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.

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.

What is the logic of marriage denial?

And this should wrap up Homogamy Week here at Family Inequality…

I am confused by the logic in the arguments against extending marriage rights to gay and lesbian couples.

I earlier pointed to an essay I agree with, arguing that denying marriage rights on the basis of a child well-being argument is wrong-headed. And that’s even before we got the excellent review from the American Sociological Association reaffirming that homogamous-couples cause no demonstrable harm to children.

But now on the other side, Mark Regnerus and his colleagues have submitted a stunning brief for the Supreme Court’s upcoming marriage-rights cases. In it they argue that man-woman parents are best for children, but also that there are too many unanswered questions to draw any firm conclusions about child well-being in gay- and lesbian-parent families — so therefore the Defense of Marriage Act and California’s Proposition 8 should be upheld.

Back up

When Regnerus’s awful study came out — purporting to show (but not actually showing) that children of gay and lesbian parents were worse off then those in “intact biological families” — he disavowed any political intent or implications. When he interviewed himself, it went like this:

Q: Is there a political take-home message in the study?

A: No. As I stated in the article, “this study cannot answer political questions about same-sex relationships…”

Q: Come on. You can’t surmise what people will make of this study politically?

A: You know, I don’t think it easily lends itself to one particular answer to any of the politicized questions that are circulating about gay marriage, or parental rights, etc.

And when he wrote in Slate, he offered an ostensibly even-handed interpretation:

The political take-home message of the NFSS study is unclear, however. On the one hand, the instability detected in the NFSS could translate into a call for extending the relative security afforded by marriage to gay and lesbian couples. On the other hand, it may suggest that the household instability that the NFSS reveals is just too common among same-sex couples to take the social gamble of spending significant political and economic capital to esteem and support this new (but tiny) family form while Americans continue to flee the stable, two-parent biological married model, the far more common and accomplished workhorse of the American household, and still—according to the data, at least—the safest place for a kid.

In fact, Regnerus and his defenders were incensed that he was being treated as if his motives were political. And in his own defense he wrote of the original paper: “Some perceive it as a tool for this or that political project, a role it was never designed to fill. It cannot answer political or legal questions…”

That was then. So now to the amicus brief filed by Regnerus and several other social scientists. Their review of the evidence is irrelevant to their argument, because they conclude that we don’t know enough to draw any empirical conclusions. Still,

With so many significant outstanding questions about whether children develop as well in same-sex households as in opposite-sex households, it remains prudent for government to continue to recognize marriage as a union of a man and a woman, thereby promoting what is known to be an ideal environment for raising children. Marriage is the legal means by which children are stably united with their biological mothers and fathers and poised for optimal development. Opposite-sex parenting allows children to benefit from distinctive maternal and paternal contributions. Given these facts, safeguarding marriage is a liberty to be accorded to children at least as much as to their parents.

So man-woman parenting is good, OK. And we don’t know enough to say anything about gay and lesbian parenting causally. Therefore it is “prudent” to deny marriage rights to gay and lesbian couples, because “safeguarding marriage is a liberty to be accorded to children.”

That is, it was right to tax Edith Windsor $600,000 more because her spouse was female. For the children.

Edith Windsor

I really hope Regnerus gets a chance to testify as an expert on all this someday, because I’d love to hear more about this logic under cross examination.

The best they’ve got for DOMA?

The big news last week was the Obama administration’s historic throwing under the bus of the Defense of Marriage Act (DOMA).

The President already had made clear where his heart lies on homogamous marriage rights, and the administration already was undermining the law, which prohibits the federal government from recognizing homogamy as practiced in the states. But the brief they handed the Supreme Court last week in the DOMA case U.S. v. Windsor still broke ground in arguing that laws infringing on the rights of gays and lesbians should be scrutinized as if those groups constitute a minority to be protected — in other words, that the government needs a very good reason to discriminate against them — and that DOMA could not withstand such scrutiny.

But in my catching up on the case, what floored me was the brief by the Bipartisan Legal Advisory Group of the House of Representatives, who are left with the sorry job of defending DOMA sans assistance from Obama. We have known for a while that the intellectual bullpen is getting a little thin on the anti-homogamy side, epitomized by the tossing-out of David Blankenhorn’s claim to expert status in the anti-gay marriage California Proposition 8 case. But I didn’t realize they had slipped this far.

This is the argument that got me: the government has to support straight (heterogamous) marriage — and straight marriage only — because that is the only way to ensure that straight people’s tendency to carelessly produce children doesn’t result in lots of children living on welfare (or worse).

If homogamy becomes legal, who will care for the orphans?

Here is an excerpt:

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. … Particularly in an earlier era when employment opportunities for women were at best limited, the prospect that unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society was a substantial government concern. Thus, the core purpose and defining characteristic of the institution of marriage always has been the creation of a social structure to deal with the inherently procreative nature of the male-female relationship. Specifically, the institution of marriage represents society’s and government’s attempt to encourage current and potential mothers and fathers to establish and maintain close, interdependent, and permanent relationships, for the sake of their children, as well as society at large. It is no exaggeration to say that the institution of marriage was a direct response to the unique tendency of opposite-sex relationships to produce unplanned and unintended offspring.

Although much has changed over the years, the biological fact that opposite-sex relationships have a unique tendency to produce unplanned and unintended offspring has not. While medical advances, and the amendment of adoption laws through the democratic process, have made it possible for same-sex couples to raise children, substantial advance planning is required. Only opposite-sex relationships have the tendency to produce children without such advance planning (indeed, especially without advance planning). Thus, the traditional definition of marriage remains society’s rational response to this unique tendency of opposite-sex relationships. And in light of that understanding of marriage, it is perfectly rational not to define as marriage, or extend the benefits of marriage to, other relationships that, whatever their other similarities, simply do not have the same tendency to produce unplanned and potentially unwanted children.

Is this really where we are, in legal history? Are they really still arguing that in the face of fathers abandoning their bastard children, the state’s response is to shore up marriage? Have they not noticed the millions of children born to straight parents who aren’t married, the decades-long demonization of “deadbeat dads,” the IVF, gay/lesbian couples, adoptions, and countless other family innovations in the last half century?

I’m open to suggestions for why this is anything but laughable as a legal argument against gay and lesbian marriage rights. I suppose you could use this argument against the rights of unmarried people to have children, but why, then, I wonder, did the government go to all that trouble to prevent unmarried people from acquiring birth control? Do they realize that implementing their vision also requires prosecuting adulterers and repealing no-fault divorce?

I expect anti-homogamy arguments to be hateful, or at least mean-spirited. And I recognize that this passage is just one part of a lengthy legal argument that I couldn’t stomach reading further. But this just reinforces my previous conclusion that there’s nothing left to argue over rationally.

Asides

…to my fellow college teachers: How many papers have you graded with unsourced phrases such as, “Government from time immemorial…”, and, “the institution of marriage always has been…” I wouldn’t automatically give such a paper a ‘C’ or worse, but it’s an uphill climb out of failing-grade range from that passage forward. (For real histories of marriage — which belie such ridiculous historical claims about the olden days — I recommend Marriage: A History, by Stephanie Coontz; and Public Vows: A History of Marriage and the Nation, by Nancy Cott.)

…to people who write for law reviews: I’ve been working on the edits of my forthcoming article in the Boston University Law Review, which I had the privilege of writing after presenting at their law school’s conference on The End of Men. I’m super impressed by the detailed editing the piece is getting — for example, they seem to be physically checking books out of the library to verify — and back up — my references. I can’t imagine they would have tolerated such slipshod writing as what the BLAG has produced here.

The Regnerus study goes to court, trailing briefs

The Regnerus study is going to court.

I wrote about the study previously here and here, and 200 researchers signed a letter about it. The claim of the study is that gay fathers and lesbian mothers are bad for children, and the basic critique is that the study doesn’t address that question (and, what it does address, it does poorly).

The paper was rushed into print with fanfare and press releases, just in time for it to be referenced in the case of Golinski v. United States Office of Personnel Management, in which the federal Defense of Marriage Act is being challenged, currently before the Ninth Circuit Court of Appeals. In fact, as Neal Caren pointed out to me, the brief was filed the day after the study was published online, June 11. (On a related DOMA case, here’s my take.)

Karin Golinski (right) with her spouse, Amy Cunninghis.

That reference came in a brief submitted by the American College of Pediatricians (not to be confused with the American Academy of Pediatrics). Taking Regnerus at his word that the study actually measured outcomes associated with “gay fathers” and “lesbian mothers,” they wrote:

A brand new study in the peer-reviewed journal Social Science Research uses a large random national sample to assess these outcomes. The study is based on interviews with 3,000 respondents, 175 of whom were raised by two women and 73 by two men. It looked at “social behaviors, health behaviors, and relationships” comparing child outcomes (as reported by the adult children rather than by those who raised them) among various groups including married biological parents (labeled as IBF for “intact biological family”) and children raised by same-sex couples (labeled LM for lesbian mothers and GF for gay fathers). On the forty outcomes measured, there were significant differences between those in the IBF and LM groups on twenty of those measures (the smaller sample size for fathers did not allow for as many findings of significance). Some of the statistically significant differences where children raised by two women fared worse than children raised by married biological parents included: cohabitation (9% of the IBF and 24% of the LM group), receiving welfare while growing up (17% of the IBF and 69% of the LM group), currently receiving public assistance (10% of the IBF and 38% of the LM group), current employment (49% of the IBF and 26% of the LM group), current unemployment (8% of the IBF and 28% of the LM group), having an affair while married or cohabiting (13% of the IBF and 40% of the LM group), having been touched sexually by a parent or other adult (2% of the IBF and 23% of the LM group), and ever having been forced to have sex against their will (8% of the IBF and 31% of the LM group). In addition, the children raised by two women were significantly less likely to identify as heterosexual (90% of the IBF and 61% of the LM group). Other measures where the children of same-sex couples had significantly greater experience than the children of married biological parents include marijuana use, smoking, being arrested, and numbers of sex partners.

In response, a brief by the American Psychological Association and others offered this correction:

Amicus American College of Pediatricians – not to be confused with amicus herein, the American Academy of Pediatrics – seriously mischaracterizes a recent study (“the Regnerus study”) as having compared children of married heterosexual parents with those “raised by same-sex couples.” Amicus Brief at 6. The Regnerus study placed participants (individuals between the age of 18 and 39) into one of eight categories, six of which were defined by the family structure in which they grew up — e.g., married biological parents, divorced parent, divorced but remarried parent, etc. There was no category for “same-sex couple.” Instead, the final two categories included all participants, regardless of family structure, who believed that at some time between birth and their 18th birthday their mother or their father “ever ha[d] a romantic relationship with someone of the same sex.” Hence the data does not show whether the perceived romantic relationship ever in fact occurred; nor whether the parent self-identified as gay or lesbian; nor whether the same sex relationship was continuous, episodic, or one-time only; nor whether the individual in these categories was actually raised by a homosexual parent (children of gay fathers are often raised by their heterosexual mothers following divorce), much less a parent in a long-term relationship with a same-sex partner. Indeed, most of the participants in these groups spent very little, if any, time being raised by a “same-sex couple.” Hence the Regnerus study sheds no light on the parenting of stable, committed same-sex couples – as Regnerus himself acknowledges – and thus it is gravely misleading to say, as the American College of Pediatricians does (p. 6), that the study involved 175 participants who “were raised by two women and 73 by two men.”

What is an association to do?

Should the American Sociological Association get involved?

Last year there was a spirited debate on the blogs and around the ASA about the ASA’s brief intervening in the Wal-Mart class-action discrimination case. See it at Orgtheory here, here, and here; and at Scatterplot here.

The association can take a minimal approach and simply point out that the Regnerus study doesn’t support the claims it’s carrying here, or it can take a maximal approach and evaluate the research on homogamous-couple parenting, as the APA and other organizations have done. Or it can do nothing.

It seems to be too late to submit something to the Ninth Circuit on the Golinksy case, but if it goes to the U.S. Supreme Court, or when one of the other marriage rights cases rises to this level, the opportunity — or obligation — will arise again.