Same-Sex Marriage and the "Reconceiving" of Children

By Alvare, Helen M. | Case Western Reserve Law Review, Spring 2014 | Go to article overview

Same-Sex Marriage and the "Reconceiving" of Children


Alvare, Helen M., Case Western Reserve Law Review


ABSTRACT

Historically, the U.S. Supreme Court has consistently highlighted the importance of procreation in its consideration of marriage in constitutional cases. Recently, however, litigants seeking same-sex marriage and judicial decisions sympathetic to their arguments have ignored the language and holdings of this long-standing body of law. Instead, they have focused nearly entirely upon adults' interests in state marriage recognition. To the extent children are mentioned, it is for the purpose of speculating that children living within same-sex marriage households might indirectly benefit from recognition of adults' rights to same-sex marriage.

This Article discusses the importance of states' interests in procreation and child rearing and the Supreme Court's constant recognition of those interests. Ultimately, this Article argues that judicial decisions recognizing same-sex marriage have marginalized, or "reconceived," the role of children in marriage, in several important ways, all to the marked disadvantage of children.

CONTENTS

INTRODUCTION
I.   THE DISAPPEARANCE OF CHILDREN AND KINSHIP FROM THE
     GOODS OF MARRIAGE
     A. Procreation
        1. Supreme Court Decisions Linking Marriage with Procreation
        2. Same-Sex Marriage Proponents Divorce Marriage and
           Procreation
        3. Judicial Decisions Minimizing the States' Interest in
           Procreation
           a. Pre-Windsor State Court Opinions
           b. Windsor
     B. Kinship and Biological Child Rearing
II.  RIGHTS BEFORE DUTIES? STATE BEFORE PARENTS?
     A. Parents' Duties to Children
     B. Same-Sex Marriage as an Indirect Benefit to Children?
III. ENDING THE INQUIRY ABOUT CHILDREN'S WELFARE AND SAME-
     SEX MARRIAGE JUST AS IT IS BEGINNING IN EARNEST
     A. Examples of the Incomplete Inquiry
     B. Altering Children's Existential Situation and Sense of Self
CONCLUSION

INTRODUCTION

This Article argues that judicial opinions creating same-sex marriage rights "reconceive" constitutional family law's longstanding and basic grasp of the relationships between marriage and children and between parents and children. Any observer might perceive the most obvious elements of this shift: the birth of children is no longer an important part of states' interests in recognizing marriage. Moreover, states do not express a preference for facilitating or preserving children's embeddedness within a family composed of their kin--biological mother or father or siblings or extended family. These positions represent dramatic reversals of 120 years of constitutional family law decisions issuing from the United States Supreme Court.

Read carefully, however, both state and federal same-sex marriage opinions also communicate a great deal more concerning the situation and future of children within both society and family law. They perceptibly tilt the balance of responsibility for children away from the adults who are rearing them, in favor of the state and society. Further, by blessing and paving the way for more child rearing in homes led by same-sex couples, they shift the meaning of children to themselves and to others, away from notions like "gift" and "kin," and toward notions such as "choice" or "object of desire." They also shift the environment for children away from relationship and toward separation. This Article addresses each of these shifts as follows.

Part I presents representative same-sex marriage cases' reversal of the U.S. Supreme Court's longstanding position that state marriage recognition is importantly associated with procreation. It also considers such cases' ignoring or disclaiming states' interests in the goods that married, biological parents bring to their children.

Part II discusses the shift in the paradigm heretofore governing adults' legal rights respecting children. In prior constitutional family law, when adults sought rights in conflict with customs or laws designed to protect children's best interests, the Supreme Court asked first if the adults' duties to children would be fulfilled by the adults' exercise of their claimed rights. …

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