“Won't Someone Think of the Children?”: Reproductive Futurism and Same-Sex Marriage in US Courts, 2003-2015

Abstract

In this article, I analyze the state and federal court cases that established same-sex marriage rights in the USA, from Massachusetts in 2003 to the Supreme Court in 2015. Using content analysis, I examine the legal rhetorics deployed in favor of and against same-sex marriage, focusing on how courts interpreted both sides’ appeals to children’s wellbeing. Such appeals represent a political tactic Lee Edelman (2004) terms “reproductive futurism.” Four child-focused arguments routinely appear in these cases: opponents claim that (1) heterosexual marriage provides an optimal environment for childrearing and (2) marriage is designed to incentivize commitment for sexually irresponsible straight couples via procreative channeling; proponents respond that (3) gay and lesbian couples are just as good as straight couples at raising children and (4) gay marriage bans harm same-sex couples’ children by making them second-class citizens. I argue that the latter “children first” positions emerged—in both proponents’ arguments and court rulings—as a response to opponents’ claims and to the structural constraints of the legal system. This narrowed line of argumentation simultaneously paved the way to legal victory while also limiting the rulings’ usefulness for advancing LGBT rights beyond marriage.