Steven Young (William & Mary Law School) has posted Retroactive Recognition of Same-Sex Marriage for the Purposes of the Confidential Marital Communication Privilege (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:
The Supreme Court's decision in Obergefell v. Hodges opened the door to same-sex couples to receive recognition of their marriages going forward. But the question remains: what of the couples that would have been married Pre-Obergefell but for now-unconstitutional laws? This Note focuses on one right that cannot be remedied by prospective marriage recognition: the confidential marital communication privilege in evidentiary law. Arguing by analogy to common-law marriage, this Note argues that same-sex marriages should be retroactively recognized so that the promise of liberty enshrined in Obergefell is fully realized.