Abstract

This Article explores how old arguments in favor of antimiscegenation laws and contemporary arguments in support of same-sex marriages rely on issues related to children to defend restrictions on who has access to the institution of marriage. In particular, the Article focuses on how concerns about children have been deployed to construct and reify essentialized and dualistic understandings of race (in the context of antimiscegenation laws) and of sex/gender (in the context of bans against same-sex marriage). In doing so, it traces the historical roots of antimiscegenation laws with a particular focus on children. The Article also discusses the ways in which states today use children-based arguments to defend the constitutionality of bans against same-sex marriage. The Article ends with a critique of recent state supreme court opinions that have upheld the constitutionality of those bans based on the contention that, for children, being raised by different-sex couples is optimal while being raised by same-sex couples is suboptimal.