In Blumenthal v Brewer, the Illinois Supreme Court held that it would not enforce an alleged agreement between a nonmarital couple that centered on their relationship. The National Center for Lesbian Rights argued that the court’s holding punished people who entered into a nonmarital relationship. Nancy Polikoff found the opinion ‘shocking’. Albertina Antognini suggests that nonmarriage cases refusing to enforce such agreements harm women. These accusations also reflect concern that Blumenthal-type results are designed to encourage marriage and penalize others.
Our analysis of Blumenthal and the nonmarriage cases starts from a different place. We think that the Blumenthal approach may not be entirely evil, even though we think Blumenthal itself raises issues about the retroactive application of these principles to people who could not marry at the time they began their relationship …
Cahn, Naomi R and Carbone, June, Blackstonian Marriage, Gender, and Cohabitation (February 27, 2020). 51 Arizona State Law Journal 1247 (2019).