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Publication Title

Washington University Jurisprudence Review

Abstract

Non-traditional family arrangements are currently denied legal and social recognition as families. This lack of recognition comes from their failure to meet the standard of the prevailing matrimonial-family model. As a result, these families face a very inequitable society that discriminates toward them in every turn. Furthermore, the legal fixation to promote a specific model of the family has produced a very incoherent legal scheme. This article explores whether a more egalitarian society and a more sound legal system may be achieved by extending the protections and benefits of marriage to more groups or, alternatively, whether it would be better to abolish civil marriage in order to achieve such a goal. Instead of following a liberal framework, the article examines the problem from a Neo-Marxist perspective; specifically, Gramsci’s ideas of hegemony and hegemonic contestation, and Luckas’ idea of reification. By doing so, the article unveils two principles that explain why the conception of the family has remained unaltered and non-traditional family arrangements are still not recognized as families. These two concepts are: (1) the hegemonic discourse of family-normativity and (2) the reified idea that family arrangements must be legally regulated. The article argues that if we truly seek that the state recognizes the existence of diverse family arrangements and does not favor one of those arrangements over the others, the most viable way to do so is by unmasking the reified legal regulation of the family as the social construct that it is. The only way to do so is by abolishing civil marriage and eradicating all the marriage proxies that exist in the law. As soon as the state disengages from the practice of defining the family and redirects its regulatory efforts to identify proxies that are truly related to the social goods it intends to promote, we would be on the path of recognizing and granting rights to the multiplicity of family arrangements that exist and the members thereof.

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