Michigan Files Regnerus-Free Marriage Appeal Brief
May 8th, 2014
When U.S. District Court Judge Bernard Friedmam declared Michigan’s same-sex marriage ban unconstitutional last March, he spilled considerable ink all over the state’s expert witness, Mark Regnerus, whose discredited Witherspoon-funded “study” purported to show that children of gay couples fared worse than other children. The problem was — and this came out in the cross-examination of the state’s star witness — the study included only two children who were actually raised by gay parents, and Regnerus admitted that they came out “Pretty good.” In his written opinion, Judge Friedman blasted “his 2012 ‘study’ (which) was hastily concocted at the behest of a third-party funder” as “flawed on its face.”
Michigan Attorney General Bill Schuette appealed the decision, and in a brief filed with the Sixth District Court of Appeals, he quietly omitted all references to Regnerus’s bogus study, and argued instead that same-sex marriage should be banned not because experts believe that same-sex parents are bad parents, but because voters believe it:
In preserving marriage as between a man and a woman, a reasonable voter might have thought that it is beneficial when children are raised in a home with both a mom and a dad. Another reasonable voter might have thought that this definition encourages those couples with the inherent ability to have children (i.e., opposite-sex couples) to enter into a committed, exclusive relationship, for the benefit of any children they might have. …
This appeal is not about approval or disapproval of same-sex relationships or sexual orientation. Nor is this appeal about a gay or lesbian individual’s ability to be a parent. This case is not about single moms’ and dads’ ability to raise children. As a society, we wish that all children had loving parents, no matter what their sexual orientation may be.
Because Judge Friedman wrote that he could not find that Michigan voters acted out of animus when approving the state’s constitutional amendment outlawing same-sex marriage, Schuette’s brief takes as its central argument that striking down the constitutional amendment “demeans democracy,” and cites Justice Anthony Kennedy’s opinion in a Supreme Court ruling (Schuette vs BAMN) upholding Michigan’s ban on affirmative action. Singling out Kennedy this way is noteworthy. With Kennedy considered the potential swing vote in any upcoming Supreme Court ruling on marriage equality, this brief was more or less written to Kennedy, rather than to the judges at the Sixth District Court of Appeals:
Justice Kennedy’s admonition on this point in Schuette is worth repeating: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” 572 U.S. __, slip op. 17. To put this in perspective, more than 45 million American voters across the country have voted to retain the definition of marriage as between one man and one woman. Respect for the dignity of these millions of voters, who must be presumed to be “decent and rational,” should make courts reluctant to conclude that support for maintaining the definition of marriage is irrational. After all, a decision by this Court that there is no rational basis for Michigan’s voters to have defined marriage as they did necessarily means that not only Michigan’s voters, but more than 42 million other American citizens who have voted the same way, did not have among them a single conceivable rational basis for their votes.
But they’re still not ready to give up their straight-parents-are-the-best argument. They’re just pinning it on voters, and not the experts:
The only question at issue, then, is whether any conceivable reason supports the people’s decision to retain the definition of marriage. Under the governing standards for rational-basis review, the people’s decision must be given the benefit of the doubt—it must be upheld if their policy choice is at least debatable, and even if it is under-inclusive or over-inclusive (or both).
Defining marriage as between one man and one woman satisfies this test. The State has a legitimate interest in marriage precisely because of marriage’s inherent connection to children. The vast majority of children born in Michigan (and the United States and the world) are born as a result of the sexual union of a man and a woman. Promoting marriage as between a man and a woman thus recognizes that every child should have the opportunity to know and have a relationship with his or her biological mother and father, and it increases the likelihood that the most common type of procreation will occur in a long-term, committed relationship. It was reasonable for Michigan voters to think that this is a beneficial setting for children, and thus to link marriage to procreation—the biological fact that every child has a mother and a father.
Michigan isn’t the only state to drop Regnerus like a hot potato. Two weeks after his study went down in flames in the Michigan case, attorneys for the Utah Attorney General’s office filed a special “Supplemental Authority clarifying position re: Regnerus study” with the Tenth Circuit Court of Appeals in Denver, in which the state disavowed its own citing of the Regnerus study in the original appeals brief filed in February. It looks like the word has gone out: Regnerus’s study is radioactive and the nearly $800,000 spent on it was wasted — unless you count its influence in Russia as a success.