Box Turtle Bulletin

The FRC’s Briefs Are Showing

A Critical Examination of the Family Research Council’s Amicus Curiae Brief to the Maryland Court of Appeals Opposing Gay Marriage

Jim Burroway

December 4, 2006

The Maryland Court of Appeals will hear arguments in the case of Conaway v. Deane, the same-sex marriage case, at 10:00 am EST today. Just last Saturday, I happened to come across the Amicus Brief filed by the Family Research Council (PDF: 2.8MB/48 pages) in opposition to granting same-sex marriage in Maryland.

Much of the FRC’s friend-of-the-court brief covers legal arguments as to why same-sex marriage should not be allowed in Maryland. But two sections are based on what they say social science reveals about the allegedly harmful nature of homosexuality. The first of these two sections talks about parenting by gays and lesbians, while the second deals more directly with gay relationships, replete with charges of homosexual promiscuity and infidelity.

I have decided to examine the claims that the FRC has made in the second of the two social science sections, the one on gay relationships. I chose to narrow my focus to this section for two reasons: 1) I haven’t had the time to collect the information the FRC cites in the parenting section, and 2) the second section on gay relationships really gets to the heart of the nature of marriage. This is where we get to the “forsaking all others, ‘till death do you part” portion of the brief.

II.C.3 Same Sex Couples Are Not Similarly Situated with Opposite-Sex Couples As To Relational Characteristics (Fidelity and Stability)¹

According to the FRC brief, “same-sex relationships do not incorporate the same concept of stability and fidelity as marriage.” They then quote from the 1994 book, Sex In America: A Definitive Survey: “Among married people, 94 percent had one partner in the past year.” This isn’t a bad study to use; it’s based on the National Health and Social Life Survey, a nationally representative survey conducted by the National Opinion Research Center.²

The FRC also notes that the average heterosexual marriage is long-lasting, citing a study from the National Center for Health Statistics (PDF: 392KB/19 pages) to say that 67% of marriages last ten years and 50% last more than twenty. This study is a pretty good one too. It’s based on the National Survey of Family Growth, a probability sample of women aged 15-44.³

So far, so good. As the FRC describes heterosexual married couples, they are using research that really is probability sampled and statistically representative of married couples. (Notice, too, that the data that they have presented so far excludes all cohabiting couples.)

Now the FRC is ready to contrast heterosexual marriage to gay male relationships. This is where their arguments get really dicey, as they carefully cherry-pick poorly-constructed and out-dated studies based on convenience samples and other non-representative populations.

First, the FRC turns to a 1984 book by Joseph Harry, Gay Couples to claim that 66% of gay men in relationships had sex with someone other than their partner within the first year, and that 90% had sex outside the relationship if it lasted five years. But Gay Couples is based on a casual survey that was printed in a Chicago gay newspaper, with the response rate being well below 10%. With a response rate so low, it is important to ask why so few chose to participate. No reasonable public opinion pollster would rely in a survey with such a low response rate. Response rates below 50% raise eyebrows; 10% is pathetic.

The FRC also turns to Marshall Kirk and Hunter Madsen’s After The Ball: How American Will Conquer Its Fear and Hatred of Gays in the 90s for this juicy quote: “the cheating ratio of ‘married’ gay males, given enough time, approaches 100%.”⁴ It’s a very pithy statement, but it’s not based on a single shred of evidence — no surveys, no samples, no studies.  It’s just the authors’ own opinions offered more for amusement than enlightenment. This is hyperbole, not science.

The FRC then, in my own favorite fit of misrepresentation, turns to Maria Xiridou’s study⁵ (the famous “Dutch Study”) to claim that “A recent study of male same-sex relationships in the Netherlands found that men with steady partners have on average eight casual sex partners a year.” Later in the brief, the FRC says, “The recent Dutch study found that the average ‘steady relationship’ – which was not even monogamous – lasted 1.5 years.”

These statements are downright fraudulent. As I demonstrated in What the “Dutch Study” Really Says About Gay Couples, this study was not about same-sex relationships. It was about the sexual practices of nonmonogamous men with AIDS. Everyone over the age of thirty was excluded from the study, everyone who was HIV-negative was excluded (unless he was a partner of someone HIV-positive), and, most importantly, all monogamous couples were excluded!

When you exclude monogamous couples from a study, it should come as no surprise that the non-monogamous couples you are studying are, well, not monogamous. And when you exclude everyone over the age of thirty from a study, you will not find many long-lasting relationships – it’s nearly impossible to celebrate a silver anniversary while in your twenties. And when “steady relationship” is undefined such that it can include someone who has been “going steady” for a few weeks, it’s hardly an apples-to-apples comparison to the married heterosexual couples the FRC described in the beginning.

The FRC goes on to use a study from 1973 (yes, 1973!) to claim that only 15% of gay men and 17.3% of lesbians ever had a relationship of more than 3 years. This was a tiny, non-representative survey based on 89 men and 57 women in San Francisco and Chicago.⁶ It would be laughable to think that this is even representative of those two cities in 1973, let alone gay men and women today.

The FRC then cites Dennis Altman’s 1982 book The Homosexualization of America to claim “among gay men a long lasting monogamous relationship is almost unknown.”⁷ But Dennis Altman draws this conclusion after having read Karla Jay and Allen Young’s The Gay Report from 1979, which is possibly the most unreliable “study” ever undertaken. If you thought that the Gay Couples response rate of 10% was ridiculous, wait until you see this. The response rate for The Gay Report was just over 1%! What’s more, almost half of those participating responded to questionnaires distributed by Blueboy magazine (a sort of a gay version of Penthouse). As I demonstrate in my review of The Gay Report, this is no more representative of gays and lesbians than Penthouse readers are of heterosexuals.

The FRC then cites David McWhirter and Andrew Mattison’s 1984 book The Male Couple: How Relationships Develop to claim that to be homosexual is to be non-monogamous. This was also a non-representative sample of 156 couples that were part of the authors’ network of friends in San Diego.⁸ This study is only representative of the authors’ social circle in 1984. It’s not even representative of gay San Diegans in 1984, let alone gays and lesbians in general today.

So what do we have? The FRC cites five studies to describe gay male relationships, none of them remotely representative. Four studies are more than twenty years old (one more than thirty), conducted well before the AIDS crisis shook the gay community. Only one study is recent, but that “Dutch Study” is an AIDS study, not a “study on male same-sex relationships” as the FRC says it is. None of the “evidence” that the FRC brings before the Maryland Court of Appeals is valid. In fact, this portion of the FRC’s brief, at the very least, borders on perjury.

Besides, even if – just for the sake of argument – if any of these studies were the least bit valid, none of them provide an argument for why lesbians should not be allowed to marry.

But behind all of this rhetoric about group statistics and averages is a notion that runs completely contrary to our understanding of individual standing under the law. No man or woman is judged under the law according to the behaviors of group statistics. No married man is judged guilty of adultery by the actions of other men. No woman is judged to be an unfit mother by the actions of other mothers.

The idea that any given couple should be denied the right to marry because others may behave according to norms that we do not find acceptable is an illegitimate standard. Otherwise, there would be a number of racial, ethnic and economically disadvantaged groups who would find their rights imperiled. The FRC’s brief is un-American in that regard. And as for the fraudulent claims that they made to the court, the FRC’s brief represents an example of false witness. That is not only un-American; it is un-Christian.