. These actions have made it difficult—and in some cases practically impossible—for couples to choose not to marry.

These state actions reveal the existence and scope of a right that has largely hidden in plain sight: a right not to marry. Although widely assumed to exist, courts have not yet found the occasion to invoke it. But a flurry of cases culminating in the Obergefell decision compel the conclusion that the values supporting the right to marry also support a corollary right not to marry. The terminations and conversions of nonmarital relationships bring this right not to marry into sharper focus through the directness of their interventions and their impact on the choice to marry.

March 2016

No. 4

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