Document Type

Article

Publication Title

Michigan State Law Review

Publication Date

2013

Abstract

"Marriage equality" remains an elusive goal in this country. About ten years ago I wrote an article suggesting that private ordering would be a good alternative to the rather haphazard and arbitrary state law governing marriage. Instead, I urged couples to draft their own "marriage proposals." As an example, I attached a "Gender Equity Marriage Proposal." The idea was that "gender equity" might be of some interest to some couples, just as others might be more concerned with a child-centered (or wealth- or environment-centered) model.

I meant well. But my premise was deeply flawed for at least two reasons. First, "gender equity" is not a private preference, like chocolate or vanilla. Rather, like racial equality, it is a fundamental right, an irreducible principle, in the private as well as the public sphere. Second, as a corollary, the notion that private parties might contract their way around gendered norms despite the ubiquity of such norms in the workplace, the culture, and the law seems naïve if not delusional in hindsight.

This Article takes a different tack. It argues, as many have, that marriage equality — at least as it refers to equality within heterosexual marriages — requires gender equality. It argues further, however, that United States law cannot assure gender equality because of its pinched, narrow conception of "rights." Those seeking marriage equality in the United States, accordingly, should look to international human rights law, specifically, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

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