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This article examines “the accidental procreation argument,” an argument against same-sex marriage that still has some traction in United States appellate courts. The accidental procreation argument is meant to take the place of one of the central arguments made by states — and almost universally accepted by courts — in the first batch of cases in the United States about same-sex marriage. That original procreation-based argument — now widely acknowledged to be inadequate — posited that marriage is crucially related to procreation; therefore, since same-sex couples cannot procreate, same-sex couples should not be allowed to marry. The accidental procreation argument uses procreation in a different way, by focusing on a specific difference between same-sex couples and different-sex couples: different-sex couples can procreate without intending or planning to do so, while same-sex couples cannot. In other words, insofar as same-sex couples procreate, they must plan to do so, while different-sex couples, in contrast, can “accidentally procreate.” This article traces the origins of this new argument against legal recognition for same-sex relationships, places the argument in the context of today's legal debates, analyzes its strengths and weaknesses, and concludes by demonstrating its inadequacy.

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Chicago-Kent Law Review

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