The Louisiana DOMA as an Improper Impediment to the Evolution of Public Policy Toward Cohabitants

• Author: Randy J. Marse, Jr.
• Position: J.D. Candidate, Paul M. Hebert Law Center, Louisiana State University, 2012.
• Pages: 789-813

The Louisiana DOMA as an Improper Impediment to

the Evolution of Public Policy Toward Cohabitants

I. INTRODUCTION

Some people just do not want to get married. In fact, more and

more Americans are choosing not to do so, opting instead to live

together without walking down the aisle.1 As of the 2000 Census,

there were nearly 5.5 million households in the United States headed

by an unmarried partner.2 Of those households, more than 4.8

million were headed by an opposite-sex unmarried partner.3

Social acceptance of unmarried couples in long-term

relationships has increased in the last 20 years.4 Public attitudes

toward celebrity lifestyles are often indicative of a broader approval

or disapproval of the lifestyle in general. Some famous couples have

chosen not to marry yet have remained devoted to one another for

decades and raised families together. Kurt Russell and Goldie

Hawn, for instance, are both successful actors who have been

together for more than 25 years without getting married.5 The two

have a son, along with other children from previous marriages.6

When asked why she and Russell never married, Hawn replied,

“Because we have done just perfectly without marrying . . . . I

already feel devoted and isn’t that what marriage is supposed to do?

So as long as my emotional state is in a state of devotion, honesty,

caring and loving, then we’re fine.”7 Although there is some debate

Copyright 2012, by RANDY J. MARSE, JR.

1. T.P. Gallanis, Inheritance Rights for Domestic Partners, 79 TUL. L. REV.

55, 59 (2004) (citing Larry L. Bu mpass & James A. Sweet, Cohabitation,

Marriage and Union Stability: Preliminary Findings from NSFH2 at tbl. 2 (Nat’l

Survey of Families and Households, Working Paper No. 65, May 1995)).

2. TAVIA SIMMONS & MARTIN O'CONNELL, U.S. CENSUS BUREAU,

MARRIED COUPLE AND UNMARRIED PAR TNER HOUSEHOLDS: 2000, CENSUS 2000

SPECIAL REPORT 4 tbl. 2 (Feb. 2003), available at http://www.census.gov/prod/

2003pubs/censr-5.pdf.

3. Id.

4. Gallanis, supra note 1, at 58.

5. Goldie Hawn and Kurt Russell prove their 25-year romance is still going

strong on holiday in Croatia, THE DAILY MAIL ONLINE, (June 17, 2010, 8:22 PM),

http://www.dailymail.co.uk/tvshowbiz/article-1287435/Goldie-Hawn-Kurt-Rus

sell-prove-25-year-romance-going-strong-holiday-Croatia.html#ixzz11huplXgn.

6. See Goldie Hawn Biography, BIOGRAPHY .COM, http://www.biography.

com/articles/Goldie-Hawn-9331873 (last visited Nov. 9, 2010).

7. Anythinghollywood, Hollywood’s Golden Couple, Goldie Hawn and Kurt

Russell, ZIMBI O.COM (Mar. 8, 2009, 4:33 AM), http://www.zimbio.com/Goldie+

790 LOUISIANA LAW REVIEW [Vol. 72

about whether living together outside of marriage is an acceptable

social practice, such relationships have undeniably become more

common. As Letitia Baldridge noted over 30 years ago, “It used to

be called living in sin . . . but it has become, by weight of sheer

statistics, a way of life. We must therefore cope with it as such.”8

Americans choose not to marry for various reasons. The

American Law Institute articulated a few such reasons in its

“Principles of the Law on Family Dissolution”:

Among other [reasons], some [couples] have been unhapp y

in prior marriages and therefore wish to avoid the form of

marriage even as they enjoy its substance. . . . Some begin a

casual relationship that develops slowly into a durable union,

by which time a formal marriage ceremony may seem

awkward . . . . Failure to marry may reflect group mores;

some ethnic and social groups have a substantially lower

incidence of marriage and a substantially higher incidence of

informal domestic relationships than do others. Failure to

marry may also reflect strong social or economic inequality

between the partners, which allows the stronger partner to

resist the weaker partner’s preference for marriage. . . . In all

these cases, the absence of formal marriage may have little

or no bearing on the character of the parties’ domestic

relationship . . . .9

No matter what reason a couple chooses not to marry, society

now recognizes such relationships and the law should do so as well.

Scholars have long debated the legal rights and protections that

should be afforded to couples choosing not to enter into the marital

relationship.10 Any rights and protections that exist for such couples,

which vary from state to state, were threatened in the aftermath of

Hawn/articles/69/Hollywood+Golden+Couple+Goldie+Hawn+Kurt+Russell (last

visited February 22, 2012).

8. THE AMY VANDERBILT COMPLETE BOOK OF ETIQUETTE 128 (L.

Baldridge ed., 1978).

9. AM. LAW INST., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION:

ANALYSIS AND RECOMMENDATIONS, § 6.02 cmt. a (2002).

10. See generally Gallanis, supra note 1, at 59; Kathryn Venturato s Lorio,

Concubinage and its Alternatives: A Proposal for a More Perfect Union, 26 LOY.

L. REV. 1 (1980).