March 21st, 2014
U.S. District Court Judge Bernard Friedman issued a ruling today striking down Michigan’s ban on same-sex marriage as a violation of the Equal Protection clause of the U.S. Constitution. This ruling marks the ninth federal court victory in a row for marriage equality since the U.S. Supreme Court’s Windsor decision last summer striking down portions of the Defense of Marriage Act.
The Reagan-appointee to the Federal bench heard testimony in the case two weeks ago which featured Mark Regnerus, the author of the widely discredited report alleging that children of same-sex parents have poorer outcomes, as the state’s star witness. His testimony didn’t hold up well under cross examination. What’s more, his own sociology department at the University of Texas issued a statement distancing themselves from Regnerus on the very morning he was set to testify. All that had Judge Freidman devoting two pages of his thirty-one page opinion to Regnerus’s testimony:
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.”
The primary funder was the the anti-gay Witherspoon Institute, which provided $695,000 for the study. The Bradley Institute kicked in another $90,000. Anti-gay activist Robert George sits on the board of directors of both organizations, as well as the editorial advisory board of the LDS-owned Deseret News, which was the only paper to receive an advance copy of the study. The study had been fast-tracked to publication by the conservative editor of the journal Social Science Research. Judge Friedman found the study’s funding source was at least partly behind the study’s appalling methodology:
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.
Regernus’s testimony was part of a larger argument that the state of Michigan tried to make in support of the ban on same-sex marriage. Attorneys for the state based much of their case on what they called the “optimal environment” for raising children. Judge Friedman found that position “absurd”:
[T]he 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. According to Rosenfeld’s study, children raised by suburban residents academically outperformed those children raised by rural and urban residents. Likewise, “middle class and poor families are ‘sub-optimal’ compared to well-off families, and couples with less formal education are “sub-optimal” compared to couples with more formal education.” Pls.’ Ex. 31 at 5. A child’s racial background is another predictive indicator of future success, as the study showed that “the probability of making good progress through school is greater in the U.S. for children of Asian descent than for children of all other racial groups.” Id. 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. Optimal academic outcomes for children cannot logically dictate which groups may marry.
The state also argued that any changes to the institution of marriage should “proceed with caution” before opening it up to same-sex couples. Judge Friedman found that argument “not persuasive”:
But the calculus is fundamentally altered when constitutional rights are implicated because “any deprivation of constitutional rights calls for prompt rectification.” Watson v. Memphis, 373 U.S. 526, 532-533 (1963). “The basic guarantees of our Constitution are warrants for the here and now and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled.” Id. 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. Were the Court to accept this position, “it would turn the rational basis analysis into a toothless and perfunctory review” because “the state can plead an interest in proceeding with caution in almost any setting.” Kitchen v. Herbert, No. 13-217, 2013 U.S. Dist. LEXIS 179331, at *77 (D. Utah Dec. 20, 2013). Rather, the state must have some rationale beyond merely asserting that there is no conclusive evidence to decide an issue one way or another. See Perry, 704 F. Supp. 2d at 972 (quoting Romer for the proposition that “[e]ven under the most deferential standard of review . . . the court must ‘insist on knowing the relation between the classification adopted and the object to be attained.'”). Since the “wait-and-see” approach fails to meet this most basic threshold it cannot pass the rational basis test.
The state also argued that it had a legitimate interest in upholding “tradition and morality”:
The difficulty with this justification is two-fold. First, the Supreme Court has held that tradition alone does not satisfy rational basis review. See Heller v. Doe, 509 U.S. 312, 326 (1993) (stating that the “[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.”). Second, traditional notions of marriage are often enmeshed with the moral disapproval of redefining marriage to encompass same-sex relationships. On this point, many federal courts have noted that moral disapproval is not a sufficient rationale for upholding a provision of law on equal protection grounds. See Massachusetts v. U.S. Dept. of Health and Human Servs., 682 F.3d 1, 15 (1st Cir. 2012) (invalidating section 3 of the Defense of Marriage Act because the statute expressed a moral disapproval of homosexuality)…
And finally, in the throw-all-the-spaghetti-against-the-wall-to-see-what-sticks strategy of the state’s attorneys, they argued that marriage was solely a state question, and they even tried to cite Windsor to support that argument:
The state defendants gloss over one important caveat. While the justices recognized the state’s expansive power in the realm of domestic relations, they also noted that this power has its limits. Writing for the majority, Justice Kennedy stated that domestic relations “laws defining and regulating marriage, of course, must respect the constitutional rights of persons . . . but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the states,” id. (citing Loving) (internal quotations omitted), and that “[t]he states’ interest in defining and regulating the marital relation [is] subject to constitutional guarantees . . .” Id. at 2692. These statements are not merely surplusage, and as one district astutely remarked, “[a] citation to Loving is a disclaimer of enormous proportion.” Bishop, 2014 U.S. Dist. LEXIS 4374, at *66.
…Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA cannot stand.
Because Judge Friedman did not issue a temporary stay against his ruling, there had been reports now that an unknown number of clerk offices in Michigan are re-opening to begin issuing marriage licenses to same-sex couples. So far, it appears that the ruling came down after most of the county clerk offices had closed. Unless some of them open for special hours this weekend, the earliest that anyone will be able to marry will be Monday morning.
Meanwhile, Michigan Attorney General Bill Schuette has already filed a notice that he was appealing the decision to the Sixth Circuit Court of Appeals. In a separate filing, he asked the Sixth Circuit to stay the lower court’s ruling.
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