Pamela S. Karlan

Let’s Call the Whole Thing Off: Can States Abolish the Institution of Marriage

At several points in her characteristically acute discussion of the debate swirling around same-sex marriage, Professor Nussbaum suggests that perhaps the best solution to the current controversy is for the state to abandon the business of conferring marital status: “Might a good solution,” she asks, “be for the state to back out of the expressive domain altogether, offering civil unions for both same-sex and opposite-sex couples?” The state would replace marriage with a new nomenclature for officially recognizing family relationships, one that would not carry the baggage of tradition that marriage trails behind it like a car with tin cans tied to its bumper after a wedding.

Professor Nussbaum‘s tentative proposal raises a number of intriguing issues. First, is it actually possible for a state to “back out of the expressive domain altogether?” Second, does the Constitution impose any constraints on a state‘s elimination of civil marriage?