This is one of those areas that I did more research in a few years ago. I discovered more about marriage and the recognition of marriage by the state than any paralegal should ever need to know.
The law and the courts have made a distinction between a common law marriage and a marriage at common law.
A common law marriage is one of co-habitation over time. Many states don't recognize them including Arizona (although there have been some exceptions here in Arizona and the other states that purport not to recognize them)
A marriage at common law is one in which the union is solemnized in a formal ceremony before witnesses. The only thing that is absent is the marriage license. All of the states do recognize this type of marriage for all purposes, although the bureaucratic bumblers feign otherwise. The current state of the jurisprudence prohibits third parties, including the state from collaterally challenging the validity of this type of marriage. Only the couple to the marriage itself can have the marriage set aside, either through divorce or annulment.
In fact all Arizona Law does is punish the person who performs the ceremony without first receiving the license from the couple. I have found the law to be virtually the same in all the states.
So what I have been suggesting to gay couples is to stop demanding that the state issue the license and sanction the marriage. Simply go about and have the ceremony without the license and then start asserting rights and claims as they arise. In other words live and be married. When someone balks at recognizing the marriage particularly the state agencies, that's when they go about challenging ARS 25-101.C. which purports to declare same sex marriages void. The statute may prohibit the issuance of the license, but it cannot declare void a same sex marriage where no license was obtained and all other aspects of the marriage ceremony were performed.
I also tell the couples they're going to have to avoid the radical hardliners at least on this issue and not demand recognition immediately. It's got to be a near stealthy, small steps at a time adventure. The fact is many companies in this valley already provide health and insurance benefits for the non-employee partner of a same sex marriage. While I tell them I don't believe they should be seeking "state sponsored" benifits (I tell them I'm libertarian), I know they will anyway (hey they're usually liberal socialists), if they do, they need to approach it under the radar so to speak.
Most of the couples I have advised are usually fairly well off, so the company benifits and their income is sufficient to avoid state support mechanisms. Most of the back lash against the same sex marriage movement has occurred because of the radical hardliners demanding recognition now. The movement should have listened to the predecessor group that was discriminated against as recently as 30 years ago. Inter-racial marriages. Most of the inter-racial marriages were done without licenses, were done under the radar, and only came out swinging when a challenge was necessary. As a result, all of the states finally yielded and repealed their interracial prohibitions when society itself realized that there was no real threat to society.
BTW the reason I know this works with non-marriage licenses marriages is my wife and I have been married without a license for 23 years this week. We've obtained "state benefits" as a married couple in the past and have been turned down for state benefits. Not because we don't have the license, but because we refused to get Social Security Numbers for the kids.
So despite the claims to the contrary, the state doesn't possess the monopoly it thinks it does in the area of validating marriages. It appears the jurisprudence is sufficiently established that if the same sex marriage movement would now tone it down and go stealthy, they will discover in a few years (15-20 at the most), that all the states will eventually have to yield. That of course assumes any gummint structure remains as the current crop of socialists rapidly pushes this nation into the abyss.
> I still don't have a clue what you are talking about
> when you use the phrase "non-government marriage." Equally, I don't
know > what you mean that one can "get" one in any state. Therefore I can't
> assess whether your statement is "factual" or not.
> You give a hint as to what you are talking about when
> you refer to a "private" marriage. I will go out on a limb and assume
> you are referring to situations when people say to each other "we are
> married now" without state sanction. When that occurs (excluding the
> special case of common law marriages where recognized) there are no
> legally enforceable rights or obligations established solely by
virtue > of that declaration. Since the state claims monopoly power over the
> legal creation and enforcement of marriage derived rights, such
> declarations are "not worth very much" to the declarants in terms of
> rights and obligations in our current legal scheme. To pretend
otherwise > is fantasy.
> To deal with your other question: There are indeed
> potential wide ranging legal/economic consequences (both positive and
> negative!)inherent in being married in the manner sanctioned by the
> It doesn't make any sense to ask whether any of these
> facts are "libertarian" or not. As a matter of fact, as a libertarian
I > oppose the current legal scheme on a number of levels. Unfortunately,
> that doesn't mean that the scheme doesn't exist. Neither does it mean
> that your idea of "non-government marriage" (whatever you mean by
that) > has any significant legal consequence for the participants.
> -----Original Message-----
> From: email@example.com
[mailto:firstname.lastname@example.org] > On Behalf Of greenspj
> Sent: Tuesday, December 06, 2005 6:28 PM
> To: email@example.com
> Subject: [lpaz-discuss] Re: This sort of libertarian converage
worries > me
> The miss on subject notwithstanding, to address your question
> a) What I said is a factual statement, to wit...
> "can get non-government marriages right now in any of the 50 states."
> b) To your statement
> "Any "marriage" that is not recognized as such by governments ... is
not > worth very much."
> To whom? And why?
> Are you CONFIRMING my point that conference of wedded status by
> government comes with $$$ or $$$-value attached?
> Or are you saying that it is government marriages that have value,
and > private ones do not?
> Or both?
> And how is that view IN ANY WAY libertarian?
> <buttrick@s...> wrote:
> > I don't know what you mean by your statement that
people > "can get
> > non-government marriages right now in any of the 50 states." Any
> > "marriage" that is not recognized as such by governments that claim
> > monopoly power over marriage and divorce rights (and that would be
in > > all 50 states) is not worth very much. Please clarify what you mean
> > a "non-government marriage."