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

20 Pages Posted: 11 May 2017 Last revised: 8 Jun 2017

See all articles by Clifford Rosky

Clifford Rosky

University of Utah S.J. Quinney College of Law

Date Written: January 1, 2016

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

Suggested Citation

Rosky, Clifford, Same Sex Marriage Litigation and Children's Right to Be Queer (January 1, 2016). 22 GLQ 541 (2016); University of Utah College of Law Research Paper No. 211. Available at SSRN: https://ssrn.com/abstract=2965186

Clifford Rosky (Contact Author)

University of Utah S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States
(801) 581-7352 (Phone)

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