A recent blog from Nextavenue reminded me of a topic I’ve had in the back of my mind: cohabiting without legally being married, a/k/a “shacking up.” The blog dealt specifically with older Americans, and that is my focus as well. But my focus is narrower still: morally conservative people shacking up.

No, I’m not crazy. We’re in a Brave New World.

I’m aware that marriage and sexuality have become a kind of “third rail.” 30 years or so ago I scandalized some of my friends by not disapproving of “common-law marriage.” To their ears, “common-law marriage” meant “shacking up.” For me, as a lawyer, it meant a real marriage, albeit created without the formalities of ceremony or clergy by publicly declaring each other man and wife. Common-law marriage is not recognized in all states, but where it is recognized, I see nothing deeply immoral about it. Maybe it’s a little bit tacky to deny your friends the pleasure of attending a wedding, but your mileage – and budget – may vary.

Now the Supreme Court has given us another third rail: the Obergefell decision, which pretends that a right to same-sex marriage is embedded in the Constitution. That is the new legal status quo, with or without my approval.

In justification of Obergefell, much of America had begun treating marriage as little or nothing more than a package of financial benefits for sexual intimates. Why our governments should extend financial benefits to sexual intimates is one of the questions that led me circuitously to a conclusion adverse to same-sex marriage. But that horse has now fled the barn.

When I speak of people treating marriage as a package of financial benefits for sexual intimacy, I’m referring to such phenomena as aging widows and widowers getting together, perhaps with a religious blessing but without a marriage license, in order to preserve relatively high Social Security benefits, or to protect against the prospect of one spouse losing his or her life savings should the other spouse require Medicaid benefits (no such consequence attaches to assets of unmarried cohabitants). Other couples get married for Medicaid reasons; either alternative can make sense in different circumstances. For some, “married filing jointly” carried a “marriage penalty” tax as compared to filing separately. Some couples were tempted, and some of those presumably succumbed, by not marrying or by divorcing but continuing cohabitation. UPDATE: I just realized that this paragraph reeks of not marrying as the path to government benefits. The core point remains, though: When “to marry or not to marry?” is the question, financial benefits are on the table.

In the eyes of many people in my circles, the United States Supreme Court has not expanded marriage or created “marriage equality,” but, er, redefined marriage, a usurpation of well-nigh blasphemous proportions since government didn’t create it, but merely recognized God’s Institution. It requires no stretch of the imagination to say that government marriage and Christian marriage, by judicial fiat, are now clearly separate things. (Here, too.) And with that being the reality, it requires only a slightly greater stretch of the imagination to ask whether Christian people (my most familiar proxy for “morally conservative people”) are obliged to avail themselves of state-issued “marriage” licenses, particularly when they view the state’s new institution as a sham and a mockery.

In the wake of Obergefell, some people proposed that churches get entirely out of the business of solemnizing the state institution, and even developed a pledge. Others said “bad idea, and here’s why.”

I’ve long (maybe always) felt that I need professionally to take a holistic approach to issues like this. I need to tell clients, especially post-Obergefell, that maybe something unthinkable from 10 years ago (living together not legally married) is now worth a thought because the Supreme Court changed the meaning of civil government marriage.

If you want to think the formerly unthinkable:

1. Do you have a faith tradition?
2. Would it have an opinion on shacking up?
3. Do you care about that opinion?
4. Would your clergyman consider blessing your relationship without a marriage license if that’s advantageous for you?

Don’t think that avoiding the license will eliminate all conflict, though. The government may haunt you anyway, or hold your mind in fetters.

I know of a man, a very intense ideologue, who persuaded a woman that they didn’t need a marriage license. They went through some sort of religious hocus-pocus and then acted as man and wife in a state that doesn’t recognize common-law marriage. When the marriage whatever-it-was foundered, off they went off to divorce court, spending much time and money in adversarial proceedings, each asking the government to dissolve — each in their different preferred manner — a relationship over which, a few years earlier, both had said by decisive action that the state had no authority whatever. Their sham came to light, and then it really got ugly.

I’m sure God felt duly honored and glorified by the spectacle of Mr. & Mrs. Ideologue, the so-pure-in-doctrine-that-we-won’t-sully-our-marriage-with-a-statist-license, so spilling each other’s blood on the courtroom floor. Eeeeewww! Consider “what could possibly go wrong.”

One option I could never recommend, though, is divorce of the already-married morally conservative person, because even No Fault Divorce requires alleging under oath that the marriage is irretrievably broken. Unless you can come up with a helluva good argument that “being married will cost us non-trivial amounts of money” translates into “this marriage is irretrievably broken,” I could not recommend and would have nothing to do with a divorce on these financial grounds.

You may now give me hell. I probably deserve it for drawing out discomfiting consequences about “marriage” as demolished, and shabbily rebuilt, by SCOTUS.

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“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)

Some succinct standing advice on recurring themes.