This is an explosive time for those seeking to define the meaning and
parameters of marriage. The subject has generated heated debate
worldwide. In June 2010, the European Court of Human Rights declined
to extend marriage rights to a gay Austrian couple, but the Court carefully
laid the foundation for the recognition of such rights when a European
consensus on the issue emerges. In July 2010, Argentina extended to
same-sex couples the right to marry, joining nine other countries that
legally recognize same-sex couples' right to marry. In August 2010, a
United States district judge struck down a California ban on same-sex
marriage. Marriage, as a legal status and a social construct, continues to
In recent years, some theorists have questioned the continued salience of
marriage as a legal category and advocated a minimal role for the state in
marriage regulation. Those challenging marriage as an institution and the
state's role in marriage regulation do so for legitimate and compelling
reasons, primarily related to the role of the institution in perpetuating
sexism and heterosexism. This Article is the first to explore the
transnational applicability of this critique of marriage. In light of this
critique, the Article interrogates the role of the state in marriage regulation
in the particular context of Commonwealth African states. In contrast to
those arguing for a limited or nonexistent role for the state in the ordering
of private, intimate relationships, the Article argues strongly for expanded,
rather than reduced, state intervention in marriage. Robust state
regulation will promote equality within individual relationships and
among relationships, including same-sex relationships.
The Article proposes a three-part strategy for promoting equality in
marriage. First, states with plural legal systems, such as those in
Commonwealth Africa, should preserve the plural legal architecture of
marriage but integrate the relevant laws by establishing a legislative core
of rights within marriage. Second, states should promote equality among
intimate relationships by building on the existing marriage "menu"
options, adding options for same-sex couples when the political climate is
ripe for such reform. Third, states should explore traditions and
customary law that support broader understandings of family and
caregiving, moving the focus offamily law beyond the heterosexual spousal
Bond, Johanna E.
"Culture, Dissent, and the State: The Example of Commonwealth African Marriage Law,"
Yale Human Rights and Development Law Journal: Vol. 14
, Article 1.
Available at: http://digitalcommons.law.yale.edu/yhrdlj/vol14/iss1/1