Same Sex Marriage Litigation and Children's Right to Be Queer

Abstract

This essay examines how lawyers and judges have framed the question of children’s queerness in litigation over same-sex marriage. First, it argues that in United States v. Windsor and Obergefell v. Hodges, the US Supreme Court invoked the tropes of dignity, injury, and immutability to set the outer limits of sexual liberty for both children and adults. Next, the essay looks back to the early work of queer theorists, legal scholars, and lawyers to unearth a more promising vision of law’s relationship to children’s queerness. By juxtaposing how two judges approached the possibility of the gay child in Utah and California, it develops a claim that has yet to be vindicated — that the US Constitution protects every child’s right to be queer.

Keywords: sexuality, marriage, children, same-sex, LGBT, dignity, queer