As I’ve watched the series of marriage equality cases move forward, I’m struck by how each ruling has its own flavor. Mark Cady in Iowa wrote movingly about the illogic of restricting marriage while proclaiming equal protection. Vaughn Walker in California was meticulous in getting facts into the record and weaving together the legal logic to take down Prop 8. Arenda Wright Allen in Virginia was powerful in her use of Loving v Virginia to lift up the role of the courts to forge justice “from fires of indignities and prejudices suffered”. Now comes Judge Bernard Friedman of the US Southern District of Michigan, who brought a sense of wit and sarcasm to bear on the target-rich environment of those opposed to marriage equality in the case of Deboer v Snyder.
It’s not just the ruling striking down Michigan’s Marriage Amendment [MMA] that makes me happy, but the withering way in which Friedman took on the arguments presented by the defendants. For example, when I heard that Mark Regnerus was going to be on the stand to defend his work, I was extremely happy, as it gave marriage equality proponents the opportunity to expose its flaws, under oath and in the full light of day. To go by Judge Friedman’s opinion, they did a very good job of doing exactly that.
First, Friedman took note of the testimony of various experts put forward by the plaintiffs, taking them in turn and expressing how credible and important he found them (pp. 5, 7-8):
The Court finds Brodzinsky’s testimony to be fully credible and gives it considerable weight. . . .
The Court finds Rosenfeld’s testimony to be highly credible and gives it great weight. His research convincingly shows that children of same-sex couples do just as well in school as the children of heterosexual married couples, and that same-sex couples are just as stable as heterosexual couples. The Court notes that the testimony of Brodzinsky and Rosenfeld is in line with a strong “no differences” consensus within the professional associations in the psychological and sociological fields. Brodzinsky made the following statement in his expert witness report, which defendants did not challenge:
Every major professional organization in this country whose focus is the health and well-being of children and families has reviewed the data on outcomes for children raised by lesbian and gay couples, including the methods by which the data were collected, and have concluded that these children are not disadvantaged compared to children raised in heterosexual parent households. Organizations expressing support for parenting, adoption, and/or fostering by lesbian and gay couples include (but are not limited to): American Medical Association, American Academy of Pediatrics, American Psychiatric Association, American Academy of Child and Adolescent Psychiatry, American Psychoanalytic Association, American Psychological Association, Child Welfare League of America, National Association of Social Workers, and the Donaldson Adoption Institute.
Pls.’ Ex. 30 at ¶ 21. In fact, the 2004 Council of Representatives of the American Psychological Association (“APA”) unanimously voted in favor of issuing a position statement that “research has shown that the adjustment, development, and psychological well-being of children is unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish.” Pls.’ Ex. 111 at 2.
After a similar treatment of other witnesses, it was the state defendants’ turn, with Mark Regnerus as their big weapon.
It did not go well . . .
The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration. The evidence adduced at trial demonstrated that his 2012 “study” was hastily concocted at the behest of a third-party funder, which found it “essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society” and which “was confident that the traditional understanding of marriage will be vindicated by this study.” See Pls.’ Motion in limine to Exclude Testimony of Mark Regnerus, Ex. 9. In the funder’s view, “the future of the institution of marriage at this moment is very uncertain” and “proper research” was needed to counter the many studies showing no differences in child outcomes. Id. The funder also stated that “this is a project where time is of the essence.” Id. Time was of the essence at the time of the funder’s comments in April 2011, and when Dr. Regnerus published the NFSS in 2012, because decisions such as Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), and Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012), were threatening the funder’s concept of “the institution of marriage.”
While Regnerus maintained that the funding source did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged. Additionally, the NFSS is flawed on its face, as it purported to study “a large, random sample of American young adults (ages 18-39) who were raised in different types of family arrangements” (emphasis added), but in fact it did not study this at all, as Regnerus equated being raised by a same-sex couple with having ever lived with a parent who had a “romantic relationship with someone of the same sex” for any length of time. Whatever Regnerus may have found in this “study,” he certainly cannot purport to have undertaken a scholarly research effort to compare the outcomes of children raised by same-sex couples with those of children raised by heterosexual couples. It is no wonder that the NFSS has been widely and severely criticized by other scholars, and that Regnerus’s own sociology department at the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus’s views in general and reaffirmed the aforementioned APA position statement. [pp. 13-14]
In other words, Regnerus’ work was made to order, and didn’t actually study what it asserted it was studying. Those are two of the biggest sins in academia, and Friedman labeled them as such with all the legal sarcasm he could muster.
Getting this on the record as a statement of fact is a big deal, as the biggest argument the defendants pushed was the “think of the children!” notion. Friedman was not not only not impressed with Regnerus, but with everything else presented by the defendants on this point, and once more his disdain for their logic came out with full force:
First, the evidence adduced at trial disproved this premise. . . .
Second, the optimal child-rearing justification for the MMA is belied by the state’s own marriage requirements. The prerequisites for obtaining a marriage license under Michigan law do not include the ability to have children, a requirement to raise them in any particular family structure, or the prospect of achieving certain “outcomes” for children. By the same token, the state does not allow for the annulment of a marriage once a couple discovers it cannot conceive, or if the family structure changes, or if the couple’s children do poorly in school.
Third, contrary to the state defendants’ contentions, the MMA actually fosters the potential for childhood destabilization. For instance, in this particular case should either of the plaintiffs die or become incapacitated, the surviving non-legal parent would have no authority under Michigan law to make legal decisions on behalf of the surviving children without resorting to a prolonged and complicated guardianship proceeding. . .
Fourth, the state defendants’ position suffers from a glaring inconsistency. Even assuming that children raised by same-sex couples fare worse than children raised by heterosexual married couples, the state defendants fail to explain why Michigan law does not similarly exclude certain classes of heterosexual couples from marrying whose children persistently have had “sub-optimal” developmental outcomes. . . [Friedman then notes various studies of variations in such outcomes based on race, economics, and other factors] . . . 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. Obviously the state has not adopted this policy and with good reason. The absurdity of such a requirement is self-evident. . . .
Finally, the Court rejects the “optimal environment” justification because that goal is simply not advanced by prohibiting same-sex couples from marrying. As Gates testified, there are thousands of same-sex couples currently raising thousands of children in Michigan, and these numbers have steadily increased over the past 20 years. Prohibiting gays and lesbians from marrying does not stop them from forming families and raising children.
Friedman’s words about the level of scrutiny struck me as yet another poke in the defendants’ eye with a sharp stick [pp. 19-20]. After describing the various levels, from “strict” to “heightened” to “the least exacting tier . . . of ‘rational basis’”, he wrote:
While some federal courts have held that a more exacting level of scrutiny should be applied in reviewing the constitutionality of same-sex marriage bans, see Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012); Massachusetts v. United States Dep’t of Health and Human Servs., 682 F.3d 1, 11 (1st Cir. 2012), the Court need not decide the issue because the MMA does not survive even the most deferential level of scrutiny, i.e., rational basis review.
IOW, he’s saying “your case is SO bad you can’t even get over the lowest level of scrutiny.”
He went on to slap down other arguments based on tradition and the promotion of procreation, as well as the “let’s not rush into things — we need more research” call to slow things down. When you’re talking about constitutional rights, says Friedman, delays like this are unacceptable “because ‘any deprivation of constitutional rights calls for prompt rectification.’ Watson v. Memphis, 373 U.S. 526, 532-533 (1963). . . The state may not shield itself with the “wait-and-see” approach and sit idly while social science research takes its plodding and deliberative course.” [pp. 24-25].
All the sarcasm and disdain for the illogic employed by the state defendants that Friedman poured into the first 30 pages of the ruling made the final paragraph stand out for its simple and unvarnished compassion, as he cut to the heart of the matter in his conclusion:
In attempting to define this case as a challenge to “the will of the people,” Tr. 2/25/14 p. 40, state defendants lost sight of what this case is truly about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples. It is the Court’s fervent hope that these children will grow up “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, 133 S. Ct. at 2694. Today’s decision is a step in that direction, and affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail.
Amen, Judge Friedman.
Step by step, justice is on the move.
h/t for the photo to Roger Sayles aka Serfs Up! and used under Creative Commons Attribution-NoDerivs 2.0 Generic license.