Culture, dissent, and the state: the example of Commonwealth African marriage law.

• Author: Bond, Johanna E.

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 of family law beyond the heterosexual spousal dyad.

INTRODUCTION

Marriage matters. In recent years, activists and scholars from all over the world have challenged the traditional parameters of marriage, questioning eligibility requirements and legal benefits that arise from marriage. (1) Some advocate for the elimination of marriage as a legal status while others argue for the expansion of marriage rights to same-sex couples. (2) Both proposals have generated significant controversy and called into question the role of the state in marriage regulation. A number of theorists in the global North argue that reducing the state's role in marriage regulation, or eliminating it altogether, will promote equality for women and same-sex couples. This Article is the first to explore the transnational application of these important theoretical contributions. The Article assesses the role of the state in marriage regulation in the context of Commonwealth African states and concludes that robust state intervention in marriage has the greatest potential to promote equality within and among families.

For the vast majority of women in Commonwealth Africa, (3) marriage determines social acceptance, financial well-being, and even physical health. (4) Despite the centrality of the institution, women enjoy vastly different rights within marriage depending upon whether the couple marries according to statutory law, customary law, or religious law. (5) The level of state intervention in marriage depends, in large part, on the type of marriage into which a couple has entered. (6) Civil or statutory marriage suggests a high level of state control while the state cedes to local communities much regulatory control over customary and religious marriages.

Although some feminists have recently argued that the state should not be involved in the regulation or promotion of marriage, the state has a critical role to play in the protection of women's rights within marriage. The state has an obligation to promote equality both within and among intimate relationships. (7) The state's obligation to promote equality within relationships involves the promotion of gender equality within individual relationships. The obligation to promote equality across or among relationships concerns the state's exclusion of certain types of relationships, such as same-sex relationships, from state recognition. In the Commonwealth African context, this dual obligation is best served not by less regulation, as some would argue--but by more.

This Article provides an overview of marriage in Commonwealth African countries, explores the underlying values that animate reform of the plural legal systems in these countries, and offers a justification for contemporary state intervention in the customary marriage regime. The Article explores the argument of some Western feminists that the role of the state in marriage regulation is obsoletes and considers the saliency of this contention within the plural legal systems of Commonwealth Africa. Although these arguments are an important and compelling part of the discourse on women's and LGBT rights in the global North, they are less persuasive in the particular context of Commonwealth Africa.

Part I of this Article identifies the characteristics of Commonwealth African marriage within plural legal systems, including rights to enter into marriage, rights within marriage, and rights at dissolution of marriage. This description of the contours of marriage provides a backdrop against which to measure the intransigence of gender roles and to assess the state's role in challenging and transforming those roles. I do not intend to describe Commonwealth African marriage in great detail here. To do so would be impossible given the myriad variations on customary, religious, and even statutory marriage laws. Customary marriage law, for example, varies not only within countries but also among ethnic groups and even, at times, among villages. (9) My goal in this section is rather to sketch the parameters of marriage under different marriage regimes, primarily customary and statutory law. Although marriage under religious law, including Islamic and Hindu laws, forms an important part of the marriage mosaic in Commonwealth Africa, this Article focuses largely on comparisons between customary and statutory marriage. (10) This section highlights the ways in which customary marriage law discriminates against women. (11)

Part II explores the values that have shaped the evolution of marriage law within plural legal systems, including the impact of colonialism, the desire to preserve culture and tradition, the desire to promote women's equality within the family, and the recognition of choice in governing marriage law. As I have argued elsewhere, the discourse on gender equality in the region must engage both the promotion of equality rights and the preservation of custom. (12) These dominant frames provide the foundation for any discussion of women's rights within the family in Commonwealth Africa.

Part II also interrogates the plural legal system as a possible site for the exercise of women's agency in the choice of governing marriage law. Within the plural legal systems of Commonwealth Africa, statutory marriage regimes can offer women a more equitable, though imperfect, alternative to the relevant customary or religious marriage law. (13) Within these plural systems, women have the option to marry according to statutory law, an option that allows some women to exercise agency in protecting their own rights within the marital relationship. (14) Eliminating the state's role in marriage or eliminating marriage as a legal category in the Commonwealth African context would simply narrow the range of marriage options for women. Given the entrenched attachment to marriage in the region, rates of customary marriage would rise, reducing the opportunity for women to choose a marital regime that is more hospitable to women's rights while preserving traditional notions of marriage. By offering a civil law alternative to traditional marriage, the state plays a crucial role in protecting the exercise of women's agency in the choice of governing marriage law. Although the patriarchal social context of the family constrains women's ability to exercise that choice, the existence of a more equitable statutory alternative to traditional, customary marriage also serves an expressive function. The statutory alternative, even if selected by a minority of marrying couples in the region, expresses the state's normative commitment to women's rights within the family.

In Part III of the Article, I advocate preserving a role for the state in marriage regulation in Commonwealth Africa on two primary grounds. First, the state has an obligation to promote gender equality within relationships. (15) The state must take seriously its international human rights obligations to intervene in marriage. Abrogation of the state's role in marriage regulation would, in fact, contravene human rights obligations. Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), for example, requires States parties to actively engage in the promotion of equality within marriage. (16) It would be impossible for a state to fulfill this obligation if it abdicated responsibility over marriage regulation or constructed a minimal role for state intervention within marriage.

Second, the state has a role to play in the protection of equality across relationships. To this end, the state must protect not only...