Same-Sex Marriage and the 'Reconceiving' of Children

35 Pages Posted: 1 Dec 2014

See all articles by Helen M. Alvare

Helen M. Alvare

George Mason University - Antonin Scalia Law School

Date Written: December 1, 2014


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.

Keywords: biological child rearing, children’s welfare, constitutional family law, duties to children, kinship, parental rights, procreation, same-sex marriage, sense of self, state marriage recognition, Windsor

JEL Classification: J12

Suggested Citation

Alvare, Helen M., Same-Sex Marriage and the 'Reconceiving' of Children (December 1, 2014). Case Western Reserve Law Review, Vol. 64, No. 3, pp. 829-862, 2014, George Mason Law & Economics Research Paper No. 14-64, Available at SSRN:

Helen M. Alvare (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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