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

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?


More in this Issue

Response to Martha Nussbaum

I find much to agree with in Professor Martha Nussbaum”˜s elegant and lucid Essay, “A Right to Marry?” However, I will not begin by responding to it directly, but will instead start my analysis by taking a step back from the debate. Many observers believe that the politics of the gay marriage issue in the […]


I am extremely grateful to the three commentators for their care in reading my work and for the very high quality of their comments. Because Pamela Karlan and Michael Warner discuss related questions, I shall reply to their comments in one section and devote a separate section to David Novak’s very different arguments.

Response to Martha Nussbaum’s a Right to Marry

The question of same-sex marriage concerns every morally sensitive citizen. It has been the subject of debate everywhere, especially among scholars and intellectuals. That is why, no doubt, the Brennan Center for Justice invited me to comment on Professor Martha Nussbaum’s Essay entitled “A Right To Marry?” Our opposing views on this hotly debated question […]

Election Administration Reform and the New Institutionalism

The 2008 election of Barack Obama to the United States presidency is racially momentous. Few would gainsay that the elevation of an African American to the most powerful and most public position in our national life signals a remarkable step away from race slavery. But what exactly does Obama’s elevation portend for race in America? […]

Forgotten at Guantanamo: The Boumediene Decision and Its Implications for Refugees at the Base under the Obama Administration

On January 22, 2009, newly inaugurated President Barack Obama signed an Executive Order calling for the closure of Guantánamo Bay Naval Base in response to longstanding criticisms of the Bush Administration”˜s Guantánamo policy. The Order requires review of detention and prompt disposition of all cases involving Guantánamo detainees. It was meticulously drafted to apply to […]

Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice

In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both inter-temporally and inter-subjectively, their punishments will accordingly have […]

The Inevitability of Theory

I wrote this Article in response to an invitation to deliver the keynote address at Berkeley Law School’s Jurisprudence and Social Policy conference Building Theory Through Empirical Legal Studies. Lauren Edelman, the intellectual mother of the conference, gently brushed aside my suggestion that I present one of my own attempts to synthesize the results of […]

How Not to Lie with Judicial Votes: Misconceptions, Measurement, and Models

Rapid advances in the statistical measurement of judicial behavior have provided concise, meaningful, and intuitive summaries of differences between judges based on votes. Yet such scores remain poorly understood, widely misinterpreted, and commonly misused. We provide a guide for how to interpret such measures, clarify major misconceptions, and argue that extant scores are merely a […]

Preventing State Budget Crises: Managing the Fiscal Volatility Problem

Forty-nine of the U.S. states have balanced budget requirements, and every state acts as though bound by such constraints. These constraints create fiscal volatility ““ the states must either cut spending or raise taxes during economic downturns, while doing the opposite during upturns. This paper discusses how states should cope with fiscal volatility on both […]

A Right to Marry

Marriage is both ubiquitous and central. All across our country, in every region, every social class, every race and ethnicity, every religion or non-religion, people get married. For many if not most people, moreover, marriage is not a trivial matter. It is a key to the pursuit of happiness, something people aspire to””and keep on […]