Searching for Harm: Same-Sex Marriage and the Well-Being of Children

Abstract

For the past two decades, claims related to the welfare and well-being of children have been invoked by those defending same-sex marriage bans. This Article offers a new and fruitful perspective on why courts should seriously question the credibility of these asserted child welfare claims. Many assume that these repeated invocations of child welfare related concerns have remained constant, or at least consistent, over time. A closer examination, however, reveals that while children have remained front and center, the particular proffered interests have continued to mutate over time and that more recent claims are inconsistent or at least in tension with earlier arguments. Drawing upon employment discrimination law, this Article argues that this historical perspective should cause courts to be suspicious of these ever changing rationales for same-sex marriage bans.

Keywords: marriage, lesbian, gay, same-sex, child, welfare, sexual orientation, discrimination, animus, equal protection, pretext, procreation