Tuesday, March 22, 2016
Peter Nicols (University of Washington School of Law) recently published an article entitled, Backdating Marriage, University of Washington School of Law Research Paper No. 2016-03. Provided below is an abstract of the article:
This Article is the first to explore the phenomenon of backdating marriages as a means of ensuring that same-sex couples are made whole for the harms caused by their longstanding inability to legally marry. The Article demonstrates that the Obergefell decision applies not merely prospectively but retroactively, and that same-sex couples have a constitutional right to have their marriages backdated to the date they would have married but for the existence of a legal barrier to doing so. Because such backdating can create significant short-term administrative challenges, the Article provides some alternatives to backdating that are easier for government agencies to administer but that still provide same-sex couples with constitutionally mandated “make whole” relief for the constitutional harms imposed by the preexisting discriminatory scheme.