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129 Yale L.J. F. 1 (2019-2020)

handle is hein.journals/yljfor129 and id is 1 raw text is: THE YALE LAW JOURNAL FORUM JULY 30, 2019 While They Waited: Pre-Obergefell Lives and the Law of Nonmarriage Michaelj. Higdon AB S TRAC T. In the wake of Obergefell, the United States now has a large class of married, same- sex couples whose relationships began at a time when marriage was unavailable to them. The law must therefore wrestle with the question whether any portion of a pre-Obergefell relationship should count toward the length of the ensuing marriage - an important question given the number of marital benefits tied directly to this calculation. As courts and legislators alike wrestle with this difficult question, they will need to examine how these couples ordered their relationships during a time when nonmarriage was the only option. This Essay argues that such an examination pro- vides a unique opportunity for the law to not only move toward true marriage equality, but also reconsider its overall approach to nonmarriage in general. Specifically, this Essay identifies three lessons that can be gleaned from same-sex couples whose relationships spanned both sides of the marriage equality movement. It argues that each of these lessons can help us craft greater protec- tions for nonmarital relationships. INTRODUCTION To this day, couples who choose to cohabitate without marrying do so at their legal peril.' For this reason, the law of cohabitation, and of nonmarriage more generally, has been subject to quite a bit of criticism.2 This Essay revisits that criticism in light of the marriage equality movement, which of course scored a major victory in Obergefell v. Hodges almost five years ago. 1. Lynn D. Wardle, Marriage and Domestic Violence in the United States: New Perspectives About Legal Strategies to Combat Domestic Violence, 15 ST. THOMAs L. REv. 791, 802 (2003) (describing cohabitation without marriage as the riskiest form of intimate living arrangement). 2. See infra Part II. 3. 135 S. Ct. 2584 (2015). 1