Johanna E. Bond


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