Few paid any attention to a proposal to bar states from legally sanctioning same‐sex marriages when it was first introduced by Rep. Marilyn Musgrave (RColo.) last June. The Federal Marriage Amendment didn’t garner a lot of notice until February, when the Massachusetts Supreme Judicial Court ordered the state to rewrite its laws to permit gay couples to wed.
There are sound reasons to oppose the amendment: It tramples on constitutional values of federalism. It preempts state‐by‐state expression of local mores and community values. It attempts to dragoon courts — sworn to neutrally apply the law — to enforce the social preferences of the majority.
There is one more reason for thinking the Federal Marriage Amendment unwise, a reason largely overlooked. The amendment is susceptible to judicial nullification — in a way that may very well entail pernicious consequences for the rule of law.
Need proof? Think dead movie stars and remember the case of Marvin v. Marvin.
Nearly 30 years ago, the California Supreme Court, in a surprising and influential decision, held that the legislature’s definition of “marriage” did not preclude courts from granting a core set of marriage‐like benefits to unmarried couples. Today, Marvin v. Marvin and its progeny may provide an analytical framework for courts seeking to evade the Federal Marriage Amendment.
Show Her the Palimony
Some background is in order. Marvin v. Marvin was a front‐page legal story in the mid‐1970s. Its colorful cast of characters included the late Lee Marvin, star of such films as “The Dirty Dozen,” and his longtime mistress, ex‐dancer Michelle Triola. Marvin and Triola had lived together in his Malibu home from 1964 to 1970. The lawsuit stemmed from the stormy dissolution of their extra‐marital relationship.
Marvin (who was married to another woman) had conducted his relationship with Triola in apparent anticipation of a less‐than‐ amicable parting. Not only did he refuse to marry Triola — who nonetheless called herself “Michelle Marvin” — but he studiously avoided any paper trail that might expose him to financial consequences if and when the relationship dissolved.
Marvin may have assumed that California’s family law would protect him from alimony and other core legal consequences of marriage. He had good reason to think so: California’s marriage statutes were widely believed to prevent courts from recognizing a variety of “domestic” rights (specifically, to financial support and property) in the absence of a legislatively sanctioned wedding ceremony.
The actor was in for a shock.
Triola went to court and, with the help of celebrity divorce lawyer Marvin Mitchelson, sought the benefits of a wife, including the right to claim more than $1 million of Lee Marvin’s Hollywood earnings. The so‐called palimony suit provoked a fit of popular pique, parodied on “Saturday Night Live” when comedian Dan Aykroyd called Triola a “screeching, squealing, rapacious swamp sow.”
But the real joke was on Marvin. Triola sued all the way to the California Supreme Court, which ruled in her favor in 1976.
Triola’s suit relied — in part — on an obscure doctrine of contract law known as “quasi” or “implied” contract. Under this doctrine, courts may infer a legally enforceable agreement from the circumstances of the parties’ dealings, even though the parties have not entered any actual written agreement. Triola argued that similar logic required the court to treat her relationship with Marvin as an “implied agreement” granting her many of the same rights given by law to wives.
The California Supreme Court held in Triola’s favor after a “searching inquiry into the nature of their relationship.” Triola had given up a career as an entertainer and devoted herself full time to Marvin’s welfare, said the court. She had acted as his “companion, homemaker, housekeeper and cook.” Though they were not formally married, the two had “agreed to hold themselves out to the general public” as husband and wife. Triola took Marvin’s last name. In such circumstances, the court ruled, Marvin might be presumed to have implicitly agreed, as a matter of contract, to assume some of the support obligations of a husband.
It’s a Deal
In the years since 1976, Marvin v. Marvin has proved influential inside and outside the Golden State. California’s high court has extended the decision to gay couples; the high courts of nine other states have incorporated Marvin’s reasoning into their own law of contract; and the opinion’s analysis has become a familiar feature of legal counseling for “alternative families.”
The proposed Federal Marriage Amendment would not stop or even slow the spread of Marvin’s influence — and the opportunity it provides gay couples. The amendment targets judicial rulings extending the benefits or incidents of “marriage.” But the California Supreme Court explicitly (and somewhat disingenuously) rejected the notion that the result in Marvin v. Marvin implicated “marriage” at all. “We do not hold,” emphasized the court, “that plaintiff and defendant were ‘married,’ nor do we extend to plaintiff the rights … grant[ed] valid or putative spouses.” And the court underscored that it was not trying to resurrect the concept of common law marriage.
Rather, the benefits at issue were characterized as a simple matter of implied contract. As the court put it, “we need not treat nonmarital partners as … married persons in order to apply principles of implied contract.” Instead, “we need to treat them only as we do any other unmarried persons” — i.e., as people who have a right to enforce their expectations to the full extent permitted by the “evolving” principles of contract law.
A Spouse by any Other Name
Marvin v. Marvin lends credence to the common argument that any attempt to stem the tide of changing norms of marriage through the constitutional amendment process is likely futile. The decision and its progeny would remain untouched by the Federal Marriage Amendment and competing proposals, which do not purport to restrain judicial development of state contract law. Accordingly, Marvin v. Marvin will continue to point the way for courts seeking alternative means to legitimize and formalize gay relationships. If California laws forbidding judicial extension of marriage rights to the unwed can be avoided by redefining core rights of marriage — including alimony and equitable property distribution — as “quasi‐contractual,” then a similar strategy could end‐run a constitutional ban on judicial extension of marriage rights to same‐sex couples.
To be sure, Marvin v. Marvin does not affect the exclusion of gays from tax breaks, welfare entitlements, and other benefits that married couples receive from legislatures and executive agencies. But it clearly undermines the special status of marriage in the law, both by redefining some marital rights as quasicontractual, and by institutionalizing a legal simulation of marriage in the gray areas of contract law. Indeed, in a 2001 interview, rock star Melissa Etheridge, who is gay, noted that “the Lee Marvin case” made separation from her longtime lover a divorce in everything but name.
If the common wisdom is correct, and legal change in the institution of marriage is inevitable, the only remaining question is how — and where — that change occurs. Perversely, the sole legacy of a Federal Marriage Amendment may be to shift legal change favoring gay equality from the predictable realm of marriage to the unsettled realm of quasi‐contract. Whether that is desirable — from anyone’s standpoint — is open to question. Gay and straight couples both may come to rue the day that courts, barred from extending the right to marry by a constitutional amendment, instead expanded the unpredictable formula of implied contracts to informal sexual relationships.
You don’t believe me? Ask the ghost of Lee Marvin.