For Better and For Better: The Case for Abolishing Civil Marriage
Washington University Jurisprudence Review, Vol. 5, No. 2, p. 189, 2013
69 Pages Posted: 8 Feb 2011 Last revised: 8 May 2014
Date Written: February 5, 2011
I explore in this article whether a more egalitarian society 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. Currently, non-standard family arrangements are denied legal protections and benefits as well as social recognition because their failure to meet the paradigms of the matrimonial-family model. Furthermore, in our fixation with promoting a specific model of the family we have produced a very incoherent legal scheme. Consequently, answering this inquiry requires examining why we still adhere to an unequivocal definition of the family as a bureaucratized, monogamous, sexuated, married couple with children. It also requires examining how as society we could achieve what Professors Alice Ristroph and Melissa Murray have denominated as familial disestablishment: requiring the state to recognize the existence of diverse family arrangements and prohibiting the state from favoring one of those arrangements over the others. Attaining familial disestablishment is vital for addressing the three main problems we presently experience with our current legal regulation of the family.
First, our legal system prevents a large group of people from exploring alternative ways to arrange intimate relationships by signaling and channeling people into a particular arrangement. Second, an inconsistent body of law that does not protect the real interests it claims to promote because it is premised on the marriage proxy, or simply put, on using the institution of marriage as a synonym for family when granting legal rights and benefits Finally, this inconsistent body of regulation has generated profound legal and social inequalities that oppose the basic tenants of our society.
I survey the answers given thus far to these problems by contemporary liberal scholars – such as Martha Nussbaum, Tamara Metz and Jessica Knouse – using the discourse of rights, and conclude that such a theoretical framework is insufficient to encompass the multiple dimensions of familial establishment. These responses that are based on the discourse of rights ignore the use of the marriage proxy, its pernicious effects, and intend only to broaden who is covered under the current established definition of the family. Consequently, they ultimately bring us back to familial establishment and reinstate the same inequality problems we face today.
Thus, I propose moving away from the narrative of rights to the narrative of power; and instead use a Neo-Marxist approach, which is more akin to the nature of the problems with familial establishment. Specifically, I employ Gramsci’s ideas of hegemony and hegemonic contestation, and Luckas’ idea of reification . This framework will help us understand how Family Law and various discourses related to the family have changed while the conception of the family has remained unaltered. It will also help us in comprehending why religious disestablishment has been possible in the United States while family disestablishment has not.
By analyzing the established definition of the family from this perspective, this article draws three conclusions. First, I conclude that our subject of study should be the family-marriage dyad (a social and legal conflation of marriage and family as one unequivocal institution). We should not be talking about marriage and family separately, since our current legal process of granting rights to family arrangements is premised on using marriage as a proxy.
Second, in order to really understand the legal and social ramifications of that dyad, we must acknowledge that there is a hegemonic discourse to which courts, scholars and people in general have been making reference without really naming it or establishing its contours. That hegemonic discourse is family-normativity. Family-normativity attempts to dictate how family relationships should be lived and arranged as well as to signal which affectionate relations are of social importance and which are not. It encompasses the bureaucratization of family relations, the promotion of two-person sexuated relationships, a monogamous ethic, and the establishment of child rearing as essential to the human families.
Finally, the reason why we are not able to move from an unequivocal definition of the family and to familial disestablishment is because the hegemonic discourse of family-normativity has not been contested yet. The reified idea that family arrangements must be legally regulated and the removal of the family from the political realm have precluded that contestation from ensuing.
If we truly seek familial disestablishment, the most viable way to achieve it is by unmasking the reified legal regulation of the family as the social construct that it is, so that family normativity could be actually contested. In order to do so, it is essential to engage in dialectical thinking. The only way to do so is by abolishing civil marriage and eradicating all the marriage proxies that exist in the law. This would bring the family back to the public domain and permit individuals to defy family-normativity. As soon as the state disengages from the practice of defining the family and directs 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. This would eradicate social inequalities and create a more coherent body of law that truly protects the interests it contends to protect.
Keywords: Marriage, Hegemony, Heteronormativity, Family Normativity, Reification
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