Following the 1976 success of the first palimony suit, former partners of famous gays and lesbians attempted to extend the principle to include their own dissolved relationships.
The word “palimony” entered the public vocabulary in 1976, when the California Supreme Court handed down its decision in Marvin v. Marvin
Until Marvin, courts generally refused to enforce such agreements, viewing them as contrary to public policy. Without benefit of marriage, the contract looked too much like the exchange of sexual services for financial security—that is to say, like prostitution. The Marvin court challenged this assumption when it held that a contract between unmarried partners could be enforced, unless the agreement was explicitly based on an exchange for sexual services. The court also concluded that even when sexual services were part of the contract, any portion of the contract severable from this barred agreement could still be enforced.
Marvin argued that some cohabitation agreements did not necessarily require the performance of sexual services but could instead be contracts concerning property that the couple accumulated through their mutual efforts. While the parties could not contract to pay for the performance of sexual services, they could agree either to pool their earnings and hold all property acquired during the relationship in common or to maintain each party’s earnings and property as the earner’s separate property.
The reasoning of the Marvin court would have broad implications for gay and lesbian couples, as events of 1981 demonstrated. A sea change in domestic law began on April 28, 1981, when thirty-two-year-old Marilyn Barnett filed a lawsuit against tennis star Billie Jean King. Invoking the palimony doctrine of Marvin, Barnett claimed that she was entitled to part of King’s property for the years she had spent in a lesbian relationship with King.
At first denying the relationship, King later confirmed that she and Barnett had indeed been lovers, although she denied “feel[ing like a] homosexual.” After generating much publicity that called public attention to gay and lesbian relationships, the suit was dismissed on November 19, 1982. The suit failed not least because the two women did not cohabit in the sense of Marvin. At no time during the relationship did King and Barnett so completely intermingle their lives as to be an economic unit.
By that time, however, a California appeals court had already ruled against what became known as “galimony,” or gay palimony. In Jones v. Daly
Suits of this kind were not unique. At the same time that Barnett made her claim against King, Richard Hannum was suing his former companion John-Michael Tebelak—who conceived and directed the musical Godspell—this time in a New York court. This case, however, was overshadowed by more notorious suits, such as that of Scott Thorson against the showman Liberace. In October of 1982, Thorson, then twenty-three years old, sued Liberace for $113 million. Thorson claimed that he had a “personal services agreement” with the entertainer that was broken when Liberace evicted Thorson from his mansion. The suit was settled in 1987 for a mere $95,000.
The tally of cases attempting to take advantage of the opportunities opened by Marvin is at best inconclusive. Later cases would score spotty successes, both in California, where the Marvin doctrine would best apply (see Whorton v. Dillingham, 1988) and in other states, such as Georgia (see Crooke v. Gilden, 1992). Some states—such as Texas in Zaremba v. “Van Cliburn” (1997)—allowed limited forms of same-gender couple palimony suits, but only if the agreement between the parties had been in writing, unlike Marvin, which contemplated enforcing oral or implicit agreements as well.
Despite initiating a line of cases that has today made same-gender marriage a reasonable goal, classic palimony cases are currently rare. Among the variables resulting in this decline, not least would be the fundamental changes in the wake of the HIV-AIDS scourge. Many Americans, who once viewed gay and lesbian relationships as necessarily “meretricious,” are in growing numbers recognizing that same-gender relationships are sincere emotional commitments that should be honored by society.
A wider range of mechanisms to legitimize relationships available to twenty-first century gays and lesbians has also contributed to the dearth of classic palimony cases. Domestic partnerships, even when largely symbolic in their explicit grant of rights and protections, confer a degree of legitimacy that merely living together does not.
Not only are there more kinds of formal relationship arrangements; there also are new causes of action on which to base a suit seeking fair treatment beyond the palimony arguments. Marc Christian, for example, sued the estate of actor Rock Hudson
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Oliver, Brooke. “Contracting for Cohabitation: Adapting the California Statutory Marital Contract to Life Partnership Agreements Between Lesbian, Gay, or Unmarried Heterosexual Couples.” Golden Gate University Law Review 23 (1993): 899-972. -
Parr, Gavin M. “What Is a ’Meretricious Relationship’? An Analysis of Cohabitant Property Rights Under Connell v. Francisco.” Washington Law Review 74 (1999): 1243-1273. -
“Same-Sex Marriage: A Selective Bibliography of the Legal Literature.” Law Library, Rutgers School of Law. http://law-library.rutgers.edu/SSM.html. -
Thorson, Scott. Behind the Candelabra: My Life with Liberace. New York: E. P. Dutton, 1988.
July 25, 1985: Actor Hudson Announces He Has AIDS
1986: Bowers v. Hardwick Upholds State Sodomy Laws
December 17, 1991: Minnesota Court Awards Guardianship to Lesbian Partner
1992-2002: Celebrity Lesbians Come Out
1993-1996: Hawaii Opens Door to Same-Gender Marriages
September 21, 1993-April 21, 1995: Lesbian Mother Loses Custody of Her Child
September 21, 1996: U.S. President Clinton Signs Defense of Marriage Act
December 20, 1999: Baker v. Vermont Leads to Recognition of Same-Gender Civil Unions
April, 2003: Buenos Aires Recognizes Same-Gender Civil Unions
June 17, 2003, and July 19, 2005: Canada Legalizes Same-Gender Marriage
June 26, 2003: U.S. Supreme Court Overturns Texas Sodomy Law
November 18, 2003: Massachusetts Court Rules for Same-Gender Marriage
November 18, 2004: United Kingdom Legalizes Same-Gender Civil Partnerships