Lambda Legal to Colorado Supreme Court: Marriage is Marriage!

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June 24, 2020

Today the Colorado Supreme Court heard two cases addressing the recognition of common law marriages of same-sex couples. Lambda Legal served as friend-of-the-court in both In re the Marriage of LaFleur v. Pyfer, and In re the Marriage of Hogsett v. Neale, arguing that the common law marriages of same-sex couples must be recognized and evaluated on the same terms as those of different-sex couples, whether before or after Colorado’s marriage bans were struck down, and in a manner that recognizes the discrimination those couples have faced.

In LaFleur, Lambda Legal co-counseled a brief with Hogan Lovells US LLC on behalf of the Colorado LGBT Bar Association, the Colorado Women’s Bar Association, and the National Center for Lesbian Rights.  The brief argues that the U.S. Supreme Court’s ruling in Obergefell v. Hodges striking down discriminatory marriage bans nationwide applies retroactively and mandates recognition of same-sex couples’ common law marriages established before the end of Colorado’s marriage bans.

“Colorado’s same-sex couples have the right to establish a common law marriage on the same terms as different-sex couples.  The United States Constitution guarantees all couples the equal and fundamental right to marry the person they love in the state where they live,” Lambda Legal Senior Attorney Shelly Skeen said. “When the Supreme Court struck down all laws barring same-sex couples from marriage, it rendered those laws void, as if they had never existed. As courts across the country have recognized, this means that same-sex relationships meeting the test for common law marriage have to be equally recognized, even if they were established while discriminatory laws were in effect. ”

In Hogsett, Lambda Legal joined a brief with these same organizations discussing how Colorado courts should apply the established standards for assessing whether a common law marriage exists to same-sex relationships formed when Colorado’s marriage bans were still in effect. The brief argues that those standards, articulated in a 30-year-old precedent called People v. Lucero, can and should be applied in a way that reflects the lived realities of same-sex relationships and the discrimination those couples faced.  Such an approach to the Lucero factors is necessary to ensure that same-sex couples are treated equally.

“Unlike their different-sex counterparts, for whom formal and common law marriage were accessible, same-sex couples faced unique obstacles that only recently were erased by Obergefell,” Skeen added. “Although the impact of marriage bans meant they may not have been able to describe themselves as married on federal tax forms, loan documents, or deeds, courts can and must evaluate whether the couple did what they could to solidify their relationships despite the unconstitutional restrictions. If a long-term committed different-sex relationship couple can meet the test for a common law marriage, so too must a couple in similar same-sex relationship. There can be no distinction.”

Read Lambda Legal’s brief in In re the Marriage of LaFleur v. Pyfer here.

Read the brief in In re the Marriage of Hogsett v. Neale here.

Lambda Legal Senior Attorney Shelly L. Skeen, and Senior Counsel Karen Loewy authored and reviewed the briefs for Lambda Legal.