Michigan Files Regnerus-Free Marriage Appeal Brief

Jim Burroway

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.

David in the O.C.

May 8th, 2014

“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.”

No, there is no basis to assume that the people that voted to discriminate against gay citizens were decent and rational. Just like the millions of people that voted half a century ago to ban interracial marriages. Were the 72% of the populous that supported bigotry, decent and rational? Doubtful.

L. C. Burgundy

May 8th, 2014

Schuette is, I am embarrassed to admit, my AG. He is an old white heterosexual rich man’s old white heterosexual rich man. An absolute caricature.

The majority do not hold popular referenda on the rights of minorities in this country. Schuette is doing his level best to kill the republic.

Eric Payne

May 8th, 2014

If Michigan is going to use this argument, then I wonder, wouldn’t a logical extension of that argument be: Did a majority of registered voters of Michigan decide this issue, or was this question decided by a simple majority of votes cast on this issue? Since this issue required an affirmative vote to pass, if a majority of Michigan registered voters did not cast an affirmative vote, would that not then indicate changing the state Constitution was not an action they condoned?


May 8th, 2014

Oh well, I guess when you’re in a losing fight any sad argument will do.


May 8th, 2014

I would bet that a majority of the public believes that children are better off having religious parents. And in that case it would be perfectly fine to ban atheists from civil marriage.

Many and perhaps a majority believe that children raised in homes where both mother and father practice the same religion so it would be well to ban civil marriages between people of different religions.

Schuette reaffirms an old adage. It’s better to remain silent and let people think you are ignorant than to open your mouth and prove it.

Bose in St. Peter MN

May 8th, 2014

“the court decided that the testimony of every one of the State’s witnesses was not credible and not entitled to any weight.”

The state is upset that Girgis was not deemed qualified as an expert, even though Scalia cited him in his Windsor dissent.

And, Regnerus’ claim that kids need close biological relatedness still advances as a common-sense claim because adopted people often seek out their bio parents.

This amuses me: “Without [the hetero-only marriage]
definition, no institution in society would reinforce the idea […] that mothers and fathers have, in general, different parenting strengths.”
So, the Catholic Church isn’t an institution? Or, it will stop firing same-sex married teachers, musicians and other staff as a means of “reinforcing” opposite-sex marriage? Riiiiight.


May 8th, 2014

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).

Under this logic, wouldn’t any referendum hold up to rational basis review? What would be the point of even having rational basis as a standard if a referendum alone was enough to satisfy it?

And I’m not buying that “debatable” crap, either. Any contrasting views mentioned before the election could be used as evidence to show the issue was “debatable.” The fact that over 50% of the voters chose Policy A over Policy B could be evidence that Policy A is at least “debatable.” The idea that there doesn’t exist firm, rigorously confirmed proof that Policy A is irrational could be considered as evidence of Policy A being “debatable.”

On a separate note, let’s count the number of cliches in the first 11 pages of this brief:

– The desperate appeal to Justice Kennedy
– Mention the will of 2.7 million(!!!!!!!!!!) voters
– Baker v. Nelson
– The simple biological fact that marriage is based on procreation
– The long history of the! one! and! only! definition of marriage
– The fact that the 2.7 million(!!!!!!!!!!!) voters weren’t necessarily acting of animus
– The rare mention of the people who matter most in this case: gay couples


May 8th, 2014

Eric Payne, you have a great point. In NC, only 35% of registered voters even voted on their amendment. So, the results are hardly the “overwhelming support for traditional marriage” that pro-amendment politicians claim them to be. An interesting extension of that would be to ask how many of those acted out of animus. The matter of animus seems to be a number game – not whether there is even a single, eensy weensy rational reason for opposing marriage equality, but whether the rational reason or the animus reason was the primary reason behind the actions of those supporting the law (at least, when I have seen it argued to support a legislative action). So, by extension, this argument would have to show not only that most voters support the law, but also that a majority of voters support the law with a rational reason. Even if the law found success on the first measure, it would likely fail on the second. Of course, the rational nature of the parenting argument is debatable, no matter how many voters relied on it to make their decision.

Mark F.

May 8th, 2014

“I would bet that a majority of the public believes that children are better off having religious parents. And in that case it would be perfectly fine to ban atheists from civil marriage.

Many and perhaps a majority believe that children raised in homes where both mother and father practice the same religion so it would be well to ban civil marriages between people of different religions.”

No, because that would be a clear violation of current First Amendment precedents.

And “rational basis” is a pretty low bar to clear. A law has to be patently ridiculous to fail it. “Rational basis” does not mean “good basis.”


May 9th, 2014

It’s actually a pretty clever strategy. I wouldn’t be shocked for it to ultimately turn out successful, although I don’t necessarily think it’s likely. Could the Supreme Court resurrect civil unions, along the lines of the Vermont Supreme Court ruling way back when? They could say gay people have to be provided access to either marriage or civil unions. It would require changes to both state and federal law, so it’s quite a bit more complicated. Just idle speculation by a non-lawyer.

Eric Payne

May 9th, 2014


If SCOTUS were to resurrect civil unions, they’d be creating a “separate but equal” status which, in earlier civil rights cases, SCOTUS has ruled unconstitutional.

L. C. Burgundy

May 9th, 2014

Civil unions are so a decade ago. The USSC wouldn’t touch that idea with a ten foot pole at this point.

The whole brief is premised on the idea that marriage is “damaged” for straight couples when gay people get married. No evidentiary support for that.

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