Tag Archives: law

Michigan same-sex marriage case, entirely unbelievable edition

Sociologists breathed a sigh of relief when U.S. district court judge Bernard Friedman, who was appointed by Ronald Reagan in 1988, ruled that Michigan’s voter-approved ban on same-sex marriage is unconstitutional (here is the decision). What I wish we’d call homogamous marriage commenced a few hours later.

We’re relieved because the social science consensus was put on trial in the case, as the judge allowed researchers to debate whether gay and lesbian parents are bad for kids, to see if any rational basis could be found for a state law that clearly harms gay and lesbian couples. He concluded there was no such basis.

I discussed the case and its anti-equality experts here (Mark Regnerus) and here (Douglas Allen), and the whole history is hashed out on the Regnerus tag. And Judge Friedman seems to have agreed. He concluded of Regnerus, “The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration.” And of the anti-equality experts in general:

The Court was unable to accord the testimony of [Loren] Marks, [Joseph] Price, and Allen any significant weight. … They, along with Regnerus, clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields.

Like the brutal dismissal of non-expert David Blankenhorn in a similar case in California, Friedman’s assessment was simple and fair. In Blankenhorn’s case, he simply wasn’t an expert at all. In the Michigan case, team no-rights simply had no convincing evidence to support their claims. His detailed description of their failure is worth reading.

In this trial, and in the several years we’ve been hashing this out, the good experts have not received nearly as much attention as the charlatans, which is too bad because there were really good. In his summary of the evidence, Judge Friedman offered these evaluations:

David Brodzinsky: “The Court finds Brodzinsky’s testimony to be fully credible and gives it considerable weight.”

Michael Rosenfeld: “The Court finds Rosenfeld’s testimony to be highly credible and gives it great weight.”

Vivek Sankaran: “The Court finds Sankaran’s testimony to be fully credible and gives it great weight.”

Gary Gates: “whom the Court also found to be a highly credible witness.”

Nancy Cott: “The Court finds Cott to be highly credible and accords her testimony great weight”

Loving it

The bad-for-children argument is bad science, bad politics, bad morals, and bad law.

This is not some politically-correct cover-up. I would have been perfectly willing to report results — if I had them — showing that children being raised by gay and lesbian couples had more trouble than those raised by heterogamous couples. Why not? They’re a subordinate group, experiencing all manner of discrimination (much of it completely legal), and for most of history they haven’t even been allowed to marry. Judge Friedman wrote (with reference to Rosenfeld’s study):

Taking the state defendants’ position to its logical conclusion, the empirical evidence at hand should require that only rich, educated, suburban-dwelling, married Asians may marry, to the exclusion of all other heterosexual couples.

In other words, some of my favorite social groups have children who share in their subordinate social status and marginalization. With regard to their right to marry, so what? To make this a rational reason for a state ban, you would have to show not only that it was some inherent quality of their gender that harmed the children, and that the harm was greater than the many other risks we subject children of parents to, but also that allowing same-sex couples to marry would somehow make this worse. Friedman concluded,

There is, in short, no logical connection between banning same-sex marriage and providing children with an ‘optimal environment’ or achieving ‘optimal outcomes.’

Anyway, the legal question we’re heading for here, really, is the legal power of individual states to ban same-sex marriage. That was what the Supreme Court’s Windsor decision (which I wrote about here) didn’t decide. But in that decision, Justice Kennedy signaled SCOTUS’s willingness to take that on, writing that the “states’ interest in defining and regulating the marital relation [is] subject to constitutional guarantees,” a passage Friedman quoted, adding, “These statements are not merely surplusage.”

Not mere surplusage because Kennedy made the remark in the context of the Loving v. Virginia case that overturned mixed-race marriage bans. Like today’s cases moving toward the Supreme Court, Loving eventually came down to whether states had the power to impose unconstitutional limits on marriage. And the defenders of those racist laws used the same last-ditch arguments that Regnerus used this time. The science is unsettled, they said. Here is an excerpt from the state of Virginia’s appeal to SCOTUS*:

If this Court (erroneously, we contend) should undertake such an inquiry [into evidence of a scientific nature tending to support or undermine a legislative determination of the wisdom or desirability (of Virginia’s interracial marriage ban)], it would quickly find itself mired in a veritable Serbonian bog of conflicting scientific opinion upon the effects of interracial marriage, and the desirability of preventing such alliances, from the physical, biological, genetic, anthropological, cultural, psychological and sociological point of view. The available scientific materials are sufficient to support the validity of the challenged Virginia statutes whether the constitutional standard be deemed to require appellants to demonstrate that those statutes are arbitrary, capricious and unreasonable or to require the State to show a compelling interest in the continuation of its policy prohibiting interracial marriages. In such a situation it is the exclusive province of the Legislature of each State to make the determination for its citizens as to the desirability of a policy of permitting or preventing such alliances-a province which the judiciary may not constitutionally invade.

Virginia then cited the science of the day:

The statistical evidence incorporated in this study makes it clear that the ‘odds’ do not favor intermarriages, in that almost two to four times as many intermarriages as intramarriages end in divorce, separation or annulment. This is a highly significant fact. It is objective and utterly free from emotion-inducing factors. It ought, therefore, to be considered and weighed most carefully.

And then they quoted a study: “In the absence of any uniform rule as to consequences of race crosses, it is well to discourage it.” That is Regnerus almost verbatim.

Friedman concluded:

Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA cannot stand.

And with that he teed up the case for the Supreme Court.

Tip it

And with that we can update the tipping point chart (last updated here). Please note this figure has its imitators, but no one else calculates the percentages using the state and national populations for each year!

tippingpoint

Give it till the end of the year to get back on the curve-breaking track.

* Richard Perry LOVING, Et Ux., Appellants, v. VIRGINIA, Appellee., 1967 WL 93641 (U.S.), 49

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The blogger will be heard, Michigan trial edition

I’ve written a few posts about the Federal trial over Michigan’s same-sex marriage ban (a post-trial interview, a rant about economist Douglas Allen, and an early report on Mark Regnerus’s testimony). Now we have the first release of transcripts, available here. There may be more to say about them after I’ve read more, but just for the record, here’s the part where they discussed this blog.

regnerus pencil sketch

This is from the cross examination of sociologist Mark Regenerus by Leslie Cooper, an ACLU attorney. After confirming from Regnerus that it is impossible to do the kind of study he says would be necessary to give the evidence he claims to want before deciding whether same-sex parenting is bad for children, she turns to a general discrediting of Regnerus. One piece of that involved reading Paul Amato’s statement, published on this blog here, provoked by my post expressing disapproval over his apparent decision to serve as a peer reviewer for Regnerus’s Social Science Research paper. In this passage, Regnerus squirms and stalls, and his lawyer objects, hoping never to get to the part where Amato criticizes Regnerus’s politicization of his research.

I have corrected a few typos. The Q’s are Cooper and the A’s are Regnerus; The Court is played by U.S. District Judge Bernard A. Friedman (a 1988 Reagan appointee); Kristin Heyse interjects for the defense (Michigan); I play the part of “the blogger”:

Q Now, are you familiar with a sociologist named Paul Amato?

A Yes.

Q He’s a professor of sociology at Penn State?

A Yes.

Q And you consider Paul Amato to be a well-regarded scholar in family structure studies?

A I do.

Q You consider him to be a level and level-headed scholar?

A Generally speaking.

Q And you consider him to be a scholar who’s right down the middle politically neither liberal, nor conservative?

A He had struck me at one point. I have no idea if that is entirely accurate, but he strikes me as a moderate.

Q And, in fact, you asked Paul Amato to be one of the consultants on your study.

A I did.

Q And he agreed?

A He did.

Q So he served as a consultant?

A Yes.

MS. COOPER: I like to mark a document as an exhibit for identification. It’s Exhibit 54.

MS. HEYSE: Your Honor, I would just ask that we be provided a copy. We have not seen it.

THE COURT: I think counsel has a bunch of copies.

MS. HEYSE: If we could have a few minutes to review?

THE COURT: Sure. Show it to the witness so he can review it also.

MS. HEYSE: Your Honor, I would just note for the record that we did agree to exchange exhibits in advance of the trial and this was not provided to us.

THE COURT: Why was it not provided?

MS. COOPER: This is being used for identification to ask questions, and it was an exhibit that was used at the deposition, they have it.

THE COURT: Do you intend to introduce it?

MS. COOPER: No.

THE COURT: Okay.

MS. HEYSE: Oh, I’m sorry.

THE COURT: It’s only for purposes of use, but not for –

MS. COOPER: Not to admit.

THE COURT: Okay.

BY MS. COOPER:

Q So, Dr. Regnerus, this is a statement Paul Amato wrote about your NFSS Study; is that right?

A The source is a blog. I’m not sure what all of it is verbatim, Paul Amato’s words, and what is –

Q Well, I’ll direct your attention. Thank you for clarifying.

A This is not Paul Amato’s blog.

Q Understood. If you’ll read with me. It says here –

THE COURT: Tell him where you’re reading.

MS. COOPER: I just want to find the right passage.

BY MS. COOPER:

Q If you look at the second paragraph from the top.

A First page?

Q Yes. Second sentence, “I regret that before writing that post” –

A Who wrote that?

Q I’ll clarify. The first three paragraphs in Italics are statements from somebody who wrote the blog, not attributable to Paul Amato.

MS. HEYSE: I’m going to object, your Honor, to the extent this is hearsay.

THE COURT: I’m not sure where she’s going at. The first three were not written by –

MS. COOPER: I’m trying to direct Professor Regnerus to the statement that this blogger says, “There is a statement sent to me by Paul Amato which I agreed to post” and then he posts the statement below.

A And who is he?

THE COURT: Who is the blogger, is that your question?

THE WITNESS: Yes.

MS. COOPER: The blogger’s name is Phil Cohen, I believe. This is something we looked at [in] your deposition.

BY MS. COOPER:

Q Do you not recall identifying it?

A I do, yeah. I just don’t know — I can’t identify on this who wrote this top part.

Q Okay. But the part I want to flag your attention to is in the second paragraph it says — this is not Paul Amato, this is the blogger, “I regret that before” –

MS. HEYSE: Your Honor, I’m going to object to the extent of reading something into the record –

THE COURT: Sustained. The blogger said something and now what’s your question?

MS. COOPER: I don’t really care what the blogger said, I just wanted to direct Professor Regnerus to the statement from Paul Amato that is posted here.

THE COURT: Good.

BY MS. COOPER:

Q That begins, “Thoughts on the Mark Regnerus 2012 Study by Paul Amato.” Do you see that heading in bold?

A Yes.

Q So that’s the beginning of the statement. So I’d like you to turn to page 3 of this statement.

A Are there’s 12 pages to this? I’m only seeing four.

Q This is the first four. I didn’t print the comments to the blog because — I think, in fact, that may have been something that counsel for defendants did not want to include in the exhibit. But either way I did not consider that.

THE COURT: The exhibit is just to ask him questions.

MS. COOPER: It’s just to feature the statement.

BY MS. COOPER:

Q So if you can go to page 3 with me.

A Okay. If you would look at the second paragraph from the bottom, okay, beginning with the second sentence, and read along with me, “Many” –

MS. HEYSE: Your Honor, it’s hearsay and she can’t read it into the record.

MS. COOPER: It’s not for the truth. I want to ask him if he agrees with statements made by one of his own consultants about his study.

THE COURT: For that purpose, you may.

BY MS. COOPER:

Q “Many conservative observers have cited the Regnerus study as if it provided evidence that being raised by gay or lesbian parents is harmful to children. This claim is disingenuous because the study found no such thing. A noteworthy example came from Regnerus himself who signed an amicus brief to the Supreme Court citing his study as evidence against same sex marriage. This is curious because on page 766 in his 2012 article, Regnerus stated that his study was not intended to either affirm or undermine the legal right to same sex marriage. And on page 768 of his response to the commentaries in the same issue, he stated that his data should not be used to press any political program. Given these cautious early statements it is exasperating to see Regnerus later cite his own study as evidence against same sex marriage.”

So, first question about this: Is Professor Amato who is a consultant on your study correct to say that it is disingenuous to claim that the NFSS Study provides evidence that being raised by gay or lesbian parents is harmful to children?

A The question hinges around sort of what does it mean to be raised by, right? And I think we mentioned this a little bit yesterday and it says gay or lesbian parents. My mistake and acronyms notwithstanding I talk about parents who have same sex relationship with no assumptions about their orientation. So when he talks about “being raised by” which implies some degree of time I assume and household presence I assume. But then he goes and uses gay or lesbian as an adjective which I don’t think — I mean, I don’t have data on the orientation, it’s harmful to children. I think the jury is out on this, figuratively speaking. What we need is — the absence raises significant questions about children who grow up in families where a parent has a same sex relationship. What it doesn’t answer his question about orientation, and it didn’t come designed to answer political questions. It came designed to address an intellectual question.

Q Okay. So he is correct in your view that — sorry. He is correct that you said the study was not intended to either affirm or undermine the legal rights of same sex marriage?

A That’s what I wrote in the original study, yes.

Thanks to Straight Grandmother for making this available. The full document is here.

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People who believe in hell are allowed to raise children?

First someone with a sociology PhD refers to a social institution existing “since time immemorial.” Now an economist pronounces on the eternal destination of homosexuals. What kind of expert witness operation are they running over there in Michigan?

The economist is Douglas W. Allen, testifying in a case over the challenge to Michigan’s same-sex marriage (let’s call it homogamy) ban. Allen recently conducted a study claiming to show that children of gay and lesbian parents in Canada are less likely to succeed in school; a study that, in my expert opinion, is worthless.

The plaintiff’s lawyer asked, and Allen answered:

Q: Is it accurate that you believe the consequence of engaging in homosexual acts is a separation from God and eternal damnation? … In other words, they’re going to hell?

A: Without repentance, yes.

This is just a repetition of an exchange during Allen’s deposition for the trial:

Q: What are the consequences of the sin of engaging in homosexual acts according to your religious beliefs?

A: The consequences of those sins would be the same as the consequences of any sin which is just a separation from God.

Q: He who is separated from God is condemned according to your religious beliefs; isn’t that correct?

A: Eventually.

Q: Okay. And being condemned means what, Professor?

A: Means eternal separation from God.

Q: In other words, going to hell; isn’t that correct? [an objection about leading the witness] You started to nod your head yes. Is the answer correct?

A: Yes.

Photo from Flickr Creative Commons by Christian Terboven

Photo from Flickr Creative Commons by Christian Terboven

A couple of thoughts on this. First, just thank God at how far we have come from the horror of theocratic society (however far that is). This claim by Allen was the news from the day in court. Not because gays and lesbians are actually going to burn in hell, but because someone said so in polite company. Which makes him a despicable person. If there was even the slightest shred of possibility that gays and lesbians would actually spend eternity suffering in some awful way as a result of the kind of sex they had in life, that would be so much worse than anything else at stake in this trial that the mundane legal proceedings would be pointless. What could matter more?

This brings me to the second point: People who believe this stuff are allowed to raise children? And teach it to them? Allen’s polite euphemism — “separation from God” — is the modern Evangelical way of saying “burn in hell.” Nothing could be worse. So if you are unfortunate enough to be raised by such a person, you have to either know that your father is a crazy, malicious liar (which is traumatic for a child to think about its father), or you have to actually believe this horror story of eternal suffering as a result of “any sin” not repented. Holy sh*t. And on his website Allen brags that he’s been teaching Sunday school for decades.

And we’re arguing about the grade point average of students raised by two men or two women? (Which, again, Allen’s study said nothing of value about).

This reminds me of the kerfuffle over Richard Dawkins’ claim that being indoctrinated into believing in hell was as traumatic — or more traumatic — for some Catholic children as it was to suffer “the temporary embarrassment of mild physical abuse” at the hands of priests. Although being provocative (and it was an off-the-cuff remark, the first time), I don’t believe Dawkins was minimizing sexual abuse when he said that; rather, he was calling out the severe trauma experienced by children who were raised on the literal existence of hell. There is no need to compare one trauma versus another to make either Dawkins or pedophile priests look bad — it’s enough to acknowledge that a lot of children suffer both ways. That’s important, because it means crazy hell-teachers may be harming children even when they’re not raping them (which of course they usually aren’t).

So, sure. Let’s have a whole trial about whether gay and lesbian parents are bad for children. And let’s allow someone like Allen to take the stand as an expert witness. And let’s allow any straight parent (or gay parent, for that matter) to shame their children to bed each night on tales of horror and eternal suffering. But if, after all that, we refuse to let gay and lesbian couples be married parents — that would be disappointing.

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Since time immemorial, Regnerus on marriage edition

Objection: Speaking outside his expertise.

Since time immemorial, those in the throes of uncritical thought (and often facing last-minute term-paper deadlines) have illustrated their lack of appreciation for social and historical context by using the phrase “since time immemorial” to describe things that have actually changed a lot.

This phrase usually proves itself wrong, as “immemorial” literally means “not remembered” (the OED says, “ancient beyond memory or record”), which raises the question: How do you know? Of course, some things really have existed since time immemorial, but this is not a useful concept for describing elements of human society. If it’s part of society, it has a history: it has changed, and that change is probably important or you wouldn’t be talking about it in the first paragraph of your term paper.

For example, human sexual reproduction has existed since time immemorial, but who cares? On the other hand, things like “parenting” and “sibling rivalry” may have existed since time immemorial, but what matters now is the how they are conceived and acted upon socially.

Photo by Letta Page, from Flickr Creative Commons

Photo by Letta Page, from Flickr Creative Commons

Term papers immemorial

If you shop for term papers — which you should never do — you will find “since time immemorial” used a lot, because it’s the kind of weak shortcut to profundity that some students use to puff up their papers at the last minute. Here are some examples from term paper websites (no links provided, sorry!):

  • Music is ubiquitous and has existed since time immemorial.
  • Since time immemorial, the question, “What is a leader, or what makes a leader?” has been asked.
  • Since time immemorial, the people have been able to believe what they wanted especially when it came to religious beliefs
  • Pluralism is a crucial characteristic of the Chinese religion since time immemorial.
  • Since time immemorial, Saudi Arabia has been an essential stake of the Arab world
  • Since time immemorial land belonged to the wealthy magnates who used it in the agricultural purposes and hired peasants to cultivate and work there.

You get the idea: Obviously, none of these things has existed since time immemorial. So if you use one of these papers, save yourself the instructor’s eye roll and delete that phrase.

How much does Regnerus charge for a term paper?

And so it is with “marriage.” Testifying at trial in the Michigan case over the Constitutionality of the state’s ban on same-sex marriage, Mark Regnerus joined the dying argument that such marriage (let’s call it homogamy) is bad for kids. Because the evidence does not exist, he and others have fallen back on the idea that change might be bad, so the state should not allow new kinds of marriage.

In his testimony as an expert witness (well reported by Steve Friess at Al Jazeera America), Regnerus faced ACLU attorney Leslie Cooper, who extracted the concession that he doesn’t know whether gay marriage is really bad because there isn’t enough science on the question yet.

“So,” Cooper asked, according to Friess, “if a nationally representative, large-scale longitudinal study is never done because it’s too expensive, is it your opinion that same-sex people should never be allowed to marry?” Regnerus had no answer to that, but he went on to argue (whine, really), both that we need more research, and that marriage equality should wait for it.

It is intellectually frustrating to see social science close off the debate on this by claiming it’s settled when we haven’t even collected the ideal kind of data yet. … Let’s get out there and get some more before we make wide-scale changes in an institution that has served us since time immemorial.

I don’t know if you’re allowed to object to an expert making things up, but it seems to me that, by the definition above, a sociologist can’t testify about what has existed since before we knew what existed. Anyway, in addition to this just being a ridiculous statement (who is “us,” anyway?) — which by itself would cost you half a grade in a lot of sociology courses – it’s especially embarrassing coming after the eloquent testimony of an actual expert on marriage history, Nancy Cott (author of Public Vows: A History of Marriage and the Nation).

Anyway, it’s hard to believe this argument will get past any reasonable judge. And it seems even less likely to impress Supreme Court swing-voter Anthony Kennedy, who wrote in his decision in DOMA last year that marriage denial “humiliates tens of thousands of children” for no compelling reason.

Slipped memory update, March 22: When I wrote this post I forgot that the House Republicans, in their failed defense of DOMA, had also used used “time immemorial” about marriage, which I discussed here:

The link between procreation and marriage itself reflects a unique social difficulty with opposite-sex couples that is not present with same-sex couples — namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies. Government from time immemorial has had an interest in having such unintended and unplanned offspring raised in a stable structure that improves their chances of success in life and avoids having them become a burden on society.

I still can’t get over what a ridiculous case for banning same-sex marriage that is.

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‘Gay marriage hurts kids,’ zombie edition

Last summer I wrote, “The Supreme Court Kills the ‘Gay Marriage Is Bad for Kids’ Argument.” But now comes this in the New York Times: “Opponents of Same-Sex Marriage Take Bad-for-Children Argument to Court.” So I guess it’s undead, at least long enough to pay a few more expert witness fees.

The NYTimes story covers their approach, which I can’t imagine will get past Anthony Kennedy at the Supreme Court, who has made it clear which direction the harm runs. He wrote in the decision last summer that, under the Defense of Marriage Act,  “same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways,” which “humiliates tens of thousands of children now being raised by same-sex couples.”

Maze update

Anyway, today’s story leads us back to the Regnerus affairIn a 2010 email (described here) — one that presumably taught the young Mark Regnerus not to put everything in his university emails, the one that would definitively expose that Brad Wilcox lied about his role in the study — Regnerus wrote to Wilcox:

I would like, at some point, to get more feedback from Luis and Maggie about the ‘boundaries’ around this project, not just costs but also their optimal timelines (for the coalition meeting, the data collection, etc.), and their hopes for what emerges from this project, including the early report we discussed in DC.

I knew that referred to Luis Tellez from the Witherspoon Institute, but I couldn’t be sure that “Maggie” was Maggie Gallagher. But it now appears from expert deposition in the upcoming Michigan trial (from David Allen here, and Joe Price here) that the DC meeting was organized by Heritage Foundation staff, who paid for the participants’ travel expenses. And it included Gallagher, David Blankenhorn, Wilcox and Regnerus. This is not surprising, but it’s important, because it puts those experts, who went on to produce research for the cause, in a meeting organized for the purpose of developing the legal case against gay marriage. This could be relevant to their status as expert witnesses, but it’s also relevant to the politics-of-science aspect of this whole thing.

So we can update the Regnerus affair maze, adding Gallagher and Heritage (now I’m out of spots):

regenerus-affair-maze-updated

My opinion

In case it’s not obvious, I would like to express this opinion: honest social scientists do not combine these activities: (1) secret meetings with partisan activist groups to raise money and set political agendas for their research; and, (2) omitting mention of those associations later. If Regnerus, Wilcox, Allen, and Price, had included acknowledgements in their publications that described these associations, then they would be just like anyone else who does research on subjects on which they have expressed opinions publicly: potentially legitimate but subject to closer scrutiny (which should include editors not including people from the same group as reviewers). Failure to disclose this in the publication process is dishonesty.

Funny aside: just the other day I used the NYTimes‘ habit of quoting Andrew Cherlin on family trends as an example of the paper’s narrow reach into the deep bench of publicly engaged sociologists. And here he is again, quoted making the well-known observation that, “The overwhelming evidence so far is that there’s not much difference between children raised by heterosexual or same-sex parents.” What’s disappointing is that he serves as the story’s voice above the fray — the expert who is “not involved in the case” — when they have the American Sociological Association’s report making the same argument with what should be more heft toward the end of the story.

Tell it like it’s not addendum

This issue of the political agenda behind the research has been raised as a possible reason to disqualify the anti-equality expert witnesses. To that end, apparently, the Brigham Young economist Joseph Price took a grant from the Witherspoon Institute off his CV — but not before the plaintiff’s counsel saw it, leading to this funny exchange during his deposition (at tiny-page 15 here; pointed out to me by Neal Caren):

price-lieThis justification, that the grant “doesn’t really fit the category of a grant in the same way others do,” as a reason to completely take it off your CV, is somewhere between highly unusual and just plain ludicrous.

 

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This is what Anthony Kennedy was talking about

From USA Today Today:

Utah Gov. Gary Herbert announced Wednesday that the state will not recognize the 1,000-plus same-sex marriages performed in the state since Dec. 20, when a U.S. district judge ruled that the state’s ban on gay marriage violated gay and lesbian couples’ constitutional rights. ‘The original laws governing marriage in Utah return to effect pending final resolution by the courts,’ the governor’s office said in a memo issued to his cabinet.

herbert-kennedy

Gov. Herbert, Justice Kennedy

I’m sure Supreme Court Justice Anthony Kennedy, the possible swing vote on the case-to-come concerning the constitutionality of homogamous marriage, is above an emotional reaction to this kind of inhumanity. But it does seem to fall under the area of his concern in last summer’s Defense of Marriage Act decision. This is from my post that day:

When it overturned the federal Defense of Marriage Act, the Supreme Court didn’t say gay and lesbian couples have a right to marry. But the decision established that taking away the benefits of such marriages–if they are granted by states–does unjustified harm to those couples. Under DOMA, wrote Kennedy, “same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways,” which he went on to list in detail–from healthcare and bankruptcy protection to the right to be buried in veterans’ cemeteries.

One of the most important aspects of the decision is what it says about the children of same-sex couples. The defenders of DOMA tried to argue that same-sex marriage is bad for children. But the majority accepted Justice Kennedy’s argument (which he raised during oral arguments) that denying marriage hurts the children of these couples. DOMA, wrote Kennedy, “humiliates tens of thousands of children now being raised by same-sex couples.”

As I wrote the other day, the government of Utah and its marriage prohibition-promotion allies argue that their denial will lead to more children raised in “opposite-sex” marriage. If it doesn’t, and soon, they may be looking at a net loss of marriages as a result of their pro-marriage policy.

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State of Utah falsely claims same-sex marriage ban makes married, man-woman parenting more likely

This hasn’t been peer-reviewed, but it’s pretty simple, and I will give the results, data, and code to anyone who wants it. Also, ask me about my low-low expert witness rates ($0 per hour + expenses for federal same-sex marriage cases). If you know the Utah lawyers and they’re looking for this kind of thing, pass it on!

The State of Utah’s “Application to Stay Judgment Pending Appeal,” to stop same-sex marriage from continuing while they appeal their most recent loss, has nothing new to offer, legally. And the social science claims they make are by now a familiar patter of discredited blather, featuring the writing of Regnerus, Wilcox, Blankenhorn, and Allen (follow the links for debunking).

But I either never noticed or never thought about one of their stranger claims, which I felt compelled to debunk. They wrote (excerpting):

A final reason to believe there is a strong likelihood this Court will ultimately invalidate the district court’s injunction is the large and growing body of social science research contradicting the central premise of the district court’s due process and equal protection holdings: i.e., its conclusion (Decision at 2) that there is “no rational reason”—much less any compelling reason—for restricting marriage to opposite-sex couples. That research … confirms … (b) that limiting the definition of marriage to man-woman unions, though it cannot guarantee that outcome, substantially increases the likelihood that children will be raised in such an arrangement. (p. 14)

And then again:

[B]y holding up and encouraging man-woman unions as the preferred arrangement in which to raise children, the State can increase the likelihood that any given child will in fact be raised in such an arrangement. … [T]he district court ignored this fundamental reality. … [p. 18] … By contrast, a State that allows same-gender marriage necessarily loses much of its ability to encourage gender complementarity as the preferred parenting arrangement. And it thereby substantially increases the likelihood that any given child will be raised without the everyday influence of his or her biological mother and father—indeed, without the everyday influence of a father or a mother at all. (p. 17)

Wait a minute. Are they claiming that banning same-sex marriage actually results in more children being raised by married, man-woman couples? Unless you make heterogamous marriage and childbearing compulsory, this doesn’t seem like a sure bet. In fact, now that we have so many people living under the same-sex marriage regime, we can start to investigate this.

Does banning gay marriage work to put kids under heterogamously-married roofs?

Seven states plus the District of Columbia permitted legal same-sex marriage by 2012: Washington, New York, New Hampshire, D.C., Iowa, Vermont, Connecticut, and Massachusetts, which led the way in 2004. And as of very recently we have the 2012 American Community Survey, with ample sample size to assess family structure for every state in every year since 2004.

This analysis is very simple and not a causal analysis of family structure. I am simply testing the assertion by the State of Utah that banning gay marriage “can increase the likelihood that any given child will in fact be raised in such an arrangement.” I do this in a very simple way, and then a pretty simple way.

First, just the raw trends. This shows very simply that children are more likely to live with married parents in states that permit same-sex marriage (red lines) than in states that don’t (blue lines):

ssm-married-kidsI did this both for age 0, to capture marital status at birth, and for all children ages 0-14, to get closer to the concept of “raised.” Here is a table showing the numbers, with the differences calculated, showing exactly how much more likely children are to live with married parents if their states permit same-sex marriage:

ssm-married-kids-table

Whatever the reason, then, children in states that permit same-sex marriage have been 2% – 10% more likely to live with married parents over the last decade. (The same-sex couples themselves do not contribute to this pattern, because the public-use ACS files do not yet count them as married.)

Two potential problems with that as the analysis. First, maybe those states were just more pro-marriage places in the first place (the obvious inference to draw from the fact that they permit same-sex marriage). And second, the declining tendency of children to live with married parents nation-wide might be driving this, as more states join the same-sex marriage pool over time.

To fix these problems, I conducted a simple fixed-effects logistic regression, entering dummy variables for every state and every year into a model predicting whether children live with married parents or not. The only other variable indicates whether the child lives in a state that permits same-sex marriage. By holding constant each state’s average rate, and the national trend over time, the model isolates the statistical association with same-sex marriage legal status. This asks, in essence, whether states that change from not-legal same-sex marriage to legal same-sex marriage have lower or higher odds of their children living with married parents after the change.

Here are the results:

ssm-married-kids-logit

The odds ratios for the same-sex marriage variable are above 1.0, indicating the children in same-sex marriage states are more likely to live with married parents. The effect is not statistically significant from zero at conventional levels for infants, but it is for all children ages 0-14. Again, for whatever reason — it’s not important for this — children are more likely to live with married parents if they live in states where same-sex marriage is legal. All that matters is that the State of Utah’s claim is refuted.

Summarizing all the experience we have data for so far — 34 state-years of data — there is no evidence that allowing same-sex marriage reduces the likelihood that children will be born to or live with married, man-woman parents. If that’s your goal, this policy doesn’t seem to work. (I don’t share that goal, and I especially don’t think it’s relevant to determining legal access to marriage, but they brought it up.)

I’m not the first one to think of this, of course. An earlier analysis in PLoS One found no evidence that same-sex marriage affects the rate of different-sex marriage. That analysis was of marriage, and its most recent data were from 2009. I haven’t seen anyone else do this for children’s living arrangements, and the 2012 only recently became available. If Gary Gates or someone else has done this, please let me know.

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Homogamy tipping point: breaking the curve edition

Before the Supreme Court added the behemoth California to the list, I said homogamous marriage was spreading exponentially, in a bona fide tipping-point shape  (not to be confused with the bogus tipping points all over the news). With today’s update (adding Utah and four other states), the trend is breaking the exponential curve.

homogamy-tipping-pointIf you fit an exponential curve to the dots, it only gets up to 20% for 2013.

(Note this chart has imitators out there, but I haven’t seen any that calculates the population percentage using the U.S. population as it changed from year to year. Note also it hardly matters.)

Note: On the term homogamy.

 

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Gender devaluation, in one comparison

You can divide the reasons women earn less money than men do, on average, into three categories, in declining order or importance:

  1. Working fewer years, weeks, and hours
  2. Working in different occupations
  3. Being paid less in the same occupations

The first has to do with families and children. That has a large voluntary, or at least kind of voluntary, component (or it reflects hiring discrimination, which is hard to prove, prevent or punish under our legal regime). The third is illegal and sometimes actionable, as in the Lilly Ledbetter situation.

The second — occupational segregation — is a difficult hybrid. Segregation reflects both discrimination in hiring and promotions, and socialization-related choices, including in education. And it is wrapped up with divisions that may even be relatively harmless in a separate-but-equal kind of way — that is, not directly harmful, but contributing to the categorical divisions that make gender inequality more intractable. But the different pay in female- versus male-dominated occupations is a problem, well documented (see here and here) but virtually impossible to address under current law.

nurse-truck

Today’s example: nursing assistants versus light truck drivers

The government’s O*Net job classification system provides detailed descriptions of the qualifications, skills, and conditions of hundreds of occupations. The comparison between nursing assistants (1.5 million workers) and light truck or delivery services drivers (.9 million) is instructive for the question of gender composition. Using the 2009-2011 American Community Survey, I figure nursing assistants are 88% female, compared with 6% female for the light truck drivers. Here are some other facts:

  • The nursing assistants are better educated on average, with only 50% having no education beyond high school, compared with 67% of the light truck drivers.
  • But in terms of job skills, they are both in the O*Net “Job Zone Two,” with 3 months to 1 year of training “required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.”
  • The O*Net reported median wage for 2012 was $11.74 for nursing assistants, compared with $14.13 for light truck drivers, so nursing assistants earn 83% of light truck drivers’ hourly earnings.

To make a stricter apples-to-apples comparison, I took those workers from the two occupations who fit these narrow criteria in 2009-2011:

  • Age 20-29
  • High school graduate with no further education
  • Employed 50-52 weeks in the previous year, with usual hours of exactly 40 per week
  • Never married, no children

This gave me 748 light truck drivers and 693 nursing assistants, with median annual earnings of $22,564 and $20,000, respectively — the light truck drivers earn 13% more. Why?

The typical argument for heavy truck drivers’ higher pay is that they spend a lot of time on the road away from home. But that’s not the case with the light truck drivers. They are more likely to work longer hours, but I restricted this comparison to 40-hour workers only. Here are comparisons of the O*Net database scores for abilities and conditions of the two jobs. For each I calculated score differences, so the qualities with bars above zero have higher scores for nursing assistants and those with bars below zero have higher scores for light truck drivers. See what you think (click to enlarge the figures). My comments are below.

abilities

context

You can stare at these lists and see which skills should be rewarded more, or which conditions compensated more. Or you could derive some formula based on the pay of the hundreds of occupations, to see which skills or conditions “the market” values more. But you will not be able to divine a fair market value for these differences that doesn’t have gender composition already baked into it. And “the market” doesn’t make this comparison directly, because nursing assistants and light truck drivers generally don’t work for the same employers or hire from the same labor pools. You might see reasons in these lists for why women choose one occupation and men choose the other, but I don’t see how that fairly leads to a pay difference.

The only solution I know of to the problem of unequal pay according to gender composition is government wage scales according to a “comparable worth” scheme (the subject of old books by Joan Acker and Paula England, but not high on the current political agenda). Under our current legal regime no one woman, or class of women, can successfully bring a suit to challenge this disparity.* That means occupational integration might be the best way to break this down.

*One exception to this is the public sector in Minnesota, in which local jurisdictions have their pay structures reviewed at regular intervals for evidence of gender bias, based on the required conditions and abilities of their jobs (as reported by me by Patricia Tanji of the Pay Equity Coalition of Minnesota).

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Who’s Afraid of Young Black Men?

Originally posted at TheAtlantic.com.

How gender did (and didn’t) affect the verdict in the George Zimmerman trial

cohen_trayvonphoto_thumb.jpg
AP Images

In conversation, I keep accidentally referring to Zimmerman’s defense lawyers as “the prosecution.” Not surprising, because the defense of George Zimmerman was only a defense in the technical sense of the law. Substantively, it was a prosecutionof Trayvon Martin. And in making the case that Martin was guilty in his own murder, Zimmerman’s lawyers had the burden of proof on their side, as the state had to prove beyond a reasonable doubt that Martin wasn’t a violent criminal.

This raises the question, who’s afraid of young black men? Zimmerman’s lawyers took the not-too-risky approach of assuming that white women are (the jury was six women, described by the New York Times as five white and one Latina).

“This is the person who … attacked George Zimmerman,” defense attorney MarkO’Mara said in his closing argument, holding up two pictures of Trayvon Martin, one of which showed him shirtless and looking down at the camera with a deadpan expression. He held that shirtless one up right in front of the jury for almost three minutes. “Nice kid, actually,” he said, with feigned sincerity.

cohen_trayvon_post.jpg
Joe Burbank/AP Images

Going into the trial, according to one kind of analysis the female jurors were supposed to have more negative views about Zimmerman’s vigilante behavior, and be more sympathetic over the loss of the child Trayvon. As a former prosecutorput it:

With the jury being all women, the defense may have a difficult time having the jurors truly understand their defense, that George Zimmerman was truly in fear for his life. Women are gentler than men by nature and don’t have the instinct to confront trouble head-on.

But was the jury’s race, or their gender, the issue? O’Mara’s approach suggests he thought it was the intersection of the two: White women could be convinced that a young black man was dangerous.

Race and Gender
Racial biases are well documented. With regard to crime, for example, one recent controlled experiment using a video game simulation found that white college students were most likely to accidentally fire at an unarmed suspect who was a black male — and most likely to mistakenly hold fire against armed white females. More abstractly, people generally overestimate the risk of criminal victimization they face, but whites are more likely to do so when they live in areas with more black residents.

The difference in racial attitudes between white men and women are limited. One analysis by prominent experts in racial attitudes concluded that “gender differences in racial attitudes are small, inconsistent, and limited mostly to attitudes on racial policy.” However, some researchers have found white men more prone than women to accepting racist stereotypes about blacks, and the General Social Survey in 2002 found that white women were much more likely than men to describe their feelings toward African Americans positively. (In 2012, a minority of both white men and white women voted for Obama, although white men were more overwhelmingly in the Romney camp.)

What about juries? The evidence for racial bias over many studies is quite strong. For example, one 2012 study found that in two Florida counties having all-white jury pool – that is, the people from which the jury will be chosen – increased the chance that a black defendant would be convicted. Since the jury pool is randomly selected from eligible citizens, unaltered by lawyers’ selections or disqualifications, the study has a clean test of the race effect. But I can’t find any on the combined influence of race and gender.

The classical way of framing the question is whether white women’s group identity as whites is strong enough to overcome their gender-socialized overall “niceness” when it comes to attitudes toward minority groups. But Zimmerman’s lawyers appeared to be invoking a very specific American story: white women’s fear of black male aggression. Of course the “victim” in their story was Zimmerman, but as he lingered over the shirtless photo, O’Mara was tempting the women on the jury to put themselves in Zimmerman’s fearful shoes.

Group Threat
But do white women really feel threatened by black men? That’s an old, blood-stained debate. In the 20th century there were 455 American men (legally) executed for rape, and 89 percent of them were black–mostly accused of raping white women. That was just the legal tip of Jim Crow’s lynching iceberg, partly driven by white men asserting ownership over white women in the name of protection. But the image of course lives on.

In the specific realm of U.S. racial psychology, one of the less optimistic, but most reliable, findings is that whites who live in places with larger black populations are on average express more racism (here’s a recent confirmation). Most analysts attribute that to some sense of group threat–economic, political, or violent–experienced by the dominant majority.

cohen_racegraph.png

Maybe white women’s greater overestimation of the black population is not an indicator of perceived threat. In the same survey white women were no more likely than white men to describe blacks as “prone to violence.” But that’s a question with an obvious right or wrong answer. Anyway, whether women feel more threatened than men do isn’t the issue, since the jury was all women. The question is whether the perceived threat was salient enough that the defense could manipulate it.

I don’t know what was in the hearts and minds of the jurors in this case, of course. Being on a jury is not like filling out a survey or playing a video game. But however much we elevate the rational elements in the system, of course emotion also plays a role. Whether they were right or not, Zimmerman’s lawyers clearly thought there was a vein of fear of black men inside the jurors’ psyches, waiting to be mined.

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