Culture, Dissent, and the State: The Example of Commonwealth African Marriage Law

Abstract

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 evolve. 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 dyad.