April DeBoer, left, Jayne Rowse, and their children. | DEBOER ROWSE ADOPTION LEGAL FUND
The March 21 federal court ruling that struck down Michigan’s ban on marriage by same-sex couples also dealt a lethal blow to a controversial 2012 study that purported to show that parenting by same-sex couples leads to inferior outcomes for children.
In a case brought by April DeBoer and Jayne Rowse –– who initially set out to challenge only the state’s ban on adoption by unmarried couples –– Senior District Judge Bernard A. Friedman found that the Michigan Marriage Amendment violates the Equal Protection Clause of the Constitution’s 14th Amendment, and he ordered the state to stop enforcing it.
Since his opinion was issued after the close of business on a Friday, county clerk offices around the state were already closed for the weekend, though the following day at least four counties announced they would issue licenses on Saturday.
According to USA Today, Glenna DeJong, 53, and Marsha Caspar, 52, of Lansing, became the first couple legally married in Michigan. Published reports indicate that several hundred couples have married.
Senior District Judge Bernard A. Friedman finds testimony of University of Texas sociologist Mark Regnerus “entirely unbelievable and not worthy of serious consideration”
Attorney General Bill Schuette quickly filed an “emergency” petition for a stay of Friedman’s ruling with the Sixth Circuit Court of Appeals while the state prepares an appeal. The Sixth Circuit's initial response to the attorney general, coming on March 22, was to direct the plaintiffs to file a response to Schuette's emergency motion for a stay by noon on March 25. Later that day, the court placed a temporary stay on Friedman's order until March 26.
[Editor's note: On March 25, the Sixth Circuit extended the stay at least until it has heard and ruled on the state's appeal.]
When Utah officials, in December, attempted to bypass the district court judge who struck down the gay marriage ban there by seeking a stay from the 10th Circuit, they were directed to instead file their motion with the district judge.
Friedman’s Michigan ruling is the first federal marriage equality ruling since last June’s Defense of Marriage Act (DOMA) decision by the Supreme Court to be based on a trial record rather than summary judgment reached through constitutional findings. The judge rejected the plaintiffs’ motion for summary judgment, finding that the State of Michigan should be allowed to present evidence on the question of whether the ban was rationally related to any legitimate governmental purpose.
Insisting on creating a trial record proved critical in establishing the profound implications of Friedman’s ruling. The judge ruled that there was no rational relationship between the marriage ban and a legitimate government purpose –– and in doing so, he demolished the expert testimony presented by University of Texas Professor Mark Regnerus, based on his 2012 study of the impact of “family structures” on children’s outcomes. Regnerus’ testimony, Friedman found, was “unbelievable.”
Michigan advanced what it termed four “legitimate state interests” in support of its marriage ban –– providing an optimal environment for child rearing, moving cautiously in altering the traditional definition of marriage, upholding tradition and morality, and affirming that the definition of marriage is “within the exclusive purview of the state’s police power.”
The trial turned almost completely on the issue of child rearing.
Friedman credited the testimony presented by the plaintiffs’ experts –– psychologist David Brodzinsky, sociologist Michael Rosenfeld, law professor Vivek Sankaran, historian Nancy Cott, and demographer Gary Gates. These experts showed that same-sex couples are competent parents whose children experience outcomes essentially the same as those achieved by children of married different-sex couples.
They also demonstrated that, historically, marriage licenses have not been withheld from couples who are unable or unwilling to procreate, that no limitations on the ability to marry have ever been imposed on a particular class of prospective parents based on evidence about their children’s outcomes, and that thousands of same-sex couples in Michigan were raising children who were being disadvantaged by the denial of marriage to their parents.
Oakland County Clerk Lisa Brown, who supported the plaintiffs’ claims, testified about Michigan’s minimal requirements for obtaining a marriage license, which do not include any proof of ability or intention to procreate and do not generally disqualify people because of characteristics — such as a criminal record — which might suggest problems in their ability to raise children.
In contrast to his reaction to testimony by the plaintiffs’ experts, Friedman emphatically rejected that offered by the state’s experts.
Regnerus, the lead expert witness for the state, based his testimony on his 2012 paper, “New Family Structures Study,” published in Social Science Research.
“The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration,” wrote Friedman. “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.’ 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. The funder also stated that ‘this is a project where time is of the essence.’”
Friedman knew well why time was of the essence –– the impending consideration of the DOMA lawsuit and the challenge to Proposition 8 were, the judge wrote, “threatening the funder’s concept of ‘the institution of marriage.’”
“The [study's] funder clearly wanted a certain result, and Regnerus obliged,” Judge Friedman found
Friedman found Regnerus’ claim that the study’s “funding source did not affect his impartiality as a researcher… unbelievable. The funder clearly wanted a certain result, and Regnerus obliged.”
Regnerus’ study is also, the judge concluded, “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,’ 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.”
Indeed, the UT sociology department reaffirmed the conclusion by the American Psychological Association that there is essentially no difference in outcomes between children raised by comparable same-sex and different-sex couples.
Friedman was similarly dismissive of the state’s other experts, finding that “They, along with Regnerus, clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields. The most that can be said of these witness’s testimony is that the ‘no differences’ consensus has not been proven with scientific certainty, not that there is any credible evidence showing that children raised by same-sex couples fare worse than those raised by heterosexual couples.”
Friedman concluded that the trial testimony disproved the “premise” that “heterosexual married couples provide the optimal environment for raising children.” The state’s minimal marriage requirements belie “the optimal child-rearing justification” for Michigan’s ban on same-sex marriage, he found. In fact, denying marriage to gay and lesbian couples raising a family “fosters the potential for childhood destabilization” by placing parent-child relationships at risk if one parent dies or becomes incapacitated and the child is not legally related to the other parent.
In a memorable but telling bit of hyperbole, Friedman said that if Michigan were truly committed to providing the “optimal” environment for children’s academic and social outcomes, marriage would be limited to “rich, educated, suburban-dwelling, married Asians.”
The judge also noted that –– marriage rights or not –– gay and lesbian couples are raising children and “prohibiting same-sex marriage [does not] increase the number of heterosexual marriages or the number of children raised by heterosexual parents.”
On the parenting question, Friedman concluded, “There is, in short, no logical connection between banning same-sex marriage and providing children with an ‘optimal environment’ or ‘achieving ‘optimal outcomes.’”
Friedman made quick work of the state’s other justifications for banning same-sex marriage, finding that tradition and morality have repeatedly been rejected by federal courts as the basis for restricting constitutional rights and that nothing in the state’s claims to sovereign powers allows it to curb such rights either.
Like other recent marriage equality rulings, Friedman’s opinion included heavy doses of eloquence: “In attempting to define this case as a challenge to ‘the will of the people,’ 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.” His decision, Friedman asserted, “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.”
Though in the Utah case, District Judge Robert Shelby declined to stay his December order striking down the state’s marriage ban and was affirmed by a two-judge panel of the 10th Circuit, in the end the Supreme Court imposed a stay pending Utah’s appeal of the marriage ruling to the 10th Circuit. How the State of Michigan’s petition for a stay plays out is the next key question in the litigation there.
Friedman was appointed to the court by President Ronald Reagan in 1988.