The Daily Agenda for Wednesday, August 6
August 6th, 2014
Six Marriage Cases at the Sixth Circuit Court of Appeals: Cincinnati, OH. A three-judge pane of the Sixth Circuit Court will hear six — count ’em, six! — marriage appeals today in a marathon session. All four states in the Sixth Circuit — Michigan, Ohio, Kentucky and Tennessee — have marriage cases on appeals, and the Sixth Circuit apparently decided it was more efficient to give all six cases to the same three-judge panel since they all would likely touch on many of the same legal principles. Those cases will go before Federal Judges Martha Craig Daughtrey (a Clinton appointee), Jeffrey S. Sutton, and Deborah L. Cook (both are George W. Bush appointees).
The biggest case is the one from Michigan, where that state’s ban on same-sex marriage was declared unconstitutional in March. That ruling was doubly satisfying because of Federal District Judge Bernard Friedman’s thorough thrashing of Mark Regnerus’s discredited Witherspoon-funded“study” which purported to show that children of gay couples fared worse than other children. That $700,0000 study was supposed to be marriage equality opponents’ ace in the hole, but it hasn’t worked out that way. Oral arguments for DeBoer v. Snyder are scheduled for one hour, with thirty minutes allotted for each side.
Next up will be the two Ohio cases, Obergefell v. Himes and Henry v. Himes, which have been consolidated for the appeal. In the cases, the State of Ohio is appealing two lower court decisions requiring Ohio to recognize valid out-of-state marriages between same-sex couples on Ohio death and birth certificates. Each side has been allotted thirty minutes. After that, the panel will hear the two consolidated cases from Kentucky, Bourke v. Beshear and Love v. Beshear, which found Kentucky’s ban on recognizing or allowing same-sex marriages unconstitutional. For those cases, the panel has allowed fifteen minutes per side. And finally, the panel will hear Tennessee case, Tanco v. Haslam, which also required Tennessee to recognize out-of-state marriages. Those two sides were also allotted fifteen minutes each. All of this gets underway at 1:00 p.m. EDT at the Potter Stewart Federal Courthouse in Cincinnati.
Pride Celebrations This Weekend: Antwerp, Belgium; Charleston, SC; Eugene, OR; Indianapolis, IN (Black Pride); Madgeburg, Germany; Madison, WI; Malmö, Sweden; Mannheim, Germany; Moscow, ID; New Westminster, BC; Plymouth, UK; Reykjavik, Iceland; Santa Ana, CA; Swindon, UK; Toronto, ON (Leather Pride); Wilkes-Barre, PA; Windsor, ON.
TODAY’S AGENDA is brought to you by:
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TODAY IN HISTORY:
► Plymouth Colony Convicts Two Men Of “Lewd Behavior and Unclean Carriage”: 1637. The crime wasn’t sodomy — that required proof of penetration — but it was shocking nevertheless. From the official record:
John Allexander & Thomas Roberts were both examined and found guilty of lewd behavior and unclean carriage one with another, by often spending their seed one upon another, which was proved both by witness & their own confession; the said Allexander [was] found to have been formerly notoriously guilty that way, and seeking to allure others thereunto. The said John Allexander was therefore censured [sentenced] by the Court to be severely whipped, and burnt in the shoulder with a hot iron, and to be perpetually banished [from] the government [territory] of New Plymouth, and if he be at any time found within the same, to be whipped out again by the appointment [order] of the next justice, etc., and so as oft as he shall be found within this government. Which penalty was accordingly inflicted.
Thomas Roberts was censured to be severley whipped, and to return to his master, Mr. Atwood, and serve out his time with him, but to be disabled hereby to enjoy any lands within this government, except he manifest better desert.
[Source: William B. Rubenstein. Lesbians, Gay Men, and the Law (New York: New Press, 1993): 47-53.]
► A Case Of Adhesiveness “So Excessive, As To Amount To a Disease”: 1836. Today we recognize phrenology as a pseudoscience, but in the late 1700s the attempt to map various human characteristics to different regions of the brain was notable for two things: 1) it reflected a growing realization among scientists that all of those things associated with the mind — thoughts, feelings, and emotions — were actually products of the brain rather than the heart, eyes or gut; and 2) it reflected a growing understanding that the brain wasn’t just a lump of homogenous gelatinous tissue, but was organized in some kind of a structure with specialized functions taking place in different regions of the brain.
In these ways, phrenology set the stage for the later development of neuroscience and psychiatry. But until then, it also became the basis for some strange and sometimes dangerous beliefs, particularly the belief that the shape of a person’s skull could reveal that individual’s intelligence and character. In some cases, these beliefs took on racial and nationalistic tones, as the skulls of South Asians and Africans were compared with various European skulls and found to be deficient in the eyes of many phrenologists.
The theories behind phrenology were first articulated by the German physician Franz Joseph Gall, who described the process of reading the shape of an individual’s skull to ascertain that person’s strengths and weaknesses. Gall’s collaborator, Johann Spurzheim carried Gall’s theories to England and Scotland in a series of lectures. Scottish lawyer George Crombe, whose interest in phrenology was based on the desire to understand what made criminals criminal, brought those lectures to the general public’s attention when he founded the Phrenological Society in 1823. Between the Society’s Phrenological Journal and Crombe’s best-selling books, Elements of Phrenology (1824), and The Constitution of Man and its Relationship to External Objects (1828), he drew attention to the emerging science from both professionals as well as in the popular press.
Among those drawn to the new “science” was a young Scottish surgeon, Dr. Robert Macnish. In 1837 he published An Introduction to Phrenology, which was both a paean to the “genius of Gall,” and a vigorous defense of Gall’s controversial theories. Macnish would wind up being a minor figure in phrenology, owing to his early death (unmarried) at the age of 38 that same year. But because Macnish provides us with the earliest description of what we would now recognize as homosexuality in a medical journal in 1836 — and we’ll get to that in a moment — his views on phrenology are particularly relevant. Macnish’s book, much like a catechism, is organized as a series of questions and answers. Here, in laying out the foundation of the theories of Phrenology, he explained how the brain was organized:
There is irresistible evidence to demonstrate that the brain is not a single organ, but in reality a congeries of organs, so intimately blended, however, as to appear one. Each of these is the seat of a particular mental faculty; so that, as the whole mind acts through the medium of the whole brain, so does each faculty of the mind act through the medium of a certain portion of the brain. Thus, there is a part appropriated to the faculty of Tune, another to that of Imitation, and so on through the whole series. The brain, in short, as Dr. Spurzheim observes, “is not a simple unit, but a collection of many peculiar instruments.”
These “instruments” were called “organs” or “faculties.” If a particular organ was especially well-developed, then the area of the skull corresponding to that organ would be enlarged, perhaps as a bulge or a lump. A deficiently developed organ would correspond to a smaller area, perhaps an indentation or a recessed area. By conducting a full “reading” in which precise measurements were made for each of the organs (Macnish listed 35 such organs; some phrenologists listed as many as 95), an individual’s entire intellectual, emotional and moral fitness could be determined.
Two particular organs hold special interest to those who would look for evidence of homosexuality in history, since that particular word did not exist back then (see May 6). To find the first organ of interest, reach back and place your fingers on your upper neck at the base of your scull. Now move outward toward your ears. Feel those two bumps on either side of your skull? Those constitute the organ of Amativeness, which — and I’ll bet you didn’t know this — is the source of your sex drive. Or as Macnish explained, “the seat of the amative propensity”:
This point is now universally admitted by physiologists, and is supported by so many facts that it can no longer be doubtful. The effects of cerebellar disease in calling the sexual feeling into vehement action, demonstrate conclusively that the latter has its seat in the particular part of brain alluded to. The great purpose served by Amativeness is the continuance of the species.
…(I)t is generally very full in those unfortunate females who walk the streets, and gain a livelihood by prostitution. In what are called “ladies’ men” the organ is small. These individuals feel towards women precisely as they would to one of their own sex. Women intuitively know this, and acquire a kind of easy familiarity with them which they do not attain with men of a warmer complexion.
So already you can see that this is the first organ we would want to pay attention to.
Now, from Amativeness, run your fingers upward and inward toward the back center of your skull, at roughly a 45 degree angle. Feel where your skull sticks out furthest out the back? That is Philoprogenitiveness. Macnish wrote that its function was “(t)o bestow an ardent attachment to offspring, and children in general; and, according to some phrenologists, to weak and tender animals.” Phrenologists believed that Philoprogenitiveness was generally better developed in women than in men, as evidenced by their maternal instinct. Now move your fingers upward and outward. You may notice a pair of smaller bulges forming a kind of a corner of your skull. These two bulges collectively are the organ of Adhesiveness, and this is the second organ that we would want to pay close attention to. Macnish explained Adhesiveness this way:
(It) is that portion of the brain with which the feeling of attachment is connected. No faculty, save Destructiveness, is displayed more early than this: it is exhibited even by the infant in the nurse’s arms. When very strong, it gives ardent strength of attachment and warmth of friendship.
Does this faculty constitute love?
Not strictly speaking; for love, in the legitimate sense of the word, is a compound of Amativeness and Adhesiveness. Such is the love which the lover bears to his mistress, and the husband to his young wife. The attachment of a parent to his child, or of a brother to his sister, is not, in reality, love, but strong Adhesiveness—powerfully aided, in the former case, by Philoprogenitiveness.
Is this faculty more energetic in men or women?
Generally in the latter; although in men there are not wanting instances of the most violent attachments, even towards their own sex. Such is represented to have been the case with Pylades and Orestes, and with Damon and Pythias, whose attachment to each other (the result of excessive Adhesiveness) defied even death itself. What beautiful pictures of friendship between men, have been drawn by Homer, by Virgil, and by the sacred writers, in the instances of Achilles and Patroclus, of Nisus and Euryalus, and of Jonathan and David!
If an individual’s Amativeness, Philoprogenitiveness and Adhesiveness were well-developed — and by that I mean if all of those bulges were prominent — then a happy and fulfilling family life was assured. But if, for example, a person’s Amativeness was deficient but his Adhesiveness was prominent, then you might have a situation that Macnish briefly described in the August 6, 1836 edition of the journal The Lancet. As far as I know, this single paragraph is the earliest description of romantic love between two men to appear in a English-language medical journal:
ADHESIVENESS. — I knew two gentlemen whose attachment to each other was so excessive, as to amount to a disease. When the one visited the other, they slept in the same bed, sat constantly alongside of each other at table, spoke in affectionate whispers, and were, in short, miserable when separated. The strength of their attachment was shown, by the uneasiness, amounting to jealousy, with which the one surveyed any thing approaching to tenderness and kindness, which the other might show to a third party. This violent excitement of adhesiveness continued for some years, but gradually exhausted itself, or at least abated to something like a natural or healthy feeling. Such attachments are, however, much more common among females than among the other sex. — Dr. Macnish.
Macnish wasn’t the only one to associate an overdeveloped Adhesiveness, when accompanied by an underdeveloped Amativeness, with what we would today recognize as homosexuality. Phrenology was immensely popular in the United States through much of the first two-thirds of the nineteenth century, with Walt Whitman one of its devotes. In Democratic Vistas (1871), Whitman spoke of “adhesive love, at least rivaling the amative love.” When Whitman published his first edition of Leaves of Grass in 1855, he called phrenologists “the lawgiver of poets” in his introduction, and he scattered phrenological terms and concepts throughout his poetry, like these lines from “Song of the Open Road”:
Here is adhesiveness, it is not previously fashion’d, it is apropos;
Do you know what it is as you pass to be loved by strangers?
Do you know the talk of those turning eye-balls?
[Sources: George Crombe. Elements of Phrenology 3rd ed. (Edinburgh: John Anderson, Jr., 1828). Available online at Google Books here.
George Crombe. The Constitution of Man and its Relationship to External Objects 7th ed. (Edinburgh: John Anderson, Jr., 1828). Available online at Google Books here.
Robert Macnish. An Introduction to Phrenology 2nd ed. (Glasgow: John Symington & Co., 1837). Available online at Archive.org here.]
► John “Bunny” Breckinridge: 1903-1996. Independently wealthy, he was the great grandson of U.S. vice president John Breckinridge and the founder of Wells Fargo Back Lloyd Tevis. He was born in Paris and studied at Eton College and Oxford University. Gravitating toward acting, he performed in Shakespeare in England before moving to San Francisco in the late 1920s. He had all of the advantages that life could offer, but today the one thing he is the most known for would have to be his appearance as “The Ruler” in Ed Wood’s 1956 film Plan 9 From Outer Space. The film featured Los Angeles late-night television movie host Vampira and the narcotics-addled Bela Lugosi, the latter made possible by scenes spliced into the film which had been shot for another abandoned project shortly before Lugosi died. The film was so bad it remained unreleased until 1959 because distributor after distributor refused to take it on. Michael Medved named it “The Worst Film Ever” in his 1981 book, The Golden Turkey Awards. Despite, or perhaps because of, that nomination, Plan 9 has somehow managed to become a camp classic, although copious amounts of alcohol is generally considered a requirement to render the film tolerable.
Breckenridge lived the sort of life for whom the word “eccentric” was coined. He became a drag queen in Paris in 1927, where he married the daughter of a reputed French countess. The couple had a daugher, then divorced in 1929, and he moved to the U.S. Two decades later, as all of America was riveted over the news of Christine Jorensen’s gender re-assignment surgery (see May 30), Breckenridge decided to give it a whirl. He announced plans in 1954 to go to Denmark for the surgery so he could marry his then-boyfriend, but those plans fell apart when a Judge in San Francisco ordered him to make good on an earlier agreement to financially support his elderly blind mother. He then decided to go to Mexico for a less expensive operation, but a car accident scotched those plans. I’ll let Bill Murray, who played Breckenridge in Tim Burton’s 1994 biopic Ed Wood, take it from there:
Shortly after the Plan 9’s release, Breckenridge was arrested for taking two underage boys on a trip to Las Vegas. That landed him in the Atascadero State Hospital for the Criminally Insane for about a year. After his release, he returned to San Francisco and continued to appear in small local stage productions. He also continued to maintain another home in New Jersey. By the time he became famous again thanks to Burton’s Ed Wood, he was too ill to take part in any publicity events. He died four years later in a Monterey nursing home at the age of 93.
Here’s a clip of the real Bunny Breckenridge from Plan 9:
You can also torture yourself with the full movie here.
► Andy Warhol: 1928-1987. He didn’t invent pop art, but it is more his brand than anyone else’s. Andrej Varhola was born to working class Lemko/Ukrainian immigrants in Pittsburgh, and attended an Eastern Rite Byzantine Catholic Church. Maybe it was the religious icons that filled the church which inspired him to make icons of ordinary things and extraordinary people. Brillo pads and soup cans were more than their mere packages after his treatment, electric chairs became sculptures of transcendent mystery, and Marylin Monroe and Jacqui Onassis became the Madonnas and St. Catherines of the modern era. Even the white-haired wig he wore later in life became an icon of his personality. “I love Los Angeles,” he once said. “I love Hollywood. They’re so beautiful. Everything’s plastic, but I love plastic. I want to be plastic.”
Warhol’s personal life was as scandalous as his films and artwork. In 1968, he was shot by Valerie Solanas, a minor artist working off and on at Wahol’s studio The Factory, and very nearly died. But he would go on to live two more decades, and he remained a devout Catholic, attending Mass nearly daily. When he died after complications from gallbladder surgery, he was buried in Pittsburgh following a traditional Eastern Rite funeral. His will left virtually his entire estate for the establishment of the Andy Warhol Foundation for the Visual Arts, which is one of the the largest grant-making foundations for visual arts in the U.S. And if you ever visit Pittsburgh without stopping in to the Andy Warhol Museum, then I don’t even want to know you.
► Angie Zapata: 1989-2008. She died too young at only eighteen when she was savagely beaten to death by Allen Andrade, first with his fists and then with a fire extinguisher to the head. They had met through a social networking site and spent three days together, including one sexual encounter, before Andrade found out that Angie was transgender. In his murder trial, Andrade’s lawyer posed the trans-panic defense, saying that Andrade beat Angie after she smiled at him and said, “I’m all woman”. That, according to Andrade’s lawyer, was a “highly provoking act.” The jury didn’t buy it fortunately, and Andrade was found guilty of first degree murder with hate crime enhancements, and sentenced to life imprisonment without the possibility of parole.
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And feel free to consider this your open thread for the day. What’s happening in your world?
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.
Michigan Couples Rush County Clerks Offices For Marriage Licenses (Updated)
March 22nd, 2014
News reports are crediting a Lansing couple, Glenna DeJong, 53, and Marsha Caspar, 52, as the first same-sex couple to marry in Michigan this morning after a Federal judge struck down Michigan’s Marriage Amendment (MMA) as unconstitutional late yesterday afternoon. They were married, after twenty-seven years together, shortly after the Ingham County Clerk’s office opened at 8:00 a.m. and issued them a license.
Ingham County was one of a handful of Michigan to open for special hours today specifically to issue marriage licenses to same-sex couples. The other counties where clerks have opened today for special hours included Washtenaw (Ann Arbor), Muskegon (Muskegon, on Lake Michigan) and Oakland (Pontiac).
Michigan Attorney General Bill Schuette has already filed a notice that he was appealing the decision to the Sixth Circuit Court of Appeals, and he filed a separate request to the Sixth Circuit to stay the lower court’s ruling. The Sixth Circuit has yet to act on the request.
Update: From the Detroit Free Press:
The U.S. 6th Circuit Court of Appeals will not act over the weekend on a stay requested by Michigan Attorney General Bill Schuette in the gay marriage case, the court said in an order posted today.
The court has given the plaintiffs in the case, April DeBoer and Jayne Rowse, until Tuesday to file a response to Schuette’s request for a stay of U.S. District Judge Bernard Friedman’s Friday order declaring Michigan’s voter-approved ban on gay marriage unconstitutional.
More than two hundred couples were able to marry in the four counties which opened their offices today. This notice from the Sixth Circuit Court of Appeals indicates that thousands more will be able to marry beginning on Monday when County Clerks Offices open statewide.
Update: The Sixth Circuit late Saturday issued a temporary stay until Wednesday. Again, from the Detroit Free Press:
The U.S. 6th Circuit Court of Appeals, after first signaling it would not intervene in Michigan’s gay marriage case until Tuesday, posted a new order late Saturday imposing a stay in the case until Wednesday. …
“To allow a more reasoned consideration of the motion to stay, it is ordered that the district court judgment is temporarily stayed until Wednesday,” the 6th Circuit said in an order late Saturday.
About 323 marriage licenses had been issued in four Michigan counties before the Sixth Circuit issued its stay.
Federal Judge Strikes Down Michigan Marriage Ban
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.
Michigan Gay Marriage Ban Trial Ends With A Bang
March 7th, 2014
Michigan’s gay marriage trial ended on an explosive note today, with the state’s final witness saying he believes unrepentant homosexuals are going to hell.
His views emerged following a question from plaintiffs attorney Ken Mogill, who is fighting to overturn Michigan’s ban on gay marriage.
“Is it accurate that you believe the consequence of engaging in homosexual acts is a separation from God and eternal damnation?” Mogill asked the state’s expert, then added, “in other words, they’re going to hell?”
“Without repentance, yes,” answered the expert, Canadian economist Douglas Allen, the last witness to testify on behalf of the state in a trial that could make Michigan the 18th state to legalize gay marriage.
Things didn’t go well at all for the State of Michigan, which is defending the ban in Federal Court. The State’s first witness, a philosopher from Princeton, was disqualified as an expert witness. That testimony was supposed to tee-up Mark Regnerus, the author of the widely discredited report alleging that children of same-sex parents have poorer outcomes, to take the stand for the first time since the report’s publication. But just before Regnerus took the stand, his colleagues at the Department of Sociology at the University of Texas issued a statement distancing themselves from his testimony:
Like all faculty, Dr. Regnerus has the right to pursue his areas of research and express his point of view. However, Dr. Regnerus’ opinions are his own. They do not reflect the views of the Sociology Department of The University of Texas at Austin. Nor do they reflect the views of the American Sociological Association, which takes the position that the conclusions he draws from his study of gay parenting are fundamentally flawed on conceptual and methodological grounds and that findings from Dr. Regnerus’ work have been cited inappropriately in efforts to diminish the civil rights and legitimacy of LBGTQ partners and their families. We encourage society as a whole to evaluate his claims.
That set the stage for Regnerus’s testimony:
Critics said Regnerus’ 248-person study included just two who had been raised from birth to adulthood by gay couples. When asked Monday how those two fared, Regnerus replied, “Pretty good.”
On Tuesday, (ACLU attorney Leslie) Cooper asked Regnerus how big a study would need to be to satisfy his curiosity about child welfare and how much it would cost. He said it would cost tens of millions of dollars over several years. Cooper asked whether he believed such funding could be approved, and Regnerus said it was unlikely.
“So,” Cooper asked, “if a nationally representative, large-scale longitudinal study is never done because it’s too expensive, is it your opinion that same-sex people should never be allowed to marry?”
Refusing to answer that question, Regnerus deflected into mumbo-jumbo about “common expectations about marriage.” He was also asked about other types of families: poor families, less educated families, remarried families, where statistics also show poorer outcomes in children. Should they be barred from marrying for the same reasons?
Regnerus said no regarding the poor and less educated, but said he didn’t have an opinion about heterosexual remarriage.
“You don’t have an opinion whether prior divorced people should be allowed to get married?” Cooper asked.
“It exists,” he said. “I don’t think much about that … I think it would be nice if (couples) can work it out.”
Regnerus also insisted he hadn’t formed an opinion on whether it is better for a child in foster care to remain in a foster home or be adopted by a same-sex couple.
Throughout the proceedings, Regnerus stuck to his insistence that biological, intact families are best and that anything else, including adoption, is “a concession.”
It was an excruciating grilling, which the free-lance reporter, Steve Friess, live-tweeted on Monday and Tuesday:
Friess is back live-tweeting closing arguments today, this time for Buzzfeed.
Federal Judge Sets February Trial Date for Michigan Marriage Ban Lawsuit
October 16th, 2013
Federal District Court Judge Bernard A. Friedman turned down requests to issue a summary judgment either for or against the constitutionality of Michigan’s ban on marriage and adoption by same-sex couples. A lesbian couple who, between them, have adopted three special needs children, had asked the court to declare the state’s constitutional ban, which was approved by Michigan voters in 2004, unconstitutional under the Federal constitution. There had been widespread expectation that Judge Friedman would rule on the ban’s constitutionality. A trial date has been set for February 25.
Michigan judge delays marriage ruling
March 7th, 2013
Today U.S. District Judge Bernard Friedman heard arguments from the couple who want to adopt each other’s children as to how the Michigan marriage laws unfairly discriminate against them. But while Judge Friedman noted that their argument was compelling, he’s delaying his decision.
Friedman said he would benefit from seeing how the U.S. Supreme Court handles cases involving a gay marriage ban in California as well as the federal Defense of Marriage Act. Arguments are scheduled later this month in Washington.
An immediate ruling in Michigan “would not be fair to either side,” Friedman said while holding court in front of students at Wayne State University law school.
“They’re going to give us something to hang our hat on,” he said of the Supreme Court.
Which, disappointing as it is, may be the most logical decision.
Michigan enters the race for 10
March 6th, 2013
All year it’s been up in the air which state would be the tenth state to achieve marriage equality. The most likely have been Illinois and Minnesota, but Hawaii and Rhode Island have teased us. Even Wyoming briefly toyed with the idea. But now a dark horse is making strides.
You may recall back in August 2012 when two lesbians seeking to adopt each other’s children were told they had the wrong complaint. The judge in the case told them that their problem wasn’t adoption law, but marriage law. It is perfectly reasonable (from a legal perspective) for a state to decide to restrict joint adoption to those people who were sufficiently committed to each other to get married. The discrimination in this case wasn’t in adoption, it was in that they couldn’t marry.
So the ladies refiled their challenge as a marriage discrimination complaint. They had to; they have kids they need to look out for.
And now the judge is ready to rule. (ABC)
U.S. District Judge Bernard Friedman will hear arguments in the case Thursday at a Detroit law school, although he hasn’t indicated when he’ll make a ruling. If he concludes the amendment violates the U.S. Constitution, gay-marriage supporters say same-sex couples would immediately be allowed to wed and adopt children.
Friedman was appointed by President Reagan.
Michigan marriage challenge update
September 7th, 2012
A lesbian couple, April DeBoer and Jayne Rowse, sued the state of Michigan over its adoption laws. Their lawyer explains: (Detroit Free Press)
One of their lawyers, Dana Nessel, pointed out that the state of Michigan certified DeBoer and Rowse to become foster parents together but won’t allow them to both adopt. Michigan law only allows singles or married couples to adopt.
“The state gave them children who had been abandoned and surrendered at birth to raise,” Nessel said. “And they are raising them with all the love, nurturing, care and affection that any parent would give to any child. But the state then rewards these women by telling them while they are good enough to foster as a couple, they aren’t good enough to adopt as a couple. We submit that this is pure and utter insanity.”
But the judge in the case surprised them by noting that they were fighting the wrong battle. Their issues would be over if they married and it’s really the marriage ban that is causing them to be subjected to discrimination.
Personally, I get that. I can see how a state could argue that if a couple was unwilling to make the legal commitments binding themselves together that they were not ideal to jointly adopt children. But it can’t then turn around and refuse to let the couple make such legal commitments.
So April and Jayne have updated their petition.
DeBoer and partner Jayne Rowse decided to take the battle they’re already fighting in U.S. District Court in Detroit one step further today. They amended their complaint in front of Judge Bernard A. Friedman that asks for the right to adopt as a same-sex couple, instead challenging Michigan Gov. Rick Snyder, Attorney General Bill Schuette and Oakland County Clerk Bill Bullard Jr. to declare Michigan’s ban on same-sex marriage and partnerships unconstitutional.
“This is totally not what we expected by any means,” Rowse said today, away from the podium during an announcement in the Penobscot Building. “We wanted to keep the kids’ rights at the forefront, the rights that any other child has.”
Lesbian couple suing for adoption rights are told that they have the wrong issue
August 29th, 2012
April DeBoer and Jayne Rowse, both nurses, have three children: (Detroit News)
DeBoer adopted a girl, born in February 2010 to a 19-year-old mother.
Rowse, meanwhile, adopted two boys, ages 3 and 2. One was surrendered by his biological mother and the other was abandoned by his mother, a drug-addicted prostitute
But Michigan state law will not allow them to adopt the children jointly, thus giving the children the extra rights and security that come from two-parent adoption (which are considerable). They asked U.S. District Court Judge Bernard A. Friedman, a 68 year-old Reagan appointee, to overturn the state’s law as unconstitutional.
He said, “no”. Or, at least, “not yet”. Because they really were focusing on the wrong issue:
Friedman said Wednesday he’d consider arguments from both sides before rendering his decision, but will first allow the plaintiffs ten days to consider amending their complaint to include a challenge to the state’s ban on same-sex marriages.
“That’s the underlying issue,” Friedman told attorneys, noting that he’s “not suggesting they do it.”
“Both arguments are about marriage and how broad or narrow it should be. That’s the bottom line.”
Oh. Well, come to think of it, that would be the real issue, wouldn’t it?
Of course, just because Judge Friedman correctly noted the real discrimination issue doesn’t mean that he will find the ban unconstitutional. But it does suggest that he correctly understands DeBoer and Rowse’s underlying problem. So I think it is at least likely that he’s sympathetic to giving the marriage issue a fair hearing. And we seldom need more than a fair hearing to point out the obvious.
How very fascinating it would be for DeBoer and Rowse to sue for adoption rights only to find that they’ve overturned the state’s marriage ban.