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Marriage equality may have rounded the last turn today in its race through the US legal system.

Photo from Flickr Creative Commons by Jamison Wieser

Photo from Flickr Creative Commons by Jamison Wieser

When the 10th Circuit Court of Appeals set up the question in Kitchen v. Herbert this way, there was no possible outcome other than a strong decision affirming the lower court, in favor of a right to marry for same-sex couples:

May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry?

Sure enough, the decision is a thorough trashing of the state of Utah’s defense of its same-sex marriage ban:

Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so. We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.

This is a federal appeals court — higher than the federal courts that have been overturning state laws left and right — and the first to rule that same-sex marriage bans are unconstitutional. After this, it’s on to the Supreme Court. Here are some more highlights from the decision.

The decision states that the Supreme Court’s Windsor decision (which I discussed here) is “not directly controlling, but adds that “the similarity between the claims at issue in Windsor and those asserted by the plaintiffs in this case cannot be ignored.” That is teeing up the Supreme Court’s future decision for Windsor author Justice Kennedy, and confirming the conclusions of many that Scalia was right in his Windsor dissent:

As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

The decision today also explains that extending the right to marry to same-sex couples does not constitute creating a new right, but merely recognizing that the prohibition against arbitrary denial of rights to marriage — which has been expressed in broad terms in the past — applies to same-sex couples as well. For example, the Casey decision explains about Loving v. Virginia (which overturned interracial marriage bans):

[m]arriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia.

That is, Loving and other decisions described the “freedom of choice to marry” broadly enough that it can now be extended without a finding that the Supreme Court intended to extend it to same-sex couples: “the Supreme Court has traditionally described the right to marry in broad terms independent of the persons exercising it.” And they quote from a dissent in a prior case, Hernandez v. Robles: “Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.”

They also address Utah’s specious claim that marriage rights are really about the right to procreation by citing precedents that protect the right not to procreate (e.g., the Eisenstadt and Griswold cases on contraception), and the right of parents to raise their children (not just bear them), as in the Carey decision and others on parenting rights, and decisions protecting the rights of adoptive parents.

On the idea that Utah should be able to ban same-sex marriage because it has an interest in furthering the idea of procreation within marriage (which I discussed here), the decision is dismissive:

Among the myriad types of non-procreative couples, only those Utahns who seek to marry a partner of the same sex are categorically excluded from the institution of marriage. Only same-sex couples, appellants claim, need to be excluded to further the state’s interest in communicating the link between unassisted biological procreation and marriage. As between non-procreative opposite-sex couples and same-sex couples, we can discern no meaningful distinction with respect to appellants’ interest in fostering biological reproduction within marriages. The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” Extending the benefits and protections of a civil society to some but not all similarly situated families violates this critical guarantee.

Interesting here the judges are not arguing about a couple’s right to marry, but rather about an individual’s right to marry someone of the same sex. That’s a harder right to deny.

And on the whole idea that gay marriage threatens straight marriage:

We emphatically agree with the numerous cases decided since Windsor that it is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples.

On the comparison to no-fault divorce, which supposedly undermined marriage generally, an extended riff on hypocrisy:

We cannot accept appellants’ claim that allowing same-sex couples to marry is analogous to a law that permits married couples to divorce. The former causes an increase in the number of married individuals, whereas the latter decreases the number of marriages in a state. … Setting aside the implausibility of the comparison, we observe that Utah has adopted precisely the no-fault divorce regime that appellants decry in their briefing. … Through its no-fault divorce statute, Utah allows a spouse—the bedrock component of the marital unit—to leave his family whenever he wants and for whatever reason moves him. It is difficult to imagine how the State’s refusal to recognize same-sex marriage undercuts in any meaningful way a state message of support for marital constancy given its adoption of a divorce policy that conveys a message of indifference to marital longevity.

Further, on the idea, so revoltingly disgorged by Hawkins and Carroll in the Utah case (as I discussed here), that gay marriage would make straight men love their children less:

We cannot imagine a scenario under which recognizing same-sex marriages would affect the decision of a member of an opposite-sex couple to have a child, to marry or stay married to a partner, or to make personal sacrifices for a child.

And finally, in the category of burying the Regnerus-Wilcox agenda to support with social science the bans on same-sex marriage in the name of children’s wellbeing (here’s the whole history):

We cannot embrace the contention that children raised by opposite-sex parents fare better than children raised by same-sex parents—to the extent appellants continue to press it—in light of their representations to this court. Appellants’ only reasoning in this regard is that there might be advantages in one parenting arrangement that are lacking in the other. On strict scrutiny, an argument based only on pure speculation and conjecture cannot carry the day. Appellants’ tepid defense of their parenting theory further highlights the looseness of the fit between the State’s chosen means and appellants’ asserted end.

I hope this means Regnerus and his ilk have cashed their last expert-witness check in this cause.

For us non-legal types, the writing judges do when they’re defending fundamental rights is surely their most compelling (and in this genre I highly recommend Judge Walker’s 2010 decision on California’s Prop 8). Overall, it’s an eloquent decision, and worth reading.

But, getting ahead of ourselves a little, it’s also worth pointing out that the 10th Circuit decision contributes to the de-radicalizing of the marriage rights movement with this quip:

Plaintiffs seek to enter into legally recognized marriages, with all the concomitant rights and responsibilities enshrined in Utah law. They desire not to redefine the institution but to participate in it.

Right! Wait… what?

 

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Getting beyond how the ‘Factual Feminist’ is wrong about the prevalence of rape

sommers

Christina Sommers

Christina Sommers, who works out of the American Enterprise Institute (along with Brad Wilcox and Charles Murray), thinks the Centers for Disease Control, President Obama, and the feminist establishment are exaggerating how much rape there is. I’m not an expert on measuring rape – and neither is she – but I’ve looked into it enough to say her debunking is basically bunk.

Then: What happens when we go beyond her argument?

Lifetime experience of rape

In a video put out for the American Enterprise Institute, under the misnom de guerre “Factual Feminist,” Sommers quotes Obama as saying, “one in five women will be a victim of rape in their lifetime.” I’m mostly going to focus on this empirical claim.

Obama gets that statistic from the 2010 National Intimate Partner and Sexual Violence Survey, conducted by the CDC (he says it like it’s a projection, but it’s just a cross-sectional lifetime prevalence estimate). Sommers complains that the NIPSVS finds a higher rate of rape than the National Crime Victimization Survey, which she asserts is the gold standard in this area. She says:

By using a non-representative sample, and vaguely-worded questions, the CDC yielded the one-in-five lifetime rate, and the 1.3 million female rape victims per year.

The NIPSVS reported that 18.3% of women had ever been the victim of rape, comprising three (non-exclusive) components: completed forced penetration, attempted forced penetration, or completed alcohol or drug facilitated penetration. Here is their table (click to enlarge):

NIPSVS

Sommers claims the CDC has too broad a definition of rape, including lots of namby-pamby complaints from women brainwashed by the victimhood-obsessed feminist establishment.

So the most important point in response to that is that the lifetime reported rape rate in the NIPSVS is actually pretty low. The CDC’s other major survey, the National Survey of Family Growth, in 2002 found that 22.6% of women in the ages 18-44 had ever been forced to have intercourse (the last time they asked these questions). This is surprising because the NIPSVS measure is broader: it includes attempted rape as well as oral or anal penetration, and penetration by objects other than a man’s penis, including acts performed by women. The NSFG asked only about vaginal intercourse by a man. So the NIPSVS has a broader definition and finds a lower rate of lifetime rape prevalence. Given the difficulties in defining and measuring these experiences, this seems within the realm of reasonable.

Sommers’ only specific complaint about the NIPSVS rape prevalence statistic is that they include alcohol or drug facilitated penetration. To make this point she engages in a misleading rant about sex under the influence of alcohol and drugs, not exactly misstating the NIPSVS method but carefully not describing it accurately. “What about sex while inebriated?” she asks. “Few people would say that sex while intoxicated alone constitutes rape.” Right, and neither does the NIPSVS. The survey asked, “When you were drunk, high, drugged, or passed out and unable to consent, how many people ever…” and then it lists various kinds of penetration. The key phrase there is and unable to consent. They are not saying all drunk or drugged sex is rape.

She also claims that the NIPSVS is unrepresentative because it had a low response rate of about 30%. That’s life in the big city of surveys these days, and they attempted to compensate for it by using a weighting scheme to make the data representative of the national population. It’s not ideal but it’s not terrible, and that just means it should be interpreted cautiously and corroborated – neither Sommers nor I have any reason to believe this contributes to an inflated estimate of rape prevalence (though of course that’s possible).

In summary: If you have to pick a number to put to the lifetime prevalence of rape, I don’t think “one-in-five” is an unreasonable choice.

 What is rape

The NSFG survey, which arrived at a higher lifetime rape rate, combined two sets of responses to reach 22.6% for it’s 18-44 year-old respondents. These questions were in the self-administered portion of the survey due to the sensitivity of the topic. In one part of the survey they asked, simply, “At any time in your life, have you ever been forced by a male to have vaginal intercourse against your will?” In another part they asked a two-part question. First:

Think back to the very first time you had vaginal intercourse with a male. Which would you say comes closest to describing how much you wanted that first vaginal intercourse to happen?

  • I really didn’t want it to happen at the time
  • I had mixed feelings—part of me wanted it to happen at the time and part of me didn’t
  • I really wanted it to happen at the time.

And then, this followup:

Would you say then that this first vaginal intercourse was voluntary or not voluntary, that is, did you choose to have sex of your own free will or not?

If the respondents said it was not voluntary, that counted as ever having forced sex. This is not a criminal definition of rape. Rather, it identifies people who had sex involuntarily — from their perspective. It is understandable that this measure produces higher estimates than the criminal law does.

Naming violence

I think we need a definition of rape that is not the same as the criminal law’s definition, because the law is not intended to make criminal all of the ways that people experience sexual violation or coercion. The routine coercion of sex within unequal marriages, for example, must lie outside the reach of criminal law — or the next thing you know we’d have workers claiming that their employers’ profits constitute theft. In that sense, the definition used by NSFG seems reasonable.

Extending this further, however, we might find that drawing the line between sex and violence, between sex and rape, my not just be difficult, it may the wrong question.

Look back at the NIPSVS. They include “sexual coercion” under the category of “other sexual violence” — other meaning not rising to the level of rape. (To be clear, this is not part of the rape prevalence estimates I discussed above). They offer this definition:

Sexual coercion is defined as unwanted sexual penetration that occurs after a person is pressured in a nonphysical way. In NISVS, sexual coercion refers to unwanted vaginal, oral, or anal sex after being pressured in ways that included being worn down by someone who repeatedly asked for sex or showed they were unhappy; feeling pressured by being lied to, being told promises that were untrue, having someone threaten to end a relationship or spread rumors; and sexual pressure due to someone using their influence or authority.

Sommers is incensed this counts as “violence.” Her voice drips with contempt as she recites the description, at how feminism’s pretty little flowers are upset that somebody lied to them. I don’t share this contempt. But neither would I insist that these forms of coercion be counted as “violence.” Sexual coercion does not have to be defined as violence in order to be important, or bad, or an essential element of many people’s sexual experience.

kittengun

You can’t handle the truth?

The feminist argument for the distinction between sex and violence is partly a defense of “normal” sexual relationships and against the accusation that it is normal sexual relationships that feminists oppose. This is exactly the tone Sommers takes: feminists treat women as passive victims who can’t handle normal relationships — you can’t even get drunk and have sex with your spouse anymore! Arguing with her over the definition of violence is a losing battle. I’ll give up “violence” if you agree that sexual coercion is systematically related to patriarchal power and gender inequality.

Here’s an excerpt from Catharine MacKinnon’s old discussion of rape versus sex (from the 1981 essay, “Sex and Violence,” published in the collection Feminism Unmodified), which influenced my attitude on this question. She said it is…

…potentially cooptive [to formulate the question as] these are issues of violence, not sex: rape is a crime of violence, not sexuality… I hear in the formulation that these issues are violence against women, not sex, that we are in the shadow of Freud, intimidated at being called repressive Victorians. We’re saying we’re oppressed and they say we’re repressed. That is, when we say we’re against rape the immediate response is, “Does that mean you’re against sex?” “Are you attempting to impose neo-Victorian prudery on sexual expression?” … To distinguish ourselves from this, and in reaction to it, we call these abuses violence.

To argue with Sommers about where to draw the line for sexual violence is to inhabit the shadow of Freud, in MacKinnon’s view. Rather than adopt that defensive posture, MacKinnon argued, feminists should own women’s fundamental, non-objective (in the sense of disinterested) position:

We have a deeper critique of what has been done to women’s sexuality and who controls access to it. What we are saying is that sexuality in exactly these normal forms often does violate us. So long as we say that those things are abuses of violence, not sex, we fail to criticize what has been made of sex, what has been done to us through sex, because we leave the line between rape and intercourse … right where it is.

In other words, if feminists argue over whether women’s perception of involuntary sex matches the legal definition, then we lose the ability to explain that unequal sex is systematic rather than deviant. It may not be that one-in-five women has experienced rape according to the definition within criminal law (though that is certainly within the realm of possible). But if that many women have had sex involuntarily, and many more have experienced sexual coercion of various kinds, isn’t that bad enough?

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Michigan Black college completion falters (with consequences)

Yesterday the Supreme Court ruled that Michigan voters have the Constitutional right to ban the state’s government from using race-specific policies. The immediate implication for Michigan, and other states, is for university admissions polices. So now if the state wants to pass a law allowing children of alumni easier admission to the University of Michigan, it’s a simple act of the legislature; but if they want to consider race in their admissions, they will need to amend the state constitution.

The University of Michigan has been at the center of national affirmative action debates for several decades (at least since I arrived there in 1988). I previously reported that court decisions against the state’s affirmative action policy led to a precipitous decline in Black students entering the University in the 2000s, as shown in this graph:

That’s just the University of Michigan, an important school, but only one. (The New York Times has a graphic showing enrollment trends in a series of states with affirmative action bans.) For the whole state of Michigan, Black college graduation rates fell further behind the national average over the last decade. Here is the percent of Black 25-29 year-olds who have completed college, from 1970 to 2012, nationally versus in Michigan alone, for women (left) and men (right):

michigan-black-grad-rates

Source: 1970-2000 Decennial Censuses and 2010-2012 American Community Survey, via IPUMS.

During the 2000s, the national-Michigan gap widened from 2.3 points to 4.1 points for men, and from 3.4 to 4.8 points for women.

I am not expert in the legal arguments over this, so I can’t analyze the decision (here’s one good take). But regardless of whether it’s bad law, I think it’s bad policy.

Yesterday in a tweet I picked on the new, data-heavy news operations run by (from left to right) David Leonhardt (NY Times Upshot), Ezra Klein (Vox), and Nate Silver (Five Thirty Eight) for having very White-looking staff teams:

thenewteams

I don’t know any more about what goes into their hiring decisions than I do about what goes into University of Michigan admission decisions (and I know they have staff beyond these featured writers). I’m sure they all want talented people with a wide range of perspectives and skills. But the outcome in both the media and college situations is bad. It limits the perspectives presented, undermines progress toward racial-ethnic equality, and contributes to the inertia that stymies the potential of future leaders.

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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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