ABSTRACT
I magine two possible reforms of civil marriage, both offered toward the end of rendering marriage a more just institution. First, imagine a civil marriage law that is open to couples of the same as well as opposite sex. Second, imagine a civil marriage law that, to the greatest extent possible, encourages an equal division of childcare and household labor between the parties. These two simple proposals for reforming marriage have generated immense interest among marriage advocates, critics, and devotees. The first has already resulted in one major state supreme court decision, declaring the exclusion of gay couples from civil marriage unconstitutional,1 as well as unjust and unwise, and a major backlash, resulting in a growing number of state and local constitutional ballot initiatives, statutory laws, and referenda declaring a traditional definition of marriage to be a part of the state’s foundational law;2 a federal law-the Defense of Marriage Act-that aims to limit the effect of any state decisions extending marriage to include same-sex marriage to the confines of those states;3 a New York State Court of Appeals decision finding no state or federal constitutional right to marry that would extend marriage equality to same-sex couples;4 and a proposed federal constitutional amendment that would explicitly limit marriage to opposite-sex couples.5 Are these two simple reforms that have so transformed our politics truly necessary? Perhaps as important, are they sufficient? Would they leave marriage a more just institution? Do they respond to the criticisms that have been leveled against marriage, and do they retain the value that marriage defenders claim for it?
