Marriage equality is official now that it’s in The Family textbook

Well, actually, it’s in a special addendum to the textbook that W. W. Norton is just releasing.

The book I wrote, The Family: Diversity, Inequality, and Social Change, hit the streets a year ago today. Marriage equality plays a significant part in the story, much larger than the proportion of the population that is directly affected by the changing law. That’s because of the high-stakes nature of the debate for so many people, and because of its symbolic acceptance of rising family diversity — the main theme of the book.

So when the law suddenly, and fundamentally, changed this summer, we decided we needed an update for instructors teaching this fall. The three-page supplement reviews the political and legal events leading up to the June 26 Obergefell decision, and the logic of the legal questions addressed — along with a little context on the place of marriage equality in the story of family change. I hope it’s helpful for you.

The update is now available on the Norton website, here, and on my teaching page. While you’re at it, you should visit the book’s homepage, and see what we have in store for you if you teach family sociology (and request an exam copy), here.

Also:

• A symposium with 12 writers and researchers addressing the concept, “After marriage equality,” which Syed Ali and I edited for Contexts.
• My whole series of blog posts on marriage equality is archived under the homogamy tag.

Things are getting better/worse, and we’re not going to take it anymore

There is a whole social science to the optimal balance of victory and defeat in social movements and social change. Trying to sort that out recently reminds me of the time in 1980 when the Williams pinball machine company introduced Black Knight, which featured four flippers, 2- and 3-ball multiball™ play, and magna-save (don’t ask). And it talked. It was hard to get to sleep that week, with the ringing in my ears, the flashing lights burned into my eyes, and the endless strategic possibilities bouncing around in my head (though, looking at it now, I find this all hard to believe).

So, too, in the last week. Consider two political cartoons by Mike Luckovich. This from June 21:

And this one from June 25:

Did he really just demand the removal of the Confederate flag and then mock people who would celebrate its removal? Is that how much things change in a week? But in periods of social change, moving the goal posts is what it’s all about. And there’s nothing wrong with that.

The Charleston massacre was a horrific reminder of how it seems some things never change. But they do change. Dylann Roof was caught and may be put to death, legally. And it turned out that, not only had the Confederate flag only been flying at the South Carolina capitol for a few decades, but it actually could be taken down in response to public outrage. And yet, that’s not the end of racism. (Four flippers, three balls, magna-save.)

Anthea Butler, a religion and Africana studies professor at Penn, who wrote an op-ed in the Washington Post, was on the On Point radio show last week. She was talking to host Tom Ashbrook, when she got this:

Tom Ashbrook: If you ask me, I understand that feeling and that vivid response. At the same time, I, and maybe you, Anthea Butler, Dr. Butler, don’t want to lose, or not recognize, or lose the progress that has been made. And this is nowhere near paradise…

Anthea Butler: But what kind of progress? What kind of progress? This is what we keep talking about. And I don’t understand, when you say, “We’ve made progress.” How have we made progress when the president of the United States has been constantly questioned because he is partially a Black man? And so you talk progress — and this is the kind of talk we’re going to hear all week long after this.

TA: But he’s president, madam.

AB: He is president.

TA: Well, that’s a pretty big deal…

AB: That is a big deal, but to some people in this country, like Dylann Roof, that is the end of this country. That’s why you had the kind of phrase that he said, that all your politicians, the right Republican politicians have been saying, “Take our country back.” And so, I want to talk about the rhetoric that’s happened…

Ashbrook has a point about progress, of course, but it’s just the wrong time to say that, days after a racist massacre that seems as timeless as a Black-church burning. At that moment there could be no progress.

For whatever reason, Ashbrook turned to progress on the interpersonal level:

TA: We did see White people in South Carolina, in Charleston, pour into the churches alongside African Americans over this weekend.

AB: Yes we did. But you need to understand the distinction here. I don’t doubt that there are well-meaning, good White people, good White Christians, who are appalled at this. I understand that. But when you have a structural system that continues to do this kind of racial profiling, the kinds of things that are going on with the police in this country, the kinds of issues that we’ve had. The problem becomes this: you can talk about progress all you want, but reality is another thing altogether.

Again, it’s progress, but focusing on it at that moment is basically #AllLivesMatter. President Obama also tried to keep his eyes on the prize, in his appearance on the WTF podcast:

Racism, we are not cured of it. And it’s not just a matter of it not being polite to say “nigger” in public. That’s not the measure of whether racism still exists or not. It’s not just a matter of overt discrimination. Societies don’t, overnight, completely erase everything that happened 200 to 300 years prior.

Outrage ensued about his use of “nigger,” but White House Press Secretary Josh “earnest non-racist white guy” Earnest doubled down:

The President’s use of the word and the reason that he used the word could not be more apparent from the context of his discussion on the podcast.  The President made clear that it’s not possible to judge the nation’s progress on race issues based solely on an evaluation of our country’s manners.  The fact is that we’ve made undeniable progress in this country over the last several decades, and as the President himself has often said, anyone who lived in this country through the ‘50s and the ‘60s and the ‘70s and the ‘80s notes the tremendous progress that we’ve made.  That progress is undeniable. But what’s also undeniable is that there is more work that needs to be done, and there’s more that we can do.  And the fact is everyone in this country should take some inspiration from the progress that was made in the previous generation and use that as a motivation and an inspiration to try to make further progress toward a more perfect union.

Now is no time to talk about progress, some say. With Black church members being gunned down and churches burning, and one appalling, outrageous video after another showing the abuse of Black citizens by police, having a Black president is not a victory. So much so that maybe he’s not really Black at all. Frank Roberts writes of Obama’s “Amazing Grace” moment:

With Obama … blackness has been reduced to a theatrical prop; a shuck-and-jive entertainment device that keeps (black) audiences believing that the President “feels their pain” — at precisely the same time that he fails to provide a substantive policy response to black unemployment, over-incarceration, and/or racialized state violence.

The social scientist in me objects, because the rate of progress is not determined by the victory or tragedy of the moment, or by the blackness of a man. And Obama probably has done more than any other president (at least recently) to address Black unemployment, incarceration, and racialized state violence. That’s not a moral or political statement — and it doesn’t imply “enough” — it’s an empirical one.

Movements use good news for legitimacy, and bad news for urgency.  When something goes well, they need to claim credit and also make sure their supporters know there is more work to be done. When something awful happens they place the troubles in the context of a narrative of struggle, but they don’t want to appear powerless because that saps support as well, and undermines morale.

Case in point, marriage equality

In that old psychology study of lottery winners and paraplegic accident victims, the researchers concluded that we put too much weight on the fleeting reactions of others to good or bad events, falsely assuming that these events will define them permanently. Since gay marriage will not actually make their lives worse, I have to assume that the doom-and-gloom gang on pathetic display in a mordantly morose, delightfully depressive, symposium on the Supreme Court decision at the religious conservative First Things site will soon again return to being their sunny selves.*

And these San Francisco Pride marchers will go back to being miserable soon enough. (Photo by James Buck)

In the meantime, the family right will use SCOTUS to stoke their movement — after an oh-so-dramatic display of what Jeffrey Toobin called a “religiously themed retreat into victimology.”

But the anti-equality right has to be careful, or their nattering negativity will undermine their appeal, especially among young people who haven’t yet given up all hope of being the change they want to see. For Ted Cruz to call this — that is, people getting married — “some of the darkest 24 hours in our nation’s history,” to declare a “day of mourning,” or to see a vision of Jesus weeping, all may be a little much for the youth vote. (Not that kids these days know how to spell anymore, but I think they’ll get the difference between “morning” and “mourning” in America.) It’s one thing for religious conservatives to entice others to join them on the holier-than-them side of the fence with a little martyrdom (after all, whole religions have been built on it). But who wants to join a movement — much less have Thanksgiving dinner — with a guy who wallows in his own defeat like this?

While many have pointed to the 1973 decision of Roe v. Wade as an obvious historical analogue for the Obergefell decision, to my mind, the insistence that all must conform to the new, official definition of marriage that no civilization has ever endorsed until yesterday seems to be more aptly compared to life under Communism. … The “monopoly of violence” possessed by the State is now a main weapon in perpetuating this lie, and will be used mercilessly and without cessation against those who persist on pointing out that it seeks to perpetuate a lie. But violence will serve as a last resort, merely backstopping the education system, the economic players, and even family members who will work to correct wayward thinkers.

That poor persecuted soul, by the way, is a tenured professor.

Four flippers, three balls, magna-save.

* The First Things symposium was linked without explicit endorsement by Ross Douthat, who on marriage equality day did not pause to congratulate a gay couple (whose wedding he would rather not attend anyway) before mean-spiritedly besmirching the movement by speculating on the coming legalization of polygamy.

Regnerus responds

Photo by carnagenyc from Creative Commons.

Note: Corrected May 3 to reflect that these documents are about post-tenure review, not promotion to full professor. The blogger regrets the error, and thanks the tipster.

The news, reported in The Daily Texan, with documents retrieved via public records request, is that, in the face of conflicting views about Mark Regnerus’s promotion to the rank of full professor post-tenure review,  UT’s Dean of Liberal Arts, Randy Diehl, commissioned a report on the scandal by sociologist Marc Musick. The report is an excellent review and summary of the affair, and provides ample evidence for declining the promotion. And for the rest of us, it had the beneficial effect of flushing out Regnerus, who wrote his most detailed response yet to the accusations against him — a response he may or may not have realized would become public. (The new documents are linked in the Texan article; for my coverage, you can start here for a review with links.)

It’s difficult to try to draw a line, as Musick does, apparently at the dean’s request, between ethical misconduct and bad research. It’s really where the two are combined that Regnerus causes trouble. More on the promotion issue later.

Musick was entirely correct when he wrote:

Based on these [media] appearances and his [court] testimony, it is self-evident that Professor Regnerus has used his research in the debate over same-sex marriage in direct contradiction to the statements he made in the NFSS article and response to commentaries. When combined with clear evidence that he colluded with politically-motivated organizations prior to the publication of the study, it leads to the appearance that the post-study behavior was an extension of the political work that was happening prior to the study. In light of all of this activity, it appears that the statements he made in the article could certainly be seen as misleading at best and an outright fabrication of his intentions at worst.

This is the heart of the ethics side of the complaint: his bad research was part of a covertly-organized political effort, and he lied about it to cover that up. Regnerus simply asserts this isn’t true, but to believe his self-serving description of his own intentions is to be made a fool of. It’s just not plausible that,

I did not intend to utilize the results for any political or legal purpose, and stated so when I completed work on the manuscript in late February 2012. My interests, from the outset of participation in this project up through December 2012, lay squarely in the social science question that gave rise to the study.

Only God can truly see into the unlit depths of Regnerus’s heart — but the rest of us can be pretty sure he’s lying based on his actions.

Regnerus claims that as he became immersed in the subject he grew convinced that same-sex marriage is a bad policy, and began “to worry about esteeming the systematic severance of children from their biological origins.” But he was part of the “coalition” (his word!) against gay marriage from before the study was even fielded. His email to Brad Wilcox, prior to conducting the study:

I would like, at some point, to get more feedback from Luis [Tellez] and Maggie [Gallagher] 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.

What pure interest in “the social science question” involves planning an “early report” with the leading activist against gay marriage, Maggie Gallagher?

Lots of research is as poor quality as Regnerus’s. It’s in combination with the rotten ethics that we see the more serious problem — it’s how the research fits in with his diabolical political plans and his reprehensible moral views. That is, the research was not just bad, it was bad in a purposeful direction. That’s not discernible from a reading of the single, (not really) peer-reviewed article.

Cause and effect

The issue of causality is described in the report as one of methods, but I think it’s really an ethical issue.

Regnerus has been having this both ways from the beginning, and it highlights the challenge of (and for) public intellectuals who speak to multiple audiences. In the original paper he wrote, “I would be remiss to claim causation here.” So that is his cover (and he quotes again here). But in presentations to friendly audiences he is much less guarded. As I reported earlier, in a talk he gave at Catholic University:

He first described in some detail the “standard set of controls” he used to test the relationship between having a father or mother who ever (reportedly) had a same-sex romantic relationship and his many negative outcome variables. And then he proceeded to present bivariate relationships as if they were the results of those tests. He didn’t say they were adjusted [for the controls], but everyone thought the results he showed were controlling for everything. For example, to gasps from the crowd, he revealed that 17 percent of “intact bio family” kids had ever received welfare growing up, compared with 70 percent for those whose mother (reportedly) ever had a same-sex romantic relationship. If you don’t realize that this is mostly just a comparison between stable married-couple families and single-mother families, that might seem like a shockingly large effect.

The causal story at that talk was hammered home in two other ways. First, he presented the results as evidence of a “reduced kinship theory,” under which parents care less about their children the less biologically related they are. Second, he said his “best guess” about why he found worse outcomes for children of women who ever had a lesbian relationship than for those whose fathers ever had a gay relationship was that the former group spent more time with their mothers’ lesbian partners. Both of these descriptions are based on a causal interpretation of his findings.

Anyway, on to the political machinations.

Regnerus lies about Brad Wilcox’s lies

Regnerus complains that Musick brings up the “tired ethical complaint” about Brad Wilcox, who, Regnerus claims, “held an honorific position with the Witherspoon Institute.” And he offers this: “In my interactions with him, he never acted with authority, only advice suggestive of his own opinion.” Regnerus no-doubt thinks he is using a clever legalism, as if Wilcox did not have literal signing authority for dispersing Witherspoon funds and therefore did not offer anything beyond “his own opinion.” But it’s clearly wrong.

Just to be clear how ridiculous this hair-splitting is, here is the email exchange that they no-doubt both now regret (which Musick quoted as well). Regnerus writing, Wilcox answering in bold caps:

Tell me if any of these aren’t correct.

1. We want to run this project through UT’s PRC. I’m presuming 10% overhead is acceptable to Witherspoon. YES
2. We want a broad coalition comprising several scholars from across the spectrum of opinions… [goes on to discuss individuals]. YES
3. We want to “repeat” in some ways the DC consultation with the group outlined in #2. … [details of how the planning document will be crafted] YES
4. This document would in turn be used to approach several research organizations for the purpose of acquiring bids for the data collection project. YES

Did I understand that correctly?

And per your instruction, I should think of this as a planning grant, with somewhere on par of $30-$40k if needed. YES

Regnerus may now say, indignantly, “Professor Wilcox did not — and does not — speak on behalf of Mr. Tellez,” the Witherspoon president, but he certainly understood Wilcox as speaking for Witherspoon in that exchange. Otherwise, why wouldn’t he ask Tellez these organizational questions directly?

In a 2012 blog post on the now-defunct (and deleted, but preserved) Family Scholars blog hosted by the Institute for American Values, Wilcox wrote that he never served as an “officer” of Witherspoon. He was, on the Witherspoon website as preserved by the Internet Archive, listed as “director” of the institute’s Program on Marriage, Family, and Democracy from late 2008 to mid-2010. That program still exists on the website, incidentally, but it no longer mentions any director — Wilcox is the only director ever listed in the Internet Archive pages. As of last month, Wilcox’s CV doesn’t mention this position.* (I don’t understand the purpose of an honorific position if you’re not proud of it.)

And then there’s the Wilcox email where he refers to the study as “our dataset.”

Campaign, or coincidence?

Regnerus tells a story of coincidences. For example, Tellez may have (in his words) wanted the research done “before major decisions of the Supreme Court,” but that had nothing to do with Regnerus’s goals, which were to finish his report by January 2012 “for no other reason than I wished to finish it and move on to other projects.” At the time the research was funded, Regnerus says, he did not share Tellez’s political goals. Coincidentally, they both happened to want to project completed in the same time frame. And then, in another coincidence, Regnerus later came around to joining in Tellez’s opinion that same-sex marriage must be stopped. Is this a more plausible story than the simpler one in which Tellez, Wilcox, and Regnerus were all on the same page all along? The evidence for the conspiracy is pretty robust, considering Regnerus, Wilcox, David Blankenhorn, Maggie Gallagher and other anti-gay marriage activists planned the research at a meeting in Washington hosted and paid for by the Heritage Foundation. On the other hand, the evidence for the coincidence is Regnerus’s solemn word. This conspiracy is a theory kind of like evolution is a theory — it’s the only plausible explanation for a known series of events.

In the coincidence story, the survey was delayed, so Regnerus would have to keep working on it beyond January 2012. However, he nevertheless just “decided to give a journal submission a shot” in November 2011 anyway. Not that he was aiming for Tellez’s Supreme Court deadline. Just because. So he “contacted [Social Science Research editor] Professor James Wright to ask if he’d consider reviewing a manuscript on a study like this one,” before the data were even collected. You social scientists out there — have you ever asked a peer-reviewed journal editor if they would consider publishing something “like” what you were working on before you even had the data collected?

In fact, this “give a journal submission a shot” idea came from Wilcox, who in the email mentioned above suggested sending it to SSR because Wright was (the late) “Steve Nock’s good friend” and “also likes Paul Amato,” whom they had secured as a consultant. In the end, Wright would use both Wilcox and Amato as reviewers.

The coincidences Regnerus speaks of also include the meeting he had in August 2011 in Denver with Wilcox, Glenn Stanton from Focus on the Family, and Scott Stanley, after which (he wrote to Tellez at the time), “we feel like we have a decent plan moving forward” for “public/media relations for the NFSS project.” In his response to Musick, Regnerus now writes, “Denver was a convenient stop on the way back to Austin from the American Sociological Association annual meeting in Las Vegas, and I took the opportunity to meet socially with a few peers.” That includes Stanton, who “lived about an hour’s drive of where we met.” (I’m not sure why you need a “convenient stop” from Las Vegas to Austin, which is a short nonstop flight.)

See, no campaign. Sure, he also arranged for the study to be shared with “some conservative outlets” before publication, attended a “short function hosted by the Heritage Foundation” about the study just before it was published, and “another such function … at the offices of the Institute for American Values.” But he doesn’t even know, “frankly,” “how such groups came to be apprised of the impending study release.”

Then, after describing, literally, how he colluded with politically-motivated organizations prior to the publication of the study, Regnerus concludes, “This hardly merits the accusation that I ‘colluded with politically-motivated organizations prior to the publication of the study.'”

And oh, sure, on closer inspection (he actually says, “I see now…”) he did use the “media training” document that Heritage provided, which he has falsely testified he “largely ignored,” in his own promotion of the study. In his post on Patheos.com (here), he wrote:

Q: So are gay parents worse than traditional parents?

A: The study is not about parenting per se. There are no doubt excellent gay parents and terrible straight parents. The study is, among other things, about outcome differences between young adults raised in households in which a parent had a same-sex relationship and those raised by their own parents in intact families.

The Heritage talking points (from Musick’s report) included this:

Whether gay parents are worse than traditional parents.The study is not about parenting. There are no doubt excellent gay parents and terrible traditional parents. The study is about outcome difference between young adults raised in a same-sex household and those raised by their own parent in intact families.

Well, he says now, “I very likely did use a few lines” from the document. “So be it.” Nevertheless, “to suggest I received extensive media training — and leaned on it in a comprehensive campaign — is out of touch with my lived reality.” (Who’s a phenomenologist now?) It’s tempting, after reading his response, to assume that whatever Regnerus specifically denies is exactly true.

On the labeling issue

I noticed something new in reviewing material for this post. If you’ve made it this far, bear with me here on this detail.

The infamous Regnerus article was published with the title, “How different are the adult children of parents who have same-sex relationships?” In the article he referred to the adult children who reported that their mother ever had a same-sex romantic relationship as “LM” for “lesbian mother,” along with “GF” for “gay father.” In the rebuttal to his critics, published later in 2012, he acknowledged these were the wrong terms:

Concern about the use of the acronyms LM (lesbian mother) and GF (gay father) in the original study is arguably the most reasonable criticism. In hindsight, I wish I would have labeled LMs and GFs as MLRs and FGRs, that is, respondents who report a maternal (or mother’s) lesbian relationship, and respondents who report a paternal (or father’s) gay relationship. While in the original study’s description of the LM and GF categories I carefully and accurately detailed what respondents fit the LM and GF categories, I recognize that the acronyms LM and GF are prone to conflate sexual orientation, which the NFSS did not measure, with same-sex relationship behavior, which it did measure.

But he insisted this was just a question of confusing terms, not an attempt to actually label these parents according to their sexual orientation. He added:

The original study, indeed the entire data collection effort, was always focused on the respondents’ awareness of parental same-sex relationship behavior rather than their own assessment of parental sexual orientation, which may have differed from how their parent would describe it.

This came up in the Mucisk report, and Regnerus responded:

As noted in Professor Musick’s assessment, the problem of locating an optimal acronym here is something to which I have already confessed … It remains a significant regret. And yet the distinction between a woman’s same-sex relationship (to use Professor Musick’s acronym) and a woman’s “lesbian” relationship (as I assert by using the MLR acronym) is no doubt a narrow one. As ought to be obvious, I use the term “lesbian” as an adjective here, not a noun [emphasis added]. It describes a relationship, not a self-identity.

But did Regnerus really intend to use “lesbian” as an adjective? No, he did not. I know this because, in the email exchange between Social Science Research editor James Wright and Brad Wilcox (in which Wilcox lied by omission and which Wright later misrepresented), we can see the original title of the article Regnerus submitted, which is not the title subsequently published. The original title was, “How different are the adult children of lesbian mothers and gay fathers? Findings from the New Family Structures Study.” Clearly, Regnerus’s original intention was to describe the parents of the people he surveyed as “lesbian mothers” and “gay fathers” — using nouns referring to the people, not adjectives referring to their romantic relationships. It was not a matter of confusion; it was an attempt to create a false impression of the study’s implications.

Promoting Regnerus

In our department, promotion to full professor requires “an exemplary record in research, teaching, and service” which has made the candidate “widely regarded as a scholar.” However, these terms are not defined, and no quantities of research or citations are included. These things are left vague, and much rides on the interpretation of the experts consulted, who are considered the best judges of academic merit. So, what if a professor brings scandal and disrepute to himself and the institution? What if he expresses views that are morally reprehensible? What if he lies about his work, including in his work?

I don’t envy my colleagues in the excellent department of sociology at the University of Texas-Austin (about this case — I do envy them in other ways). Their directory lists 39 professors, only one of whom is disgraceful in those ways. It’s not a simple matter, denying a tenured professor a promotion (even though this is only post-tenure review, it’s the promotion issue that looms). It’s a personnel decision governed by laws, and it’s wrapped up in the tenure system, which is important for academic freedom.

In the case of Regnerus I’ve already expressed my 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.

Based on that — more than based on the morally reprehensible views — I would vote against Regnerus’s promotion. But I am not privy to the process at UT, to their reviews and other materials, and I haven’t been asked for my opinion or advice.

* Is it unethical to take academic activities off our academic CV if they make you look bad? It emerged in one of the gay marriage trials that Brigham Young economist Joseph Price, testifying as an expert against gay marriage, took a grant from the Witherspoon Institute off his CV. In this case I don’t see that Wilcox ever had Witherspoon on his CV, but he was listed as a director on their website.

The marriage movement has failed (long live the marriage movement), Blankenhorn edition

I don’t know David Blankenhorn, so I can’t really judge whether he’s still a hypocritical opportunist or he’s really transformed into a half-evolved pseudo-moderate. But it doesn’t matter; his movement has failed. Even if he manages to get his fundraising sea-legs back under him again, nothing substantive will come of it.

I will get to the new Blankenhorn treatise in Washington Monthly. (They retitled his essay from the pompous, “Marriage Opportunity: The Moment for National Action” — as it appears on his website — to the more topical but deeply ridiculous, “Can Gay Wedlock Break Political Gridlock?“) But first, at the risk of contributing to Blankenhorn Declaration Fatigue, I start with a little background. You can skip right to the part about the new essay, or, after reading the background, just stop reading because it doesn’t matter what he says anymore. Or read the whole thing.

Blankenhorn’s lost long decade

Blankenhorn likes to collect signatories for statements of bold blandness, conservative feel-goodism dressed up as high-minded Moments of Clarity and Reason under the mantle of his Institute for American Values (IAV). The 2000 pamphlet, “The Marriage Movement: A Statement of Principles,” declared “something new: a grassroots movement to strengthen marriage,” which embraced the notion that “a healthy marriage culture benefits every citizen in the United States” (including, oddly, “gay or straight” Americans, whose right to marry Blankenhorn spent the next decade or so viciously opposing), and pledged to “turn the tide on marriage” in the 2000s. In the decade that followed, the decline in marriage rates accelerated in every state except North Dakota (here color-coded by common political convention):

The “marriage movement” has been a disastrous failure — in terms of its stated goals — as I discuss below. For Blankenhorn, the nadir was his 2010 humiliation by Federal Judge Vaughn Walker in California’s Proposition 8 case (Perry v. Schwarzenegger). The would-be intellectual leader of a cultural revival, and the author of several books, was disqualified as an expert in the losing cause, having provided, “inadmissible opinion testimony that should be given essentially no weight.” Under scrutiny, it was clear his expertise was limited to making moral proclamations.

At the time of his Proposition 8 disqualification, Blankenhorn and then-ally Maggie Gallagher were also part of the team assembled by the Heritage Foundation to motivate a research program showing the harms caused to children by same-sex couples, described here. Along with Brad Wilcox, Joe Price, and David Allen — who all contributed research — they launched what became the discredited Regnerus study. As with the general goal of “turning the tide on marriage,” this too was a spectacular failure, as the research was discounted or dismissed by one court after another.

But achieving one’s stated goals is not the measure of success in right-wing foundation land, where billionaires heat their tax shelters with burning cash and millionaires exchange bloated salaries in the service of ideological reproduction. The bottom line is always the same — protect the wealth of the very rich, and distract the public. The social issues are mostly details — marriage, thrift, religion, guns, and so on — although occasionally inflamed by a confused crusader for one random cause or another. And of course, at whatever effective tax rate they’re avoiding, the money they’re burning is yours.

Anyway, fortunately for Blankenhorn (and his staff, including his wife, Raina) the United States had a devastating financial collapse in 2008. Early funding from Templeton positioned him to take advantage of the crisis, leveraging the disaster to waste something like $9 million of right-wing foundation money on the issue of “thrift.” (These details are from my non-expert analysis of the foundations’ tax-exempt IRS 990 forms.) To distract Americans from the crimes of the rich, foundations like Templeton and Bradley decided to pollute the public square with the idea that what we really need to fix is Americans’ culture of personal saving. The reforms IAV proposed included promoting small loans, opposing gambling, and teaching children good behavior — and of course marriage. As far as I can tell, the result was some books and pamphlets. (You no-doubt missed their 2012 pamphlet, “An American Declaration on Government and Gambling,” produced by IAV on behalf of a failing organization run by right-wing church types called Stop Predatory Gambling, whose board includes Barrett Duke; they were shellacked in the Massachusetts anti-gaming ballot measure last November.)

In the thrift era, times were good: funding from Bradley and Templeton brought David and Raina’s combined IAV salaries to a peak above $400,000. When those grants ran out, they took a 25% pay cut (along with Barbara Defoe Whitehead, who was demoted from “Director of Thrift” to just “Director” as her pay was cut from $110,000 to $82,000):

Toward a new treatise

After the California humiliation, Blankenhorn — with his (then) deputy, Elizabeth Marquardt* — attempted a soft pivot on gay marriage. In 2012 they spoke out against a ballot measure in North Carolina that would have banned same-sex civil unions as well as marriage, saying it went “too far” in the direction of bigotry, instead of merely barring gays and lesbians from equal status in marriage (in keeping with his string of losses, voters approved the measure 61% to 39%, but it was later found unconstitutional). That led to yet another declaration, this one called “A Call for a New Conversation on Marriage,” launched with 75 signatories in early 2013. They called marriage “society’s most pro-child institution” — versus unspecific contenders. (Presumably because they were still billing Templeton for the thrift work, they also called “marriage and thrift,” “the two great engines of the
American middle class since the nation’s founding.”) They wrote:

The new conversation does not presuppose or require agreement on gay marriage, but it does ask a new question. The current question is: “Should gays marry?” The new question is: “Who among us, gay or straight, wants to strengthen marriage?”

With the Regnerus scandal, creeping court decisions for marriage equality, and shifts in public opinion in favor of gay marriage, the family right was unraveling. Maggie Gallagher, who claims to have co-written the 2000 Statement of Principles, was furious. Not only had Blankenhorn dropped opposition to gay marriage, he had stopped referring to the gender of spouses in his descriptions of how awesome marriage is.

Unlike Blankenhorn, Gallagher and her National Organization for Marriage have a track record of political victories with American voters — that these measures that turn out to be unconstitutional merely fuels their outrage. Whether Blankenhorn is successful in his attempt to outflank his former comrades — to rejuvenate his flagging income stream — remains to be seen. Whether he will be successful in changing “the culture” is obvious.

Agenda, rewarmed

The Washington Monthly piece is bylined David Blankenhorn, William Galston, Jonathan Rauch, and Barbara Dafoe Whitehead. I’m treating it like a Blankenhorn production, but correct me if I’m wrong. (Galston and Rauch are at Brookings, Whitehead works at IAV; the full list of Marriage Opportunity Council members is here.)

The new headline makes it about gay marriage, but that’s really a cheap political and rhetorical device, a little taunting for those marriage equality advocates who were always afraid the movement would lead to marriage promotion. I’ll get back to that.

Recall that, in 2000, the story of marriage decline was mostly about cultural change, caused by:

…increases in intimacy expectations, greater social approval of alternatives to marriage, the greater economic independence of women, “no-fault” divorce reform, the rise in social insurance programs that make individuals less dependent on families, the expansion of market and consumer mores into family life, and lesser social supports and pressures to get and stay married from family, friends, professionals, churches, business, and government.

The problem then was young people “translating attitudes into action” and rushing into cohabitation. Now, they say, we need to “reduc[e] legal, social, and economic barriers to marriage.” In 2000 there was no mention of barriers, it was all cultural decay.

The attempt at progressive coöptation comes in the admission that “for millions of middle- and lower-class Americans, marriage is increasingly beyond reach.” In the face of barriers, they embrace “marriage opportunity” as the concept that “can help give birth to a new pro-marriage coalition that transcends the old divisions.”

as it becomes increasingly clear that aspirations to family formation are being stymied by wage stagnation and disappointing job prospects among working-class and less-educated men, conservatives are coming to realize that they need to be concerned about economic and labor market bottlenecks that reduce men’s employability, damage their marriageability, and help drive the cycle of family decline. To be sure, important non-economic factors are also at work. But the increasingly dire situation of less-skilled men in the marriage market and in the labor market implies that no amount of moral suasion can, by itself, restore a marriage culture among the less privileged. Improving the economic prospects of the less educated, especially men, is vital.

Despite the bologna sprinkles, this concession is a testament to the effectiveness of the political agitation around economic inequality after the shock of the economic crisis. The reason this seems unlikely to generate a truly unifying coalition is that they revert straight back to the story of declining marriage causing social collapse. The decline of marriage is:

creating more fractured and difficult family lives, more economic insecurity for single parents, less social mobility for those on the lower rungs of the economic ladder, more childhood stress, and a fraying of our common culture.

But none of these need to be consequences of declining marriage. Under a decent welfare state, which equalized resources, mitigated risks, and created shared responsibility for children’s well-being — in other words, created conditions more like those rich single parents can achieve today — such dire consequences would be prevented. The lesson of economic hardship and insecurity undermining marriage isn’t that we need to fix those things so that people can be married — it’s that we need to fix those things so that people can move through the stages of their lives with a sense of confidence and self efficacy.

Blankenhorn has not shaken his old scaremongering and Moynihan-esque sky-is-fallingism about marriage. For children, single parenthood is “trapping them in a multigenerational cycle of poverty or family instability”; for adults, singledom is sapping their productivity; for communities, low marriage rates are “depriving them of role models and support networks.” Then there’s the pseudo-religious mumbo-jumbo that got Blankenhorn’s testimony thrown out of the California case, unfalsifiable pronouncements that amount to, “marriage is super special!”

Marriage draws its strength from broadly shared assumptions and values. Its unmatched power to bind families together, over time and through hardship, stems from its standing as a social norm, not just a legal status. It needs the social legitimacy and broad cultural buy-in that come, in America, from being a realistic aspiration of the many, not just a privilege of the few.

You lost me at the idea that there is a thing called “marriage” that has a level of “strength.” At, “the two-parent married family [is] a touchstone of America’s economic and moral vitality,” sociological readers may be scratching their heads and mumbling, “Parsons…?” This kind of polemic — not current academic research — is why we still teach “functionalism” in introductory sociology courses.

Like a state-of-the-union speech, this essay has nods to the important political donors and constituencies it hopes to appease. For the marriage promotion community — many of whom are still getting their bills paid by repossessed welfare money — they offer this bit of polite nonsense:

…notwithstanding the valuable and encouraging work of many leaders, there are currently few (if any) major policy or program interventions that have been clearly demonstrated by independent evaluations to be effective over time in areas such as improving marriage rates and improving marital quality and stability. This fact is not surprising, given both the complexity of the challenge and the still-early stage of the national policy response, and it should certainly not discourage us. But it should cause us to favor an approach to reform that is experimental, non-doctrinaire, and sensitive to emerging evidence and unfamiliar ideas.

No. The research is clear: they wasted more than a billion dollars of single mothers’ welfare money for nothing.

The policy suggestions that follow are a combination of platitudes and existing ideas that are all good or not good independent of their effect on marriage, so there is no need to review them here.

Dress that umbrage

The “grassroots movement to strengthen marriage,” which Blankenhorn claimed credit for in 2000, has failed. Demographically the results are in. Politically, too. Gay marriage won as the gays-are-bad-for-kids research was discredited and exposed as a conspiracy of bigots. (It’s no wonder Blankenhorn whines, “it is not necessary for anyone to recant old positions, confess sins, or re-litigate old debates.”) Blankenhorn and his allies kicked millions of poor families off welfare in the name of marriage promotion — that drove women to work, but did nothing for marriage. They tried slashing sex education and promoting virginity pledges, with no results. Even the Catholic Church is backpedaling on divorce.

This drubbing by the forces of history leaves Blankenhorn et al. struggling to conceal the bitter and defensive underbelly to their upbeat populism. To dress their umbrage in magnanimity, they offer a smarmy, conditional embrace to gays and lesbians — one they think also puts progressives generally in a bind:

Liberals fighting for social justice and economic opportunity are now called by the logic of their values to help extend the advantages of marriage to low- and middle-income couples who seek it for themselves, much as they fought to help gay Americans attain the right to marry. … Gays and lesbians who are winning marriage for themselves can also help to lead the nation as a whole to a new embrace of marriage’s promise.

Two things about this. First, guess what? Gay men and lesbians are not a political party. Some are “pro-marriage” and some aren’t — even though almost all support the right to marriage. Some will join the marriage movement that once shunned and demonized them, and some will be progressive. Second, when have “liberals fighting for social justice and economic opportunity” ever opposed “extend[ing] the advantages of marriage to low- and middle-income couples who seek it for themselves”? What “logic of their values” requires a change on this issue?

I would like to extend to poor people the advantages of not being poor. As I wrote here:

Reducing the hardships associated with single parenthood is not a complicated proposition. The failure of basic needs provision for poor families is so stark that virtually any intervention seems likely to improve their wellbeing. Among single-mother families, more than one-in-three report each of food hardship, healthcare hardship, and bill-paying hardship in the previous year. Poor families, especially those with a single parent, need more money, which may come from a (better-paying) job, an income subsidy, or in-kind support such as food support.

In the absence of providing the obvious — and uncomplicated — support necessary for poor families to rise to a level of subsistence and security adequate to establish a basic command over their own futures, political or cultural intervention on the marriage front is deeply patronizing and morally offensive. Despite a welcome recognition of existing economic constraints, Blankenhorn’s “new pro-marriage coalition that transcends the old divisions” ultimately extends the existing practice of shaming poor people for not being married to also shame progressives for not joining in that festival of moral disapprobation.

* Marquardt has left IAV and now works at the Chicago Council on Global Affairs. Maybe her stronger opposition to gay marriage (expressed here) was part of their breakup, or maybe she was downsized. Her new bio says she previously worked “at a centrist think tank” (but should add: “which she thought was too centrist”).

Bogus versus extremely low-quality, Sullins edition

Photo by CTBTO from Flickr Creative Commons (modified)

Calling a study “peer-reviewed” gives it at least some legitimacy. And if a finding is confirmed by “many peer-reviewed studies,” that’s even better. So the proliferation of bogus journals publishing hundreds of thousands of “peer-reviewed” articles of extremely low quality is bad news both for the progress of science and for public discourse that relies on academic research.

Two weeks ago I briefly reviewed some articles published by D. Paul Sullins, the anti-gay professor at Catholic University, on the hazards of being raised by gay and lesbian parents. I called the journals, published by Science Domain International (SDI), “bogus,” but said you could make an argument for extremely low quality instead.

After that Sullins sent me an email with some boilerplate from the publisher in defense of the journals, and he accused me of having a conflict of interest because his conclusions contradict one of my published articles. After correctly pointing out that a sting operation by Science failed to entrap an SDI journal with a bogus paper about cancer research, he said:

SDI is a new and emerging publisher. … While I would not say SDI is yet in the top tier, and I don’t like their journal names much either [which mimic real journal titles], for the reasons listed above I submit that this publisher is far from ‘bogus.’

How far from bogus?

Since that post, the reviews on the third of Sullins’ papers have been published by Science Domain and its journal, the (non-) British Journal of Education, Society & Behavioural Science. So we have some more information on which to judge.

The paper, “Emotional Problems among Children with Same-sex Parents: Difference by Definition,” was reviewed by three anonymous reviewers (from the USA, Brazil, Nigeria) and one identified as Paulo Verlaine Borges e Azevêdo, from Brazil. I summarize them here.

Anonymous USA

This reviewer only suggested minor revisions (nothing in the “compulsory revision” section). These were the suggestions: Avoid the first person, clarify the race of study participants, discuss the results in more detail, don’t use the word “trivial,” add citations to several statements, grammar check.

Anonymous, Brazil

This review demanded compulsory revisions: Clarify the level of statistical significance used, explain acronyms, clarify use of “biological parents” when discussing same-sex parents. And some minor revisions: one typo, one font-size change, standardize number of decimal places.

Anonymous, Nigeria

This reviewer included compulsory revisions: mention instrument used in the abstract, clarify measures used in previous studies on children’s well-being, test all four hypotheses proposed (not just three), clarify use of instrument used, shorten the discussion. Minor revisions: check for typos.

Paulo Verlaine Borges e Azevêdo, Brazil

This reviewer requested reorganizing the text, like this:

Would be better to redistribute the lengths of results (lessened), discussion (up) and conclusion (down) sections. In many moments, in the Result section the author deal with I believe would be better located in the Discussion (e. eg., between lines 345 and 355). I suggest that the subsections of Results would be reviewed by author and parts that discuss the results be transferred to the Discussion section … Strengths and Limitations would be better located in the discussion section too.

A few additional minor text modifications were included in the marked up manuscript.

Round two

Upon revision, Sullins was subjected to a punishing second round of reviews.

This included an interesting if ultimately fruitless attempt by Anonymous Brazil to object to this somewhat nutty sentence by Sullins: “biological parentage uniquely and powerfully distinguishes child outcomes between children with opposite-sex parents and those with same-sex parents.” What he meant was, when he controlled for the biological relationship between children and their parents — since hetero parents are more likely to have any biological parentage (and they’re the only ones with two bio parents) — it statistically reduced the gap in children’s mental health between married hetero versus same-sex parents. Although the exchange was meaningless in the decision whether to publish, and Sullins didn’t change it, and the reviewer dropped the objection, and the editors just said “publish it,” you would have to say this was a moment of actual review.

OK then

That’s it. None of this touched on the obvious fatal flaws in the study — that Sullins combines children in all same-sex families into one category while breaking those currently with different-sex parents into different groups (step-parents, cohabitors, single parents, etc.) — and that he has no data on how long the children currently with same-sex couples have lived with them, or how they came to live with them. So it leaves us right where we started on the question of same-sex parenting “effects” on children.

Of course, lots of individual reviews are screwed up. So, is this journal bogus or merely extremely low quality? Do we have a way of identifying these so-bad-they’re-basically-bogus journals that is meaningful to the various audiences they are reaching?

This matters is because journalists, judges, researchers, and the concerned public would like some way to evaluate the veracity of scientific claims that bear on current social controversies, such as marriage equality and the rights of gay and lesbian parents.

Children in same-sex parent families, dead horse edition

Not that child well-being in different kinds of families isn’t a legitimate research topic, but this idea of proving same-sex parents are bad to whip up the right-wing religious base and influence court cases is really a shark jumping over a dead horse.

Without getting into all the possible detail and angles, here are some comments on the new research published by D. Paul Sullins, which claims to show negative outcomes for children with same-sex parents. Fortunately, I believe the legal efficacy of this kind of well-being witch-hunt research evaporated with Anthony Kennedy’s Windsor decision. Nevertheless, the gay-parents-are-bad-for-kids research community is still attempting to cause harm, and they still have big backers, so it’s important to respond to their work.

Research integrity

Below I will comment a little on the merits of the new studies, but first a look at the publication process and venues. As in the case of the Regnerus affair, in which Brad Wilcox, Mark Regnerus, and their backers conspired to manufacture mainstream legitimacy, Sullins is attempting to create the image of legitimate research, which can then be cited by advocates to the public and in court cases.

Although he has in the past published in legitimate journals (CV here), Sullins’ work now appears to have veered into the netherworld of scam open access journals (which, of course, does not include all open-access journals). Maybe this is just the decline of his career, but it seems they think a new round of desperate “peer-reviewed” publishing will somehow help with the impending legal door-slam against marriage inequality, so they’re rushing into these journals.

Sullins has three new articles about the mental health of children with same-sex parents. The first, I think, is “Bias in Recruited Sample Research on Children with Same-Sex Parents Using the Strength and Difficulties Questionnaire (SDQ).” This was published in the Journal of Scientific Research and Reports. The point of it is that same-sex parents who are asked to report about their children’s well-being exaggerate how well they’re doing.

The second paper is “Child Attention-Deficit Hyperactivity Disorder (ADHD) in Same-Sex Parent Families in the United States: Prevalence and Comorbidities.” It was published on January 21 in the British Journal of Medicine & Medical Research. It claims that children living with same-sex parents, surveyed in the National Health Interview Survey, are more likely to have ADHD than “natural” children of married couples.

The third — the one I call third because it doesn’t seem to have actually been published yet — is, “Emotional Problems among Children with Same-sex Parents: Difference by Definition,” in the British Journal of Education, Society & Behavioural Science. It’s point is the same as the second, with slightly different variables. (The author’s preprint is here.) This is the one Mark Regnerus referred to in a post calling attention to Sullins’ work. (The legitimacy strategy is apparent in Regnerus naming the fancy-sounding journal in the opening sentence of his post.)

What makes these scam journals? The first clue is that two of them have “British” in the name, despite not being British in any way (not that there’s anything wrong with that). They are all published by Science Domain, which is listed on “Beall’s List” of “potential, possible, or probable predatory scholarly open-access publishers.” They are not published by academic societies, they are not indexed by major academic journal databases, they publish thousands of papers with little or no peer review (at the expense of the authors), and they recruit authors, editors, and reviewers through worldwide spam campaigns that sweep up shady pseudo-scholars.

For the first two, which have been published, Science Domain documents the review process. The first paper, “Bias in Recruited Sample…,” first had to overcome Reviewer 1, Friday Okwaraji, a medical lecturer at the University of Nigeria, who recommended correcting a single typo. Reviewer 2, identified as “anonymous/Brazil,” apparently read the paper, suggesting several style changes and moving some sentences, and expressing misgivings about the whole point. After revisions, the editor considered the two reviews carefully, and then wrote to the managing editor, “Please accept the paper, it is okay.” It was submitted November 18, 2014 and accepted December 17, 2014.

The second paper, “Child ADHD…,” also shows its peer review process. Reviewer 1 was Renata Marques de Oliveira at the University of São Paulo, Brazil. In 2012 she was listed as a masters student in psychiatric nursing, and is now an RN. This is the entirety of her review of Sullins’ paper:

OK, then.

The second review is by Rejani Thudalikunnil Gopalan, described as a faculty member at Universiti Malaysia Sabah, or maybe Gujarat Forensic Sciences University, Gujarat, India. She was recently spotted drumming up submissions for a special issue of the scammy American Journal of Applied Psychology (“What? We didn’t say it was the same journal as the Journal of Applied Psychology, published by the American Psychological Association!”). The journal AJAP is published by the Science Publishing Group (see Beall’s List), but I couldn’t investigate further because their website happens to be down.

Unlike Oliveira, Gopalan seems to have read the paper, and offered a few superficial questions and suggestions – not quite the very worst review from a legitimate journal that I have ever read. After a cursory reply, the editor responded (in full): “The authors have addressed all reviewers’ concerns in a satisfactory way. This is an outstanding paper worthy of publication in BJMMR.” It was accepted two weeks after submission.

I don’t want to imply that three journals are illegitimate just because they are run for profit by low-status academics from developing countries. But looking at the evidence so far I think it’s fair to call these journals bogus. However, I wouldn’t argue too much if you wanted instead to say they are merely of the very lowest quality.

Why does a guy at a real university, with tenure, publish three articles in two months at a paper mill like Science Domain? I fear our dear Dr. Sullins has fallen out of love with the scientific establishment. Anyways.

Content

You might say we should just ignore these papers because of their provenance, but they’re out there. Plus, I want people to take my totally unreviewed blog posts seriously, so I should take these at least a little seriously. Fortunately, I can write them off based on simple, complete objections.

Combining the 1997-2013 National Health Interview Surveys, about 200,000 children, Sullins gets 512 children who are living with a same-sex couple (about 16% married, he says). In both the second and third papers, he compares these children to those living with married, biological or adoptive parents who are of different sexes. The basic problem here is obvious, and was apparent in the infamous Regnerus paper as well: same-sex couples, regardless of their history — married, divorced, never-married, just-married, married before the kid was born, just got together yesterday when the kid was 15, and so on — are all combined in one undifferentiated category. This just can’t show you the “effect” of same-sex parenting. (When Regnerus says this research supports the ” basic narrative … that children who grow up with a married mother and father fare best at face value,” he’s slipping in “grow up with,” though he knows the study doesn’t have the information necessary to make that claim.)

However, if Sullins did the data manipulations right — which I cannot judge because I don’t know the data, little detail is provided, and the reviewers have no expertise with it either — there is a simple descriptive finding here that is interesting, if unsurprising: children living with same-sex parents over the period 1997-2013, the vast majority of whom are not married, and presumably did not conceive or adopt the child in their relationship, have more emotional problems and ADHD than children living with their married, biological parents. We have to be smart enough to consider that — if it’s true — without falling into accepting the claim that such problems are the result of same-sex parenting, because that has not been established. Of course, this supports an argument for marriage equality, but it’s also just an empirical pattern worth understanding. If Sullins, Regnerus, and their ilk weren’t so hellbent on opposing homosexuality they could actually provide useful information that might be part of a knowledge base we use to improve children’s lives.

Sullins’ judgment is no doubt clouded by his overarching religious objection to homosexuality, which, he believes, like abortion and contraception,

contravene the natural operation of the body in order to conform human sexuality to the ideals of modernity… By severing the link between sex and children, both [abortion and homosexuality] increase privatization, diminish the social intentionality and form of the sexual union, and undermine the unitive good and the transcendent goal of marriage.

So for him it’s already settled — long before he extruded these papers (and Regnerus has expressed similar views). Apparently they think they just need a few bogus publications to bring the public along.

Home stretch

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

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?