The recent flap over Colorado common-law marriage has put the state's most visible defender of traditional matrimony in a curious position: adamantly opposed to legal recognition of committed same-sex couples, yet resolutely silent on an antiquated, easy-access type of heterosexual marriage open to children.
Focus on the Family's formal statement on same-sex unions "strongly opposes any legal sanction of marriage counterfeits, such as the legalization of same-sex 'marriage' or the granting of marriage-like benefits to same-sex couples, cohabiting couples, or any other non-marital relationship."
The massive ministry supports proposed state ballot initiatives that would bar gay couples from both marriage and domestic partnerships. Same-sex unions "reduce marriage to something of a partnership that provides attractive benefits and sexual convenience without an understanding of lifelong commitment," according to Focus founder James Dobson.
Colorado's common-law provision allows any single, willing male or female to claim the benefits of legal marriage if they live together, plan to be married and publicly present themselves as married even if they've been together just a few weeks. Focus maintains "no position" on common-law marriage despite a recent state court ruling suggesting that girls as young as 12 and boys as young as 14 could be allowed to wed.
While statutory marriage in Colorado requires both parties to be 18 (16 with parental consent), common-law marriage is rooted in English common law. That system legitimized marriage at 14 for boys and 12 for girls the age at which consummation could presumably occur. Absent a statute to the contrary, common law prevails, the court ruled.
The Colorado Court of Appeals opinion, announced June 15, triggered widespread concern about "child brides" and prompted Attorney General John Suthers to suggest that legislators move quickly to raise the common-law age of consent.
Suthers, who says common-law marriage should eventually be abolished, notes that the current scenario presents a potential conflict with statutory rape laws. In Colorado, any person who has sex with a child 14 or younger can be charged with statutory rape if the age difference is at least four years.
Advocates of increasing the common-law age of consent include a group that supports same-sex domestic partnerships.
"What's really detrimental to society?" asks Sean Duffy, executive director of Coloradans for Fairness and Equality. "Should we be worried about two successful, law-abiding taxpayers who want basic legal protections and responsibilities for their relationship, or the bizarre idea of a 12-year-old girl being legally permitted to get married?"
Ruben Mendez, vice-president of Coloradans for Marriage and a supporter of the proposed one-man, one-woman marriage amendment, agrees that the age of consent should be raised. But he isn't sure about doing away with the institution entirely.
In Latino communities, the common-law provision presents an avenue through which undocumented immigrants can claim the benefits of marriage, says Mendez. Couples without the proper documentation are apt to be fearful of approaching a justice of the peace to be conventionally wed, he notes.
"They're not necessarily legal immigrants, so that creates a little fear," Mendez adds.
Long reach, few requirements
Just nine states and the District of Columbia still permit common-law marriage, though their reach extends much further: Unlike same-sex civil unions and domestic partnerships, common-law marriages generally are recognized even by states that don't allow them.
Requirements typically are minimal. In Alabama, for instance, the couple must be mentally competent, agree to enter into a marriage, and consummate their relationship. In South Carolina, a common-law marriage is established if a man and woman intend for others to believe they are married. Pennsylvania recently abolished what was probably the nation's most relaxed common-law provision: It required only that a man and a woman exchange words indicating their intent to be married.
That such arrangements have garnered so little attention from groups fighting for the "sanctity" of conventional marriage is no surprise, says one gay-rights advocate.
"For them, it really isn't about strengthening marriage," says Michael Brewer, an attorney and spokesman for Equal Rights Colorado. "It's about drawing a perimeter around heterosexual marriage. And as long as you keep same-sex couples outside of that perimeter, you're protecting marriage."
Yet conventional marriage, common-law marriage and domestic partnerships can peacefully co-exist, Brewer says.
"The real issue here is legal consistency that we treat committed couples equally under the law, regardless of their sexual orientation. What I'm concerned about is providing a reasonable legal safety net to support couples in committed relationships, regardless of whether those couples are heterosexual or same-sex."
Common-law marriage in other states
Alabama: Requirements are capacity to consent to marriage; an agreement to be husband and wife; and consummation of the marital relationship.
Iowa: Requirements are intent and agreement to be married; continuous cohabitation; and public declarations that the parties are husband and wife.
Kansas: A man and a woman must have the mental capacity to marry; agree to be married at the present time; and represent to the public that they are married.
Montana: Requirements are capacity to consent to marriage; an agreement to be married; cohabitation; and a reputation of being married.
Rhode Island: Couples must show serious intent to be married and conduct that leads to a reasonable belief in the community that they are married.
South Carolina: A man and woman must intend for others to believe they are married.
Texas: Couples must sign a form; agree to be married; cohabitate; and represent to others that they are married.
Utah: A man and a woman must be capable of giving consent and getting married; cohabitate; and have a reputation for being husband and wife.
Washington, D.C. : Requirements are cohabitation and an express, present intent to the district to be married.
Source: The Alternatives to Marriage Project