2:12-cv-10285-BAF-MJH Doc # 1 Filed 01/23/12 Pg 1 of 8 Pg ID 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors, and JAYNE ROWSE, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors,

Plaintiffs,

ED Mi No. 12-10285

-vsRICHARD SNYDER, in his official capacity as Governor of the State of Michigan, and BILL SCHUETTE, in his official capacity as Michigan Attorney General,
Defendant. /
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
PARTIES
1. Plaintiffs April DeBoer and Jayne Rowse are citizens and residents of Hazel Park, Michigan, in the Eastern District of Michigan, Southern Division. DeBoer and Rowse each appear individually and as parent and next friend of N.D.-R (“N”), R.D.-R. (“R”), and J.D.-R (“J”), minors.
2. Defendant Richard Snyder is sued in his official capacity as Governor of the State of Michigan. Governor Snyder is a person within the meaning of 42 U.S.C. §1983, and he is, was, and will be acting under color of state law at all times relevant to this Complaint.
3. Defendant Bill Schuette is sued in his official capacity as Michigan Attorney General. Schuette is a person within the meaning of 42 U.S.C. §1983, and he is, was, and will be acting

2:12-cv-10285-BAF-MJH Doc # 1 Filed 01/23/12 Pg 2 of 8 Pg ID 2
under color of state law at all times relevant to this Complaint. JURISDICTION AND VENUE
3. Plaintiffs bring this action under 42 U.S.C. §§1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution.
4. This Court has jurisdiction pursuant to 28 U.S.C. §1331 and 1343. Jurisdiction to grant the declaratory relief requested is provided under 28 U.S.C. §2201.
5. Venue is proper in this district pursuant to 28 U.S.C. §1391(b) because the defendants reside and have offices within the district, because plaintiffs reside in this district, and because the events giving rise to plaintiffs’ claims occurred, and will occur, in this district.
FACTS 6. April DeBoer, Jayne Rowse, and minors N, R and J currently live in Hazel Park, Michigan. DeBoer and Rowse are domestic partners in a long term stable relationship. After a long and close friendship, they became partners, they have resided together for six years, they own a home together, and as described herein, they are the parents of the different minor plaintiffs in this case. 7. DeBoer is and was employed as a nurse in the neonatal intensive care unit at Hutzel Hospital in Detroit, Michigan. Rowse is and was employed as an emergency room nurse at Henry Ford Hospital in Detroit, Michigan. 8. R was born on February 1, 2010, and was brought to Hutzel Hospital as a newborn. R’s biological mother was 19 years old, she did not receive pre-natal care, and she had given birth at her mother’s home. R was legally adopted by DeBoer, as a single person, in April of 2011, in Wayne County Circuit Court. R continues to experience issues related to her lack of pre-natal care, including delayed gross motor skills. She is in a physical therapy program to address these

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problems. 9. N was born on January 25, 2009 to a biological mother who was homeless, had
psychological impairments, was unable to care for N and subsequently surrendered her legal rights to N. N’s biological father was not identified on the birth certificate and was otherwise not involved in his life. DeBoer and Rowse volunteered to care for him, and brought him home following his birth. Thereafter, in November of 2009, N was legally adopted by Rowse, as a single person, in Wayne County Circuit Court.
10. J was born on November 9, 2009, at Hutzel Hospital, premature at 25 weeks, to a drugaddicted prostitute. Upon birth, he weighed 1 pound, 9 ounces and tested positive for marijuana, cocaine, opiates and methadone. His birth mother abandoned him immediately after delivery. J remained at the hospital in the NICU for four months with a myriad different health complications, and was not expected to live. If he survived, he was not expected to be able to walk, speak or function on a normal level in any capacity. J’s foster care agency requested that DeBoer and Rowse take him home, and both DeBoer and Rowse were certified by the State as foster parents and legal guardians for J. Thereafter, Rowse adopted J as a single person in Wayne County Circuit Court. J is in intensive occupational and physical therapy. With Rowse and DeBoer’s constant care and medical attention, many of J’s physical conditions have resolved.
11. It is April DeBoer’s desire and intention to allow Jayne Rowse to adopt, as a second parent, R, and it is Jayne Rowse’s desire and intention to adopt R, as a second parent. DeBoer and Rowse agree that all rights of inheritance, succession, and any other applicable rights should be fully effectuated as a result of this adoption of R.
12. It is Jayne Rowse’s desire and intention to allow April DeBoer to adopt, as a second parent, N and J, and it is April DeBoer’s desire and intention to adopt N and J as a second parent.

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DeBoer and Rowse agree that all rights of inheritance, succession, and any other applicable rights should be fully effectuated as a result of this adoption of N and J.
13. Rowse and DeBoer enjoy a close and loving relationship with each other, and they have created a stable, loving household for these three children. They share finances, they make decisions jointly regarding their own lives and the lives of their children, they both cook and care for the children, they both attend to the children’s medical needs and both are involved in taking the children to their many doctor and therapy visits, and they coordinate their work schedules so that at least one parent is generally home with the children. Prior to their adoption of the children, the couple expressed their vows at a commitment ceremony in February of 2007 which was attended by both of their families and friends. They each enjoy a close relationship with their respective family of origin, they were and are supported by their families in their decision to adopt the children, and they are supported by their families when needed in caring for the children. DeBoer and Rowse enjoy an extremely high functioning, low-conflict, domestic relationship despite the enormous challenges involved in raising three young, special needs children.
14. The Michigan Constitution prohibits same-sex couples from marrying. Plaintiffs DeBoer and Rowse would marry in the State of Michigan if legally permitted..
15. Michigan law relating to adoption and second parent adoption, pursuant to MCL 710.24, provides as follows: (a) married couples can adopt a child, (b) a single person can adopt a child, and (c) an unmarried couple cannot adopt a child. As a result of this law, and as a result of Defendants’ execution and defense of that law and advice to state judges and other officials that Michigan law prohibits second parent adoptions, any attempt at securing a second parent adoption of the minor plaintiffs would be futile under Michigan law, MCL 710.24.

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CLAIM FOR RELIEF 16. Plaintiffs repeat and re-allege paragraphs 1 through 13 as if set in full. 17. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. §1983, provides that no state shall deny any person the equal protection of the laws. 18. As a result of MCL 710.24, and as a result of Defendants’ execution and defense of that law and advice to state judges and other officials that Michigan law prohibits second parent adoptions while allowing a single unmarried person to adopt a child or a married couple to adopt a child, state court judges and other officials in Michigan will not approve second parent adoptions by unmarried persons, and the children of unmarried “second” parents seeking to adopt in Michigan and unmarried second parents seeking to adopt in Michigan are denied legal, emotional, financial, social, medical, and other benefits. As such, the plaintiffs identified herein are subjected to adverse treatment solely because the minor plaintiffs’ parents are an unmarried couple.
19. Under Michigan law, married stepparents can lawfully adopt the children of their spouse, and consequently, the Michigan statutory scheme which prohibits second parent adoptions by unmarried persons is arbitrary, capricious, lacking in any rational basis, and is therefore invalid under any form of scrutiny.
20. The disparate treatment of the children of unmarried parents and of unmarried parents seeking a step-parent adoption, based upon the marital status of the parents, violates the Equal Protection Clause of the United States Constitution.
21. As applied, Michigan’s law prohibiting second parent adoptions by unmarried persons serves no legitimate government interest. The undisputed sociological and psychological evidence demonstrates that there are some significant sociological and psychological benefits for

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children having two parents rather than one. Moreover, the undisputed sociological and psychological evidence demonstrates that unmarried persons, straight, gay or lesbian, are no less loving, caring and effective parents than those parents who are married to each other. In addition, there are very significant legal benefits for children having two legal parents rather than one: (a) the legal right to have a parent automatically in the event of the death of the other parent, (b) the right to dependency benefits under laws and other contractual arrangements providing for dependency benefits, such as social security, workers compensation, pensions, insurance and tort law, and (c) the right to have at least one parent able and available to make decisions in the event the other parent is incapacitated or is unavailable.
22. By prohibiting a second parent from adopting the child of that parent’s partner, Michigan law impairs deeply personal relationships, deprives the minor child Plaintiffs in this case of the myriad legal, sociological and psychological benefits attendant to having two legal parents, and deprives Plaintiff parents and step parents in this case of their fundamental rights of parental autonomy and family autonomy.
23. Defendants’ execution and defense of Michigan’s adoption laws, as applied, does not serve any compelling, substantial or otherwise sufficient government interest, nor does it serve such interests in an adequately tailored manner. As applied, Defendants’ actions have the effect of unlawfully discriminating against Plaintiff parents and their children. Accordingly, Defendants’ conduct violates the Equal Protection Clause of the United States Constitution.
RELIEF SOUGHT WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment: A. Declaring that the provisions of MCL 710.24, which prohibits second parent adoptions by unmarried persons, violates the plaintiff children, parents and step parents’ rights under the

2:12-cv-10285-BAF-MJH Doc # 1 Filed 01/23/12 Pg 7 of 8 Pg ID 7
Equal Protection Clause of the Fourteenth Amendment of the United States Constitution;
B. Entering orders as follows:
(1) enjoining Defendant Bill Schuette, in his official capacity as the Michigan Attorney General, and Defendant Richard Snyder, in his official capacity as the Governor of the State of Michigan, from attempting to block the plaintiff-parents’ attempts at securing second parent adoptions of the plaintiff-children named in this action, and enjoining them from defending the actions of any and all state officials attempting to bar the second parent adoptions of the plaintiff-children named in this action;
(2) enjoining all state judges and other officials presented with the plaintiffs’ request for second parent adoption from refusing to process said adoptions based upon the unmarried status of the Plaintiff,
(3) requiring Defendant Schuette to inform all judges and other State of Michigan officials of the orders entered herein and to advise them under this Court’s decree that they are required to process the plaintiffs’ request for adoption irrespective of plaintiffs’ status as unmarried persons.
C. Awarding plaintiffs reasonable attorneys’ fees and costs under 42 U.S.C. §1988; and
D. Granting such other and further relief as the Court deems just and proper.
Respectfully submitted,
/s/ Dana Nessel DANA M. NESSEL P51346 645 Griswold Street, Suite 3060 Detroit, MI 48226 (313) 556-2300 dananessel@hotmail.com
s/Carole M. Stanyar CAROLE M. STANYAR P34830 682 Deer Street Plymouth, MI 48170 (313) 963-7222 cstanyar@wowway.com
Attorneys for Plaintiffs

2:12-cv-10285-BAF-MJH Doc # 1 Filed 01/23/12 Pg 8 of 8 Pg ID 8

Dated: January 23, 2012

Of counsel:
s/Robert A. Sedler ROBERT A. SEDLER P31003 Wayne State University Law School 471 W. Palmer Street Detroit, MI 48202 (313) 577-3968 rsedler@wayne.edu

 
 2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 1 of 12 Pg ID 724

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors, and JAYNE ROWSE, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors,

Plaintiffs,

ED Mi No. 12-10285 Honorable Bernard A. Friedman

-vs-

RICHARD SNYDER, in his official capacity as Governor of the State of Michigan, BILL SCHUETTE, in his official capacity as Michigan Attorney General, and BILL BULLARD, JR., in his official capacity as Oakland County Clerk,

Defendants. /

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

PARTIES

1. Plaintiffs April DeBoer and Jayne Rowse are citizens and residents of Hazel Park,

Oakland County, Michigan, in the Eastern District of Michigan, Southern Division. DeBoer and

Rowse each appear individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R,

minors.

2. Defendant Richard Snyder is sued in his official capacity as Governor of the State of

Michigan. Snyder is a person within the meaning of 42 U.S.C. §1983, and he is, was, and will be

acting under color of state law at all times relevant to this Complaint.

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3. Defendant Bill Schuette is sued in his official capacity as Michigan Attorney General. Schuette is a person within the meaning of 42 U.S.C. §1983, and he is, was, and will be acting under color of state law at all times relevant to this Complaint.
4. Defendant Bill Bullard, Jr. is sued in his official capacity as the Oakland County Clerk. Bullard is a person within the meaning of 42 U.S.C. §1983, and he is, was, and will be acting under color of state law at all times relevant to this Complaint.
JURISDICTION AND VENUE 5. Plaintiffs bring this action under 42 U.S.C. §§1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution. 6. This Court has jurisdiction pursuant to 28 U.S.C. §1331 and 1343. Jurisdiction to grant the declaratory relief requested is provided under 28 U.S.C. §2201. 7. Venue is proper in this district pursuant to 28 U.S.C. §1391(b) because Defendants reside and have offices within the district, because Plaintiffs reside in this district, and because the events giving rise to Plaintiffs’ claims occurred, and will occur, in this district.
FACTS 8. DeBoer and Rowse are domestic partners in a long term stable relationship. After a long and close friendship, they became partners, they have resided together for six years, they own a home together, and as described herein, they are the parents of the different minor plaintiffs in this case. 9. DeBoer is and was employed as a nurse in the neonatal intensive care unit at Hutzel Hospital in Detroit, Michigan. Rowse is and was employed as an emergency room nurse at Henry Ford Hospital in Detroit, Michigan.
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10. R was born on Februrary 1, 2010, and was brought to Hutzel Hospital as a newborn. R’s biological mother was 19 years old, she did not receive pre-natal care, and she had given birth at her mother’s home. R was legally adopted by DeBoer, as a single person, in April of 2011, in Wayne County Circuit Court. R continues to experience issues related to her lack of prenatal care, including delayed gross motor skills. She is in a physical therapy program to address these problems.
11. N was born on January 25, 2009,to a biological mother who was homeless, had psychological impairments, was unable to care for N and subsequently surrendered her legal rights to N. N’s biological father was not identified on the birth certificate and was otherwise not involved in his life. DeBoer and Rowse volunteered to care for him, and brought him home following his birth. Thereafter, in November of 2009, N was legally adopted by Rowse, as a single person, in Wayne County Circuit Court.
12. J was born on November 9, 2009, at Hutzel Hospital, premature at 25 weeks, to a drug addicted prostitute. Upon birth, he weighed 1 pound, 9 ounces and tested positive for marijuana, cocaine, opiates and methadone. His birth mother abandoned him immediately after delivery. J remained at the hospital in the NICU for four months with myriad different health complications, and was not expected to live. If he survived, he was not expected to be able to walk, speak or function on a normal level in any capacity. J’s foster care agency requested that DeBoer and Rowse take him home, and both DeBoer and Rowse were certified by the State as foster parents and legal guardians for J. Thereafter, Rowse adopted J as a single person in Wayne County Circuit Court. J is in intensive occupational and physical therapy. With Rowse and DeBoer’s constant care and medical attention, many of J’s physical conditions have resolved.
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2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 4 of 12 Pg ID 727
13. It is April DeBoer’s desire and intention to allow Jayne Rowse to adopt, as a second parent, R, and it is Jayne Rowse’s desire and intention to adopt R, as a second parent. DeBoer and Rowse agree that all rights of inheritance, succession, and any other applicable rights should be fully effectuated as a result of this adoption of R.
14. It is Jayne Rowse’s desire and intention to allow April DeBoer to adopt, as a second parent, N and J, and it is April DeBoer’s desire and intention to adopt N and J as a second parent. DeBoer and Rowse agree that all rights of inheritance, succession, and any other applicable rights should be fully effectuated as a result of this adoption of N and J.
15. Rowse and DeBoer enjoy a close and loving relationship with each other, and they have created a stable, loving household for these three children. They share finances, they make decisions jointly regarding their own lives and the lives of their children, they both cook and care for the children, they both attend to the children’s medical needs and both are involved in taking the children to their many doctor and therapy visits, and they coordinate their work schedules so that at least one parent is generally home with the children. Prior to their adoption of the children, the couple expressed their vows at a commitment ceremony in February of 2007,which was attended by both of their families and friends. They each enjoy a close relationship with their respective family of origin, they were and are supported by their families in their decision to adopt the children, and they are supported by their families when needed in caring for the children. DeBoer and Rowse enjoy an extremely high functioning, low-conflict, domestic relationship despite the enormous challenges involved in raising three young, special needs children.
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2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 5 of 12 Pg ID 728
COUNT I (Defendants Richard Snyder and Bill Schuette) 16. The Michigan Constitution prohibits same-sex couples from marrying. Mich. Const. 1963, art 1, §25. Plaintiffs DeBoer and Rowse would marry in the State of Michigan if legally permitted to do so. 17. Michigan law relating to adoption and second parent adoption, pursuant to MCL 710.24, provides as follows: (a) married couples can adopt a child, (b) a single person can adopt a child, and (c) an unmarried couple cannot adopt a child. As a result of this law, and as a result of Defendants’ execution and defense of that law and advice to state judges and other officials that Michigan law prohibits second parent adoptions by unmarried couples, any attempt by DeBoer and Rowse at securing a second parent adoption of the minor plaintiffs would be futile under Michigan law, MCL 710.24. 18. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. §1983, provides that no state shall deny any person the equal protection of the laws. 19. As a result of MCL 710.24, and as a result of Defendants’ execution and defense of that law and advice to state judges and other officials that Michigan law prohibits second parent adoptions by unmarried couples while allowing a single unmarried person to adopt a child or a married couple to adopt a child, state court judges and other officials in Michigan will not approve second parent adoptions by unmarried couples, and the children of unmarried “second” parents seeking to adopt in Michigan and unmarried second parents seeking to adopt in Michigan are denied legal, emotional, financial, social, medical, and other benefits. As such, Plaintiffs identified herein are subjected to adverse treatment solely because the minor Plaintiffs’ parents
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2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 6 of 12 Pg ID 729
are an unmarried couple. 20. Under Michigan law, a married step-parent can lawfully adopt the children of his or
her spouse, and consequently, the Michigan statutory scheme which prohibits second parent adoptions by unmarried couples is arbitrary, capricious, lacking in any rational basis, and is therefore invalid under any standard of scrutiny.
21. The disparate treatment of the children of unmarried couples and of unmarried couples seeking a step-parent adoption, based upon the marital status of the parents, violates the Equal Protection Clause of the United States Constitution.
22. As applied, Michigan’s law prohibiting second parent adoptions by unmarried persons serves no legitimate government interest. There are very significant legal benefits for children having two legal parents rather than one: (a) the right to have a parent automatically in the event of the death of the other parent, (b) the right to dependency benefits under laws and other contractual arrangements providing for dependency benefits, such as social security, workers compensation, pensions, insurance and tort law, and (c) the right to have at least one parent able and available to make decisions in the event the other parent is incapacitated or is unavailable.
23. By prohibiting a second parent from adopting the child of that parent’s partner, Michigan law impairs deeply personal relationships, deprives the minor child Plaintiffs in this case of the myriad legal, sociological and psychological benefits attendant upon having two legal parents, and deprives Plaintiff parents in this case of their fundamental rights of parental autonomy and family autonomy.
24. Defendants’ execution and defense of Michigan’s adoption laws, as applied, does not
6

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serve any compelling, substantial or otherwise sufficient government interest, nor does it serve such interests in an adequately tailored manner. As applied, Defendants’ actions have the effect of unlawfully discriminating against Plaintiff parents and Plaintiffs’ children. Accordingly, Defendants’ conduct violates the Equal Protection Clause of the United States Constitution.
COUNT II (Defendants Richard Snyder, Bill Schuette, and Bill Bullard, Jr.) 25. Plaintiffs repeat and re-allege paragraphs 1 through 24 as if set in full. 26. The Michigan Constitution, specifically, the Michigan Marriage Amendment, prohibits same-sex couples from marrying. Mich. Const. 1963, art 1, §25. 27. As a result, Plaintiffs are excluded from a broad array of statutory protections, benefits, and mutual responsibilities afforded, under federal, state and local laws and regulations, exclusively to married persons and their families. Plaintiffs are denied protections relating to the incapacitation or death of a spouse, support for family finances and other public and private safety nets and responsibilities attaching to marriage, including the following: (a) Plaintiffs are denied protections afforded married families upon the death of one member of the couple, such as intestacy rights permitting the surviving spouse/parent to inherit automatically from the deceased’s spouse’s estate if there are no parents or issue; the right of the surviving spouse/parent to an allowance or to occupy the homestead while the estate is being settled; the right of the surviving spouse/parent to file a wrongful death lawsuit when a spouse is killed; and presumptions benefitting spouses/parents in the absence of a designated beneficiary for death benefits and life insurance policies;
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(b) Plaintiffs are denied protections resulting from the right of employee spouses/parents to file for or receive workers’ compensation death benefits, even though the adult plaintiff-employees pay insurance premiums for workers’ compensation benefits to provide protections to employees and their dependents if the employee is injured or killed on the job, and may pay precisely the same taxes and insurance premiums as their work colleagues;
(c) Plaintiffs are denied the financial safety net provided to spouses/parents under numerous tax laws, including the right to file jointly to reduce tax liability, and tax benefits when transferring or inheriting interests in real and personal property;
(d) Plaintiffs may be denied family health insurance coverage and the adult plaintiffs/parents may be denied continuation of coverage provided to spouses of deceased public employees;
(e) Plaintiffs may be denied the full benefit of dissolution laws that regulate the separation and divorce process, protect the rights of both spouses/parents and determine custody, visitation, support and other matters, some of which may be addressed, if at all, only in ad hoc processes for unmarried same-sex adults/parents;
(f) Adult plaintiffs are denied the automatic right to make health care decisions for a spouse when the spouse cannot, including the right to withhold or withdraw life-sustaining procedures and the right to donate a spouse’s organs and tissues;
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(g) Adult plaintiffs are denied the automatic right to make burial decisions and other decisions concerning the disposition and handling of remains of deceased spouses; and
(h) Because many private parties rely upon the State’s definition of a “spouse”, plaintiffs also suffer deprivation of many privately conferred benefits and protections, such as from employers, banks, and insurers. 28. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. §1983, provides that no state shall deny any person the equal protection of the laws. 29. As a result of Mich. Const. 1963, art 1, §25, and as a result of Defendant Bullard’s refusal to issue a marriage license to any unmarried couple, plaintiffs are denied legal, financial, social, medical, and other benefits. As such, the plaintiffs identified herein are subjected to adverse treatment solely because they are a same sex, unmarried couple. 30. Under Michigan law, married persons retain all of the foregoing rights and privileges. 31. The applicable standard for evaluating the constitutionality of the Michigan Marriage Amendment is the “important and substantial relationship” test. Michigan’s constitutional amendment banning same sex marriage fails this test. 32. In addition, beause the Michigan Marriage Amendment serves no legitimate government interest, it fails the rational basis test, and cannot survive any form of scrutiny. 33. The disparate treatment of the same sex couples, and their children, in Michigan violates the Equal Protection Clause of the United States Constitution. 34. In addition, based upon all of the foregoing, the Michigan Marriage Amendment also violates the Due Process Clause of the United States Constitution because it unconstitutionally
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burdens the exercise of fundamental rights, it fails the rational basis test, and cannot survive any
standard of scrutiny.
RELIEF SOUGHT
WHEREFORE, for the reasons expressed in Count I, Plaintiffs respectfully request that
this Court enter a judgment:
A. Declaring that the provisions of MCL 710.24, which prohibits second parent adoptions
by unmarried couples, violates the plaintiff children’s and parents’ rights under the Equal
Protection Clause of the Fourteenth Amendment of the United States Constitution;
B. Entering orders as follows:
(1) enjoining Defendant Bill Schuette, in his official capacity as the Michigan Attorney General, and Defendant Richard Snyder, in his official capacity as the Governor of the State of Michigan, from attempting to block the Plaintiff-parents’ attempts at securing second parent adoptions of the Plaintiff-children named in this action, and enjoining either of them from defending the actions of any and all state officials attempting to bar the second parent adoptions of the Plaintiffchildren named in this action;
(2) enjoining all state judges and other officials presented with the Plaintiffs’ request for second parent adoption from refusing to process said adoptions based upon the unmarried status of the Plaintiffs; and
(3) requiring Defendant Schuette to inform all judges and other State of Michigan officials of the orders entered herein and to advise them under this Court’s decree that they are required to process the Plaintiffs’ request for adoption irrespective of Plaintiffs’ status as unmarried persons.
C. Awarding plaintiffs reasonable attorneys’ fees and costs under 42 U.S.C. §1988; and
D. Granting such other and further relief as the Court deems just and proper.
In addition, for the reasons expressed in Count II, Plaintiffs respectfully request that this
Court enter a judgment as follows:
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A. Declaring that: (1) the provisions of the Michigan Marriage Amendment, Mich. Const. 1963, art 1, §25, which prohibits same-sex couples from marrying, violates the Plaintiff children’s and parents’ rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution;
(2) Same-sex couples otherwise qualified to marry one another, including the adult Plaintiffs, may not be denied a marriage license application, a marriage license, a marriage certificate, or in any other way prevented from exercising the right to civil marriage by virtue of seeking to marry a partner of the same sex; and
(3) Children of same-sex couples who wish to marry under Michigan law may not be denied the legitimacy, rights, protections, benefits, support, security, and obligations conferred on children whose parents wish to marry and are permitted to marry under Michigan law.
B. Entering orders as follows: (1) enjoining Defendant Bill Schuette, in his official capacity as the Michigan Attorney General, Defendant Richard Snyder, in his official capacity as the Governor of the State of Michigan, and Defendant Bill Bullard, Jr., in his official capacity as the Oakland County Clerk, from attempting to block same-sex couples’, including the adult Plaintiffs’, attempts at securing a marriage license in any county of Michigan, and enjoining Defendants from defending the actions of any and all state officials attempting to bar the Plaintiff-parents from obtaining a marriage license; (2) requiring Defendant Bullard immediately to issue a valid marriage license to adult plaintiffs upon receipt of their completed application for a marriage license; C. Awarding Plaintiffs reasonable attorneys’ fees and costs under 42 U.S.C. §1988; and D. Granting such other and further relief as the Court deems just and proper.
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Dated: September 7, 2012

Respectfully submitted,
/s/ Dana Nessel DANA M. NESSEL P51346 645 Griswold Street, Suite 3060 Detroit, MI 48226 (313) 556-2300 dananessel@hotmail.com
s/Carole M. Stanyar CAROLE M. STANYAR P34830 682 Deer Street Plymouth, MI 48170 (313) 963-7222 cstanyar@wowway.com
Attorneys for Plaintiffs
Of counsel:
s/Robert A. Sedler ROBERT A. SEDLER P31003 Wayne State University Law School 471 W. Palmer Street Detroit, MI 48202 (313) 577-3968 rsedler@wayne.edu
s/ Kenneth M. Mogill Kenneth M. Mogill P17865 MOGILL, POSNER & COHEN 27 E Flint Street, 2nd Floor Lake Orion, MI 48362 (248) 814-9470 kmogill@bignet.net

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 2:12-cv-10285-BAF-MJH Doc # 36 Filed 09/24/12 Pg 1 of 2 Pg ID 721

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, et al.

Plaintiffs, vs.

Civil Action No. 12-cv-10285 HON. BERNARD A. FRIEDMAN

RICHARD SNYDER, et al.

Defendants. ____________________________________/

ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT, DENYING DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT AND DENYING PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT

Before the Court is plaintiffs’ motion for leave to file an amended complaint [docket

entry 33] to which defendants’ filed a response [docket entry 35]. Also before the Court is

defendants’ motion to dismiss the complaint [docket entry 14] and plaintiffs’ unopposed motion

for summary judgment [docket entry 25]. Plaintiffs filed a response to defendants’ motion to

dismiss [docket entry 24] and defendants filed a reply [docket entry 29]. For cause shown,

IT IS ORDERED that plaintiffs’ motion for leave to file an amended complaint is granted.

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Civil Action No. 12-cv-10285
IT IS FURTHER ORDERED that defendants’ motion to dismiss the complaint is denied as moot.
IT IS FURTHER ORDERED that plaintiffs’ motion for summary judgment is denied as moot.

Dated: September 24, 2012 Detroit, Michigan

S/ Bernard A. Friedman_______________ BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE

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 2:12-cv-10285-BAF-MJH Doc # 54 Filed 07/01/13 Pg 1 of 5 Pg ID 931

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, et al.,

Plaintiffs, vs.

Civil Action No. 12-cv-10285 HON. BERNARD A. FRIEDMAN

RICHARD SNYDER, et al.,

Defendants. ____________________________________/

OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINT

I. Introduction and Facts

Plaintiffs April DeBoer and Jayne Rowse (collectively “plaintiffs”) initially commenced

this action against Richard Snyder and Bill Schuette, in their respective official capacities as

Governor of the State of Michigan and Michigan Attorney General (collectively “defendants”),

on the ground that their enforcement and defense of section 24 of the Michigan Adoption Code

(hereinafter “section 24”), Mich. Comp. Laws § 710.24, violates the Equal Protection Clause of

the Fourteenth Amendment to the United States Constitution. Plaintiffs have since amended

their complaint to include a second cause of action challenging the validity of Michigan’s

constitutional prohibition against same-sex marriage (hereinafter the “Michigan Marriage

Amendment” or “MMA”), Mich. Const. Art. I, § 25, pursuant to the Due Process and Equal

Protection Clauses of the Fourteenth Amendment.1

1 The amended complaint also added former Oakland County Clerk, Bill Bullard, Jr. as a party defendant. He filed a motion to dismiss the amended complaint on November 8, 2012 [docket entry 45]. As a result of the November 2012 election, however, Lisa Brown was elected
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Currently before the Court is defendants’ motion to dismiss the amended complaint [docket entry 44]. Plaintiffs filed a response [docket entry 46] and defendants filed a reply [docket entry 48].
Plaintiffs are an unmarried same-sex couple residing in Hazel Park, Michigan. They have lived together for the past six years and jointly own their residence. DeBoer is a nurse in the neonatal intensive care unit at Hutzel Hospital and Rowse is an emergency room nurse at Henry Ford Hospital, both located in Detroit. In November 2009, Rowse, as a single person, legally adopted child N. Thereafter, also as a single person, she legally adopted child J. DeBoer, as a single person, adopted child R in April 2011. Plaintiffs seek to jointly adopt the three children, but section 24 and the Michigan Marriage Amendment operate in tandem to prevent them from doing so. The former restricts adoptions to either single persons or married couples and the latter restricts the state’s legal definition of marriage to heterosexual couples.
In their motion to dismiss, defendants argue, among other things, that plaintiffs fail to state a cognizable equal protection claim because they cannot demonstrate that the MMA lacks a rational relationship to a legitimate state interest. Defendants also contend that the MMA does not violate due process because plaintiffs do not possess a fundamental right to marry another individual of the same gender.
In response, plaintiffs contend that the MMA violates the Equal Protection Clause regardless of the level of constitutional scrutiny applied by the Court. Assuming that the rational basis test applies, plaintiffs assert that the MMA is not rationally related to any conceivable
to the position of Oakland County Clerk/Register of Deeds and replaced Bullard on January 1, 2013. She has withdrawn Bullard’s motion to dismiss [docket entry 52].
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legitimate purpose. Plaintiffs further urge the Court to invalidate the MMA on substantive due process grounds because it infringes their fundamental right to marry an individual of the same gender. II. Standard of Review
In deciding a Rule 12(b)(6) motion to dismiss, the Court must “construe the complaint in the light most favorable to the plaintiff, accept all the factual allegations as true, and determine whether the plaintiff can prove a set of facts in support of its claims that would entitle it to relief.” Shane v. Bunzl Distrib. USA, Inc., 200 F. App’x 397, 401 (6th Cir. 2006) citing Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001). A sufficient pleading “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009). Instead, “‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) quoting Iqbal, 556 U.S. at 678. III. Analysis
Plaintiffs’ equal protection claim has sufficient merit to proceed. The United States Supreme Court’s recent decision in United States v. Windsor, No. 12-307 (U.S. Jun. 26, 2013), has provided the requisite precedential fodder for both parties to this litigation. Defendants will no doubt cite to the relevant paragraphs of the majority opinion espousing the state’s “historic and essential authority to define the marital relation.” Id. slip op. at 18. They will couch the popular referendum that resulted in the passage of the MMA as “a proper exercise of [the state’s] sovereign authority within our federal system, all in the way that the Framers of the Constitution
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intended.” Id. slip op. at 19. After all, what could more accurately embody “[t]he dynamics of state government in the federal system. . . to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other,” id., than a legitimate vote of the people of the State of Michigan to preserve their chosen definition of marriage in the fabric of the state constitution.
On the other hand, plaintiffs are prepared to claim Windsor as their own; their briefs sure to be replete with references to the newly enthroned triumvirate of Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558 (2003) and now Windsor. And why shouldn’t they? The Supreme Court has just invalidated a federal statute on equal protection grounds because it “place[d] same-sex couples in an unstable position of being in a second-tier marriage.” Id. slip op. at 23. Moreover, and of particular importance to this case, the justices expressed concern that the natural consequence of such discriminatory legislation would not only lead to the relegation of same-sex relationships to a form of second-tier status, but impair the rights of “tens of thousands of children now being raised by same-sex couples” as well. Id. This is exactly the type of harm plaintiffs seek to remedy in this case.
Construing the facts in the light most favorable to plaintiffs, and in view of the Supreme Court’s current statement of the law, this Court cannot say that plaintiffs’ claims for relief are without plausibility.2 Plaintiffs are entitled to their day in court and they shall have it.
2 Plaintiffs’ due process cause of action will likewise move forward because it states a plausible claim for relief. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 991-993 (N.D. Cal. 2010) (finding that California’s state constitutional amendment barring same-sex marriage violates the Due Process Clause); but see Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1086 (D. Haw. 2012) (finding that Hawaii’s state constitutional amendment barring same-sex marriage does not violate the Due Process Clause).
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Accordingly, IT IS ORDERED that defendants’ motion to dismiss the amended complaint is denied. IT IS FURTHER ORDERED that the parties are to appear for a Rule 16 scheduling conference on Wednesday, July 10, 2013 at 3:00 p.m. to set cut-off dates and a trial date.

Dated: July 1, 2013 Detroit, Michigan

s/ Bernard A. Friedman_________ BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE

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 2:12-cv-10285-BAF-MJH Doc # 89 Filed 10/16/13 Pg 1 of 8 Pg ID 1996

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, et al.,

Plaintiffs, vs.

Civil Action No. 12-cv-10285 HON. BERNARD A. FRIEDMAN

RICHARD SNYDER, et al.,

Defendants. ____________________________________/

OPINION AND ORDER DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT

I. Introduction and Facts

Plaintiffs April DeBoer and Jayne Rowse (collectively “plaintiffs”) commenced this action

against Richard Snyder and Bill Schuette, in their respective official capacities as Governor of the

State of Michigan and Michigan Attorney General (collectively “defendants”), on the ground that

their enforcement and defense of section 24 of the Michigan Adoption Code (hereinafter “section

24”), Mich. Comp. Laws § 710.24, violates the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution.1 Plaintiffs further challenge the validity of

Michigan’s constitutional prohibition against same-sex marriage (hereinafter the “Michigan

Marriage Amendment” or “MMA”), Mich. Const. Art. I, § 25, and statutory provisions barring the

same, Mich. Comp. Laws §§ 551.1-551.4, as violative of the Due Process and Equal Protection

Clauses of the Fourteenth Amendment.

1 The amended complaint added former Oakland County Clerk, Bill Bullard, Jr. as a party defendant. As a result of the November 2012 election, Lisa Brown was elected as the Oakland County Clerk/Register of Deeds and replaced Mr. Bullard on January 1, 2013.
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Currently before the Court is plaintiffs’ motion for summary judgment [docket entry 67]. Defendants filed a response [docket entry 74] and plaintiffs filed a reply [docket entry 78]. Defendants then cross-moved for summary judgment [docket entry 69]. Plaintiffs filed a response [docket entry 76] and defendants filed a reply [docket entry 79].2 The Court heard oral argument on October 16, 2013.
The underlying facts are not in dispute. Plaintiffs are an unmarried same-sex couple residing in Hazel Park, Michigan. They have lived together for the past six years and jointly own their residence. Both women are state-certified foster parents. DeBoer is a nurse in the neonatal intensive care unit at Hutzel Hospital and Rowse is an emergency room nurse at Henry Ford Hospital, both located in Detroit. In November 2009, Rowse, as a single person, legally adopted child N. In October 2011, also as a single person, she legally adopted child J. DeBoer, as a single person, adopted child R in April 2011. Plaintiffs seek to jointly adopt the three children, but section 24 and the Michigan Marriage Amendment operate in tandem to prevent them from doing so. The former restricts adoptions to either single persons or married couples and the latter restricts the state’s legal definition of marriage to heterosexual couples. Section 24 does not allow for the joint adoption of a child by two unmarried parents.3
In their motion for summary judgment, plaintiffs contend that the MMA violates the Equal
2 Defendant Lisa Brown filed a brief in support of plaintiffs’ motion for summary judgment [docket entry 68] along with response and reply briefs [docket entries 75 and 80] corresponding to defendants’ cross motion for summary judgment and opposition papers.
3 Section 24 sub-section (1) provides in relevant part: “if a person desires to adopt a child . . . that person, together with his wife or her husband, if married, shall file a petition with the court of the county in which the petitioner resides or where the adoptee is found . . .”
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Protection Clause regardless of the level of constitutional scrutiny applied by the Court.4 Assuming
that the rational basis test applies, plaintiffs assert that the MMA is not rationally related to any
conceivable legitimate governmental purpose. Plaintiffs further urge the Court to invalidate the
MMA on substantive due process grounds because it violates their fundamental right to marry.
Plaintiffs raise the same equal protection and due process arguments against section 24 of the
Michigan Adoption Code.5
Defendants counter that plaintiffs’ equal protection claims fail because plaintiffs cannot
demonstrate that the MMA lacks a rational relationship to any legitimate state interest. Defendants
4 Courts employ a three-tiered framework for evaluating whether a provision of law offends equal protection principles. The most rigorous tier is “strict” scrutiny, which is reserved for laws that either affect fundamental rights or discriminate against “suspect classes” such as racial, ethnic or religious minorities. See Plyler v. Doe, 457 U.S. 202, 216-217 (1982); Loving v. Virginia, 388 U.S. 1, 11 (1967) (applying strict scrutiny to racial classification); Korematsu v. United States, 323 U.S. 214, 216 (1944) (applying strict scrutiny to classification based upon national origin). A more relaxed form of inquiry is “intermediate” or “heightened” scrutiny. Courts have applied this standard to laws that discriminate on the basis of gender, alienage or illegitimacy, also known as “quasi-suspect classes.” See Clark v. Jeter, 486 U.S. 456, 461 (1988) (applying intermediate scrutiny to classification based upon illegitimacy); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723-724 (1982) (applying intermediate scrutiny to gender classification). Finally, the least exacting tier is denominated “rational basis” review. For the most part, the rational basis test is used to assess the propriety of legislation that does not implicate fundamental rights or suspect/quasi-suspect classes. Currently, the Sixth Circuit Court of Appeals does not consider gays or lesbians a suspect or quasi-suspect class. See Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Scarborough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006).
5 The Court expresses no view on the constitutionality of section 24. The statute’s language limits those eligible to adopt children to single persons and married couples regardless of sexual orientation or gender. It does not prohibit same-sex partners from marrying and, thereafter, adopting children. While plaintiffs make a colorable claim that they and their children are, in fact, injured by their ineligibility to petition for joint adoption, such injury is not attributable to defendants’ enforcement and defense of section 24. Plaintiffs may not jointly adopt their children because they are not married. And plaintiffs may not marry because any legal form of same-sex union in the state of Michigan is prohibited by the MMA. Thus, the relief plaintiffs request hinges on the constitutional validity of the MMA.
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also contend that the MMA does not violate due process because the law does not recognize a fundamental right to marry another individual of the same gender. II. Summary Judgment Standard
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In considering a motion for summary judgment, the Court construes all facts in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). There are no genuine issues of material fact when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Id. at 587. If the movant carries its burden of showing an absence of evidence to support a claim, then the nonmovant must demonstrate by affidavits, depositions, answers to interrogatories and admissions that a genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324325 (1986). III. Analysis
Assuming, without deciding, that the appropriate level scrutiny in this case is rational basis review, a triable issue of fact exists regarding whether the alleged rationales for the MMA serve a legitimate state interest.6 Under the rational basis test, the Court must determine whether the MMA proscribes conduct in a manner that is rationally related to a legitimate governmental purpose. See
6 While the instant dispute must be adjudicated under the federal constitution, the Court, at this time, reserves decision on the broader constitutional question of whether the MMA is subject to heightened scrutiny because it encroaches upon a fundamental right under the Due Process or Equal Protection Clauses of the Fourteenth Amendment. See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”).
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Vance v. Bradley, 440 U.S. 93, 97 (1979); Guzman v. United States Dep’t of Homeland Sec., 679 F.3d 425, 432 (6th Cir. 2012). When applying this standard, courts will not invalidate a provision of law on equal protection grounds “unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [a reviewing court] can only conclude that the government’s actions were irrational.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000). “The government has no obligation to produce evidence to support the rationality of its . . . [imposed] classifications and may rely entirely on rational speculation unsupported by any evidence or empirical data.” Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000). Instead, it is incumbent upon plaintiffs to refute “any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).
Nonetheless, the rational justification of the MMA must be rooted “in the realities of the subject [being] addressed . . .” Heller v. Doe, 509 U.S. 312, 321 (1993). And when a provision of law adversely affects a group that has endured “historic patterns of disadvantage,” courts make “a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review.” Massachusetts v. United States Dep’t of Health and Human Servs., 682 F.3d 1, 11 (1st Cir. 2012); see also United States v. Windsor, 133 S. Ct. 2675, 2696 (2013) (invalidating the Defense of Marriage Act on the ground that “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”).
Defendants offer several grounds for Michigan’s exclusive recognition of heterosexual marriages. These fall under four distinct categories: (1) providing children with “biologically
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connected” role models of both genders that are necessary to foster healthy psychological
development; (2) forestalling the unintended consequences that would result from the redefinition
of marriage; (3) tradition or morality; and (4) promoting the transition of “naturally procreative
relationships into stable unions.” To survive summary judgment, plaintiffs must raise a triable issue
of fact as to each of defendants’ asserted justifications for the MMA. Plaintiffs have met this
burden.
In response to defendants’ contention that only heterosexual marriages can provide children
with the appropriate gender role-modeling required for healthy psychological development,
plaintiffs submit the affidavit of Dr. Jeanne Howard, Co-Director of the Center for Adoption
Studies at Illinois State University. She attests that:
For almost three decades researchers have compared outcomes of children raised by same sex parents to those raised by opposite sex parents. In large and small studies, studies of lesbians and of gay men, studies of families formed through birth, and adoption and assisted technology, all studies consistently have found no differences for children in psychological adjustment, gender identification, school performance, self-esteem, anxiety, depression, behavior problems, social relationships and emotional problems, cognitive functioning, level of investment and quality of parent/child relationship.
Pls.’ Br. Ex. 6 at ¶6A (emphasis added). Furthermore, Dr. Howard noted that in her professional
opinion:
the evidence clearly demonstrates that gays and lesbians have equal parenting skills to their heterosexual counterparts. As adoption expert Dr. David Brodzinsky notes . . . “the data are unequivocal in showing that lesbian and gayheaded households show patterns of psychological social, and academic adjustment similar to their peers raised by straight parents . . . In addition, . . . [on gay or lesbian adoptive families] the results are consistent with the findings of previous research: lesbian and gay adoptive parents and their children show patterns of adjustment similar to those of heterosexual adoptive parents and their children.”
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Id. at ¶6E (emphasis added).7 After reviewing the record, including Dr. Howard’s affidavit, the Court concludes that a genuine issue of material fact exists with respect to defendants’ gender rolemodeling justification for the MMA.
Nor is the Court persuaded that a rational trier of fact could not find in plaintiffs’ favor based upon defendants’ other justifications for the MMA, all of which have been rejected by other courts in recent years. See Windsor, 133 S. Ct. at 2694 (ruling the Defense of Marriage Act unconstitutional although “over 1,000 statutes and numerous federal regulations . . . pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits” would be affected); Lawrence v. Texas, 539 U.S. 558, 583 (2003) (holding that “[m]oral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause.”); Windsor v. United States, 833 F. Supp. 2d 394, 404 (S.D.N.Y. 2012) (stating that “[i]t does not follow from the exclusion of one group from federal benefits (same-sex married persons) that another group of people (opposite-sex married couples) will be incentivized to take any action, whether that is marriage or procreation.”); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 999-1000 (N.D. Cal. 2010) (finding that California’s constitutional amendment prohibiting same-sex marriage did not “make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.”). Whether any of these justifications can survive rational basis review in the present case must be determined after a trial.
Regarding plaintiffs’ motion for summary judgment, although counsel cites to relevant case law issued by persuasive authorities, the Court may not simply adopt the findings of fact and
7 The amici curiae briefs filed on behalf of plaintiffs cite to numerous similar experts who arrive at the same conclusion.
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conclusions of law previously issued in other proceedings. See Weinstein v. Islamic Republic of Iran, 175 F. Supp. 2d 13, 16-17 (D.D.C. 2001); see also Cactus Corner, LLC v. United States Dep’t of Agric., 346 F. Supp. 2d 1075, 1099 (E.D. Cal. 2004) (stating that “[e]ven where, under the doctrine of stare decisis, a court is generally compelled to abide by conclusions of law made in prior proceedings of higher courts, a court cannot take judicial notice of another court’s determination of the truth of those facts.”). Rather, the parties must be afforded the opportunity to develop their own record in this matter with the benefit of calling witnesses and subjecting them to cross-examination. Accordingly,
IT IS ORDERED that plaintiffs’ motion for summary judgment is denied. IT IS FURTHER ORDERED that defendants’ cross motion for summary judgment is denied. IT IS FURTHER ORDERED that the parties shall exchange final witness lists no later than thirty (30) days from the date of this opinion and order.

IT IS FURTHER ORDERED that the parties shall appear for trial on Tuesday, February 25, 2014, at 9:00 a.m.

Dated: October 16, 2013 Detroit, Michigan

S/ Bernard A. Friedman____________ BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE

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 2:12-cv-10285-BAF-MJH Doc # 151 Filed 03/21/14 Pg 1 of 31 Pg ID 3944

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors, and JAYNE ROWSE, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors,

Plaintiffs, vs.

Civil Action No. 12-CV-10285 HON. BERNARD A. FRIEDMAN

RICHARD SNYDER, in his official capacity as Governor of the State of Michigan, and BILL SCHUETTE, in his official capacity as Michigan Attorney General,

Defendants. _________________________________________/

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiffs April DeBoer and Jayne Rowse (“plaintiffs”) challenge a November 2004

voter-approved amendment to the Michigan Constitution that prohibits same-sex marriage

(hereinafter the “Michigan Marriage Amendment” or “MMA”), Mich. Const. Art. I, § 25. The

Michigan Marriage Amendment states: “To secure and preserve the benefits of marriage for our

society and for future generations of children, the union of one man and one woman in marriage

shall be the only agreement recognized as a marriage or similar union for any purpose.”

Plaintiffs maintain that the MMA violates the Due Process and Equal Protection Clauses of the

Fourteenth Amendment to the United States Constitution and they seek to enjoin state and

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county officials from enforcing the provision and its implementing statutes.1 After reviewing the evidence presented at the trial, including the testimony of various
expert witnesses, the exhibits, and stipulations, and after considering all of the legal issues involved, the Court concludes that the MMA is unconstitutional and will enjoin its enforcement. I. Background
The underlying facts of this case are straightforward. Plaintiffs are an unmarried samesex couple residing in Hazel Park, Michigan. They have lived together for the past eight years and jointly own their residence. Both are state-licensed foster parents. DeBoer is a nurse in the neonatal intensive care unit at Hutzel Hospital and Rowse is an emergency room nurse at Henry Ford Hospital, both located in Detroit. In November 2009, Rowse, as a single person, legally adopted child N. In October 2011, also as a single person, she legally adopted child J. In April 2011, DeBoer, as a single person, adopted child R. Unable to jointly adopt the three children, plaintiffs initially filed the instant action against the state defendants requesting that the Court enjoin them from enforcing section 24 of the Michigan Adoption Code (hereinafter “section 24”), Mich. Comp. Laws § 710.24, which restricts adoptions to either single persons or married couples. Plaintiffs claimed that section 24 violates the Equal Protection Clause because it impermissibly discriminates against unmarried couples. In response, the state defendants moved to dismiss the complaint on the grounds that, among other things, plaintiffs lacked standing to bring suit.
1 The defendants in this matter are Michigan Governor Richard Snyder and Attorney General Bill Schuette (collectively the “state defendants”). Plaintiffs later added former Oakland County Clerk, Bill Bullard, Jr. as a party defendant, who was eventually replaced by his successor in office, defendant Lisa Brown. Although Brown is named as a defendant in this matter, she has adopted plaintiffs’ legal position challenging the MMA.
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The Court held a hearing on the state defendants’ motion and expressed reservations that plaintiffs did not possess the requisite standing to challenge section 24. The Court noted that while plaintiffs made a colorable claim that they and their children were, in fact, injured by their ineligibility to petition for joint adoption, this injury was not traceable to defendants’ enforcement of section 24. Rather, plaintiffs could not jointly adopt their children because they were not married, and any legal form of same-sex union is prohibited by the MMA. The Court concluded the hearing by inviting plaintiffs to seek leave to amend their complaint to include a challenge to the MMA.
Plaintiffs accepted the Court’s invitation and sought leave to amend their complaint, which the Court granted over defendants’ objection. The amended complaint included a second cause of action challenging the validity of the MMA on both due process and equal protection grounds. The state defendants then renewed their motion, this time to dismiss the amended complaint. The Court held the matter in abeyance and then denied the motion after the United States Supreme Court issued its decision in United States v. Windsor, 133 S. Ct. 2675 (2013), invalidating section 3 of the Defense of Marriage Act of 1996 (“DOMA”).
Thereafter, the parties both filed motions for summary judgment. The state defendants, in support of their argument that the MMA has legitimate purposes, offered the following reasons for excluding same-sex couples from Michigan’s definition of marriage: (1) providing children with “biologically connected” role models of both genders that are necessary to foster healthy psychological development; (2) avoiding the unintended consequences that might result from redefining marriage; (3) upholding tradition and morality; and (4) promoting the transition of “naturally procreative relationships into stable unions.” Assuming that the appropriate level
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of scrutiny in this case is rational basis review, the Court concluded that plaintiffs raised triable issues of fact regarding whether the proffered rationales for the MMA serve a legitimate state interest, but that plaintiffs had not demonstrated their entitlement to summary judgment. As a result, the Court scheduled the matter for trial. II. Trial Proceedings, Summary of Testimony, and Findings of Fact
In setting the case for trial, the Court directed the parties to address a narrow legal issue: whether the MMA survives rational basis review. In other words, does the MMA proscribe conduct in a manner that is rationally related to any conceivable legitimate governmental purpose.
Plaintiffs called psychologist David Brodzinsky as their first witness. He testified that decades of social science research studies indicate that there is no discernible difference in parenting competence between lesbian and gay adults and their heterosexual counterparts. Pls.’ Ex. 30 at 3-4. Nor is there any discernible difference in the developmental outcomes of children raised by same-sex parents as compared to those children raised by heterosexual parents. Id. Brodzinsky stressed that the primary factors influencing childhood development are:
[the] quality of parent-child relationships; quality of the relationships between the parents . . . [t]he characteristics of the parent, the styles that they adopt, parental warmth and nurturance [sic], emotional sensitivity. The ability to employ age appropriate rules and structure for the child. And the kinds of educational opportunities that children are afforded is important, as well as the resources that are provided for the child, not only in the family itself, but the resources that, from the outside, that impact the family and the child in particular. And of course, the mental health of . . . the parents. Brodzinsky, Tr. 2/25/14 pp. 69-70. Contrary to the state defendants’ position, Brodzinsky testified that there is no body of research supporting the belief that children require parent role models of both genders to be healthy and well adjusted. Id. at 78-79. What matters is the
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“quality of parenting that’s being offered” to the child. Id. at 78. Brodzinsky also noted that same-sex parenting has become a fact of life for many American children and that legally recognizing same-sex marriages would benefit these children by promoting family stability and investing these families with “social capital.” Id. at 136.
Brodzinsky also addressed the criticism that most of the social science research studies informing his conclusions are statistically unreliable because they utilized small and selfselecting sample populations, i.e., “convenience studies.” In addressing this criticism, Brodzinsky indicated that researchers in the fields of child development and family psychology commonly use convenience studies as a methodological tool for studying issues of interest because they, in contrast to large-scale studies, offer the opportunity for a more detailed analysis of the circumstances affecting children and their parents. While Brodzinsky acknowledged that small-scale convenience samples have their limitations, he highlighted that researchers studying same-sex households have verified the conclusions of their convenience studies by consistently replicating the results of these studies using different research strategies and sample populations. These studies, approximately 150 in number, have repeatedly demonstrated that there is no scientific basis to conclude that children raised by same-sex parents fare worse than those raised by heterosexual parents.
The Court finds Brodzinsky’s testimony to be fully credible and gives it considerable weight. He testified convincingly that children’s outcomes depend on the factors he cited, and not on their parents’ gender and not on whether they are raised by heterosexual or same-sex couples. The quality of a person’s child-rearing skills is unrelated to the person’s gender or sexual orientation. Brodzinsky’s credibility was not in any way lessened by the fact that the
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social science research upon which his opinions are based come largely from so-called “convenience studies.” As Brodzinsky and others testified, such studies are the “bread and butter” of many areas of social science research, and the results of such studies are valid and reliable if, as occurred here, they are consistently replicated by different researchers studying different sample groups.
Sociologist Michael Rosenfeld supported this conclusion. In his 2010 study entitled “Nontraditional Families and Childhood Progress Through School,” Rosenfeld gathered data from the 2000 United States Census to examine whether grade school children of same-sex couples progress through school at the same rate as children raised by heterosexual couples. Controlling for parental income, education levels and family stability, Rosenfeld found that children raised by same-sex couples progress through school at almost the same rate as children raised by heterosexual married couples. Regarding couple stability, Rosenfeld testified that cohabiting same-sex couples reported higher break-up rates than heterosexual married couples during the years preceding any legally recognized form of same-sex union (in the 1980s and 1990s). However, studies measuring couple stability during the era of legally recognized samesex unions demonstrated that longevity rates among cohabiting same-sex couples was on par with heterosexual married couples. Referring to his ongoing longitudinal study2 entitled “How Couples Meet and Stay Together,” Rosenfeld confirmed that same-sex couples in legally recognized unions exhibit the same couple stability rates as their heterosexual married counterparts.
Although he testified that the social science community has formed a strong consensus
2 A longitudinal study is one that measures specific indicators over the course of time. -6-

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regarding the comparable outcomes of children raised by same-sex couples, Rosenfeld recognized that a small number of detractors have criticized his research. In particular, Rosenfeld referred to a 2013 study conducted by family economists Douglas Allen, Catherine Pakaluk and Joseph Price that critiqued the statistical methodology he used in his 2010 study. Allen, Palaluk and Price contended that Rosenfeld’s results were inaccurate because he excluded children from his sample population who should have been included. Rosenfeld responded to this argument at trial by showing that Allen, Pakaluk and Price had overstated the statistical uncertainty of his results. Through demonstrative exhibits, Rosenfeld showed that the results of his study were not inaccurate at all. After controlling for parental education and income levels, Rosenfeld’s data indicated that the children of heterosexual married couples are just as likely to be held back in school as are the children of same-sex couples. This finding led him to conclude that in terms of school progress “there is no significant difference between the children of samesex couples and the children of heterosexual married couples.”3 Rosenfeld, Tr. 2/25/14 p. 82.
The Court finds Rosenfeld’s testimony to be highly credible and gives it great weight. His research convincingly shows that children of same-sex couples do just as well in school as the children of heterosexual married couples, and that same-sex couples are just as stable as heterosexual couples. The Court notes that the testimony of Brodzinsky and Rosenfeld is in line with a strong “no differences” consensus within the professional associations in the psychological and sociological fields. Brodzinsky made the following statement in his expert
3 Rosenfeld’s study showed that children raised by heterosexual married couples are less than one percent less likely to be held back in school than children raised by same-sex couples. According to Rosenfeld, this minuscule difference is statistically insignificant.
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witness report, which defendants did not challenge:
Every major professional organization in this country whose focus is the health and well-being of children and families has reviewed the data on outcomes for children raised by lesbian a nd gay couples, including the methods by which the data were collected, and have concluded that these children are not disadvantaged com pared to children raised in heterosexual parent households. Organizations expressing support for parenting, adoption, and/ or fostering by lesbian and gay couples include (but are not lim ited to): American Medical Association, American Academy of Pediatrics, Am erican Psychiatric Association, American Academy of Child and Adolescent Psychiatry, American Psychoanalytic Association, Am erican Psychological Association, Child Welfare League of Am erica, National Association of Social Workers, and the Donaldson Adoption Institute.
Pls.’ Ex. 30 at ¶ 21. In fact, the 2004 Council of Representatives of the American Psychological
Association (“APA”) unanimously voted in favor of issuing a position statement that “research
has shown that the adjustment, development, and psychological well-being of children is
unrelated to parental sexual orientation and that the children of lesbian and gay parents are as
likely as those of heterosexual parents to flourish.” Pls.’ Ex. 111 at 2.
Law professor Vivek Sankaran testified that the MMA destabilizes children raised by
same-sex couples in the event the sole legal parent dies or becomes incapacitated. Sankaran
stated that in such circumstances the “non-legal” parent could petition for guardianship over the
child, but that these proceedings are burdensome and often lack finality because Michigan courts
are required to review a non-legal parent’s guardianship status every year until the child turns
18. Moreover, once the non-legal parent commences a guardianship proceeding there is no
guarantee that the court will either award guardianship to that parent or eventually permit him or
her to adopt the child. Michigan law allows any individual possessing an interest in the child’s
welfare to file a petition removing the guardian if the removal would serve the child’s best
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interests. Sankaran testified that an interested person may include a distant relative of the child, a neighbor, teacher, or “anyone who claims to have an interest in the child.”
Should the non-legal parent encounter any delay in pursuing the guardianship, there is also the prospect that the Michigan Department of Human Services (“DHS”) could initiate a child neglect investigation because the child would be left for at least some period of time without a legal guardian. Sankaran, Tr. 2/26/14 pp. 120-121. In this event, DHS is authorized to file a petition in juvenile court to remove the child from the custody of the non-legal parent and place the child in foster care. At the removal proceeding, the non-legal parent would not be a party to the proceeding nor would the juvenile court appoint a lawyer to represent the non-legal parent’s interests. According to Sankaran, the non-legal parent would have to become a licensed foster parent in order to obtain custody of the child, and even then the juvenile court is not required to place the child with the non-legal parent. These destabilizing consequences could have far reaching effects throughout the state, as demographer Gary Gates testified that currently there are approximately 14,598 same-sex couples living in Michigan and that approximately 2,650 such couples are raising 5,300 children. Gates, Tr. 2/27/14 p. 29.
The Court finds Sankaran’s testimony to be fully credible and gives it great weight. He testified convincingly that children being raised by same-sex couples have only one legal parent and are at risk of being placed in “legal limbo” if that parent dies or is incapacitated. Denying same-sex couples the ability to marry therefore has a manifestly harmful and destabilizing effect on such couples’ children. The testimony of Gates, whom the Court also found to be a highly credible witness, showed the magnitude of this effect by noting that 5,300 children in Michigan are currently being raised by same-sex couples.
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Plaintiffs also presented expert testimony that the MMA erodes the benefits that marriage has historically promoted. Historian Nancy Cott testified that, from the founding of the colonies through the early years of the republic, civil authorities regulated marriage to foster stable households, legitimate children and designate providers to care for dependents who otherwise would become wards of the state. During the twentieth century, the state and federal governments furthered these goals by granting many benefits to married couples. For instance, Social Security survivor benefits and government sponsored healthcare benefits are available to legally married couples, but not unmarried partners. Yet, by effectively foreclosing same-sex couples from obtaining these benefits, the MMA undermines the very aim of one of the central historical bases for civil marriage, namely, family stability.
Cott further attested that there is no historical precedent for prohibiting marriages that are incapable of creating biological offspring. After surveying the domestic legal history of every state in the country, Cott indicated that none of them have ever required a couple to possess the capacity or inclination to procreate as a prerequisite to marriage. Cott, Tr. 2/28/14 p. 14. She highlighted that sterility or infertility have never constituted legal grounds for the annulment of a marriage. Nor have states prohibited post-menopausal women or sterile men from marrying. Examining the historical grounds for divorce, Cott noted that the “inability to have a child has not been a ground of divorce in any state, including Michigan.” Id. at 15. The Court finds Cott to be highly credible and accords her testimony great weight.
Even today, the State of Michigan does not make fertility or the desire to have children a prerequisite for obtaining a marriage license. As defendant Lisa Brown testified, Michigan county clerks are not authorized to consider a couple’s stability, criminal record, ability to
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procreate, parenting skills, or the potential future outcomes of their children before issuing a marriage license. Brown, Tr. 3/3/14 pp. 34, 38-40. County clerks may only evaluate the age and residency of the license applicants and whether either of the applicants is currently married.4 Id. at 32, 35.
The Court finds Brown to be highly credible and gives her testimony great weight. She testified convincingly that county clerks in Michigan must issue a marriage license to any couple who meet the sparse statutory requirements concerning age, residency, and single status. Clerks do not inquire about whether applicants intend to raise children, whether they possess good parenting skills, or whether they have a criminal record.
In defense of their asserted justifications for the MMA, the state defendants first called sociologist Mark Regnerus. Regnerus’s testimony focused on the results of his 2012 “New Family Structures Study” (“NFSS”), a survey data collection project that was formulated to assess adult outcomes of children who reported that one of their parents had been in a “romantic relationship with someone of the same-sex” during the respondents’ childhood years. Of the 15,000 participants ranging in age from 18 to 39, 248 of them reported that one of their parents had been in such a romantic relationship. From this sample, 175 reported that their mother had a same-sex romantic relationship while 73 reported that their father had been romantically
4 Under Michigan law, the statutory requirements applicable to those wishing to marry are minimal. Applicants must (1) be of the opposite sex; (2) consent to be married; (3) not be directly related to one another; (4) not already be married to another person; (5) be at least 18 years old (or at least 16 years old with the consent of a parent or guardian); and (6) pay $20 for a license from the clerk of the county where either party resides or where the marriage will be performed. See Mich. Comp. Laws §§ 551.1, 551.2, 551.3, 551.4, 551.5, 551.101, 551.103. Once a license is issued, the marriage must be solemnized before two witnesses and a person with statutory authority. See Mich. Comp. Laws §§ 551.7, 551.9.
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involved with another man. Regnerus then compared the adult outcomes of these two subgroups with another set of participants who were raised by intact biological parents. The outcomes of these groups were significantly different.
Regnerus found that children who reported that their mothers had a same-sex relationship were less likely to pursue an education or obtain full-time employment and more likely to be unemployed and receiving public assistance, more likely to experience sexual assault, more likely to cheat on their partners or spouses and more likely to have been arrested at some point in their past. Similarly, Regnerus discovered that children who reported that their fathers had a same-sex relationship were more likely to have been arrested, more likely to plead guilty to nonminor offenses and more likely to have numerous sexual partners.
Although Regnerus touted the NFSS as one of the few studies to use a large representative pool of participants drawn from a random population-based sample, other sociological and demographic experts, including Rosenfeld and Gates, heavily criticized the study on several grounds. First, it failed to measure the adult outcomes of children who were actually raised in same-sex households. This is because the participants’ household histories revealed that many parental same-sex romantic relationships lasted for only brief periods of time. And many of the participants never lived in a same-sex household at all. Regnerus reported that “just over half (90) of the 175 respondents whose mother had a lesbian relationship reported that they did not live with both their mother and her same-sex partner at the same time.” Id. at 11. Second, many critics voiced their concern that the NFSS made an unfair comparison between children raised by parents who happened to engage in some form of same-sex relationship and those raised by intact biological families. This is because almost all of the children in the former
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group were the offspring of a failed prior heterosexual union, which produced a significant measure of household instability and parental relationship fluctuation.
Even Regnerus recognized the limitations of the NFSS. In his expert report, Regnerus acknowledged that “any suboptimal outcomes may not be due to the sexual orientation of the parent” and that “[t]he exact source of group differences” are unknown. Defs.’ Ex. 28 at 5. Moreover, of the only two participants who reported living with their mother and her same-sex partner for their entire childhood, Regnerus found each of them to be “comparatively welladjusted on most developmental and contemporary outcomes.” Id. at 11. Nonetheless, Regnerus testified that there is no conclusive evidence that “growing up in households wherein parents are in (or have been in) same-sex relationships” does not adversely affect child outcomes. Id. at 16.
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,
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833 F. Supp. 2d 394 (S.D.N.Y. 2012), were threatening the funder’s concept of “the institution of marriage.”
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.
In reviewing the many research studies that have measured the outcomes of children raised by same-sex couples, family studies professor Loren Marks and economist Joseph Price questioned the validity of these studies in view of their statistical methodologies. Both witnesses testified that the research studies of same-sex families often have relied upon small self-selecting sample sizes, rarely compared child outcomes to children raised by intact heterosexual couples, and failed to use “hard” outcome variables that are easily to measured, i.e., grade retention, criminality or unemployment.
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In his testimony, Marks lauded a 1996 study performed by Australian researcher Sotirios Sarantakos entitled “Children in Three Contexts: Family, Education and Social Development.” That study compared 58 children of heterosexual married parents, 58 children of heterosexual cohabiting couples, and 58 children living with same-sex couples across a wide spectrum of teacher-reported scholastic measures. Defs.’ Ex. 25 at 16, 38. Marks testified that after controlling for, among other things, parental income and education levels, the study found significant differences between children raised by intact heterosexual married parents and those raised by same-sex parents. Sarantakos concluded, “children of married [heterosexual] couples are more likely to do well at school in academic and social terms, than children of cohabiting and homosexual couples.” Id. at 17. However, on cross-examination, Marks conceded that the study’s probative value was limited by the fact that most of the 58 children raised by same-sex couples experienced parental divorce at some earlier time in their lives. Marks, Tr. 3/5/14 pp. 7576. By comparison, none of the children raised by heterosexual married parents experienced parental separation. Id. at 76. At several points in the study, even Sarantakos acknowledged that this discrepancy in family stability could have accounted for the differing levels of achievement between these groups. Id. at 76-78.
Price cited to his 2012 article, authored with Douglas Allen and Catherine Pakaluk, in evaluating the statistical methodology that Rosenfeld used in his 2010 study. Price opined that the Rosenfeld study was flawed because the results were statistically uncertain and the sample population was too small to observe statistically significant differences between children raised by same-sex couples and those raised by heterosexual couples. Price also stated that Rosenfeld’s study was problematic because it controlled for family stability by “restricting an analysis of
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family structure to families that have [not] experience[d] changes for the previous five years,” which “eliminates one of the important channels through which the effect of family structure is likely to operate.” Defs.’ Ex. 27 at ¶ 28. By expanding Rosenfeld’s sample population and controlling for certain factors such as family stability, Price’s study found that children raised by same-sex couples have noticeably worse outcomes than children raised by heterosexual couples. Ultimately, both Marks and Price concluded that current social science research has not definitively demonstrated that there is no difference between children raised by same-sex couples and those children raised by their heterosexual counterparts. Marks, Tr. 3/5/14 p. 24; Price, Tr. 3/5/14 pp. 54-56.
Economist Douglas Allen testified about his own study using data from the 2006 Canadian Census, which compared the high school graduation rates of young adults (ages 17-22) raised by heterosexual married couples and those raised by same-sex couples. Without controlling for any particular factors, Allen found that 72 percent of children raised in heterosexual married households graduated from high school as opposed to 60 percent of those raised in gay parent homes and 52 percent for those raised in lesbian homes. Defs.’ Ex. 26 at ¶ 36. On cross-examination, Allen conceded that many of the young adults who were living in same-sex households in 2006 had previously lived in heterosexual households where their parents had either divorced or separated. Id. at ¶ 49; Allen, Tr. 3/6/14 pp. 119-120. Similarly, because the study relied on a “snap shot” of the sample population during the 2006 Canadian Census, Allen could not gauge how the young adult subjects progressed through school during their childhood years or when their academic progress began to decline. Allen, Tr. 3/6/14 p. 120. One of the major limitations of Allen’s study was that he could not discern whether a particular
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young adult’s academic decline coincided with a separation in the household. Id. at 120-121. This led Allen to acknowledge in a footnote that his “paper does not study the effect of growing up in a same-sex household, but rather examines the association of school performance for those children who lived with same-sex parents in 2006.” Defs.’ Ex. 15 at 4 (emphasis added). Moreover, when Allen controlled for parental education, marital status and five years of residential stability, he discovered that there was no statistically significant difference in graduation rates. Allen, Tr. 3/6/14 pp/ 128-129.
The Court was unable to accord the testimony of Marks, Price, and Allen any significant weight. Marks’s testimony is largely unbelievable. He characterized the overwhelming consensus among sociologists and psychologists who endorse the “no differences” viewpoint as “group think,” by which he said he meant a politically correct viewpoint that the majority has accepted without subjecting it to proper scientific scrutiny. Marks undertook an excruciatingly detailed examination of the 59 published studies cited by the APA in support of its 2005 “Brief on Lesbian and Gay Parenting,” in which it concluded that “[n]ot a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents.” Marks, as well as Price and Allen, faulted many of these studies for their small sample sizes, the non-random methods used to obtain subjects, and the fact that some lacked heterosexual comparison groups, among other criticisms. Marks, Price and Allen all failed to concede the importance of “convenience sampling” as a social science research tool. They, along with Regnerus, clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields. The most that can be said of these witnesses’ testimony is that the “no differences” consensus has not been proven
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with scientific certainty, not that there is any credible evidence showing that children raised by same-sex couples fare worse than those raised by heterosexual couples. III. Conclusions of Law
A. Legal Standards The Court finds that the MMA impermissibly discriminates against same-sex couples in violation of the Equal Protection Clause because the provision does not advance any conceivable legitimate state interest. In light of this determination, the Court finds it unnecessary to address whether the MMA burdens the exercise of a fundamental right under the Due Process Clause.5 See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”) The Equal Protection Clause forbids a state from denying “to any person within its jurisdiction the equal protection of the laws,” U.S. Const. amend. XIV, § 1, and promotes the ideal that “all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). On the other hand, states are empowered to “perform many of the vital functions of modern government,” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2578 (2012), which necessarily involves adopting regulations which distinguish between certain groups within society. See Romer v. Evans, 517 U.S. 620, 631 (1996). A
5 The Court notes, however, that the Supreme Court has repeatedly recognized marriage as a fundamental right. See Turner v. Safley, 482 U.S. 78, 95 (1987) (stating that “the decision to marry is a fundamental right”); Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632, 639-640 (1974) (stating that “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment).” Loving v. Virginia, 388 U.S. 1, 12 (1967) (same); Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (same).
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balance must therefore be struck between equal protection principles and the practicalities of governance.
To this end, the United States Supreme Court has fashioned a three-tiered framework for evaluating whether a provision of law offends the Equal Protection Clause. The most rigorous tier is “strict” scrutiny, which is reserved for laws that discriminate against “suspect classes” such as racial, ethnic or religious minorities. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (applying strict scrutiny to racial classification); Korematsu v. United States, 323 U.S. 214, 216 (1944) (applying strict scrutiny to classification based upon national origin). A more relaxed form of inquiry is “intermediate” or “heightened” scrutiny, which courts have applied to laws that discriminate against groups on the basis of gender, alienage or illegitimacy, also known as “quasisuspect classes.” See Clark v. Jeter, 486 U.S. 456, 461 (1988) (applying intermediate scrutiny to classification based upon illegitimacy); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723-724 (1982) (applying intermediate scrutiny to gender classification). The least exacting tier is “rational basis” review, which assesses the propriety of legislation that does not implicate either suspect or quasi-suspect classes.
In this case, plaintiffs moved to bifurcate the trial in the event the Court decided to hear testimony about whether classifications based on sexual orientation are deserving of heightened scrutiny. The Court granted the motion, although governing Sixth Circuit precedent does not consider gay, lesbian, bisexual or transgender persons to constitute suspect or quasi-suspect classes. See Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Scarborough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006). While some federal courts have held that a more exacting level of scrutiny should be applied in reviewing the constitutionality of same-sex marriage bans, see Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012);
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Massachusetts v. United States Dep’t of Health and Human Servs., 682 F.3d 1, 11 (1st Cir. 2012), the Court need not decide the issue because the MMA does not survive even the most deferential level of scrutiny, i.e., rational basis review.
Under this standard, the Court must determine whether the MMA proscribes conduct in a manner that is rationally related to the achievement of a legitimate governmental purpose. See Vance v. Bradley, 440 U.S. 93, 97 (1979); Guzman v. United States Dep’t of Homeland Sec., 679 F.3d 425, 432 (6th Cir. 2012). Courts will not invalidate a provision of law on equal protection grounds “unless [its] varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [a reviewing court] can only conclude that the government’s actions were irrational.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000). “The government [also] has no obligation to produce evidence to support the rationality of its . . . [imposed] classifications and may rely entirely on rational speculation unsupported by any evidence or empirical data.” Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000). Rather, it is incumbent upon plaintiffs to refute “any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993).
B. Asserted Reasons for the MMA Largely in keeping with the justifications offered in their summary judgment motion, at trial, the state defendants asserted that the MMA serves the following legitimate state interests: (1) providing an optimal environment for child rearing; (2) proceeding with caution before altering the traditional definition of marriage; and (3) upholding tradition and morality. Additionally, the state defendants consistently asserted that defining marriage is within the
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exclusive purview of the state’s police power. None of these proffered reasons provides a rational basis for adopting the amendment.
1. Optimal Environment The state defendants argued that the citizens of Michigan adopted the MMA on the premise that heterosexual married couples provide the optimal environment for raising children. The Court rejects this rationale for several reasons. First, the evidence adduced at trial disproved this premise. Rosenfeld’s study shows that children raised by same-sex couples progress at almost the same rate through school as children raised by heterosexual married couples. In fact, the difference between the two groups is nearly immeasurable. Brodzinsky similarly testified that approximately 150 sociological and psychological studies of children raised by same-sex couples have repeatedly confirmed Rosenfeld’s findings that there is simply no scientific basis to conclude that children raised in same-sex households fare worse than those raised in heterosexual households. Brodzinsky also testified that parental gender plays a limited role, if any, in producing well-adjusted children. Brodzinsky, Tr. 2/25/14 p. 78. He stated that: It’s not the gender of the parent that’s the key. It’s the quality of parenting that’s being offered by whoever is there, husband or wife, two women, two men, a single parent, as long as the factors that we listed . . . are present: good mental health, good parent-child relationships, what we call an authoritative parenting style, which is warmth, stimulation, structure, and the availability of resources. Then we’re going to have a child who is much more likely to be healthy. Id. at 78-79. In response, state defendants cited a small number of outlier studies in support of the optimal child-rearing rationale. In an effort to show that children raised by same-sex couples fare worse than those raised by heterosexual couples, the state defendants relied principally upon
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Regnerus’s NFSS study and Allen’s 2006 Canadian Census study, but these efforts were unavailing. The common flaw of the Regnerus and Allen studies was the failure to account for the fact that many of the subjects who were raised in same-sex households experienced prior incidents of family instability (e.g., divorce or separation) or were initially placed in the foster care system. Both researchers acknowledged that poor school performance could result from a child’s exposure to divorce or parental separation. Regnerus’s NFSS study also suffered from another defect in that it failed to measure the adult outcomes of children who were actually raised in same-sex households. In short, the isolated studies cited by the state defendants do not support the argument that children raised by heterosexual couples have better outcomes than children raised by same-sex couples. To the contrary, the overwhelming weight of the scientific evidence supports the “no differences” viewpoint.
Second, the optimal child-rearing justification for the MMA is belied by the state’s own marriage requirements. The prerequisites for obtaining a marriage license under Michigan law do not include the ability to have children, a requirement to raise them in any particular family structure, or the prospect of achieving certain “outcomes” for children. By the same token, the state does not allow for the annulment of a marriage once a couple discovers it cannot conceive, or if the family structure changes, or if the couple’s children do poorly in school.
Third, contrary to the state defendants’ contentions, the MMA actually fosters the potential for childhood destabilization. For instance, in this particular case should either of the plaintiffs die or become incapacitated, the surviving non-legal parent would have no authority under Michigan law to make legal decisions on behalf of the surviving children without resorting to a prolonged and complicated guardianship proceeding. And in the event that a state court
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were to award guardianship of the surviving children to the non-legal parent, the guardianship would have to be renewed annually and would remain susceptible to the challenge of an interested party at any time. This, as Brodzinsky testified, places such children in a legally precarious situation and deprives them of “social capital.”
Fourth, the 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.
Finally, the Court rejects the “optimal environment” justification because that goal is simply not advanced by prohibiting same-sex couples from marrying. As Gates testified, there
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are thousands of same-sex couples currently raising thousands of children in Michigan, and these numbers have steadily increased over the past 20 years. Prohibiting gays and lesbians from marrying does not stop them from forming families and raising children. Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents. There is, in short, no logical connection between banning samesex marriage and providing children with an “optimal environment” or achieving “optimal outcomes.”
2. Proceeding With Caution Throughout the trial, the state defendants asserted that Michigan has a legitimate interest in proceeding with caution before altering the traditional definition of marriage. The state defendants’ experts all concluded that it is too soon to understand the societal impact of allowing same-sex couples to marry because further study is required. This “wait-and-see” justification is not persuasive. Legislatures and regulatory agencies often cite to such reasoning when postponing decisions related to issues of public importance, as matters of public policy are resolved with more candor and insight when they are decided after an open debate based on sufficient facts. This is why federal administrative agencies must provide the public with a notice and comment period before exercising their rule-making authority. Hearings must be held, studies must be conducted, and legislators must deliberate. These things necessarily take time. 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
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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-andsee” approach fails to meet this most basic threshold it cannot pass the rational basis test.
3. Tradition and Morality Implicit in the “wait-and-see” approach is the state defendants’ underlying contention that preserving traditional marriage is a legitimate goal in and of itself. 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
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statute expressed a moral disapproval of homosexuality); De Leon v. Perry, No. 13-0982, 2014 U.S. Dist. LEXIS 26236, at *48-49 (W.D. Tex. Feb. 26, 2014) (rejecting morality as a justification); Bishop v. United States, No. 04-848, 2014 U.S. Dist. LEXIS 4374, at *101 (N.D. Okla. Jan. 14, 2014) (stating that “upholding one particular moral definition of marriage . . . is not a permissible justification.”); Kitchen, 2013 U.S. Dist. LEXIS 179331, at *79 (same).
In delivering their opening and closing remarks, plaintiffs’ attorneys contended that the voters who approved the MMA were motivated by animus towards lesbian, gay, bisexual and transgender individuals. Since the Court is unable discern the intentions of each individual voter who cast their ballot in favor of the measure, it is cannot ascribe such motivations to the approximately 2.7 million voters who approved the measure. Many Michigan residents have religious convictions whose principles govern the conduct of their daily lives and inform their own viewpoints about marriage. Nonetheless, these views cannot strip other citizens of the guarantees of equal protection under the law. The same Constitution that protects the free exercise of one’s faith in deciding whether to solemnize certain marriages rather than others, is the same Constitution that prevents the state from either mandating adherence to an established religion, U.S. Const. amend I, or “enforcing private moral or religious beliefs without an accompanying secular purpose.” Perry, 704 F. Supp. 2d at 930-931 (citing Lawrence v. Texas, 539 U.S. 558, 571 (2003)). As a result, tradition and morality are not rational bases for the MMA.
4. Federalism Citing to the Supreme Court’s decision in Windsor, the state defendants maintain that the
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authority to define marriage falls within the exclusive and inherent powers of the state.6 In
6 Forty years before the Supreme Court decided Windsor, the Minnesota Supreme Court held in Baker v. Nelson, 291 Minn. 310 (1971), that same-sex couples have no Fourteenth Amendment right to marry. The following year, in a single sentence, the United States Supreme Court dismissed the appeal “for want of a substantial federal question.” Baker v. Nelson, 409 U.S. 810 (1972). The state defendants have argued in the present case that Baker is binding precedent.
The answer to this argument was ably articulated by Judge Shelby in Kitchen, 2013 U.S. Dist. LEXIS 179331, at *23-26:
[T]he Supreme Court has stated that a sum mary dismissal is not binding “when doctrinal developments indicate otherwise.” Hicks v. Miranda, 422 U.S. 332, 344 (1975).
Here, several doctrinal developments in the Court’s analysis of both the Equal Protection Clause and the Due Process Clause as they apply to gay m en and lesbians dem onstrate that t he Court’s summary dismissal in Bakerhas little if any precedential effect today. Not only was Baker decided before the Supreme Court held that sex is a quasi-suspect classification, see Craig v. Boren, 429 U.S. 190, 197 (1976); Fr ontiero v. Richardson , 411 U.S. 677, 688 (1973) (plurality op.), but also before the Cour t recognized that the Constitution protects individuals from discrimination on the basis of sexual orientation. See Romer v. Evans , 517 U.S. 620, 635–636 (1996). Moreover, Baker was decided before the Supreme Court held in Lawrence v. Texas that it was unconstitutional f or a state to “demean [the] existence [of gay me n and lesbians] or control their destiny by making their private sexual conduct a crim e.” 539 U.S. 558, 578 (2003). As discussed below, the Supreme Courts decision in Lawrence removes a justification that states could formerly cite as a reason to prohibit same-sex marriage.
* * *
As discussed above, the Court’s decision in Windsor does not answer the question presented here, but its reasoning is nevertheless highly relevant and is therefore a significant doctrinal development. Importantly, the Windsor Court foresaw that its ruling would precede a number of lawsuits in state and lower federal courts r aising the question of a state’s ability to prohibit same-sex marriage, a fact that was noted by two dissenting justices. .. . It is also notable that while the Court declined to reach the m erits in Hollingsworth v. Per ry because the petitioners lacked st anding to pursue the appeal, the
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finding section 3 of DOMA unconstitutional, the Windsor Court acknowledged that: The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U. S. 287, 298 (1942) (“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders”). The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.” Ibid.
Id. at 2691. 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.
Loving has profound implications for this litigation. In that case, the Supreme Court overturned Virginia’s anti-miscegenation statutes prohibiting interracial marriage because they
Court did not dism iss the case out right for lack of a substantial federal question. See ––– U.S. ––––, 133 S.Ct. 2652 (2013). Given the Supreme Court’s disposition of both Windsor and Perry, the court finds that there is no longer any doubtthat the issue currently before the court in this lawsuit presents a substantial question offederal law. The Court finds this reasoning persuasive and adopts the above quot ed passage in full. Baker no longer has any precedential effect.
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violated substantive due process and equal protection. In doing so, the Court rejected Virginia’s argument that “under the Constitution the regulation and control of marital and family relationships are reserved to the States.” Kitchen, 2013 U.S. Dist. LEXIS 179331, at *83-84 (citation omitted). This position, which the state defendants advance again in the present case, is just as ineffectual now as it was in Loving. 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.
Further, the Court rejects the contention that Michigan’s traditional definition of marriage possesses a heightened air of legitimacy because it was approved by voter referendum. The popular origin of the MMA does nothing to insulate the provision from constitutional scrutiny. As Justice Robert H. Jackson once wrote,
[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943); see e.g. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2 (1975) (stating that the right to equal protection is incorporated within the Fifth Amendment’s Due Process Clause). The Court is not aware of any legal authority that entitles a ballot-approved measure to special deference in the event it raises a constitutional question. On the contrary, the Supreme Court has clearly stated that if . . . an enactment violates the U.S. Constitution - whether passed by the people or their representatives - judicial review is necessary to preserve the rule of law . . . [t]he electorate cannot order a
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violation of the Due Process or Equal Protection Clauses by referendum or otherwise, just as the state may not avoid their application by deferring to the wishes or objections of its citizens. Obergefell v. Wymyslo, No. 13-0501, 2013 U.S. Dist. LEXIS 179550, at *27-28 (S.D. Ohio Dec. 23, 2013) (citing Cleburne, 473 U.S. at 448). In view of the foregoing, the state’s domestic relations authority cannot trump federal constitutional limitations. IV. Conclusion In attempting to define this case as a challenge to “the will of the people,” Tr. 2/25/14 p. 40, state defendants lost sight of what this case is truly about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples. It is the Court’s fervent hope that these children will grow up “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, 133 S. Ct. at 2694. Today’s decision is a step in that direction, and affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail. Accordingly,
IT IS HEREBY DECLARED that Article I, § 25 of the Michigan Constitution and its implementing statutes are unconstitutional because they violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
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IT IS FURTHER ORDERED that the State of Michigan is enjoined from enforcing Article I, § 25 of the Michigan Constitution and its implementing statutes.

Dated: March 21, 2014 Detroit, Michigan

S/ Bernard A. Friedman BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE

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 Case: 14-1341 Document: 22-1 Filed: 03/25/2014 Page: 1

(1 of 6)

No. 14-1341

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

APRIL DEBOER; JANE ROWSE, individually )

and as parents and next friend of N.D.-R, R.D.-R )

and J.D.-R, minors,

)

)

Plaintiffs-Appellees,

)

)

v.

)

)

RICHARD SNYDER, in his official capacity as )

Governor of the State of Michigan; BILL

)

SCHUETTE, in his official capacity as Michigan )

Attorney General,

)

)

Defendants-Appellants.

)

FILED
Mar 25, 2014 DEBORAH S. HUNT, Clerk
O R D E R

Before: ROGERS and WHITE, Circuit Judges; CALDWELL, District Judge* The district court in this case enjoined the enforcement of Article I, § 25 of the Michigan Constitution, which provides that marriage is “the union of one man and one woman.” In light of the Supreme Court’s issuance of a stay in a similar case, Herbert v. Kitchen, 134 S. Ct. 893 (2014), a stay of the district court’s order is warranted. On March 21, 2014, the district enjoined the State of Michigan from enforcing the constitutional provision and its implementing statutes because the court concluded that those laws violate the Equal Protection Clause of the Fourteenth Amendment. DeBoer v. Snyder, No. 2:12-cv-10285, 2014 WL 1100794, at *17 (E.D. Mich. Mar. 21, 2014). Michigan filed a notice
* The Honorable Karen K. Caldwell, Chief United States District Judge for the Eastern District of Kentucky, sitting by designation.

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of appeal and made an emergency motion to stay the district court’s order in this court the same

day. This court temporarily stayed the district court’s order so that it could more carefully

consider Michigan’s request and a response from the plaintiffs. The plaintiffs filed a response,

and defendant Lisa Brown in her capacity as Clerk of Oakland County moved for leave to file a

response to Michigan’s motion.

Counsel for Michigan assert that during closing argument in the district court, counsel

asked the district court to stay its order should the court rule in favor of the plaintiffs. The

district court did not grant a stay. Federal Rule of Appellate Procedure 8(a) requires that a stay

pending appeal be brought first in the district court. However, a court of appeals may grant a

stay pending appeal if “the district court denied the motion or failed to afford the relief

requested.” Fed. R. App. P. 8(a)(2)(A)(ii). In the context of this case, the requirements of Rule

8 have been substantially met.

In deciding whether to grant a stay of a district court’s grant of injunctive relief, “we

consider (1) whether the defendant has a strong or substantial likelihood of success on the merits;

(2) whether the defendant will suffer irreparable harm if the district court proceedings are not

stayed; (3) whether staying the district court proceedings will substantially injure other interested

parties; and (4) where the public interest lies.” Baker v. Adams Cnty./Ohio Valley School Bd.,

310 F.3d 927, 928 (6th Cir. 2002). In this case, these factors balance no differently than they did

in Kitchen v. Herbert. Kitchen involved a challenge to “provisions in the Utah Code and Utah

Constitution that prohibited same-sex marriage.” No. 2:13-cv-217, 2013 WL 6834634, at *1 (D.

Utah Dec. 23, 2013). Like the decision below, the Kitchen court’s order enjoined Utah from

enforcing laws that prohibit same-sex marriage. 961 F. Supp. 2d 1181, 1216 (D. Utah 2013).

And like the stay requested by Michigan before this court, the Supreme Court’s order delayed the

Case: 14-1341

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applicability of the Kitchen court’s order pending resolution by the Tenth Circuit. 134 S. Ct. 893

(2014). There is no apparent basis to distinguish this case or to balance the equities any

differently than the Supreme Court did in Kitchen. Furthermore, several district courts that have

struck down laws prohibiting same-sex marriage similar to the Michigan amendment at issue

here have also granted requests for stays made by state defendants. See Bishop v. United States

ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014); Bostic v. Rainey, No. 2:13cv395, 2014

WL 561978 (E.D. Va. Feb. 13, 2014); De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL

715741 (W.D. Tex. Feb. 26, 2014); Love v. Beshear, No. 3:13-CV-750-H (W.D. Ky. Mar. 19,

2014) (order granting stay).

We GRANT Lisa Brown’s motion to respond to Michigan’s stay motion. We GRANT

Michigan’s motion to stay the district court’s order pending final disposition of Michigan’s

appeal by this court.

WHITE, J., dissenting.

I agree that this court balances the traditional factors governing injunctive relief in ruling on a motion to stay a district court’s decision pending appeal: (1) whether the defendant has a strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if the district court proceedings are not stayed; (3) whether staying the district court proceedings will substantially injure other interested parties; and (4) where the public interest lies. “In order to justify a stay of the district court's ruling, the defendant must demonstrate at least serious questions going to the merits and irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted.” Baker v Adams County/Ohio Valley School Bd, 310 F3d. 927, 928 (6th Cir. 2012). Michigan has not made the requisite showing. Although the Supreme Court stayed the permanent injunction issued by the

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Utah District Court in Kitchen v. Herbert pending final disposition by the Tenth Circuit, 134

S.Ct. 893 (2014), it did so without a statement of reasons, and therefore the order provides little

guidance. I would therefore apply the traditional four-factor test, which leads me to conclude

that a stay is not warranted.

ENTERED BY ORDER OF THE COURT

Clerk

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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: March 25, 2014

Ms. Kristin M Heyse Michigan Attorney General P.O. Box 30758 Lansinig, MI 48909
Ms. Andrea J. Johnson Pitt McGhee 117 W. Fourth Street Suite 200 Royal Oak, MI 48067
Mr. Aaron D. Lindstrom Office of the Michigan Attorney General P.O. Box 30212 Lansing, MI 48909
Mr. Kenneth Marc Mogill Mogill, Posner & Cohen 27 E. Flint Street Second Floor Lake Orion, MI 48362-0000
Ms. Dana Nessell Nessel Kessel 645 Griswold Street Detroit, MI 48226
Mr. Michael L Pitt Pitt, McGehee, Palmer, Rivers & Golden 117 W. Fourth Street Suite 200 Royal Oak, MI 48067

Case: 14-1341 Document: 22-2 Filed: 03/25/2014 Page: 2
Ms. Beth M. Rivers Pitt, McGehee, Palmer, Rivers & Golden 117 W. Fourth Street Suite 200 Royal Oak, MI 48067
Ms. Carole Margaret Stanyar Law Offices of Deborah LaBelle 221 N. Main Street Suite 300 Ann Arbor, MI 48104
Re: Case No. 14-1341, April DeBoer, et al v. Richard Snyder, et al Originating Case No. : 2:12-cv-10285
Dear Sir or Madam,
The Court issued the enclosed Order today in this case.
Sincerely yours,
s/Cheryl Borkowski Case Manager
cc: Mr. David J. Weaver
Enclosure

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 2:12-cv-10285-BAF-MJH Doc # 25 Filed 03/19/12 Pg 1 of 21 Pg ID 608

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors, and JAYNE ROWSE, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors,

Plaintiffs,

ED Mi No. 12-10285 Honorable Bernard A. Friedman United States District Judge

-vs-
RICHARD SNYDER, in his official capacity as Governor of the State of Michigan, and BILL SCHUETTE, in his official capacity as Michigan Attorney General,

Honorable Michael J. Hluchaniuk United States Magistrate Judge

Defendant. /

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 56

NOW COME THE PLAINTIFFS, April DeBoer, individually and as parent

and next friend of N.D.-R, R.D.-R., and J.D.-R, minors, and Jayne Rowse, individually and as

parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors, by and through their attorneys,

Dana Nessel and Carole Stanyar, and hereby move the Court for summary judgment pursuant to

Federal Rule of Civil Procedure 56. In support of the motion, Plaintiffs submit separately

affidavits and a Memorandum in Support.

1

2:12-cv-10285-BAF-MJH Doc # 25 Filed 03/19/12 Pg 2 of 21 Pg ID 609

Respectfully submitted,

s/Carole M. Stanyar CAROLE M. STANYAR P34830 682 Deer Street Plymouth, MI 48170 (313) 963-7222 cstanyar@wowway.com

/s/ Dana Nessel DANA M. NESSEL P51346 645 Griswold Street, Suite 3060 Detroit, MI 48226 (313) 556-2300 dananessel@hotmail.com

Dated: March 19, 2012

Attorneys for Plaintiffs

Of counsel:

s/Robert A. Sedler ROBERT A. SEDLER P31003 Wayne State University Law School 471 W. Palmer Street Detroit, MI 48202 (313) 577-3968 rsedler@wayne.edu

s/ Kenneth M. Mogill Kenneth M. Mogill P17865 MOGILL, POSNER & COHEN 27 E Flint Street, 2nd Floor Lake Orion, MI 48362 (248) 814-9470 kmogill@bignet.net

BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

I. STATEMENT OF FACTS:

Plaintiffs incorporate by reference the Statement of Facts as contained in their Brief in

Response to Defendants’ Motion to Dismiss. In addition, Plaintiffs rely upon the facts contained

in the attached affidavits, as summarized in the argument sections below to which they pertain.

II. LEGAL ANALYSIS:

A. Standards applicable to the instant motion:

Plaintiffs contend that they are entitled to summary judgment because “... the pleadings

... and ... affidavits [on file in this case] show that there is no genuine issue as to any material fact

and that [Plaintiffs are] entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In making

its determination, the Court should view the evidence and draw all reasonable inferences in favor

2

2:12-cv-10285-BAF-MJH Doc # 25 Filed 03/19/12 Pg 3 of 21 Pg ID 610
of the nonmoving party. Ciminillo v Streicher, 434 F3d 461, 464 (6th Cir 2006). B. Michigan’s Second Parent Adoption Statute: Michigan law relating to adoption and second parent adoption is governed by MCL
710.24 which provides as follows: If a person desires to adopt a child or an adult and to bestow upon the adoptee his or her family name, or to adopt a child or an adult without a name change with the intent to make the adoptee his or her heir, that person, together with his wife or her husband, if married, shall file a petition with the court of the county in which the petitioner resides or where the adoptee is found[.]
MCL 710.24. On its face, the statute allows a married couple to adopt a child, and it allows a single person to adopt a child. It is not in dispute in this case that Michigan forbids a joint adoption by two unmarried persons, or a second parent adoption by an unmarried person. In this case, Plaintiffs maintain that on its face, the statute expressly discriminates against the unmarried couple. As applied, it discriminates against Plaintiff parents and children.
C. Plaintiffs suffer “injury” cognizable under 42 USC §1983: Plaintiffs suffer clear factual injury cognizable under 42 USC §1983. The child plaintiffs in this case are deprived of myriad significant legal benefits which are afforded those children having two legal parents rather than one: (a) the legal right to have a parent automatically in the event of the death of the other parent, (b) the right to dependency benefits under laws and other contractual arrangements providing for dependency benefits, such as social security, workers compensation, pensions, insurance and tort law, and (c) the right to have at least one parent able and available to make decisions in the event the other parent is incapacitated or is unavailable. See Affidavits of DeBoer, Rowse, Bostwick and Nelson. See also Adoption of Tammy, 416 Mass. 205, 214 (1993)(an adopted child can inherit from the “second” legal parent under the law
3

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of intestate succession; the second parent is legally be obligated to provide support for the child; the child is eligible for coverage under the second parent’s insurance policies, and for social security benefits in the event of the second parent’s disability or death). See also Matter of Jacob, 86 NY2d 651 (1995)(same, as well as entitlement to health insurance and wrongful death benefits upon the death of the second parent); In re Hart, 806 A.2d 1179 (Del. Fam. Ct. 2001)(same).
Moreover, the child plaintiffs in this case suffer factual injury because this statute, when coupled with the later enactment of the Michigan Marriage Amendment, Mich. Const. Art 1, §25, assures that the child of a homosexual unmarried couple will never have two legal parents so long as his or her parents remain in a stable, committed same-sex relationship because gay and lesbian persons are forbidden from marrying in the State of Michigan.
The factual injury to the parent plaintiffs in this case arises from their not being permitted to file a joint or second-parent petition for adoption. Consequently, DeBoer is deprived of the right to determine who may share custody of R, and Rowse is deprived of the right to become a legal parent to R, who she co-parents in every way with DeBoer. (Complaint, ¶13). Conversely, Rowse is deprived of the right to determine who may share custody of J and N, and DeBoer is deprived of the right to become a legal parent to J and N, who she co-parents in every way with Rowse. (Id.).
Defendants argue in their motion to dismiss the complaint that the Plaintiffs have not demonstrated injury in fact because the parents can use “alternative legal measures” to provide the children with a degree of legal protection. Defendants fail utterly to explain how this could realistically be effectuated. Moreover, the argument is patently incorrect. Contrary to
4

2:12-cv-10285-BAF-MJH Doc # 25 Filed 03/19/12 Pg 5 of 21 Pg ID 612
Defendant’s assertion, there are no legal documents which can be executed by a legal parent to a non-legal parent which convey rights which in any way approach the protections an individual would possess as a legal parent. For instance, a power of attorney may only delegate certain limited parental responsibilities to a non-legal parent, for a period which cannot exceed six months, and the power of attorney can be revoked at will. MCL 700.5103.
Similarly, a guardian is not the equivalent of a legal parent. The legal parent of an unmarried minor may appoint a guardian for the minor, to be made in the event of incapacity or death of the legal parent, by will or by another writing signed by the parent. MCL 700.5202. However, such an appointment is not assured. A probate court hearing is required, in which the court must make a determination as to whether it deems that the requested appointment appropriately serves the minor’s welfare. MCL 700.5213(2). Further, the law permits nearly anyone to petition the court for guardianship of a minor, as long as they are “a person interested in the welfare of a minor”, including distant relatives, friends, and Department of Human Services (DHS) caseworkers, each of whom can challenge the appointment of the legal parent’s unmarried partner and each of whom stands on equal legal footing with the second parent. MCL 700.5204. Additionally, the law mandates that such guardianships must be reviewed annually, and can be terminated by the court for “any…factor the court considers relevant to the minor’s welfare.” MCL 700.5207(1)(f). According to the State of Michigan’s own Child Welfare Law Manual, “[g]uardianship should not be seen as a cure-all, nor can it be equated with… parental rights and adoption in terms of the security it offers.” See DHS, State of Michigan, Child Welfare Law Manual, published 11/9/07.
Similarly, the Supreme Court has recognized for over thirty years that a foster parent does
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not enjoy the same constitutionally protected rights as a full legal parent. In Smith v. Org. of Foster Families for Equality and Reform, 431 US 816, 845 (1977), the Court explained that in a foster family, the State retains legal custody over the child, while the foster parents enjoy only the right to care for and supervise the child while in their care. Id. 826-827. By its nature, the foster relationship is “temporary” and “transitional”. “This is unlike the adoptive placement, which implies a permanent substitution of one home for another.” Id. 824. The “foster family ... has its source in state law and contractual arrangements”. The liberty rights associated with being a legal parent are, in contrast, “older than the Bill of Rights”. Id. 845. Once a child is legally adopted, all the rights of the natural parent are enjoyed by the adoptive parent automatically by operation of law. Because the rights of a legal parent are grounded in the Constitution, the legal parent may only have his or her rights limited by a state wardship over the family, or terminated, after protracted hearings which are accompanied with full due process safeguards. See MCR 3.911; 3.903(A)(18)(b); Matter of Youmans, 156 Mich App 679, 686-687 (1986)(right to notice adequate notice, trial by jury). In re Richard Hudson, 483 Mich 928, 931 (2009); In the Matter of C.R., 250 Mich App 185, 198 (2001)(parent’s right to counsel is “statutory, court-rule based, and constitutional”) .
The further implication by the Defendants, that Rowse could bestow upon DeBoer’s children her rights to Social Security disability and death benefits, is flatly untrue. A child may be eligible for such benefits only if they are the “child or legally adopted child” of the insured. Moreover, the adoption laws of the State where the adoption took place determine whether an individual qualifies as the insured’s legally adopted child. 42 USC §402(d) and (e); C.F.R. §404.356. Consequently, the child of a “second” parent in Michigan has no right to collect on
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the second parent’s social security benefits. Similarly, the Defendants cite no authority for the proposition that a parent, for example,
in DeBoer’s position could bestow her health insurance benefits on Rowse’s children, when employers (like the State itself) limit such benefits to the insured’s birth or adoptive children.
The absurdity of the Defendants’ position is borne out by taking it to its logical conclusion. If, as the Defendants claim, there were no discernible difference between the rights of a legal parent in contrast to those that can be gerrymandered together through various contractual procedures, powers of attorney, etc., then what exactly is the State’s purpose in barring the Plaintiffs from being legal adoptive parents? If these procedures, for all intents and purposes, actually did mimic the rights of parent and child (Plaintiffs assert they do not), and if, as it appears, the State has no objection to Rowse being the functional equivalent of an adoptive parent to the children of Deboer, then there is no rational basis for this statute. See discussion infra.
Finally, the Defendants “cause” the Plaintiffs’ injuries because they execute, implement and defend the second-parent adoption statute in the State of Michigan. (Complaint, ¶18).
D. Defendants’ enforcement and defense of MCL 710.24 results in discrimination against the child based upon the fact that his or her parents are unmarried.
The Defendants’ actions in this case single out and deny legal benefits to a subset of children: those who are parented by unmarried couples. The Supreme Court frequently has held that disparate treatment of the children of unmarried parents based on the conduct or status of their parents violates the Equal Protection Clause. See, e.g, Levy v Louisiana, 391 US 68 (1968) (invalidating provision denying children of unmarried parents the right to claim for wrongful
7

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death); Weber v Aetna Cas. & Sur. Co., 406 US 164, 175 (1972) (invalidating provision denying “unacknowledged illegitimate” children the right to collect, under workman’s compensation, upon father’s work-related death); Mathews v Lucas, 427 US 495, 505 (1976) (“visiting condemnation upon the child in order to express society’s disapproval of the parents’ liaisons ‘is illogical and unjust’”). In this series of cases, the Supreme Court has struck down as unconstitutional state laws that burdened or disadvantaged children born to unmarried couples. In Levy, the Court noted what should be obvious, both then and now: that “illegitimate children are not ‘nonpersons.’ They are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.” Id. 70, quoting from Note, “The Rights of Illegitimates Under Federal Statutes”, 76 Harv.L.Rev. 337 (1962). Similarly, the Court explained in Pickett v Brown, 462 US 1, 7 (1983):
Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual–as well as unjust–way of deterring the parent ... [T]he Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where–as in this case–the classification is justified by no legitimate state interest, compelling or otherwise. See also Gomez v Perez, 409 US 535, 538 (1973) (“a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally.”) This statute is irrational on its face. Moreover, the State’s purported interests in defending and implementing the statute, as articulated by the Defendants in this lawsuit, are likewise irrational. Significantly, the Defendants do not dispute, nor can they dispute, that gay and lesbian people can be just as good parents as heterosexual people. Single people, both homosexual and
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heterosexual, are permitted to adopt under the statute, and the Defendants concede as much. Moreover, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents. See Exhibit 6, Howard Affidavit. See also Position Statement of American Psychiatric Association, No. 200214, approved November 2002; E. Perrin, Coparent or Second Parent Adoption by Same-Sex Parents, Pediatrics 339 (2002); R.U. Paige, Proceedings of the American Psychological Association, Incorporated, for the Legislative Year 2004: Policy Statement on Lesbian and Gay Parents (2004); J. Stacey and T. Bilbarz, (How) Does the Sexual Orientation of Parents Matter?, 66 American Sociological Review 159 (2001); American Academy of Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement, Vol. 92 (2011); American Medical Association, AMA Policy Regarding Partner Co-Adoption, H-60.940 (2012); Child Welfare League of America, Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults (2011), available http://www.cwla.org/programs/culture/glbtqposition.htm.1
Moreover, given the Defendants’ contention that a single parent, straight or gay, can provide a stable and nurturing environment for adopted children in Michigan (because the statute allows the single person to adopt alone), it is then both perverse and irrational to contend that two unmarried parents, straight or gay, cannot provide the same stable and nurturing environment,
1 As to a similar consensus amongst legal authorities, see e.g., Florida Department of Children and Families v Adoption of S.S.G. and N.R.G., 45 So.3d 79, 85 (District C.O.A. Fla. 2010)(striking down a law barring homosexuals from serving as adoptive parents as lacking a rational basis). See also Gill, 699 FSupp2d at 388-389, n 106 (citing the “consensus” that children of gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents).
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perhaps even more so, since there are two parents caring for the child. Defendants’ argument might at least have some logical underpinning (but would still fail the rational basis test, see infra) if the state allowed adoption only by a married couple, and no one else. This statute is especially irrational, however, because the State permits a single person to adopt.
In Levy, the State articulated an analogous purpose in denying wrongful death benefits to illegitimate children – to “discourage[] bringing children into the world out of wedlock”. Levy, 391 US at 70. The United States Supreme Court found that this purpose flunked the rational basis test because the “[l]egitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother”, which in that case was a tort committed by a third party. Id. 72.
This statute is irrational further because Michigan already allows unmarried couples, including gay and lesbian couples, to be foster parents and legal guardians, and indeed, both DeBoer and Rowse were certified as a couple by the State to be foster parents for “J”, a status which remained in effect until J was adopted by Rowse. See DeBoer Affidavit, ¶12. In striking down a law barring homosexuals from serving as adoptive parents as violating of equal protection, the Court in Florida Department of Children and Families v Adoption of S.S.G. and N.R.G., 45 So.3d at 85, observed, “[i]t is difficult to see any rational basis for using gay persons as foster parents or guardians, on a temporary or long term basis, while imposing a blanket prohibition on adoption by the second parent in a gay household.” Id. 86. The Court in that case found this to be “a distinction without a difference”. Id. 86, n 9. Even more absurd, the statute is irrational as applied here because both Deboer and Rowse were approved by the State as individuals to adopt their respective children after an extensive individualized assessment. See
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discussion infra. Additionally, the statute is irrational because marriage is certainly not a prerequisite to
procreation, and the unmarried birth father in Michigan can become a legal parent simply by his inclusion on the child’s birth certificate.
In this lawsuit, the Defendants contend that the statute serves the State’s interests in replicating, through adoption, the “traditional family”, which the Defendants define as a husband, wife, and one or more children. However, again, looking at the statute on its face, Michigan also defines a family to include a single parent and his or her child. Moreover, decades of Supreme Court jurisprudence, some cited by the Defendants’ themselves, establishes that the “traditional family” cannot be defined so narrowly and still pass constitutional scrutiny. For example, in City of East Cleveland v Moore, 431 US 494 (1977), the Court struck down a city housing ordinance on due process grounds, finding that the State could not define the “traditional family” so as to exclude a grandmother and her grandchildren living under the same roof. Id. (constitutional family protections could not be limited to the “arbitrary ... boundary of the nuclear family”).
Similarly, in Smith v Org. of Foster Families for Equality and Reform, 431 US 816, 845 (1977), the Supreme Court noted again that, for constitutional purposes, a family is not limited to the nuclear family of a husband, wife and their children by birth.
[B]iological relationships are not the exclusive determination of the existence of a family.... [T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association[.]
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Id. at 844.2
The Defendants also cite the State’s interest in not affording adoptive rights to people
who have demonstrated “uncertain levels of commitment to each other” by failing to marry.
This argument is especially absurd as applied to the Plaintiff parents in this case, (a) who have
demonstrated their commitment both to the children and to each other in every way possible
under existing Michigan law, and (b) who are barred by a state constitutional amendment from
confirming their commitment through a legal marriage.3 As to this peculiarity in Michigan law,
the United States Supreme Court observed in an analogous context that “the burdens of
illegitimacy, already weighty, become doubly so when neither parent nor child can legally lighten
2In support of its “traditional family” argument, the Defendants cite the Supreme Court’s decision in Michael H. v Gerald D., 491 US 110, 122 (1989), for the proposition that “[o]ur traditions have protected the marital family ...” In Michael H., the Court rejected an alleged birth father’s right to visitation to a child born during a valid marriage between a woman and another man. The State in that case expressed its concern that the child would be disinherited by the cuckolded husband if the identity of the birth father were litigated in court. However, in Michael H., the Court goes on to say (even in 1989) that “ .. in modern times ... the rigid protection of the marital family has in other respects been relaxed ...", and that while "'the unitary family' is typified, of course, by the married family, [it] also includes the household of unmarried parents and their children. Perhaps the concept can be expanded beyond this ..." Id. 125, 123, n2 (emphasis supplied). The Court in Michael H. further cites to Stanley v Illinois, 405 US 645, 651 (1972), where "we forbade the destruction of ... a family when, upon the death of the mother, the State had sought to remove the children from the custody of the [unmarried] father who had lived with and supported them and their mother for 18 years." Id. The Stanley holding, in turn, supports DeBoer’s claim that her rights should be protected to N and J if Rowse dies, and Rowse’s claim that her rights should be protected to R if DeBoer dies. Consequently, when read more closely, neither the statute itself nor Supreme Court jurisprudence supports the Defendants’ narrow definition of what constitutes a “traditional family”.
3 Plaintiffs DeBoer and Rowse are a same sex couple. In this action, they are only asserting their own rights and those of their children. As a structural matter, the Plaintiffs cannot assert the rights of unmarried opposite sex couples. Consequently, this Court can leave to some future case the question of whether the State would have a rational basis for barring a second parent or joint adoption as to those couples who can legally marry but have chosen not to.
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them.” Weber, 406 US at 171 (deceased parent was legally precluded from marrying the mother of the illegitimate child, while still married to his wife who had been committed to a mental institution; unacknowledged illegitimate child could not collect under Louisiana workman’s compensation laws).4
Moreover, any concern the State has that these or any other prospective adoptive parents may individually be unfit, or that as a couple, they have an “uncertain level of commitment to each other”, can be addressed within Michigan’s legal and regulatory framework for adoption which mandates an individualized assessment of the qualifications to become a parent. Significantly, like any other prospective adoptive parent in Michigan (including married step parents), DeBoer and Rowse had to petition the circuit court for permission to adopt each of these children. Before each of the children could be adopted by Rowse or DeBoer, (a) both Rowse and DeBoer were interviewed extensively, (b) they were screened by the State for criminal history and, through the Department of Human Services, for any history of abuse or neglect, (c) an assessment was done through the county where the adoptions were to take place, (d) their home was inspected, (e) a temporary placement of each child was made in their home, (f) they were monitored by the State in their home with visits by social workers and nurses, and (g) a determination was made by the circuit court of applicable jurisdiction that they were suitable parents and that the child being adopted was being properly cared for while in the
4 The Louisiana statute in Weber allowed acknowledged illegitimate children of the deceased to collect on workman’s compensation upon his work-related death, denying same to unacknowledged illegitimate children. The Court found an equal protection violation “where the acknowledgment so necessary to equal recovery rights may be unlikely to occur or legally impossible to effectuate where the illegitimate child may be nourished and loved.” Weber, 406 US at 174. (Emphasis supplied).
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temporary placement. See Affidavits of Rowse, Deboer, Bostwick, and Nelson. Significantly, the parent plaintiffs in this case are not asking this Court to grant their petitions for second parent adoption. Rather, they are requesting an order from this Court preventing the Defendants from barring these adoption petitions from being filed or considered based solely on the fact that Plaintiffs are an unmarried same sex couple.
Despite the purposes articulated by the Defendants for this statute, it goes too far and fails the most fundamental of equal protection requirements – that it be “narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s].” Romer, 633. Here the categorical exclusion of same sex parents from the ability to file a joint petition for adoption is unnecessarily broad, and is actually counterproductive to the state’s asserted goal of protecting children. It screens out all so-called “second” parents when the vast majority, like DeBoer and Rowse, are competent and caring. Moreover, in doing so, it harms children by denying them the legal benefits that come with having a second parent.
The matter of individual determination of the parents’ qualifications illustrates a broader principle. The state cannot rely on a categorical exclusion where any valid state interest can be advanced by an individual determination. In Orr v Orr, 440 US 268 (1979), the Court held violative of equal protection a state law providing alimony for dependent wives but not for dependent husbands. The state argued that the purpose of the law was to overcome past discrimination against women in the marriage relationship. The Court, applying the important and substantial relationship test (see discussion infra), held that the law was unconstitutional, because there were individualized hearings on support and alimony in divorce case, and it could
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be determined in the particular case whether the wife had been discriminated against in the marriage relationship. See also Stanley, 405 US at 655-656 (striking down state law which created a presumption of parental incompetence as to unmarried birth fathers seeking custody upon death of birth mother, holding that individualized hearings were required under Due Process).
Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care ...it needlessly risks running roughshod over important interests of both parent and child. Stanley, 405 US at 656-657. See also Carrington v Rash, 380 US 89, 95-96 (1965)(striking down a blanket exclusion of the right to vote as to all military servicemen in the State of Texas, holding that an individualized assessment of genuine residency was required). Similarly, in this context, whether a couple, married or same sex (who cannot legally marry) are qualified to adopt together can be determined on an individual basis. In a related argument, the Defendants cite the State’s interest in avoiding the additional custody battles it claims would necessarily follow from allowing the unmarried to adopt jointly. However, if that truly were the State’s interest, married step-parents would not be permitted to adopt either because the danger of more custody battles is equally present in that scenario. Moreover, as to this argument, the Court in Stanley observed as follows: “Clearly the objective of reducing the workload on probate courts by eliminating one class of contests is not without some legitimacy ... (But to) give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment” ... [T]he Constitution recognizes higher values than speed and efficiency.
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Stanley, 405 US at 656-657, quoting from Carrington, 380 US at 96. Defendants argue that if the statute is determined to be unconstitutional, “multiple
people” could attempt to adopt a child, evoking the image a posse of well-meaning adults lining the courthouse steps to adopt a lone infant. First, with throngs of unwanted children in Michigan’s foster care system, the State should be so fortunate to have such an unlikely scenario arise. See Howard Affidavit. Second, when the proverbial “village” comes before this Court to adopt a child, this Court can consider that situation when it arises. This case presents an “as applied” challenge. It involves a family which includes two parents and children -- for all practical purposes, the equivalent of what the State is touting as the “traditional family”.
Finally, the Defendants argue that "Michigan has a legitimate interest in encouraging a stable and nurturing environment of its adopted children" as a purportedly rational reason for upholding this statute. However, the Defendants concede in this case that “it appears the children are being raised in a loving, caring environment with two people who are committed to their wellbeing.” Defendants’ Brief in Support of Motion to Dismiss, pp 9-11, p 5, n1. Moreover, as Plaintiffs establish in their affidavits, these were abandoned, surrendered, unwanted special needs children destined for state wardship, foster care or orphanages before DeBoer and Rowse stepped up to care for them. See DeBoer Affidavit, ¶¶8-10. Even more significantly, as adoption expert Jeanne Howard points out in her affidavit, attached, gay and lesbian parents adopt special needs children from the foster care system in far greater numbers than their heterosexual counterparts. Consequently, Plaintiffs’ interpretation of the constitutionality of this statute has a far better chance of furthering the State’s professed “interest in encouraging a stable and nurturing environment of” both its adopted and foster children.
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Consequently, the categorical exclusion of same sex couples as joint adoptive parents under this statute is unconstitutional even under the lowest level of scrutiny, that of rational basis, for all the reasons set forth above. Alternatively, the Plaintiffs would respectfully submit that the applicable standard of review in this situation is intermediate scrutiny, a test that has historically been used to evaluate laws which discriminate against out-of-wedlock children -children subject to discrimination because of the status of their parents. In Clark v Jeter, 486 US 456, 461 (1988), the United States Supreme Court recognized this intermediate level of review, between strict-scrutiny and rational-basis review, under which a challenged statutory classification will be upheld only if it is “substantially related to an important governmental objective”. This “heightened scrutiny” standard has been applied to legislation creating classifications on such bases as illegitimacy and gender. The standard recognizes that, while there may be certain immutable distinctions, for example, between men and women or between legitimate and illegitimate children, that justify differing legislative treatments under some circumstances, the Legislature's authority to invoke those distinctions should not be viewed as an “impenetrable barrier that works to shield otherwise invidious discrimination.” Gomez v Perez, 409 US at 538. See also, Clark, supra; Mills v Habluetzel, 456 US 91 (1982); Mathews v Lucas, 427 US at 505-506 (all applying heightened scrutiny to classifications based on illegitimacy).
For all the reasons set forth above, the Defendants cannot show that this statute is substantially related to an important state interest, and consequently, it fails intermediate constitutional scrutiny as well.
F. Defendants’ enforcement and defense of MCL 710.24 results in discrimination against the children’s unmarried parents:
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Defendants also discriminate against DeBoer and Rowse by targeting unmarried couples and their constitutionally protected intimate relationships. As in Lawrence v Texas, 539 US 558 (2003), Defendants subject parents to penalties for exercising their constitutionally protected fundamental liberty interest in having an unmarried, intimate adult relationship when it imposes no such penalty on married adoptive parents exercising their fundamental relationship rights. Significantly, in Michigan, the State allows a single person to adopt, punishing him or her under this statute only when he or she become coupled, but unmarried, seeking to adopt. Conversely, Defendants punish the “second” parent in an unmarried couple by prohibitting that person from becoming an adoptive parent altogether. Under both scenarios, Defendants impinge on Plaintiffs’ fundamental liberty interests in family autonomy and in the care, custody and control of their children. Stanley, 405 US at 651. As discussed above, state actions that infringe upon fundamental rights, and in particular, laws that involve “sex or illegitimacy” trigger intermediate scrutiny which requires the classification to be substantially related to an important governmental objective. Clark, 486 US at 461; Weber, 406 US at 175. Consequently, Plaintiffs maintain that the intermediate scrutiny standard applies to any analysis that this statute violates the equal protection rights of the parent plaintiffs in this case.
In 1968, the United States Supreme Court decided the case of Glona v American Guarantee & Liability Insurance Company, et. al, 391 US 73 (1968), along with Levy, addressing both the parents’ (Glona) and the childrens’ (Levy) claims that the State’s wrongful death statute discriminated against families which included out-of-wedlock children. In Glona, the Court did not need to apply a higher standard of scrutiny, finding that there was not even a rational basis for barring a mother’s recovery for the wrongful death of her illegitimate child
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while allowing a mother of a legitimate child to recover. “... [T]he Equal Protection Clause necessarily limits the authority of the State to draw such ‘legal’ lines as it chooses.” Glona, 391 US at 76.5
Additionally, this statute discriminates against the unmarried couple on its face because both persons in a married couple can consent to the adoption by joining in the petition, while the unmarried plaintiffs have been barred by the Defendants from doing so. In other words, Rowse cannot consent to the adoption of J and N by DeBoer, and DeBoer cannot consent to the adoption of R by Rowse. Based upon the foregoing, this law fails rational basis review because the “purported justifications ... [make] no sense in light of how the [government] treated other groups similarly situated in relevant respects ...” -- the married couple can gain a second parent adoption by consenting and joining in the petition, the unmarried couple has no such option. There is no logical relationship between the classification adopted and the object to be attained. This statute is neither “narrow enough in scope [nor] grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serves.” Gill, 699 FSupp2d at 387-388, quoting from City of Cleburne v Cleburne Living Center, 473 US 432, 439 (1985). Conversely, had this law allowed the second parent adoption by both the married and the unmarried couple by simply requiring the existing birth or adoptive (“first”) parent to consent or join in the petition, it would have been constitutional.
5 Even were no fundamental right involved here, Defendants may not constitutionally discriminate against plaintiff parents in the exercise of their parental, family and relationship rights because of their unmarried status, their sexual orientation or their decision to be in a samesex relationship. See Lawrence, 539 US at 579 (O’Connor, J., concurring).
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III. RELIEF REQUESTED:

WHEREFORE, for all of the foregoing reasons, Plaintiffs respectfully request that this

Court grant the Plaintiffs’ motion for summary judgment, and that the Court issue the following

orders.

(1) to declare that the provision of the Michigan Adoption Code denying same sex parents the right to file a joint petition for adoption, or a petition for second parent adoption, violates the Equal Protection rights of the children and the parents;

(2) to issue an injunction enjoining the Defendants from enforcing in any way the provisions of the Michigan Adoption Code that deny same sex parents, such as the Plaintiffs, the ability to file a joint petition for adoption, or a petition for second parent adoption;

(3) to issue a mandatory injunction directing the Defendant Schuette in his capacity as Attorney General of Michigan to specifically inform each probate judge, or other judge having jurisdiction over adoptions, of this Court’s order;

(4) issue an order awarding plaintiffs reasonable attorneys’ fees and costs under 42 U.S.C. §1988;

(5) to grant such other and further relief as the Court deems just and proper.

Respectfully submitted,

s/Carole M. Stanyar CAROLE M. STANYAR P34830 682 Deer Street Plymouth, MI 48170 (313) 963-7222 cstanyar@wowway.com

/s/ Dana Nessel DANA M. NESSEL P51346 645 Griswold Street, Suite 3060 Detroit, MI 48226 (313) 556-2300 dananessel@hotmail.com

Dated: March 19, 2012

Attorneys for Plaintiffs

Of counsel:

s/Robert A. Sedler ROBERT A. SEDLER P31003 Wayne State University Law School 471 W. Palmer Street Detroit, MI 48202 (313) 577-3968 rsedler@wayne.edu

s/ Kenneth M. Mogill Kenneth M. Mogill P17865 MOGILL, POSNER & COHEN 27 E Flint Street, 2nd Floor Lake Orion, MI 48362 (248) 814-9470 kmogill@bignet.net

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CERTIFICATE OF SERVICE
CAROLE M. STANYAR hereby certifies that a copy of Plaintiffs’ Motion for Summary Judgment, Brief in Support, Index to Exhibits, Exhibits, and this Certificate of Service were served upon Assistant Attorney General Joseph E. Potchen, an ECF filer, on March 19, 2012.
s/Carole M. Stanyar CAROLE M. STANYAR P34830 Attorney for Plaintiffs 682 Deer Street Plymouth, MI 48170 (313) 963-7222 cstanyar@wowway.com

 
 2:12-cv-10285-BAF-MJH Doc # 25-2 Filed 03/19/12 Pg 1 of 5 Pg ID 630

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors, and JAYNE ROWSE, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors,

Plaintiffs,

ED Mi No. 12-10285 Honorable Bernard A. Friedman United States District Judge

-vs-
RICHARD SNYDER, in his official capacity as Governor of the State of Michigan, and BILL SCHUETTE, in his official capacity as Michigan Attorney General,

Honorable Michael J. Hluchaniuk United States Magistrate Judge

Defendant.

DECLARATION OF APRIL DEBOER UNDER 28 USC §1746
I, April DeBoer, do hereby declare as follows:
1. The statements made in this declaration are based on personal knowledge, I am competent to testify to them and, if called as a sworn witness, my testimony would be consistent with them.
2. I am one of the Plaintiffs in the above-captioned case.
3. I met Jayne Rowse in 1999 through a mutual friend, and fairly quickly we developed a close and supportive friendship, and dated for a period of time. I found Jayne to be an honest and kind person. We made a mutual decision in 2002 not to be involved in a serious relationship at that time in order to focus on school and our careers. We both chose nursing as a career because of our desire to help people, because it would afford us a stable income, and because it would allow for the flexibility required for raising a family. Jayne and I went through nursing school at the same time, we found we had much in common, and we were able to share the trials and tribulations of nursing school together, although we studied at different schools.
4. In 2005, with nursing school behind us, Jayne and I began a serious relationship and I moved into Jayne's home in late 2006. Jayne and I had always discussed our desires to have

Exhibit 1

2:12-cv-10285-BAF-MJH Doc # 25-2 Filed 03/19/12 Pg 2 of 5 Pg ID 631
children, and we were prepared to start a family in late 2006. I was artificially inseminated in the winter of 2007. We were overjoyed to learn that I had conceived triplets because we both wanted multiple children and this seemed like a blessing. We were devastated when I miscarried all three children in the first trimester.
5. After months of grieving our lost children, we discussed trying again to conceive, and we opted instead to pursue adoption because the physical and emotional strain of trying to conceive and carry another biological child to term was too much for me.
6. During this time period, we decided that it was important to have a commitment ceremony in front of family and friends to honor our relationship, and to provide a more stable home for any child brought into the family. In February of 2007, our friends and both families attended the ceremony to support us, with Jayne's family traveling from Indiana to witness our commitment to each other.
7. Jayne and I each completed an adoption home study in the fall of 2007 (see ¶15, infra), and in the winter of 2008, we were matched with a California birth mother, however, that adoption was not successful. In June of 2008, we were matched with another mother, we were present at the birth, the baby was given to us, and we began to bond with the baby. Sadly, the birth mother changed her mind after eight hours and we had to return the child to the birth mother.
8. After our experiences with trying to conceive through insemination, a miscarriage, two failed adoptions, and dwindling funds as a result, we then decided to pursue a license as foster care parents.
9. Following nursing school and through to the present, I have been employed as a nurse in the neonatal intensive care unit ("NICU") at Hutzel Hospital in Detroit, Michigan. Jayne has been employed as an emergency room nurse at Henry Ford Hospital in Detroit, Michigan.
10. In January of 2009, while waiting for the approval of our foster care license, I received a call from a coworker at Hutzel Hospital indicating that she had a birth mother looking to give her child up for adoption and asked if I was interested. Jayne and I met the birth mother a week later, and three weeks later, we coached the birth mother during labor and watched as our son, N, was born. First Jayne and then I held him, with my mother arriving at the hospital shortly thereafter. N was greeted at home by the rest of the family in the days that followed. Jayne became N's adoptive parent November 2, 2009.
11. We cared for N full time by coordinating our nursing work shifts and by receiving help from my mother and father. A colicky baby, N cried constantly. He always had someone to sooth him, but it was a challenge.
12. We both continued to pursue our foster care licenses even after N's birth because we
2

2:12-cv-10285-BAF-MJH Doc # 25-2 Filed 03/19/12 Pg 3 of 5 Pg ID 632
both loved being parents and we wanted more children. On November 9, 2009, I helped admit and care for a premature infant (J) in the NICU at Hutzel. J weighed one pound, nine ounces at birth, he had many medical complications, and struggled to live, in and out of the NICU, with me as his primary caregiver for much of that time while he was in my unit at Hutzel. I grew to love this child and Jayne was supportive of me as I told her about him. Three months after his birth, in February 2010, the foster agency offered to have J placed with us as a foster child, and he was placed with us shortly thereafter, on March 2, 2010. Despite his many challenges, Jayne and I both accepted the responsibility of becoming J's foster parents (we were certified by the State as suitable foster parents and our foster care license was granted December 9, 2009), and Jayne later adopted him on October 28, 2011. The adoption, in turn, had the legal effect of terminating my foster parent status over J.
13. In February, 2010, an infant girl, "R", was birthed at home and was brought by the mother into the NICU for observation on my shift. The mother indicated to hospital staff that she wanted to give the baby up for adoption under Michigan's "safe haven" law. A doctor on call that evening knew that Jayne and I were looking to adopt a little girl, and the doctor arranged for me to meet with the birth mother and grandmother. The birth mother agreed to allow me to adopt the child. I cared for R for the remainder of my shift, and Jayne met and fed R within 48 hours of R's birth. I became R's adoptive parent on April 6, 2011.
14. By March of 2010, with the help of our families, we were caring for and parenting three children under the age of two, two of them infants.
15. Before Jayne or I could adopt any of the children, (a) we had to file a petition the circuit court for permission to adopt, (b) both Jayne and I were interviewed extensively for each adoption, (c) we were screened by the State for criminal history and, through the Department of Human Services, for any history of abuse or neglect, (d) an assessment was done through the county where the adoptions were to take place, (e) our home was inspected, (f) a temporary placement of each child was made in our home, (g) we were monitored by the State in our home with visits by social workers and, in Jacob's case, nurses, and (h) a determination was made by the circuit court of applicable jurisdiction that we were suitable parents and that the child being adopted was being properly cared for while in the temporary placement. As to two of our children, R and N, at the time of the adoption, the circuit court also had to make "best interest" findings in order to terminate the rights of the birth parents.
16. Jayne and I have always shared equally in the responsibility for chores and for household expenses. We share equally in raising all three children. We continue to schedule work so that one parent is home with the children most of the time. The few instances in which Jayne and I are both working, the children are cared for by my mother and other family members.
17. R and J are special needs children. R requires physical therapy for delays in her gross motor skills. J requires occupational and physical therapy for his many medical complications. Jayne and I share in the responsibility of caring for J's continuing special needs, and for R's need
3

2:12-cv-10285-BAF-MJH Doc # 25-2 Filed 03/19/12 Pg 4 of 5 Pg ID 633
for physical therapy, with both of us rotating and bringing the children to their various medical appointments, and physical and occupational therapy appointments. We both share in carrying out their prescribed therapies in the home.
18. Because our three children have many special needs, it continues to be problematic for our family that Jayne is not recognized as R's legal parent by medical personnel and other care givers, and conversely, I am not recognized as J and N's legal parent. This becomes an issue as we approach each new treating facility or care giver if I am unable to accompany R, or if Jayne is unable to accompany J and N. Especially in the unexpected emergency medical care situation, where time is of the essence, and decisions have to be made quickly, I have no legal authority with respect to N and J's care, and Jayne would have no legal authority with respect to R's care even though she is an emergency room nurse.
19. I cannot cover Jayne's sons, N and J, on my insurance the way married heterosexual parents and stepparents can. I would have to buy the insurance for them and it is prohibitively expensive.
20. If I were to die while the children are still minors, Jayne would be treated as an unrelated adult to R in the eyes of Michigan's legal system, she would have to start from scratch to either be their foster or adoptive parent. She would have no legal right to visitation or custody of R without pursuing legal action.
21. If I died, N and J have no automatic legal rights of inheritance. If Jayne dies, R has no automatic right of inheritance .
22. If I die or become disabled, N and J are not eligible for social security benefits through me, and if Jayne dies, R is not eligible for social security benefits through Jayne.
23. Jayne and I have made a commitment to each other, and I fully intend to honor that commitment, but if, for whatever reason, we separated as a couple, under Michigan law, I would have no lawful right to custody or even visitation for N and J, a fact that was made painfully evident in the case of Harmon v Davis, MSCt No. 141888, COA No. 297968,
24. We have contemplated all of these circumstances, along with all of the rights, privileges and protections that we lack and that heterosexual married parents take for granted, and this situation create unnecessary stress and anxiety in our lives, and unnecessary risk and instability to our children.
25. Jayne and I have worked very hard to keep our family together and healthy in the face of, at times, overwhelming obstacles. We have made a home for our children. They love both their parents and each other. I feel that we should have the right to be a family in every sense of the word, and that our children should have the full benefits, rights and protections associated
4

2:12-cv-10285-BAF-MJH Doc # 25-2 Filed 03/19/12 Pg 5 of 5 Pg ID 634
with having two lawful parents. 26. If we were legally able, we would choose to be married in the State of Michigan. We
have been advised that, as enunciated in the Harmon case, the Michigan courts have declined to allow second parent adoptions by single persons in this state. We have been advised that the Michigan Court of Appeals and the Michigan Supreme Court have refused even to consider constitutional challenges to the Child Custody Act., MCL 722.21. See Harmon, (Kelly, J., dissenting, *4). We have also been advised that the Michigan Attorney General has issued an opinion that same sex couples are not allowed to adopt a child as second parent in Michigan regardless whether or not they are legally married in a state that permits same-sex marriages. See OAG, 2004, No 7160 (September 14, 2004). We have also been advised that following instruction from "members of the [Michigan] Supreme Court" petitions for adoption filed by unmarried second parents are not processed by county clerks. See C. Jones, "The Rise and Fall of Second Parent Adoption in Washtenaw County, Michigan", Michigan Child Welfare Law Journal, pp 6-7. For these reasons, we believe that any attempt by Jayne and myself to adopt each others' children, as second parent, would be futile in the State of Michigan.
27. I declare under penalty for perjury under the laws of the United States that the foregoing statement is true.
3 Dated:
5

 
 2:12-cv-10285-BAF-MJH Doc # 25-3 Filed 03/19/12 Pg 1 of 5 Pg ID 635

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors, and JAYNE ROWSE, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors,

Plaintiffs,

ED Mi No. 12-10285 Honorable Bernard A. Friedman United States District Judge

-vs-Honorable Michael J. Hluchaniuk
United States Magistrate Judge BILL SCHUETTE, in his official capacity as Michigan Attorney General,

Defendant.

DECLARATION OF JAYNE ROWSE UNDER 28 USC §1746
I, Jayne Rowse, do hereby declare as follows:
1. The statements made in this declaration are based on personal knowledge, I am competent to testify to them and, if called as a sworn witness, my testimony would be consistent with them.
2. I am one of the Plaintiffs in the above-captioned case.
3. I met April DeBoer in 1999 through a mutual friend, and fairly quickly we developed a close and supportive friendship, and dated for a period of time. I found April to be an honest and kind person. We made a mutual decision in 2002 not to be involved in a serious relationship at that time in order to focus on school and our careers. We both chose nursing as a career because of our desire to help people, because it would afford us a stable income, and because it would allow for the flexibility required for raising a family. April and I went through nursing school at the same time, we found we had much in common, and we were able to share the trials and tribulations of nursing school together, although we studied at different schools.
4. In 2005, with nursing school behind us, April and I began a serious relationship and April moved into my home in late 2006. April and I had always discussed our desires to have children, and we were prepared to start a family in late 2006. April was artificially inseminated in the winter of 2007. We were overjoyed to learn that she had conceived triplets because we both wanted multiple children and this seemed like a blessing. We were devastated when April

Exhibit 2

2:12-cv-10285-BAF-MJH Doc # 25-3 Filed 03/19/12 Pg 2 of 5 Pg ID 636
miscarried all three children in the first trimester.
5. After months of grieving our lost children, we discussed trying again to conceive, and we opted instead to pursue adoption because the physical and emotional strain of trying to conceive and carry another biological child to term was too much for April.
6. During this time period, we decided that it was important to have a commitment ceremony in front of family and friends to honor our relationship, and to provide a more stable home for any child brought into the family. In February of 2007, our friends and both families attended the ceremony to support us, including my family who traveled from Indiana to witness our commitment to each other.
7. April and I each completed an adoption home study in the fall of 2007 (see ¶15, infra), and in the winter of 2008, we were matched with a California birth mother, however, that adoption was not successful. In June of 2008, we were matched with another mother, we were present at the birth, the baby was given to us, and we began to bond with the baby. Sadly, the birth mother changed her mind after eight hours and we had to return the child to the birth mother.
8. After our experiences with trying to conceive through insemination, a miscarriage, two failed adoptions, and dwindling funds as a result, we then decided to pursue a license as foster care parents.
9. Following nursing school and through to the present, I have been employed as a nurse in the emergency room at Henry Ford Hospital in Detroit, Michigan. April has been employed as a nurse in the neonatal intensive care unit ("NICU") at Hutzel Hospital in Detroit, Michigan.
10. In January of 2009, while waiting for the approval of our foster care license, April received a call from a coworker at Hutzel Hospital indicating that she had a birth mother looking to give her child up for adoption and asked if April was interested. April and I met the birth mother a week later, and three weeks later, we coached the birth mother during labor and watched as our son, N, was born. First I and then April held him, with April's mother arriving at the hospital shortly thereafter. N was greeted at home by the rest of the family in the days that followed. I became N's adoptive parent on November 2, 2009.
11. We cared for N full time by coordinating our nursing work shifts and by receiving help from April's mother and father. A colicky baby, N cried constantly. He always had someone to sooth him, but it was a challenge.
12. We both continued to pursue our foster care licenses even after N's birth because we both loved being parents and we wanted more children. On November 9, 2009, April helped admit and care for a premature infant (J) in the NICU at Hutzel. J weighed one pound, nine ounces at birth, he had many medical complications, and struggled to live, in and out of the NICU, with April as his primary caregiver for much of that time while he was in her unit at Hutzel. April grew to love this child and I was supportive of her as she told me about him.
2

2:12-cv-10285-BAF-MJH Doc # 25-3 Filed 03/19/12 Pg 3 of 5 Pg ID 637
Three months after his birth, in February 2010, the foster agency offered to have J placed with us as a foster child. Despite his many challenges, April and I both accepted the responsibility of becoming J's foster parents (certified by the State), and I later adopted him.
13. In February, 2010, an infant girl, "R", was birthed at home and was brought by the mother into the NICU for observation on April's shift. The mother indicated to hospital staff that she wanted to give the baby up for adoption under Michigan's "safe haven" law. A doctor on call that evening knew that April and I were looking to adopt a little girl, and the doctor arranged for April to meet with the birth mother and grandmother. The birth mother agreed to allow April to adopt the child. April cared for R for the remainder of her shift, and I met and fed R within 48 hours of R's birth. April became R's adoptive parent.
14. By March of 2010, with the help of our families, we were caring for and parenting three children under the age of two, two of them infants.
15. Before April or I could adopt any of the children, (a) we had to file a petition the circuit court for permission to adopt, (b) both April and I were interviewed extensively for each adoption, (c) we were screened by the State for criminal history and, through the Department of Human Services, for any history of abuse or neglect, (d) an assessment was done through the county where the adoptions were to take place, (e) our home was inspected, (f) a temporary placement of each child was made in our home, (g) we were monitored by the State in our home with visits by social workers and, in Jacob's case, nurses, and (h) a determination was made by the circuit court of applicable jurisdiction that we were suitable parents and that the child being adopted was being properly cared for while in the temporary placement. As to two of our children, R and N, at the time of the adoption, the circuit court also had to make "best interest" findings in order to terminate the rights of the birth parents.
16. April and I have always shared equally in the responsibility for chores and for household expenses. We share equally in raising all three children. We continue to schedule work so that one parent is home with the children most of the time. The few instances in which April and I are both working, the children are cared for by April's mother and other family members.
17. April and I share in the responsibility of caring for J's continuing special needs, and for R's need for physical therapy, with both of us rotating and bringing the children to their various medical appointments, and physical and occupational therapy appointments. We both share in carrying out their prescribed therapies in the home.
18. Because our three children have many special needs, it continues to be problematic for our family that April is not recognized as N and J's legal parent by medical personnel and other care givers, and conversely, I am not recognized as R's legal parent. This becomes an issue as we approach each new treating facility or care giver if April is unable to accompany R, or if I am unable to accompany N and J. Especially in the unexpected emergency medical care situation, where time is of the essence, and decisions have to be made quickly, I have no legal authority with respect to R's care, and April would have no legal authority with respect to N and
3

2:12-cv-10285-BAF-MJH Doc # 25-3 Filed 03/19/12 Pg 4 of 5 Pg ID 638
J's care.
19. If I were to die while the children are still minors, April would be treated as an unrelated adult to N and J in the eyes of Michigan's legal system, she would have to start from scratch to either be their foster or adoptive parent. She would have no legal right to visitation or custody of N and J without pursuing legal action.
20. If I died, R has no automatic legal rights of inheritance. If April dies, N and J have no automatic right of inheritance .
21. If I die or become disabled, R is not eligible for social security benefits through me, and if April dies, N and J are not eligible for social security benefits through April.
22. April and I have made a commitment to each other, and I fully intend to honor that commitment, but if, for whatever reason, we separated as a couple, under Michigan law, I would have no lawful right to custody or even visitation for R, a fact that was made painfully evident in the case of Harmon v Davis, MSCt No. 141888, COA No. 297968,
23. We have contemplated all of these circumstances, along with all of the rights, privileges and protections that we lack and that heterosexual married parents take for granted, and this situation create unnecessary stress and anxiety in our lives, and unnecessary risk and instability to our children.
24. April and I have worked very hard to keep our family together and healthy in the face of, at times, overwhelming obstacles. We have made a home for our children. They love both their parents and each other. I feel that we should have the right to be a family in every sense of the word, and that our children should have the full benefits, rights and protections associated with having two lawful parents.
25. If we were legally able, we would choose to be married in the State of Michigan. We have been advised that, as enunciated in the Harmon case, the Michigan courts have declined to allow second parent adoptions by single persons in this state. We have been advised that the Michigan Court of Appeals and the Michigan Supreme Court have refused even to consider constitutional challenges to the Child Custody Act., MCL 722.21. See Harmon, (Kelly, J., dissenting, *4). We have also been advised that the Michigan Attorney General has issued an opinion that same sex couples are not allowed to adopt a child as second parent in Michigan regardless whether or not they are legally married in a state that permits same-sex marriages. See OAG, 2004, No 7160 (September 14, 2004). We have also been advised that following instruction from "members of the [Michigan] Supreme Court" petitions for adoption filed by unmarried second parents are not processed by county clerks. See C. Jones, "The Rise and Fall of Second Parent Adoption in Washtenaw County, Michigan", Michigan Child Welfare Law Journal, pp 6-7. For these reasons, we believe that any attempt by April and myself to adopt each others' children, as second parent, would be futile in the State of Michigan.
26. I declare under penalty for perjury under the laws of the United States that the foregoing statement is true.
4

2:12-cv-10285-BAF-MJH Doc # 25-3 Filed 03/19/12 Pg 5 of 5 Pg ID 639

3 Dated: -1°-t

a eRiWse

 
 2:12-cv-10285-BAF-MJH Doc # 25-4 Filed 03/19/12 Pg 1 of 2 Pg ID 640

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors, and JAYNE ROWSE, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors,

Plaintiffs,

ED Mi No. 12-10285 Honorable Bernard A. Friedman United States District Judge

-vs-Honorable Michael J. Hluchaniuk
United States Magistrate Judge BILL SCHUETTE, in his official capacity as Michigan Attorney General,

Defendant.

DECLARATION OF WENDY DEBOER UNDER 28 USC §1746
I, Wendy Lynn DeBoer, do hereby declare as follows:
1. I am the mother of April DeBoer, and the mother in law of Jayne Rowse, I have known Jayne Rowse for over 11 years. I attended their commitment ceremony on 2/2/08.
2. I lived in St. Clair Shores, Michigan, for forty-two years and have recently moved to Sterling Heights, Michigan about 15 months ago to be closer to April, Jayne and their children: N (3 years old), J (two years old), and R (two years old).
3. I see R, J, and N regularly, at least once a week, and I stay over with them two Sundays a month when both April and Jayne are working.
4. I have had a close relationship with all the children, who call me "Grandma". I was present at N's birth. While no visitors were allowed in the hospital when R was born, I did see her the day she was brought home. No visitors were allowed in the hospital for J, but I also saw him the day he was brought home. I consider all three children to be my grandchildren, regardless of whether April or Jayne is the adoptive parent. I adore my grandchildren.
5. Their family is like any other large family in that it can be raucous at times, with three energetic, rambunctious young children. But the children are always bathed, dressed appropriately, well fed, and reasonably well behaved in public. I have joined them as a family

Exhibit 3

2:12-cv-10285-BAF-MJH Doc # 25-4 Filed 03/19/12 Pg 2 of 2 Pg ID 641
out for dinner, we have gone to an indoor playground with them, and they have come to my workplace (I work in retail) where I have been proud to introduce them to my co-workers.
6. We have a large extended family, I have three grandchildren besides April and Jayne's children, and I have three great grandchildren with another due in March. April, Jayne and the children are accepted and loved completely by the extended family.
7. I believe that the children have been extremely fortunate to have had the benefit of Jayne and April's love and affection from birth, or almost from birth, particularly because the children have needed so much professional medical help, and April and Jayne are obviously uniquely qualified. I believe that the children could not have had a better experience leading up to their adoption by April and Jayne, and throughout their lives.
8. I have had an opportunity to observe the children interact with each other and with April and Jayne, and it is clear that they share obvious love, a deep bond and great affection. When either April or Jayne come home, all three come running for their kisses, hugs and hellos from them. They are no different than any other loving, high-functioning family.
9. If anything happened to Jayne or April it would be a tragedy if the children were separated because only one of the parents is listed on the child's birth certificate. Second parent adoption by Jayne and April would be the best result for these three children because it legally confirms they are a family. We know that they are a family, but they need the protection that second parent adoption can bring.
10. I can state with complete confidence that all three children have a close relationship with both April and Jayne and depend on them both as parents. April and Jayne are both loving, nurturing, caring parents to all three children. They share the responsibilities and joys of parenting, and have never treated the children differently in any way based upon who is the legal parent. In my opinion, their care of these special needs children has not just been competent, it has been miraculous and heroic.
11. I declare under penalty for perjury under the laws of the United States that the foregoing statement is true.
Dated: 3 - - ? 0/a-
2

 
 2:12-cv-10285-BAF-MJH Doc # 25-5 Filed 03/19/12 Pg 1 of 2 Pg ID 642

UNITED STATES DISTRICT COURT  EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors, and JAYNE ROWSE, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors,

Plaintiffs,

ED Mi No. 12-10285 Honorable Bernard A. Friedman United States District Judge

-vs-Honorable Michael J. Hluchaniuk United States Magistrate Judge
BILL SCHUETTE, in his official capacity as Michigan Attorney General,

Defendant.

DECLARATION OF CYNTHIA BOSTWICK UNDER 28 USC §1746
I, Cynthia Bostwick, do hereby declare as follows:
1. The statements made in this declaration are based on personal knowledge, I am competent to testify to them and, if called as a sworn witness, my testimony would be consistent with them.
2. I was appointed as the Probate Register in Washtenaw County, Michigan in August of 2008, and in that capacity, I supervised the Probate Adoption Caseworker, who reviewed all petitions and conducted home studies for the court. I also conducted hearings to accept consents to terminate parental rights, and hearings on the "default" terminations. I conducted hearings to finalize adoptions.
3. Once a petition for adoption is filed in a step-parent or relative case, an adoption caseworker from the probate court will conduct a home study as required by statute. See MCL 710.46. The worker makes a home visit, completes a background check on all adults residing in the home, which includes a criminal multi-state LEIN check and a DHS Registry check, and the worker will interview the person's references. In so-called non-family "stranger" adoptions, the home studies must be performed by outside agencies, however, all the same procedures are required.
4. During the time that I was employed as the Probate Register in Washtenaw County,

Exhibit 4

2:12-cv-10285-BAF-MJH Doc # 25-5 Filed 03/19/12 Pg 2 of 2 Pg ID 643

there were no petitions for "second parent" adoptions filed in Washtenaw County.
5. I adopted my son Ben as a single parent in St. Clair County in 2004.
6. I married my domestic partner, Linda Ham, in Washington, D.C. in July 2011.
7. On December 1, 2011, Ms. Ham and I attempted to file a step parent adoption petition so that both Ms. Ham and I could be legal adoptive parents to our son Ben. Although the petition was proper in every way, with the filing fee tendered to the clerk contemporaneously, I was informed that my petition would not be accepted for filing, and that no such petitions were being accepted by the Probate Court for filing.
8. 1 declare under penalty for perjury under the laws of the United States that the foregoing statement is true.

Dated:

ynthia Bostwick

2

 
 2:12-cv-10285-BAF-MJH Doc # 25-6 Filed 03/19/12 Pg 1 of 3 Pg ID 644

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

APRIL DEBOER, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors, and JAYNE ROWSE, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors,

Plaintiffs,

ED Mi No. 12-10285 Honorable Bernard A. Friedman United States District Judge

-vs-
BILL SCHUETTE, in his official capacity as Michigan Attorney General,

Honorable Michael J. Hluchaniuk United States Magistrate Judge

Defendant.

DECLARATION OF KATHI NELSON, M.S.W., L.M.S.W.,UNDER 28 USC 1746
I, Kathi Nelson, do declare as follows:
1. The statements made in this declaration are based on personal knowledge, I am competent to testify to them and, if called as a sworn witness, my testimony would be consistent with them.
2. I hold a Masters in Social Work from the University of Michigan (1995); I am also a Licensed Master Social Worker.
3. I am presently the Executive Director at Hands Across The Water (HATW), a licensed, not-profit adoption, foster care, and social service agency. I have held this position since 1999. Our organization processes infant domestic and international adoptions, state ward children adoptions, and foster care. Part of our work involves completing adoption assessments, in which we evaluate the stability and ability of a family to be adoptive parents. We are COA (Council on Accreditation) Hague Accredited. As Executive Director, my responsibilities include overall management of the agency, interfacing with all of our programs, and establishing procedures based on the policies set by our Board of Directors.
4. I am also currently on the faculty at Baker College and the University of Phoenix, teaching Human Services and Psychology courses. I am also a Field Instructor for
Exhibit 5

2:12-cv-10285-BAF-MJH Doc # 25-6 Filed 03/19/12 Pg 2 of 3 Pg ID 645
interns in the MSW program at Wayne State University and the University of Michigan.
5. I have previously worked as a foster care placement supervisor and adoption supervisor. I worked at the Downriver Guidance Center as an in-home therapist working with foster and adopted children and their families.
6. I currently am a member of the National Association of Social Workers and the U of M School of Social Work Alumni Association. I was previously a Board Member of the Michigan Federation for Children and Families and I have spoken at various institutions and organizations on adoption issues and parenting.
7. At HATW we are involved in both State/Department of Health Services and private adoptions. Both processes involve the adopting/foster family to complete a home study, which involves meeting with a social worker a number of times, requiring them to participate in a training program, discussing each of their own family of origin, how they were parented and a number of other relevant topics in order to assess their financial, medical and emotional stability. Over the past 13 years, I have been responsible or have participated in the placement of many hundreds of children into adoptive homes.
8. HATW has had extensive experience working with the gay and lesbian community over the past 13 years. HATW has placed children for adoption with gay and lesbian couples and singles. HATW has also received the Human Rights Campaign All Children All Families seal of approval for our work with the LBGT community.
9. Based on my professional knowledge, my previous studies and experiences involving adoption in both the gay and straight communities as well as adoption with both singles and couples, on interviews I have conducted with countless prospective parents and children, I have reached the following conclusions:
a. There is a crisis surrounding the adoption in Michigan. All agencies are in desperate need of placing children in suitable families for foster care and adoption. In 2010, there were 16,406 children, aged 0-17, in foster care. These children need and deserve to be placed with families who will love and care for them, regardless of the sexual orientation of their perspective parents.
b. Regardless of sexual orientation, basic parenting skills are no different between gay and straight individuals and couples. Each group has individuals and couples who will make good and bad parents.
c. Heterosexual couples most often come to adoption after experiencing infertility, so their -needs" for parenting and to adopt are based on grief, loss and loss of control that infertility brings. They come to adoption "needing" to adopt, wanting to bring in the "missing" element that they themselves were unable to create. Over the years I have noticed that gay and lesbian couples
2

2:12-cv-10285-BAF-MJH Doc # 25-6 Filed 03/19/12 Pg 3 of 3 Pg ID 646
approach adoption with a different mindset and different expectations. For these couples, they enter their relationships with the knowledge that a biological child is not an expectation. Instead of approaching it with the grief and loss previously mentioned, they view adoption as a natural and exciting choice rather than a second choice. Same-sex couples also tend to be more accepting of "imperfections" in the children they wish to adopt. These children are often more difficult to place with heterosexual couples, who tend to want to adopt the "perfect" child.
d. There are many gay couples in Michigan who wish to become foster parents, but choose not to do so because they know that they will be unable to jointly adopt their foster children. Instead of taking in foster children or adopting as single persons, many of these couples choose to go to other states, where same-sex couples can jointly adopt, and they adopt children in those states. This is especially unfortunate considering the number of children waiting to be adopted in the State of Michigan. See above Subparagraph a.
e. The prohibition of gay and lesbian parents from adopting a child jointly poses serious problems to the child and the parents. Having only one legal parent creates issues regarding the child's education (to whom teachers and administration are permitted to speak), medical care (who is able to consent to medical treatment), and even medical insurance (the adopted parent must have a job so that the child can gain access to their insurance). Most significantly, if the adoptive parent dies the other parent has no legal rights to the child, thereby not only depriving them of one, but both parents. By taking this child away from the non-adoptive parent the child is forced to suffer more emotional trauma and severe distress.
f. There are no reasons that I have ever heard, come across, or that I consider supported by any evidence to suggest why children should not be placed with gay or lesbian couples.
10. I declare under penalty of perjury under the laws of the United States that the foregoing statements are true.

Dated: March 12, 2012

Kathi Nelson Director and Founder Hands Across The Water, Adoption & Social Services

3

 
 2:12-cv-10285-BAF-MJH Doc # 25-7 Filed 03/19/12 Pg 1 of 4 Pg ID 647

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
APRIL DEBOER, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors, and JAYNE ROWSE, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors,

Plaintiffs,

ED Mi No. 12-10285 Honorable Bernard A. Friedman United States District Judge

-vs-Honorable Michael J. Hluchaniuk United States Magistrate Judge
BILL SCHUETTE, in his official capacity as Michigan Attorney General,

Defendant.

DECLARATION OF JEANNE A. HOWARD, PH.D. UNDER 28 USC §1746
I, Jeanne A. Howard, do declare as follows:
1. The statements made in this declaration are based on personal knowledge, I am competent to testify to them and, if called as a sworn witness, my testimony would be consistent with them.
2. I hold a B.A. from the University of Illinois at Urbana/Champaign (1973); a Masters in Social Work from the University of Illinois at Urbana/Champaign (1976); and a Ph.D. from the University of Chicago (School of Social Service Administration) (2001). My dissertation was entitled "On Being Adopted: Adoption Narratives of Young Adopted Women. "
3. I have been a researcher and professor of social work for over 30 years. I am currently Co-Director of the Center for Adoption Studies at Illinois State University; Policy and Research Director of the Evan B. Donaldson Adoption Institute, New York, New York and Professor Emerita at the School of Social Work, Illinois State University.
4. I have served on various boards during my career: I was appointed to the inaugural Illinois Adoption Advisory Board and served for many years. This board advises the Director of the Illinois Department of Children and Family Services on policy and practice. Illinois has long placed children for adoption with lesbian and gay adoptive parents and allows both parents to adopt.
Exhibit 6

2:12-cv-10285-BAF-MJH Doc # 25-7 Filed 03/19/12 Pg 2 of 4 Pg ID 648
5. I have also served on several task forces and committees related to adoption over the years and am the author of numerous articles on the subject (see attached CV).
6. Based on my work, education, and knowledge of relevant studies. I have concluded that gays and lesbians are as competent, loving, nurturing, and capable of parenting as their heterosexual counterparts. The overwhelmingly accepted data in the scientific community demonstrates the following:
A. For almost three decades researchers have compared outcomes of children raised by same sex parents to those raised by opposite sex parents. In large and small studies, studies of lesbians and of gay men, studies of families formed through birth, and adoption and assisted technology, all studies consistently have found no differences for children in psychological adjustment, gender identification, school performance, self-esteem, anxiety, depression, behavior problems, social relationships and emotional problems, cognitive functioning, level of investment and quality of parent/child relationship.'
B. While earlier studies had some limitations in terms of sample size and composition, more recent studies are much stronger methodologically. Like earlier studies, children raised by gay/lesbian and straight parents have very similar outcomes. Studies consistently show that it is the quality of parenting rather than the sexual orientation of parents that predicts outcomes for children.
C. While there have been fewer studies of adopted children raised by gay or lesbian parents, those studies that do exist also support that these children have positive outcomes, on a par with children adopted by opposite sex parents. For example, a study of three types of adoptive families — families of children with special needs, non-special needs families headed by gays or lesbians and non-special needs families headed by heterosexual parents found parental sexual orientation was not associated with the quality of family functioning, with the exception of the families who adopted older children. In those cases, being adopted by gay or lesbian parents was associated with higher levels of family functioning. The
There are many studies that support these findings. More recent and methodologically stronger studies include: N. Anderssen, C. Amlie and E. A. Ytteroy, Outcomes for children with lesbian or gay parents. A review of studies from 1978 to 2000, 43 Scandinavian Journal of Psychology 4 (2002); A. Brewaeys, I. Ponjaert, E.V. Van Hall and S. Golombok, Donor Insemination: Child development & family functioning in lesbian mother families with 4 to 8 year old children, 12 Human Reproduction 6 (1997); R.W. Chan, B. Raboy and C.J. Patterson, Division of labor among lesbian and heterosexual parents: Associations with children's adjustments, 12 Journal of Family Psychology 3 (1998); N. Gartrell, H. Peyser and H. Bos, Family Characteristics, Custody Arrangements, and Adolescent Psychological Well-being After Lesbian Mothers Break Up, 60 Family Relations 5 (2011): J. Stacey and T. Bilbarz, (How) Does the Sexual Orientation of Parents Matter?, 66 American Sociological Review 2 (2001); F. Tasker and S. Golombok, Adults raised as children in lesbian families, 65 American Journal of Orthopsychiatry 2 (1995); J.L. Wainwright, S.T. Russell and C.J. Patterson, Psychological adjustment and school outcomes and romantic relationships of adolescents with same-sex parents, 75 Child Development 6 (2004).
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2:12-cv-10285-BAF-MJH Doc # 25-7 Filed 03/19/12 Pg 3 of 4 Pg ID 649
authors conclude that gay/lesbian-headed families show promise as resources for children, particularly older ones (P. Leung, S. Erich and H. Kanenberg, A comparison of lamily functioning in gaylesbian, heterosexual and special needs adoptions, 27 Children and Youth Services Review 9 (2005)). A later study found no relationship between parent sexual orientation and level of parent-child attachment in adolescence (S. Erich, H. Kanenberg, K. Case, T. Allen and T. Bogdanos, An empirical analysis of factors affecting adolescent attachment in adoptive families with homosexual and straight parents, 31 Children and Youth Services Review 3 (2009)).
D. Research on same sex couple parenting and same sex couple adoption meets the stringent requirements of peer reviewed social science research.
E. In my opinion, the evidence clearly demonstrates that gays and lesbians have equal parenting skills to their heterosexual counterparts. As adoption expert Dr. David Brodzinsky notes, "... the data are unequivocal in showing that lesbian and gay-headed households show patterns of psychological, social, and academic adjustment similar to their peers raised by straight parents... In addition, ... [on gay or lesbian adoptive families] the results are consistent with the findings of previous research: lesbian and gay adoptive parents and their children show patterns of adjustment similar to those of heterosexual adoptive parents and their children."2
F. Based on the research finding that children reared by lesbian or gay parents fare well, every major child welfare and most professional associations have adopted policy statements affirming gay and lesbian parenthood and adoption by gay and lesbian individuals and couples. 3 In addition, many such organizations have policy statements that encourage states to permit joint or second parent adoption. (See Position Statement of the American Psychiatric Association, No. 200214, Approved November 2002, attached hereto).
7. Every year thousands of youth "age out" of foster care without permanent families according to the U.S. Children's Bureau in 2010 almost 28,000 youth exited care without legal mothers or fathers. Multiple studies demonstrate that these youth are at great risk for poverty, early parenthood, homelessness, unemployment, incarceration and problems in health and mental health!'
2 D. Brodzinsky, R.J. Green and K. Katuzny, Adoption by lesbians and gay men; What we know, what we need to know, and ought to do, Adoptions by Lesbians and Gay Men, 237 (New York: Oxford University Press, 2011). 3 Examples include the American Bar Association, the American Medical Association, the American Psychological Association, the American Academy of Pediatrics, the Child Welfare League of America, the National Association of Social Workers and the North American Council on Adoptable Children. 4 See for example, J. Howard and S. Berzin, Never too old: Achieving Permanency and Sustaining Connections for Older Youth in Foster Care (Susan Smith and Adam Pertman ed., Evan B. Donald Adoption Institute 2011) (20111.
3

2:12-cv-10285-BAF-MJH Doc # 25-7 Filed 03/19/12 Pg 4 of 4 Pg ID 650

8. While we have made great strides in placing children for adoption, over 100,000 children were in foster care waiting for adoptive homes at the close of the federal fiscal year in 2010. In Michigan over 7,000 children await adoption.' Most of the children who wait are older children (16% are older than 10 and 26% are 7 or older). Older age is the most powerful predictor of remaining in foster care rather than being adopted. Most of those seeking to adopt are interested in adopting younger children and children without mental or emotional disabilities.6
9. Studies have indicated that a greater percentage of gay and lesbian parents have demonstrated interesting adopting these "hard to place" children.?
10. Studies have found that lesbian and gay parents are more open to adopting children with special needs than are heterosexual parents.8
11. A major study by the Urban Institute and the Williams Institute estimated that at least 65,000 children have been adopted by lesbian and gay parents. The report also found that lesbian adults actually show greater interest in adoption than heterosexual women (46.2% vs. 32.1%) and were more likely to have taken concrete steps to adopt. In response to calls to restrict fostering and adoption by gay and lesbian parents, the report estimates the economic impact of doing so would cost states from $87 to $130 million each year.9
12. Most states either explicitly allow joint or second parent adoption by same sex couples through law or policy (18 states and the District of Columbia), have allowed it at the trial court level (12 states) or do not specifically prohibit the practice.
13. I declare under penalty of perjury under the laws of the United States that the foregoing statements are true.

Dated: March 12, 2012

,41
J e A. Howard Co-Director of Adoption Studies Illinois State University

5 Available at, http://www.adoptuskids.org/for-families/state-adoption-and-foster-care-
information/michigan#info 6 C.A. Bachrach, K.A. London and P. Maza, On the path to adoption: adoption seeking in the U.S., 53 Journal of Marriage and the Family 3 (1991); D. Brooks, S. James and RP. Barth, Preferred characteristics of children in need of adoption: Is there a demand for available foster children?, 76 Social Services Review 4 (2002). 7 D. Brooks and S. Goldberg, Gay and lesbian adoptive and foster care; Can they meet the needs
of waiting children?, 46 Social Work 2 (2001). 8 D. Brooks and S. Goldberg, Gay and lesbian adoptive and foster care placements; Can they meet the needs of waiting children?, 46 Social Work 147 (2001). 9 G.J. Gates, M.V. Lee Badgett, J.E. Macomber and K. Chambers, Adoption and Foster Care by Gay and Lesbian Parents in the United States (Williams Institute, Urban Institute) (2007)
4

 
 2:12-cv-10285-BAF-MJH Doc # 25-8 Filed 03/19/12 Pg 1 of 1 Pg ID 651
Adoption and Co-parenting of Children by Same-sex Couples POSITION STATEMENT
Approved by the Board of Trustees, November 2002 Approved by the Assembly, November 2002
"Policy documents are approved by the APA Assembly and Board of Trustees... These are ...position
statements that define APA official policy on specific subjects..." -- APA Operations Manual.
Numerous studies over the last three decades consistently demonstrate that children raised by gay or lesbian parents exhibit the same level of emotional, cognitive, social, and sexual functioning as children raised by heterosexual parents. This research indicates that optimal development for children is based not on the sexual orientation of the parents, but on stable attachments to committed and nurturing adults. The research also shows that children who have two parents, regardless of the parents' sexual orientations, do better than children with only one parent. While some states have approved legislation sanctioning second parent adoption, other court judgments and legislation have prohibited lesbian women and gay men from adopting or co-parenting. Therefore, in most of the United States, only one partner in a committed gay or lesbian couple may have a legal parental relationship to a child they are raising together. Adoption by a second parent, however, would not only formalize a child's existing relationships with both parents in a same-sex couple, it would also provide vital security for the child. Children could avail themselves of both parents' health insurance benefits, access to medical care, death benefits, inheritance rights, and child support from both parents in the event of separation. Adoption protects both parents' rights to custody and/or visitation if the couple separates or if one parent dies. The American Psychiatric Association has historically supported equity, parity, and non-discrimination regarding legal issues affecting mental health. In 2000, APA supported the legal recognition of same sex unions and their associated legal rights, benefits, and responsibilities. APA has also supported efforts to educate the public about homosexuality and the mental health needs of lesbian women, gay men, and their families. Removing legal barriers that adversely affect the emotional and physical health of children raised by lesbian and gay parents is consistent with the goals of the APA. The American Psychiatric Association supports initiatives which allow same-sex couples to adopt and coparent children and supports all the associated legal rights, benefits, and responsibilities which arise from such initiatives.
Exhibit 6-a

 
 2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 1 of 12 Pg ID 724

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors, and JAYNE ROWSE, individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R, minors,

Plaintiffs,

ED Mi No. 12-10285 Honorable Bernard A. Friedman

-vs-

RICHARD SNYDER, in his official capacity as Governor of the State of Michigan, BILL SCHUETTE, in his official capacity as Michigan Attorney General, and BILL BULLARD, JR., in his official capacity as Oakland County Clerk,

Defendants. /

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

PARTIES

1. Plaintiffs April DeBoer and Jayne Rowse are citizens and residents of Hazel Park,

Oakland County, Michigan, in the Eastern District of Michigan, Southern Division. DeBoer and

Rowse each appear individually and as parent and next friend of N.D.-R, R.D.-R., and J.D.-R,

minors.

2. Defendant Richard Snyder is sued in his official capacity as Governor of the State of

Michigan. Snyder is a person within the meaning of 42 U.S.C. §1983, and he is, was, and will be

acting under color of state law at all times relevant to this Complaint.

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3. Defendant Bill Schuette is sued in his official capacity as Michigan Attorney General. Schuette is a person within the meaning of 42 U.S.C. §1983, and he is, was, and will be acting under color of state law at all times relevant to this Complaint.
4. Defendant Bill Bullard, Jr. is sued in his official capacity as the Oakland County Clerk. Bullard is a person within the meaning of 42 U.S.C. §1983, and he is, was, and will be acting under color of state law at all times relevant to this Complaint.
JURISDICTION AND VENUE 5. Plaintiffs bring this action under 42 U.S.C. §§1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution. 6. This Court has jurisdiction pursuant to 28 U.S.C. §1331 and 1343. Jurisdiction to grant the declaratory relief requested is provided under 28 U.S.C. §2201. 7. Venue is proper in this district pursuant to 28 U.S.C. §1391(b) because Defendants reside and have offices within the district, because Plaintiffs reside in this district, and because the events giving rise to Plaintiffs’ claims occurred, and will occur, in this district.
FACTS 8. DeBoer and Rowse are domestic partners in a long term stable relationship. After a long and close friendship, they became partners, they have resided together for six years, they own a home together, and as described herein, they are the parents of the different minor plaintiffs in this case. 9. DeBoer is and was employed as a nurse in the neonatal intensive care unit at Hutzel Hospital in Detroit, Michigan. Rowse is and was employed as an emergency room nurse at Henry Ford Hospital in Detroit, Michigan.
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2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 3 of 12 Pg ID 726
10. R was born on Februrary 1, 2010, and was brought to Hutzel Hospital as a newborn. R’s biological mother was 19 years old, she did not receive pre-natal care, and she had given birth at her mother’s home. R was legally adopted by DeBoer, as a single person, in April of 2011, in Wayne County Circuit Court. R continues to experience issues related to her lack of prenatal care, including delayed gross motor skills. She is in a physical therapy program to address these problems.
11. N was born on January 25, 2009,to a biological mother who was homeless, had psychological impairments, was unable to care for N and subsequently surrendered her legal rights to N. N’s biological father was not identified on the birth certificate and was otherwise not involved in his life. DeBoer and Rowse volunteered to care for him, and brought him home following his birth. Thereafter, in November of 2009, N was legally adopted by Rowse, as a single person, in Wayne County Circuit Court.
12. J was born on November 9, 2009, at Hutzel Hospital, premature at 25 weeks, to a drug addicted prostitute. Upon birth, he weighed 1 pound, 9 ounces and tested positive for marijuana, cocaine, opiates and methadone. His birth mother abandoned him immediately after delivery. J remained at the hospital in the NICU for four months with myriad different health complications, and was not expected to live. If he survived, he was not expected to be able to walk, speak or function on a normal level in any capacity. J’s foster care agency requested that DeBoer and Rowse take him home, and both DeBoer and Rowse were certified by the State as foster parents and legal guardians for J. Thereafter, Rowse adopted J as a single person in Wayne County Circuit Court. J is in intensive occupational and physical therapy. With Rowse and DeBoer’s constant care and medical attention, many of J’s physical conditions have resolved.
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2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 4 of 12 Pg ID 727
13. It is April DeBoer’s desire and intention to allow Jayne Rowse to adopt, as a second parent, R, and it is Jayne Rowse’s desire and intention to adopt R, as a second parent. DeBoer and Rowse agree that all rights of inheritance, succession, and any other applicable rights should be fully effectuated as a result of this adoption of R.
14. It is Jayne Rowse’s desire and intention to allow April DeBoer to adopt, as a second parent, N and J, and it is April DeBoer’s desire and intention to adopt N and J as a second parent. DeBoer and Rowse agree that all rights of inheritance, succession, and any other applicable rights should be fully effectuated as a result of this adoption of N and J.
15. Rowse and DeBoer enjoy a close and loving relationship with each other, and they have created a stable, loving household for these three children. They share finances, they make decisions jointly regarding their own lives and the lives of their children, they both cook and care for the children, they both attend to the children’s medical needs and both are involved in taking the children to their many doctor and therapy visits, and they coordinate their work schedules so that at least one parent is generally home with the children. Prior to their adoption of the children, the couple expressed their vows at a commitment ceremony in February of 2007,which was attended by both of their families and friends. They each enjoy a close relationship with their respective family of origin, they were and are supported by their families in their decision to adopt the children, and they are supported by their families when needed in caring for the children. DeBoer and Rowse enjoy an extremely high functioning, low-conflict, domestic relationship despite the enormous challenges involved in raising three young, special needs children.
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2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 5 of 12 Pg ID 728
COUNT I (Defendants Richard Snyder and Bill Schuette) 16. The Michigan Constitution prohibits same-sex couples from marrying. Mich. Const. 1963, art 1, §25. Plaintiffs DeBoer and Rowse would marry in the State of Michigan if legally permitted to do so. 17. Michigan law relating to adoption and second parent adoption, pursuant to MCL 710.24, provides as follows: (a) married couples can adopt a child, (b) a single person can adopt a child, and (c) an unmarried couple cannot adopt a child. As a result of this law, and as a result of Defendants’ execution and defense of that law and advice to state judges and other officials that Michigan law prohibits second parent adoptions by unmarried couples, any attempt by DeBoer and Rowse at securing a second parent adoption of the minor plaintiffs would be futile under Michigan law, MCL 710.24. 18. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. §1983, provides that no state shall deny any person the equal protection of the laws. 19. As a result of MCL 710.24, and as a result of Defendants’ execution and defense of that law and advice to state judges and other officials that Michigan law prohibits second parent adoptions by unmarried couples while allowing a single unmarried person to adopt a child or a married couple to adopt a child, state court judges and other officials in Michigan will not approve second parent adoptions by unmarried couples, and the children of unmarried “second” parents seeking to adopt in Michigan and unmarried second parents seeking to adopt in Michigan are denied legal, emotional, financial, social, medical, and other benefits. As such, Plaintiffs identified herein are subjected to adverse treatment solely because the minor Plaintiffs’ parents
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2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 6 of 12 Pg ID 729
are an unmarried couple. 20. Under Michigan law, a married step-parent can lawfully adopt the children of his or
her spouse, and consequently, the Michigan statutory scheme which prohibits second parent adoptions by unmarried couples is arbitrary, capricious, lacking in any rational basis, and is therefore invalid under any standard of scrutiny.
21. The disparate treatment of the children of unmarried couples and of unmarried couples seeking a step-parent adoption, based upon the marital status of the parents, violates the Equal Protection Clause of the United States Constitution.
22. As applied, Michigan’s law prohibiting second parent adoptions by unmarried persons serves no legitimate government interest. There are very significant legal benefits for children having two legal parents rather than one: (a) the right to have a parent automatically in the event of the death of the other parent, (b) the right to dependency benefits under laws and other contractual arrangements providing for dependency benefits, such as social security, workers compensation, pensions, insurance and tort law, and (c) the right to have at least one parent able and available to make decisions in the event the other parent is incapacitated or is unavailable.
23. By prohibiting a second parent from adopting the child of that parent’s partner, Michigan law impairs deeply personal relationships, deprives the minor child Plaintiffs in this case of the myriad legal, sociological and psychological benefits attendant upon having two legal parents, and deprives Plaintiff parents in this case of their fundamental rights of parental autonomy and family autonomy.
24. Defendants’ execution and defense of Michigan’s adoption laws, as applied, does not
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2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 7 of 12 Pg ID 730
serve any compelling, substantial or otherwise sufficient government interest, nor does it serve such interests in an adequately tailored manner. As applied, Defendants’ actions have the effect of unlawfully discriminating against Plaintiff parents and Plaintiffs’ children. Accordingly, Defendants’ conduct violates the Equal Protection Clause of the United States Constitution.
COUNT II (Defendants Richard Snyder, Bill Schuette, and Bill Bullard, Jr.) 25. Plaintiffs repeat and re-allege paragraphs 1 through 24 as if set in full. 26. The Michigan Constitution, specifically, the Michigan Marriage Amendment, prohibits same-sex couples from marrying. Mich. Const. 1963, art 1, §25. 27. As a result, Plaintiffs are excluded from a broad array of statutory protections, benefits, and mutual responsibilities afforded, under federal, state and local laws and regulations, exclusively to married persons and their families. Plaintiffs are denied protections relating to the incapacitation or death of a spouse, support for family finances and other public and private safety nets and responsibilities attaching to marriage, including the following: (a) Plaintiffs are denied protections afforded married families upon the death of one member of the couple, such as intestacy rights permitting the surviving spouse/parent to inherit automatically from the deceased’s spouse’s estate if there are no parents or issue; the right of the surviving spouse/parent to an allowance or to occupy the homestead while the estate is being settled; the right of the surviving spouse/parent to file a wrongful death lawsuit when a spouse is killed; and presumptions benefitting spouses/parents in the absence of a designated beneficiary for death benefits and life insurance policies;
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2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 8 of 12 Pg ID 731
(b) Plaintiffs are denied protections resulting from the right of employee spouses/parents to file for or receive workers’ compensation death benefits, even though the adult plaintiff-employees pay insurance premiums for workers’ compensation benefits to provide protections to employees and their dependents if the employee is injured or killed on the job, and may pay precisely the same taxes and insurance premiums as their work colleagues;
(c) Plaintiffs are denied the financial safety net provided to spouses/parents under numerous tax laws, including the right to file jointly to reduce tax liability, and tax benefits when transferring or inheriting interests in real and personal property;
(d) Plaintiffs may be denied family health insurance coverage and the adult plaintiffs/parents may be denied continuation of coverage provided to spouses of deceased public employees;
(e) Plaintiffs may be denied the full benefit of dissolution laws that regulate the separation and divorce process, protect the rights of both spouses/parents and determine custody, visitation, support and other matters, some of which may be addressed, if at all, only in ad hoc processes for unmarried same-sex adults/parents;
(f) Adult plaintiffs are denied the automatic right to make health care decisions for a spouse when the spouse cannot, including the right to withhold or withdraw life-sustaining procedures and the right to donate a spouse’s organs and tissues;
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2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 9 of 12 Pg ID 732
(g) Adult plaintiffs are denied the automatic right to make burial decisions and other decisions concerning the disposition and handling of remains of deceased spouses; and
(h) Because many private parties rely upon the State’s definition of a “spouse”, plaintiffs also suffer deprivation of many privately conferred benefits and protections, such as from employers, banks, and insurers. 28. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. §1983, provides that no state shall deny any person the equal protection of the laws. 29. As a result of Mich. Const. 1963, art 1, §25, and as a result of Defendant Bullard’s refusal to issue a marriage license to any unmarried couple, plaintiffs are denied legal, financial, social, medical, and other benefits. As such, the plaintiffs identified herein are subjected to adverse treatment solely because they are a same sex, unmarried couple. 30. Under Michigan law, married persons retain all of the foregoing rights and privileges. 31. The applicable standard for evaluating the constitutionality of the Michigan Marriage Amendment is the “important and substantial relationship” test. Michigan’s constitutional amendment banning same sex marriage fails this test. 32. In addition, beause the Michigan Marriage Amendment serves no legitimate government interest, it fails the rational basis test, and cannot survive any form of scrutiny. 33. The disparate treatment of the same sex couples, and their children, in Michigan violates the Equal Protection Clause of the United States Constitution. 34. In addition, based upon all of the foregoing, the Michigan Marriage Amendment also violates the Due Process Clause of the United States Constitution because it unconstitutionally
9

2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 10 of 12 Pg ID 733
burdens the exercise of fundamental rights, it fails the rational basis test, and cannot survive any
standard of scrutiny.
RELIEF SOUGHT
WHEREFORE, for the reasons expressed in Count I, Plaintiffs respectfully request that
this Court enter a judgment:
A. Declaring that the provisions of MCL 710.24, which prohibits second parent adoptions
by unmarried couples, violates the plaintiff children’s and parents’ rights under the Equal
Protection Clause of the Fourteenth Amendment of the United States Constitution;
B. Entering orders as follows:
(1) enjoining Defendant Bill Schuette, in his official capacity as the Michigan Attorney General, and Defendant Richard Snyder, in his official capacity as the Governor of the State of Michigan, from attempting to block the Plaintiff-parents’ attempts at securing second parent adoptions of the Plaintiff-children named in this action, and enjoining either of them from defending the actions of any and all state officials attempting to bar the second parent adoptions of the Plaintiffchildren named in this action;
(2) enjoining all state judges and other officials presented with the Plaintiffs’ request for second parent adoption from refusing to process said adoptions based upon the unmarried status of the Plaintiffs; and
(3) requiring Defendant Schuette to inform all judges and other State of Michigan officials of the orders entered herein and to advise them under this Court’s decree that they are required to process the Plaintiffs’ request for adoption irrespective of Plaintiffs’ status as unmarried persons.
C. Awarding plaintiffs reasonable attorneys’ fees and costs under 42 U.S.C. §1988; and
D. Granting such other and further relief as the Court deems just and proper.
In addition, for the reasons expressed in Count II, Plaintiffs respectfully request that this
Court enter a judgment as follows:
10

2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 11 of 12 Pg ID 734
A. Declaring that: (1) the provisions of the Michigan Marriage Amendment, Mich. Const. 1963, art 1, §25, which prohibits same-sex couples from marrying, violates the Plaintiff children’s and parents’ rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution;
(2) Same-sex couples otherwise qualified to marry one another, including the adult Plaintiffs, may not be denied a marriage license application, a marriage license, a marriage certificate, or in any other way prevented from exercising the right to civil marriage by virtue of seeking to marry a partner of the same sex; and
(3) Children of same-sex couples who wish to marry under Michigan law may not be denied the legitimacy, rights, protections, benefits, support, security, and obligations conferred on children whose parents wish to marry and are permitted to marry under Michigan law.
B. Entering orders as follows: (1) enjoining Defendant Bill Schuette, in his official capacity as the Michigan Attorney General, Defendant Richard Snyder, in his official capacity as the Governor of the State of Michigan, and Defendant Bill Bullard, Jr., in his official capacity as the Oakland County Clerk, from attempting to block same-sex couples’, including the adult Plaintiffs’, attempts at securing a marriage license in any county of Michigan, and enjoining Defendants from defending the actions of any and all state officials attempting to bar the Plaintiff-parents from obtaining a marriage license; (2) requiring Defendant Bullard immediately to issue a valid marriage license to adult plaintiffs upon receipt of their completed application for a marriage license; C. Awarding Plaintiffs reasonable attorneys’ fees and costs under 42 U.S.C. §1988; and D. Granting such other and further relief as the Court deems just and proper.
11

2:12-cv-10285-BAF-MJH Doc # 38 Filed 10/03/12 Pg 12 of 12 Pg ID 735

Dated: September 7, 2012

Respectfully submitted,
/s/ Dana Nessel DANA M. NESSEL P51346 645 Griswold Street, Suite 3060 Detroit, MI 48226 (313) 556-2300 dananessel@hotmail.com
s/Carole M. Stanyar CAROLE M. STANYAR P34830 682 Deer Street Plymouth, MI 48170 (313) 963-7222 cstanyar@wowway.com
Attorneys for Plaintiffs
Of counsel:
s/Robert A. Sedler ROBERT A. SEDLER P31003 Wayne State University Law School 471 W. Palmer Street Detroit, MI 48202 (313) 577-3968 rsedler@wayne.edu
s/ Kenneth M. Mogill Kenneth M. Mogill P17865 MOGILL, POSNER & COHEN 27 E Flint Street, 2nd Floor Lake Orion, MI 48362 (248) 814-9470 kmogill@bignet.net

12

 
 2:12-cv-10285-BAF-MJH Doc # 76-3 Filed 09/09/13 Pg 1 of 4 Pg ID 1874

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, individually and as parent and next friend ofN.D.-R, R.D.-R., and J.D.-R, minors, and JAYNE ROWSE, individually and as parent and next friend ofN.D.-R, R.D.-R., and J.D.-R, minors,

Plaintiffs, -vs-

ED Mi No. 12-10285 Honorable Bernard A. friedman United States District Judge

RICHARD SNYDER, in his official capacity as Governor of the State ofMichigan, BILL SCHUETTE, in his official capacity as Michigan Attorney General, and LISA BROWN, in her official capacity as Oakland County C lerk,

Defendants.
------------------------------------------------------------I
DECLARATION OF JEANNE A. HOWARD, PH.D. UNDER 28 USC §1746
1, Jeanne A. Howard, hereby incorporate paragraphs 1 through 5 of my earlier declaration, R 67, Plaintiffs' Cross Motion for Summary Judgment, Ex 6, and do declare as follows:
I. Based on my work, education, and knowledge of relevant studies, 1have concluded that gays and lesbians are as competent, loving, nurturing, and capable ofparenting as their heterosexual counterparts. As noted in my previous affidavit, studies over several decades have consistently found that children raised by gay or lesbian parents and children raised by heterosexual parents do not have different outcomes. That is, it is not the sexual orientation of parents, but the quality or parenting that affects outcomes for children.

2. A single study by sociologist Mark Regnerus, purporting to find that children with gay and les bian parents have poorer outcomes in young adulthood than children reared by opposite-sex parents in intact marriages, is deeply flawed. Regnerus' study has been

1

2:12-cv-10285-BAF-MJH Doc # 76-3 Filed 09/09/13 Pg 2 of 4 Pg ID 1875
widely criticized by scholars and multiple critiques of the study have concluded that its stated findings are not warranted by its data. 1
a. Specific limitations of the study include:
1. The study makes use of comparison groups which are not comparable. Perhaps the most serious flaw in the Regnerus study is the author's decision to collapse categories of parents into one category for parents whose children reported they had had a same- sex relationship but not to do so for oppositesex parent families. Thus, the group to which the "gay or lesbian" parents were compared and found to have disadvantages was comprised of two opposite-sex parents who had been married throughout the child's life. The appropriate comparison would have been of similar groups--e.g., children raised by parents in stable long-term relationships who were either same-sex or opposite-sex. Regenerus cannot legitimately conclude that differences he reports between lesbian or gay parents and two-parent families are due to the sexual orientation of the parents.
11. Regenerus has offered no empirical or theoretical defense for his grouping decisions. In interviews after the article was published, he attributed it to the need to increase the sample size ofthe "lesbian and gay" parent groups.2 Importantly, Regenerus ' article and many of the assumptions derived from it, focus on the differences found between young adults with parents coded as lesbian (and to a lesser extent those coded as gay) compared to those coded as having lived in intact biological families (with mother and father) who were still married. However, many of the negative differences found between young adults with parents coded as lesbian (and to a lesser extent those coded as gay) compared to those coded as having lived in intact biological families (with a mother and a father) who were still married. Many of the negative differences reported between these groups were also found between the intact
1 See also Brief of Amicus Curiae of American Sociological Association in Support of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor, pp 16-22, filed in Hollingsworth v Perry, S Ct #12-144, and United States v Windsor, S Ct #12-307, appended to Plaintiffs' Response; D. E. Sherkat, The Editorial Process and Politicized Scholarship: Monday Morning Editorial Quarterbacking and a Call for Scientific Vigilance, 41 Social Science 1346-1349 (2012); Gary J. Gates et al., Letter to the Editor and Advisory Editors of Social Science Research, 41 Social Science Research 1350 (2012) (a letter signed by 200 scholars in sociology and family studies, and other researchers); A.J. Perrin, P. H. Cohen and N. Garren, N., Responding to the Regnerus Study: Are Children of Parents Who Had Same-Sex Relationships Disadvantaged? A Scientific Evaluation of the No-Difference Hypothesis, 17 Journal of Gay and Lesbian Mental Health, 327-336 (2013).
2 M. Regnerus, Q&A With Mark Regnerus About the Background of His New Study, p 3, (2012) http:1/www.patheos.com/blogs/blackwhiteandgray/2012/06/q-a-with-mark-reg nerus-about-thebackground-of-his-new-study/
2

2:12-cv-10285-BAF-MJH Doc # 76-3 Filed 09/09/13 Pg 3 of 4 Pg ID 1876
families and other family constellations where parents were not coded as gay or lesbian, yet such comparisons are scarcely discussed.
iii. The Regnerus study uses a definition of"gay or lesbian" parenting that is questionable. The basis for identifying a parent as gay or lesbian in the study is the young adult's report that a parent ever engaged in a same-sex romantic relationship during the child's minority. Parents so categorized may or may not have raised the child, although the group to which they were compared children raised by their biological parents who had never divorced- certainly did raise the child. Some children were raised by their parents with same-sex partners. Many were not. Slightly over half (52%) of respondents had ever lived with their mother and a same-sex partner and most of these (60%) did so for two years or less. Put simply, the young adults in this study were not raised by same-sex couples, yet Regnerus' findings are used as a basis for contending that the State should not sanction adoption by both members of a same-sex couple.
b. It is questionable whether the sample on which the study is based is nationally representative. The sample is 32.7% male and 67.3% female and disproportionately minority. Further, the small numbers Regnerus identifies as children of gays and lesbians (1.7% of the sample) are "not up to the task of adequately informing our understanding of same-sex parenting."3
3. The reliability of the study is further compromised by the process by which it came to be published. The editor of Journal ofSocial Science Research asked for a review of the process by which the Regnerus article came to be published in the journal. The resulting audit4 found:
a. Those who reviewed it and recommended publication had ties to Regnerus that called into question their ability to appropriately review the paper. Two of the reviewers were, in fact, paid consultants on the study.
b. Problems with the study were exacerbated by an "unseemly rush to publication. " As the auditor concluded, "In the rush to complete the paper [which was accepted just 5 weeks after it was first submitted- an extremely quick turnaround in social science publication and compared to an average of over a year for other articles appearing in the same issue5] before data were even fully collected, data cleaning
was apparently not something in the research agenda."
c. The nature of the funding for this research raises further concerns. As noted by the auditor, "There should be reflection about a conservative scholar garnering a
3 Sherkat, supra. 4 /d. s Gates, supra.
3

2:12-cv-10285-BAF-MJH Doc # 76-3 Filed 09/09/13 Pg 4 of 4 Pg ID 1877

very large grant from exceptionally conservative foundations to make incendiary arguments about the worthiness of LGBT parents - and putting this out in time to politicize it before the 2012 United States Presidential election."
4. The Regnerus study does not address the well-being of children adopted by same-sex couples. Studies on the psychological adjustment of children adopted by heterosexual parents and by gay or lesbian parents find that differences in child adjustment and outcomes across adopted children are not associated with parental sexual orientation. For example, the most recent study of such families, Goldberg and Smith's study of 120 heterosexual, lesbian, and gay adoptive couples, found that fami ly type was unrelated to child's adjustment.6 Rather it was lack of parental preparation for adoption, parental depression and parental relationship conflict that were associated with child behavioral and emotional difficulties. A second recent study examined the cognitive development and behavioral problems of children adopted from foster care. The study found on average, adopted children adopted in heterosexual and gay/lesbian households "showed significant gains in cognitive development and maintained similar levels of behavior problems over time, despite gay and lesbian parents raising children with higher levels of biological and environmental risks prior to adoptive placement." 7
5. It is my considered professional opinion that the objections raised by those who oppose adoption by both members of a same-sex couple are without basis in general and that reliance on the Regnerus findings in particular is unjustified.
6. I declare under penalty of perjury under the laws of the United States that the foregoing statements are true.

Dated: September 9, 2013

jj,~- ~
J anne A. Howard

6 A. Goldberg and J. Z. Smith, Predictors of Psychological Adjustment in Early Placed Adopted Children with Lesbian, Gay, and Heterosexual parents, 27 Journal of Family Psychology, 146-162 (2013). 7 J. A. Lavner, J. Waterman, and L.A. Peplau, Can Gay and Lesbian Parents Promote Healthy Development in High-Risk Children Adopted From Foster Care?, 82 American Journal of Orthopsychiatry, 465-472 (2012).
4

 
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EXHIBIT B

2:C12a-scev:-10-218656-9B6AF1-M1/J0H1/2D01o0c #P8a1g-2e: 2Foilef d1109/2ID5:/173530P5g828 ofD1k1tEnPtrgy:I2D4139-320

Loren Dean Marks

Washington, DC

October 30, 2009

Page 1

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3 KRISTIN M. PERRY, et al., )

4

Plaintiffs, )

5

v.

) No. 09-CV-2292 VRW

6 ARNOLD SCHWARZENEGGER, in )

7 his official capacity as )

8 Governor of California, )

9 et al.,

)

10

Defendants. )

11

12

Washington, D.C.

13

Friday, October 30, 2009

14 Deposition of LOREN DEAN MARKS, called for

15 examination by counsel for Plaintiffs in the

16 above-entitled matter, the witness being duly sworn

17 by CHERYL A. LORD, a Notary Public in and for the

18 District of Columbia, taken at the offices of COOPER

19 & KIRK PLLC, 1523 New Hampshire Avenue N.W.,

20 Washington, D.C., at 9:31 a.m., and the proceedings

21 being taken down by Stenotype by CHERYL A. LORD, RPR,

22 CRR.

Alderson Reporting Company 1-800-FOR-DEPO

2:C12a-scev:-10-218656-9B6AF1-M1/J0H1/2D01o0c #P8a1g-2e: 3Foilef d1109/2ID5:/173530P5g838 ofD1k1tEnPtrgy:I2D4139-321

Loren Dean Marks

Washington, DC

October 30, 2009

Page 146

Page 148

1 headings in various studies, it's -- it's rarely

1 criminality and incarceration.

2 explicitly mentioned.

2

In paragraph -- where is it? -- oh,

3

Q. Is Johnson's study one that you would

3 I'm -- yes, paragraph 16, you state that: In another

4 characterize as gold standard social science?

4 examination of criminality and delinquency, Rickel

5

A. I think it's a fine study, yes.

5 and Langer found that children who were residing with

6

Q. Can you turn to page 12, please.

6 their biological fathers were the least involved in

7

A. M-hm.

7 delinquent behavior, while children with stepfathers

8

Q. Page 12, the first bullet point numbered

8 fared worse. Single-parented children fell in

9 1, I'll read it and you can read along: 10 family

9 between.

10 types are defined as follows in order of decreasing 10

And for that proposition, you cite Rickel

11 frequency. 1, mother, father. The respondent

11 and Langer's 1985 study, and you see also to David

12 reported the presence in the household of a mother 12 Popenoe's book.

13 and a father, open paren, biological or adoptive, 13

Are you sure as you sit here right now

14 close paren. The respondent did not report in the 14 that you used the term that Rickel and Langer --

15 presence -- the presence in the household of any of 15 excuse me -- used the term biological fathers as you

16 the other 7 relations, that is, the respondent did

16 used the term biological fathers in your report?

17 not report living with a stepmother, a stepfather, an 17

A. No, not positive.

18 other relative, a nonrelative, or a spouse.

18

Q. Do you know if Rickel and Langer used the

19

Do you take that to mean that -- to mean

19 term biological fathers at all?

20 as I do that Johnson defined a mother or a father as 20

A. One of hundreds of studies, Mr. McGill.

21 a biological or an adoptive mother or father?

21

Q. So is the answer, you don't know if Rickel

22

A. Yes.

22 and Langer used biological fathers?

Page 147

Page 149

1

Q. Do you read that as I do that Johnson does 1

A. I don't recall.

2 not distinguish between biological and adoptive

2

Q. Have you read the Rickel and Langer study?

3 parents?

3

A. I've read just portions of it, as I

4

A. He doesn't there.

4 mentioned earlier.

5

Q. Do you believe that Wilcox -- Wilcox's

5

Q. Can you tell me what methodology Rickel

6 statement turning back to page 25 -- you need not

6 and Langer used to reach their conclusions?

7 turn to it because it's quoted in paragraph 15 of

7

A. No.

8 your report.

8

Q. Can you tell me when Rickel and Langer

9

Do you believe that Wilcox's statement

9 gathered the data for their study?

10 that teens living with both biological parents are

10

A. No.

11 significantly less likely to use illicit drugs,

11

It was published in '85, how -- how far

12 alcohol, tobacco -- do you believe that's accurately 12 before that, I don't know.

13 supported by the Johnson study?

13

Q. If I told you the data was gathered in the

14

A. Taking a close look at these -- at these

14 late 1960s, would you assume that was correct?

15 definitions as been presented, I would withdraw

15

A. I couldn't refute it.

16 that.

16

MR. McGILL: Mark this as exhibit 6,

17

Q. Would you also withdraw your emphasis on 17 please.

18 both biological parents?

18

(Marks Exhibit No. 6

19

A. Certainly so.

19

was marked for

20

Q. Would you delete the word biological?

20

identification.)

21

A. I would.

21

BY MR. McGILL:

22

Q. I want to move now to your discussion of 22

Q. I want to direct you first to page 601

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Loren Dean Marks

Washington, DC

October 30, 2009

Page 166

Page 168

1 focuses specifically on those families is nascent and 1 least use an idea or 2.

2 new.

2

Lansford -- I think Brown at some -- some

3

There's hundreds of studies as I mentioned

3 level has given some similar ideas, but again, we're

4 early on, each of which may have their own little

4 talking about hundreds of studies, Mr. McGill, to

5 twist or wrinkle. In social science, we call it an

5 pull one out and specifically looking at an

6 operational definition.

6 adoption -- Lansford may have, 2001.

7

Those -- those differ from study to study.

7

Q. Based on your work as a social scientist

8 And if I were to tease out every one of those

8 and your experience in the social sciences for -- as

9 definitions in a 12-page report, we wouldn't -- we

9 a professor for 8 years, in the absence of a study

10 would never get to the report. There are some --

10 that compared biological parents to nonbiological

11 some admittedly broad-brush strokes and assumptions 11 parents, is it possible to draw an inference that

12 that are made. As a writer I had to make some of

12 biological parents are superior at generating

13 those.

13 beneficial child outcomes than nonbiological

14

And leave it at that.

14 parents?

15

Q. And one of the assumptions you made was 15

A. And we're talking about intact forms --

16 that where a study labeled a family intact or as

16

Q. Intact.

17 having biological parents, you assumed, did you not, 17

A. -- with everything except biology and

18 that the parents had a genetic connection to the

18 place.

19 child?

19

MR. THOMPSON: Just so the record is

20

A. I did --

20 clear, is marriage in place in in this question?

21

Q. So you --

21

BY MR. McGILL:

22

A. -- because --

22

Q. My question was, in the absence of any

Page 167

Page 169

1

Q. Please continue.

1 study that compares biological parents to

2

A. -- because the researchers in -- in, you

2 nonbiological parents, is it possible to draw an

3 know, Susan Brown's case and Johnson, they elected to 3 inference that biological parents are superior to

4 include adoptive families in with their definition of

4 nonbiological parents?

5 intact.

5

A. In terms of the research that exists, I

6

Q. If you were designing a study that sought

6 think we've established that -- that question is

7 to demonstrate the importance of biological parenting 7 tough to address, which is I assume why you asked for

8 as opposed to nonbiological parenting, how would you 8 an inference. I think it's a risky -- risky

9 do it?

9 inference.

10

A. I think the way I would probably go about

10

That's -- that's why we have empirical

11 it would be to do a comparison between the intact

11 research.

12 family as we've discussed to do it with a

12

Q. Is there any study that you've discussed

13 marriage-based adoptive family and also probably to 13 in your report or cited in your list of references

14 include a third party of step- -- stepfamily, but I

14 that tends to demonstrate that biological parents are

15 would be very careful to control for income given

15 superior to nonbiological parents at creating

16 some of the assumptions that I made earlier about

16 beneficial child outcomes?

17 adoptive families having more economic resources. 17

A. With -- with the marriage-based adoptive

18

Q. Of any of the studies that you have

18 families as the wild card that sometimes are not

19 reviewed in connection with your work as an expert, 19 included, sometimes as we have seen Johnson '96 are

20 are you aware of any study that does as you just

20 included under the intact heading, there are studies

21 suggested right there?

21 that -- that indicate once again that there is a

22

A. There -- I think there are studies that at

22 potent outcome difference when you combine biology

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43 (Pages 166 to 169)

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Loren Dean Marks

Washington, DC

October 30, 2009

Page 170

Page 172

1 and marriage.

1 cite dealt with adolescent development or things of

2

We -- we talked earlier about teasing that

2 that nature as opposed to others.

3 out. Causation, no. Correlation, yes.

3

Q. The -- this is not a study of original

4

Q. What -- what study are you referring to

4 research, is it?

5 when you said, powerful evidence of biological

5

A. Child Trends is a nonpartisan group that

6 parenting combined with marriage?

6 looks at issues that are -- they're viewed to have

7

A. There I'm talking about Child Trends 2002, 7 profound policy implications. They -- they sometimes

8 Kristin Moore, et al., McLanahan and Sandefur, 1994, 8 do conduct primary research.

9 Amato, 2005.

9

I believe that this particular report is a

10

Neither of those -- well, I'll just stop

10 brief -- or they're relying heavily on studies,

11 there.

11 especially gold standard studies of others.

12

Q. Can you please turn to paragraph 34 of

12

Q. And --

13 your report, which is marked as exhibit 2.

13

MR. McGILL: Will you mark that as exhibit

14

This is where you discuss the Moore Child

14 number 8, please.

15 Trends report.

15

(Marks Exhibit No. 8

16

Correct?

16

was marked for

17

A. Correct.

17

identification.)

18

Q. And that report states: It is not simply

18

BY MR. McGILL:

19 the presence of 2 parents as some have assumed but 19

Q. I would direct you to the last paragraph

20 the presence of 2 biological parents that seems to

20 in the right-hand column, which is the portion that

21 support children's development.

21 you quoted.

22

Is this one of the studies that you say is

22

It states: Children growing up with

Page 171

Page 173

1 powerful evidence of the importance of biological 1 stepparents also have lower levels of well-being than

2 parenting?

2 children growing up with biological parents.

3

A. I don't know that I used the word

3

It drops a footnote at that point.

4 powerful.

4

Thus it is not simply the presence of 2

5

I've repeatedly stated that it's not just

5 parents as some have assumed but the presence of 2

6 biology, but biology in connection with marriage,

6 biological parents that seem to support the

7 that combination.

7 children's development.

8

Q. And Moore and her Child Trends report is 8

In your experience as a social scientist,

9 one of the studies you cite for that proposition?

9 what authority do you believe Moore, et al., cited

10

A. One, yes.

10 for that proposition?

11

Q. And have you read the Kristin Moore Child 11

A. Let me look at the beginning again.

12 Trends research brief?

12

2 parents versus the presence of

13

A. Kristin, yes.

13 biological parents.

14

Q. Do you understand it?

14

It's a point among others that both Amato

15

A. As I said earlier, there's always things

15 and McLanahan and Sandefur have considered.

16 that kind of go over your head, but, yes, I believe I 16

Q. Do you think that Moore and her colleagues

17 do, reasonable.

17 were relying on the source that they cited in

18

Q. What's the central thesis of her --

18 footnote 5?

19

A. Again, in terms of memory, I struggle,

19

A. To -- to make the statement that we just

20 Mr. McGill.

20 read?

21

There are about 5 Child Trends reports

21

Q. Yes.

22 that year. I believe the one that I specifically

22

A. I think it's likely that they were relying

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44 (Pages 170 to 173)

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Loren Dean Marks

Washington, DC

October 30, 2009

Page 182

Page 184

1

Well, I've listed here that that was drawn

1 although in several of the studies that we've pulled

2 from Popenoe.

2 out, they mention that they include in -- different

3

Q. Is your reference to intact families

3 social scientists want to be -- and, you know, more

4 accurate?

4 or less inclusive or claiming the definition of who

5

A. May -- may include adopted as well, but

5 they include in the study. We've seen in several of

6 memory doesn't -- doesn't serve me there.

6 these cases that they decide to include adoptive

7

Q. Onward we go.

7 families, which are a small, small minority in the

8

Paragraph 37.

8 general population, a small minority. I don't know

9

A. M-hm.

9 the exact figures.

10

Q. Here you quote at some length from

10

But when you're dealing as these

11 Lorraine Blackmon's review: For African American 11 researchers are with broad national-based samples,

12 children, parental marriage produces important

12 they are as I mentioned earlier, sometimes painting

13 benefits.

13 with a broad brush.

14

And then it ends by saying: Marriage

14

If some of these studies we're talking

15 itself appears to be contributing strongly to better 15 about, they use the term biological or intact and

16 outcomes for black children.

16 they throw in some -- some adopted studies, we would

17

And then you drop a footnote, footnote 59. 17 call that noise at some level, that there's a little

18

And you state there that: The researchers

18 bit of -- there's a little bit of muddying of

19 are again referring to marriage between the

19 concepts, but unless we -- unless we know that

20 biological father and the mother.

20 conceptually, they're including so many adoptive

21

Are you sure that's the case?

21 families, I find that very hard to believe to

22

A. Well, as we've seen in a few of these

22 overthrow the general conclusion of a study based on

Page 183

Page 185

1 studies, they include -- some of them include intact, 1 thousands and thousands of people.

2 adoptive families under -- under biological. That

2

It's --

3 certainly is possible if not probable in some of

3

Q. Well, but --

4 these studies cited by Blackmon, since it's a review

4

A. Well, it's -- it's conceptually an

5 where they cite -- they claimed to cite 120 or so.

5 inconvenience to -- to have a nonclear-cut

6

In this case, I would anticipate that they

6 definition, but the points that are being made, if --

7 would probably have at least some studies. They

7 if adoptive families comprise 1 or 2 or 3 percent of

8 included a handful of adopted marriage-based families 8 the subgroup of what they're calling intact

9 in there.

9 biological families, we're talking about a study

10

Q. Do you wish to revise your statement that

10 that's still 97 percent pure.

11 the phrase parental marriage refers to marriage

11

It doesn't overthrow -- it makes my

12 between the biological father and mother?

12 definition, which is necessarily messy upfront, less

13

A. I think that what I would do there is say

13 convenient, less clean, but it -- you don't throw out

14 typically, conceptually, although some of the

14 the baby with the bath water because they decided to

15 studies, Johnson, et al., and others do include in

15 include a few adoptive families under the intact

16 their definition adoptive families under that

16 heading. That's ridiculous.

17 heading.

17

Further if -- if they decided to put the

18

Q. So we couldn't conclude from Blackmon's 18 intact families or the marriage-based adoptive

19 conclusion here that the benefits of marriage to --

19 families in for whatever reason in with stepparent

20 for black children are in any way limited to

20 families, and it only accounted for a very small

21 biological parents?

21 minority of the studies in that total population,

22

A. I think that that's an overstatement,

22 it's -- it's again impure conceptually, but it

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Loren Dean Marks

Washington, DC

October 30, 2009

Page 186

Page 188

1 doesn't ruin the whole study. It doesn't ruin the

1

Q. And so you would admit, then, that your

2 conclusions.

2 footnote 59 where you say that parental marriage was

3

You're always by definition dealing with

3 referring to the marriage between a biological mother

4 noise in social science. The best of these studies

4 and a father -- were you not in that footnote trying

5 are claiming to explain sometimes 30, 35 percent, 40 5 to draw exactly that inference, that it's the

6 percent of the variance.

6 biological marriage that produces importance benefits

7

They're offering incomplete explanations.

7 to the exclusion of other nonbiological marriages?

8 They're doing the very best they can with -- with

8

A. That's a reference to the way biological

9 real life, which is pretty messy, Mr. McGill. And

9 was conceptualized in a number of the studies that

10 adoptive families as I said before, I -- I -- from a

10 were being drawn on.

11 scholarly vantage, I don't have anything particularly 11

And as I've said, I would want -- you

12 for or against them.

12 know, in -- in hindsight, your point being a good

13

If -- if some of the researchers decide to

13 one, I would be more refined in emphasizing that

14 put them in with intact, that's -- that's fine. And

14 researchers conceptualize that a little bit

15 with stepfamilies, that's fine.

15 differently.

16

But I would prefer -- I believe that they

16

MR. THOMPSON: Can we take a 5-minute

17 deserve a discrete category themselves. My belief 17 break?

18 doesn't apply to a hundred different researchers who 18

If you're in the middle of something --

19 approach this -- this tough problem.

19

THE VIDEOGRAPHER: 10 minutes.

20

It's a tough problem to -- to tease out,

20

MR. McGILL: Do you want to wait till the

21 that they're going to approach it in different ways. 21 tape is up?

22 I would only reframe the statement that I make there 22

MR. THOMPSON: Sure.

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1 a little bit.

1

THE WITNESS: Let's keep rolling.

2

I wouldn't -- I wouldn't retract it. It

2

BY MR. McGILL:

3 would be ideal to know specifically at the end of the 3

Q. In paragraph 41 -- and we're nearing the

4 day, to call somebody on these gold standard studies 4 end of your report -- paragraph 41, you state that:

5 and say, okay, you had 12,000 and 6,000 were intact 5 When biological fatherhood and marriage are combined,

6 families, of that 6,000, how many were adopted, so

6 the research indicates that children tend to fare

7 that they could tell you 30, 60, a hundred. And

7 better, at least in part because married fathers tend

8 you'd know what kind of noise you were dealing with, 8 to have better relationships with the mothers of

9 but you still wouldn't throw the study out.

9 their children than fathers in marriage alternatives.

10

And I wouldn't throw out my conclusion. I 10

And for that proposition, you cite Nock's

11 would -- I would refine it, but I wouldn't throw it

11 1998 book.

12 out.

12

Do you know if Nock was referring to bio-

13

Q. Is there anything in Blackmon's statement

13 -- referred ever to biological fatherhood?

14 that for African American children, parental marriage 14

We're in paragraph 41.

15 produces important benefits?

15

A. In marriage alternatives.

16

Let's focus on that sentence.

16

Q. And I'm focused here on the phrase

17

A. Okay.

17 biological fatherhood.

18

Q. Is there anything in that sentence that

18

A. Biological.

19 would allow you to infer that a marriage of adoptive 19

I have read Nock's book in its entirety,

20 parents produces less importance benefits than

20 but it's been a while. Let me look at the statement

21 marriage of biological parents?

21 one more time, Mr. McGill.

22

A. No, I don't think so, from that sense.

22

Married fathers tend to have better

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Loren Dean Marks

Washington, DC

October 30, 2009

Page 198

Page 200

1 adjustment than the intact family?

1 it would seem right now that it would be likely that

2

MR. THOMPSON: Objection, compound.

2 the answer to that question would be the intact

3

A. Gay or lesbian --

3 family would have better child development outcomes.

4

BY MR. McGILL:

4 But we've got again, 2 or 3 studies, and I'm going to

5

Q. Let's break -- let's break it up.

5 be patient and see -- let the research speak its

6

A. Okay. Go ahead.

6 piece.

7

Q. Do you have an opinion as to whether

7

Again, as mentioned, I'm formulating.

8 the -- whether a married lesbian couple, let us say

8

Q. And are you -- in your answer, you are

9 they were married in Massachusetts, is as likely to

9 referring to a married lesbian couple?

10 produce good childhood adjustment, good child

10

A. That's -- it's a good question, because in

11 adjustment than the intact family?

11 terms of marriage, you want to talk about nascent,

12

MR. THOMPSON: And I'm going to object on 12 you know, and brand-new and budding. We're -- we're

13 the grounds that his rebuttal report may well address 13 having to deal, you know, in the research now almost

14 this, but I'm going to let him answer it subject to

14 solely to my knowledge in the same-sex parenting

15 the caveat that he's thinking about this and will be 15 literature with cohabiting couple -- or cohabiting

16 thinking hard about it over the next week and a half. 16 lesbian relationships or domestic partnerships.

17

But go ahead.

17

So there's -- in fact, I know of no -- no

18

BY MR. McGILL:

18 study that specifically addresses lesbian marriage

19

Q. If the answer is that you do not yet have

19 and child outcomes. Partnerships, yes, cohabiting,

20 an opinion formed, please give that answer, but if

20 yes, but marriage is -- marriage is brand-new.

21 you have an opinion, I'd like to hear it.

21

There may be a Massachusetts study coming

22

MR. THOMPSON: I'm just saying it's

22 out that I'm not aware of, but --

Page 199

Page 201

1 subject to the caveat that he may revise the opinion 1

Q. You cite in your report on a few occasions

2 or expand on the opinion, but it's the focus of

2 David Popenoe's book, here, Life Without Father.

3 ongoing research.

3

Are you familiar with this book?

4

But go ahead.

4

A. I am.

5

A. Intact lesbian married couple -- well, I

5

Q. Have you read it in its entirety?

6 mean, lesbian married couple compared with intact 6

A. I have.

7 marriage, my -- my read on the scholarly research is 7

Q. Are you familiar with Popenoe's argument

8 that as I mentioned, there have only been 1 or 2 --

8 that gender-differentiated parenting is essential for

9 perhaps another study or 2 that I'm unaware of that 9 good child outcomes?

10 have directly made that kind of a comparison, but 10

A. I am.

11 there are several that have compared lesbian mothers 11

Q. Do you agree with that argument?

12 to single-parent or single-mother families.

12

A. The research that I have read shows --

13

BY MR. McGILL:

13 shows mixed support I would say at best for that

14

Q. I guess I didn't -- I did not get out of

14 thesis of Dr. Popenoe's.

15 that whether you have an opinion or not.

15

There is some research that supports it.

16

A. The opinion that I have would be

16 There's some that would refute it, including

17 inferential based on the gold standard studies that 17 literature that I've read by Dr. Lamb.

18 I've referred to that indicate the intact families do 18

Q. So you did not rely on the theory most

19 substantially better across the critical concerns

19 famously espoused by Dr. Popenoe that

20 that I outlined in the research report than

20 gender-differentiated parenting is essential for good

21 single-mother or single-parent families do.

21 child outcomes?

22

By inference, cautious, careful inference,

22

You did not rely on that theory in

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Loren Dean Marks

Washington, DC

October 30, 2009

Page 202

Page 204

1 arriving at your conclusions?

1 and there are parenting activities that women can do

2

A. No.

2 that men are very unlikely to do. And I'm not

3

I use -- I don't know that any of the 6

3 talking about biologically, you know, obvious

4 critical concerns that I outline are

4 parenting activities, such as breast feeding, but his

5 gender-laden-oriented.

5 theory that men play with their children differently

6

I use biological intact parenting not of

6 and in a way that women do not, and women care for

7 my choice necessarily, because it's -- it's the

7 their children differently in a way that men do not.

8 phrase as we've seen that -- that Child Trends --

8

Is that general theory of parenting taken

9 that McLanahan and Sandefur use in assessing the

9 at its broadest level of generality -- is that at all

10 scholarship.

10 a basis for the conclusions you reach in your report?

11

It's not Popenoe influence.

11

A. That's -- that's not a theory that -- that

12

Q. Would it -- is it influenced by a theory

12 I espouse.

13 of the importance of gender-differentiated parenting 13

In terms of research, I think I mentioned

14 at all, whether -- as espoused by Popenoe or someone 14 earlier in the day that that's highly contested

15 else?

15 ground. It's highly contested ground, and frankly,

16

A. I don't -- let me think for a moment.

16 it's not a battle that I would fight either way.

17

One more time if you don't mind restating

17

I don't know that you'd say I'm agnostic

18 the question.

18 on the issue, but I've seen good scholarship from

19

Q. Do your conclusions in this case rely upon 19 both sides and I'm not ready to buy either theory.

20 the theory of gender-differentiated parenting and

20

Q. But importantly for this proceeding, it is

21 specifically the importance of gender-differentiated 21 not a basis for the conclusions in your report?

22 parenting to reaching good child outcomes at all,

22

A. It's not a basis for it, no.

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Page 205

1 whether as espoused by Popenoe or someone else? 1

Q. Okay. So the basis for your conclusion

2

A. Gender -- gender is usually defined as

2 that the intact family -- I just want to read it --

3 cultural as opposed to sex, which would be more

3

A. You bet.

4 biologically driven.

4

12?

5

In terms of gender-differentiated

5

MR. THOMPSON: 44, the conclusions.

6 parenting, I don't think I make any specific

6

BY MR. McGILL:

7 arguments that argue a whole lot about the cultural 7

Q. 44.

8 construct of gender. I'm dealing with sex, meaning 8

Your basis for the conclusion that the

9 intact, you know --

9 intact family is the ideal context for these child

10

Q. Right.

10 outcomes, the basis for your conclusion that the

11

A. -- biological father and biological

11 intact family is the ideal context for these child

12 mother.

12 outcomes is based on as I understand it 2 factors.

13

I don't -- I don't think that the report

13

One is the marital structure, and second

14 deals with gender differentiation specifically.

14 is the biological link between parents and children.

15 Frankly I felt the critical concerns that I listed

15

A. That's correct.

16 were more important, more salient.

16

Q. Are there other --

17

Q. So I want to just make sure I understand 17

MR. THOMPSON: Do you have anything to add

18 it.

18 to that?

19

Your -- you are -- you do not share the

19

THE WITNESS: No.

20 view relied upon by -- or espoused by Popenoe that 20

I'll continue to listen for a moment.

21 there are parenting activities that men can do that 21

MR. THOMPSON: Well, no, if you have more,

22 women cannot do and -- or are very unlikely to do, 22 because you don't know what he's going to say. So if

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Loren Dean Marks

Washington, DC

October 30, 2009

Page 274

Page 276

1

Do I impose it on others?

1

Q. So that belief predates your work as a

2

I believe in cleaning up my own backyard.

2 social scientist?

3

Q. And for clarity sake, the -- the dogma

3

A. Yes.

4 that you referred to just in your last response,

4

MR. McGILL: We'll take a 1- , 2-minute

5 that's known as the law of chastity.

5 break and find out if there are any last questions.

6

Correct?

6

MR. THOMPSON: Sound good.

7

A. That is correct.

7

THE VIDEOGRAPHER: We're going off the

8

Q. Did your religious convictions impact your

8 record. The time is now 6:09 PM.

9 opinion that the ideal family structure is marriage

9

(Recess.)

10 between man and a woman and a child biologically 10

THE VIDEOGRAPHER: The time is now 6:13

11 related to each in any way?

11 PM. You may proceed.

12

A. My exposure to -- to that -- that dogma

12

BY MR. McGILL:

13 I'm sure is one of many factors that -- that ran

13

Q. Dr. Marks, earlier in the deposition

14 around in my head.

14 today, we addressed paragraph 15 of your report,

15

But again I was called as an expert

15 which is marked as exhibit 2.

16 witness in the same sense that I wouldn't come in

16

A. Okay.

17 here and make my argument based on what's stated in 17

Q. Can you go back to that.

18 the family proclamation to the world. I took that

18

A. I'll try -- I'll try and get there

19 same approach in my scholarly -- my scholarly work. 19 quickly. Okay.

20

I think I've addressed again and again

20

Q. And addressing the last sentence: Wilcox

21 that I acknowledge potential for bias and that that

21 and colleagues state that teens living with both

22 makes challenge fair play. However, please remember 22 biological parents are significantly less likely to

Page 275

Page 277

1 my earlier statement that I also have taken upon me 1 illicit drugs alcohol and tobacco.

2 the burden of challenge. This is -- you know,

2

And you said that on reflection, having

3 scholarship is about strengths and challenges, not

3 reviewed with me the Johnson study, you would delete

4 just dogmatically presenting one.

4 the word biological.

5

Q. When is the first time you held the belief

5

A. Said, delete.

6 that the ideal family structure is marriage between a 6

I probably would have contextualized it

7 man and a woman and a child biologically related to 7 differently, added to it to make it accurate for the

8 each?

8 1996 study and more precisely consistent with 1996.

9

MR. THOMPSON: Objection, relevance.

9

Q. So you might have said, teens living with

10

A. Mr. McGill, I don't know. I don't know

10 both biological and adoptive families?

11 how to answer that question.

11

A. Including adoptive, yeah.

12

BY MR. McGILL:

12

Q. And my question, which is my very last

13

Q. Is it -- is it fair to say that you held

13 question, is, are there any other changes you would

14 that view, you held that belief before your

14 make to this report that you would -- or any words

15 engagement as an expert in this case?

15 you would like to delete before trial?

16

A. Yes.

16

A. No.

17

Q. Is it fair to say you held that belief

17

I would want to be more precise on the

18 before you received your Ph.D. degree?

18 definitions than I was in a couple of cases. It's

19

A. Yes.

19 the danger of large studies. I would want to be more

20

Q. Did you hold that belief before you

20 precise, but I stand behind the report as is.

21 graduated from college?

21

Q. Do you stand behind the -- do you

22

A. Yes.

22 recall -- excuse me -- do you recall when we went --

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Loren Dean Marks

Washington, DC

October 30, 2009

Page 278

Page 280

1 when we discussed the Rinkel and Langer report? 1

MR. McGILL: Thank you.

2

A. Yes.

2

As Melanie wrote to me, "you are done."

3

That was a natural -- or natural father

3

THE VIDEOGRAPHER: This concludes the

4 versus biological.

4 deposition of Dr. Loren Marks. The time is now 6:18

5

Correct?

5 PM. The total number of videotapes used were 7.

6

Q. It was -- you used biological --

6

Thank you.

7

A. And they used natural.

7

(Whereupon, at 6:18 p.m., the taking of

8

Q. -- but Rinkel and Langer studied natural

8 the instant deposition ceased.)

9 fathers, stepfathers, no father?

9

10

MR. THOMPSON: Surrogates.

10

11

A. And surrogates.

11

12

BY MR. McGILL:

12

_____________________________

13

Q. Which included stepfather.

13

Signature of the Witness

14

A. It included adopted under the natural --

14

15 or it was -- anyway, go ahead.

15 SUBSCRIBED AND SWORN to before me this _______ day of

16

Q. So my question is, would you change that? 16 _________________, 20________.

17

Would you change that use of biological

17

18 there?

18

19

A. Yes, I would be precise -- more precise. 19

_____________________________

20

Q. Do you recall when we went through the 20

Notary Public

21 Blackmon paper?

21

22

A. Yes.

22 My Commission Expires:________________

Page 279

Page 281

1

Q. And his use of parental marriage, that

1

CERTIFICATE OF COURT REPORTER

2 term?

2 UNITED STATES OF AMERICA )

3

A. (Nodding head.)

3 DISTRICT OF COLUMBIA )

4

Q. Would you change footnote 59 where you say 4

I, CHERYL A. LORD, the reporter before

5 that Blackmon was, quote, referring to marriage

5 whom the foregoing deposition was taken, do hereby

6 between the biological father and mother?

6 certify that the witness whose testimony appears in

7

A. I would make it more precise. And as a

7 the foregoing deposition was sworn by me; that the

8 blanket statement, I'd say I would list upfront what

8 testimony of said witness was taken by me in machine

9 I said orally, but not in writing, that some of these

9 shorthand and thereafter transcribed by

10 studies may included adoptive fathers -- or adoptive 10 computer-aided transcription; that said deposition is

11 with intact, cover it -- that would cover it.

11 a true record of the testimony given by said witness;

12

Q. Is there any use of biological in this

12 that I am neither counsel for, related to, nor

13 report that you are absolutely certain refers only to 13 employed by any of the parties to the action in which

14 children who are genetically related to their

14 this deposition was taken; and, further, that I am

15 parents?

15 not a relative or employee of any attorney or counsel

16

A. I would go back and put a statement

16 employed by the parties hereto, or financially or

17 upfront that says exactly what I just said, it would 17 otherwise interested in the outcome of this action.

18 include -- some of these studies include a very small 18

19 noise amount of adoptive families.

19

CHERYL A. LORD

20

I certainly wouldn't throw the studies out

20

Notary Public in and for

21 as indicated earlier, but I'd be more precise on --

21

the District of Columbia

22 on that.

22 My Commission expires April 30, 2011

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1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, ET. AL.,

Plaintiffs,

-v-

Case Number: 12-10285

RICHARD SNYDER, ET. AL.,

Defendants. ______________________________/

VOLUME 1 - AM SESSION

BENCH TRIAL BEFORE THE HONORABLE BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE 100 U. S. Courthouse & Federal Building
231 West Lafayette Boulevard West Detroit, Michigan 48226
TUESDAY, FEBRUARY 25, 2014

APPEARANCES: For the Plaintiffs:

Leslie Cooper, Esq. Carole M. Stanyar, Esq. Dana M. Nessel, Esq. Kenneth Mogill, Esq. Robert Sedler, Esq. Vicki L. Henry, Esq.

For the Defendants: Richard Snyder, Bill Schuette,

Tonya C. Jeter, Esq. Kristin M. Heyse, Esq. Joseph E. Potchen, Esq. Michelle Brya, Esq.

Lisa Brown

Beth M. Rivers, Esq. Andrea J. Johnson, Esq. Michael L. Pitt, Esq.

To Obtain Certified Transcript, Contact: JOAN L. MORGAN, OFFICIAL COURT REPORTER
734 812-2672 Proceedings recorded by mechanical stenography. Transcript produced by computer-assisted transcription.

2:12-cv-10285-BAF-MJH Doc # 143 Filed 03/13/14 Pg 2 of 149 Pg ID 3117

2

I N D E X

PAGE

Opening Statement on behalf of

Plaintiffs by Ms. Stanyar

3

Opening Statement on behalf of

Defendants, Richard Snyder

by Ms Heyse

38

Opening Statement on behalf of

Defendant Lisa Brown

by Mr. Pitt

50

W I T N E S S E S

David Brodzinsky, Ph.D.

Direct Examination by Ms. Stanyar

56

E X H I B I T S Plaintiff’s Exhibit No. 100

RECEIVED 106

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BENCH TRIAL - VOLUME 1 PART A

3

TUESDAY, FEBRUARY 25TH, 2014

1

Detroit, Michigan

2

Tuesday, February 25th, 2014

3

(At or about 9:15 a.m.)

4

(Excerpt of Proceedings.)

5

_

-- --- --

6

THE COURT: With everyone here, we’ll start with

7

the plaintiffs’ Opening Statement, please.

8

MS. STANYAR: Good morning, your Honor.

9

THE COURT: Good morning.

10

MS. STANYAR: This case is about marriage

11

equality, and it’s also about the well being of children.

12

We have a rare opportunity in this case to rid ourselves of

13

two laws that hurt so many people so deeply. And we have an

14

opportunity to help children, a lot of children, some of

15

the most vulnerable children in our society. I know that I

16

speak on behalf of my co-counsel that this is a privilege

17

and a honor to be standing here trying this case before you

18

today.

19

The Supreme Court recognized over 40 years ago

20

that the freedom to marry is one of the vital personal

21

rights essential to the orderly pursuit of happiness by

22

free men. Marriage is a coming together for better or

23

worse, hopefully enduring, and intimate to the degree to

24

being sacred.

25

We’re going to show you in this case through the

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BENCH TRIAL - VOLUME 1 PART A

4

TUESDAY, FEBRUARY 25TH, 2014

1

testimony that marriage is central to life in America. It

2

promotes mental, physical and emotional health. It provides

3

economic strength and security. And most important,

4

marriage brings stability to families. It helps children

5

immensely.

6

The adult plaintiffs are a loving couple, deeply

7

committed to each other. By all accounts they are wonderful

8

and caring parents, parents who have made unbelievable

9

sacrifices to bring these ailing, abandoned special-needs

10

children into their home.

11

Your Honor by now is very familiar with April and

12

Jayne and the children. The parties have actually entered

13

into a stipulation which respect to the facts. Their

14

character, their history is not in dispute. I’ll talk a

15

little bit more about them later.

16

Your Honor has framed the issues for us. We are

17

to focus on the rationales offered by State defendants, the

18

justifications advanced for these laws. Providing children

19

with biologically connected role models of both genders

20

that are necessary to foster healthy psychological

21

development; forestalling the unintended consequences that

22

would result from the redefinition of marriage, tradition

23

or morality; and promoting the transition of naturally

24

procreated relationships into stable unions.

25

We’ll be addressing numbers two, three, and four

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BENCH TRIAL - VOLUME 1 PART A

5

TUESDAY, FEBRUARY 25TH, 2014

1

with our marriage historian witness, Professor Nancy Cott.

2

Her qualifications, she is a leading expert in the country

3

on the history of marriage. Her book, “Public Vows” is a

4

textbook reading in any college or graduate school on the

5

history of marriage. She testified in the Perry trial in

6

California. She was qualified as an expert. Her testimony

7

was credited.

8

First, she’ll explain that marriage is a civil

9

institution. She will testify that in the United States

10

marriage is created, authorized and regulated by the

11

government. While different faiths have their own religious

12

rights of marriage, and religious figures can officiate

13

civil ceremonies it is the civil law that determines the

14

legal validity of marriage.

15

Even today marriage is tied to citizenship. You

16

are not married under the law without a government marriage

17

license. She’ll talk about the underlying purposes of

18

marriage over the course of history. Historically, marriage

19

was used as a vehicle to govern the population. It provided

20

more or less a chain of command for the government to

21

control the population. The husband was the head of the

22

household, followed by his wife, the children, their

23

relatives, all the way down in olden times to the slaves.

24

A related historical purpose, the economic public

25

order rationale: marriage created economic financial

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obligations between the spouses. It obligates the husband

2

and later the wife to support their dependence in each

3

other.

4

The State defendants offer rationale number four

5

to justify the Michigan Marriage Amendment but Professor

6

Cott will explain that marriage has never required the

7

ability or willingness to procreate. And here she’ll tell

8

you about an important distinction: an inability to engage

9

in sexual intimacy can be a reason to annul marriage in

10

some states. But the ability to procreate has not been a

11

prerequisite to marriage in any state. People well beyond

12

child-bearing years can enter into marriages. People in

13

prison for life can marry.

14

She will describe the evolution of marriage in

15

this country. She will explain that there is no single

16

definition of marriage across history. There’s no single

17

tradition of marriage across history.

18

In the area of gender, historically laws were

19

based upon a legal fiction that marriage was a legal unit.

20

The husband was the sole legal, economic and political

21

representative. A wife’s identity was absorbed into or

22

covered by the husband, hence, the word “coverture.”

23

The wife was kind of irrelevant. Legally, there

24

was no such thing as no-fault divorce. Men were legally

25

prohibited from abandoning wives because wives were

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dependent and subordinate to husbands.

2

Also in the area of race, there’s been an

3

evolving tradition. Slavery. African Americans were seen as

4

the property of the slave owner. They could be bought and

5

sold and their marriage got in the way of that. So slaves

6

historically were not allowed to marry. African Americans,

7

therefore, were excluded from the definition of marriage in

8

this country.

9

Interracial marriage. In the past, laws

10

prohibited the blending of races based upon notions of

11

white supremacy. A black man could not marry a

12

Caucasian woman. Other laws prevented interracial marriages

13

between Chinese people, Indian people, and Caucasian

14

people.

15

Professor Cott will explain that marriage

16

evolved. Traditions changed. Discriminatory practices were

17

struck down at times by federal courts most often under the

18

Equal Protection Clause. Women became equal to their

19

husbands in the eyes of the law. Coverture laws were

20

repealed. Along came no-fault divorce. Women entered the

21

work force, became financially independent. Marriage is now

22

an equal gender neutral partnership with each party having

23

the same rights and obligations to each other and to

24

society.

25

The definition of marriage changed again once

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slavery was abolished. Loving versus Virginia did away with

2

the ban on interracial marriages.

3

We will be responding to the State’s rationales

4

in this case for the two laws that we challenge. In past

5

briefing we’ve already shown you that based upon Supreme

6

Court precedent that tradition and morality cannot be used

7

as justifications for the disparate treatment of United

8

States citizens.

9

Laws can be based upon notions of morality, for

10

example, there can be no liquor sales before noon on a

11

Sunday, but they cannot under the Constitution have a

12

disparate impact on a disfavored minority.

13

As to rationale number -- that would be two,

14

throughout history in a series of Supreme Court cases the

15

state threatened that dire, quote, “unintended consequences

16

would result from the redefinition of marriage.”

17

That didn’t happen. The laws were struck down as

18

discriminatory. Loving versus Virginia the Supreme Court

19

struck down the interracial marriage ban not just based on

20

race but because marriage is a fundamental right. Loving

21

brought us more freedom to marry the person we love. It

22

brought us beautiful blended babies. The institution of

23

marriage did not suffer one bit.

24

We will be refuting the State’s other arguments

25

in this case, that is, that only a heterosexual marriage

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will promote the transition of naturally procreative

2

relationships into stable unions, and that the marriage ban

3

promotes the ideal -- what the State calls the ideal

4

mother-father intact family.

5

First of all, we’re going to show you in this

6

case that same-sex marriage in other states has had no

7

affect whatsoever on heterosexual marriage. Secondly, these

8

marriage bans are not having any affect on heterosexual

9

procreating decision-making.

10

Straight people are doing what they’ve always

11

done. They’re getting married or not. They’re having

12

children, or not. Their behavior is not affected by what

13

gay people are doing. There’s no correlation, there’s no

14

link here.

15

Even more importantly, not allowing marriage is

16

not preventing same-sex couples from having and raising

17

children. Evidence from the United States census -- we’re

18

going to introduce through Gary Gates -- shows that same-

19

sex couples are having families with children in all states

20

whether or not they’re allowed to be married in those

21

states.

22

The children are there. The families are there.

23

The laws aren’t deterring the parents, they’re hurting the

24

families. So these rationales don’t make sense and they

25

don’t pass rational basis.

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In response to our briefing on marriage law, in

2

response to the testimony of Professor Cott the State

3

offers the testimony of Sherif Girgis. Mr. Girgis hopes to

4

be a lawyer some day. He has never testified as an expert

5

before. He has no advanced degree in any field that matters

6

in this case, psychology, sociology, demography, history.

7

He is a philosopher. He’s testifying apparently because he

8

has an opinion.

9

According to Mr. Girgis, the purpose of marriage

10

is procreation and procreation only. All that language from

11

the Supreme Court that I quoted earlier, a sacred intimate

12

bond, marriage as a means of emotional security, physical

13

well being, economic stability, none of that matters to Mr.

14

Girgis, only procreation.

15

From our pretrial briefing the Court is already

16

aware of our concerns about the admissibility of his

17

testimony. We also contend that little weight should be

18

afforded his testimony. We believe that Professor Cott is

19

the far more credible and qualified witness in this case.

20

The child outcome rationales: The bulk of the

21

trial testimony will address these rationales: Primarily

22

providing children with a biologically connected role

23

models of both genders that are necessary to foster

24

healthy, psychological development. And to a lesser extent

25

this will also touch on number two, forestalling the

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unintended consequences that would result from the

2

redefinition of marriage.

3

We will be introducing you or re-introducing you

4

to the families headed by same-sex couples in America.

5

They’re demographics, who they are, where they are. We’ll

6

look at the parents. We’ll look at the children. And we’ll

7

talk about the large percentage of children adopted from

8

the foster care system by lesbians and gay men because this

9

is a crucial fact it this case. Foster care prior to

10

adoption has a big affect on child outcomes. We’ll bring

11

you some of the leading experts in the country in areas of

12

psychology, sociology, statistics, demography. Expert

13

testimony and adoption, same-sex parenting, child

14

development.

15

We’re going to try to come at this from all

16

angles. This is an important discussion. This Court wanted

17

a trial to look at this rationale in particular I believe.

18

You told us you wanted and needed to assess the credibility

19

of these expert witnesses. We really hope that here in this

20

courtroom we can resolve once and for all the question of

21

whether or not gay and lesbian people can make good

22

parents. Not just for the sake of April and Jayne and the

23

children but for same-sex parents and their children across

24

Michigan, across the country. We want to be thorough. We

25

would like this to be the last trial in America where same-

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sex parents will have to defend themselves this way.

2

We’ll look at things that affect child outcomes.

3

What makes a good parent? When do children thrive?

4

The answer to that question comes from 50 years

5

of social science research. That research crosses the

6

social science field. There is a broad consensus about the

7

factors that predict positive adjustment in children.

8

Family processes, family resources. The quality of the

9

relationship between the parents. The quality of the

10

parent-child attachment, the parent-child relationship,

11

parenting characteristics, warmth, empathy, sensitivity to

12

the child’s needs, educational opportunities for the child,

13

resources and support available to the family, and the good

14

mental health of the parents.

15

These factors are all well-known within the

16

social science community. These families have been -- these

17

factors have been studied as to all family forum. Single

18

parent families, adopted families, divorced parent families

19

and the same-sex couple families. We know very well what

20

makes a good parent and what makes for good child outcomes.

21

The State defendants claim here that a child

22

needs a parent of both genders in order to thrive. This is

23

an odd argument because Michigan allows single parents to

24

adopt. Nevertheless, we’re going to present expert

25

testimony in this case from psychologist, David Brodzinsky.

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He’s a leading expert in the country in the areas of child

2

development, adoption and child outcomes, parenting by gay

3

and lesbian couples. He’s a professor, a researcher, a

4

clinician and almost most importantly he has counseled

5

thousands of families including families headed by same-sex

6

couples and he’s counseled their children as well. He’s

7

also an author. He’s written the leading book on parenting

8

by gay and lesbian couples. He’s conducted studies through

9

his institute, the Donaldson Adoption Institute.

10

He’s also testified in marriage and adoption

11

cases in other states. He’ll explain that while it may be a

12

popular belief that children must have both a mother and a

13

father in order to function well children actually thrive

14

equally well when they have two moms, when they have two

15

dads.

16

Doctor Brodzinsky is going to explain that in

17

heterosexual families, for example, mothers and fathers do

18

sometimes adopt different parenting styles. But he’ll

19

explain there’s lots of variations in all families. He’s

20

going to explain that parenting style is most often more a

21

function of whether the parent is the primary as oppose to

22

the secondary parent. A stay-at-home dad is going to look

23

different than an Ozzie Harriet dad in terms of gender role

24

modeling, and there’s no one single correct gender modeling

25

style. Children do generally well no matter what style

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their parents adopt.

2

Doctor Brodzinsky is going to explain that moms

3

and dads are both important to children, but they’re

4

important as parents. Two parents bring double the resource

5

to the family. He will explain that this all goes back to

6

the factors we talked about earlier, family process and

7

especially family resource. Two parents bring more

8

resources to the family.

9

The State defendants really take two positions on

10

whether or not the children of gay and lesbian parents have

11

worse outcomes than the children of heterosexual parents.

12

The first position and expounded by Dr. Loren Marks. His

13

position is that we just don’t know enough yet. According

14

to Dr. Marks same-sex parenting is too new, the research is

15

too nascent. According to Dr. Marks -- he says the studies

16

aren’t the right type of studies.

17

The second position is a little different. The

18

State defendants’ experts Mark Regnerus, Douglas Allen and

19

Joseph Price is that academic and various other outcomes

20

for the children of same-sex parents are worse. They claim

21

that the research demonstrates that these outcomes are

22

worse.

23

What you’re going to see in this case is that

24

neither of these positions are correct. The evidence in

25

this case is going to show that there are now 30 years of

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research, well over a hundred studies, nearly 150 studies,

2

and a broad base consensus across the social science

3

community that children raised by same-sex couples do every

4

bit as well as children raised by heterosexual parents.

5

These families have been researched from every

6

angle. We’ve researched the parents. There’s an abundance

7

of research and studies regarding parents looking at their

8

parenting ability, their commitment to children, how they

9

parent. There’s research, an abundance of research and

10

studies evaluating children, showing their adjustment,

11

their psychological well being, behavioral issues, peer

12

relationship, and their educational attainment. These

13

studies have found that gay and lesbian parents are equally

14

capable, equally committed to their children in comparison

15

with heterosexual counterparts. And the children of same-

16

sex parents fair no differently than their peers.

17

We’re going to look a lot at methodology in this

18

case. The studies first used different methodologies to

19

recruit their subject. Many you’re going to hear of these

20

100 -- 150 studies use convenient samples. This is very,

21

very typical of psychological research. You take a smaller

22

study group. You measure them and assess them more deeply.

23

Other studies have used representative samples. You take a

24

large data set like the U.S. Census. You look across the

25

population and then you pull out your sample subjects.

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These studies also use different methods of

2

assessment: observing the children, observing the parents,

3

talking to their teachers, standardized testing. The

4

studies are diverse in terms of the length of the study

5

period. There have been some longitudinal studies which are

6

studies obviously over time and there have been cross-

7

sectional studies.

8

For example, research will take seventh graders

9

all across the country at one fixed point in time and

10

measure a specific outcome. That’s a cross-sectional study.

11

The evidence is going to show that the research

12

has been conducted primarily by psychologists. That’s

13

because psychologists study child development. The State

14

defendants in this case are not going to be introducing an

15

expert psychologist in this case.

16

On the question of methodology the defendants’

17

expert, Loren Marks, will basically be criticizing the

18

standard bread and butter methodology of psychology. It’s

19

an indictment of the field of psychology. His view is that

20

we can’t know definitely about the outcomes of children, of

21

same-sex parents unless we have a large representative

22

randomly sample longitudinal study that will span,

23

according to him, some 20, 30, 40 years before we can

24

answer this question and move on. But there have already

25

been over 100 studies over the course of 30 years. And we

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have research at all ages. We have research on young

2

children. We have research on adolescents. We have research

3

on young adults.

4

Doctor Brodzinsky will explain that the

5

replication of results over time in different studies using

6

different methods assure us of reliability particularly

7

where the studies come to a near universal conclusion that

8

there’s no difference between the outcomes for children of

9

same-sex parents and the outcomes for heterosexual parents.

10

That finding is sometimes referred to as the “No Difference

11

Conclusion.”

12

Secondly, psychologists and social science

13

researchers know the predictors of good and bad outcomes

14

for all children. Psychologists have been studying known

15

predictors of children for 50 years. Children are children.

16

If they are going to have problems they don’t just start to

17

have problems in their 20s and 30s. There are certain known

18

predictors earlier in childhood that will tell us whether

19

or not there’s a tendency or a correlation to worse

20

outcomes later on.

21

The standard predictors of child behavior all

22

look good for the children of same-sex parents. Beyond that

23

there is a consensus across the social science community.

24

This “No Difference Conclusion” is supported by a

25

consensus. It’s recognized by every major group in this

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country dedicated to children’s health and well being. The

2

American Psychological Association, the American Academy of

3

Pediatrics, the American Psychiatric Association, the

4

American Medical Association, the American Academy of Child

5

and Adolescence Psychiatry, and the National Association of

6

Social Workers, and the Child Welfare League of America.

7

All of these professional organizations in various forms

8

using various languages have issued policy statements on

9

the subject of same-sex parents and the well being of their

10

children. And they all say essentially the same thing.

11

Here’s the language from the American

12

Psychological Association. This was passed back in -- we’ve

13

known this since 2004, I believe, or 2005.

14

“There’s no scientific basis for concluding that

15

lesbian mothers and gay fathers are unfit parents on the

16

basis of their sexual orientation. Overall, the results of

17

the research suggest that development, adjustment, and well

18

being of children with lesbian and gay parents do not

19

differ markedly than that of children raised by

20

heterosexual parents.”

21

The State also contends that children need a

22

biological mother and father in order to thrive. This is

23

another odd argument because Michigan does not require a

24

biological tie between parent and child. Like every other

25

state Michigan has a very robust policy in favor of

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adoption.

2

In any event, this argument is going to lead us

3

in this trial to a little more detailed discussion that is

4

necessary in this case about the affects of adoption, the

5

affects of foster care placement prior to adoption, the

6

affects of artificial reproductive technologies on the

7

outcome of children.

8

Professor Brodzinsky is going to explain that

9

when you’re talking about adoption whether it be by

10

heterosexuals or by same-sex couples most children do fine.

11

Adoption has been a tremendously successful social policy.

12

We’re rescuing children from parents who abandon, abuse and

13

neglect them, helping children of deceased parents, and we

14

give them to competent caring parents who want them like

15

Jayne and April. It’s been an enormous success, far

16

superior to what we were using in the past, the orphanages.

17

And there’s been a huge cost savings to the State on top of

18

that.

19

But Dr. Brodzinsky will explain however that

20

there is a statistically significant percentage of these

21

children who will have some problems with adjustment, all

22

adoptive children. He says most do very well, but some have

23

problems and some of those problems will pass over time.

24

You might see children have problems in elementary school

25

that are gone by high school. Some of the problems persist.

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Doctor Brodzinsky is going to explain that we

2

know what causes poor outcomes on children, on average in

3

adoptive children. There’s two categories.

4

Prenatal experience. Under this category you may

5

see the lack of prenatal care that comes with poverty, poor

6

nutrition for the birth mothers, drug exposure, substance

7

abuse. These are high stress pregnancies. We know that at

8

the end of the pregnancy the mother is giving up her child

9

so there’s a lot of stress associated with the pregnancies

10

of these women turning their children over to adoption.

11

Postnatal experience. That’s the time obviously

12

post birth but before they’re placed with their adoptive

13

parents. They may have problems again with their birth

14

parents. There might be abuse and neglect. They might have

15

a failure to thrive. There might be nutrition problems.

16

Many have problems related to their stay depending on how

17

long it is they are in foster care. Many children have a

18

series of foster placement. With those children you will

19

have a higher percentage of problems having to do with

20

attachment, for example.

21

Our witnesses in this case are going to make a

22

very important point here. Same-sex couples are more likely

23

to adopt these harder children, special needs children than

24

straight couples. Same-sex couples are more likely to adopt

25

from the foster care system that straight couples. If you

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put all this together we know that the children most at

2

risk for these pre-adoption risk factors they are the

3

children that gay and lesbian people are more likely to

4

adopt.

5

On the flip side, if you take children adopted at

6

birth by all families, heterosexual families, same-sex

7

families, children raised from birth to age 18 by same-sex

8

parents, the intact family, the adjustments are very

9

similar to what the state is touting as the ideal

10

biological mother-father family. Adoptive parents are every

11

bit as good as biological parents.

12

There are studies that show they have some real

13

advantages over even birth parents. They tend to be more

14

educated, they have higher incomes. These are planned

15

families. The children are fairly all wanted.

16

So Dr. Brodzinsky is going to conclude that

17

biology is not the controlling factor here. To the extent

18

there is some difference in maladjustment in adoptive

19

children it is caused by other factors not by their

20

parenting, not by the orientation of the parents.

21

He’s going to define some concepts for us that I

22

have -- many of us were not aware of. But maladjustment

23

obviously usually means adjustment that requires

24

therapeutic intervention. Doctor Brodzinsky is going to

25

distinguish that from a normative challenge and he’s going

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to distinguish that from a difference that doesn’t qualify

2

as maladjustment.

3

An example of a normative challenge in adoptive

4

children. They may have challenges relating to questions of

5

identity, who are my parents, who is my father, a sense of

6

loss why didn’t my parents keep me. And bi-racial adoptions

7

as well where the parents are white and the children are

8

African American or vice-versa. You may have normative

9

challenges associated with that. None of these factors are

10

considered maladjustment in the field of psychology.

11

They’re considered normative challenge. Good parents

12

address those issues. They help the children through it.

13

They don’t lead to adjustment problems.

14

An example of a difference that’s not

15

maladjustment. The children of same-sex couples and there’s

16

been studies on this, are more tolerant of difference.

17

Differences in race, differences in ethnicity, culture.

18

You’re not going to see the kids on the playground hurling

19

racial slurs at each other. They’re less likely to be

20

bigoted people. These children also typically don’t hold

21

rigid views of gender modeling that a wife has to do “X” or

22

a husband has to do “Y.” This isn’t maladjustment, it’s

23

just difference, and it’s differences that the researches

24

that you see in the children of same-sex parents.

25

In this case I think all of the experts are going

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to talk about others types of families that on average

2

don’t do as well. The experts on both sides are going to

3

talk about step-families. The step-family experience is

4

correlated with worse outcomes for children.

5

Coming from divorce families. This is well-known

6

that some children of divorce families struggle more often.

7

We don’t mean all children of divorce, but there is a

8

statistically significant percentage. These factors are

9

relevant here and they come into play when you’re talking

10

about the studies, when you’re talking about the research

11

and what it really shows because the experts are going to

12

be attacking the consensus that we talked about earlier.

13

For example, the State defendants offered the

14

testimony of Mark Regneris. He’s a sociology professor

15

regarding his study from a large data set called the New

16

Family Structure Survey, the NFSS.

17

The most important thing you can say about Dr.

18

Regneris’ study is that it didn’t really evaluate the

19

adjustment outcomes for children raised by same-sex

20

parents. He didn’t do an apples-to-apples comparison. In

21

one comparison group Mark Regneris puts what the State

22

considers the ideal family. Biological mother-father,

23

raising the child from birth to 18, the intact family.

24

That’s the first category. There’s no step families in

25

there. There’s no children of single parent families in

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there, no divorce families in there.

2

In the other group we don’t have same-sex couples

3

raising children from birth to 18. Instead we have a miss-

4

match category that includes basically any child who

5

reports that one of their parents at some time had a same-

6

sex relationship at some point during the respondent’s

7

childhood. So they’re not same-sex couples, this category

8

based upon this definition.

9

So he’s comparing the ideal category with this

10

other category that includes children of divorced parents,

11

the children of step families. It’s not an apples-to-apples

12

comparison. It’s not a fair comparison. And it’s not good

13

science.

14

Including children of divorce, children of step

15

families in the same-sex parents group skews the research.

16

Our experts are going to call this the failure to control

17

for family instability. There are many other studies --

18

many other problems with that study which we’re going to

19

lay out through another one of our witnesses.

20

You’re going to be hearing from Professor Michael

21

Rosenfeld, from Stanford University. He’s our witness. He’s

22

a sociologist -- experts from both sides will acknowledge

23

he’s a highly regarded, highly respected social scientist

24

and scholar. Doctor Loren Marks who is there expert has

25

said that Michael Rosenfeld has produced one of the gold

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standard studies in the field.

2

Rosenfeld generated the study regarding academic

3

achievement based upon the United States Census. His study

4

is a large representative study which finds that children

5

of same-sex parents fair just as well. In addition,

6

Professor Rosenfeld takes the same NFSS data set that Mark

7

Regnerus is using and when he controls for family stability

8

he finds that the children in the other group, that is, the

9

children who reported that they had a parent who had

10

engaged in a same-sex relationship they didn’t fair any

11

worse than the children of heterosexual couples.

12

In other words, when you take out a factor known

13

to cause worst outcome: instability. When you’re left with

14

same-sex parents actually raising children together the

15

adjustment problems are no different for the two groups.

16

Mark Regnerus has acknowledged that when his NFSS

17

study came out it was widely condemned in the social

18

science community. He admits -- or he admitted during his

19

deposition that he was pretty stunned by the negative

20

outcry. You’ll see that there is a consensus going in the

21

other direction away from Mark Regnerus. His professional

22

peers don’t agree with him at all. In fact, the same

23

journals, social science research, which published his

24

study in the first place immediately turned around and

25

published an audit of his findings that was highly

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critical. We contend this is relevant to his credibility.

2

It’s relevant to the weight that this Court if it admits it

3

should afford his testimony, and it’s relevant under the

4

Daubert analysis that is ongoing because we’re running the

5

two together.

6

Two other experts I’ll talk about briefly. The

7

State will present Douglas Allen and Joseph Price, both

8

sociologists. I put them in the same group because they

9

both wrote an article together, but in addition Douglas

10

Allen did a study based upon data from the Canadian Census.

11

Allen claims that his study shows poorer

12

graduation rates by kids in same-sex couple families. But

13

here we don’t even know if the children were raised in

14

same-sex couple families for the bulk of their lives.

15

Doctor Rosenfeld, our expert, will explain and

16

rebut his findings. He will tell you that this is another

17

case of not isolating for the factor that you’re trying to

18

study. It’s another case of not having the apples-to-apples

19

comparison.

20

When Rosenfeld used the same data as Douglas

21

Allen, when he controls for the factor of family

22

instability again the differences in outcome disappears for

23

the children of same-sex couples. For most of the subjects

24

in Allen’s study you don’t know where the children lived

25

for most of their school years. So he took them -- I think

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it was 2006, but for a 17 year old you don’t know where the

2

child lived from birth to age 12. For a 22 year old, that’s

3

the age span he measured, 17 to 22 year olds, you don’t

4

know where that child lived from birth to 17. So basically

5

it’s a whole childhood.

6

There’s a third study that the State defendants

7

will be relying on. There’s an Australian researcher named

8

Sarantakos. His study is being relied on by Loren Marks so

9

I will address that.

10

Sarantakos, like the other defendants’ experts,

11

claims that he saw poor primary school performance and

12

other social outcomes among children of same-sex couples

13

compared to children of heterosexual couples. Again, we see

14

the same problems, not an apples-to-apples comparison. And

15

what you see in Sarantakos’ study is that all of the

16

children in the study were the product of a prior

17

relationship, and most often that was a prior heterosexual

18

relationship that failed. Therefore, the parents had

19

experienced -- the children had experienced a breakup of

20

their parents or they experienced single parenthood, also a

21

risk factor, or both. And we know that these circumstances

22

are associated with poor outcomes.

23

Now, there’s an analogy that works for me and I

24

hope it will help you as you listen to this kind of complex

25

testimony. And my apologies in advance, this is coming from

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a person who has attended way too many child sporting

2

events.

3

Let’s say we’re a track meet. We’ll put eight

4

kids on the starting line of a 100-meter dash. Now, we’ll

5

take one of those kids and we’re going to start him 20

6

yards back from the starting line. We’ll take that same

7

child and we’ll have just him carry the juice boxes and the

8

oranges and maybe the First Aid kit, and then we’ll let

9

them all race. And we’re wondering why they don’t all

10

finish at the same time. It’s not that complicated. It’s a

11

not a fair competition. These children, the foster kids,

12

the children raised by single parents, the children of

13

divorce, the step children, they’re not playing on a level

14

playing field, and yet we’re faulting them for not

15

thriving, and we’re blaming their parents.

16

I think this underscores we’re going to show in

17

this case a fundamental flaw in the State’s ostrich

18

approach to the research.

19

Assessing based upon outcomes alone especially

20

under the Allen study, for example, where he just zones in

21

on high school graduation rates has real limitations. The

22

State witnesses are also preoccupied with what we would

23

consider a minuscule portion of this board based research.

24

All of the State studies suffer from huge flaws in

25

methodology which we’re going to point out. And all of them

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conflict with the broad body of research. We have 100 to

2

150 studies spanning 30 years measuring everything to tell

3

us more. It tells us what we need to know here. It tells

4

you everything that you need to know to decide this case,

5

Judge. That’s the research I think that will be most

6

helpful to you.

7

At this point I want to do a little detour out of

8

the child outcome research to the history of discrimination

9

before I turn back to some final points about same-sex

10

parents.

11

We have presented a stipulation which admits into

12

evidence the expert witness report of Professor George

13

Chauncey. He talks about the history of discrimination, the

14

history of disparate treatment of gay and lesbian people in

15

this country. He explains that gay and lesbian people have

16

been classified in this nation as degenerates. They have

17

been the victims of hate crimes. They were targeted by

18

police, harassed in the workplace, censored, demised,

19

barred from government jobs, fired from government jobs,

20

excluded from our armed forces. And up until 2003, they

21

could be arrested in this country for their private,

22

intimate sexual conduct up until Lawrence versus Texas was

23

decided by the Supreme Court.

24

Professor Chauncey will tell us that lesbian and

25

gay people live the legacy of discrimination even today.

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They have been repeatedly stripped of their fundamental

2

rights by popular vote. Forty states have enacted marriage

3

bans.

4

The State defendants defend these laws saying

5

they just reflect the traditional definition of marriage.

6

This is the way we’ve always done it, therefore, it’s

7

justified. But Professor Chauncey explains in his report

8

that this, quote “tradition is nothing more than an

9

extension of the pattern of discrimination against same-sex

10

couples.” He will explain that there has been some progress

11

and we have seen it mostly in states other than Michigan.

12

But even then with the progress there’s been backlash.

13

Over the course of history, Dr. Chauncey

14

explains, “anti-gay laws often were passed or enacted in

15

response to periods of relative growth in the visibility or

16

tolerance of gay people.”

17

He’ll explain that in November of 2003, the

18

Supreme Court of Massachusetts was the first to uphold

19

marital rights for same-sex couples. In the very next

20

election cycle in Michigan came the backlash. November of

21

2004, was when the Michigan Marriage Amendment was passed.

22

Through Professor Chauncey, we will show that the

23

passage of the marriage ban here has to be viewed on the

24

context of a larger, pervasive, relentless history of

25

discrimination against gay and lesbian people in this

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country. Our marriage ban did not happen in a vacuum. This

2

Court said in its order “when there is a history of

3

disparate treatment against an unpopular minority a more

4

exacting forum of scrutiny is required.” Well, if it looks

5

like a duck, and walks like a duck it’s probably a duck.

6

We will be asking you to conclude at the end of

7

this case that the proponents of the marriage ban fully

8

intended to exclude this politically unpopular group from

9

the rights and benefits of marriage.

10

THE COURT: His testimony will be by his report,

11

he will not be testifying?

12

MS. STANYAR: That’s correct, Judge.

13

THE COURT: Okay. And what exhibit is that, just

14

so -- if you know. We can get it later.

15

MS. STANYAR: It’s 51, but we’ll get you that.

16

The language of our ban is identical to the

17

federal DOMA statute struck down in Windsor. The intent was

18

the same. This is discrimination.

19

We’re going to be asking you in this case to look

20

at how the history of discrimination interacts with the

21

research, how it interacts with the history of these

22

families generally and child outcomes more specifically.

23

How all of this comes together.

24

Thirty years ago, your Honor, very few people in

25

America were living openly out of the closet as gay or

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lesbian. In the 1907s, 1980s, most people including gay

2

people still believed that orientation, sexual orientation

3

was a choice. And very few people back then would choose to

4

be a, quote, “homosexual.” In the face of that kind of

5

discrimination, that kind of stigma, that kind of abuse,

6

gay and lesbian people were not living openly with

7

partners, and far fewer were participating in planned same-

8

sex families 30 years ago.

9

Adoption by same-sex couples. There were some,

10

but they weren’t happening much. Most states didn’t allow

11

them. Artificial reproductive technologies for lesbians and

12

gay men really weren’t happening back then either.

13

We’ll hear testimony in this case there certainly

14

were gay and lesbian people. They were always there. Gary

15

Gates is going explain the demographics. A predicable

16

consistent percentage of the population both then and now.

17

But back then in the face of that kind of discrimination

18

most lesbians and some gay men were trying to live straight

19

lives. Like a lot other people they were inspiring. They

20

wanted the State’s ideal family, too. They wanted the

21

picket fence, the children. They wanted an intact family.

22

Many lesbians and gay men were trying to function in

23

heterosexual marriages. Predictably it didn’t work. You

24

can’t choose your orientation. Now we know that, didn’t

25

then.

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We’ll be showing you how this unique history

2

relates to the child outcome research. Those marriages

3

failed. They were doomed to fail. The children of those

4

marriages would struggle the way of the children of divorce

5

may struggle as well. That means that the children of gay

6

men and lesbians born initially into mother-father families

7

during that particular time period, ‘70s, ‘80s some of the

8

‘90s will be associated with the predictably higher

9

percentage of adjustment problems. Those men and women

10

eventually did come out of the closet, most of them. They

11

are the men and women in these studies that you’re going to

12

hearing about.

13

But we’ll show you how -- we have to look at that

14

and how it impacts the child outcome research. We’ll show

15

in this case unless we’re careful that history that I just

16

talked about will skew the research. With the passage of

17

time and this is the good news fewer and fewer lesbian and

18

gay men were trying those starter marriages and far fewer

19

today.

20

But the discrimination was still there. It is

21

still here, but with each passing year there was a growing

22

awareness by these men and women that sexual orientation is

23

not a choice.

24

We’re going to ask the Court to peel back the

25

layers, the layers of history, the layers of

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discrimination, the layers of the research. And at the end,

2

we’ll ask you to find that the best way to know how

3

children will fair, if they are raised by same-sex couples,

4

is to look at the children actually raised by same-sex

5

couples. Look at their parenting. Look at the children and

6

judge them fairly.

7

One last point on the child outcome rationale,

8

we’ve mentioned before, I’d like to mention it again

9

because it is important. No other group in society has to

10

pass a parenting competency test before they’re allowed to

11

marry, before they’re allowed legal status as second

12

adoptive parents.

13

You’ll hear testimony that there are groups of

14

parents in society that we know have children with poor

15

outcomes on average. Parents who have low incomes. Parents

16

with lower educational levels. Parents who marry, have

17

children, get divorced and want to marry again. There’s no

18

competency tests for these parents. But we don’t bar them

19

from marriage. We don’t bar them adopting as second

20

parents. So that’s an additional reason that these laws are

21

affirmatively irrational.

22

Briefly on injury under 1983, through a

23

combination of briefing and testimony we will demonstrate

24

to the Court the injuries cognizable under Section 1983.

25

Over the past two years we have briefed for this Court the

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loss of important economic resources, the loss of health

2

insurance, social security and disability benefits, the

3

loss of survivors’ benefits, inheritance rights, many

4

others associated with the marriage ban. So part of the

5

injury here is clearly economic and we know that already.

6

We know from the family resource factors that we

7

talked about at the beginning at adequate resources, family

8

resources are necessary for children to thrive. A lack of

9

resources hurts children.

10

Doctor Brodzinsky will also talk about the

11

psychological injury to children caused by both of these

12

laws. Marriage ban, the same-sex -- the second parent

13

adoption ban. He will explain that no matter how competent,

14

how loving, how devoted, how caring that second parent is

15

from the child’s perspective some children will suffer from

16

what he calls an ambiguous socially unrecognized seemingly

17

non-permanent relationship with that second parent. He’ll

18

tell us that such an arrangement can deprive the child of

19

emotional security, societal affirmations, a sense of

20

normality, identity, and social stability that becomes a

21

full legal relationship with that second parent. They can

22

suffer unnecessary fear, anxiety, insecurity relating to

23

possible separation from the second parent in the event of

24

the parent separation or the death of the biological or

25

adoptive parent.

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We offer this evidence because, first of all,

2

it’s clearly relevant to injury, and we’re entitled to show

3

this. We offer it also because it interconnects with the

4

State’s child outcome rationale.

5

All the experts will tell you that families

6

benefit by the stability that marriage brings. Children

7

thrive when there’s stability.

8

Another generation of Michigan’s children should

9

not have to await the perfect longitudinal study before

10

they have rights, before they can enjoy stability, before

11

they can really count on that second parent.

12

These two laws in tandem perpetuate

13

discrimination. The marriage ban singles out gay and

14

lesbian people alone for the exclusion from the institution

15

of marriage even though they are and have always been fully

16

contributing members of our society. It is hard to imagine

17

how the adult plaintiffs in this case could be contributing

18

any more than they are. April Deboer in a nicu nurse. She

19

cares for sick and dying infants every day. Jayne Rowse is

20

an emergency room nurse. She’s taking care of all of us.

21

Together they took in the babies that were left

22

behind, special needs children, an incu baby on a

23

respirator struggling to live. Harder to place children.

24

Children of color. They nurse them back to health. They

25

loved all of them. They gave the children what they needed.

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And I’m happy to report all these children are thriving

2

now.

3

Yes, this case is about marriage equality. It’s

4

also about the health and well being of children. It’s

5

about bringing stability. Bringing dignity to children.

6

These two women have been taking care of

7

Michigan’s children day in and day out for years. These two

8

women are heros.

9

Thousands of others of same-sex couples in this

10

state are heros, too, raising children, rescuing children,

11

adopting them from the foster care system. These parents,

12

all these children, all these families should be embraced.

13

They should be supported and they should be celebrated.

14

At the end of this case, we’ll ask you to strike

15

down both of these laws and to reaffirm once and for all

16

that there are no second-class citizens in this country.

17

THE COURT: Thank you, very much.

18

State defendants, you may proceed.

19

MS. HEYSE: Thank you.

20

OPENING STATEMENT

21

MS. HEYSE: Good morning, your Honor.

22

Assistant Attorney General Kristin Heyse, on

23

behalf of State defendants.

24

Nice to see you again.

25

THE COURT: Nice to see you always.

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MS. HEYSE: A pleasure to be before you today.

2

THE COURT: Thank you.

3

MS. HEYSE: I just want to take a brief moment

4

before I get started, your Honor, to thank you and your

5

staff for the courtesies that you have extended to the

6

parties in this case. You’ve all certainly gone out of your

7

way to make this easier on us and we do appreciate that.

8

THE COURT: Thank you.

9

MS. HEYSE: I also want to take just a brief

10

moment to thank opposing counsel for their cooperation and

11

collegiality throughout these proceedings.

12

As you can imagine preparing for a trial in a 120

13

days is no easy feat, but we’ve all made it through. We’re

14

adversaries. We’re not enemies. I think that says a lot

15

about counsel on both sides of the aisle.

16

THE COURT: I agree with you. The civility between

17

the attorneys is textbook as it should operate all the

18

time.

19

MS. HEYSE: Thank you, your Honor.

20

But turning now, your Honor, to the reason we’re

21

all here today is to determine the constitutionality of

22

Michigan’s Marriage Amendment. I’m going to address five

23

points with you this morning, your Honor, and I’d like to

24

just outline them for you quickly.

25

First, I’m going to discuss the standard of

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review for this case.

2

Second, I’m going to discuss the implications

3

this case has for the democratic process.

4

Third, I’m going to discuss the valid reasons

5

that voters might have had for supporting the amendment,

6

such as, encouraging the ideal environment for raising

7

children, where kids are raised by both a mom and a dad.

8

Fourth, I’m going to tell you what the

9

plaintiffs’ experts in their studies will say.

10

Fifth, I’m going to tell you what our experts

11

will say.

12

Again, at the outset, your Honor, I think it’s

13

important to point out that plaintiffs have the burden

14

here. It is their job to negate every conceivable reason

15

for the Marriage Amendment. Therefore, questions like why

16

not allow same-sex marriage and what will it hurt are not

17

appropriate because those are not the issues before this

18

Court.

19

The people do not have the legal burden in this

20

case. Rather, it’s plaintiffs who must show that the

21

people’s decision to retain the definition of marriage as

22

between a man and a woman is irrational.

23

I think it’s important, your Honor, to clarify

24

what this case is about because it’s very easy to get

25

caught up in the emotion and sentiment that surrounds it.

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This case is about one thing, your Honor, the

2

will of the people. The people of the State of Michigan

3

have decided to retain the definition of marriage that

4

encourages what’s best of children being raised by both a

5

mom and a dad. They have both the authority to address

6

policy questions like this, and they have rational reasons

7

for doing so. Thus, that decision must govern.

8

After Windsor there can be no doubt that defining

9

marriage is within the exclusive province of the state. And

10

the people of the State of Michigan have defined marriage

11

as between one man and one woman. This was not the whim of

12

a few but rather the choice of a majority.

13

Indeed, nearly 2.7 million voters chose to

14

reaffirm Michigan’s definition of marriage. This was not a

15

vote against same-sex couples. It was not based on animus

16

or bigotry. But this was rather a vote to maintain a

17

definition of marriage that’s been in existence since the

18

inception of this state. A vote to recognize and celebrate

19

the fact that both moms and dads are important.

20

Now, plaintiffs here ask this Court to wholly

21

redefine marriage for the State of Michigan, and the change

22

they are seeking is not at all similar to the Loving case

23

that Ms. Stanyar mentioned. In Loving, race was improperly

24

injected in Virginia’s definition of marriage as between a

25

man and a woman. Here, Michigan’s definition of marriage

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has never changed and has always been understood as being

2

between one man and a woman.

3

While plaintiffs will claim that Michigan voters

4

were somehow ignorant or irrational when they passed the

5

Marriage Amendment that’s simply not the case. This Court

6

has already recognized that the people of Michigan have

7

articulated justifications for adopting the Marriage

8

Amendment. And while plaintiffs do have the burden here the

9

fact of the matter is the evidence will show that these

10

justifications are rational for three basic reasons.

11

First, it was rational for the people of the

12

State of Michigan to want to encourage the raising of

13

children by a mom and a dad recognizing that gender

14

diversity in parenting is what’s best for kids.

15

This is a modest point, your Honor, not an

16

unreasonable or irrational one. There was a broad body of

17

research that supports that being raised by both a mom and

18

a dad is ideal. The fact of the matter is men and women are

19

different. They’re not interchangeable. In fact, the United

20

States Supreme Court has acknowledged this in Taylor versus

21

Louisiana and I quote,

22

“The truth is that the two sexes are not

23

fungible; a community made up exclusively of one is

24

different from a community composed of both; The subtle

25

interplay of influence one on the other is among the

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imponderables.”

2

To insulate the courtroom from either may not

3

either in a given case make an iota of difference, yet a

4

flavor. A distinct quality is lost if either sex is

5

excluded. Likewise, a distinct quality is lost in a family

6

if either of the sexes is not present.

7

Michigan’s definition of marriage guarantees that

8

each of the sexes is represented in the family and in the

9

raising of children.

10

Now, we recognize that not all children can be

11

raised by a mom and dad, but that does not make the

12

people’s desire to promote the ideal environment or in

13

other words, your Honor, the best case scenario any less

14

rational.

15

Second, it was rational for the people of the

16

State of Michigan to want to encourage marriage between a

17

man and a woman for the simple biological fact that that‘s

18

the only union that can actually produce children.

19

Third, it was rational for the people of the

20

State of Michigan to want to proceed with caution when

21

considering a change in this fundamental institution of

22

marriage. An institution that’s been existence since time

23

and armorial and has served our society well.

24

This is especially true when we’re dealing with

25

such a new and emerging area of social science. Same-sex

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marriage has only been in existence in the United States

2

since 2004. A decade, your Honor, is not enough time to

3

determine with any certainty the affects that same-sex

4

marriage will have.

5

Therefore, it was not irrational for the people

6

of the State of Michigan to want to take their time with

7

this unsettled area of social science.

8

Now, as Ms. Stanyar noted you’re going to hear a

9

lot of expert testimony in this case. In fact, for this

10

whole first week you’re going to hear from plaintiffs’

11

experts. And they’re going to try to convince you that the

12

people’s decision to retain the definition of marriage was

13

irrational because there is no ideal setting for raising

14

children, and because there are no differences in outcomes

15

for the children being raised by same-sex couples. They’re

16

going to tell you that there are reasons -- no other reason

17

beside animus for the marriage amendment.

18

But wait to hear from our experts, your Honor,

19

because they’re going to explain to you why plaintiffs’

20

experts are wrong and why the people’s decision to retain

21

the definition of marriage was not only rational but it was

22

prudent.

23

Our experts are going to tell you that there are

24

reasons for defining marriage as between one man and one

25

woman that have nothing to do with animus. Our experts are

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going to explain to you why the “No Difference Consensus”

2

that plaintiffs rely on is flawed. They will tell you that

3

the studies relied on to come to this so-called “No

4

Difference Consensus” suffer from three major deficiencies.

5

First, they’re not representative of the same-sex

6

parenting community as a whole. These studies can tell you

7

a lot about the people that are being sampled and studied

8

but very little, if anything, about the general population.

9

They are what we call small convenient sample studies.

10

One study in fact, your Honor, has a sample group

11

as small as five individuals with 30 being the average

12

number of individuals being studied.

13

I just want to repeat that fact for you, your

14

Honor, because it’s a very telling point about the strength

15

of the social science that plaintiffs rely on. The average

16

number of participants in these studies is just 30

17

individuals. That’s not enough to be statistically sound.

18

In addition, participation in these studies is

19

not random. Participants often are either recruited or

20

they’re self-selected volunteers. This results most often

21

in only the most affluent lesbian couples being studied.

22

That’s a problem, your Honor, because the same-sex

23

community is diverse, and there is no diversity within

24

these study groups. This is not acceptable for generalized

25

research. Our experts will tell you that such results

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cannot be generalized to a community let alone to the

2

nation as a whole.

3

Second, these studies call what we call soft

4

variables which are unreliable because they’re subjective

5

in nature and they generally cannot be verified by an

6

independent third party.

7

And, third, these studies use improper comparison

8

groups. In other words -- for example, in the 59 published

9

studies that are relied on by the American Psychological

10

Association or the APA almost half of them did not even

11

include an opposite sex comparison group. So they weren’t

12

comparing same-sex couples to opposite sex couples in those

13

studies.

14

Our experts will tell you that these small

15

convenient sample studies are preliminary in nature. So

16

they’re a good start, but they are in no way conclusive of

17

the outcomes for children raised by same-sex couples across

18

the nation.

19

Our experts will tell you that they have

20

conducted large random representative studies which do show

21

a difference in outcomes for the children being raised by

22

same-sex couples and directly refute the APA studies.

23

These large studies have sample sizes in the

24

hundreds so they are representative of same-sex couples as

25

a whole.

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These studies use hard variables such as progress

2

in school which is reliable and verifiable. And these

3

studies use heterosexual couple comparison groups.

4

Our expert studies are objective, methodologically sound

5

and nationally representative.

6

But more importantly, your Honor, our experts are

7

going to tell you that the research in this area is

8

unsettled. It’s just too new to know with any certainty

9

whether the children of same-sex couples fair just as well

10

as other families.

11

Likewise, it’s too early to the know the affects

12

that redefining marriage will have on the institution

13

itself. Everyone agrees this is a new area. And everyone

14

agrees that same-sex couples are a difficult group to study

15

because they constitute such a small population of our -- a

16

small portion of our overall population.

17

Our experts will tell you that what is needed to

18

make a definitive conclusion about whether there are, in

19

fact, no difference in the outcomes for children raised by

20

same-sex couples is a large nationally representative,

21

long-term study. Children being studied from birth to

22

adulthood. And right now, your Honor, no such study exists.

23

But in addition to waiting to hear what our

24

experts are going to say I also ask that you pay close

25

attention over the next few days to what plaintiffs’

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experts will not say. They will not say that the people of

2

the State of Michigan do not have the authority to define

3

marriage because they clearly do. And they will not say

4

that marriage has ever been defined any other way here in

5

the State of Michigan because it hasn’t.

6

Plaintiffs’ experts will not tell you that moms

7

and dads aren’t important because they are. And they won’t

8

tell you that moms and dads raising their children together

9

is a bad thing because clearly your Honor it’s not. They

10

won’t tell you there’s absolutely no benefit to a

11

biological connection between a mom, a dad and a child

12

because there is. And they will not say that there’s a

13

large scale, long-term nationally representative study on

14

the outcomes for children raised by same-sex couples

15

because there’s not.

16

Now once you’ve heard from all the experts and

17

gone through the mountain of information that you’re

18

inevitably going to be provided, you’ll see, your Honor,

19

that the plaintiffs cannot meet their burden in this case

20

because again if there is any conceivable rational basis

21

for the people of the State of Michigan’s decision to

22

retain the definition of marriage as between a man and a

23

woman then that decision must govern. In other words,

24

plaintiffs must show that all possible reasons for the

25

people’s decision are irrational and that’s a very high

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bar, your Honor, and one the plaintiffs’ in this case can’t

2

meet.

3

Now, your Honor, I’m sure you’re thinking,

4

counsel, what about the recent decisions in Utah and

5

Virginia and Oklahoma, why shouldn’t this case turn out any

6

different? My response to you, your Honor, is unfortunately

7

those courts lost sight of the proper standard. They forgot

8

who should define marriage.

9

As I’m sure you’re very aware in the last two

10

years five district courts have examined the reasonableness

11

of a state law defining marriage as between a man and a

12

woman. Two of those decisions actually upheld the laws,

13

while three others all decided after Windsor have found

14

them irrational. Again, Windsor recognized that the

15

definition of marriage is the foundation of the State’s

16

broader authority to regulate the subject of domestic

17

relations. These three later decisions finding that state

18

laws were irrational failed to give effect to the Supreme

19

Court’s emphasis in Windsor that marriage is for the people

20

of the state to determine.

21

But even more notable is that none of these three

22

decisions challenged the premise that it’s beneficial for a

23

child to have both a mom and a dad. Instead, in those cases

24

the courts claim that point would not justify excluding

25

same-sex couples. That improperly inverts the standard of

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analysis, your Honor. Here, the amendment that the people

2

of Michigan passed need only be relationally related to its

3

end and it is. It enables every child to have a mom and a

4

dad which benefits every child. To overturn the will of the

5

people, the Court must conclude that being born and raised

6

by a biological mother and father is inconsequential.

7

Michigan agrees there can be many kinds of

8

effective parents and parenting structures, but social

9

science has not yet proven that there is zero value in the

10

diversity of a child being raised by both a mom and a dad.

11

This Court should not race to embrace a position that

12

mothers and fathers are interchangeable or even

13

dispensable.

14

Finally, your Honor, I’d like to return to the

15

fact that the Marriage Amendment was a product of the

16

political process, a process that’s at the very core of our

17

constitution. Again, this was not a whim of a few, but a

18

vote of a majority, the will of the people.

19

The Supreme Court has counseled against judicial

20

intervention of the political process especially when we’re

21

dealing with such novel social issues recognizing that

22

courts should allow states themselves to be the

23

laboratories for social change. The fact of the matter is,

24

your Honor, no society anywhere has had even a single

25

generation’s worth of experience with same-sex marriage.

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And there is a rich and robust debate going on throughout

2

the nation including Michigan. This Court should not end

3

that debate by deciding the social issue that is both -- as

4

both unique as it is new. Indeed, decisions reached through

5

the democratic process are more likely to be regarded as

6

legitimate and be widely accepted.

7

Same-sex marriage will likely be on the ballot in

8

2016. The people of the State of Michigan should be allowed

9

to decide if it is the time to redefine marriage.

10

Thank you, your Honor.

11

THE COURT: Thank you, very much.

12

Mr. Pitt, would you like some time, please, to

13

argue on behalf of your client, Lisa Brown?

14

OPENING STATEMENT

15

MR. PITT: Good morning, your Honor.

16

Michael Pitt, on behalf of defendant Lisa Brown,

17

Oakland County Clerk.

18

Defendant Brown stands before the Court as a

19

defendant in this case but her role here is greater than

20

that of just a defendant. She’s here as the voice of all

21

the county clerks of the State of Michigan, all the county

22

clerks who have taken the same oath of office to uphold the

23

Michigan and federal constitutions. All the county clerks

24

are eager for the Court’s decision on this important issue

25

and to get a final resolution of the important legal issue

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that this case presents.

2

The clerk of every county in this state has taken

3

the same oath. This oath of office does not permit any of

4

the county clerks to discriminate against any couple

5

wishing to marry because of their race, because of their

6

religion, national origin, political viewpoint, disability

7

status, or any other intimate personal relationship which

8

is otherwise constitutionally protected. Of course, what we

9

have here today is this otherwise constitutionally

10

protected issue are same-sex couples entitled to the

11

protection of the law, do they have a intimate personal

12

relationship that the Constitution of the United States

13

would recognize as protected.

14

Make no mistake that when the county clerk issues

15

a marriage license a very important legal right between

16

those two people is created, and the only way that legal

17

right can be disturbed is through the death of one of the

18

partners or by divorce. Otherwise, that legal right is

19

invaluable, that legal right is a bedrock of our society

20

and those two people can go through life knowing that they

21

are secure and that they have a legal right that nobody can

22

ever take away from them unless they voluntarily relinquish

23

it or because of death.

24

In carrying out the duties of her oath of office,

25

the clerk is not required to listen to the Governor of the

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State of Michigan. She’s not required to listen to Mr.

2

Schuette, the Attorney General of the State of Michigan.

3

She is not required to listen to the Governor’s view of

4

what he thinks a traditional marriage is, and she’s not

5

required to listen to the view of the Attorney General

6

as to what he may think constitutes a traditional marriage

7

relationship and whether or not a traditional marriage

8

relationship between a man and a woman is good or bad for

9

children. In carrying out her duties of her oath of office

10

she’s not required to listen to the opinions of the AG, and

11

also she’s not entitled to or required to listen to the

12

opinions of the voters in 2004 who voted to ban same-sex

13

marriage and to redefine what marriage is in the State of

14

Michigan. Those are views that are expressed by a majority

15

of people in the State of Michigan, but those views as

16

expressed in 2004 do not create a constitutional right that

17

she has to follow. What she is required to do is to follow

18

what the courts have said is the constitutional protection

19

that a particular type of intimate personal relationship is

20

entitled to regardless of what the majority of the people

21

of the State of Michigan may think. If the people of the

22

State of Michigan had voted in 2004 to ban interracial

23

marriages I don’t think we would be here today. I think

24

there would have been a finding that that vote even though

25

by the majority of the people was an unconstitutional act

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and that those types of relationships could not be subject

2

to the whims of the majority vote.

3

The same applies here, and at the end of the day

4

that analysis that would be used for interracial marriages

5

is going to be applied I believe to same-sex marriage

6

equality issues.

7

More importantly, she will not even listen to her

8

own judgments about what is good or bad when it comes to a

9

traditional marriage. As clerk that’s not her role. She may

10

see and she has told me that she has seen couples come

11

through the County Clerk’s Office where the relationship

12

probably would be better not being formed. It’s not her job

13

to form those judgments. Although she may think that it’s a

14

bad idea for a woman to marry a man who has been convicted

15

ten times of aggravated spousal abuse she -- that woman is

16

entitled to a license. She’s entitled to enter what people

17

in this courtroom have referred to as a traditional

18

marriage relationship even though marrying that particular

19

individual may end up costing her life or causing her

20

injury. Clerk Brown cannot prevent that woman from entering

21

into that relationship even though she thinks it’s a bad

22

idea. It’s not her job. Her job is to issue a marriage

23

license based on legal status and she’s here today to

24

participate in the process so that there is a clear

25

understanding of what the legal status is when same-sex

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couples come to her counter asking for a marriage license.

2

She’s going to testify also about implementation

3

and remedy. If the Court were to determine that the ban on

4

same-sex marriage in Michigan is unconstitutional then

5

there’s going to be a time in this process where

6

implementation is going to be required. And she has

7

testified in deposition and she will testify here in court

8

that she has taken extraordinary steps already in

9

developing a protocol that will facilitate immediate,

10

immediate implementation of the Court’s order so she has

11

worked with the State Registrar. Under the Michigan statute

12

the State Registrar is required to approve all of the

13

marriage license applications and the marriage license

14

forms. She and other clerks around the state have been

15

working with the State Registrar to devise gender neutral

16

forms that could be used to facilitate immediate

17

implementation of any court order may arise. She’s prepared

18

to move forward swiftly and is looking forward to the time

19

when that may occur in the very near future. She is going

20

to follow the Court’s order. She has indicated that she is

21

not going to obey any other public official other than this

22

Court and this Court’s orders. If the Governor says she

23

shall not issue licenses after this Court has made its

24

ruling, she’s going to obey this Court. If the AG says she

25

shall not issue licenses, she’s going to obey the judicial

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determination. She’s going to follow the law as the

2

judicial department issues its instructions and its orders,

3

and not other public officials no matter what they may

4

think about the particular issue. She’s prepared to do

5

that. I believe there are many other clerks in the State of

6

Michigan who have expressed a similar view that they’re

7

going to be ready to move forward with the issuance of

8

licenses to same-sex couples just as soon as the courts

9

resolve this issue.

10

I thank you for your attention, your Honor.

11

THE COURT: Thank you.

12

I appreciate it, Mr. Pitt.

13

THE COURT: Okay. Plaintiffs call your first

14

witness.

15

MS. STANYAR: Your Honor, the plaintiffs call Dr.

16

David Brodzinsky.

17

THE COURT: Very well.

18

Please step forward. Please raise your right

19

hand.

20

Do you solemnly swear or affirm to tell the truth

21

in the matter now pending before this Court?

22

THE WITNESS: I do.

23

THE COURT: Thank you. Please have a seat.

24

Please state your full name and spell your last

25

name for the record.

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THE WITNESS: My name is David Brodzinsky. Last

2

name is B-r-o-d-z-i-n-s-k-y.

3

THE COURT: Thank you.

4

D A V I D M. B R O D Z I N S K Y , P h. D. ,

5

(being duly sworn, testified as follows:)

6

DIRECT EXAMINATION

7

BY MS. STANYAR:

8

Q Good morning, Dr. Brodzinksy.

9

A Good morning.

10

Q What is your occupation?

11

A I’m a developmental clinical and forensic

12

psychologist.

13

Q Within the field of psychology do you have speciality

14

areas?

15

A I have several speciality areas, the primary one is

16

adoption and foster care.

17

Q How about other areas of speciality?

18

A Child development, non traditional family life,

19

parenting by same-sex couples and individual, gay and

20

lesbian individuals.

21

Q Let’s focus on your teaching experience, have you had

22

any academic affiliations and for how long?

23

A Yes, I was professor of psychology at Rutgers from

24

1974 to 2006 when I took early retirement. I’ve had adjunct

25

professor affiliations at the Rutgers Medical School and at

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1

the Graduate School of Applied and Professional Psychology

2

at Rutgers as well.

3

Q Focusing first on your teaching experience in a

4

university have you taught in the area of child

5

development?

6

A Yes.

7

Q Have you taught in the area of clinical psychology?

8

A Yes.

9

Q Have you taught in the area of adoption?

10

A Yes.

11

Q Have you taught on the topic of same-sex -- have you

12

included the topic of same-sex parenting in any courses

13

that you’ve taught?

14

A Yes.

15

Q Did you teach at Rutgers University in the Department

16

of Psychology?

17

A I did, yes.

18

Q I think you’ve already told us over what period of

19

time?

20

A ‘74 to 2006.

21

Q Did you run any clinical programs there?

22

A From 1989, to 2006, I ran what was the Rutgers Foster

23

Care Counseling Project. It was a state-funded counseling

24

and training program servicing the foster families and

25

foster children in two- or three-county area around New

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Brunswick, New Jersey.

2

Q How many children were seen by the project?

3

A Roughly around 700 during the years that I was there.

4

Q Do you conduct research in the field of psychology?

5

A I do, yes.

6

Q Over what period of time?

7

A Well, I started as an undergraduate and certainly as I

8

entered graduate school, but most of my research was once I

9

became an academic at Rutgers from ‘74, and -- through

10

2006, and I continue to do research through the Donaldson

11

Adoption Institute.

12

Q We’ll talk about that in a moment.

13

What are your primary areas of research?

14

A My primary area of research is in adoption or foster

15

care. I focus on many different areas of adoption.

16

Q Have you done any research related to adoption by gay

17

and lesbian parents?

18

A I have, yes.

19

Q Can you describe that?

20

A Well, we have two national surveys of adoption agency

21

policies and practices related to working with gay and

22

lesbian individuals. I’ve done a large scale of study of

23

gay and lesbian adopters or adoptive families looking at

24

their needs, their experiences, the type of adoptions they

25

engage in, the extent of openness of those adoptions and a

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1

variety of other factors. That wasn’t a comparative study.

2

We’ve just collected data on about 1600 families, adoptive

3

families around the country which include about 250 to 260

4

of gay and lesbian families, and will be doing an analysis

5

of that. But that study is not just on differences or

6

similarities between gay and lesbian families. It’s called

7

the Adoption Diversity Study. It’s looking at all different

8

kinds of adoptive families.

9

Q Okay. Have you ever authored any publications?

10

A Yes.

11

Q Can you give us an estimate of the total number of

12

publications that you’ve authored?

13

A Roughly 100, yes.

14

Q Were the publications peer reviewed?

15

A About 50 percent of them were. Those are the journal

16

articles. They’re in peer journals. The rest are book

17

chapters or books, including textbooks and six books and

18

adoption.

19

Q Are books typically peer reviewed or is there some

20

other review process with respect to books?

21

A It is a peer review process. It’s different than

22

journals. It’s not a blind review. When I’m asked to review

23

books, you know, I know who the authors are and I review it

24

for its integrity, its validity and so forth. The same

25

happens when I submit a prospectus to a publication house.

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They’ll send out that prospectus for review by, you know,

2

other people in the field and then later on once the book

3

is complete they’ll have other people look at it more

4

completely. Same with book chapters, too.

5

Q Okay. Can you tell us of some of your more important

6

works in this area?

7

A Well, probably the first book on adoption, “Psychology

8

of Adoption” was the first edited book in the field

9

focusing on mental health issues in adoption.

10

My second book “Being Adopted” is one of the best

11

selling books in the adoption field. That focused on the --

12

kind of the internal experience of adoptive individuals

13

from -- you know, young childhood through the adult years.

14

And then the most recent book is an edited book

15

on “Adoption by Gay and Lesbians” and that’s been very

16

received in the field.

17

Q That’s been published and is in circulation?

18

A Yes, it’s published by Oxford University Press.

19

Q All right. If you look at Exhibit 1. Is that a copy of

20

your curriculum vitae?

21

A Yes, it is.

22

Q Does that document also list your educational degrees,

23

your employment and your publications?

24

A It does.

25

MS. STANYAR: I move it’s admission.

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1

MR. POTCHEN: No objection, your Honor.

2

THE COURT: It will be received, Exhibit 100.

3

MS. STANYAR: Exhibit 100.

4

(Plaintiffs’ Exhibit No. 100 received into

5

evidence)

6

BY MS. STANYAR:

7

Q Do you serve on the editorial board of any academic

8

journals?

9

A I currently serve on the board of Adoption Quarterly

10

which is one of the better known journals in the child

11

welfare field. I was on the editorial board of the “Journal

12

of Applied Developmental Psychology” and “Youth in

13

Society.” I’ve been a reviewer, a regular reviewer for all

14

the top tier developmental and child clinical journals

15

throughout my academic career and to the present, too.

16

Q So you were just talking about when you peered

17

reviewed others.

18

A Exactly, yes.

19

Q Okay. Over the course of your career how many would

20

you guestimate that you’ve reviewed?

21

A It’s hard to say. I regularly review probably two or

22

maybe three a month. So if we multiple that by 12 and then

23

multiple that by 40 years since 1974, it’s a large number.

24

Q All right. Do you have a private clinical practice as

25

well?

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A I do.

2

Q Tell us about your private clinical practice as a

3

psychologist.

4

A I’m in partnership with my wife who is also a

5

psychologist. The trade name is Family Mental Health

6

Consultants. I’ve been practicing since 1985, first in New

7

Jersey where I lived until 2006, and currently in

8

California where I currently live and practice.

9

Since I’ve been an academic it’s never been a

10

full time, you know, five days a week, eight hours a day

11

kind of practice. It’s usually anywhere between 10 and 20

12

clients a week. At this point it’s probably between 10 and

13

12 clients a week.

14

(End of Part A)

15

-- -- --

16

17

18

19

20

21

22

23

24

25

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1 Q. And has that been steady over the course of that time 2 period? 3 A. It picked up in the late '80s. As I started doing research 4 in the area of adoption, I started getting a lot of referrals 5 from adoptive families that I work with to help them around 6 some of the normative issues, that I assume we'll talk about 7 later on around adoption. 8 Q. All right. During the entire, the entire span of your 9 clinical practice, how many families do you think you've 10 counseled? 11 A. I'm going to guess somewhere around 2,000. 12 Q. How many children? 13 A. Well, that's hard to estimate. Sometimes those families, I 14 only worked with the parents doing parent coaching. Sometimes 15 I work with multiple children in a family, and family 16 therapists. So even if we average one child per family, it 17 would be roughly 2,000. 18 Q. Do you counsel any families headed by same-sex parents? 19 A. I have, yes. 20 Q. Approximately how many? Give us a rough estimate. 21 A. Maybe a hundred. 22 Q. Okay. Have you counseled gay and lesbian parents who have 23 adopted or fostered children? 24 A. Yes. 25 Q. What types of issues do you address when you counsel

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1 families with gay or lesbian parents?

2 A. Most of the same kind of issues that other families, you

3 know, encounter. Around adoption issues, it often has to do

4 with how do we talk to a child about adoption, particularly how

5 do we help them, how do we explain some of the more difficult

6 background issues that the child has faced: Abuse, neglect, a

7 birth parent who might have been a drug -- drug addicted or had

8 other kinds of problems.

9

So we help them to, to figure out how to talk to those

10 children about those issues in a way that doesn't unduly demean

11 the child's heritage.

12 Q. Do you counsel families who have experienced the, the

13 experience of divorce?

14 A. Yes, very often. I do a lot of custody work for the

15 courts. And I work with those families both sometimes -- not

16 the same families. I can't be an evaluator and a counselor in

17 the same case. But I often work with families after the

18 divorce or sometimes before counseling.

19 Q. Have you counseled children who have experienced divorce?

20 A. Many times, yes.

21 Q. Is that a significant percentage of your caseload?

22 A. It's a significant percentage, yes.

23 Q. Have you done any work evaluating children for court

24 proceedings?

25 A. Quite often; continue to do.

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1 Q. Have you ever been qualified to testify, testify as an

2 expert witness in cases involving adoption issues?

3 A. Many times.

4 Q. How many times, approximately?

5 A. Qualified, that means I was testifying. Probably 40, 50

6 times.

7 Q. Have you ever been qualified to testify as an expert

8 witness in cases involving the well-being of children in -- of

9 same-sex parents?

10 A. Yes.

11 Q. How many times?

12 A. About ten times.

13 Q. Have you ever been involved in a marriage equality case?

14 A. Yes. I was one of the experts in the Hawaii same-sex

15 marriage case in the mid '90s.

16 Q. Your CV lists the Donaldson Institute. I think you've

17 touched upon that a little bit. Can you describe your work

18 there?

19 A. Sure. The Donaldson Adoption Institute, which is located

20 in New York City, is a nonprofit think tank. It's arguably the

21 preeminent think tank on adoption issues in the country.

22

Our primary mission is to foster the well-being of

23 children who are adopted to promote ethical adoption practice.

24 We do a lot of research in the area of adoption, training of

25 professionals. We are advocates, an advocates organization for

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1 children in need of families, particularly kids coming out of

2 the foster system.

3 Q. Have you ever consulted with any government agencies?

4 A. I have. Pretty regularly, child welfare agencies in the

5 states here. And I've also counseled various ministries of

6 child welfare in England and Spain, and Italy, and Sweden.

7 Q. What sort of issues are you called upon to address with

8 state child welfare agencies?

9 A. A lot of it has to do with best practice issues in dealing

10 with adoption, training their professionals around -- you know,

11 establishing, you know, an appropriate atmosphere for doing

12 home studies.

13

Often times, it deals with helping them to set up or

14 to understand the need for post-adoption services. One of the

15 big emphases in adoption today is the need for ongoing

16 post-adoption services. And agencies are looking to figure out

17 how to do that in a timely and affordable manner.

18 Q. Have you ever received any honors in these areas?

19 A. I've received the U.S. Congressional Adoption Award. It's

20 called an Angel in Adoption Award.

21

MS. STANYAR: I move to qualify Dr. Brodzinsky as an

22 expert in the areas of child development, parenting by same-sex

23 couples and the well-being of their children, adoption and

24 fostering, including same-sex couples, and child and family

25 clinical psychology.

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1

THE COURT: Counsel, would you like to voir dire or do

2 you have any objections? Other than your standing

3 objections --

4

MR. POTCHEN: Okay.

5

THE COURT: -- to the issue.

6

MR. POTCHEN: Other than the standing objection

7 regarding adoption, we have no objection.

8

THE COURT: Very well. He may be qualified.

9 BY MS. STANYAR:

10 Q. What is meant in the field of psychology by the term "child

11 adjustment"?

12

THE COURT: You know what? Why don't we take our

13 morning recess now. Then we won't have to interrupt his

14 testimony.

15

We'll take 15 minutes. That clock and mine are a

16 little bit off, but we'll start at ten after. Thank you.

17

(Recess taken, 10:50 a.m. - 11:08 a.m.)

18

THE CLERK: All rise.

19

THE COURT: Okay. You may be seated. Thank you.

20

You may proceed with your direct examination.

21

I understand that some people can't hear in the back.

22 We're going to try to get as close to the microphones as we

23 can. If you can't hear, raise your hand, let us know. Can you

24 hear now?

25

It's not better? Okay. We'll have to get I.T. in

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1 here to find out why you can't hear back there.

2

Oh, you're instant messaging? Not I.T., though.

3

THE CLERK: I have to get it from them first, in order

4 to --

5

THE COURT: Okay. Can you ask, please. Thanks, Adam.

6

If you could ask them to call IT, tell them, and tell

7 them that they can interrupt us, because it's important; that

8 people can't hear in the back. We'll get it, we'll get it

9 taken care of, ASAP. So we'll get the people in here.

10

We're going to proceed. And, Ms. Stanyar, if you can

11 talk a little bit louder.

12

MS. STANYAR: Okay.

13

THE COURT: I know that's not your fault. It's the

14 mic. system.

15

MS. STANYAR: I pushed it away.

16

THE COURT: Great.

17

MS. STANYAR: It was scaring me.

18

THE COURT: That's fine. No. You have to be close

19 because it's also picking it up.

20

MS. STANYAR: Okay.

21

THE COURT: Not that close. I think you're fine.

22 They'll tell us. Because these microphones apparently they,

23 they took off the sound system and put it into the, the piping

24 into the other room. But we'll figure it out, we'll make sure.

25 It's important. This is a public courtroom, it's important

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1 that everybody see, everybody hear. If you can't see and you

2 can't hear, let us know. I know you can't right now, but

3 they're getting someone in here right away. Okay.

4

MS. STANYAR: Can I have the last question read back?

5

THE COURT: Well, I don't think there's the last

6 question. You were starting to go into your, to your --

7

MS. STANYAR: What was the one before my question that

8 I didn't ask? Do you, are you able to go back? Or no? I'm

9 sorry.

10

(Brief pause.)

11

I moved to qualify him as an expert.

12

THE COURT: Yes. And I agreed.

13 BY MS. STANYAR:

14 Q. What is the meant in the field of psychology by the term

15 "child adjustment"?

16 A. Child adjustment has to do with the ability of a child to

17 function in one or more areas of their life. So, for example,

18 the ability to function well --

19

THE COURT: Excuse me. One more second. I see our

20 I.T.

21

Hey, Bob, here's what's happening. The people in the

22 back -- you can't hear either? The people in the back can't

23 hear. Are these microphones on or what's causing the problem?

24

(Brief pause.)

25

THE COURT: Not only can they not hear mine, but they

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1 can't hear everything.

2

MR. GRATHOFF: Sounds pretty good across the hall.

3

THE COURT: Yeah, across the hall, I'm sure it's good,

4 but the people back here can't hear.

5

Can you hear better? Can everybody hear better? Yes?

6 Okay. Good.

7

Carole, if you don't mind trying that mic, too.

8

MS. STANYAR: Testing 1.

9

THE COURT: How is that? Everybody hear better?

10 Perfect. I hope they can hear it in the other room, too. I

11 won't -- okay. Great. I'm glad you said something. So if you

12 can't hear or see, either this room or the other room, let us

13 know.

14

Okay. Let's go.

15 BY MS. STANYAR:

16 Q. I believe that you were talking about the term "child

17 adjustment."

18 A. Yes. It has to do with the child's ability to function

19 well within the normal range in one or more areas of life. For

20 example, is the child progressing normally, motorically. Is

21 the child developing normal attachments with parents and with

22 others. Is the child progressing through school, doing well in

23 reading, math, etc., etc., forming appropriate peer

24 relationships, developing positive self-esteem and, you know,

25 integrating sense of self in terms of identity appropriately.

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1 So there are many areas of development that we look at in terms

2 of adjustment.

3 Q. In the field of psychology, has there been research

4 conducted to learn what family circumstances promote positive

5 child adjustment?

6 A. Yes. There's a tremendous amount of research.

7 Q. How is child adjustment measured?

8 A. Well, it's measured in a variety of ways. We, we look at

9 quality of parent-child relationships, we look at

10 symptomatology of a child, the behavior of the child, whether

11 the child shows any evidence of any type of problematic

12 behavior, progress in school, peer relationships and so forth.

13 And we do so with, we do so with, in a variety of ways, too,

14 different methods they used.

15 Q. All right. Has researched identified any factors relating

16 to family circumstances that predict positive adjustment?

17 A. Yes.

18 Q. I'm going to ask you to look at the demonstrative here.

19 Can you tell us, are these the factors?

20 A. These are the primary factors that have been, time and

21 again, shown to be the key predictors of children's adjustment.

22

They are quality of parent-child relationships;

23 quality of the relationships between the parents. Harmonious

24 parents produce better adjusted children. Warmer parent-child

25 relationships produce better adjustment in children.

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1

The characteristics of the parent, the styles that

2 they adopt, parental warmth and nurturance, emotional

3 sensitivity. The ability to employ age appropriate rules and

4 structure for the child.

5

And the kinds of educational opportunities that

6 children are afforded is important, as well as the resources

7 that are provided for the child, not only in the family itself,

8 but the resources that, from the outside, that impact the

9 family and the child in particular. And of course, the mental

10 health of, of the parents.

11

THE COURT: Excuse me. Bob, is everything working

12 good?

13

MR. GRATHOFF: Yes, it is.

14

THE COURT: Thank you, very much. We appreciate it.

15

Okay. I'm sorry. He was standing there. I wanted to

16 make sure everything was cool.

17 BY MS. STANYAR:

18 Q. Have studies looked at whether these factors predict

19 positive outcomes or positive child adjustment in families

20 other than married mother/father biological-parent families?

21 A. Yes. These are the predictors that, the key predictors

22 that predict child outcome regardless of the family form,

23 whether it's a two-parent married family, heterosexual, gay or

24 lesbian families, single parents, divorced families, families

25 of color, families from low SES status, that's socioeconomic

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1 status or, you know, middle or upper socioeconomic status. All

2 families, these are the key predictors.

3 Q. Have they all been studied?

4 A. They've all been studied, yes.

5 Q. How well established in the field of psychology is it that

6 these factors that you listed are the factors that predict

7 positive child adjustment, regardless of family types?

8 A. It's very well established. The consensus in the child

9 development and family psychology literature is that these are

10 the factors that predict, you can open up any journal that's

11 studying this, and you'll see one or more of these represented.

12

MS. STANYAR: All right. I'm going to ask him to look

13 at Tab A of his binder. And here's where we're getting into

14 the point at which I'm going to lay a foundation for the

15 articles. And I think there's going to be an objection here,

16 but.

17

THE COURT: Okay.

18 BY MS. STANYAR:

19 Q. All right. Look at Tab A of your binder. Tab A.

20 A. I've got it.

21 Q. Yeah.

22 A. This is Tab A.

23 Q. First of all, could you identify the studies?

24 A. These are two articles. They are not empirical studies,

25 they are review articles, one by Michael Lamb that is entitled,

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1 "Mothers, Fathers, Families and Circumstances: Factors

2 Affecting Children's Adjustment." It's a recent publication.

3

And the second is a chapter by Susan Golombok and

4 Fiona Tasker, which reviews social emotional development in

5 different types of families, particularly non-traditional

6 family forms.

7 Q. Do these articles summarize the body of research on the

8 factors that affect child adjustment?

9 A. Yes, they do.

10 Q. Are they representative of similar reviews of this nature?

11 A. They are.

12

MS. STANYAR: At this time, I would move to admit the

13 literature, these two.

14

THE COURT: Counsel?

15

MR. POTCHEN: Yes, your Honor. We're going to object

16 to, we'll start with these that we're objecting to.

17

This, apparently these are summary articles done by

18 people other than this witness. So these are summaries of the

19 research conducted by other people. That's hearsay on top of

20 hearsay. So this is not a summary even done by this witness.

21 And it is not a summary of even the people who are writing the

22 article.

23

So to the extent they are seeking to admit this, there

24 is no hearsay objection that would follow that this would be

25 admissible.

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1

THE COURT: Counsel?

2

MS. STANYAR: Your Honor, we're in a unique situation

3 where we are proceeding both with our Daubert hearing, as to

4 all the witnesses that we objected to, and we're proceeding

5 with trial. So this is relevant for a number of different

6 reasons.

7

First of all, as to many of these articles that we're,

8 we're going to be talking about, Dr. Brodzinsky relied on them,

9 at least the ones that preceded his report of December 20th of

10 last year.

11

In addition, we don't intend on calling Dr. Brodzinsky

12 back. And so we are, we are, you know, trying to introduce the

13 rebuttal to the State's experts. They will -- they are going

14 to be talking about, for example, Loren Marks is going to be

15 talking about the research, but he stops at 2005 for some

16 reason. And so, you know, we want to, we want to talk about

17 that.

18

THE COURT: Well, I think the articles are not

19 admissible because they are hearsay, at least if not hearsay on

20 top of hearsay. However, Dr. Brodzinsky has been qualified as

21 an expert under Daubert, and all other standards, and he is

22 testifying as an expert. And he can certainly rely, if that's

23 what he did, on articles and studies and that he's done, and

24 others have done, because he's going to -- you've asked him --

25 you're going to ask him to render opinions. And so there's no,

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1 there's no dispute at this point that he is an expert and he

2 may render opinions in the areas that you have indicated

3 before.

4

But the articles themselves would not be admissible

5 through this particular witness. And that doesn't mean that he

6 can't rely on them and talk about them in terms of putting his

7 opinion together. But I don't think the articles themselves,

8 not think, I know they aren't and, therefore, I'll sustain the

9 objection.

10

MS. STANYAR: I understand, your Honor. As I often

11 do, I may be trying to give you additional argument and legal

12 authority.

13

THE COURT: As you always do. I have no problem with

14 that.

15

MS. STANYAR: Okay.

16

THE COURT: But as I say, this one is going to be --

17

MS. STANYAR: I understand.

18

THE COURT: -- a very uphill battle. As I say, he may

19 use them in his testimony, and I suspect that he will because

20 he's an expert. And as an expert, he is allowed to do that.

21 But the articles themselves are not admissible under many

22 rules, the most important of which is hearsay.

23

MS. STANYAR: All right. Fine, your Honor.

24 BY MS. STANYAR:

25 Q. Is there research on the ways in which men and women parent

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1 children in heterosexual couple families?

2 A. Yes, there are.

3 Q. What does the research indicate?

4 A. The research indicate there's a wide range of variability

5 between, for men and women, in how they parent. There's

6 variability. There's more overlap than difference. There's

7 variability from family-to-family. There's variability even

8 within the same family, depending upon whether you're parenting

9 a baby versus parenting a teenager. You would certainly,

10 either gender would parent the child differently. And there's

11 variability in how men and women parent from culture to

12 culture, as well.

13 Q. Does, does the research show any average differences in the

14 ways that mothers and fathers interact with their children?

15 A. Yes, it does, on average.

16 Q. Can you describe that?

17 A. Sure. Mothers tend to be more emotion focused. They tend

18 to be more calming and soothing with their children, with more

19 physical affection offered. They are more linguistically

20 oriented.

21

Fathers, in turn, are more playful, more boisterous in

22 their, in their interactions. They are a little bit more

23 task-oriented in their interactions.

24

But I would say that both men and women do the same

25 kinds of things; in other words, they can engage in the same

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1 kind of behavior. It's a matter of distribution of different

2 behavior at different times, depending upon children's needs

3 and who is available for the child.

4 Q. Does the study of psychology consider these differences in

5 competency?

6 A. No. They are differences in style, not at competence.

7 Q. Are women more likely to be more skilled at parenting?

8 A. On average they probably are, because they spend more time.

9 And the more experience you have, the more skilled you become

10 in particular areas.

11

So women are, on average, more likely to be the

12 primary child care provider, more likely to feed and bathe the

13 child, more likely to take the child to different places, spend

14 more time with the child, and with time comes competence.

15

We know that when men spend more time, such as we're

16 finding a trend, you know, in terms of societal trends, men

17 spending more time being parents, and in some cases, men being

18 the primary care provider, we find that the same level of

19 competence occurs generally in men who are spending more time.

20 They look very much like what we see when women are spending

21 primary time.

22 Q. What is the reason for these stylistic differences?

23 A. Well, there's a couple of reasons. One is that it depends

24 on what role the person is playing. If you are feeding the

25 child or bathing the child, you're more directly involved with

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1 the child. You're engaging more soothing behavior. You're

2 engaging more face-to-face interactions with the child. The

3 role elicits certain kinds of behavior. So the role that

4 people play, that they choose to play, that they negotiate

5 between themselves in terms of playing often elicits different

6 kinds of behavior.

7

But also, men and women socialize differently. We

8 socialize women, in general, in society to be more

9 emotion-focused. We promote emotion in women and we tend to

10 downplay the expression of emotion in men, on average of

11 course. And men are socialized, you know, to be more physical,

12 to be more, you know, more stoic in their emotions and so

13 forth.

14

So sometimes the socialization that men and women

15 experience growing up is brought into a family, and it impacts

16 on the kind of styles that they, they enact.

17 Q. Are you saying that only fathers engage in playful

18 activities with their children and the mothers don't do that?

19 A. No, of course not. In fact, probably, in an absolute

20 sense, probably mothers spend more time playing with their

21 children because they spend more time with their children,

22 period.

23

But in a relative distribution of time versus what

24 activities you're engaged in, men are more playful rather than

25 let's say in a soothing, calming sense, and women tend to spend

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1 more time soothing and calming children relative to their 2 husbands. 3 Q. Are these differences in parenting style uniform across 4 couples? 5 A. No, they are not. There's quite, quite a difference from 6 couple to couple in distribution of, of the roles that people 7 play, of the kinds of interactions that they take -- that take 8 place and the kinds of behaviors that, that they manifest in 9 doing the same role, for example. 10 Q. Does the research suggest that children are better off if 11 their mothers adopt a typical maternal style and their fathers 12 adopt a typical paternal style? 13 A. No. There's no research that supports that. 14 Q. So, for example, if in, in a particular heterosexual parent 15 family, if the father happens to be more nurturing and soothing 16 and is less physically playful with the children, is it at all 17 harmful to the child? 18 A. No, it would not be. 19 Q. Is there any evidence that children need a male and female 20 parent for positive child development? 21 A. I assume you mean male and female in the same household? 22 Q. Yes. 23 A. The answer is no. It's not the gender of the parent that's 24 the key. It's the quality of parenting that's being offered by 25 whoever is there, husband or wife, two women, two men, a single

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1 parent, as long as the factors that we listed up there are

2 present: Good mental health, good parent-child relationships,

3 what we call an authoritative parenting style, which is warmth,

4 stimulation, structure, and the availability of resources.

5 Then we're going to have a child who is much more likely to be

6 healthy.

7 Q. Do children in single-parent families, on average, do as

8 well as children in two-parent families?

9 A. No, they don't. On -- well, let me start by saying they

10 don't, but most children in single-parent families actually do

11 well. It's just on an on-average comparison. The reason --

12 Q. What does that mean? Because maybe you used this is a lot.

13 A. Oh.

14 Q. But what is an on-average comparison?

15 A. Well, when you take a group of single parents and a group

16 of two-parent families, we get a mean or an average of what

17 they are doing, and how the outcome is. And there's often an

18 overlap, there's always an overlap. And the difference between

19 the means is what we call the on-average difference. The means

20 could be very similar, but still statistically significant.

21

And most of the behaviors or the adjustments of

22 children in single parents would look like the behaviors and

23 adjustment of children in two-parent families. But on, excuse

24 me, on average, the, the children in two-parent families would

25 be doing a little bit better.

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1 Q. What accounts for the higher rate of adjustment problems,

2 to the extent there are, in single-parent families?

3 A. There are a couple of reasons. First, let's talk about the

4 pathway to single parenthood. Many parents become single

5 parents following the break-up of a previous relationship.

6

Children who are the product of a previous failed

7 relationship experience, you know, the disruption of that

8 relationship. They frequently will experience the conflict

9 between the parents that preceded, unfortunately too often,

10 follows the break-up as well. So there's a lot of turmoil in

11 the child's life that leads the child ultimately to be raised

12 by that single parent.

13

Other times, parents become single parents, you know,

14 without the active involvement of the father. So the child is

15 born, but the father is just not involved in the child's life.

16

Both of those groups also have less resources. We

17 know that single parents are much less likely to, to be

18 economically as advantaged as two-parent families.

19

And anyone who is a single parent knows, or knows a

20 single parent, it's just more stressful. You are doing

21 everything by yourself. So you don't have someone else to help

22 in that regard.

23 Q. Would you say that most children raised in single-parent

24 families have adjustment problems?

25 A. No, they don't.

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1 Q. Most? 2 A. Most are doing very well. You know, it's a matter of the 3 fact that many of these, most of these single parents end up 4 being described in very similar ways that we're talking about 5 the factors here, there. They are mentally healthy. They have 6 good parent relationships, they provide resources, and you 7 know, it works well for the child. 8 Q. When you say children don't need a male and female parent 9 to develop well, are you saying that moms and dads are not both 10 important to children? 11 A. Of course not. Moms and dads are important. They are 12 important as parents, though. They are not important as males 13 or females, women and men. It's what they bring to the, to the 14 parenting process are certain parenting qualities that we've 15 talked about up here, again. And it's those factors, not the 16 gender of the parent, that predicts to better outcomes. 17 Q. Is there a body of scientific research on same-sex parents 18 and their children? 19 A. There is, quite a bit. 20 Q. Is that research published in peer review journals? 21 A. Yes, it is. 22 Q. Have any of the studies appeared in top tier journals? 23 A. Yes, they have. 24 Q. What is the purpose of peer review? 25 A. Peer review ensures, or at least it protects against a

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1 study being published that has poor methodology, that is using 2 inappropriate measures, that is doing inappropriate analyses or 3 drawing inappropriate conclusions from those analyses, or is 4 not integrating the findings into the body of literature in a 5 way that makes sense. 6 Q. Over what period of time has this research on gay and 7 lesbian parenting been accumulating? 8 A. Over 30 years now. 9 Q. In total, approximately how many peer reviewed articles are 10 there addressing parent -- are there addressing parenting by 11 same-sex couples or on the adjustment of children raised by gay 12 and lesbian parents? 13 A. Well over a hundred, probably getting close to 150 now. 14 Q. Can you say anything about the reputations of the 15 researchers working in this area? 16 A. Well, there's a large number of researchers working it. 17 But some of the top people are like Susan Golombok from 18 Cambridge University in England, and her colleague Michael Lamb 19 is also at Cambridge. Charlotte Patterson, at the University 20 of Virginia, very distinguished professor. Abbie Goldberg, a 21 younger, but very distinguished researcher at Clark University. 22 Nanette Gartrell, who is in San Francisco, a distinguished 23 researcher in this area. There are quite a few very 24 distinguished people who are working in this area. 25 Q. I'm going to ask you to turn to Tab B.

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1

All right. Are these some samples of studies that

2 evaluated children raised in same -- in same-sex parent

3 families?

4 A. Yes, they are.

5 Q. Okay.

6 A. Samples.

7 Q. I'm going to have you identify them. We're not admitting

8 them, but we're identifying these studies.

9 A. Do you want --

10 Q. Yes.

11 A. One by one?

12 Q. Yes.

13 A. Okay. The first one is by Henny --

14

THE COURT: The microphone, just move it a little

15 closer.

16

THE WITNESS: Oh, I'm sorry.

17

THE COURT: Because they are in another room

18 listening.

19

THE WITNESS: Okay. The first one is by Henny Bos and

20 his colleagues. Do you want me to read the title?

21 BY MS. STANYAR:

22 Q. I'm sorry. Read the title.

23 A. Yes. "Lesbian and Heterosexual Two-Parent Families:

24 Adolescent-Parent Relationship Quality and Adolescent

25 Well-Being."

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1 Q. Excuse me. Is Henny Bos a male or female?

2 A. Female.

3 Q. Okay. All right.

4 A. The second one is also by Henny Bos and her colleagues.

5 It's entitled, "Child Adjustment in Parenting and Planned

6 Lesbian-Parent Families."

7 Q. What year is that?

8 A. The first one is 2014. The second one is 2007.

9

The third article is by Raymond Chan and colleagues,

10 including Charlotte Patterson. Raymond Chan was a student or a

11 junior colleague of Charlotte Patterson. And it's entitled,

12 "Psychosocial Adjustment Among Children Conceived via Donor

13 Insemination by Lesbian and Heterosexual Mothers." And that

14 was published in 1998.

15

The fourth article is by Rachel Farr and colleagues.

16 And again that's Rachel Farr was -- is now a professor but was

17 a student at Charlotte Patterson. Charlotte Patterson is a

18 third author on this.

19 Q. Let me ask you, did you touch upon the Golombok/Mellish

20 2013 article?

21 A. Did I miss that one?

22 Q. Is that the one right before it?

23 A. I skipped him. I'm sorry.

24

So the, I guess the third article then is by Susan

25 Golombok and colleagues, including Michael Lamb, who is also

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1 probably three, third or fourth distinguished professor of

2 child development in the world. And this is published in Child

3 Development. It's entitled, "Gay Adoptive Father Families:

4 Parent-Child Relationships and Children Psychological

5 Adjustment," 2013.

6

The fourth is Rachel Farr, Stephen Forssell and

7 Charlotte Patterson, published in Applied Development Science

8 in 2010 entitled, Parenting and Child Development in Adoptive

9 Families: Does Parental Sexual Orientation Matter?

10

And the fifth is Michael Rosenfeld, Nontraditional

11 Families and Childhood Progress Through School, published in

12 Demography in 2010.

13 Q. Are these examples of studies that evaluated children

14 raised in same-sex families?

15 A. Excuse me. Yes, they are.

16 Q. Have you, have you -- are you familiar with this

17 literature?

18 A. Yes, I am.

19 Q. Have you reviewed all of these?

20 A. I've reviewed these and, and many, many others.

21 Q. All right. And are these representative of the body of

22 research on same-sex parents and their children?

23 A. Yes, they are.

24 Q. With the exception of, I believe it's the Bos article from

25 2014, and that would have been February of 2014, with the

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1 exception of that article, would you have relied on these

2 articles in forming, forming your opinions that you're going to

3 testify to today?

4 A. Yes, and obviously many other studies as well.

5 Q. Can you describe what this body of literature evaluated in

6 terms of parents and in terms of children?

7 A. The body of literature in this area evaluates both the

8 quality of parenting afforded children who were raised by

9 same-sex couples, versus heterosexual couples, as well as the

10 quality of the relationships of those parents, too.

11

And they also measured child outcome in a variety of

12 different ways. Child outcome will be measured probably

13 differently from one study to another, using different

14 measures. But generally, we're looking at psychosocial

15 adjustment. We're looking at gender role behavior. We're

16 looking at peer relationships. We're looking at school

17 functioning, school progress. We're looking at behavior and

18 symptomatology in some cases. We're looking at victimization

19 in other cases. We're looking at conduct problems and, and

20 related issues like illicit substance use and delinquency and

21 so forth.

22

There's a wide range of variables that are measured.

23 And these are all measured -- measures -- excuse me. These are

24 all variables that are known to predict long-term adjustment

25 difficulties.

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1 Q. Let me ask you, and you may have touched on this with the 2 psychosocial thing. But did any studies assess children's 3 psychological well-being? 4 A. Yes. Many studies do. 5 Q. Did any of these studies have comparison groups of 6 heterosexual couples? 7 A. Yes. Most do. 8 Q. Did any of the studies evaluate children raised in planned 9 same-sex parent families, in other words, families created by 10 same-sex couples? 11 A. Yes, they, they do. 12 Q. Can you identify the studies that did that? 13 A. Well, there are the studies of planned lesbian families 14 that have conceived through donor insemination. So, Charlotte 15 Patterson's work is in this area, Henny Bos's work is in this 16 area, Susan Golombok is in this area, and there are others. 17 Q. We had mentioned a Farr -- Farr and Forssell? 18 A. Yes. 19 Q. Was that -- would that be one that involved planned 20 same-sex families or not? 21 A. I'm blocking on that. I'd have to go back and look. 22 Q. Did any of them involve families formed by assisted 23 reproductive technology or the use of donor sperm? 24 A. Yes. The ones that I've talked about generally are, are 25 studies of D.I. families, donor --

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1 Q. Donor insemination? 2 A. Donor insemination, yes. 3 Q. Did any of the studies evaluate children adopted by 4 same-sex couples? 5 A. Yes. The Golombok, Mellish, including Michael Lamb does. 6 The Rachel Farr and Charlotte Patterson does, and other people 7 do as well. 8 Q. Do any of the studies on same-sex parents assess the 9 well-being of adolescents or young adults? 10 A. Yes. Charlotte Patterson and Wainwright do. Susan 11 Golombok does in some of her longitudinal work. Henny Bos does 12 in the 2014 article. There are a number of studies that look 13 at adolescents, and bordering on the adolescent/young adult 14 period. 15 Q. Do we have a study assessed on children raised by gay 16 fathers? 17 A. Yes. 18 Q. Can you identify some of the studies that evaluated gay 19 fathers? 20 A. Well, the study on adoption by Susan Golombok and Mellish 21 and Michael Lamb does, Rachel Farr and her colleagues do. Gay 22 fathers are included in other studies as well. 23 Q. What are the conclusions of the body of research on 24 same-sex parent families? 25 A. The conclusions are the --

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1

MR. POTCHEN: That I'll object to on hearsay, your

2 Honor, the conclusions themselves. He can testify about the

3 studies, but he's bringing in what their conclusions are and

4 their opinions. Basically he's being used as a --

5

THE COURT: Sustained. He can testify as to what his

6 conclusions are based upon his research and based upon his

7 study and so forth, but not necessarily what somebody else's

8 conclusion was, because they are not here for cross. They are

9 not here for cross-examination.

10

MS. STANYAR: I'll have him answer your question.

11

THE COURT: No. It's your question, not mine.

12 BY MS. STANYAR:

13 Q. What is your opinion?

14

THE COURT: I made a ruling. My ruling is that he

15 can't testify as to their conclusions. He can testify as to

16 his conclusions that he reached as an expert, using all these

17 documents.

18 BY MS. STANYAR:

19 Q. What are your conclusions based upon the research that

20 you've reviewed?

21 A. My conclusions about the outcomes for children, based upon

22 this research, is that children of gay and lesbian individuals

23 show no discernable differences in outcomes and in general

24 characteristics, developmental characteristics, compared to

25 children of heterosexuals.

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1

And the other conclusion that I reach is that the

2 parenting qualities of gays and lesbians are no different than

3 the parenting qualities of heterosexual individuals. And the

4 couple relationships of those who are parenting children are no

5 different in heterosexual families and gay and lesbian

6 families.

7 Q. All right. So are your, are your conclusions consistent

8 with the findings that we talked about?

9 A. Yes, they are.

10 Q. All right. Did the studies reach any conclusion about --

11 and it was kind of a longish answer, so we're going to make

12 sure we hit everything. Did the studies reach any -- or no.

13

Is your opinion -- what is your opinion about the

14 psychological well-being of children of same-sex parents?

15 A. My opinion is that their adjustment is, is the same as

16 children raised by heterosexuals.

17 Q. What is your opinion as to the educational development of

18 children of same-sex parents?

19 A. That it's the same as those raised by heterosexuals.

20 Q. What is your opinion as to whether or not children of

21 same-sex parents are able to form healthy peer relationships?

22 A. My opinion is that they form just as healthy peer

23 relationships as those raised by heterosexuals.

24 Q. Were the factors that predicted good child adjustment of

25 same-sex parent families any different than the factors that

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1 predict adjustment in heterosexual families?

2 A. No. They are the same. When those -- there are studies

3 that not only address the issue of family structure, gay and

4 lesbian versus heterosexual, but they also incorporate family

5 process and resource variables of the sort that we're talking

6 about here.

7

And to a study, every one of those studies shows that

8 it's the family process and resource variables that predict

9 adjustment, not family structure.

10 Q. And are the findings consistent?

11 A. They are very consistent.

12 Q. What methodologies have researchers employed in their

13 studies of the adjustment of children raised by same-sex

14 parents, in terms of, first of all, talk about recruiting

15 samples.

16 A. Okay. We recruit samples in different ways. The majority

17 of the studies are used what are called convenience samples.

18 We, we take from the communities people who are readily, more

19 readily available. So if I wanted to do a study on children's

20 academic achievement, I might go to a school in a community,

21 get permission to work with that school and the families in

22 that, and pull from, the data from those children.

23

Similar kind of things are done, you know, in this

24 area. We recruit gay and lesbian families from various sources

25 that, without the assumption being that they are representative

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1 per se of the broader population of gays and lesbians.

2 Q. We'll come back to that. But are there different methods

3 of assessment within this body of research?

4 A. Yes. We assess in a variety of ways. We do intensive

5 interviewing. We use structured --

6 Q. Interviewing of who?

7 A. Oh, I'm sorry. We do interviewing of, of parents, we do

8 interviewing of children, depending upon their age of course.

9 We do interviewing sometimes of teachers, and others that are,

10 you know, are part of the family system.

11

We use structured interviews filled out by parents, by

12 teachers sometimes, by the youth themselves, particularly in

13 the adolescent studies that focus on adolescents.

14

We do observations of parents and children interacting

15 with one another, usually around some kind of structured tasks.

16 Some studied, Henny Bos, for example uses daily diaries that

17 provide information about what's going on in the family.

18 Q. Do any use standardized testing?

19 A. Yes. Some use standardize testing, too.

20 Q. Okay. Do the studies look at subjects at one moment in

21 time or do they look at the subjects over time?

22 A. Both. The first is called a cross-sectional study where

23 you take a, a group of individuals at one point in the life,

24 kind of a slice-of-life look at them. Studies have looked at

25 children, you know, from very early childhood all the way

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1 through adolescence that way. And there are other studies that

2 are longitudinal that follow a child or follow families,

3 children and their parents, from a particular point in time, to

4 a second or a third point in time.

5

Some studies have gone all the way through basically

6 the transition to, to young adulthood now, several studies

7 have.

8 Q. Are all of these methods accepted methods in the field of

9 psychology?

10 A. Absolutely. Over, I was going to say you can open any top

11 tier journal, Child Development, or Developmental Psychology,

12 or Journal of Family Psychology, you will find all of these

13 recruitment methods and methodologies and assessment techniques

14 represented in one or more studies in these journals.

15 Q. Is convenience sampling rare in the field of psychology?

16 A. No. It's the bread and butter of psychology.

17 Q. What are the sizes of samples in those studies that use

18 convenience samples to study children of same-sex couples?

19 A. It varies. It can be from a few dozen to over a hundred.

20 Q. How can you be confident in the results of studies that use

21 smaller samples like convenience samples?

22 A. Well, it depends on what you're trying to do. If you're

23 looking at a question of, of what is the relationship between a

24 variable such as family structure, what you do is you take a

25 group of individuals. You try to control for extraneous

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1 factors like, let's say, income. We know that you want to

2 match for income, because income correlates with child

3 adjustment. So compare one group with another, and then you

4 replicate. You replicate it again and again. Not the exact

5 same study. You replicate the general question. Do -- does

6 sexual orientation, in this case, does sexual orientation, does

7 family structure make a difference in child lives.

8

We have now well over a hundred studies that have

9 replicated that question, again and again, using different

10 populations, different, in different areas of the country, in

11 different countries.

12

And so the assumption is when you get a pattern, a

13 consistent pattern over time, then the question -- then the

14 findings are valid and, and relate -- that relate to the

15 question of interest.

16 Q. Are you familiar with the term "statistical power"?

17 A. Yes.

18 Q. What is that?

19 A. Statistical power is the ability to detect a difference

20 between two groups that represent a true difference, you know,

21 as opposed to some random difference.

22 Q. And can you get sufficient statistical power with small

23 samples in the literature?

24 A. Statistical power is related to sample size. And when you

25 use small samples, sometimes you're not able to detect small

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1 differences between two groups.

2

I would point out that even though, where we have

3 small samples in this, in this literature, but we are regularly

4 finding differences between groups, just not the differences

5 perhaps that the opponents of marriage equality are looking

6 for. We certainly find differences in parenting styles. So we

7 can detect, at least medium and large scale differences.

8 Sometimes we can detect small differences.

9 Q. Are you able to detect differences in maladjustment?

10 A. Generally, we can. Because the differences that were

11 generally -- the range of scores in these studies are generally

12 all within the normal range. So that if the difference is

13 small, they are really differences about normality, so to

14 speak, ranges, whether a person tends to be a little bit more

15 this way, or a little bit more this way. They are not -- we're

16 not talking about differences that are, that are failing to

17 detect gross maladjustment.

18 Q. When you're talking about this, this group of, this body of

19 research, the convenience sample, is there anything about that

20 body of research, considered as a whole, that makes you think

21 that it's unreliable in any way?

22 A. No.

23 Q. What is a representative sample?

24 A. A representative sample is a group of individuals that are

25 drawn from a larger group that we have reason to believe that

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1 they are -- that they represent that larger group.

2 Q. What is a population study?

3 A. A population study is studying everyone in, you know, in a

4 particular population, a census. Studies that have used census

5 data or population studies because they pull from -- data from

6 everyone.

7 Q. Are representative or population studies commonly used by

8 psychologist?

9 A. No, they are not commonly used. We do use them

10 occasionally, but the bread and butter of developmental science

11 and family science is, in psychology, is convenience samples.

12 Q. Why not use representative or these broad brush population

13 studies?

14 A. Well, although there are some benefits, of course, to large

15 samples, the problem is that the small samples allow us to look

16 inside the family. We, when we're working with a smaller group

17 of individuals, we observe them. We intensively interview

18 them. It allows us to know what's going on.

19

Census data asks a few questions. It doesn't tell us

20 what's going on in a family. Large scale studies seldom

21 provide the ability, occasionally they do, but they seldom

22 allow the ability to look intensely inside the family.

23

And as a developmental scientist, what we're

24 interested in is what makes a difference in the family for the

25 child. What are the resources that parents bring into the

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1 family, in terms of parenting styles, in terms of the 2 relationship that they have with children, in terms of their 3 relationship if there's a couple, that makes a difference in a 4 child's life. The only way to study that, really, is to get 5 actively involved with the families and get up close and 6 personal, so to speak. 7 Q. Is a representative or population-based standard essential 8 to assess the well-being of either children, of children raised 9 by same-sex parents? 10 A. In my opinion, no. 11 Q. Why not? 12 A. Because it doesn't ask -- population studies, like census 13 simply don't ask the questions that will allow us to assess the 14 critical factors that are, are relevant. Census data actually 15 doesn't even ask the very specific question of whether you're a 16 gay or lesbian, and so we have to infer from that, from what 17 information is available. 18 Q. What sort of variables do studies on gay-parent families 19 need to control for? 20 A. You need to control for a wide range of factors. You need 21 to control for the resources available. Usually, the proxy 22 variables are parent income or parent education. You need to 23 control for family stability. 24 Q. Let me stop you there. What, what does it mean to "control 25 for" a factor?

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1 A. You either match the sample, so that children in the gay

2 and lesbian families are matched with children in heterosexual

3 families in terms of, so that the groups are, are the same in

4 terms of average parent income, or average parent education,

5 or, or the racial composition of the two groups.

6

We also are very concerned about family instability

7 and family transitions, particularly in this area, but in

8 general. We know that children who have experienced family

9 disruption through divorce --

10 Q. We're going to get to that.

11 A. Oh, I'm sorry.

12 Q. Let me just try to get you back over here.

13 A. Okay.

14 Q. Are there types of research for which a representative or

15 population-based sample is necessary?

16 A. Yes. If you want to know the rate of something, for

17 example, if you want to know the rate of children who are being

18 raised by gays and lesbians in the country, you need a

19 representative sample so that you can generalize to the general

20 population.

21 Q. You mention that there were some studies of children or

22 lesbian -- children of lesbian or gay parents that did use

23 population-based or representatives samples. Can you identify

24 a study that used a representative sample?

25 A. Wainwright and Patterson studies, they, they published

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1 three articles, same sample set, but so it's not different

2 samples, but they used a national survey of adolescent health.

3 I may occasionally refer to it as the ADD health survey, A-D-D.

4 But it's an adolescent health survey. It's a survey of I think

5 12,000 or more representative teenagers.

6

This was an unusual study because they not only

7 collected survey data, but they actually interviewed the

8 adolescents as well, which is very unusual in large-scale data

9 sets.

10

So that's, those -- there are three publications from

11 them. Rosenfeld is a, is a population study, because he used

12 the census data.

13 Q. Is that Michael Rosenfeld?

14 A. I'm sorry. Yes. Michael Rosenfeld.

15 Q. Stanford University?

16 A. No. Yes, I'm sorry. Stanford University. I'm sorry. So

17 those are two examples of representatives -- representative

18 samples.

19 Q. All right. So if you're looking at the findings of

20 representative population-based or representative samples and

21 the findings from convenience samples, are the findings showing

22 up different?

23 A. They are not.

24 Q. Some of the defendants' experts the State defendants are

25 expected to testify that only long term, large-scale

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1 representative samples provide reliable data on the well-being

2 of children of same-sex couples. What's your reaction to that?

3 A. I disagree completely. First of all, it makes the

4 assumption that, that somehow, knowledge about adults only

5 emerges in adulthood.

6

When you would have maladjustment in young adults or

7 middle-aged adults, it almost always is preceded by

8 maladjustment earlier in life. An example would be, you know,

9 delinquency behavior in the young adult, conduct problems.

10 Antisocial behavior is almost always preceded by problems in

11 childhood.

12

The literature in development science mostly focuses

13 on children and adolescents. We don't have studies going into

14 adulthood or middle-age, that's true, not in this area at

15 least. But we have really solid, reliable data on the

16 predictors of long-term adjustment. And there is --

17 Q. All children? You have solid research as to the predictors

18 of maladjustment as to all children?

19 A. All children. Exactly. And not just in, in the gay and

20 lesbian literature. But, you know, the kinds of measures that

21 are used in the, in this same-sex couple literature are the

22 ones that are used in other developmental science and ones that

23 we know do predict to maladjustment in young adulthood and

24 beyond.

25

So we have a lot of confidence in saying if we're not

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1 seeing problems in early childhood, in middle childhood, in

2 adolescence in this group compared to heterosexuals, there is

3 absolutely no theoretical or empirical reason to expect that we

4 would suddenly see problems emerging when they are, you know,

5 in their late 20's or into their 30's and so forth. Just no --

6 it doesn't make any sense from both our theories and our data.

7 Q. How do you define adolescents? Up to what age?

8 A. Up to 18, let's say.

9 Q. All right. Let's go back. I don't know if you defined a

10 longitudinal study. Have you defined it yet?

11 A. I think I have, but.

12 Q. Are any of the studies of children of lesbian and gay

13 parents longitudinal?

14 A. Yes.

15 Q. Can you identify those?

16 A. Susan Golombok and Fiona Tasker followed a group of

17 individuals from failed -- who were recruited from failed

18 heterosexual marriages. They went into the young adult period,

19 early young adult period. Susan Golombok, in her fatherless

20 families studies have followed children, it's a separate study,

21 all the way now into, I think they are 17 or so, into the late

22 adolescent years, maybe approaching young adulthood, some of

23 them. Excuse me.

24

Henny Bos and his studies of D.I. families, donor

25 insemination families, have followed the children into roughly

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1 I think they are 18, 19 years of age right now.

2

So we have at least three or four studies that have

3 followed children from earlier in life, in same-sex families,

4 in comparing them to heterosexual families through the

5 developing years into at least adolescence, if not into young

6 adulthood, early part of young adulthood.

7 Q. If you take the findings of the longitudinal studies that

8 you just talked about, and you take the findings of the other

9 studies, the convenience sample, the representative sample

10 studies, are the findings showing up consistent?

11 A. Yes, they are.

12 Q. Experts for the State are expected to testify that the

13 research methods used in the studies on same-sex families are

14 flawed, and thus, the studies are not reliable. What's your

15 reaction to that?

16 A. I completely disagree. That, that conclusion essentially

17 dismisses all of developmental, or most of developmental

18 science and most of psychology, since most of psychology uses

19 convenience samples.

20 Q. Experts for the State are expected to testify that we don't

21 yet have sufficient research to establish policy about same-sex

22 parents, because it's a nascent body of research. What's your

23 reaction to that?

24 A. It's hardly nascent. It's 30 years or more maybe, you

25 know, in its development with a hundred or more, maybe closing

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1 in on 150 studies right now.

2 Q. One of the State's expert witnesses, Loren Marks, he's a

3 family studies professor, he did a review of the research on

4 gay parent families up until 2005. Has there been any research

5 in this area since 2005?

6 A. A lot of research. At least a couple of dozen studies that

7 have made direct comparisons between gay and/or lesbian

8 families and heterosexual families, as well as other studies

9 that have looked only at gay and lesbian families and looked at

10 the family process variables that predict adjustment within

11 those families.

12 Q. The research from 2005 to 2014, is it using all the

13 different methodologies we've just discussed?

14 A. It is.

15 Q. We've been talking about studies. I'd like to switch gears

16 for a moment to talk about your clinical experience with real

17 families.

18

You mentioned that you have clinical experience

19 working with families headed by same-sex couples. Is there

20 anything about your experience working with these families that

21 is inconsistent with the research findings that children's

22 adjustment is not affected by their parents' sexual

23 orientation?

24 A. Nothing. I mean, I've been working with gay and lesbian

25 families from probably the late '80s, 1980's to the present.

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1 At any one time now in my clinical practice in California, a

2 third to 50 percent of the families I'm seeing are gay and

3 lesbian, usually adoptive families, but not always. And they,

4 they form families and parent their children in the same way,

5 just as in a healthy way as do heterosexual families.

6 Q. You've already testified as to your opinion on the impact

7 of parent sexual orientation on parenting ability and the

8 well-being of children.

9

Is there any basis for the assertion that children

10 raised by same-sex parents are at a greater risk of adjustment

11 problems?

12 A. In my opinion, no.

13 Q. How well established is it within the professional fields,

14 focused on children's well-being, that children raised by

15 same-sex couples fare as well as those raised by heterosexual

16 couples?

17 A. Very well. There is a consensus among all the major

18 professional organizations that focus on the physical and

19 mental health and welfare of children.

20 Q. What are those organizations?

21 A. You've got listed up there some of them, not all of them.

22 But certainly the American Psychological Association, the

23 American Psychiatric Association, the American Academy of

24 Pediatrics, the American Academy of Child and Adolescent

25 Psychiatry, the National Association of Social Workers, Child

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1 Welfare League of America. And there are others.

2 Q. To your knowledge, have all of these professional

3 organizations issued policy statements that are supportive of

4 same-sex parenting?

5 A. Yes, they have.

6 Q. Could you turn to the next tab?

7 A. "C"?

8 Q. Yes. All right. This is a policy statement from the

9 American Psychological Association. Are you familiar with it?

10 A. I am, yes.

11

MS. STANYAR: I move for its admission.

12

MR. POTCHEN: I'm sorry. What exhibit number is this?

13

THE COURT: It's not, it's not "C" in mine. But any

14 objection? It's on there.

15

MR. POTCHEN: What exhibit number would that be?

16

THE COURT: It would be 100 --

17

MS. STANYAR: 111.

18

MR. POTCHEN: 111 is not --

19

THE COURT: It's not in the book, but that's okay. I

20 mean, any objection?

21

MR. POTCHEN: Oh, 112. Here it is, 112.

22

MS. STANYAR: 112.

23

MR. POTCHEN: No objection, your Honor.

24

THE COURT: Very well. It will be received.

25

(Exhibit #112 received, 12:01 p.m.)

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1

MS. STANYAR: And we also move to admit the list of

2 organizations, which is exhibit number?

3

MR. POTCHEN: That's a demonstrative exhibit?

4

MS. STANYAR: Yes.

5

MR. POTCHEN: Well, you wouldn't admit a demonstrative

6 exhibit.

7

THE COURT: 110 will be admitted as a demonstrative.

8

MR. POTCHEN: Okay.

9

(Exhibit #110 received, 12:01 p.m.)

10

THE COURT: Is there -- while we're thinking about it,

11 all the demonstratives, do you have them?

12

MS. STANYAR: They are all in your book.

13

THE COURT: Okay. But in separate sections? Not all

14 at once. That's okay.

15

MS. STANYAR: They are just as they kind of come up.

16

THE COURT: I didn't see the other one. What's the

17 exhibit number for the one that the doctor testified to the

18 factors? They may be in here, but let's --

19

MS. STANYAR: One moment, Judge.

20

THE COURT: That's okay. Just because I'm trying to

21 keep track. I can look.

22

MS. STANYAR: Oh, the exhibit list identifies -- the

23 exhibit list that's in the front of your bench book.

24

THE COURT: Oh, okay.

25

MS. STANYAR: Identifies which exhibit. This would

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1 be -- okay. So the exhibit that would --

2

THE COURT: Oh, I see. It would be 101.

3

MS. STANYAR: Yes.

4

THE COURT: That's fine. Good. I didn't see the list

5 and I didn't see 101.

6

Perfect. Thank you. You may proceed.

7

MS. STANYAR: All right.

8 BY MS. STANYAR:

9 Q. What is the policy statement with respect to same-sex

10 parenting and the outcomes for children of the American

11 Psychological Association?

12 A. Do you wish me to read this?

13 Q. Yes.

14 A. Okay.

15

THE COURT: You don't have to read it, because it's an

16 exhibit already.

17

THE WITNESS: I'm sorry. There is no scientific basis

18 for concluding that lesbian mothers and gay fathers are unfit

19 parents on the basis of their sexual orientation. Overall, the

20 results of research suggest that development, adjustment and

21 well-being of children of lesbian and gay parents do not differ

22 markedly than that of children raised by heterosexual parents.

23 BY MS. STANYAR:

24 Q. Do you believe this policy statement, which you just read,

25 accurately summarizes the state of the social science research

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1 on the effect of gay and lesbian parenting on child adjustment? 2 A. I do. 3 Q. Is it consistent, not identical, but is it consistent with 4 the policy statements with some of the other organizations that 5 we talked about? 6 A. Yes, it is. 7 Q. You mentioned the Child Welfare League of America. Can you 8 describe that organization? 9 A. The Child Welfare League of America is an organizing body 10 that sets best practice standards for adoption and foster care. 11 It's a governing body for adoption agencies. 12 Q. Have you heard of a group called the American College of 13 Pediatrics? 14 A. I've heard of them, yes. 15 Q. What do you, do you know about this group? 16 A. I don't know much about them, except that I know that they, 17 they oppose marriage equality and parenting in adoption by gays 18 and lesbians. I've seen them referenced in articles by 19 opponents of gay and lesbian adoption in parenting. 20 Q. Is the American College of Pediatricians the mainstream 21 recognized professional group within the field of pediatrics? 22 A. In my view, yes. 23 Q. Okay. And that's distinct from this other group, the 24 American College of Pediatrics? 25 A. Yes.

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1 Q. All right. Does the American College of Pediatrics publish

2 a journal, a peer review journal?

3 A. I don't know of any. The premier Journal of Pediatrics is

4 published by the American Academy of Pediatrics.

5 Q. Experts for the State are expected to offer the opinion

6 that a basis for limiting marriage -- okay. I may have

7 confused those two.

8

Which of those two is the mainstream group?

9 A. The American Academy of Pediatrics.

10 Q. Experts for the State are expected to offer the opinion

11 that a basis for limiting marriage to heterosexual couples is

12 that children are better off if raised by two biological

13 parents. What is your reaction to that?

14 A. Well, I would disagree. First of all, I would point out

15 that the vast majority of individuals who are raising

16 non-biological children are heterosexual individuals. Most

17 individuals who adopt children are heterosexual individuals.

18 Most children who conceive through donor insemination, other

19 artificial reproductive techniques, are heterosexuals. So the

20 vast majority of individuals are, of children who are being

21 raised by non-biological kin are being raised in heterosexual

22 families.

23

Secondly, from the perspective of adoption, we know

24 that the vast majority of adopted children are in the normal

25 range, and that they, they function generally the same,

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1 particularly those who were placed as babies. It's the same as

2 children in -- raised by biological kin.

3 Q. Can children develop well, whether raised by biological or

4 non-biological parents?

5 A. Absolutely.

6 Q. The experts for the State are expected to testify that the

7 importance of a biological parent-child relationship to

8 children's positive adjustment is evidenced by studies showing

9 poorer outcomes among adopted children and children in

10 stepfamilies. I have some questions related to this.

11

First of all, starting out with adoptive families.

12 And to be clear, in this section, I'm talking about adoption

13 from -- adoption of children from outside the family, as

14 opposed to stepparent or second-parent adoption.

15

Is it correct that adopted children have poorer

16 adjustment on average than non-adopted children?

17 A. Yes. On average, they do show poorer adjustment. It has

18 less to do with being adopted, though, than the factors that

19 correlate with adoption.

20 Q. Do you know what causes more adopted children to have

21 adjustment problems?

22 A. Yes, I do. Shall I --

23 Q. Yes.

24 A. -- enumerate them? Okay. First, there is genetic risk.

25 Adopted children are more likely to come from families that are

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1 more at risk for genetically-based problems. We see that

2 especially in children who are being adopted from the child

3 welfare system, which is the predominant type of adoption in

4 the U.S.

5

Parents who have had -- who have their rights

6 terminated, those rights are terminated for a reason, often

7 based in behavior or character --

8 Q. Let me just ask you, let's go back to the genetic risk.

9 What do you mean by more -- adopted children are -- have

10 genetic risk? What do you mean by -- give us an example.

11 A. What I mean --

12 Q. Real world.

13 A. Real world, they are more likely to come from families who

14 have conduct problems, or come from families who are drug

15 addicted or alcoholic. These characteristics, conduct

16 problems, antisocial behavior, substance abuse, have a strong

17 genetic component to it so that they inherit the susceptibility

18 for, not just for those particular problems, but for problems

19 in general. So there's genetic risk.

20

There's also prenatal risk. Again, adopted kids are

21 more likely to come from birth parents who use substances

22 during the prenatal period, particularly from the, children

23 from the foster care system.

24

Also, adopted children come from birth parents who

25 experience a high-stress pregnancy. It's almost by definition

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1 a high-stress pregnancy. And we know that prenatal stress is

2 linked to the, the exposure to prenatal hormones that can alter

3 brain development and impact on children, not just immediately,

4 but long term, so that there is prenatal risk involved.

5

And then the more serious issues is what happens to

6 the child after the child is born, but before they enter the

7 adoptive family. So some children are adopted because of a

8 history of neglect. Not because they're -- but they are free

9 for adoption because a history of neglect.

10 Q. What do you mean by free for adoption?

11 A. Oh, parental rights from the biological parents are

12 terminated by the state for cause. And then that frees the

13 adoption, the child to be adopted by either kin or non-kin.

14 And we're talking about non-kin adoptions now, I think.

15 Q. Okay. So you're just talking about post birth experiences.

16 You talked about abuse and neglect history. Is there anything

17 else?

18 A. Multiple foster placements. Children in foster care,

19 unfortunately, are not in stable placements. The average child

20 is in multiple foster placement. Each change creates trauma

21 for the child.

22

And what we see is that as children move from home, to

23 home, to home, it increases their risk for adjustment

24 difficulties. And so by the time these children enter the

25 adoptive family, they are already disadvantaged for these

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1 reasons.

2 Q. Is there a difference in outcomes between children adopted

3 during infancy versus those adopted at older ages?

4 A. Yes. There's a big difference. There's relative -- even

5 though there's genetic risk and prenatal risk, on average, also

6 for the kids placed as babies, for the most part, the

7 differences between those children placed as babies and

8 non-adopted kids is very small.

9

I find it in my research, my older research, because I

10 worked with early placed kids, but there's been a recent meta

11 analysis which has looked at hundreds of studies. And it does

12 find significance difference, but very tiny differences between

13 infant-placed and, and -- children and non-adopted children.

14 The difference is much larger for older-placed children. And

15 these are the kids who are coming from the foster care system,

16 and some of them who are adopted from abroad as well.

17 Q. Is there any basis for the suggestion that adoptive parents

18 are less committed to their children than biological parents?

19 A. None. I mean, for anyone who works in the area of

20 adoption, you know how absolutely motivated and committed they

21 are. They are extremely committed, extremely motivated

22 individuals.

23

There was also a recent representative study -- a

24 study by Hamilton and his colleagues that looked at a

25 representative sample from the early childhood, longitudinal

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1 study looking at the degree of investment or commitment of

2 adopted and non-adopted children. We find -- he found no

3 differences.

4 Q. You explained that it's factors other than the lack of

5 biological relationships that account for the higher rates of

6 maladjustment in adopted children.

7

Are there any unique issues that adopted children may

8 experience related to being adopted?

9 A. Yes. I've written a lot about this. A loss. Adoption is

10 built on experience of loss. The separation of the child from

11 the birth family creates a sense of loss.

12

Early placed children don't recognize it until they

13 are old enough to understand what adoption means. But the

14 issue of loss itself is not pathology. It doesn't lead to

15 pathology automatically. In fact, it seldom leads to

16 pathology. The critical --

17 Q. When you talk about pathology, are you talking about

18 maladjustment?

19 A. Yes. I'm sorry, sometimes use those words interchangeably.

20 It usually doesn't lead to maladjustment. The critical factor

21 is how parents manage that issue with their child.

22

So the big focus in adoption for the last 20 or 30

23 years is preparing parents to help their children to understand

24 the unique circumstances of their family life. To be able to

25 talk about the birth family in a respectful way. To build a

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1 bridge for the child, a psychological bridge in some cases, an

2 actual literal bridge in other cases, for the child and the

3 birth family so that the child, you know, comes to experience

4 adoption in a positive way, and most certainly do.

5 Q. Is there a term used in your field to describe this kind of

6 challenges in adoption?

7 A. It's called a normative challenge. And many families

8 experience normative challenges. Families of color, for

9 example, have to help their children negotiate the

10 institutionalized discrimination that they are inevitably going

11 to encounter. And families, where there are disabled children

12 or disabled adults, have to help their children to deal with

13 that, that normative challenge of other people's reactions to

14 the characteristic in the family that sets them slightly apart

15 from, from other families.

16

So all families experience some levels of challenge in

17 one or more areas. And it's how it's managed in the family

18 that differentiates those who are maladjusted from those who

19 are not.

20 Q. Let's talk about stepfamilies. Is it true children living

21 in stepfamilies have poorer adjustments on average than

22 children living with both of their parents?

23 A. That is correct. Although, most children in stepfamilies

24 end up doing well, but there is a significant group difference.

25 Q. Why is that?

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1 A. Well, stepfamilies are formed following a failed previous

2 relationship. So that example of a mother and father are

3 married. They have children. The parents divorce.

4

At some point in time later on, assuming the usual

5 circumstances where the child is primarily being raised with

6 the mother, mother may enter into a new relationship. Children

7 may be four, six, ten, whenever that new parent comes into the

8 family. We have not only that new family created, but we have

9 a non-visiting, excuse me, a non-residential, in this case, a

10 father with the child is also relating to as well. That's the

11 traditional notion of what family -- a stepfamily is about.

12 Q. Is it true there's a higher risk of abuse in stepfamilies?

13 A. That's correct.

14

MR. POTCHEN: Your Honor, I'm just going to have a

15 standing objection, I guess, to the issues of stepfamilies.

16

THE COURT: Yeah. I think we're getting a little off

17 of -- I'll sustain that objection.

18

MR. POTCHEN: Thank you.

19

MS. STANYAR: The reason this comes up is this was

20 something in their, in their report had to do.

21

THE COURT: Oh, I see. You don't intend to get into

22 it with your experts; is that correct? Because I think they

23 are kind of covering it so they don't have to recall. If you

24 intend to get into that with your experts, then we'll let her

25 continue.

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1

MR. POTCHEN: I'll withdraw the objection, your Honor,

2 because apparently one of our experts is going to be.

3

THE COURT: That's fine. I understand. You may

4 proceed.

5 BY MS. STANYAR:

6 Q. Is it true that there's a higher risk of abuse in

7 stepfamilies?

8 A. Yes, there is.

9 Q. Why?

10 A. Although, although obviously most stepparents don't abuse

11 their children, but there's a higher level of risk for abuse.

12 Q. How much higher?

13 A. I don't, I don't have the statistics readily available.

14 Significantly higher, though.

15 Q. Why is that?

16 A. Well, there's an ambiguous relationship between the

17 stepparent and the child. The stepparent comes in and often

18 times is exerting authority, maybe too soon, or in ways that

19 the child may not expect or want.

20

That often leads to what we call a pattern of coercion

21 and control where a stepparent might set down a rule. The

22 child resists it. That creates frustration in the parent,

23 which leads often to a more rigid pattern of parenting, which

24 leads to more resistance. It escalates. And all of a sudden,

25 we have a scenario where abuse occurs, a child gets hit or

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1 something like that.

2 Q. Is your testimony about this based upon your research or

3 based upon your own clinical experiences?

4 A. Oh, it's both.

5 Q. Experts for the State are expected to testify that when

6 same-sex couples create families with children through assisted

7 reproduction, one adult is not biologically related to the

8 child, so they are really just like stepfamilies.

9

Are such families created this way considered

10 stepfamilies in the research literature?

11 A. No, they are not. I have never seen in the donor

12 insemination literature the term "stepfamily" applied to the

13 nonbiological parent. The term second-parent is used.

14 Co-parent is used. Non-legal parent is used. Maybe

15 non-biological parent is used.

16

I've never heard that term "stepparent" used with

17 regard to that. And the reason is the step-parenting term is,

18 is used, almost always used when a family is formed later in

19 the child's life and a new person comes in, a person who is not

20 part of the planning of that family, even through donor

21 insemination or through adoption.

22 Q. Are you familiar with the family make-up of the plaintiffs

23 in this case?

24 A. I am.

25 Q. Would a family like theirs be considered a stepfamily in

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1 the literature?

2 A. Not in the literature, no.

3 Q. Is there a base -- any basis to expect that outcomes for

4 children in families formed by same-sex partners through

5 assisted reproduction would be comparable to the outcomes of

6 children raised in stepfamilies?

7 A. It would be --

8

THE COURT: One more time.

9

MS. STANYAR: Is there any basis --

10

THE COURT: I'm not sure exactly what you asked.

11

Doctor, you may, but I'm not sure.

12

MS. STANYAR: Let me try it again.

13

THE WITNESS: Yeah. I got a little confused myself.

14

MS. STANYAR: I was heading this way and I jagged this

15 way.

16 BY MS. STANYAR:

17 Q. Is there any basis to expect that outcomes for children in

18 families formed by same-sex partners through assisted

19 reproduction would be comparable to the outcomes for children

20 raised in stepfamilies?

21 A. If you mean by stepfamilies, what we traditionally call

22 stepfamilies?

23 Q. Yes.

24 A. The answer would be no. We would expect children from D.I.

25 families to be doing better because they had not experienced

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1 the family disruption and the introduction of an unfamiliar

2 adult later in their life.

3 Q. Do the children born to lesbian couples through donor

4 insemination have that experience of the prior family

5 dissolution?

6 A. No.

7 Q. Is there any research on children conceived through donor,

8 sperm or ova?

9 A. Yes.

10 Q. Can you describe that research?

11 A. Well, there's a good body of research. It's Susan

12 Golombok's research, Henny Bos's research, Charlotte

13 Patterson's research. Some of it is cross-sectional, but Henny

14 Bos's and Susan Golombok's is longitudinal. And it follows

15 these families from the childhood areas, the longitudinal ones,

16 into adolescence, and that border between adolescence and young

17 adulthood, measuring the kinds of things that we -- that other

18 studies dealing with same-sex parenting usually measure.

19 Things like psychosocial adjustment or gender role behavior,

20 peer relationships. Parent-child relationships is a big

21 factor.

22

So they measure comparable things. And the results

23 basically follow what we've already been talking about, and

24 that is, that children of lesbian families that are created

25 through donor insemination show no differences compared to both

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1 heterosexual families created through donor insemination, as 2 well as heterosexual families that from natural conception. 3 Q. So let me just understand this. Does the research on 4 families formed by donor insemination compare outcomes of 5 donor-conceived children to children raised by two biological 6 parents? 7 A. Yes. 8 Q. And are you familiar with that research? 9 A. I am. 10 Q. What is your opinion about whether or not, the comparison 11 between those two groups? 12 A. There is no differences. 13 Q. What accounts for the fact, in your opinion, that children 14 conceived through donor insemination do just as well as 15 children in two biological parent families, but children in 16 stepfamilies don't do as well? 17 A. They don't experience the previous family disruption or 18 dissolutionment. They don't experience often the conflict that 19 preceded that dissolutionment. There may be some selection 20 factors operating also in stepfamilies, where these are 21 individuals who are probably less healthy anyway. 22 Q. Do the -23 A. Meaning the adults, not the children. 24 Q. Do the studies of donor-conceived children involve 25 heterosexual couples or same-sex couples or both?

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1 A. Both. Some of the research, yeah.

2 Q. How do the outcomes of children conceived by donor

3 insemination to same-sex couples compare with those conceived

4 by donor insemination to opposite-sex couples?

5 A. They are the same, and the parent qualities are the same

6 and the outcomes for the children are the same.

7 Q. Does this body of research on donor insemination tell us

8 anything about whether biological relationship between parent

9 and child itself predicts children's well-being?

10 A. It does. It says that biology itself is, is less important

11 than the parenting qualities. And these studies often measure

12 those family process factors that we talked about and that you

13 demonstrated before, and the predictors from parental warmth

14 and the harmony in the couple relationship, and the

15 parent-child relationship predict outcomes. But the family

16 structure, donor insemination is -- I'm sorry. Heterosexual

17 couples that are biologically related versus donor insemination

18 where you only have one biological parent and one

19 non-biological parent, the biology doesn't predict.

20 Q. The defendants' experts are expected to testify about three

21 studies, one by Mark Regnerus, one by Douglas Allen, and one by

22 Sotirios Sarantakos. I'm going to ask you some questions about

23 those.

24

Let's start with the Regnerus study. Have you

25 reviewed his study, "How Different Are the Adult Children of

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1 Parents Who Have Same-Sex Relationships? Findings From the New

2 Family Structures Survey"?

3 A. I have, yes.

4 Q. Did Regnerus evaluate outcomes for individuals raised by

5 same-sex parents?

6 A. He did not.

7 Q. What did that study evaluate?

8 A. He evaluated young adults who responded affirmatively to

9 the question, has one or your other, or both of your parents

10 had a same-sex relationship. And those were the families who

11 were described as "gay and lesbian" headed households.

12

But the majority of those families identified in those

13 categories had experienced a previous failed heterosexual

14 unions.

15 Q. We are going to talk about that in a second.

16 A. Okay.

17 Q. Why do you say that this isn't an evaluation of outcomes

18 for individuals raised by same-sex parents?

19 A. Because --

20 Q. Why is it not that?

21 A. Because they weren't raised by same-sex parents. They

22 lived with same-sex parents for, for very limited periods of

23 time, in some cases, never. In some cases, as few as maybe a

24 few months. In some cases, up to maybe a few years. But the

25 majority of them had not lived with the parent and their

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1 same-sex partner.

2 Q. Where had they started the early part of their lives?

3 A. The majority started in heterosexual unions.

4 Q. Who is Regnerus's heterosexual comparison group?

5 A. The primary comparison group are young adults who were

6 raised in intact marital families. He stripped away from that

7 group any family that had experienced divorce, step-parenting

8 families, and so forth.

9

So what he had was a group of individuals that

10 remained intact; they were heterosexual; they were married all

11 the way through the child's --

12 Q. From birth to 18?

13 A. From birth, you know, through when the measure was taken.

14 Q. All right. In the other group, did Regnerus control for

15 children's experience of parents divorcing and separated?

16 A. I assume the other group, you mean the gay and lesbian --

17 Q. Right.

18 A. -- identified groups?

19 Q. Well, no. I'm sorry. Let me back up.

20

So what did he do with the, in the intact family group

21 about the stepparents or the, or the divorce parent situation?

22 A. He pulled them out of that group and made them separate

23 groups.

24 Q. What about the lesbian mother, gay father group?

25 A. He did not pull them out. They, they included anyone who

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1 had -- where the young adult had identified that at one point

2 in time, the parent had had a same-sex relationship, romantic

3 relationship.

4 Q. Did Regnerus' study evaluate children reared in families

5 that had been actually created by lesbian or gay couples?

6 A. No, he did not.

7 Q. Does the Regnerus study allow for any conclusions to be

8 drawn about the impact being raised by same-sex parents?

9 A. In my opinion, no.

10 Q. Why is that?

11 A. Because the young adults were not raised in same-sex

12 parents. They were raised, first of all, in heterosexual

13 relationships that disrupted and they experienced the family

14 disruption and the transition.

15

At some point in time, later in their life, one of

16 their parents entered into a same-sex relationship. Some of

17 those individuals never lived with those couples. Some of them

18 lived for shorter, you know, maybe up to three years, and some,

19 some of them lived for only a few months, and some never lived

20 with them.

21 Q. What is the significance of the fact that most of the

22 individuals in the lesbian mother and gay father groups had

23 been through divorce or separation of their parents, and that

24 none of the heterosexual comparison group had had that

25 experience?

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1 A. Well, it's comparing apples and oranges as, you know, in

2 one case, you have a group that is set up to create the very

3 best possible outcome, the heterosexual families.

4

In the other group, you've grouped together people who

5 have experienced something in their life that is a known

6 contributing factor to child maladjustment, and not just child

7 maladjustment. It predicts also into adulthood, and that is

8 family disruption, family transitions. And they allowed that,

9 those people to remain in that group.

10

You couldn't have set it up, a study to more -- you

11 couldn't set up a study better to create differences.

12 Q. I'm going to read you a passage from the Regnerus study.

13

"Child outcomes in stable "planned" gay, lesbian,

14 bisexual families, and those that are the product of previous

15 heterosexual unions are quite likely distinctive as previous

16 studies' conclusions would suggest."

17 A. I agree.

18 Q. Has there been any professional criticism of the Regnerus

19 study?

20 A. A great deal of criticism.

21 Q. Did the Social Science Research Journal publish any

22 response?

23 A. They did. They asked for an internal audit to be done to

24 assess that study and to write a report, which was subsequently

25 published. And the report condemned the study and said it

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1 shouldn't be published.

2

And I want to comment on that, because that process

3 that they went through is extremely rare. No study is perfect.

4 All studies have some flaws. And the researchers are always

5 obligated at the end of their article or end of discussion to

6 acknowledge whatever limitations. And we do.

7

The way that's handled in, in the field is, you know,

8 if you know the study is flawed and you're working in that area

9 and you're doing a study, you will point out, well, such and

10 such study had a flaw, so I'm going to try to overcome that

11 flaw in my study. And I will do a study that hopefully

12 overcomes that flaw to add, you know, more knowledge and more

13 valid knowledge to the field. So that's the most common way

14 it's dealt with.

15

Occasionally what happens is that a study comes to a

16 conclusion that simply is not supported by the results or

17 misrepresents the field in such a way that someone decides they

18 want to write a rejoinder or a reply, if you will.

19

One of the experts wrote a reply, you know, to Michael

20 Rosenfeld's study. In my own work, I've written a reply to

21 someone who wrote an article on adoption that I thought that

22 they misrepresented the field and their data didn't show what

23 they thought they showed. So I wrote an article and it was

24 published. Usually journals don't publish those things, but

25 sometimes they do.

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1

What is extraordinarily rare is what happened here.

2 In fact, in my field, I've never seen it before. It's

3 happened, and I know in areas that I don't work in. But in my

4 field, this has never happened that a journal orders an

5 internal audit, publishes it and says this study should not

6 have been published. Just didn't happen very often.

7 Q. Do you agree with the audit?

8 A. I do. I agree with the conclusion it should not have been

9 published in the form that it was.

10 Q. Let's turn to the Sarantakos study. Are you familiar with

11 his 1996 article, "Children in Three Contexts: Family,

12 Education, and Social Development," published in Children

13 Australia?

14 A. Yes.

15 Q. First of all, is Children Australia a known scientific

16 journal?

17 A. Not to my knowledge. I've looked at several, what we call

18 data -- databases that list the professional journals. I've

19 never -- I didn't see it listed before.

20 Q. What did Sarantakos's study purport to show?

21 A. It purported to show that children who grow up in gay and

22 lesbian households do more poorly than children growing up in

23 heterosexual households.

24 Q. Is that supported by the data in the study?

25 A. It is not.

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1 Q. Why not? 2 A. Because like the Regnerus study, all of his subjects came 3 from previous heterosexual unions, either failed marriages, 4 failed cohabiting situations, or women who were unmarried and 5 the father was not involved. 6 Q. So this is the same issue, kind of, that you had with the 7 Regnerus study? 8 A. Exactly. And even the author acknowledges in the 9 discussion that the, the potential confounding variable might 10 influence the result. He didn't have an ability to take it 11 into account, I guess. 12 Q. And the potential confounding variable was what? 13 A. Family disruption transitions. 14 Q. All right. And for the same reasons that you said that it 15 skewed the results in Regnerus, is that also true in the 16 Sarantakos? 17 A. Yes. It is a known, very, very well known predictor of 18 child and even adult maladjustment. 19 Q. Let's turn to the study by Allen. Are you familiar with 20 his study, Douglas Allen, based upon the Canadian census? 21 A. Yes, I am. 22 Q. What does the Allen study purports to show? 23 A. It purports to show that young adults, his study he had 17 24 to 22-year-olds raised in heterosexual families have higher 25 graduation -- graduation rates from high school than comparable

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1 people raised in gay and lesbian families.

2 Q. In your opinion, is that conclusion supported by the data

3 in his study?

4 A. No, I don't believe it is.

5 Q. Why not?

6 A. Well, all he knows about is where the children lived for

7 the first -- for the last, excuse me, last five years.

8 Q. So from the date of the study back five years?

9 A. Right. So the study was published in 2006. I forget

10 exactly when the data was collected. I think it was a 2006

11 census. I'm sorry. The study was published later. It was a

12 2006 census. So we know where the children lived from 2001 to

13 2006, roughly. The children were 17 to 22 years of age. That

14 means that they were born roughly in the mid '80s, to the end

15 of the '80s.

16

Given that time period, very few children in gay and

17 lesbian families are the product of planned D.I. or even

18 adoption during that period of time.

19

So the assumption that I think we can safely make is

20 that certainly many, and maybe a majority of the children of

21 gay and lesbian families, were also the product of failed

22 heterosexual unions and that the, the gay and lesbian families

23 were formed later on. That being the case, the same problem

24 exists as in the Regnerus and Sarantakos studies.

25 Q. With respect to family dissolution?

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1 A. With respect to the impact of family dissolutionment.

2 Q. So for a 22-year-old in Allen's study, you wouldn't know

3 what kind of family the subject lived in before age 17?

4 A. Yes.

5 Q. And for a 17-year-old, you wouldn't know where he lived

6 before age 12?

7 A. Yes.

8 Q. Okay.

9 A. And by the way, why that's important, high school

10 graduation or high school success, if you will, doesn't occur

11 in a vacuum. If there are problems leading to the failure to

12 graduate, we're going to see those problems earlier on in

13 childhood, during elementary school, during middle childhood,

14 beginning of high school.

15

We don't know where these children were living. We

16 don't know the circumstances. And if the assumption that we

17 make, based upon the time when these children were born and is

18 accurate, these are children who experienced family disruption.

19 And it's likely to have undermined their academic progress,

20 even before they entered the gay and lesbian families. He has

21 no way of knowing, because he doesn't know where these families

22 were living, where these children were living. I'm sorry.

23 Q. And for the same reasons that you talked about with the

24 prior studies, if there had been a lot of dissolution, does

25 that affect -- would you expect that to affect child outcomes?

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1 A. Absolutely. I mean, we know that family dissolutionment 2 impacts academic progress. 3 Q. Did Allen say anything about how many of the respondents in 4 the same-sex groups were adopted? 5 A. Not how many, but he indicated that, you know, it's likely 6 a larger, a fairly large number would be, proportionately 7 anyway. 8 Q. Would that be expected to affect the graduation -9 A. Yes. When I saw that as an adoption expert, it jumped out 10 at me, because gays and lesbians, if they are adopting, are 11 more likely to be adopting children from the child welfare 12 system, including in Canada, older children, children in 13 special needs. And we don't know anything about the early 14 adverse experience these children have. It's not measured in 15 this study. And as a result, we can't take it into account. 16 And it may well contribute to, at least in part, to some of the 17 differences that he found in, in graduation rates. 18 Q. We've been talking about the Regnerus study, the Sarantakos 19 study and the Allen studies. Do any of these studies allow for 20 conclusions about the impact of being raised in a same-sex 21 parent family? 22 A. In my opinion, no. 23 Q. Why not? 24 A. Because none of them -- certainly, the first two, we know 25 by the author's own acknowledgment that these were children not

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1 of planned lesbian or gay families being raised from birth, but

2 children who had experienced a previous heterosexual

3 disruptions, family transitions and so forth. So we know that

4 that -- and I should say before they entered into the gay and

5 lesbian family.

6

And we can make, I think, a reasonable speculation

7 that's likely to have occurred also in Allen, giving the time

8 period for when these families were formed, and the fact that

9 planned lesbian families and planned gay families were not the

10 norm in the '80s.

11 Q. Do these three studies tell you anything about the

12 well-being of children raised in families created by

13 same-sex --

14 A. They do not.

15 Q. Do we not know if they were created or they probably

16 weren't created by same-sex couples?

17 A. Well, in the Regnerus, and the Sarantakos, we know that

18 they weren't created by same -- by two gay men or two lesbians,

19 you know, from birth onward.

20 Q. You testified that the research evaluating children raised

21 by same-sex couples shows that children fare as well as

22 children raised by heterosexual parents. And I understand that

23 that's your opinion.

24

Let me ask you this: As an expert in children's

25 development, if there were research -- the State claims this,

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1 this is the case and we disagree -- if there were research

2 finding poorer outcomes among children of same-sex parents, in

3 your opinion, given your expertise, your clinical experience,

4 would that be a reason to exclude same-sex couples from

5 marrying?

6 A. Absolutely not. If there were -- and of course, my opinion

7 and the consensus of the field is that there's no difference.

8 But if there were differences between gays and lesbians, in

9 their family, I'm sorry, the children of gays and lesbians, all

10 the more reason to stabilize these families through, through

11 marriage. We know that marriage stabilizes families and it can

12 benefit children in many ways.

13

Also, there are many groups that have known

14 differences that we allow to marry. Families from low economic

15 stratas. The children of these families do much worse than

16 children from middle and upper class. There's no prohibition

17 on marriage for that, even though we know that they are doing

18 more poorly.

19

Parent education, parent, you know, predicts to child

20 outcomes. Parents who don't have a high school degree, for

21 example, or you know, have not gone very far in school do worse

22 than children -- in parents, you know, who have a high school

23 or college education and so forth. Again, we don't put

24 prohibitions on marriage for that. And we try to support as

25 best we can through all different kinds of means, including

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1 legal means, such as marriage.

2 Q. Do same-sex couples have children in states where they

3 can't marry?

4 A. Of course they do. Yes.

5 Q. How do you know that?

6 A. There's demographic data on that. Gary Gates has published

7 demographic data showing that gays and lesbians are raising

8 children in every state in this country.

9 Q. Does excluding same-sex couples from marrying prevent them

10 from forming families with children?

11 A. Of course they don't. They've been forming families for a

12 long time.

13 Q. Does it matter to children's well-being whether or not they

14 have a legally recognized parent-child relationship with both

15 their parents?

16 A. Yes. Absolutely.

17 Q. Why?

18 A. Well, first of all, it affords them what sociologists and

19 social scientists, psychologists call social capital. That

20 means recognition, legitimate -- legitimization in the eyes of

21 society. This is a real family. We're no different than

22 anyone else. So it affords, you know, children that sense.

23

Now, young children aren't going to necessarily

24 recognize that. They'll be too young for that. But you get

25 older children into the teenage years, and they do recognize

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1 that, that difference that others might -- how others might

2 view their families. So there's social capital.

3 Q. Are there any issues relating to psychological adjustment

4 relating to the absence of a relationship with a second parent?

5 A. There could very well be. For example, if -- there's an

6 ambiguity in the relationship. Is this my mother or is it not

7 my mother? Is this my father or is it not my father? Again,

8 young children won't recognize the legality of the

9 relationship, but older children will.

10

And there's also that sense of potential uncertainty

11 about is this relationship everlasting or not. If there's not

12 a legal relationship, and the couple breaks up, then the

13 guaranteed continuity of that relationship and the attachment

14 that has been formed between parent and child may suffer.

15

And we know an awful lot about disrupted attachments

16 and its impact, not just on children, but even predicting into

17 the adult years.

18 Q. What are the harms of broken attachments? How are they

19 manifested in young children?

20 A. Okay. Well, this is an area I work a lot in. I do a lot

21 of assessments of children who experience broken attachments.

22 And there are a variety of, of symptoms that we -- behaviors

23 that we see, which might be different from one age to another.

24

But for example, younger children are likely to show

25 sleeping problems. There will be nightmares, night terrors,

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1 difficulty getting to sleep, calling out for parents because

2 they are afraid. There may be disruptions in eating patterns.

3 They may overeat and gorge themselves. They may under-eat.

4

There is often times disruption in their toileting

5 behavior. In other words, children who have gained control,

6 you know, begin to lose it again, so they begin to soil

7 themselves or wet themselves.

8

We see it in terms of increased anxiety, in depressive

9 symptomatology. We see it often times in the failure, in the

10 failure to progress normally in school. We see it in

11 insecurity in relationships. You know, once the secure

12 attachment has been broken, then the ability to trust in other

13 relationships gets compromised as well. We see it in almost

14 every area of human functioning.

15 Q. How about older children?

16 A. Older children, it can, it can lead to oppositionalism and

17 conduct problems. It predicts -- disrupted attachment predicts

18 to illicit substance use, to delinquency. It predicts to

19 failure to progress in school, in school problems, troubles at

20 school.

21 Q. And are these long-term effects?

22 A. These are long-term effects, yes.

23 Q. Can these harms from broken attachment occur even in cases

24 in which a parent does not have a biological or adoptive

25 parent-child relationship with the child?

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1 A. Yeah. These are, these are outcomes that occur regardless

2 of whether the child is genetically related, or legally related

3 to the child.

4 Q. All right. Are there any economic implications from the

5 failure to have a legally recognized parent-child relationship

6 with the second parent?

7 A. Yes.

8

MR. POTCHEN: Objection, your Honor. I'm just going

9 to be arguing about economic. He's not an expert.

10

THE COURT: Sustained.

11 BY MS. STANYAR:

12 Q. Are there any studies having to do with the effect on a

13 child's access to health insurance?

14

MR. POTCHEN: Again, objection, your Honor. Access to

15 health insurance is beyond --

16

THE COURT: Sustained. Beyond. The reason for, the

17 reason for sustaining it is it's beyond his expertise.

18 Although he may be an expert, that's not what he was qualified

19 at this point.

20

MS. STANYAR: I understand.

21 BY MS. STANYAR:

22 Q. What if a legal parent can establish a guardianship for the

23 partner, would that remove your concerns, the recurrent -- the

24 concerns that you raise about the absence of a second, a legal

25 relationship with the second parent, in terms of psychological

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1 effects? 2 A. In my opinion, it doesn't afford the child the same level 3 of permanency. In my experience in doing work in this area, 4 particularly court-related work, guardianship can be challenged 5 by a biological parent. So if the guardianship is challenged, 6 then the, the guarantee of continuity of relationship is 7 challenged then, too. 8 Q. So from the child's perspective, is there that sense of 9 permanency in a guardianship situation, based upon your 10 experience? 11 A. For young children, they don't know the difference. But 12 older children do recognize the difference. And no, it doesn't 13 afford the same level of permanency as a legal tie, either 14 through adoption or through birth. 15 Q. When couples are married, does it afford social benefits to 16 their children? 17 A. Absolutely. 18 Q. What are those? 19 A. Well, again, social capital. Marriage brings a recognition 20 by society that, that this is a legitimate family; that you are 21 the same as any other family. And children experience that. 22 And in the absence of it, they also experience the reverse. 23 They experience the sense that others view them as different, 24 and different can lead to feeling a stigma. 25 Q. When couples are married, does it afford any, any benefits

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1 concerning stability?

2 A. Absolutely. Marriage, married couples stay together longer

3 than cohabiting couples. That benefits children. It also,

4 married couples guarantees the child's, legally guarantees the

5 child's relationship with both couples, should the couple break

6 up.

7 Q. You touched upon the economic resources of the family in

8 your report, is that right, as it relates to being married?

9 A. I did.

10 Q. You did touch on that.

11

Okay. When couples are married, does it -- and does

12 your clinical experience allow you to say anything or talk

13 about the effect of the absence of marriage on economic

14 benefits?

15 A. Yes.

16

MR. POTCHEN: Well, I'll object to him getting into

17 these areas. This is beyond --

18

THE COURT: I sustain the objection.

19

MS. STANYAR: Okay.

20 BY MS. STANYAR:

21 Q. How many children in the foster care system in Michigan are

22 freed for adoption, but waiting for a family to come forward to

23 adopt them?

24 A. About 3,500, a little bit more.

25 Q. Where does that number come from?

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1 A. It comes from the federal government from the, what's

2 called AFCARS. It's A-F -- I'll just say the name. The

3 Adoption and Foster Care Analysis Reporting System.

4 Q. You've already talked about, you've already told us what it

5 meant to be freed for adoption, that the parents' rights have

6 been terminated.

7

What are the characteristics of the children who are

8 waiting to be adopted?

9 A. They tend to be older. They tend to have what are called

10 special needs, which means possible medical problems, possible

11 psychological problems, developmental delays, academic

12 problems. They are more often proportionately children of

13 color. They are often sibling groups.

14 Q. What happens to these children if there are no families

15 available to adopt them?

16 A. They linger. They linger, and unfortunately, as I said,

17 it's not necessarily lingering in a single home. Too often,

18 they move from home to home for a variety of reasons.

19 Q. Do any of these children reach adulthood without being

20 adopted?

21 A. Yes. Nationally about 26,000 a year age out, it's the

22 term. They age out of the foster care system.

23 Q. What are the future prospects for children who age out of

24 the foster care without getting adopted into a family?

25 A. They are bleak. We have increased evidence of

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1 homelessness, increased evidence of criminality, increased

2 evidence of illicit drug use, alcoholism, increased likelihood

3 of entering into, into incarceration, mental health problems.

4 They have no family to rely on. Their resources are extremely

5 limited. The outcome is bleak for these, these young men and

6 women.

7 Q. Based upon your work as related to adoption, based upon

8 your work with the Donaldson Institute, do you have an opinion

9 about whether the inability for a couple, same-sex couple to

10 adopt jointly would be a barrier to that couple adopting

11 children out of the foster care system?

12 A. I do have an opinion.

13 Q. What's your opinion?

14 A. Well, after 30 years in this field, working with agencies

15 around the country, talking about the barriers, you know,

16 helping them to remove the barriers, and institute writing

17 about these barriers, we know that if we can remove barriers of

18 all sort, legal barriers, the atmosphere barriers that exist in

19 the agencies, in terms of lack of training or attitudes about

20 gays and lesbians and so forth, we were -- we will likely

21 increase the pool of suitable adoptive parents and decrease the

22 number of children who will continue to wait in foster care.

23 In other words, we'll get them into permanent homes.

24 Q. Why would --

25

MR. POTCHEN: Your Honor, based on that answer, he's

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1 made it very clear that the foster care system and the

2 adoption, second-parent adoption are not relevant to the issues

3 at this trial. We again restate it.

4

THE COURT: I'm not sure, but do you have many more

5 questions?

6

MS. STANYAR: I don't. I only have like four or five

7 more questions.

8

THE COURT: This point has gone over. Go on.

9

MS. STANYAR: Okay.

10 BY MS. STANYAR:

11 Q. Why would this particular thing, the refusal to have a

12 second parent adopt, why would that be something that

13 discourages?

14 A. Well, one of the barriers has to do with the environment

15 that exists when people come to adopt. I cannot think of

16 anything more disrespectful to the couple coming in, to be sit

17 down and to explore adoption, they are very motivated, they

18 want to adopt, and they are told, well, you can adopt, but you

19 can't. You can be the legal parent, but you can't. You can --

20 you have a guaranteed relationship with this child forever and

21 the child has a guaranteed relationship with you forever, but

22 we're not so sure about you.

23

That really undermines, you know, the whole adoption

24 process. It has to create, in my experience, it creates

25 difficulties for the individuals. And I suspect, and what

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1 people have shared with me, as I've gone around consulting,

2 it's a barrier that sometimes people just don't know how to

3 overcome.

4 Q. Does it discourage them from adopting?

5 A. I think, in my experience, it can discourage some, some

6 people for adopting.

7 Q. Has the Donaldson Institute published any documents

8 addressing barriers to adoption by same-sex couples?

9 A. Yes. We have three articles, two authored by Jean Howard,

10 and one authored by myself, all of which have recommended the

11 states to allow both joint and second-parent adoption so as to

12 remove legal barriers for permanency for children in foster

13 care.

14 Q. Why has the Donaldson Institute advocated for removing

15 barriers to gay couples jointly adopting?

16 A. We are a child advocacy organization. We focus on the

17 needs of children, particularly the needs of children in care.

18 There are not enough families available nationwide, and clearly

19 also in Michigan, because we have children who are waiting.

20

We need a larger pool of interested, well trained,

21 capable individuals, including gays and lesbians. Removing

22 these barriers will increase the pool. When we don't have --

23 when we have these barriers in place, and historically there's

24 been a lot of barriers, we know the pool is much smaller.

25 Q. You mentioned earlier that children awaiting adoption are

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1 often children of color, children of special needs.

2

Is there any research on same-sex couples' openness to

3 adopt interracially?

4 A. Yes, there is. And they are more likely to adopt

5 interracially than heterosexual couples.

6 Q. Is there any research on same-sex couples' general openness

7 to adopting, at least in states where they are able to adopt as

8 a couple?

9 A. I'm sorry. Repeat that.

10 Q. Is there any research on same-sex couples' openness to

11 adopt generally?

12 A. Yes. There, actually, the census data and other large

13 scale data sets published by Gary Gates indicates that gays and

14 lesbians are approximately four times more likely to adopt than

15 heterosexuals, and six times more likely to foster a child than

16 heterosexuals.

17 Q. And lastly, in your opinion, how does Michigan's

18 prohibition against joint adoption by same-sex couples affect

19 children awaiting adoption out of foster care?

20 A. It increases the potential risk for them, that they will

21 continue to linger longer and suffer the experiences of foster

22 care and, perhaps, even continue to linger in care to the point

23 where they age out.

24

MS. STANYAR: Thank you, Doctor.

25

THE COURT: Okay. We will stand in recess until two,

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1 at which time the Government -- the State, so used to the

2 Government -- the State will have an opportunity, as well as

3 Clerk Brown to cross-examine.

4

We stand in recess until two.

5

THE CLERK: All rise.

6

(Recess taken at 12:55 p.m.)

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CERTIFICATE OF REPORTER

3

We, Joan L. Morgan and Christin E. Russell, as

4 official court reporters for the United States District Court,

5 appointed pursuant to provisions of Title 28, United States

6 Code, Section 753, I do hereby certify that the foregoing is a

7 correct transcript of the proceedings in the above-entitled

8 cause on the date hereinbefore set forth.

9

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s/ Joan L. Morgan, CSR

11

s/ Christin E. Russell, CSR

12

Federal Official Court Reporters

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1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, ET. AL.,

Plaintiffs,

-v-

Case Number: 12-10285

RICHARD SNYDER, ET. AL.,

Defendants. ______________________________/

VOLUME 2 -- AM SESSION

BENCH TRIAL BEFORE THE HONORABLE BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE 100 U. S. Courthouse & Federal Building
231 West Lafayette Boulevard West Detroit, Michigan 48226
WEDNESDAY, FEBRUARY 26TH, 2014

APPEARANCES: For the Plaintiffs:

Leslie Cooper, Esq. Carole M. Stanyar, Esq. Dana M. Nessel, Esq. Kenneth Mogill, Esq. Robert Sedler, Esq. Vickie L. Henry, Esq.

For the Defendants: Richard Snyder, Bill Schuette,

Tonya C. Jeter, Esq. Kristin M. Heyse, Esq. Joseph E. Potchen, Esq.

Lisa Brown

Beth M. Rivers, Esq. Andrea J. Johnson, Esq. Michael L. Pitt, Esq.

To Obtain Certified Transcript, Contact: JOAN L. MORGAN, OFFICIAL COURT REPORTER
734 812-2672

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I N DEX PLAINTIFFS’ CASE IN CHIEF
WITNESS: MICHAEL ROSENFELD, Ph.D. Direct Examination (cont.) by Mr. Mogill Cross-Examination by Ms. Heyse Redirect Examination by Mr. Mogill
Stipulations Placed on Record VIVEK S. SANKARAN, ESQ. Direct Examination by Ms. Nessel Voir Dire Examination by Mr. Potchen Direct Examination (cont) by Ms. Nessel
E X H I B I T S
Plaintiffs’ Exhibit No. 53 Plaintiffs’ Exhibit No. 400

2
PAGE:
3 14 46 52
66 84 92
RECEIVED 58 77

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BENCH TRIAL - VOLUME 2, PART A

3

WEDNESDAY, FEBRUARY 26TH, 2014

1

Detroit, Michigan

2

Wednesday, February 26th, 2014

3

(At or about 9:00 a.m.)

4

(Excerpt of Proceedings.)

5

-- --- --

6

THE COURT: Good morning, everybody.

7

Where’s the rest of your team?

8

MS. STANYAR: The plaintiffs will not be here this

9

morning because they have to go to the doctors if that’s

10

okay with Court.

11

THE COURT: Oh absolutely.

12

MR. MOGILL: Professor Sedler teaches on

13

Wednesdays.

14

THE COURT: That’s fine. As long as everyone is

15

satisfied.

16

Professor, are you all ready to roll?

17

THE WITNESS: Ready to roll.

18

THE COURT: We left off with family stability. Why

19

don’t we start --

20

MR. MOGILL: Yes, your Honor.

21

M I C H A E L R O S E N F E L D , PhD.,

22

having been previously sworn, testified as follows:

23

DIRECT EXAMINATION (CONTINUING)

24

BY MR. MOGILL:

25

Q Good morning, Professor.

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A Good morning.

2

Q At the point at which we broke yesterday afternoon I

3

was starting to ask you some questions about family

4

stability; do you recall?

5

A Right.

6

Q I’d like to ask you one that circles back to your

7

analysis of Professor Regnerus’ study.

8

A Okay.

9

Q And then ask you a number of questions that relates to

10

what’s on your slides.

11

With respect to Professor Regnerus’ study have

12

you analyzed the percentage of family transitions in the,

13

quote, lesbian mother or, quote, gay father groups as

14

defined by Professor Regnerus that were attributable to

15

breakups of the same-sex couple?

16

A Yes. My analysis of all the family transitions that

17

those children went through shows that 7 percent of those

18

transitions were due to breakup of same-sex couple. So the

19

predominant factor is breakup of the heterosexual couple,

20

the biological mother and the biological father, and then

21

there’s also the custody changes which are -- account for a

22

lot as well.

23

Q Okay. Now, with respect to stability issues you were

24

given some -- at end of yesterday you talked about general

25

statistics and I was about to ask you is there also a body

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of data comparing stability of same-sex couples with the

2

stability of opposite sex couples?

3

A Indeed there is. So in this, I sort of surveyed some

4

of the literature that we have on this. There’s older

5

literature that goes back to the 1970s. Probably the

6

classic citation is Blumstein and Schwartz. In the older

7

literature they generally found that same-sex couples were

8

less stable than heterosexual married couples. But of

9

course, we’re talking about the 1970s and there wasn’t any

10

root to formalization for same-sex unions.

11

So the more recent data shows quite a different

12

picture. There’s the Andersson, et. al. study from Sweden

13

in the 1990s. There were registered partnerships for same-

14

sex couples and marriages for heterosexual couples. The

15

marriages were somewhat more stable than the registered

16

partnerships for same-sex couples, but the Rossett et. al.

17

study covers four years of civil partnerships in the United

18

Kingdom. And actually as far as I can tell it’s a complete

19

record of all the civil partnerships from 2005 to 2008, and

20

then it follows them into 2009.

21

In the United Kingdom data which I think included

22

about 30,000 same-sex couples registered partnerships which

23

was all of the registered partnership they had at that time

24

the breakup rate of the same-sex registered partnerships

25

was actually lower than the breakup rate of heterosexual

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marriages contracted at the same period. So that’s a really

2

interesting and important piece of data.

3

And then for the United --

4

Q That’s from the United Kingdom?

5

A That’s from the United Kingdom. That’s England and

6

Wales I think it covers.

7

Q Okay.

8

A And interesting -- I mean, it’s a report that’s put

9

out by their Office of National Statistics. So it’s sort of

10

like the official data and it covers all -- you know they

11

have -- every breakup that’s reported they have it recorded

12

and every civil partnership they have it reported. So it’s

13

not even a sample. It’s a hundred percent of the data.

14

Q With respect to the United States is there a body of

15

data?

16

A So with respect to the United States there’s a couple

17

of data sources from the recent data. There’s a really

18

interesting study by Balsam, et. al. On civil unions

19

contracted in Vermont around 2001. They went to the

20

registrar, you know, the public records of the civil

21

unions. They wrote to everybody. There were several

22

thousand people who had gotten the civil union in the early

23

days. They found several hundred people -- several hundred

24

same-sex couples to respond to the survey and then they

25

matched them with siblings who were in heterosexual

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marriages and they followed them for three years. And they

2

also matched them with friends who were in same-sex unions

3

but hadn’t gotten the civil union. So they didn’t have a

4

formal union.

5

What they found was that the breakup rate of the

6

same-sex couples who had civil unions was very similar to

7

the breakup rate of the heterosexual couples. I think they

8

differed by about one percentage point. It was like three

9

percent compared to four percent. And the same-sex couples

10

who hadn’t gotten civil union had a much higher breakup

11

rate, nine percent.

12

So the Balsam, et. Al., study showed a pattern

13

that my own data also shows which is that there’s a very

14

similar breakup rate of same-sex couples in the United

15

States who have some kind of formal union compared to

16

heterosexual married couples. And that the same-sex couples

17

without the formal union have a much higher breakup rate

18

corresponding to the breakup -- in my data I actually also

19

have heterosexual couples who don’t have formal unions. So

20

the data in my survey show that the same-sex couples

21

without a formal union and the heterosexual couples without

22

formal union are quite similar in breakup rates. And the

23

same-sex couples with formal union and the heterosexual

24

married couples are also quite similar in terms of breakup

25

rate.

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And -- you know, we show that actually formal

2

union has the same relation preserving effect for same-sex

3

couples as it always had for heterosexual couples. This is,

4

you know, the central -- you know, one of the central

5

values of marriage is preserving unions, and increasing

6

stability which is so important to children and from all

7

the data that we have so far it’s clear that formal union

8

has the same preserving effect for same-sex couples.

9

There’s one other key thing that I want to

10

indicate about all this literature which is that all of

11

this literature predates what we would think of as full

12

marriage equality for same-sex couples.

13

So in my data I’m following couples in 2009,

14

2010, 2011. None of those same-sex couples had marriages

15

that were recognized by the U.S. Federal Government. So

16

some of them had marriages recognized in their home state.

17

Some of them had domestic partnerships recognized in their

18

home state. Some of them had domestic partnerships

19

recognized in the state but they didn’t live in that state

20

any more and the current state of residence didn’t

21

recognize anything about their formal union. And some of

22

them had marriages that was consecrated between themselves

23

and their partner without any formal recognition.

24

So the formality of these same-sex unions in

25

terms of recognition by the state is substantially -- what

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we know about the way formalization works among couples is

2

we would expect that as they have more recognition and more

3

legal rights that they would gain even more stability

4

benefit from that recognition.

5

So to a certain extent all the data that we have

6

from the past about same-sex couples stability is an

7

unequal test because the heterosexual married couples have

8

rights and benefits that the same-sex couples didn’t have.

9

And even despite that unequal test the comparison shows

10

that they’re quite comparable.

11

Q Thank you.

12

Professor, I want to ask you a couple of

13

questions -- a couple more questions on issues of stability

14

that go to the concern raised by the State defendants that

15

legalization of same-sex marriage could have negative

16

effects on opposite sex marriage. It’s correct, is it not,

17

that we now have about a decade’s worth of experience in

18

Massachusetts and growing experience in the other states

19

that have legalized same-sex marriage. Is there any

20

evidence in the research that legalization of same-sex

21

marriage has had any negative effect whatever on the

22

stability of or the rate of opposite sex marriage?

23

A Yeah, that’s an interesting question and the answer is

24

fairly straightforward, there’s no evidence whatsoever that

25

same-sex marriage has any effect on heterosexual marriage.

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We have a couple of interesting studies that look

2

at state-by-state data in the United States comparing when

3

there were changes in regime in terms of same-sex marriage

4

by state to what the state marriage rate for heterosexuals

5

was.

6

So the Dinno and Whitney is the most recent paper

7

in this area. It looked at year-by-year marriage rates for

8

heterosexual couples and then tried to see if there was any

9

impact on that year-by-year marriage rate by the

10

legalization of same-sex marriage and they determined very

11

emphatically that there was no such effect.

12

There’s an earlier paper by Langbein and Yost

13

that used census data so they had three time points. The

14

Dinno and Whitney they have year-by-year-by-year which a

15

little more effective because these things change year-by-

16

year. But the Langbein and Yost had three time points and

17

they used the census data and they found the same thing

18

that that same-sex marriage didn’t have any negative effect

19

on the marriage rate of heterosexuals.

20

And then in my own data -- so the Dinno and

21

Whitney and the Langbein and Yost they’re looking at state

22

averages. So when they do their analysis they have 50

23

states over time.

24

In my data set I actually -- I’m looking at

25

individuals. So I’m looking at the individual heterosexual

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couples living in the states that either do or don’t have

2

same-sex marriage. And in my data set I’ve shown that the

3

divorce rate for heterosexual married couples is no

4

different whether they live in a state that has same-sex

5

marriage or don’t. So I don’t think there’s any credible

6

evidence that same-sex marriage has any negative effects.

7

Q Thank you. I’d like to ask you a different question

8

now and that is you talked a little bit -- really more than

9

a little bit yesterday about statistical significance.

10

A Right.

11

Q And I anticipate that there will be testimony from at

12

least one of the State defendants’ witnesses about a

13

distinction between an actual difference and a

14

statistically significant difference.

15

From the standpoint of someone who works with

16

statistics and data analysis is there a meaningful concept

17

of actual difference that doesn’t have statistical

18

significance?

19

A I’d like to maybe address this with an example, I

20

think.

21

So let’s say you have a coin and you want to know

22

if it’s a fair coin, that is -- in other words just as

23

likely to give you heads or tails. And what you do is you

24

might is you might take this coin and flip it a hundred

25

times and see how many heads you get.

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So say you flipped it a hundred times and you got

2

51 heads. Now, 51 is more than 50. The question is what

3

have you learned in this experiment? The truth is if you

4

take the coin and you flip it a hundred times and you get

5

51 heads that’s perfectly consistent with the coin being a

6

fair coin because there’s random variation. You don’t

7

expect to get exactly 50 heads every time. In fact, I think

8

the probability of getting exactly heads is only about

9

eight percent.

10

So -- what we have in samples is random

11

variation. So if you flip the coin a hundred times and you

12

got 51 heads that actually is perfectly consistent with the

13

coin being a fair coin just as likely to give you heads or

14

tails. Of course, if you flip the coin a hundred times and

15

you got 80 heads you would be sure that the coin was not a

16

fair coin. So it’s a question of how close the result is to

17

what you were expecting to get and, you know, how many coin

18

flips you make.

19

And the other thing to add about this is that,

20

you know, there’s a certain amount of uncertainty -- I

21

think the confidence interval around that coin flip goes

22

about ten percent in either direction if you flip it a 100

23

times. So you know more or less where you expect the next

24

coin flip percentage to be but you don’t know exactly.

25

On the other hand, if 50 other people had done

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the same experiment and they all got around 50 heads when

2

they flipped the coin you would be very confident that the

3

coin was a fair coin.

4

So just because 51 is more than 50 doesn’t mean

5

that you can rule out that the coin is a fair coin. In

6

fact, the 51 heads is kind of confirming that the coin is a

7

reasonably fair coin.

8

Q Thank you. Just a couple of last questions.

9

A Sure.

10

Q On the basis of everything that you know from the

11

research in this area do you have an opinion as to whether

12

children are in any way disadvantaged with respect to

13

outcomes as a result of being raised by same-sex parents?

14

A It’s clear that being raised by same-sex parents is no

15

disadvantage to children.

16

Q From your prospective as a sociologist is there any

17

rational basis at all for a claim that children develop

18

better with a mother and a father than when raised by same-

19

sex parents?

20

A There’s no basis for that.

21

Q Stated another way, from your prospective as a

22

sociologist is there any reasonable basis for questioning

23

whether children raised by same-sex couples have outcomes

24

as good as children raised by opposite sex couples?

25

A I believe that the literature is really clear in that

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the fundamental research social science consensus on this

2

issue hasn’t been questioned in any reasonable way. That

3

there’s no reasonable basis to question that scholarly

4

consensus.

5

MR. MOGILL: Thank you.

6

I have no further questions.

7

THE COURT: Thank you.

8

You may cross-examine, counsel.

9

You may move the podium where you would like it

10

if you don’t like it there.

11

MS. HEYSE: Thank you, your Honor.

12

CROSS-EXAMINATION

13

BY MS. HEYSE:

14

Q Good morning, Dr. Rosenfeld.

15

A Good morning.

16

Q How are you today?

17

A Excellent.

18

Q Doctor Rosenfeld, you understand that Ms. Deboer and

19

Ms. Rowse, the plaintiffs in this case, would like to get

20

legally married in the State of Michigan; correct?

21

A That’s my understanding.

22

Q And you understand that no state in this country has

23

permitted same-sex marriage until 2004 in Massachusetts?

24

A That’s my understanding as well.

25

Q So same-sex marriage is a relatively new concept in

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the United States; correct?

2

A Okay.

3

Q And would you agree with me that the definition of

4

marriage in Michigan has always been understood to be

5

between a man and a woman?

6

A I don’t know exactly how -- I don’t know how the

7

definition is always been understood, but --

8

Q But it’s currently between a man and a woman; correct?

9

A That’s sounds correct, yes.

10

Q And have you no knowledge of it being any other

11

definition; correct?

12

A Correct.

13

Q Okay. Thank you.

14

Did you know that no country allowed same-sex

15

couples to marry until the Netherlands in 2000?

16

A That sounds correct.

17

Q And you support same-sex marriage; correct?

18

A I do.

19

Q I’m going to talk a little bit about your work.

20

A Okay.

21

Q You stated in your Direct Testimony that you’ve

22

published a number of articles; correct?

23

A Yes.

24

Q But you haven’t published any in statistical journals;

25

correct?

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A That’s correct.

2

Q And as to your publications none of them deal

3

specifically with same-sex marriage; correct?

4

A No, that’s not correct. The -- my book on “The Age of

5

Independence” actually deals with same-sex marriage and its

6

history, yeah.

7

Q Sure. Do you recall giving a deposition in this

8

matter?

9

A I don’t know if you asked me --

10

Q I didn’t ask you that question. Do you recall giving a

11

deposition in this matter?

12

A Oh, yes, absolutely.

13

Q Was that sworn testimony?

14

A Yes.

15

MS. HEYSE: Your Honor, if I may approach the

16

witness?

17

THE COURT: Absolutely.

18

BY MS. HEYSE:

19

Q Do you recall me asking you questions at your

20

deposition?

21

A Certainly.

22

Q Okay. So if you’ll look on page 64 of your deposition,

23

Dr. Rosenfeld. Actually it would the last line of page 63.

24

I’ll just read. My question to you is:

25

“And how many of your publications deal with

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same-sex marriage?”

2

THE COURT: I don’t think he has it yet. Do you?

3

MS. HEYSE: I apologize.

4

THE COURT: Can you find it, Professor?

5

THE WITNESS: Yes.

6

BY MS. HEYSE:

7

Q My question to you was:

8

“Okay. And how many of your publications deal

9

with same-sex marriage?”

10

A Right.

11

Q And your answer was,

12

“Well, “The Age of Independence” my book deals

13

with same-sex couples.”

14

A Right.

15

Q Correct?

16

A Correct.

17

Q And then if you skip down to --

18

A Right, but what it says is --

19

Q No, I didn’t -- that’s what it says; correct?

20

MR. MOGILL: I’m sorry, the witness is not done

21

answering the question.

22

THE COURT: He has a right to read it for purposes

23

of completeness.

24

A Let me -- you said,

25

“How many of your publications deal with same-sex

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marriage?”

2

And I said,

3

“Well, ‘The Age of Independence” my book deals

4

with same-sex couples.” And at the time there wasn’t same-

5

sex marriage in the United States. But the book addresses

6

the question of same-sex marriage.

7

Q Okay. And if you look at the next question, it says,

8

“Any other of your publications deal with same-

9

sex couples or same-sex marriage besides your book”?

10

And you say --

11

A I say, “Right, ‘The Searching for a Mate’ also deals

12

with same-sex couples and heterosexual couples.”

13

Q So that does not deal with same-sex marriage?

14

A Right.

15

Q Okay. So you have one publication that deals with

16

same-sex marriage?

17

A Okay.

18

Q Thank you.

19

So you’re not an expert in the law; correct?

20

A That is correct.

21

Q And you’re not an expert in child development;

22

correct?

23

A Well, I have some expertise in child development. I

24

think when I answered at the deposition was that it’s not

25

my main area, but I have some expertise in it.

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Q And you’ve not been qualified as an expert in that

2

purposes of this case; correct?

3

A That sounds correct.

4

Q Okay. And you’ve conducted only one study regarding

5

outcomes on children raised by same-sex couples; correct?

6

A That’s correct.

7

Q And you’re aware that childrens’ outcomes were at

8

issue in the same-sex marriage debate before you began your

9

research in that study; correct?

10

A That’s correct.

11

Q And with your research you sought to contribute to

12

that debate; correct?

13

A That’s correct.

14

Q Okay. Thank you.

15

Now, would you agree with me, Dr. Rosenfeld, that

16

families are diverse?

17

A That’s sounds correct.

18

Q And that would include same-sex families; correct?

19

A Yes.

20

Q And as a social scientist you would agree that it’s

21

important to make sure that your research reflects

22

diversity; correct?

23

A There are circumstances where your research can

24

reflect that diversity and there’s other circumstances

25

where the diversity is not always accessible to you.

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Q Sure. But any time it’s accessible and possible that

2

would be an important thing to make sure that your research

3

reflects that diversity; correct?

4

A That’s -- you know, one of the reasonable goals.

5

Q And you would agree that heterosexual married couples

6

are the predominant system in the United States for raising

7

kids; correct?

8

A That’s correct.

9

Q Okay. Now your opinions in this particular case are

10

based at least in part on review of others’ literature

11

especially with regard to the small convenient sample

12

studies; correct?

13

A Well, as I answered at the deposition the convenient

14

studies and here we mean --

15

MS. HEYSE: Your Honor, I would ask that the

16

witness respond to the question.

17

THE COURT: I agree with you. If you would like a

18

yes or no answer ask him to answer yes or no.

19

Professor, if you can’t answer it yes or no

20

because you’re under oath in order to be complete let

21

counsel know so that she knows and then she can do whatever

22

she cares, but I agree with you.

23

MS. HEYSE: Thank you, your Honor.

24

BY MS. HEYSE:

25

Q Your opinions in this case are based at least in part

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on review of others’ literature especially with regard to

2

the same convenient sample studies, yes or no?

3

A I don’t think I can answer that yes or no. I need to

4

qualify that.

5

THE COURT: That’s fair.

6

A So --

7

THE COURT: Counsel will let you know if she wants

8

you to qualify that.

9

MS. HEYSE: I’ll move on.

10

BY MS. HEYSE:

11

Q In preparing the report for this particular case you,

12

in fact, had assistance from plaintffs’ counsel in

13

determining what literature would be useful and relevant to

14

the Court; is that correct?

15

A They did help me figure out what issues --

16

Q Is that correct, yes or no?

17

A Yes.

18

Q And plaintiffs’ counsel assisted you in determining

19

what issues were relevant for purposes of your report;

20

correct?

21

A Correct.

22

Q Thank you.

23

And your research is focused on large sample

24

nationally representative studies; correct?

25

A Correct.

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Q So you would agree with me that you’re not as familiar

2

with the small sample convenient sample studies; correct?

3

A That’s correct.

4

Q That’s not really your area of expertise.

5

A That’s right.

6

Q Okay. And you don’t have a firm grasp on the details

7

of those small sample, convenient sample studies; correct?

8

A I’d like to qualify that and say that I don’t have a

9

firm grasp on the details of them all.

10

Q Okay. Fair enough.

11

And you would agree with me that there are

12

limitations to small convenient sample studies; correct?

13

A I’d like to qualify that answer as well.

14

Q I don’t think it requires a qualification.

15

THE COURT: If you can answer yes or no, fine. If

16

you can’t, just say you can’t.

17

A Yes.

18

BY MS. HEYSE:

19

Q And small sample convenient studies don’t allow for

20

statistically powerful test of hypotheses; correct?

21

A The -- I’d like to qualify that as well.

22

Q Well, Dr. Rosenfeld --

23

A Well --

24

MR. MOGILL: If the witness says he can’t answer

25

it yes or no --

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THE COURT: If you can’t answer it yes or no just

2

tell her.

3

BY MS. HEYSE:

4

Q If you could then turn to page 119 of your deposition?

5

A Sure.

6

Q Half way through the page there, there’s a question

7

posed and I say to you,

8

“I think you mentioned in your testimony” --

9

MR. MOGILL: What page?

10

MS. HEYSE: I’m sorry, 119.

11

MR. MOGILL: Thank you.

12

BY MS. HEYSE:

13

Q I say to you,

14

“I think you mentioned in your testimony that you

15

acknowledge that there are some limitations with regard to

16

small sample studies. Can you identify me -- identify for

17

me what those limitations would be.”

18

And your answer,

19

“Well, all research has limitations so the

20

limitations of small convenient studies is that they don’t

21

allow for statistically powerful tests for all your

22

hypotheses.”

23

That was your response; correct?

24

A That’s correct.

25

MR. MOGILL: That was part of his response. The

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rest of it needs to be read --

2

THE COURT: I’m sorry.

3

MR. MOGILL: I would object to taking it out of

4

context. I think the remainder of the response is necessary

5

--

6

THE COURT: Well, you’ll have a chance on

7

Redirect.

8

MR. MOGILL: Thank you, your Honor.

9

BY MS. HEYSE:

10

Q In fact, Dr. Rosenfeld, you noted in your demography

11

article -- you noted that in your demography article;

12

correct?

13

A I think if you want me to agree to something in the

14

demography article, I’d like to see the quote.

15

Q Sure.

16

MS. HEYSE: May I approach, your Honor?

17

THE COURT: Absolutely.

18

A Do you have a page for me?

19

BY MS. HEYSE:

20

Q You stated that you don’t recall discussing these

21

small convenient samples in your demography article?

22

A Well, I remember discussing it, but I would like you

23

to refer me to a specific so I can get the context of what

24

I said in the article.

25

Q Okay. It would be on page 756 to 757 of your article.

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WEDNESDAY, FEBRUARY 26TH, 2014

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A Yes.

2

Q The answer to the question is yes or you’re ready?

3

A Repeat the question.

4

Q Sure. We were talking about the small sample studies

5

not allowing for statistical powerful test of hypotheses,

6

and I said, in fact, you noted that in your demography

7

article --

8

A What I noted was that -- that critique exists in the

9

literature.

10

Q But it’s noted in your demography article; correct?

11

A It’s noted that that critique exists in the

12

literature, but that’s distinct from saying that’s my

13

critique.

14

Q Okay. And you would agree that when the APA issued its

15

statement in 2005 it did so relying almost exclusively on

16

these small convenient sample studies; correct?

17

A That’s correct.

18

Q And with these convenient sample studies instead of

19

using a survey as you discussed in your studies the

20

researchers find people to study that are closest to them;

21

correct?

22

A Correct.

23

Q Okay. And it’s true, isn’t it, that small sample

24

studies have many more studies of lesbian mothers than of

25

gay men; correct?

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A That’s correct.

2

Q Now, Dr. Rosenfeld, are you familiar with Gary Gates?

3

A I am.

4

Q And isn’t it true that both of you analyze census

5

data?

6

A That’s correct.

7

Q And you would agree with me that Gary Gates is the

8

predominant expert in census data; correct?

9

A He’s one of the predominant experts in census data as

10

it relates to same-sex couples for sure.

11

Q And are you aware if you qualified that answer in your

12

deposition?

13

A I don’t remember.

14

Q In fact, you consulted him with regard to your study

15

on “How Couples Meet and Stay Together”; correct?

16

A That’s correct.

17

Q So you would agree with me that he knows the census

18

data better than you; correct?

19

A I don’t believe I said that.

20

Q Okay. If you could turn to page 41 of your deposition.

21

A Can I continue my answer?

22

Q I’m going to read this to you,

23

“Gary Gates has a lot of expertise in the census

24

data and I think probably knows the consensus data better

25

than I do.”

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A The “Canadian census data.”

2

Q Pardon, “Canadian census data better than I do. I

3

haven’t done my own research on the Canadian census data.”

4

Let me qualify my question then. So Gary Gates

5

knows the Canadian census data better than you; correct?

6

A Yeah, that’s an important qualification because my

7

research with the U.S. census.

8

Q Absolutely, and I apologize for misstating that. He

9

does, in fact, know the Canadian census data better than

10

you.

11

A I would expect so.

12

Q Thank you.

13

Now, Dr. Rosenfeld, you have some criticisms of

14

Dr. Allen’s study analyzing the Canadian census data;

15

correct?

16

A Yes.

17

Q And, again, from that deposition testimony, you’ve not

18

done your own research with regard to the Canadian census

19

data; correct?

20

A That’s correct.

21

Q Okay. Now, you criticize Dr. Allen’s study of

22

children’s progress through school using the Canadian

23

census data because it was limited to five years; correct?

24

A The window of what we know about the past of the

25

family was limited to five years.

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Q Thank you.

2

A In fact, in the heart of the paper as far as I can

3

tell he only used a one-year window.

4

Q Thank you, but I think you’ve answered my question.

5

But the same is true of the U.S. Census data that

6

you rely on; correct, you get that five-year window.

7

A Right.

8

Q Okay. So outside of the five-year period that -- for

9

lack of a better term I’m going to call it the five-year

10

snapshot, if you will, in both the United States and the

11

Canadian census data that data cannot tell you the family

12

makeup outside of that five years; correct?

13

A Well, I’d like to qualify the answer which is that

14

it’s true that you have the same five-year window in the

15

Canadian census and the U.S. census but I was looking at

16

progress through the primary school for which the five-year

17

window covers most or all.

18

Q That doesn’t answer my question. My question to you

19

is: outside of that five-year period in both of the United

20

States census data and the Canadian census data that data

21

is not going to tell you about anything outside of that

22

five-year period; correct?

23

A That’s correct.

24

Q Thank you. And you would agree with me that five years

25

is not long enough to actually raise a child; correct?

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A That’s correct.

2

Q Thank you. Now, you also have some criticisms of Dr.

3

Regnerus’ study; correct?

4

A Yes.

5

Q And you believe that Dr. Regnerus’ New Family

6

Structure Study, NFSS, his data is high quality though;

7

correct?

8

A I think it’s high quality data.

9

Q Thank you. And you would agree with me that the

10

underlying data gathering process that Dr. Regnerus’ study

11

used is mainstream social science; correct?

12

A That’s correct.

13

Q In fact, there are certain strengths to the data in

14

the NFSS study; correct?

15

A I’d like to qualify what those are if I may.

16

Q We’re going to go through them so if you could just

17

answer my question that would be perfect.

18

A All right.

19

Q There are strengths to the NFSS data; correct?

20

A Yes.

21

Q Okay. And those strengths include that it has a

22

nationally representative -- is nationally representative

23

data which is an advantage over many data sources used to

24

study same-sex couples; correct?

25

A What I would say about the advantage of national

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1

represent-sensitivity is it has some advantages and some

2

disadvantages as well.

3

Q Well, didn’t you, in fact, state those explicit words

4

in a re-analysis that you did of Dr. Regnerus’ study?

5

A Yes.

6

Q So in other words, you specifically stated -- and I

7

quote. I mean, this is directly from your work,

8

“Those strengths include it has a nationally

9

representative data which has an advantage over many data

10

sources used to study same-sex couples.”

11

A Correct.

12

Q Okay. And another strength of that data is that the

13

NFSS over sampled children raised at least in part by same-

14

sex couples allowing researchers statistical leverage;

15

correct?

16

A That’s correct.

17

Q Okay. And another advantage is that it contains a

18

detailed year-to-year family calender from which

19

respondent’s childhood family structure history can be

20

reconstructed; correct?

21

A Correct.

22

Q Thank you. And it also asks many questions about a

23

variety of childhood and adult outcomes; correct?

24

A Correct.

25

Q Thank you. Now you did your own re-analysis of Dr.

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Regnerus’ data; correct?

2

A Yes.

3

Q And with your re-analysis of Dr. Regnerus’ data you

4

find no disadvantages for child being exposed to same-sex

5

relationships; correct?

6

A Correct.

7

Q But to reach that finding you had to add an additional

8

control for family stability; correct?

9

A Correct.

10

Q But you would agree with me that family transitions

11

which translates to family instability; correct?

12

A Could you say --

13

Q Family transitions would be the same thing as family

14

instability?

15

A Okay.

16

Q But you would agree with me that those transitions

17

dominate same-sex couplehood in the study of family

18

effects; correct?

19

A No, the --

20

Q You don’t believe that transitions dominate same-sex

21

couplehood in the study of family effects?

22

A Okay, yes, I agree.

23

Q Thank you. Now, children of same-sex couples often

24

have a prior family; right?

25

A Right.

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Q Either have been in the foster system or potentially

2

the product of a failed heterosexual union; correct?

3

A Correct.

4

Q And you would agree with me that Dr. Regnerus’ results

5

were correctly reported.

6

A Given the limitations of his --

7

Q I understand you don’t agree with the findings, but

8

when you ran the numbers they were correctly reported.

9

MR. MOGILL: Excuse, Ms. Heyse is continually

10

interrupting Professor Rosenfeld’s answers. I think it’s

11

inappropriate. I think the witness needs to be allowed to

12

complete his answer.

13

THE COURT: I’m not sure that’s happening. I

14

didn’t quite notice that, but, yes, let’s move on. I didn’t

15

see that --

16

MS. HEYSE: I’ll certainly try to pay attention,

17

your Honor.

18

THE COURT: Good.

19

BY MS. HEYSE:

20

Q Okay. Backtracking for a moment, Dr. Rosenfeld, we

21

were discussing the family transitions dominating same-sex

22

couples. I just want to restate my question to make sure --

23

A Well --

24

Q Let me restate the question because I don’t have a

25

question posed before you and then you’ll have an

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opportunity to answer; okay. It goes a lot better that way.

2

But you agree that family transitions dominate

3

same-sex couplehood in the study of family effects;

4

correct?

5

A No. Same -- family transitions dominate having lived

6

with same-sex couples in the prediction of negative

7

outcomes in the data.

8

Q So this is not a quote -- you’ve not stated this in

9

writing anywhere, yes or no?

10

A It’s hard for me -- I don’t have the text in front of

11

me.

12

Q I have a copy which I would be happy to provide.

13

A Please.

14

Q Looking at your quote let me restate the quote --

15

MR. MOGILL: Do you have a page?

16

MS. HEYSE: Yes, page 5. It would be the first

17

paragraph under the “Same-sex Couples” heading there.

18

Let me restate my question because I have a

19

little different one so I want to make sure we get this

20

correct; okay?

21

BY MS. HEYSE:

22

Q “But you would agree with me that family transitions

23

dominate same-sex couplehood in the study of family effects

24

on children.”

25

A Well, the quote if I can read --

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Q Well, first of all, is that an accurate quote from

2

your -- this is your writing?

3

A Yes, but I don’t think you read it correctly so I just

4

want to read it.

5

Q Okay.

6

A “Just as family transitions have been shown to

7

dominate the effect of single parenthood on children’s

8

outcomes so too has research shown that family transitions

9

dominate same-sex couplehood in the study of family’s

10

effects on children.”

11

Q So you would agree with me, again, that part of that

12

quote says,

13

“Research has shown that family transitions

14

dominate same-sex couplehood in the setting of family

15

effects on children.”

16

A That’s correct.

17

Q Thank you. And, again, getting back to the question

18

with regard to Dr. Regnerus’ study, again, his results were

19

correctly reported?

20

A Yes, I replicated his results given --

21

Q Okay.

22

A I’d just like to finish this.

23

Q Is it responding to my question?

24

A Given the limitations of his study design which I

25

think are fundamental the results are correct in the

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report.

2

Q Okay. You disagree with the fact that he didn’t

3

control for stability.

4

A Right.

5

Q Aside from that his findings were correct.

6

A That’s correct.

7

Q Okay. You’ve also criticized the work of Price, Allen

8

and I’m probably going to mispronounce this but Pakaluk.

9

They replicated your study regarding children’s progress in

10

school; correct?

11

A Correct.

12

Q You both reached different results when analyzing that

13

data; correct?

14

A That’s correct.

15

Q Okay. You found no difference between the children

16

being raised by same-sex couples and they found there were

17

differences; correct?

18

A Well, not exactly because they didn’t rely on the

19

children who were actually raised by same-sex couples the

20

same way I did.

21

Q Okay. I’m speaking of their outcome.

22

A I want to finish my answer.

23

When I analyzed the data I was relying

24

exclusively on the children who were really raised by the

25

same-sex couples because I only included the children whose

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families through school we really knew. They added in the

2

children whose family through school we didn’t know.

3

So while I was analyzing children raised by same-

4

sex couples they were doing something else.

5

Q Sure. I understand that you don’t agree that. We heard

6

all about that yesterday. My question to you was: You

7

reached different conclusions with regard to these studies;

8

correct?

9

A We reached different conclusions.

10

Q And just to be clear there were two things that you

11

controlled for I think you called it restricted for that

12

they didn’t; correct?

13

A Correct.

14

Q Okay. You restricted the study to biological children

15

of the household head; correct?

16

A Yes.

17

Q So that excluded other children living in the home if

18

they weren’t biological children of the household head;

19

correct?

20

A Correct.

21

Q And you also restricted the study to children who were

22

living in the same home with the same parents for that

23

five-year period; correct?

24

A Correct.

25

Q Okay. I want to talk you a little bit about -- let me

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-- now, there’s no question on the survey for the census

2

data that asks whether a child was held back in school;

3

correct?

4

A Correct.

5

Q So you’re making an inference or an assumption based

6

on the age of the child and his her grade; correct?

7

A Correct.

8

Q Okay. And you testified that you know from the census

9

data that the members of the household were living in the

10

same household for five years; correct?

11

A Correct.

12

Q But you can’t actually tell from that data that the --

13

what the status of the relationship was between the parties

14

in the household; correct?

15

A Correct.

16

Q Okay. Now, I want to talk a little bit about figure 2

17

because you spent time on that yesterday. I just want to

18

make clear you made some statements with regard to Dr.

19

Allen’s intentions in drafting that figure. I just want to

20

make clear that you don’t actually know why Dr. Allen

21

drafted figure 2 the way he did; correct?

22

A I don’t have any information about his intentions

23

other than what he wrote in his expert report. And in that

24

expert report he said -- I don’t have it in front of me,

25

but that the figure 2 shows what Rosenfeld’s results -- I

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mean -- do you want to pull up the quote?

2

Q No, I think you answered my question sufficiently.

3

Again, you don’t actually know what he was

4

thinking when he drafted that particular figure that way;

5

correct?

6

A I don’t know what he was thinking.

7

Q And you don’t know exactly what he was trying to

8

portray with that figure; correct?

9

A Well, let me go back to --

10

Q Well, do you know with any certainty what he was

11

trying to convey with that figure?

12

A I know that he wrote what Rosenfeld actually found is

13

represented in figure 2. So that’s -- I take that

14

seriously.

15

Q Okay. Fair enough.

16

But you have no way of knowing that he actually

17

intended to exaggerate that figure as you stated on the

18

record yesterday; correct?

19

A Well, there’s two parts there. I don’t know if I --

20

that he intended to exaggerate. What I said was that he did

21

exaggerate. I can’t speak to his intention.

22

Q So you have no way of knowing if that was his

23

intention to exaggerate; correct?

24

A That’s correct.

25

Q And, again, your study relies on U.S. Census data.

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A Yes.

2

Q And you’ve acknowledged that the U. S. Census data

3

suffers from limitations; correct?

4

A Certainly.

5

Q Normal progress through school is the only outcome

6

that can be measured and that’s with less precision than

7

you would like; correct?

8

A That’s correct.

9

Q And identifying same-sex couples is less precise than

10

you would like; correct?

11

A That’s also correct.

12

Q And that’s because in the 2000 census data there were

13

survey errors and recoding with regard to the household

14

roster; correct?

15

A Correct.

16

Q And the census data also cannot tell you the

17

relationship between the head of the household, the person

18

filling out the form in other words, and the child or the

19

relationship between the child and the partner; correct?

20

A No, I think the survey form tells you the relationship

21

between the head of the household and the child.

22

Q Okay. Does it tell you about the relationship with

23

this child and anyone else in the home?

24

A No.

25

Q Thank you. It also doesn’t tell you about -- how many

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previous relationships a particular couple has had;

2

correct?

3

A That’s correct.

4

Q So you would agree with me then that the census data

5

provides limited information regarding family stability;

6

correct?

7

MR. MOGILL: I’m sorry, I didn’t hear that one,

8

I’m sorry.

9

BY MS. HEYSE:

10

Q You would agree with me that the census data provides

11

limited information regarding family stability; correct?

12

A I’m going to qualify this answer and say that the

13

census is a cross-sectional survey so it has limited

14

information about family stability as cross-sectional

15

surveys tend to have.

16

Q Now, you would agree with Mr. Dr. Rosenfeld, that the

17

same-sex community has a small population for purposes of

18

research; correct?

19

A That’s correct.

20

Q In fact, same-sex couples compromise between one and

21

two percent of all couples in the United States; correct?

22

A That’s correct?

23

Q And the percentage of children raised by same-sex

24

couples is less than one percent; correct?

25

A That’s correct. And I’d like -- if I could expand on

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this answer just a little bit and say that part of the

2

reason that we have convenient sample studies and that the

3

convenient sample studies are valuable --

4

MS. HEYSE: Your Honor, I don’t believe that’s at

5

all responsive to my question.

6

THE COURT: Your attorney -- plaintiffs’ attorney

7

will have an opportunity.

8

BY MS. HEYSE:

9

Q In fact, children raised by same-sex couples and I

10

quote, “are a needle in the haystack population”; correct?

11

A Correct.

12

Q And as a result, large sample nationally

13

representative studies of children raised by same-sex

14

couples are few; correct?

15

A That’s correct.

16

Q I’m going to turn now to the stability of same-sex

17

couples. There’s a small body of research regarding the

18

stability of same-sex couples; correct?

19

A Okay, that’s correct.

20

Q You testified earlier that research is mixed with

21

regard to stability. Some studies say less stable, some

22

studies say more stable; correct?

23

A Yes.

24

Q And those studies are of short duration; correct?

25

A The studies -- for instance, the study from the United

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Kingdom followed couple for four years.

2

Q The Balsam study for three years?

3

A The Balsam study for the years. The data that I

4

published was following couples for two years. So that’s a

5

modest duration.

6

Q Okay. I do want to talk a little bit about your study,

7

“How Couples Meet and Stay Together.”

8

A Right.

9

Q You acknowledge that’s a small data set when you’re

10

looking at longitudinal studies; correct?

11

A I guess it depends on -- small compare to what? It’s a

12

modest sample size, but it actually has a substantial

13

number of same-sex couples in it.

14

Q And you actually used the same data source for that

15

study as Dr. Regnerus did for his; correct?

16

A Not exactly. We used the same survey company.

17

Q You’re right. The same survey company. Okay.

18

And where do you get your data from for that

19

particular study?

20

A The company is Knowledge Networks. I think it’s -- has

21

a newer name which is GFK.

22

Q Sure, but my point is, doesn’t the data in fact come

23

from the survey?

24

A They are different surveys. In other words, my study

25

is a survey that I designed and his study was a survey that

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he designed.

2

Q Sure by the same -- done by the same entity. You

3

designed it and it’s implemented by the same entity;

4

correct?

5

A Yes.

6

Q And that’s where the data comes from.

7

A That’s correct.

8

Q So, in fact, your data source is the same --

9

A No, the data sets are different, but the company that

10

asks the questions of the subjects is the same. But the

11

data source -- usually when we think about data source

12

we’re thinking about the data itself so the data itself are

13

different. Two different data.

14

Q Okay. Thank you. You’re not aware of any data that

15

tracks the stability of same-sex married couples beyond

16

that five-year period; correct?

17

A That’s correct.

18

Q And you would agree with me that we’ll know more in

19

the future about the stability of same-sex married couples;

20

correct?

21

A That’s correct.

22

Q And you also agree with me that research is a long

23

process; correct?

24

A That’s correct.

25

Q And you would also agree with me that because of the

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effect -- government recognition -- because the effect of

2

government recognition on longevity -- I’m sorry. Strike

3

that, please.

4

You would agree with them that the effect of

5

government recognition on longevity of same-sex formal

6

unions is not measurable in your study of “How Couples Meet

7

and Stay Together”; correct?

8

A My study predates federal recognition of marriage so

9

there’s

10

Q Sure --

11

MS. HEYSE: Your Honor, may I ask --

12

THE COURT: Yes.

13

MS. HEYSE: It’s a yes or no question.

14

BY MS. HEYSE:

15

Q You agree with me that the effect of government

16

recognition on longevity of same-sex formal unions is not

17

measurable -- I’m not asking you why, but just that it is

18

not measurable in “How Couples Meet and Stay Together”;

19

correct?

20

A I’m not sure I can answer yes or no because there are

21

differences in -- there are couples in the data set who

22

have government recognition, they have domestic

23

partnerships, or they’re married in a state that recognizes

24

marriage. So there are some differences in government

25

recognition. You know, it’s possible to test whether those

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differences have an effect of couples’ longevity.

2

Q Given all that you said there that is actually a

3

statement that you made in your paper; correct?

4

A Will you show me a page?

5

Q Sure, happy to do that.

6

It’s going to be on page 19. It will be the next

7

to last sentence there before you get to the second

8

section.

9

If you can read along with me,

10

“Because the effect of government recognition on

11

longevity of same-sex unions is not measurable in “How

12

Couples Meet and Stay Together.”

13

So again taking that language right from --

14

A Now, I see what it means. The context is important.

15

Q So that is a quote.

16

A That is a quote.

17

Q And you would agree with me, Dr. Rosenfeld, that

18

studies of family structure and children’s outcomes almost

19

universally find advantage for children raised by their

20

biological parents; correct?

21

A So this is a quote I believe from my demography paper,

22

from the first page of it.

23

Q First, can you answer my question as to whether you

24

agree with that?

25

A Well, so it’s a quote from my paper but what the

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context is, if you look at the quote is that it’s

2

heterosexual married couples compared to other heterosexual

3

families. So single parents, unmarried couples and so on.

4

Q But regardless of your qualification there you’ve

5

stated here that there is an advantage; correct?

6

A But the context is important. It’s an advantage

7

compared to the other heterosexual families.

8

Q But there is an advantage.

9

A Of the children raised by heterosexual married couples

10

compared to the children raised by heterosexual single

11

parents, and unmarried heterosexual couples.

12

Q But there is an advantage to being raised by your

13

biological parents in those comparison groups.

14

A With those comparison groups.

15

MS. HEYSE: If I may have a moment to confer with

16

counsel?

17

THE COURT: Sure.

18

MS. HEYSE: Thank you.

19

I think I’m all set, your Honor.

20

MR. MOGILL: Very briefly.

21

THE COURT: Very well.

22

REDIRECT EXAMINATION

23

BY MR. MOGILL:

24

Q Good morning, Dr. Rosenfeld.

25

A Good morning.

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Q Let’s start with a couple questions about -- some

2

phrases that Ms. Heyse used. Is a five-year look back a,

3

quote, snapshot, unquote?

4

A The importance of the length of the five years is

5

relative to the age of the children. If you’re talking

6

about children who are 22 years old then if you have only

7

five years of information about their family five years is

8

not enough. But if you’re talking about children who are

9

nine years old and you’re talking about their progress

10

through school five years covers their entire progress

11

through school. For childhood outcomes, for primary school

12

outcomes, a five-year window is very good. For high school

13

graduation outcome, five-year window is not sufficient

14

which is why I didn’t look at high school outcomes in the

15

U. S. Census it didn’t really make sense.

16

Q With respect to the status of the relationship of

17

children living in the home that you looked at in the U. S.

18

Census in your demography study, is it correct that the

19

United States Census unlike the Canadian Census

20

specifically asks category of relationship -- own child,

21

step child, adopted child, foster child?

22

A That’s correct. The U.S. Census of 2000 distinguished

23

natural born children from adopted children, from foster

24

children, from step children where as the Canadian census

25

had only one category for child.

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Q Lumped them all together.

2

A Lumped them all together.

3

Q Ms. Heyse asked you a question about small samples and

4

statistical power.

5

A Right.

6

Q If I understand you correctly an individual small

7

sample does not have a lot of statistical power; is that

8

correct?

9

A That’s correct.

10

Q So the question is: is there a way to have statistical

11

power from the fact of small sample studies?

12

A So what we have in the literature is many small sample

13

studies. So it’s not -- if we only had one then a sample

14

size of that one if it was 40 or 50 subjects would be, you

15

know, problematic. But if you have 50 samples of 40 or 50

16

subjects even though the individual studies have small

17

sample size the group of studies is relying on fairly large

18

sample size. So the sample size of the study may be small

19

but in the literature there are many such studies.

20

Q And what’s the significance of that in terms of

21

statistical power?

22

A Well, the more sample size you have across the studies

23

the more power you have. It’s really the total sample size,

24

not the sample size of one individual study that’s relevant

25

because it’s the total body of literature we’re considering

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not a single study.

2

Q If I understand you correctly, is it essentially that

3

a small sample study or two small sample studies you can’t

4

really be confident of the conclusion but if there’s

5

replication across a broader number of studies that’s where

6

the power comes from?

7

A That’s where the power comes from. It’s replication.

8

And the other thing I would say is that the

9

larger survey data and the convenient sample studies both

10

have strengths and weaknesses. So one of the things we

11

talked about yesterday was that the survey data have a

12

difficult time identifying, for instance, couples who have

13

been raising the child, same-sex couples who been raising

14

the child from birth, right, there’s very few of those. But

15

in the convenient sample studies you can actually find

16

those populations and study them directly. So there are

17

advantages to both.

18

Q Let’s talk about difficulty of identification which

19

goes to the question Ms. Heyse asked you about errors in

20

the U.S. Census, the U. S. 2000 Census. In the course of

21

conducting your demography study were you aware of and did

22

you account for the likelihood of -- or fact of errors?

23

A Yes.

24

Q And would you tell the Court, please, what you did

25

because you knew they were there and you wanted to make

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sure you didn’t contaminate your data.

2

A Right. So there’s the -- the research and this is more

3

research subsequently but there was some of it available at

4

the time when I was writing that paper suggested that among

5

the people who identified themselves as same-sex married

6

couples in 2000 there were more errors of identification

7

because there were many, more heterosexual married couples

8

than same-sex married couples. So small error in the larger

9

group.

10

Q Well, in 2000 no same-sex married couples.

11

A Right. But even the government didn’t recognize same-

12

sex marriage, people identified themselves as married.

13

So one of the things that I did in my analysis is

14

I redid the analysis without any of the people who

15

identified themselves as married and I got the same

16

results. So I’m confident that whatever identification

17

problems there were don’t impact my results.

18

Q Would this be an example of being careful to control

19

for contamination of the data?

20

A It’s an example of checking that the results are

21

robust to potential limitations of the data and all data

22

have limitations.

23

Q Now, I’d like to ask you some questions just to

24

clarify with respect to your analysis of Professor

25

Regnerus’ study. You agreed with Ms. Heyse that the data

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itself is real data.

2

A Right.

3

Q Is it correct to say that your concern with Professor

4

Regnerus is not with the data but what he did with it.

5

A That’s right. The data are perfectly reasonable but

6

the analysis performed by Professor Regnerus doesn’t relate

7

to the question that we’re studying here because it didn’t

8

really relate to outcomes for children raised by

9

same-sex couples and it had many more of the subjects who

10

had never lived with same-sex couples at all.

11

The failure to control for family transitions is

12

a huge omission. So it’s the analysis that I take issue

13

with, not the data. The data are perfectly good.

14

MR. MOGILL: Nothing further.

15

THE COURT: You may step down.

16

Thank you, Professor. We appreciate it.

17

Next witness, please.

18

MS. STANYAR: Your Honor, we have some -- we’re

19

still waiting for a witness.

20

THE COURT: I’m sorry, I can’t hear you. You have

21

to go to the microphone.

22

MS. STANYAR: We are waiting for a witness, but we

23

have some housekeeping matters, some stipulations that we

24

can read into the record to --

25

THE COURT: Okay. And your next witness is who?

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MS. STANYAR: Vivek Sankaran.

2

THE COURT: Oh, okay. I thought Dr. Gates --

3

MS. STANYAR: We’ve switched them in order.

4

THE COURT: Oh, okay.

5

So do you have -- I don’t know. We were talking

6

about filling some spots. Who are your witnesses for today?

7

MS. STANYAR: Today is just Vivek Sankaran. Doctor

8

Gates comes in tonight.

9

THE COURT: Okay. Let’s put the stipulations on

10

the record. We’re waiting for him to come? He’s on his way?

11

MS. STANYAR: He will be here at 11:00 o’clock.

12

THE COURT: Okay. So we’ll take a break until

13

11:00. Let’s put the stipulations on the record.

14

MS. STANYAR: Okay.

15

THE COURT: Oh, here is your transcript from

16

yesterday.

17

MS. STANYAR: Okay. Your Honor, the parties have

18

reached stipulated facts regarding the plaintiffs. This

19

will be Plaintiffs’ Exhibit Number 53.

20

THE COURT: Do you want to read them into the

21

record, please?

22

Is it long?

23

MS. STANYAR: It’s not that long. This one is not

24

that long.

25

MR. POTCHEN: We gave you our copy.

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THE COURT: Okay. Why don’t you read them into the

2

record.

3

MS. STANYAR: Well, actually, it’s seven pages.

4

THE COURT: Go for it.

5

MS. STANYAR: Okay.

6

THE COURT: Go for it. We have a lot of people

7

here, they won’t get a chance to see it --

8

MS. STANYAR: I know, exactly.

9

THE COURT: And they should know what the

10

stipulation is. Seven pages isn’t bad.

11

MS. STANYAR: Okay.

12

THE COURT: Read it into the record. You can read

13

over her shoulder, she won’t mind.

14

MS. STANYAR: The parties and their respective

15

attorneys stipulate to the following facts in lieu of the

16

adult plaintiffs testifying at trial.

17

Plaintiffs are an unmarried same-sex couple

18

residing in Hazel Park, number one.

19

Number Two, plaintiffs had a commitment ceremony

20

in 2007. They have lived together for the past eight years

21

and jointly own their own residence.

22

Number Three, Deboer is a nurse in the neo-

23

intensive care unit at Hutzel Hospital, and Rowse is an

24

emergency room nurse at Henry Ford Hospital both located in

25

Detroit.

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Number Four, in November of 2009, Rowse, as a

2

single person legally adopted child “N.” Thereafter also as

3

a single person she legally adopted child “J.”

4

Number Five, in April of 2011, Deboer as a single

5

person adopted child “R.”

6

Number Six, “R” and “J” were and are “special

7

needs children.

8

And just a footnote to that, “R” has required

9

physical therapy for delays in her growth motor skills. “J”

10

requires occupational and physical therapy for his many

11

medical complications. Rowse and Deboer have shared in the

12

responsibility of caring for “J’s” continuing special needs

13

and for “R’s” need for physical therapy with both of them

14

rotating and bringing the children to their various medical

15

appointments, physical and occupational therapy

16

appointments. Both Rowse and Deboer share in carrying out

17

the children’s prescribed therapies in their home.

18

Number Seven, before the adoption of the children

19

the State of Michigan licensed the adult plaintiffs’ home

20

as a foster home and approved both adult plaintiffs as care

21

givers for the children.

22

Number Eight, before Rowse and Deboer could adopt

23

any of the children, A, they had to petition the circuit

24

court for permission to adopt.

25

B, both Rowse and Deboer were interviewed

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extensively for each adoption.

2

C, both were screened by the State for criminal

3

history and through the Department of Human Services for

4

any history of abuse or neglect.

5

D, an assessment was conducted through the county

6

where the adoptions were to take place.

7

E, their home was inspected.

8

F, a temporary placement of each child was made

9

in their home.

10

G, they were monitored by the state in their home

11

with visits by social workers and in “J’s” case nurses.

12

H, a determination was made by the circuit court

13

of applicable jurisdiction that they were suitable parents

14

and that in each case the child being adopted was being

15

properly cared for while in a temporary placement.

16

As to two of their children, “R” and “N” at the

17

time of the adoption the circuit court also had to make

18

“the best interesting of findings” in order terminate the

19

rights of the birth parents.

20

Number Nine, Deboer and Rowse are responsible and

21

caring parents who are providing a stable and loving home

22

for their children.

23

Number Ten, in the absence of a legal document

24

granting decision-making authority and because their

25

children have many special needs, it continues to be

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problematic for Rowse and Deboer that Rowse is not

2

recognized as “R’s” parent by medical personnel and other

3

care givers, and that Deboer is not recognized as “J” and

4

“N’s” parent. This is a recurring issue as they approach

5

each new treating facility or care giver is Deboer is

6

unable to accompany “R” or if Rowse is unable to accompany

7

“J” and “N.”

8

This is especially true with unexpected emergency

9

medical situations where time is of the essence and

10

decisions have to be made quickly.

11

Number 11, Deboer cannot cover Rowse’s sons, “M”

12

and “J” on her insurance. She would have to buy insurance

13

for them.

14

Number 12, Rowse and Deboer have been advised

15

that if Deboer were to die while the children are still

16

minors Rowse would be treated as an unrelated adult to “R”

17

in the eyes of Michigan’s legal system. She would have to

18

start from scratch to be either their foster or adoptive

19

parent. She has been advised that she would have no legal

20

right to visitation or custody of “R” without pursuing

21

legal action.

22

Rowse and Deboer have also been advised if Rowse

23

were to die while the children were still minors, Deboer

24

would be treated as an unrelated adult to “J” and “N” in

25

the eyes of Michigan’s legal system, and she would have to

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start from scratch to either be their foster or adoptive

2

parent.

3

She’s been advised that she would have no legal

4

rights to visitation or custody of “J” and “N” without

5

pursuing legal action.

6

Number 13, Deboer and Rowse have been further

7

advised that if Deboer dies without a will “N” and “J” have

8

no legal rights to inheritance, and if Rowse dies without a

9

will “R” has no legal rights to inheritance.

10

Number 14, it is Deboer and Rowse’s understanding

11

that if Deboer dies or becomes disabled, “N” and “J” are

12

not eligible for social security benefits through her, and

13

if Rowse dies “R” is not eligible for social security

14

benefits through her.

15

Number 15, Deboer and Rowse have also been

16

advised that if they separated as a couple under Michigan

17

Deboer would have no automatic lawful right to custody or

18

even visitation for “N” and “J,” and Rowse would have no

19

automatic lawful right to custody or even visitation for

20

“R.”

21

Number 16, the fact that Deboer currently has no

22

legal relationship over “R” and that Rowse currently has no

23

legal relationship over “N” and “J” creates stress and

24

anxiety in their lives, and they believe it creates risks

25

and instability to their children.

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1

Number 17, if they were legally able to do so,

2

Rowse and Deboer would marry each other in the State of

3

Michigan.

4

It is so stipulated, signed by the parties.

5

THE COURT: Correct, counsel?

6

MS. HEYSE: Yes, that is correct.

7

THE COURT: And what exhibit it, please?

8

MS. STANYAR: Exhibit Number 53 and we’ll make

9

sure everybody has a copy.

10

THE COURT: Exhibit 53 will be admitted. The Court

11

will accept those stipulations of fact, and considering the

12

facts in this matter.

13

We will stand --

14

MS. STANYAR: I have two more stipulations.

15

(Plaintiffs’ Exhibit No. 53 received into

16

evidence.)

17

THE COURT: Oh, I’m sorry. Sure.

18

MS. STANYAR: There’s a stipulation between the

19

parties regarding a witness named Leslee Fritz. It’s

20

spelled L-e-s-l-e-e. Fritz is spelled F-r-i-t-z.

21

The parties through their respective attorneys

22

stipulate and agree to the following:

23

Number One, that if witness Leslee Fritz were

24

call to testify she would testify that she employed with

25

the Michigan Department of Civil Rights, and that she is an

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1

authorized records custodian for a document entitled “The

2

Michigan Department of Civil Rights Report on LGBT

3

Inclusion.” This is a record kept in the ordinary course of

4

business within her department.

5

Number Two, that the State defendants will not

6

object to the admissibility of this document based upon

7

authenticity. The State defendants may have an objection

8

based upon relevance.

9

Number Three, the parties agree that Fritz need

10

not be deposed in anticipation of trial, and she was not

11

deposed.

12

Number Four, the parties agree that Fritz will

13

not testify at trial.

14

It is stipulated between the parties.

15

I move for the admission of that stipulation.

16

THE COURT: Any objection?

17

MR. POTCHEN: Yes, we object on relevance.

18

THE COURT: You object not to the stipulation, but

19

you object to the document that she would authenticate?

20

MR. POTCHEN: Yes. It’s an authenticate document,

21

no objection to that. We object on relevance grounds.

22

THE COURT: Very well. I’m not going to receive

23

the document itself. I’ll receive the stipulation so that

24

she does not have to testify.

25

MS. STANYAR: The stipulation was for the

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1

stipulation and the document.

2

THE COURT: The document -- the way I heard it, it

3

was not that the admissibility of the document as to

4

relevance and so forth, but that they are not going to --

5

is that -- you’re not going to challenge the authenticity

6

or any --

7

MS. STANYAR: Right, they’re not challenging

8

authenticity --

9

MR. POTCHEN: We’re not challenging the

10

authenticity, correct, your Honor. We are objecting to the

11

admittance based on relevance.

12

THE COURT: You’ll do that at such time as they

13

offer it?

14

MR. POTCHEN: Yes, I guess.

15

MS. STANYAR: The proponent of that has left the

16

room so we’ll offer that later --

17

THE COURT: That’s fine.

18

MS. STANYAR: But that’s the stipulation.

19

There’s a third stipulation.

20

This is Plaintiffs’ Exhibit Number 51. This is a

21

stipulation regarding witness George Chauncey.

22

The parties by their respective attorneys hereby

23

stipulate and agree to the admission at trial of the expert

24

witness report of Dr. George Chauncey in lieu of presenting

25

his testimony. In addition they agree and stipulate as

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1

follows:

2

Number One, the State defendants have previously

3

objected based upon grounds of relevance to the inclusion

4

of the Chauncey evidence in Phase One of the trial.

5

The State defendants have also objected to the

6

Chauncey evidence as leading to a “confusion of the

7

issues.”

8

The parties agree and stipulate that both

9

objections are renewed and preserved.

10

The parties agree that Professor Chauncey will

11

not testify at trial.

12

It is so stipulated between the parties.

13

And then we would be -- subject to the State

14

defendants’ objection, we would be admitting the report of

15

-- the expert witness report of George Chauncey, Ph.D..

16

That is a 48-page report which I will not read.

17

THE COURT: No, I don’t want you to read that.

18

Two questions though: What’s the exhibit number

19

for that report, please, or is it attached to the

20

stipulation?

21

MS. STANYAR: The exhibit is an attachment to the

22

stipulation.

23

THE COURT: Which is Exhibit 51?

24

MS. STANYAR: Fifty-one.

25

THE COURT: Okay. Any other stipulations?

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1

MS. STANYAR: Those are the only three

2

stipulations that we have.

3

THE COURT: Okay. Let’s talk about two other

4

things: Number one, as soon as that witness gets here, let

5

me know and we can reconvene. I assume it won’t be much

6

before 11:00 since he’s not due here until 11:00.

7

Just for the record, Dr. Chauncey’s -- what’s his

8

expertise?

9

MS. STANYAR: An expert on discrimination of gay

10

and lesbian people in this country.

11

THE COURT: Is he a sociologist, a psychologist?

12

MS. STANYAR: He’s a historian.

13

THE COURT: Historian. That’s fine. I think for

14

those folks that are here should know, and go from there.

15

MS. STANYAR: Just for the record, he had a family

16

emergency.

17

THE COURT: That’s fine.

18

MR. POTCHEN: And just for the record, we’re clear

19

the document itself is not admitted, just the stipulation

20

right now because we do have objections to the admission of

21

the report.

22

MS. STANYAR: Well, we’ll argue that later.

23

I just wanted to read the stipulation into the

24

record.

25

THE COURT: Okay. I guess we’re going to have to

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1

take a look at it. I guess I’m going to have to read the

2

report because I don’t know anything about Dr. Chauncey so

3

it would be hard for me to make any kind of ruling unless

4

you want -- you can argue it later. Don’t worry about it.

5

We’ve got lots of time.

6

MS. STANYAR: Yes, we can argue that later.

7

THE COURT: The other question is -- let’s talk

8

about timing so that everybody knows. My understanding is

9

Dr. Gates is due here tomorrow morning?

10

MS. STANYAR: Doctor Gates will be here tomorrow

11

morning.

12

THE COURT: And who else is due here tomorrow?

13

MS. STANYAR: That’s all we have for tomorrow.

14

Just so you understand, we had laid out the

15

schedule --

16

THE COURT: No, I understand.

17

MS. STANYAR: Doctor Chauncey was going to be a

18

lengthy witness so that’s what kind of let us with not as

19

many witnesses. We would have taken up the whole week --

20

THE COURT: I don’t have any problems with that.

21

I’m just trying to get my schedule together, too.

22

So tomorrow, we have Dr. Gates.

23

MS. STANYAR: Right.

24

THE COURT: In the morning. How long do you

25

anticipate Dr. Gates taking?

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1

MS. STANYAR: Two hours on Direct.

2

THE COURT: Okay. That’s fine.

3

Tell me then who -- do you have somebody for

4

Friday?

5

MS. STANYAR: At that point we’re up to our last

6

witness who would be Dr. Cott and she’s not coming until

7

Friday.

8

THE COURT: Okay. And how long do you anticipate

9

her testimony to be, about?

10

MS. STANYAR: I think she’s going to be somewhere

11

between Rosenfeld and Brodzinsky, I would say.

12

THE COURT: She’s going to take up the morning --

13

MS. STANYAR: She’ll be done on Friday, within the

14

Court’s schedule, not going past --

15

THE COURT: I think we’re going to around 2:00 or

16

something.

17

MS. STANYAR: She’ll be done I think. I’m almost

18

positive.

19

THE COURT: I’m just trying to get the schedule.

20

And then Monday the Government will be -- who’s

21

first witness on Monday?

22

MS. HEYSE: Our first witness will be Sherif

23

Girgis.

24

THE COURT: Okay. And then you have them lined up

25

in order?

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1

MS. HEYSE: We do.

2

THE COURT: If there’s a problem you’ll let us

3

know?

4

MS. HEYSE: Yes, we will.

5

We may have one slight glitch. We’re trying to

6

make travel arrangements right now. We may have a short

7

gap, but we’re trying to make --

8

THE COURT: I have no problems. We’re moving on

9

time. I just want to make sure everybody is on the same

10

page.

11

We’ll stand in recess until such time as that

12

witness gets here. If not before, at 11:00 o’clock.

13

(Court recessed, 10:15 a.m.)

14

(End of Part A)

15

-- --- --

16

17

18

19

20

21

22

23

24

25

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1

THE CLERK: All rise.

2

THE COURT: Thank you. You may be seated.

3

Okay. Next witness, please?

4

MS. STANYAR: For the record, the plaintiffs are here.

5

THE COURT: Oh, good. I hope the appointment went

6 well this morning.

7

MS. DEBOER: Thank you.

8

THE COURT: Would you be kind enough to raise your

9 right hand.

10

(Witness is sworn.)

11

THE COURT: Please be seated. And when you have an

12 opportunity to be seated, be kind enough to give your full name

13 and spell your full name, please.

14

THE WITNESS: Vivek Sankaran. "V" as in Victor. I-V,

15 as in Victor, E-K. Last name is Sankaran. "S" as in Sam,

16 A-N-K-A-R-A-N.

17

THE COURT: Thank you.

18

I have to make sure we have our reporter. Sometimes I

19 start without the reporter.

20

Thanks. You may proceed.

21

MS. NESSEL: Thank you, your Honor.

22

VIVEK SANKARAN

23

called as a witness at 11:00 a.m., testified as follows:

24

DIRECT EXAMINATION

25 MS. NESSEL:

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1 Q. All right. So as you stated, your name is Vivek Sankaran,

2 correct?

3 A. Yes.

4 Q. And, sir, what is your educational background?

5 A. I graduated from the University of Michigan Law School in

6 2001. And before that, I got my Bachelor's degree from the

7 College of William & Mary in 1998.

8 Q. And where are you currently employed?

9 A. I'm employed at the University of Michigan Law School.

10 Q. What are your responsibilities there at the University of

11 Michigan Law School?

12 A. I direct our Child Advocacy Law Clinic. I'm a clinical

13 professor of law at the university. In addition to directing

14 the Child Advocacy Law Clinic, I teach several courses there.

15 I direct our Child Welfare Appellate Clinic. I teach a course

16 on children in the law, which examines adoption, guardianship

17 and juvenile court cases. I teach a family law litigation

18 class.

19

I also direct a project here in Detroit called the

20 Detroit Center for Family Advocacy, which is aimed at reducing

21 the number of kids in foster care by prevention and trying to

22 prevent kids from entering care.

23 Q. Now, let's start with your work at the Child Advocacy Law

24 Clinic. Can you be more specific as to what your

25 responsibilities and your obligations are with the Child

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1 Advocacy Law Clinic?

2 A. Sure. So the law clinic is a program, an offering for

3 students at the law school who are my students, are

4 representing children and parents in Michigan's foster care

5 system.

6

We do work in about six different counties across the

7 state of Michigan. And so we're actively litigating cases,

8 teaching students how to be lawyers through handling these

9 cases. Additionally, there's a classroom component where we're

10 teaching substantive child welfare law, trial skills.

11

So my eight years at the law school, I probably have

12 taught about 300 students or so.

13 Q. Okay. Now, when you say that you instruct students on how

14 you handle certain types of cases and supervise them, what

15 kinds of cases are we talking about?

16 A. These are all, almost all foster care cases. They are all

17 cases where kids have been removed from their parents, placed

18 in foster care.

19

We typically get appointments directly from the court,

20 and then we will stay on the case until the case has concluded.

21 Q. All right. So but as it pertains to kids in foster care,

22 what is it that you're doing? What kinds of court procedures

23 are you involved in?

24 A. These are procedures dealing with the placement of

25 children, whether they should be returned home, whether they

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1 should be placed with licensed foster parents. There may be

2 issues involving the adoption of the children out of the foster

3 care system, guardianship of children out of the foster care

4 system. Really, the issue of what should happen to these

5 children and what outcomes we should be pursuing.

6 Q. Okay. Now let's talk about you. You said that you also

7 are involved with the Detroit Center for Family Advocacy,

8 correct?

9 A. Correct.

10 Q. Okay. And your position again is what there?

11 A. I'm the founding director of the center.

12 Q. Okay. And what are your responsibilities in regard to the

13 Detroit Center for Family Advocacy?

14 A. So I founded the center back in 2009. The idea of the

15 center was to try to reduce the number of kids in Michigan's

16 foster care system by working with families before kids entered

17 foster care, and also working with families to get kids out of

18 the foster care system. So we get our cases directly from the,

19 for the most part, from the Department of Human Services,

20 trying to divert kids away from foster care.

21

So I oversee the project, consult with the attorneys

22 there when issues come up on their cases, fundraise, grant

23 writing, and provide whatever technical assistance the

24 attorneys in the office need.

25 Q. Okay. And again, when you use the word cases, handling

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1 their cases, what specifically are you doing relevant to these

2 foster -- I assume they are foster care kids?

3 A. They are. Although, many of our clients are kids we're

4 trying to prevent from entering the foster care system in the

5 first place. So we do a lot of work, for example, with

6 guardianships.

7

Since 2009, we've handled 54 guardianship cases. We

8 do work on the tail end with adoptions. Often times, we're

9 trying to eliminate barriers for, that may exist that are

10 preventing adoptions from happening. And so we're asked by the

11 Department of Human Services to work with the families to try

12 of eliminate those barriers.

13 Q. Okay. And what about your prior employment? Before you

14 worked for the University of Michigan Law School, were you

15 involved professionally at all doing any kind of child advocacy

16 work within the legal field?

17 A. I was. So I graduated in 2001 from Michigan. And

18 immediately, I went to Washington, D.C. to work in an

19 organization called the Children's Law Center where, for the

20 first two years of practice, I primarily handled custody and

21 domestic violence cases representing kids.

22

Since 2003, I've been doing exclusively foster care

23 work. So I did the foster care work at the Children's Law

24 Center as well, representing kids in the D.C. foster care

25 system.

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1

And I started off as a staff attorney, and then I went

2 on and became a supervising attorney there before I left that

3 office and came to the University of Michigan.

4 Q. Okay. Now, have you authored any kind of publications, as

5 pertains to the area of child welfare, foster care, or the

6 placement of children into foster and adoptive homes?

7 A. I have. So I've authored about 25 or so publications on

8 all different aspects of the foster care system.

9 Q. And where would these articles have appeared? Have they

10 been published? Where, where do they appear?

11 A. In a wide variety of places. So I've had several articles

12 published in law review law journal articles. I've had several

13 in specialty journals, like the Michigan Child Welfare Law

14 Journal, the Family Law Quarterly, which is run by the American

15 Bar Association. I've written Op-eds in newspapers. I've

16 written chapters in national publications and books.

17 Q. What kind of books? Books about what?

18 A. Books about the child welfare system. There's a seminal

19 book that practitioners in the field use that was published

20 through the National Association of Counsel for Children. And

21 I wrote a chapter in that book.

22

And currently, I'm editing a book for the American Bar

23 Association on representing parents in the child welfare

24 system. I'm also drafting a chapter of that book, as well.

25 Q. Okay. Well, Professor Sankaran, we've had some, some prior

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1 testimony from sociologists and psychologists.

2

In terms of getting articles published, what is the

3 process that you have? Is that different than other fields of

4 academia?

5 A. It's a little bit different. So it depends on the type of

6 publication. So for a law review or law journal, those are,

7 for the most part, student editorial boards. And so, sort of a

8 quirk of the legal academy that students are evaluating work

9 product of law professors. So for law reviews, students would

10 make a decision.

11

But I've also had publications published where it's

12 more like the peer review process, in the sense that other

13 professionals are evaluating my work as well. So these would

14 be the specialty child welfare journals, the Family Law

15 Quarterly, which has an editorial board comprised of family law

16 professors from across the country. So it really depends on

17 the, on the publication itself.

18 Q. What about the chapters in the book that --

19

THE COURT: Can you move the microphone just a little

20 bit closer?

21

MS. NESSEL: Closer? Okay.

22

THE COURT: There you go.

23 BY MS. NESSEL:

24 Q. What about the chapters in the book that you described?

25 How do those -- what's the process for publication for that?

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1 A. So the chapters in the book that I've, I've written have 2 been reviewed by the editorial board of the, of the book, which 3 were professionals in the field. 4 Q. Okay. Now, have you ever conducted any trainings on this 5 topic, on any of the topics that you just discussed? 6 A. I have. So training is a big part of what I do. And so 7 I've conducted approximately 70 trainings or so for judges, 8 attorneys, lawyers, case workers, both here in Michigan and in 9 approximately 20 other states across the country, on a broad 10 array of child welfare and foster care issues. 11 Q. Okay. So just so the Court understands this, you conduct 12 the trainings for the state court judges as it pertains to 13 these issues you're going to be testifying to here today? 14 A. Correct. 15 Q. All right. Now, do you do any consulting work on a 16 national scale with any other states outside of Michigan? 17 A. I do. So I do trainings for other states. So I've been 18 asked typically by their own -- every state has a state court 19 administrative office. It has a child welfare division within 20 that office. And I'm typically invited by those offices to 21 come train their judges and attorneys. In addition, I'm doing 22 work as a consultant for the National Center for State Courts 23 as part of a judicial engagement project. 24 Q. What, what is that, the National Center for State Courts? 25 A. It's a nonprofit that provides technical assistance for

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1 state courts across the country on a wide variety of issues.

2

What I'm doing is focusing particularly on foster care

3 issues, and working with judges in eight states to help improve

4 decision-making within the child welfare system itself.

5 Q. Do you recall what those states are?

6 A. Gosh, it's going to be Michigan, Wisconsin, Indiana,

7 Arizona, Colorado, California, Florida and Indiana.

8 Q. Okay.

9 A. I'm not sure if I've gotten eight there.

10 Q. I think that was eight. All right.

11

So, I'm sorry, did you indicate, have you sat as part

12 of any other committees nationally?

13 A. I have. So I am on the American Bar Association Steering

14 Committee for improving parent representation. I'm a member of

15 the American Bar Association's commission on homelessness and

16 poverty. I've also been asked to consult other child welfare

17 programs. So this year, I was invited to Florida, to assess a

18 master's level program at the Nova Southeastern University.

19 And that's a program for child welfare professionals that they

20 offer.

21 Q. Okay. Now, have you ever been certified by any national

22 associations as a specialist in the field of child welfare?

23 A. I have. So, so the National Association of Counsel for

24 Children has a specialization program for child welfare

25 attorneys. And I was one of the first attorneys specialized

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1 through that program. That requires you to take an exam, and

2 also to fill out an application, and collect up to six

3 references, including judges, attesting to your qualifications

4 in the field.

5

Now, I sit on the committee that reviews applications

6 from others who are trying to get certified in this field.

7 Q. Okay. So you are part of the process of evaluating whether

8 another attorney, or an applicant attorney, is certified as a

9 child welfare specialist?

10 A. Correct.

11 Q. Is that your testimony? Okay.

12

Now, have you ever received any appointments from the

13 Michigan courts in regard to issues pertaining to child welfare

14 issues?

15 A. I have. So I've been appointed three times by our State

16 Supreme Court to represent parents in appeals of terminations

17 of parental rights. These are sort of direct appointments that

18 the court gives out to me to handle these cases.

19

I've also handled seven other cases before the

20 Michigan Supreme Court on issues affecting termination of

21 parental rights and adoption as well.

22 Q. Okay. And I don't know if you covered this in terms of the

23 committees you sit on, but in terms of any other state boards

24 involving child welfare issues, are there any other State of

25 Michigan boards that you sit on, or that you participate in?

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1 A. There are. So each state has a court improvement project,

2 where members are in the community who do child welfare work

3 are invited to participate. I'm on the court improvement

4 project here in Michigan, which is our entity to do that. It's

5 a statewide board comprised of judges and lawyers and social

6 workers, looking to improve the child welfare system.

7

I was also appointed by Governor Synder on two

8 occasions, to serve on our Child Abuse Prevention Board, which

9 is also known as the Michigan's Trust Fund.

10 Q. Okay. So the State defendant in this case appointed you to

11 that board?

12 A. Correct.

13 Q. Okay. And have you ever received any type of professional

14 awards in your capacity as a legal advocate on behalf of

15 children in the foster care system?

16 A. I have. So I received the, I think it was in 2009, the

17 Foster Care Review Board's Parent Attorney of the Year.

18 Q. And who presented you with that award? Who was that -- who

19 assigned that to you?

20 A. It was Director Corrigan who, who handed out the award.

21 Q. So is that Maura Corrigan?

22 A. Correct.

23 Q. The Director of DHS, of the Department of Human Services

24 from Michigan?

25 A. Correct.

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1 Q. All right. And she gave you the Attorney of the Year

2 Award?

3 A. Correct.

4 Q. All right.

5

MS. NESSEL: Your Honor, at this time, I would like to

6 admit into evidence Plaintiff's proposed Exhibit Number 400,

7 which would be the CV of Professor Sankaran.

8

THE COURT: Any objection?

9

MR. POTCHEN: Your Honor, at this point, are they

10 seeking to have him admitted as an expert in anything?

11

THE COURT: They haven't moved for that yet. All they

12 are moving for is the --

13

MR. POTCHEN: The CV is fine. We're okay with it.

14

(Plaintiffs' Exhibit #400 received, 11:14 a.m.)

15 BY MS. NESSEL:

16 Q. Okay. Now, Professor Sankaran, during the course of your

17 work in the well -- in the child welfare arena, have you worked

18 with any other types of experts, other than obviously you're a

19 lawyer and you work with other lawyers, I assume. But besides

20 attorneys and judges, and people in the legal profession, any

21 other kinds of experts that you work with?

22 A. I have. So, on almost a daily basis in our clinic, we have

23 a psychologist who is a co-faculty member of mine. So to take

24 a step back, sort of inherent in the nature of this work, it's

25 a multi-disciplinary practice, where lawyers are often called

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1 to make non-legal decisions in this work about what's best for

2 a child regarding placement and services. And so the nature of

3 this work involves reaching out to professionals all the time

4 to understand issues involving attachment and child

5 development, child psychology.

6

So through my work, on almost a daily basis, I'm

7 reaching out to psychologists, social workers, doctors,

8 primarily those three professions, to help me understand what

9 decisions to make on behalf of the children I represent.

10

The standard, when we represent children in Michigan,

11 for lawyers, is we need to figure out what's best for a child.

12 That's not a pure legal decision. And that really requires us

13 to go out and, and understand these other fields.

14 Q. Okay. I think you said psychologist, social workers and

15 doctors. Child welfare workers as well, did you say?

16 A. Oh, yes. So every one of our cases involves a child

17 welfare case worker, who may or may not have a social work

18 degree.

19 Q. Okay. And on how many occasions -- you said routine

20 interactions, I think. But I mean, how many occasions would

21 you say that you've consulted with these type of experts,

22 meaning psychologists, social workers, child welfare workers,

23 doctors?

24 A. Hundreds. I mean, it's a daily occurrence. Again, because

25 it's the nature of our, our interdisciplinary practice.

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1 Q. Okay. And if you can be as specific as possible, your

2 consultation with these other kinds of experts pertains to what

3 types of issues for the children?

4 A. It could range from issues involving placement of where the

5 child should be placed, to what type of services the child

6 should, should receive. Really, you know, the overall

7 well-being of a child.

8

So as a result of that, I've had trainings on

9 attachment, child development, child psychology, the needs of

10 kids aging out of foster care. There's a wide variety of

11 issues.

12 Q. Okay. And in terms of the foster care system, I mean, are

13 you familiar with any of the current issues or problems

14 involved with Michigan's foster care system?

15 A. I am. So part of my work as an academic, in addition to

16 handling cases, is I study the system, I study the laws. I sit

17 on the statewide committees looking at the systems. And I do a

18 lot of work on policies, trying to improve child welfare

19 outcomes for children.

20 Q. All right. And have you done any work which specifically

21 involves researching and investigating the cost to the State

22 involving children in the foster care system, and the cost to

23 the State of children aging out of the foster care system?

24 A. So as part of my work as the director of the Detroit Center

25 for Family Advocacy, at the end of our three-year evaluation

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1 period, we had to document our outcomes and cost savings to

2 funders, to the State. And so that's where I did investigation

3 into the costs of foster care, the costs of preventing kids

4 from entering foster care, and also the costs of having kids

5 age out of the foster care system.

6 Q. Okay. Now, what's your familiarity with the application

7 process to become a foster care parent?

8 A. I'm quite familiar with that process, both through my work

9 as a, as a lawyer representing children and parents. It's -- I

10 constantly interact with licensed foster parents, licensed

11 foster care agencies. And then on a personal level, I, myself

12 have gone through the orientation step of becoming a foster

13 parent. So I know it on a firsthand level as well.

14 Q. Okay. What's your familiarity with the process that the

15 Department of Human Services uses to place a foster child into

16 a home?

17 A. Very familiar. I mean, this is, this is sort of the world

18 that I, that I study and, and lawyer in.

19

In every single case that I've handled, this is the

20 process that, that happens, that we're really sort of inquiring

21 about where the child should be placed and who the child should

22 be placed with. And so I know it very, very well.

23 Q. Okay. What's your familiarity with the process involved in

24 either a public or a private adoption? And if you could first

25 explain what the difference is between a public and private

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1 adoption.

2 A. Sure. So the difference between a public and private

3 adoption is a public adoption involves the child being adopted

4 out of the foster care system.

5

A private adoption typically doesn't involve the

6 Department of Human Services, but is sort of a private, legal

7 matter between two individuals, and the Court will get involved

8 directly to assess whether the potential placement is suitable

9 for a child.

10

Again, I'm pretty familiar with both these processes.

11 I'm much more familiar with the public adoption, because this

12 is the experience that my clients go through, quite frequently,

13 as they get out of the foster care system.

14

And so through my work, both in D.C. and here in

15 Michigan, and just studying the system, I've become quite

16 acquainted with, with the public adoption system. I've handled

17 and studied private adoption as well, so I know the basics of

18 the process.

19 Q. Okay. Now, what's your familiarity with the process of an

20 adult becoming a guardian for a child, where a child only has

21 one legal parent, and then that legal parent dies or becomes

22 incapacitated, and so cannot care for that child anymore?

23 A. So I'm quite familiar with it. Primarily through my work

24 with the Detroit Center For Family Advocacy, guardianships

25 comprise the bulk of what we do. As I stated before, we've

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1 done, I believe, 54 guardianship cases since 2009.

2

In our clinic, personally my students and I have

3 handled roughly, you know, 10 to 15 guardianship cases. In

4 addition, though, I teach on these issues. And so I teach in

5 the law school a class on children in the law, where we really

6 explore adoption, guardianship, child custody cases. And so

7 I've had to study the systems through these different

8 perspectives.

9 Q. Do you also teach all of these issues, when you're at

10 training seminars with the state court judges, do you also

11 teach the state court judges these issues as well?

12 A. Correct. So you can't do child welfare work without

13 understanding these collateral systems. And so, because often

14 times, attorneys and judges are using guardianships, adoptions

15 or custody proceedings to provide an end to a child welfare

16 case, a sense of permanency and stability for children out of

17 foster care. And so really, to do this work well, you have to

18 understand each of these collateral legal systems.

19

MS. NESSEL: And, your Honor, I'm going to ask at this

20 time, that Professor Sankaran be qualified as an expert on

21 Michigan's foster care system, and economic issues relative to

22 the foster care system; the placement of foster and adopt --

23

THE COURT: Slow down.

24

MS. NESSEL: I'm sorry.

25

THE COURT: Go on.

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1

MS. NESSEL: Okay. The placement of foster --

2

MR. POTCHEN: What was -- I'm sorry. Michigan's

3 foster care system is one.

4

MS. NESSEL: And economic issues relative --

5

MR. POTCHEN: And economic issues, okay.

6

MS. NESSEL: Care system, yup. The placement of

7 foster and adoptive children into permanent homes. And

8 Michigan's Adoption Code and Probate Code as it relates to the

9 adoption and guardianships for minors.

10

THE COURT: Tell me about economics one more time.

11 You're asking what?

12

MS. NESSEL: About economic issues relative to the

13 foster care system.

14

THE COURT: That qualification is relative in terms

15 of?

16

MS. NESSEL: In terms of the cost of children who are

17 in the foster care system, the cost to the state, as well as

18 the cost to the state's -- the state associated with those

19 children --

20

THE COURT: Okay. Now I understand.

21

MS. NESSEL: -- aging out of the system.

22

THE COURT: Okay. Defense, any objection? Or do you

23 want to voir dire?

24

MR. POTCHEN: Yeah, I'd like to voir dire.

25

THE COURT: Absolutely.

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1

VOIR DIRE

2 BY MR. POTCHEN:

3 Q. Good morning.

4 A. Good morning.

5 Q. So you testified that you have a BA and a JD, correct?

6 A. Correct.

7 Q. And your BA was in the area of government, correct?

8 A. Correct.

9 Q. You don't have any other advanced degree, correct?

10 A. Other than the JD and the BA, yeah.

11 Q. So that's correct?

12 A. Correct.

13 Q. No other degrees out there that we don't know of, right?

14 A. Correct.

15 Q. In 2005, you wrote one chapter in a textbook on medical

16 decision-making rights that was peer reviewed by an editorial

17 board, correct?

18 A. Correct.

19 Q. Other than that single chapter in 2005, you have not

20 written any other peer-reviewed article, correct?

21 A. That's not correct. So, so as I stated in my direct

22 testimony, a number of the journal articles I have read --

23 depends on how you define peer review.

24

So a number of the journal articles have been reviewed

25 by the professionals in the field and they have decided to

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1 accept that publication. 2 Q. Okay. You have not written any articles on the definition 3 of marriage; that's correct? 4 A. Correct. 5 Q. And you haven't written any articles in the outcomes of 6 children being raised by same-sex couples, correct? 7 A. Correct. 8 Q. You have not conducted any studies on the outcomes of 9 children being raised by same-sex couples, correct? 10 A. Correct. 11 Q. And you are not an expert in child-rearing by same-sex 12 couples, correct? 13 A. Correct. 14 Q. And you have never testified in any case as an expert 15 witness, correct? 16 A. That's correct. 17 Q. You don't work for the Michigan Department of Treasury, 18 correct? 19 A. Correct. 20 Q. And you don't develop budgets for the State of Michigan, 21 correct? 22 A. Correct. 23 Q. You haven't published anything in the area of statistics, 24 right? 25 A. Correct.

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1 Q. And you don't have any specialized training in the area of

2 statistics, correct?

3 A. Correct.

4 Q. You have no specialized training in the area of psychology,

5 correct?

6 A. I've received trainings in areas of child development and

7 attachment.

8 Q. I'm sorry. My question is you have no specialized training

9 in the area of psychology, correct?

10 A. That's incorrect. So I, I have received trainings.

11 Q. I'm going to provide you a copy --

12

MR. POTCHEN: I'm sorry, your Honor. May I approach?

13

THE COURT: Yes.

14 BY MR. POTCHEN:

15 Q. I'd ask you to turn to -- you took a deposition, do you

16 recall?

17 A. I do.

18 Q. And I asked you questions under oath, and you gave your

19 answers under oath, correct?

20 A. Correct.

21 Q. And I'm going to read from your deposition. And I'm

22 starting at 7, on page 7, line number 8.

23

"Question: Do you have any specialized training in

24 the area of statistics?

25

I don't."

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1

I'm sorry. Let me go on further.

2

On number 11, line 11 I'm starting with. Are you

3 there?

4 A. I am there.

5 Q. "Do you have any specialized training in the area of

6 psychology?

7

Answer: I don't."

8

Did I read that correctly?

9 A. You did read that correctly.

10 Q. Thank you.

11

You don't have any specialized training in the area of

12 sociology, correct?

13 A. I don't.

14 Q. And you don't have any specialized training in the area of

15 economics, correct?

16 A. Correct.

17 Q. You are not a psychiatrist, correct?

18 A. Correct.

19 Q. You are not a psychologist, correct?

20 A. Correct.

21 Q. You are a lawyer with an expertise in foster care, correct?

22 A. Correct.

23 Q. You have never been recognized in any legal proceeding as

24 an expert in the field of foster care, correct?

25 A. Correct.

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1 Q. And you will not be offering any testimony on same-sex

2 marriage, correct?

3 A. Correct.

4 Q. You have personally handled less than five guardianship

5 cases over the past five years, correct?

6 A. Personally, that's correct.

7 Q. In the past five years, you have represented a total of

8 about ten clients, correct?

9 A. Personally, that's correct. But the way our program

10 operates is that my, my main responsibilities involve students

11 handling cases, and I directly oversee the work of our

12 students.

13 Q. Okay. You don't plan to offer any testimony regarding the

14 State's rationale for not allowing same-sex couples to jointly

15 adopt, do you?

16 A. Could you repeat the question, please?

17 Q. Yes. You don't plan to offer any testimony regarding the

18 State's rationale for not allowing unmarried, same-sex couples

19 to jointly adopt, do you?

20 A. No.

21

MR. POTCHEN: Your Honor, at this point, I mean I --

22 Mr. Sankaran can only offer any unnecessary and irrelevant

23 legal opinions, it appears. He's not going to testify on

24 same-sex marriage. He's not going to be testifying on joint

25 adoption of same-sex couples. He's not qualified to offer any

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1 opinions on Michigan's budget or the State's economics for

2 issues relating to Michigan's budget.

3

His testimony regarding foster care and the Michigan's

4 Adoption Code are not relevant here, or are simply just his

5 legal opinions, which the Court can look at. So we move to bar

6 his testimony.

7

THE COURT: Thank you. Ms. Nessel?

8

MS. NESSEL: Your Honor, Professor Sankaran's

9 testimony is very, very relevant to the situation at hand. And

10 --

11

THE COURT: Are you near the microphone?

12

MS. NESSEL: Sorry.

13

THE COURT: Come on. There you go.

14

MS. NESSEL: All right.

15

All of these issues that Professor Sankaran will be

16 testifying to today are very relevant to the arguments made by

17 both Plaintiffs and the State defendants in this case in terms

18 of whether or not there is a rational basis for both the

19 Michigan Adoption Code, and the Michigan Marriage Act, both

20 which prohibit our clients from jointly adopting or both having

21 legal rights to a child.

22

And obviously, his testimony, we've limited it. First

23 of all, I would say I don't know why you have to be a

24 statistician in order to testify to budgetary issues. You

25 don't need to have an advanced degree in that if you're

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1 involved enough in the field that you are familiar with all the

2 stats as it pertains to economic issues with the State and with

3 foster care. So there's no requirement for that. Clearly,

4 Professor Sankaran is very well versed in those areas.

5

And the areas in which I'm asking for him to be

6 qualified, I think, I don't -- if Professor Sankaran is not

7 qualified to speak on these issues, being the one who actually

8 trains the state court judges, and being that he, himself, has

9 been appointed to a very prestigious board pertaining to those

10 issues by State Defendant Governor Synder, as well as having

11 received an award for Attorney of the Year, by of all people,

12 the Director of Human Services, I really don't know who would

13 be an expert in those areas.

14

So we're asking that he be certified by the Court as

15 an expert in these particular areas.

16

MR. POTCHEN: Your Honor, if I may?

17

THE COURT: I'll give you another, sure.

18

MR. POTCHEN: Pardon?

19

THE COURT: Did you want to say something?

20

MR. POTCHEN: Just one more thing quickly.

21

THE COURT: Please. Absolutely.

22

MR. POTCHEN: The plaintiff children are not in foster

23 care. I mean, this is not an issue of foster care. This is

24 not that situation so, thank you.

25

THE COURT: Okay. In this matter, I'm not so sure

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1 about the relevance, but I don't have to deal with relevance

2 right now because I haven't heard the testimony yet. And I

3 would not want to cut the plaintiffs off if they have a --

4 later on, it becomes relevant and can put it together. And

5 since there's no jury, the Court can ferret out those things

6 that are necessary.

7

I question, to some extent the relevancy, but not the

8 professor's qualifications. I think he's -- it's interesting

9 because his qualifications aren't the typical qualifications

10 that we see of social scientists and so forth, where they have

11 peer review, they have this, they have that, they have this.

12

However, I think all of the teachings tell us that

13 just the mere fact, number one, that somebody hasn't been

14 qualified in Federal court or another court as an expert before

15 does not exclude them, because they have to start somewhere.

16 The mere fact that they may not be a statistician or do the

17 kinds of research that social scientists do, or other kinds of

18 experts do.

19

I believe that listening to Professor Sankaran, that

20 he is immanently qualified in terms of his field, I think both

21 by education, but even more, more important than education, I

22 think his long experience, his long involvement with both

23 academia, as well as his practical experience and his clinical

24 situation leads me to believe, and I think the record is clear,

25 that he does have the expertise in the foster care areas and

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1 placement areas and the adoptive areas.

2

The economics, I'm not so sure, but I haven't heard it

3 yet. I'm not sure how that fits in, number one, to the case.

4 I'm not sure how that fits into his testimony. So I will, of

5 course, have a continuing objection to his testimony by the

6 Government. I'm sorry, by the State. I'm so used to the

7 Government. And we'll have a continuing.

8

When we get to the economics, you may want to make a

9 specific objection. Then I will be able to rule on that,

10 because I'm not sure where that's going. I think the other

11 three areas, I have some idea where it's going. And I think

12 that, though I question relevancy at this point, I think it

13 will be allowed. And the economics, we'll see where it goes.

14

Okay. You may proceed.

15

MS. NESSEL: Thank you, your Honor.

16 BY MS. NESSEL:

17 Q. Professor Sankaran, are you familiar with the facts of this

18 particular case as they relate to the three children who are

19 listed as plaintiffs in this matter?

20 A. Yes.

21 Q. Okay. Have you reviewed the pleadings?

22 A. I have. I've reviewed the pleadings in this matter.

23 Q. Okay. What about the, the children's individual paperwork?

24 Have you reviewed any of that?

25 A. I've reviewed just some basic court orders, describing how

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1 the children were adopted by each of the plaintiffs.

2 Q. Okay. So now, what is your understanding of how these

3 three children came to be in the custody of our plaintiffs,

4 April DeBoer and Jayne Rowse?

5 A. It's my understanding, is that all three children had

6 immense special needs, and really entered life with sort of a,

7 a tragic hand dealt to them with parents who were unable to

8 take care of them.

9

Two of the children were adopted through a private

10 adoption, where the Department of Human Services wasn't

11 involved. One of the children was adopted through the foster

12 care system.

13

My understanding is that both plaintiffs are licensed

14 foster parents who have done just a tremendous job with kids

15 who, ordinarily, the system would have problems finding someone

16 to take care of them.

17 Q. Okay. And can you, can you please give us a brief summary,

18 Professor, of the expert opinions that you intend to offer to

19 the Court today?

20 A. Sure. So first, I'd like to talk about the process of

21 becoming a foster parent in Michigan. It's a lengthy,

22 complicated process with lots of checks, a high level of

23 scrutiny.

24

I'd like to talk about the process in which a court

25 determines that a person is fit, or the department determines a

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1 person is fit through the licensing process, and my own opinion

2 that that process is so thorough, that the person who undergoes

3 that thought process, should not be deemed to be unfit to adopt

4 a child.

5

I'd like to talk about the, what happens to the

6 surviving parent in a same-sex relationship when the legal

7 parent dies and the legal uncertainty that it creates for the

8 children involved in the proceeding. Specifically, for the

9 non-legal parent, the process for establishing a guardianship

10 is something that's difficult, expensive, time consuming, and

11 really threatens the sense of stability and permanency for

12 children in those homes.

13

I'd like to talk about some of the needs of our foster

14 care system. The fact that we have about 3,500 children in our

15 foster care system who are looking for adoptive homes, but do

16 not have them.

17

I'd like to talk about what happens to these children

18 when we don't, when we fail, and we have these kids age out of

19 the foster care system without adoptive homes; and the outcomes

20 for these children, not just in the outcomes for themselves,

21 but for the costs of the system and the incredible public costs

22 created by our failure to provide these children with, with

23 permanency. And my own opinion, that reducing barriers to

24 adoption and expanding a pool of adoptive applicants could

25 really benefit these children that are aging out of foster

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1 care.

2 Q. Okay. Thank you.

3

Now, let's discuss for a moment how one becomes a

4 foster parent in the state of Michigan. You said that both the

5 plaintiffs, the adult plaintiffs in this matter, April and

6 Jayne, they both have been certified as foster care parents

7 prior to their children being placed with them, correct?

8 A. Correct. They've both been licensed as foster parents,

9 which is the sort of term of art that's used.

10 Q. Now, what's the process that an individual has to go

11 through in order to be certified by the State of Michigan as a

12 foster care parent?

13 A. So the first step is approaching a, either the Department

14 of Human Services or a private child welfare agency and making

15 an inquiry about the foster care licensing process.

16

Then afterwards, foster parents will go through an

17 orientation to learn about just the basics of the system, the

18 purposes of foster care, the characteristics of the children,

19 attachment and child development issues, the impact of

20 fostering another family, the role of the foster family, the

21 licensing process, the grievance procedure, the importance of

22 the child's family, parent and sibling visits, policies and

23 procedures of the child welfare agency, supportive services and

24 resources, and provisions on the Child Protection Act.

25

So the first step is really to ensure that foster

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1 parent have a thorough sense of what it is that they are, that

2 they are about to embark on.

3 Q. Okay.

4 A. Afterwards, after the orientation is completed and they'll

5 complete and sign an application under our own regulations,

6 both -- any adult caregiver in the house must complete and sign

7 the foster home licensing application.

8

And it's important to note that in our own sort of, in

9 DHS's technical assistance manual, it actually requires both

10 members of the same-sex couple to undergo the licensing process

11 if they would like their home to be licensed.

12 Q. Okay. So if, if you have a couple, a partnered couple,

13 married or unmarried, opposite sex or same sex, both members of

14 that partnership have to be licensed by the State?

15 A. Correct. And once the, the application is signed and

16 received, there's really a two-step process. The agency has to

17 do a very thorough home assessment, which involves things like

18 criminal clearances, child protection clearances, getting

19 medical statements from everyone in the house, collecting

20 references from members, from non-related sources, water

21 inspections. There's sort of a subjective assessment that's

22 done by a social worker about the nature of the home and the

23 strengths and weaknesses, assessing the foster parent's

24 parenting skills. Also the physical home, the adequacy of

25 space, cleanliness, general safety.

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1

Again, this is an incredibly thorough process, which

2 makes sense. We're putting in unrelated kids in homes of

3 strangers, and we want to make sure that they are capable of

4 caring for children.

5 Q. Okay. Anything else?

6 A. So in addition to the application itself, there's also a

7 training requirement the foster parents must go through,

8 initially a 12-hour training with up to six hours of

9 orientation included in that, in that training.

10

Once that's done, there's a secondary training that

11 has to happen, which is roughly 12 hours long. And every year,

12 there's an ongoing annual training requirement of six years

13 that exist, as long as the foster home wants to continue to be

14 licensed.

15

THE COURT: Six hours?

16

THE WITNESS: Correct.

17 BY MS. NESSEL:

18 Q. Is there anything else involved in becoming licensed as a

19 foster care parent?

20 A. So at the end of that process, the agency will evaluate all

21 the information, will make sure that the foster parent has gone

22 through the training, and then will make a recommendation as to

23 whether to approve or deny the license.

24

If the recommendation is made to approve the license,

25 the agency retains the discretion to, to document how many

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1 children can live in the home, if the home is licensed for

2 special needs children, the ages of the children. Those things

3 will be specified within the foster care license itself.

4 Q. Okay. So all the things that you just stated on the

5 record, those are all the things that you have to go through in

6 order for the State to consider certifying you to become a

7 foster care parent, correct?

8 A. Correct.

9 Q. Okay. Now, typically, how long does this process take in

10 order for the State to certify a person as a foster care

11 parent?

12 A. That can take anywhere from two to six months, and it

13 depends on a number of different issues. Many of our foster

14 care agencies are pretty overwhelmed. And so based on their

15 level of workload, that can slow the process down. It could

16 hinge on how quickly clearances come back, their criminal

17 clearances, child protection clearances, health and water

18 clearances that need to be approved for the home.

19

And then it could depend on the cooperation of family

20 members and how quickly paperwork is completed, but also how

21 quickly it may take for the family to complete the classes,

22 which is a pretty significant requirement, particularly when

23 families may have kids themselves, they have to -- most of the

24 classes are at night, on a weekend. And so families would have

25 to arrange for child care during those times.

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1 Q. Okay. Now, how long is this certification? Once someone,

2 a couple or individual receives this certification, how long is

3 that certification good for?

4 A. There's an initial six-month provisional license. And if

5 that is approved, then the license can be renewed for two

6 years.

7 Q. Okay. Once a person or a couple are certified by the State

8 and they've been given a foster child, a foster child has been

9 placed with them, what are the responsibilities of those

10 parents?

11 A. So we put a lot of trust in our foster care -- foster

12 parents. And while a child is in foster care, foster parents

13 are, they step into the shoes in many ways of the parent and

14 are responsible for all the day-to-day tasks of parenting:

15

Getting the children to school; taking them to

16 doctor's appointments; taking them to therapy appointments.

17 They really are rearing these children while the agency is

18 working with, with the parents.

19

In addition to that, the foster parents are also

20 responsible for bringing the child to visits with, with the

21 biological parents. They are responsible for taking the child

22 to those things that may be sort of unique to kids in foster

23 care: Intense therapy, doctors' appointments above and beyond

24 what normal -- ordinary parents of ordinary children who have

25 not experienced abuse and neglect go through.

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1

So in a case like this, when you have three special

2 needs children, what foster parents do is just simply amazing

3 because of the, sort of the sheer number of different tasks

4 they are, they are asked to do.

5

But it's important that even, there's sort of an

6 intense licensing period in the beginning. But once that's

7 done and we approve the foster parent, that the kids become a

8 part of that family and foster parents are really responsible

9 for, for raising those kids.

10 Q. Okay. So that the primary responsibilities for the child

11 then are not on DHS, it's really, it's the parents who, the

12 foster parents who have to do all the things that you just

13 stated?

14 A. Correct.

15 Q. Okay. And if they don't do those things?

16 A. Well, then there's a risk that the children would be

17 removed and placed somewhere else.

18 Q. Okay. And so prior to April and Jayne accepting their

19 foster child, Jacob, are these all the measures that they had

20 to take?

21 A. Correct. You cannot become a licensed foster parent in

22 Michigan without taking these steps.

23 Q. Okay. And then all the responsibilities that you talked

24 about after they received him?

25 A. Correct.

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1 Q. Okay. Let's talk for a minute about adoptions.

2

Now, all right, you have a foster child who has been

3 placed in the home. And now say that that couple wants to

4 adopt the foster child. What steps have to be taken for a

5 foster child to be adopted into a permanent home, say, the way

6 that Jacob was adopted by Jayne Rowse?

7 A. So for a child like Jacob, the first step would be whether

8 the rights of the biological parent have been terminated or

9 not. In foster care cases, the primary goal is to reunify kids

10 with their birth parents. And so the first step would be to

11 terminate the rights of biological parents.

12

The next step then would be the Department of Human

13 Services would look to the foster parents to see if they are

14 willing to adopt the child.

15

Our, our policies are, are clear that the first person

16 that we look to, to determine whether or not adoption should be

17 pursued are the child's foster parents, primarily because of

18 the relationships and bonds that have developed between the

19 children and their foster parents.

20

If the foster parents are willing, and the foster

21 parent would sign an intent to adopt, and almost akin to the

22 licensing process, it starts everything and the scrutiny and

23 the checks all over again; that they have to complete an

24 application, criminal history checks, central registry checks,

25 references, employment status. And this is for all the members

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1 of the household. It's almost starting the entire process

2 again.

3

And then after that is done, the agency does yet

4 another assessment of the home, an adoption assessment trying

5 to sort of assess the current state of affairs in the home,

6 very similar to the licensing process. They'll collect the

7 social history, the motivation to adopt, financial background.

8 We'll assess the home and community environment for the, for

9 the children, the ability to meet the child's needs.

10

And ultimately, the line case worker could either be a

11 Department of Human Services worker, or a, Michigan has a very

12 highly privatized child welfare system now. So often you have

13 a private agency making the recommendation as to whether or not

14 to approve the, the request to adopt.

15 Q. So after all those things are submitted by the prospective

16 adoptive parent or parents, either DHS or this agency then

17 makes a recommendation to the court?

18 A. No. So what DHS is doing right now is making a

19 recommendation internally as to whether or not to approve the

20 adoption.

21

For kids in foster care, the next step is there's an

22 entity called the Michigan Children's Institute which basically

23 becomes the de facto parent for a child when the rights of the

24 parent are terminated. And the line worker will make a

25 recommendation to the Michigan Children's Institute as to

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1 whether the adoption should be approved. But then the next

2 step is for the Michigan Children's Institute to consider

3 whether to accept that recommendation or not.

4

But ultimately, they need to, as the parent, as the

5 entity that's standing in the shoes of the parent, the

6 institute then makes a recommendation or makes a decision about

7 whether to give consent to the adoption as well.

8

THE COURT: Is the institute a state --

9

THE WITNESS: Correct.

10

THE COURT: -- organization?

11

THE WITNESS: It's the state -- it's almost --

12

THE COURT: Institute is just a name?

13

THE WITNESS: Correct. It's actually an individual

14 within the Department of Human Services that, that approves

15 and, and acts on behalf of the institute.

16

I think the name originally comes, because it actually

17 was an institute back in the 1920's and '30s when children were

18 actually placed in this institution, as they were pending

19 adoption. But now, as we've become more progressive in how we

20 place children in foster care, the institute is just a name.

21 But it's actually a governmental agency.

22

THE COURT: And it's referred to in the statute?

23

THE WITNESS: Correct.

24

THE COURT: Okay.

25

THE WITNESS: As the Michigan Children's Institute.

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1

THE COURT: Got you.

2 BY MS. NESSEL:

3 Q. And is there anything following that? Let's say that there

4 is consent given by the Michigan's Children Institute. What

5 next?

6 A. Next, it heads to the courts and to the adoption court.

7 And each county has an adoption court. And paperwork needs to

8 be filed, a petition would need to be filed with the adoption

9 court requesting that the court approve the adoption. And then

10 the court then has its own independent obligation to make an

11 assessment as to whether the adoption is in the best interest

12 of the child, and has a pretty extensive list of factors in our

13 adoptive code.

14 Q. Let's talk about that. What specific code are you

15 referring to?

16 A. So it's MCL 710.22 is the Adoption Code. And in the

17 Adoption Code itself, it lists a number of factors that the

18 court has to consider, including the love and affection between

19 the adoptive child and the adoptive parents, the capacity of

20 the adoptive parents, the length of time the child has lived in

21 the home, the permanency of the family unit, the moral fitness

22 of the adoptive parents, the mental and physical health of the

23 adoptive parents, the home, school and community record of the

24 child. If the child is 14 years or older, the preferences of

25 the child, the ability and willingness of the adopting

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1 individual to adopt the siblings. And then it has a catch-all

2 of any other factors that a court wants to take into account.

3 Q. So in order for a person to adopt, and so in the case of

4 for instance, Jacob, Jayne Rowse had to go through all of these

5 measures in order to legally adopt her son, correct?

6 A. Correct.

7

MR. POTCHEN: Just a second, your Honor. Well, that's

8 up to you. Do you want to strike that from the record?

9

MS. HEYSE: Not identifying the name?

10

MS. NESSEL: We actually sought specific permission

11 from the Court.

12

THE COURT: Yeah. I think the first day we talked

13 about whether or not they can mention it. I indicated at that

14 time, I thought we put it on the record, but just in case, that

15 it was really up to the plaintiffs.

16

MR. POTCHEN: That's fine.

17

THE COURT: It was their, their protection.

18

MR. POTCHEN: It struck me.

19

THE COURT: I'm really glad you raised it again. But

20 it's my understanding the plaintiffs have agreed that that's

21 what they wished to do.

22

MS. NESSEL: They have, your Honor.

23

THE COURT: Okay. That's fine.

24

MS. NESSEL: With them, they've agreed.

25

THE COURT: Okay.

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1 BY MS. NESSEL:

2 Q. And so what about, for the purposes of even -- so that was

3 a public adoption, Jacob, correct?

4 A. Correct. So I don't think I actually answered your

5 question. So they had to go through that, this process to

6 adopt Jacob.

7

And just to sort of recap, it's three steps that have

8 to be taken. The line agency has to be given approval, the

9 Michigan Children's Institute has to give an approval, and then

10 finally, the court has to give its ultimate approval of the

11 adoption.

12 Q. Okay. Now, what about Jayne's -- the couple's other son,

13 Nolan and their daughter, Ryanne, who were not public but

14 private adoptions. Do they have to go through much of the same

15 process?

16 A. Some of it, but there's a significant difference with

17 private adoptions. There, the Department of Human Services and

18 Michigan Children's Institute would not get involved because in

19 private adoptions, you still have a parent who has rights to

20 the child. And so the parent then can give up their rights

21 directly to the, the potential adoptive parent.

22

So in private adoptions, the case will go directly the

23 court system where the information will be presented to the

24 court.

25

From my own experience, judges in private adoptions

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1 will make the additional inquiries, order the home studies,

2 order the assessments to really make sure that, that the home

3 is suitable for a child.

4

Adoptions are not a quick process in Michigan. And so

5 this is a lengthy process that, and we do for good reason, to

6 make sure that the adoptive home is suitable for the child.

7 Q. Okay. So for all three of the children in this matter, all

8 of these factors, these best interests factors for an adoption,

9 MCL 710.22, did all of these factors have to be considered in

10 order for each of those adoptions to occur?

11 A. Correct.

12 Q. Okay. All right. So now at the time when, when, say when

13 Jacob was adopted, he was adopted last, had both April and

14 Jayne already been separately adjudicated to be qualified as

15 both foster and adoptive parents by both the State and the

16 court by the time that occurred?

17 A. Yes. Because both by child welfare agencies, through the

18 licensing process, but then through courts, because they had

19 both been approved individually to adopt children, using the

20 standards set forth in the statute.

21 Q. Okay. Now, in your understanding of the Michigan Adoption

22 Code, are there any circumstances that would allow for both

23 April and Jayne to have legal rights as parents to their three

24 kids?

25 A. As adoptive parents, no.

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1 Q. As adoptive parents, yes. No. Okay.

2

Can you tell us, who is eligible in Michigan to adopt

3 a child?

4 A. There are three categories of persons. One is an unmarried

5 -- an individual, a single person can adopt. A married couple,

6 a husband and wife can jointly adopt. And third, and this is

7 due to a recent amendment in our law, a married person without

8 his or her spouse can adopt a child if consent is excused by

9 the court or the court makes a finding that that's in the best

10 interest of the child.

11 Q. So in terms of that third prong that you said was a recent

12 amendment, are you saying that half of the married couple,

13 without his or her partner, can still adopt a child so as long

14 as it's permitted by the Court?

15 A. Correct. It really gives the court discretion, based on

16 the facts of the case, to determine whether it's best for a

17 child.

18 Q. Okay. So in that scenario, in those cases, the court has

19 discretion, but not in the case of say a same-sex couple like

20 April and Jayne?

21 A. Correct.

22 Q. Wanting to adopt together. All right.

23

All right. Let's, let's talk about some of the

24 arguments from the State I'd like you to address.

25

MR. POTCHEN: Your Honor, I'm going to object to any

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1 testimony regarding our arguments. He's not

2 testifying regarding --

3

THE COURT: Sustained.

4

MR. POTCHEN: Thank you.

5

THE COURT: You can ask him questions, but you

6 can't --

7

MS. NESSEL: I won't. I will rephrase, your Honor.

8 BY MS. NESSEL:

9 Q. All right. What will happen in the event that you had

10 three people that tried to adopt a child?

11

Let's say that the Michigan Adoption Code no longer

12 existed in its current form, and the portion that we discussed

13 a minute ago, MCL 710.24, which delineates who specifically is

14 permitted to adopt a child. In the event say that that was

15 stricken, what would happen in the event that three people

16 attempted to adopt --

17

MR. POTCHEN: I'm going to object. This calls for

18 speculation of this witness.

19

THE COURT: Sustained.

20

MR. POTCHEN: Thank you.

21

MS. NESSEL: I'm going to rephrase.

22 BY MS. NESSEL:

23 Q. Under any set of circumstances, and I'll give you some

24 examples -- well, strike that.

25

THE CLERK: Counsel, I've just been told, can you just

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1 move a little closer to the mic? Yeah.

2

MS. NESSEL: Okay.

3

THE CLERK: There you go.

4 BY MS. NESSEL:

5 Q. No matter what group of individual persons who ever seeks

6 to adopt a child, would they still have to go through the court

7 and still have to go through this best interests determination

8 made by the court, for whoever was seeking to adopt?

9

MR. POTCHEN: Your Honor, I'm going to object. The

10 question is vague. I'm not even sure --

11

THE COURT: I'm not quite sure --

12

MS. NESSEL: Okay.

13

THE COURT: -- what the question is either.

14

MS. NESSEL: All right. I will try again, your Honor.

15 BY MS. NESSEL:

16 Q. In the event someone wants to adopt, all right? And I'm

17 talking about an individual, or two people, or whomever would

18 like to adopt a child, is it always necessary that the court,

19 who is considering the petition for adoption, consider these

20 factors delineated under MCL 710.22?

21 A. Yes. No adoption can be finalized without the court going

22 through each of those best interests factors and making a

23 determination based on facts of the case that the adoption is

24 in the best interest of the child.

25 Q. Okay. So for instance, this third prong here about half of

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1 a married person, a married person with -- without his or her

2 spouse, that just occurred recently, right?

3 A. Correct.

4 Q. Okay. That not the case prior to when?

5 A. I think it was 2012, but I'm not, I'm not certain of that.

6 It's very recent, the last three years.

7 Q. So when they changed the law and allowed half of a married

8 person, without the consent of his or her spouse to adopt, were

9 the courts able to make a determination as to that specific

10 scenario, and then look at the best interest factors?

11 A. Yes. So after the, the amendment was made, what courts do

12 now, and we've had several of these cases in the our Detroit

13 center, they evaluate the facts of the case and determine

14 whether the adoption is in the best interest of the child. But

15 it's using the same best interest standards.

16

THE COURT: Was there something that caused the

17 legislature to change it? Was there some kind of -- why did

18 they change it?

19

THE WITNESS: To my understanding --

20

THE COURT: If you know.

21

THE WITNESS: My understanding is there were kids in

22 foster care that we are seeing, a significant numbers of cases

23 where people were legally married but had not seen their

24 spouses in years.

25

THE COURT: I see. Okay.

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1

THE WITNESS: And what happened is that these

2 adoptions were being held up, because of the dearth of legal

3 aid for, to help these relatives.

4

THE COURT: This is because though they were married,

5 the spouse wasn't around or wasn't living in the household or

6 something like that, and they wanted to be able to, to allow

7 these persons to adopt?

8

THE WITNESS: Correct. And to get the, to get the

9 relative to, to navigate the divorce system on their own, and

10 deal with issues like service, was just taking too much time

11 and we were keeping kids in care because of that.

12

THE COURT: I got it. Okay.

13 BY MS. NESSEL:

14 Q. All right. Let's talk about guardianships now.

15

Can you tell us about the risks associated with

16 children only being permitted to have one legal parent? And in

17 our instance, in this matter, if something were to happen to

18 either April or to Jayne, would the non-legal parent be able to

19 retain custody of her non-legal children?

20 A. It would depend on a decision subsequently made by a court

21 in a guardianship case.

22 Q. Let me ask you this specifically. And I'm going to refer

23 you now to a paragraph listed in Document 69, submitted by the

24 State, in the State Defendants' brief in support of motion for

25 summary judgment.

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1

So they've indicated in this brief, the State, and

2 I'll --

3

MR. POTCHEN: I'm going to object to this testimony as

4 well.

5

THE COURT: Well, I haven't heard the question yet.

6

MR. POTCHEN: Well, she's reading a brief, from one of

7 our briefs, apparently.

8

THE COURT: Well, it's -- okay. You can read it, but

9 what's the question?

10

MS. NESSEL: Well, the question, if I can read it.

11

THE COURT: And don't answer yet. I want to hear the

12 objection.

13

MS. NESSEL: If the State has indicated, and again I

14 quote, "if the intent for recognition of second-parent

15 adoptions, as Plaintiffs claim, is to provide emotional or

16 financial support for children, Michigan law already provides

17 such legal structures. Michigan has the following available to

18 plaintiffs:

19

Guardianships, conservatorships, wills, durable

20 medical and financial powers of attorney, durable powers of

21 attorney, permitting Plaintiffs to designate each other as

22 agent for purposes of parental decisions, and testamentary

23 trusts, allowing Plaintiffs to list each other as primary

24 beneficiaries, and the child as ultimate beneficiaries that can

25 provide security for the children, without undermining the

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1 institutions of marriage and family or creating untenable

2 relationships.

3

And then, your Honor, my question as to all of that

4 is, is this accurate.

5

THE COURT: Is it accurate as to?

6

MS. NESSEL: As it pertains to --

7

THE COURT: Because it's got so many things in it.

8

MS. NESSEL: Right. Okay. Then I'll rephrase.

9

THE COURT: It talks about institution of marriage,

10 which he's not an expert on. It talks about the --

11

MS. NESSEL: Sure, your Honor.

12

THE COURT: -- situations. Do you want to know

13 whether or not Michigan allows these things to happen?

14

MS. NESSEL: Let me, let me rephrase the question,

15 your Honor. I understand.

16 BY MS. NESSEL:

17 Q. Does the execution of these types of documents that the

18 State has listed in their brief, such as a will or an

19 appointment of guardianship, ensure that if April dies, that

20 Ryanne will remain with her, her non-legal mother, Jayne, or if

21 Jayne dies, that the boys, Nolan and Jacob, can remain with

22 their non-legal mother April? Will those --

23

THE COURT: That's okay. Go on. He can answer that.

24

THE WITNESS: No. It does not ensure that the

25 children would necessarily remain with the surviving non-legal

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1 parent.

2 BY MS. NESSEL:

3 Q. Okay. And can you tell us why that is? I mean, is there a

4 difference at all?

5

THE COURT: Go ahead and ask one question: Why is it?

6 BY MS. NESSEL:

7 Q. All right.

8 A. Because in each of those, in that circumstance, when

9 there's a surviving non-legal parent, it would place the burden

10 on the surviving parent to affirmatively go to a court, a

11 guardianship, in a guardianship proceeding, to affirmative

12 request that the court give them guardianship. But there's

13 absolutely no guarantee in our law that that person will, in

14 fact, get the guardianship order.

15 Q. Just a moment. What does the court have to consider --

16 well, first of all, you said a petition has to be filed by the

17 non-legal parent?

18 A. Correct.

19 Q. And what is it that the Court has to consider in terms of

20 whether or not the Court is going to appoint the non-legal

21 parent as a guardian to the child of her now-deceased partner?

22 A. So within the guardianship code itself, the probate code,

23 there is a similar best interest test. So the court would have

24 the obligation to figure out what was best for the child,

25 looking at the relationship between the adoptive parent and the

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1 surviving non-legal parent and the child, the capacity of the

2 surviving non-legal parent, the length of time the child lived

3 in the home, the permanence of the family unit, the mental and

4 physical health of the parties involved, the child's home,

5 school and community record, the child's preference, the

6 party's willingness and stability to facilitate relationships

7 between siblings and between the child and the parent, maybe

8 domestic violence in the home, and any other, there's a

9 catch-all, any other factor that may be relevant.

10

But the burden would be on the surviving parent to put

11 on evidence to demonstrate to the court that these factors have

12 been, have been met.

13 Q. Okay. Now, in the guardianship best interest factors

14 delineated by MCL 700.5101, where does it say in there that the

15 court must consider the preference of the now-deceased legal

16 parent, in terms of what she wanted to see happen to her child?

17 A. It doesn't explicitly say that.

18 Q. So it's not mentioned at all in there?

19 A. No.

20 Q. So does the court even have to consider that as a factor,

21 what the deceased parent would have wanted in terms of her

22 child?

23 A. Not explicitly, no.

24 Q. All right. What is the process for the non -- for the

25 surviving non-legal parent, what do they have to go through in

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1 order to be appointed guardian of, and what is the exact

2 process they have to go, to be appointed guardian for the

3 children of their now-deceased spouse?

4 A. So the first step is that you would have to file a petition

5 with the, the probate court. The court would then review that

6 petition and assess, make a determination as to whether the

7 guardianship was in the best interests of the child.

8

If, situations like you're describing, if the parent

9 is, the legal parent is deceased, the surviving non-legal

10 parent would have to provide notice to interested parties

11 which, in a court rule includes grandparents in there. And any

12 interested party could come forward, relatives, at the time of

13 the hearing itself.

14 Q. Okay. Let me just stop you. So you're saying, for

15 instance, if something happened -- and we keep on saying death,

16 but this involves also if you're just incapacitated in some

17 way, that you cannot properly care for the child, correct?

18 A. Correct.

19 Q. Okay. So say something were to happen to, to Jayne, and

20 April wanted to get guardianship of Nolan and Jacob, is, is

21 this the process then that she would have to go through in

22 order to get guardianship?

23 A. Correct.

24 Q. Okay.

25 A. And then so the first step would be that she would have to

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1 file for guardianship, have the court assess it, make a

2 finding.

3

In that process, the court has a number of options in

4 any given case it could use. It could order the Department of

5 Human Services to conduct an investigation. It could appoint a

6 guardian ad litem to make his or her own determination of

7 what's in the best interest of the child. And then a hearing

8 would be held if this information is required to make that,

9 that determination.

10

But it really does, the way our legal structures are,

11 are -- have been created, put the burden on the person seeking

12 guardianship to establish their fitness to care for a child.

13 Q. And so, and when you said contacts or provide notification

14 to the relatives, do you mean like in the case of April, if

15 April wanted to have, that I just mentioned, April wanted to

16 seek guardianship of Nolan and Jacob, she's got to give

17 notification to all of Jayne's family? How does that work?

18 A. So the only relative that's specified in our court rule is

19 the grandparent. So there's nothing that sort of would require

20 her to give broader notification to more than, more than that.

21

But the guardianship procedures, procedures are all

22 open. So nothing would prevent relatives from hearing about it

23 to -- from coming to court.

24 Q. Okay. Now, in terms of this guardianship, say that this

25 guardianship is, the appointment is made by the court through

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1 either April or Jayne. Is this a permanent guardianship?

2 A. So the order would exist until the order, until the child

3 turns 18 or the Court modifies the order. But on an annual

4 basis, the guardianship would be reviewed. For children under

5 six, there actually has to be an active court hearing every

6 year. For older children, the court may have a court hearing,

7 or the guardian has to file paperwork every year proving to the

8 court that the child is doing okay in the home.

9

But it's -- I mean, there's a level of, of oversight

10 that, that takes place with the court being sort of the central

11 hub of looking over the family until the child turns 18.

12 Q. Now, who is eligible to petition for guardianship of the

13 minor, who is left without a legal parent as April and Jayne's

14 kids would be, if anything happened to either one of them?

15 When that occurs, can anyone challenge the wishes of the other,

16 now-deceased or now-incapacitated parent as to would they would

17 like to see raise their kids?

18 A. Yes. And even after the guardianship is created, any

19 person could challenge and request that the guardianship be

20 rescinded.

21

You know, guardianships, if you look at the statutes,

22 they really are -- they were never intended to be a permanent

23 option in the sense that they were typically -- they are

24 typically used when you have a biological parent trying to get

25 their, sort of address whatever issues they have, and, and the

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1 child lives temporarily with a relative or somebody else, which

2 is why, you know, in foster care cases, the Department of Human

3 Services and the courts and the laws puts guardianship as a

4 very secondary goal to adoption, because there's a sense of

5 impermanence with the guardianship process, that at any time it

6 can be set aside. And so the sort of the predominant sort of

7 concept in child welfare cases is one of permanency, trying to

8 get these kids who have been bouncing around from home-to-home

9 a sense of stability; that this is where you're going to be.

10

And there's a recognition in the child welfare

11 community that guardianships don't provide that, because they

12 are intended for a very different purpose.

13

THE COURT: You know, I think I'm going to give you as

14 much leeway as I can, but I think we are getting into areas

15 that are not relevant. And as the State has indicated a couple

16 times, why don't you get to the meat of that which you --

17

MS. NESSEL: Okay. I'll move on, your Honor.

18 BY MS. NESSEL:

19 Q. Can I ask you this, though? Could the children

20 theoretically, under the laws that exist right now, could they

21 be placed back into foster care instead of staying with their

22 non-legal parent? Could that happen?

23 A. Yes. So in a situation where a child is left with a person

24 who does not have legal authority over the child, which could

25 happen if, if the legal parent is deceased and there's some

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1 delay caused by the funeral, or sort of the inherent chaos that

2 may take place after someone dies, then the department could

3 petition, one of the grounds, is when a child is left without

4 proper care.

5 Q. Sure. Let me stop you there.

6

Are there other -- are there any other issues in

7 regard to guardianships that place them not on par with having

8 adoptive legal rights?

9 A. It's just the sense that, first, you'd have to seek court

10 approval. Then on an ongoing basis, you have to continue to

11 prove to the court that you're a fit parent. But then also the

12 broad standing provision that at any time somebody could, could

13 threaten to undo the guardianship.

14 Q. Okay. Now, for the non-legal parent who now has to seek

15 guardianship, are there any financial costs or expenses

16 involved in that process of now having to seek an appointment

17 of guardianship for the non-legal children that they want

18 guardianship of?

19 A. Yes. There's filing fees. For example, in Oakland County,

20 it's $150. It's very similar in many counties. There could be

21 a home study fee the court could order, if the court orders a

22 home study, which could range, it varies quite a bit from a

23 couple hundred dollars to a couple of thousand dollars,

24 depending on the structure of the court.

25

If the proposed guardian wants an attorney, there are

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1 fees associated with that. And then there's a cost of going to

2 court. And there can be child care costs and lost wages as a

3 result of missing work.

4 Q. And, Professor, I think you started to speak to this, but,

5 you know, what happens if there is a delay in, in filing a

6 petition for the appointment of guardianship by the non-legal

7 parent?

8

Say that one of these women were to die or one of them

9 were in a terrible accident and they were hospitalized, what if

10 there is a delay in them being able to get to court to do those

11 things? What could happen to them then?

12 A. So I think the important thing to remember is that when

13 that happens, the surviving parent legally is a stranger to the

14 child. Legally they have no rights to the child. So

15 immediately there could be issues involving access to medical

16 care, access to educational, enrolling the child in school,

17 getting documents related to the child.

18

MR. POTCHEN: Your Honor, I'm just going to continue

19 to object. This is all speculation of what could happen.

20

THE COURT: I don't think it's speculation, but we've

21 covered it once. He's indicated all these things. And I think

22 that again, he's covered it, number one, in various ways. So

23 why don't we move on.

24

MS. NESSEL: All right.

25

THE COURT: And see where you, you know, if you have

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1 another area, that's great. If you don't, then...

2

MS. NESSEL: All right.

3

THE COURT: I think he's covered guardianships.

4

MS. NESSEL: I understand. If I could just ask this

5 one last question as it pertains to this.

6 BY MS. NESSEL:

7 Q. In terms of the State's own advice that they give to

8 prospective parents, do they indicate, does the State of

9 Michigan indicate that guardianships are on par with securing

10 adoptive rights?

11

MR. POTCHEN: I'm going to object, your Honor, as to

12 him giving legal opinions in this case.

13

THE COURT: I think his area of expertise does involve

14 legal opinions, but I mean I don't know where you're going. So

15 he can answer this question.

16

MS. NESSEL: I understand, your Honor. We're almost

17 done with this area.

18 BY MS. NESSEL:

19 Q. What does the State of Michigan -- you saw what the State

20 of Michigan had indicated in their brief to the Court.

21

But what is the State of Michigan and the Department

22 of Human Services, in their Child Welfare Manual, what do they

23 indicate about this?

24

MR. POTCHEN: Your Honor, I'm going to object to him

25 --

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1

THE COURT: Yeah.

2

MR. POTCHEN: -- opining on the State of Michigan.

3

THE COURT: Let's move on.

4

MS. NESSEL: All right. Moving on.

5

THE COURT: Plus, we heard it already.

6

MS. NESSEL: Okay.

7

THE COURT: We know. This witness and other witnesses

8 have testified the effects of guardianship or non-effects.

9

MS. NESSEL: I understand, your Honor. Moving on.

10 BY MS. NESSEL:

11 Q. All right. Now, you've been qualified as an expert as it

12 relates to your knowledge of the foster care system. What can

13 you tell the Court as it relates for the need for qualified

14 parents who want to adopt a foster child in the state?

15 A. There is a pretty significant need based on the high number

16 of kids we have in foster care. We have roughly just under

17 14,000 kids in foster care.

18

The latest statistics that I saw is of those under

19 14,000 children in foster care, roughly 3,500 kids are children

20 that we refer to as legal orphans, kids whose, the rights of

21 the parents have been terminated, but they don't have -- they

22 haven't achieved permanency through adoption. The latest

23 statistics that I reviewed, I believe in 2012, was that over

24 800 children aged out of our foster care system.

25

What's particularly troubling, is that that number has

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1 risen from a little over 500 children, back in 2005, to a

2 little over 800 children now of kids aging out of foster care

3 at a time when our foster care population itself has declined

4 significantly in the state of Michigan.

5

So for whatever reason, we are leaving these children,

6 an increasing number of children without a permanent home, more

7 than we've had in the past.

8 Q. Okay. And what are the prospects for these children that

9 you're talking about, the ones that age out of foster care

10 without any permanent homes?

11

MR. POTCHEN: I'll object to this, your Honor, as him

12 speculating what prospects are for kids going without permanent

13 homes. I don't even know where we're going with this.

14

THE COURT: And I'm not -- I mean, all these -- I

15 mean, I don't know. We've already heard testimony as to that.

16

MR. POTCHEN: We've heard testimony on the population,

17 your Honor.

18

THE COURT: We've heard testimony as to what happens

19 when children age out and so forth.

20

MS. NESSEL: Right. But we haven't heard it from this

21 expert, your Honor.

22

THE COURT: But it's cumulative. I find it very

23 interesting and I think he's very knowledgeable, but number

24 one, it's cumulative. There's no reason to continue it, number

25 one. Number two, that's --

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1

MS. NESSEL: All right. I'll move on.

2 BY MS. NESSEL:

3 Q. All right. So generally without going through these

4 numbers --

5

THE COURT: No. No. Move on. Move on.

6

MS. NESSEL: Okay.

7 BY MS. NESSEL:

8 Q. Now, do you believe, Professor Sankaran, that the Michigan

9 Adoption Code provides disincentives for same-sex couples to

10 adopt?

11 A. I do.

12

MR. POTCHEN: I'm going to object to this fact. When

13 I asked him directly, are you going to give any opinions on

14 Michigan's rationale for same-sex -- for second-parent

15 adoptions.

16

THE COURT: He said no. He hasn't gotten into that

17 area.

18

MS. NESSEL: Well, that's what I'm specifically

19 asking, if there are any disincentives for same-sex couples to

20 adopt based on the construct of the Adoption Code.

21

THE COURT: He's already answered the question. He

22 said yes.

23 BY MS. NESSEL:

24 Q. Okay. All right. Can you tell us why?

25 A. Yes. Because it leaves the one parent in the relationship

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1 without any legal right to the child.

2 Q. All right.

3 A. There's only one parent, one of the parents can adopt.

4 Q. And can you tell us whether there are any specific

5 challenges involving in, say, placing special needs kids, like

6 the ones that April and Jayne have taken in, those kinds of

7 kids, are there any special challenges placing them in the

8 foster care system into permanent homes?

9 A. Yes.

10

THE COURT: Permanent homes. Go on.

11

THE WITNESS: This is a challenge that we confront in

12 the system every day, with kids with special needs, like the

13 three that are placed with, with the plaintiffs in this case,

14 but also of older youth in foster care. It's, it's something

15 that we struggle with in our system. We can't find enough

16 homes for kids who are older, particularly kids of color.

17 BY MS. NESSEL:

18 Q. All right. Now, if the Adoption Code as it's currently

19 written, if it -- sorry.

20

If the Adoption Code were to be changed, for instance,

21 to allow same-sex couples to adopt, how would that allow -- how

22 would allowing both parties to have adoptive legal rights to a

23 child increase the pool of applicants to adopt foster care

24 children?

25

MR. POTCHEN: I'm going to object, your Honor. It

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1 calls for speculation, a legal conclusion and it's irrelevant

2 here, I guess.

3

MS. NESSEL: Your Honor, I'm seeking his opinion as to

4 it based on his understanding of how the foster care --

5

THE COURT: He may answer it, but I can't let you go

6 too far. But go on. He can answer. He has an opinion based

7 upon his expertise and his experience within the area.

8

THE WITNESS: So my opinion is that eliminating any

9 barrier, making it easier for families to adopt would benefit

10 my clients, the kids in foster care.

11

My conversations with workers at adoption agencies

12 also suggest that there are a significant number of same-sex

13 couples who are going to other states. That's one of the

14 things that that same-sex couples can do is adopt foster

15 children from other states jointly; that there are 21 states

16 out there that allow adoption by, by unmarried parents. And

17 through the interstate compact on the placement of children,

18 which is a state law, that every state in the United States has

19 adopted as enacted, a couple in Michigan could go elsewhere and

20 adopt children in foster care in another state.

21 BY MS. NESSEL:

22 Q. So that means that kids would be adopted, under that

23 scenario, they would be adopted from other states, but not from

24 the foster care system from the State of Michigan, correct?

25 A. Correct.

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1 Q. Okay. And in terms of financial savings to the State, if

2 those couples were to adopt from the State of Michigan's foster

3 care system, say instead of going elsewhere, or not adopting at

4 all, would you expect to see any kind of savings to the State

5 of Michigan as a result of that?

6

MR. POTCHEN: Okay. Now I'm going to object.

7

THE COURT: Well, as to specifics, I sustain your

8 objection.

9

MR. POTCHEN: Thank you.

10

THE COURT: But he obviously knows somewhat. And

11 would you expect to receive savings, he can answer that yes or

12 no. But as to specifics, I don't think that he's --

13 BY MS. NESSEL:

14 Q. Okay. Would you expect to see savings to the State of

15 Michigan, in the event that same-sex couples were allowed to

16 jointly adopt or second-party adopt, would you -- and you had

17 more kids that were adopted from the foster care system, would

18 you expect to see some kind of savings to the State of

19 Michigan?

20 A. Yes. It's an unsettled -- I mean, it's an undisputed fact

21 that foster care is expensive both in terms of direct costs of

22 care involving housing the children, the professionals involved

23 in the cases, but also the indirect costs involved with high

24 rates of incarceration for kids aging out of foster care,

25 homelessness, mental health costs. So I would expect that if

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1 we were able to get more kids adopted, it would save the State

2 a significant amount of money.

3 Q. Okay. Now, in your experience as a specialist in the field

4 of child welfare, do you personally, from speaking to all these

5 different experts, and working in the field, do you know any

6 reason why a same-sex couple like April and Jayne should not

7 both be provided with legal rights to the children they are

8 jointly raising?

9 A. No.

10

MR. POTCHEN: Objection, your Honor.

11

THE COURT: He can answer that. He says no, he knows

12 no reason.

13

THE WITNESS: And I think for me, it's telling that we

14 license as foster parents same-sex couples.

15

MR. POTCHEN: This isn't even responsive, your Honor.

16

THE COURT: But non-responsive is the person who asked

17 the question. So if she feels it's non-responsive.

18

MS. NESSEL: It feels responsive.

19

(Laughter in courtroom.)

20

THE COURT: You may continue.

21

THE WITNESS: The State of Michigan license same-sex

22 parents to foster children. And as I stated before, foster

23 parents have a significant amount of responsibility on the

24 day-to-day basis to care for children in the foster care

25 system. So for me, that's telling as any fact that I know.

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1 BY MS. NESSEL:

2 Q. Okay. So now based on your assessment of the issues in

3 this case, have you formed any general conclusions as it

4 pertains to these issues?

5 A. I have. So I think that my opinion is that the current law

6 that exists and which I think imposes a barrier on the, the

7 pool of adoptive applicants is really hurting kids in Michigan,

8 particularly kids that I focus oh, kids in foster care. And I

9 also have the opinion that, that other mechanisms like

10 guardianships or wills don't provide the stability of

11 permanency for kids that, that an adoption could provide, which

12 then increases the likelihood of insecurity, instability and

13 impermanency for children.

14

MS. NESSEL: All right. Thank you, very much, your

15 Honor.

16

THE COURT: You may cross-examine.

17

CROSS-EXAMINATION

18 BY MR. POTCHEN:

19 Q. Hello again.

20 A. Hello again.

21

THE COURT: Do you want this up? There we go.

22

Okay. Go on.

23 BY MR. POTCHEN:

24 Q. We talked a little bit about the Michigan Adoption Code,

25 MCL point 24 in your testimony earlier, correct?

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1 A. Correct.

2 Q. And we talked about an addition, the recent addition onto

3 that which says a married person with or without her spouse can

4 adopt, the addition --

5 A. Correct.

6 Q. -- that occurred?

7

When that married person adopts the child under the

8 third prong, they adopt as a single person, correct?

9 A. Correct.

10 Q. When a home is licensed -- I'm going to talk a little bit

11 about foster care. When a home is licensed as a foster home,

12 DHS can approve more than one foster parent, correct?

13 A. Correct.

14 Q. And when a home is licensed as a foster home, everyone

15 providing care in the home regardless of the number, must be

16 approved by DHS, correct?

17 A. Correct.

18 Q. So DHS can approve multiple caregivers in a foster home,

19 correct?

20 A. Correct.

21 Q. A brother and a sister can apply to be caregivers in a

22 foster home, correct?

23 A. Correct.

24 Q. And the caregiver or foster parent is not the legal parent,

25 correct?

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1 A. (No response.) 2 Q. We're talking about foster homes. 3 A. Correct. 4 Q. In a foster home situation, the caregiver or foster parent, 5 however you want to call it, is not the legal parent, correct? 6 A. So what do you mean by the legal parent? 7 Q. Right. In a foster care situation, the biological parent 8 or the state is the recognized legal parent, correct? 9 A. I would say that in a foster care situation, the biological 10 parent, the court, and then the foster parent share 11 responsibilities. But I think your -- but the primarily 12 responsibility hinges with the court and the biological parent. 13 Q. Right. It's not the foster parent. They were not the 14 legal parent. It's either the biological parent or the court 15 or both the court and the biological parent -16 A. Right. 17 Q. -- together, correct? 18 A. Correct. 19 Q. Now, later, the foster parent can become the legal parent, 20 correct? 21 A. Correct. 22 Q. So in an adoptive home, a permanent legal relationship is 23 created. And in a foster home, that permanent legal 24 relationship has not yet been created. Is that true? 25 A. Correct.

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1 Q. In Michigan, a single person can adopt whether they are

2 gay, lesbian, straight, if they are deemed fit by the

3 Department of Human Services, correct?

4 A. And the court, correct.

5 Q. And the court.

6

And if they are deemed fit, DHS policy and the courts

7 do not prohibit someone from adopting based on same-sex, their

8 attraction to a same sex, excuse me.

9 A. Correct.

10 Q. And DHS policy and the courts do not prohibit individuals

11 from adopting if they are living with a same-sex partner,

12 correct?

13 A. Correct.

14 Q. So under Michigan's current adoption law, the pool is

15 married couples or a single person, correct?

16 A. Correct.

17 Q. Ms. DeBoer can execute a will designating her desire to

18 have Ms. Rowse granted rights over the children, correct?

19 A. She could, correct.

20 Q. And Ms. Rowse can execute a will designating her desire to

21 have Ms. DeBoer granted rights over the children, correct?

22 A. She could.

23 Q. Do you know if either of them have done that?

24 A. I don't.

25 Q. And you indicate, even if they are designated as such, the

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1 other person still has to go to court and file an acceptance of 2 that appointment, correct? 3 A. Correct. And the court would have to approve the 4 appointment based on a finding that it's in the best interest 5 of the child. 6 Q. You don't have any reason to believe that Ms. Rowse or Ms. 7 DeBoer would not accept such an appointment, do you? 8 A. I don't. 9 Q. And you don't have any reason to believe that either Ms. 10 Rowse or Ms. DeBoer would refuse to become a guardian to the 11 children, do you? 12 A. I don't. 13 Q. In this case, if one of the adult plaintiffs died, the 14 other adult plaintiff could go to probate court, file for 15 temporary guardianship, and if the court approves it, then they 16 could retain the care of the child of the decedent, correct? 17 A. If the court approves it, they could. 18 Q. And generally, courts don't ignore the decedent's wishes, 19 do they? 20 A. So I can't speak to that. So I have not had sort of 21 extensive experience with the -- in situations where a decedent 22 has died. I mean -23 Q. You wouldn't -24 A. -- one would hope. 25 Q. You wouldn't expect a court to ignore a decedent's will,

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1 expressing their desire to have somebody else care for their

2 children, would you?

3 A. I wouldn't expect it.

4 Q. Okay.

5

MR. POTCHEN: Just a minute, your Honor?

6

THE COURT: Of course.

7

MR. POTCHEN: I have no further questions, your Honor.

8

THE COURT: Thank you. Anything further?

9

MS. NESSEL: No, your Honor.

10

THE COURT: Thank you, Professor.

11

THE WITNESS: Thank you.

12

THE COURT: You may step down. Let's just talk a

13 little bit about tomorrow. We'll start at nine o'clock. We

14 have, is it Dr. Gates, it's my understanding. And he's the

15 only witness tomorrow?

16

MS. NESSEL: Correct, your Honor.

17

THE COURT: Okay. And then Friday we have Dr. Cotts,

18 and she's the only witness. Is that correct?

19

MR. MOGILL: That's correct.

20

THE COURT: Okay. And then Monday, the Government

21 will be prepared to -- the Government.

22

MR. POTCHEN: The State.

23

THE COURT: The State will be prepared to start their

24 case. So we will adjourn for the day. We will all see you

25 tomorrow at nine o'clock, and Friday we'll start at nine

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1 o'clock, too.

2

Okay. We'll stand in recess.

3

(Proceedings adjourned, 12:26 p.m.)

4

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1

2

CERTIFICATE OF REPORTER

3

We, Joan L. Morgan and Christin E. Russell, as

4 official court reporters for the United States District Court,

5 appointed pursuant to provisions of Title 28, United States

6 Code, Section 753, I do hereby certify that the foregoing is a

7 correct transcript of the proceedings in the above-entitled

8 cause on the date hereinbefore set forth.

9

10

s/ Joan L. Morgan, CSR

11

s/ Christin E. Russell, CSR

12

Federal Official Court Reporters

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1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, ET. AL.,

Plaintiffs,

-v-

Case Number: 12-10285

RICHARD SNYDER, ET. AL.,

Defendants. ______________________________/

VOLUME 3

BENCH TRIAL BEFORE THE HONORABLE BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE 100 U. S. Courthouse & Federal Building
231 West Lafayette Boulevard West Detroit, Michigan 48226
THURSDAY, FEBRUARY 27TH, 2014

APPEARANCES:

For the Plaintiffs:

Carole M. Stanyar, Esq. Dana M. Nessel, Esq. Kenneth Mogill, Esq. Robert Sedler, Esq.

For the Defendants: Richard Snyder, Bill Schuette,

Tonya C. Jeter, Esq. Kristin M. Heyse, Esq. Joseph E. Potchen, Esq.

Lisa Brown

Beth M. Rivers, Esq. Andrea J. Johnson, Esq. Michael L. Pitt, Esq.

To Obtain Certified Transcript, Contact: JOAN L. MORGAN, OFFICIAL COURT REPORTER
734 812-2672

Proceedings recorded by mechanical stenography. Transcript produced by computer-assisted transcription.

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2

I N D E X
PLAINTIFFS’ CASE IN CHIEF WITNESS: GARY GATES Direct Examination by Ms. Nessel Cross-Examination by Ms. Brya Redirect Examination by Ms. Nessel

PAGE
5 40 59

E X H I B I T S
Plaintiffs’ Exhibit No. 300 Plaintiffs’ Exhibit No. 301

RECEIVED: 12 19

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THURSDAY, FEBRUARY 27TH, 2014

1

Detroit, Michigan

2

Thursday, February 27th, 2014

3

(At or about 9:00 a.m.)

4

-- -- --

5

THE COURT: Any preliminaries that we should be

6

talking about?

7

MS. STANYAR: Carole Stanyar on behalf of the

8

plaintiffs.

9

None that I know of, Judge.

10

Mr. Mogill is here. Dana Nessel is here.

11

THE COURT: And your clients are not here.

12

MS. STANYAR: Our clients are not here.

13

Vicki Henry is here also on behalf of plaintiffs.

14

THE COURT: Okay. Are your clients are they on

15

their way?

16

MS. STANYAR: They are not going to be -- we’re

17

not waiting for them. They’re not going to be here this

18

morning.

19

THE COURT: Okay. And they --

20

MS. STANYAR: They’re good. They’re fine with

21

that.

22

THE COURT: If we had to -- if they wanted to be

23

here, I would wait for them.

24

MS. STANYAR: They don’t need to be here.

25

THE COURT: Okay. And we have all of the

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THURSDAY, FEBRUARY 27TH, 2014

1

defendants.

2

MS. HEYSE: Good morning, your Honor.

3

We don’t have any preliminary matters either.

4

Kristin Heyse on behalf of the State defendants.

5

Joseph Potchen, Michelle Brya and Tonya Jetter

6

are also here.

7

THE COURT: Super.

8

MS. HEYSE: Thank you.

9

THE COURT: And Mr. Pitt isn’t here, but we’ll

10

continue without him --

11

MS. STANYAR: No.

12

MS. JOHNSON: Andrea Johnson on behalf of Lisa

13

Brown.

14

THE COURT: Oh. Good morning.

15

MS. JOHNSON: Good morning.

16

THE COURT: How are you?

17

MS. JOHNSON: I’m good. How are you?

18

THE COURT: Good.

19

We had spoken with Mr. Pitt about seeing if Ms.

20

Brown was going to testify earlier. Any --

21

MS. JOHNSON: My understanding is she’s planning

22

to testify on Monday.

23

THE COURT: Okay. That’s fine. Good. Not a

24

problem.

25

Okay. Our first witness, please.

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THURSDAY, FEBRUARY 27TH, 2014

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If you would be kind enough to raise your hand.

2

Do you solemnly swear or affirm to tell the truth

3

in the matter now pending before this Court?

4

THE WITNESS: Yes.

5

THE COURT: If you could tell us your full name

6

and spell your last name.

7

THE WITNESS: My name is Gary J. Gates. G-a-t-e-s.

8

THE COURT: Okay. You may proceed.

9

MS. NESSEL: Okay.

10

G A R Y J . G A T E S , Ph.D.,

11

BEING DULY SWORN, TESTIFIED AS FOLLOWS:

12

DIRECT EXAMINATION

13

BY MS. NESSEL:

14

Q Sir, if you could repeat your name, please?

15

A My name is Gary J. Gates.

16

Q Okay. And, sir, how are you currently employed?

17

A I am the Williams Distinguished Scholar at The

18

Williams Institute at UCLA School of Law.

19

Q Now, what exactly is the Williams Institute

20

A The Williams Institute is a research center at UCLA.

21

We study sex orientation law and public policy.

22

Q And what is your position within the Williams

23

Institute?

24

A So I’m one of the scholars at the Institute. I conduct

25

research on -- as I said, sex orientation and gender

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identity policy issues.

2

Q I’m sorry, you said you were a distinguished scholar?

3

A The Williams Distinguished Scholar.

4

Q Is there an approval process that you have to go

5

through in order to become a distinguished scholar with The

6

Williams Institute?

7

A Well, from my position it’s a position with the

8

University of California system that are -- individuals who

9

are researchers who do not have tenure track faculty

10

positions but function at that level of research.

11

So I go through an approval process with the

12

faculty senate that is akin to allowing someone into a

13

tenure track faculty position.

14

Q Okay. Now, more specifically what is it that you do as

15

distinguished scholar at The Williams Institute?

16

A So I’m a demographer by trade, and I study the

17

demographic economic and geographic characteristics of the

18

lesbian, gay, bisexual and trans gender population.

19

Q Okay. And when you say lesbian, gay, bisexual and

20

trans gender is there an acronym that you typically use for

21

that?

22

A We often use LGBT.

23

Q Okay. So for the purposes of today’s testimony is that

24

-- when you use the acronym of LGBT is that what you’re

25

referring to?

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A Yes.

2

Q Okay. Now, in the course of your work in the field of

3

demographics are you focused on any specialized areas?

4

A Again, primarily looking at socio-demographic

5

characteristics. So things like race and age, as well as

6

geographic characteristics where people live, differences

7

in the laws in where they live and also economic

8

characteristics. So, you know, how money they make, what

9

kinds of health insurance they might have, what kinds of

10

poverty programs they participate in, those topics.

11

Q Okay. Why did your educational background lead you to

12

develop this focus on demography?

13

A So I’m trained -- I have a Ph.D. in public policy from

14

Carnegie Mellon University and as part of that training --

15

I was actually trained -- my thesis advisors were labor

16

economists one of whom was also a demographer. At Carnegie

17

Mellon the point of the degree is that you learn research

18

that has influence on public policy and the kind of

19

juxtaposition of research and public policy. So that’s how

20

I got into that area.

21

Q All right. Can you just list your degrees that you

22

have?

23

A Sure. I have an undergraduate degree in computer

24

science, a Master of Divinity degree, and a Ph.D. in public

25

policy and management.

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Q Okay. Now, Dr. Gates, have you received any

2

professional honors of any type for your work?

3

A Yes. So at my -- my university Carnegie Mellon as a

4

graduate student I received an award for my work promoting

5

racial and social justice. Several years later after I

6

completed my Ph.D. I received a recent alumni award for

7

basically my distinction for my scholarship. Then I was

8

also named to the “Out 100" which “Out” is a magazine that

9

every year lists the most interesting LGBT people in the

10

country. I was designated as having been an academic

11

pioneer.

12

Q Now, have you authored any studies at all on the

13

subject matters that you’ve described?

14

A Yes. So particularly since my Ph.D., I’ve published

15

frequently including publications in peer review journals.

16

I wrote a book. I have written many book chapters. Then and

17

dozens of reports and research briefs.

18

Q Okay. What’s your book about?

19

A My book is called “The Gay and Lesbian Atlas.” It

20

looks at the geographic distribution of same-sex couples in

21

the United States using Census 2000 data.

22

Q All right. And if you had to quantify in terms of how

23

many say studies that you’ve done in the fields that you’ve

24

discussed how many studies would you say roughly?

25

A Well, I think I have nearly 20 peer review articles.

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As I said, maybe a half dozen book chapters and I think

2

it’s more than 50 research briefs and reports.

3

Q All right. Of these various -- you may have mentioned

4

this so forgive me if you have, but in terms of actual peer

5

review publications how many of these have appeared in peer

6

review publications?

7

A It’s approximately -- I have four or five in -- three

8

or four I should say in law review type environments, and

9

then another I believe it’s a dozen or so in social science

10

peer review journals.

11

Q Okay. Do you ever perform reviews of other scholars’

12

works?

13

A I do. I’m a regular peer reviewer for a wide range of

14

journals including the major sociological journals, the

15

American Sociological Review, major economic journals,

16

American Economic Review, major public health journals,

17

American Journal of Public Health. So a wide range of

18

journals.

19

Q Okay. Now, do you ever present lectures or

20

presentations or give symposiums based on your work in the

21

field of demography as it relates to the LGBT community?

22

A Yes. I’m a frequent presenter at the main professional

23

organizations that I’m involved with, the Population

24

Association of America which is the professional

25

association for demographers. I present my own work and

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often am asked to discuss other work. I have presented at

2

the American Statistical Association and at the American

3

Public Health meetings. I’m also frequently invited to

4

present at -- often at research universities to do

5

seminars, present my work.

6

Q Is this a regular part of your employment as a

7

distinguished scholar at The Williams Institute?

8

A It is. Part of our mission is conducting rigorous and

9

objective research and doing that kind of work exposes our

10

research to other scholars so it’s a way to get feedback

11

from other scholars, but’s also a way obviously to get the

12

work that we do into both the scholarly dialogues as well

13

as into the public domain.

14

Q Well, how many -- if you had to quantity, roughly how

15

many of these presentations have you given during the

16

course of your career?

17

A I think it’s at this point several hundred.

18

Q Okay. Now, have you received any recognition of any

19

kind from the U.S. Census Bureau for your work?

20

A Yes. I was named by -- appointed by the Census Bureau

21

Director to be on the Census Scientific Advisory Committee.

22

Q When was that?

23

A Two years ago.

24

Q Okay. And have you received any other type of

25

recognition from the federal government for your work in

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1

demography?

2

A Yes, I was also appointed to a similar committee at

3

the Bureau of Labor Statistics, their Data User Advisory

4

Committee again by the Director the Bureau of Labor

5

Statistics.

6

Q Okay. And --

7

MS. NESSEL: Your Honor, may I approach for a

8

moment?

9

THE COURT: You may.

10

BY MS. NESSEL:

11

Q I’m showing you what’s been marked as Plaintiffs’

12

Proposed Exhibit 300. Can you tell me if this is a true and

13

accurate copy of your CV?

14

A Yes, it is.

15

MS. NESSEL: Your Honor, at this time I’m going to

16

ask that Plaintiffs’ Proposed Exhibit Number 300 be

17

admitted into evidence.

18

THE COURT: Any objection?

19

MS. BRYA: Yes, your Honor. We would object to the

20

admission of Plaintiffs’ Proposed 300 with respect to the

21

introductory paragraphs of the CV where it states, for

22

example, that Dr. Gates is a recognized expert on the

23

geography and demographic -- and demography of the lesbian

24

gay bisexual and trans gender population. There’s been no

25

testimony that he has been recognized as a legal expert in

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that field in any court proceedings. As you know, we

2

believe that to be a legal conclusion for this Court to

3

determine.

4

THE COURT: Any other objections?

5

MS. BRYA: No, your Honor.

6

THE COURT: Okay. Why don’t we just redact that

7

part --

8

MS. NESSEL: That’s fine, your Honor.

9

THE COURT: Everybody writes their CV a little

10

different way. I tend to agree with you. We’ll redact that

11

-- just that first little portion and then we have all of

12

his qualifications, writings, teachings, and so forth.

13

MS. NESSEL: Very good, your Honor.

14

THE COURT: Objection is sustained and go from

15

there.

16

(Plaintiffs’ Exhibit 300 received into evidence.)

17

BY MS. NESSEL:

18

Q All right. Can you give us a little bit more specific

19

information, Dr. Gates, on your training with your work on

20

economic characteristics data of the LGBT community that

21

you indicate you compile? Can you be more specific about

22

that?

23

A So, you know, I primarily study broadly demographics

24

of the LGBT community. As a demographer one of the major

25

pieces of demographic study is that you look at socio-

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economic characteristics. So one of my chapters in my

2

dissertation, for example, looked at wage differences

3

between gay men and other men. I’ve done many studies that

4

include looking at differences in household income for

5

same-sex couples or same-sex couples with children relative

6

to other couples. I recently did a study looking at food

7

vulnerability and use of food stamps among same-sex

8

couples. So all of those things are a fairly standard part

9

of the kind of analyses that a demographer would do.

10

Q And some of your studies that involve economic

11

characteristics have those been actually published in

12

economic journals?

13

A Yes. I’ve been published several times in peer review

14

econ journals.

15

Q Okay.

16

MS. NESSEL: Your Honor, at this time the

17

plaintiffs would like to offer Dr. Gates as an expert in

18

demography with a specific expertise in the study of the

19

demographic, geographic and economic characteristics of the

20

LGBT population.

21

THE COURT: Any objection or voir dire?

22

MS. BRYA: Your Honor, we don’t have any objection

23

with respect to Dr. Gates being recognized as an expert in

24

the areas of geography and demography of LGBT population.

25

But we do have an objection with respect to the economics

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of the LGBT population. There’s been no testimony that Dr.

2

Gates has a degree in economics, any specialized training

3

in economics and no testimony that he’s ever been

4

established as an expert in the field of economics or

5

testified as an expert in economics.

6

THE COURT: Counsel, when you say economics do you

7

mean economics as it relates to the surveys and so forth

8

that he does or economics as to reaching conclusions as to

9

issues of economics?

10

MS. NESSEL: Your Honor, what it involves is him

11

presenting the data that sometimes involves economics

12

issues. Dr. Gates indicated that he was trained as a labor

13

economist at Carnegie Mellon --

14

THE COURT: I want to see what you intend to

15

offer. So you intend to offer the conclusions that are

16

reached as a result of his work in the demographics of

17

certain economic populations?

18

MS. NESSEL: Well, as it pertains to what his

19

findings were in these surveys because, of course, this is

20

surveyed information. So as it pertains to the numbers

21

which came back as a result of the surveys taken and the

22

data that he studied and compiled.

23

THE COURT: I’ll allow him, but I know you have a

24

continuing objection anyhow but, again, this is a more

25

specific area. When we get into that area if you feel that

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it is not within his expertise let me know and I will rule

2

on it then. I’m not quite sure what he’s going to say.

3

MS. BRYA: Thank you, your Honor.

4

THE COURT: Or how they’re going to do it. I think

5

there is some limitations, but I’m not sure if he’s going

6

to exceed any of those or not.

7

BY MS. NESSEL:

8

Q All right. Doctor Gates, can you please give the Court

9

a brief summary of the expert opinions that you intend to

10

offer to the Court today?

11

A Yes. I will be offering opinions showing that same-sex

12

couples in partnership and spousal relationships have

13

existed in the United States for at least several decades.

14

That there are many gay, lesbian and bisexual people and

15

same-sex couples who are raising children. That lesbian,

16

gay and bisexual individuals have a strong desire to adopt

17

children, and actually report stronger desires to do than

18

their heterosexual counterparts. And that same-sex couples

19

are more likely than their opposite sex married

20

counterparts to be raising children -- raising adopted

21

children and raising children in foster care.

22

I will also offer opinions that show that many

23

LGBT people want to marry and also want to have children,

24

and that their motivations for marriage are similar to

25

other adults in the U.S.

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And I will offer opinions showing that permitting

2

same-sex couples to marry could possibly alleviate some of

3

the economic disadvantages that they experience when they

4

are not able to marry.

5

Q Now, Dr. Gates, you’re in a somewhat unique field

6

could you tell us generally speaking how it is that you go

7

about retrieving data in order to form these conclusions?

8

Can you tell us a little bit about the process of your

9

work?

10

A Sure. So I primarily utilize -- as a demographer I

11

focus most though not exclusively but most of my work on

12

what we call population base data sources. So sources that

13

when analyzed can be used to make inference about the

14

actual population of the group that you’re studying.

15

I try to rely on studies that do actually cross

16

academic fields so I would potentially review studies in

17

demography and sociology and economics as well as

18

psychology.

19

I am trained as a social scientist so I generally

20

follow the norms of research the way you frame research and

21

the way you then analyze things using social science

22

research norms. Whenever possible, I try to consider

23

multiple sources of evidence, and then assess the

24

methodological rigor and whether the methodology was

25

appropriate. Again, that kind of relates back to those

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social science norms. And then finally, trying to assess

2

whether the research draws appropriate inference as a

3

result of the methodologies.

4

Q Okay. Now, I know you touched on this earlier about

5

The Williams Institute, but, again, what -- I think you

6

indicated that the purpose of this organization is what

7

specifically?

8

A So our mission is to conduct rigorous and objective

9

research, to inform debates around sexual orientation and

10

gender identity.

11

Q Okay. And how does The William Institute receive its

12

funding?

13

A We’re funded by a variety of sources. We have funding

14

from private foundations. We have individual donors. We

15

also receive public funding from places like the National

16

Institutes of Health, and the Department of Health and

17

Human Services.

18

Q Okay. So you do receive government funding you

19

indicated then for some of your studies and projects?

20

A We do.

21

Q Okay. Now, what mechanisms do you have in place to

22

ensure that your data and the conclusions that you draw

23

from that data are accurate representations of the

24

information that’s been assimilated?

25

A Well, certainly the senior scholars at The Williams

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Institute all try to regularly publish in peer review

2

journals as well as do the kinds of shorter research briefs

3

that we put out. So publishing in the peer review process

4

obviously provides a level of objectivity.

5

But even in the reports that we would put out,

6

for instance, on our website that are more focused we would

7

attempt to -- we certainly for smaller reports have

8

internal reviews where someone else besides the author

9

reviews the paper, and for larger reports we would involve

10

external reviewers outside the organization. We have a

11

faculty advisory committee that we would also just try to

12

find scholars outside of The Williams Institute who would

13

be willing to review and provide comments.

14

Q Okay. And, again, the federal government actually

15

comes and provides funding for some of these studies that

16

you speak of.

17

A Yes. So -- yes, we have had several grants from the

18

National Institutes of Health and we’ve had both grants and

19

contracts with Health and Human Services.

20

Q Okay. And in formulating the opinions that you’re

21

going to testify about today what sources or materials did

22

you rely upon?

23

A I rely on a variety of sources including data, studies

24

-- you know, various research studies as well as my own

25

analyses of census -- primarily census bureau data but also

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a few other surveys as well.

2

MS. NESSEL: May I approach, your Honor?

3

BY MS. NESSEL:

4

Q I’m going to show you what’s been marked as

5

Plaintiffs’ Proposed Exhibit 301. Can you tell me if this

6

is an accurate representation of all the studies that you

7

relied upon in order to form your opinions that you’re

8

willing to testify about in court?

9

A Yes, it is.

10

MS. NESSEL: Your Honor, I’d ask that Plaintiffs’

11

Proposed Exhibit 301 be entered into evidence.

12

THE COURT: Any objection?

13

MS. BRYA: Your Honor, we don’t have a copy of

14

that exhibit at all.

15

THE COURT: Do you have an extra copy?

16

MS. NESSEL: Certainly, your Honor.

17

MS. BRYA: If I can just have a minute to take a

18

look at it?

19

THE COURT: Absolutely. Take a look.

20

MS. BRYA: I don’t have any objection, your Honor.

21

THE COURT: It will received.

22

(Plaintiffs’ Exhibit 301 received into evidence.)

23

BY MS. NESSEL:

24

Q All right. Doctor Gates, let us talk about some of the

25

findings that you made as it pertains to the area of LGBT

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demographics. Now, were you able to determine the number of

2

people in the United States who identify as LGBT?

3

A Yes, through some work I did with the Gallup

4

Organization. Those data that they collected found that it

5

would be an estimated about 8.3 million -- it’s actually

6

adult Americans self-identified themselves as lesbian, gay,

7

bisexual or trans gender.

8

Q Okay. In your work were you able to identify what

9

percentage of the overall population in the United States

10

identify as being gay, lesbian, or bisexual?

11

A This is showing actually two different studies by the

12

University of Chicago over a 20-year time period. They --

13

you see that in both men and women there’s been an increase

14

in the portion of adults who self-identify as -- in this

15

case it’s lesbian, gay or bisexual. So it was 1.1 percent

16

of women in ‘92. It’s now 3 -- as of 2012, in a similar

17

survey it was 3.4 percent. For men it went from 2.5 percent

18

to 4 percent.

19

Q Okay. And were you able to make a similar

20

determination in regard to the number of people in the

21

State of Michigan that identify as LGBT?

22

A Yes. So, this is again -- now the Gallup data that I

23

worked with which the estimate from those data would imply

24

that there are about 287,000 adults in Michigan who

25

identify as LGBT.

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Q Okay. And you said that was for 2012?

2

A 2012, I’m sorry, yes.

3

Q Okay. And, Dr. Gates, is there any census data that

4

gives us information regarding the number of people who

5

have identified themselves as having formed a same-sex

6

couple in the United States?

7

A Yes. Since 1990, on the U.S. decennial census there’s

8

been a way that you can identify same-sex cohabiting

9

couples who are not simply roommates, who identify

10

themselves as spouses or partners.

11

In 1990, it’s actually only those who were

12

partners, it was about 145,000 same-sex couples were

13

identified. In 2000, this would be couples who identified

14

as both spouses and partners, it was more than 358,000. And

15

by 2010, it was nearly 650,000 same-sex couples.

16

Q Okay. And you’re competent in the accuracy of these

17

figures?

18

A Yes.

19

Q Okay. Now, let’s focus on the State of Michigan. Is

20

there census data that would give us information regarding

21

the number of people who identified themselves as having

22

formed same-sex couple here in the State of Michigan?

23

A Yes. So, again, drawing from those same decennial

24

census sources in 1990, the census reported almost 3400

25

same-sex couples in Michigan. In 2000, it was 7,300 same-

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sex couples. And in the latest census, 2010, it was almost

2

14,600 same-sex couples.

3

Q All right. May I ask you: Have you ever been

4

criticized as being too conservative in your overall

5

numbers?

6

A Yes, in general it’s a very common -- probably the

7

biggest single critique of my work is those who believe

8

that most of these surveys are actually undercounting and

9

that reporting that is not taking into account the

10

possibility that some people may be uncomfortable

11

identifying either or LGBT, or identifying as part of a

12

same-sex couple. So I’m fairly regularly criticized for

13

that.

14

Q I mean, when you talk about obtaining these figures,

15

of course, you say this is self-identified; correct?

16

A That’s correct. So, you know, it’s -- in the case of

17

couples you’ve identified someone, another adult in your

18

household as being the same-sex as you and also as being

19

either your spouse or your unmarried partner. So that’s a

20

self-identification.

21

And in the case of most other surveys the

22

question is something aligned of “do you consider yourself

23

to be” and you choose an option that would be gay, lesbian,

24

bisexual or trans gender.

25

Q Okay. Are there some people that don’t feel

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comfortable indicating that they are LGBT?

2

A Yes. I mean there’s evidence from social science that

3

social stigma perhaps creates situations where some people

4

who may think they are gay or lesbian or bisexual would be

5

unwilling on a survey because of concerns around

6

confidentiality to identify.

7

Q Okay. But, again, to be clear, all of these numbers

8

are based on the people who have self-identified; correct?

9

A That’s correct.

10

Q Now, are these categories, when you refer to LGBT are

11

these specific categories lesbian, gay, bisexual, trans

12

gender are they actually defined in the studies?

13

A Generally no. You know, I think of all the studies I

14

present here, no. There are occasionally surveys that try

15

to add language to explain. But for the most part the

16

questions of the surveys that I’m showing would simply --

17

phrasing would be something like do you consider yourself

18

to be, or do you identify as. There’s no explanation as to

19

defining those terms.

20

Q Okay. Can you tell us why bisexuals and trans gender

21

people are included in these surveys?

22

A Well, bisexuals are included because that’s one way in

23

which we identify sexual orientation. And bisexuals, you

24

know, generally the idea is that bisexuals would be people

25

have attractions to both same-sex and different sex

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partners. And trans gender, again, in some surveys is often

2

included. The LGBT community is often thought of as a

3

group. So the trans gender population is often included in

4

these measurements.

5

Q Okay. And would laws that discriminate against same-

6

sex couples such as the Michigan Marriage Amendment and the

7

Michigan Adoption Code would they also affect potentially

8

bisexual and trans gender people?

9

A Yes.

10

MS. BRYA: Objection, your Honor. I don’t think

11

Dr. Gates has been qualified as a legal expert to make such

12

a conclusion. I think it’s also speculation.

13

MS. NESSEL: Well --

14

THE COURT: Why don’t you lay a foundation,

15

please?

16

MS. NESSEL: Well, your Honor, in terms --

17

THE COURT: Just ask him if he --

18

MS. NESSEL: Sure.

19

THE COURT: Lay a foundation.

20

MS. NESSEL: Sure.

21

BY MS. NESSEL:

22

Q Do you have any reason through the course of your work

23

that you would know whether or not laws which place

24

restrictions on people who are same-sex couples, people in

25

a same-sex couple, whether those laws would affect also

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people who identify as bisexual or trans gender?

2

MS. BRYA: I renew my objection as to speculation

3

and asking him for a legal conclusion.

4

THE COURT: Overruled. He can answer that.

5

A There are surveys that suggest that there are both

6

bisexually identified people and trans gender people who

7

are in same-sex partnerships.

8

BY MS. NESSEL:

9

Q So then they would be affected by restrictions --

10

A Presumably they would, yes.

11

Q Okay. Now, what does the data show about the

12

relationship between age and people’s willingness to

13

identify as LGBT?

14

A So in general this is data from the U.S. Particularly

15

under -- individuals under age 30 are much more, twice as

16

likely to identify as LGBT as those 30 and older. So the

17

figures from the Gallup data for under age 30 were 6.4

18

percent while over age 30 they were, you know, 3.2 percent

19

and even lower as individuals got older.

20

Q Okay. Now, have you performed or have you analyzed any

21

studies that would speak to public acceptance of same-sex

22

relationships in the United States by general population?

23

A Yes. So this is data from again a survey conducted by

24

the University of Chicago, the National Opinion Research

25

Center. They’ve been asking a question for more than two

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decades about whether individuals -- adults in the U.S.

2

think that same-sex relationships are wrong, or not wrong,

3

and it’s actually a 5 point scale.

4

So when asked what portion -- so the portion of

5

the population who say that same-sex couples are not wrong

6

at all has increased. From 1990, it was a little less than

7

13 percent. In 2000, it was 29 percent. And by 2010, it has

8

increased to 43 percent. So that’s a signal of greater

9

social acceptance of same-sex relationships.

10

Q Okay.

11

A But I think it’s still important to point out that

12

while social acceptance has increased that a majority, 56

13

percent of Americans in 2012, still thought there was at

14

least something wrong with same-sex relationships. So there

15

is still not complete social acceptance by any means.

16

Q Okay. Do you see any correlation between the number of

17

people who self-identify as LGBT and public acceptance of

18

LGBT people?

19

A Well, certainly in terms of identification through the

20

same-sex couple -- you showed on a slide earlier there’s

21

been an increasing portion of the population identifying as

22

LGBT. There’s also been a similar increase in the portion

23

of the population or the numbers identifying as same-sex

24

couples and that has been, you know, tracks very closely to

25

increase social acceptance. So it’s likely that as social

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acceptance has improved that people are more willing both

2

to identify themselves as same-sex couples and perhaps to

3

identify as LGBT.

4

Q Okay. Now, based on your analysis on the relevant data

5

over the last several decades do you expect the number of

6

Americans and the number of Michigan residents who identify

7

as LGBT to rise in the future?

8

A Yes. I mean, for one thing the younger generation has

9

a higher proportion. So you would assume that will remain

10

higher than folks as they get older. So the anticipation

11

would be that there would be a larger proportion of those

12

identifying as LGBT in the future.

13

Q Just so I understand this graph a little better, are

14

you saying that people -- does this mean in your view that

15

people when they’re young they will identify as LGBT and

16

then they stop when they get older, how does this work?

17

A No, no. The evidence would suggest that people who

18

identify as LGBT, you know, persist in that identification.

19

So the fact that high of a percentage at that age

20

identifies likely that percentage would remain similar as

21

that group gets older.

22

Q Okay. So it’s just as time as gone on people in those

23

age groups as -- currently, as of right now, are more

24

willing to identify as LGBT the younger they are?

25

A Correct.

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Q Okay. And in your opinion will this result as time

2

goes then in the event that there remains restrictions on

3

same-sex couples such as the ability for same-sex couples

4

to marry and the ability of same-sex couples to jointly

5

adopt or second party adoptions as we have in Michigan will

6

this result looking at this graph will it result in a

7

larger number of Americans who -- and people in the State

8

of Michigan who are going to be subjected to this type of

9

discrimination?

10

MS. BRYA: Your Honor, I would object as to

11

speculation.

12

THE COURT: Also, there were a couple questions in

13

there. Why don’t you rephrase it?

14

MS. NESSEL: All right.

15

BY MS. NESSEL:

16

Q Will more and more people be affected by the types of

17

laws that we’re talking about in court here today such as

18

the Michigan Marriage Amendment and the Michigan Adoption

19

Code?

20

A Yes, there likely will be more people who identify as

21

same-sex couples and more people who identify as LGBT in

22

Michigan in the future.

23

Q Okay. Let’s talk about the number of gay, lesbian and

24

bisexual people and same-sex couples who are raising

25

children. Have you analyzed data which would allow you to

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determine the number of LGBT people raising people in the

2

United States?

3

A Yes, so there are several surveys that simply ask

4

whether you’ve had a child in your life. Based on those

5

surveys the estimate that there are about 3 million LGBT

6

Americans who have ever had a child.

7

Via the census bureau data we can look at the

8

portion of same-sex couples so again these are couples who

9

either identified as spouses or partners who have children

10

under age 18 in their home. That portion is -- more than 19

11

percent are raising children under age 18 in the home. That

12

would imply that there an estimated 200,020 children under

13

age 18 who are being raised by same-sex couples.

14

Q Are these numbers specific to states that have

15

marriage equality laws and --

16

A No, these are figures for the nation. So this would be

17

a cross --

18

Q So this includes every state in the nation.

19

A Correct.

20

Q Okay. Have you also analyzed the same data for the

21

State of Michigan?

22

A Yes. So a similar analysis in Michigan this is based

23

on Census 2010 data would find that there are about 20 --

24

2,650 same-sex couples in Michigan who are raising

25

approximately 5300 children who are under age 18.

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Q Okay. Now, Dr. Gates have you analyzed specific data

2

that indicates the willingness of lesbian and bisexual

3

women to adopt children or to foster children in relation

4

or compared to heterosexual women?

5

A Yes. So the federal government conducts a survey

6

called the National Survey of Family Growth in which women

7

-- unfortunately they don’t ask these questions of men, but

8

women are asked whether they have considered adopting. And

9

you also know the sex orientation identity of women. In

10

both the 2002 version of that survey and in the 2006

11

through 2010 version lesbian and bisexual women were much

12

more likely than heterosexual identified women to say that

13

they had considered adoption. So in 2002, it was 46 percent

14

versus 32 percent. And in the latter survey it was 48

15

percent versus 36 percent.

16

Q What about just lesbian women?

17

A So if you look, only lesbian identified women it was

18

slightly higher. More than half of lesbians said they were

19

willing to consider adopting a child again compared to

20

about 36 percent of heterosexual women.

21

Q Okay. And you indicated there’s no such similar survey

22

that indicates the contrasting bisexual men with

23

heterosexual men?

24

A They surveyed men in the survey but they don’t ask

25

this question of them.

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Q Okay. Do you know of any studies, Dr. Gates, and if

2

so, have you utilized any studies in forming conclusions

3

about the number of same-sex couples who have adopted a

4

child in the United States compared to the number of

5

heterosexual or opposite sex couples who have adopted a

6

child in the U.S.?

7

A Yes. So, again in the census data you can measure

8

whether a child in a household is identified as an adopted

9

child. And among couples with children, 14 percent of same-

10

sex couples have -- one of those children is identified as

11

an adopted child versus 3 percent of opposite sex couples.

12

And in Michigan it’s about 11 percent of same-sex

13

couples with children include an adopted child versus 4

14

percent of opposite sex couples.

15

Q And do you know of any studies that indicate the

16

number of same-sex couples that are raising foster children

17

in the United States?

18

A Yes. So nationally same-sex couples are twice as

19

likely as their opposite sex couple counterparts to be

20

raising a foster child.

21

Q Okay. Do you have any similar data involving same-sex

22

couples versus opposite sex couples raising foster kids

23

here in the State of Michigan?

24

A No, unfortunately -- foster care and having a foster

25

child is a relatively rare event. Even though there are

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data from the census bureau they are still sampled data and

2

the data on same-sex couples with foster children there

3

isn’t a sufficient sample to make a reliable estimate.

4

Q Okay. Do you know if there is a difference in the

5

number of children adopted in states where the adoption

6

policies permit both partners in a same-sex couple to be

7

legal parents first in states that have restrictions or

8

bans on same-sex couples both adopting like those here in

9

Michigan?

10

A Yes. So, again I used census bureau data. It’s called

11

the American Community Survey from 2012. I separated the

12

country into three groups. The states those where second

13

parent adoption is by state law or regulation made

14

available to all same-sex couples. States where there’s a

15

specific provision that such second parent adoptions are

16

not available to same-sex couples statewide. And then the

17

largest group of states actually doesn’t specify one way or

18

another. What you see is that in the states that permit

19

second parent adoption for same-sex couples there’s a much

20

higher portion of the same-sex couples with children have

21

adopted children, 18 percent compared to, for instance, the

22

states that have -- that do not permit second parent

23

adoption at all, the figure is only 7 percent.

24

Q Like the State of Michigan would fit in the third

25

category then.

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A Michigan would have been one of the states in the

2

third category, yes.

3

Q Let’s talk about some motivations that LGBT people

4

have to marry and to have children. Have you studied and

5

were you able to make any assessments as the percentage of

6

the LGBT community who has or who want to have children?

7

A Yes. So this is from a study by the Pew Research

8

Center which is a policy research center in Washington,

9

D.C. They surveyed LGBT people last year in the United

10

States, and found that 50 percent of LGBT identified

11

Americans either already have children or say they want to

12

have children at some point.

13

Q And is there any way to determine the number of LGBT

14

people who are already -- who marry when they’re provided

15

with the legal opportunity to do so?

16

A So measuring marriage -- I should start by saying that

17

measuring these statistics is a little challenging because

18

some of the states that were same-sex couples are permitted

19

to get married don’t actually collect the gender of the

20

spouses. And so you wind up using a combination of some

21

survey data and administrative data to come up with

22

estimates. We also then don’t have a great way to know how

23

many couples might have been married outside of the

24

country. So, again, I think these estimates are probably

25

somewhat conservative because of that.

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But the “New York Times” did analyses of state

2

administrative data and in 2012, had found there were

3

82,500 same-sex couples who had been married in one of the

4

states in the U. S. That allowed same-sex couples to marry.

5

In the recent Pew data they asked gay and lesbian

6

people specifically whether they were legally married. If

7

you assumed that those gay and lesbian individuals were

8

married to a same-sex spouse it would have implied there

9

were about 92,000 same-sex couples who are married in the

10

United States.

11

Q Okay. What about surveys regarding LGBT people who,

12

again, are already married or who wish to marry? Do you

13

have any surveys in regard to that?

14

A Yes. So again the Pew data when it looked at all LGBT

15

people found that 60 percent were either currently married

16

or said that they wanted to marry at some time.

17

Q Okay. Now, in states where the prohibitions on same-

18

sex marriage were lifted what was the reaction of the LGBT

19

community in regard to their newfound ability to marry?

20

Let me ask you another question first. Strike

21

that.

22

Were you able to determine in your surveys did

23

you analyze the reasons that same-sex couples or LGBT

24

people wanted to marry?

25

A Yes. So, again, the Pew Research did a survey of LGBT

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and asked them the same questions that they had asked on

2

another survey that they did of all adults in the United

3

States about why people want to get married. And there was

4

a high degree of consistency in what both LGBT people and

5

the general population said were the important factors in

6

wanting to marry. The three most important were love,

7

companionship and making a lifetime commitment.

8

The one area where there actually was some

9

difference was that LGBT people were more likely to say

10

that legal rights and benefits were an important reason to

11

marry than the general population was.

12

Q And based on your research were you able to develop a

13

theory for the difference where people wanted benefits?

14

A I think the simple explanation is it’s a group that

15

historically has not been able to marry so it could simply

16

be that they’re more aware because of not having and simply

17

because of media coverage around marriage cases that they

18

would potentially simply be more aware than the general

19

population of the rights and benefits associated with

20

marriage.

21

Q Okay. Now, let’s get back -- in states in where there

22

was a ban on same-sex marriage and then that ban was lifted

23

what was the reaction of the LGBT community to their

24

newfound ability to marry?

25

A Well, The Williams Institute conducted several

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analyses to look at the proportion of same-sex couples who

2

were married and there was a fair degree of consistency

3

across some of the early states that within a year of

4

marriage being legal for same-sex couples that -- about 30

5

percent of same-sex couples got married in the first year.

6

In two states, Connecticut and New Hampshire, we

7

have three years worth of data. In Connecticut, it’s more

8

than half of same-sex couples appear to be married. In New

9

Hampshire, it’s about 37 percent of couples. And after six

10

years of marriage in Massachusetts it’s nearly seven out of

11

ten same-sex couples are legally married now.

12

Q Let’s talk more specifically about the State of Utah.

13

Is there anything, to your knowledge, of any interest that

14

occurred back in December in regard to the ban on same-sex

15

marriage in the State of Utah?

16

A Yes. Utah is an interesting case because the window of

17

when same-sex couples were allowed to get married was very

18

short, only a little over two weeks. But I believe there

19

were more 1300 same-sex couples who were married in Utah in

20

that time which would -- when you compare that to the

21

census bureau data would imply that a third. So a similar

22

proportion that got married after a year in some of the

23

other states that a third of same-sex couples were married

24

just in those two weeks.

25

Q So just in 17 days following the court’s decision,

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before a stay was implemented a third of all those same-sex

2

couples in that state married?

3

A Correct.

4

Q Okay. Now, can you tell us, Dr. Gates, in your many

5

studies and your review of the research in this area, are

6

there any economic advantages when a same-sex couple can

7

legally marry?

8

MS. BRYA: Your Honor, I would renew my objection

9

as to Dr. Gates’ testimony with respect to economics. In

10

addition, I’d like to raise an additional objection and

11

that’s as to relevance. I don’t think any economics goes to

12

whether or not the state has a rational basis for its

13

marriage amendment.

14

THE COURT: As to your second I’ll deal with it.

15

Let’s get the first one out of the way.

16

Ask him a leading question so that I know what

17

you’re looking for. I still don’t know what you’re looking

18

for.

19

Go on.

20

BY MS. NESSEL:

21

Q Were you able to determine when you analyzed the data,

22

Dr. Gates, were you able to determine that there were

23

economic advantages for same-sex couples and their family

24

members when the couple was allowed to marry versus when

25

they were not permitted to marry?

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A Well --

2

THE COURT: Wait. The answer is what? Were you

3

able to do so?

4

THE WITNESS: Yes. But --

5

THE COURT: Go on, tell me.

6

THE WITNESS: I mean, if by economic advantages

7

you mean things like, for instance, access to health

8

insurance. There’s evidence that married couples are more

9

likely to have health insurance than non-married couples.

10

THE COURT: But -- you’re not going to get into

11

economics in terms of the family dynamics of economics or

12

anything.

13

THE WITNESS: No.

14

THE COURT: Okay. I will allow him to testify as

15

long as it’s limited to that.

16

And as to relevancy I will take your objection

17

under advisement because I have some doubts as to its

18

relevancy but since he’s here today I’ll allow him to

19

testify. But I certainly -- I do have some doubts -- I’m

20

not sure how much weight, if any, or if I’m going to even

21

consider it, but since he’s here we might as well listen to

22

him.

23

MS. BRYA: Thank you, your Honor.

24

BY MS. NESSEL:

25

Q So, Dr. Gates, in terms of economic advantages for

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same-sex couples and their family when they’re permitted to

2

legally marry what were your findings?

3

A So in general, both married individuals and children

4

with married parents are more likely to have health

5

insurance. So, for instance, when you compare health

6

insurance of married couples to same-sex couples, same-sex

7

couples and their children tend to report being less likely

8

to have health insurance.

9

Marriage can come with a range of differences in

10

tax policy and how you’re treated for taxes and those can

11

often be benefits associated, you know, better treatment

12

for married couples.

13

And, also there’s general evidence that married

14

individuals tend to do better in terms of earnings and

15

income when you compare them to unmarried individuals.

16

Q Okay. Now, Dr. Gates, as a result of having looked

17

into all the different areas that you discussed today were

18

you able to form any conclusions in regard to the LGBT

19

community in regards specifically to the areas of same-sex

20

marriage and adoption for LGBT couples?

21

A Yes. So this summarizing what I’ve said here that

22

there are a significant number of LGBT people in the United

23

States and in the State of Michigan. There are an

24

increasing number who are willing to identify both as same-

25

sex couples and as LGBT individuals. More same-sex couples

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appear to be forming. Same-sex couples, many same-sex

2

couples have children, and a large portion say that -- of

3

LGBT people say they wish to have children. There are many

4

same-sex couples who are married and want to marry

5

including in places where that’s prohibited.

6

More children in same-sex couples are adopted

7

when barriers to adoption for same-sex couples are lower.

8

There are numerous economic advantages to being

9

married and that potentially would apply to same-sex

10

couples and their families.

11

MS. NESSEL: I have nothing further.

12

THE COURT: You may cross-examine.

13

MS. BRYA: Thank you, your Honor.

14

CROSS-EXAMINATION

15

BY MS. BRYA:

16

Q Good morning, Dr. Gates.

17

A Good morning.

18

Q How are you today?

19

A Good.

20

Q Good.

21

There are some challenges to trying to convince

22

people who draft surveys to include questions regarding

23

sexual orientation and gender identity; correct?

24

A Correct.

25

Q And there are some challenges in trying to analyze the

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results from those surveys because of the limited data

2

that’s available; correct?

3

A Yes, when data is limited obviously.

4

Q In working with small sample sizes is challenging;

5

correct?

6

A Yes.

7

Q One of the reasons that working with small sample

8

sizes is challenging is because the smaller the sample size

9

the harder it gets with any confidence level to say that

10

there are genuine differences across groups because the

11

margins of error are larger; correct?

12

A Yeah, that means you need to observe bigger

13

differences in the groups to claim statistical

14

significance, yes.

15

Q You don’t have any research on the duration of same-

16

sex relationships in Michigan; correct?

17

A In Michigan, no.

18

Q You aren’t aware of any studies that show what

19

percentage of same-sex couples that are raising children

20

under the age of 18 were children born from prior

21

heterosexual relations; correct?

22

A There are very few surveys that you could identify

23

that explicitly, correct.

24

Q And you’ve never analyzed any data regarding the

25

outcomes of children of same-sex couples based on census

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data; correct?

2

A No, I’ve not done child outcomes, no.

3

Q Previously you testified you discussed the percentage

4

of same-sex couples who decided to marry after marriage was

5

legalized in the states where they lived; correct?

6

A Correct.

7

Q There was no data on how long these marriages lasted;

8

correct?

9

A That’s correct.

10

Q And there’s no data on whether these same-sex couples

11

were previously married; correct?

12

A It’s available because individuals usually have to

13

report if they’ve had a divorce on the marriage licence but

14

I’ve not actually seen an analysis of that, no.

15

Q So there is no analysis that you’re aware of.

16

A Not that I’m aware of.

17

Q You also testified on Direct Examination about the

18

percentage of women considering adoption; is that correct?

19

A That’s correct.

20

Q And the study you analyzed is from the National Survey

21

of Family Growth; is that correct?

22

A That’s correct.

23

Q And it asked women to identify themselves as

24

heterosexual, lesbian, gay or bisexual; correct?

25

A That’s correct.

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Q And one question that was asked was whether or not the

2

respondent would consider adopting a child; correct?

3

A That’s correct.

4

Q And another question asked whether or not the

5

respondent would consider fostering a child; correct?

6

A I actually am not sure about that. I don’t know.

7

Q So you indicated previously that -- one of the

8

questions asked whether or not the respondent would

9

consider adopting a child; correct?

10

A That’s correct.

11

Q But the survey itself does not give a definition of

12

what it means to adopt a child; correct?

13

A The survey asks a long series of questions about

14

adoption. I don’t actually know the exact order and how

15

those are discussed in the survey but there are many

16

questions in the survey about adoption, but I’m actually

17

not sure what kind of information the surveyor might

18

provide to explain that.

19

MS. BRYA: Your Honor, may I approach the witness?

20

THE COURT: Of course.

21

BY MS. BRYA:

22

Q Do you recall, Dr. Gates, taking a deposition on

23

January 21st, 2014?

24

A Yes.

25

Q And you were under oath when you were answering

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questions during your deposition?

2

A Yes.

3

So, yes, I said that “I’m not aware of.”

4

MS. NESSEL: I’m wondering if we can get a

5

reference to the page number that counsel is referring to?

6

THE COURT: Sure.

7

MS. BRYA: Sure, I was just going to do that.

8

It’s page 113, and it’s line 16.

9

BY MS. BRYA:

10

Q Does that refresh your recollection, Dr. Gates?

11

A Yes, I think it’s what -- it’s consistent with what I

12

just said which is I’m not sure -- I’m not aware that they

13

provided a definition.

14

Q Thank you.

15

You also concluded on your Direct Examination

16

that same-sex couples are more likely to adopt than

17

heterosexual couples; correct?

18

A That’s correct.

19

Q Have you ever done any research to determine why this

20

may be the case?

21

A No.

22

Q Is it possible that heterosexual women would be less

23

likely to adopt than lesbian women because heterosexual

24

women could have a biological child of their own?

25

MS. NESSEL: Your Honor, I’m going to object to

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the speculation.

2

THE COURT: Sustained. He hasn’t done any research

3

unless you want his own personal opinion.

4

MS. BRYA: I’ll withdraw the question.

5

THE COURT: Okay.

6

BY MS. BRYA:

7

Q You discussed on Direct Examination some of the

8

conclusions that you drew from the Pew Research, can you

9

tell me what that research was about again?

10

A Yes. So they conducted a survey of -- a population

11

base survey of LGBT adults in America and they not

12

exclusively but compared many of the -- they asked similar

13

questions to that LGBT group as they asked in other

14

population surveys that they’ve done.

15

Q And from that research you’ve concluded that just over

16

half of the respondents either had a child or would like to

17

have a child at some point in their lives; correct?

18

A Of LGBT respondents, yes.

19

Q On that survey there wasn’t any definition of what the

20

phrase “had a child” means; correct?

21

A As far as I understand, yes -- yes, there wasn’t a

22

definition.

23

Q And there was no definition of the phrase “have

24

children”; correct?

25

A Correct.

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Q So there was no way to identify whether a child of the

2

respondent was a biological child or a foster child for

3

example; correct?

4

A Correct.

5

Q And there was no way to identify if the child was an

6

adoptive child; correct?

7

A That’s correct.

8

Q And there was no way to know whether a respondent who

9

indicated that they wanted to have children wanted a foster

10

child, adoptive child, or biological child; correct?

11

A That’s correct.

12

Q I want to talk to you for a few minutes about the U.S.

13

Census data and I guess when I’m referring to the census

14

data I’m referring to the U.S. Census data. That’s the

15

census data that you derived your conclusions in this case;

16

correct?

17

A Yes. Those data are from both the Decennial Census and

18

another survey that the census does called The American

19

Community Survey.

20

Q Thank you. When you’re reviewing the data from the

21

U.S. Census Bureau you don’t actually review the census

22

forms collected by the Census Bureau; correct?

23

A Well, in the American Community Survey you do review a

24

sample of individual respondent forms, but --

25

Q But with the census data --

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A The Decennial Census, no, you’re not reviewing the

2

forms, no.

3

Q And one assumption that must be made when reviewing

4

the U.S. Census forms is that the person that’s filling out

5

the form is doing so accurately; correct?

6

A That’s correct, yes.

7

Q And you agree that some people when they fill out the

8

census forms make unintentional errors when filling out the

9

forms.

10

A That does occur, yes.

11

Q And the quality of data from the U.S. Census Bureau

12

depends on the responses that are provided on the census

13

forms; correct?

14

A Yes, although the Census Bureau does a variety of

15

procedures to try to make sure that what goes out is as of

16

highest quality as they can. So they try to actually

17

correct for some of the potential problems.

18

Q That’s known as data cleaning or data cleansing?

19

A Correct.

20

Q When completing the census form the Census Bureau asks

21

that the householder complete the form when it arrives at

22

their home; is that correct?

23

A Correct.

24

Q And an example of a householder is someone who perhaps

25

has the mortgage on the home or the rent is in their name;

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correct?

2

A Those are the instructions. In theory it could be

3

whoever the household chooses, but, yes the instructions

4

say typically it should be the person in whom the house is

5

rented or owned, whose name is rented or owned.

6

Q And the Census Bureau asks for the relationship the

7

householder and the other individuals in the household;

8

correct?

9

A Correct.

10

Q And one question on the form asks for the gender of

11

each person in the household; correct?

12

A Correct.

13

Q And another question asks for the relationship between

14

the householder and each individual member of the

15

household; correct?

16

A That’s correct.

17

Q And for the possible responses that someone could

18

provide they could choose from categories including husband

19

or wife, unmarried partner, housemaid or roommate, those

20

are examples; correct?

21

A Those are examples of options, yes.

22

Q And I believe you testified to this on Direct

23

Examination since 1990, the Bureau has included the phrase

24

“unmarried partner” as one of the categories that the

25

householder could choose in identifying his or her

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relationship with someone else in the household; correct?

2

A Yes, in 1990, it was first time they separately put

3

unmarried partner as a separate category.

4

Q If a person completing the census form indicates that

5

he or she is one gender and indicates that another adult of

6

the same gender in their household is their husband or wife

7

or unmarried partner then the Census Bureau codes them all

8

as unmarried partners; correct?

9

A Currently that is their procedure, yes.

10

Q And you assumed -- I’m sorry. Strike that.

11

There is no way for the Census Bureau to identify

12

a same-sex couple if one is not the householder; correct?

13

A Correct.

14

Q So, for example, if there is a male householder

15

completing the census form and he indicates that there are

16

two adult females in his household that are roommates, his

17

roommates there’s no way for the Census Bureau to know what

18

relationship those two adult females have; correct?

19

A That’s correct.

20

Q And likewise if a single man lives only with his

21

children and completes the census form there’s no way to

22

know whether or not that single man is in a same-sex

23

relationship; correct?

24

A That’s right.

25

Q And the same thing would apply for a single female

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living with her children; correct?

2

A That’s right.

3

Q And the Census Bureau doesn’t know the sexual

4

orientation of the individuals that the Bureau classifies

5

as same-sex couples; correct?

6

A That’s right, they don’t ask about sexual orientation.

7

Q If we’re talking about the 1990 census data, if the

8

householder referred to someone of the same-sex as their

9

husband or wife the Census Bureau automatically assumed

10

that the householder made an error when they checked the

11

box regarding what their sex was; correct?

12

A Yes. So they assumed that was likely an out of the sex

13

married couple who inadvertently checked the wrong sex box

14

for one of the -- for the spouse or the partner.

15

Q And so the Census Bureau actually changed the sex of

16

the husband and wife and listed the couple as an opposite

17

sex married partner --

18

A That’s correct.

19

Q Married couple; correct.

20

A That’s correct.

21

Q And then for this 2000 census data the Bureau decided

22

that if someone -- if the householder reported that he or

23

she was the husband or wife of someone else in the home and

24

indicated that that person had the same gender as the

25

householder the Bureau reported that was an unmarried

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partner --

2

A That’s right. So instead of changing the sex to make

3

them an opposite sex married couple they changed the

4

household relationship and took this what appeared to be a

5

same-sex couple that were husband or wife and made them an

6

unmarried partner.

7

Q And by doing that by the Bureau classifying those

8

people as a same-sex couple that could have been incorrect;

9

right?

10

A They introduced a bigger measurement challenge into

11

the data, yes.

12

Q So, yes, it could have been incorrect.

13

A It could have been incorrect, sure.

14

Q So based on the Bureau’s actions any opposite sex

15

couple including a married couple could have been mis-

16

classified as a same-sex couple; correct?

17

A If they mis-coded the sex they would then now be

18

classified -- if an opposite sex married couple -- well,

19

actually either married or unmarried partner, but if an

20

opposite sex married couple mis-coded the sex and appeared

21

to be a same-sex couple they would now be counted amongst

22

the same-sex couples, yes.

23

Q And the Bureau’s classification of some opposite sex

24

couples as same-sex couples could have a large affect on

25

the number of same-sex couples that exists; correct?

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A Yes. So if there’s error obviously then it’s possible

2

that some of the same-sex -- what’s being reported to be

3

same-sex couples are actually mis-classified different sex

4

particularly married couples.

5

Q Okay. And it could have a large affect --

6

A And it would inflate the figures, yes.

7

Q And even a small error could become a large portion of

8

same-sex couples because they’re not a large group to begin

9

with; correct?

10

A Yes. So because there’s so many different sex married

11

couples even if a very few make an error if that -- if all

12

those errors get classified as same-sex and the group of

13

same-sex couples is relatively small, yes, it could

14

comprise a fairly large portion of same-sex couples.

15

Q And after the 2000 Census the Census Bureau looked at

16

the name, the first name on the census form and tried to

17

determine whether this person was a male or a female based

18

on the percentage of the population that said this name was

19

more closely associated with either males or females.

20

A Yes. That analysis actually occurred after the 2010

21

Census but they analyzed both 2000 and 2010 data and looked

22

at the first names to assess what they thought might be the

23

accuracy of the sex of the couple.

24

Q And then the Bureau went ahead and changed the

25

response to either male or female based on whether or not

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there was a high probability of that name being more

2

closely associated with male or female; correct?

3

A Right. So in their analyses they estimated what

4

portion of those that were reported as same-sex that they

5

thought might in fact look to be different sex couples;

6

yes.

7

Q The Census Bureau then re-issued tabulations for the

8

2000 and 2010 Census as a result of this; correct?

9

A Yes, they issued new what they referred to as

10

preferred estimates for same-sex couples.

11

Q And I understand that’s what you rely on for purposes

12

of your --

13

A And those are the figures -- when I reported on

14

Decennial figures, yes, those are the numbers I used.

15

Q Some of your analysis and the conclusions that you

16

draw focus on same-sex couples who raise children; correct?

17

A That’s right.

18

Q On the census form the householder must classify his

19

or her relationship with children under 18 in the

20

household; correct?

21

A Correct.

22

Q And of the options that the household can choose they

23

can choose biological child, adopted child, foster child or

24

step child; correct?

25

A Those are amongst the options, yes.

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Q And when you refer to a same-sex couple raising a

2

child in your testimony or your conclusions by the term

3

“raising” you mean that there’s a householder and an

4

unmarried partner in the home where there are children

5

under 18; correct?

6

A That’s correct.

7

Q There’s no specific question on the census form asking

8

whether or not the householder is raising a child; correct?

9

A There’s no question -- I guess I’m not sure what

10

you’re asking me.

11

Q The census form doesn’t use the term “raising a

12

child,” they don’t --

13

A Oh, correct, yes. They do not use that term, no.

14

Q And you’re assuming that when a householder completes

15

the census form indicating that he or she has a spouse or

16

an unmarried partner and that there are children under 18

17

in that home that they’re actually raising those children;

18

correct?

19

A Yeah, I mean I think -- yes, that’s an implied

20

assumption, yes.

21

Q And there is no way to determine whether an adoptive

22

child living in the home is a blood relative to the

23

householder; correct?

24

A No, the householder identified the child as adopted --

25

as their adopted child because they’re asked how that child

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is related to you. So the householder would be -- I think

2

you’re assuming that when the householder says that child

3

is adopted that they’ve adopted that child, it’s my adopted

4

child because -- it’s how is that child related to? Through

5

adoption.

6

Q But, for example, you would have no idea if the

7

householder adopted a grandson or a granddaughter; correct?

8

A Oh, you actually would not know that. Although they

9

could refer to the child as a grandchild as well in your

10

example. So you wouldn’t know whether they would call the

11

child adopted or a grandchild.

12

Q And there’s no way from the census form to determine

13

whether a child in the household was produced by some

14

artificial reproductive means; correct?

15

A No, there’s no way to determine that.

16

Q And there’s no way to know whether the child was

17

produced by a surrogate; correct?

18

A Correct.

19

Q You testified on Direct Examination regarding the

20

American Community Survey data and that was from 2011; is

21

that correct?

22

A Yes, I did some analyses of 2012 as well but yes.

23

Q And that was with respect to same-sex couples raising

24

children; correct?

25

A Yes.

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Q And when you use the term same-sex couples with

2

respect to that survey you’re including people that could

3

be classified as gay, lesbian, bisexual or trans gender;

4

correct?

5

A Well, we don’t know their sexual orientation or their

6

gender identity so I’m including couples who identified a

7

same-sex adult in the household as their husband and wife

8

or unmarried partner.

9

Q But they could be any of those -- they could be any of

10

those classifications, correct, gay --

11

A They could be any of those classifications.

12

Q And you stated that the American Community Survey

13

doesn’t ask about the sexual orientation of the respondent;

14

correct?

15

A That is correct.

16

Q Thank you.

17

You testified for a few moments on Direct

18

Examination with respect to second parent adoption;

19

correct?

20

A Only to the extent that I looked at the differences in

21

states’ laws around second parent adoption, yes.

22

Q Sure. And isn’t it true that in states that allow

23

second parent adoption two unmarried heterosexual people

24

can adopt?

25

A Correct, yes.

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Q So in second parent adoption states both unmarried,

2

same-sex people and unmarried heterosexual people can

3

adopt; correct?

4

A As a second parent, yes.

5

Q I believe you testified on Direct Examination that you

6

work for The Williams Institute at UCLA College of Law;

7

correct?

8

A That’s right.

9

Q And you testified that The Williams Institute focuses

10

on individual sexual orientation; correct?

11

A Studying sexual orientation and gender identity

12

issues, yes.

13

Q The Williams Institute is paying for your

14

participation in this case; correct?

15

A They’re supporting my travel expenses, yes, and time.

16

Q And by that you mean that they are paying you your

17

normal salary to be here and to testify?

18

A Correct.

19

Q And for your participating as an expert on behalf on

20

behalf of the plaintiffs?

21

A That’s correct.

22

Q You refer to your book, “The Gay And Lesbian Atlas” on

23

Direct Examination. That book was funded by The Williams

24

Institute; correct?

25

A No, actually that was funded by The Urban Institute

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which was where I was employed at the time.

2

Q You donated money to the campaign in the State of

3

Washington to allow same-sex couples to marry; correct?

4

A I did.

5

Q And you donated money to the campaign in California to

6

allow same-sex couples to marry; correct?

7

A I did.

8

Q And you donated money to the Human Rights Campaign;

9

correct?

10

A In the long distant past, but, yes.

11

Q And the Human Rights Campaign is a lesbian, gay,

12

bisexual trans gender advocacy organization?

13

A It is.

14

Q And you’ve written amicus briefs in other lawsuits

15

regarding same-sex marriage in other states; correct?

16

A I have.

17

Q And writing amicus briefs is part of your employment

18

duties at The Williams Institute; correct?

19

A It is.

20

Q And in all the cases in which you wrote amicus briefs

21

you wrote them in favor of allowing same-sex marriage;

22

correct?

23

A Yes.

24

Q You believe that people in the State of Michigan

25

should -- I’m sorry. Same-sex individuals in the State of

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Michigan should be allowed to marry?

2

A I do.

3

MS. BRYA: If I could just have a moment, your

4

Honor?

5

THE COURT: Absolutely.

6

MS. BRYA: Your Honor, I have no further questions

7

for the witness.

8

THE COURT: Any Redirect?

9

MS. NESSEL: Yes, your Honor.

10

REDIRECT EXAMINATION

11

BY MS. NESSEL:

12

Q Doctor Gates, I asked you when we were looking at some

13

of the slides earlier about your confidence in the figures

14

that you were presenting here in court today.

15

Now, you’ve identified that there are at times

16

some errors that result in terms of compiling data from say

17

the U.S. Census; correct?

18

A Yes.

19

Q Now, what effort is made if you can tell us more

20

specifically and I know you went into this a little bit on

21

Cross but if you could tell us what efforts are made in

22

order to minimize the errors that are sometimes made when

23

people are filling out these forms?

24

A Well, again, I think -- I’ve been one of the leading

25

scholars in trying to first convince the Census Bureau that

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there were issues and problems related with the same-sex

2

couple data and a proponent of ways to improve the quality

3

of those data. So as a result of those efforts as we said

4

after the 2010 Census the Bureau did a very sizeable

5

analysis using first names to try to come up with a better

6

way to estimate the number of same-sex couples. When you’re

7

using the American Community Survey data I’ve developed

8

ways in which individuals using those data can restrict the

9

sample to minimize the problems. Some of those are quite

10

technical but nonetheless there are methodologies that

11

we’ve developed that are designed to try to improve the

12

quality of the data.

13

Q Well, who’s involved in these efforts in order to

14

ensure that this data that’s collected is actually accurate

15

or is an accurate reflection of the communities that you’re

16

attempting to survey?

17

A I mean, that’s the purpose of the Census Bureau. So

18

they take that very seriously. And, again, you know, I

19

serve on this scientific advisory committee, the Census

20

Bureau will often come to the full committee with a group

21

to have them review the procedures that they’re doing to

22

try to enhance the overall quality of the data including

23

the quality of same-sex couple data.

24

Q Okay. And, of course, we keep taking about the Census

25

Bureau, but who makes up the Census Bureau? I mean, is that

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an arm of the federal government?

2

A

Yes, it’s an arm of the federal government. It’s

3

within the Department of Commerce. I think it’s the biggest

4

statistical agency in the federal government.

5

Q Okay. And does the United States Government rely upon

6

the data that is compiled as a result of the efforts made

7

by the Census Bureau?

8

A Yes, the Census Bureau data -- I mean the Census

9

Bureau -- the census is the only constitutionally required

10

data collection effort in the United States and it’s

11

collected in order to apportion Congress every ten years.

12

Q And do you know if the State of Michigan relies on

13

data that is collected from the U.S. Census Bureau?

14

A Yes. All the states that -- apportionment is

15

ultimately a state level function and all of them use the

16

census data to assist in that way.

17

Q And with all the mechanisms that have been put in

18

place to ensure the accuracy of the data that you’ve

19

indicated is there any reason that you have to believe that

20

the numbers that you’ve presented to the Court today are

21

flawed or inaccurate?

22

A I have no reason to believe they’re overtly flawed. If

23

anything, I would argue that they tend to be conservative

24

in the sense that we try to make efforts to as much as we

25

can improve the quality of the data and in doing that, you

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know, we’ve actually reduced the number of same-sex

2

couples. And in that sense I would argue they tend to be

3

conservative estimates.

4

Q So it’s your belief that, if anything, the numbers

5

you’ve presented today regarding the number of same-sex

6

couples, the number of LGBT people that exist in the United

7

States and in the State of Michigan is, if anything, too

8

low.

9

A If anything I -- in my research I attempt to present

10

data that I believe presents the conservative estimates,

11

yes.

12

MS. NESSEL: Thank you, your Honor.

13

THE COURT: Okay. Doctor Gates, you may step down.

14

Thank you.

15

It’s my understanding that the plaintiffs next

16

witness is Dr. Cott and that’s scheduled for tomorrow; is

17

that correct?

18

MR. MOGILL: That’s right.

19

THE COURT: Any other matters for today?

20

MS. STANYAR: There’s a couple of things that we

21

can tie up.

22

THE COURT: Okay. Let me just talk to those that

23

have come to watch the trial and those that were not here

24

in the days past why we have such a lull.

25

There was a witness that the plaintiff was going

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to call, a Dr. Chauncey. He was unexpectedly unavailable

2

but they have offered his testimony through his report. His

3

report is an exhibit in this case. I have not had a chance

4

to read it. But for those who are interested I will ask and

5

cause it to be placed on our public internet site so

6

everyone can read it. It’s Exhibit 51. It’s now a public

7

document since it’s been placed into evidence. Since those

8

who are here to learn about the case, to listen to the

9

case, whatever interest you have I think it would be only

10

fair to -- and that’s why we’re quitting early today to

11

allow you to read it. So it will be on our -- Exhibit 51.

12

I’m not sure how they put it on there. I haven’t looked at

13

the public website in probably five years, but I know

14

there’s spot there and we will put it on there and you can

15

read it.

16

We have a few other matters we’ll talk about in

17

one second.

18

Tomorrow it’s my understanding that Dr. Cott will

19

be coming in. We will start at 9:00 o’clock, and we’re

20

going to adjourn around 2:00 o’clock. Tomorrow we probably

21

won’t take a regular lunch hour. We’ll take our normal

22

morning break. We’ll take -- well, we’ll need breaks for

23

both the court reporters and the attorneys. We’ll finish

24

around 2:00 o’clock, give or take on both sides. We’re in

25

no hurry. I don’t want to rush anybody but I think people

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who come to watch should have an idea what we have on our

2

minds.

3

With that said, Ms. Stanyar you said there’s some

4

other miscellaneous matters?

5

MS. STANYAR: Your comment kind is in keeping with

6

my understanding --

7

THE COURT: You’ve got to get to the microphone

8

because we have the news media upstairs.

9

MS. STANYAR: The Attorney General had an ongoing

10

-- and despite the stipulation regarding Dr. Chauncey, the

11

Attorney General had an ongoing relevancy objection that

12

they renewed here and it was my understanding that the

13

Court had already resolved that. There was an in limine to

14

try to keep Dr. Chauncey --

15

THE COURT: I didn’t really rule on the relevancy.

16

I ruled the fact -- I haven’t read his report. I haven’t

17

listened to his testimony. It would be hard for me to

18

determine relevancy. But I indicated that I would allow him

19

to testify. And since -- they would have renewed their

20

motion for relevancy as he testified I’m sure. So it’s not

21

waived. It would be hard for them to make until I’ve read

22

the report and so forth. So they have not waived -- I’m not

23

making them waive that.

24

MS. STANYAR: At whatever point you want us to

25

argue that we’ll be ready to argue.

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THE COURT: I have not read it so I can’t even

2

begin to tell you what he has to say. In fact, I just

3

looked just now realized that he’s a historian. I didn’t

4

even know anything about him.

5

MS. STANYAR: But we have briefed this and --

6

THE COURT: I understand. I’ve read the brief and

7

as I say -- okay, anything else?

8

MR. MOGILL: The State defendants also have an

9

objection as to relevancy objection to the admission of the

10

State of Michigan Department of Civil Rights report on LGBT

11

inclusion. They have stipulated to authenticity and

12

foundation. I’m prepared to address that at this point.

13

THE COURT: Again, I have it right here. I have

14

not read it. I haven’t looked at it. I think it’s Exhibit

15

50 if I’m not mistaken. It’s part of Exhibit 50 which is

16

the stipulation regarding --

17

MR. MOGILL: Leslee Fritz.

18

THE COURT: Who was just going to authenticate it.

19

MR. MOGILL: Yes.

20

THE COURT: As soon as I get a chance to read it

21

I’m hoping -- since I have a lot of time this afternoon. In

22

fact, I have Dr. Chauncey’s report right here and I was

23

going to come back and this one next so I will be prepared

24

to argue it.

25

MR. MOGILL: As Ms. Stanyar said we’re prepared to

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argue when the Court wants to argue.

2

THE COURT: I haven’t looked at it.

3

MR. MOGILL: Thank you, very much.

4

THE COURT: Then it’s my understanding that after

5

Dr. Cott some time in the late afternoon tomorrow we will

6

recess for the weekend. It’s my understanding that the

7

defendants in this matter intend to call -- the Oakland

8

County Clerk, Lisa Brown, will have the opportunity to go

9

first, put their case in. Then after the State will put in

10

their case and their first witness is Doctor --

11

MS. HEYSE: Sherif Girgis, your Honor.

12

THE COURT: Okay. So we’re on schedule.

13

If there’s nothing else, we will stand in recess.

14

(Proceedings concluded, 10:30 a.m.)

15

-- -- --

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CERTIFICATE

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3

I, JOAN L. MORGAN, Official Court Reporter for the

4

United States District Court for the Eastern District of

5

Michigan, appointed pursuant to the provisions of Title 28,

6

United States Code, Section 753, do hereby certify that the

7

foregoing proceedings were had in the within entitled and

8

number cause of the date hereinbefore set forth, and I do

9

hereby certify that the foregoing transcript has been

10

prepared by me or under my direction.

11

12

S:/ JOAN L. MORGAN, CSR

13

Official Court Reporter

14

Detroit, Michigan 48226

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February 28th, 2014

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, ET. AL.,

Plaintiffs,

-v-

Case Number: 12-10285

RICHARD SNYDER, ET. AL.,

Defendants. ______________________________/

VOLUME 5 - AM SESSION

BENCH TRIAL BEFORE THE HONORABLE BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE 100 U. S. Courthouse & Federal Building
231 West Lafayette Boulevard West Detroit, Michigan 48226 MONDAY, MARCH 3RD 2014

APPEARANCES: For the Plaintiffs:

Leslie Cooper, Esq. Carole M. Stanyar, Esq. Dana M. Nessel, Esq. Kenneth Mogill, Esq. Robert Sedler, Esq. Vicki L. Henry, Esq.

For the Defendants: Richard Snyder, Bill Schuette,

Tonya C. Jeter, Esq. Kristin M. Heyse, Esq. Joseph E. Potchen, Esq.

Lisa Brown

Beth M. Rivers, Esq. Andrea J. Johnson, Esq. Michael L. Pitt, Esq.

To Obtain Certified Transcript, Contact: JOAN L. MORGAN, OFFICIAL COURT REPORTER
734 812-2672

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2 I N D E X

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BENCH TRIAL - VOLUME 5, PART A MONDAY, MARCH 3RD, 2014
I N D E X
LISA BROWN DEFENSE CASE WITNESS LISA BROWN Direct Examination by Mr. Pitt Cross-Examination by Ms. Nessel

3
PAGE: 6
30

E X H I B I T S Defendant Lisa Brown’s Exhibit A

RECEIVED: 27

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MONDAY, MARCH 3, 2014

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Detroit, Michigan

2

Monday, March 3rd, 2014

3

(At or about 9:00 a.m.)

4

-- --- --

5

THE COURT: You may be seated.

6

Good morning.

7

MS. HEYSE: Good morning.

8

THE COURT: Are we waiting for some folks? Is

9

everybody ready? Any preliminary matters?

10

MS. STANYAR: I think we can proceed.

11

MS. BRYA: Mr. Pitt is here.

12

THE COURT: Very well. As soon as he gets here.

13

Anything preliminarily?

14

MS. STANYAR: I don’t think so.

15

THE COURT: Mr. Pitt, are you ready?

16

My understanding is the first witness going to be

17

called today is Oakland County Clerk, Lisa Brown, is that

18

everybody’s understanding?

19

Call your witness.

20

MR. PITT: Good morning, your Honor.

21

We call Lisa Brown, defendant.

22

MS. BRYA: Your Honor, if I may, for purposes of

23

the record I just wanted to make it clear based on Ms.

24

Brown’s filing that although she’s a defendant in this

25

matter, she’s an adverse witness to State defendants.

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THE COURT: I think that’s correct. She may be

2

treated as an adverse witness for the State.

3

At the time the State made a motion and the Court

4

denied that motion. I think it’s only fair that she be

5

treated by the State as an adverse witness.

6

MS. BRYA: Thank you, your Honor.

7

Do you solemnly swear or affirm to tell the truth

8

in the matter now pending before this Court?

9

THE WITNESS: Please have a seat.

10

Give us your full name and spell your last name.

11

THE WITNESS: Lisa Brown, B-r-o-w-n.

12

MR. PITT: Good morning, your Honor, everybody.

13

LISA BROWN,

14

BEING DULY SWORN, TESTIFIED AS FOLLOWS:

15

DIRECT EXAMINATION

16

BY MR. PITT:

17

Q Please state your name and position, please.

18

A Lisa Brown. I’m the Oakland County Clerk and Registrar

19

of Deeds.

20

Q And when did you become the Oakland County Clerk and

21

Registrar of Deeds?

22

A January 1st, 2013.

23

Q And that’s an elected position?

24

A Yes.

25

Q Who did you succeed?

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A Bill Bullard, Jr.

2

Q And what is your educational background and what

3

licenses do you hold?

4

A I received my bachelor’s degree in psychology from

5

Michigan State University, and my J.D. from the Detroit

6

College of Law.

7

I am a member of the State Bar of Michigan.

8

Q What other public offices have you held?

9

A I was a state representative for the 39th District. I

10

represented the communities of Commerce Township, West

11

Bloomfield, and Wolverine Lake for four years.

12

Q And what are your overall duties as Oakland County

13

Clerk and Registrar of Deeds?

14

A Well, there’s a lot that goes into that job. I am the

15

custodian of all vital records for Oakland County, all

16

court records in the circuit court. All documents related

17

to real estate. I’m in charge of keeping an index, a

18

searchable index data base, for real estate documents. I’m

19

in charge of the elections for Oakland County. I am the

20

Clerk for the Board of Commissioners meetings, the Board of

21

Canvassers, the Election Commission, the Jury Board. I’m

22

also a member of the Election Commission for Oakland

23

County.

24

Q And how many employees does your office oversee?

25

A Currently we have a 112.

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Q And do you also have marriage duties? Do you sometimes

2

marry people?

3

A Oh, yes, that’s I’ll say a benefit of being a County

4

Clerk is that you can officiate marriages which I’ve done

5

between 15 and 20 since I’ve been in office.

6

Q Okay. So could you describe for Judge Friedman what

7

your duties are as they relate to marriage applications and

8

licenses?

9

A So either a couple or one of the individuals, both are

10

not required to show up in person, but they fill out --

11

they give us information and an affidavit is filled out and

12

signed. Then they get the marriage license. There’s

13

normally a three-day waiting period to get the license.

14

That can be waived for a fee. So they would get that from

15

us and then once they’ve been married and it’s filled out

16

by the officiant, two of the copies -- we usually give

17

three, two are returned to our office. One we keep and then

18

one send onto the State, their Registrar.

19

Q Let’s discuss what are the qualifications that a

20

person has to demonstrate in order to apply for a marriage

21

license and to get lawfully married in Michigan.

22

A Okay.

23

Q All right. Does one of the applicants have to be an

24

Oakland County resident?

25

A Well, if they’re residents of the State of Michigan

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one needs to live in Oakland County if they want to get

2

their license from Oakland County. We can give a license to

3

people from out of state if they’re going to get married in

4

Oakland County.

5

Q I think you said in your testimony -- I just want you

6

to elaborate on that, one of the couple has to appear in

7

person.

8

Q Yes. We ask for documentation. Every Clerk does it a

9

little differently, but we ask for a driver’s license for

10

proof of residency because they have to live in Oakland

11

County. And either a birth certificate or a passport. If

12

only one person is there then they can bring copies of the

13

other person’s documentation.

14

They need to be 18 years of age. We check that.

15

If they are under 18, if they’re 16 or 17 they need to have

16

parental consent. It needs to be written consent, and at

17

least one parent. They need to be there in person as well.

18

Q So a qualification is you have to be 18 or older.

19

A Yes, unless you have parental consent if you’re 16 or

20

17.

21

Q All right. The minimum age for marriage in Michigan is

22

16 with parental consent?

23

A Yes.

24

Q And the form of parental consent would be in what type

25

of form do you need?

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A Written documentation, but they also would have to be

2

in person at our counter.

3

Q Does the Oakland County Clerk do any verification of

4

the information that the applicant submits on the

5

affidavit?

6

A Well, we check, like I said, the driver’s license. We

7

get a lot of the information from the birth certificates

8

because we need parents’ names and parents’ birth places.

9

So we get a lot of that from that information.

10

Q On the reverse side of the application is there a

11

printed copy of the Michigan laws that apply to marriage?

12

A On the back side of the affidavit there are the

13

statutes listed -- spelled out and written that say the

14

different qualifications, who you can and cannot marry. You

15

know, what degree of relations, you know, familial

16

relations and things like that.

17

Q And what is the law in Michigan in terms of who you

18

can marry in terms of relationships?

19

A Well, you can’t marry your first cousin. You can’t

20

marry your sibling, your parent, things like that.

21

Q Okay. Are blood tests required under Michigan law

22

currently?

23

A They are no longer required. We give information on

24

HIV and things like that. We’re required to give

25

educational materials, but they’re not required to have

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blood tests.

2

Q And you mentioned a three-day waiting period that can

3

be waived?

4

A Yes.

5

Q All right. And do the clerks at your counter have the

6

authority to decide whether a waiver should be granted?

7

A Yes.

8

Q They don’t need to check with the Clerk, they can make

9

their own judgment?

10

A Correct.

11

Q In your office are waivers pretty freely granted?

12

A Yes. You know, I think so. I mean, in Oakland County

13

we have -- you can fill out the application on line. So

14

that gets the process started. So if somebody fills it in

15

and -- you know, by the time they come into the office, you

16

know, it’s been three days but it’s not conveniently

17

located for everyone to come to the office so, you know,

18

people come in on their lunch hour and things like that. I

19

mean, they just -- there’s not enumerated reasons in the

20

statute as to, you know, what is a good reason. So it’s up

21

to the staff.

22

Q And once the application has been filled out properly

23

and it’s been approved then a marriage license will be

24

issued?

25

A Yes.

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MONDAY, MARCH 3, 2014

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Q And what is the amount of time that the couple must

2

actually get married after the issuance of a license?

3

A They have -- the marriage license itself is good for

4

33 days. So they need to get married within that time

5

period; otherwise, they would have to apply for another one

6

and pay for another one.

7

Q After the couple is married, do they return the

8

executed marriage license to your office?

9

A Usually it’s the officiants who would send it in or

10

bring it in.

11

Q Okay. And what happens when the executed marriage

12

license is returned to your office?

13

A Well, it’s sealed and we keep a copy as I said, and

14

then one copy is sent to the State Registrar for their

15

records.

16

Q Okay.

17

A And once it’s filed with us then the couple can come

18

and get a certified copy of their marriage license which is

19

what you would need if you wanted to change your name or

20

something like that. You have to have a certified copy to

21

go to the Secretary of State’s office or Social Security,

22

those sorts of places to be able to make name changes and

23

things like that.

24

Q When you were elected and installed as the Oakland

25

County Clerk and Registrar Deeds did you have to provide an

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oath of office?

2

A I took an oath of office, yes.

3

Q And what is the oath of office?

4

A My oath of office is to uphold the Michigan and U.S.

5

Constitutions.

6

Q All right. And how many county clerks are there in

7

Michigan?

8

A Eighty-three.

9

Q And of the 83 Clerks, how many of them are attorneys,

10

to your knowledge?

11

A I believe just two of us, myself and the Washtenaw

12

County Clerk.

13

Q And what is his name?

14

A Larry Kestenbaum.

15

Q Is there a County Clerk Association?

16

A Yes, we have the Michigan Association of County

17

Clerks.

18

Q And what is the function of the Michigan Association

19

of County Clerks?

20

A Well, we have a variety of committees. You know, you

21

can choose to be active or not, but I’ve been active in it

22

since being a Clerk sitting on a couple committees.

23

We have quarterly conferences where we receive

24

education and we share ideas with other Clerks. It’s good

25

networking and that sort of thing.

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1

Q Which committees do you sit on?

2

A I sit on the Legislative Committee which meets on a

3

very regular basis, basically a monthly basis for the most

4

part. And then I sit on a couple others that -- I just

5

joined this past year because I didn’t know to sign up for

6

them my first year, the Vital Records Committee, the

7

Standardization Committee. I think there’s a couple others

8

but we haven’t met yet.

9

And then we’re also divided into districts. The

10

State is divided into five different districts. So we have

11

district meetings. So it’s not the entire association all

12

meeting at once. Your sort of region meets.

13

In District Five, we’ve met a couple months ago

14

and meeting again I think in two weeks.

15

Q Okay. Do you report to the Governor or the Attorney

16

General for the State of Michigan or any other state

17

official?

18

A No, I don’t report to any state official.

19

Q And why is that?

20

A I’m an elected county person, and the people that I

21

answer to would be the 1.2 million people of Oakland

22

County.

23

Q Have you ever received any direction from the Governor

24

of the Attorney General?

25

A In regards to this --

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Q Other than this marriage license issue that’s part of

2

this case has the Governor or the AG ever told you how to

3

do your job?

4

A No.

5

Q Okay. If you have legal questions about the

6

performance of your duties how do you get them answered?

7

A Well, I’ll do research. One of my deputies is an

8

attorney as well so we usually just, you know, we’ll pull

9

up a statute and read it. You know, do our own research for

10

the most part.

11

Q You try to answer your own questions?

12

A Yes, I mean again we have -- you know, there’s other

13

county clerks that I can always reach out to if there’s a

14

question of procedure or, you know, how do you do this,

15

that sort of a thing. That happens frequently where county

16

clerks -- it’s like on the list serve, you know, just kind

17

of email everybody, how do you this, or how much do you

18

charge for that.

19

Q So you can also inquire of your colleagues how they

20

handle certain things?

21

A Yes.

22

Q Do you have any discretion in issuing marriage

23

licenses?

24

A No, and we just have to follow the law.

25

Q Right. I’d like to pose some hypothetical situations

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for you to help illustrate this testimony about no

2

discretion.

3

A Okay.

4

Q All right. I want you to assume a couple appears

5

before you and it’s clear to you that because of their age

6

or because of obvious physical conditions they are unable

7

to procreate children, is this a legal reason for you to

8

deny them a marriage license? And if your answer is no

9

explain your answer.

10

Q Well, my answer is no. That’s not something that is

11

required by the state or -- you know, they have to be old

12

enough. There’s not a maximum of what an age would be that

13

you can’t get married.

14

Q Is the ability to procreate children a legal

15

requirement to get married in Michigan?

16

A No.

17

Q Can you deny a marriage license to a couple who say

18

they do not intend to have children?

19

A No.

20

Q Is the willingness -- let me put this question this

21

way: Assume you fear that one prospectus spouse may cause

22

physical harm to the other prospectus spouse’s children if

23

they were to marry, is that a legal reason for you to deny

24

a marriage license?

25

A I don’t have the authority to deny them that license,

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no.

2

Q Is the ability or willingness to provide a safe and

3

nurturing home environment for children a legal requirement

4

in order to obtain a Michigan marriage license?

5

A No.

6

Q If the prospectus spouses tell you they have no

7

intention of ever living together as husband and wife is

8

that a legal reason for you to deny them a marriage

9

license?

10

A No.

11

Q In evaluating your oath have you determined as Clerk

12

that there is a conflict between the Michigan Constitution

13

and the United States Constitution?

14

A Yes.

15

MS. BRYA: Your Honor, I’m going to object to that

16

as --

17

THE COURT: Sustained.

18

BY MR. PITT:

19

Q You are aware of the ban on same-sex marriage in

20

Michigan, Article I, Section 25?

21

A Yes.

22

Q And do you understand that the constitutional

23

provision as it stands right now is the law in the State of

24

Michigan?

25

A Yes.

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Q And you’ve been abiding by that in the performance of

2

your duties?

3

A Yes.

4

Q If that ban did not exist what would your position be

5

in term of issuance of marriage licenses to same-sex

6

couples?

7

A If that ban did not exist I would be issuing marriage

8

licenses to same-sex couples who meet all the other legal

9

requirements.

10

Q And why is that?

11

A Well, looking at the Windsor decision, knowing that my

12

oath is to uphold the constitution and looking at the

13

Supreme Court’s interpretation of equal protection of the

14

law and then, you know, how -- I mean, we’ve had other

15

courts now who have interpreted that case as well and

16

supported that, but to uphold equal protection and the

17

constitution I would feel that it’s my duty to issue those

18

licenses.

19

Q What is the role of the State Registrar in the

20

marriage license process?

21

A The State Registrar approves the forms that we use so

22

the affidavit and the marriage license itself and also as I

23

said they receive a copy once it’s been officiated, they

24

receive a copy of the marriage license. So they keep a copy

25

as well.

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Q Who is the current State Registrar?

2

A His name is Glen Copeland.

3

Q And this is a state official; correct?

4

A He’s an appointed -- he’s appointed to his position.

5

Q But in the State Government --

6

A In the State, in Lansing, yes.

7

Q Okay.

8

A Department of Community Health.

9

Q What steps have you, the State Registrar and other

10

county clerks taken to get ready for the issuance of

11

marriage licenses to same-sex couples if that should occur?

12

MS. BRYA: Your Honor, I’m going to object as to

13

-- I believe it calls for speculation as to what the other

14

clerks have done. If she wants to testify what she’s done

15

--

16

THE COURT: Or what she has been part of doing.

17

MR. PITT: I’ll lay a foundation if the Court

18

wishes.

19

THE COURT: As long as she testifies as to what

20

she’s done or what has been caused to be done by these

21

other officials.

22

BY MR. PITT:

23

Q Go ahead.

24

A Well -- I’m trying to remember when, but months ago I

25

called the State Registrar. I called Glen to see what he

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was doing to prepare if -- depending upon the outcome of

2

this case, and he was unaware of this case at that time. So

3

I brought him up-to-date on it. And said, you know, if the

4

judge rules in favor of the plaintiffs we’re going to need,

5

you know, new forms. So we talked about it, and he said,

6

you know, go ahead and draft something --

7

MS. BRYA: Your Honor, I’m going to object as to

8

hearsay.

9

BY MR. PITT:

10

Q Did you draft some proposed new forms?

11

A I did, yes. I sent them and there were some revisions

12

that were requested. Then -- as I said there’s a committee

13

of the Michigan Association of County Clerks, a Vital

14

Records Committee, and their task is to suggest changes to

15

any vital records that may happen whether from a change of

16

law or something that the clerks, you know, want some

17

language change for whatever reason.

18

So the clerks received my draft, that committee

19

received my draft. I received after they had met a copy of

20

their draft which was different than mine.

21

I had looked at what other states who had

22

marriage equality, what their forms looked like, and

23

basically used what we still have but just made some

24

modifications that sort of mirrored what Maine, Vermont,

25

states like that, what theirs looked like.

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Q I assume you’re just making them gender neutrals as

2

best as you can.

3

A Yes. That’s what mine look like. They’re gender

4

neutral. Instead of having a male and female column, it’s

5

Applicant A, Applicant B, Spouse A, Spouse B. There’s check

6

boxes for bride, groom, spouse so if that somebody, you

7

know, wants to identify themselves in that manner they may.

8

So -- the Vital Records Committee, their draft

9

still has male and female on there. So that’s how ours

10

differ -- a big way that ours differ.

11

And so I’ve been in contact with Mr. Copeland

12

throughout this process and when I asked if mine was okay

13

he -- once he received it with the modifications that he

14

had suggested he said it was under review. Then --

15

MS. BRYA: Your Honor, I’m going to object again

16

as to what he said.

17

BY MR. PITT:

18

Q What is your understanding as to the current status of

19

the revised forms?

20

A That they’re waiting for approval from the Attorney

21

General.

22

Q Okay. So that’s where they stand right now.

23

A That is my understanding.

24

Q Okay. Good enough.

25

Now, the Amended Complaint that was filed and, of

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course, you’re a defendant, asked the Court to enjoin Bill

2

Schuette in his official capacity as Attorney General, and

3

Richard Snyder in his official capacity as Governor of the

4

State of Michigan, and Defendant Bill Bullard in his

5

official capacity as Oakland County Clerk from attempting

6

to block same-sex couples from securing a marriage license

7

in any county of Michigan. That’s what the prayer for

8

relief is in the Complaint, asking for an injunction

9

against you as the successor for Mr. Bullard.

10

Does the Court have to enjoin you from issuing or

11

blocking you from issuing same-sex marriage licenses if

12

there’s a final order that permits you to do that?

13

A No.

14

Q Okay. So you’re going to be in complete compliance

15

with whatever the final order is in this matter.

16

A Absolutely.

17

Q And you’re not going to require a court to order you

18

to do anything in those regards.

19

A No.

20

Q You’re going to do it willingly and expeditiously.

21

A Yes.

22

Q If there is a final order that strikes down the ban on

23

same-sex marriages in Michigan will the county clerks have

24

any discretion in the issuance of marriage licenses to

25

same-sex couples?

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A No.

2

Q What if a clerk, a county clerk, is religiously

3

opposed to issuing a same-sex marriage license after the

4

final order has been entered, what would you expect --

5

MS. BRYA: Your Honor, I’m going to object as to

6

speculation.

7

THE COURT: She can’t speak as to other clerks.

8

BY MR. PITT:

9

Q Fulfilling your duties as County Clerk would you let

10

your personal opinions on any legal matter interfere with

11

your official duties?

12

A No, it would be whatever the judge says.

13

Q Okay. If there ever was a situation where the law

14

required you to violate some personal principle or

15

religious doctrine of your own, what would you do?

16

A My oath is to uphold the Constitution of the State and

17

the country. What my personal feelings are irrelevant.

18

Q You would put them aside.

19

A Yes. There’s actually -- it’s a crime for a county

20

clerk to not give a marriage license to someone who is

21

qualified. It’s a misdemeanor.

22

Q There’s a statute that makes it a misdemeanor?

23

A Yes.

24

Q Do you have any concerns as Oakland County Clerk that

25

if there is a final order in this matter that strikes down

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the ban on same-sex marriages in Michigan that there is

2

going to be a delay in implementation?

3

A In regards to -- from the clerks or --

4

Q From the clerks or from the State.

5

A I won’t have a problem. I would like to have approval

6

of the new licenses that I feel are being held up. But, you

7

know, I would make do with what I have. It’s not the

8

perfect paper to use if marriage equality is decided in

9

Michigan.

10

Q So if the new forms aren’t available you’re going to

11

do what?

12

A I will use what -- I have to use the State approved

13

forms so that what would be is what we currently use which

14

has, you know, male and female, you know, one column for

15

male, and one column -- and I would just alter them in a

16

way to make them appropriate to the couple before me.

17

Q Okay. Do you have a well-founded belief that the

18

Attorney General of the State of Michigan may attempt to

19

prevent or delay implementation of --

20

MS. BRYA: Objection, your Honor. I don’t think --

21

THE COURT: Sustained.

22

BY MR. PITT:

23

Q Has there been any communication from the Attorney

24

General already regarding what he expects the county clerks

25

to do under certain circumstances?

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A Yes.

2

MS. BRYA: I’m going to object, again, your Honor.

3

THE COURT: She can testify to that if there’s

4

such communication.

5

MR. PITT: It’s happened. It’s a fact.

6

A Yes. On October 16th, when we had the hearing on the

7

motions for summary judgment, my office -- I’m looking at

8

the email, every county clerk and -- the emails that I

9

received from other county clerks, all received emails,

10

faxes, and phone calls and then eventually also a snail

11

mail letter, I don’t even know what to call it any more, a

12

letter through the post, from the Attorney General. The

13

email was at 2:47 p.m. on October 16th and I know we were

14

still in the courtroom. I don’t even know if you had spoken

15

at that point.

16

Can I read what it says? Is that okay?

17

MS. BRYA: I’m going to object, your Honor. It

18

calls for hearsay.

19

THE COURT: Well, if it was done by a party to

20

this action, but in order for her to read from it you have

21

to move for its admission because she can’t read from a

22

document that is not in evidence.

23

THE WITNESS: I have a copy of it here if you want

24

--

25

THE COURT: It’s up to Mr. Pitt.

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BY MR. PITT:

2

Q If you would just summarize what were the

3

instructions?

4

A Well, basically it said --

5

MS. BRYA: Your Honor, again, I’m going to object

6

as to a characterization of what the letter says and

7

relevance.

8

MR. PITT: You’re free to look at it if you wish.

9

THE COURT: You can just admit it and then she can

10

read from it. Then there’s no speculation.

11

MR. PITT: It’s only one sentence long.

12

THE COURT: Any objection to it being admitted?

13

MR. PITT: No, none.

14

MS. BRYA: Your Honor, we have an objection to it

15

being admitted. We were never advised that this particular

16

letter was going to be used --

17

THE COURT: I agree in terms of that, but as I say

18

because of the fact that it comes from a party to this

19

action in the normal course of business it would be

20

admissible for lots of reasons. Rather than getting into --

21

and spending a lot of time worrying about it we’ll just

22

admit as an Exhibit and Clerk Brown can read from it.

23

MS. BRYA: Can we please have a look at it?

24

THE COURT: Yes, and we’ll make copies for

25

everybody since it wasn’t anticipated. Show it to all the

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parties. At a break, we’ll make sure everybody gets a copy

2

Just take a second, take a look at it.

3

(Short Pause.)

4

Have you had an opportunity to go through it,

5

counsel?

6

MS. BRYA: Yes, I did.

7

Thank you.

8

THE COURT: You don’t object to it as to

9

authenticity or anything of those kinds, just relevancy and

10

-- relevancy really; is that correct?

11

MS. BRYA: That’s correct, your Honor. We weren’t

12

provided a copy of it with prior either.

13

THE COURT: Because of the fact that it’s limited

14

and probably didn’t realize had to give a copy of it to

15

everybody, just read it. I will admit it as Clerk Court

16

Lisa Brown’s Exhibit A.

17

Mr. Pitt, at a break if you could give it to Dan

18

he’ll make copies for everybody and we’ll go from there.

19

(Defendant Lisa Brown’s Exhibit A received into

20

evidence.)

21

BY MR. PITT:

22

Q So the email is dated October 16tyh, 2013, at 2:47

23

p.m.; correct?

24

A Yes.

25

Q And the email is directed to whom?

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A Well, it looks like to all of the county clerks in

2

Michigan.

3

Q So there’s quite a list like 83 email addresses on

4

here.

5

A Yes.

6

Q What does the body of the email say?

7

A “Status of Michigan law defining marriage.”

8

Sorry, that was the subject.

9

So the email reads,

10

“To All County Clerks,

11

“Even if the U. S. District Court were to decide

12

that Michigan’s Marriage Amendment is unconstitutional in

13

Deboer v Snyder same-sex marriage licenses should not be

14

issued. Please see the attached guidance from Attorney

15

General Bill Schuette’s Office.”

16

Q Okay. And the attachment was a letter dated what?

17

A October 16th, 2013.

18

Q Okay. And that’s a two-page letter?

19

A Yes.

20

Q And tell me if I summarize it correctly that you’re

21

saying that if the Court strikes down the ban there’s going

22

to be a request for a stay?

23

A Yeah, that’s eventually in there, the “stay” part. I

24

mean the parts that are in bold and underlined. Like on the

25

first page it’s underlined and in bold, “You are forbidden

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by Michigan law from issuing a marriage license to same-sex

2

couples during the pendency of the appeal.”

3

The word “stay” isn’t in that sentence.

4

The second page another phrase that is underlined

5

and in bold print says, “Since adverse decision is not

6

subject to enforcement while the decision is stayed and

7

subject to appeal.”

8

So on the second page you get “stay” in there,

9

but on the first page in the bold part -- you know, if

10

you’re just glancing at it, I mean, it’s a two-page letter.

11

I don’t know how many people stop and read the whole thing

12

in this day and age. But I think especially if you don’t

13

look at the attachment and you just read just the body of

14

the email, you know, you open your email and that’s the

15

part that comes up that says that same-sex marriage

16

licenses should not be issued basically -- regardless of,

17

you know, what the judge says.

18

Q All right. If a final order in this matter is issued

19

striking down the Michigan Constitutional Ban as

20

unconstitutional and you get conflicting instructions from

21

AG Schuette and those instructions conflict with what the

22

order of the Court is, which are you going to follow?

23

A Well, my job is it follow what the judge says, not

24

what the AG says.

25

Q So if the AG gives you instructions that you feel are

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in conflict with what the Court has ordered, you’re going

2

to follow the Court; is that correct?

3

A Yes.

4

Q And you do not report to AG Schuette.

5

A I do not.

6

Q And you in your official capacity as Clerk you have to

7

decide whether or not his instructions are consistent with

8

your sense of duty and your oath?

9

A Yes.

10

MR. PITT: That’s all I have.

11

Thank you.

12

THE COURT: It’s an unusual situation.

13

Do you have some questions?

14

MS. NESSEL: I do, your Honor.

15

THE COURT: Okay. I’ll allow you to go first then

16

because the State will have the last word.

17

MS. BRYA: Thank you, your Honor.

18

CROSS-EXAMINATION

19

BY MS. NESSEL:

20

Q Good morning, Ms. Brown.

21

A Good morning.

22

Q Ms. Brown, as you’ve explained during your testimony

23

one of the many requirements of your job as Oakland County

24

Clerk is to grant or deny marriage licenses to the many

25

couples who come to your office to apply for one; correct?

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A Yes.

2

Q And you realize, of course, that when a couple applies

3

for a marriage license and when you choose to deny that

4

couple a marriage license that, in effect, you are denying

5

them dozens, and dozens of state and federal rights; you

6

understand that.

7

MS. BRYA: Objection, your Honor. Leading.

8

THE COURT: Sustained.

9

BY MS. NESSEL:

10

Q Now, is it your understanding that our clients in this

11

case, April Deboer and Jayne Rowse, have indicated they

12

wish to obtain a marriage license sanctioned by the State

13

of Michigan from you in Oakland County?

14

A Yes.

15

Q Okay. And do you know where Ms. Deboer and Ms. Rowse

16

reside with their three children?

17

A According to the news and the Court pleadings Hazel

18

Park.

19

Q Okay. And where is Hazel Park located?

20

A The southeast part of Oakland County.

21

Q So inside your jurisdiction, inside Oakland County;

22

correct?

23

A Yes.

24

Q And so if I understand your testimony correctly when a

25

couple resides in the State of Michigan they have to go to

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the Clerk in the county in which they reside to obtain a

2

marriage license; correct?

3

A Yes, if they -- if the couple -- you know, if one

4

lives in -- if they live in separate counties they can

5

choose which clerk they go to.

6

Q Okay. But in this instance because these individuals

7

live together in the same location they could really only

8

go to you in order to obtain a marriage license.

9

A Yes.

10

MS. BRYA: Objection, your Honor. Counsel is

11

leading the witness.

12

THE COURT: I know it’s a very unusual situation

13

here. I’ll give you some leeway, but try not to lead the

14

witness. You have a witness that really probably --

15

MS. NESSEL: I understand, your Honor.

16

BY MS. NESSEL:

17

Q All right. So now in -- going over the contents of

18

what you indicated was required for an application for a

19

marriage license, you indicated that you can actually apply

20

on line; is that correct?

21

A You can give the information on line. You still need

22

to come into the office.

23

Q Okay. And what you’re seeing on the screen is that

24

actually from a website that involves your county, Oakland

25

County?

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A Yes.

2

Q Is that the application that you spoke of earlier that

3

you fill out on line?

4

A Yeah, that would be the page you go to. We need to

5

tweak it a little but -- just because some of the fields

6

aren’t marked as required, but they are required once you

7

get here so we’re trying to work that part out.

8

You see like father’s place of birth, and there’s

9

not an asterisk there, but if you know it you’re suppose to

10

provide that information. So we’re working on tweaking that

11

on our website.

12

Q Okay. But irrespective of that still as you indicated

13

the applicants are required to be over the age of 18;

14

correct?

15

A Yes, unless they have parental consent if they’re 16

16

or 17.

17

Q All right. The other requirements in terms of names,

18

address, city, place of birth, date of birth, all of those

19

requirements are reflected accurately on that?

20

A Yes.

21

Q Okay. Now, what you have listed in terms of the

22

applicants, in terms of their identification you have male

23

and female listed; correct?

24

A Yes.

25

Q So as you stated then there is a requirement that

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these individuals who apply that the two applicants be of

2

opposite gender; correct?

3

A Yes.

4

Q Now, where on that form, if anywhere, is there a

5

requirement for a criminal history check?

6

A There isn’t one.

7

Q Where on that form, if anywhere, is there a

8

requirement for a submission of medical records for the

9

applicants?

10

A That’s nothing that’s required. So there isn’t that.

11

Q So there’s no requirement of any kind then that a male

12

submit say proof of his sperm count to indicate that he’s

13

actually able --

14

MS. BRYA: Objection, your Honor. I think this is

15

irrelevant to the issues before the Court.

16

THE COURT: Sustained. Plus, it’s already been

17

covered.

18

MS. NESSEL: All right, all right.

19

BY MS. NESSEL:

20

Q So as you indicated then no requirement that these

21

individuals have the ability to procreate.

22

A Correct, that’s not the requirement.

23

Q Okay. And no requirement then that the applicants even

24

intend to have children either biologically, or adoptive,

25

by some other measure.

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A Correct.

2

Q Okay. And do you make any inquires of -- any kind at

3

all about the couple’s parenting ability in making a

4

determination as to whether or not to grant a marriage

5

license?

6

A No.

7

Q What if one or both of the applicants has a conviction

8

for child abuse, do you take that into account?

9

A We wouldn’t know that and if we did, no, we wouldn’t

10

be able to do anything. As long at they’re, you know, not

11

related, if they’re not siblings, etc. and over 18, and

12

they live in Oakland County, etc.

13

Q What if you have -- what if there’s absolute proof

14

that one or both of the applicants has actually sexually

15

assaulted a child, they’re a convicted pedophile would that

16

play a factor in your determination as to whether or not

17

they can marry?

18

A No.

19

Q Okay. What if one or both of the applicants of the

20

couple prior to marrying already has children and those

21

children have flunked out of school altogether, can you

22

deny them a marriage license based on that?

23

A No.

24

Q All right. What if the children of that couple who’s

25

applying, what if they went on to become substance abusers

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or convicted felons would that play a role in your decision

2

as to whether or not you should grant them a marriage

3

license?

4

A No.

5

Q Okay. So then if I understand this correctly even if

6

this couple has actually raised children who have had

7

terrible outcomes and yet these people are still capable of

8

biologically procreating yet again do you still grant the

9

marriage license?

10

A Yes.

11

Q Okay. What if one or both of the applicants has

12

outstanding felony warrants for non-support violations

13

because they have tens of thousands of dollars in

14

arrearages for failure to pay child support --

15

MS. BRYA: I’m going to object, your Honor. This

16

is cumulative. I think we’ve gone over.

17

THE COURT: Sustained.

18

MS. BRYA: Thank you.

19

BY MS. NESSEL:

20

Q Let me ask separately, do you make any inquiry at all

21

about the stability of the couple?

22

A No.

23

Q All right. Now, is there a place where you ask if the

24

applicant has been married before?

25

A Yes. I don’t know if it’s -- yes, it says times

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married under -- I can’t see it. Place of birth, I think.

2

So, yes.

3

Q What’s the reason for that?

4

A Well, if they’ve been married before then we want to

5

make sure that that marriage has been dissolved before they

6

enter into marriage.

7

Q So they’re not committing bigamy.

8

A Yes.

9

Q Which is a crime in the State of Michigan?

10

A Yes.

11

Q Okay. Do you make any inquiries though to find out if

12

the relationship between the applicant is monogamous?

13

A No.

14

Q Okay. Any other inquiries at all into any factors

15

relevant to or predictive of the couples’ stability who

16

would like to get married?

17

A No.

18

Q Okay. All right. And -- forgive me, I don’t remember

19

if you testified to this, do you make any inquiries as to

20

whether or not the couple intend to engage in the act of

21

sexual intercourse, is that something that you inquire

22

about?

23

MS. BRYA: Objection, your Honor.

24

THE COURT: Sustained.

25

BY MS. NESSEL:

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Q All right. So fair to say then you don’t know what, if

2

anything, the couple is going to do in terms of living

3

together; correct?

4

A Correct.

5

Q In terms of their sexual relationship with one

6

another.

7

MS. BRYA: Objection, your Honor.

8

THE COURT: Sustained.

9

BY MS. NESSEL:

10

Q Now, supposing our clients, April and Jayne, were to

11

come to your office, carrying valid Michigan drivers’

12

licenses indicating that they live in Hazel Park, and a 20-

13

dollar bill, 20 dollars is your fee for a marriage license;

14

correct?

15

A Of instate residents, yes.

16

Q Okay. Would they be eligible for a marriage license?

17

A Right now, no.

18

Q Okay. Well, Ms. Brown, are you aware that the State

19

defendants have already entered into a stipulation

20

regarding our clients’ parenting ability?

21

A I have not seen that, no.

22

MS. NESSEL: Your Honor, may I approach?

23

THE COURT: You can, but I’m not sure -- I think

24

we’re going to get an objection in a second.

25

MS. BRYA: Yes, your Honor.

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THE COURT: She’s getting ready to get up.

2

BY MS. NESSEL:

3

Q I show you what’s admitted as Plaintiffs’ Exhibit

4

Number 53. I direct you to paragraph 9. Will you tell me

5

what that states, please?

6

A “Deboer and Rowse are responsible and caring parents

7

who are providing a stable and loving home for their

8

children.”

9

Q Okay. So if -- in going to your office to apply for a

10

marriage license if Ms. Deboer and Ms. Rowse were to bring

11

that into you a stipulation entered into in federal court

12

wherein the Governor and the Attorney General have

13

stipulated that they are, in fact, good parents would that

14

affect your decision as to whether or not you could then

15

decide to grant them a marriage license?

16

A No, it’s irrelevant as to the requirements or what’s

17

needed to get a marriage license.

18

Q And if they signed an oath certified by an notary

19

public that they promise to have children one way or the

20

other, by adoption, in vitro, or by some other means as a

21

married couple would that change your mind as to whether or

22

not you would grant them a marriage license?

23

A No, there’s no requirement that you have children or

24

that you say you’re going to have children before you can

25

get married in Michigan.

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Q All right. So during your tenure as Oakland County

2

Clerk and in your investigation into the laws which govern

3

the granting of a marriage license have you ever used the

4

ability to procreate as a litmus test as to whether or not

5

you’re going to grant a couple a marriage license?

6

A No, I don’t think it would be allowed.

7

Q Okay. Have you ever for opposite sex couples, have you

8

ever used the potential stability of a couple in making

9

your determination as to whether or not you should grant a

10

marriage license?

11

A No.

12

Q Have you ever used or considered the parenting

13

abilities or the potential future outcome of children sired

14

or raised by a couple in determining whether you as County

15

Clerk grant a marriage license to a couple on behalf of the

16

State of Michigan?

17

A No.

18

Q So then, Ms. Brown, would you concede, in fact, that

19

the rationales listed by the State in defense of their

20

requirement that the parties to a marriage license be of

21

opposite gender that being the ability to procreate, the

22

future outcomes for the children the couple may have, or

23

the stability of the couples of that union that those play

24

no part whatsoever in a determination as to whether or not

25

a couple can receive a marriage license?

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A Right, they play no part. It’s not information we ask.

2

It’s not information I’m sure that we can’t -- that we

3

could even ask if we wanted to.

4

Q For opposite couples none of those factors apply at

5

all.

6

A Correct.

7

MS. BRYA: Your Honor, if I could just have a

8

moment, please?

9

THE COURT: Of course.

10

MS. BRYA: Thank you.

11

Your Honor, I have no questions for this witness.

12

THE COURT: Okay. Thank you.

13

You may step down. Thank you.

14

It’s my understanding that the State defendants

15

at this point will proceed with their case.

16

You may call your first witness, please.

17

MS. HEYSE: Thank you, your Honor.

18

We ask for just a brief recess to set up some

19

technology.

20

THE COURT: No problem. Absolutely.

21

We’ll take 15 minutes? Will that give you enough

22

time?

23

MS. HEYSE: Perfect.

24

THE COURT: We’ll take a 15-minute recess. We’ll

25

reconvene at about 10:05 or so.

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MONDAY, MARCH 3, 2014

1

(Court in recessed, 9:50 a.m.)

2

(End of Part A.)

3

-- --- --

4

CERTIFICATE

5

6

I, JOAN L. MORGAN, Official Court Reporter for the

7

United States District Court for the Eastern District of

8

Michigan, appointed pursuant to the provisions of Title 28,

9

United States Code, Section 753, do hereby certify that the

10

foregoing proceedings were had in the within entitled and

11

number cause of the date hereinbefore set forth, and I do

12

hereby certify that the foregoing transcript has been

13

prepared by me or under my direction.

14

15

S:/ JOAN L. MORGAN, CSR

16

Official Court Reporter

17

Detroit, Michigan 48226

18

19

20

21

22

23

24

25

March 3, 2014

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1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, ET. AL.,

Plaintiffs,

-v-

Case Number: 12-10285

RICHARD SNYDER, ET. AL.,

Defendants. ______________________________/

VOLUME 6 - AM SESSION

BENCH TRIAL BEFORE THE HONORABLE BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE 100 U. S. Courthouse & Federal Building
231 West Lafayette Boulevard West Detroit, Michigan 48226 TUESDAY, MARCH 4TH, 2014

APPEARANCES: For the Plaintiffs:
For the Defendants: Richard Snyder, Bill Schuette, Lisa Brown

Vickie L. Henry, Esq. Leslie Cooper, Esq. Carole M. Stanyar, Esq. Dana M. Nessel, Esq. Kenneth Mogill, Esq. Robert Sedler, Esq. Leslie Cooper, Esq.
Tonya C. Jeter, Esq. Kristin M. Heyse, Esq. Joseph E. Potchen, Esq.
Beth M. Rivers, Esq. Andrea J. Johnson, Esq. Michael L. Pitt, Esq.

To Obtain Certified Transcript, Contact: JOAN L. MORGAN, OFFICIAL COURT REPORTER
734 812-2672

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2

I N D E X

STATE DEFENDANTS’ CASE

Preliminary Matters WITNESS: MARK REGNERUS, Ph.D. Cross-Examination by Ms. Cooper

4 PAGE:
10

None.

E X H I B I T S

RECEIVED:

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1

Detroit, Michigan

2

Tuesday, March 4th, 2014

3

(At or about 9:00 a.m.)

4

-- --- --

5

THE COURT: You may be seated.

6

Just before our morning break, we’ll talk a

7

little bit about scheduling so we have some idea.

8

Doctor -- is he here?

9

MS. HEYSE: Plaintiffs have some preliminary

10

matters, your Honor.

11

What do you have?

12

MS. NESSEL: Good morning your Honor.

13

When we recessed yesterday I brought to the

14

Court’s attention the fact that Ms. Heyse had indicated to

15

me that she intended to present a power point presentation

16

for Joseph Price who is scheduled to be the witness after

17

Dr. Regnerus today.

18

THE COURT: Right.

19

MS. NESSEL: I had asked for the presentation as

20

quickly as possible. Despite the fact that we sent a couple

21

emails requesting it following court, I did not receive an

22

email with the presentation until like 10:28 last night.

23

The presentation involves many complex charts and

24

graphs that I’ve never seen before. And the content of this

25

just from my quick review of it, it appears to include some

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content that was never in Dr. Prices’ expert report. So I

2

am requesting of the Court one of a number of remedies:

3

Either that the Court strike the power point and not permit

4

that to be used or that Dr. Price instead of testifying

5

after Dr. Regnerus which I think everybody assumes will be

6

today that he not testify until tomorrow which would give

7

me an opportunity to review all this matter. Or in the

8

alternative give an extensive, a lengthy, lengthy recess

9

following Dr. Regnerus’ testimony so that I have an

10

opportunity to review all this because this is a lot of

11

material and I’ve never seen it before. Obviously at 10:30

12

at night, you know, I was going to bed.

13

THE COURT: Going to bed. This is an important

14

case.

15

MS. NESSEL: I know.

16

THE COURT: Wait a minute.

17

MS. NESSEL: I haven’t had an opportunity to --

18

THE COURT: Ten thirty, you’re suppose to take

19

your No-Doze.

20

MS. NESSEL: I know. If it was over the counter,

21

then, yes.

22

So those are my requests to the Court, your

23

Honor.

24

THE COURT: What does the State have to say?

25

MS. HEYSE: Good morning, your Honor.

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I’m happy to address this but before I do I just

2

want to take a brief moment.

3

Your Honor had asked me to introduce members of

4

our staff.

5

THE COURT: I did.

6

MS. HEYSE: They were able to come to court.

7

THE COURT: Please do.

8

MS. HEYSE: I do want to point out that one of our

9

newest Assistant Attorney General is Scott Shimkus who is

10

in the courtroom here today.

11

THE COURT: Nice to see you.

12

MS. HEYSE: He has been a tremendous help to the

13

team in preparing for the case so I did want to acknowledge

14

him.

15

THE COURT: Good to have you. We’re trying to get

16

everybody acknowledged.

17

MS. HEYSE: Thank you, so much for that

18

opportunity, your Honor.

19

And, again, I’m happy to address Ms. Nessel’s

20

requests. She is absolutely right that we were unable to

21

get her the power point until later in the evening

22

yesterday. I don’t dispute that. The fact of the matter is

23

that we left here, we went to meet with our witness who

24

came in from out of state, was able to go over the power

25

point with him, and finalize it so we could get them the

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final version.

2

Just to represent to your Honor, it certainly

3

wasn’t anything that was purposeful on our part. We got to

4

it as I represented yesterday, got it to her as soon as we

5

possibly could.

6

I would point out just a few things, your Honor,

7

with regard to this matter. It is demonstrative evidence.

8

Everything that is in that power point and I won’t dispute

9

the fact that there are quite a few slides. Everything that

10

is in that power point is either contained in Dr. Price’s

11

report or his article that is going to be admitted. Again,

12

it’s demonstrative so we’re not moving for admission, it’s

13

just something he’s going to be discussing during his

14

testimony.

15

I also point out for your Honor that, you know,

16

we’ve had similar experiences with plaintiffs in this

17

matter as well. We had some last minute changes from them

18

with regard to two power points that we just bring to the

19

Court’s attention because quite frankly these things just

20

happen in trial. So, you know, we would ask that we be

21

allowed to use the power point. We certainly don’t have any

22

objection if Ms. Nessel needs additional time to prepare.

23

We have no objection to that, your Honor, but we would ask

24

that we be allowed to present the power point.

25

THE COURT: Okay. I think -- demonstrative

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evidence is just that, it demonstrates or helps the witness

2

demonstrate to the Court in an easier fashion. We had a

3

policy that each side would exchange it as soon as they had

4

it. Each side in this case has gotten along, the civility

5

is great. I have no reason to believe that the State didn’t

6

get it to them -- to the plaintiffs as soon they could. So

7

what we’re going to do, we’ll proceed. It’s demonstrative,

8

it’s not anything else.

9

Ms. Nessel, if there comes a time when it becomes

10

necessary to have more time, we’ll certainly talk about. I

11

have no problems with that. But I think -- let’s see what

12

it’s all about. As I say, we’ve seen demonstrative evidence

13

before. And, again, it’s only to demonstrate and to help

14

the Court and those are here understand the testimony.

15

It is limited, however, of course, to the report.

16

If it exceeds the report then there would be I suspect an

17

objection indicating that -- not so much demonstrative

18

evidence but the testimony itself because the demonstrative

19

evidence is not evidence.

20

So we’ll proceed and take it one step at a time.

21

MS. NESSEL: May I just briefly, your Honor?

22

THE COURT: Yes.

23

MS. NESSEL: My only issue, your Honor, is that I

24

won’t know that until I see it presented since I haven’t

25

had an opportunity to review it. So that’s why I’m asking

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to have some kind of lengthier recess so that I can at

2

least review the slides to know whether they were in the

3

report or not. It’s very difficult as you can imagine the

4

second that it appears for me then to know, you know, was

5

it in the report --

6

THE COURT: But you know -- okay. I’m going to

7

give you some time. But you know, it’s in the report. It’s

8

not what’s on the screen that counts, it’s what the expert

9

testifies to. If he’s testifying to something to whether it

10

be on the screen or based upon his testimony, and it’s not

11

in his report then I would suspect that you’re going to

12

make an objection. You already know the report I’m sure

13

backwards and forwards. So you will be able to make that

14

objection. It has no bearing whatsoever to the

15

demonstrative evidence. It has to do with his sworn

16

testimony.

17

MS. NESSEL: I would only bring to the Court’s

18

attention, there’s some very complex charts and graphs with

19

many, many numbers so I have to be able to go through the

20

numbers to --

21

THE COURT: Let’s take it one at a time. Let’s

22

move on.

23

MS. NESSEL: All right.

24

THE COURT: We’ll see. We may get a break and it

25

may be right at the right time for lunch, and we may take a

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little longer lunch. Let’s take a look. We’re not going to

2

jam either side. I think each side throughout this whole

3

trial their intent wasn’t to do anything to the other side.

4

Let’s move on. Anything else?

5

MS. STANYAR: No, your Honor.

6

THE COURT: Okay. Where’s our witness?

7

We’re not going to re-swear you, you’re still

8

under oath.

9

Counsel, you may proceed.

10

MS. COOPER: Thank you.

11

THE COURT: I don’t know if the witness has met

12

you.

13

M A R K R E G N E R U S, PH.D.,

14

HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:

15

CROSS-EXAMINATION

16

BY MS. COOPER:

17

Q Leslie Cooper.

18

Good to see you live in person.

19

Good morning.

20

A Good morning.

21

Doctor Regnerus, you mentioned on Direct Exam

22

yesterday that you asked two of the plaintiffs’ expert

23

witnesses, Michael Rosenfeld and Gary Gates to serve as

24

consultants on your NFSS Study; is that right?

25

A Yes.

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Q And you consider Michael Rosenfeld to be well-regarded

2

professionally; is that right?

3

A Yes.

4

Q And you consider Gary Gates to be well-regarded in

5

lesbian and gay demography; correct?

6

A Yes.

7

Q Now, turning your opinions, it’s not your opinion, is

8

it, that children raised by same-sex parents necessarily

9

have poor outcomes; is that right?

10

A Would you restate that?

11

Q Sure. It’s not your opinion is it that children raised

12

by same-sex parents necessarily have poor outcomes; is that

13

right?

14

A Poorer outcomes.

15

Q Poorer outcomes.

16

A That is not my opinion.

17

Q And you agree that the social science of gay parenting

18

based on non-probability samples have taught us that it is

19

possible for children raised in same-sex households to

20

develop normally; is that right?

21

A Yes.

22

Q In fact, you wrote in your -- in one of your NFSS

23

articles that most of the respondents in your own NFSS

24

Study report ample success and largely avoid problematic

25

physical and emotional difficulties regardless of their

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parents’ experiences; is that right?

2

A It depends on the different outcomes. You know, some

3

outcomes that’s certainly true.

4

THE COURT: Speak a little bit slower.

5

BY MS. COOPER:

6

Q And you have written that,

7

“It’s possible that there may be genuinely be two

8

gold standards of family stability and context for children

9

flourishing, a stably couple heterosexual household and a

10

stably couple homosexual household but no population base

11

sample analyses have yet been able to consistently confirm

12

wide evidence of the latter”; is that right?

13

A Yes, presuming you’re directly quoting from --

14

Q Your report.

15

A The report, yes.

16

Q Okay. You have recognized that studies using non-

17

population base samples suggest that children in planned

18

gay, lesbian, bisexual families seem to fair comparatively

19

well; is that right?

20

A Could you repeat that once more?

21

Q Sure.

22

MS. HEYSE: Your Honor, I would ask that if we’re

23

going to have lengthy quotes that Dr. Regnerus be able to

24

see a copy of what she’s quoting from?

25

THE COURT: I think he has the report.

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MS. COOPER: This was from the study itself.

2

BY MS. COOPER:

3

Q Do you have a copy of your NFSS Study?

4

A From the study itself?

5

Q The study itself?

6

THE COURT: Do you remember what exhibit --

7

MS. HEYSE: Exhibit 6 from your original article.

8

THE COURT: Counsel, you can continue to ask him

9

questions, but just kind of refer him to the page.

10

BY MS. COOPER:

11

Q Looking at page 766, the conclusion section.

12

A Yes.

13

Q Bottom of the first paragraph, if you’ll read with me.

14

You reference that,

15

“While previous studies suggest that children in

16

planned GLB families seem to fare comparatively well”: is

17

that right?

18

A Yes.

19

Q Okay. Now you also believe that we should privilege

20

the collection of probability base data over other data; is

21

that right?

22

A Yes.

23

Q In your view, the hallmark of a rigorous study is a

24

large representative pool of participants drawn from a

25

population base random sample; is that right?

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A That’s correct.

2

Q But you recognize that this is not necessarily true

3

within the field of psychology; is that right?

4

A I know psychologists don’t privilege those kind of

5

samples in the way that sociologists or certainly

6

demographers do.

7

Q And your understanding is that most research in

8

psychology uses smaller non-representative samples; right?

9

A I wouldn’t speak for all of psychology, but there are

10

plenty that privilege smaller samples for sure.

11

Q Okay. You had your deposition taken in January; is

12

that right?

13

A Yes.

14

Q And you have a copy of your transcript there? I have

15

one for you.

16

If you turn with me to page 19. Line 19,

17

beginning there,

18

“Question: And is it true that most research in

19

psychology uses smaller non-representative samples?

20

“Answer: That is my understanding.”

21

Did I read that correctly?

22

A Yes.

23

Q Thank you. Now, yesterday on Direct testimony you

24

talked about your criticism of the research on gay parent

25

families that was discussed in a report by the American

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Psychological Association. Now that report was issued in

2

2005; is that correct?

3

A Right.

4

Q And you’re aware that research on children of same-sex

5

parents did not stop in 2005?

6

A Correct.

7

Q That there has been research conducted since then?

8

A Yes.

9

Q Now, yesterday you testified that it’s premature I

10

think is the word you used to allow same-sex marriage until

11

we have large scale population base longitudinal studies on

12

outcomes for children of same-sex couples; is that right?

13

A Yeah, and I think the reference -- I could be mistaken

14

but the reference is to premature to settle the signs

15

around this stuff.

16

Q Okay. You, yourself, did a large scale study of over

17

15,000 individuals in the NFSS; is that right?

18

A We screened 15,000. Interviewed fully just under

19

3,000.

20

Q You would call that a large scale study.

21

A Yes.

22

Q And after screening over 15,000 people you found only

23

two who were raised from birth in a same-sex parent family;

24

is that right?

25

A That’s correct.

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Q That sample wasn’t big enough to give you statistical

2

power to evaluate children raised from the beginning in

3

same-sex families; right?

4

A That is correct.

5

Q You need a bigger group to do that.

6

A Definitely.

7

Q How many people do you think you would need to survey,

8

to screen rather, to get a large enough group to study?

9

A It depends a little bit on the outcome that you’re

10

evaluating. If on average the outcomes at face value differ

11

markedly, for example, the sample -- in adults whose

12

mothers have same-sex relationship, mothers -- adult

13

children whose mothers had a same-sex relationship they

14

tend to report experiencing poverty or being on community

15

assistance at notably greater rates. It’s like 70 percent

16

or something compared to closer to 10 to 20 percent for

17

intact biological families. When you have a profound

18

difference one does not need lots of cases because there’s

19

already a notable difference in the effect. But when you’re

20

detecting smaller effects then you need a larger number of

21

cases.

22

So like my reference yesterday to the CNN poll

23

where if two candidates are running neck and neck you need

24

a larger sample size to distinguish whether there’s a

25

statistically significant difference between those two. But

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if one is being -- in the other 70 to 30 you don’t need

2

that many cases. But certainly more than two, certainly

3

more than -- ideally well over -- more than 50 or a 100.

4

Q Okay. So if they need more than 50 or 100 let’s say --

5

A Ideally. It depends on the outcome and how different

6

those outcomes are.

7

Q So by my math to get 50 if your 15,000 people yielded

8

only two to get 50 -- you can check my math -- you would

9

have to have 375,000 people screened?

10

A I don’t have to check your math, but it’s -- it’s a

11

lot more than 15,000 to screen which indicates that we’re

12

not only dealing with a small population among whom

13

stability was comparatively rare in that era, but we’re

14

also -- I mean, it calls for more data analysis. So this is

15

why people are interested in the census and what it has to

16

say on this, or the versions of the census, The American

17

Community Survey. But it raises an interest in new data

18

collection.

19

Q Because the census data doesn’t actually provide

20

information on child outcomes; right?

21

A Not many.

22

Q School progress is one.

23

A Right.

24

Q Okay. How much did it cost you to do the project

25

surveying or screening 15,000 people?

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A You’re saying how much did it cost?

2

Q How much did it cost to do that survey?

3

A I think total about $415,000.

4

Q So to screen -- your survey was not longitudinal,

5

right it was just one assessment.

6

A Yes.

7

Q So if it was -- you say 400 --

8

A Four hundred fifteen is my recollection.

9

Q So in order to screen say 375,000 people on multiple

10

assessments can you even estimate the cost of that? Is it

11

in the tens of millions of dollars to fund that?

12

A I can’t offhand estimate, but it’s not something that

13

the federal grant system can’t handle if it wishes to study

14

this.

15

Q Is it common for researches to get grants in the tens

16

and millions of dollars?

17

A Well, I know that the Ad Health Project is now on it

18

way four or five, that was in the eight figures I know in

19

terms of the grant. I mean, it’s unusual but it’s not

20

unheard of for those large federally funded grants.

21

Q And do you expect anyone would fund a tens of millions

22

of dollars study to assess whether children raised by same-

23

sex parents fair any differently than children raised by

24

heterosexual couples when the professional groups in the

25

fields of psychology, sociology and pediatrics have already

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said we have sufficient research to answer this question

2

and we know the answer?

3

A One of the things I think it ought to be added to is

4

either an existing or an upcoming large federal grant and

5

there’s a handful of them out there at any given time. I’m

6

not aware of what’s out there right now. It could be tacked

7

onto an existing children’s study. So it’s not -- for all I

8

know it could be in the works, but I’m unaware of it.

9

Q So in your opinion -- or is it your opinion that if

10

the type of study you describe, a nationally representative

11

large scale, longitudinal study if that type of study is

12

never done because its cost prohibitive is it your view

13

that we should just never allow same-sex couples to marry?

14

MS. HEYSE: Objection, your Honor. Calls for

15

speculation.

16

THE COURT: He’s an expert. He can testify.

17

A Well, there are other aspects to consider including

18

scientific aspects. I mentioned in a deposition and I think

19

I mentioned yesterday that marriage historically is about

20

expectation of permanence, fidelity, and generally openness

21

and welcoming of children. Scientifically and studies that

22

we talked about yesterday permanence is -- permanence is

23

less common especially in households of two women.

24

Expectations of fidelity are less common in households of

25

two men scientifically. And then you look at the welcoming

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of children and that’s when we get into talking about

2

expectations -- assisted reproductive technology which is

3

very expensive and less expected among people of lower

4

means. So it’s not just about science around child

5

outcomes. It’s also a science around common expectations

6

and marriage.

7

Q So either if we had the type of study you would

8

require that still wouldn’t be -- that wouldn’t answer the

9

question and allow you to support same-sex marriage.

10

A There are more aspects to it than just a large child

11

outcome study for sure.

12

Q Now, I want to go back to your statement that there

13

may be two gold standards of family stability and context

14

for children flourishing, a stably coupled heterosexual

15

household and a stably coupled homosexual household but no

16

population base sample analyses have yet been able to

17

consistently confirm wide evidence of the latter. That was

18

your statement in your report; right?

19

A Yes.

20

Q Now, are there population base studies that

21

consistently confirm that children of low income couples

22

develop as well as children of higher income parents?

23

A I’m going to ask you to repeat that one.

24

Q Sure. Are there population base studies that

25

consistently confirm that children of low income couples

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develop as well as children of higher income couples?

2

MS. HEYSE: Objection, your Honor. That’s outside

3

the scope of his report.

4

THE COURT: Again, he’s an expert and it’s cross-

5

examination. If he knows.

6

A Insofar as I know, yes.

7

BY MS. COOPER:

8

Q Confirming the equally good outcomes of children of

9

low income and high income parents?

10

A Confirming that, no. I mean -- typically

11

distinguishing that there are differences.

12

Q Right. So, in fact, studies show the opposite. It

13

doesn’t confirm that they are doing equally well, it

14

confirms that children raised by low income parents don’t

15

on average develop as well.

16

A That’s what I’m agreeing with.

17

Q Okay. Are there population base studies that

18

consistently confirm that children of non-college educated

19

parents develop as well as children of college educated

20

parents?

21

A I know less about that, but on average I would expect

22

there to be differences.

23

Q Right. Studies actually show the opposite that kids of

24

non-college educated parents don’t develop as well as

25

children of college educated parents.

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A Typically insofar as it’s associated with social class

2

and life chances for children.

3

Q But you don’t favor excluding low educated couples

4

from marriage; is that right?

5

MS. HEYSE: Objection, your Honor. That’s not

6

relevant to these proceedings.

7

THE COURT: Overruled. Again, it’s cross-

8

examination.

9

A I do not.

10

BY MS. COOPER:

11

Q And you don’t favor excluding low income people from

12

marriage; is that right?

13

A I do not.

14

Q So it is not your view that marriage should be limited

15

to those groups whose children are statistically most

16

likely to have positive child development outcomes.

17

A Can you say that again?

18

Q It is not your view, is it, that marriage should be

19

limited to those groups whose children are statistically

20

most likely to have positive outcomes?

21

A Correct, it’s not.

22

Q And it is not your opinion that groups that are known

23

from the scientific research to raise children who fair

24

more poorly should be excluded from marriage.

25

A Right.

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Q But in your view because there are, quote, outstanding

2

questions about whether children develop as well in same-

3

sex households compared to opposite households that same-

4

sex couples should not be allowed to marry?

5

A It’s my view that the science here is very new whereas

6

the science around these other questions you’ve asked is

7

notably older. So there’s an intellectual debate going on

8

though people would like to close it quickly, I think it

9

should still be open and it should be further investigated

10

about the no differences debate. But as I mentioned just a

11

little bit earlier it doesn’t tackle the question of the

12

hallmarks, the historic hallmarks of marriage.

13

Q And that’s a separate issue. We’ll got to that.

14

MS. HEYSE: I’m going to object, your Honor. He

15

should be able to finish his response.

16

THE COURT: He may complete his answer.

17

A I mean, it’s not just about the science around child

18

outcomes. It’s also the science around long-standing

19

expectations around marriage.

20

BY MS. COOPER:

21

Q So given -- you mentioned that the research on low

22

income and low educated couples is more longstanding, that

23

research actually confirms poor outcomes but you don’t

24

favor excluding those groups.

25

A Right.

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Q Okay.

2

A It’s a function of sort -- they’re more in line with

3

the longstanding criteria around marriage especially to the

4

idea that marriage unites man and woman and the

5

expectations around children because I think still today

6

half of all children that are born are unplanned. And

7

marriage for a very long time has served to unite the

8

parents, the biological parents of children in a union that

9

will be protective of that child whereas -- I mean --

10

MS. COOPER: Your Honor, it’s non-responsive to

11

the question.

12

THE COURT: There’s no question.

13

MS. COOPER: Thank you.

14

BY MS. COOPER:

15

Q Now, in your opinion and I think this was your

16

ultimate opinion in your expert report and I’m happy to

17

pull that out if you need but it’s a sentence so you tell

18

me.

19

In your opinion,

20

“It remains prudent for government to continue to

21

recognize marriage as a union of a man and a woman thereby

22

promoting what is known to be an ideal environment for

23

children”; is that right?

24

A Yes.

25

Q Okay. Now, you recognize that same-sex couples have

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children either through adoption or assisted reproduction

2

including in states like Michigan where they can’t marry.

3

A Right.

4

Q And you recognize that excluding same-sex couples from

5

marriage does not prevent them from having children in

6

these ways.

7

A That is true.

8

Q And you’re not aware of any data showing that allowing

9

same-sex couples to marry reduces the number of children

10

who are raised in heterosexual biological parent families;

11

is that right?

12

A I’m unaware of that.

13

Q So, in fact, you acknowledged, did you not that you

14

don’t actually know whether the exclusion of same-sex

15

couples from marriage actually does anything to promote

16

what you consider to be the ideal environment for children.

17

A Right, we don’t know except that it’s an open

18

question. Moving forward there’s more data to collect here.

19

Q But you don’t know.

20

A I don’t know.

21

Q Okay. Now I want to ask you some questions about your

22

NFSS Study. You noted yesterday that to be included in your

23

“lesbian mother,” or “gay father” groups the respondent had

24

to affirmatively answer the following question:

25

“From when you were born until age 18 or until

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you left home did either of your parents ever have a

2

romantic relationship with someone of the same-sex”; is

3

that right?

4

A Yes.

5

Q And just for the record if I use “lesbian mother” or

6

“gay father” terms I’m not using that to suggest anything

7

about the sexual orientation of the individuals but those

8

are the terms used in the study so I may use that in

9

shorthand.

10

For example, if a respondent reports that her

11

mother had a relationship with another woman for, say, six

12

months but otherwise only had relationships with men that

13

individual would be put in the “lesbian mother” group;

14

right?

15

A Right, and in a followup I said it would be better to

16

talk about this category as mothers who’ve had lesbian

17

relationships or fathers who had gay relationships.

18

Q But this individual would still be in that category.

19

A Right, because the relationship was a same-sex one.

20

Q Okay. And over half of the respondents you deemed to

21

fall into the “lesbian mother” category never actually

22

lived in a same-sex household; right?

23

A Well, they didn’t live in the household but their

24

mother and her partner --

25

Q So that’s yes.

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A I don’t purport to know how long the partnership

2

lasted.

3

Q But they never lived in an household where there was

4

a same-sex couple living.

5

A Not according to them, yes, correct.

6

Q Okay. And very few of the respondents that you deemed

7

to be children of a “gay father” ever lived in a same-sex

8

couple household.

9

A In that era that was particularly uncommon.

10

Q So that’s correct?

11

A Did you say none of them ever --

12

Q No, no, very few.

13

A Few. I want to say 23 percent lived for some share of

14

a year with their dad and his partner.

15

Q And you have noted that a majority of the respondents

16

you deemed to fall into the “lesbian mother” or “gay

17

father” group were the product of a failed heterosexual

18

union; correct?

19

A I said a majority, did you say?

20

Q Yes.

21

A Yes.

22

Q Now, your primary heterosexual parent comparison group

23

or any of your heterosexual parent comparison groups were

24

not defined by asking the question did your parent ever

25

have a heterosexual relationship; right? That’s not how you

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established groups.

2

A That is correct.

3

Q Your primary comparison group was a group of

4

individuals who lived from birth to age 18 in an intact --

5

two biological parent family; is that right?

6

A According to them, yes.

7

Q Well, all of this is according to them.

8

A Yes.

9

Q And this group which is called in shorthand IBF,

10

intact biological family, excluded all divorced, a single

11

parent, heterosexual families; right?

12

A Excluded who?

13

Q Divorced people?

14

A Right. I mean, they may have had a divorce before the

15

child came along. But the child experienced it as an intact

16

biological family for the duration of their childhood.

17

Q Okay. So any child who had experienced divorce was not

18

in that group.

19

A That is correct.

20

Q And similarly any child who experienced single parent

21

family life, that was stripped away, not in that group.

22

A Correct.

23

Q Okay. So the idea of intact biological family group

24

was defined by the stability of the families.

25

A Yes. I did that intentionally because stability has

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long been seen as a resource. And in a lot of the

2

literature in this area the exact stability of the

3

comparison group was often unclear sometimes entirely.

4

Historically, stability is a good thing, I wanted

5

to make sure that we understood the comparison category was

6

fairly clear.

7

Q So that’s a yes it was defined by it being a stable

8

family group.

9

A Yes.

10

Q Okay.

11

A By the way, we don’t know how happy this group was. I

12

didn’t make that -- are they together.

13

Q So on the one hand you compared the two groups -- two

14

of the groups in which a majority of the individuals had

15

been through a family breakup. That would be the “lesbian

16

mother” and “gay father” group. You compared them to a

17

group that was defined by its stability, the intact

18

biological parent -- sorry, intact biological family group.

19

A Could you repeat the first part of that?

20

Q Sure. You compared two groups in which the majority of

21

the respondents had been through a family breakup. That

22

would be the “lesbian mother” and “gay father” group. You

23

compared them to a group that was defined by the stability

24

of the group, the intact biological family group.

25

A Yes.

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Q Okay.

2

A That was not the criteria by which -- the criteria by

3

which I sorted them whether they had a same-sex -- the

4

parents had a same-sex relationship.

5

Q But that was the comparison.

6

A Yes.

7

Q Now, the two respondents in the “lesbian mother” group

8

who like the individuals in the “IBF” group lived from

9

birth to age 18 in an intact stable family appeared well

10

adjusted.

11

A On average. I don’t recall them being notably either

12

way.

13

Q Yesterday you testified they made --

14

A Yes.

15

Q And you recognize that I think you just said a few

16

moments ago that stability is associated with better

17

outcomes for children.

18

A Right.

19

Q And divorce is generally associated with poorer

20

outcomes for children; is that right?

21

A Yes.

22

Q Now, yesterday you said you had no idea what the study

23

would reveal before the data came in. Are you saying you

24

really had no idea that a sample in which most of the

25

subjects experienced a family breakup would fair worse than

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a comparison group where not a single one of the subjects

2

had experienced the family breakup because it was defined

3

to exclude those individuals?

4

A What I mean by the statement is I had no idea what the

5

-- when the data was in the field how it would return in

6

terms of the number of people who had said their parents

7

had same-sex relationship or what their household calendars

8

would look like. That’s what I mean by I had no idea.

9

Q But you recognize that in the era in which these

10

individuals grew up planned same-sex parent families was

11

quite uncommon.

12

A It was, and I mention that in the study.

13

Q Okay. Now, you said yesterday I think that individuals

14

in the “lesbian mother” group had outcomes that were very

15

comparable to the individuals in the step family group; is

16

that right?

17

A If that’s what I had said yesterday, I think -- step

18

family, yeah.

19

Q Okay.

20

A I think what I said was in the followup study where I

21

split the pies a little bit more narrow the fewest

22

differences between cases where adult children had a mom or

23

same-sex relationship and they lived with their partner and

24

single parents who did not have subsequent partners. I

25

think that was the most close equation that I mentioned

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yesterday.

2

Q But I think you also mentioned the comparison to step

3

families were very comparable?

4

A Slightly less but comparable.

5

Q Okay. Now that actually wouldn’t be surprising, would

6

it, given that in almost every case in the “lesbian mother”

7

group the mother’s same-sex partner was not an original

8

member of the household. It was a later formed

9

relationship.

10

A Sure.

11

Q Okay. Now, you made clear yesterday that you were not

12

making any claims about causation regarding child outcome

13

in the NFSS Study; is that right?

14

A Right.

15

Q Okay. In fact, you agree that the sub-optimal outcomes

16

that you found in the “lesbian mother” and “gay father”

17

groups may not be due to the sexual orientation of the

18

parent; is that right?

19

A Since I did not measure it, I cannot make a claim

20

about it.

21

Q Okay. Now, switching gears a little bit. I want to

22

talk about the pool. So the respondents in the NFSS were

23

ages 18 to 39; right?

24

A Yes.

25

Q So the data was collected in 2011 and 2012; right?

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A Yes.

2

Q So that means they were born from 1972, to 1993; that

3

window?

4

A Yes.

5

Q At the time the individuals in the NFSS were being

6

raised, you agree that stigma was more pronounced and

7

social support for lesbian and gay parents was far more

8

modest than it is today; is that right?

9

A I would suspect so. I did not measure that. I mean, I

10

measured how often they were bullied, things like that, but

11

one can presume so.

12

Q Now, in your article on the NFSS you noted that it is

13

often the case and it certainly is true of the NFSS that a

14

gay or lesbian parent first formed a heterosexual union

15

prior to coming out of the closet; right?

16

A Right.

17

Q And you also wrote that the NFSS may best capture what

18

might be called “an earlier generation” of children of

19

same-sex parents and includes among them many who witnessed

20

a failed heterosexual union.”

21

MS. HEYSE: Again, your Honor, I would just ask if

22

we’re going to be reading from specific --

23

THE COURT: I agree, and a little bit slower.

24

MS. COOPER: Sure, sure.

25

BY MS. COOPER:

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Q You’ve got your NFSS article with you?

2

A Yes.

3

Q If you would turn to page 756, and if you look with me

4

at the bottom paragraph on that page, second sentence.

5

“Today’s children of gay men and lesbian women

6

are more apt to be ‘planned’ (that is, by using adoption,

7

IVF, or surrogacy) than as little as 15-20 years ago, when

8

such children were more typically the products of

9

heterosexual unions.”

10

You wrote that?

11

A Yes.

12

Q Okay. Let’s stay on page 756. Skip that.

13

On page 765, if you go to the third paragraph

14

from the bottom, last sentence,

15

“Child outcomes in stable ‘planned’ GLB families

16

and those that are the product of previous heterosexual

17

unions are quite likely distinctive as previous studies

18

conclusions would suggest.”

19

You wrote that?

20

A Yes.

21

Q Okay.

22

A And I followed it up with sort of -- we don’t know how

23

many of those actually are.

24

Q You don’t believe that you can draw conclusions from

25

your NFSS Study about outcomes for children in planned

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lesbian couple families; is that right?

2

A If by “planned” you mean assisted reproductive

3

technology things like that, yeah.

4

Q Okay. Now, that’s families like the plaintiffs --

5

well, actually families like many couples seeking to marry

6

and form families together; is that right?

7

A I don’t purport to know what share of that is true.

8

Q Okay. I think you emphasized this yesterday but I want

9

to make sure we understand that the NFSS Study documented

10

differences statistically significant differences between

11

groups. In other words, in the groups in the so-called

12

lesbian mother group and those in the intact biological

13

family group, but it did not concern itself with the

14

magnitude of those differences.

15

A Correct, and I stated in the article that was not my

16

purpose.

17

Q Now, you talked yesterday about the audit of the NFSS

18

Study conducted by the Journal Social Science Research that

19

-- the journal that published the study.

20

A It was authorized by the journal. It was not conducted

21

by the journal.

22

Q Authorized by the journal, okay. And you expressed

23

some views about the motives of the individual who wrote

24

the audit, but one question about this that I just don’t

25

think was answered yesterday was -- it was the journal that

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published that audit; isn’t that right?

2

A I believe so.

3

Q Now, are you familiar with a sociologist named Paul

4

Amato?

5

A Yes.

6

Q He’s a professor of sociology at Penn State?

7

A Yes.

8

Q And you consider Paul Amato to be a well-regarded

9

scholar in family structure studies?

10

A I do.

11

Q You consider him to be a level and level-headed

12

scholar?

13

A Generally speaking.

14

Q And you consider him to be a scholar who’s right down

15

the middle politically neither liberal, nor conservative?

16

A He had struck me at one point. I have no idea if that

17

is entirely accurate, but he strikes me as a moderate.

18

Q And, in fact, you asked Paul Amato to be one of the

19

consultants on your study.

20

A I did.

21

Q And he agreed?

22

A He did.

23

Q So he served as a consultant?

24

A Yes.

25

MS. COOPER: I like to mark a document as an

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exhibit for identification. It’s Exhibit 54.

2

MS. HEYSE: Your Honor, I would just ask that we

3

be provided a copy. We have not seen it.

4

THE COURT: I think counsel as a bunch of copies.

5

MS. HEYSE: If we could have a few minutes to

6

review?

7

THE COURT: Sure. Show it to the witness so he can

8

review it also.

9

MS. HEYSE: Your Honor, I would just note for the

10

record that we did agree to exchange exhibits in advance of

11

the trial and this was not provided to us.

12

THE COURT: Why was it not provided?

13

MS. COOPER: This is being used for identification

14

to ask questions, and it was an exhibit that was used at

15

the deposition, they have it.

16

THE COURT: Do you intend to introduce it?

17

MS. COOPER: No.

18

THE COURT: Okay.

19

MS. HEYSE: Oh, I’m sorry.

20

THE COURT: It’s only for purposes of use, but not

21

for --

22

MS. COOPER: Not to admit.

23

THE COURT: Okay.

24

BY MS. COOPER:

25

Q So, Dr. Regnerus, this is a statement Paul Amato wrote

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about your NFSS Study; is that right?

2

A The source is a blog. I’m not sure what all of it is

3

verbatim, Paul Amato’s words, and what is --

4

Q Well, I’ll direct your attention. Thank you for

5

clarifying.

6

A This is not Paul Amato’s blog.

7

Q Understood. If you’ll read with me. It says here --

8

THE COURT: Tell him where you’re reading.

9

MS. COOPER: I just want to find the right

10

passage.

11

BY MS. COOPER:

12

Q If you look at the second paragraph from the top.

13

A First page?

14

Q Yes. Second sentence,

15

“I regret that before writing that post” --

16

A Who wrote that?

17

Q I’ll clarify. The first three paragraphs in Italics

18

are statements from somebody who wrote the blog, not

19

attributable to Paul Amato.

20

MS. HEYSE: I’m going to object, your Honor, to

21

the extent this is hearsay.

22

THE COURT: I’m not sure where she’s going at.

23

The first three were not written by --

24

MS. COOPER: I’m trying to direct Professor

25

Regnerus to the statement that this blogger says,

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“There is a statement sent to me by Paul Amato

2

which I agree to post” and then he posts the statement

3

below.

4

A And who is he?

5

THE COURT: Who is the blogger, is that your

6

question?

7

THE WITNESS: Yes.

8

MS. COOPER: The blogger’s name is Phil Cohen, I

9

believe. This is something we looked at your deposition.

10

BY MS. COOPER:

11

Q Do you not recall identifying it?

12

A I do, yeah. I just don’t know -- I can’t identify on

13

this who wrote this top part.

14

Q Okay. But the part I want to flag your attention to is

15

in the second paragraph it says -- this is not Paul Amato,

16

this is the blogger,

17

“I regret that before” --

18

MS. HEYSE: Your Honor, I’m going to object to the

19

extent of reading something into the record --

20

THE COURT: Sustained.

21

The blogger said something and now what’s your

22

question?

23

MS. COOPER: I don’t really care what the blogger

24

said, I just wanted to direct Professor Regnerus so the

25

statement from Paul Amato that is posted here.

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THE COURT: Good.

2

BY MS. COOPER:

3

Q That begins,

4

“Thoughts on the Mark Regnerus 2012 Study by Paul

5

Amato.”

6

Do you see that heading in bold?

7

A Yes.

8

Q So that’s the beginning of the statement.

9

So I’d like you to turn to page 3 of this

10

statement.

11

A Are there’s 12 pages to this? I’m only seeing four.

12

Q This is the first four. I didn’t print the comments to

13

the blog because -- I think, in fact, that may have been

14

something that counsel for defendants did not want to

15

include in the exhibit. But either way I did not consider

16

that.

17

THE COURT: The exhibit is just to ask him

18

questions.

19

MS. COOPER: It’s just to feature the statement.

20

BY MS. COOPER:

21

Q So if you can go to page 3 with me.

22

A Okay. If you would look at the second paragraph from

23

the bottom, okay, beginning with the second sentence, and

24

read along with me,

25

“Many” --

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MS. HEYSE: Your Honor, it’s hearsay and she can’t

2

read it into the record.

3

MS. COOPER: It’s not for the truth. I want to ask

4

him if he agrees with statements made by one of his own

5

consultants about his study.

6

THE COURT: For that purpose, you may.

7

BY MS. COOPER:

8

Q “Many conservative observers have cited the Regnerus

9

study as if it provided evidence that being raised by gay

10

or lesbian parents is harmful to children. This claim is

11

disingenuous because the study found no such thing. A

12

noteworthy example came from Regnerus himself who signed an

13

amicus brief to the Supreme Court citing his study as

14

evidence against same-sex marriage. This is curious because

15

on page 766 in his 2012 article, Regnerus stated that his

16

study was not intended to either affirm or undermine the

17

legal right to same-sex marriage.”

18

And on page 768 of his response to the

19

commentaries in the same issue, he stated,

20

“That his data should not be used to press any

21

political program. Given these cautious early statements it

22

is exasperating to see Regnerus later cite his own study as

23

evidence against same-sex marriage.”

24

So, first question about this: Is Professor Amato

25

who is a consultant on your study correct to say that it is

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disingenuous to claim that the NFSS Study provides evidence

2

that being raised by gay or lesbian parents is harmful to

3

children?

4

A The question hinges around sort of what does it mean

5

to be raised by, right? And I think we mentioned this a

6

little bit yesterday and it says gay or lesbian parents. My

7

mistake and acronyms notwithstanding I talk about parents

8

who have same-sex relationship with no assumptions about

9

their orientation. So when he talks about being raised by

10

which implies some degree of time I assume and household

11

presence I assume. But then he goes and uses gay or lesbian

12

as an adjective which I don’t think -- I mean, I don’t have

13

data on the orientation, it’s harmful to children. I think

14

the jury is out on this, figuratively speaking. What we

15

need is -- the absence raises significant questions about

16

children who grow up in families where a parent has a same-

17

sex relationship.

18

What it doesn’t answer his question about

19

orientation, and it didn’t come design to answer political

20

questions. It came design to address an intellectual

21

question.

22

Q Okay. So he is correct in your view that -- sorry. He

23

is correct that you said the study was not intended to

24

either affirm or undermine the legal rights of same-sex

25

marriage?

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A That’s what I wrote in the original study, yes.

2

Q Okay. Okay. Great.

3

Now, are you aware that yesterday the Chair of

4

the Sociology Department at the University of Texas, your

5

department, issued a statement posted on its website

6

stating the following:

7

“Like all faculty” --

8

MS. HEYSE: Objection, your Honor. Hearsay.

9

MS. COOPER: I’m happy to provide a copy if you

10

like. I’m not seeking to admit it again -- happy to show a

11

copy if you don’t have it.

12

MS. HEYSE: I don’t have a copy.

13

THE COURT: And, again, it’s only for purposes of

14

cross-examination.

15

MS. HEYSE: Thank you.

16

MS. COOPER: So I’ve marked this for

17

identification as Exhibit 55.

18

BY MS. COOPER:

19

Q So, if you’ll read along with me, the statement says,

20

“Like all faculty Dr. Regnerus has the right to

21

pursue his areas of research and express his point of view.

22

However, Dr. Regnerus’ opinions are his own. They do not

23

reflect the views of the sociology department of the

24

University of Texas at Austin. Nor do they reflect the

25

views of the American Sociological Association which takes

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the position that the conclusions he draws from his study

2

of gay parenting are fundamentally flawed on conceptual and

3

methodological grounds and that findings from Dr. Regnerus’

4

work have been cited inappropriately in efforts to diminish

5

the civil rights and legitimacy of LBGTQ, partners and

6

their families. We encourage society as a whole to evaluate

7

his claims.”

8

There’s additional material but I just wanted to

9

call your attention to that paragraph.

10

Were you aware of this statement?

11

A I saw it yesterday.

12

Q Okay. And what is your reaction to that?

13

A It’s regrettable. I think the University has

14

characterized my academic freedom. I guess they have been

15

getting negative press probably about my appearance here,

16

and decided to make a statement which they had not made

17

before even though I had conducted the research -- the

18

process a few years ago. The article came out a year and a

19

half ago. I think they just wanted to distance themselves

20

from me which is sad. And I heard from some of my

21

colleagues that this was an inappropriate thing for the

22

department to do.

23

Q And you are aware that The American Sociological

24

Association did submit a brief, an amicus brief in the U.S.

25

Supreme Court in the Windsor and Perry cases stating that

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your study doesn’t allow for conclusions about being raised

2

by -- the impact of being raised by same-sex parents; is

3

that right?

4

A I’m aware of that.

5

Q Okay. And I want to switch gears away from NFSS now

6

and your research and ask about another study.

7

You’re familiar with a study done by Douglas

8

Allen based on the Canadian Census that looks at high

9

school graduation rates?

10

A I’ve read and I wrote a little summary piece about it

11

but I’m not intimately familiar with that data. It cannot

12

be replicated so far as I can tell because it was

13

proprietary to the Canadian Census.

14

Q Okay. You mentioned that you wrote a little blog piece

15

or a little article about that.

16

A Yes.

17

Q In that article you said that a limitation of this --

18

actually, let me show it to you so we don’t have any

19

confusion here.

20

The document I’ve marked for identification as

21

Exhibit 56 called “A Married Mom and Dad Really Do Matter:

22

New Evidence from Canada” that’s the blog piece you wrote

23

about the Allen study?

24

A Yes.

25

Q Okay. If you could turn with me to the second page.

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If you look at the third paragraph from the bottom, and

2

read along. It says,

3

“Every study has its limitations and this one

4

does, too. It is unable to track the household history of

5

children nor is it able to establish the circumstances of

6

the birth of the children whose education is evaluated,

7

that is, were they the product of a heterosexual union,

8

adopted, or born via surrogate or assisted reproductive

9

technology.”

10

You wrote that?

11

A I did.

12

Q Okay. And you have said that you would bet that given

13

the time period in which these 17 to 22 year olds in

14

Allen’s study were born that many of the individuals who

15

were in the same-sex family group were the product of

16

former heterosexual unions; right?

17

A Did I say that? I don’t think I said that.

18

Q Well, let’s take a look at your deposition.

19

A I may have said it. If you could point to the page?

20

Q Would you agree with that now?

21

A If you would repeat the question.

22

Q Sure. You would bet that given the time period in

23

which the 17 to 22 year olds in Allen’s study were born

24

many of the individuals who were in the same-sex family

25

group were the product of a former heterosexual union.

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A It’s likely given the timing.

2

Q Sure.

3

A Again, we don’t really have good data on sort of ART

4

in the past. We really don’t have good data on it at the

5

present.

6

Q Okay. But you think it’s likely.

7

A It’s likely.

8

Q And you’ve said you suspect that planned same-sex

9

couple families were not what the Allen study evaluated on

10

average.

11

A I don’t think he could, yeah. I mean --

12

Q Okay. Now, there’s been a lot of discussion about

13

couple stability. So I want to ask you some questions about

14

that.

15

First of all, can you tell us generally what the

16

divorce rate for heterosexuals is in this country?

17

A What do you mean by divorce rate? Rate per year, I

18

think it’s two percent per year.

19

Q Isn’t the data over sort of a ten-year period?

20

MS. HEYSE: Your Honor, I’m going to object.

21

THE COURT: Let him answer.

22

MS. COOPER: I’m sorry. I thought he was finished.

23

My apologies. Go ahead.

24

A My recollection is the divorce rate is, you know, it’s

25

24,000 married women per year.

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BY MS. COOPER:

2

Q Okay. And is there data showing the divorce rate over,

3

say, you know, percentages of marriages that fail at, say,

4

five years or ten years?

5

A The National Study of Family and Growth is able to do

6

it. I’ve crunched it once. I don’t recall offhand the

7

numbers. But it varies by, you know, age at marriage and

8

things like that.

9

Q But as a population as a whole looking at all

10

marriages you don’t have a sense of what the divorce rate

11

is over --

12

A Over ten years, it would be guess work. Around 20 to

13

30 percent -- over five years? No, it be over ten or 15

14

years. It would really be guess work and it would be

15

inappropriate for me to do that.

16

Q Okay. Now, you talked a lot about the issues of

17

instability in the NFSS Study and the “lesbian mother” and

18

“gay father” groups. But there are two concepts that I

19

think got potentially blurred yesterday and I want to see

20

if we can clarify. The concepts of household instability on

21

the one hand, and couple instability on the other. So I

22

have a couple of questions to help get at that.

23

So, I think your testimony made clear that

24

individuals in the “lesbian mother” and “gay father” groups

25

experienced significant household instability, you’d agreed

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with that; right?

2

A Right.

3

Q For example, you noted that a majority of the

4

individuals in this group had started out life in a

5

heterosexual mother father family that broke up; right?

6

That’s household instability, that’s not about couple

7

instability.

8

A None of these are choices that children make, right?

9

Q Of course. But is that correct?

10

A That’s who we are interviewing is the adult children.

11

They’re telling us who came and went.

12

Q Understood. So, again, that example, that in the

13

majority of the families, you know, the individuals in

14

“lesbian mother” and “gay father” group, the fact that they

15

came from a prior heterosexual union that broke up that’s

16

an example of household instability but not an example of

17

same-sex couple instability; is that right?

18

A Correct. If, in fact, those -- what broke was the

19

opposite sex relationship.

20

Q Which was a majority of the household --

21

A That was the majority of the circumstances around

22

there origins.

23

Q Okay. Now, so, for example, in the NFSS the fact that

24

a subject only spent say two years living in a same-sex

25

household that doesn’t necessarily mean that the couple

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relationship lasted two years; is that right?

2

A That is true, although I’m not sure why, you know, a

3

live-in relationship would suddenly, you know, end and the

4

partner would not be the household. They may have moved,

5

but I would presume most of them that when a partner leaves

6

the household of the mother and her child that the

7

relationship has probably ceased, but I don’t know that for

8

sure.

9

Q Now, in some of the cases that you only count two

10

years of living with the same-sex partner because it was a

11

change of custody, right, the kid went, say, to live from

12

mom’s house to dad’s house. So in that particular case the

13

couple may be together, may not be together; is that right?

14

A True. That would require one to go into the actual

15

individual household rosters and look at what happened in

16

different kids.

17

Q But is it correct that the fact that a particular

18

individual reports living two years with the same-sex

19

couple and in some cases that has no bearing on the length

20

of time of the couple, it may be that the child left;

21

right?

22

A It could be, although it’s uncommon and general for a

23

mother to lose -- you know, cede custody of her child some

24

--

25

Q So none of the children in the NFSS Study --

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A Oh, I’m sure some of them did, but I don’t know how

2

many.

3

Q Let me start that again. Are you saying that none of

4

the individuals in the “lesbian mother” group experienced a

5

change of custody from mom’s custody to dad’s?

6

A I didn’t say that, no. I’m just saying it’s less

7

common for a mother to lose custody in general. You can’t

8

really tell lose custody. You just know that a child lived

9

with mom or didn’t live with mom. The child would report as

10

an adult who he lived with at different years.

11

Q So did any of the individuals in the “lesbian mother”

12

group from the NSFF report a change from living with mom to

13

living with dad?

14

A I believe there are some cases. I don’t recall how

15

many.

16

Q Okay. And also in some cases, you know, you stopped

17

counting when the child was 18, right, so you -- the fact

18

that an individual reports that mom’s partner moved in when

19

they were 16 and then at 18 you’re done counting; right?

20

A Right.

21

Q Okay. Now, the individuals in the NSFF were all raised

22

prior to marriage being an option for same-sex couples

23

anywhere in the United States; is that right?

24

A If we do the math I guess the youngest people in the

25

NFSS were 18 in 2011. So they should have been cases -- I

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don’t think -- I don’t know the state where they lived. But

2

there should have been cases where they lived in states

3

where their mothers could married, right?

4

Q Let me classify because I think I can be more precise

5

in the question.

6

None of the individuals in the NSFF were born

7

into families where couples, same-sex couples could have

8

been married; is that correct?

9

A That is correct.

10

Q Okay. And you agree that marriage helps promotes

11

stability among heterosexual couples.

12

A In general I think it reflects stability. People who

13

wish to make their union secure seek marriage. And marriage

14

generally speaking entails -- reflects some security and it

15

entails some security and puts up some barriers to break

16

up.

17

Q So it does help stabilize couples.

18

A Conceptually, yes.

19

Q Conceptually.

20

A Yes.

21

Q In reality do you know?

22

A There’s something called self-selectivity like the

23

kinds of people who marry are the kind of people who are

24

more apt to stay together anyway. But generally speaking

25

it’s understood that marriage both reflects and fosters

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security.

2

Q Okay. So it reflects -- selects for stable couples and

3

also fosters stability in those couples; is that right?

4

A Yes.

5

Q Okay. And you have said you would expect greater

6

stability among married gay and lesbian couples than those

7

even in civil unions; is that right?

8

A Can you point to where I said that?

9

Q Sure. Do you have your report?

10

A The report? I don’t think I have the report.

11

Q I will mark this as 57. Again for identification only.

12

If you’ll turn with me to paragraph 49 of your

13

report. It’s on page 13.

14

A Okay.

15

Q Now, just to give the context the previous paragraph

16

you’ll see is referencing a work by Michael Rosenfeld, a

17

study by Rosenfeld. In 49 you say,

18

“In that study the highest stability rates appear

19

among heterosexual married couples while notably better

20

stability is located among married, gay and lesbian couples

21

than among those in civil unions as would be expected.”

22

You wrote that?

23

A Yes.

24

Q Okay.

25

A Which is a reflection of people who wish to have

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relational stability tended to track towards, you know,

2

greater legal stability.

3

Q But for heterosexuals you recognize that it’s not just

4

the matter of selecting the most stable, marriage also

5

helps foster stability.

6

A On average, yes.

7

Q Okay. Now, you mentioned yesterday that in the NFSS

8

the household rosters, those are the calendars that you

9

talked about, right, they are complicated not just among

10

the individuals in the “lesbian mother” and “gay father”

11

group but also in other groups like the step family group

12

and single parent family group; is that right?

13

A Yes.

14

Q So there was instability for those individuals as

15

well?

16

A Yes.

17

Q So there was instability in all the groups in the

18

study except for the one that was defined by the stability

19

that would be the intact biological family group.

20

A Right.

21

Q Okay. Now, you talked yesterday about your decision

22

not to control for family instability, that you didn’t

23

think it was appropriate to do that, but you did

24

effectively control for stability among the exclusively

25

heterosexual parent groups by creating the intact

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biological family group; right? You separated out all the

2

stable ones.

3

A I didn’t control for it. It is reflected in the

4

category.

5

Q Okay. Still talking about the topic of couples

6

stability yesterday you cited some data from the UK where

7

you said I think there were higher dissolution rates of

8

civil partnerships of lesbians compared to gay men --

9

A Yesterday, I don’t saying anything about the UK

10

yesterday.

11

Q Oh, okay. I thought you did. My notes may be bad.

12

You also talked yesterday about Michael

13

Rosenfeld’s study on school progress using the US Census;

14

right?

15

A Yes.

16

Q And you identified this study as relevant to couples’

17

stability I think the language you used, you said the study

18

controlled the way instability.

19

A Controlled for, yes.

20

Q But just to clarify what he controlled for was whether

21

the child actually lived in the particular family structure

22

at issue during the past five years; right?

23

A Right.

24

Q He didn’t actually control for couple breakups.

25

A Right.

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Q I mean, the Census data doesn’t provide that

2

information; does it?

3

A So far as I know.

4

Q Okay. Now, you raised the issue of stability in same-

5

sex couple relationships but I think you started to touch

6

on it before that there’s a variety among groups in the

7

United States about divorce rates when I asked you a

8

question about the divorce rate.

9

A Yes.

10

Q So, for example, there are differences in divorce

11

rates associated with race?

12

A Generally speaking, yes.

13

Q Different racial groups have different rates of

14

divorce.

15

A Right.

16

Q So is it correct that African-Americans have a higher

17

rate of divorce than other racial groups?

18

A On average.

19

Q And it is correct that interracial couples have higher

20

risk of divorce than same race couples?

21

A On average although I’m not entirely -- I mean, I’m

22

less clear with that.

23

Q Okay. And I think you mentioned yesterday that

24

remarriages by what -- I understood it means second

25

marriages?

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A Yes.

2

Q That remarriages fail at a higher rate than first

3

marriages.

4

A Correct.

5

Q Do you favor excluding African-Americans from marriage

6

based on the elevated rate of divorce in that group?

7

A I don’t.

8

Q In fact, if there were population base data showing

9

that African-Americans had a breakup rate that was higher

10

than that of same-sex couples you would not favor excluding

11

African-Americans from marriage.

12

MS. HEYSE: Objection, your Honor. Calls for

13

speculation.

14

THE COURT: He’s an expert. He can answer if he

15

has an opinion.

16

A I don’t.

17

BY MS. COOPER:

18

Q Okay. And do you favor excluding people who have

19

previously already been married and divorced from

20

remarrying given the elevated rate of divorce for

21

remarriages?

22

A I have no strong opinion on that. I tend to wish

23

people would try to work it out. It’s not always possible I

24

understand that, their original marriages. But I don’t hold

25

a strong opinion on that.

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Q So you don’t have an opinion about whether prior

2

divorce people should be allowed to get married?

3

A I mean it exists. I don’t think much about it. I don’t

4

have a strong opinion about that.

5

Q So if Michigan were to pass a law barring marriage by

6

people who had been divorced you wouldn’t have an opinion

7

about that?

8

MS. HEYSE: Objection, your Honor. It calls for

9

speculation and he’s answered the question.

10

THE COURT: Sustained.

11

BY MS. COOPER:

12

Q Okay. It’s not view then is it that groups -- the fact

13

that a group has an elevated divorce rate is a reason to

14

exclude the group from marriage.

15

A Correct.

16

Q Switching gears and focusing on issues of biological

17

relatedness what I think you called diminished kinship

18

yesterday. Just to make sure I’m clear with your terms when

19

you talk about diminished kinship you mean the lack of a

20

biological relationship between parent and child; is that

21

right?

22

A Between mother, father and child, yes.

23

Q Between each parent and the child.

24

A Right.

25

Q Okay. And you assert that diminished kinship poses

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risks to children; is that right?

2

A On average.

3

Q On average. Okay. An example that you’ve given of

4

diminished kinship would include couples who have children

5

through donor sperm or donor ova; right?

6

A It depends on -- I mean -- if it’s a donation from

7

outside the couple, that would be a diminished kinship.

8

Q Right. Somebody goes to a sperm bank or an egg donor

9

--

10

A Some form of assisted reproductive technology are

11

within the biological parents.

12

Q That would be an example of diminished kinship?

13

A Not if it’s within the biological parents.

14

Q Right, but if it’s outside of.

15

A Correct.

16

Q And that includes both for heterosexual couples and

17

same-sex couples who have children in this way; is that

18

right?

19

A Yes.

20

Q And you said the majority of children born through

21

assisted reproductive technology are raised by heterosexual

22

parents; is that right?

23

A By the numbers that should be the case, yes. Only one

24

to one and a half percent of all children born today are

25

born via assisted reproductive technology. I don’t know

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that we have data about whether that’s outside the

2

biological couple or not. We’re talking about pretty small

3

numbers though.

4

Q But the majority are heterosexual couples not same-sex

5

couples.

6

A Yes.

7

Q And you don’t have an opinion on whether the use of

8

donor sperm, again, donor from outside the family whether

9

the use of donor sperm or ova should be prohibited.

10

A From outside the family?

11

Q Meaning from a sperm bank let’s say.

12

A I’m not a fan of that. I don’t have a strong opinion.

13

I’ve never weighed in on the subject.

14

Q Okay. You don’t have an opinion about whether it

15

should be prohibited?

16

A I’m not of fan of it, I’ll tell you that. I don’t have

17

a strong sense about the legal permission around it. I

18

think it diminishes kinship so we should privilege that

19

which enhances kinship between a mother, father and child.

20

Q Now, in support of the proposition that the lack of

21

biological relationship between parents and child poses a

22

risk to children you testified yesterday about comparative

23

rates of abuse by step parents compared to biological

24

parents; right?

25

A Can you say that one more time?

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Q Sure. That you -- in support of your proposition that

2

lack of biological relationship between parents and child

3

poses a risk to children in support of that proposition you

4

testified about comparative rates of abuse by step parents

5

and biological parents; right?

6

A Yes.

7

Q Now, you testified there’s an elevated risk of abuse

8

by step parents, right, compared to biological parents?

9

A Right, and --

10

Q But you don’t favor prohibiting marriage by people who

11

already have children, right? In other words, people who

12

are going to create step families despite the heightened

13

risk to children in step families?

14

A Step families come from different kinds of places. I

15

mean, sometimes a parent dies and somebody remarries so

16

they remarry into a step family, but through divorce, but

17

through death. So step families are complicated as well.

18

Q So is it your understanding then that step families

19

that form, you know, after a parent is widowed versus

20

divorce that they don’t have the same kind of risks?

21

A I don’t know if there’s a difference in how those

22

outcomes work. I do know that, you know, it can be more

23

difficult to -- on a child to navigate step families and

24

different custody arrangements which is not the case

25

typically when the parent dies and the surviving parent

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remarries.

2

Q Okay.

3

A And in the -- the group of people for whom the child

4

outcomes looked next best where kids for whom their mothers

5

and fathers were married until one of them passed away.

6

Q Okay. So, again, you identified data showing elevated

7

risk of abuse in step families compared to biological

8

families --

9

A Outside the study. Not the NFSS.

10

Q Understood.

11

So you cited data showing elevated risk abuse in

12

step families compared to biological parent families, but

13

you don’t favor excluding people who are going to create

14

step families, in other words, people who already have

15

children from remarrying.

16

A What do you mean by people who are going to create

17

step families?

18

Q People who have children --

19

A Right.

20

Q -- and want to marry someone.

21

A Right. Generally not, although, you know -- it is more

22

sympathetic when people have -- when a parent has died than

23

-- as I said earlier it’s nice when people try to work out

24

their arrangements and not get a divorce in the first place

25

because that creates hostile instability for children. But,

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in general, no.

2

Q So even a parent who has divorced, have children,

3

divorced, they’d like to remarry a new person, you don’t

4

think that should be barred.

5

MS. HEYSE: Objection, your Honor. I believe

6

that’s been asked and answered.

7

THE COURT: I’m not sure. He may answer.

8

A I have no, you know, strong opinion on the legality of

9

that. I mean, it’s been around for time and memorial. So I

10

don’t have a strong opinion about it.

11

Q Okay. Now, I’d like to turn to your report, paragraph

12

28. Let me get you the page. It’s at the bottom of page

13

7,it begins. Paragraph 28. You got it?

14

A Yes.

15

Q You say,

16

“Yet, every child born to a couple via ART” and

17

let me pause, by that you mean if it’s a reproductive

18

technology?

19

A Yes.

20

Q Okay. So, I’ll start again.

21

“Yet, every child born to a couple via ART

22

(‘planned’ gay or lesbian family) retains at least one non-

23

biological ‘step’ parent suggesting the more favorable

24

comparison group would not be the biologically intact

25

mother-father household, but heterosexual step families.”

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Did I read that right?

2

A Right.

3

Q Okay. Now, you agree that most heterosexual step

4

families are blended families; is that right?

5

A Meaning children come from both the marrying woman and

6

the marrying father?

7

Q Well, by “blended” -- we can look at your deposition

8

if you’d like, but let me ask you this way, by “blended” do

9

you understand that term to mean the creation of a

10

household out of previous failed households, or failed

11

union?

12

A Some of them fail. Some of them, you know, one person

13

was never married, and they marry somebody who had been

14

married before, and they’re blending something. They’re not

15

always blending completely, you know, new families.

16

Sometimes one partner has children, sometimes they both

17

have children.

18

Q Understood.

19

A Sometimes blended marriages with no children.

20

Q But it’s blending two prior families whether they had

21

children --

22

A One of them might have been single.

23

Q And in heterosexual step families you’re generally

24

talking about a new person coming in to somebody -- an

25

existing family.

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A If there are children -- yeah.

2

Q Okay. Now, you wouldn’t use the term “step family” if

3

you had two single people who got married and neither had

4

children; right? Step families --

5

A Two single parents who --

6

Q Two single people with no children.

7

A Two people.

8

Q You have to have children, excuse me, to have a step

9

family; right?

10

A Correct.

11

Q Okay. So step family among heterosexuals are, you

12

know, a new person coming into an existing family with

13

children.

14

A Right.

15

Q Okay. And in planned same-sex parent families you

16

don’t have that circumstance; correct?

17

A “Planned” as in assisted reproductive technology.

18

Q Correct.

19

A Right.

20

Q Okay. Now --

21

A But you still do have -- you know, somebody’s not a

22

biological parent of the child.

23

Q That’s the analogy, right, that’s one is non-

24

biologically related but --

25

A So there’s still diminished kinship.

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Q You have diminished kinship but you don’t have the

2

circumstances of the disruption of an existing family unit.

3

A It’s a little bit different, right.

4

Q Okay. Now, you -- I believe in your deposition you

5

were not aware of research that looks at the well-being of

6

children conceived through assisted reproduction using

7

donor sperm or ova; is that right?

8

A Population base data.

9

Q Right. You’re not aware of studies on that?

10

A Assisted reproductive technology, large population

11

basis, no, I’m not.

12

Q What about other studies? Non-probability.

13

A Non-probability ones, you know, where they’re kind of

14

snowballed samples or something --

15

Q You’re aware --

16

A Right. NLFS is like that as far as I can tell.

17

Q Have you reviewed the research, the non-population

18

base research that body of research on assisted

19

reproduction whether it’s heterosexual or same-sex couples?

20

A By “review” you mean --

21

Q Read.

22

A Some of the NLFS studies I’ve read, not all of them.

23

There’s a bunch of them.

24

Q Outside of the NLFS have you read the research that

25

looks at -- compares children raised by donor -- let me ask

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it this way.

2

Studies looking at a class of donor conceived

3

children and naturally conceived children, heterosexual

4

families? Have you read that body of research?

5

A Can you cite a particular author?

6

Q I’m just asking if you’ve read a body of research?

7

A I’ve read some examples I think out of England.

8

Q And are you aware of research showing then that

9

children conceived by donor insemination whether

10

heterosexual parents or same-sex parents fair no

11

differently than naturally conceived children in those

12

studies?

13

A I don’t recall comparison categories. I wouldn’t want

14

to speak about any particular study unless I was looking at

15

it in front of me and looking at the sample sizes, and

16

looking at how the comparison categories were constructed.

17

Sometimes you can detect no differences in some of these

18

small non-probability samples. And it’s a function of

19

diminished ability to detect real differences that exists.

20

I often will look at the raw scores, right, and at least

21

see how the differences are in the simple difference level

22

even if they’re not detecting any statistically significant

23

difference because they may not have the statistical power

24

to do so. But I don’t want to claim I know about a

25

particular study unless I’m looking at it in front of me.

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Q Can we turn to your deposition? If you will look at

2

page 43, please? If you would go to line 10 and I’ll read

3

with the question, beginning,

4

“Question: Are you familiar with the research on

5

children conceived through ART using donor egg or sperm

6

with a heterosexual or gay parent family?

7

“Answer: I don’t believe there’s any population

8

base data doing that.

9

“Question: Are you aware of any research looking

10

at such families?

11

“Answer: I’m not. It may exist.”

12

A Right. I think I was referring to that, the population

13

base data. I was not aware of anything. I have looked at

14

some non-population base data.

15

Q Okay.

16

A Referring to the population base aspect of it.

17

Q If you’ll turn to page 44, line 2,

18

“Question: Sure. Do you know whether the non-

19

biological parent” -- I’m sorry. Withdrawn.

20

Moving away from assisted reproduction, focusing

21

on adoption. You are aware of research showing that in

22

adoptive families where the parents lack, both parents lack

23

a biological relationship with the children, that there’s

24

research showing that adoptive parents invest more time in

25

their children than two biological parent families.

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A There’s some research that suggest that, yes. I don’t

2

know if the research would all conclude that.

3

Q Okay. Now, you cite uncertainty about outcomes for

4

children of same-sex parents as a basis to limit marriage

5

to heterosexual couples, but you have no opinion do you

6

whether lesbian and gay couples should be allowed to be

7

adopt children?

8

A Can you state that again?

9

Q You cite uncertainty about the outcomes for children

10

of same-sex parents as a basis to limit marriage to

11

heterosexual couples, but you have no opinion on whether

12

lesbian and gay couples should be allowed to adopt

13

children.

14

A The uncertainty about -- I’m still trying to find the

15

first part of that clause.

16

Q I can ask it differently. I can streamline this

17

question for you.

18

A Okay.

19

Q Do you have an opinion on whether lesbian and gay

20

couples be allowed to adopt children?

21

A I don’t have a strong opinion that, no.

22

Q Do you have any opinion?

23

A The State looks to place children with families as a

24

means helping kids who are, you know, orphans -- looking --

25

it’s a concession. The State looks to do that. I don’t have

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a strong opinion on -- I’ve thought very hard about it, who

2

should they go to, to one parent, two parents, single, I

3

mean --

4

Q So, do you have an opinion -- you said you don’t have

5

a strong opinion, do you have any opinion about whether

6

lesbian and gay couples ought to be allowed to adopt

7

children?

8

A I just haven’t fashioned one.

9

Q You don’t have one; is that right?

10

A Yes.

11

Q Okay. So you have no opinion about whether a child

12

would be better off staying in the foster care system

13

rather than being adopted by two parents of the same-sex?

14

A When you think about the State’s interest in

15

sheltering children, most people think it’s better to be

16

out of the foster care system than in the foster care

17

system. Otherwise -- some kids fair okay in the foster

18

system, but it’s not the ideal.

19

Q So you do have an opinion about whether children would

20

better off staying in foster care than being adopted by two

21

parents of the same-sex?

22

A I think you asked me that at the deposition, I don’t

23

recall what I said. I think I probably had no strong

24

opinion on it.

25

Q Do you have any opinion?

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A No, I don’t think so.

2

Q Okay. Now, in cases like the situation for plaintiffs

3

in this case where you have a child who is adopted into a

4

family headed by a same-sex couple is that right that you

5

have no opinion about whether it’s better for the child to

6

be adopted by just one of the adults or both?

7

A Given that it’s a concession in the first place and

8

not an ideal -- not ideal for the child to be apart from

9

its biological parents, but sometimes it’s a necessary

10

concession, I don’t believe I made a statement about the --

11

whether it’s one or two. Is that what you’re asking?

12

Q I’m just asking do you have an opinion about in such

13

situations is it better for the child to be adopted by just

14

one of the two adults raising him or her --

15

A Well, sometimes it’s the biological child of one of

16

the two adults.

17

Q Okay. So a child who is adopted out of the foster care

18

system not related to either partner --

19

A Right.

20

Q -- adopted into a family headed by a same-sex couple

21

do you have an opinion whether it’s better for that child

22

to have -- to be adopted by just one of those adults or

23

both of those adults?

24

A I think I said at the deposition I didn’t have an

25

opinion on that.

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Q Okay. And is that correct, you don’t have an opinion

2

on it?

3

A Yeah, I haven’t thought through all the permutations

4

and combinations so I don’t.

5

Q So you don’t have an opinion.

6

A Right.

7

Q Okay. And similarly in situations where a child is

8

conceived into a lesbian couple family through assisted

9

reproduction you have no opinion about whether it’s better

10

for the child to be able to adopted by the non-biological

11

parent to have a legal tie with both parents in the family?

12

A I think you asked me again at the deposition I don’t

13

have a strong formulated opinion on that.

14

Q I’m sorry, I didn’t hear you.

15

A I don’t think I have a strong formulated opinion on

16

who should have legal connections and -- when kinship is

17

diminished.

18

Q Do you have any opinion?

19

A I don’t believe I listed one last time.

20

Q Do you have one now?

21

A No.

22

Q Okay. Now, in situations where a heterosexual couple

23

conceives using, say, donor sperm from a sperm bank, is it

24

right you have no opinion about whether it’s beneficial to

25

the child to have a legal parent-child relationship with

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both parents in that family?

2

A I don’t know the legalities of these things in terms

3

of whose accorded legal status when the mother and father

4

are already married and they go get assisted reproductive

5

technology, a donor insemination, I don’t purport to know

6

at all about how the legal parental rights work in that

7

case. I mean, as I said before, I think it’s less optimal

8

to get donor inseminated because then you are giving --

9

taking in a diminished kinship, right, you’re taking on

10

that rather than working with parents to -- even by ART to

11

retain the genetic connection between mother, father and

12

child. That’s optimal.

13

Q So going back to the question for heterosexual couples

14

who are infertile and the way they have a child is to get

15

sperm from a sperm bank do you have an opinion about

16

whether the non-biological father in that family should be

17

recognized as the legal father to the child born?

18

A I’ve never fashioned an opinion on that. I presume

19

they are recognized, but I don’t -- I’m not an expert in

20

ART or adoption law.

21

Q So you have no opinion.

22

A Generally speaking, no.

23

Q Okay. Now --

24

A My only opinion is that states have interest in

25

reducing diminished kinship, and seeking to heighten the

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link mom, dad and child biologically as well as socially.

2

Q But you understand that there are families where’s

3

that’s not the case.

4

A I understand that.

5

Q And you have no opinion about whether legal ties

6

should be established with both parents --

7

MS. HEYSE: Objection, your Honor. This has been

8

asked several times.

9

THE COURT: I’ll sustain the objection.

10

BY MS. COOPER:

11

Q Moving on, switching gears, your position in favor of

12

limiting marriage to heterosexual couples is not based

13

solely on the scientific research related to child outcomes

14

or couple stability; is it?

15

A Correct.

16

Q You’ve never been a fan of same-sex marriage; isn’t

17

that right?

18

A Correct.

19

Q And you were not a fan of same-sex marriage before you

20

even started your work on the NFSS; is that right?

21

A Correct.

22

Q And that’s because in your view marriage in much of

23

human history has privileged expectation of permanency,

24

fidelity, and generally the anticipation of children and

25

you believe that doesn’t comport with same-sex marriage; is

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that right?

2

A Yes.

3

Q And you also agree as a matter of religious

4

affiliation that sexual relationship outside of marriage

5

between a man and a woman are wrong; is that right?

6

A Can you state that last part again?

7

Q Sure. That you also agree as a matter of our religious

8

affiliation that sexual relationships outside of a marriage

9

between a man and a woman are wrong?

10

A Yes.

11

Q Okay.

12

A That doesn’t really shape how I go about doing my

13

social science, but I do hold that to be true.

14

MS. COOPER: Non-responsive, your Honor.

15

THE COURT: Okay.

16

BY MS. COOPER:

17

Q This is marked for identification -- I believe we’re

18

at Exhibit 59, another document.

19

Professor Regnerus, this document marked for

20

identification as Exhibit 59, is that an alumni profile

21

from your alma mater?

22

A It is.

23

Q An alumni profile about you.

24

A It is.

25

Do you know when that was published?

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Q I can’t answer that, but you recognize this an alumni

2

profile.

3

A Yes, it’s not recent.

4

Q Okay. I want to read some quotes attributable you in

5

this profile.

6

A Sure.

7

Q And you’ll scroll down to -- six paragraphs down and

8

read along with me.

9

“As Christians our lives should reflect our

10

relationship with God and our desire to glorify him.”

11

Regnerus says,

12

“I’ve noticed that some Christian professors see

13

a disconnect between their faith and their profession. I

14

believe that if your faith matters it should inform what

15

you teach and what you research.”

16

First of all, did I read that correctly?

17

A Yes.

18

Q Okay. If you go onto the next paragraph, it says,

19

“I’ve had students here tell me that I’m the only

20

Christian professor they’ve had. I’m not approved to share

21

the Gospel, but I don’t necessarily hide my beliefs either.

22

When I teach, I don’t seek to break down or build any

23

particular faith, but my world view colors what I do in the

24

classroom.”

25

I want to skip down to a quote, again, in the

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last paragraph of the page,

2

“That’s what I want my students to recognize the

3

connection between my faith and my work.”

4

If we could stop there and I just want to ask

5

you, is it right that your faith shapes your interest in

6

researching sexual decision-making family and

7

relationships?

8

A Yeah, it’s a source of interest, although, the genesis

9

of my interest in sexual behavior came from a chapter in a

10

book I was writing when the chapter got really long and

11

very interesting. Prior to that I hadn’t been all that

12

interested in studying sexual decision-making.

13

Q But you have said that your faith shapes your interest

14

in those topics?

15

A Yeah, a lot of people when they get interested in

16

research topics it has some sort of personal connection to

17

them.

18

Q I want to --

19

A This is fairly an old document though. It doesn’t

20

really -- I’ve changed a little bit over ten plus years.

21

I’m probably not as -- I’m not as open about my faith as I

22

might have once been.

23

Q Okay. Now, the idea for the NFSS Study emerged from a

24

series of conversations you had with various people about

25

what research projects could be done. I think you touched

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on that yesterday; is that right?

2

A Right.

3

Q Those people included Luis Tellez?

4

A Yes.

5

Q He was the President of the Witherspoon Institute?

6

A Yes.

7

Q And you presume that the Witherspoon Institute is

8

against marriage for same-sex couples?

9

A I presume so.

10

Q Tellez is also involved with the National Organization

11

for Marriage?

12

A I have heard that. I have never -- I’m not familiar

13

with all the connections, but he has an affiliation of some

14

sort, yeah.

15

Q Now, that’s an organization that advocates for

16

limiting marriage to opposite sex couples?

17

A They do.

18

Q One of the people involved in these conversations that

19

you refer to about research possibilities was Maggie

20

Gallagher; is that right?

21

A Correct.

22

Q Maggie Gallagher is a prominent advocate against

23

marriage for same-sex couples; is that right?

24

A Correct.

25

Q Now you attended a meeting in Washington, D.C., a grop

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of people including Luis Tellez from Witherspoon and Maggie

2

Gallagher among others; is that right?

3

A Right.

4

Q And the purpose of that meeting was to discuss or to

5

think about study possibilities in the area of marriage and

6

relationships?

7

A Generally speaking what kind of research questions are

8

-- are good to be asked and answered in the broader domain.

9

I think that was -- do you have a date on that?

10

Q If you remember --

11

A I think in the deposition we said in the fall of 2009,

12

I think.

13

Q By the way was that the Heritage Foundation, that

14

meeting?

15

A I don’t think it was.

16

Q Where was it?

17

A Some hotel.

18

Q Hotel, okay.

19

Now, the Witherspoon Institute paid the expenses

20

of the meeting attendees of that D.C. meeting that you

21

attended?

22

A I believe so.

23

Q Ultimately you submitted a proposal to Witherspoon to

24

fund the NFSS Study.

25

A Right.

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Q Okay. They accepted it?

2

A They did.

3

Q And they funded the study.

4

A They did.

5

Q Okay. I’d like to mark again for identification

6

Exhibit 60.

7

Have you had a change to take a look?

8

A Could you give me a minute?

9

Q Sure.

10

MS. HEYSE: Your Honor, I just want to make clear

11

you’re not moving to admit?

12

MS. COOPER: No.

13

MS. HEYSE: Okay. Thank you.

14

A Okay.

15

BY MS. COOPER:

16

Q So this document that’s been marked as Exhibit 60 for

17

identification is this an email in which Brad Wilcox is

18

responding to some questions you wrote him on September

19

21s, 2010 about the NFSS Study?

20

A Right. So this would be roughly -- yeah. Several

21

months before we fashioned the first meeting of people in

22

Austin.

23

Q And just to be clear, Wilcox he’s the person who

24

introduced you to Luis Tellez of Witherspoon; is that

25

right?

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A Right, roughly a year before that or something.

2

Q Okay. I think you need to speak up just a bit.

3

A I’m sorry.

4

Q I saw people leaning.

5

A Some share of time before that, roughly a year.

6

Q Okay. I want to call your attention to the bottom

7

paragraph. And, again, just before I read it, this is an

8

email you wrote to Brad Wilcox, right, September 21st,

9

2010?

10

A Yes.

11

Q Okay. Bottom paragraph says,

12

“I would like at some point to get more feedback

13

from Luis and Maggie about the ‘boundaries’ around this

14

project, not just costs but also their optimal time lines

15

(for the coalition meeting, the data collection, et.) And

16

their hopes for what emerges from this project including

17

the early report we discussed in D.C. Feel free to forward

18

this to them.”

19

Did I read that right?

20

A Yes.

21

Q Now the Luis that refers to Luis Tellez of

22

Witherspoon?

23

A Right.

24

Q And Maggie is Maggie Gallagher, the advocate against

25

same-sex marriage?

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A I presume so.

2

Q Okay.

3

A I don’t believe I ever -- I don’t believe I ever got

4

feedback after that.

5

Q I’m just asking whether you wrote this.

6

A Yes.

7

Q Okay. And these are the same individuals, Luis Tellex

8

and Maggie Gallagher who were among others at the meeting

9

in Washington, D.C. you mentioned where you talked about

10

ideas for studies?

11

A Right.

12

Q Okay. So you wanted to know what hopes Luis Tellez and

13

Maggie Gallagher had for your research project?

14

A I wanted to know what they -- when they anticipated

15

the results from this, and what it -- what they thought it

16

would like because we hadn’t even met yet in January of

17

2011, to start hammering out how are we going to sample

18

people, etc.

19

I was aware of, you know, what Witherspoon

20

thought about same-sex marriage, but I was a skeptic at any

21

data analysis project we took on could tackle what they

22

might expect. So I wanted to know like if they had false

23

expectations for what this is capable is doing. It was

24

really intended to be a -- it’s an intellectual question we

25

were answering. I think they would be surprised if -- I

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didn’t know if they would expect that it could answer a lot

2

more questions than I had a feeling it could.

3

Q At this point had Witherspoon already agreed to fund

4

your study?

5

A I don’t honestly know. I’m -- I think the formal

6

funding came later. I don’t recall.

7

Q Will it help you refresh your recollection if you

8

looked to what’s numbered as point one, towards the top of

9

the mail?

10

A I think they probably had given me a voice go ahead,

11

but we hadn’t gotten cost estimates yet or anything like

12

that. I mention it at the bottom that, you know, costs. I

13

didn’t know how much it was going to cost and how much they

14

thought they were capable of funding.

15

Q In point one, you’re asking we want to run this

16

project through UT’s PRC. I’m presuming 10 percent overhead

17

is acceptable to Witherspoon. You’re asking about details

18

of costs and funding; right?

19

A Right.

20

Q Okay. Now in the paragraph at the bottom we were

21

looking at a moment ago, you reference the coalition

22

meeting. What coalition meeting were you referring to?

23

A The only coalition meeting I can recall is -- was in

24

the fall of 2009, the one I mentioned at the hotel. But I

25

don’t know about -- I’m not sure what coalition meeting

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this referring to. I honestly don’t.

2

Q You don’t know what you meant when you wrote that?

3

A I don’t. Unless it means -- it’s probably a reference

4

to the pooling together of consultants and getting together

5

which we did in January of 2011. That’s my best guess.

6

Q Consultants --

7

A I don’t know what coalition meant to me at the time

8

here. We did meet, a body of consultants in January of 2011

9

to hammer out like how we’re going to do this study.

10

Q And you might --

11

A It might have been that, I’m not sure.

12

Q You would have called the consultants on your study a

13

coalition?

14

A A coalition of consultants, yeah, I don’t know.

15

Q Okay.

16

A That would have made sense.

17

Q There’s not a question pending.

18

A Okay.

19

Q I’m going to mark for identification Exhibit 61.

20

So what’s been marked as Exhibit 61 is this an

21

email you received from Luis Tellez of the Witherspoon

22

Institute?

23

A On the bottom

24

Q I’m sorry, yes. Below the line there are two emails on

25

this page. Thanks for clarifying. The bottom email.

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A Yes, I believe so.

2

Q And it’s dated September -- sorry. September 22nd,

3

2010?

4

A Right.

5

Q Okay. Now, in the body of it, are you talking about

6

the NFSS Study they were funding?

7

A Yeah. I mean, it didn’t have a name yet. I don’t think

8

it had a name. It was an idea at the time. The project that

9

was going to get rolling starting in January of 2011.

10

Q Okay. Now -- let’s see. If you look he says,

11

“Move on it. Don’t dilly dally etc. It would be

12

great to have this before a major decision of the Supreme

13

Court”; is that right?

14

A Right, and before that he said don’t get hung up with

15

deadlines. Do it as right and best and think how you would

16

want it done which is always what I did.

17

Q I think you mentioned yesterday that you approached

18

Jim Wright at The Journal Social Science Research and asked

19

him if he would consider reviewing your manuscript of the

20

NFSS Study and if he be speedy about it?

21

A Right, in part because I had a report that I intended

22

to write. I had my own internal deadlines around it. It

23

just kept getting shifted in the future and I wanted to get

24

back to my other research projects.

25

Q So you were so eager to have this published speedy

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that you submitted the manuscript to the Journal before the

2

data collection was completed; isn’t that right?

3

A Ninety-eight percent completed basically and the

4

findings were fairly robust. I mentioned when -- I sent

5

Paul Amato a copy of the manuscript after I submitted it,

6

and said, I didn’t think it was a big deal, put it in the

7

cue at the social science research. We were waiting on data

8

trickling in from Knowledge Networks, just a handful of

9

cases. If Social Science Research was going to reject it

10

then I wanted to know that sooner rather than later.

11

Q Because you had an internal deadline in your head;

12

right?

13

A Right, because I inserted this study -- before our

14

report I was intending to write which I never did write.

15

Q Okay. So the study is published in July, 2012, and

16

online in June of that year; is that right?

17

A June 12 I think or 11.

18

Q So this was before the Windsor and Perry cases were

19

heard in the U.S. Supreme Court?

20

A I don’t know the time tables of all that stuff.

21

Q But you were able cite to the study --

22

A Right.

23

Q -- in the amicus brief that you wrote --

24

A I don’t remember --

25

Q Let me finish the question.

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THE COURT: Let her finish the question.

2

MS. COOPER: It’s confusing for the reporter.

3

BY MS. COOPER:

4

Q Okay. So you were able to cite and discuss the study

5

in the amicus brief that you wrote to the Supreme Court in

6

Windsor and Perry in opposition to same-sex marriage; is

7

that right?

8

A True. It was a component of the amicus brief.

9

There were more components to it than just this.

10

Q A day or two before the NFSS Study was to be published

11

by the Journal, you gave a presentation at the Heritage

12

Foundation about the findings of that study; is that right?

13

A Yes, maybe a day before that or something like that.

14

Q Heritage Foundation is a conservative think tank in

15

Washington?

16

A Right.

17

Q By the way, were they part of -- does that help

18

refresh your recollection about the coalition you

19

referenced earlier?

20

A I don’t believe that was the coalition I referring to.

21

That was -- I gave a talk I think Luis probably invited me

22

to do. I don’t know for sure, I don’t recall. But that

23

would not have been on my radar back in 2010. That was not

24

the coalition meeting. It was here’s a study coming out,

25

would you like to give a talk at Heritage about it and I

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said fine.

2

Q So you gave that talk a day or so, a day or two before

3

the study was published, and Heritage gave you immediate

4

training document suggesting talking points for you to use

5

when talking about the study?

6

A They gave it to me or sent it to me and I largely

7

ignored it.

8

Q I’ve marked for identification Exhibit 62.

9

MS. HEYSE: Your Honor, I’m going to object on a

10

line of questions. Doctor Regnerus just -- if that’s what

11

she intends to do, Dr. Regnerus just testified that he

12

largely ignored this document.

13

THE COURT: You may renew your objection. I

14

haven’t her question yet so it’s hard for me to rule at

15

this point.

16

MS. COOPER: I will just clarify, he largely

17

ignored it, doesn’t seem to take it off the table.

18

BY MS. COOPER:

19

Q I want to just first ask you is this the -- this

20

document has a few pages, four pages, and I want to focus

21

on the first two pages of the document. Is that the media

22

training document provided to you by Heritage?

23

A I presume so, but as I said I don’t believe I used it.

24

It was recovered in some Freedom of Information Act request

25

out of some computer file of mine, but it was filed away

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and -- it’s their words, not mine.

2

Q If you look down on paragraph -- six paragraphs down

3

one of the key points to make that they provided for you

4

is,

5

“For many years” --

6

MS. HEYSE: Objection, your Honor.

7

THE COURT: Sustained.

8

MS. HEYSE: Thank you.

9

THE COURT: You can’t read from it. I think you

10

need a little more foundation in terms of the document.

11

BY MS. COOPER:

12

Q I understood, Professor Regnerus, you say you largely

13

ignored it. I didn’t understand you to be saying you did

14

not read it, you did not consider it at all.

15

A Came over email because that’s where it was had. I

16

filed it in some folder that eventually got discovered and

17

-- I mean, it’s their words, not mine.

18

Q So you’re saying you never read it?

19

A I have no recollection if I read it or not.

20

Q Okay.

21

A It’s almost two years ago, a year and a half ago.

22

Q Now, apart from your interactions with Luis Tellez of

23

Witherspoon regarding the meeting in D.C. that you

24

discussed and the funding of your NFSS Study, you mentioned

25

yesterday that you also worked with him to create an

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organization called the Austin Institute; is that right?

2

A Yes.

3

THE COURT: Excuse, I’m sure you have some more to

4

go. We have to switch court reporters. That’s why we take a

5

break at 11:00. That’s how they have their thing. Is that

6

okay?

7

MS. COOPER: Of course.

8

THE COURT: I mean, do you want to finish real

9

quick? I don’t know how much you have.

10

MS. COOPER: If you need to take a break, let’s

11

take a break.

12

THE COURT: We don’t need to, but I think it’s a

13

good time.

14

Okay. We’ll take 15 minutes, and we’ll reconvene

15

at a quarter after.

16

(End of Part A)

17

(Court recessed, 11:00 a.m.)

18

-- -- --

19

20

21

22

23

24

25

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1

THE COURT: Okay. Before we go back to this, let's

2 talk about scheduling, so that we all know what the schedule is

3 going to be.

4

It's my understanding that we will finish up

5 cross-examine and maybe some direct, and then the next witness

6 is the economist. So let's see where the timing is. We'll

7 finish, and maybe we'll take an early lunch so that Ms. Nessel

8 will have a chance to go over that which she wants to go over,

9 and maybe an even a bit longer lunch, if that's all right.

10

Now, tell me about after that witness, just so -- we

11 get calls every day. People want to know what's going on, when

12 they should come and when they shouldn't come. So tell me what

13 you anticipate being the State's schedule.

14

MS. HEYSE: Sure. Absolutely, your Honor. After Dr.

15 Price this afternoon and when he finishes, we intend to call

16 Dr. Loren Marks. That was just actually, to bring to your

17 attention, your Honor, a change in the ordering.

18

THE COURT: Okay.

19

MS. HEYSE: We had some travel difficulties. But Dr.

20 Loren Marks will be available to testify after Dr. Price. And

21 then after him, we will have Dr. Douglas Allen.

22

THE COURT: Okay.

23

MS. HEYSE: And I do note we will not be able to bring

24 Dr. Allen onto the stand until Thursday.

25

THE COURT: Okay.

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1

MS. HEYSE: So we may have, depending on the timing,

2 we may have a slight break in the action, but it shouldn't be

3 much.

4

THE COURT: Okay. So you figure that you probably

5 will finish your case Thursday?

6

MS. HEYSE: Yes.

7

THE COURT: And does the plaintiff anticipate, it's

8 not made in stone, any rebuttal?

9

MR. MOGILL: At this point, we're not anticipating.

10

THE COURT: Okay. At this point not. So the

11 anticipation is, is that we'll go today, we'll go Thursday, for

12 as long as we can, and closings Friday. Is that fair?

13

MS. HEYSE: We'll go today, tomorrow and Thursday.

14

THE COURT: Today, tomorrow.

15

MS. HEYSE: Yes.

16

THE COURT: And then should finish some time tomorrow

17 in the afternoon. And whenever we should --

18

MS. HEYSE: Thursday, we'll finish.

19

THE COURT: Oh, I'm sorry.

20

MS. HEYSE: Yes.

21

THE COURT: Today, tomorrow, Thursday.

22

MS. HEYSE: Right. Correct.

23

THE COURT: I'm a day short. Today, tomorrow, and

24 Thursday.

25

MS. HEYSE: Correct.

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1

THE COURT: And we'll do closings Friday. Is that

2 pretty much what everybody is anticipating.

3

MS. STANYAR: Sounds good. The only thing I would say

4 is they switched the order of Professor Marks --

5

THE COURT: Yeah.

6

MS. STANYAR: -- who is my witness. I'm not guessing

7 we'll get to cross of Loren Marks today, right?

8

MR. POTCHEN: We are not calling him today.

9

MS. HEYSE: We do not --

10

MS. STANYAR: You don't have him here.

11

MS. HEYSE: We do not anticipate calling him today.

12

MS. STANYAR: It's tomorrow, I'm fine.

13

MS. HEYSE: I should have clarified that. I'm sorry.

14

THE COURT: Good. Perfect. People call all the time

15 and we don't know what to tell them. But now we know --

16

MS. HEYSE: Sure.

17

THE COURT: -- what the schedule is. And again, it's

18 not made in stone. If somebody has to change it, we'll go from

19 there. Okay.

20

MS. HEYSE: Your Honor, while -- I'm sorry, one more

21 minute?

22

THE COURT: Sure.

23

MS. HEYSE: Just to get some clarification, are you

24 looking for closing briefs as well?

25

THE COURT: It's, do you remember I told you at the

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1 beginning, it's up to you.

2

MS. HEYSE: Okay.

3

THE COURT: You've briefed -- I've got lots of briefs.

4

MS. HEYSE: Sure.

5

(Laughter in courtroom.)

6

THE COURT: We have summary judgment. So I'm not

7 asking for any briefs.

8

MS. HEYSE: Okay.

9

THE COURT: If anyone wants to submit, either, you

10 know, conclusions of law, findings of facts, that's fine. But

11 as I told you at the beginning, if you're going to do it, you

12 have to do it at the close of this, pretty much at the close of

13 the case. Because we are going to start working on it, if we

14 finish Friday, probably, Friday, you know, some time, and then

15 Monday, you know, the next week, pretty full force.

16

I think I told you at the end of the trial that I have

17 set some time aside for this trial and we're going to, I don't

18 know how long it's going to take us. So yes, anyone who wants

19 to submit.

20

MS. HEYSE: Could we perhaps have until Monday then,

21 if we close on Friday? Perhaps --

22

THE COURT: Monday at noon, something like that. The

23 sooner you can.

24

MS. HEYSE: Absolutely.

25

THE COURT: Because we are -- we have kind of cleared

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1 our docket, and are going to start working on this as soon as

2 we're done.

3

MS. HEYSE: Thank you, so much.

4

THE COURT: Okay.

5

MS. STANYAR: One other question. So it would be the

6 normal closing argument, would be the, you know, we start, they

7 go and then our rebuttal?

8

THE COURT: You have rebuttal.

9

MS. HEYSE: Actually --

10

THE COURT: Reserve, and on the same time schedule

11 that we talked about. And we'll put Mr. Pitt in there, if he

12 cares to, right after the plaintiff and before the State

13 defendants.

14

MS. HEYSE: Perfect. Thank you, your Honor.

15

THE COURT: Okay. You may proceed.

16 BY MS. COOPER:

17 Q. I think where we left off before the break, we were talking

18 about the creation of the Austin Institute. You mentioned that

19 you worked with Luis Tellez in creating that institute?

20 A. Yes.

21 Q. Okay. Tellez was interested in creating an organization

22 that would help you continue your research and foster other

23 people's research in social science of the family and culture?

24 A. Correct.

25 Q. Is that right?

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1

Okay. And Austin was formed last year; is that right?

2 A. Yes.

3 Q. Okay. You're a senior fellow --

4 A. Correct.

5 Q. -- at the institute? And the State's expert, Joseph Price,

6 is also a fellow there?

7 A. He is.

8 Q. Okay. Before we finish, I'm actually very close to

9 finishing, I just want to ask you about one more article.

10

MS. COOPER: Marked just for identification, Exhibit

11 62?

12

THE COURT: Three.

13

MS. COOPER: Three. Apologies. Okay. I only seem to

14 have two copies.

15

THE COURT: Okay.

16

MS. COOPER: Let me make sure I've got what I need

17 here, but I want to make sure you have a copy.

18

(Handing the witness Exhibit 63.)

19

THE WITNESS: Thank you.

20 BY MS. COOPER:

21 Q. Apologies. There's some highlighting on there.

22

Did you write this article called, "Porn Use in

23 Support For Same-Sex Marriage"?

24

MS. HEYSE: Objection. That's not the appropriate

25 title.

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1

MS. COOPER: Did I, did I read it wrong?

2

THE COURT: I'm sorry.

3

MS. COOPER: Sorry. I don't have an extra copy. If I

4 may?

5

MS. HEYSE: Oh.

6

MS. COOPER: Thank you. Pardon.

7 BY MS. COOPER:

8 Q. "Porn Use and Supporting Same-Sex Marriage"?

9 A. Correct.

10 Q. It was published in "Public Discourse" in December, 2012?

11 A. Yes.

12 Q. "Public Discourse" is an online publication of the

13 Witherspoon Institute; is that right?

14 A. Correct.

15 Q. And turning to the conclusion at the end of your article,

16 just if you want to read along with me, is that correct, that

17 you concluded that "support for same-sex marriage by young

18 adult men may be in part a byproduct of regular exposure to

19 diverse and graphic sex acts in pornography"? Is that right?

20 A. Well, let me put that in the context. I documented that as

21 men's pornographic use increased, the frequency of it

22 increased, the support for same-sex marriage increased, and

23 that several controls.

24

And so, yeah, I mean, I stated in the conclusion it

25 may not be entirely a product of reasoned interest in freedoms,

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1 rights, liberties, etcetera, but it may in part be due to

2 exposure, yes.

3 Q. You're talking about straight men there?

4 A. That's what the article is about, yes.

5 Q. Okay.

6

MS. COOPER: I have nothing further. Thank you.

7

THE COURT: Okay. Any redirect, please?

8

MS. HEYSE: Yes. Just a few questions.

9

THE COURT: Take your time.

10

REDIRECT EXAMINATION

11 MS. HEYSE:

12 Q. Dr. Regnerus, you stated earlier that you don't favor

13 excluding other groups from marrying that have poor child

14 outcomes.

15 A. Mh-hm.

16 Q. Can you explain that?

17 A. Correct. When you look at the sort of states' compelling

18 interest in fostering marriage, I mean, most children come from

19 a heterosexual union, and some of them are -- come when it's

20 inconvenient or unplanned. And states have interests in sort

21 of the flourishing of children, and uniting children to their

22 mothers and fathers. And so I think our data, the NFSS, reveal

23 that it's wisest when states have a compelling interest in

24 uniting moms, dads and kids.

25 Q. You mentioned that, earlier in your testimony or in

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1 cross-examination, that gay and lesbian families are more apt

2 to be planned.

3 A. Correct.

4 Q. Do you recall that?

5 A. Yes.

6 Q. Does that mean that's the only way that kids are coming

7 into same-sex families?

8 A. No. As the NFSS demonstrates, and it's somewhat unclear

9 today, but children come in via a failed heterosexual union, or

10 a single person getting pregnant, whether there was a union or

11 not, as well as adoption. So there's a lot of different ways.

12 I don't think there is any population-based data right now that

13 tells us who comes in and how. Yeah.

14 Q. So based on the data that is currently available, can

15 definitive conclusions be drawn about outcomes for what

16 Plaintiffs' counsel terms as "planned" same-sex families?

17 A. Right.

18 Q. So ART, DI?

19 A. Right. We can learn about it from these non-probability

20 samples where we can know about 50 to 70 people, but we can't

21 know, since they are not a random sample, we can't know if it's

22 a reflection of how other people, how the general public

23 accomplishes this.

24

So until you get more data from a larger probability

25 sample, I think it's largely, you know, we're doing guesswork

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1 about how it works.

2 Q. Do you still have documents in front of you that were

3 presented? Okay. Great.

4

If you could turn to paragraph 49 of your report. And

5 that's on page 13.

6 A. Right.

7 Q. All set?

8 A. Mh-hmm.

9 Q. And earlier, Ms. Cooper had referred you to the first

10 sentence in that paragraph. And that states, if you read along

11 with me, "in that study," and this is referring to Rosenfeld's

12 "How Couples Meet and Stay Together" study, correct?

13 A. Right.

14 Q. Okay. So "In that study, the highest stability rates

15 appear among heterosexual married couples, while notably better

16 stability is located among married gay and lesbian couples than

17 among those in civil unions," and in parenthesis, "as would be

18 expected."

19

Is there additional information in that paragraph?

20 A. Yes.

21 Q. Can you tell me what, what else that paragraph says?

22 A. Do you want me to read it?

23 Q. Sure.

24 A. Okay. It says, "Yet, Rosenfeld's analysis also detects

25 greater instability among lesbian couples in general," I might

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1 add that was statistically significant in his findings, "a

2 finding that persists even after a lengthy series of control

3 variables are included. While lesbian couples in the study are

4 more apt to be raising children, the presence of children does

5 not appear to be a factor in the diminished relationship

6 stability evident among them."

7 Q. Thank you. If you could also refer to an e-mail exchange.

8 And I apologize, I didn't mark the number of the exhibit.

9 There was an e-mail exchange between yourself and Brad Wilcox,

10 dated 9/22 of 2010.

11 A. Which number on it?

12

MS. HEYSE: May I approach, your Honor? May I

13 approach?

14

THE COURT: Oh, of course.

15

MS. HEYSE: I can show him where --

16

THE COURT: Absolutely. Save him some time. Thank

17 you.

18 BY MS. HEYSE:

19 Q. It was 11. Thank you.

20

I just want to be clear here, because Ms. Cooper had

21 pulled a sentence out of the middle of this e-mail. And I'm

22 looking at the middle section of this e-mail.

23

And it states that, talking about, you know, don't

24 dilly dolly. It would be great to have this, "this" in talking

25 about the NFSS, before major decisions of the Supreme Court.

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1

Is there additional information beyond that, that

2 phrase there?

3 A. In front of it, you mean?

4 Q. Well, let's talk about what's in front of it.

5 A. Sure.

6 Q. Sure. Go ahead. What's in front of that partial sentence?

7 A. Move along as expeditious as possible, but don't get hung

8 up with deadlines. Do what is right and best and move on it.

9

And then after that, he says, I would like you to take

10 ownership and think of how you would want it to be done rather

11 than someone like me dictating parameters.

12 Q. Right. And just beyond the, we'd like to have this before

13 major decisions of the Supreme Court, it says, but that's

14 secondary --

15 A. Right.

16 Q. -- to the need to do it and do it well?

17 A. Right.

18 Q. Right?

19 A. It's always been my charge was to do a good job, I mean,

20 and --

21 Q. So --

22 A. -- come what may.

23 Q. So you did not interpret this as any particular deadline

24 for producing --

25 A. No.

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1 Q. -- results?

2 A. Any deadline I had around the report was in my own head.

3 Q. And then if you'll look at your alumni profile from Trinity

4 Christian College. I just want to be clear, Dr. Regnerus,

5 what's the time frame for this profile?

6 A. I think that's ten, at least ten years old if not a little

7 bit older. And it's sort of humorous to see my old self in

8 some ways.

9 Q. If you'll look at the first -- the last sentence of the

10 first paragraph that Ms. Cooper had, had pointed out. So the

11 paragraph starts, "as Christians," do you see that?

12 A. Mh-hm.

13 Q. Okay. So if you look at the last sentence it states there,

14 "I believe that if your faith matters, it should inform what

15 you teach and what you research."

16

What do you mean by "inform" there?

17 A. Right. I mean shape what you're interested in and, and

18 kind of courses you find interesting and the research topics

19 you find interesting.

20 Q. So your religion shapes the topics that you're interested

21 in?

22 A. Right.

23 Q. In researching?

24 A. Right.

25 Q. Does it affect the data in your research?

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1 A. No.

2 Q. Does it affect the results in your research?

3 A. It has nothing to do with results.

4 Q. Okay. Finally, Dr. Regnerus, to your knowledge, is there a

5 large-scale, longitudinal nationally representative study of

6 outcomes for children of same sex-married couples?

7 A. Not to my knowledge.

8

MS. HEYSE: Thank you, your Honor. I have no further

9 questions.

10

THE COURT: Thank you. You may step down.

11

Ms. Nessel, how about if we take -- if we go until

12 1:15, give you enough time?

13

Good. 1:15. We'll adjourn until 1:15 and reconvene.

14

You may be excused, Doctor. Thank you.

15

THE WITNESS: Thank you.

16

(Witness excused, 11:51 a.m.)

17

THE CLERK: All rise.

18

(Recess taken, 11:51 a.m.)

19

20

*

*

*

21

22

23

24

25

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1

2

CERTIFICATE OF REPORTER

3

We, Joan L. Morgan and Christin E. Russell, as

4 official court reporters for the United States District Court,

5 appointed pursuant to provisions of Title 28, United States

6 Code, Section 753, I do hereby certify that the foregoing is a

7 correct transcript of the proceedings in the above-entitled

8 cause on the date hereinbefore set forth.

9

10

s/ Joan L. Morgan, CSR

11

s/ Christin E. Russell, CSR

12

Federal Official Court Reporters

13

14

15

16

17

18

19

20

21

22

23

24

25

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1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, ET. AL.,

Plaintiffs,

-v-

Case Number: 12-10285

RICHARD SNYDER, ET. AL.,

Defendants. ______________________________/

VOLUME 8

BENCH TRIAL BEFORE THE HONORABLE BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE 100 U. S. Courthouse & Federal Building
231 West Lafayette Boulevard West Detroit, Michigan 48226 THURSDAY, MARCH 6TH 2014

APPEARANCES: For the Plaintiffs:

Leslie Cooper, Esq. Carole M. Stanyar, Esq. Dana M. Nessel, Esq. Kenneth Mogill, Esq. Robert Sedler, Esq. Vicki L. Henry, Esq.

For the Defendants: Richard Snyder, Bill Schuette,

Tonya C. Jeter, Esq. Kristin M. Heyse, Esq. Joseph E. Potchen, Esq.

Lisa Brown

Beth M. Rivers, Esq. Andrea J. Johnson, Esq. Michael L. Pitt, Esq.

To Obtain Certified Transcript, Contact: JOAN L. MORGAN, OFFICIAL COURT REPORTER
734 812-2672

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I N D E X
WITNESS:
DOUGLAS W. ALLEN, Ph.D.
Direct Examination by Ms. Heyse Cross-Examination by Mr. Mogill Redirect Examination by Ms. Heyse

2
PAGE:
5 76 134

E X H I B I T S
State Defendants’ Exhibit No. 10 State Defendants’ Exhibit No. 12 State Defendants’ Exhibit No. 15

RECEIVED:
7 22 55

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THURSDAY, MARCH 6TH, 2014

1

Detroit, Michigan

2

Thursday, March 6th, 2014

3

(At or about 9:00 A.M.)

4

--- --- ---

5

THE COURT: Good morning, everyone.

6

MS. HEYSE: Good morning, your Honor.

7

THE COURT: Just a couple of things I thought we

8

would talk about.

9

Number one, is tomorrow in terms of Closing

10

Arguments how about starting at 10:00; is that good? I

11

thought that would give everybody a little more leeway to

12

get downtown.

13

The other thing is that the expert reports, I

14

don’t think -- I don’t think, have not been offered as

15

evidence. Is it the parties’ intention to not offer or to

16

offer them?

17

Obviously, we have copies of some of them that

18

we’ve read because they were attached to some motions. But

19

I don’t care, I’m just -- you know, they’ve been referred

20

and so forth.

21

MS. STANYAR: We’re not going to offer the expert

22

reports. We just wanted them to testify.

23

THE COURT: You’re not going to?

24

MS. HEYSE: From the States defendants’

25

prospective we would like to get them in.

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THE COURT: Okay. If the State wants to offer

2

them, as I say, they’ve all been authenticated, they’ve all

3

been testified to, why don’t we -- you can mark them and if

4

--

5

MS. STANYAR: Well, if they’re going to put theirs

6

in, we’ll put ours in.

7

THE COURT: It’s up to you. I’m not forcing

8

anybody to do anything, but they’ve been referred to so

9

often and they’ve been identified so the only thing they

10

haven’t been is offered, but certainly -- you can think

11

about it. If you want to offer them --

12

MS. STANYAR: If you’re going to allow theirs in,

13

we want ours in.

14

THE COURT: Oh, I think they’re both allowable in,

15

but -- it’s up to you if you want to make a motion to have

16

them in.

17

MS. STANYAR: Okay. We’ll do that.

18

THE COURT: Okay. Mark them and --

19

MS. HEYSE: We’ll bring them tomorrow morning.

20

THE COURT: As I say, it’s not a requirement, but

21

I thought about it last night, we’ve referred to them,

22

talked about them, and I’ve read several of them because

23

they were attached to the motions.

24

Okay. Next witness, State.

25

Good morning, Doctor.

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THURSDAY, MARCH 6TH, 2014

1

Do you solemnly swear or affirm to tell the truth

2

in the matter now pending before this Court?

3

THE WITNESS: I do.

4

THE COURT: Please have a seat. Please give us

5

your full name, and spell your last name though it isn’t a

6

secret, you’ve been referred to on several occasions.

7

THE WITNESS: All right. My full name is Douglas

8

Ward Allen. Last name is spelled A-l-l-e-n.

9

THE COURT: Thank you.

10

You may proceed.

11

MS. HEYSE: Thank you, your Honor.

12

DOUGLAS WARD ALLEN,

13

BEING DULY SWORN, TESTIFIED AS FOLLOWS:

14

DIRECT EXAMINATION

15

BY MS. HEYSE:

16

Q Good morning, Dr. Allen.

17

A Good morning.

18

Q Can you please refer to the book in front of you and

19

open that to Tab Number 10.

20

A All right.

21

Q Just for the record that’s been previously marked as

22

State Defendants’ Exhibit Number 10. Can you identify that

23

document for me, Dr. Allen?

24

A It looks like my CV.

25

Q That would be your curriculum vitae?

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A This is my CV, yes.

2

Q And is that a true and accurate copy?

3

A Except for the fact that there have been a few

4

additions since I’ve submitted this.

5

Q And what additions have there been?

6

A I’ve had three publications since then. The paper

7

“More Heat than Light” has been accepted for publication.

8

There’s a paper on “Household Production and Sexual

9

Orientation” that’s been accepted for publication. And

10

there’s a theory paper not really related to this case

11

that’s been accepted for publication.

12

Q Okay. With those --

13

A Sorry. Three papers have been accepted for

14

publication.

15

THE COURT: You don’t have to repeat it.

16

Also you should know that there’s another room

17

that they’re watching us and so forth that’s why we have to

18

stay by the microphones and for the folks in the audience.

19

Most witnesses don’t realize it. You can see the

20

little camera things, they’re watching it in other rooms.

21

THE WITNESS: Okay.

22

THE COURT: Thanks, Doctor.

23

BY MS. HEYSE:

24

Q With those additions, Dr. Allen, is that the extent of

25

your CV?

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A Yes.

2

MS. HEYSE: Okay. At this time, your Honor, I

3

would move for admission of State Defendants’ Exhibit 10.

4

THE COURT: Any objection?

5

MR. MOGILL: No objection.

6

THE COURT: Very well.

7

MS. HEYSE: Thank you.

8

(State Defendants’ Exhibit No. 10 received into

9

evidence.)

10

BY MS. HEYSE:

11

Q Doctor Allen, what is your profession?

12

A I’m a professor of economics at Simon Fraser

13

University.

14

Q And can you give the Court an overview of your

15

employment history?

16

A So I graduated with a Ph.D. in 1988. I was -- I had a

17

first job as an assistant professor at Carleton University

18

in Ottawa. I was there for two years.

19

In 1990, Simon Fraser offered me a job and the

20

way I put it, my wife took it. So I’ve been at Simon Fraser

21

since 1990.

22

I’ve had visiting appointments at other

23

universities, but I’ve been continuously employed at SFU

24

since 1990.

25

Q Okay. I’m going to ask you to try to slow down a

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1

little bit.

2

A Sorry.

3

Q Okay. Are you a full professor at Simon Fraser

4

University?

5

A Yes, I am.

6

Q And are you tenured?

7

A Yes.

8

Q And when you were tenured?

9

A I was tenured in 1994.

10

Q And when did you become a full professor?

11

A 2000.

12

Q What are your duties with respect to your position at

13

Simon Fraser?

14

A I teach four courses per year, both at the

15

undergraduate and graduate level. I sit on two department

16

committees each year. And I sit on various university

17

committees each year. Some years maybe none, but other

18

years maybe three or four. And I’m expected to do research

19

continuously.

20

Q Okay. Doctor Allen, your expert report indicates you

21

are the Burnaby Mountain Professor of Economics at Simon

22

Fraser University. How does one become a Burnaby Mountain

23

Professor?

24

A So in 2000, Simon Fraser created eight what they call

25

Burnaby Mountain Chairs. They’re endowed chairs so they

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basically supplement an income. They created eight, and I

2

was given one of them.

3

Q And how does one become a Burnaby Mountain Professor?

4

A They were given for excellence in research.

5

Q Okay. And is this considered to be a prestigious

6

honor?

7

A It is. There are about 1200 faculty members at Simon

8

Fraser so I was one of eight that got them.

9

Q And what courses do you teach at the University?

10

A So I teach a variety of undergraduate courses. I teach

11

what’s called microeconomic theory. Some people might just

12

call it economic theory. I teach that the first year, third

13

year, fourth year. I also teach it at the graduate level

14

sometimes.

15

I also teach a series of what we call seminar

16

courses at the undergraduate level and the graduate level

17

At the undergraduate level, I teach a course on the

18

economics of the family. I teach a course on law and

19

economics. And I teach a course on institutions.

20

At the graduate level I teach a course called law

21

and economics.

22

Q Do any of your courses cover the topics that we’re

23

going to discuss here today, marriage, parenting?

24

A So my course on the economics of family certainly

25

does. It covers all kinds of topics, divorce, marriage,

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births out of wedlock, fertility, and same-sex marriage.

2

The course on law and economics, there’s usually

3

a section on the family and there’s usually a small section

4

on same-sex marriage.

5

Q And that’s what I was going to ask you: Do any of your

6

courses cover same-sex marriage --

7

A Yes.

8

Q -- aside from that particular one that you just

9

mentioned?

10

A No.

11

Q Okay. Do you conduct research in your position?

12

A I do.

13

Q And does your research have any common themes?

14

A Yes, my research all link together through my work on

15

institutions. So my major contributions in economics for --

16

from an academic level really is this theory of

17

institutions. That’s what links it altogether. And I’ve

18

studied institutions in a variety of context. And about a

19

third of my research is related to the family as an

20

institution.

21

Q Just to be clear, what is institutional economics?

22

A It’s basically using economic methods, theories,

23

statistical methods to analyze institutions.

24

Q Okay. Have you received any honors in either your

25

academic or professional capacity?

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A Yes. So the important ones are the Burnaby Mountain

2

Chairs as an honor.

3

In 2000, I was also given Dean’s Medal for

4

outstanding work, outstanding academic work.

5

I’ve been an Erskine Fellow at the University of

6

Canterbury twice.

7

I received an Excellent Teaching Award from Simon

8

Fraser and from the University of Washington.

9

I’ve received numerous grants and research

10

rewards.

11

Q Okay. Have you sat on any academic or professional

12

boards?

13

A I sit on -- or I just came off of the Board for The

14

International Society for New Institutional Economics.

15

Q Are you affiliated with any organizations?

16

A So on and off I’ve been affiliated with The American

17

Economics Association, the Canadian Economics Association,

18

The Western Economics Association, The Canadian Law and

19

Economics Association. I think that’s about it depending on

20

whether I remember to fill out the renewal forms or not.

21

I’m usually a member of those associations.

22

MR. MOGILL: I didn’t get that part, I’m sorry.

23

BY MS. HEYSE:

24

Q He missed the last part of your answer.

25

A Well, the reason why I’m not continuously a member of

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those things is I often forget to fill out the renewal

2

forms.

3

Q Are you affiliated with an organization called the

4

Ruth Institute?

5

A Yes, they have what’s called a circle of experts and

6

I’m one of the circle of experts.

7

Q Okay. And what does that entail?

8

A It doesn’t entail very much. I’ve presented at a

9

couple of their conferences, some of my work on no-fault

10

divorce and same-sex marriage. I answer -- I’ve had about

11

half a dozen phone calls with the president of that

12

organization who will often ask me questions about either

13

the literature or some issue. I did a radio interview with

14

them on the replication of Rosenfeld Paper.

15

Q And what is the Ruth’s Institute?

16

A It’s a non-profit agency that tries to promote

17

families at the college level.

18

Q And what is their position on same-sex marriage?

19

A Opposed.

20

Q Do you have any affiliations with any other

21

organizations?

22

A No.

23

Q Have you been the beneficiary of any grants?

24

A Yes, I have. I’ve received numerous grants. With the

25

exception of a national science foundation grant and an

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early grant from Simon Fraser University all of my grants

2

come from The Social Sciences and Humanities Research

3

Council of Canada with is the federal granting agency of

4

the Canadian government equivalent to the NSF in the U.S.

5

Q And have any of those grants pertained specifically to

6

your work in research and the family?

7

A Yes.

8

Q Have you published any peer review articles?

9

A Yes, I have. I have 49 peer reviewed publications.

10

Q And what journals are you published in?

11

A All sorts of journals. So I’ve published in general

12

economics journals including the very best economics

13

journals, The American Economic Review. I’ve published

14

numerous times in field journals, and those fields would

15

include law and economics. Economic history, labor

16

economics, industrial organization, agricultural journals.

17

I’ve published in law journals. I’ve recently published in

18

a family journal.

19

Q Okay. How many of your articles pertain to the family?

20

A Twenty-nine.

21

Q And do any of your articles pertain to marriage?

22

A To marriage?

23

Q Yes.

24

A Most of those 29 pertain to marriage in one or

25

another.

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Q And how about same-sex marriage?

2

A Six papers published in same-sex marriage topics. I

3

have one working paper that’s about to be submitted.

4

Q And how many of those publications pertain to

5

empirical estimates of child outcomes?

6

A Three. Two have been published already, and one is

7

likely to come out in a book.

8

Q And can you identify those for me?

9

A So the first one is the demography paper that

10

replicates the Rosenfeld Study. The second one is the paper

11

that came out on high school graduation rates using the

12

Canada Census. And the third one is a paper coming out in a

13

volume that the Witherspoon Institute is putting out that

14

basically extends the Rosenfeld Study.

15

Q Okay. Thank you.

16

Have you published any books on economics?

17

A I have five books. Two books are theory textbooks. Two

18

other books are academic books. The fifth one is an edited

19

volume on the family.

20

Q Are you the editor of any journals?

21

A I have been the editor of The American Journal of

22

Agricultural Economics, associate editor.

23

Q What does it mean to be an associate editor?

24

A Essentially you’re the gatekeeper. You’re managing

25

files, sending things out to referees, making decisions on

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whether or not articles get accepted or not.

2

My role at -- that journal in particular was to

3

handle all the institutional papers that involved

4

agriculture.

5

Q And apart from your duties as an associate editor have

6

you ever been asked to review the works or others, articles

7

of others?

8

A Almost on a weekly basis.

9

Q Okay. And for what journals?

10

A Probably over 40 different journals. Not just

11

economics journals, but often family journals or journals

12

that may be in agriculture or -- mostly economics journals.

13

Q Okay. And what is the Delta Economics Group?

14

A The Delta Economics Group is a small consulting firm,

15

headed up by a friend of mine that I met when I was at

16

Carleton University. He’s an EBC professor of business and

17

economics. It mostly focuses in on antitrust. I’m one of

18

the senior consultants there.

19

Q Okay. And what kind of work do you do for -- as a

20

senior consultant?

21

A Essentially work like I’m doing now, writing reports

22

on various legal cases.

23

Q Does any of your work involve marriage or same-sex

24

marriage?

25

A Yes. So this is my fourth same-sex marriage case. I’ve

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worked on cases to do with child support guidelines, two of

2

them. And I’ve worked on a case, a small case on the value

3

of a housewife.

4

Q Okay. What other same-sex marriage cases have you been

5

involved in?

6

A The first case I was involved was the Helprin case,

7

the Ontario case in Canada, 2003-2004.

8

The second case I was involved was a small Irish

9

case where a couple had been married in Canada. They were

10

Irish and wanted a divorce.

11

The third case was the Perry case, Proposition 8

12

in California.

13

And the fourth is this one.

14

Q Okay. And you may have touched on this earlier but I’m

15

not certain so I’m going to ask again --

16

MR. MOGILL: Sorry --

17

MS. HEYSE: Sorry, Ken.

18

BY MS. HEYSE:

19

Q You may have touched on this earlier, but can you give

20

us a brief description of your academic background, your

21

educational background?

22

A I have an undergraduate degree, honors degree in

23

economics and business administration from Simon Fraser.

24

I have a master’s degree in economics from Simon

25

Fraser.

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I have a Ph.D. from the University of Washington.

2

Q And when did you receive your Ph.D.?

3

A 1988.

4

Q Okay. And what did you write your Ph.D. thesis on?

5

A It was a theory of marriage and divorce.

6

Q Doctor Allen, does Canada recognize same-sex marriage?

7

A Yes.

8

Q And when was same-sex marriage legalized in Canada?

9

A By statute, July of 2005.

10

Q Do you belong to any organized religion?

11

A Yes.

12

Q And what religion do you belong to?

13

A The Protestant faith as a religion, but the specific

14

church I attend is called a Christian and Missionary

15

Alliance.

16

Q Do your religious views impact your research?

17

A No.

18

Q Have you conducted research continuously since 1988?

19

A I have.

20

Q And have you conducted original research on issues

21

pertaining to the family?

22

A Yes.

23

Q And have you conducted research on issues pertaining

24

to the marriage and same-sex marriage?

25

A Yes.

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Q And have you conducted original research on same-sex

2

couples, the outcomes for same-sex -- children raised by

3

same-sex couples?

4

A Children of same-sex couples, yes.

5

Q Thank you.

6

Have you also completed a literature review of 60

7

studies addressing the outcomes of same-sex couples?

8

A Yes, I have.

9

Q Do you consider yourself to be an expert in any

10

specialty or subcategory of economics which may be

11

pertinent to this case?

12

A So my expertise lies in this area of the economics of

13

institutions, institutions being the humanly devised

14

constraints that we live by. Since marriage is an

15

institution that theory is applicable in this case. I also

16

do a lot of empirical work, and the empirical work is

17

applicable in this case.

18

Q And why are you interested in family and marriage as

19

economic institutions?

20

A So I’ve always found marriage and family in general

21

interesting and fascinating institution. At the one level

22

it’s something that we -- in our day-to-day experience, we

23

all experience it and know about it. But the more you

24

examine it, and think about it, it’s very rich and

25

complicated.

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So as an economist, I just find it interesting to

2

try to come up with theories to explain what’s going on.

3

But also, I mean, over the last 40 years we’ve been living

4

through a revolution in family law, and that provides

5

excellent opportunities to test theories of marriage.

6

Q Thank you. And what type of methods do you use in your

7

research?

8

A Both theoretical and empirical. So my standard

9

procedure would be to develop some kind of a model of

10

whatever kind of behavior I’m interested in, generate

11

hypotheses and then try and test them.

12

At the same time I’ve also replicated other

13

studies or where I’ve gone in and just done an empirical

14

research or tried to measure something.

15

Q Have you received any additional training in empirical

16

research methods?

17

A So as an undergraduate and a graduate student, I was

18

trained in statistics and econometrics. Econometrics is the

19

training in specific problems that arise with economic and

20

social science data, the special statistical techniques

21

that you need to deal with. But continuously since 1988, I

22

worked with all kind of data sets, large data sets, small

23

data sets, private data sets, public data sets, rectangular

24

data sets and -- with all different kinds of programming

25

languages as well.

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Q Are you a social scientist?

2

A I am a social scientist. So to me that means as a

3

scientist I use a scientific method, namely, developing

4

theories, formalizing them, developing test Y-hypotheses,

5

and then actually testing them.

6

It’s social because I’m interested in social

7

phenomena, behavior of people, organizations, how we

8

organize life, etc.

9

Q What opinions do you plan to offer here today?

10

A I’m planning to offer the opinions of my report,

11

namely, to discuss the literature since 1995, on child

12

outcomes. Specifically, I’m interested in -- or plan to

13

report on the Rosenfeld studies, the issue that are

14

involved there and why there’s more to it than just what

15

Rosenfeld presented.

16

I plan on presenting my High School Graduate

17

Rates paper and discuss that as well.

18

Q Thank you.

19

MS. HEYSE: At this time, your Honor, I would move

20

to qualify Dr. Allen as an expert in applied economics with

21

a speciality in institutional economics, empirical methods,

22

and the family.

23

THE COURT: Any objection?

24

MR. MOGILL: No.

25

THE COURT: He shall be received as an expert.

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MS. HEYSE: Thank you, your Honor.

2

BY MS. HEYSE:

3

Q Doctor Allen, are you familiar with social science

4

studies that claim that there are no difference in child

5

outcomes in same-sex parented households?

6

A Yes, I am, in particular with respect to studies since

7

1995.

8

Q And did you, in fact, conduct an exhaustive survey of

9

child outcome literature from 1995 until 2013?

10

A I tried to be as exhaustive as I could. I may have

11

missed a few things, but, yes.

12

Q Okay. If you could refer to what’s been previously

13

been marked as State Defendants’ Exhibit 12, in the binder

14

before you.

15

A Okay, I’ve got it.

16

Q Can you identify this document for me?

17

A This is my paper, “More Heat Than Light: A Critical

18

Assessment of the Same-Sex Parenting Literature, 1995-

19

2013.”

20

Q Is this the study that you did for the outcomes

21

literature?

22

A This is my literature review, yes.

23

Q And does that appear to be a true and accurate copy of

24

your literature review?

25

A Yes.

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MS. HEYSE: At this time, your Honor, I would move

2

to admit State Defendants’ Exhibit 12.

3

THE COURT: Any objection?

4

MR. MOGILL: No.

5

THE COURT: Twelve will be received.

6

(State Defendants’ Exhibit 12 received into

7

evidence.)

8

BY MS. HEYSE:

9

Q Doctor Allen, how did you become interested in

10

evaluating this literature?

11

A It’s really a question of one thing being connected to

12

another. So I was asked to be an expert in the Helperin

13

case. I wrote a report for that case. A couple years later

14

I presented that at the Harvard Law School. I was asked if

15

I would submit it to one of their journals. I did. It was

16

accepted. I believe out of that, I was asked to work on the

17

Proposition 8 case. Out of that, came a paper I published

18

in the Drake Law Review trying to articulate my views of

19

the whole issue.

20

One of the responses to both of those theoretical

21

arguments was, you know, where is the empirical validity

22

behind them. So that started me on sort of a quest to

23

gather data, work on problems, fertility, matching,

24

household product, that sort of thing.

25

In the context of that I started reading the

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child outcomes literature. Initially this paper was just --

2

it was just starting -- it was a way of keeping track of my

3

note. And when I was finished. I realized I had something

4

to say in a broader sense, the critique of the literature.

5

So that’s where this paper came from, and sort of all the

6

other subsequent papers came out of those earlier things.

7

Q Can you tell the Court how many studies were part of

8

this literature review?

9

A Sixty.

10

Q Okay. Did you include of your own studies within that

11

review?

12

A Yes.

13

Q And which studies are those?

14

A The demography paper, 2013, which is the replication

15

of Rosenfeld and the High School Graduation Rates paper.

16

Q And was your assessment of the same-sex parenting

17

literature done based on the standards in economics?

18

A Yes, but also just the general standards in social

19

science.

20

Q Are these standards commonly held?

21

A I believe they are. So, for example, you know, there’s

22

a matter of sample size in the report. It’s generally held

23

that the larger the sample size the better, other things

24

equal.

25

Q Doctor Allen, do you believe it’s important to

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minimize or eliminate bias in social science research?

2

A I think it’s absolutely critical. If all you’re

3

interested in doing is studying a small group on their own

4

then it doesn’t really matter. But if you’re interested in

5

generalizing your findings to talk about a broader

6

implication of your findings then it’s absolutely critical

7

to have an unbiased sample because otherwise you’re going

8

to end up making a mistake in your generalizations.

9

Q Is it also important to have random representative

10

samples?

11

A That’s the way we eliminate bias is to have random

12

samples, one of the ways.

13

Q And is it preferable to have tests that can be

14

replicated by others?

15

A I think that’s also sort of critical for the general

16

authority of a paper. If you do something that nobody else

17

can replicate I think the paper has less merit.

18

Q And do you believe it’s imperative for subjects to

19

have an incentive to report honestly and to not have an

20

interest in the outcome?

21

A Absolutely because if somebody’s telling you something

22

that’s not true then your study is basis from the get go.

23

You may be completely unaware of the bias and making

24

generalizations based on claims that are false.

25

Q Is it also important in social science that the people

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who collect the data be different from those that analyze

2

it?

3

A I just think it’s a good idea that -- in typical

4

studies in economics we’re using data that’s collected by

5

statistical agency. They’re the -- you know, it’s the U.S.

6

Census, Canada Census or Stats Canada or Department of

7

Labor or whatever. So the people that are collecting the

8

data have no idea what that data is going to be used for.

9

So it’s sort of a safeguard.

10

You know, in preliminary studies, it’s very

11

common for people to collect data and analyze it. But it’s

12

just, again, something that’s a red flag if you’re trying

13

to generalize things.

14

Q You mentioned that it’s important or preferable to

15

have large sample sizes. Why is that important?

16

A Large sample sizes help to generate power. Power is

17

the ability to reject a no-hypothesis when, indeed, it’s

18

false. If you don’t have power, you’re unable to do that.

19

There’s too much noise in the data, and you can’t tell if

20

it’s false when it actually it is.

21

Q Okay. So we’re going to define some of these terms

22

that you just used.

23

A All right.

24

Q Can you explain to the Court what a “no hypothesis”

25

is?

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A “No hypothesis” is the hypothesis that you’re

2

interested in testing. So in this literature the “no-

3

hypothesis” often is there is no difference.

4

Q Okay. And can you tell me what “noise” is?

5

A So you have a sample and the sample is a number of

6

observations. And that number of observations is giving you

7

some information. From that information you’re going to

8

make an estimate of something. So often you’re estimating a

9

perimeter. Suppose you’re estimating this perimeter on

10

average. So maybe you estimate the perimeter as three.

11

By “noise” we mean what’s confident, what’s a

12

confidence band around that estimate? How wide is it? So

13

you estimate the number should be three. But maybe you have

14

a confidence band that says 19 times out of 20 that number

15

could actually be a minus two or a plus seven. You say

16

there’s quite a wide range that could happen. If I was

17

drawing from the same sample size 19 times out of 20, I

18

would have this wide range. So that’s what we mean by

19

“noise.” Lots of “noise” means there’s a wide range.

20

Having a precise estimate means that that

21

confidence interval is narrow. So maybe you say, well, the

22

estimate is three, but it would be 2.9 -- between 2.9 and

23

3.1, 19 times out of 20. So that would be a precise

24

estimate. That’s what you get when you get power. Power

25

gives you these narrow confidence bands which you have more

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confidence in the estimate.

2

Q Thank you.

3

So, Dr. Allen, did you reach any conclusions

4

about the child outcome literature that you reviewed from

5

1995 to 2013?

6

A I did. So prior to 2010, and a few of the studies

7

after 2010, they’re just simply not generalizable. They are

8

to be charitable. They’re preliminary studies, what I would

9

call preliminary. So they have all these characteristics

10

that up on the screen there that they use small samples.

11

They use bias samples.

12

They’re biased because often they’re what’s

13

called convenient sample. And a convenient sample is a

14

sample that’s literally convenient to derive.

15

Many times samples are what are called snowballed

16

which means members in the sample talk to their friends to

17

join the sample.

18

There’s evidence of research bias where people

19

who are reporting are either coached or the results are

20

interpreted by a certain world view, something like that.

21

They’re characterized by what I call soft

22

measures, measures that are difficult for a third party to

23

replicate, and probably contain lots of measurement error

24

because they’re hard to measure.

25

And then it’s also a literature that I think is

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virtually impossible often to replicate. The data is not

2

available for others. It’s considered proprietary. The code

3

that is being used is not publically available. It’s not

4

posted on line or anything like that. So it’s almost

5

impossible to replicate.

6

So all those things are fine for preliminary

7

studies, but they’re not generalizable to the general

8

population.

9

Q Okay. What does it mean by difference of means test

10

with no power?

11

A So how these studies are structured is they’ll have a

12

sample of usually lesbian households. Then they’ll try to

13

match them with some other sample of heterosexual

14

households. Most of the time they try that. Sometimes they

15

don’t. But so they’ll have one sample of lesbian

16

households, a sample of heterosexual households, and then

17

they’ll calculate some averages, some means. Then they’ll

18

conduct a difference of means test. It’s just a simple

19

little statistical test to see if there’s a statistical

20

difference in these means, and they almost always find

21

there is no statistical difference.

22

Now, there’s two things about that. The reason

23

why they’re usually not finding a difference is just simply

24

because they have no power. Their samples are so small,

25

there’s so much noise that they can’t tell the difference.

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One study had a three, the other one had a zero.

2

There is a difference, but the confidence bands are so wide

3

that they can’t statistically distinguish them.

4

The interesting thing about this literature is

5

that a difference of means test is founded on the

6

assumption that the samples are random. Samples are never

7

random and so the tests are completely irrelevant and

8

inappropriate.

9

Q Okay. You mentioned false measures. Can you explain

10

what those are?

11

A So as I mentioned, I mean, these are things that

12

conceptually are difficult to measure so you’re asking

13

about somebody’s attitude towards something, how they feel

14

about something as oppose to what I would call a hard

15

measure which is more quantifiable, did you graduate from

16

high school, yes or no. Have you been arrested, yes or no.

17

Q In conducting your literature review, Dr. Allen, how

18

many of the 60 studies that you reviewed failed to have

19

random representative samples?

20

A About 54 or 55.

21

Q How many of them failed to have tests that could be

22

replicated by others?

23

A With the exception of the Rosenfeld Study I would say

24

all of them.

25

Q Okay. How many of those 60 studies had the same people

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collecting data as the people analyzing the data?

2

A Again, with the exception of the large sample studies

3

virtually all of them.

4

Q Okay. And how many of those studies did not have

5

sample sizes large enough to generate power?

6

A Again, aside from the large sample studies which is in

7

the neighborhood of four or five them, all the others.

8

Q Were there any other flaws that you noted in these

9

studies that you haven’t already addressed?

10

A One of the interesting things about these studies is

11

that when they come to the conclusions, the conclusions

12

often are either unrelated to the actual findings or are

13

exaggerated claims about the findings.

14

The other interesting thing is often they do find

15

lots of differences but -- they often do find differences,

16

but they’re often downplayed.

17

Q Okay. And as part of your literature review did you

18

compile a table of all --

19

A I did, and part of that table is on the screen now. So

20

the table just goes through and shows whether or not they

21

use a random sample or not. And that table is showing the

22

early studies from ‘95. You’ll notice there’s a whole bunch

23

of noise there. So you don’t see any random samples showing

24

up until later on in the sample.

25

The next column shows the gay sample size or the

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same-sex sample size. You’ll see the numbers are relatively

2

small, 55, 30, 26,25, etc.

3

The next column shows my judgment on whether the

4

questions looked at were hard or soft. About 16 of them

5

used hard objective measures. Most of them used soft.

6

The next column is showing whether or not there

7

was a group that was being compared to or not. You see

8

sometimes there is, and often there’s not.

9

The next column is showing whether or not these

10

data are time series. For the most part they’re not.

11

They’re not what we call longitudinal. They’re mostly

12

cross-sectional. All of the large sample studies are cross-

13

sectional. We don’t have any longitudinal ones.

14

And then the last column is finally just looking

15

at whether or not these studies looked at gay households or

16

lesbian households. And for the most part they look at

17

lesbian households. If they do look at gay households the

18

sample sizes are usually very small.

19

Q Thank you. Out of the 60 studies that you reviewed how

20

many met the criteria for reliable data meaning the data

21

set is large, it’s variable, it’s replicable, it’s

22

longitudinal and it’s population base?

23

A Well, by all of those criteria, actually none of them

24

do. So the -- that’s because none of them are longitudinal.

25

If you get rid of the longitudinal criteria then

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you’re looking at really about I think three studies.

2

Q So based on your literature review, are the typical

3

gay and lesbian parenting studies that examine hard

4

quantifiable measures of performance and adjustment in the

5

minority?

6

A Absolutely.

7

Q Doctor Allen, up until 2010, was there a single study

8

conducted that utilized a sufficiently large random sample?

9

A No.

10

MR. MOGILL: What was the first part of the

11

question? I’m sorry.

12

THE COURT: Why don’t you repeat it?

13

MS. HEYSE: I can repeat it. Sure.

14

MR. MOGILL: Thank you.

15

BY MS. HEYSE:

16

Q And can you identify those studies after 2010 that

17

utilized a large -- utilized a large random sample?

18

A So the first was Rosenfeld. That’s why I call his

19

paper a watershed paper is because it was so different that

20

what came before it.

21

The second one would be the replication of that

22

study by myself, Joe Price, and Catherine Pakaluk.

23

The third one would be my study which is

24

essentially conducting the Rosenfeld-type experiment using

25

the Canada Census.

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And then if you want to include the forthcoming

2

paper by myself, Catherine and Joe that sort of goes back

3

and reexamines and extends the Rosenfeld experiment with

4

the U.S. Census --

5

MR. MOGILL: Object to the reference to the

6

forthcoming paper that’s not --

7

THE COURT: Sustained.

8

MR. MOGILL: Ask that it be stricken.

9

THE COURT: I won’t strike it, but we won’t

10

consider it.

11

MR. MOGILL: That’s good enough for me.

12

Thank you, Judge.

13

MS. HEYSE: Thank you.

14

BY MS. HEYSE:

15

Q You mentioned the Rosenfeld Study and noted --

16

THE COURT: Doctor, so you know, because it’s

17

beyond the scope of what hasn’t been published yet they

18

can’t cross-examine.

19

THE WITNESS: No problem.

20

BY MS. HEYSE:

21

Q You mentioned the Rosenfeld Study and you believe it’s

22

a watershed study; correct?

23

A Correct.

24

Q Do you still agree with that statement?

25

A Yes.

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Q Okay. But is it fair to say, Dr. Allen, that based on

2

your replication of Rosenfeld’s Study you don’t agree with

3

his results?

4

A I don’t agree with the results, and I don’t agree with

5

the interpretation of his results.

6

Q Okay. And we’ll talk about that more in a little bit.

7

Doctor Allen, did you also review Dr. Regnerus’

8

2012 NFSS Study?

9

A I did. It was part of the papers.

10

Q Okay. And what was the significance of that study?

11

A I think in the context of the time, I mean it was

12

similar to Rosenfeld in a number of ways so I believe he

13

was looking at that literature and saying, okay, I’d like

14

to do a study that tries to get a random sample that has a

15

large sample size and asks some hard questions. One of the

16

interesting things about his study is he asks a lot of

17

questions, looks at a lot of different outcomes. So I think

18

he was attempting to do the same thing. He was obviously

19

working on it at the same time Rosenfeld was working on

20

his. So in terms of where it fits in that literature I

21

think that was the objective of that study.

22

MR. MOGILL: The last part of that answer --

23

A I think his study fits in that literature sort of in

24

the same place where Rosenfeld’s did in that he was trying

25

to get a large sample with a hard objective measure of

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child outcomes and a random sample.

2

BY MS. HEYSE:

3

Q Okay. Doctor Allen, then in 2013, you conducted a

4

similar study to Rosenfeld’s using the 2006 Canada Census.

5

A Yes.

6

Q Okay. Without going into too much detail because we’re

7

going to discuss it later what was the purpose of that

8

study?

9

A I was working with the Canada Census on another

10

project and so I had the data all uploaded, I was familiar

11

with it, etc. At the same time, I was also working on the

12

replication of the Rosenfeld paper with Joe and Catherine.

13

So it was no stroke of genius, I mean, it was kind of

14

obvious to say why don’t I try to do exactly the same

15

experiment using the Canada data and see if, you know, what

16

happens. Maybe I get a totally different result, maybe I

17

get a similar result. So I was merely trying to --

18

“replicate” is probably the wrong word, but to try to do

19

the same type of experiment in Canada as had been done in

20

the U.S.

21

Q Besides your review of the literature have there been

22

any other critical surveys of same-sex parenting literature

23

that you’re aware of?

24

A To my knowledge there’s five other critical surveys.

25

One was by a sociologist named Steven Nock. He was also an

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expert in the Helprin case and his literature review was

2

done for the Helprin case.

3

He studied essentially the literature up to 2001,

4

and concluded that nothing in the literature met the

5

standards of social science research.

6

The second study was by Loren Marks who examined

7

the literature up to 2005, but the literature that was

8

relevant to the APA Statement on child outcomes. He

9

concluded that conclusion of the APA was not warranted on

10

the empirical merits of those papers.

11

And then a fellow named Walter Shumm has produced

12

three critical surveys, one in 2005, one in 2011, and I

13

believe one in 2012.

14

MR. MOGILL: I’m going to object to these that

15

have not been included in his report.

16

THE COURT: Counsel?

17

MS. HEYSE: Well, your Honor, he’s just discussing

18

things that he relied on and reviewed for purposes of his

19

report.

20

THE COURT: So far we haven’t gotten -- but --

21

he’s talking about these five as being critical and just

22

giving us a background. I’m not sure where you’re going,

23

but if they’re not in his report in terms of substance then

24

we’ll have to talk about it at that point.

25

MR. MOGILL: Thank you.

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MS. HEYSE: And we’re not going to go into them

2

any further, your Honor. That’s the extent of it.

3

THE COURT: That’s fine.

4

BY MS. HEYSE:

5

Q Doctor Allen, as a result of the flaws you’ve

6

recognized in the literature, did you determine whether a

7

significant majority of these studies were not

8

generalizable to the population?

9

A That’s correct.

10

Q And in your -- you have stated that you believe that

11

all of these studies before 2010 can only be viewed at best

12

as preliminary and at worst they would be seen as trying to

13

forward a political agenda. What do you mean by that?

14

A By preliminary what I mean is, is that these studies

15

have the characteristics of early studies in almost any

16

kind of research program. So there’s maybe no data

17

available so you have to go look for it yourself. You have

18

to collect it yourself. You have to analyze it yourself,

19

etc. You’re using bias samples. You know, you’re

20

interpreting it your own way. Nobody is replicating your

21

results. All these sorts of things. So by preliminary

22

that’s what I mean. It has these characteristics.

23

By putting forth a political agenda I just mean

24

that when you look at the conclusions that are being drawn,

25

when you look at the research or bias, it seems pretty

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obvious that the researchers have, you know, their -- they

2

feel strongly about the results they’re finding, they’re

3

not being very objective.

4

Q Okay. Doctor Allen, plaintiffs’ experts have urged

5

that based on these sample -- small convenient sample

6

studies there’s a consensus that there’s no difference in

7

child outcomes for children raised in same-sex households

8

as compared to children raised in opposite sex households.

9

In others that the children of same-sex parent fair just as

10

well as intact biological household, and that that issue is

11

settled. As an applied economist who has an expertise in

12

empirical research methods and based on your literature

13

review spanning from 1995 to 2013, do you agree with that?

14

A I certainly agree there’s a consensus. Everybody

15

agrees that these studies come to the same conclusion. The

16

question is: is that consensus warranted or not, and I

17

would say no. The fact that you have, you know, 55

18

preliminary studies doesn’t give you -- that doesn’t add up

19

to a, you know, a legitimate study that we would draw a

20

strong conclusion from.

21

And even on the large sample random studies, the

22

few that have been done I would say we’re just getting in

23

the door. We have a long way to go to understand what’s

24

going on here.

25

So, consensus, yes. Do I agree with the

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consensus, no. And do I think the consensus is warranted,

2

no.

3

Q And you mentioned the large studies that are

4

available, is it fair to say that when you look at those

5

large studies or the majority of those that there is an

6

actual difference in outcomes of children in same-sex

7

households as oppose to those being raised in opposite sex

8

households?

9

A So really we only have two. We have the U.S. Census

10

results and the Canada Census results, and they’re only on

11

two measures of child performance. When it comes to the

12

U.S. Census results we have a dispute between the Rosenfeld

13

and us. So I would certainly come down on our side and say

14

that the evidence supports there is a difference. And on

15

the Canada side, I would say the evidence supports a

16

difference. But, again, I would say these are just two

17

studies, two outcome measures and we’re just getting

18

started.

19

Q What that being said, Dr. Allen, do you believe these

20

studies should be considered as evidence for purposes of

21

changing Michigan marriage law?

22

A Why I think the large sample studies should be

23

considered as evidence because it’s really all we’ve got.

24

Q Okay. Let’s turn now to your replication of the

25

Rosenfeld Study.

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A All right.

2

Q First, can you tell the Court just briefly about the

3

Rosenfeld Study, I mean, what was it about, what was he

4

attempting to do there?

5

A So he was using the U.S. Census and he was asking the

6

question -- his child outcome measure was normal progress

7

through school. He was running a regression, and he was

8

trying to see does the household type matter for a child’s

9

normal progress through school. That’s what he was trying

10

to do.

11

Our study had -- really brings up three issues.

12

The first issue is what did he actually find?

13

Rosenfeld claims that he found evidence for no

14

difference in normal progress through school. We claim

15

that’s a misinterpretation. That what he actually found was

16

no statistical difference between the two types of

17

households.

18

The second issue that we have is he had two what

19

are called sample restrictions. He eliminated certain

20

observations from the data. We think the first sample

21

restriction is not appropriate.

22

The second sample restriction that he did we also

23

think it’s -- you know, it’s a question of do you control

24

for this thing one way or another. We think the standard

25

way is with a control in the regression. He thinks it

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should be used by sample restrictions. So we dispute that.

2

Q Okay. Just to be clear for the record when you are

3

saying that “we” --

4

A I’m referring to Catherine, Joe and myself.

5

Q So that would be the Allen, Pakaluk and Price Study?

6

A That’s right.

7

Q Okay. If you can refer State’s Exhibit 9 which has

8

already been admitted into evidence?

9

A Correct.

10

Q Can you identify that as a study --

11

A This is our comment that appeared in Demography.

12

Q Okay. So you’ve mentioned three areas or issues that

13

you took with the way that Rosenfeld conducted his study.

14

So let’s take those in order.

15

First, you mentioned the finding that there was

16

no difference. Can you explain that?

17

A Sure. So maybe the way I’ll explain this, I’ll go

18

through Table 2 of that paper and then maybe I’ll refer to

19

the Table that’s on the overhead there.

20

Q Sure.

21

A So one of the interesting things about his study was

22

that when he reported his results he did not include the

23

standard errors. So he’s making an estimate. He’s

24

estimating a perimeter that -- on the effect of being

25

raised in a same-sex household. And there’s some error in

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that estimate I’ve talked about before, some variance, and

2

he doesn’t tell us what that is. He just tells us whether

3

there’s a statistical significant effect or not.

4

So the first thing that Joe did, he was the one

5

who did the actual empirical work here, was he said well

6

let’s just --

7

Q Let me stop you there. If you’re going to refer to

8

“Joe” --

9

A Joe Price. I’m sorry.

10

Q Thank you.

11

Go ahead.

12

A The first thing that Joe Price did was he switched the

13

left out category. Now let me explain.

14

So when you run a regression you have these

15

different household types. We have opposite sex married

16

households. Same-sex households. Single moms. They’re

17

listed up there, “never married women, etc.”

18

So when you run the regression the coefficients

19

you’re getting for same-sex, for heterosexual cohabiting,

20

for separate divorced women, etc., all of those

21

coefficients are relative to the left out category, the

22

married opposite sex households.

23

And so when he ran his regression he found that

24

there was no statistical difference. You see that middle

25

column there. There’s no statistical difference between a

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same-sex couple and a heterosexual married couple.

2

But then he found -- if you look at the “yeses”

3

there, he found a statistical difference between those

4

types of households and the comparison group which are the

5

heterosexual married households.

6

So the first thing that Joe Price did is he said,

7

well, let’s switch, let’s switch the left out category. And

8

so the left out category becomes the same-sex couple. So

9

now all of the comparisons are to the same-sex couple, not

10

the heterosexual married couple. And look what happens --

11

so you still get the same “no” when you compare

12

heterosexual married to same-sex you still get “no.”

13

There’s still -- you still get the same result.

14

And if you were to look at Table 2, if you look

15

at, say, column 1 and column 2 there you get exactly the

16

same estimate and that’s because it doesn’t matter which is

17

the left out category if you’re comparing married --

18

heterosexual married to same-sex, or same-sex to

19

heterosexual married you get the same result. So that

20

doesn’t change.

21

But look at what happens to all the other ones.

22

Same-sex couples are not statistically different from any

23

of the categories that are listed there. Now why is that?

24

It’s because there’s so much noise in the estimate of the

25

same-sex couple that you can’t distinguish them from

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anyone.

2

So, again, if you look at Table 2 he actually

3

finds a difference. The number that he’s estimating there

4

is not zero in column 1 and 2. A zero would mean there’s no

5

difference. Or in columns 3 and 4 when you look at the odds

6

ratio, an odds ratio of 1 would mean that there’s no

7

difference. So he finds a difference. It’s just you can’t

8

tell if that difference is statistically meaningful or not.

9

He concludes that there’s no difference when, in

10

fact, there is, it’s just not statistically different.

11

That’s a very subtle point, but it’s a very

12

important one.

13

Q Okay. And just to be clear when we’re looking at the

14

chart that’s on the screen here, which one represents the

15

work that you did?

16

A The far right-hand column.

17

Q Okay.

18

A And the middle one is just what Rosenfeld found.

19

Q Okay.

20

A What he reported.

21

Q Thank you.

22

A I mean, it’s important to realize here we’re using

23

exactly the same data. We’re not changing anything. We’re

24

just doing what he did. All we’re doing is switching the

25

left out category and it just shows you how the

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interpretation changes, right? You realize that the same-

2

sex couples are not statistically different from any of

3

those other categories.

4

So if I use his same logic you’d have to say,

5

well, there’s no difference between a same-sex couple and

6

never married men as household heads if we use the same

7

logic. Of course, that would be improper.

8

Q Okay. Thank you.

9

If you could tell me -- you said there were

10

issues, two issues with sample restrictions. Let’s take

11

what we’re calling the own child restriction first. First,

12

explain what the own child restriction is and then why you

13

took issue with that.

14

A So the issue is in all these studies is you’re always

15

trying to compare apples to apples. The way you do that

16

normally in a regression is you control for things. So you

17

tell the computer, okay, here are the people’s incomes. So

18

hold that constant when you’re making an estimate on the

19

household type. Here’s the ratio background, or here’s

20

whatever. Here are all these demographic controls. That’s

21

the normal way you do it.

22

Another way you could do it is you throw away

23

observations that you think belong to a certain category

24

and it would be inappropriate to be in there.

25

So his first sample restriction is based on own

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children. He said, okay, I only want children in the same-

2

sex households that are the own child of the parents. Well,

3

the way the Census defines “own child” is: are you related

4

to the household head? And that’s the criteria he used for

5

selecting. So he threw away I believe it’s in the

6

neighborhood of 15 percent of the sample.

7

It turned out though that three quarters of those

8

people that he -- observations that he threw out, three

9

quarters of them were the own child of the partner. So

10

they’re the own children in the household, they’re just not

11

the own children of the one -- of the household head. So

12

really by his own criteria, they should have been in there.

13

If you put them in so all you have is the own children, the

14

very criteria he wants, you not only find a difference

15

again but you find a statistical difference.

16

The other types of children that he threw out are

17

adopted children, children in quarters, etc. It turns out

18

that’s such a small sliver that it really doesn’t matter if

19

they’re in or out, but in our replication we put them in

20

and we control for them. So we tell the computer this is an

21

adopted child, etc. So the computer again when the computer

22

is calculating the estimate of the same-sex household it’s

23

controlling for the fact that the child is adopted, etc. So

24

that’s the first issue, the own child one.

25

The second one is this five-year residency

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business. So the problem is this: We know that a lot of

2

children, most of these children, in same-sex households

3

are arriving there from a previous heterosexual coupling,

4

either married or cohabiting. And so there was a previous

5

divorce or separation or some kind of trauma, a transition

6

that was experienced in the household. And it’s important

7

to control for that whether or not there was a transition

8

or not and this is a problem when you’ve got a cross-

9

section data set like a census because it’s just a

10

snapshot.

11

And so Rosenfeld’s attempt to control for that

12

was to use a proxy variable. He doesn’t know whether there

13

was a transition or not, but he uses a proxy. And his proxy

14

is five years ago were you living in the same residence?

15

Now, that’s not -- living in the same residence

16

doesn’t mean that you did not experience a transition. And

17

when you don’t live in the same residence that doesn’t mean

18

that you had a divorce. Many people move houses and don’t

19

have a divorce. So it’s a proxy. It’s correlated, but it’s

20

not the exact same thing.

21

So he drops people from the sample if they did

22

not have the same five-year residency. So he’s clearly

23

dropping people that never had a transition, but, you know,

24

just happened to move.

25

That turns out to have a huge cost, a huge cost

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in terms of power because it eliminates about half the

2

sample. And because -- well, it’s likely it turns out that

3

five-year residence variable is highly correlated with

4

same-sex households. So he not only dropped half the

5

sample, but he drops a disproportionate number of same-sex

6

households. And when you drop the sample size, you lower

7

the power, you raise the standard errors and you get this

8

less precision. That’s why you can’t distinguish these

9

household from anybody.

10

So what we do, we do a more standard procedure by

11

including those couples back into the sample, and

12

controlling. So we still tell the computer these couples

13

moved in the last five years. That’s important. It’s not

14

just that we throw them back in and ignore the fact that

15

they’ve moved. So we throw them back. And as a result, we

16

find that we get a difference measure again, and with

17

statistical significance.

18

So if we just eliminate the first sample section,

19

the own child, we find a difference. We find it

20

statistically significant. If we just include the five-year

21

residency control, throw them back in, we find a difference

22

statistically significant. And if we put them both together

23

we, of course, find a difference and it’s statistically

24

significant.

25

Q Okay.

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THE COURT: We’re going to take just a quick

2

recess. I have to attend to something this morning and I

3

forgot to tell my secretary. So we’ll take -- I’m sorry,

4

Doctor. We’ll take just a quick five minutes. No more than

5

five minutes because we are going to break at 11:00. That’s

6

what I have to talk to my secretary about. We’re suppose to

7

have a matter and I’m not sure we’re going to have it.

8

We’ll stand in recess.

9

(Court recessed, 10:15 a.m.)

10

(Court reconvened, 10:25 a.m.)

11

THE COURT: Okay. You may be seated.

12

You may continue.

13

MS. HEYSE: Thank you, your Honor.

14

BY MS. HEYSE:

15

Q Doctor Allen, when we left off you were explaining

16

some of the problems that you saw with the Rosenfeld Study.

17

Did you determine that there were, in fact, actual

18

differences between children’s progress in same-sex

19

households when compared with opposite sex households when

20

you did your replication?

21

A Yes. So when you change the sample restrictions to

22

have controls and put the data back in you do find a

23

difference. But Rosenfeld also found a difference, it’s

24

just now the difference is statistically significant.

25

Q Okay. And is it also precise?

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A Yes, it’s more precise, the estimate is more precise.

2

Q Okay. Are you aware of any criticisms that Dr.

3

Rosenfeld had of your replication?

4

A The Canada one?

5

Q No, your -- the replication of his study.

6

A Well, he seems to feel that you absolutely have to use

7

a sample --

8

THE COURT: Rosenfeld, did he communicate that to

9

you or through a paper?

10

THE WITNESS: Only through his reports.

11

THE COURT: Okay.

12

THE WITNESS: I only read his report.

13

THE COURT: Okay.

14

A So he insists that it’s essential to have this five-

15

year residency as a sample restriction.

16

Again, I think it’s important in that debate, two

17

things: One, it’s only a proxy variable. So when you make

18

that sample restriction you’re introducing error because

19

people may have not moved and they could be having a

20

separation although it might seem unlikely. But many people

21

do move and, in fact, there is no marital transition. So

22

that’s one issue.

23

So -- yes, it’s a proxy. It’s not really

24

capturing exactly what you think it’s capturing.

25

Now, I just lost the second point.

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THE COURT: Think about it.

2

THE WITNESS: Yeah, I’ll think about it.

3

THE COURT: Moving?

4

BY MS. HEYSE:

5

Q We can come back to it. If you think of it, certainly

6

let me know.

7

A I’ll let you know.

8

Oh, I know what it was.

9

THE COURT: Okay. Go for it.

10

A In the end, this is just a dispute over the way the

11

method of how to control for this issue of transition. We

12

control for it one way which we think is a standard way you

13

control it. And the reason why it’s standard is because,

14

you know, you don’t want to be throwing data out all the

15

time because you’re losing power. So he controls for it one

16

way. We control for it another way. That’s the dispute, and

17

it turns out that the result is sensitive to the method

18

which is another way of just saying you should be careful

19

in how much weight you put on this one study because the

20

result is sensitive to just the mere method of controlling

21

for an issue.

22

THE COURT: So he controls it --

23

THE WITNESS: Through a sample selection.

24

THE COURT: Through samples. And you do it by

25

regression?

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THE WITNESS: Well, no. He’s running a regression,

2

too. It’s just that his regression does not include these

3

households that moved in the last five years.

4

Our regression includes them, but we add another

5

variable in the regression that says did you move in the

6

last five years? Yes or no. And so we’re telling the

7

computer these observations take account for the fact that

8

they did move.

9

THE COURT: Okay. So that’s all you’ve done, but

10

you’ve used the regression also.

11

THE WITNESS: We’re both running regressions, and

12

the only difference --

13

THE COURT: The samples are different.

14

THE WITNESS: Is the sample size, and the fact

15

that when we put -- when we use the full sample, we have

16

these variables that say is this an own child, is this a

17

foster child, etc., and have you moved.

18

THE COURT: Okay. I’m glad you thought of it.

19

Thank you.

20

BY MS. HEYSE:

21

Q Doctor Allen, I’m going to turn your attention to the

22

screen here.

23

A Yes.

24

Q

Do you recognize this Figure 2?

25

A I do.

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Q Where is this Figure 2 from?

2

A It’s from my report.

3

Q And did you draft this figure?

4

A I did.

5

Q And why did you draft this figure?

6

A So in my report when I’m starting this discussion on

7

these figures 1, 2, and 3, it’s in the section of my report

8

that’s talking about this issue of statistical difference

9

versus actual difference. And I say let me use a stylized

10

figure to represent this idea. Later on, I call it a

11

metaphor. I’m not trying to use the actual numbers that

12

Rosenfeld came up with. I’m not trying to actually

13

represent his data in any way. I’m just trying to get at a

14

graphical way to convey the difference.

15

So I’m using this -- I’m even using ovals here

16

which is not an academic way of representing this sort of

17

thing, but I just thought it visually kind of got across

18

the idea. So I’m just trying to show that what he’s

19

actually finding is that the estimate for the same-sex

20

households has no precision, it’s very wide. And that’s

21

what I’m showing with that wide oval.

22

I don’t -- it doesn’t mean anything where it

23

actually is sitting, but it’s just how it’s relative to the

24

other ones. So that the variance in these same-sex

25

households is wide enough that it’s including the other

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household types in the regression.

2

Now, it’s true in his regression there are no

3

foster kids. But, again, I was just making this thing up.

4

It wasn’t representing what he actually did. It was

5

representing this difference between statistical difference

6

and actual difference. It’s a metaphor. It’s stylized. It’s

7

for the layman to try to get across this idea.

8

Q So you were just trying to make it easier for the

9

average person to understand --

10

A To understand this difference because it’s actually a

11

subtle issue.

12

Q Okay. And do you intend to mislead or misrepresent Dr.

13

Rosenfeld’s data in any way?

14

A No, absolutely not.

15

Q Okay. Thank you.

16

Doctor Allen, I want to move on to your -- the

17

study that you did based on Canada Census. If you can turn

18

to State Defendants’ Proposed Exhibit 15.

19

A Fifteen?

20

Q Yes.

21

A Got it.

22

Q Can you identify that document for me?

23

A That’s my paper on High School Graduation Rates.

24

Q And does that appear to be a true and accurate copy?

25

A It does, yes.

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MS. HEYSE: At this time, your Honor, I would move

2

for admission of State Defendants’ Exhibit 15.

3

THE COURT: Any objection to 15?

4

MR. MOGILL: No.

5

THE COURT: It will be received.

6

MS. HEYSE: Thank you, your Honor.

7

(State Defendants’ Exhibit 15 received into

8

evidence.)

9

BY MS. HEYSE:

10

Q Doctor Allen, what was the purpose of this study?

11

A As I mentioned earlier, it was just an attempt to run

12

the same type of experiment using Canada data. I mean, this

13

is what we do in social science is somebody comes up with

14

something, somebody else either tests it or you try to test

15

it in a different environment and see how robust the

16

findings are.

17

So I am trying to do a study that was as close as

18

I could to the Rosenfeld Study but, of course, I was

19

constrained by the data set. The data set does not have

20

exactly the same variables in it. But the data set has some

21

advantages over the U.S. Census.

22

Q And what are those advantages?

23

A So they’re listed on the screen there. I mean, the

24

first one I think is really important.

25

So Rosenfeld uses the 2000 Census. The 2000

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Census does not identify directly or self-identify same-sex

2

couples. You have to identify them through a series of

3

questions and that introduces measurement error because

4

every respondent to a survey can make a mistake ticking off

5

a various box. And when you have to tick off multiple boxes

6

to draw a conclusion that increases the chance there might

7

be a mistake.

8

The problem with looking at same-sex couples is

9

there’s so few of them that all it takes is a few

10

heterosexuals. You know, it’s a slight fraction of the

11

heterosexual population to be making a mistake, but a

12

slight fraction of a large population can actually swamp

13

the actual same-sex couples. So the U.S. Census has this

14

measurement error in it.

15

The Canada Census, you know, does not have that

16

problem because it self-identifies, people self-identify on

17

the census are you a same-sex couple. So that’s one

18

advantage.

19

Q Let me stop you there because I have a few questions

20

for you about that.

21

You mentioned measurement error, what are you

22

talking about there?

23

A So measurement error is the problem -- in your data

24

set you have a variable that identifies a household as

25

being same-sex. But, in fact, again, there’s some noise

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around that. So that’s what we mean by measurement error,

2

what’s the error in knowing that that number that’s on this

3

data is actually true or not. So, you know, it’s a function

4

of the people ticking off the boxes. There can be a large

5

amount of measurement error.

6

Q Okay.

7

A Now, people could make the same mistake on self-

8

identifying as a same-sex couple but, again, they’re only

9

ticking off one box, and it’s less likely to make a mistake

10

than on multiple boxes.

11

The second one is an extremely important again,

12

and it gets at this five-year residency business. So in the

13

Canada Census I have a variable that identifies whether or

14

not the household was in the same residency for the past

15

year, and whether it was in the same residency for the past

16

five years, the exact same variable that Rosenfeld used.

17

However, the Canada Census has a question

18

identifying the current marital status. It’s not a perfect

19

measure of marital transitions over the past, but it’s a

20

pretty good measure. And it’s certainly better than the

21

five-year residency measure.

22

So I know in the Canada Census whether or not

23

there has been a divorce in the household. So I’m not

24

proxying it. It’s not a proxy which what the five-year

25

residency is. That’s a proxy variable. You’re hoping it’s

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highly correlated, but you don’t know.

2

Here, I actually have a variable that measures --

3

it’s an attempt to measuring the transition. So I have a

4

better measure of this thing that’s so important in the

5

Rosenfeld Study.

6

Third, same-sex marriage was legalized in Canada

7

in 2005, and by court decisions there was same-sex marriage

8

going on for several years before that. So the census comes

9

in 2006.

10

So on the 2000 Census there are no states in the

11

United States that allow same-sex marriage. In Canada, my

12

data comes after same-sex marriage was allowed.

13

And then the other thing I wanted to do in this

14

study which I think is important, Rosenfeld lumps all of

15

the same-sex households together. If it’s a gay household

16

or a lesbian household he lumps them together. He also

17

lumps all children together. So whether you’re a girl or a

18

boy, he lumps together.

19

It seems to me that misses one of the

20

opportunities to do what we call a natural experiment. So a

21

natural experiment is when the world has given you an

22

opportunity to test apples to apples. You don’t have to

23

just try to proxy it with variables in the regression.

24

So what I do in this is I started off separating

25

out the gays from the lesbians, and then I separate out the

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boys from the girls because whether or not a boy or a girl

2

is in the household is pretty much a random draw. So if

3

there is no difference in household type there certainly

4

should not be a difference between gays versus lesbians.

5

And there shouldn’t be a difference between whether it’s

6

boys or girls.

7

So that was the purpose -- that’s the advantage

8

of using the Canada Census over the 2000 Census.

9

Q And just to clarify why is the fact that Canada

10

legalized same-sex marriage an advantage?

11

A Well, I mean, others have argued that Canada is a

12

better place for studying these issues because people are

13

more likely to be honest in answering the questions. Canada

14

is often considered, maybe among just Canadians, a more

15

tolerant kind of place, less -- you know, less ostracism

16

against same-sex couples, etc. So I think people just

17

generally feel that if something is legal you’re more

18

likely to answer honestly on a survey than if something is

19

not legal.

20

Q Thank you.

21

You noted that you were able -- you replicated

22

Rosenfeld’s Study as best you could. What were the

23

differences between your study and Rosenfeld’s Study?

24

A The major difference was in the Canada Census I don’t

25

have the variable normal progress through school, or at

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least I can’t calculate normal progress through school. The

2

only outcome measure that I have for children is whether or

3

not they graduated from high school.

4

So in the regression the left-hand side variable

5

instead of being normal progress through school, is high

6

school graduation. And on the right-hand side, I’ve tried

7

to match the variables that Rosenfeld used.

8

Q Okay. Were there any changes to his methodology?

9

A No.

10

Q Okay. What were your findings then on whether high

11

school graduation rates among children of the same-sex

12

couple showed an actual difference from those of children

13

raised by an opposite sex couple?

14

A That’s right. So I find a difference in high school

15

graduation rates. So if you are -- I don’t know if you want

16

to turn to Table 5 of that paper.

17

Q That’s Exhibit 15?

18

A Exhibit 15, Table 5.

19

So in that Table, column 3 would be the one that

20

comes closest to the Rosenfeld paper, but I don’t lump the

21

gays and lesbians together.

22

So if you look at the odds ratio there, so the

23

odds ratio if your child is in a gay parent household it’s

24

.69 which means the odds from graduating from high school

25

are 69 percent of the odds from graduating from an opposite

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sex married household. If you look at the standard error

2

there it’s statistically significant. For a child in a

3

lesbian household the odds ratio is .6, but that was not

4

statistically significant.

5

So that’s the result that’s closest to the

6

Rosenfeld finding.

7

If you look over at Table 6 this is where I split

8

the sample up into boys and girls. What I find here is that

9

the results from the other table are being driven by the

10

results on the girls. So girls in a gay household -- I need

11

my reading glasses -- the odds ratio is -- if I look at

12

column 2 there. So if I look at column 2, the odds ratio is

13

.15. So that’s a very low odds ratio. It’s saying that if

14

you’re a girl in a gay household the odds are only 15

15

percent of the odds of a similar girl in an opposite sex

16

married household to graduating. And you see it’s estimated

17

quite finely. It’s highly significant.

18

If you look at the effect of boys -- sorry,

19

sorry. Girls in a lesbian household, you find the same

20

thing. So the odds ratio is .45. Again, kind of low and

21

statistically significant. So I finally measure effect for

22

girls.

23

On the boys’ side I find a lot of noise. In other

24

words, I had a lot of variance. I can’t statistically

25

distinguish if there’s a difference.

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Interestingly enough, I find a large positive

2

effect for boys in gay households and a lower effect for

3

boys in lesbian households.

4

So I think the best thing to take from table is

5

the fact it looks like gender matters. The actual estimates

6

they are what they are, but it looks like it matters. And

7

the point is, it shouldn’t matter if household type doesn’t

8

matter. I mean, this about as close to the natural

9

experiment as you can get. Why would it matter if it’s a

10

boy versus a girl.

11

Q So you believe that table, Table 6, provides

12

information regarding gender composition of parents.

13

A Yes. It looks like the parent -- the gender

14

combination looks like it matters.

15

Q Okay. Are you aware of any criticisms of your 2013

16

study based on the Canada Census?

17

A So the paper came out last fall and it was immediately

18

criticized in various blogs. I am aware of some criticisms

19

that Rosenfeld had made in his report.

20

One of the criticisms is this business about --

21

well I’m using some -- my sample, I chose children that

22

were between the ages of 17 and 22. And Rosenfeld said you

23

have this five-year residency requirement. So that means

24

that the earliest information you have is on somebody who

25

is 12 years old. And maybe there was a transition in the

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household when they were seven years old. He makes an

2

assertion that, oh, if you’re not going to graduate from

3

high school it was because something that happened to you

4

in grade one. I don’t know if that’s true or not. But he’s

5

saying that the problem is Allen is comparing apples to

6

oranges. He’s got children in a household that are de-

7

stabled, comparing them to opposite sex marital households

8

that are stabled. So he’s got the wrong apples to oranges

9

comparison.

10

I think this completely misses the point that I

11

mentioned earlier. I’m only using the five-year residency

12

here to replicate what Rosenfeld did to include it, to show

13

you how it matters. I have a better measure of family

14

transition. I have this observation. I have a measure that

15

says was there a divorce? And whether there’s a divorce

16

when you’re in grade one or two it’s going to show up as a

17

divorce. So I actually control for the very thing they’re

18

actually worried about. So he was worried about this

19

problem in the 2000 Census that has a proxy. I’m actually

20

controlling for whether or not it actually happened.

21

Now, the other interesting thing if you go back

22

to Table 5 the difference between column 1, column 2 and

23

column 3 is whether or not I’m controlling for -- in column

24

1, I’m not controlling for the education of the parents,

25

and I’m not controlling for this marital status.

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In column 2, I’m controlling for the education of

2

the parents. I’m still not controlling for the marital

3

status.

4

In column 3, I’m controlling for everything.

5

Now, if it were the case that residency was

6

highly correlated with divorce, it should make it no

7

difference to the estimates when you move from column 2 to

8

column 3. But, of course, you see that the estimates do

9

change, all right.

10

And you see, for example, if I go up to the

11

children in gay households the odds ratio is .54 in the

12

second regression. It’s .69 in the third regression.

13

So when you control for divorce it’s true divorce

14

is hard on children. If you control for it, the probability

15

of graduating from high school goes up, but the odds ratio

16

is still not one, it’s quite away from one.

17

So it’s important to control for that. I do. But

18

most importantly, notice that it changes. If residency and

19

divorce were the same thing, if they’re really highly

20

correlated it shouldn’t have changed.

21

So that tells you in his study when he’s using

22

this five-year residency thing, it’s just a proxy, and it’s

23

not as good as having a variable that’s actually

24

controlling for divorce.

25

So I think that criticism is completely off the

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tracks. It’s ignoring that I actually do it in a better way

2

what he’s actually interested in.

3

In terms of the blogging criticisms, so one

4

criticism is if you look at the averages, the descriptives

5

of the data set the average age of the different samples,

6

the average age of the children in the different samples is

7

not exactly the same. I mean, why would it be? So it’s a

8

criticism that, oh, if you look the average age of the

9

children in same-sex household is slightly lower than the

10

average age of the opposite sex married households and

11

people say, wow, you know, so what’s now going is the

12

reason why they’re not graduating is because you’ve got

13

more 17 year olds and they’re still in high school.

14

What that ignores is that again I’m telling the

15

computer what the age of these people are. So the computer

16

knows how old they are. So the computer is controlling for

17

the age. So these estimates are holding age constant,

18

what’s the effect of household size. So that criticism just

19

ignores the fact that I’m controlling for those things.

20

I think the most significant criticism of this

21

paper is one that I worried about when I did it was whether

22

or not there’s a selection bias in using an age range of 17

23

to 22. A selection bias would come out in the following

24

way. Suppose I’m looking at the 22 year olds. I need these

25

children to be members of the household. If they’re not

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members of the household they’re going to have their own

2

records on the -- different in the census. I won’t have

3

them.

4

So what if the really successful children in

5

same-sex households just left and, you know, in the

6

opposite sex households they stayed behind. Then my sample

7

would be bias on the 22 year olds. That I think is a

8

legitimate criticism and one that I worried about. What I

9

did and mentioned in some footnotes here is I did what we

10

call a robustness check. So I ran the regressions looking

11

at just 17 and 18 year olds. Just at 17 year olds. Go from

12

17 to 20. Run it with all the children in, you know, from

13

five to 60. Run them from five to 18 etc. I tested around.

14

And what I found was the point estimates so the coefficient

15

estimates that you’re getting there, they change a little

16

bit but they don’t change much. What really changes is the

17

standard errors. So the more children I add the larger the

18

sample, the smaller the standard errors, the more likely

19

there’s statistical significance.

20

So there’s a tradeoff. I recognize if I do have

21

35 year olds in the sample there’s going to be a selection

22

bias I think.

23

So I went from 17 to 22 because I thought that

24

sort of college age reasonably -- I don’t think there’s too

25

big of a selection bias problem there. But it allowed me to

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get enough power to statistically identify. Those are the

2

main criticisms.

3

Q Was there also an erratum that was --

4

A Sorry, yes.

5

THE COURT: Also a what?

6

MS. HEYSE: An erratum.

7

A Yes. So almost immediately when the paper came out I

8

was contacted by Dr. Gary Gates. And in the original paper

9

-- when you receive the data from Stats Canada, comes in a

10

file and they send you what’s called a code book.

11

A code book is like a telephone directory or

12

something. It’s telling you this variable is defined by

13

this question and it takes on these values.

14

So when I was describing the data in the paper I

15

described it based on the code book. And Dr. Gates

16

correctly pointed out to me that on the actual census form

17

the question was not exactly the same as I described it. So

18

the errata basically corrects that statement that the

19

variable is coming from such and such a question the

20

census, etc., not as it was described in the code book.

21

So it makes absolutely no difference with respect

22

to the results of the paper. It was just a correction on

23

the way that the data was described, how it was derived.

24

Q Thank you.

25

Doctor Allen, do you know when same-sex marriage

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was first recognized anywhere?

2

A I believe it was the Netherlands in 2000.

3

Q And do you know when it was first recognized here in

4

the United States?

5

A 2004, in Massachusetts.

6

Q So ten years ago.

7

A Ten years ago. Late in 2004.

8

Q As someone who’s been studying the family and marriage

9

for more than 20 years is that enough time to formulate any

10

definite conclusions about the effects of same-sex

11

marriage?

12

A Highly unlikely. I know that sounds strange. You say

13

ten years why isn’t that enough?

14

Let’s take the case of Massachusetts. It’s really

15

-- the way to think about that it’s one observation. So you

16

have one-time series. You have some observations before,

17

and you have a few observations afterwards. But that’s just

18

one-time series.

19

Imagine that’s all you had. So you’re going to

20

look at anything like did it affect marriage rates, did it

21

affect divorce rates. You’ve got one observation. You

22

really can’t tell anything from one observation. There were

23

millions of things that changed in Massachusetts in 2004.

24

You can’t control for all of them. Maybe the Boston Bruins

25

didn’t make the playoffs. Maybe that’s really what’s

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driving divorce rates in 2005.

2

So you have to try to control for all these

3

different things. So what we have to do is -- what we would

4

like to have is we want to have observations across

5

different states. So we would like to have as many

6

different jurisdictions as possible because then we can

7

start control for differences across the states. And we

8

would like to have as many observations across time so we

9

can control for differences across time. And then we’d also

10

like to have many -- we’d like to have our observations at

11

an individual level. Now that doesn’t sound like a big deal

12

that means there has to be some agency that’s collecting

13

data on an individual level across time, across states. So

14

think again in the U.S. how difficult that’s going to be

15

because you don’t have any federal agencies that are

16

collecting data on sexual orientation, you know, prior to

17

2004.

18

Now, you say, well, maybe we could look across

19

country. That’s going to give you some more variation. But

20

now you’ve got different countries that you have to worry

21

about in controlling for. So that means you need even more

22

information. You need more variation. So we talked about

23

power coming from large sample sizes, but power also comes

24

from having variance in these variables that you’re using

25

to describe. So you need lots of observations, across lots

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of time.

2

Now, let’s talk about what you’re actually trying

3

to analyze. You’re trying to analyze family outcomes.

4

Families are very complicated things with all kinds of

5

complicated dynamics, and lots of families vary on all

6

kinds of dimensions. So, again, if you’re just going to use

7

aggregate statistics like let me look at the divorce rate

8

in the state of Georgia and how it changed over time when

9

the law changed. You know, you’re just looking at average

10

families. I mean, you’re lumping a whole bunch of things

11

together.

12

So even though it sounds like an exaggeration

13

when you say ten years isn’t enough time, it really isn’t.

14

The best analogy I can give there is the -- basically the

15

social experiment we’ve had with no-fault divorce.

16

So in the United States, you had California

17

switch in 1969. You had a whole bunch of states switching

18

throughout the 1970s. And it ends with South Dakota in

19

1985. So you had, you know, 16 years of transitions. You

20

have people collecting data throughout that time.

21

The first real study of that analysis was in

22

1986. But like the Rosenfeld paper, it turned out that that

23

result hinged on a very small coding issue. So that result

24

was overturned in 1992.

25

In the 1990s we had all kinds of studies starting

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to come along trying to estimate the effect of no-fault

2

divorce.

3

MR. MOGILL: If it please the Court, this is not

4

in his report.

5

THE COURT: Doctor, is this contained, this

6

discussion contained in your report? I mean the no-fault

7

and the --

8

THE WITNESS: I believe in the report I make a

9

reference to the no-fault issue and the similarity there

10

are to this issue.

11

THE COURT: Then I’ll sustain the objection.

12

MR. MOGILL: Thank you.

13

THE WITNESS: I’m only making the argument that it

14

took a long time. I mean, it really wasn’t until about 2006

15

with Justin Wolfers’ American Economic Review Paper, that

16

people figured, okay, I think we’re close to answering that

17

question --

18

THE COURT: That’s on no-fault.

19

THE WITNESS: Sorry?

20

THE COURT: That’s on no-fault.

21

THE WITNESS: Yes. So it took 15, 30 years.

22

THE COURT: Okay. I think we’ve heard enough.

23

That’s good. I don’t think we should go any further on

24

that.

25

MS. HEYSE: Thank you, your Honor.

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THE COURT: Okay. Thank you.

2

BY MS. HEYSE:

3

Q So, Dr. Allen, based on your review of the --

4

extensive review of the literature in this area from 1995,

5

to 2013, as well as your own research on child outcomes,

6

have you formed any opinions relative to this case?

7

A My opinion on this case is that of the evidence you’ve

8

got there’s no evidence, no hard evidence that child

9

outcomes, that’s no difference in child outcomes across

10

household types. That what evidence we do have looks like

11

there is a difference. My conclusion is that the State

12

should be very cautious in making such a fundamental change

13

to such a fundamental institution when there really isn’t

14

any evidence on the child outcomes issue.

15

Like my point two says there I think we’re a long

16

way from really understanding what the empirical results

17

are in a conclusive way.

18

MS. HEYSE: If I may have a moment, your Honor?

19

THE COURT: Of course.

20

MS. HEYSE: Thank you.

21

(Short pause.)

22

I have nothing further, your Honor.

23

THE COURT: Very well.

24

You may cross-examine.

25

MR. MOGILL: I’m happy to start. I know the Court

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has indicated you were going to take a break --

2

THE COURT: I have an 11:00 o’clock quick matter.

3

We can break now.

4

It’s funny, I was just looking to see if the

5

attorneys are here yet. The defendant is in custody so we

6

know where he is. I have not seen either of the attorneys.

7

Let’s take a break now. I know both lawyers

8

usually are right on time. They’re just probably waiting

9

until 11:00.

10

My matter is at 11:00. So we’ll reconvene at

11

about 11:15.

12

I’ll take my break right now. Give Joan a break

13

right now. We’ll do our plea -- our sentencing. As soon as

14

that sentencing is over, we’ll start right away with your

15

case.

16

Is that good?

17

MR. MOGILL: Thank you.

18

THE COURT: Carole, did you have something?

19

MS. STANYAR: I just wanted to acknowledge our

20

other helpers.

21

THE COURT: Oh, please.

22

MS. STANYAR: Yale Law School, Irina Vaynerman,

23

Bryn Williams and --

24

THE COURT: Just hold it. Who’s who?

25

MS. STANYAR: Okay. Irina Vaynerman.

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We have Bryn Williams and Steven Kochevar. They

2

have been helping us.

3

THE COURT: Yale Law School, what year?

4

MR. WILLIAMS: We’re all 3-Ls.

5

THE COURT: All 3-Ls.

6

Do you have jobs?

7

MS. VAYNERMAN: We do.

8

THE COURT: All three of you have jobs?

9

All right. I want to hear about jobs.

10

Where are you going?

11

MS. VAYNERMAN: I’m going to be clerking in the

12

District Court in Minnesota, Eight Circuit.

13

THE COURT: Excellent.

14

MR. WILLIAMS: I’ll be clerking on the Tenth

15

Circuit.

16

THE COURT: Excellent.

17

MR. KOCHEVAR: I’m teaching in China for a year,

18

and then I’ll be clerking in the Southern District of the

19

Second Circuit.

20

THE COURT: Fantastic. Well, that’s good. That’s a

21

real tribute to you guys and to your school.

22

Nice to have you.

23

MS. STANYAR: Also we have Brian Apel from the

24

University of Michigan Law School.

25

THE COURT: Excellent. You’re 3-L also?

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MR. APEL: First year, your Honor.

2

THE COURT: First year. Well, that’s good. That

3

will give you some experience. Maybe we can get you one

4

summer as an intern here. You’ve got a little while.

5

If you can get a good paying job, because we

6

don’t pay, but we have a good time.

7

MS. STANYAR: One last, Jeanne Howard who works at

8

the Donaldson Adoption Institute. She’s been helping us all

9

along here. She’s not here today, but she has been helping

10

us.

11

THE COURT: If she happens to get here tomorrow

12

I’d like to see what she looks like.

13

MS. STANYAR: She’s actually been at counsel

14

table.

15

THE COURT: Okay. Anybody on the State side? Any

16

new folks?

17

MS. HEYSE: Nobody came to see us today, your

18

Honor.

19

THE COURT: Oh. Okay. I’m sure some will be here

20

tomorrow. I would like to -- I know that one of the people

21

that worked on the case with you, I know he’s come in and

22

out. I’ve been wanting you to introduce him, but every time

23

I look he’s gone again. Maybe tomorrow you’ll do that.

24

MS. HEYSE: Absolutely.

25

THE COURT: For those who are here watching the

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case, I’m going to have a matter and you may -- it’s a

2

sentencing, nothing to do with this case. But I think it’s

3

a pretty interesting sentencing.

4

I’m going to take a break so the marshals can

5

move the defendant over. I’m waiting for the lawyers. You

6

are more than welcome when we start that case to listen to

7

it. Then you’ll see what we do every day. We don’t do this

8

case every day. These are the kinds of things we do every

9

day.

10

Okay. We’ll stand in recess. We’ll reconvene for

11

my sentencing, and then right after the sentencing we’ll

12

reconvene on this.

13

(Court recessed, 11:00 a.m.)

14

(Court reconvened, 11:30 a.m.)

15

THE COURT: Okay. Are we ready?

16

MR. MOGILL: May I proceed, Judge.

17

THE COURT: You may.

18

CROSS-EXAMINATION

19

BY MR. MOGILL:

20

Q Professor Allen, good morning.

21

A Good morning.

22

Q I’m going to be asking you a number of questions. Many

23

of them are going to call for a yes or no answer if you can

24

reasonably answer yes or no. If you can’t reasonably answer

25

yes or no, that’s fine. But if you can I’m asking you and,

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in fact, directing you please answer yes or no. Fair

2

enough?

3

A Understood.

4

THE COURT: I know it’s tough for everybody.

5

THE WITNESS: Especially a professor.

6

THE COURT: Don’t worry about it. He’ll remind

7

you.

8

BY MR. MOGILL:

9

Q You are a professor of economics; correct?

10

A Correct.

11

Q You are not a psychologist.

12

A That’s correct.

13

Q Nor a social worker.

14

A Correct.

15

Q You don’t have a degree in sociology.

16

A Correct.

17

Q You’ve never taught a course in sociology.

18

A Correct.

19

Q You’ve never even taken a course in sociology.

20

A Correct.

21

Q And you don’t hold yourself out as an expert in child

22

development; correct?

23

A Correct.

24

Q Some of these questions are going to reiterate things

25

that you went through on Direct but that’s just part of

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this process as well; okay?

2

A Correct, understood.

3

Q You’ve acknowledged that there is a broad consensus in

4

the social science community as to what has been

5

characterized as “the outcome difference;” correct?

6

A That’s right.

7

Q And you disagree with that consensus.

8

A That’s right.

9

Q You made reference in a good amount of detail in your

10

Direct Examination to a number of studies, what, about 60

11

studies of same-sex parenting and the outcomes and you

12

talked about your criticisms of those studies; right?

13

A Yes.

14

Q You acknowledged that those studies span really nearly

15

a 20-year period now; correct?

16

A Yes.

17

Q And, yet, to you those are preliminary and I think

18

you’ve also indicated at some point that the research in

19

this area is basically in its infancy, that’s a term you’ve

20

also used; right?

21

A Yes.

22

Q And on Direct you’ve explained your reasons why you

23

assert that to be the case; right?

24

A Yes.

25

Q Now, it’s correct, it is not, that small sample

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studies, convenient studies are very common in the field of

2

psychology?

3

A I don’t know about the entire field of psychology.

4

It’s certainly common in that literature.

5

Q I’m sorry?

6

A It’s common in the literature on child outcomes.

7

Q Okay. It would not surprise you, would it, to find

8

that these kinds of studies are common throughout the field

9

of psychology.

10

A I have no opinion one way or the other.

11

Q You don’t know.

12

A Correct.

13

Q It’s also correct, is it not, that studies that are

14

small sample, convenient studies, they’re not just smaller

15

versions of the large data sample studies of the kind that

16

you’ve described using the Canadian Census that Professor

17

Rosenfeld did with the United States Census, they’re

18

qualitatively different; correct?

19

A Correct.

20

Q They’re looking at things in a more individualized way

21

and a more personalized way among other differences;

22

correct?

23

A It could be, not necessarily.

24

Q Okay. If one of the State defendants other witnesses

25

characterized as a rough way of distinguishing between

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these small studies and the large data studies the

2

psychology studies look at people, the sociology or --

3

we’ll give you economic studies look at numbers. In a rough

4

sense that’s an accurate statement; isn’t it?

5

A I don’t think so. I mean, the numbers are just

6

reflective of people, correct?

7

Q No.

8

A The numbers are saying, so, example, if I knew what

9

your income is, that’s something about you. It’s also a

10

number. So you can’t say it’s a number and has nothing to

11

do with people.

12

Q No one is saying that the number has nothing to do

13

with people.

14

MS. HEYSE: Objection, your Honor. I think it’s

15

getting argumentative.

16

MR. MOGILL: No, no.

17

THE COURT: Why don’t you restate it?

18

MR. MOGILL: If she hadn’t interfered I was about

19

to turn it into a question.

20

THE COURT: Okay. Turn it into a question.

21

Wait for the question and then we’ll go from

22

there.

23

BY MR. MOGILL:

24

Q No one is saying that the number doesn’t have

25

something to do with people; isn’t that right?

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A I would agree with that, the number does have

2

something to do with people.

3

Q Of course. Now, it’s also correct, is it not, that

4

psychologists did not begin using smalls sample convenient

5

studies only when they began studying same-sex families;

6

isn’t that correct?

7

A I’m not sure I understand the question. Do you mean --

8

Q Psychologists -- let me rephrase it.

9

Psychologists have been using small sample

10

convenient studies far longer than they have been studying

11

same-sex families.

12

A That’s probably true.

13

Q Is it also correct that psychologists have studied

14

things as -- since -- long before they began studying same-

15

sex families; isn’t that correct?

16

A That be true, yes.

17

Q Studies of heterosexual stably married families,

18

studies of step families, studies of families that have

19

gone through divorce, breakup, other transitions; right?

20

A Correct.

21

Q All of those kinds of studies were a body of

22

literature that was in the field well before the field also

23

began studying same-sex families and their children;

24

correct?

25

A It’s probably true to the best of my knowledge.

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Q I’d like to ask you a couple of questions now about

2

Professor Regnerus study. Would it be fair to say that in

3

your view a reasonable criticism of his study was that he

4

was in a sense comparing apples to oranges?

5

A I think the best way to describe the problem with --

6

Q My question to you is not what is the best way to

7

describe, my question to you is whether that would be a

8

fair way to describe it?

9

A I don’t think so.

10

Q Okay. Have you ever stated that the apples or oranges

11

criticism is a fair criticism of Professor Regnerus Study?

12

A I believe I have said that, yes.

13

Q Okay. Is that still your opinion?

14

A Yes, but --

15

Q Thank you.

16

THE COURT: Yes, but -- if you had a choice you

17

would like to explain it.

18

THE WITNESS: Yes.

19

THE COURT: Counsel --

20

BY MR. MOGILL:

21

Q I’m going to let you explain. I want you to explain by

22

reference to Footnote 21 in your Canadian Study. You’ve got

23

that there; right?

24

A That’s Exhibit 15?

25

Q Exhibit 15, page 641, note 21.

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You expressed an opinion about Professor Regnerus

2

study at that footnote; did you not?

3

A I did, yes.

4

Q Why don’t you read into the record what you said about

5

Professor Regnerus study at Footnote 21 of your Canadian

6

Census Study?

7

A “The Regnerus study also used a random sample;

8

however, it was still too small to identify a sufficient

9

sample of same-sex parents. To increase his sample size he

10

decided to use a broader definition of same-sex parent.”

11

Q And that’s the entire language in that footnote;

12

correct?

13

A Correct.

14

Q Did you mean that as a criticism of Professor Regnerus

15

or as a justification of what he had done?

16

A I believe I just meant it as a description of what he

17

had done.

18

Q Okay. As you sit here today do you believe that is a

19

valid criticism or a justification of what Professor

20

Regnerus did?

21

A It’s a statement of what he did. I don’t understand

22

what you mean by a “justification.”

23

Q Was he justified in expanding the definition?

24

A He was trying to identify an effect. The problem that

25

he had was that the stability was too correlated with the

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household type. And so all he had if he was looking at

2

couples that were stabled he had a very small really

3

trivial sample size. So you can’t do anything with that. So

4

he expanded his definition. I would say that’s an issue

5

that people debated about. I think it’s a legitimate issue.

6

Q In other words, are you saying that it is a legitimate

7

issue as a matter of criticism to expand the definition the

8

way he did?

9

A It comes down a little bit like the issue with

10

Rosenfeld, you know, what’s the proper measure of

11

controlling for something. Here the issue is, you know,

12

he’s got a choice to make. He can have larger sample size

13

to generate some kind of result, but the caveat is because

14

you can’t really distinguish these couples are so unstable

15

to be a same-sex couple in his data set is pretty much as

16

being unstable. He has to say, okay, I’m going to include

17

the unstable ones.

18

Q So is it your testimony as you sit here at this moment

19

that it was reasonable for Professor Regnerus to use a

20

broader definition of same-sex parent? Yes or no.

21

A Reasonable. Well, yes and to no. I mean, it’s an odd

22

way you’re stating the question. Again, it comes down to

23

the distinction we had between Rosenfeld and us. I mean,

24

there’s multiple ways of doing things. He did it one way,

25

not perfect. But the alternative was to say, well, I’ve got

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nothing.

2

Q We’re going to talk about your critique of Rosenfeld

3

in a minute, but this is different. This is expanding the

4

definition of parent to include someone the child never

5

lived with and may or may not even have known; correct?

6

A Correct.

7

Q And you’re unwilling to say that was as unreasonable

8

definition of parent?

9

A What I’m saying -- for me when I look at the Rosenfeld

10

Study it is what it is, right. We understand that’s not a

11

-- it’s not the ideal world that he was living in, that he

12

had data-wise. He made that choice and has been criticized

13

for it. But, yeah, you’d want to -- you’d want to ideally

14

be able to look at only the couples where there was a

15

stable household. That’s right.

16

Q You still haven’t answered my question, Professor.

17

A Is it reasonable or unreasonable? I mean, it depends.

18

He’s making a tradeoff between sample size and the

19

definition of the parent.

20

Q Was it a reasonable or unreasonable --

21

MS. HEYSE: Objection, your Honor. Asked and

22

answered.

23

MR. MOGILL: No.

24

If it please the Court, with all due respect,

25

Professor Allen is giving me non-responsive --

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THE COURT: Ask it one more time.

2

He would like a yes or no answer. If you can’t

3

answer yes or no let him know.

4

A Yeah, I can’t answer that yes or no.

5

BY MR. MOGILL:

6

Q Okay. You are unable to answer as you sit there today

7

--

8

MS. HEYSE: Objection, your Honor.

9

THE COURT: He has to repeat it. I want to hear it

10

again.

11

MR. MOGILL: I’m sorry?

12

THE COURT: Go on.

13

BY MR. MOGILL:

14

Q Whether it was a reasonable or unreasonable tradeoff

15

for Professor Regnerus to identify parent as someone the

16

child never lived with and may not have even have met.

17

A Given that he posted the data he’s allowed -- anybody

18

can look at his data and look at what happens when you make

19

the opposite assumption. Then if I had to choose between

20

one or the other I would say it was reasonable. Given that

21

anybody can look and say what if we didn’t make that

22

assumption what would we get? And the reader can decide if

23

it’s unreasonable or reasonable.

24

Q Thank you.

25

Now, on the last slide that you had from Direct

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Examination your final point is that

2

“Any conclusive statements” --

3

THE COURT: You have to speak into the microphone.

4

MR. MOGILL: I’m sorry?

5

THE COURT: You’ve got to speak into the

6

microphone.

7

MR. MOGILL: I thought I was. I was doing a little

8

it better. One of these days I’ll get it.

9

BY MR. MOGILL:

10

Q On that last slide, Professor Allen, the last point

11

is,

12

“Any conclusive statements are premature”; is

13

that your position?

14

A Yes.

15

Q And if I understood you correctly on Direct

16

Examination you said that, what, maybe 25 or more years of

17

study from different locations, etc. around the United

18

States are needed before there can be anything conclusive;

19

right?

20

A I think so, yes.

21

Q And during that period of time, of course, according

22

to what you’re suggesting there would be no change in the

23

eligibility of same-sex couples to marry in those

24

jurisdictions in the United States where they do not yet

25

have that right; correct?

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A The more jurisdictions that change the shorter time

2

period it would take to find out what the effect is.

3

If you have, say -- I mean you have, what, 17

4

states now that have it. If there’s 17 states it will take

5

a certain amount of time. If you had all 50 states it would

6

take less time because you have more variation across the

7

states.

8

Q Which would be an argument to have more states include

9

same-sex couples and the opportunity to marry in order for

10

the answer to come more quickly; correct?

11

MS. HEYSE: Objection, your Honor. That

12

mischaracterizes his testimony.

13

THE COURT: He can answer yes or no.

14

A If all you’re interested in is the academic outcome,

15

the answer would be yes.

16

BY MR. MOGILL:

17

Q Thank you.

18

Now, on that same slide you also state that,

19

“Any conclusive statements are premature because

20

they’re not based on any solid evidence since that evidence

21

does not exist”; is that your opinion?

22

A Yeah, I mean by “solid evidence” I mean -- well, by

23

“solid evidence” as I mentioned in the Direct, you know,

24

what we would really like is a longitudinal study at the

25

individual level.

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Q You used the word there “solid” -- the phrase there,

2

“solid evidence”; right?

3

A Yes.

4

Q Okay. Have you ever said that solid evidence does

5

exist on this question?

6

A Not to my recollection. I may have.

7

Q Okay. Have you ever said that solid work has been done

8

on this question?

9

A I can’t recall.

10

Q Have you ever said that solid statistical work has

11

been done on this question?

12

A I can’t recall.

13

Q Have you ever said that Professor Rosenfeld’s

14

demography study is “the first solid piece of statistical

15

work done on the question”?

16

A I may have. Where are you referencing that?

17

Q A source called “Mercatonet” on October 10, 2013, and

18

I’m happy to show you a copy.

19

MR. MOGILL: Ms. Heyse was previously provided

20

with it. I just want make sure she’s got it.

21

MS. HEYSE: I do.

22

Thank you.

23

MR. MOGILL: May I approach?

24

THE COURT: You may.

25

BY MR. MOGILL:

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Q Professor Allen.

2

A Right. So this was an online interview that I did. As

3

I said in the Direct -- I think I said it -- I don’t want

4

to take away from Rosenfeld in the sense that it was a

5

watershed study much different than what was done before.

6

This really is a statement more about what came before than

7

after. But, yeah, after the solid piece of statistical work

8

was done. So I did say that, yes.

9

Q You meant it when you said it; didn’t you?

10

A I meant it was a random sample, large hard question,

11

yes.

12

Q And the first solid piece of statistical work done on

13

the question, you meant that, too; right?

14

A Yes.

15

Q You acknowledged that you have also referred to it as

16

a watershed publication.

17

A Watershed, yes.

18

Q Would you also agree that the importance of Professor

19

Rosenfeld’s 2010 Study is hard to overstate?

20

A With respect to how it stands relative to the other

21

literature, yes.

22

Q In fact, the various -- among the various variables as

23

to which you expressed criticism of the psychology

24

literature there are a quite a bit of those variables as to

25

which when you look at Professor Rosenfeld’s Study he

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addresses those; is that not correct?

2

A That’s correct.

3

Q It’s a random sample.

4

A Random.

5

Q You didn’t mention in your report but you mentioned in

6

testimony today about using data from another source and

7

he’s got that.

8

A Got that.

9

Q It’s a large sample.

10

A Yes.

11

Q Outcome measures are hard and verifiable.

12

A Yes.

13

Q And that outcome measure as you agreed on Direct

14

Examination was normal progress through school; right?

15

A Yes.

16

Q By the way, Professor, very few children are, in fact,

17

held back as they progress through the grades; isn’t that

18

right?

19

A That’s correct.

20

Q Percent, your best estimate as you sit here right now?

21

A Depending on household size or average?

22

Q Total.

23

A I’m sorry not household size, household type?

24

Q No, in aggregate.

25

A In aggregate, in aggregate you’re probably looking

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around 10, 12 percent.

2

Q Now, in talking about studies that will have

3

statistical merit, that’s a phrase as a layperson we can

4

use, one of the factors that you consider in your

5

profession is the sample size; correct?

6

A Correct.

7

Q Have you expressed an opinion as to the minimum sample

8

size that is necessary in order to have a valid study that

9

confines statistically significant differences in

10

complicated family structures?

11

A I repeated the Steven Nock conjecture that you need a

12

sample size of 800. But ultimately, you know, it’s data

13

dependent, correct, depending on how the data is

14

distributed, variations, etc. One sample size might give

15

you statistical significance. Another data set with

16

different variation might require a larger or smaller.

17

Q Okay. But in your report you cited Nock as a

18

proposition --

19

A Yes.

20

Q -- that the minimum sample size needed is 800;

21

correct?

22

A Correct.

23

Q And the sample size that Professor Rosenfeld used in

24

his study of children who had lived in the same residence

25

with their parents for at least five years, what’s the

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number?

2

A About 600,000, in that neighborhood, 700,000.

3

Q And the number who had lived for at least five years

4

in a same-sex household --

5

A Oh, I’m sorry. What was your original question?

6

Q Number of children who had lived at least five years

7

in a same-sex household.

8

A I can’t remember that number off the top of my head.

9

Q Would you like to have your memory refreshed?

10

A Yes, please.

11

Q Or if I throw a number out at you will you accept it?

12

A I’ll take your number.

13

Q Thirty-five hundred and two?

14

A Oh, right. I’ll accept that.

15

Q You’ll accept that number as accurate?

16

A Yes.

17

Q Okay. If you have any question about it I want you to

18

double check --

19

A No, no.

20

Q -- because I’m just a lawyer asking questions.

21

A I understand.

22

Q So Professor Rosenfeld’s sample size even as to the

23

number of children living in same-sex households was

24

approximately four times more than you need according to

25

your opinion based on Nock; correct?

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A I quote Nock, right, but as I said just a minute ago

2

depending on how the information is distributed in the same

3

you may need more you may need less.

4

Q Well, you have a whole lot of --

5

A That number is a lot bigger than Nock’s number.

6

Q Now, it’s also correct, it is not, that with respect

7

to the two sample restrictions Professor Rosenfeld used,

8

own child and residential stability, you agreed and still

9

agree today that those are legitimate restrictions;

10

correct?

11

A What do you mean legitimate restrictions? So the issue

12

is should you control for own child?

13

Q Okay. Let me rephrase it.

14

There’s a dispute between you and Professor

15

Rosenfeld as to how to account for own child and

16

residential stability; correct?

17

A We really don’t dispute the own child one, but, yes.

18

Q Okay. And if I understand what you said on Direct

19

Examination and what you said in your comment on Rosenfeld

20

and in your report it basically -- and I think you

21

summarized it on Direct, comes down to a difference of

22

methodology; correct?

23

A Correct.

24

Q In essence, Professor Rosenfeld took the own child and

25

residential stability points and he identified them as

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sample restrictions so they weren’t in the data going in.

2

And, you and Price and Pakaluk -- am I pronouncing her name

3

right?

4

A Pakaluk, I think, yes.

5

Q Okay. Put them in and gave instructions to the

6

computer to control for them at that end of the process;

7

right?

8

A Correct, except there’s this issue about own child,

9

about the household head, etc. So with that caveat, yeah.

10

Q Okay. And there’s no question but that you have in

11

your own report, in your own words, characterized Professor

12

Rosenfeld’s concern as legitimate, quote, unquote.

13

A I think that you want to control for stability and you

14

would want to control for own children, yes.

15

Q Do you have your expert report there?

16

A I don’t know what number it is.

17

THE COURT: Do you have one with you, Doctor?

18

THE WITNESS: Sorry?

19

THE COURT: Do you have your report with you?

20

THE WITNESS: I do not.

21

THE COURT: Like not in your briefcase or

22

anything?

23

THE WITNESS: No, I don’t.

24

THE COURT: That’s fair. No problem.

25

BY MR. MOGILL:

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Q Professor, if you would, please, turn to Paragraph 29

2

of your report.

3

A I’m sorry, that’s missing from this report.

4

Q I’m sorry?

5

A This report stops at 26 and picks up again at 32.

6

MS. HEYSE: Figure 1 is on the Elmo there.

7

BY MR. MOGILL:

8

Q I want you to take a look at Paragraph 29 and let me

9

know when you’ve had a chance to look at it, please.

10

A Okay.

11

Q It’s correct, is it not, that in your own words you

12

described,

13

“Rosenfeld’s justification for the sample

14

restriction was legitimate. He was concerned with comparing

15

‘apples to apples’. If children are adopted or arrive into

16

a family in a non-traditional way then failure to make

17

normal progress in school may be caused by some unmeasured

18

difference that is correlated with the adoption. Likewise,

19

he wanted children who were raised in a same-sex household

20

not just ones who were living there during the time of the

21

census”; correct?

22

A Correct.

23

Q And then because I don’t want to take anything out of

24

context there’s a last sentence in the paragraph where you

25

talk about your concern that dropping children from the

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sample at the front end effects the power of the test

2

significantly in your view.

3

A Correct.

4

Q There’s also no question but that, one, you, Professor

5

Price and Professor Pakaluk were to replicate Professor

6

Rosenfeld’s data.

7

A That’s correct.

8

Q That he cooperated with Professor Price when Professor

9

Price requested the data including the analysis codes?

10

A That’s absolutely correct.

11

Q And it’s also correct that the motivation for

12

restrictions such as own child and residential stability is

13

to avoid a measurement error; isn’t that right?

14

A Technically he called it an endogenizing problem in

15

this case. So if you don’t make the correction, the right-

16

hand side variable, the “X” if you will, is correlated with

17

the error term and you get a biased estimate.

18

Q Have you ever said in your own words and those of your

19

co-authors that the motivation for the restrictions is to

20

avoid a measurement error?

21

A Yeah, I could have worded it that way, yes.

22

Q And it’s also correct that you said in your own words

23

that the measurement error,

24

“Would occur if a child’s family structure is

25

based on a current household composition that is different

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from what the child had experienced when his or her

2

progress in school was being effected,” correct?

3

A I’ll take your word for it.

4

Q I don’t want you to take my word for it.

5

A Okay. Do you want to show me again?

6

Q And this is significant because biological relatedness

7

and household instability are “two of the channels” through

8

which family structure can influence child outcomes;

9

correct?

10

A Correct.

11

MS. HEYSE: I’m sorry, I still don’t know where

12

you are.

13

MR. MOGILL: Just for the record, the comment

14

isn’t paginated so I wrote in the page numbers at the

15

bottom.

16

THE COURT: Okay.

17

MS. HEYSE: That’s why we’re having technical

18

difficulties here.

19

Oh, Rosenfeld. Thank you.

20

BY MR. MOGILL:

21

Q And, in fact -- if you can turn to page 2 of the

22

comment, you, and Professor Price, and Professor Pakaluk,

23

“Share Rosenfeld’s concern that these groups are

24

potential confounders.”

25

Is that correct?

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A Correct.

2

Q Now, what it comes down to is that, among other

3

things, when Professor Rosenfeld uses these factors as a

4

sample restriction he produces a result that finds no

5

statistically significant difference between the children

6

of same-sex parents and children being raised in an

7

opposite sex married household. And that while you -- when

8

you run the numbers the way you and your two colleagues run

9

them you do find a statistically significant difference

10

between those two groups; correct?

11

A That’s correct, but I need to elaborate on that a

12

little bit.

13

Q Okay. I’m going to let you elaborate in a minute.

14

As you testified this morning on Direct

15

essentially it comes down to a question of methodology;

16

correct?

17

A False.

18

Q You testified this morning in your own words that it

19

comes down to a question of methodology; did you not?

20

A Except for the fact to deal with that own children,

21

right? So even if we take -- okay, we say let’s use a

22

sample restriction. Let’s have a sample restriction on own

23

children so you only keep the own children. He did not

24

include all of the own children. So even if we say we’ll

25

accept your methodology and we’ll keep the own children, if

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you do that properly you still find a statistically

2

difference. So that’s not a methodological issue. That’s

3

using the right samples for a restriction.

4

Q Okay. Have you had a chance now to explain what you

5

think is different beyond the methodological point --

6

A That’s what different.

7

MS. HEYSE: Objection, your Honor. That’s

8

argumentative.

9

MR. MOGILL: No. I want to make sure the witness

10

has had a chance to explain his answer.

11

THE COURT: He said that’s what’s different.

12

A Yes, that’s the non-methodological point.

13

BY MR. MOGILL:

14

Q Because one of the things that is important about this

15

kind of discussion we’re having here this morning is to

16

clarify the differences between Professor Rosenfeld’s

17

position and your position so that when we’re all done

18

talking in court and the Judge is considering the testimony

19

and reading your report, and Professor Rosenfeld’s report,

20

and your comment and Professor Rosenfeld Study, we can

21

clarify these differences so the Court can make --

22

MS. HEYSE: Your Honor, there’s no question here.

23

BY MR. MOGILL:

24

Q -- an understanding assessment; isn’t that correct?

25

A I suppose that’s correct.

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Q Now, this morning one of the things you’ve said was

2

that Professor Rosenfeld found that there was no difference

3

and he should have said that he found no statistically

4

significant difference. You’ve said that twice, and then

5

you said it’s a subtle but important point; am I right?

6

A Correct.

7

Q I want you to look at Professor Rosenfeld’s demography

8

study. It’s -- I don’t know, whatever number it is.

9

MS. HEYSE: What exhibit is it, Ken?

10

MR. MOGILL: I think it’s 109.

11

THE COURT: He may not have that book.

12

MR. MOGILL: Exhibit 109.

13

THE WITNESS: I have their book.

14

BY MR. MOGILL:

15

Q Professor, I am showing you Professor Rosenfeld’s -- a

16

copy of Professor Rosenfeld’s demography study; is that

17

correct?

18

THE COURT: That’s 109?

19

MR. MOGILL: Yes.

20

A Yes.

21

BY MS. HEYSE:

22

Q And towards the bottom of page 770 it’s correct, is it

23

not, that what Professor Rosenfeld said was not that

24

there’s no difference --

25

A I’m sorry, where are you reading?

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Q Last sentence on page 770. But what Professor

2

Rosenfeld concluded was that,

3

“When one controls for parental SES and

4

characteristics of the students children of same-sex

5

couples cannot be distinguished with statistical certainty

6

from children of heterosexual married couples”; correct?

7

A That’s correct, but that’s not all that he says.

8

Q Of course, that’s not all that he said. But you

9

claimed he did not qualify his conclusions with the

10

limitation of statistical significance and that clearly

11

shows he did --

12

A I claim --

13

MS. HEYSE: Objection, your Honor. Argumentative.

14

THE COURT: It’s argument.

15

What’s your question?

16

A I claim --

17

MS. HEYSE: Your Honor --

18

THE COURT: Wait, wait.

19

MS. HEYSE: Objection.

20

THE COURT: Sustained.

21

MR. MOGILL: Okay. Sorry.

22

THE COURT: You can’t argue.

23

MR. MOGILL: I apologize.

24

THE COURT: You have to ask a specific question,

25

and then the Doctor can answer a specific question.

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A I claim that he confuses the two. So in places like

2

that he says statistical significance, but in other places

3

he says the following. So if I could quote from my report

4

--

5

BY MR. MOGILL:

6

Q Sure, quote from your report.

7

A I’m quoting from Paragraph 20. Paragraph 20 reads --

8

Q Just a second, I want to get my hands on it. All

9

right. It’s closer to me than I thought.

10

A In Paragraph 20 I say,

11

“Rosenfeld found that children raised by same-sex

12

couples ‘cannot be distinguished with statistical certainty

13

from children of heterosexual married couples.’”

14

That’s true. That’s what you just quoted.

15

However, he concluded from this that,

16

“Children of same-sex couples appear to have no

17

inherent developmental disadvantage.”

18

In other words, there’s no difference.

19

And that,

20

“The analysis in this article, the first to use

21

large sample nationally representative data, shows that

22

children raised by same-sex couples have no fundamental

23

deficits in making normal progress through school.”

24

That’s a statement about a difference, not a

25

statistical difference.

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Q Professor, there is not one place in the entire

2

demography study by Professor Rosenfeld where he claims

3

that there is no difference as oppose to no statistical

4

difference; isn’t that correct, and -- I know this is a

5

compound question, but I’m sure you can follow. What you’re

6

referring to is not what Professor Rosenfeld said, but your

7

interpretation of that; isn’t that correct?

8

A No, it’s false. I mean, when he says there’s no

9

fundamental deficit how would you interpret that other than

10

to say there’s no difference. Or when he says “appear to

11

have no inherent developmental disadvantage.” That sounds

12

to me like no difference.

13

Q It could sound reasonably -- it could reasonably sound

14

to a whole lot of other people when they take the study in

15

context that what he means is exactly what he said that

16

there is no statistically significant difference; isn’t

17

that also correct?

18

A No --

19

MS. HEYSE: Objection, your Honor. Calls for

20

speculation.

21

THE COURT: Plus, it’s argument. He can’t tell

22

what other people -- he can only say what -- how he

23

interprets it.

24

BY MR. MOGILL:

25

Q Professor, let’s talk a little bit -- why don’t we

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collect that so it’s not in your way.

2

While we’re on the subject of actual versus

3

statistically significant differences, would it be fair to

4

say that a reason for noting that distinction is because

5

it’s important in research and reporting research to be

6

precise?

7

A I think it’s a bigger issue than that.

8

Q Okay. It’s a bigger issue than that but is it also

9

important to be precise?

10

A You mean precise in language?

11

Q Precise in language, precise with respect to numbers

12

when you’re using numbers.

13

A Well, being precise is important but, again, I think

14

there’s --

15

Q There’s more to it.

16

A There’s more to it.

17

Q Okay. Now, we’re going to talk in a while about your

18

Canadian Census Study, but looking ahead to that, for

19

example, you break down household types by gay and lesbian

20

and the children in the household by boy and girl; right?

21

A Correct.

22

Q And an example of an actual difference that you found

23

is that boys who are living in a gay household are, in

24

fact, 61 percent more likely to graduate high school than

25

children living in an opposite sex married household;

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correct?

2

A That’s correct.

3

Q And you indicate that in your opinion based on your

4

analysis of the data that that particular figure is

5

statistically insignificant.

6

A That’s correct, it is statistically insignificant.

7

Q I’m not quarreling with that.

8

A Okay.

9

Q I’m not quarreling with the fact that you find that to

10

be statistically insignificant.

11

Now, my point is that would be an example of

12

something that there’s a difference but in your opinion

13

it’s not a statistically significant difference; correct?

14

A Correct.

15

Q All right. Now that I’ve started down this path of

16

actual versus statistically significant difference, there

17

was one more question I wanted to ask you about Professor

18

Rosenfeld Study and your and your colleagues’ critique of

19

that study; okay?

20

A Okay.

21

Q You made a comment about that study in your Canadian

22

Census -- your report of your study on the Canadian Census;

23

correct?

24

A Correct.

25

Q You talk about that at page 642; correct?

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A I don’t have it in front of me. I’m sure it’s in this

2

binder, but do we know --

3

MS. HEYSE: Exhibit 15.

4

THE WITNESS: Mine are not paginated.

5

MR. MOGILL: For the record the copy of the

6

exhibit that Professor Allen is looking at has the page

7

numbers cut off. So it took us a second to both literally

8

be on the same page.

9

THE COURT: Okay.

10

BY MR. MOGILL:

11

Q So, we’re both on the same page now, Professor?

12

A Correct.

13

Q The page before the section starting with “Data.”

14

A Correct.

15

Q All right. And the second from last full paragraph on

16

that page is where you discuss Professor Rosenfeld’s study

17

and your and your colleagues response to it; correct?

18

A Correct.

19

Q And it’s correct, is it not, that with respect to the

20

two studies you indicate,

21

“The increased chance of failing a grade --

22

especially when the correlation magnitude is so close to

23

that of single parents -- could likely be the result of a

24

previous divorce or separation since many children in same-

25

sex households were initially born into opposite sex

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families that later broke apart. The ‘same-sex’ aspect of

2

these parents may have nothing to do with slower grade

3

progress.”

4

You said that; right?

5

A I said that.

6

Q You can put that away now so it’s not in your way.

7

So this morning you testified about the figures

8

you used in your report; correct?

9

A Correct.

10

Q You testified that they weren’t meant to be precise;

11

correct?

12

A Correct.

13

Q I believe you characterized the figures as “stylized”?

14

A And a metaphor.

15

Q I was going to go there in a second.

16

You also testified that you weren’t purporting

17

that those drawings on that figure were intended to

18

represent what Professor Rosenfeld actually found; correct?

19

A They’re not based on numerical values, that’s correct.

20

Q Okay. So when we look at Figure 2, if you look at what

21

you’ve got represented as children in traditional families,

22

that would be children being raised by heterosexual

23

parents; is that correct?

24

A Correct.

25

Q And children in foster care?

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A Correct.

2

Q If you just took a look at that figure what a reader

3

might -- would reasonably interpret is that the figure

4

suggests that at age eight there’s about a full grade

5

difference in progress between kids being raised in a

6

traditional home and kids being raised in foster care;

7

right?

8

MS. HEYSE: Objection, your Honor. It calls for

9

speculation. He doesn’t know what readers -- how readers

10

are going to interpret something.

11

MR. MOGILL: You know, if you want me to rephrase

12

it, I’m happy to, but I think the point is pretty

13

straightforward.

14

THE COURT: You can rephrase it.

15

BY MR. MOGILL:

16

Q Okay.

17

THE COURT: How about, does it show that?

18

MR. MOGILL: I like that.

19

BY MR. MOGILL:

20

Q Does it show that?

21

A Yes.

22

Q That’s not accurate though; is it?

23

A No.

24

Q It wasn’t meant to be accurate.

25

A Not meant to be accurate.

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Q Did you say in your report, Professor Allen, that was

2

not accurate and was not intended to be accurate?

3

A I didn’t think I had to. I said it was stylized and

4

metaphor.

5

Q Is the answer to my question yes or no?

6

A No.

7

Q With respect to the oval representing kids raised in

8

same-sex families the figure shows that based on -- this is

9

supposedly based on Professor Rosenfeld’s data that at age

10

eight you can’t tell whether a child is in first grade or

11

even lower, or fourth grade. That’s what that shows;

12

doesn’t it?

13

A Sure.

14

Q That’s not accurate either; is it?

15

A No.

16

Q Have you ever said that your figures were meant to

17

represent what Professor Rosenfeld actually found?

18

A What I said early, what I intended to say was that

19

figure captures the essence of the difference between

20

statistical and actual difference, the problem that was in

21

Rosenfeld’s paper.

22

Q Do you have your report in front of you?

23

A I do.

24

Q Take a look at Paragraph 26.

25

A All right.

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Q Why don’t you read Paragraph 26 in its entirety?

2

A “However, Rosenfeld did not find a result that

3

corresponded with Figure 1. What Rosenfeld actually found

4

is represented in Figure 2.”

5

Q You said “actually found”; didn’t you?

6

A What “actually found is represented.”

7

So when I say “actually found” I’m referring to

8

back -- if you go back to the beginning of Paragraph 24 I

9

say,

10

“To explain this important point,” namely the

11

difference between statistical difference and actual

12

difference, consider the following stylized diagram.

13

So when I say “actually found” what I’m

14

referencing there is the important point which is this

15

difference.

16

Q That’s your explanation?

17

A That’s my explanation.

18

Q Now, let’s move on to your 2013 study based on the

19

Canadian Census.

20

A All right.

21

Q Does it exactly replicate what Professor Rosenfeld did

22

with the U.S. Census in his 2010 demography study?

23

A No, as I said this morning, it’s a Rosenfeld like

24

experiment.

25

Q Did you testify at your deposition that what you did

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was exactly the Rosenfeld experiment “in Canada”?

2

A I’d have to see that. I don’t recall saying that, but

3

I might have.

4

MS. HEYSE: Page?

5

MR. MOGILL: Page 87.

6

THE COURT: Line?

7

MR. MOGILL: Lines 15 and 16.

8

A Well, I guess I did say that.

9

BY MR. MOGILL:

10

Q Professor Allen, you claim that there are a number of

11

advantages to using the Canadian Census from 2006 over the

12

U.S. Census -- 2000 Census used by Professor Rosenfeld;

13

correct?

14

A Correct.

15

Q And you went through those on Direct and I’d like to

16

ask you a few questions about that if we might.

17

A No problem.

18

Q One of the advantages you claim for the Canadian

19

Census is that in the Canadian Census same-sex couples are

20

self-identified.

21

A Correct.

22

Q Now, do you have a copy of the Canadian Census in

23

front of you?

24

A No.

25

Q I’m going to ask you a couple of questions and if you

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need to take a look at it, just let me know.

2

A Is that the long form or the short form?

3

Q The long form.

4

A The long form, okay.

5

Q It’s correct, is it not, that while the Canadian

6

Census directly identifies same-sex or opposite sex

7

cohabiting couples it does not directly identify same-sex

8

or opposite sex married couples?

9

A You brought this up at the deposition, and I said at

10

the deposition that I had checked with Stats Canada on

11

whether or not they could identify, self-identify same-sex

12

couples married or cohabiting. They had said yes. I’ve

13

since checked that and they agree. Whether it comes -- how

14

it comes from the Census forms I don’t know.

15

Q Okay. Let’s take a look at the Census form.

16

I’m going to give you a point. It is closer to

17

being self-identification in the Canadian Census than it is

18

in the American Census; correct?

19

A According to Stats Canada they tell me that self-

20

identified --

21

MS. HEYSE: Ken, do you have a copy of that?

22

MR. MOGILL: You know, I don’t have an extra copy,

23

but I’ll share it with you.

24

THE COURT: You can all gather around the witness.

25

Usually we don’t let everybody come so close to

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you, but we’ll do it for this time, Doctor.

2

The two of you are fine. The witness sometimes

3

when attorneys get to close to them say, oh, what’s going

4

on here.

5

THE WITNESS: That’s right. It’s very threatening.

6

THE COURT: It is. That’s why -- the two of you

7

are not threatening. That’s why you ask permission to

8

approach the witness. It’s not so much the formality, it’s

9

more for the witness so they understand it’s okay, and

10

you’re not coming up on their space.

11

MS. HEYSE: Thank you, your Honor.

12

BY MR. MOGILL:

13

Q So Professor Allen, I want to show you a document.

14

It’s the long form of 2006 Census Data.

15

A All right.

16

Q Question 6, third column, dealing with person 2, the

17

first three bubbles. The second and third bubbles allow for

18

direct identification whether it’s same-sex or opposite

19

sex, cohabiting; right?

20

A That’s correct.

21

Q The first bubble is just husband or wife.

22

A Correct.

23

Q Without that same breakdown as same-sex or opposite

24

sex; right?

25

A Correct.

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Q Now, above there you’ve got person 1 and identify

2

gender versus 2 identify gender; right?

3

A Correct.

4

Q Okay. But it doesn’t directly identify same-sex

5

married the same way it directly identifies same-sex

6

cohabiting; correct?

7

A If that’s the only question --

8

Q And I’m not questioning --

9

MS. HEYSE: Your Honor, I would ask that he be

10

allowed to finish.

11

THE COURT: Let him finish.

12

A If that’s the only question that’s identifying the

13

same-sex couple then you’re correct.

14

BY MR. MOGILL:

15

Q I would represent -- do you have any reason to believe

16

that this is not the only question?

17

A Only by my conversations with the statisticians at

18

Stats Canada who tell me that they --

19

Q There’s going to have a question mark --

20

MS. HEYSE: Your Honor, he’s arguing again.

21

THE COURT: Wait. Ask your question.

22

MR. MOGILL: Okay.

23

BY MR. MOGILL:

24

Q It’s important to distinguish what they can correlate

25

from the data from whether or not there’s an additional

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question that I haven’t showed you; correct?

2

A So in the code book, the code book says are you a

3

child of a married or common law same-sex couple. I’ve

4

asked Stats Canada, you know, are you identifying the

5

married and common law couples. They tell me yes. So how

6

they do it, I don’t know.

7

Q All right. Now, with respect to the self-

8

identification issue and the advantages as you assert them

9

of the 2006 Canadian Census one of the points that you make

10

is that because same-sex marriage was legalized in Canada

11

in 2006, it promoted better self-identification, better

12

openness and responses; correct?

13

A Correct.

14

Q And you address this in your study; correct?

15

A Correct.

16

Q In fact, what you indicated was that your study uses

17

information from a country -- excuse me.

18

That legalization reduces the stress and “stigma”

19

-- I’m going to back up so I put in quotes what needs to be

20

in quotes.

21

What you said at page 638 --

22

A Sorry, where are you reading from?

23

Q This is page 638 --

24

A Is it a footnote or something?

25

Q The page that’s got footnotes 5, 6, 7 on it.

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A All right.

2

Q Okay.

3

A And you’re reading from?

4

Q The third from the last and the second from the last

5

lines.

6

“Legalization reduces the stress and” --

7

A I’m noting this is someone else said this; right?

8

Q Yes, but you’re adopting it as something that you’re

9

relying on; right?

10

A Yep.

11

Q “Legalization reduces the stress and stigma of

12

homosexuality, and encourages honest participation in

13

census questions.”

14

Correct?

15

A Correct.

16

Q You also said that families -- an advantage is that

17

family stability is directly controlled for; right?

18

A I have a measure of family stability, yes.

19

Q Okay. And tell the Court, please, what you mean by

20

family stability.

21

A So there’s a question that asks your current marital

22

status.

23

Q Okay. Is it or is it not your position or your belief

24

that the Canadian 2006 Census provides information about

25

prior marital history? Any previous divorces? If someone

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says they’re married now, and you don’t know whether they

2

were married before or divorced before, things like that.

3

A So I don’t know how many divorces -- if somebody says

4

they’re divorced I don’t know how many divorces. If

5

somebody says divorced I don’t know when the divorce took

6

place. If somebody says they’re married they could have

7

been divorced and married so. So there’s a measurement

8

error there, right, a measurement error that would make

9

these results better in terms of performance of children in

10

households with respect to opposite sex households. So the

11

biases are going in the opposite way. So if I’m finding a

12

number like an odds ratio of .69 maybe it’s really .65 or

13

something.

14

Q The question was --

15

A Is it a perfect measure? No.

16

Q Excuse me, if you would answer my question.

17

A I’m sorry. I’m use to asking questions.

18

Q I understand. I teach, too, but we’re not in a

19

classroom now.

20

A We’re sure not.

21

Q The question is: Whether the Canadian Census allows

22

you -- provides you with information on prior marital

23

history, and it’s correct, is it not, that the answer to

24

that question is no?

25

A No, that’s not correct. It provides information.

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Q As to prior marriages or divorces?

2

A If you say you’re divorced, you were divorced in the

3

past, right?

4

Q But you don’t know how many, you don’t know if there

5

was another marriage --

6

A True, it’s not a perfect measure, but it provides

7

information on your marital history.

8

Q Would it be fair to say that it provides limited

9

information on prior marital history?

10

A It would be fair to say that.

11

Q Okay. Now, because you were dealing with young people

12

who were ages 17 to 22 in 2006, you were dealing with young

13

adults who were born between the ages of 1979 and 1984;

14

correct?

15

A Correct.

16

Q Those children were born prior to the time that same-

17

sex marriage was legal in Canada; correct?

18

A Correct.

19

Q For the oldest ones they came very far along in school

20

prior to the time same-sex marriage was legal in Canada.

21

A Correct.

22

Q And I think you would not disagree -- tell me if I’m

23

wrong -- with the fact that many of those children who in

24

2006, were living in same-sex households had previously

25

lived in an opposite sex household where their parents had

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divorced, broken up, some kind of separation or transition;

2

right?

3

A Yes.

4

Q Okay. Now, I’d like to ask you a couple of questions

5

about the differences in the measurement of capacity of the

6

Canadian Census from 2006, and the U.S. Census from 2010;

7

okay?

8

A Capacity, what do you mean?

9

Q Well, Professor Rosenfeld in his study was measuring

10

whether there was normal progress through grades; right?

11

A Correct.

12

Q Did the 2006 Canadian Census allow you to determine

13

whether a child was making normal progress through the

14

grades?

15

A No.

16

Q Because the only identifier in the 2006 Canadian

17

Census that goes to that question was whether or not the

18

individual had graduated from high school or not as of that

19

moment in time; correct?

20

A Correct.

21

Q If a child was having difficulty in progressing

22

through school the Canadian Census does not give you any

23

information as to when that child began having difficulty

24

progressing through school; correct?

25

A That’s correct.

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Q With whom the child was living with at the time she or

2

he began having difficulty progressing through school;

3

correct?

4

A That’s correct.

5

Q What transitions in residence or who the care giver

6

was, parental figures were prior to the time they arrived

7

at their current household with the limited exception of

8

the limited parental-martial history that is available;

9

correct?

10

A I’m sorry, there was a cough there, I missed --

11

Q It was very unkind of him to cough.

12

THE COURT: Oh, it’s Mr. Pitt.

13

THE WITNESS: A very strategic cough there.

14

THE COURT: He wanted to let all us know he’s

15

awake. I’ve been watching him, he’s been awake the whole

16

trial.

17

BY MR. MOGILL:

18

Q The Canadian Census of 2006 doesn’t give you

19

information as to transitions the child might have

20

experienced while growing up other than the limited marital

21

history information we’ve already discussed; correct?

22

A Plus, the five-year residency question. But the two of

23

them, yes, those limited measures.

24

Q Okay. And we’ll talk about the five-year residency.

25

A I know we will.

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THE COURT: Let me ask you one question. Do you

2

have a lot more to go? That’s fine. I don’t care.

3

MR. MOGILL: I don’t think I have a lot more to

4

go.

5

THE COURT: Just because of Joan’s hands. Like by

6

1:00; do you think?

7

MR. MOGILL: Yes.

8

THE COURT: Oh, good. I mean, I don’t want to

9

break for lunch and come back for a bit.

10

MR. MOGILL: Allen has a long way to go.

11

THE COURT: Okay. Give or take.

12

BY MR. MOGILL:

13

Q It’s correct, is it not, Professor Allen, that unlike

14

the United States Census which separates out children by

15

whether it’s a natural born child, a step child, an adopted

16

child, or a foster child the Canadian Census lumps them all

17

together; correct?

18

A That’s correct.

19

Q Now, you talked a little bit on Direct Examination

20

about this decision to have your sample include children,

21

young adults as it were, ages 17 to 22; right?

22

A Correct.

23

Q And you acknowledge that there was an issue there;

24

correct?

25

A Correct.

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Q If I recall correctly you identified that as a

2

legitimate concern.

3

A Correct.

4

Q Let’s clarify for the Court the factual possibilities

5

when you’ve got kids that you’re looking at here, okay. You

6

can have someone who has -- whether it’s a same-sex or

7

opposite sex household, someone who has graduated from high

8

school and is living at home, okay -- this is just among

9

graduates, okay?

10

A Okay.

11

Q If someone has graduated from high school and is

12

living at home they’re going to get picked up; right?

13

A Yes.

14

Q If someone has graduated from high school and is away

15

at college but comes home during the summer they’re going

16

to get picked up; correct?

17

A Correct.

18

Q And if someone has graduated from high school and

19

moved on and is not coming home for the summer they don’t

20

get picked up.

21

A That’s correct.

22

Q Even though they will have graduated from high school

23

on time whether it’s a same sex or opposite household;

24

right?

25

A Correct.

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Q And so -- I think as you testified, you made a

2

compromise and decided this was a good range to run but

3

acknowledged that there was a balancing act and there are

4

concerns.

5

A I also testified that I made robustness checks --

6

Q You testified that you made robustness checks, and

7

that’s part of how you came to your conclusion; right?

8

A Correct.

9

Q While you report and I have no reason -- I’m not

10

questioning this, that you control for disability among

11

your controls, it is a fact that among the data you found

12

was that children in the same-sex households about 13

13

percent of them were disabled whereas in opposite sex

14

households it was about 6 percent; correct?

15

A That’s correct.

16

Q You testified this morning in Direct that the essence

17

of your conclusions is pretty much summed up Table 5;

18

right?

19

A Let me see. No, I think the essence is summed up in

20

Table 6.

21

Q Let’s make sure we’re on the same page.

22

Table 5 is the essence of your findings before

23

you break down the family structure by boys and girls and

24

gay and lesbian.

25

A That’s true.

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Q Table 6 is after you do that breakdown.

2

A That’s right.

3

Q So before you do the breakdown tell the Court what you

4

claim to be the main finding of your study?

5

A I would say the main finding has to do with

6

Column 3, all right. And the main finding is that for gay

7

households there is a negative effect on children that’s

8

statistically significant. For lesbians there’s a

9

difference, but it’s not statistically significant.

10

Q And are you making a claim that this was based on a

11

one-year or five-year residency stability factor?

12

A I think this one is the past year, but I did it also

13

with the five year.

14

Q We’ll get to that in a minute.

15

A Okay.

16

Q And your Table 6 is also based on one year; correct?

17

A Based on the last year, correct.

18

Q Okay. Is it your claim, Professor Allen, that your

19

paper is studying the effect of growing up in a same-sex

20

household?

21

A I think I made it very clear in the paper that I’m

22

talking about people who are living in a same-sex

23

household.

24

Q And that that’s a difference; right?

25

A That’s a difference.

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Q In fact, you make that plain in your paper in Footnote

2

9; isn’t that correct?

3

A That’s correct.

4

Q Why don’t you read Footnote 9 in its entirety, please,

5

Professor?

6

A “The census is not a panel, and provides and only a

7

snap shot of the population. As a result, this paper does

8

not study the effect of growing up in a same-sex household,

9

but rather examines the association of school performance

10

for those children who lived with same-sex parents in

11

2006.”

12

Q So if Ms. Heyse asked you the question this morning

13

and if Professor Price testified yesterday and I’m

14

asserting to you he did that looking at your Canadian

15

Census study gives information about growing up, or I think

16

the phrase in both of their -- in her question today and

17

his testimony yesterday was being raised in a same-sex

18

household, both the question and the testimony yesterday

19

are incorrect; isn’t that correct?

20

A No, I don’t think so.

21

May I explain?

22

Q No.

23

You do run a regression -- you do run a table for

24

five years.

25

A I do -- I did.

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Q I want to back up for a second. There’s no ifs ands

2

and buts in your paper or in Footnote 9 with respect to the

3

statement that this paper does not study the effect of

4

growing up in a same-sex household; correct?

5

A That’s what it says.

6

Q Those are your own words; right?

7

A Those are my own words.

8

Q So then you’ve got your Table 5 and Table 6 based on

9

one-year residency; right?

10

A Correct.

11

Q And those show approximately a 35 percent difference

12

--

13

A Yes.

14

Q But you also took a look at the numbers where there

15

had been five years of residential continuity; right?

16

A Right.

17

Q And it’s correct, is it not, Professor Allen, that you

18

find no statistically significant difference in high school

19

graduation rates between the children of opposite sex

20

married families and children of gay or lesbian parents

21

when controlling for parental education and marital status

22

based on five years of residency.

23

A Where are you reading that?

24

Q That’s my question.

25

A No, are you quoting that from somewhere?

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Q I’m asking you a question.

2

MS. HEYSE: Your Honor, I would ask if he’s

3

quoting from something that it be identified so that --

4

MR. MOGILL: If I’m quoting from some place, I’m

5

putting quotes around it and identifying it to the witness.

6

THE COURT: Very well.

7

A So when I originally submitted this paper to the

8

journal I submitted both the one year and the five year.

9

And the editor --

10

BY MR. MOGILL:

11

Q I’m sorry, I’m going to interrupt you because --

12

THE COURT: Just answer the question.

13

A No, I did not find that. The results were virtually

14

identical, I believe.

15

BY MR. MOGILL:

16

Q All right. Look at Table 8 which you identify as the

17

Appendix, and look at column 3.

18

A Table 8. Okay.

19

Q Column 3 is where you control for parental education

20

and marital status. Asterisks mean statistically

21

significant difference; correct?

22

A Okay, correct, yeah. There is it.

23

Q There is not statistically significant difference in

24

high school graduation rates of children age 17, 22 living

25

in an opposite sex or a same-sex household according to

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your own data when there’s been five years of residential

2

stability; isn’t that right?

3

A That’s correct, yes.

4

Q You don’t discuss that in your report; do you?

5

A Well, because I think for me Table 7 as I said earlier

6

was the interesting table, the chief outcome of the paper.

7

Q There’s no question though that your own report finds

8

no statistically significant difference in graduation rates

9

when you control for parental education and marital status

10

and when you do control for five years of residential

11

stability; correct?

12

A When you don’t divide the boys and girls up, yes.

13

Q Now, moving on, you have or have had affiliations with

14

a number of organizations and you talked a little bit about

15

this on Direct that are actively opposed to same-sex

16

marriage; right?

17

A Correct.

18

Q The Heritage Foundation.

19

A I’ve been to a meeting at the Heritage Foundation,

20

yes, and that phone conversation -- a conference call.

21

Q One meeting or two meetings?

22

A I testified it was two meetings at the deposition

23

because my memory was that I had met Brad Wilcox and I met

24

Joe Price there, and in my memory I thought that was two

25

separate meetings. When I got back I double-checked and

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found out it was only one meeting.

2

Q Okay. And the purpose of the meeting, of course, was

3

to address issues around planning for further activities to

4

oppose legalization of same-sex marriage in the United

5

States; correct?

6

A False.

7

Q It’s just a coincidence you’re at -- your various

8

opponents of same-sex marriage were at the Heritage

9

Foundation for a meeting?

10

MS. HEYSE: Objection, your Honor. That’s

11

argumentative and it’s been asked and answered.

12

THE COURT: I haven’t heard the question yet.

13

MR. MOGILL: I’ll ask a different question.

14

BY MR. MOGILL:

15

Q Regardless of the purpose of the meeting, Brad Wilcox

16

was there; right?

17

A Yes.

18

Q Maggie Gallagher was there.

19

A Yes.

20

Q And you and Maggie Gallagher have co-authored at least

21

one paper together.

22

A Correct.

23

Q And she is a very passionate opponent of same-sex

24

marriage; is she not?

25

A Correct.

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Q You mentioned that Professor Price was there.

2

A Correct.

3

Q Professor Regnerus.

4

A I don’t think he was there.

5

Q You testified at your deposition --

6

A Yeah, I know. Afterwards I was thinking, I don’t think

7

I met him there.

8

Q Okay. David Blankenhorn.

9

A He was there.

10

Q And he was an individual I think you testified at your

11

deposition who had been a witness opposing same-sex

12

marriage in the Perry case who later changed his position

13

to supporting it; correct?

14

A Correct.

15

Q Now, you also indicated that you’re affiliated with

16

the Ruth Institute.

17

A Correct.

18

Q And the slogan of the Ruth Institute is marriage, one

19

man, one woman for life; correct?

20

A Correct.

21

Q You’re on a circle of experts. You explained on Direct

22

what that does or not entail; right?

23

A Correct.

24

Q I asked you at your deposition whether you were or

25

ever had been a board member and you said no.

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A Right.

2

Q I want to show you something.

3

Professor, I just handed you something that

4

appears to be -- I would suggest to you it taken from the

5

Ruth Institute website. Does that look like something from

6

the Ruth Institute website?

7

A The top logo looks like it is, yeah.

8

Q One man, one woman for life.

9

A Yep.

10

Q As you start coming down the page it’s got information

11

with your name on it and several different locations;

12

correct?

13

A Correct.

14

Q And about the fourth time your name is mentioned the

15

first thing it says is Ruth Board, and then your name.

16

A Right.

17

Q Doug Allen.

18

A Right. That’s false.

19

Q So it’s your testimony that if the Ruth Institute is

20

holding you out as a board member the Ruth Institute is

21

wrong.

22

A Absolutely.

23

Q Just a couple more questions. I want to ask you,

24

Professor, for a self-assessment of whether you are in any

25

way biased in your research, interpretation of data, as it

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pertains to this case because of your views on

2

homosexuality?

3

A Are you asking me a question?

4

Q That’s the question.

5

A What’s the question, am I biased?

6

Q Yes.

7

A I don’t believe I’m biased.

8

Q Okay. It is correct, is it not, and you testified to

9

your religious affiliation on Direct Examination; right?

10

A Correct.

11

Q It is correct, is it not, that as part of your

12

religious belief --

13

MS. HEYSE: Objection, your Honor.

14

THE COURT: Sustained.

15

MS. HEYSE: Thank you.

16

THE COURT: You opened the door so I’ll give him a

17

little -- one question.

18

Go on.

19

MR. MOGILL: That’s fine.

20

BY MR. MOGILL:

21

Q It’s correct, is it not, Professor Allen, as you

22

testified at pages 13 and 14 of your deposition that the

23

consequence of engaging in homosexual acts quote, means

24

eternal separation from God, in other words going to hell,

25

unquote.

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A If it’s not repented, yes.

2

MR. MOGILL: Nothing further.

3

THE COURT: Any further, counsel?

4

MS. HEYSE: Yes, your Honor. I do and I know

5

you’re interested in taking a break and I probably will

6

take a few minutes --

7

THE COURT: Go on.

8

MS. HEYSE: It’s going to be a little bit.

9

THE COURT: I don’t want to rush you but it also

10

would be nice -- if that okay, Joan?

11

THE WITNESS: I’m totally fine.

12

THE COURT: Pardon?

13

THE WITNESS: Sorry, I thought you were talking to

14

me.

15

THE COURT: No, no. I want to get you out, too.

16

Go on. Take your time.

17

Joan, if you get too fatigued -- she’ll let us

18

know.

19

MS. HEYSE: It won’t take long.

20

THE COURT: Joan will let us know. She’s not

21

bashful.

22

MS. HEYSE: All right.

23

REDIRECT EXAMINATION

24

BY MS. HEYSE:

25

Q Doctor Allen, early on in Mr. Mogill’s Cross-

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Examination he had referred you to a quote about apples and

2

oranges in talking about Dr. Regnerus study. It appeared

3

that you wanted to expand on that. Can you tell me what in

4

addition to what you’ve had already said you would still

5

like to say?

6

A I think we actually did expand on it during his other

7

questions, but basically that he -- there’s this tradeoff

8

on, that he wants to increase his sample size that’s

9

causing this problem. The problem is arising from the fact

10

that he can’t separate out instability from same-sex

11

households. And so he’s either left with nothing. The

12

stable households are very small, or he’s going to

13

introduce his instability and have a larger sample size.

14

That’s all I wanted to say.

15

Q These are somewhat complicated concepts. Is there a

16

drawing or an illustration that you could do that would

17

help us understand how that works?

18

A I could represent it on a graph.

19

MS. HEYSE: May he approach and work off of the

20

Elmo?

21

THE COURT: Of course.

22

A It’s just a way of understanding what’s going on in a

23

lot of these regressions.

24

So let “Y” -- “Y” is the dependent variable. So

25

it’s normal progress through school, or it’s graduating

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from high school, or something like that. And the circle

2

represents just a variation that you have in the data.

3

Suppose we’re interested in the effect of some

4

variable “X1" on the variable “Y”. There’s some overlap or

5

influence, correlation between “X1" and “Y”. And if we just

6

had a simple regression that we’re regressing “Y” on “X1"

7

the computer would use this information to have the

8

estimate. It would use that. That’s what it would use to

9

estimate the coefficient. And the more overlap there is the

10

smaller the standard errors and the more power you’ve got.

11

When you’ve got two variables that you’re

12

interested in, so maybe this is education, maybe this is

13

household type, you’ve got a problem with this overlapping

14

variation here. And what a computer essentially does is it

15

ignores that variation, and it uses just this information

16

over here to estimate the effect of “X1", and this

17

information over here to estimate the effect of “X2".

18

The information is less, there’s less information

19

which means the standard errors go up. But it’s unbiased

20

because you’re not counting this information here. This is

21

why it’s important to control for family stability, etc.,

22

because if you don’t control for that the computer is going

23

to use this information and have a bias estimate.

24

The problem with a lot of these studies is you’ve

25

got this going on (indicating). You’ve got -- here’s your

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outcome variable. Here’s your -- suppose this is your

2

household-type variable, your same-sex variable. And now

3

when you add stability you get this (indicating.) You get

4

so much overlap that effectively being unstable is often --

5

almost the same thing as being same sex.

6

We didn’t talk about the Potter Study today, but

7

in Regnerus it’s the same thing. There’s so much overlap

8

between being unstable and being part of a same-sex

9

household that there’s -- the computer basically ignores

10

all this overlap. But all that overlap is basically all the

11

variation in the same-sex household. So what you find is no

12

statistical effect. But the computer just doesn’t have any

13

information to identify that effect. It’s identifying an

14

effect for stability over here because there is some

15

independent variation. And that’s what’s often the

16

fundamental problem here. We don’t have enough data to

17

separate out all these things.

18

So Regnerus, you know, he had so much overlap

19

here that when he was left over he just had two

20

observations that weren’t part of that overlap, and that’s

21

his fundamental problem.

22

THE COURT: You say the computer, who writes the

23

programs?

24

THE WITNESS: So you’re using a statistical

25

package. Most of us are using a package called --

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THE COURT: There are packages. So you may be

2

using the same package as others.

3

THE WITNESS: Right. And within the package you

4

write a code, but the code would say “Y” is the dependent

5

variable --

6

THE COURT: So anybody -- when they say

7

“disclosing the code” that’s what they mean.

8

THE WITNESS: That’s what they mean. They’re

9

saying, you know, the various selections.

10

THE COURT: Right. So the same package --

11

THE WITNESS: Usually, we’re using the same

12

package. You know, there’s about three or four that are

13

common.

14

THE COURT: But when you say certain researchers

15

and scholars disclose they’re disclosing the code in that

16

package so that you know what --

17

THE WITNESS: They’re disclosing their code that

18

they wrote in that package that describes, you know, here’s

19

where I got the variables, here’s what I selected on,

20

here’s how I defined the regression.

21

THE COURT: That’s what I thought, but you just

22

confirmed it.

23

Okay.

24

BY MS. HEYSE:

25

Q So that second drawing that you had up there of Dr.

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Regnerus study essentially he was -- as you mentioned

2

earlier he was making a choice between controlling for

3

stability and having an adequate sample size to make any

4

type determination.

5

A I mean, he does have this problem when he ignores

6

stability he’s going to have this problem of a bias, but

7

he’s increased in sample size. It’s a trade off, and people

8

have to make a judgment call on whether it was the right

9

one or wrong one.

10

Q But the instability is prevalent in these studies.

11

A Yes.

12

Q Okay. And is that because these children are coming

13

into these relationships based upon a failed heterosexual

14

union?

15

A Well, not necessarily just that. I mean, it might be

16

the fact that the same-sex household themselves are

17

unstable.

18

Q Okay. Mr. Mogill referred you to an article in

19

“Mercatonet.”

20

A Correct.

21

Q Do you still have that in front of you?

22

A I don’t have it right in front of me.

23

Q Okay.

24

MS. HEYSE: May I approach?

25

THE COURT: You may.

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BY MS. HEYSE:

2

Q I just want to make clear because there was additional

3

information that came beyond the sentence that Mr. Mogill

4

had you quote. If you could read the sentence that he had

5

you originally recite.

6

A The original one that he had me cite was,

7

“This paper had a large random sample and looked

8

at normal progression through school in the U.S. It was in

9

my opinion the first solid piece of statistical work done

10

on the question and he confirmed the no difference

11

finding.”

12

Q And that’s referring to the Rosenfeld Study; correct?

13

A Correct.

14

Q And can you read slowly the following sentence?

15

A “Later, Joe Price, Catherine Pakaluk, and myself

16

replicated his study and found two problems.”

17

Q Thank you.

18

I believe it’s important to understand the entire

19

--

20

A Context.

21

Q And, again, Dr. Allen, Mr. Mogill had you read

22

Paragraph 29 from your report. If you could read that,

23

please?

24

A The entire paragraph?

25

Q Correct.

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A “Rosenfeld’s justification for the sample restriction

2

was legitimate. He was concerned with comparing apples to

3

apples. If children are adopted or arrive into a family in

4

a non-traditional way then failure to make normal progress

5

in school may be caused by some unmeasured difference that

6

is correlated with the adoption. Likewise, he wanted

7

children who are raised in the same-sex household, not just

8

one who were living there during the time of the census.

9

For both reasons he decided to drop cases from the sample

10

even though such a decision reduced the power of the test

11

significantly.”

12

Q Okay. And then did you go on to further explain that

13

in the next paragraph?

14

A Next paragraph,

15

“Allen, Price, and Pakaluk agreed with the two

16

concerns, but replicated the Rosenfeld experiment using a

17

different procedure. They restored the sample to the full

18

size of 1,610,880 cases...”

19

Q I can stop you there, the point being you did

20

recognize that there were the concerns and you dealt with

21

them, you just did it in a different way; correct?

22

A In a different way.

23

Q Thank you.

24

MS. HEYSE: May I approach again, your Honor?

25

THE COURT: Absolutely.

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BY MS. HEYSE:

2

Q Now, Mr. Mogill also referred you to a quote from your

3

paper that I just handed you and that’s from “High School

4

Graduation Rates”; correct?

5

A Correct.

6

Q And he referred you to I believe the last sentence of

7

that paragraph that’s highlighted -- underlined there?

8

A The one that says “the increased chance”?

9

Q Correct. If you could read that, please?

10

A “The increased chance of failing a grade especially

11

when the correlation magnitude is so close to that of

12

single parents could likely be the result of a previous

13

divorce or separation since many children in same-sex

14

households were initially born into opposite sex families

15

that later broke apart. The ‘same-sex’ aspect of the these

16

parents may have nothing to do with slower grade progress.”

17

Q Okay. Was there some information at the beginning of

18

that paragraph that puts this into context?

19

A The opening sentence says,

20

“A review of the same-sex parenting literature

21

inevitably leads to the conclusion that it is a collection

22

of exploratory studies.”

23

Q Okay. Doctor Allen, why doesn’t Rosenfeld’s study

24

settle the issue of child outcomes?

25

A Well, first off, it’s just the first study, right? I

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mean, it’s only one measure, one study using a 2000 census

2

before there was even any same-sex marriage. So as

3

important as it was it’s just -- the very beginning.

4

Second, the result depends on the method that you

5

use. Although if you just look at the -- including all the

6

own children you find a difference and it is statistically

7

significant. But still you would say it’s not that robust

8

so I don’t think you want -- you know, you can’t draw that

9

firm of a conclusion from just one study. You would want to

10

see lots of different studies, and ones that are better,

11

and use higher quality data, etc.

12

Q And I think you testified earlier on Cross-Examination

13

that you don’t dispute the own child restriction in the

14

Rosenfeld Study.

15

A I just think it should be done properly.

16

Q So you don’t agree with that restriction.

17

A I would prefer to put a control in. I think that’s

18

just a more standard practice. But if you are going to do a

19

sample restriction, you want to make sure that all the own

20

children are actually in the sample, not just some of them.

21

Q And Mr. Mogill in your “High School Graduation Rates”

22

study pointed you to some tables that were limited to a

23

one-year residency restriction. You did, in fact, do your

24

calculations under a five-year residency restriction as

25

well; correct?

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A Correct.

2

MS. HEYSE: If I may approach again, your Honor?

3

THE COURT: Of course.

4

MS. HEYSE: Thank you.

5

BY MS. HEYSE:

6

Q Footnote 9, can you read that for me?

7

A “The census is not a panel, and provides only a

8

snapshot of the population. As a result, this paper does

9

not study the effect of growing up in a same-sex household,

10

but rather examines the association of school performance

11

for those children who lived with the same-sex parents in

12

2006.”

13

Q Is that true of all census data?

14

A That’s true of the U.S. Census as well.

15

Q Okay. I think you wanted to expand on this to some

16

extent --

17

A I just wanted to expand on it so Rosenfeld tries to

18

deal with that with his five-year residency issue. I deal

19

with that with the divorce variable. So it’s a true it’s a

20

snapshot and it’s true -- what I mean by that footnote is,

21

you know, we don’t literally know who’s living -- or who’s

22

being raised by these households. But we try to get at that

23

somehow, and I’m getting at it with the divorce variable.

24

Q And that’s true of the Rosenfeld Study?

25

A Rosenfeld tried to get at it with his five-year

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1

residency variable.

2

Q And that’s true of your replication of the Rosenfeld

3

Study?

4

A For the replication we use the five-year residency

5

variable as well.

6

Q Okay. And I also handed you a copy of Table 8 from

7

your study as well. Mr. Mogill pointed out that you didn’t

8

refer to this particular table in your “High School

9

Graduation Rates” report, can you explain?

10

A It’s just here to show the robustness with the --

11

relevant to Table 5. Like I said, for me when I was writing

12

this paper the most interesting outcome was what happens

13

when you split up the boys and girls. And for me, again,

14

I’m not that interested in the actual point estimates as

15

much as it just looks like the gender matters. I think

16

that’s the take away. I’m not holding this study up as,

17

okay, this is the definitive study. It’s just another

18

study. That’s why I keep saying about how we’re just coming

19

into the door. We’re just starting down this road. The take

20

away for me on this paper is the gender composition looks

21

like it matters, and that’s in a natural experiment kind of

22

context when it really shouldn’t matter. Why would it

23

matter if it was a boy or a girl? So I think that warrants

24

a lot more investigation.

25

Q And that was something new beyond --

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A It’s something new. Rosenfeld didn’t look at it.

2

MS. HEYSE: One more time, your Honor?

3

THE COURT: Sure.

4

BY MS. HEYSE:

5

Q I’m handing you page 87 from your deposition

6

transcript. Mr. Mogill had you refer to -- recite that

7

earlier in your testimony. If you would go to line 13.

8

A So just reading,

9

“As I was working with Canada Census, I realized

10

that the child records were linked to the parent records.

11

Therefore, I could do exactly the Rosenfeld experimenting

12

Canada.”

13

Q You didn’t say you did the Rosenfeld experiment

14

exactly; correct, just that you could.

15

A I could, right.

16

Q Thank you.

17

Doctor Allen, is there any dispute that both the

18

United States Census and the Canadian Census data is

19

limited?

20

A No dispute.

21

Q So, in fact, in using that data we don’t know what’s

22

going on within households; correct?

23

A We’re limited in what we know.

24

Q Okay. So isn’t your dispute with Professor Rosenfeld

25

just further evidence that this area is unsettled?

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A It’s unsettled, that’s right. There’s some evidence

2

that’s there’s a difference, but it’s still at the very

3

beginning of the process.

4

MS. HEYSE: I have no further questions, your

5

Honor.

6

THE COURT: Perfect.

7

You may step down, Doctor.

8

THE WITNESS: Thank you.

9

THE COURT: My understanding is that the State has

10

rested with this being their last witness; is that correct?

11

MS. HEYSE: We’re going to be admitting those

12

reports.

13

THE COURT: I was just going to talk about that.

14

Subject to both sides marking and numbering their

15

expert witnesses that testified reports.

16

Also you can go through the books, make sure

17

everything’s been admitted. I think we’ve been pretty

18

diligent in terms of getting everything admitted. If

19

there’s something, take a look at it and we’ll go from

20

there.

21

We’ll start at 10:00 o’clock tomorrow. We will

22

start with the plaintiffs’ closing argument. We will then

23

go to the Oakland County Clerk Brown’s closing argument.

24

Then we will go to the State defendants’ closing argument.

25

We will then allow the plaintiffs within the time frames

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1

that we have discussed whatever time is left over if they

2

care to use for purposes of rebuttal.

3

Is there anything we should talk about -- oh, one

4

more thing just -- since we’re all here. We talked about

5

this before that any side that wishes to submit either

6

findings of fact, conclusions of law will do so by noon on

7

Monday. They are not required. They will be simultaneous

8

submissions which means just file them. There won’t be any

9

responses or anything of that nature.

10

Starting with the plaintiffs, is there anything

11

-- strike that.

12

My understanding is you’re not calling any

13

rebuttal.

14

MS. STANYAR: That’s correct.

15

THE COURT: Okay. Is there anything that you want

16

to talk about while we’re all here before we start closing

17

arguments tomorrow?

18

MS. STANYAR: I don’t believe so.

19

THE COURT: Okay. How about the State defendants?

20

MS. HEYSE: No, nothing from the State, your

21

Honor.

22

THE COURT: Mr. Pitt, anything?

23

MR. PITT: No.

24

THE COURT: Okay. We’ll see you all tomorrow at

25

10:00 o’clock.

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1

(Proceedings concluded, 1:10 p.m.)

2

-- --- --

3

CERTIFICATE

4

5

I, JOAN L. MORGAN, Official Court Reporter for the

6

United States District Court for the Eastern District of

7

Michigan, appointed pursuant to the provisions of Title 28,

8

United States Code, Section 753, do hereby certify that the

9

foregoing proceedings were had in the within entitled and

10

number cause of the date hereinbefore set forth, and I do

11

hereby certify that the foregoing transcript has been

12

prepared by me or under my direction.

13

14

S:/ JOAN L. MORGAN, CSR

15

Official Court Reporter

16

Detroit, Michigan 48226

17

18

19

20

21

22

23

24

25

March 12, 2014

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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

2

SOUTHERN DIVISION

3 APRIL DEBOER, ET AL.,

4

Plaintiffs,

Case No. 12-10285

-v-

5

RICHARD SNYDER, ET AL.,

6

Defendants.

7 ____________________________________/

VOLUME 4

8

BENCH TRIAL

BEFORE THE HONORABLE BERNARD A. FRIEDMAN

9

United States District Judge

100 U.S. Courthouse & Federal Building

10

231 West Lafayette Boulevard

Detroit, Michigan

11

Friday, February 28, 2014

12 APPEARANCES:

13 For Plaintiffs:
14
15
16 For Defendants:
17 Richard Snyder Bill Schuette
18

Carole M. Stanyar, Esq. Dana M. Nessel, Esq. Kenneth Mogill, Esq. Robert Sedler, Esq. Vicki L. Henry, Esq. Leslie Cooper, Esq.
Kristin M. Heyse, Esq. Joseph E. Potchen, Esq. Michelle Brya, Esq. Tonya C. Jeter, Esq.

19 Lisa Brown 20

Andrea J. Johnson, Esq. Beth M. Rivers, Esq. Michael L. Pitt, Esq.

21

To Obtain a Certified Transcript Contact:

22

Christin E. Russell, RMR, CRR, FCRR, CSR - (248) 420-2720

Proceedings produced by mechanical stenography.

23

Transcript produced by computer-aided Transcription.

24

25

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1

INDEX

2

BENCH TRIAL, VOLUME 4

3

WITNESSES FOR THE PLAINTIFFS:

4

NANCY F. COTT, Ph.D.

Direct Examination by Mr. Mogill

5

Cross-Examination by Ms. Brya

Redirect Examination by Mr. Mogill

6

Motion under Rule 52(c)

7

Argument by Mr. Potchen

Response by Mr. Mogill

8

9

10

11

12 EXHIBITS
13 Exhibit
14 Plaintiffs' Exhibit #500
15

16

17

18

CERTIFICATE OF REPORTER

19

20

21

22

23

24

25

Page 4
44 55 72 75
Page 9
78

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3

1 Detroit, Michigan

2 February 28, 2014

3 8:58 a.m.

4

(Call to Order of the Court.)

5

THE COURT: Thank you, very much. You may be seated.

6 Any preliminary matters from either side?

7

MS. STANYAR: Not for Plaintiffs.

8

THE COURT: Okay. Defense, anything?

9

MS. HEYSE: Nothing.

10

THE COURT: Okay. You may call your witness, please.

11

MS. STANYAR: He stepped out for one minute. Oh, yes.

12 He just went to get the witness.

13

THE COURT: No problem.

14

(Off-the-record discussion.)

15

THE COURT: Next witness?

16

MR. MOGILL: May it please the Court, good morning.

17

THE COURT: Good morning.

18

MR. MOGILL: The next witness is Professor Nancy Cott.

19

THE COURT: Professor, can you step forward? You can

20 set your things down and raise your right hand.

21

(Witness is sworn.)

22

THE COURT: You may be seated. When you've had an

23 opportunity to be seated, if you would be kind enough to give

24 us your full name and spell your last name please, Professor.

25

THE WITNESS: Nancy F. Cott. That's spelled C-O-T-T.

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1

THE COURT: Thank you. You may proceed.

2

MR. MOGILL: Thank you, Judge.

3

NANCY F. COTT, Ph.D.

4

called as a witness at 9:00 a.m. testified as follows:

5

DIRECT EXAMINATION

6 BY MR. MOGILL:

7 Q. Professor, if you could make sure you pull the microphone

8 close to you, so that you are heard throughout the courtroom.

9

Good morning. Professor, how are you employed?

10 A. I am the Jonathan Trumbull, pardon me, Professor of

11 American History at Harvard University, and also the

12 Pforzheimer Family Director of the Schlesigner Library

13 at Radcliffe Institute, which is at Harvard.

14

COURT REPORTER: Can you keep your voice up?

15

THE WITNESS: Oh, of course. Sorry. Did you miss

16 some of that?

17

THE COURT: Yeah. Why don't you repeat it.

18

THE WITNESS: I am the Jonathan Trumbull Professor of

19 American History at Harvard University, and the Pforzheimer

20 Director of the Schlesigner Library on the history of women at

21 the Radcliffe Institute, which is also at Harvard University.

22

THE COURT: Thank you.

23 BY MR. MOGILL:

24 Q. And how long have you been so employed?

25 A. Since 2002.

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5

1 Q. And prior to your appointment at Harvard and Radcliffe, how 2 were you employed? 3 A. I was employed at Yale University in the history department 4 and American studies program, moving from being an assistant 5 professor in 1975 up to being a Sterling Professor, which is 6 Yale's highest honor for a professor in 2001. 7 Q. And while you were at Yale, did you hold any 8 administrative -- fulfill any administrative responsibilities? 9 A. Yes. At various times, I've chaired the women's studies 10 program of which I was a founder. I chaired the American 11 studies program. I was director of graduate studies in 12 American studies. I was the head of the division of the 13 humanities. 14 Q. During the course of your academic career, Professor, have 15 you received any special honors and recognitions? 16 A. Well, various fellowships from the Guggenheim Foundation, 17 the Rockefeller Foundation, the Center For Advanced Study in 18 the Behavioral Sciences, the Harvard Law School, the Ecole des 19 Hautes Etudes in Paris. And I had a Fulbright Lectureship in 20 Japan. Those are some that come to mind immediately. 21 Q. Thank you. Have you published any books? 22 A. Yes. I've published eight books. 23 Q. Okay. And do any of them concern the subject of marriage? 24 A. My most recent book, "Public Vows: A History of Marriage 25 and the Nation."

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6

1 Q. And I'm not offering this as an exhibit, but is this a copy 2 of "Public Vows"? 3 A. It is. 4 Q. Okay. And the others, the subject areas of those, please? 5 A. The others also deal with U.S. history and focus on women, 6 the family, marriage and feminism. 7 Q. Have you published any articles in journals -- do you have 8 any articles in journals published by academic presses? 9 A. Yes. I have oh, about a dozen articles in peer-reviewed 10 journals and maybe twice or three times that number in other 11 invited academic anthologies. 12 Q. Have you also published a number of review essays and 13 reviews and, and the like? 14 A. Yes, very numerous -15 Q. Okay. 16 A. -- reviews. 17 Q. Are those listed in your CV? 18 A. They are. 19 Q. Have you served on any editorial boards of academic 20 journals? 21 A. Yes, quite a number. Yes. I would say the major journals 22 in my field, including the Journal of American History, the 23 Journal of Women's History, the American Quarterly. I'm 24 forgetting, but at least seven or eight editorial boards. 25 Q. The Yale Review, as well?

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7

1 A. Yes. 2 Q. And do you belong to a number of professional organizations 3 in your field? 4 A. Yes. The two most important I would point out are the 5 Organization of American Historians, and the American 6 Historical Association. But I'm also an elected member of the 7 American Antiquarian Society and the Society of American 8 Historians. 9 Q. With respect to the Organization of American Historians, do 10 you hold any elective office? 11 A. Yes. I have, in past, been a member of the Nominating 12 Board, the Executive Board. And at present, I am the 13 vice-president elect, which means that I will be president of 14 the organization in 2016. 15 Q. In your work at Harvard, is it also correct that you teach? 16 A. Oh, yes, I teach. 17 Q. As well as doing research and writing? 18 A. I teach graduate and undergraduate students both. 19 Q. All right. And are any of the course -- in any of the 20 courses that you teach, is the subject of same-sex marriage 21 included in the curriculum? 22 A. Yes. I would say in a fragmentary way, that is in a 23 percentage of the course I do lecture on what's been happening 24 recently, in recent history around same-sex marriage. 25 Q. Okay. In one course or more than one course?

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1 A. In, in my two major lecture courses, one of which covers

2 the history of sexuality over 400 years, and another, which is

3 a 20th century course on, essentially on gender relations in

4 the 20th century in the United States.

5 Q. And is it the name of that course?

6 A. It's called Men and Women in Public and Private.

7 Q. Okay. And, Professor, if you could look at the binder

8 that's immediately to your left, and it should be opened to a

9 page that has a sticker on it.

10 A. Yes. I see it that.

11 Q. Marked Plaintiff's proposed Exhibit 500. If you could take

12 a look at that and let us know whether that is an accurate copy

13 of your curriculum vitae.

14 A. I think it's frankly a little out of date, but it is more

15 or less correct because the top --

16 Q. I know it doesn't have the vice-president elect.

17 A. Well, it doesn't have my most recent honor.

18 Q. Okay.

19 A. But it's roughly, you know, it's basically right.

20 Q. With those caveats?

21 A. Yeah.

22 Q. Okay.

23

MR. MOGILL: With that, I would move for the admission

24 of Plaintiff's proposed Exhibit 500.

25

THE COURT: Any objection?

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1

MS. BRYA: No, your Honor.

2

THE COURT: 500 is received.

3

(Plaintiffs' Exhibit #500 received, 9:07 a.m.)

4 BY MR. MOGILL:

5 Q. Professor, if I could ask you a couple of questions,

6 please, about prior experience as an expert witness. Have you

7 ever testified as an expert witness before?

8 A. I've testified in court only once.

9 Q. Okay. And in what case was that?

10 A. Perry vs. Schwarzenegger in California.

11 Q. Okay. That would have been in 2010; is that correct?

12 A. Yes.

13 Q. And I don't think it's any, is there any question about the

14 subject matter of that case? Was that the same subject matter,

15 in essence, as the subject matter of this case?

16 A. Yes.

17 Q. Have you provided expert witness reports in other cases, in

18 which you ended up not being called as an expert because the

19 cases ended up not going to trial?

20 A. Yes, I have.

21 Q. And are those -- if you could please identify several of

22 those for the record.

23 A. Well, there are quite a few. Quite recently in

24 Pennsylvania and in Texas, in cases there, that are still in

25 process.

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1 Q. If I can interrupt you for a second. Was the Texas case

2 DeLeon vs. Perry?

3 A. Yes.

4 Q. That was just decided two days ago?

5 A. Actually, that was the one that was just decided favorably

6 for the plaintiffs. Yes.

7

And then they are listed on my CV but, let's say -- I

8 don't know. It's hard for me to remember precisely the names

9 of the cases.

10 Q. Okay.

11 A. But they are listed on my CV.

12 Q. Okay. I think the point is they were --

13 A. I'm sorry, not on my CV. On my expert report.

14 Q. Yes. Okay. And the point is there have been a number of

15 them; is that correct?

16 A. Yes.

17

MR. MOGILL: Now, at this point, and if it please the

18 Court, I would offer Professor Cott as an expert in the history

19 of marriage as a public institution.

20

THE COURT: Any objection or voir dire?

21

MS. BRYA: No, your Honor.

22

THE COURT: She may testify as an expert in that area.

23 Thank you.

24 BY MR. MOGILL:

25 Q. Professor, are there more than one areas within the

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1 discipline of history in which you've concentrated your

2 research over the years?

3 A. Yes. They are the -- I've focused mostly on the history of

4 women, marriage, feminism and the family within the larger

5 subject area that I teach, which is the social, cultural and

6 political history of the United States.

7 Q. How did you come to be interested in this area of study

8 and research?

9 A. Well, initially, because of the women's movement of the

10 late '60s and early '70s, I felt it was important to recover

11 the history of women, which have been too little recorded.

12 Q. Okay. And with respect to your interest in marriage in

13 particular, leading to the publication of "Public Vows"?

14 A. I had written several books by that time, focusing on women

15 and the family, and which marriage was also a feature but it

16 was not the main -- the main questions were not concerning

17 marriage.

18

And it seemed to me at a certain point, that the

19 history of marriage as the state had been interested in it, and

20 I meant state-level states in the United States and the federal

21 government, how the institution of marriage had been important

22 to the public and to public authorities, was a history that had

23 not been much attended to. That historians of marriage had

24 mostly tried to pars what had been the changing private

25 experience of being married.

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1

And I thought this was a very interesting set of

2 questions; how marriage, as a public institution authorized by

3 the state had, had great deal of impact on the roles of men and

4 women. And that's what led me to it.

5 Q. How much time did you spend researching before publishing

6 "Public Vows"?

7 A. It took me about ten years to research and write the book.

8 Q. And the name is an interesting name. How did you come by

9 the name, the title, "Public Vows"?

10 A. Well, in my titles, I like paradoxes. One of my earlier

11 books was called "The Bonds of Womanhood," which had a double

12 meaning. Another one was also had a double meaning.

13

And in "Public Vows," I meant the double aspect of

14 marriage, that it is a public institution authorized by the

15 state, and it is a set of vows that a couple makes to one

16 another in public; that's required. They have to have

17 witnesses. So they vow to each other publicly. But also, what

18 marriage means in that it is a legal relationship, is that the

19 public, the state, vows to guarantee the couple's bond. The

20 state will protect that set of vows they make to each other.

21 Q. Which leads to my next question, and that is what are the

22 attributes of marriage?

23 A. I would describe marriage as a civilly authorized public

24 institution, which is both a contract, a civil contract made by

25 two parties to one another by free consent. Yet, at the time

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1 that contract is joined, it also becomes a legal status,

2 because the state has certain requirements for eligibility in

3 licensing marriage, and also has -- places certain obligations

4 upon the partners who agree to marry.

5 Q. What are the purposes of marriage?

6 A. Well, in answering that question, I would answer it from

7 the point of view of the public or the state. What are the

8 state's interests or purposes in marriage, since that is what

9 is relevant here, it seems to me. And they are many.

10

Marriage, overall, is a complex institution, and has

11 -- can be looked at from many aspects: Legal, economic,

12 political, and of course personal. But from the point of view

13 of the state's interest, marriage has the purpose of regulation

14 of governance. It creates social order in the population by

15 having recognized marital couples and households they form.

16

It is, it is very important as an economic

17 institution, in that the couple are obligated to support one

18 another and any dependents that they have. And that is an

19 economic benefit to the state and to society. A marriage

20 creates a legal relationship between the couple and their

21 children, an automatic legal relationship.

22

And in, in the point of view of nation states,

23 marriage has been important, and regulations on marriage have

24 been crucial in forming the populus who compose the people of a

25 nation.

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1 Q. Could you expand on that last one, a little bit, please?

2 A. Well, it's, it's very striking in the history of the United

3 States that there have been discriminatory laws about marriage

4 that have, at past times, that have been intended to describe

5 who are the desirable people to compose the United States.

6

For instance, there were laws in over 40 of the states

7 and territories, at least some period in their history, that

8 prevented a white person from marrying a black person, or in

9 many states an Asian person or a Native-American person. And

10 those laws were, of course, dictated by people's notions of

11 race, but, but also notions of who should be -- what kinds of

12 person should populate the United States.

13 Q. Thank you. Professor, is the capacity or desire to

14 procreate or adopt a requirement of marriage?

15 A. No.

16 Q. Has it been in the past?

17 A. No. No. There are no marriage laws of which I'm aware,

18 and I've looked at a lot, in the history of the United States

19 that put any requirement to bear children.

20 Q. Are there examples of who is eligible to marry, who is

21 unable to procreate that you can use to illustrate this point?

22 A. Well, there have never been later age barriers on marriage,

23 that is, women past menopause are free to marry. There have

24 never been laws that prevent someone who might be known to be

25 sterile from marrying. And so those, I would say, are the, are

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1 the best examples.

2

You can also look at divorce law, where inability to

3 have a child has not been a ground of divorce in any state,

4 including Michigan.

5 Q. Thank you. By the way, with respect to sterility, is there

6 a famous historical example?

7 A. Yes. I like to cite the fact that George Washington, who

8 was, of course, called the father of our country, was known by

9 most people to be sterile, because his wife, Martha Custis had

10 been married earlier, and she had borne two children by her

11 prior marriage. Yet, when George and Martha were married for

12 quite a long time, they had no children. She was young enough.

13 She was quite young when they married. And so this was known.

14

And in fact, he mentioned, was going to mention it in

15 his inaugural speech. He crossed that line out, but his

16 earlier drafts are known. And in fact, it was an advantage to

17 him, because that way, people wouldn't fear that he would try

18 to have a hereditary presidency.

19

But it's interesting to think about as a model for a

20 non-biological family as our First Family, in that George and

21 Martha reared her children and then also reared her grandchild,

22 because her son was killed in the Revolutionary War and had a

23 young child. And they brought that child into the family and

24 reared that child.

25 Q. Thank you. Professor, is there any particular level of

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1 parenting competency that is a requirement for one to be

2 eligible to marry?

3 A. No.

4 Q. Is there any particular test for a division of parental

5 roles that's a requirement of eligibility to marry?

6 A. No requirement at all. Although, for a long period of our

7 history, there were different roles in the economic sphere

8 required of husband and wife by law, not to enter marriage, but

9 once marriage was joined.

10 Q. Is sexual intimacy, that is a conjugal relationship, a

11 requirement for a valid marriage?

12 A. No. No. In fact, the state -- I mean, this is true

13 historically and today. The state does not enter the private

14 relationships within a marriage. It's considered -- marriage

15 is another of its paradoxes, that it creates the private arena,

16 while it is a public institution. But the state doesn't enter,

17 except in cases of abuse or violence.

18 Q. Thank you. What, if anything, is the state's interest in

19 allowing or encouraging marriages between people who will not

20 have children?

21

MS. BRYA: Your Honor?

22

THE COURT: I'm sorry. Go on. I didn't hear the last

23 part of the question. What is the state's?

24

MR. MOGILL: Interest.

25

THE COURT: Don't answer, Professor. I just want to

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1 hear the question.

2

MR. MOGILL: What, if anything, is the state's

3 interest in allowing or encouraging marriages between people

4 who will not have children.

5

MS. BRYA: And, your Honor, I was going to object as

6 it calls for speculation.

7

THE COURT: She may answer. I think it's within her

8 expertise.

9

Go on.

10

THE WITNESS: Well, the, the items I mentioned before,

11 the economic and social order, advantages and purposes of

12 marriage, obtain certainly for couples who do not have

13 children, particularly the requirement of the state that the

14 couple support one another. This is absolutely in the state's

15 interests, and part of the state's purpose in licensing

16 marriage.

17 BY MR. MOGILL:

18 Q. Is there a particular historic occurrence that you can

19 point to, when non-procreated marriages between people capable

20 of bearing children became markedly more common and publicly

21 acknowledged?

22 A. Well, I would, I would locate that with the growing

23 availability of contraception in the 1920's. That at that

24 time, because condoms were available for so-called hygienic

25 purposes, they became much more widely used by married and

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1 probably unmarried couples.

2

But for marriage, it was seen as a great watershed.

3 And at the time, it was a matter of tremendous controversy. In

4 fact, there were those who called it a marriage crises and felt

5 that contraception would destroy marriage.

6

On the other hand, most people greatly welcomed it

7 because it obviated the problem of unwanted children and too

8 many pregnancies that endangered women's and often babies'

9 health. So at that time, non-procreated marriages were already

10 a recognized type. And the possibility that couples could

11 decide for themselves whether their marriage would produce

12 children or not produce children, that was a great watershed.

13 Q. Thank you. Within, within marriage, historically, who

14 bears responsibility for the children born of or adopted into

15 the family?

16 A. Well, in, in most of the past, it was the man who was the

17 household head, at a time when marital roles were asymmetrical

18 and hierarchical, that is the husband and wife had different

19 roles assigned by law, and the husband had the higher role and

20 was the representative and provider for the family.

21

So that was the case for many hundreds of years.

22 Since the equalizing of rights between men and women in the

23 20th century, and particularly since the 1970's, now both

24 members of a couple, a spousal couple, are responsible for

25 their dependents.

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1 Q. Is there a specific public purpose or purpose -- are there

2 specific public purposes for this responsibility?

3 A. Well, it is about economic provision. It is that part of

4 marriage to prevent the state from having to be responsible for

5 people who are not capable of providing for themselves, not

6 only minors, but historically marriage has been very important

7 for creating households in which the elderly can be cared for.

8 Q. Thank you. Now, you've already talked a little bit about

9 marriage as being regulated by civil authorities. How long has

10 that been the, been the case in the United States?

11 A. Marriage has always been a civil arrangement in the United

12 States. Some of the original colonies, most of them authorized

13 marriage by civil law. Only one or two actually authorized a

14 religious authorization.

15

And that latter example, this appeared at the time of

16 the founding of all of the states, for a number of reasons. Of

17 breaking away from England, and also because there were

18 numerous religions in the United States. That while there are

19 multiple religious understandings of marriage, nonetheless what

20 was valid marriage was a civil arrangement, authorized by law.

21

And one of the earliest spokesmen to talk about why

22 this was, was among a population that we think of as really

23 motivated by religion, that is among the Puritans.

24

William Bradford, who was the first governor of the

25 Plymouth colony, the group that was founded after Plymouth Rock

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1 was sighted, he said that their distinction from England, which

2 had a Church of England marriage, their distinction from

3 England was because marriage was a civil thing on which much

4 property depends. And that both expresses the original point

5 of this, of being civil, and also its important economic

6 dimension, its ruling economic dimension from the 1600's.

7 Q. Thank you. In fact, in your preparation for testifying

8 here today, have you looked at Michigan's statutes with respect

9 to marriage, to determine whether a marriage is described in

10 Michigan law as a civil contract?

11 A. It certainly is, yes, a civil contract.

12 Q. So just to be clear, who has the authority to regulate

13 marriage in the United States?

14 A. The civil law, the legislators and courts.

15 Q. And what aspects of marriage are regulated by the state?

16 A. Eligibility, and requirements or obligations. Also,

17 rights. I think that covers the waterfront.

18 Q. All right. In Michigan --

19 A. Oh, also who can perform a marriage.

20 Q. Okay.

21 A. Ceremonies have to be.

22 Q. In Michigan and other states, is marriage given special

23 recognition in the law, including as to providing economic

24 benefits as a result of the status of being married?

25

MS. BRYA: Your Honor, I'm going to object to this

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1 question, as it calls for a legal conclusion, I believe. And

2 Dr. Cott hasn't been qualified as a legal expert.

3

THE COURT: You want it in the non-legal sense?

4

MR. MOGILL: Absolutely. Yes.

5

THE COURT: The historical?

6

MR. MOGILL: That's correct, Judge.

7

THE WITNESS: Could you repeat the question, please?

8 BY MR. MOGILL:

9 Q. Yes. In Michigan and other states, is marriage given

10 special recognition in the law, including as to providing

11 economic benefits as a result of the status of being married?

12 A. Very definitely. And it's a major reason why people marry,

13 for the spousal benefits that marriage brings along with it.

14

For instance, the ability for a spouse to inherit, you

15 know, for a widow or to inherit the estate without taxes, the

16 being, being authorized to take retirement benefits. If one

17 spouse dies, the other spouse can take them or death benefits

18 for instance from workers' comp.

19

There are many coordinate ways, including at the

20 Federal level, of course, Social Security benefits goes with

21 the spouse, survivor's benefits for veteran's benefits. These

22 are all tied up in marital, a marital arrangement.

23 Q. Thank you. Now, we talked a little bit about interplay or

24 about the question of religion.

25

What, if anything, is the role of religious

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1 authorities with respect to marriage in the United States?

2 A. Well, religious authorities have always been free to

3 exercise their aims and demands in crediting marriage of their

4 congregants. And so certainly civil authorities have typically

5 recognized the importance of religion as the way many people

6 may understand their marriage. But religious authorities have,

7 while free to say what is right for people of their religion or

8 of a given congregation, they have never had the power to make

9 a valid marriage.

10

They can perform marriage ceremonies, but the validity

11 of a marriage performed in a church or synagogue or other

12 religious institution is only because -- is only because the

13 clerical authority has been loaned the state authority. And

14 the state has relied on clerics and trusted them to perform

15 marriage vows.

16 Q. So with respect to the legal authority, the only -- is it

17 correct that what you're saying is that religious figures

18 officiating it, marriages, are acting only as agents of the

19 civil authorities?

20 A. Exactly. Deputies of civil authority.

21 Q. If a particular religious denomination chooses to impose

22 additional requirements beyond those in the law, before it will

23 accredit a marriage within the denomination, can those

24 requirements in any way affect the validity of a marriage that

25 complies with the requirements of the law?

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1 A. No.

2 Q. Would a change in the law, allowing same-sex couples to

3 marry, in any way obstruct or otherwise interfere with any

4 religious denomination's ability to impose additional

5 requirements for recognizing or blessing a marriage within its

6 particular denomination?

7

MS. BRYA: Your Honor, I'm going to object to this

8 question again. It's calling for a legal conclusion, and Dr.

9 Cott hasn't been qualified as a legal expert.

10

MR. MOGILL: Again, in the non -- in a historical,

11 non-legal sense.

12

THE COURT: In a historical sense.

13

THE WITNESS: No. It's clear that religious

14 authorities are free to impose their own requirements for

15 people whom they marry. This has been so for many, many years.

16

Catholic churches, they don't approve of divorce.

17 Then don't believe in divorce. The states allow divorce. And

18 it's up to a Catholic cleric to decide whether or not to marry

19 someone. If that, the couple looks like they are likely to

20 divorce, they can refuse to marry that couple.

21 BY MR. MOGILL:

22 Q. Thank you. Professor, the State defendants in this case

23 are arguing, among their various arguments, that Michigan's ban

24 on same-sex marriage is justified because it's in keeping with

25 the traditional notion of marriage. From the perspective of a

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1 historian, can you comment on this claim?

2 A. I think that it is -- it risks a lot of vagueness and

3 misguidedness, actually, to speak of traditional marriage, in

4 that, and as I mentioned at the outset, marriage is a complex

5 institution that has many aspects.

6

And perhaps more importantly, what has characterized

7 marriage through the U.S., through American history, is both

8 the retention of certain traditions and a great deal of change.

9

And the extent to which marriage has changed, in some

10 of its fundamental elements, over the history of this country

11 and the state of Michigan, suggest that saying traditional is

12 gesturing to something that is a moving target.

13 Q. Thank you. Can you identify specific key changes in the

14 institution of marriage, over the course of American history,

15 that reflect this process of change?

16 A. Well, I think three areas are particularly illustrative.

17 One would be the relationship between husband and wife.

18 Another would be the role of racial considerations in

19 eligibility and judgments of marriage. And then a third would

20 be in divorce.

21 Q. Okay. Why don't we take those three in order.

22 A. Okay.

23 Q. With respect to changes in the relationship between

24 spouses.

25 A. This is probably the area of greatest and most fundamental

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1 change, in that marriage in the common law, which preceded

2 American law, was a profoundly asymmetrical institution. And

3 --

4 Q. If I can interrupt you for a second.

5 A. Yes.

6 Q. If you could describe for the Court what you mean by

7 asymmetrical.

8 A. Oh, certainly. That is the roles of the two spouses were

9 not the same. They were actually quite different. They were

10 seen as complementary and marriage itself was seen as a bargain

11 that put these two sets of requirements together to create a

12 household with the appropriate division of labor and of

13 stability.

14

And the husband was required to provide for his wife

15 and all their dependents, whether those were biological

16 children or other dependents, including servants, slaves,

17 orphans they might take in, other relatives. Whereas the wife

18 was commanded to serve her husband with her labor and to obey

19 him in terms of his commands. And the husband had a strong set

20 of responsibilities. They were enforced by law in all the

21 American states once the nation was started.

22

But before that, initially he, actually for quite a

23 few years, he got the, the privilege of representing his wife.

24 Her identity was buried in his. That is why Jane Roe became

25 Mrs. William Doe. She became part of William Doe. And you see

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1 what I mean by asymmetry. She, she could not represent herself

2 legally or economically. She could not make a contract, she

3 could not collect a debt. She could not sue in court. She

4 could not sign her own will, in fact, without him joining her

5 in any of those things. And this was meant for marital harmony

6 that the two were one.

7

So over the years, this began to clash with the ways

8 the American economy was developing. Wives assets were

9 controlled in a variety of ways in order to keep them in the

10 husband's side of the bargain.

11

At any rate, over a very long period of time, these

12 rules clashed with emerging realities, and legislatures and

13 courts began to change them. It did take a very long time.

14

It wasn't until, well, by about 1900, most wives could

15 act as economic actors. They could own property, they could

16 keep their wages. But there were many other features of this

17 marital doctrine of unity, which was called coverture, that

18 persisted.

19 Q. And if you could spell coverture, for the record, please.

20 A. Oh, sure. C-O-V-E-R-T-U-R-E. It's the old French that was

21 the Norman French that infected the common law because of the

22 Norman conquest. And it really meant, though, covert; that the

23 wife's independence and individuality was covered by that of

24 her husband.

25

It took a long time for the wife to be able to emerge

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1 as a legal and economic individual. Certainly, in Michigan

2 there were important changes in the law in the 19 teens that

3 gave wives a great deal more of individuality, but nothing like

4 total independence. And that wasn't really achieved until the

5 1960's with another change that did abolish the features of

6 coverture. So --

7 Q. Was that in the Michigan Constitution of 1963?

8 A. I believe so. I know 1963 is the date. And, yes, I

9 believe it was a constitutional change.

10

This was, for people who understood marriage in the

11 19th century, coverture was essential, it was fundamental.

12 Marital unity was what marriage was. And there were many

13 opponents to this change. The only way it happened, really,

14 was that it took a very long time.

15

And so the emergence of wives to full individuality

16 which nationally happened with the Women's Rights revolution of

17 1970's, this was a fundamental change in marriage. And states,

18 and then Supreme Court decisions also changed marriage at the

19 state and the federal level to be a contract in which the roles

20 of the two spouses were no longer asymmetrical or different.

21

But I think both of these characteristics of the

22 former nature of marriage are important, that wasn't simply

23 that they were different, the two roles. It's that they were

24 hierarchical. And one gave a lot more credibility, presence,

25 ability, leverage, et cetera, that is to the husband, than the

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1 wife had. She was clearly subordinated in this relationship,

2 as much as it might have been claimed to be complementary. Of

3 course, a subordinate and a superordinate can be quite

4 complementary to one another. But that was vastly overhauled

5 in the middle and later part of the 20th century, so that

6 states and the nation now do not prescribe different roles for

7 couples.

8

And if I can just skip to divorce, although it was the

9 third. Let me just say a few things about --

10 Q. It's okay. Now we're making it the second instead of the

11 third.

12 A. Okay. Yeah. I think that certain parts of the evolution

13 of divorce emphasize the way in which by the mid and especially

14 the mid 20th century, I was going to say, and particularly by

15 the '70s and '80s, that the state has stepped out of

16 prescribing how a couple enact their marriage, in that divorce,

17 which was available in all the American states by not so long

18 after the American Revolution, but for very, very few causes,

19 adultery, desertion, divorce grounds gradually began to be

20 expanded during the 19th century and into the early 20th

21 century. And this greatly changed marriage, I think, anyone

22 looking at it would say that if one did not think one was yoked

23 for life, necessarily, and one could divorce without great

24 castigation from the society, that it made marriage a different

25 experience. So there's that long-term change.

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1

But a major change that is really more relevant to

2 today, I think, was the move to no-fault divorce in the late

3 '60s to about 1980.

4 Q. Do you recall what year no-default divorce became effective

5 in Michigan?

6 A. It was '70s, but I am actually forgetting now. I know it's

7 in my --

8 Q. If I suggest that it was enacted in 1971, effective January

9 1, 1972?

10 A. That sounds right. That sounds right. So it wasn't among

11 the earlier states in fact, because it didn't start until 1969

12 with California.

13

But what divorce, a very important feature of divorce

14 in the longer past was that it was defined by the state, what

15 were the grounds. And in order to get a divorce, an aggrieved

16 partner had to prove that the other spouse had committed a

17 fault that was against the state's requirements. Not only a

18 fault, a personal injury, but a fault against the state. It

19 was an adversary process, that two spouses were not supposed to

20 collude in becoming divorced.

21 Q. Can you illustrate what an act against the interest of the

22 state would have looked like when divorce was so limited?

23 A. Well, the acts were an act of desertion, for instance,

24 because that would obviate the state's requirement of wanting

25 the couple to stay together and be an economic unit and form a

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1 stable household. That was a basic. Or cruelty and extreme

2 cruelty became grounds later in the 19th century. And there,

3 again, the notion was that this marriage couldn't serve social

4 order if one spouse was deeply abusing the other spouse. It

5 could be broken up.

6

Also, the very availability of divorce in the United

7 States -- and the United States was ahead of its mother

8 country, England, and I think every other country, as far as I

9 know -- in allowing legal divorce, because many societies have

10 not cared if couples broke up. But legal divorce was a way for

11 the state to control what happened when a couple broke up.

12

It actually was a response to many desertions by men

13 of their spouses and that left the woman unsupported, it left

14 her children unsupported. The state wanted to authorize

15 divorce in order to set up post-divorce arrangements that were

16 economic. It's another register of just how far marriage was

17 seen by the state as an economic arrangement.

18

But what, what happened in no-fault divorce was really

19 that the couple got to decide how their enacting of marital

20 roles did or did not satisfy their own requirements.

21

The requirement that the spouse had to be shown to

22 have faulted what the state wanted was removed. Of course,

23 fault grounds still exist in Michigan as well as other places,

24 but a couple can, themselves, come to court and say our

25 marriage is irretrievably broken down.

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1

And that is another way in which the state has more

2 than ever before stepped out of defining marital roles or the

3 satisfaction, how marital roles should be satisfied by the

4 couple who consent to join. And it reinforces the great

5 importance in understanding of marriage, both at the social

6 level and at the political and legal level in the United

7 States, that the most important thing about marriage is

8 consent, that the parties are free to consent to one another,

9 and that they join this bond with its obligations freely.

10 Q. Thank you. Now, in addition to these profound changes --

11 A. Oh, yeah, I didn't mention race. Right.

12 Q. I wasn't forgetting.

13

In addition to these profound changes in the

14 relationships between men and women, and within marriage, and

15 in the conditions for exiting marriage, I think the third key

16 area of change in the evolution of the institution of marriage

17 over the course of American history has been with respect to

18 race, you indicated. Is that correct?

19 A. Yes.

20 Q. And if you could indicate for the Court, please, what that

21 evolutionary process has been from the perspective of the

22 historian?

23 A. Well, there have been numerous ways in which states have

24 legislated marriage eligibility laws that have tried to prevent

25 certain marriages from taking place. I mean, have prevented

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1 them from taking place legally. And they have to do with the

2 ability of a white person to marry a person of another race.

3

As it's frequently said, interracial marriage bans,

4 but I want to emphasize that these bans only concerned marriage

5 to a white person. There have never been laws in any state

6 that prevent an African-American from marrying a

7 Chinese-American or a Native-American.

8

These laws were about retaining, prospectively

9 retaining the purity of the white race. And these laws started

10 as early as the colonies of Virginia and Maryland in the 17th

11 century, and then multiplied in many states both before, and

12 particularly after the civil war and after slave emancipation.

13 Slavery kept most of the African-American population quite

14 subordinated. And southern states, at that time in fact, many

15 of them didn't even have such marriage laws because slaves were

16 not free to marry at all. They could not consent to marry.

17 They did not have the rights of a free person, civil rights.

18

But after the civil war, they multiplied. And as the

19 population of the United States became more various,

20 particularly with immigrants from Asia, China, and then Japan,

21 Philippines, there were laws in most of the Western states to

22 prevent intermarriage.

23

And this shows the way in which marriage laws are not

24 -- well, they can be quite discriminatory and defy the notion

25 that laws should protect the population equally. But over

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1 time, all of these laws were dismantled. Again, it did take a

2 long time.

3 Q. If I could ask you specifically with respect to Michigan.

4 Did Michigan ever have an anti, so-called antimiscegenation

5 law?

6 A. Yes, it did, in the 19th century.

7 Q. And do you recall when it was abolished in Michigan?

8 A. Yes. It was, it was abolished in the 1880's, in 1883 I

9 think it was, which is unusually early. And that's a credit to

10 Michigan.

11

Many states that had such bans did dismantle them, but

12 more kept them. As late as 1930, there were 30 states that had

13 such bans. And the first overturning by a state supreme court

14 on grounds of equal protection was the California case of Perez

15 in 1948. And it took until 1967, 300 years after these laws

16 were instituted, for the U.S. Supreme Court to be willing to

17 judge on it, and to say they were discriminatory; they were not

18 about any sort of symmetrical kind of operation of the laws on

19 blacks and whites equally, which have often been a defense of

20 them.

21

So we have left behind laws that discriminate between

22 kinds of couples who are eligible to marry, with the exception

23 of couples of the same sex as compared to --

24 Q. One last point on race. That very famous 1967 case, the

25 name of it was?

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1 A. Oh, Loving vs. Virginia. The couple's last name was

2 Loving.

3 Q. Now, having discussed these key changes in the institution

4 of marriage over time, with respect to each of these categories

5 of change, are there common attributes to the processes of

6 change that, as an historian, you have noted? Or you can note.

7 A. Well, I would say that the direction of these changes has

8 been quite similar toward emphasizing that the couple make a

9 free choice of the partner that they want to marry. Certainly,

10 the movement against racially discriminatory laws emphasizes

11 that. That consent is the basis of the marriage. The divorce

12 changes, suggests that. And in other words, if you consent,

13 consent has to be continuing.

14

And perhaps most dramatically, importantly, that

15 marriage has moved to being an institution where the spouses do

16 not have gender-assigned roles. That in law, marriage is

17 gender neutral as to what both spouses are required to do and

18 the rights they get. So that that has been a crucially

19 important part of the evolution, and that has characterized the

20 move from, really from the time of the nation's founding to

21 today with particularly rapid moves in the 20th century.

22

And I would say another feature of these changes, more

23 of a social feature than a legal feature is that they've always

24 been responded to with a great deal of alarm and opposition.

25 Q. And what does that look like?

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1 A. Well --

2 Q. Is there any consistent pattern in what the opposition has

3 looked at?

4 A. Well, I would say it's stronger and weaker at times. But

5 often, the alarm raised by opponents has been that this change

6 will desecrate the institution of marriage, will eviscerate it

7 of its real meaning, will rob it of its essential bases.

8

And the alarmists have not succeeded in preventing the

9 change from happening, although perhaps have succeeded in

10 delaying it.

11

And so that, the fact that there have been alarms in

12 opposition, that these have been loud squawks, but that the

13 proponents of change that will enable marriage to respond to

14 changing needs, so that it can be consistent with current

15 trends in ethics, and in economics particularly, that's

16 especially true about the husband and wife matters, these,

17 these kind of dialect of opposition and direction of change

18 have characterized all these kinds of changes.

19 Q. Have there been a consistent theme throughout these changes

20 of opposition, including claims that this particular change,

21 whether it's to promote gender equity within the relationship,

22 or to remove racist restrictions, the change is unnatural?

23 A. That the change what? Oh.

24 Q. That they are making these changes would be unnatural?

25 A. That's been particularly true of the opponents to removing

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1 antimiscegenation bans.

2

The laws about racial discrimination were often,

3 almost consistently defended as what was God's plan to keep the

4 races apart, or was the natural plan, that is nature wouldn't

5 have made people look different if nature expected these people

6 to marry. So those were common themes in defending the

7 cross-racial bans.

8

And I will say, too, that the legislators and judges

9 who ruled to retain such bans or to multiply them, in fact, in

10 the part of the legislators, they knew that such relationships

11 existed. What they meant to do, really, by denying them the

12 legal imprimatur of the state's authorization was to demean

13 them, was to say in effect all such relationships are illicit.

14

And that was an important way they intended with these

15 laws to try to, if not eliminate, at least reduce such

16 relationships by putting that kind of social obloquy on them,

17 as well as by, by refusing to authorize them legally.

18 Q. Taking a look at the overall effect on the institution of

19 marriage of the combination of these changes over time, from

20 your perspective as an historian, what has been the overall

21 effect on the institution of marriage of these profound changes

22 that you've discussed?

23 A. I think it has been unquestionably to make it a more

24 equalitarian institution, that is between the two spouses to,

25 as I said, to make it now one in which the spouses can choose

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1 their own designation of roles, who wants to do what. It is 2 gender neutral as far as the law is concerned. And also, to 3 make it an institution that more deeply and profoundly, given 4 various legal decisions, et cetera, to emphasize that it is a 5 matter of choice and consent between the couple. And that 6 nonetheless, to continue the tradition that the state is 7 honoring this couple's decision to be together and to create a 8 household that in which they have made a commitment to one 9 another, to remain together as far as possible. Of course, 10 divorce is much more visible today than ever before. 11 Q. With respect specifically to the, to demonstrating the 12 capacity to change over time as conditions change, can you 13 address the impact on the institution of, of the, specifically 14 of the capacity to change? 15 A. Well, I would say that an important characteristic of 16 marriage in its lastingness has been its resilience and the 17 fact that it is a civil matter that legislators and judges can 18 adjust the features of marriage as social change and economic 19 change and ethical change occurs. This has been very crucial 20 to keeping marriage vigorous and appealing, particularly for 21 young people who are most typically those who we expect to 22 think about marriage. 23 Q. Thank you. Just several more questions, Professor. In 24 those jurisdictions in which same-sex marriage has been 25 legalized in the past decade in the United States, from the

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1 perspective of an historian, has opposite-sex marriage suffered

2 in any way?

3 A. Not that I am aware. Certainly, I, as a Massachusetts

4 resident, I have witnessed ten years of same-sex marriage being

5 available. And marriage, as a whole, is on extremely healthy

6 terms in Massachusetts. There's been no evidence that

7 opposite-sex couples have declined to marry. Massachusetts has

8 one of the lowest, if not the lowest divorce rate in the

9 nation.

10

And overall, I would say that among the younger

11 population, one sees the opposite, interestingly enough. I

12 have heard young man/woman couples say that they are reluctant

13 to marry because their friends who are gay or lesbian can't

14 marry the partner of their own choice, and they feel somewhat

15 guilty entering and, therefore, you know, taking up and

16 recognizing an institution that their friends can't equally

17 enjoy.

18

So I, I don't -- haven't seen any evidence that there

19 is harm to marriages between men and women.

20 Q. Do you have any reason from your perspective of, excuse me,

21 from your perspective as an historian, to believe that if

22 same-sex couples are allowed to marry in this state, that

23 marriage as an institution in this state would be affected one

24 way another, other than by opening it to additional loving

25 couples?

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1

MS. BRYA: I would like to object, your Honor, as it

2 calls for speculation.

3

THE COURT: As an historian, based upon her experience

4 and her training and her research, she may answer.

5

THE WITNESS: Thank you, your Honor.

6

Well, I can't specifically predict, but certainly, the

7 history shows that changes made in marriage to bring it up to

8 date have only been beneficial for the institution and have

9 enabled it to, as I said, remain appealing to young people and

10 vigorous and appropriate to the social and economic setting.

11 MR. MOGILL:

12 Q. Thank you. And last question, Professor. Given everything

13 --

14

THE COURT: It may be the question.

15

MR. MOGILL: Or maybe not. Going to be a couple more

16 questions.

17

(Laughter in the courtroom.)

18

THE COURT: You have a team. Both sides have a team.

19

MR. MOGILL: If I can have a second here.

20

THE COURT: Of course.

21

(Brief pause.)

22

THE COURT: You may confer, if you want to talk.

23 BY MR. MOGILL:

24 Q. I want to ask you a couple follow-up questions on areas

25 we've already covered, just to get a little bit more detail.

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1

You talked about restrictions with respect to race and

2 I'd like to explore that a little bit further, if we could,

3 please, and ask you this:

4

Has there been a time in our country's history when

5 the federal government used policy with respect to marriage to

6 confer or deny citizenship on the basis of race?

7 A. Not so much on the basis of race with respect to the

8 federal government.

9 Q. Well, national origin, I'm sorry.

10 A. Well, there have been several ways in which the federal

11 government has intervened in marriage, although regulation of

12 marriage is constitutionally at the state level. But there

13 have been federal policies that have put certain requirements

14 on marriage for various groups.

15

I was struck looking at the history how far these are

16 often groups of color, for instance. The federal government

17 would not credit the Indian marriages in Native-American areas

18 when they were conquered, and forced Native-Americans to marry

19 by state standards.

20

The federal government would not credit the proxy

21 marriages of Japanese immigrants at the turn of the century.

22 And with respect to many Asians who were excluded from American

23 citizenship until after the second World War, from naturalized

24 citizenship, there were marital disincentives for American

25 women to marry Chinese or Japanese, actually any Asian who was

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1 ineligible for citizenship.

2

There was quite a substantial period of time when

3 American women, whether their genealogy went back to the

4 Mayflower or not, if an American woman married her -- a

5 foreigner, a man born elsewhere who did not have American

6 citizenship, that American woman lost her citizenship. And

7 this is one of the more extreme aspects of coverture. That is,

8 she -- this was in the early 20th century, however, not that

9 long ago. That because a woman was covered by her husband's

10 identity, she was assumed to be covered by his national

11 identity. And if she married a German or a British person, she

12 lost her American identity.

13

And that became extremely fraught during World War I,

14 when American women, who were wives of state German nationals

15 lost all their property, it was taken from them. And this was

16 because of the way marriage was understood as an asymmetrical

17 bargain. And also because the federal government in its

18 requirements, these were part of the immigration requirements,

19 were discriminating against certain kinds of marriages. This

20 was a large disincentive for American women about marrying

21 foreigners.

22

So the federal government has been involved in

23 numerous ways, indirectly, given that it does not have the

24 power to regulate marriage. These events have been done

25 through generally immigration and naturalization policy.

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1 Q. Has tax policy also played a part in the federal

2 government's role?

3 A. Yes. There, I don't know whether this is relevant here,

4 the whole question of a foundation of the married filing

5 jointly. Well, do you really want me to explain this?

6 Q. I think just briefly to, to point it out would, I would

7 like to --

8 A. I think this is relevant today with respect to people's

9 migration form one state to another state, particularly as the

10 states begin to vary in their granting or not granting of

11 same-sex marriage.

12

That is in the origin of Federal income tax, when it

13 became onerous, and people really wanted to avoid it during

14 World War II. At the time, everyone was taxed individually.

15 There was no other setup.

16

However, in community property states, because there,

17 the marital property was considered distributed to both

18 partners, then a, in a one-earner family, the earner could

19 consider, I mean usually the husband, could consider the wife

20 the owner of half of his income, and those two people, since

21 there was a graduated tax, they would each be taxed at a lower

22 level than the husband alone would be.

23

So people actually started moving from common law

24 states to community property states to, this was mostly in the

25 West, to avoid -- I mean, to gain that tax advantage.

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1 Q. Tax advantage, uh-huh.

2 A. And it became a great quarrel among the states. So the

3 U.S., it was a huge reason why the federal government then

4 instituted the marrying -- married filing jointly category to

5 prevent this kind of fracas.

6 Q. Ameliorate the --

7 A. Yeah.

8 Q. With respect to the, the state's interest in the

9 institution of marriage, has a biological link between parents

10 and children ever been a necessary foundation for marriage or

11 the sole reason why marriage has been deemed a public good?

12 A. No.

13 Q. Has the notion of providing an optimal context for raising

14 only biologically-related children been a prime mover in the

15 state's structure of marriage?

16 A. The history of marriage would deny that quite emphatically.

17 Q. Thank you. And finally, Professor, given -- no? Not quite

18 finally.

19

(Laughter in courtroom.)

20

Given everything that you have discussed about

21 marriage as a public institution, is Michigan's ban on same-sex

22 marriage consistent with trends in contemporary marriage law?

23 A. No. I would say the trend is moving toward gender equality

24 and gender neutrality between the spouses have laid a path

25 toward same-sex marriage, as has been recognized in an

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1 increasing number of states. And Michigan's constitutional

2 amendment obstructs that, that trend from continuing here.

3

MR. MOGILL: Okay. Thank you, Professor. And that's

4 the end of my questions.

5

THE COURT: You may cross-examine.

6

MS. BRYA: Thank you, your Honor.

7

CROSS-EXAMINATION

8 BY MS. BRYA:

9 Q. Good morning, Professor Cott.

10 A. Good morning.

11 Q. I'm going to ask you a series of questions. The questions

12 can be answered with yes or no answers. So I'm going to ask

13 that you limit your answer to yes or no.

14

THE COURT: And if you can't answer it yes or no,

15 Professor, just say you can't answer yes or no.

16

THE WITNESS: Thank you, your Honor.

17

THE COURT: And then counsel will be able to move

18 forward.

19 BY MS. BRYA:

20 Q. For purposes of this case, Professor Cott, you are only

21 being presented as an expert in the history of marriage in the

22 United States, correct?

23 A. Yes.

24 Q. You're not a legal expert, correct?

25 A. I can't answer that yes or no.

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1 Q. You can't answer that yes or no, whether or not you're a

2 legal expert?

3 A. That is, in my study of history, law has been a very

4 important element since I consider it relevant not only in the

5 legal arena, but in the social and political arena. So I do

6 consider myself an expert on a considerable amount of the legal

7 history of the United States. Whether that equates to your

8 definition of a legal expert, I, I cannot say.

9 Q. Professor Cott, do you recall your deposition being taken

10 on January 10th, 2014?

11 A. I do.

12

MS. BRYA: Your Honor, may I approach the witness?

13

THE COURT: You may.

14

MR. MOGILL: Let me know which page, please?

15

MS. BRYA: Yes.

16

THE COURT: And you can refer counsel to the page.

17

MS. BRYA: Yes, I will, your Honor.

18

THE COURT: Thank you.

19 BY MS. BRYA:

20 Q. It is page 9, line 19. The question was, "Do you consider

21 yourself a legal expert, Dr. Cott?" The answer was, "A legal

22 expert? No."

23 A. I see that. And I -- did you want me to respond to that?

24 Q. No. You don't need to respond to that. Thank you.

25

You're not an expert in religion; is that correct?

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1 A. Except insofar as I study religion as a part of history. 2 Q. So you're not an expert in religion? 3 A. Correct. 4 Q. You believe that the State of Michigan should recognize 5 same-sex marriage, correct? 6 A. I think that is consistent with the trend that has been 7 shown in the history of marriage. 8 Q. So yes, you believe that they should? 9 A. I don't deal in "shoulds." 10 Q. So you don't have an opinion on whether or not they should, 11 the State of Michigan should recognize same-sex marriage? 12 A. I'm only willing to say that I see it as consistent with 13 the trend. I am not a moral preceptor as what "should" means. 14 Q. Do you, do you support Michigan recognizing same-sex 15 marriage? 16 A. I think it would be consistent with the trend and, 17 therefore, it seems like the right direction to go, yes. 18 Q. You've acted as an expert in numerous cases across the 19 country regarding same-sex marriage, supporting the position of 20 allowing for same-sex marriage; is that correct? 21 A. I wrote expert reports, yes. 22 Q. And for those cases in which you provided expert reports, 23 you were supporting the position of same-sex marriage? 24 A. Yes, indeed. 25 Q. In the Perry case in California, you received over $30,000

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1 in compensation for your work as an expert, correct? 2 A. Yes. 3 Q. You agree that the states have the right to regulate 4 marriage, correct? 5 A. Yes. 6 Q. And you believe that it's okay for the state to prohibit 7 marriage between two people based on consanguinity, correct? 8 A. Yes. 9 Q. And you believe it is okay for the state to prohibit 10 marriage between two people because of the age of the 11 individuals wishing to marry, correct? 12 A. The, the tender age, yes. 13 Q. And you believe it's okay for the state to prohibit bigamy, 14 correct? 15 A. Yes. 16 Q. And you believe the right to marry and the free choice of a 17 marriage partner are profound exercises of the individual 18 liberty, central to the American polity and way of life, 19 correct? 20 A. Yes. 21 Q. You believe that the freedom to marry means freedom to 22 marry the person of your choosing, correct? 23 A. I didn't hear the word, freedom person? 24 Q. Freedom to marry means the freedom to marry the person of 25 your choosing, correct?

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1 A. Yes. 2 Q. But you believe that a marriage that goes beyond two 3 partners within our political value system represents fraud or 4 coercion, or another value that's outside the political 5 universe; is that correct? 6 A. Yes. 7 Q. You believe that laws against consanguine marriages demote 8 and discredit relationships between a father and a daughter, 9 correct? 10 A. Not all relationships, just marital relationships. 11 Q. You agree it discredits marital relationships between a 12 father and a daughter? 13 A. Yes. Correct. 14 Q. And you believe laws against bigamous marriages demote and 15 discredit those relationships, correct? 16 A. Yes. 17 Q. And you think it's okay for the state to demote and 18 discredit some relationships such as a father/daughter or 19 bigamous relationships, correct? 20 A. Yes. 21 Q. You believe that Michigan's marriage law confines gay or 22 lesbian people to second-class citizenship; is that correct? 23 A. Yes, with respect to marriage. 24 Q. Don't bigamy laws confine fundamentalist Mormons to 25 second-class citizenship because fundamental Mormons believe

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1 that bigamy is acceptable?

2 A. No. I don't think so.

3

THE COURT: Do you want to explain that? Did you

4 want? It kind of looked like you want to. And I'd like to

5 hear the answer, if you have one.

6

(Laughter in courtroom.)

7

THE WITNESS: Well, fundamentalist Mormons are not a

8 recognized group in society. There may be individual

9 fundamentalist Mormons, but they are going against their

10 church's proscription, which prohibits bigamy. Therefore, they

11 are -- they don't really deserve the name of Mormons. And

12 given that they, in wanting polygamist marriages, they are both

13 rebelling against their church and doing something that's

14 illegal.

15

I, I don't see why one would talk about demoting or --

16 it just seems irrelevant to a kind of made-up category,

17 fundamentalist Mormons. It's almost an oxymoron, actually.

18 BY MS. BRYA:

19 Q. The Michigan Marriage Amendment limits marriage to a man

20 and a woman, so it prohibits bigamy, correct?

21 A. Yes. Well, in effect, but not literal, but in effect it

22 does.

23 Q. And the Michigan Marriage Amendment addresses the gender of

24 the person who can marry, not the sexual orientation of the

25 person; is that correct?

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1 A. That is correct.

2 Q. You don't believe people who do not support same-sex

3 marriage do so based on some type of animus, do you?

4 A. I do not believe that's necessarily the case, right.

5 Q. You're familiar with the phrase gender binary; is that

6 correct?

7 A. Gender what?

8 Q. Binary?

9 A. Never heard it before. Is that is a word? Bio nearing?

10 Q. B-I-N-A-R-Y.

11 A. B-I-N -- oh, gender binary?

12 Q. Yes.

13 A. Oh, okay.

14 Q. I'm sorry. Maybe my accent --

15 A. I thought you said bioengineering. I thought, oh, is that

16 what they are doing in Michigan?

17

(Laughter in courtroom.)

18

Gender binary, yes.

19 Q. I think the accents maybe caused it to come out funny.

20

And by that phrase, that means the classification of

21 sex and gender into two different forms, correct? Masculine

22 and feminine?

23 A. Mh-hm.

24 Q. The consequences of same-sex marriage on the gender binary

25 are, of masculine and feminine, is unclear, correct?

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1 A. How could I disagree with that. 2 Q. I'm sorry. I didn't hear you. 3 A. How could I disagree with that. Yes, in the longer run, 4 it's unclear. 5 Q. And you agree that having a gender matters in the respect 6 that human beings do not appear as neutral individuals, 7 correct? 8 A. Not so far. Things are changing, though, with transgender. 9 Q. So you don't think that gender matters? 10 A. Oh, I do think that gender matters in many ways. 11 Q. Okay. One of the purposes of marriage in the United States 12 has been to create stable families to provide for, excuse me, 13 child dependents, correct? 14 A. Yes, as well as other dependents. Yes. 15 Q. And another purpose of marriage is to legitimize children, 16 correct? 17 A. To create a legal relationship, yes. 18 Q. And you believe the state can see marriage as a way to 19 concern itself with procreation, correct? 20 A. Yes. Although, procreation is such a vague word. I've 21 thought about that again, that is, procreation obviously takes 22 place without marriage. It doesn't require marriage at all, 23 but -24 Q. But the state can see marriage as a way to concern itself 25 with procreation, correct?

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1 A. Yeah. Concern itself. It takes cognizance of procreation,

2 yes.

3 Q. And procreation is a legitimate state interest, correct?

4 A. Do you mean, by procreation, do you mean the increase in

5 population? What exactly do you mean that procreation is a

6 state interest? I, I don't quite understand. I mean, I would

7 like it to be a bit more precise.

8 Q. The ability, the ability to have children. Procreation,

9 being a state, being a state interest. The state concerning

10 itself with the ability of people to have children, to continue

11 a population. Yes.

12 A. The state is certainly interested in having a population,

13 yes, that I can say is a state interest, and a national

14 interest.

15 Q. So you think the state can be interested in procreation and

16 it's a legitimate state interest?

17 A. I, actually, I've come to think about the overuse of that

18 word, that procreation itself, that just means the ability to

19 reproduce. And is the state interested in the ability to

20 reproduce? I'm not sure.

21 Q. I'd like to direct your attention to the deposition

22 transcript that's in front of you again.

23

Counsel, it's on page 134 and 135.

24

Just let me know when you're there.

25

Your comment was, "I think the state can be interested

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1 in procreation and the state can see marriage as a way to

2 concern itself with procreation. Is that legitimate within the

3 state's interest? Yes. Yes."

4 A. Yes. I've re-thought the meaning since then that

5 procreation itself is vague, as far as I can see.

6 Q. You agree that the incentive given by the State of Michigan

7 for marriage was to support stable and enduring unions between

8 couples who have the capacity to procreate, so they can support

9 one another and children that are created by them?

10 A. No. I don't think that the State's view was only about

11 couples who have the capacity to procreate, or else they

12 wouldn't have licensed postmenopausal marriages.

13 Q. You don't agree that the incentive given by the State for

14 marriage was to support stable and enduring unions, so they

15 could procreate and support one another and their children?

16 A. I would have to take out the middle of that sentence to

17 fully agree with it.

18 Q. I would like to draw your attention to your deposition

19 testimony on page 108 and 109.

20

THE COURT: You may look at it, Professor. I think

21 you have a copy, if you care to.

22 BY MS. BRYA:

23 Q. Line 23, the question is:

24

"Do you agree that, at least in part, the incentive

25 given by the State for marriage were to create stable and

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1 enduring unions between couples who have the capacity to

2 procreate, so they would support one another and any children

3 created by them?

4

Answer: Yes, in part, certainly."

5 A. Okay. "In part" was crucial in that sentence.

6 Q. You believe that the institution of marriage has lasted

7 because it has been flexible over time, correct?

8 A. Yes.

9 Q. In Michigan, however, marriage is only -- has always been

10 defined as between one man and one woman; is that correct?

11 A. Yes. Well, I don't think it was actually defined before

12 1996 as such, but it was understood to be that.

13 Q. You don't believe a biological connection between parents

14 and children is irrelevant to a child's well-being, do you?

15 A. It could be irrelevant. There's so many natural parents

16 who abuse their children. Sometimes it's a disadvantage.

17 Q. Professor, I'd like to call your attention to your

18 deposition testimony on page 107, line 18.

19

The question was, "Do you think a biological

20 connection between parents and children is irrelevant to the

21 social well-being of children?"

22

The answer: "No, I would never say it's irrelevant."

23 A. But as I -- you're taking that out of context, because my

24 comment there was, went on to say that's a general question and

25 the issue is what states were interested in, in marriage.

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1 Q. You agree that different sexes bring different

2 contributions to parenting, correct?

3 A. It looks that way, yes, from social science, psychological.

4 Q. And you agree that there are different benefits to

5 mothering versus fathering, correct?

6 A. There may be. I, I am not a psychological expert.

7 Q. In your opinion, you agree that there are different

8 benefits to mothering versus fathering?

9 A. Very likely.

10

MS. BRYA: If I can just have a moment, your Honor?

11

THE COURT: Of course.

12

(Brief pause.)

13

MS. BRYA: Your Honor, I have no further questions for

14 this witness.

15

Thank you, Dr. Cott.

16

THE WITNESS: Thank you.

17

THE COURT: Any redirect?

18

MR. MOGILL: If I could just have a moment, Judge?

19

THE COURT: Of course.

20

(Brief pause.)

21

REDIRECT EXAMINATION

22 BY MR. MOGILL:

23 Q. Professor, on cross-examination you were asked, we'll start

24 here, whether you consider yourself a legal expert. And you

25 were pointed to a particular question and a particular answer

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1 on page 9 of your deposition transcript.

2

THE COURT: You have to move closer to the microphone.

3 Thank you.

4

MR. MOGILL: I'm always forgetting. I apologize,

5 Judge.

6

THE COURT: That's okay. I'm glad they told us.

7

THE WITNESS: Page 9?

8 BY MR. MOGILL:

9 Q. Yeah.

10 A. I, I did say there in answer so you're not a legal expert,

11 I have used legal history for many of my articles and much of

12 my research. I might be called legal historian, but I'm more

13 modest in my claim on that score.

14 Q. Yeah. So --

15 A. And then she went on and pressed, so you don't consider

16 yourself a legal expert, and I said legal expert, no. Since I

17 assumed that, that she meant was I a lawyer, which I am not.

18 Q. Okay. The question that was asked of you ignored what you

19 had said --

20 A. Yes.

21 Q. -- about three lines before; is that correct?

22 A. Yes.

23 Q. Describing your particular legal experiences.

24

Are there harms, Professor, that a state might be

25 concerned with about bigamy and polygamy?

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1 A. About what?

2 Q. Bigamy and polygamy?

3 A. Yes. There are harms of coercion and particularly

4 inequality among the members of the marriage. I think

5 reciprocality has always been a very important feature of

6 marriage, as it's been understood in the Anglo-American

7 tradition, including through the history of the United States.

8

And while, as I said, that reciprocality was, was

9 hierarchical and asymmetrical in terms of the specific role in

10 earlier years, it was definitely about a bargain, a

11 partnership, a pairing. And so that persists now while, while

12 marital roles are gender neutral. But there was never a place

13 for that really for more than two, in that reciprocal

14 arrangement.

15 Q. Thank you. Now, you were asked a number of questions on

16 cross-examination about any interest the state may have in

17 procreation. And yet, of course you testified that

18 procreation, or even a desire to procreate or adopt has never

19 been part of what's required for a valid marriage. On its

20 face, those points may form a paradox.

21

Could you explain, so that it becomes clear, why it is

22 that even though marriage does not require procreation or a

23 desire to procreate in order to be valid, that the state has an

24 interest in procreation?

25 A. Well, I think, as I said, that a very, very important

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1 feature of marriage is its economic being, that is it is about

2 creating groupings, households presumably of mutual support.

3 And the first place that it occurs and the obligation occurs is

4 between the two spouses. But historically, and still today of

5 course, responsibility for dependents is also lodged in the

6 head of household or in the two heads now.

7

And so the state's interest in procreation, insofar as

8 it goes is, number one, about its own population, having

9 population. That is, sexual intimacy between men and women is

10 going to occur. The state is aware of that. And that marriage

11 is, is -- ascertains that for a legal relationship to be set up

12 between parents and children, that, that, biological children,

13 that is, that marriage is, is, you know, one way to accomplish

14 that.

15

But marriage, as an institution overall, is much more

16 capacious than that. It is about the couple supporting each

17 other, as the state has said, and it is about any others in the

18 household, whether biological or not biological, whether the

19 marriage is one of people who are 55 and each have children

20 from before, who they bring into their household. That's

21 been -- you know, it's the economic concern that has been

22 major.

23

And the truth is, too, just with respect to

24 procreation, that historically and today, states have always

25 made unmarried parents responsible for the children they

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1 procreate. So the state's interest in economic stability in

2 order in keeping people off the public dole extends to

3 unmarried parents of biological children. But it is more

4 inclusive when we're talking about marriage and the marital

5 household. And that's one way in which it has been seen as a

6 lynchpin of social order more generally, and a more extensive

7 economic benefit to the society at large.

8 Q. Would it be fair to say then, that with respect to the

9 interest of the state in procreation, that it is linked not to

10 an obligation or even expectation that a particular couple will

11 attempt to procreate, but to the economic consequences for the

12 couple and society in the event of procreation?

13 A. Yes. I think certainly in the history of marriage law,

14 that supporting children has been very central, but actually

15 bearing them has been pretty much invisible.

16 Q. The last question I want to ask you goes to a question that

17 you were asked about mothers and fathers bringing different

18 attributes.

19

Again, is there anything in the law of marriage in

20 Michigan or any other state now, or in the past, that imposes a

21 gender role obligation with respect to parenting any children

22 in that household?

23 A. No. In fact, this has been -- you can see this in divorce

24 law, for instance, since the state doesn't require anything in

25 particular inside a marriage, you can see the state's

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1 expectations better when a marriage breaks up.

2

And while in the longer past when a marriage broke up,

3 typically the father was actually the guardian and the provider

4 for the children, the mother got nothing with respect to the

5 children several hundred years ago. And then during the 19th

6 century, it kind of divided with ideas that, well, the mother

7 perhaps should be given the custody of very young children, and

8 the father is still the provider.

9

But now, both parents are equally responsible for both

10 care of the children and economic support of them. So that is

11 the starting point for divorce negotiations about custody and

12 payment.

13

I was going to say one other thing. Oh, yeah. At the

14 time that I wrote my book, "Public Vows," during the '90s, I

15 was most interested in the ways in which marriage historically

16 had shaped male and female gender roles. It was a major

17 interest of mine when I wrote the book. And one could see that

18 historically it had dictated a great deal about what men were

19 supposed to be and what women were supposed to be.

20

But in the past 20 years or so, and actually since the

21 '70s, one could say that the law has not dictated particular

22 roles to a man and woman as husband and wife. And so the, the

23 centrality of that to the way marriage works in society and for

24 the state has really dropped out, so that marriage is still a

25 freely chosen contractual partnership, that is about mutual

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1 support in an emotional way, as well as economic way, and

2 support for dependents, and one that is more, and more freely

3 chosen and no bars to eligibility of the sorts that were judged

4 discriminatory.

5

So that the relationship of marriage to gender has,

6 has been on a historical trajectory toward a kind of neutrality

7 toward that formation. There are certainly plenty of avenues

8 in our society that reiterate differences between men and

9 women. Most all of them do. But marriage as a, as a valid

10 civil contract does not, actually, in the law or in its

11 requirements.

12 Q. And just by way of illustration, it's correct, is it not,

13 that there is nothing whatever in marriage that creates either

14 a requirement or even an expectation as to who is going to do

15 the laundry, who is going to cook or shop or do the dishes,

16 change the diapers, take out the garage, fix a broken lamp or

17 anything else; is that correct?

18 A. That is absolutely right. Nobody applying for a marriage

19 license has ever been asked about what roles the two parties

20 will take on.

21

MR. MOGILL: If I could just have one second, please,

22 Judge.

23

THE COURT: Of course.

24

MR. MOGILL: No further questions.

25

THE COURT: Okay. Thank you, Doctor. You may step

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1 down.

2

(Witness excused, 10:30 a.m.)

3

THE COURT: Any other witnesses by the plaintiff?

4

MR. MOGILL: We have no further witnesses to call. We

5 do have a couple of housekeeping matters, if it please the

6 Court, before we rest.

7

THE COURT: Okay. If you have no other witnesses,

8 we'll do the housekeeping.

9

And as to the defense, it's my understanding that the

10 defense is going to start off allowing Clerk Brown to testify

11 and place her case in first, and then the State defendants will

12 proceed. Is that right?

13

MS. HEYSE: That is correct, your Honor.

14

THE COURT: Okay. Tell me who your first witness will

15 be.

16

MS. HEYSE: It will be Sherif Girgis.

17

THE COURT: Okay. And how long do you anticipate that

18 testimony to be, about?

19

MS. HEYSE: We're guessing about a half a day.

20

THE COURT: About a half day?

21

MS. HEYSE: Yup.

22

THE COURT: Okay. And then Clerk Brown, how long do

23 you anticipate?

24

MS. JOHNSON: Very briefly, your Honor.

25

THE COURT: Okay. Like half a hour or so?

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1

MS. JOHNSON: Yes.

2

THE COURT: Okay. And then who is your next witness?

3

MS. HEYSE: Our next witness will be Dr. Regnerus.

4

THE COURT: Okay. So we should start with Dr.

5 Regnerus probably in the afternoon?

6

MS. HEYSE: As soon as -- he will be here. So as soon

7 as --

8

THE COURT: Okay. That's fine.

9

MS. HEYSE: -- Mr. Girgis is done, Dr. Regnerus, we'll

10 have him ready to go.

11

THE COURT: Good. And then approximately? Just I'm

12 trying to get --

13

MS. HEYSE: For Dr. Regnerus?

14

THE COURT: We have all week.

15

MS. HEYSE: I mean, more than likely half a day on my

16 side. I'm not sure how long plaintiffs will take.

17

THE COURT: And then your next witness, just so I know

18 after that?

19

MS. HEYSE: Dr. Joseph Price.

20

THE COURT: Okay. Okay. We'll go from there.

21

MS. HEYSE: We do have a motion that we would like

22 heard after housekeeping.

23

THE COURT: Yes. Absolutely. Okay.

24

What's the housekeeping?

25

MR. MOGILL: Whoever. We have --

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1

THE COURT: The microphone, yes.

2

MR. MOGILL: Yeah. As of the time we broke yesterday,

3 the Court had wanted to take a look at both our proposed

4 exhibit, the report of the Michigan Department of Civil Rights.

5

THE COURT: Yes.

6

MR. MOGILL: On LGBT inclusion.

7

THE COURT: I have looked at that one.

8

MR. MOGILL: And it's my understanding there was an

9 objection to relevancy that we're prepared to address, if the

10 Court has any concerns.

11

And similar, a objection had been raised with respect

12 to the testimony, the, excuse me, the admission of the report

13 of Professor Chauncey in lieu of his live testimony.

14

THE COURT: I did know there was -- I thought it was

15 stipulated that everybody stipulated to his reports. I'm

16 sorry.

17

MS. HEYSE: We, we did stipulate to its admission,

18 your Honor, but we still believe it's not relevant to these

19 proceedings. So we would like to at least preserve that

20 argument.

21

THE COURT: But had Professor Chauncey come and

22 testified, you would have objected to the relevancy of his

23 testimony, but not to his credentials or what he had to say?

24

MS. HEYSE: Correct, your Honor.

25

THE COURT: Since he was unavailable, through no fault

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1 of his own, I know he was supposed to be here, I will accept

2 the reports. And I really read it last night, so I can't say I

3 didn't read that report. And I will consider relevancy in

4 rendering my opinion.

5

MS. HEYSE: Thank you, your Honor.

6

THE COURT: And your objection is noted and preserved.

7

MR. MOGILL: With respect to --

8

THE COURT: As to the Michigan Department of Civil

9 Rights document entitled report --

10

MS. HEYSE: Your Honor, perhaps it would be more

11 appropriate for me to make my objection before.

12

MR. MOGILL: It's just a title page.

13

THE COURT: You can make an objection, but I assume

14 you'll object -- go on and make your objection. But I think I

15 know what your objection is, and I think I'm going to sustain

16 it. But let me put it on the record.

17

MS. HEYSE: Okay. Thank you, your Honor.

18

Your Honor, we have two objections to the admission of

19 this document. First, obviously on relevancy grounds. We

20 don't believe that this document is relevant to the issues in

21 this case. It doesn't deal with same-sex marriage, and in

22 fact, deals with inclusion of sexual orientation for purposes

23 of civil rights here in Michigan. It would not inform this

24 Court on any of the State's justifications. So for that

25 reason, we don't believe it's relevant to these proceedings.

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1

We also have some hearsay objections to this. It does

2 have some hearsay within hearsay that we would, if it was to be

3 admitted, we would ask to be stricken from the document.

4

THE COURT: Okay. Any further argument by Plaintiff?

5

MR. MOGILL: This is a report, what we have

6 requested --

7

THE COURT: I had a chance last night also. I can't

8 say I read it, because I did not. I read Dr. Chauncey, but did

9 not read this report.

10

MR. MOGILL: Okay.

11

THE COURT: But I looked through it and skimmed it.

12

MR. MOGILL: All right. This is a report prepared by

13 an arm of the State, the Michigan Department of Civil Rights.

14 It addresses specifically issues of discrimination against gay,

15 lesbian, bisexual and transsexual individuals in the state of

16 Michigan. In particular, there is within that report, a

17 finding by the State --

18

MS. HEYSE: Your Honor, I apologize. I would object

19 to them putting up --

20

THE COURT: I sustain it.

21

MS. HEYSE: Thank you.

22

THE COURT: If it's not in evidence, you can't argue

23 it. You're arguing its admissibility, not what it has to say.

24

MS. HEYSE: I would ask also that counsel to --

25

MR. MOGILL: I think I'd be to allude to what it says

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1 in order for the Court to understand the relevance.

2

THE COURT: You don't have to allude to it. You can

3 tell me generally what it says.

4

MR. MOGILL: Fine.

5

THE COURT: Though I looked at it.

6

MR. MOGILL: The report goes into detail.

7

MS. HEYSE: Your Honor, if I could ask that it be

8 removed?

9

THE COURT: Yeah. That's fine. I skimmed it last

10 night anyhow. I can't say that I didn't see it.

11

MR. MOGILL: The report goes into detail about the

12 history of discrimination within Michigan against LGBT

13 individuals. It goes into detail about the economic

14 disadvantages suffered by LGBT individuals. It does so as a

15 result of a very lengthy, detailed and comprehensive study,

16 again, by an agency of the State.

17

The standard for relevance under Federal Rule of

18 Evidence 401 is, of course, broad. And within the Sixth

19 Circuit, issues of relevance are to be -- the standard for

20 relevance is extremely liberal as indicated by the Sixth

21 Circuit in V & M Star Steel vs. Centimark, C-E-N-T-M-A-R-K,

22 Corporation, 678 F3d 459 at 468, a 2012 case.

23

And the standard, again, is evidence having any

24 tendency to make the existence of any fact that is of

25 consequence to the determination of the action more probable or

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1 less probable than it would be without the evidence is

2 relevant. And that's from Robinson vs. Runyon, at 149 F3d 507,

3 page 512, a 1998 Sixth Circuit case.

4

And the third legal point I'd like to address, even if

5 the evidence is insufficient to prove the ultimate point for

6 which it is offered, it may not -- a court may not exclude the

7 evidence if it has the slightest probative value, DS -- DXS --

8 start over again. DXS, Inc. vs. Siemens, S-I-E-M-E-N-S,

9 Medical Systems, Inc. 100 F3d 462 at 475. That's a 1996, Sixth

10 Circuit case.

11

The history of discrimination, the history and fact of

12 disadvantages suffered by same-sex couples, by LGBT individuals

13 in this state is relevant to the Court's evaluation of whether

14 or not there is a rational basis for the Michigan Marriage

15 Amendment and the parallel statutes.

16

This report, again, prepared by an agency of the

17 State, which is the official body whose policy is at issue

18 here.

19

I think that for the same reasons that Professor

20 Chauncey's testimony is relevant for the Court's consideration,

21 this report gives a good detailed local complement to that, and

22 respectfully request that the Court receive it in evidence.

23

THE COURT: Okay. Counsel, it looks like you'd like a

24 couple words.

25

MS. HEYSE: Sure.

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1

THE COURT: That's fine. You're entitled to the last

2 word, since it's your motion -- since it's your objection.

3

MS. HEYSE: Thank you, your Honor. I appreciate that.

4

Given the purpose under which Plaintiffs want to

5 submit this document to prove history of discrimination, it

6 would be cumulative, given the admission of Dr. Chauncey's

7 report. So for that reason, in addition to those I've already

8 articulated, we would ask that the Court exclude this evidence.

9

THE COURT: Okay.

10

MS. HEYSE: Thank you, your Honor.

11

THE COURT: Thank you.

12

I will preserve the objection. And I agree with

13 counsel, my skimming of it appears to be cumulative. But the

14 mere fact that something is cumulative doesn't make it not

15 admissible. And I think, again, I don't want to leave either

16 side with the impression of how much weight I'm going to give

17 it and so forth, but I think it is admissible. And the Court

18 will accept it as whatever exhibit, I forgot.

19

MR. MOGILL: Thank you.

20

THE COURT: Any other housekeeping matters?

21

MS. STANYAR: Yes, Judge. I've been remiss. We have

22 been assisted here in the courtroom, and I just want to

23 identify the people.

24

THE COURT: Please. My curiosity was piqued.

25

MR. MOGILL: One other housekeeping detail.

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1

THE COURT: Absolutely.

2

MR. MOGILL: I apologize. I've lost track as to

3 what's been admitted and not. Obviously, throughout the

4 testimony of several witnesses, we have had demonstrative

5 exhibits. We are not offering them as evidence, but we are --

6 I want to make sure they are admitted into the record as

7 demonstrative exhibits.

8

THE COURT: I think we talked about that. They are

9 not evidence, but I have been provided copies and so forth, not

10 as evidence, just what was demonstratively indicated.

11

MR. MOGILL: Okay. I wasn't sure if we had formally

12 taken care of that.

13

THE COURT: I think we talked about it.

14

MR. MOGILL: Okay.

15

THE COURT: I'm glad you cleared it up.

16

MR. MOGILL: I want to, again, thank you.

17

MS. STANYAR: So I'd like to acknowledge Stephanie

18 Augustyniak, who has provided a tremendous amount of assistance

19 here.

20

THE COURT: Tell me, are you a lawyer?

21

MS. AUGUSTYNIAK: No, I'm not. I've just been

22 assisting the lawyers in this case.

23

THE COURT: Paralegal, student?

24

MS. STANYAR: Not a student.

25

THE COURT: Just help?

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1

MS. AUGUSTYNIAK: Interested party.

2

THE COURT: Super. Great. Glad to have you.

3

MS. STANYAR: From almost the inception, she's helped

4 a lot.

5

THE COURT: Great.

6

MS. STANYAR: Wyatt -- and then we have the U of M law

7 students. Wyatt Fore, who has helped us a lot with the

8 demonstrative exhibits.

9

THE COURT: Great. We've seen him.

10

MS. STANYAR: We have Abbye Klamann.

11

THE COURT: U of M also?

12

MS. STANYAR: Yes.

13

THE COURT: Okay.

14

MS. STANYAR: And Derek Turnbull. And we'll have more

15 next week.

16

THE COURT: Okay. I know you've -- they are not

17 sitting here today. I know you had some folks sitting back at

18 your table today. Were they assistant attorney generals and

19 some students too, also?

20

MS. HEYSE: They weren't assistant attorney generals.

21

THE COURT: Good. Next time they are in, introduce

22 them. I saw them there, I was going to do the same thing. I

23 was going to somewhere down the line ask them. Today is

24 Friday, so.

25

MS. HEYSE: I should note one of them was my division

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1 chief, so he wouldn't be happy if I didn't note.

2

(Laughter in courtroom.)

3

THE COURT: Yes. If they come in again, please. As I

4 said, I just thought I'd get a chance during the trial to meet

5 them and so forth.

6

MS. HEYSE: Thank you, your Honor.

7

THE COURT: Good. Okay.

8

MS. STANYAR: And we introduced one more yesterday.

9 That was Alanna McGuire, and she's been helping us this week,

10 too.

11

THE COURT: There we go. Super.

12

Okay. Plaintiff, based upon that, rests at this

13 point?

14

MR. MOGILL: Yes, we do.

15

THE COURT: Okay. And my understanding is, counsel,

16 you've indicated that you have a motion?

17

MS. HEYSE: We do, your Honor.

18

THE COURT: You may turn the podium, so I can see you.

19 If it's a motion, you don't have to strain, and I don't have to

20 strain.

21

MR. POTCHEN: Your Honor, now that Plaintiffs have

22 rested, we would like to make a motion for judgment on partial

23 findings pursuant to Federal Evidence 52(c) or Rule 52(c).

24

The Plaintiffs have failed to meet their burden of

25 proof showing that when the people of Michigan lacked -- that

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1 they lacked any rational basis when they passed the Marriage

2 Amendment. They failed to negate every conceivable reason for

3 the Marriage Amendment. And that's what's required under the

4 rational basis test.

5

Under rational basis review, a court does not judge

6 the perceived wisdom or fairness of a law, but asks only

7 whether there is any reasonably conceivable state of facts that

8 could provide a rational basis for the classification. And

9 that's Heller vs. Doe, 509 U.S. 312, at pages 319 and 320.

10

They have -- I'll look at two examples, your Honor, of

11 where they have missed it. The first example is that by

12 passing the Marriage Amendment, the people of Michigan

13 acknowledge the importance of moms and dads in raising

14 children.

15

While he tried to downplay it in his testimony,

16 Professor Brodzinsky had to agree that moms and dads interact

17 differently with their children and admitted that moms and dads

18 are important.

19

Even Professor Cott, this morning, acknowledged that

20 genders play different roles or that genders are simply

21 different. And Professor Brodzinsky also agreed that having a

22 mother and father raising their children together is not a bad

23 goal. Thus, it was rational for the people of Michigan to

24 retain the definition of marriage, which seeks to encourage the

25 raising of children by their moms and dads.

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1

Now, to be clear, the state has never said that

2 same-sex couples cannot raise children. They can. Michigan

3 agrees that there can be many kinds of effective parents in

4 family structures. But Plaintiffs have not proven that there

5 is zero value in having a child being raised by their mom and

6 dad.

7

The people of Michigan are entitled to promote an

8 ideal, something that recognizes that moms and dads are

9 important. And Plaintiffs have failed to show that the

10 people's goal is irrational.

11

A second point: It was also rational for the people

12 of the State of Michigan to encourage a cautious approach when

13 considering a change in the fundamental institution of

14 marriage.

15

Professors Brodzinsky and Rosenfeld admitted that

16 same-sex marriage is relatively new in this country. And in

17 Michigan, marriage has never been defined as something other

18 than between a man and a woman. And Plaintiffs' witnesses

19 conceded that no comprehensive study has been done on children

20 actually raised by same-sex married couples.

21

And all the witnesses who discussed the studies agreed

22 that the majority of research regarding outcomes of children

23 raised by same-sex couples has been done by small convenience

24 samples. And while he attempted to qualify it, Professor

25 Brodzinsky admitted that these small samples were not

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1 representative of same-sex parents as a whole.

2

So those are two examples of where Plaintiffs have not

3 negated every conceivable reason for the Marriage Amendment.

4 And, therefore, we would request you grant our motion.

5

Thank you.

6

THE COURT: Thank you.

7

Response?

8

MR. MOGILL: May it please the Court. First of all,

9 the standard is not what Mr. Potchen indicated. As this Court

10 ruled --

11

THE COURT: You've got to get closer. And move it a

12 little bit closer, because I think it probably should be there.

13 I know, as lawyers we're not used to microphones. We're used

14 to --

15

MR. MOGILL: Back in the old days.

16

THE COURT: -- walking around, talking.

17

MR. MOGILL: Mr. Potchen is wrong about the standard.

18 This Court accurately identified the standard in its opinion

19 denying the cross motions for summary judgment when it

20 indicated, "The rational justification of the MMA," being the

21 Michigan Marriage Amendment, "must be rooted in the realities

22 of the subject being addressed." And I'll skip the cites.

23 "And when a provision of law adversely affects a group that has

24 endured historic patterns of disadvantage, courts make a more

25 careful assessment of the justifications than the light

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1 scrutiny offered by conventional rational basis review."

2

That was a very important finding that you made and

3 conclusion that you drew. And I think, with all due respect, I

4 think it makes it very clear from the outset why the State's

5 claim just doesn't hold any water.

6

The fact of the matter, though, is that even if the

7 Court were to look beyond the inaccuracy of the State

8 defendants' claim, what you have seen this week in this

9 courtroom is an overwhelming record establishing the utter lack

10 of a rational basis for Michigan's ban on marriage equality.

11

What you have not heard from the State, and it's very

12 telling from the State defendants, and Mr. Potchen's argument,

13 is any mention of the multiple decisions of other Federal

14 district courts in the last several months, each of which has

15 utterly rejected the State's claims of a rational basis for

16 comparable bans in Utah, in Oklahoma, in Virginia, and Texas.

17

THE COURT: But none of which has taken any testimony,

18 to my knowledge. We've been following very closely.

19

MR. MOGILL: That's right.

20

THE COURT: This is -- they were all decided without

21 any -- I should say without. I'm sure, you know -- without,

22 without the evidence that's --

23

MR. MOGILL: That's right. And --

24

THE COURT: And I think they're different.

25

MR. MOGILL: My point is, the record in this case

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1 makes the correctness of those decisions even stronger.

2

While those decisions were made based on submissions

3 to the Court, without the witnesses coming in and testifying

4 live and being subjected to cross-examination, the evidence

5 presented before this Court underscores and strengthens those

6 findings manyfold.

7

There is utterly no rational basis, given the

8 realities of what the marital relationship is as a matter of

9 law, not as what -- not with respect to what some people would

10 like to think it is as a matter of their own personal, private

11 or religious beliefs.

12

There is not anything that would support a rational

13 basis for distinguishing between opposite-sex couples and

14 same-sex couples in terms of eligibility for the right to marry

15 based on the record before this Court.

16

THE COURT: Okay. Thank you.

17

I'll take the motion under advisement. I will deal

18 with it in my opinion. I think it's too important to, to talk

19 about it at this point. So we will continue the trial. I will

20 deal with it in my opinion.

21

Any other matters we should talk about before we

22 adjourn for the weekend? Okay. We will stand adjourned.

23

(Off-the-record discussion.)

24

THE COURT: We'll stand in recess.

25

THE CLERK: All rise.

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1

(Proceedings adjourned at 10:50 a.m.)

2

*

*

*

3

4

CERTIFICATE OF REPORTER

5

As an official court reporter for the United States

6 District Court, appointed pursuant to provisions of Title 28,

7 United States Code, Section 753, I do hereby certify that the

8 foregoing is a correct transcript of the proceedings in the

9 above-entitled cause on the date hereinbefore set forth.

10

11

12

s/ Christin E. Russell

13

CHRISTIN E. RUSSELL, RMR, CRR, FCRR, CSR

14

Federal Official Court Reporter

15

16

17

18

19

20

21

22

23

24

25

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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

2

SOUTHERN DIVISION

3 APRIL DEBOER, ET AL.,

4

Plaintiff,

Case No. 12-10285

-v-

5

RICHARD SNYDER, ET AL.,

6

Defendant.

7 ____________________________________/ VOLUME 7

8

BENCH TRIAL

9

BEFORE THE HONORABLE BERNARD A. FRIEDMAN

United States District Judge

10

Theodore Levin United States Courthouse

231 West Lafayette Boulevard

11

Detroit, Michigan

March 5, 2014

12

APPEARANCES:

13

FOR THE

Carole M. Stanyar, Esq.

14 PLAINTIFFS:

Dana M. Nessel, Esq.

Kenneth Mogill, Esq.

15

Robert Sedler, Esq.

Vicki L. Henry, Esq.

16

Leslie Cooper, Esq.

FOR THE

17 DEFENDANTS:

Kristin M. Heyse, Esq.

Richard Snyder

Joseph E. Potchen, Esq.

18 Bill Schuette

Michelle Brya, Esq.

Tonya C. Jeter, Esq.

19

Lisa Brown

Andrea J. Johnson, Esq.

20

Beth M. Rivers, Esq.

Michael L. Pitt, Esq.

21

22

To Obtain a Certified Transcript Contact:

Christin E. Russell, RMR, CRR, FCRR, CSR - (248) 420-2720

23

Proceedings produced by mechanical stenography.

Transcript produced by computer-aided Transcription.

24

25

2:12-cv-10285-BAF-MJH Doc # 150 Filed 03/13/14 Pg 2 of 102 Pg ID 3843 2

1

INDEX

2

Bench Trial, Volume 7 - Part A

3

WITNESSES FOR DEFENDANTS:

4

JOSEPH PRICE, Ph.D.

CROSS-EXAMINATION BY MS. NESSEL

5

REDIRECT EXAMINATION BY MS. BRYA

6

LOREN DEAN MARKS, Ph.D.

DIRECT EXAMINATION BY MR. POTCHEN

7

8

9

10

11

EXHIBITS

12

Exhibit

State's Exhibit #16

13

State's Exhibit #17

14

15

16

17 CERTIFICATE OF REPORTER
18

19

20

21

22

23

24

25

Page 3
49 58
Page 64 80
102

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3

1 Detroit, Michigan

2 March 5, 2014

3 9:00 a.m.

4

(Call to Order of the Court.)

5

THE COURT: You may be seated. Good morning.

6

Okay. Doctor, come on up here. You're still under

7 oath.

8

THE WITNESS: Okay.

9

THE COURT: Okay. You may proceed.

10

MS. NESSEL: Thank you, your Honor.

11

JOSEPH PRICE, Ph.D.

12 called as a witness, previously sworn, testified as follows:

13

CROSS-EXAMINATION

14 BY MS. NESSEL:

15 Q. Good morning.

16 A. Good morning.

17 Q. Okay. So if we can start by just briefly trying to get

18 some clarification on the statistics we talked about yesterday

19 regarding your critique of the Rosenfeld study.

20

Now, you indicated that you found children of same-sex

21 couples were 35 percent less likely to make progress through

22 school than children of heterosexual married parents, correct?

23 A. It's slightly different than that. It's just the odds of

24 children making normal progress through school is 35 percent

25 less.

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1 Q. All right. In your testimony from yesterday, you said that

2 this outcome is considered very uncommon, it rarely occurs,

3 right? Regardless of who the child's parents are, it's very

4 rare the child would not pass on from one grade to the next at

5 that level?

6 A. That's correct.

7 Q. And that's why you believe that sample size is so

8 important, right?

9 A. It's one of three reasons, yeah.

10 Q. And when something occurs rarely, a small difference in the

11 rate of the occurrence can result in a very large percentage

12 difference, true?

13 A. That's, yeah, that's true.

14 Q. Okay. So, just so I understand this, and I'm trying to put

15 this in context, I'll try and speak really loudly since there's

16 no microphone right here. But --

17

THE COURT: You have to be near a microphone.

18

MS. NESSEL: Here.

19

THE COURT: There you go.

20

MS. NESSEL: Is this all right if I move over there?

21

THE COURT: You can go wherever you want, as long as

22 you have a microphone. That will work, I think.

23 BY MS. NESSEL:

24 Q. Okay. So, Dr. Price, tell me if this analysis is correct.

25 All right. So if you have Group A, all right, and let's say

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1 we're talking about something like the percent that a person

2 will experience blindness, just use that randomly. Okay?

3

If Group A has a one percent chance of blindness, and

4 Group B, people in that category have a 35 percent chance

5 higher, increased 35 percent chance of going blind or

6 experiencing blindness. Then Group B has a 1.35 percent chance

7 of experiencing blindness; is that correct?

8 A. That's correct.

9 Q. Okay. And those are the kind of differences that we're

10 talking about in terms of your study, or your critique of

11 Rosenfeld, correct?

12

MS. BRYA: I'm going to object. Vague question. I

13 don't know what that means.

14

THE COURT: Finish the question. Repeat -- start from

15 the beginning.

16

Doctor, before you answer, we'll hear the objection.

17 BY MS. NESSEL:

18 Q. These type of percentages, or similar to the percentages

19 we're talking about in your study between kids raised by

20 same-sex parents, and kids raised by opposite-sex parents, in

21 terms of their ability to make normal progress through school,

22 correct?

23

THE COURT: There's still an objection?

24

MS. BRYA: Yes, your Honor. I think the question is

25 vague. I don't, I don't know what it means to same kinds of

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1 percentages.

2

THE COURT: If Dr. Price can't answer it, or it's not

3 clear please say so, or if he can answer it, please say so.

4

THE WITNESS: Yes. Well, the primary difference is

5 that the base rates would be a little bit higher. So we would

6 be talking about 8 percent versus whatever 35 percent higher

7 that is.

8

But again, with your example about blindness, if

9 someone told a parent that if you do "X" it will increase the

10 chance your child will go blind by 35 percent, I think that's

11 actually the information they might find more useful than

12 saying it goes up by point 35 percentage points.

13 BY MS. NESSEL:

14 Q. But then really, what you would be saying to the person,

15 say somebody took their child to see the eye doctor, and when

16 they said 35 percent increase, what they are saying is instead

17 of your child having a one percent chance of going blind, they

18 now have a 1.35 percent chance of going blind. That's really

19 what that would mean, correct?

20 A. What I mean is the way we would phrase that is we could

21 tell the parent the increased probability of your child being

22 blind is, you know, point 35 percentage points, which happens

23 to be about a 35 increase -- 35 percent increase relative to

24 the baseline rate. I think, actually, both, both of those

25 pieces of information would be helpful to a parent.

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1 Q. But still, your percent chance of going blind, whether

2 you're Group A or Group B is very, very minute, correct?

3 A. I mean, it depends on what you mean by minor. I mean,

4 so --

5 Q. Well, by "minor" I mean the difference between 1 percent

6 and 1.35 percent.

7

MS. BRYA: Objection, your Honor. He's asked and

8 answered. Thank you.

9

THE COURT: Sustained.

10 BY MS. NESSEL:

11 Q. Did you have a chance, Dr. Price, after --

12

THE COURT: Why don't you move it back or --

13

MS. NESSEL: I may be going back so.

14

THE COURT: Very good.

15 BY MS. NESSEL:

16 Q. After we had a chance to go through some of your numbers,

17 did you have an opportunity to look at your chart at all to do

18 any calculations, the kind of calculations that we talked

19 about?

20 A. I didn't do that calculation.

21 Q. Okay. Well, in terms of giving us a number, of the number

22 of kids who would progress, I would say the percentage of kids

23 that would progress through school, without any problems at

24 that age, comparing the opposite sex couples' kids or the kids

25 that were raised by married heterosexuals, are you able to do

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1 that determination? Are you able to look at your statistics,

2 and look at your graphs and charts that you compiled and come

3 up with numbers for that?

4

MS. BRYA: Objection, your Honor. I think the

5 question has been asked and answered.

6

THE COURT: He can answer yes or no.

7

THE WITNESS: Yeah. I can't do that right now.

8 BY MS. NESSEL:

9 Q. What would you require in order to be able to do that?

10 A. I mean, if I had access to my data or --

11 Q. Okay.

12 A. -- if we -- I mean, my -- yeah.

13 Q. So if you had --

14

MS. NESSEL: May I approach, your Honor?

15

THE COURT: Of course.

16 BY MS. NESSEL:

17 Q. Is this the PowerPoint that you put together?

18 A. This is the PowerPoint that I put together.

19 Q. And that, this includes, somewhere in this PowerPoint is

20 the information that you would need in order to make those

21 calculations, correct?

22 A. It would give an approximation, yeah.

23

MS. NESSEL: Okay. May I hand it to him?

24

THE COURT: You may hand it to him.

25 BY MS. NESSEL:

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1 Q. And do you need a calculator to do that?

2

THE COURT: Wait. You're asking him to calculate it?

3

MS. NESSEL: Yes. I would ask him to calculate the

4 percentages.

5

MS. BRYA: Your Honor, I'm going to, I'm going to

6 object to this. This isn't -- this wasn't part of his report.

7 We, you know -- I don't know if it takes --

8

THE COURT: I mean, I feel the same way. You know,

9 the objection has always been it wasn't part of his report, he

10 didn't, you know, and so forth. And now you're asking him to

11 calculate something that wasn't part of his report when I

12 sustained the objection that you made, because I think it's a

13 very valid objection, you couldn't be prepared for it. But it

14 goes -- it's a double-edged sword. It goes for both sides.

15

MS. NESSEL: All right. And I understand that, your

16 Honor. It's just that he actually did put the graphs on the

17 screen and then he talked about the graphs.

18

THE COURT: Yeah. The graphs, you can ask him

19 anything you want about, no problem, as long as it was in his

20 report and it wasn't objected to.

21

MS. NESSEL: Okay.

22

THE COURT: But what you're asking him to do is

23 calculations that he has not done before and was not in his

24 report. And I think if we're going to stay to his report, then

25 we should stay to his reports.

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1

MS. NESSEL: All right. So then, just so I'm

2 exceedingly clear, with --

3

THE COURT: Pardon?

4

MS. NESSEL: With a calculator and everything, you

5 don't want me to ask him to?

6

THE COURT: It's not that I don't want you to.

7

MS. NESSEL: All right.

8

THE COURT: If we're going to stay within this report.

9 If you want him to do that, then I'm going to allow the, the

10 State to go into things that weren't in his report. So it

11 wouldn't be fair.

12

MS. NESSEL: I understand, your Honor. That's fine.

13 BY MS. NESSEL:

14 Q. So then you don't know, just to be clear, from your chart,

15 your graph, from what you have already looked at then, you

16 can't say you don't know if the percentage roughly involves 97

17 percent of kids of same-sex parents progressing normally versus

18 98 percent of kids who had opposite-sex parents, you don't know

19 that?

20

MS. BRYA: Objection, your Honor. Asked and answered.

21

THE WITNESS: I don't know that. I did all my

22 analysis in terms of odds ratios, which I think is a reasonable

23 way to present the information.

24 BY MS. NESSEL:

25 Q. All right. But the information I just provided to you,

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1 that could be correct then, you just don't know?

2 A. I don't know.

3 Q. All right. I'll move this back.

4

THE COURT: You are going to have to move it a little

5 bit closer. The base, the base. Yeah, there you go. Thank

6 you.

7 BY MS. NESSEL:

8 Q. All right. And again, now, with one of the differences

9 between the way that you looked at the data, and Rosenfeld

10 looked at the data, again, was that Rosenfeld controlled for in

11 the same sex pop -- sorry, the children of same-sex couples'

12 population, one of the things he controlled for was divorce or

13 separation from a parent and you did not control for that,

14 correct?

15 A. That's, that's not correct.

16 Q. Well, could you explain what that -- that was not something

17 that was controlled for by Rosenfeld?

18 A. Yes. So Rosenfeld doesn't know -- I don't know, maybe you

19 could ask your question. I mean, I want to be really clear

20 that I answered this --

21 Q. Okay. Well --

22 A. -- honestly.

23 Q. -- let me rephrase it then. Now, Rosenfeld's data was U.S.

24 Census data that was publicly available, right?

25 A. That's correct.

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1 Q. Okay. And he shared his data and his analysis code with 2 you? 3 A. That's correct. 4 Q. And I think you had testified that the level of 5 data-sharing from Rosenfeld, I think this was your quote, "does 6 not exist for most previous research on gay or lesbian 7 parenting," correct? 8 A. That's correct. It's harder to obtain those other previous 9 data. 10 Q. And so you used Rosenfeld's study because it was held up as 11 a gold standard of large data sets? 12 A. That's correct. 13 Q. Okay. And when you and your fellow co-authors 14 reconstructed Rosenfeld's data, do you mean that you ran the 15 numbers the way that Rosenfeld did and got the same results 16 that he got? 17 A. So I hope I was clear about this yesterday, but in Table 2 18 of our paper, we run the results the same way that Rosenfeld 19 does. And we showed that there's different ways to interpret 20 those numbers. And then in table 3, what we do is we expand 21 the sample to include the children that he left out. 22 Q. Now, what you indicated, and maybe this is just what you 23 said, but you said it a different way. So tell me if this is 24 incorrect. But in your expert report, in paragraph 12, what 25 you indicated was in terms of your study, "For our study we

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1 reconstruct Rosenfeld's data using publicly available data from

2 U.S. 2000 Census." And you said that, right?

3 A. That's correct.

4

MS. BRYA: Your Honor, can we just hold on for just a

5 moment so we can get to the page?

6

THE COURT: Sure.

7

MS. BRYA: And perhaps even Dr. Price could see a page

8 in his report as well?

9

THE COURT: Absolutely. Is it in the book or a copy?

10

THE WITNESS: It's in the book, but the book is over

11 there.

12

THE COURT: You just don't have the book up there?

13

THE WITNESS: I just don't have the book up.

14

THE COURT: I think there's a witness book right in

15 front -- oh, it's not that?

16

MS. HEYSE: May I approach, your Honor?

17

THE COURT: Oh, please. You might as well give him a

18 copy.

19

Everybody else has copies?

20

THE WITNESS: Which number are you on?

21 BY MS. NESSEL:

22 Q. Oh, I'm sorry. Paragraph 12 in your report. Tell me when

23 you're done.

24 A. I have that, yes.

25 Q. Okay. All right. So now you indicated in that paragraph,

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1 as we said just now, that you reconstructed Rosenfeld's data

2 using publicly available data from the U.S. Census from 2000,

3 and you said we also use the same outcome variable, control

4 variable, and family structure definition in our analysis. We

5 then make only two changes to the original analysis, both of

6 which led to very different conclusions from the original

7 study. First change provides --

8

THE COURT: You have to go slow.

9

MS. NESSEL: I'm sorry.

10 BY MS. NESSEL:

11 Q. The first change provides an alternative interpretation of

12 the original empirical specification, and the second expands

13 the sample to include the children that Rosenfeld excluded from

14 his analysis.

15

That's, that's all correct, right?

16 A. That is all correct.

17 Q. Okay. In other words, when you do what Rosenfeld did, when

18 you recreate his study, the result is that the outcome to

19 children raised by same-sex couples cannot be distinguished

20 with statistical certainty from children of heterosexual

21 married couples. You would agree with that, right?

22 A. Let me just qualify that answer. Again, the big difference

23 is whether it's economically significant versus whether it's

24 statistically significant.

25

And the point we're trying to make is that even using

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1 Rosenfeld's specification, the coefficient is about a 15

2 percent advantage for children raised by heterosexual married

3 couples. However, it's rather imprecise, and so it would be

4 impossible to rule out effects that were as large as even 47

5 percent.

6 Q. Wait. I'm sorry. So even when you recreate what he did

7 exactly, you get different results?

8 A. No. It says, if you read my report, it says the first

9 change provides an alternative interpretation of the original

10 empirical specification.

11 Q. You're talking about changes. I'm saying that in terms of

12 the precision of what Rosenfeld did, when you run the numbers

13 the way he ran the numbers, you get the same results?

14 A. Again, he did not report standard errors in his paper. But

15 we do both agree that those results are sufficiently imprecise;

16 that it does not allow you to determine whether it's

17 statistically significantly different from zero.

18 Q. Well, you consider Rosenfeld's paper to be a real leap

19 forward in the literature, correct?

20 A. I do.

21 Q. All right. Now, let's talk about some of the studies that

22 you, that you examined regarding child outcomes.

23

Now, the studies that you're aware of, or the studies

24 I should say, that you examined, the majority of children who

25 were raised by same-sex couples were originally born to

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1 heterosexual parents that either broke up or divorced, right?

2 A. That's quite, that's quite possible.

3 Q. It's possible or it's correct?

4 A. So in my data, it's more complicated than I thought to

5 determine that. But actually, if you had to ask me, I'd

6 probably guess that the majority of children being raised by

7 same-sex couples were part of a heterosexual marriage at some

8 point. But it's actually harder than I thought to calculate

9 that specific number.

10

MS. NESSEL: Your Honor, may I approach the witness?

11

THE COURT: Of course.

12 BY MS. NESSEL:

13 Q. Dr. Price, I'm going to show you --

14

THE COURT: You have to be by a microphone. Hand him

15 and then -- you can give it to him.

16

MS. NESSEL: Give you that.

17

THE COURT: And then back to the microphone.

18 BY MS. NESSEL:

19 Q. I've just handed you what appears to be your deposition

20 testimony that you gave on January 18th, 2014 in Lansing,

21 Michigan. Is that what that document is that I handed you?

22 A. That is correct.

23 Q. Okay. And I wonder if I could have you turn to page 60 of

24 that document. And just tell me when everybody is ready.

25

MS. HEYSE: Is that six zero?

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1

MS. NESSEL: Six zero.

2 BY MS. NESSEL:

3 Q. Now, are you -- is everybody there?

4

Okay. So Dr. Price, on line 4 of your -- of page 60

5 of your deposition, the question was posed to you:

6

"So the evidence that we do have are from samples that

7 you say the majority of which consisted of children who are the

8 product of a failed heterosexual union, before being raised by

9 same-sex couples; is that right?"

10

And Dr. Price, your answer was, "Well, they are the

11 product of a failed -- they are not biologically related to

12 both parents in the sense that they are listed as

13 stepchildren."

14

Is that right?

15 A. Yeah. That's what it says there, yes.

16 Q. So there's --

17 A. Yes.

18 Q. Stepchildren are the children that are of a failed

19 heterosexual relationship, correct?

20 A. Well, so let's just -- if you look at the deposition,

21 you'll see in the line you quoted, it's using the word

22 "heterosexual union." Okay? And then if you come down to the

23 next question, it's about a heterosexual couple conceiving

24 them.

25

So the thing, I mean, this is kind of a fine point,

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1 but if a single woman conceives a child, presumably it will be 2 with, with a man, but they might not actually be in a union. 3 And that's what I meant by I wasn't -- I'm not quite sure what 4 the number of children that were from a, a heterosexual union. 5 Q. All right. Well, but you think the normal way that 6 same-sex couples have children is actually through a previous 7 failed heterosexual union, though; is that correct? 8 A. No. It's this word "union." I don't know if it's through 9 a failed union. It's, it's through, I mean, it was through -10 the child was conceived through a sexual relationship. But I 11 think when we talk about a union, we think of either a marital 12 union or potentially a cohabiting union. 13 Q. Okay. 14 A. I mean, we don't think of a single mother as being part of 15 a union. 16 Q. But you're, what you're talking about, though, is a man and 17 a woman having a child together, whether they are living 18 together, whether they are cohabitating together. You're not 19 talking about people in the situation, say, of our clients, who 20 took their children in together as a couple, at their births; 21 you're not talking about them? 22 A. No. And I'm really clear in here about to say that the 23 fraction of children that are adopted is rather low. 24 Q. All right. And the type of, the type of relationships that 25 you did examine then, either a failed heterosexual union or

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1 some type of heterosexual relationship between the man and the

2 woman that created that child, for those kids that there was

3 some kind of a relationship between the parents who got

4 divorced, divorce is strongly associated with poorer outcomes

5 for children. You would agree with that, right?

6 A. Yes.

7 Q. And divorce has negative consequences regardless of whether

8 the couple is subsequently raised by a straight couple or

9 subsequently raised by a same-sex couple, correct?

10 A. If you could repeat that again. Sorry.

11 Q. Okay. If you have a child who comes from a failed

12 heterosexual relationship, okay? And those parties, the male

13 and the female get divorced, it doesn't matter if that child

14 goes on to live with his mother and another man, or goes on to

15 live with his mother and a woman. I mean, you -- the

16 consequences of that child would be the same?

17

MS. BRYA: Your Honor, I'm going to object as to what

18 it means by the consequences. I'm not sure what that means. I

19 think it's vague.

20

THE COURT: Doctor, if you know what it means, you may

21 answer. If you don't, then --

22

THE WITNESS: Yeah. I mean, it's -- I think I'm -- we

23 don't have a lot of information about the consequences of

24 failed relationships.

25 BY MS. NESSEL:

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1 Q. Well, you know failed relationships are bad for kids 2 though, right? 3 A. Well, we know a lot of information about divorce being bad 4 for kids. There's actually, you know, I mean -- I don't know. 5 A failed relationship could mean that the child never -- I 6 don't know what it means for a failed relationship to occur 7 before the child is born. 8 Q. All right. So, but the way that you did your study, 9 obviously, included children who came from a failed 10 heterosexual actual relationship, either they lived together or 11 they were married or something like that, and then they went on 12 to live with a same-sex couple, correct? You added that back 13 in? 14 A. Yeah. That's correct. 15 Q. Okay. And the data in the studies you looked at, if I 16 understand this, it doesn't allow to distinguish whether the 17 poorer outcomes of the children are operating through a 18 previous divorce, or the fact that the child later lives with a 19 same-sex couple. You don't know what the circumstance was, you 20 don't know why, correct? 21 A. Yes. And neither Rosenfeld's study or my study would have 22 the data to be able to control for that. 23 Q. All right. And the information just wasn't available to 24 determine how many of those children are raised from birth or 25 near birth by same-sex couples, right?

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1 A. No. It's, it's actually quite hard to find children in 2 that category. 3 Q. In fact, in the Regnerus study that you talk about, we know 4 that out of all the couples that he looked at, there were only 5 two children that were raised from birth or near birth by 6 same-sex couples, right? 7 A. And that's what I meant with my statement, that it's really 8 hard to find children that -9 Q. Right. 10 A. -- have been raised from birth by a same-sex couple. 11 Q. But the two kids in that study that were raised from birth 12 or near birth by same-sex couples, those kids turned out quite 13 well, didn't they? 14 A. I don't know if we can -- I mean, it's two observations. 15 So I don't know, actually. I didn't look at specific 16 observations in this data set. 17 Q. You don't know how those two kids turned out -18 A. I don't. 19 Q. -- who were raised in that environment? 20 A. Yeah. When I work with data, I never look at the specific 21 observations. I mean, I work in averages across curves. 22 Q. All right. So you don't look at the specific observations 23 in terms of the outcome of the kids? 24 A. No. When I do research on basketball, I never look at 25 individual players or referees. I, I aggregate across

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1 individuals.

2 Q. You don't think that kind of information is important?

3 A. I'm an economist. We have a different approach. I would

4 agree that there's other professions in which they are going to

5 interview people, do qualitative work, but that's not the kind

6 of research I do.

7 Q. Well, but you would agree that in smaller studies where you

8 can do that kind of thing, those are worthy of consideration in

9 other fields, aren't they?

10 A. I, I acknowledge that other fields find that to be

11 important. I, from a statistical inference perspective,

12 there's some challenges with working with really small data

13 sets.

14 Q. Now, let's talk about the mechanisms that you describe that

15 could explain poorer outcomes of children.

16

I think that what you said yesterday, and in your

17 presentation, was that you believe as an expert in economy,

18 that the three mechanisms that explain the conclusions that

19 children of same-sex couples have noticeably worse outcomes

20 than the children of married heterosexual parents are, tell me

21 if I'm wrong about this, gender appearance, biological

22 relatedness, and family structure stability, correct?

23 A. Yeah. I'm posing these as three reasonable explanations

24 for why we observe differences in outcomes.

25 Q. Okay. And those are the only mechanisms that you offer,

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1 right? 2 A. Those are the only I offered in my expert report. 3 Q. Now, you agree that there is also possibly a different 4 mechanism, which is divorce, or a separation that could also be 5 a mechanism, that contributes to child outcomes, right? 6 A. Yeah. Divorce certainly can contribute to child outcomes. 7 Q. Okay. But I'm trying to understand your testimony. You're 8 indicating that you don't believe it's appropriate to control 9 for a prior divorce as a confounding variable when you're 10 assessing the outcomes of children raised by same-sex couples? 11 A. I didn't say that. I said that neither Rosenfeld or I, the 12 data we were using, had the ability to control for that. 13 Q. Okay. 14 A. That variable. 15 Q. But it seems like that would be an important thing to 16 control for, don't you think? 17 A. I agree. I mean, we would always like to control for more 18 things. But in this data set, and the other data sets that I 19 looked into, that wasn't a possibility. 20 Q. Okay. So then you, just to be clear, you don't know of any 21 study that is able to answer the question of whether poorer 22 outcomes that you claim for children of same-sex couples is 23 attributed to the product of being a failed heterosexual union, 24 versus being raised by a same-sex couple, correct? 25 A. I don't know, I don't know of any large national

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1 representative data set that would be used commonly by

2 economists that would provide that information.

3 Q. Okay. Let's talk about what you had indicated about

4 parental gender. Now, it's your belief that mothers and

5 fathers play distinct and complementary roles in raising

6 children of --

7

(Coughing in courtroom.)

8

COURT REPORTER: I'm sorry. Can you repeat that?

9

MS. NESSEL: Sure.

10 BY MS. NESSEL:

11 Q. You think that mothers and fathers play distinct and

12 complementary roles in raising children, correct?

13 A. Yes.

14 Q. Okay. So therefore, you believe that same-sex couples,

15 their children are at a disadvantage, correct?

16 A. I believe that children that don't have a mother are at a

17 disadvantage. I believe that it's probably also true that

18 children that don't have a father would be at a lesser

19 disadvantage, but possibly still a disadvantage.

20 Q. Now, the study that you did on parent and child time, you

21 didn't examine the outcomes of children, right?

22 A. The American Timing Survey does not include information

23 about the outcomes of those children.

24 Q. Okay. Now, you had stated that fathers spend more time

25 playing sports with their children, and doing exterior

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1 housework together, while mothers spend more time reading to 2 their children, talking with the children, and doing interior 3 housework together. That's what something that you stated, 4 right? 5 A. Those are three activities that look distinct between 6 fathers and mothers. 7 Q. Okay. And honestly, this is not a facetious question. I 8 just want to know, what century is this statement based on? Is 9 this, is this based on 21st century data, 20th century? What 10 time frame are you looking at when you come to those 11 conclusions? 12 A. The American Timing Survey started in 2003. 13 Q. Okay. 14 A. And it's been going on since then. 15 Q. Well, you talked a little bit about basing your theories 16 about parental gender on, and the way men and women operate in 17 modern society, and whether they are descendants of societies 18 that practice plow agriculture, you wrote a -- you talked about 19 that yesterday in the blog you posted for the Austin Institute, 20 right? 21 A. That's correct. 22 Q. Okay. So do you base your theories on parental gender at 23 all in people who lived centuries ago? 24 A. I don't think I understand your question. 25 Q. Does your -- do your theories about plow agriculture that

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1 you've blogged about, do those influence your theories about 2 parental gender? 3 A. Again, I'm not positing -- I guess actually, I don't 4 even -- yeah, I don't actually know how to answer your 5 question. But I hadn't thought about whether I'm influenced by 6 the, you know, agricultural practice hundreds of years. I 7 actually don't know if that's what -8 Q. That's what -9 A. In my, in my paper when I'm talking about differences 10 between the practices of fathers and mothers, I'm looking at 11 differences in the frequency with which they do different 12 activities. 13 Q. Okay. Well, when you describe the way that you believe 14 mothers tend to behave and the way fathers tend to behave, 15 you're describing averages, right? 16 A. That's right. 17 Q. Now, some mothers may behave in ways that fathers typically 18 behave, right? 19 A. Yes. 20 Q. And some fathers behave in a way that you believe mothers 21 typically behave? 22 A. Yes. 23 Q. Okay. So in some families, the mom might play sports with 24 their kids, and the dad might help the kids with cooking? 25 A. Yeah. That could be true for some families.

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1 Q. Okay. And in some families, the mom may spend more time 2 watching TV and roughhousing with the kids, and the dad might 3 spend more time doing housework, right? 4 A. That could be true for some families. 5 Q. Okay. And in some families, the roughhousing and the 6 housework are equally distributed between the mother and the 7 father, right? 8 A. Yes, that could be true. 9 Q. Okay. Now, in terms of the interactions of how things work 10 when you have two moms or two dads, have you ever had the 11 opportunity to personally observe or personally interact with 12 any families that are headed by gays or lesbians? 13 A. That would not be the kind of research I would do. I 14 believe that type of research would result in too small of a 15 sample to provide meaningful statistical inference. 16 Q. So you've not made any personal observations then at all of 17 gay couples and their families? 18 A. That's not the approach that an economist would typically 19 use. 20 Q. Okay. All right. But your belief is that children need to 21 have a father to play sports with them and they need to have a 22 mother to take care of the interior of the household? 23 A. I didn't actually say that's something they need. I say 24 these are indicative that fathers and mothers parent in 25 different ways, and that when you bring together parents that

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1 engage in different activities, it's going to provide a

2 complementary opportunity for their kids.

3 Q. But you're basing that on either, either a stereotype or in

4 terms of whatever your research has been, that women are more

5 interested in the interior of the house, and fathers or men are

6 more interested in sports, right?

7

MS. BRYA: I'm going to object, your Honor. I think

8 that mischaracterizes his testimony. He never said it was

9 based on any stereotype or anything like that. I think he's

10 answered.

11

THE COURT: Sustained.

12 BY MS. NESSEL:

13 Q. I'll withdraw stereotype. But that's what your

14 understanding is, though?

15

MS. BRYA: I'll renew the objection, your Honor.

16

THE COURT: Then why don't you rephrase the question.

17

MS. NESSEL: Okay.

18

THE COURT: But ask him a question.

19

MS. NESSEL: Sure.

20

THE COURT: But ask him a question.

21

MS. NESSEL: Is it your understanding then --

22

THE COURT: -- making a statement.

23

MS. NESSEL: Sure, Judge.

24

THE COURT: Ask him a question.

25 BY MS. NESSEL:

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1 Q. Is it your understanding then that women are more

2 interested in the interior of the household, in dealing with

3 those matters, and men are more interested in sports?

4 A. Again, my data doesn't say anything about what they are

5 interested in. All it does is it says this is how fathers use

6 their time, this is how mothers use their time.

7

As an economist, we would say look at their actions

8 and rather than ask them, you know, what their preferences or

9 interests are.

10 Q. So in looking at all that then, is it your understanding,

11 for instance, of gay people, that gay men are never interested

12 in interior decorating, and lesbians are never interested in

13 sports?

14 A. I don't know the answer to that question.

15 Q. Okay. And you said you've never actually interacted with

16 any of these people, so you don't know how they react when they

17 are together, where there's two of them together, correct?

18

MS. BRYA: Objection, your Honor. I think that

19 mischaracterizes his testimony. He didn't say he never

20 interacted with gay people.

21

THE COURT: Sustained.

22

THE WITNESS: I mean, all I said earlier was that in

23 the American Timing Survey, there are same-sex couples. And

24 when I talk about those gender patterns, I'm talking about the

25 average man versus the -- the average father compared to the

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1 average mother. 2 BY MS. NESSEL: 3 Q. Well, then is it your understanding, do you think that in a 4 two-dad household, that no one does interior work on the house? 5 A. I'm not saying that. I'm saying that there's an average 6 tendency for -- to men to read less their kids, talk less their 7 kids than mothers do. 8 Q. And you don't know if there's compensation that occurs when 9 there's two people of the same gender then, right? 10 A. I don't know that. 11 Q. Okay. So you would agree with me that whether it's a 12 two-dad household or a two-mom household, it's likely that 13 someone does the dishes and someone cooks, right? 14 A. I would hope so. 15 Q. And in a two-dad household, somebody reads to their kids? 16 A. Again, there's lots of households that don't read to their 17 kids. 18 Q. Well, I mean, do you think that in a two-mom household, 19 like in April and Jayne's house, that nobody does the exterior 20 work, nobody mows the lawn or shovels the driveways or does any 21 of those activities? 22 A. So, again, I don't, I don't have any information about 23 that. I wouldn't know how to answer your question. 24 Q. Okay. So you don't know, for instance, at Jayne and 25 April's house if one or both of them still plays sports with

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1 the kids, or roughhouses with the kids, or any of those

2 typically male activities?

3

MS. BRYA: Objection, your Honor.

4

THE COURT: Sustained.

5 BY MS. NESSEL:

6 Q. All right. Are you aware of any studies that say that

7 children have poorer outcomes if the mother is the one that

8 plays sports with the kids and the father is the one that does

9 housework with them?

10 A. I don't have that.

11 Q. Okay. Are you aware of any studies at all that find that

12 when mothers behave in ways typically associated with fathers,

13 children have poorer outcomes?

14 A. Yeah, I don't know that.

15 Q. All right. And you're not aware of any studies that find

16 when fathers behave in ways that you typically associate with

17 mothers, that the children have poorer outcomes?

18 A. Yeah. I don't know about that.

19 Q. All right. The next mechanism you talked about was

20 biological relatedness, correct?

21 A. That's correct.

22 Q. Okay. And in terms of theories of evolutionary biology,

23 you're not an expert on that, are you?

24 A. I'm not an expert on that.

25 Q. Okay. You don't know if there are studies out there that

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1 critique theories about evolutionary biology? 2 A. I don't. 3 Q. But you say that in same-sex couple, both parents can't be 4 genetically related to a child, right? 5 A. That's correct. 6 Q. Okay. But obviously, if you have a sperm or egg donation 7 from a family member, then you have at least one person who is 8 the biological parent in that instance, right? 9 A. That's correct. 10 Q. Okay. Now, you say that a lack of biological relatedness 11 of one parent in a same-sex couple is a mechanism for poorer 12 outcomes for the child? 13 A. I was listing that as a possible explanation for why 14 outcomes might differ. 15 Q. Well, when you said that, though, in support of that 16 hypothesis, you cite studies indicating that children with 17 stepparents tend to have poorer outcomes, right? 18 A. That is correct. 19 Q. So your belief is that the partner of a same-sex couple, 20 the one who is not biologically related, in the instance that 21 one of them is, you consider them to be a stepparent, right? 22 A. I consider it to be the analogue of a stepparent. 23 Q. Okay. So even in the case that you have, like the case 24 that we're here about today, in the case of April and Jayne 25 where they've jointly raised three kids together since their

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1 birth, do you consider one of them to be a stepparent?

2 A. Again, I, I liken it unto one of the issues with

3 stepparents. And one of the issues being a stepparent, is that

4 you're not biologically related to the children.

5 Q. When you have a situation like, for instance, April and

6 Jayne's where they adopted at birth, or you have a situation

7 where say a lesbian couple uses a donor insemination, that

8 child who is being raised by the couple has not experienced a

9 break-up from a prior family unit, correct?

10

MS. BRYA: Objection, your Honor. I don't know if he

11 can speak to whether or not --

12

THE COURT: I agree, but he'll let us know if he

13 can't.

14

MS. BRYA: Thank you, your Honor.

15

THE WITNESS: So if a child is born through artificial

16 reproductive technologies, then it's likely that child wasn't

17 -- I mean, it's clear the child wasn't the result of a failed

18 union.

19 BY MS. NESSEL:

20 Q. But then that's different from a stepparent, right?

21 Because the other parent has always been there in the child's

22 life. The child doesn't know that other person to be anything

23 but a parent. They don't know them as their new stepparent.

24 They know them just as their regular parent, because they don't

25 know anybody else, right?

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1 A. And that's why I, I likened it unto a stepfamily.

2

One of the explanations for why stepchildren have

3 worse outcomes is that they are not biologically related to one

4 of their parents. I, I imagine there's other reasons that

5 stepchildren are at a disadvantage.

6 Q. Okay. Now, you've not read any of the psychological

7 literature discussing the reasons why having a stepparent in

8 the picture can lead to a poorer outcome for a child?

9 A. That's correct.

10 Q. Right. In fact, I think you indicated you've only read

11 between 5 and 10 studies on this subject total?

12 A. That's correct.

13 Q. So it might be true then, that psychologists believe that

14 poorer outcomes for children with stepparents is caused by the

15 fact that the stepparent is a new person coming into the

16 picture and disrupting the existing family unit, not because of

17 genetics, right?

18

MS. BRYA: Objection, your Honor.

19

THE COURT: Sustained. He's already testified he's

20 not a psychologist and he's not an expert, and he can't

21 speculate what they may say.

22

MS. NESSEL: I'll move on.

23 BY MS. NESSEL:

24 Q. Now, in terms of conception using egg or sperm donation, if

25 -- I mean heterosexuals do that too, right? They, if they have

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1 fertility problems, for instance, they use sperm or egg 2 donation? 3 A. That's correct. 4 Q. That's not just specific to same-sex couples, right? 5 A. That's correct. 6 Q. Okay. So if biological relatedness is a channel or a 7 mechanism through which poorer outcomes for children are 8 caused, you would expect the poorer outcomes to be equally 9 present, whether it's a heterosexual couple having those kids 10 or a same-sex couple that conceives through an egg or sperm 11 donation, right? 12 A. That's correct. 13 Q. Okay. And you're not familiar with any specific studies 14 that analyze the outcomes of children conceived through sperm 15 or egg donation, right? 16 A. Yeah. None of the large nationally representative data 17 sets that, that we use have information about whether the child 18 was conceived through donor insemination. 19 Q. And you haven't read any of the smaller studies on that? 20 A. None that fit into this category of large nationally 21 represented. 22 Q. And you don't know of any research showing that children 23 conceived through sperm or egg donation fare any worse than 24 children conceived through heterosexual intercourse, do you? 25 A. I don't know.

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1 Q. Okay. And you don't know whether or not there's research

2 out there showing that children conceived through sperm or egg

3 donation who are raised -- I'm sorry. Strike that.

4

Do you oppose the use of sperm or egg donation for

5 married heterosexuals couples who have fertility problems?

6

MS. BRYA: Objection, your Honor.

7

THE COURT: Sustained.

8 BY MS. NESSEL:

9 Q. Well, do you think given what your philosophy is regarding

10 biological relatedness, do you think that, for instance, the

11 women in this case, April and Jayne, do you think that they

12 love their kids any less because they were adopted and not the

13 products of their womb?

14

MS. BRYA: Objection, your Honor.

15

THE COURT: Sustained.

16 BY MS. NESSEL:

17 Q. All right. Well, let me rephrase it.

18

Do you think the fact that April and Jayne do not have

19 a DNA connection to their three kids means that they are worse

20 parents to those three kids?

21 A. I can't speak to any specific cases.

22 Q. Okay. Now, people who want to adopt or who have, want to

23 have kids using sperm or donor or a surrogacy, these are

24 people, wouldn't you say, that are highly motivated to have

25 kids?

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1

MS. BRYA: Objection, your Honor. I don't know what

2 that -- I think the question is vague. I don't know what that

3 means. What does it mean to be highly motivated?

4

THE COURT: That he has said?

5

MS. NESSEL: Let me -- but I'm exploring the

6 biologically-related component.

7

THE COURT: But the objection was -- I sustain the

8 objection. Go on.

9 BY MS. NESSEL:

10 Q. Okay. Well, let me phrase it this way: People who use

11 other means to have kids than just producing them by sexual

12 intercourse, those are people who strongly wanted to have kids,

13 because you have to work hard to get the kids, right?

14

MS. BRYA: The same objection, your Honor.

15

THE COURT: Again, you want his personal opinion or do

16 you want based upon his expertise and research?

17

MS. NESSEL: Well, I'm going to be -- I'll be leading

18 up to something related to what his statements are with

19 biological relatedness.

20

THE COURT: But my question to you is you're asking

21 him a question. Do you want his personal view?

22

MS. NESSEL: No. I want his --

23

THE COURT: If you do, then I'll sustain the

24 objection.

25

MS. NESSEL: I want his view as an expert.

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1

THE COURT: In economics, he may testify, if he has

2 one.

3

THE WITNESS: Yeah. I don't have an expert opinion on

4 that.

5 BY MS. NESSEL:

6 Q. Okay. So you don't know if like, for instance, adoption is

7 a very expensive and complex legal process?

8 A. I haven't done research on it, but I imagine that for some

9 people, adoption can be expensive.

10 Q. But in terms of things like artificial insemination, in

11 vitro insemination, surrogacy, are those really difficult and

12 expensive ways to have a child?

13 A. I don't know firsthand, but I would imagine they are

14 expensive.

15 Q. And they are things that take a lot of planning then, for

16 any of those things, right?

17 A. I imagine that would be the case.

18 Q. Okay. So it would seem that anybody who engaged in any of

19 these, adoption or the artificial means of having a child,

20 those are, those are people who want to be parents really

21 badly, right?

22

MS. BRYA: Objection, your Honor.

23

THE COURT: Sustained.

24

MS. BRYA: I think it calls for speculation.

25

MS. NESSEL: All right. Let me just get to my point

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1 then.

2

THE COURT: His personal opinion may be interesting,

3 but he's here as an expert.

4 BY MS. NESSEL:

5 Q. All right. But people who have children through biology,

6 maybe they wanted those kids, maybe they didn't, right?

7

MS. BRYA: Objection, your Honor.

8

THE COURT: Sustained.

9 BY MS. NESSEL:

10 Q. Let me ask this: Wouldn't you expect people who want to

11 have kids very badly, and go to all those measures in order to

12 have kids, wouldn't you expect them to be better parents than

13 people who have them by accident?

14

MS. BRYA: Objection, your Honor.

15

THE COURT: If he has done studies or as part of

16 his --

17

THE WITNESS: Yeah. I don't have any expert opinion

18 on that.

19 BY MS. NESSEL:

20 Q. But only one in that category, there's one that's got a

21 biological relatedness, and then the other people, you have

22 either one or both parties that have no biological relatedness,

23 correct?

24

THE COURT: In your studies, in your work.

25

THE WITNESS: So that would be situation where one of

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1 the parents have a biologic relationship and the other parent

2 doesn't. I mean, if you're talking about adoption, then

3 neither of them would have a biological relatedness, but in the

4 case of donor insemination.

5 BY MS. NESSEL:

6 Q. So the fact that they had to work so hard to have those

7 kids doesn't play a role in whether or not they'll be good

8 parents, just whether or not they have the same DNA as the

9 kids; that's more important?

10

MS. BRYA: Same objection, your Honor.

11

THE WITNESS: Yeah. I don't have an expert opinion on

12 that.

13 BY MS. NESSEL:

14 Q. Let's talk about family stability for a moment, which you

15 mentioned.

16

Now, you talked about Mark Regnerus's conclusions

17 about the stability of same-sex couples to some extent, did you

18 not?

19 A. I didn't talk about that today, but it was something

20 included in my expert report.

21 Q. Right. Okay. So you would agree that a child who is

22 living with a mother, who is dating another woman, but that

23 other woman doesn't live in the house, they are not really

24 being raised by the couple, right?

25 A. I would agree with that.

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1 Q. Okay. You also agree that it's a mistake to assume that 2 every time a child stopped living with a, I guess what Regnerus 3 would identify as a gay and lesbian parent, it would be a 4 mistake to assume that that was because the adult couple broke 5 up? 6 A. That is correct. 7 Q. All right. And you cite studies from Scandinavia to say 8 that same-sex couples are less stable than heterosexual 9 couples? 10 A. I do. 11 Q. All right. But those studies involving those same-sex 12 couples, they were only allowed to have registered 13 partnerships, right? They were not permitted to marry, 14 correct? 15 A. One of the points that the authors make is the reason they 16 use data from Norway and Sweden, is because those registered 17 partnerships are given nearly all the same legal rights as 18 heterosexual marriage. 19 Q. When you say nearly all the same legal rights, do you know 20 if it's all the same legal rights? 21 A. They mention there are some small differences, but along 22 all the important dimensions, they said they were nearly 23 identical. 24 Q. Well, you're not an expert in the ways -25 A. That's correct.

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1 Q. -- in which the domestic partnerships differ from legal

2 marriages in Scandinavian countries, right?

3 A. That's correct. I'm just repeating the argument the

4 authors made to try to indicate that these two formal unions

5 were as similar as possible.

6 Q. And you're not aware of a British study that same-sex civil

7 partnerships in the UK during the period in 2005 to 2010, had a

8 lower break-up rate than heterosexual marriages solemnized in

9 the same period?

10 A. So I am aware of the Ross study.

11 Q. And you would agree that's what it indicates?

12 A. I would come to a different interpretation of the results.

13 And they also provide some very important caveats in their

14 results.

15 Q. Well, let me ask you this: We've had same-sex marriage at

16 least in some portion of the country, meaning the United

17 States, our country, for ten years now, correct?

18 A. Yes.

19 Q. Okay. Do you know of any studies that compared same-sex

20 married couples and their dissolution rates, to opposite-sex

21 married couples' rates of divorce?

22 A. So the Balsam study looks at civil unions from Vermont.

23 Q. But that's civil unions; that's not divorces.

24 A. That's civil unions, yes.

25

MS. BRYA: I'd like to ask that he be allowed to

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1 answer the question.

2

THE COURT: Yes. Let him finish.

3

THE WITNESS: So, I mean, the two studies that I'm

4 aware of that would be the closest to what you're asking is the

5 Balsam study using civil unions from Vermont. And then I know

6 that Michael Rosenfeld has a working paper about formal unions.

7 BY MR. NESSEL:

8 Q. Okay. But the civil unions in Vermont, during the time

9 period that those were studied, those people didn't get Federal

10 marriage benefits, did they?

11 A. I -- no. They were given civil unions, not marriages.

12 Q. Right. So they didn't have all the same rights as the

13 married couples, the heterosexual married couples, correct?

14 A. I would imagine that's so.

15 Q. Now, wouldn't you say the best and fairest way to analyze

16 stability would be to look at our country, someplace in our

17 country with opposite-sex couples versus same-sex couples who

18 have the same rights and the same legal relationship? Wouldn't

19 that be the best way to look at this?

20 A. Again, I think as empirical economists, what we try to do

21 is learn from the lessons of other countries that adopt

22 policies before we do. And in this case, I actually believe

23 that Norway and Sweden provide the ideal place in which to test

24 for these relationships.

25 Q. Yeah. But ideal would be if they had been married with all

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1 the exact same rights. Wouldn't that be ideal, as opposed to a

2 domestic partnership where they had many of the rights but not

3 all of them?

4

MS. BRYA: Objection, your Honor.

5

THE COURT: Sustained. You can't argue with him. Ask

6 him questions.

7

MS. NESSEL: All right. I'll move on, your Honor.

8 BY MS. NESSEL:

9 Q. All right. You don't know enough about family stability,

10 Doctor, to say whether a same-sex couple that's married would

11 have a higher rate of stability than a same-sex couple that's

12 not married, correct?

13 A. Again, the inference we would draw from the experience of

14 Norway and Sweden, is you have a situation where registered

15 domestic partnerships are nearly identical to marriage, and

16 yet, you see lesbian couples having dissolution rates that are

17 50 percent higher than heterosexual couple -- married

18 heterosexual couples. I'm sorry. You see gay couples having a

19 dissolution rate that's 50 percent higher. You see lesbian

20 couples having a dissolution rate that's almost twice as high

21 as heterosexual married couples.

22

And so if this is a case where these things are

23 practically the same, then it would be hard to imagine. So as

24 a scientist, I would say that's, that's really strong evidence

25 that the dissolution rates are going to be different.

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1 Q. All right. But again, when you say comparable, you're not 2 talking about the same. You're saying what you think is the 3 best comparable analysis, given the fact that you can't find 4 the exact same between married heterosexual couples, married 5 same-sex couples, right? 6 A. So again, as scientists, we often can't get exact 7 comparison. And so we, we live with "close enough." 8 Q. Okay. Well, but we know that, say here in the United 9 States, we know that certain groups have higher rates of 10 divorce for other -- than other groups, right? 11 A. That's correct. 12 Q. So for instance, certain minorities, such as Hispanics, 13 African-Americans, they have higher divorce rates than 14 Caucasians, right? 15 A. I would imagine that's true. 16 Q. Okay. And you don't believe that we should bar those 17 groups, African-Americans or Hispanics from marrying, because 18 their dissolution rates are higher than Caucasians, do you? 19 A. I don't have an expert opinion on that. 20 Q. Okay. What about people who don't have a high school 21 diploma? They have higher divorce rates than people who are 22 college educated, right? 23 A. That's correct. 24 Q. And you don't favor banning people with high school diploma 25 -- or who don't have a high school diploma from marrying,

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1 right? 2 A. I don't have an expert opinion on that. 3 Q. Okay. And low-income people, they have a higher rate of 4 divorce than high-income people, right? 5 A. I would imagine that is so. 6 Q. Okay. But you don't favor banning low-income people from 7 divorcing? 8 A. Again, I don't -9 Q. I mean, from marrying. 10 A. Again, that sounds like a legal opinion. I don't have an 11 expert opinion on that. 12 Q. But you know as an economist that regardless of who you 13 are, but particularly in the cases where you have, say, people 14 of low income or people that are disadvantaged in some way, 15 that marriage would benefit those people, right? 16 A. We generally believe that low income people would benefit 17 from marriage. 18 Q. Okay. Well, what about child outcome levels for say those 19 different groups? You would agree that there are certain 20 groups who have notably worse child or poorer child outcome 21 results, right? 22 A. Yes. 23 Q. Okay. So, for instance again, African-Americans, lower 24 than Caucasians? 25 A. They tend to have lower outcomes --

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1 Q. Okay. Hispanic -2 A. -- on average. 3 Q. Hispanic children? 4 A. Hispanic also have lower outcomes on average. 5 Q. The children of less-educated people? 6 A. They tend to have lower outcomes on average. 7 Q. Okay. And on average, also lower-income people? 8 A. That's true as well. 9 Q. Okay. And is it not true, Dr. Price, from an economist's 10 standpoint, that children being raised by African-Americans, or 11 Hispanics, or lower-educated people, or lower-income people, it 12 would be a value to those children if their parents married as 13 opposed to not marrying, correct? 14 A. So we generally believe that the traditional marriage, 15 heterosexual marriage has those kind of benefits for all of 16 those groups. 17 Q. Okay. And in terms of adoption, let me ask you, would you 18 favor prohibiting any of those groups from being able to adopt 19 because they traditionally have lower -- well, I should say 20 poorer child outcomes? 21 A. Again, I don't have an expert opinion on that. 22 Q. All right. In fact, as an economist, wouldn't you want to 23 encourage family types that tend to produce worse outcomes to 24 marry because it would increase -- it would increase the chance 25 that their children would be successful later on in life?

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1 Wouldn't you think that to be the case?

2 A. I don't know if I can speak to that question.

3 Q. Okay. And you don't know of any economic reason why a

4 child being raised by a same-sex couple wouldn't be advantaged

5 by having two legal parents instead of just one, do you?

6 A. Yeah, I don't know of any. I don't have an opinion on

7 that.

8 Q. Okay. Can you think of any economic reason that a family

9 such as the DeBoer/Rowse family would not be better off if the

10 adults could marry and the children could both be adopted by

11 their parents?

12 A. Again, I don't have an answer to that.

13 Q. Okay. So you don't think that having --

14 A. I don't -- yeah. Sorry. Go ahead.

15 Q. Economically though, just so I understand it, you don't

16 have an opinion as to whether it would be better for those kids

17 to have two legal parents instead of one legal parent?

18 A. Yeah. All I can say is all of our -- all of the research

19 I'm familiar up to this point about the affects of marriage

20 have all been about traditional marriage between a man and a

21 woman. I do not have an expert opinion of how well those will

22 translate to a different type of marriage.

23

MS. NESSEL: Nothing further.

24

THE COURT: You're done?

25

MS. NESSEL: I am, your Honor.

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1

THE COURT: Any redirect?

2

MS. BRYA: Your Honor, would it be okay if we took

3 maybe a ten-minute break? Would that be okay?

4

THE COURT: Absolutely.

5

MS. BRYA: Thank you. I appreciate that.

6

THE COURT: We'll stand in recess for about ten

7 minutes, reconvene at about five after.

8

THE CLERK: All rise.

9

THE COURT: Is ten minutes enough? I'll give you more

10 if you want.

11

MS. BRYA: Ten minutes should be fine. Thank you very

12 much.

13

THE COURT: You may step down.

14

(Recess taken, 9:53 a.m. - 10:11 a.m.)

15

THE CLERK: All rise.

16

THE COURT: Thank you. You may be seated.

17

MS. BRYA: May I proceed, your Honor?

18

THE COURT: Please.

19

MS. BRYA: Thank you.

20

REDIRECT EXAMINATION

21 BY MS. BRYA:

22 Q. Good morning, Dr. Price.

23 A. Good morning.

24 Q. On cross-examination, you mentioned an article done by an

25 author by the name of Ross. Can you tell us about that?

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1 A. Sure. So this was part of the four studies that have

2 looked at stability. There's the Anderssen study from Norway.

3 There's the Ross study from the U K. There's the Balsam study

4 based on Vermont data. And then there's the Rosenfeld data

5 based on the U.S data.

6

Now, of those four, the Ross data is the only one to

7 show the dissolution rates for same-sex couples are lower than

8 those of heterosexual couples.

9

Now, to be super clear about what this document is,

10 it's not a peer-reviewed article. It doesn't engage in any

11 analysis. There's no regressions in the paper like we would

12 expect from someone like any of the other authors I mentioned.

13 It's, it's a government document that provides a tabulation

14 based on the first few years of same-sex marriage in Britain.

15 And the authors are really clear to note that --

16

THE CLERK: I'm sorry. A little closer to the mic.

17

THE WITNESS: Sorry. Yeah.

18

So what they are comparing is in 2005, you have a

19 bunch of same-sex couples that marry. You have a bunch of

20 heterosexual couples that marry. And you compare the rates of

21 dissolution one year out, two years out, three years out. I

22 think the farthest they can go is about five years.

23

And what they note is in that first year in which

24 same-sex couples can marry, you had a number of couples that

25 have been together for a long time, that were finally able to

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1 marry. And you're comparing those unions with a set of brand

2 new, fresh, heterosexual marriages.

3

And so even the authors themselves say, hey, this

4 isn't an apples-to-apples comparison. Really, we should just

5 wait a while and then do this kind of comparison in the future.

6

But I just want to emphasize there's no, there's no

7 regressions, there's no control. This is just a raw tabulation

8 of numbers.

9 BY MS. BRYA:

10 Q. Thank you. And can you tell the Court about the Balsam

11 study that was referenced?

12 A. So the Balsam study has a nice advantage that it's using

13 U.S. data. It is based on civil unions, not marriages. So

14 they are using Vermont's experience with civil unions.

15

It was a kind of a non-conventional data collection

16 approach. There's lots of sample attrition. The other tricky

17 thing about the civil unions in Vermont was it attracted people

18 that were eager to formalize their union. In fact, more than

19 80 percent of those that obtained a civil union in Vermont were

20 not from Vermont.

21

But the authors were able to obtain the information

22 about all of the same-sex couples that obtained civil unions

23 during that time, right in the first year of the law. And then

24 they were -- they contacted those people and asked them for

25 information about one of their friends or siblings who was in a

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1 heterosexual marriage. And then what they do is they compare

2 dissolution rates over the next three years, where there's

3 comparison of the civil unions in Vermont with their friends

4 and siblings who are in a heterosexual marriage union. And

5 then what they claim is that there was no statistical

6 difference between these two groups.

7

Now, keep in mind, this again isn't the best

8 apples-to-apples comparison. But even then, the authors are

9 confusing statistical significance with economic significance.

10 If you look at the actual dissolution rates, the same-sex

11 couples were about 40 percent more likely to, to break up

12 within that three-year period. Okay.

13 Q. And counsel also asked you about other studies regarding

14 dissolution of same-sex couples, and you mentioned the

15 Rosenfeld study. Can you speak to that?

16 A. Yes. So Rosenfeld's collected some really nice data.

17 Again, I admire Rosenfeld along a number of dimensions, and his

18 generosity in sharing data is, is great.

19

And so the nice thing about this data set on which he

20 based his analysis is that he's also made it publicly

21 available, so you can actually, you know, take -- you can go

22 and compare the analysis he did. And again, it's another case

23 where there's a bit of confusion between economic significance

24 and statistical significance.

25

So he is correct that there's no statistically

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1 significant difference in the dissolution rates between

2 same-sex couples in a formal union, and heterosexual couples in

3 a formal union. But if you look at the actual numbers, the

4 dissolution rate differs by about 30 percent. So same-sex

5 couples are about 30 percent more likely to break up within two

6 years. And these are all couples in formal unions.

7

Now, for this case, actually, the most relevant group

8 to look at are same-sex couples with children. And so if you

9 use his data to look at that part of the data, you have about

10 700 heterosexual couples with, with children. You have about

11 --

12

THE COURT: Do you need some more water? I'm sorry.

13

THE WITNESS: Yes. Sorry. My mouth dried out really

14 quick.

15

THE COURT: I know. Let me help you, please. Any

16 time you need it.

17

THE WITNESS: Yeah. So if you look at this group of

18 couples that have children, there's about 700 heterosexual

19 couples with children. There's about 30 same-sex couples with

20 children. The dissolution rate for the heterosexual couples

21 is, and this is just in a two-year window, is about 10 percent.

22 The dissolution rate for same-sex couples is 33 percent.

23

Now, if you look specifically at those that have a

24 formal union -- and, and when Rosenfeld talks about formal

25 union, he's including both same-sex marriage and civil

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1 unions -- then you have about 600 heterosexual couples in a

2 formal union, you have seven couples with children, same-sex

3 couples with children in a formal union. And the two-year

4 dissolution rates for these two groups is it's 4 percent for

5 the heterosexual couples, it's 14 percent for the same-sex

6 couples.

7 BY MS. BRYA:

8 Q. Now, I want to ask you about something that Plaintiffs'

9 counsel asked you about yesterday. If I can direct your

10 attention to the State's Exhibit 9. It should be in that big

11 black binder next to you.

12

And I think you testified before that this is the, the

13 article that you did, that you prepared based on the study that

14 you did with Allen and Pakaluk.

15

And counsel asked you about the last sentence of the

16 first paragraph on page 958 that states, "while we are unable

17 to reject the hypothesis that there is no difference, this

18 approach also makes it impossible to rule out even very large

19 differences."

20

You didn't get an opportunity to explain what that

21 meant yesterday. And I'd like you to explain what that means

22 for the Court.

23 A. Yeah. Again, so this relates back to the issue of

24 statistical significance versus economic significance.

25

So counsel is highlighting a particular phrase we use,

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1 which is, "we are unable to reject the hypothesis that there is

2 no difference."

3

So this harks back to what I mentioned yesterday about

4 a null hypothesis, is you specify that there's this null

5 hypothesis, that there's no difference, and then your

6 statistical approach is to see if you can reject that null

7 hypothesis.

8

And what this sentence is saying, is that using this,

9 the original sample that Rosenfeld used, there is no

10 statistically significant difference between children raised by

11 same-sex couples and heterosexual married couples. However,

12 what the coefficient in that analysis means is that our best

13 guess, it has an odds ratio of point 15, our best guess using,

14 using Rosenfeld's original sample, which I have talked about, I

15 would use the expanded sample. But in his original sample, our

16 best guess is that children raised in heterosexual-married

17 households have an odds of making normal progress in school

18 that is 15 percent higher than a same-sex couple.

19

Now, given the imprecision, we are unable to rule out

20 even really large effects, such as effects that are as large as

21 47 percent.

22

Now, what's making -- so we have an economically

23 significant difference. It's not statistically significant.

24 And this is driven largely by the issues I mentioned about

25 eliminating half the sample.

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1

It turns out also, that if you were to just limit this

2 analysis just to certain age groups, you'd come to a different

3 conclusion. You'd actually find that even in the original

4 Rosenfeld data, it would be statistically significant and quite

5 large in magnitude.

6

But I think the last point I want to make is that that

7 15 percent difference is based on this very restricted sample.

8 If you start to relax some of those sample restrictions, for

9 example, if you relaxed the five-year residency restriction,

10 then that 15 percent difference increases to 25 percent

11 difference, and that is statistically significant. Or if you

12 relax the biological relatedness difference, then it expands to

13 30 percent. Or if you relax both of them, it expands to 35

14 percent.

15

And so we feel like the most appropriate method for

16 comparing child outcomes across different family structure

17 types is to use the full sample of children. If we're

18 concerned about stability or biological relatedness, we include

19 those as controls in our regression, which is what we do. But

20 again, we base our analysis on, on all the children in the

21 sample.

22

MS. BRYA: Thank you. Your Honor, I have no further

23 questions for this witness.

24

THE COURT: Thank you. You may step down. Thank you,

25 very much, Doctor.

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1

(Witness excused, 10:21 a.m.)

2

THE COURT: Next witness, please?

3

MS. HEYSE: Your Honor, we need just a few minutes to

4 set up PowerPoint.

5

THE COURT: Take your time.

6

MS. HEYSE: Okay.

7

(Brief pause.)

8

THE COURT: Everybody ready?

9

MR. POTCHEN: We're still waiting. But for the

10 record, we have marked the PowerPoint, this is demonstrative,

11 as State's Exhibit No. 20.

12

THE COURT: Okay. Great.

13

MR. POTCHEN: I have two copies.

14

THE COURT: Super. He'll be back in a second.

15

(Off-the-record discussion.)

16

THE COURT: While we're waiting, we might as well

17 swear our witness.

18

If you would be kind enough to stand and raise your

19 right hand.

20

(Witness is sworn.)

21

THE COURT: You may have a seat. And when you can, if

22 you can give us your full name and spell your last name,

23 please, Doctor.

24

THE WITNESS: Loren Dean Marks. M-A-R-K-S.

25

THE COURT: Okay. Thank you.

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1

MR. POTCHEN: Your Honor, I believe we can start with

2 the qualifications' aspect.

3

THE COURT: Good. Whenever you're ready.

4

LOREN DEAN MARKS, Ph.D.

5

called as a witness at 10:30 a.m., testified as follows:

6

DIRECT EXAMINATION

7 BY MR. POTCHEN:

8 Q. So, Dr. Marks, can you tell us a little bit about your

9 educational background, please?

10 A. Yes. I received a Bachelor's and Master's degree from

11 Brigham Young University in family sciences and family sciences

12 and human development, and a Ph.D. from the University of

13 Delaware in 2002.

14 Q. And what area was your Ph.D. in?

15 A. It was in family studies.

16 Q. And can you please tell the Court a little bit about what

17 family science is and family studies entails?

18 A. Family studies is a hybrid, essentially, of psychology and

19 sociology. Psychology focuses on the individual. Sociology

20 tends to focus on social groups. And family studies is

21 somewhere in the middle. And we, and we analyze individuals

22 within the family context.

23 Q. Is family studies a long-standing specialty?

24 A. It's a discipline that's not as old as psychology or

25 sociology, but it's existed since about World War II.

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1 Q. And you said you also had some education in human 2 development? 3 A. I do. My Master's degree involved human development as 4 well. I've had several human development related courses in my 5 Ph.D. program as well, but the title of the degree is just 6 family studies at the Ph.D. level. 7 Q. Okay. And do all of these fall into the umbrella of social 8 science? 9 A. They do. 10 Q. Can you please let the Court know what you're currently 11 doing? 12 A. I hold the Catherine Norwood and Claude Fussell Alumni 13 Professorship at Louisiana State University. I am an associate 14 professor with tenure, with a joint research and teaching 15 appointment. I also serve as Program Director for the Child 16 and Family Studies program at LSU. 17 Q. And how long have you been doing this? 18 A. I have been at LSU since 2002, so 12 years or so. 19 Q. And you indicated that you're tenured? 20 A. I am. 21 Q. And can you give the Court a little bit an overview of your 22 employment history, please? 23 A. In terms of my employment history, LSU was, was my first, 24 first real job out of graduate school. They had enough of a 25 sense of humor to take a chance on me. And I have -- I was

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1 there for about six or seven years before receiving tenure.

2

I have been there another five years or so after

3 tenure, and have really enjoyed my time there. But that is,

4 that's my only full-time academic appointment that I've held.

5 Q. Okay. And can you give the Court an overview of some of

6 your teaching?

7

THE COURT: Can't hear? Which one of them? Both of

8 them?

9

Counsel there, you go.

10 BY MR. POTCHEN:

11 Q. Can you give the Court an overview of some of your teaching

12 assignments?

13 A. During my time at LSU, specifically I have, I have probably

14 taught a dozen to maybe 15 different courses at the

15 undergraduate and graduate level, including methods courses.

16 It will be a little bit more relevant today than many of the

17 other courses.

18 Q. Can you tell us about those courses, please?

19 A. I teach annually a graduate level research methods course

20 on qualitative research methods. I've taught one advanced

21 research methods course at the graduate level a few years ago.

22 That focused on quantitative methods, but qualitative methods

23 are my specialty within the "methods" heading.

24 Q. Okay. So does your teaching involve social science

25 research methods?

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1 A. It does.

2 Q. Have you published any peer review articles?

3 A. Yes. I believe in terms of peer-reviewed articles and

4 chapters, my vitae lists 66 or so, and then some others that

5 are in press or forthcoming. I'm not sure the total.

6 Q. Have you published any of your articles in psychology

7 publications?

8 A. Yes. A fair amount have been published in either

9 psychology journals or psychology edited volumes or handbooks.

10 Q. And have you published in any sociology publications?

11 A. Yes. Summarily, the two, the two articles that I've, that

12 I've written that address the subject at hand today most

13 closely were published in Social Science Research, which is a

14 sociology journal. Actually, an interdisciplinary journal

15 across the social sciences.

16 Q. Okay. And we'll get to those articles in just a minute.

17

Have you been asked to review articles for others?

18 A. Yes. I recently went through and I served as a reviewer

19 for 23 different social science journals and some publishing

20 companies as well, including Oxford University Press.

21 Q. Have you reviewed articles by psychologists?

22 A. Yes.

23 Q. And have you reviewed articles by sociologists?

24 A. Yes.

25 Q. Have you given any presentations?

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1 A. Many.

2 Q. Okay. Just generally, when or what topic?

3 A. Typically, my presentations at national conferences focus

4 on different aspects of parenting and/or marriage.

5 Q. And have you given or do you work in the area of sampling

6 or sampling methods?

7 A. Yes. Anyone who does primary research is involved in

8 sampling and sampling decisions.

9 Q. Do you have experience dealing with convenient samples?

10 A. Yes.

11 Q. And are you aware of the limitations regarding convenience

12 samples?

13 A. Yes.

14 Q. And do you deal with other types of research techniques?

15 And if so, can you explain a little bit about what those

16 techniques are?

17 A. Yes. I have also involved -- been involved in other

18 studies, not as many, that were quantitative where we strive to

19 push past convenience sampling.

20

I review studies as well, that involve a wide array of

21 sampling techniques, both from psychology and sociology.

22 Q. And have you received any awards recognizing your work?

23 A. I have.

24 Q. Can you tell the Court, please?

25 A. I have been author or co-author on I believe

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1 three-sectional paper of the Paper of the Year Award, awards

2 from the National Council on Family Relations. I've also

3 received the Jack Shand Research Award from the Society for the

4 Scientific Study of Religion back in 2005. I think that's,

5 that's about it for research related awards.

6 Q. Okay. And do you have any special certifications?

7 A. One. I'm a, or I earned a certified Family Life Educator

8 certification in 2004, I believe, from the National Council on

9 Family Relations.

10 Q. What is a family life educator?

11 A. It means that across ten different competence areas, that

12 you've received a sufficient training to comment on, on those

13 topical areas and to address them in a teaching setting.

14 Q. I would ask you to turn to the book right next to your side

15 there. And if you look at Exhibit 16, can you please describe

16 what that is?

17 A. It appears to be a copy of my curriculum vitae.

18 Q. And is everything on there true and accurate to the best of

19 your knowledge?

20 A. To the best of my knowledge, yes.

21

MR. POTCHEN: Move to admit State's Exhibit 16,

22 please.

23

THE COURT: Any objection?

24

MS. STANYAR: No objection.

25

THE COURT: It's received.

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1

(State's Exhibit #16 received, 10:37 a.m.)

2 BY MR. POTCHEN:

3 Q. Dr. Marks, what are you going to be providing an expert

4 opinion on today?

5 A. My expert opinion will focus on my article that I published

6 in Social Science Research in 2012, that addresses the 2005

7 American Psychological Association's brief on lesbian and gay

8 parenting.

9 Q. And can you explain what you did to review this data?

10 A. I can. I read the 2005 APA brief -- if it's all right,

11 I'll just abbreviate to that, that form from here out.

12

I reviewed the 2005 APA brief for the first time in

13 the late fall of 2009. It had been around for a while,

14 obviously, but that was my first time reading through. And as

15 I did so, I was, I was struck by the strength of language that

16 was used in the claims. Phrases like "none" or "not a single

17 study"; that, that seemed rather strong to me.

18

Now, most of us are taught as social scientists in

19 graduate school to avoid absolutist statements that don't allow

20 room for caveats and so forth.

21 Q. For the record, is this the APA statement which states,

22 "not a single study has found children of lesbian or gay

23 parents to be disadvantaged in any significant respect relative

24 to children of heterosexual parents"?

25 A. It is. I believe that's the version on page 5 of the APA

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1 brief.

2

Returning to point, I found the language strong and

3 lacking caveats, which I, I found unusual, particularly for a

4 brief that was representing a large body of social scientists.

5 Q. And can you explain why this struck you, from a social or

6 family scientist?

7 A. It struck me for a number of reasons. I mentioned one

8 briefly, that we typically avoid absolutist language as social

9 scientists. I still slip and it usually costs me.

10

But in addition to that, the social world is complex.

11 And there, there are frequently exceptions, even when there is

12 a rule. Further among well educated, intelligent people, I

13 think that there is considerable room for difference of opinion

14 based on extant data. And I didn't see that kind of latitude

15 allowed in the document and, in particular, in the statement

16 that you just read.

17

As a result, I decided to, to take a look at, at least

18 a few of the studies that the APA cited to buttress this claim.

19 Q. Okay. You indicated that you began looking at this in

20 2009. Why did you begin looking at it then?

21 A. I was involved as a witness in the Perry vs. Schwarzenegger

22 case, the Proposition 8 case. And my charge was to review and

23 write about literature that involved comparisons of intact

24 marriage-based families and their children with other family

25 forms.

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1

I did not, in that, in that report address same-sex

2 families and their children, but came across, during that same

3 period of time, the APA brief that I mentioned, and out of

4 curiosity, wanted to see how they compared.

5 Q. Did you do this research for the Perry case?

6 A. No. I did begin it while the Perry case was still in

7 session. But I began the work then and continued it over the

8 course of about two and a half years or so.

9 Q. So you did this work on your own?

10 A. I did. It was independent, non-funded research.

11 Q. "Non-funded" means you didn't get paid for this research?

12 A. No.

13 Q. That is correct, that's what it means?

14 A. Pardon me. Correct. I was not paid.

15 Q. So the research that you did independently on the APA brief

16 was separate and outside of any litigation; is that right?

17 A. Yes.

18 Q. And have you heard of the term "scientific groupthink"?

19 A. I have.

20 Q. And what is that?

21 A. Scientific groupthink is an idea that has been presented

22 by, by numerous psychologists and social scientists in recent

23 years, such as Klein and Stern, Inbar and Lammers, Richard

24 Redding.

25

The idea behind scientific groupthink is that in the

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1 1960's, for example, the liberal-to-conservative ratio among

2 psychologists was about 3-to-1. That balance shifted, not

3 reversed, but continued in that direction until in the presence

4 in research as recent as 2012 and 2013. Inbar and Lammers

5 found in a study dealing with 800 psychology professors, that

6 on social issues in particular, this is page 497, that there

7 was a, a pronounced liberal lean on social issues in

8 particular.

9

Of the 800 professors, who were interviewed,

10 psychology professors, 5.5 percent identified themselves as

11 moderate, 3.9 percent identified themselves as conservative,

12 with, if my math is right, just a little over 90 percent

13 identifying with, with the liberal side on most social issues.

14

That leaves us with nearly a 23-to-1 conservative to,

15 or liberal-to-conservative ratio among the psychologists

16 surveyed.

17

The concern here by Redding, and by Inbar and Lammers,

18 who are, Inbar and Lammers are themselves liberal, is that as

19 the balance shifts that heavily in the direction of, of one

20 world view, that it becomes increasingly difficult and costly

21 socially to express an alternative opinion.

22 Q. And did this notion of scientific groupthink play any part

23 in your decision to research the statements raised in the APA

24 brief?

25 A. It certainly did, the idea, if not the concept itself.

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1

The APA, the American Psychological Association, in

2 part in reaffirmation it seems by extension of the 2005 brief,

3 for example, as a case study, voted, its board, 157 to zero in

4 August of 2011 in support of same-sex marriage and in effect,

5 at least implicitly affirming the so-called no difference

6 hypothesis that the APA expresses on page 5.

7

This, although it came a couple of years after I had

8 read the APA brief, again, struck me. If, if the vote had been

9 117 to 40, if it had been 127 to 30, I think it would have been

10 much less striking to me. But as a social scientist and an

11 administrator over a group, a small group of social scientists

12 of five, I find it's difficult to get unanimity over even some

13 mundane issues among the five of us, much less a controversial

14 one.

15

At the school level, where there are about 15 social

16 scientists involved, it becomes exponentially more difficult to

17 gain consensus.

18

The figure of 157 to zero struck me as anomalous, both

19 then and now. And in my mind, calls to mind at least two

20 competing hypotheses. One is that the body of research in this

21 area is rigorous enough, substantial enough, that no reasonable

22 psychologist would dispute it. 157 to zero is a staggering

23 vote. And that only a few fringe dissident voices would oppose

24 that, I believe that that's the, the opinion expressed by one

25 of the plaintiffs' experts. I understand where that, that

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1 perspective is coming from.

2

Another possibility, going back to this idea of

3 scientific groupthink, is that at some point, between 1960 and

4 the present, particularly with respect to social issues, it has

5 become costly enough, in social or other ways, that it's

6 difficult to find someone who will express an opposing opinion.

7 Q. Now, did you develop an approach for looking at the APA

8 brief and the claims made therein?

9 A. Initially, I was just reading a few of the studies out of

10 curiosity. But as I, as I got four, six, eight, ten studies

11 deep, I started to notice some things that troubled me a little

12 bit, made some notes of them, and began to be more systematic

13 and take notes, write down numbers of sample size, et cetera,

14 of certain characteristics of the studies that were cited.

15 Those now appear as Table A in my 2012 article and also appear

16 in full in my, my expert report.

17

The 59 studies I looked at, I identify a number of

18 different issues, including the sample size for the way the

19 lesbian and gay --

20 Q. Actually, we'll get into --

21 A. Okay.

22 Q. -- the details of it. At this point, you developed some

23 questions to address; is that correct?

24 A. I did.

25 Q. And what were those six -- I'm sorry. What were those

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1 questions?

2 A. I originally had about ten. And some of those elude me,

3 but I trimmed it down to six questions that are featured in my

4 expert report, seven in the article.

5

Essentially, in short, those questions were number

6 one, how representative were the same-sex families who were

7 sampled in the studies.

8

Number two, were comparison heterosexual group samples

9 featured in each of these studies to, to provide a point of

10 reference for any claims that were made.

11

Number three, if heterosexual comparison groups were

12 used, what were the characteristics, the more specific

13 characteristics of those heterosexual comparison groups?

14

The fourth was a reference to the page 5 APA statement

15 that you've already referenced, which reads verbatim, not a

16 single study, et cetera; namely, were there in fact,

17 contradictory studies that were marginalized or overlooked or

18 minimized.

19

The fifth was in terms of the outcomes that were

20 examined, what was, what was the nature? Were these child

21 outcomes? Were these adolescent outcomes? Were these adult

22 outcomes? And, and in the back of my mind, I was also

23 considering something called soft versus hard variables that,

24 that we can come back to later.

25 Q. Okay.

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1 A. The sixth question was were these outcomes that were

2 featured long-term outcomes or brief cross-sectional outcomes

3 from just one given point in time.

4

Those, I believe, cover roughly the six in my expert

5 report. The seventh included a power, a statistical power

6 issue as number seven, which essentially relates to the number

7 sampled, how many people were sampled, what was the size.

8 Q. Okay. Does most of your research deal with process and

9 interaction?

10 A. Yes. Most of my research deals with, with processes and

11 interactions that take place in marriage and parenting.

12 Q. And is process and interaction connected in any way to

13 outcomes?

14 A. Yes, closely, I think. To, to illustrate, for example, if

15 we were looking at education as a variable of interest, a

16 related process might be the interaction between parents and

17 children doing homework each night, or progression through

18 schools, you know, grades 1 through 8, or 9 through 12.

19

The outcome and example, the fixed outcome that would

20 be verifiable by a third party, a so-called hard variable,

21 might be graduation from high school. The processes lead

22 ideally to critical outcomes that are of interest.

23 Q. So prior to doing your 2012 paper, did you have experience

24 reviewing studies that looked at outcomes?

25 A. Yes.

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1 Q. And what was that experience?

2 A. Again, I mentioned that I've served as a reviewer for both

3 psychology and sociology journals and family studies as well,

4 naturally. Some studies deal with outcomes. Some deal with

5 processes. A few deal with both.

6 Q. Okay. And can you tell the Court what you did regarding

7 the methods that you followed in preparing your review of these

8 studies?

9 A. In preparing my, my review of the studies, I wanted to look

10 at a number of different issues. One included the sample size

11 of the gay and lesbian samples that were used. One included

12 the size of heterosexual samples, if they were used. Other

13 issues, as I mentioned, included the type of outcomes that were

14 being looked at, and whether the, the study had a sufficient

15 size or statistical power to be making strong claims.

16

Another very important issue in terms of sampling is

17 not just the size, but whether these samples were random,

18 meaning non-biased, if they were representative of the broader

19 population, or if, as is the tendency with many convenience

20 samples, if they favored a certain portion of the broader

21 population.

22 Q. And what else went to the preparations of your opinions

23 that you'd like to present here today, or your paper?

24 A. The APA brief, pages 23 through 45, lists 59, or actually

25 67 studies that, that they claim relate directly, empirically,

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1 to lesbian and gay parents and their children.

2

Eight of those studies were unpublished at that point

3 in time. I eliminated those eight and read the remaining 59,

4 and formulated claims by carefully examining those studies in

5 connection with some of the issues that I just mentioned.

6

I've continued to read studies, an additional 40 plus

7 since then. My related study count is, is over 100 at this

8 point.

9

In addition, as I formulated what became my 2012

10 article, I sought informal feedback from, from colleagues

11 around the country. I'm not a fan of solo authored work on the

12 whole, because we expose ourself to blind spots that all of us

13 have, which is something that I've written about in my work. I

14 thought it was important to get as much feedback as I could

15 informally about things I had overlooked, about blind spots,

16 about weak spots.

17

And in the process of receiving feedback, informal

18 comments from colleagues around the country, I worked through

19 33 major revisions of the paper that was published in 2012,

20 which is far more than I typically do. I'm typically much more

21 lazy than that.

22 Q. Was your article peer reviewed?

23 A. It was.

24 Q. Okay. And when was your study or article accepted for

25 publication?

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1 A. I believe it was accepted in March of 2012. I submitted it

2 I believe in October, some time in the fall of 2011.

3 Q. And was it finally published, and if so, what journal?

4 A. It was published in 2012, I believe in July. Social

5 Science Research was the name of the journal.

6 Q. Okay. And is that a nationally recognized journal?

7 A. It is.

8

MR. POTCHEN: Your Honor, at this point, I'd like to

9 qualify Dr. Marks as an expert in family studies and human

10 development, specifically to discuss his article.

11

MS. STANYAR: Excuse me. Families?

12

THE COURT: Is there an objection?

13

MS. STANYAR: I'm sorry. I didn't hear. Family

14 studies?

15

MR. POTCHEN: And human development.

16

MS. STANYAR: Human development. No objection.

17

THE COURT: Any objection or voir dire?

18

MS. STANYAR: No objection and no voir dire.

19

THE COURT: Fair enough. You may proceed.

20 BY MR. POTCHEN:

21 Q. Okay. Can you turn to the first slide?

22

So generally, before we get to the details, what will

23 you be testifying about today?

24 A. The primary point that I'll be testifying is at this point,

25 particularly in 2005, I will be focusing on studies that

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1 preceded 2005 in the APA brief. That the research to that

2 point are not strong enough to justify a strong generalizable

3 statement or a claim, either in the yes or no direction in

4 terms of the no difference hypotheses offered on page 5.

5

The available data are, with very, very few

6 exceptions, not generalizable data.

7 Q. Before we get into the six questions, can you tell us a

8 little bit, you've already explained some of it, but can you

9 explain convenience samples?

10 A. Convenient sampling in the social science is -- a

11 convenient sample involves very much what it sounds like. You

12 sample those who are convenient. You grab the low-hanging

13 fruit. You, you get those who are most easily accessible.

14 Q. Are there any limitations with using convenience samples?

15 A. There are. The benefits, and I've used it myself, are that

16 it's the easiest way to go, typically. The pronounced cost

17 among many others is that it has exceptionally low levels of

18 external validity, which is often referred to as

19 generalizability, which means that while you can make claims

20 that relate to the specific sample or group that you have, that

21 you have investigated, the claims cannot be broadened beyond

22 that specific group, even to the population that it represents,

23 much less the larger population.

24 Q. Is there a potential for biased by volunteers?

25 A. There is a high, there is a high potential for bias by

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1 volunteers in convenient sampling.

2 Q. In your opinion, is there a better method to make

3 generalized observation for a larger population?

4 A. Well, to go back to what I said a minute ago, you cannot

5 make a generalizable claim of any kind, based on, on convenient

6 sample, not from an objective scientific perspective.

7

The hope is -- I think in most domains of social

8 science, we have to begin somewhere. And typically, you begin

9 with convenient sampling. The hope is that, as a discipline

10 matures, you move from convenient samples, eventually to a

11 weighted probability sample, and eventually and ultimately to a

12 large, random representative sample. That can take years, it

13 can take decades, but that is the aim that we seek.

14

Table B in my article lists 15 such studies that

15 relate to marriage-based intact families and outcomes of

16 children from those families.

17 Q. In social science research, is it important to have clearly

18 defined comparison groups before drawing conclusions regarding

19 differences between two groups?

20 A. Very much so. For example, Mark Strasser, who is a

21 same-sex marriage advocate, wrote in a 2008 --

22

MS. STANYAR: Objection.

23

THE COURT: What's the objection?

24

MS. STANYAR: His report addresses literature that

25 stops at 2005. And we've been under the impression that's,

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1 that's what we're addressing here. Even as, as --

2

THE COURT: I think he's giving us an example in terms

3 of not the report and so forth, but in terms of the, he had a

4 different word for, the classification. I think that's what

5 he's doing. So he's only using it as an example and not as a

6 part of his analysis.

7

Okay. You may continue.

8

THE WITNESS: Thank you.

9

THE COURT: Would you like to be called doctor or

10 professor?

11

THE WITNESS: Either is fine, sir.

12

THE COURT: Okay. Is there -- some of our experts, I

13 never know what to -- either one, doesn't make a difference?

14

THE WITNESS: Doc is good enough.

15

THE COURT: I'll call you "doc." That's good.

16 Thanks.

17

THE WITNESS: Thank you. And with respect to, the

18 2008 Strasser study is one that I cite in my article and expert

19 report specifically. I will -- I don't plan to, to cite

20 studies that relate directly to gay and lesbian parenting that

21 are not in the study or article.

22

Going back to, to Professor Strasser, on page 37, he

23 points out, again, bearing in mind that he, himself, is a

24 same-sex marriage advocate, that the LGBT population, very

25 widely, in their accepted views, attitudes and practices, and

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1 for this very reason, it would be misleading to cite a sample

2 of urban gay men from southern California, as though they

3 represented gay men nationally. Again, that's on page 37 of

4 his work there.

5

That, that's a well-made point. It's part of the

6 point that concerns me with many of the studies. They don't

7 cite -- of the 59, very few deal with gay men. Only eight of

8 the 57, or 59 studies actually do directly with children's

9 outcomes. But the, the point being that you need a nationally

10 representative sample to make national claims.

11

I also mention in my article that it seems reasonable

12 to, to ask that when we're informing state and national policy,

13 that we do have at least some nationally representative samples

14 that are informing our decisions.

15 BY MR. POTCHEN:

16 Q. What are considered soft variables and what are considered

17 hard variables?

18 A. In terms of soft and hard variables, which was an issue of

19 concern working through the, the outcomes featured in the 59

20 studies, a so-called soft variable is one that is subjective,

21 that's often arrived at through self-report. It may be one

22 that you and I would differ significantly on, if we were

23 reporting on a third issue, third party issue. This would

24 include things like psychosocial adjustment, gender identity,

25 et cetera. Both of those are, are things that are repeatedly

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1 assessed and addressed in the studies featured in the APA

2 brief. Twenty of the 59 studies, for example, deal with gender

3 related issues.

4

A hard variable, or as I would prefer to call it, a

5 third party verifiable outcome or variable would be one that,

6 with almost 100 percent consensus, scientists could agree on.

7 Examples would include a high school graduation, divorce, did a

8 divorce take place or not. Mortality, that would be a pretty

9 difficult one to disagree over, et cetera. You get the idea.

10

I'm not saying that all studies need to deal with hard

11 third-party verifiable variables, most do not. But they have a

12 unique strength in terms of their objectivity. And they serve

13 as a check and balance, if you will, for work that takes place

14 on soft variables.

15 Q. I'm going to ask you to turn to --

16

(Coughing in the courtroom.)

17

COURT REPORTER: I'm sorry. Can you repeat that?

18 BY MR. POTCHEN:

19 Q. I'm going to ask you to turn to State's Exhibit 17 in that

20 book next to you.

21 A. I'm there.

22 Q. And can you please tell the Court what that is?

23 A. This is my 2012 article, published in Social Science

24 Research entitled, "Same-Sex Parenting and Children's Outcomes:

25 A Closer Examination of the American Psychological

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1 Association's Brief on Lesbian and Gay Parenting."

2

MR. POTCHEN: Move to admit State's Exhibit 17.

3

THE COURT: Any objection?

4

MS. STANYAR: No objection.

5

THE COURT: Received.

6

(State's Exhibit 17 received, 11:07 a.m.)

7 BY MR. POTCHEN:

8 Q. And again, the statement that you sought to review is the

9 APA statement, "not a single study has found children of

10 lesbian or gay parents to be disadvantaged in any significant

11 respect relative to children of heterosexual parents." Is that

12 correct?

13 A. Yes. I think that that, that that statement captures many

14 of my concerns.

15 Q. Now, are you aware if similar statements have been issued

16 from other professional organizations?

17 A. They have. The 2005 APA briefs stated mission, as assessed

18 by Richard Redding, in a 2008 article that's also directly

19 cited in my article and expert report, mentioned that the

20 mission of the brief was of an advocacy nature.

21

The statement made by, by the APA certainly has been

22 effective. It's been difficult to find a law case involving

23 same-sex parenting or same-sex marriage issues that doesn't

24 feature, feature the 2005 brief prominently. I think it was,

25 in many ways, a model for statements that have followed from

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1 other organizations.

2 Q. Now, the APA brief and statement came out in 2005; is that

3 right?

4 A. It did.

5 Q. And are you aware that the first state in this country that

6 had recognized same-sex marriage was in 2004?

7 A. Yes. Massachusetts, I believe.

8 Q. And when you mentioned an advocacy bent to the statement,

9 what do you mean by that?

10 A. Well, advocacy was, was their word. I don't pretend to, to

11 speak for APA.

12 Q. I'm sorry. How did you understand it?

13 A. I understood advocacy in terms of the statement --

14

MS. STANYAR: I object. I think at this point, rather

15 than have his interpretation, if they want to introduce the

16 brief, that's fine with me. But I, I don't know that we want

17 to have him interpret.

18

THE COURT: I think he can testify to it, because he

19 indicated in his initial examination that something triggered

20 his, his mind that he wanted to do this, and he said advocacy

21 was one of those. He may, how he interpreted it and caused him

22 to conduct his research and to write his articles, he may

23 testify.

24

MR. POTCHEN: Thank you.

25

THE WITNESS: The statement on 2000 -- or on page 5 in

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1 the 2005 brief, again, as I mentioned earlier, struck me as, as

2 a bit absolutist, and seemed to take a fairly strong advocacy

3 related stance.

4 BY MR. POTCHEN:

5 Q. Let's go through -- well, as I indicated or as you

6 indicated, excuse me, this relied on 67 manuscripts; is that

7 correct?

8 A. It did. Eight were not published, leaving us with 59 that

9 I examined.

10 Q. Okay. Let's go through the six questions and your findings

11 and how you addressed this. Okay?

12

The first question, what did you find regarding how

13 representative and culturally, ethnically and economically

14 diverse were the gay and lesbian households in the published

15 literature behind the APA brief?

16 A. What I found was that repeatedly, and by the reports of

17 same-sex parenting researchers themselves, that the group that

18 had been repeatedly selected to represent, to represent all

19 same-sex parents was privileged, well educated, middle to upper

20 class, and racially white lesbian mothers.

21 Q. Of the 59 published studies, how many of the studies are

22 based on convenient samples of less than 100 participants?

23 A. Forty-five of the 59 studies are based on convenient

24 samples of less than 100, about three quarters roughly.

25 Q. Did any study strike you as unusually small?

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1 A. There were several that struck me as unusually small. One 2 in particular that comes to mind, is Wright 1998, that had a 3 sample of just five lesbian mothers with no comparison group. 4 Q. And are you familiar with Professor Mark Strasser? 5 A. I know his work as mentioned earlier, but I do not know 6 him. 7 Q. Okay. And can you explain or identify what are his -- how 8 his work might come into the size or sampling and how that may 9 affect your opinions? 10 A. As I mentioned earlier, he said that it is inappropriate to 11 assume that a small sample from one part of the country, or 12 featuring a demographic tendency, be generalized to represent 13 the nation. Again, that's my concern here, that we're dealing 14 with homogenous sampling. 15 Q. Any other aspects regarding the first question that you 16 would like to testify about? 17 A. As I looked closely at the, at the samples of the studies, 18 I explicitly note a number of studies under, under the heading 19 of question 1, that explicitly stated that they used 100 20 percent white samples. There were about another dozen or so 21 that are -22 Q. White samples, you're referring to race, is it? 23 A. Racially white samples. 24 Q. Okay. 25 A. I mentioned that many others do not make a statement that

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1 that's the case, but de facto do not mention a single minority

2 participant, racially minority participant in their studies.

3 And there are another 12 that acknowledge almost all white

4 samples.

5 Q. And what you found regarding question 1, did that cause you

6 any concerns as a scientist?

7 A. It did, on a number of levels. Because we're dealing,

8 again, with a privileged, relatively privileged sub-sample of

9 the sample of same-sex parents, again, well educated, wealthy,

10 racially privileged.

11

I was also struck by the very small number of studies

12 involving gay fathers directly in terms of their children's

13 outcomes. On the whole, as I moved away from question 1, it

14 appeared to me that privileged lesbian mothers had repeatedly

15 been used to represent all same-sex parents across

16 socioeconomic strata, across race, and even across sex, meaning

17 gay fathers as compared to lesbian mothers.

18 Q. Okay.

19

MR. POTCHEN: For the Court's convenience, we have

20 attached the Table 1 that he'll be referring to. He'll

21 identify a lot of names that, the spellings of the names and

22 what the studies are, are attached to the PowerPoint as well.

23 So you'll see them attached.

24

THE COURT: Thank you, very much. And we have a copy

25 for our court reporters?

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1

MR. POTCHEN: Yes. I'm assuming that she would ask

2 for one, so we'll get one for her.

3

THE COURT: That's excellent. Makes it much easier.

4 Thank you, very much.

5 BY MR. POTCHEN:

6 Q. The second question, what did you find regarding how many

7 studies of gay and lesbian parents had no heterosexual

8 comparison group?

9 A. As I, as I took a closer look in terms of comparison

10 groups, making the note that if your comparison -- comparing

11 any two groups and making claims, it's important to have

12 representatives of, of both groups included in your study.

13

I went through, and of the empirical studies cited by

14 the APA as directly relating to gay and lesbian parents and

15 their children, there were 59, and 33 of the studies did

16 include a heterosexual comparison group; twenty-six did not.

17 44.1 percent, almost half of the conducted studies, again,

18 included no comparison group of what, whatever size.

19 Q. And as a scientist, did this cause you concerns?

20 A. In my article, I, I stated that although having that

21 smaller number of studies does not negate the APA's claim, it

22 does clearly dilute it considerably, since we're left with,

23 with only about a little more than half of the original sample

24 of studies.

25 Q. Okay. Third, what heterosexual comparison groups were used

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1 and what were the characteristics of those groups?

2 A. This was, this was one of the first issues that, that

3 struck me as, as I read through the studies.

4

Directly in my, in my article, I mentioned that 11 of

5 the 33 comparison studies explicitly mention that they used

6 single mothers, typically single divorced mothers as the

7 heterosexual comparison. There were an additional two studies

8 by Bigner & Jacobsen in 1990 or 1989, A and B, that used 90.9

9 percent comparison group of gay fathers.

10

With that said, that leaves us with at least 13 of the

11 33 studies that used exclusively, or almost exclusively single

12 parent, single-parent heterosexual parents as the group

13 representing all, all heterosexual parents.

14

If we look at the, the remaining 20 studies, beginning

15 with 33 comparison studies, removing those 13 that I just

16 mentioned, we're left with 20.

17

It's difficult reading through those 20 studies that

18 remain, in many cases, who or what the characteristics of their

19 comparison group were. Many times, you come across generic

20 phrases such as parents, or mothers or couples. For example,

21 with couples, we are often not told if these were cohabiting

22 couples, if these were remarried couples or intact

23 marriage-based families.

24

This is, this is significant, given the fact that

25 there's a, a large body of, of studies based on large

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1 representative samples, 15 of which are listed in Table B that

2 mention or that find significant differences in a number of

3 different outcome areas between children from intact

4 marriage-based families and other family forms, including

5 divorced, stepfamily, and single-parent families.

6 Q. The fourth question that you looked at was does a

7 scientifically viable study exist to contradict the conclusion

8 that not a single study has found children of lesbian and gay

9 parents to be disadvantaged.

10

And what did you find regarding that particular

11 question?

12 A. There are several. Many of those --

13 Q. Several that what?

14 A. There are several that would contradict this claim by the

15 APA. Many of those, and in my opinion, many of the best of

16 those, post date 2005. And I don't plan to, to address those

17 today.

18

But in terms of those that predate 2005, it would have

19 been fair game for the APA to cite and reference. Two were of

20 specific interest to me: Sarantakos 1996 and Sarantakos 2000.

21 Q. And why did you find those two studies to be of interest

22 and scientifically viable?

23 A. The, the 2005 APA brief, to be clear, does mention

24 Sarantakos 1996, but it is relegated to a footnote. And if you

25 look at the, the empirical study section, pages 23 to 45 that

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1 contains annotated bibliographies and brief summaries for, for

2 most of the articles, there's simply a note that says no

3 abstract available, and the key findings of that article are

4 not discussed.

5

If we look closely at the Sarantakos 1996 article, we

6 find, despite the fact that it is like any social science study

7 with its limitations and with its flaws, the largest in terms

8 of sample size of any study cited in the APA brief that focuses

9 specifically on children's outcomes, the total sample of the

10 Sarantakos study is 174. There are 58 lesbian and gay parents,

11 47 lesbian, 11 gay, I believe, 58 cohabiting and 58

12 marriage-based families in the study that are involved in

13 what's called a matched pair design, where those families are

14 matched according to, to relevant socioeconomic information,

15 income, et cetera.

16

So from that standpoint, although there were some

17 studies that were larger in the APA brief, they looked at

18 things like adult self-reports of coming out as gay and

19 lesbian. But of those that looked specifically at children's

20 outcomes, it was the largest.

21

Other strengths of the study, from my view included

22 the point, and the APA cited this as a weakness of the study,

23 that the study relied primarily on teacher reports as opposed

24 to parent reports.

25

As an aside, and this is a reference from my article

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1 as well, psychologists Roese and Olson, 2007, have pointed out

2 that, that we tend to over-report on our own children; that

3 that's a less reliable measure than getting a more, a more

4 objective call or measure from third parties.

5

In my view, teacher reports as opposed to parent

6 reports, parent reports were used in the majority of the

7 studies, was a pronounced strength of the study.

8

Another, another strength that struck me about the

9 Sarantakos 1996 study was that he involved a research model of

10 triangulation.

11 Q. And what is that?

12 A. Triangulation is, in effect, a system of checks and

13 balances that one can involve in research that involves

14 measuring the same phenomenon or outcome from different

15 vantages, using different instruments, different perspectives

16 and so forth.

17

The Sarantakos study appeared to use at least four.

18 Only about five other studies in the entire APA used that same

19 number of multiple perspectives to measure single, a single

20 outcome.

21

There were, there were some other strengths as well,

22 but all in all, I, I was, I was impressed with the strength of

23 the overall design and was not surprised to find out later that

24 Sarantakos had offered a multivolume, a three volume set on

25 research methods in the social sciences.

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1 Q. You had mentioned the Sarantakos 2000 study as well. Is

2 that any different than the '96 study or?

3 A. It is. It seems to incorporate the 1996 study, but is much

4 bigger. Also, the, the 1996 Sarantakos study involved grade

5 school aged children.

6

The Sarantakos 2005 -- or 2000 study involved some

7 additional strengths not available in the 1996 study. One of

8 those was that it, it looked at children raised in gay and

9 lesbian homes from a young age, all the way up to 18 years and

10 older. So we're no longer constrained to just a grade school

11 sample.

12

Another is that it included a total of 181 children

13 from gay and lesbian parents in homes instead of just 51. So

14 the sample size roughly tripled.

15

Also of interest to me, was the fact that the

16 Sarantakos study examined, what I refer to in my article and

17 expert report, as societally critical outcomes.

18

By societally critical outcomes, I, I mean things

19 like, for example, drug and alcohol abuse, particularly across

20 time; divorce rate as adults; long-term collegiate academic

21 achievement and labor force contribution.

22 Q. I'm sorry to interrupt. Are those the third party

23 verifiable or hard variables you were talking about earlier?

24 A. In many cases, these would be at some level third party

25 verifiable. Although, they are third party verifiable, they

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1 are also very important to, to the national economy.

2

Part of my critique of the 59 studies was that, as I

3 mentioned earlier, 20 of the 59 studies, for example, examined

4 gender. I don't mean to imply that gender is not important,

5 but it seems to be complicit in overlooking many other, at

6 least equally important and relevant variables, like those that

7 I just mentioned.

8

The Sarantakos study examined not just one. And his

9 1996 study examined education, which is one of those that I

10 mentioned, but he looked at, for example, truancy, sexual

11 behavior, deviance, criminality, drug and alcohol use, and

12 other, other variables that are of significant interest, and

13 reports his findings regarding those issues on page 131 of his

14 2000 book.

15 Q. And you actually indicated earlier that the '96 study was

16 relegated to a footnote, and the 2000 study was completely

17 absent from the APA brief.

18

Have you heard arguments regarding the reliability of

19 those two studies?

20 A. I haven't heard a lot of discussion of any kind regarding

21 the 2000 study.

22 Q. Okay.

23 A. A critique of the '96 study, I mentioned earlier that one

24 critique was that it used teacher reports instead of parent

25 reports, which I tend to view as a strength.

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1

Another very fair critique, I think, of the study is

2 that as he states on page 30 of his article, many, and probably

3 most of the children in the lesbian and gay parents at homes,

4 it experienced a family transition, or a divorce at some point

5 in their life. We know that transitions, as a general rule,

6 are not helpful for children.

7

I think that that's a fair critique. The same

8 critique, by the way, would apply to many of the other 59

9 studies in the APA brief.

10 Q. So are these critiques, in your mind, sufficient to

11 completely discredit this Sarantakos studies?

12 A. No. Certainly there are, there are worthwhile things we

13 can gather from the 1996 study.

14

The 2000 study as I mentioned, in my view, is, is far

15 more valuable. And by extension, it's even more striking to me

16 that it's not, it's not referenced at all in the 2005 APA

17 brief.

18 Q. And to be clear, what was the findings in the '96 and 2000

19 Sarantakos studies?

20 A. In the 1996 Sarantakos study, he examined nine different

21 dimensions -- many were academic, others were social -- and

22 found significant differences between intact marriage-based

23 families and same-sex parented families on eight of the nine

24 dimensions.

25

As an aside, although there was a very small

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1 difference, same-sex parented children actually fared higher in

2 one dimension, that was social studies.

3 Q. What were the eight other dimensions?

4 A. We can take a look, if you like.

5 Q. Sure. That would be great.

6 A. Listed on 742 of my article, we have language achievement,

7 mathematics achievement, social studies achievement, sports

8 interest and involvement, sociability and popularity, school

9 and learning attitude, parent/school relationship, support with

10 homework, and parental aspirations.

11

Again, I think that these are, are worth noting. They

12 relate to a critical societal outcome of education. But I

13 think they are far less significant than many of the critical

14 findings in the 2000 Sarantakos piece.

15

My primary purpose in, in presenting this piece, at

16 some length in my article, was to clearly and repeatedly

17 demonstrate that there certainly were exceptions to the rule

18 that was being claimed on page 5.

19 Q. Okay. So there were studies out there finding poorer

20 outcomes for children being raised by same-sex couples,

21 correct?

22 A. Yes.

23 Q. Okay. Now, the fifth question that you had were what type

24 of outcomes had been investigated.

25 A. We have them up on the screen. Well, actually --

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1 Q. For the record, we have to identify what they are.

2 A. Okay. Actually, could you restate the question one more

3 time?

4 Q. Yes. What did you find regarding outcomes? I'll do it

5 real broad.

6 A. In terms of outcomes, I noted earlier that the most often

7 studied outcome seemed to relate to gender. Twenty out of the

8 55 or 59 studies related to gender, and that, almost

9 conspicuously absent by comparison were the following critical

10 societal concerns. We see here, I list these in the article

11 and my expert report: Health, mortality and suicide risks;

12 drug and alcohol abuse; collegiate education and/or labor force

13 contribution; serious criminality and incarceration; collegiate

14 education and/or labor force contribution. It looks like we've

15 doubled up there. And early sexual activity and early

16 childbearing, and also subsequent divorce as adults.

17

These are, number one, very important from a societal

18 standpoint, as I already indicated. But if we look closely and

19 think like scholars for a minute, we will also note that these,

20 these outcomes are not child outcomes. That these particular

21 outcomes are not going to be optimally observable in most cases

22 until late adolescence or even early in mid-adulthood in many

23 cases, which is a point of significant concern when we consider

24 that the vast majority of the children involved in the 59

25 studies were, were rather young.

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1 Q. So regarding the APA brief's statements and your findings

2 regarding question 5, did that raise any concerns to you?

3 A. It did. Primarily because in these, in these seven or

4 eight areas of societal level concern, we know, we know very,

5 very little or next to nothing, either way, about how same-sex

6 parenting may influence or not influence these, these very

7 important considerations.

8 Q. And the sixth question that you sought to answer was what

9 do we know about long-term outcomes of children of lesbian and

10 gay parents. What did you find regarding that?

11 A. In some ways, this concern piggybacks off of the point that

12 I just made. If we, if we're assessing things, if we're

13 assessing things, for example, like education, the best we can

14 do if we're, if we're looking at grade school children is grade

15 school outcomes. If we're looking at middle school children,

16 well, that's, that's what we're limited by. But in many cases,

17 the most important outcomes of interest will come, will come

18 later.

19

What, what I found was that very, very few comparison

20 studies examine the critical societal outcomes during late

21 adolescence or early, early adulthood, and those, those that

22 do, tend to use very small convenient samples. None of those

23 are large and representative.

24

An exception to that regarding those critical societal

25 outcomes that were featured on the previous slide is the

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1 Sarantakos 2000 study. But again, it was not featured at all

2 in the APA brief.

3

Something I failed to mention is that total sample of

4 181 children from same-sex parents would have made it, by far,

5 the largest children's outcome study in the APA brief, had it

6 been cited in the APA brief.

7 Q. In your studies of the samples, did you find to be an

8 average sample size that was used?

9 A. That's an interesting question. The total of, of all

10 sample sizes, and there's a little bit of wiggle room here, but

11 as I totalled up the samples for each of the 59 studies, the

12 total was 7,800. This, however, includes psychologists'

13 opinions, college students' perceptions, et cetera.

14

If we, if we narrow our parameters to what is of

15 interest and concern to us here today, and that is children's

16 outcomes, and I'm zeroed in on, we find a much, much smaller

17 sample size.

18

For example, we lose from the list of 59 studies, a

19 study by Morris, et al., 2002, which had a very large sample

20 size, 2,431, but it was based solely on adults' reports of

21 coming out gay or lesbian, not on children's outcomes, even in

22 an indirect sense.

23

Eliminating studies like that, when zeroing in on

24 children's outcomes, I found based on my work in Table A, that

25 there are a total of only about 900, slightly over 900 children

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1 represented.

2

If we take a closer look still, we find that many of

3 the researchers or, or research advocates in some cases, use

4 the same small, non-representative convenient samples, seem to

5 use them repeatedly. If we trim those duplicate studies off,

6 as well as the Sarantakos 1996 study that I, that I mentioned a

7 minute ago, which was criticized heavily by the APA, then we

8 end up with a total of 685 children, only about 8.8 percent of

9 the total initial sample size of 7,800.

10

Bearing in mind that of those 685, those are not a

11 random representative sample, but those are based on small,

12 non-representative convenient samples.

13

By comparison, if you look at Table B, the very

14 smallest study that I cite there, based on representative data

15 is, I believe, Ellis et al., with a sample of over 700, meaning

16 that all of those comparison studies involving children's

17 outcomes, and there are 19 of them that we're left with of the

18 59, total less than the smallest nationally representative

19 sample or probability sample in Table B.

20

If we run the numbers on those 19, to conclude in

21 answer to your initial question, the average sample size of the

22 children of lesbian and gay parents is 36 in those particular

23 studies, which is, again, concerns me because that's only six

24 larger than what is typically considered the absolute minimum

25 that you would want to use in a scientifically viable study, an

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1 "N" of 30. 2 Q. So to be clear, the APA is making a, in your opinion, a 3 bold statement about not a single study has found children of 4 lesbian or gay parents to be disadvantaged in any significant 5 respect relative to children of heterosexual parents. When you 6 boil everything down, they are talking about perhaps 19 studies 7 with an average sample size of 36? 8 A. Yes. And again, that eliminates the Sarantakos and 9 duplicate studies. 10 Q. Which found, actually, there to be problems? 11 A. Right. 12 Q. Okay. 13 A. But even with the most generous estimate of 900, 910 14 earlier, we're still looking at a fraction of the 7,800, less 15 than a thousand children when we boil it down. Again, 16 emphasizing if that is not a representative sample, it's a 17 conglomeration of small, and in many cases, privileged samples. 18 Q. Are you familiar with the term, "type II error"? 19 A. Yes. 20 Q. And what does that mean? And then, how is it relevant 21 here? 22 A. Type II error is relevant -23 Q. What is it, first? 24 A. Well, in layman's terms, it's, it's failing to find the 25 needle in the haystack. It is concluding when you compare

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1 Group A with Group B that no significant difference exists;

2 that you failed to find a difference between the two groups.

3 It does not mean conclusively, in any respect, that they are

4 the same. That would -- that takes very large samples to

5 claim.

6

It relates to us here in that it is possible to

7 conclude over, and over, and over again the two groups do not

8 differ in statistically significant ways from another one, when

9 in fact, they do. That would, that would comprise a type II

10 error. Hence, part of the danger of such small sample sizes.

11 Q. Table 1, if you can flip a few slides. Can you kind of go

12 over what Table 1 reflects? Or Table A, excuse me.

13 A. Table A, moving from right to left, we have is as

14 self-evident, the author and year of the study. These were all

15 cited in the APA brief, pages 5 to 45 inclusive.

16

We then have the gay and lesbian sample size. In some

17 cases, like the Bailey, et al., study there, parents and

18 children are listed.

19

As we look to the, the hetero N, that means the sample

20 size of the heterosexual comparison group, if the heterosexual

21 group was included, zero, zero in some, and we continue on

22 down.

23

The outcome studied there relates to what was being

24 examined. I won't waste too much time on that, that column,

25 except to say that, again, this is a particular concern to me

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1 because so rarely are the societally critical outcomes

2 considered in these studies, very, very rarely.

3

The last one there says heterosexual comparison group.

4 In some cases, it says none. This is not the size, but what

5 the authors tell us.

6

You'll see as we look down, fathers, we see D.I., for

7 example Brewaeys, et al., 1997 DI/non-DI couples. That means

8 donor inseminated or non-donor inseminated couples.

9 Q. Okay. We'll talk about the Brewaeys one. For example,

10 let's look at that. They were, the compare group was -- D.I.

11 stands for what?

12 A. Donor insemination.

13 Q. So that's what they were comparing the gay and lesbian

14 group with; is that right?

15 A. Yes. And if we glance at that study, for example, we see

16 that the sample size for the gay and lesbian group, which,

17 which is lesbian here, would be 30, as I mentioned a moment

18 ago, the, the bare minimum typically accepted in statistics.

19

We've got the heterosexual comparison group. We have

20 the outcome studied; there were a couple. We see gender

21 development as I mention is addressed at some level, in about

22 20 of these study very frequent area of interest, along with

23 emotional development. We'll note that both of these outcomes

24 would qualify as soft outcomes. And then we have donor

25 insemination there in the far right.

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1

Anything else, sir?

2

MR. POTCHEN: Okay. So we're about to go through some

3 of these studies, your Honor. I don't know if you want me to

4 continue? Is that fine?

5

THE COURT: We can break for lunch.

6

MR. POTCHEN: Yeah. It's going to get a little --

7

THE COURT: Perfect. Perfect. It's a good segue-way.

8 And so we'll break for lunch. What do you think, 1:15? 1:30?

9

MS. STANYAR: 1:15 is fine.

10

THE COURT: We'll see you all back at 1:15.

11

THE CLERK: All rise.

12

THE COURT: You may step down.

13

(Recess taken, 11:45 a.m.)

14

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1

2

CERTIFICATE OF REPORTER

3

As an official court reporter for the United States

4 District Court, appointed pursuant to provisions of Title 28,

5 United States Code, Section 753, I do hereby certify that the

6 foregoing is a correct transcript of the proceedings in the

7 above-entitled cause on the date hereinbefore set forth.

8

9

10

s/ Christin E. Russell

11

CHRISTIN E. RUSSELL, CSR, RPR, FCRR, CRR

12

Federal Official Court Reporter

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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

2

SOUTHERN DIVISION

3 APRIL DEBOER, ET AL.,

4

Plaintiff,

Case No. 12-10285

-v-

5

RICHARD SNYDER, ET AL.,

6

Defendant.

7 ____________________________________/ VOLUME 5 - PART B

8

BENCH TRIAL

9

BEFORE THE HONORABLE BERNARD A. FRIEDMAN

United States District Judge

10

Theodore Levin United States Courthouse

231 West Lafayette Boulevard

11

Detroit, Michigan

March 3, 2014

12

APPEARANCES:

13

FOR THE

Carole M. Stanyar, Esq.

14 PLAINTIFFS:

Dana M. Nessel, Esq.

Kenneth Mogill, Esq.

15

Robert Sedler, Esq.

Vicki L. Henry, Esq.

16

Leslie Cooper, Esq.

FOR THE

17 DEFENDANTS:

Kristin M. Heyse, Esq.

Richard Snyder

Joseph E. Potchen, Esq.

18 Bill Schuette

Michelle Brya, Esq.

Tonya C. Jeter, Esq.

19

Lisa Brown

Andrea J. Johnson, Esq.

20

Beth M. Rivers, Esq.

Michael L. Pitt, Esq.

21

To Obtain a Certified Transcript Contact:

22

Christin E. Russell

RMR, FCRR, CRR, CSR - (248) 420-2720

23

Proceedings produced by mechanical stenography.

Transcript produced by computer-aided Transcription.

24

25

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INDEX

2

Bench Trial

3

WITNESSES FOR DEFENDANTS:

SHERIF GIRGIS

4

Direct Examination By Mr. Potchen

Voir Dire By Mr. Mogill

5

Ruling of The Court

6

7

8

9

10

EXHIBITS

11 State's Exhibit 1 (Girgis CV)
12

13

14 CERTIFICATE OF REPORTER
15

16

17

18

19

20

21

22

23

24

25

Page 4
27 35
Page 22
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1 Detroit, Michigan

2 March 3, 2014

3 10:07 a.m.

4

*

*

*

5

THE CLERK: All rise.

6

THE COURT: Thank you. You may be seated. And you're

7 all set?

8

MR. POTCHEN: Yes, we are, your Honor.

9

THE COURT: This is our witness. Good morning. You

10 can stand right there, please. Raise your right hand.

11

(Witness is sworn.)

12

THE COURT: Please have a seat. And when you've had

13 an opportunity to be seated, would you be kind enough to give

14 us your full name and spell your last name, please.

15

THE WITNESS: Sure. My full name is Sherif Girgis.

16 My last name is spelled G-I-R-G-I-S.

17

THE COURT: Okay. Thank you.

18

MR. POTCHEN: Your Honor, I have a copy of the Power

19 Point that we've been using as demonstrative exhibits.

20

THE COURT: Yes. Thank you. I appreciate it. If you

21 have two? Or just one? One is fine.

22

MR. POTCHEN: Just one.

23

THE COURT: We'll make copies. We have that exhibit

24 to make copies of also.

25

MR. POTCHEN: Yes. The defendant's exhibit book.

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THE COURT: No. I mean the one that --

2

THE CLERK: The e-mail.

3

THE COURT: The Brown Exhibit A.

4

MS. HEYSE: Oh, I'm sorry.

5

THE COURT: We won't make it now. We'll make it over

6 the break, but at least we better have it just in case we need

7 it.

8

MS. HEYSE: Thank you, your Honor.

9

THE COURT: Thank you.

10

Okay. You may proceed, Counsel.

11

MR. POTCHEN: Thank you.

12

THE COURT: Thank you.

13

SHERIF GIRGIS

14

called as a witness at 10:07 a.m., testified as follows:

15

DIRECT EXAMINATION

16 BY MR. POTCHEN:

17 Q. Mr. Girgis, can you give the Court a little bit of

18 background about your education?

19 A. Sure. I obtained my Bachelor's degree in philosophy from

20 Princeton in 2008, graduating Phi Beta Kappa and summa cum

21 laude. And from there, I went on to a Master's degree called

22 the BPhil in philosophy at Oxford University on a Rhodes

23 Scholarship. And the concentration of the BPhil was in moral,

24 political and legal philosophy and in the philosophy of

25 Aristotle.

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1

And since then, I have been working on a Ph.D. in

2 philosophy at Princeton, and a law degree at Yale Law School.

3 Q. You had mentioned from Princeton, you graduated Phi Beta

4 Kappa. What does that mean?

5 A. Yes. In the case of Princeton it means, it's an honors

6 society, and it means graduation in the top 10 percent of the

7 class.

8 Q. And what does summa cum laude mean?

9 A. Again, in Princeton's particular case, summa cum laude is

10 an honor, it's the highest honor possible based on a GPA within

11 your major, so philosophy in my case.

12 Q. For a Rhodes scholar, why are such scholarships given?

13 A. They are given to fund two or three years of graduate study

14 at the University of Oxford, which includes tuition and

15 stipends.

16

It's meant to be an honor that's based on a couple

17 different criteria, including academic achievement, kind of the

18 bottom line or the first kind of condition of it, but also

19 virtues of character and integrity, athletic achievement, which

20 they've loosened somewhat, and literary achievement.

21 Q. Did you have particularly literature achievement that made

22 you one of the candidates?

23 A. When I was an undergraduate, I was the editor-in-chief of a

24 campus paper. And I had also contributed to several of the

25 campus papers about issues in philosophy and public affairs.

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1 Q. Now, you indicated that you're currently at Yale Law

2 School?

3 A. I am.

4 Q. And are you on any journals or anything like that?

5 A. Yes. I'm an editor of the Yale Law Journal at the law

6 school.

7 Q. And have you worked, or I guess can you give the Court an

8 overview of some of the classes that you've had at Yale Law

9 School?

10 A. Sure. Well, I've taken some of the standard black letter

11 classes, constitutional law, in torts, criminal law, contracts.

12

I've also taken some courses, sort of related to this

13 cluster of issues. So a reading course on marriage law and a

14 course on reading the Constitution with Professor Akhil Amar,

15 which is a kind of, sort of second semester or kind of advanced

16 course in constitutional theory; and a course in

17 anti-discrimination law with Professor Riva Siegel.

18 Q. Can you tell us a little more about that reading group on

19 marriage law?

20 A. Sure. It was actually, so the way that reading groups at

21 Yale work is that, it's typically the way they work, is that a

22 group of students will get together, decide on a topic and an

23 area of interest, develop a syllabus in consultation with a

24 faculty member, have that syllabus approved both by the faculty

25 member and by the registrar's office, and then the faculty

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1 member serves as an advisor to the group.

2

And in this case, three of my small group members and

3 I -- and so small group is the semester -- is the small seminar

4 that you're in your first semester at Yale Law School.

5

Ours was on torts, but we had the, the four of us had

6 a common interest in these issues, because of our backgrounds

7 and our experiences, and our differing perspectives on it.

8

So one, in the e-mail I think that we sent out to the

9 law school advertising the course, one person identified as a

10 Mormon mom of two. One person identified as a lesbian mom

11 married to a woman in the state of Connecticut, I believe,

12 raising a child together. One of us identified as a sex

13 positive queer activist, who works on LGBT issues, but also on

14 the rights of sex workers, and then there was me.

15 Q. So do you all coordinate and develop a schedule of readings

16 and such?

17 A. We did. We worked together to look at a bunch of issues in

18 marriage law, and its implications for torts, for criminal law,

19 the constitutional theory, some philosophical considerations in

20 the background about what the competing visions of marriage

21 play in the law and policy today are. Anti-discrimination law,

22 I believe, was on there, most likely because we had as our

23 mentor and advisor Professor Riva Siegel, whose work is

24 primarily in equality jurisprudence, or it's at least one of

25 her major areas to which she's contributed a great deal in

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1 defense of rights to abortion, but also on the marriage issue

2 and on affirmative action and things like that. So I'm sure

3 that was on the syllabus as well.

4

And then we co-led the discussion group. So each of

5 us would be primarily responsible for each week, but obviously,

6 it was a very active discussion throughout.

7 Q. And you had indicated that you're on course to get a Ph.D.

8 in philosophy; is that correct?

9 A. That's right.

10 Q. And have you taken additional philosophy courses since

11 getting your degree from Oxford?

12 A. Yes. So my work at Oxford in the first year of the

13 course-like work, more of a tutorial format, was in political

14 and legal philosophy one term, and moral philosophy and then

15 the philosophy of Aristotle. But at Princeton, I have to

16 effectively start from scratch.

17

I can use maybe three, I think, papers from before and

18 revise them for the purposes of the Princeton degree, but

19 overall you need ten unit requirements to move on to generals

20 and then dissertation.

21

So I've been taking courses in political philosophy,

22 legal philosophy. And I'm doing work in metaphysics, and

23 ethics, and other areas.

24 Q. Your degree from Oxford, the Rhodes Scholar, how many

25 Rhodes scholars are there?

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1 A. There are 32 Rhodes scholars from the U.S. each year.

2 Q. Have you won any prizes or awards?

3 A. Yes. So as an undergrad, I won two prizes for my senior

4 thesis in the philosophy department. So the McCosh prize for

5 the best undergraduate thesis in philosophy generally, and the

6 1879 prize for the best thesis in ethics in particular.

7

I won, also while I was an undergrad, the, the

8 National Dante prize of the Dante Society of America, which is

9 a prize that recognizes the best undergraduate essay on Dante

10 or one of his works in the U.S. or Canada.

11

And I suppose -- and at Yale Law School I've won the

12 Felix S. Cohen prize for the best paper in legal philosophy.

13 Q. What was the criteria for the Cohen prize?

14 A. Well, it's just the general description of best paper in

15 legal philosophy. But the way that it gets selected is that

16 the end of the year, anyone is able, anyone at the law school

17 from all three years is able to submit their papers for

18 consideration. And then I think they are blind -- they are

19 anonymously graded by a panel of faculty members who presumably

20 have some kind of expertise in legal philosophy or legal

21 theory. And then one is selected, and of course the name is

22 matched to it and, and it's rewarded.

23 Q. Do you have any publications?

24 A. I do. The ones most relevant in this case are an article

25 in, I think December of 2010 in the Harvard Journal of Law and

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1 Public Policy that was co-authored with Robert George, who is

2 the McCormick Professor of Jurisprudence at Princeton

3 University and Ryan Anderson, who is a -- the William E. Simon

4 Fellow in, I believe in religion and public life at The

5 Heritage Foundation.

6

That article drew a lot of critical engagement and a

7 lot of attention within the legal and other communities. And

8 so we incorporated a lot of our exchanges on the basis of it,

9 and expanded and revamped its points into a book called, "What

10 is Marriage? Man and Woman: A Defense." That was released in

11 December of 2012.

12 Q. I'm going to hand you a copy and ask you to describe, is

13 that a book?

14 A. Yes. So you're going to ask me to describe it, you said?

15 Q. Not yet. Do you have any other publications?

16 A. I do. So I have a couple publications upon invitation of

17 some kind. So in, I have a forthcoming piece in the Case

18 Western Reserve Law Review on Justice Kennedy, Justice Alito

19 and the equal protection argument in Windsor. And that is

20 based on a presentation I was asked to give on a panel on the

21 constitutional reasoning in the marriage cases at Case Western

22 Reserve Law School. A panel on which I think I was joined by

23 Professor Andy Koppelman who is a professor of Constitutional

24 Law at Northwestern Law School.

25

I have another publication in a volume produced by

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1 Wylie Blackwell in Oxford called the, I think it's Contemporary

2 Debates and Applied Ethics. And that is a point/counterpoint

3 with Professor John Corvino, who is the Chairman of the

4 Philosophy Department at Wayne State University. And there,

5 we're focusing on competing conceptions, competing

6 philosophical conceptions of what marriage is.

7

And there's another one that is a contribution to a

8 book collection of essays, also forthcoming from Professor Mike

9 Sweeney at Xavier University. And that one, the general

10 collection is on justice and diversity. And what I was asked

11 to contribute was an essay discussing the merits of a diversity

12 -- diversity-based case for the legal recognition of same-sex

13 relationships as marriages.

14

And I also have a piece in the Harvard Journal of Law

15 and Public Policy about intellectual diversity in the legal

16 academy. And that was based on a keynote address I was asked

17 to give at a conference sponsored by the Federalist Society at

18 Harvard Law School on that general question. So there were

19 several panels discussing whether there is a problem, what to

20 do about it if so, and why it matters, from a question of

21 intellectual diversity in the legal academy. And then my, my

22 keynote is the piece on the Harvard Journal.

23 Q. Have you published in the Yale Law Journal?

24 A. I have. I have a note in the Yale Law Journal on the

25 mental state requirement, the mens rea requirement of

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1 accomplice liability.

2 Q. And have you been published in or been asked to write for

3 the Cambridge Companion on philosophy of law?

4 A. Yes. I have a forthcoming piece there, a co-authored piece

5 on -- so it's the Cambridge Companion Philosophy of Law. It's

6 John Tasioulas is the editor. And I think he's at University

7 College London. And the specific essay I'm going to be

8 contributing is on civil rights and liberties from a philosophy

9 of law perspective.

10 Q. You've indicated that you've been invited to write. Is

11 that different than being peer-reviewed?

12 A. It is. So peer review is a, it's a situation in which you

13 blind submit, normally, your work to a journal. And the

14 journal sends it out to referees to comment on it and decide

15 whether to publish it in the journal.

16

So it's different in that, in the respect that this is

17 a case where an editor is putting together some kind of

18 academic collection of essays and is soliciting the pieces in

19 that way. I think the respect in which they are similar

20 perhaps is that they, in the volumes that I've mentioned, one

21 edited by Professor Sweeney, the one edited, the Cambridge

22 Companion on philosophy of law by Professor Tasioulas and in

23 the one that's already out, the Contemporary Debates in Applied

24 Ethics volume, which is co-edited by two philosophers.

25

In all of those cases, the majority, the vast majority

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1 of the contributors, as far as I can remember, are themselves

2 full faculty members, full professors in philosophy or law, or

3 a related discipline.

4

So in that respect, I guess it represents a kind of

5 recognition by the academic community or some member of it, of

6 a certain kind of achievement on a particular issue, because

7 they typically try to, it's natural to suppose that they would

8 be looking for the best essay from that perspective on that

9 particular topic for their volumes.

10

The Cambridge Companion and the volume in applied

11 ethics are both often used as college text books, for example,

12 in classes on law or philosophy.

13 Q. And those individuals in those texts have actually sought

14 you out and asked to you contribute to those publications?

15

MR. MOGILL: Leading.

16

THE WITNESS: Yes, I --

17

THE COURT: Overruled.

18

THE WITNESS: Sorry.

19

THE COURT: Go on.

20 BY MR. POTCHEN:

21 Q. Now, turning to the book that you have in front of you, can

22 you give -- well, first of all, how did you come up with the

23 title?

24 A. Sure. Well, the title is "What is Marriage?" The subtitle

25 is long, but the title is, "What is Marriage?" And the reason

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1 we picked it, both for the article and for the book is that we

2 think it's really emphasizing or highlighting what was a really

3 under-looked aspect of this debate at an intellectual level.

4

So a primary motive of writing was to try to clarify

5 the debate and try to really refine the best case on both

6 sides, and then talk about the competing merits from a

7 perspective.

8

And we really thought that in particular, the, the

9 move from, kind of immediate move from the principle of

10 equality to the conclusion, the normative conclusion that the

11 state should recognize same-sex relationships as marriages went

12 through, glossed over a missing step. And the missing step was

13 that it was assuming a substantive view of what marriage is and

14 of why marriage is relevant to policy.

15

And it was only with that background view in mind,

16 with that background answer to that central question that the

17 argument from equality could go through, or so we thought. And

18 that's why we wanted to put focus on that question in the title

19 of both pieces.

20 Q. And so what does the book cover?

21 A. The book covers -- well, first, it tries to give the most

22 sympathetic and most kind of philosophically sophisticated

23 account of the two competing -- of two very major contenders

24 for the answer to that central question in this debate. One

25 that we call the conjugal view of marriage, which is sometimes

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1 called a traditional view of marriage, and another that we call

2 the revisionist view of marriage in the sense that it's

3 proposing to revise what it sees as an unjust standard.

4

We talk about the philosophical implications of these

5 two views of marriage, what they assume and what they would

6 entail about what else is or isn't a marriage or about what

7 makes marriage valuable to the state. We argue that those

8 implications and assumptions show one view to be more cogent

9 than the other, the conjugal view.

10

And then we discuss how any of that might be related

11 to the policy interests that get the state involved in marriage

12 in the first place.

13 Q. Have any of your publications been cited in any legal

14 opinions?

15 A. Yes. So the book, "What is Marriage" was cited in Justice

16 Alito's opinion or dissent in the Windsor decision which was

17 joined by Justice Thomas.

18 Q. Are you aware of how often your publications have been

19 downloaded?

20 A. Just in the case of the article, "What is Marriage," and

21 the reason we are, is that we posted it on SSRN, the Social

22 Science Research Network, which is a collection and database

23 for academic articles in a really wide variety of disciplines

24 in the law, in law and the social sciences.

25

It was actually just at the suggestion of a friend

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1 that I put it up there. I wasn't planning to. As soon as we

2 got the PDF, I had no plans to. But when we did, that site

3 does record both the number of times that the page has been

4 visited and the abstract viewed, and the number of times that

5 it's been downloaded.

6

And I think within the first few weeks of being

7 posted, maybe three weeks of being posted, it had become one of

8 the top 10 downloaded in the previous year out of, I think at

9 the time, it was somewhere around 300,000 articles on the

10 website. And then today, I think it still remains one of the

11 top ten of, of the lifetime of the database, which I think now

12 has many more articles. But the number is probably somewhere

13 around 69,000, at the last time that I saw it.

14 Q. Did you work on filing an amicus brief in the Windsor case?

15 A. I did. My co-authors and I filed an amicus brief at the

16 request of some of the attorneys in that case, and it was also

17 filed in the Perry case.

18 Q. Have you given any talks, engaged in any debates or given

19 any guest lectures?

20 A. Yes, all of the above. I've given talks -- so the

21 background is that when the article was posted on SSRN and did

22 well and, and got a number of critical responses, I think one

23 of the first was from Professor Kenji Yoshino at NYU Law

24 School, who is a major sort of legal scholar on gay rights

25 issues.

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1

When it got a lot of attention from that, we engaged

2 with the critics in online venues. And then that

3 back-and-forth with Professor Yoshino, later with Professor

4 Koppelman from Northwestern Law School, the constitutional law

5 professor there, and others, gave rise to a bunch of

6 invitations to come either debate or speak on the issue in

7 person.

8

So at law schools, universities, undergraduate

9 audiences in some cases, general ones in others, panel

10 discussions and, and guest lectures in seminars and courses.

11 Q. Let me ask you this: Have you engaged in any debates or

12 discussions at Harvard Law School?

13 A. Yes. So I, I did the intellectual diversity talk, which

14 was, you know, indirectly related to this at the, at the

15 conference. But more pertinent to this, I did a debate with

16 Professor Andy Koppelman, which was moderated by a Harvard Law

17 Professor Richard Fallon in January, I believe, of 2012.

18 Q. Have you given any debates or had discussions or given a

19 presentation at Notre Dame?

20 A. Yes. I was asked to do a keynote event at Notre Dame Law

21 School for -- no. Sorry. Actually, it's Notre Dame University

22 itself for a conference, a several-day conference hosted by its

23 Center in Ethics and Culture.

24 Q. Have you given any presentations at Michigan Law School?

25 A. Yes. I recently had a debate with Professor John Corvino,

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1 the Chairman of the Philosophy Department as I mentioned

2 earlier at Wayne State University, at Michigan Law School,

3 hosted by the Federalist Society.

4 Q. Let's talk about foreign governments. Have you given any

5 briefs to foreign governments?

6 A. I have. I've been invited on a couple occasions to give

7 talks to all kinds of audiences. In one case, in Australia,

8 and in another case in Chile. And in both contexts, my hosts

9 also asked me to, if I would be willing to have meetings with

10 some government officials in each case, and brief them on

11 different aspects of the marriage issue in the U.S.

12

And so in Australia, that was with some members of the

13 Australian Parliament. And in Chile, that was with an officer,

14 whose title is the Secretary Minister General of the

15 Presidency, and whose function is, as I understand it, or

16 understood it then, to be a kind of liaison between the

17 president and the National Congress of Chile on legislative

18 issues in particular.

19 Q. So why, why were you in Chile in the first place? What was

20 the context of that trip?

21 A. There were two kind of civic associations there that

22 invited me to come down and give talks on, on this cluster of

23 issues. In some cases, a kind of historical overview of

24 certain developments in marriage law in the U.S., in some

25 cases, more a philosophy-oriented discussion on the -- of the

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1 sort that we have in the first part of the book. And so it was

2 in the context of the -- those were the reasons I was invited.

3 Q. And why were you in Australia, the context for that trip?

4 A. It was precisely the same sort of thing. So half of it was

5 to do those sorts of talks, and then I also added some time for

6 personal visits to friends.

7 Q. Have you given any lectures at Princeton?

8 A. Yes. So I've done guest lectures in a couple different

9 contexts. One was a constitutional interpretation course at

10 Princeton. One was for an ethics in public policy course

11 taught by Professor Steve Macedo, who is one of the more

12 eloquent and prominent critics of this kind of view of marriage

13 discussed in the book.

14

Another, in a philosophy seminar, on the philosophy of

15 sex and marriage that was co-taught by two other critics,

16 Professor Gideon Rosen and Professor Liz Harman. And I think

17 those are, I think those are it.

18 Q. Have we covered all the courses that you've given lectures

19 on at Harvard Law School?

20 A. I think so, yes.

21 Q. Okay. How about Hillsdale College?

22 A. Hillsdale College and I think Eastern University is another

23 place where I've also given these kinds of guest lectures in

24 seminars or led seminars at the request of the professor

25 teaching them.

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1 Q. Have you given any guest lectures at Michigan State 2 University? 3 A. In that case, actually, I did a debate with Professor 4 Candeub on, on the marriage law question. 5 Q. Have you given any lectures at Oxford or presentations? 6 A. I gave a presentation to the jurisprudence or philosophy of 7 law discussion group at Oxford on the -- on certain legal -- on 8 certain theories in 20th century legal philosophy. I think in 9 particular, in that case it was on legal positivism and the 10 question of whether there can be moral criteria for, for legal 11 validity. 12 Q. Have you given any lectures at Stanford University? 13 A. Yes. I've given, I can't remember now if it's one or two 14 lectures on the more philosophical aspect of marriage. 15 Q. Have you given any lectures at Case Western? 16 A. Yes. So that was the panel discussion on the 17 constitutional reasoning of the DOMA, and Prop 8 cases with 18 Professor Andy Koppelman and several others on other panels out 19 of which the article grew. 20 Q. Have you given any lecture, I'm sorry, any lectures at 21 Oxford? 22 A. Yes. So the -- well, I gave -- there was a, there was a 23 conference. So besides the discussion group presentation on 24 legal, that the issue on I mentioned in legal philosophy, I 25 gave a presentation at a conference organized by several

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1 academics at Oxford, but held at Lincoln's Inn college in

2 London. I'm sorry, Lincoln's Inn, it's not a college, in

3 London on, that was on the different philosophical conceptions

4 of the principle of political equality.

5

So it was not on the same-sex marriage debate in

6 particular, or any other particular policy debate, but just

7 different ways of understandings -- of understanding what the

8 content of the principle moral or political principle of

9 equality is, and how, how to apply it in practice. There's a

10 kind of long and recent, recently live debate within philosophy

11 and philosophy of law question.

12 Q. During your graduate work, have you taught any philosophy

13 or law courses?

14 A. As an assistant instructor. So there were two courses, two

15 and a half, one is in progress of which that's true.

16

So while I was at Yale Law School, I was an assistant

17 instructor in Professor Akhil Amar's constitutional law course

18 for the undergrads, which is a close resemblance of his course

19 for one Ls.

20

So that was a case in which I would -- he would

21 lecture twice a week, and then I would meet once a week with a

22 discussion group, or the smaller seminar version of a couple

23 members of the lecture, and we would discuss the materials.

24 And then I would grade their essays and their exams and helped

25 design the exams with Professor Amar.

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1

The same structure of assistant instruction carried

2 over to a course I did last semester with Professor Peter

3 Singer called Practical Ethics for the Philosophy Department in

4 the Center for Human Values.

5 Q. I'm going to have you turn to that big book right in front

6 of you. Yes, and just look at Exhibit 1.

7 A. Okay. Okay.

8 Q. And that's a copy of your CV, correct?

9 A. Yes.

10 Q. And is everything true and accurate on that CV?

11 A. Yes. As far as I can see, it's accurate as far as it goes.

12 I think there are some things that I mentioned that happened

13 after that, after this version was written so they are not on

14 there, I think.

15

In particular the, so the Cambridge Companion piece is

16 not listed. The, I don't see the debate that was the most

17 recent which was at the University of Michigan with Professor

18 Corvino. And those are the two things that come to mind.

19

MR. POTCHEN: Your Honor, we'd like to move to admit

20 exhibit -- Defendants' Exhibit 1.

21

MR. MOGILL: No objection.

22

THE COURT: Received.

23

(State's Exhibit 1 received, 10:37 a.m.)

24 BY MR. POTCHEN:

25 Q. Mr. Girgis, for the purposes of your testimony today, what

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1 do you plan to offer opinions on? And I think --

2 A. Sure. The Power Point will help here. Two main points

3 that I want to offer opinions on.

4

The first is various considerations meant to show that

5 there are good reasons that it is reasonable to think that

6 changing marriage law to include same-sex relationships would

7 change the social meaning of marriage in ways that might

8 undermine the public purposes that get the state involved in

9 marriage in the first place.

10

And the second general point is that there are very

11 good reasons from intellectual history, in other words, reasons

12 from the development of the ideas that find expression in our

13 philosophical and legal traditions, very good reasons based on

14 that history to think that there are reasons for that view --

15 for the view that their special value to male/female

16 relationships in particular which can't be attributed simply to

17 animus against a group or to any particular religion, in

18 particular Judaism or Christianity.

19 Q. Mr. Girgis, what methods did you use to arrive at the

20 opinions that you plan to talk about today?

21 A. Sure. Well, these opinions have been developed over the

22 course of my -- well, really beginning with my philosophy and

23 legal training before I began writing for the article or the

24 book or anything like that.

25

So it will draw on my training in philosophy and legal

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1 theory in general. It will draw on a lot of the material on

2 this issue, in particular, that I read in the course of doing

3 that.

4

So, you know, on the, the first point is related to

5 possible implications. Logical implications at the first level

6 of different conceptions of marriage and of -- and then the

7 practical implications that might be -- that might follow when

8 people absorb and live by those conceptions of marriage.

9

So on, on those conceptual relationships and the

10 different connections and competing merits of philosophical

11 accounts of marriage, I've read a great deal over the years in

12 philosophy and in legal theory, and including just to pick out

13 a few folks, Professor Joseph Raz, who is a, I guess at this

14 point emeritus at the University of Oxford, possibly also NYU

15 or Columbia, who is himself a proponent of the recognition of

16 same-sex relationships as marriages; professor Judith Stacey, a

17 legal scholar, Professor Elizabeth Brake, a scholar in

18 philosophy and ethics, in particular, and others.

19

The second thing is that on my own claims for those,

20 for some of the those implications and conceptual relationships

21 and likely cultural affects of absorbing the different views of

22 marriage, I have put them to the same test that any kind of

23 philosophy work can be put to, which is debate and discussion

24 in academic seminars with opponents, in writing and written

25 exchanges with folks like Professor Kenji Yoshino, Professor

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1 Koppelman, Professor Corvino in philosophy, and others.

2

And I've also been, in a very close way for this last

3 several years, for as long as I've been doing this, very

4 closely observing, as well as participating in the development

5 of the debate on the recognition of same-sex relationships as

6 marriages.

7

So looking at the evolution, because I had to keep up

8 with it in order to, to be able to continue to contribute on

9 this issue, looking at the evolution of the arguments for the

10 competing conclusions on this policy question, looking at the

11 evolution of their implications and of the progression of the

12 policy proposals that people are advancing on the, roughly the

13 other side of the issue, on the question of those who favor

14 recognizing same-sex relationships as marriages.

15

So looking at the logic of their arguments and the

16 progression of their policy proposals concretely over time,

17 looking at shifts in what goes from being outré to being

18 acceptable or even encouraged or even embraced in the debate by

19 different -- by people in different sides of it. And for that,

20 I'm looking at academic figures like some of the ones I

21 mentioned, like, you know, the evolution of people's work like

22 John Corvino and so on, but also at the progression of the

23 popular and advocacy side. So with folks like Andrew Sullivan

24 or Dan Savage, and other kind of central figures in the

25 national conversation on these issues.

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1 Q. Do you look at primary text as well?

2 A. I do. So that's, that's all related really to the first

3 point.

4

And to the second point, you know, the base, the

5 general basis for the second point is the idea that the

6 conception of marriage is involving a special value to a

7 male/female relationship in particular, was not just cooked up

8 recently to oppose any particular group, but grew out of a long

9 philosophical tradition that began before we had any concept of

10 sexual orientation like the one we have today, and in context

11 that had no possibility of influence by Judaism or

12 Christianity.

13

And for that purpose, I'm looking at what I see as the

14 originators, or at least some of the earliest figures in

15 philosophy on -- within this tradition.

16

So I'm looking at the work of Aristotle, of Plato, of

17 Musonius Rufus of Plutarch, the figures like that, classical

18 thinkers in Greece and Rome who are the beginnings of this

19 tradition.

20

And I'm looking at secondary sources. So the kind of

21 authoritative interpreters of these thinkers at places like

22 Oxford, Kenneth Dover, the late Kenneth Dover of Oxford and

23 Saint Andrews; Gregory Vlastos, I believe of Princeton but

24 before my time there; and Anthony Price of the University of

25 London. So looking at the primary text of the thinkers who are

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1 beginning this tradition that I say provides reasons to think

2 it can't just have originated in religion animus and in their

3 secondary sources, interpreters.

4

MR. POTCHEN: Your Honor, at this point we'd request

5 the Court to designate Mr. Girgis as a legal philosophy expert,

6 more specifically in the philosophical, culture and legal

7 conceptions of marriage.

8

THE COURT: Plaintiff, any objections?

9

MR. MOGILL: Yes. I'd like to voir dire, please.

10

THE COURT: You may.

11

VOIR DIRE

12 BY MR. MOGILL:

13 Q. Good morning, Mr. Girgis.

14 A. Good morning.

15 Q. How are you doing today?

16 A. Very well.

17 Q. You are a prolific writer, are you not?

18 A. Thank you.

19 Q. And a frequent speaker?

20 A. Yes.

21 Q. On a broad range of aspects of a philosophical question, as

22 you described it just now to Mr. Potchen, right?

23 A. Yes. In part, a philosophical question.

24 Q. The fact is you're still a student, both at Yale Law School

25 and at Princeton, correct?

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1 A. Yes. 2 Q. At Yale Law School, someone else is still grading your 3 papers; isn't that correct? 4 A. Insofar as there is grading at Yale, yes, that's true, at 5 least of my final exams. 6 Q. Unless somebody says you took a test and passed it, you 7 don't get a degree? 8 A. That's right. 9 Q. And at Princeton, in your graduate work, unless somebody 10 else approves what you do, you will not get a degree? 11 A. Yes. So my work in the graduate programs in particular, 12 that is true of. 13 Q. All right. Now, it's also true you've never been an expert 14 witness before, had never been accepted as an expert witness 15 testifying in a court; is that correct? 16 A. I was hired by the State of New Jersey to do it, and did 17 the -- and began outlining and working on a report. But it was 18 not -- the case ended before that became relevant, so I was not 19 certified. 20 Q. Okay. So my, the answer to my question is you have never 21 been accepted as an expert witness in court; is that correct? 22 A. I've never been accepted in court, that's right. 23 Q. You're not the member -- a member of the bar of any state? 24 A. No. I haven't completed a degree in law, so I haven't been 25 accepted to a bar either.

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1 Q. Would it be possible to answer that one with a yes or no? 2 A. Mh-hm. Yep. No. 3 Q. If it's not, if it's not fair to answer the question yes or 4 no, I certainly don't want to cut you off. 5 A. Thanks. 6 Q. So you're not the member -- a member of the bar of any 7 state, correct? 8 A. That's right. 9 Q. You're not eligible to become a member of the bar of any 10 state at this time, correct? 11 A. That's right. 12 Q. All these writings that you've done, none of them have been 13 peer reviewed; isn't that correct? 14 A. That's right. 15 Q. The Harvard Journal of Law and Public Policy that you 16 referred to is a student-run journal, isn't it? 17 A. Yes, as most law journals are. 18 Q. And the Yale Law Journal? 19 A. Yes. 20 Q. Where you published a note, that's also a student-run 21 journal; is that not correct? 22 A. Yes. Now, I do think it's fair to note in this context 23 that publications in law journals like this, especially the 24 Yale Law Journal make a huge difference to the hiring and 25 promotion of law faculty. So it's --

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1 Q. Mr. Girgis, did I ask you that question?

2 A. I, I did think in that case it was relevant to the question

3 that you did ask.

4 Q. It's a student-run --

5

THE COURT: He did tell him --

6

MR. MOGILL: I'm sorry?

7

THE COURT: He did tell him to --

8

MR. MOGILL: That's fair enough.

9

THE COURT: Go on.

10 BY MR. MOGILL:

11 Q. The question only called for whether it's a student-run

12 journal, correct?

13 A. Yes.

14 Q. Okay. Now, the fact is you're not a historian?

15 A. That's right.

16 Q. You're not a psychologist?

17 A. No.

18 Q. You're not a sociologist?

19 A. No.

20 Q. You're not an expert in child development?

21 A. No.

22 Q. You're not an expert on Michigan law regarding marriage or

23 anything else?

24 A. No.

25 Q. In fact, in terms of Michigan law regarding the issues in

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1 this case, you've only read the complaint in the case; is that

2 correct?

3 A. I've read the complaint and the, the relevant statutory and

4 constitutional provisions.

5 Q. Okay. You haven't even taken a course in family law, have

6 you?

7 A. No, just the marriage reading law. The marriage law

8 reading group.

9 Q. As you've already described.

10

Now, you have repeatedly described your participation

11 in this debate that is going on nationally as presentation of,

12 and I use your own words, philosophical defense, philosophical

13 arguments, philosophical account, philosophical view, correct?

14 A. Yes. That's a key part of it.

15 Q. And you're not here to testify about what you think

16 Michigan law says; isn't that correct?

17 A. No.

18 Q. Do you have -- is it your assertion that you have expertise

19 on Michigan law?

20 A. Not on Michigan law.

21 Q. You are here to testify, if the Court permits it, as to

22 what you identify as a conjugal theory of marriage, a view of

23 marriage that in your own words is, "marked by sexual union in

24 coitus"; is that correct?

25 A. That is part of it. And, and in particular -- but it's not

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1 just that that's not the only part of the philosophical claims

2 that I'm here to make. But it's, the other part is, the part

3 of what I want to say is that it's not just philosophical

4 claims.

5

So in particular, there are also claims which you

6 might call intellectual history, of the history of ideas which

7 might then support a philosophical conclusion but are just

8 limited to the claim about what certain thinkers said in

9 context where it's impossible to attribute their views, for

10 historical reasons, and not for philosophical reasons, it's

11 impossible to attribute their views to religion or to animus.

12

So that is a kind of history of ideas claim, describe

13 it however you'd like. That's not simply a matter of

14 philosophical merits and demerits of a view.

15 Q. Okay. So philosophical supported in your view by

16 intellectual history, supporting what you claim is the conjugal

17 or, as you said, traditional view of marriage, correct?

18 A. Yes. Except that the way you phrased it suggests that the

19 only relevance of intellectual history is if it supports my

20 particular philosophical readings, which I --

21 Q. I wasn't meaning to suggest that.

22 A. Okay.

23 Q. All right.

24 A. So it has its independent weight.

25 Q. And again, you don't even hold yourself out as having

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1 expertise in Michigan law with respect to marriage?

2 A. That's right.

3

MR. MOGILL: All right. I have no further questions

4 at this point.

5

THE COURT: Any objection?

6

MR. MOGILL: Yes.

7

THE COURT: Tell me your objection.

8

MR. MOGILL: Okay. If it please the Court, if I were

9 looking to set up a debate in general about the issues around

10 marriage in this country and wanted to have competing views, I

11 would be very strongly inclined to invite Mr. Girgis to be a

12 participant in that debate. But that's not what we're here

13 about. What we're here about, of course, is the law.

14

The State is proposing to call him, to have Mr. Girgis

15 testify with respect to supporting a claim that there's a

16 rational basis for the Michigan -- for Michigan's law as it

17 currently exists.

18

If Michigan's law regarding marriage as it currently

19 exists required a conjugal relationship, which is the lynchpin

20 of the opinions he would like to offer, if Michigan law

21 required a conjugal relationship, then Mr. Girgis's opinion

22 would be relevant. But because Michigan law does not, and in

23 fact, neither Michigan law nor any state's law constitutionally

24 could require a conjugal relationship, then with respect to the

25 issues in this case, there is no bearing whatever on the

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1 philosophical roots, the intellectual history, the primary and

2 secondary sources, all that is all well and good as part of a

3 different debate. But it would only be relevant to showing

4 rational basis if the law required a conjugal relationship.

5 And the law neither does, nor could.

6

Also, with respect to meeting the requirements of 702,

7 the testimony is only admissible if it can be helpful to the

8 Court to determine a fact in issue. And again, there's no fact

9 in issue about a conjugal relationship. There can't be as a

10 matter of constitutional law.

11

These are very interesting personal philosophical

12 intellectual history opinions about which people debate. That

13 doesn't make them the subject of expert testimony because they

14 are subjective, they are not testable for reliability, they

15 have not been subjected to peer review.

16

Frankly, these views are not generally accepted in the

17 scientific community or other community. They are a matter of

18 intense debate. And so they don't meet the standard of

19 Daubert. And these factors apply even with respect to proposed

20 expert testimony that is not scientific, as the Supreme Court

21 said six years after Daubert in Kumho Tire.

22

So for all of these reasons, while it might be very

23 interesting to have -- to parry back and forth and have a

24 debate about competing conceptions of the philosophy or

25 intellectual history of marriage, it's not on the table in this

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1 case. And for those reasons, Mr. Girgis's proposed testimony

2 does not meet the standard of 702, or the standard of 401.

3

THE COURT: Thank you.

4

Counsel, any argument?

5

MR. POTCHEN: Yes, your Honor. We believe that --

6

THE COURT: You have to go to the microphone. You

7 were at a microphone, but --

8

MR. POTCHEN: Thank you.

9

Your Honor, we believe that Mr. Girgis's testimony is

10 directly related to the issues that your Honor has to decide.

11 We are talking about the State's rational basis for the

12 marriage amendment.

13

He does cover a lot of the areas, most of all, why we

14 would ever define, the State of Michigan ever defined marriage

15 as between a man and a woman. He can outline the State's

16 justifications for doing so. And based on, for example, I'm

17 looking here, this is your Honor's order I'm reading from,

18 forestalling the unintended consequences that would result from

19 the redefinition of marriage; three, tradition and morality;

20 promoting the transition of naturally procreated relationships

21 into stable unions. These are all articulated reasons and he

22 directly addresses those points in his testimony.

23

THE COURT: Okay. Thank you.

24

In determining whether a witness should testify in a

25 case, the Rules of Evidence require the Court to do two tests:

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1 Number one, the qualifications of the person to testify; and

2 number two, whether or not that testimony that is offered will

3 help the Court determine the evidence or help me determine the

4 facts in this particular matter.

5

The witness is very articulate. I think he's, he's

6 very well educated and on his way to more education, and that

7 he has done a lot of things. However, the Court does not

8 believe that his qualifications to testify in the areas that he

9 wishes to are such that it would meet the level or the standard

10 that is required, not only in Daubert, but also in the

11 companion cases.

12

He has participated in a debate in an issue that, of

13 course, is very important to many. He has participated in

14 group sessions. He has taken classes. He has been a guest

15 lecturer in classes. He's done a lot of things. He's done

16 some writing and he's got a lot of forthcoming writings, things

17 that he is working on and so forth.

18

But I think that based upon his experience and his,

19 his writing and his discussions, it's more of an area that is

20 in debating and talking about the issue and causing others to

21 talk about the issue, and is not the kind of testimony that

22 will lead this Court -- does not have the background. And he's

23 mentioned some professors, all of which I have not heard of.

24 But had they come into court and testified what they were

25 teaching him, would probably be very relevant and probably be

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1 the kind of testimony that we're looking for.

2

But I think he's very eloquent and I think that some

3 day he's going to be an expert witness, both in terms of his

4 delivery, as well as his content. But right now, all he is

5 offering to us is mainly his opinions. And he's indicated that

6 he's read a great deal, and that he has opinions on certain

7 things and opinions in terms of his philosophy and so forth.

8

But the Court does not believe that based upon what

9 has been offered that he's going to testify to, or his

10 qualifications, that both under the court rules and under the

11 case law in this matter, that he should be allowed to testify.

12 Therefore, the Court will not allow him to testify.

13

MR. POTCHEN: Thank you, your Honor.

14

THE COURT: That is no implication. I think some day

15 you're going to be a great witness. I've heard a couple very

16 good professors testifying, probably, you know, and I've heard

17 many, many years, and I think you're going to be one of those

18 some day. And you will be in a position that, because of your

19 teachings and because of your research and all the kind of

20 things that it takes to be an expert, that you'll be in that

21 position, but not quite yet. Okay.

22

MR. POTCHEN: Thank you.

23

(Witness excused, 10:57 a.m.)

24

THE COURT: Next witness, please?

25

MS. HEYSE: Your Honor, given this development, we

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1 will need a few minutes to get Dr. Regnerus here.

2

THE COURT: Do you want another --

3

MS. HEYSE: Yeah. We need to get Dr. Regnerus here in

4 the building.

5

THE COURT: Oh, no problem. Let me ask you -- oh,

6 he's not in building?

7

MS. HEYSE: He's not.

8

THE COURT: How much time? I mean --

9

MR. POTCHEN: Your Honor, I had anticipated a couple

10 hours with Mr. Girgis. And we --

11

THE COURT: Okay. Well, tell me how much time you

12 need, because I don't want you to rush. We've got nothing but

13 time, and as I told you, it's an important case. Do you want a

14 couple hours? Do you want a couple minutes? Do you want --

15 you know, I don't want, I don't want you to rush him.

16

MR. POTCHEN: If we could start after, after lunch?

17

MS. HEYSE: After our lunch break?

18

THE COURT: That's fine. I don't have any problems

19 with that. It's eleven o'clock now. How about 12:30, one, one

20 o'clock?

21

MR. POTCHEN: One o'clock would be fair.

22

THE COURT: One o'clock? Okay. As I say, we're

23 moving faster than we ever thought. And as I say, there's a

24 motion made on this witness, and I didn't grant it at that time

25 because I had to listen to it, so it's nobody's fault. So

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1 we'll see everybody at one o'clock and we'll go from there.

2

THE CLERK: All rise.

3

THE COURT: Thank you.

4

(Recess taken, 10:58 a.m.)

5

*

*

*

6

7

8

9

10

11

12

13

14

15

16

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1

2

CERTIFICATE OF REPORTER

3

As an official court reporter for the United States

4 District Court, appointed pursuant to provisions of Title 28,

5 United States Code, Section 753, I do hereby certify that the

6 foregoing is a correct transcript of the proceedings in the

7 above-entitled cause on the date hereinbefore set forth.

8

9

10

s/ Christin E. Russell

11

CHRISTIN E. RUSSELL, RMR, CRR, FCRR, CSR

12

Federal Official Court Reporter

13

14

15

16

17

18

19

20

21

22

23

24

25

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1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, ET. AL.,

Plaintiffs,

-v-

Case Number: 12-10285

RICHARD SNYDER, ET. AL.,

Defendants. ______________________________/

VOLUME 9

BENCH TRIAL BEFORE THE HONORABLE BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE 100 U. S. Courthouse & Federal Building
231 West Lafayette Boulevard West Detroit, Michigan 48226 FRIDAY, MARCH 7TH, 2014

APPEARANCES: For the Plaintiffs:
For the Defendants: Richard Snyder, Bill Schuette, Lisa Brown

Vickie L. Henry, Esq. Leslie Cooper, Esq. Carole M. Stanyar, Esq. Dana M. Nessel, Esq. Kenneth Mogill, Esq. Robert Sedler, Esq. Leslie Cooper, Esq.
Tonya C. Jeter, Esq. Kristin M. Heyse, Esq. Joseph E. Potchen, Esq.
Beth M. Rivers, Esq. Andrea J. Johnson, Esq. Michael L. Pitt, Esq.

To Obtain Certified Transcript, Contact: JOAN L. MORGAN, OFFICIAL COURT REPORTER
734 812-2672

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I N D E X
CLOSING ARGUMENT
On behalf of Plaintiffs by Mr. Mogill On behalf of Defendant Lisa Brown by Mr. Pitt On behalf of the Defendants by Ms. Heyse Statements by the Court

2 PAGE:
4 29 62

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FRIDAY, MARCH 7TH, 2014

1

Detroit, Michigan

2

Friday, March 7th, 2014

3

(At or about 10:00 a.m.)

4

-- --- --

5

THE COURT: You may be seated.

6

Good morning.

7

Okay, plaintiff.

8

Do you have a preliminary matter?

9

MS. STANYAR: A preliminary matter. We had filed

10

Daubert motions before. We just renew them now, you know,

11

our challenges --

12

THE COURT: Wait. Hold on. You’ve got to get close

13

to the microphone.

14

Now that we have those that aren’t afraid to let

15

us know, we appreciate it.

16

Go on.

17

MS. STANYAR: One ministerial matter, we had filed

18

previously Daubert motions and they would remain as to

19

Professors Allen, Price and Regnerus. We renew those, and

20

we rest of the briefs, but we do -- there are challenges

21

both to admissibility and to weight, and we would ask the

22

Court to consider those.

23

THE COURT: Okay. I think based upon what happened

24

at the trial, and the Court having heard testimony from

25

some of those and not heard testimony from one that they

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FRIDAY, MARCH 7TH, 2014

1

are fairly moot, but certainly I think the record is clear

2

that you have made the motions, the Court has ruled on the

3

motions at this point, and they are preserved for purposes

4

of appeal.

5

Anything defense has before we --

6

MS. HEYSE: Just with that said, your Honor, State

7

defendants would also just renew their motions in limine

8

was well with regard to the second partner adoption issue

9

-- Sankaran and the remaining witnesses for the reasons

10

stated in our briefs, your Honor.

11

THE COURT: Good. For the same reasons, the Court

12

will rule on yours.

13

Have you submitted -- numbered the expert

14

reports?

15

MS. STANYAR: We have them all. We just need

16

exhibit tags.

17

THE COURT: Okay. Good. Before you leave today if

18

you could leave them, I would appreciate it.

19

Okay. Plaintiff.

20

CLOSING ARGUMENT

21

MR. MOGILL: Good morning, Judge.

22

THE COURT: Good morning.

23

MR. MOGILL: I’d like to reserve five minutes for

24

Rebuttal.

25

THE COURT: Okay.

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1

MR. MOGILL: And I would like to start by thanking

2

the Court and your staff for all the courtesies shown to

3

plaintiffs’ team, and obviously to defense team as well

4

during the course of this trial.

5

The promise of equality is the promise of

6

America. Not just in the Equal Protection Clause of the

7

Fourteenth Amendment, but in who we strive to be hopefully

8

as a people. For gay and lesbian Americans, for April and

9

Jayne, for the approximately 15,000 other Michigan same-sex

10

couples of whom approximately 2600 couples are raising over

11

5300 children under the age of 18, that promise has not

12

been kept.

13

As documented both in Professor Chauncey’s report

14

and in the Michigan Department of Civil Rights’ report to

15

be gay has far too long meant to be the victim of pervasive

16

institutional and societal discrimination. Being gay was

17

classified as a mental disease or defect. Consensual

18

intimate behavior was criminalized. Positive images of gays

19

and lesbians was censored in all media. People could get

20

fired from their jobs, barred from federal governmental

21

employment, stereo-typed in multiple hateful, hurtful ways.

22

Both in the law and in society there have been

23

many changes in recent times, but that legacy of

24

discrimination remains. Equality before the law does not

25

yet exists. For same-sex couples like April and Jayne the

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FRIDAY, MARCH 7TH, 2014

1

door is barred from entry into one of life’s most cherished

2

institutions, marriage because they love the wrong kind of

3

person.

4

While ending discrimination with the respect to

5

the right to marry won’t fully erase the legacy of

6

discrimination or its existence in other areas of life it

7

would be a major step forward, a step I respectfully submit

8

the law is ready to take.

9

The evidence you have heard the past two weeks

10

has largely centered on the question on whether children

11

raised by same-sex couples turn out as well as children

12

raised by opposite sex couples. This was understandable in

13

the context of the framing of the issues and I’m going to

14

discuss the evidence in a bit. For two reasons though I

15

respectfully submit that the Court should rule for

16

plaintiffs even if it never gets to consideration of that

17

evidence.

18

First, the right to marry is a fundamental right

19

that should apply regardless of sexual orientation, and

20

denial of that right as a denial of due process.

21

Second, no other group in society is required to

22

establish its parenting competence before being entitled to

23

the right to marry. And so to impose this condition on gays

24

and lesbians is a denial of equal protection.

25

Let’s talk first about marriage. Marriage in our

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1

law is a civil contract. It is so defined at MCLA 551.2. It

2

is an institution based on mutual consent of the parties.

3

There is no obligation to procreate or attempt to procreate

4

or adopt. No obligation to engage in sexual intimacy or

5

even to live together. In fact, we know that the Supreme

6

Court in Turner v Safley unanimously held that even a

7

prisoner who will never be able to have physical contact

8

with their spouse is entitled to marry.

9

When a religious official officiates at a wedding

10

he or she is doing so as an agent of civilian authority. No

11

religious authority has the right to impose conditions

12

beyond those imposed by the law as conditions of marriage.

13

Religious authorities do have the right to impose

14

additional conditions or restrictions before they are

15

willing to accredit or bless a marriage within the

16

denomination, but that is only with respect to within the

17

denomination. The civil law does not speak to that

18

authority, just as the civil law bars religious authorities

19

for intruding on its authority. As it stands today the

20

institution of marriage is gender neutral in how rights and

21

obligations within marriage are apportioned.

22

The right of an adult to marry the person they

23

love without regard to race, fertility, parenting skills or

24

gender roles is part of an individual’s right to due

25

process of law protected by the Fourteenth Amendment.

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1

Language from two Supreme Court cases helps illustrate why

2

this is.

3

In Griswold v Connecticut in 1965, the Supreme

4

Court said,

5

“Marriage is a coming together for better or for

6

worse, hopefully enduring and intimate to the degree of

7

being sacred.”

8

In 2003, in Lawrence v Texas the Court said,

9

“Our laws and tradition afford constitutional

10

protection to personal decisions relating to marriage,

11

procreation, contraception, family relationships, child

12

rearing and education.”

13

And then skipping some language,

14

“Persons in a homosexual relationship may seek

15

autonomy for these purposes just as heterosexual persons

16

do.”

17

While the right to marry a person of the same sex

18

has yet to be explicitly recognized by the Supreme Court,

19

the crumbling of the jurisdictional basis for the ban on

20

marriage equality was astutely and somewhat ironically

21

recognized by Justice Scalia in his dissent in Lawrence

22

when he said,

23

“Today’s opinion dismantles the structure of

24

constitutional law that has permitted a distinction to be

25

made between heterosexual and homosexual unions insofar as

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FRIDAY, MARCH 7TH, 2014

1

formal recognition in marriage is concerned. If moral

2

disapprobation of homosexual conduct has no legitimate

3

state interest for purposes of proscribing that conduct...”

4

and then skipping a little, “what justification could there

5

possibly be for denying the benefits of marriage to

6

homosexual couples exercising the liberty protected by the

7

Constitution. Surely not the encouragement of procreation

8

since the sterile and the elderly are allowed to marry.”

9

Those were pathetic words, and they indicate in

10

conjunction with what we’ve previously briefed and the

11

illustrative quotes from Griswold and the Lawrence majority

12

why the right to marry the person of one’s choice without

13

regard to sexual orientation is a right that should be

14

recognized as part of due process.

15

Relief should also be granted to plaintiffs

16

because as I indicated no other group in society is

17

required to establish its parenting competency in order to

18

marry, and it is constitutionally discriminatory to impose

19

such a burden on gay and lesbian individuals.

20

Again, this especially follows not because there

21

is no legal obligation to procreate, or attempt to

22

procreate, or adopt as a condition of marriage, but also

23

because groups whose children have been documented to have

24

poor outcomes in life, those who are economically less

25

fortunate, those who are less educated, those who have

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FRIDAY, MARCH 7TH, 2014

1

previously been married are neither barred from marrying,

2

nor required to establish parenting competency as a

3

condition of marrying.

4

And as Professor Rosenfeld pointed out during his

5

testimony,

6

“If the right to marry were limited to

7

individuals and groups most likely to produce children

8

without optimal outcomes, the right would be limited to

9

wealthy, highly-educated, suburban Asian Americans.”

10

And that, of course, is not the law, nor could it

11

be.

12

Since we have spent about eight days eliciting

13

testimony it would be a shame not to discuss the evidence

14

even though for the reasons I’ve just indicated I don’t

15

think we need to get that far. But even if you don’t decide

16

that plaintiffs are entitled to relief on the grounds

17

already discussed the record made also establishes that

18

there is utterly no rational basis for Michigan’s ban on

19

same-sex marriage.

20

The witnesses we offered are all at the top of

21

their fields. They are all absolute authorities. They are

22

all straightforward. They are all candid. They all know

23

what they’re talking about, and don’t try to put a spin on

24

it. They are top authorities in sociology, psychology,

25

history of discrimination, demography of gays and lesbians,

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FRIDAY, MARCH 7TH, 2014

1

and the history of marriage.

2

State defendants’ witnesses were not. The

3

testimony showed that, especially to Professor Regnerus and

4

Professor Allen, their witnesses are part of a fringe that

5

is fighting desperately for inequality. They are a

6

desperate fringe.

7

Both plaintiffs and the State defendants’ experts

8

--

9

THE COURT: You’ve got to speak into the

10

microphone.

11

MR. MOGILL: Both plaintiffs and State defendants’

12

experts agree that there is a strong consensus in the

13

social science communities that children raised in same-sex

14

families have outcomes comparable to those of children

15

raised in opposite sex families. The State defendants’

16

witnesses disagree with this consensus, but no one disputes

17

its existence.

18

The consensus exists for very valid reasons. It

19

is a product of decades of research not just -- and

20

clinical experience. Not just about children being raised

21

in same-sex families, but research into the family as a

22

structure in its many, many forms, intact heterosexual

23

married families, step-families, families with adopted

24

children, families with foster children, families that have

25

experienced divorce.

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FRIDAY, MARCH 7TH, 2014

1

The small scale studies, convenient studies, as

2

Professor Brodzinsky testified, the bread and butter of

3

psychology research, have been attacked by defendants’

4

experts who are not psychologists, and who do a different

5

kind of research. And it is clear that there are strengths

6

and weaknesses to all different kind of studies.

7

For economists who are used to working with large

8

data sets and numbers, a small sample may seem an odd way

9

to go, but it does allow you to go deeper to get to know

10

the people, and to get different information. We now have

11

over a 150 studies on same-sex parenting alone and you

12

couldn’t even count the number on family structures and

13

dynamics in general.

14

It is well established that what correlates with

15

good child outcomes, what makes for good parenting, and

16

what best predicts positive development in children has

17

nothing to do with the sexual orientation of the parents.

18

What counts as testified to by Professor Brodzinksy and,

19

again, the State defendants presented no psychologists, the

20

quality of the relationship between the parents, the

21

quality of the parent-child relationship, parenting

22

characteristics, warmth, empathy, sensitivity to child’s

23

needs, educational opportunities for the child, resources,

24

support available to the family, good mental health of the

25

parents. Sexual orientation of the parents is utterly

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FRIDAY, MARCH 7TH, 2014

1

unrelated to any of these qualities.

2

While there is a popular belief in some corners

3

that kids need a mom and a dad to thrive, Professor

4

Brodzinsky’s testimony is clear that children do equally as

5

well with well-qualified parents regardless whether it’s a

6

mom and a dad, two moms, or two dads. And regardless of

7

family type, there are broad variations across families and

8

sometimes over time within families, and parental roles and

9

styles. There is no single, correct parenting model and

10

certainly not the Ozzie and Harriet model that the State

11

defendants would have this Court conclude as a rational

12

basis for inequality.

13

In response to the plaintiffs’ evidence, the

14

State defendants’ witnesses, two economists, a family

15

studies professor whose contribution to the case was a

16

study about -- a review, excuse me, of studies of same-sex

17

parenting that ended in 2005, or stops at 2005, and one

18

utterly discredited sociologist, these witnesses for the

19

State assert that the studies showing a no difference

20

outcome are insufficient and inadequate, that research in

21

this area is, quote, preliminary, quote, in its infancy,

22

that we need to hit the pause button, and to meet a very

23

high research threshold for another 25 years or so. And

24

Professor Marks also claimed that the consensus is the

25

product of liberal group think.

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FRIDAY, MARCH 7TH, 2014

1

They’re wrong on all three counts. Small sample,

2

convenient studies are not just the bread and butter of

3

psychology and as already mentioned they look in different

4

ways at what they are examining than the large data set.

5

It is correct that an individual small scale

6

study doesn’t prove a whole lot. No one from our side has

7

said that it does. What counts, what matters, is when you

8

have a number of different studies, different times,

9

different locations, different subjects coming to the same

10

conclusion. This replication validates what would be

11

insufficient to be valid in a single study or just a couple

12

of studies and we have that in spades.

13

It’s as if the State defendants are looking at a

14

brick home and they’re only willing to see individual

15

bricks, and not how they connect with one another and are

16

bound together.

17

Professor Marks’ claim of a liberal group think

18

because the American Psychological Association Policy

19

Statement in 2005, was adopted by a vote of a 157 to zero

20

is particularly curious. It’s an entirely subjective

21

opinion. But the same psychologists who he would label as

22

liberal and for some reason apparently predisposed not to

23

recognize differences in outcomes of children raised in

24

same-sex households, may also be presumed to oppose racial

25

discrimination. And yet you heard from the testimony here

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FRIDAY, MARCH 7TH, 2014

1

today that outcomes have been found to vary by these same

2

folks on the basis of race which I think utterly belies

3

Professor Marks’ claim.

4

Also, it’s not just the American Psychological

5

Association that’s in this consensus, it also includes the

6

American Medical Association, and the American Academy of

7

Pediatrics neither of which organization I think anyone

8

would put any particular political label on.

9

Ultimately with respect to the evidence the

10

questions raised and the claims made by the State

11

defendants’ witnesses go not to the quality of parenting by

12

same-sex couple parents, but to the impact on children of

13

prior family breakups and other transitions since everybody

14

agrees that the vast bulk of the children who historically

15

and this is obviously changing as marriage equality is

16

coming into more and more states, and more and more planned

17

same-sex families are raising children from birth, but the

18

vast bulk of the children being raised in same-sex families

19

historically were originally part of an opposite sex family

20

that broke up.

21

The State defendants’ witnesses’ testimony --

22

excuse me, the consensus of the “no difference” outcome is

23

further confirmed by Professor Rosenfeld’s high-quality

24

study published in “Demography” in 2010, based on the 2000

25

United States Census. That was a fully reliable study.

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FRIDAY, MARCH 7TH, 2014

1

You have seen and heard Professor Rosenfeld

2

testify. You have seen and heard Professor Allen and

3

Professor Price, two of the three authors of the critique

4

testify.

5

I ask the Court to consider the testimony,

6

consider the credibility, consider the open-mindedness or

7

bigotry associated with any witness. And read carefully

8

Professor Rosenfeld’s study and his reply. Read carefully

9

the critique and see which one adds up and which doesn’t

10

because you will find that Professor Rosenfeld’s processes,

11

his logic, his explanation are clear and straightforward.

12

You will find when you read the critique that is an

13

exercise in obscuration and double speak, and had zero

14

credibility.

15

Ironically, the “no difference outcome” -- “no

16

difference consensus” is also corroborated by Professor

17

Allen to some degree, by Professor Allen’s 2013 study based

18

on the 2006 Canada Census.

19

Professor Allen testified that he assessed

20

graduation rates of 17 to 22 year olds in Canada based on

21

the 2006 Canadian Census. He posited that there was a 35

22

percent difference approximately in graduation rates of

23

kids raised in opposite sex married households and kids

24

raised -- excuse me, kids living in opposite sex married

25

households, and kids living in same-sex households.

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Professor Price came in and said that Professor

2

Allen’s study shows the effect of being raised in a same-

3

sex household. When pushed, Professor Allen conceded that

4

his study was just a snapshot of who was living in a home

5

in 2006, that the figures he touted purporting to show this

6

35 percent difference were based only on who was living

7

where as to kids who had been born between 1979, and 1984,

8

and as to whom he had zero information as to where they

9

were living, or who they were living with, or what they

10

went through before they were at the earliest 12 for the 17

11

year olds, at the earliest 17 for the 22 year olds.

12

It turns out that there was even a concession

13

about this limitation at Footnote 9 in Professor Allen’s

14

study which states in its entirety,

15

“The census is not a panel and provides only a

16

snapshot of the population. As a result, this paper does

17

not study the effect of growing up in a same-sex household,

18

but rather examines the association of school performance

19

for those children who lived with same-sex parents in

20

2006.”

21

Now, if you recall, one of the strengths of

22

Professor Rosenfeld’s study is that it controlled for

23

residential stability for five years which is a measure

24

available in both the U.S. Census of 2000, and the Canadian

25

Census that Professor Allen used from 2006.

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While Professor Allen’s paper discusses only who

2

was living where in 2006, it turns out that he had also run

3

a five-year stability check. He doesn’t discuss it in this

4

paper. He buries it in an appendix with one terse reference

5

in a footnote. And what do his own results show when you

6

control for parental education and marital stability and

7

five years of residential stability, ta-da, no

8

statistically significant difference in outcomes.

9

Even more “fraudulent” and I use that term

10

intentionally than Professor Allen’s presentation was

11

Professor Regnerus’ approach. I think it would be

12

impossible to find a more reviled, rejected social science

13

study in the past several decades than Professor Regnerus’

14

“New Family Structure” study.

15

Even that study when properly analyzed as it was

16

because the data were okay, is what’s Professor Regnerus

17

did with the data that wasn’t. When the data are properly

18

analyzed as they were by Professor Rosenfeld they, too,

19

confirm it’s not the sexually orientation of the parents

20

that matters, it’s the instability and transitions that

21

kids go through that correlates with outcome differences.

22

We learned some startling things about Professor

23

Regnerus’ study. He invited anti-marriage quality

24

activists, Luis Tellez and Maggie Gallagher to provide,

25

quote, feedback, and quote, optimal time lines, and quote,

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FRIDAY, MARCH 7TH, 2014

1

their hopes for what emerges from this project while he was

2

designing the study. He then constructed a study design

3

that defined as a parent someone had never lived with the

4

child and may not even have met the child. That is a study

5

designed to produce skewed results. When the very small

6

number of apples-to-apples comparisons available from his

7

study comparing the two subjects who had, in fact, been

8

raised from birth to 18 in a same-sex household with

9

children raised in stable opposite sex households the

10

results were, again -- they turned out just fine.

11

Also curious is the fact that the study was

12

rushed to conclusion. He submitted his article before the

13

data collection was fully complete.

14

Interestingly, Professor Regnerus asked both

15

plaintiffs’ witness Professor Gates and plaintiffs’ witness

16

Professor Rosenfeld to consult with him on the study. Both

17

declined and for very good reasons.

18

On the same day he was testifying here in this

19

courtroom the Chair of his own Sociology Department at the

20

University of Texas at Austin issued a press statement that

21

he commented -- he was asked to comment on and he did. That

22

statement made clear that his views do not represent the

23

views of the University of Texas at Austin Sociology

24

Department, and are his own views, and that the Department

25

views his study as having been fundamentally flawed

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FRIDAY, MARCH 7TH, 2014

1

conceptually and methodologically.

2

His own consultant, Professor Amato, also later

3

strongly criticized him. And, of course, we know that the

4

American Sociological Association comprised of

5

approximately 14000 Ph.D.’s in sociology around the country

6

made clear its criticism of his study, its utter rejection

7

of his study in an amicus brief filed in the United States

8

Court in the Perry and Windsor cases, a decision made by

9

the elected council of the ASA unanimously.

10

One more point about Professor Regnerus. He

11

referred to the question before this Court as, quote, a

12

scientific question, unquote. And I think that reflects a

13

large part of what the State defendants’ argument has been.

14

They want to try to cast this matter as a social science

15

experiment: Should there be same-sex families? Should there

16

be children being raised by same-sex parents?

17

Life is not an experiment, it’s reality. In fact,

18

this case is not about experimental this or that. It’s

19

about real people’s lives, real children’s lives, and

20

vulnerabilities and needs.

21

Lesbian and gay couples exist and the question of

22

whether they are entitled to the same rights as opposite

23

sex families and children goes much deeper than any social

24

science experiment. Gay and lesbian families are going to

25

continue to exist. They’re going to continue to choose

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FRIDAY, MARCH 7TH, 2014

1

either to have children or not have children. Where they

2

have children, these children will continue to need the

3

additional security, support, stability, and status that

4

will come from their two moms or their two dads being able

5

to marry. These children will continue to be harmed by the

6

inability of their parents to provide them with those extra

7

benefits if the law does not change.

8

The lives of these families will not in any way

9

discourage heterosexual couples from marrying; discourage

10

heterosexual couples from deciding whether or not to have

11

children or adopt children, or whether or not to divorce.

12

There is absolutely no evidence that gay and lesbian

13

couples’ freedom to marry will in any way harm opposite sex

14

couples marriages in any way. And the State’s arguments to

15

the contrary are irrational.

16

This Court properly framed the legal question at

17

page 5 of it’s opinion denying the cross-motions for

18

summary judgment. Whereas, here plaintiffs are part of a

19

group that has endured historic patterns of disadvantage.

20

The rational basis calculus gives less deference to the

21

State. The rational basis, quote, must be rooted ‘in the

22

realities of the subject being addressed’, unquote. And the

23

Court was quoting, of course, from Heller v Doe.

24

Judged in light of this standard the State

25

defendants’ claim of a rational basis for protecting the

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FRIDAY, MARCH 7TH, 2014

1

interest of children by providing them with biologically

2

related role models of both genders and promoting the

3

transition of utterly -- excuse me, of naturally

4

procreative relations into stable unions does not come

5

close to passing muster.

6

It is not rooted in reality. It is, in fact, not

7

just unrealistic, it is harmful and a series of non

8

sequitors.

9

We have the burden of proof in this matter, but

10

we’ve met it. The Michigan Marriage Amendment violates

11

equal protection for all of these reasons I’ve just

12

discussed.

13

I’ve got a couple more points about the State

14

defendants’ rationales. The State defendants consistently

15

argued to the Court the regulation of marriage is a matter

16

for the states and by and large that’s true as we all know.

17

But what they consistently overlook and defendant Lisa

18

Brown does not overlook is that right to regulate marriage

19

is subject to constitutional limitations, and that’s why

20

we’re here.

21

As to the State defendants’ argument that this

22

Court should not invalidate a constitutional provision

23

enacted by the voters, the Supreme Court has provided a

24

ready answer to that as well.

25

“Fundamental rights may not be submitted to vote.

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FRIDAY, MARCH 7TH, 2014

1

They depend on the outcome of no election.”

2

The Supreme Court said that in West Virginia

3

Board of Education v Barnett in 1943. It was applied in

4

terms of this case. In the 1990s, in the Romer v Evans

5

decision.

6

I want to talk briefly about adoption, the second

7

parent adoption claim. As Professor Sankaran, a clinical

8

professor at the University of Michigan Law School, and a

9

wonderful expert on the foster care system, as he

10

testified,

11

“In the absence of an opportunity for the second

12

parent to adopt, the non-legal parent is continuously

13

vulnerable even if nothing untoward happens to the legal

14

parent. There is no equivalent legal mechanism or set of

15

mechanisms that can match the right that follow from

16

parenthood.

17

“The state and children in foster care would

18

benefit substantially from expanding the pool of potential

19

adoptive parents who can provide children in foster care

20

with what they need most: loving, permanent homes that will

21

allow them to exit the foster care system.

22

“It is also irrational as a matter of law for the

23

state to allow April and Jayne to be certified as a couple,

24

as foster parents and yet not to be permitted to adopt each

25

other’s children.

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FRIDAY, MARCH 7TH, 2014

1

“And it is irrational and cruel that there is one

2

circumstance in which the non-legal parent can adopt their

3

partner’s child and that’s if the legal parent dies.”

4

Then they have to stand in line and don’t get any

5

priority line and may or may not be successful in adopting.

6

But if the non-legal parent is good enough to adopt after

7

their partner dies and not good enough to adopt while their

8

partner is alive that is a level of cruelty in our law that

9

I don’t think the Constitution counts on.

10

I want to end with talking for a few minutes

11

about tradition. Tradition in two respects. The so-called

12

traditional notion of marriage which has also been

13

something that’s been discussed a lot and discussed by

14

Professor Cott in her testimony. And the role of tradition

15

in the law and how that role applies in this case.

16

Last Friday, Professor Cott gave us all a

17

wonderful lesson in the history of the institution of

18

marriage in the United States. And there are several

19

important points that we should take away from that

20

discussion. The whole notion of a traditional notion of

21

marriage is historically inaccurate. There is no single

22

definition of traditional marriage. It is an institution

23

that has continually evolved over time. Within the span of

24

the United States history, marriage has evolved from a

25

hierarchical institution with asymmetrically assigned

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FRIDAY, MARCH 7TH, 2014

1

gender roles to one in which women have achieved equality

2

within the relationship in opposite sex marriages. A

3

relationship in which the condition -- the importance of

4

continuing mutual consent of spouses has been strengthened

5

by easing conditions for exit through the enactment of No-

6

Fault divorce laws in an institution as to which prior

7

racial barriers have been eliminated most notably, of

8

course, in Loving v Virginia in 1967.

9

Today, marriage as it has evolved, as it exists

10

as a matter of law, not some idealist notion that some

11

people would have, or a different idealistic notion that

12

somebody else has, as a matter of law it is an entirely

13

gender neutral institution with respect to rights to

14

obligations as I’ve already mentioned.

15

Professor Cott also appropriately noted that at

16

each stage where these qualitative changes were coming,

17

there was some fierce opposition. Fear that the institution

18

of marriage would be destroyed by women having equal rights

19

in marriage, by No-Fault divorce, by allowing marriages

20

between people of different races. It’s unnatural, it’s not

21

part of a divined plan, a litany of objections. And, of

22

course, time has shown those objections to have been

23

unfounded.

24

In fact, time has shown that the tradition that

25

has been most important in marriage has been the tradition

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FRIDAY, MARCH 7TH, 2014

1

of being able to change with the changes that accompany the

2

times, changes in social relations, changes in political,

3

economic, ethnical conditions, that the changes in -- that

4

the capacity for change has been core, of core value in the

5

capacity of marriage, marriage to survive and thrive.

6

And, finally, with respect to Professor Cott, she

7

noted that the trend toward legalization of marriage

8

equality in the United States is consistent with these

9

historical trends in the institution.

10

Tradition within the law. As lawyers, we know

11

that tradition on a day-to-day basis is of great value in

12

the law and in the legal system as a whole. It provides

13

stability. It provides predictability. But tradition in the

14

law as a whole including in constitutional law also

15

includes a tradition of being able to and, in fact,

16

changing as conditions and times change and the need for

17

evolution of what had been longstanding legal principles

18

becomes paramount.

19

In Williams versus Illinois in 1970, the Supreme

20

Court stated that,

21

“Neither the antiquity of a practice, nor the

22

fact of steadfast legislative and judicial adherence to it

23

through the centuries insulates it from constitutional

24

attack.”

25

And to return once more to Lawrence v Texas and

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FRIDAY, MARCH 7TH, 2014

1

to paraphrase slightly, history and tradition are the

2

starting point but in all cases the ending point of the

3

court’s inquiry.

4

So how does this Court decide if we’re at a

5

tipping point? How does this Court decide whether a rule

6

that has been in place obviously throughout American

7

history is now a rule that is at a point where as a matter

8

of constitutional law it must be discarded.

9

In Lawrence the Court used two phrases that I

10

think inform that portion of the task this Court faces.

11

“As a matter of constitutional interpretation

12

when an emerging awareness, when an emerging recognition

13

provide us with the ability to see...” Those are the

14

phrases from the Court. That’s where the quote ended.

15

“...provide us with the ability to see a form of

16

discrimination that previously regrettably went unseen by

17

too many people it becomes time to act.”

18

We are at and I suggest past that tipping point.

19

There is, in fact, a well-emerged awareness, a well-emerged

20

consensus. That denial of the right to marry to same-sex

21

couples is a form of discrimination that our society can no

22

longer tolerate.

23

I hope that one day April and Jayne -- and I want

24

to mention here that I’m speaking for all of us who have

25

been co-counsel for them and their children, it’s been an

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FRIDAY, MARCH 7TH, 2014

1

enormous honor to have the opportunity to represent them. I

2

hope that one day April and Jayne can look back at this

3

experience, look at each other and say something similar to

4

what Mildred Loving said on the 40th anniversary of the

5

decision in her case, and unfortunately her husband had

6

passed by then.

7

“We made a commitment to each other in our love

8

and lives, and now add the legal commitment called marriage

9

to match.”

10

“Isn’t that what marriage is? I have lived long

11

enough now to see big changes. The older generations fears

12

and prejudices have given way and today’s young people

13

realize that is someone loves someone they have a right to

14

marry.

15

“Surrounded as I am now by wonderful children and

16

grandchildren not a day goes by that I don’t think of

17

Richard and our love, our right to marry, and how much it

18

meant to me to have that freedom to marry the person

19

precious to me even if others thought he was the wrong kind

20

of person for me to marry.”

21

For April and Jayne and their children and for

22

all the loving same-sex couples in the future who should

23

not have to endure the discrimination that others have

24

borne I ask you to find the Michigan Marriage Amendment

25

unconstitutional and -- the Amendment and the parallel

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FRIDAY, MARCH 7TH, 2014

1

statutes as violative of due process and equal protection.

2

Thank you, very much, Judge.

3

THE COURT: Thank you.

4

Mr. Pitt.

5

CLOSING ARGUMENT

6

MR. PITT: Good morning, your Honor.

7

THE COURT: Good morning.

8

MR. PITT: Good morning, everybody.

9

It has been an honor to represent Lisa Brown who

10

has taken a very clear cut and courageous stand in this

11

matter, and it’s also a real honor to be involved in the

12

case in general. I think this is a historic case, and I’m

13

going to be -- hopefully reflect back on this moment.

14

THE COURT: Speak into the microphone.

15

MR. PITT: Be able to reflect back on this moment

16

and proud being involved in such an important case.

17

Defendant Brown has been brought into this action

18

as the public official who can and will at the appropriate

19

time issue marriage licenses to same-sex residents of

20

Oakland County. Her allegiance is to this Court and this

21

Court alone. She is not required by law to follow the

22

contrary directives of any state official including

23

Attorney General Schuette. She will follow this Court’s

24

directive.

25

The Oakland County Clerk’s oath of office

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FRIDAY, MARCH 7TH, 2014

1

requires her to uphold the constitutions of the state of

2

Michigan and the United States. Her oath of office does not

3

permit her to discriminate against any couple wishing to

4

wed because of their race, religion, national origin,

5

political viewpoint or any other status that is

6

constitutionally protected.

7

She testified here in court very clearly that if

8

the ban on the same-sex marriage amendment were to be

9

lifted or did not exist she would immediately issue

10

marriage licenses to otherwise qualified same-sex couples.

11

She has testified that she is ready now to carry

12

out this duty and she will begin issuing marriage licenses

13

at the moment she is able to do so by law.

14

Her rationale for this position is clear. The

15

Michigan Marriage Amendment is of no legal consequence. The

16

U.S. Constitution guarantees that all citizens have certain

17

fundamental rights. These rights vest in very person over

18

whom the constitution has authority, and they are so

19

important an individual’s fundamental rights may not be

20

submitted to vote. They depend on the outcome of no

21

election.

22

Ten years ago Justice Kennedy said in Lawrence,

23

quote,

24

“Our laws and tradition afford constitutional

25

protection to personal decisions relating to marriage,

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FRIDAY, MARCH 7TH, 2014

1

procreation, contraception, family relationship, child

2

rearing and education.”

3

And he said, quote,

4

“Persons in a homosexual relationship may seek

5

autonomy for those purposes just as heterosexual persons

6

do.”

7

I would like to point out parenthetically that I

8

happened to be in the Supreme Court when that Lawrence case

9

was argued ten years ago, and I felt as though a change was

10

occurring there. I could see on the faces of the justices

11

what I interpreted was a sense of relief, that the tide was

12

beginning to change and that was ten years ago.

13

Justice Kennedy went on to say in the Lawrence

14

decision,

15

“At the heart of liberty is the right to define

16

one’s own concept of existence, of meaning, of the universe

17

and of the mystery of human life. Persons in a homosexual

18

relationship may seek autonomy for these purposes just as

19

heterosexuals do.”

20

Those bedrock principles that were laid down in

21

Lawrence ten years ago are here today, and need to be

22

implemented.

23

Lisa Brown, the Clerk, knows as everyone in this

24

courtroom knows that committed same-sex couples live

25

together as a family sometimes for decades. That these

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FRIDAY, MARCH 7TH, 2014

1

same-sex couples raise children together. Provide financial

2

stability for each other. Help each other in time of

3

illness. Help each other’s family members. And at the end

4

of life they are there to provide comfort and to say

5

goodbye. And this is regardless of the fact that they are

6

married or not married. It is the intimate relationship

7

that is entitled to constitutional protection which is at

8

the core of our concept of liberty.

9

So what has happened in our communities around

10

the nation in the last ten years since Lawrence was

11

decided? Has the Constitution changed? It is not the

12

Constitution that has changed, but the knowledge of what it

13

means to be gay or lesbian.

14

The Court cannot ignore the fact that the

15

plaintiffs are able to develop a committed, intimate

16

relationship with a person of the same sex but not with a

17

person of the opposite sex. The Court and the state must

18

adopt to this new reality.

19

The state through its experts have not challenged

20

this reality. Instead, the state and its experts have

21

engaged in what I would call breathtaking hypocrisy in its

22

effort to define marriage in the so-called traditional

23

sense. For the state and their experts the purpose of

24

marriage is to procreate. Under the state’s hypocritical

25

reasoning a post-menopausal woman or an infertile man does

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1

not have a fundamental right to marry because he or she

2

does not have the capacity to procreate.

3

Under this theory, a prisoner who does not have

4

conjugal access to a spouse cannot marry. This proposition

5

is just flat out irreconcilable with the right to liberty

6

that the Constitution guarantees everybody.

7

The liberty interest behind the right to marry is

8

so fundamental that county clerks like Lisa Brown are not

9

permitted to judge otherwise qualified couples to see if

10

traditional marriage will ensue. She, like the other 82

11

clerks in the state of Michigan have no discretion in

12

carrying out her duties. She does not inquire whether a

13

couple intends to have children, whether they intend to

14

live together. She makes no determination whether this

15

relationship will be good or bad for children, or make any

16

other type of personal assessment as to the nature of the

17

marriage relationship that is proposed.

18

The right to marry the person of one’s own choice

19

is so rooted in our notion of liberty that county clerks

20

may not interject personal opinion which may interfere with

21

that liberty right.

22

By failing to act she has, in essence, told these

23

homosexual couples and the entire world that their

24

otherwise valid relationships are unworthy of state

25

recognition. She no longer wishes to do that. She wants

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1

that to end.

2

Rather than protecting or supporting the families

3

of opposite sex couples, the Michigan Marriage Amendment

4

perpetrates inequality by holding that the families and

5

relationships to same-sex couples are not now nor will they

6

ever be worthy of recognition.

7

Whether a citizen is homosexual or heterosexual

8

in orientation they must be permitted to marry the person

9

of their choice. To do otherwise, homosexual couples will

10

forever be viewed and made to feel that they are second-

11

class citizens.

12

This state’s sanction and humiliation must end

13

and it must end now.

14

Now, the state through its experts has argued

15

that children raised by heterosexual couples do better than

16

children of same-sex couples. These arguments, however,

17

have not been supported by reliable studies.

18

The state has essentially conceded this when at

19

the end of each expert’s testimony they have elicited

20

testimony which I would call the fallback position. Each of

21

their experts have taken the fallback position saying, your

22

Honor, if you think our studies are not reliable, then you

23

probably should wait because we, as the experts, were

24

compiling data to strike down the Michigan Marriage

25

Amendment is too drastic and we have to wait, your Honor

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1

should wait until the data is firmed up so that there is

2

reliable evidence to support that type of action.

3

None of the experts that I heard from the state’s

4

side told us when this was going to happen. We don’t know

5

if they think that the data is going to be complete by the

6

end of this year, or the end of the decade, or 25 years

7

from now, but they have -- the state has taken this

8

fallback position due primarily because of the

9

unreliability of its evidence that the Court should take a

10

cautious approach in its decision-making on this particular

11

point. Clerk Brown says now is the time to act.

12

The evidence that the plaintiffs presented was

13

sufficient. Common sense is sufficient. The ten years since

14

Lawrence has informed us about what it means to be gay and

15

what has happened in those relationships, and I think it

16

would be an error and wrong for this Court to accept the

17

state’s fallback position that it should take a cautious

18

approach to this.

19

The state has not really been able to cite any

20

evidence to justify its fears. The state’s argument is

21

analogous to the arguments made in the case of City of

22

Cleburne versus Cleburne Living Center decided in 1985.

23

In that case, the City was concerned about

24

issuing a permit for a home for the developmentally

25

disadvantaged because of the fears of the property owners

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1

who lived near that facility. The Supreme Court held that,

2

quote,

3

“Mere negative attitudes or fear are not

4

permissible bases for treating a home for the mentally

5

retarded differently from apartment houses, multiple

6

dwellings and the like.”

7

Nothing that I heard in this trial justifies the

8

state’s fear that children will be harmed if same-sex

9

couples are allowed to marry. There is absolutely no reason

10

to take the cautious approach in this case.

11

The state has advanced a number of arguments but

12

none of them overcome the basic reality that same-sex

13

couples who cannot marry are not treated equally under the

14

law today. The harm to them is real. It is not abstract.

15

It’s not speculative.

16

Defendant Brown urges this Court to issue an

17

injunction against the enforcement of the Michigan Marriage

18

Amendment. She requests that the Court order, restrain

19

state officials from interfering in any way with the

20

issuance of marriage licenses to same-sex couples. The

21

Court’s order should make it clear that all 83 of

22

Michigan’s county clerks are required to issue these

23

licenses and that the failure to issue a marriage license

24

to any otherwise qualified same-sex couple will be deemed a

25

violation of this Court’s order.

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Are there county clerks who have personal or

2

religious objections to same-sex marriage? I suppose the

3

answer is probably yes. The Court’s order should make it

4

clear that these personal opinions must give way to the

5

directives of this Court’s order.

6

There is no automatic stay of an order granting a

7

request for an injunction. Whether a stay is granted if the

8

Court were to strike down the Michigan Marriage Amendment

9

as unconstitutional and grant an injunction against its

10

enforcement the state would have to ask for a stay. The

11

stay is automatically provided under the Court rules. The

12

Court would the be faced with the decision whether to issue

13

a stay or not.

14

I call the Court’s attention to the Sixth Circuit

15

opinion of Michigan Coalition of Radioactive Material Users

16

versus Griepentrog. There the Court said,

17

“We consider the same four factors that are

18

traditionally considered in evaluating the granting of a

19

preliminary injunction.”

20

THE COURT: I don’t mind hearing your argument on

21

a stay, but at this point that’s not an issue. Should it

22

become an issue I believe that notice has to be given to

23

all sides should that become an issue, and certainly would

24

welcome your decision, input and argument at that time. But

25

right now it’s not an issue, I don’t believe.

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1

MR. PITT: I understand. I would like to point out

2

today though that there is a need for an immediate

3

consideration of this issue because of the impact from the

4

DOMA decision, the Windsor decision. And I think the Court

5

is aware that if Michigan were to permit same-sex marriages

6

then the beneficiaries would be eligible for the benefits

7

of federal and state benefits. I think -- I just want to

8

point out just a few of these points.

9

An unmarried same-sex couple today cannot receive

10

a number of health related benefits. They cannot claim

11

leave under the Family and Medical Leave Act if a partner

12

becomes sick. They cannot get coverage for health care as a

13

spouse of a federal employee. They cannot be considered a

14

spouse for immigration purposes which could be very

15

important. They cannot participate in a survivor benefit

16

plan as a spouse of an active retired member of the

17

military. These are just but a few of the examples that the

18

courts have noted that the results of being denied a

19

marriage license for a same-sex couple has had profound

20

effect.

21

So the essence of what the Clerk is asking the

22

Court to do is, of course, you know, grant the injunction

23

and to do it as quickly as possible so that individuals who

24

had been denied equal protection for so long will have an

25

opportunity at the earliest possible time to take advantage

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1

of the federal and state benefits that they would be

2

entitled to.

3

As the Clerk has said throughout her testimony

4

and throughout her papers that she has submitted to the

5

Court, the Clerk stands before the Court ready to do her

6

duty at the moment the Court would permit her to do that.

7

And I remind the Court that when we were here in

8

October of last year when we argued the cross-motions for

9

summary judgment, I left the Court with the idea that time

10

is of the essence. I ask the Court if not now, when? Again,

11

I urge the Court to take into account that time is of the

12

essence and allow the Clerk to begin to do her duty at the

13

earliest possible time.

14

Thank you, your Honor.

15

THE COURT: Thank you.

16

Counsel?

17

CLOSING ARGUMENT

`

18

MS. HEYSE: Good morning, your Honor.

19

Assistant Attorney General, Kristin Heyse, on

20

behalf of State defendants.

21

Your Honor, again I want to tell you what a

22

pleasure it has been to be before you on this case.

23

THE COURT: Thank you.

24

MS. HEYSE: I know that I speak for my entire team

25

when I say that to you. You’ve repeatedly commended the

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1

parties for their cooperation and collegiality throughout

2

these proceedings.

3

But you and your staff should also be commended.

4

Your courtroom certainly fosters that type of atmosphere

5

and you and your staff have been most gracious, so thank

6

you.

7

THE COURT: I appreciate it.

8

MS. HEYSE: I’m going to briefly touch on the

9

issue of second parent adoption and just point out to you,

10

your Honor, that there is no fundamental right to adopt.

11

And the children in this particular case have, in fact,

12

been adopted so that’s not the issue here.

13

Plaintiffs’ disagreement with the state’s methods

14

for adoption do not make them unconstitutional. And I think

15

that this Court has made very clear that what’s at issue in

16

this case is the constitutionality of the Michigan Marriage

17

Amendment and that’s what I intend to address here today.

18

Now, after listening to the parties’ closing

19

remarks in this case, it is clear, your Honor, that there’s

20

a lot of emotion surrounding these issues. And it would be

21

very easy to get lost in that emotion and lose our focus.

22

But, your Honor, this is a rational basis case about one

23

simple question: Is there any conceivable basis on which a

24

reasonable voter might have decided that marriage is

25

between a man and a woman. In other words, could reasonable

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1

people disagree on this issue. If they could, then this

2

Court must rule in State defendants’ favor.

3

Now, there is one thing that I would like to

4

address at the outset and it’s rather unfortunate that I

5

actually have to do so. It’s disappointing that rather than

6

debate the merits of social science, plaintiff’s attempt to

7

make this case about something it’s not. This case is not

8

about religious beliefs of the State’s witnesses. It’s

9

about science, data. It’s about what’s best for the

10

children of the state of Michigan.

11

The fact that someone may have deeply religious

12

beliefs does not mean that they cannot be an objective

13

social scientist. Unfortunately, plaintiffs attempt to

14

impose a religious test on who can be an expert witness.

15

But these experts testified that science, the data, not

16

their religious views have led them to the conclusions that

17

they have reached. And that science, your Honor, is what

18

should decide this case.

19

As we’ve seen over the course of this trial,

20

there are multiple grounds for supporting Michigan’s

21

Marriage Amendment. First, it is rational to believe that

22

it’s a good thing for a child to have both a mom and a dad.

23

Even plaintiffs’ experts didn’t dispute that point. It is

24

rational to believe that society should promote that ideal.

25

And at the very least, your Honor, it’s rational to proceed

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1

with caution before saying that eliminating a mom or a dad

2

from raising a child in marriage won’t affect children

3

especially when the science in this area is so unsettled.

4

Plaintiffs bear the burden of negating every

5

single rational basis a voter might have had, a showing

6

that 2.7 million voters who all reached the same conclusion

7

did not have among them a single rational reason for their

8

vote. Plaintiffs have not met their burden in this case.

9

And for that reason, their claim must fail.

10

To be clear, questions like why not allow same-

11

sex marriage, or what harm would it cause to opposite sex

12

marriage are not appropriate here. Those are the sorts of

13

questions that the voters got to answer when they decided

14

to pass the Marriage Amendment, and their votes ought to

15

count for something.

16

This Court has a different question to answer.

17

Did plaintiffs prove that there is no rational basis for

18

the Marriage Amendment? The evidence showed that they did

19

not.

20

In my Opening, I provided you with a general

21

overview of what the state was going to address at the

22

trial, and we did address each and every point. While we

23

did not have any burden in this case we showed that there

24

are rational reasons for the Marriage Amendment.

25

First, moms and dads are important.

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1

Second, same-sex marriage and parenting is too

2

new to make any definitive conclusions.

3

Third, caution should be taken before eliminating

4

a mom or a dad from raising a child in marriage.

5

And, fourth, such a major change in a key social

6

institution should be left for the people of the state of

7

Michigan to decide.

8

Because there are no rational -- I apologize.

9

Because there are rational reasons for it, the Marriage

10

Amendment is not unconstitutional.

11

Again, plaintiffs have failed to meet their

12

burden in this case because moms and dads, your Honor, are

13

important. And the importance of moms and dads is very

14

real.

15

Plaintiffs have failed to show that it was

16

irrational for the people of Michigan to want to encourage

17

the raising of children by a mom and dad recognizing that

18

gender diversity and parenting is what’s best for kids.

19

Indeed, plaintiffs’ witnesses did not say throughout the

20

course of the trial that moms and dads are not important

21

because they are. In fact, plaintiffs’ expert psychologist,

22

Dr. Brodzinsky, conceded that point on the very first day

23

of trial. Additionally, plaintiffs’ expert historian, Dr.

24

Cott, agreed that different sexes bring different

25

contributions to parenting, that each gender brings

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FRIDAY, MARCH 7TH, 2014

1

something different to the table, and that’s a good thing.

2

Plaintiffs’ expert witness, Dr. Brodzinsky, also

3

acknowledged that mothers and fathers have unique

4

characteristics. He states that mothers tend to be more

5

emotion focused. They tend to be more calming and soothing

6

with their children. Mothers are more physically

7

affectionate with their children, and they’re more

8

linguistically oriented.

9

Fathers, on the other hand, he stated are more

10

playful, more boisterous in their interactions with their

11

children, and more task oriented. The fact of the matter is

12

that men and women are different. Mothers and fathers are

13

not interchangeable, and they’re certainly not dispensable.

14

The evidence also supports that being born and

15

raised by a biological mother and father is not

16

inconsequential. State defendant’s expert, Dr. Joseph

17

Price, opined that when he said, quote,

18

“The ideal environment for raising a child is to

19

be raised by a father and a mother and particularly if the

20

child is biologically related to both parents, and

21

particularly if those parents are married.”

22

There is a benefit to a biological connection

23

between a mom, a dad, and a child. Therefore, the people’s

24

decision to retain a definition of marriage that encourages

25

the raising of children by a biological mother and father

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FRIDAY, MARCH 7TH, 2014

1

was not irrational.

2

The fact of the matter is, your Honor, that laws

3

do shape our behavior. And the goal in defining marriage as

4

between one woman and one man is to encourage certain

5

ideals.

6

Now, this is not to denigrate other family

7

structures, but to promote what the majority of the people

8

think is the best environment for raising children. This is

9

not to suggest that there aren’t other kinds of effective

10

parents and parenting structures. Clearly, there are.

11

Indeed, there are all kinds of parents across a broad

12

variety of family structures. But the evidence shows that

13

there are benefits to a child being raised by both a mom

14

and a dad. Therefore, plaintiffs have to meet their burden

15

to show that the people were irrational in retaining the

16

definition of marriage that supports raising of children in

17

that environment.

18

Second, your Honor, plaintiffs have failed to

19

show that it was irrational for the people of Michigan to

20

maintain the definition of marriage as between a man and a

21

woman because same-sex marriage is just too new. Everyone

22

in this trial agreed that the notion of same-sex marriage

23

is relatively new in this world and in this country. In

24

fact, no society anywhere has had even a single

25

generation’s worth of experience with same-sex marriage.

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1

Plaintiffs claim that there is no historical

2

definition of marriage. However, their expert, Dr. Cott,

3

conceded that marriage has always been between a man and a

4

woman in the state of Michigan. In fact, Michigan has never

5

recognized any other definition.

6

And plaintiffs’ experts also conceded that there

7

is no comprehensive study done to date on children actually

8

raised by same-sex married couples. Thus, the evidence

9

supports that it was rational for the people of Michigan to

10

maintain a definition of marriage as between a man and a

11

woman until we have more information about same-sex

12

marriage.

13

Third, plaintiffs have failed to show that the

14

people of Michigan were irrational in maintaining the

15

definition of marriage because the social science on same-

16

sex marriage and parenting is just too uncertain.

17

As this Court may recall, soon after

18

Massachusetts allowed same-sex marriage in 2004, the

19

American Psychological Association, or the APA, came out

20

with its bold statement that, and I quote,

21

“Not a single study has found children of lesbian

22

or gay parents to be disadvantaged in any significant

23

respect relative to children of heterosexual parents.”

24

Plaintiffs rely heavily on that statement to

25

argue that there is a clear consensus among professional

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1

organizations and that there is no rational basis for the

2

Marriage Amendment. They want this Court to believe that

3

this issue is settled and not debatable.

4

As Professor Marks testified this policy

5

statement is used in just about every same-sex marriage

6

case around the country. However, if this trial has proved

7

anything, your Honor, is that this area is unsettled, and

8

this area is entirely debatable, and the issue as to

9

whether there is truly no difference in the outcomes for

10

children being raised by same-sex couples is not clear.

11

And, your Honor, if this matter and issue is at

12

least debatable, this Court must rule in the state’s favor.

13

The evidence shows that there are problems with this “no

14

differences consensus.” Not only are there deficiencies in

15

the APA position statement itself, but our experts

16

testified that the studies that the APA relied on in making

17

that statement are also deficient.

18

Our experts also testified that there are, in

19

fact, studies that have actually found differences in

20

outcomes, and that was the Regnerus study, the Price Allen

21

and Pakaluk study, and the Allen study analyzing the

22

Canadian Census data.

23

As to the APA position itself, Dr. Marks noted

24

the extreme nature of that statement and after hearing that

25

the APA had affirmed that position in 2011, he testified

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1

that raised his curiosity. He wondered how could such a

2

large organization with such differing viewpoints agree on

3

such a controversial issue with a 157 to zero vote. He

4

asked, is that science truly that settled? Is it entirely

5

clear that there is no difference between children being

6

raised in a same-sex household and children being raised by

7

a mom and a dad, or is there something else going on,

8

something that Dr. Marks called scientific group think.

9

To him, as he testified there was an advocacy

10

position being taken that may not have any basis in social

11

science. So what did he do?

12

He began exploring further, reading some of the

13

underlying studies that formed the basis for the APA

14

position, and he noticed something troubling. The sample

15

sizes seemed unusually small, and there were other

16

questionable features about those studies. So he took it

17

upon himself to review all 59 studies forming the basis for

18

the APA position statement.

19

Now, your Honor, this was unfunded research. It

20

was done entirely on his own. No one asked him to do this,

21

and he spent a lot of time carefully analyzing each one of

22

those studies. And what did he find? He testified that he

23

found that those studies that were relied on by the APA are

24

not methodologically sound.

25

First, he testified that the vast majority of

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1

those samples used in the studies were small, non-

2

representative samples of privileged, white lesbian

3

mothers.

4

He testified that only a very small number

5

involved gay fathers in terms of child outcomes. And very,

6

very few of them, if any, were ethnically or racially

7

diverse even though everyone agrees that the same-sex

8

community itself is diverse.

9

And of the 59 published studies that he reviewed,

10

45 or about three-quarters of them were based on convenient

11

samples of less than 100 participants. Several studies were

12

unusually small with one being the Wright study in 1998,

13

having only five participants.

14

As Dr. Marks testified, once you took out

15

duplicates and those studies that didn’t even look into

16

child outcomes you were left with 19 studies that had an

17

average sample size of 36.

18

In addition, he noted that participation in these

19

studies is not random. Participants are often recruited or

20

they’re self-selected volunteers. And Dr. Marks provided

21

several examples of that in his testimony.

22

These small convenient samples are of limited

23

value other than perhaps to psychologists. All of the

24

state’s experts testified that these convenient samples

25

while convenient have a high likelihood of bias by

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volunteers and they have low levels of external validity.

2

Basically, your Honor, any information that’s gleaned from

3

those convenient samples cannot and should not be broadened

4

beyond the narrow specific group of individuals that are

5

part of that sample. From a social science view, they

6

cannot and should not be used to make broad based claims as

7

to the population as a whole.

8

Second, the studies that he reviewed did not

9

include proper comparison groups. Of the 59 published

10

studies, 26 did not even include a heterosexual comparison

11

group. So only 33 published studies did. Of those 33

12

studies, 13 of the heterosexual comparison groups were

13

actually single parents and not couples.

14

Again, as this Court heard repeatedly throughout

15

the trial having a proper comparison group is important. I

16

don’t think I ever heard the term “apples-to-apples” so

17

much in my life.

18

Third, there actually were studies that found a

19

difference. Doctor Marks clearly and easily found two

20

studies that refuted the APA’s claim, and those were the

21

Sarantakos’ studies from 1996, and 2000. So even though the

22

APA’s brief only cited one in a footnote and tried to down

23

play it the reality is that they did exist. Thus, the APA’s

24

claim of no studies existing was false.

25

Fourth, Dr. Marks testified that these studies

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looked at soft, unverifiable outcomes rather than hard

2

verifiable outcomes that are more reliable.

3

And, fifth, Dr. Marks stated that these studies

4

are not sufficient to make any definitive statement

5

regarding long-term outcomes for children. As he testified,

6

very few comparison studies examine critical societal

7

outcomes during late adolescent or early adulthood.

8

So as Dr. Marks made clear the APA brief is

9

entirely lacking in substance, and its position statement

10

blurred the lines between science and advocacy. He stated

11

as well as our other experts that these studies are

12

preliminary at best. And compiling a large number of them

13

together does not make it any less deficient.

14

But addition to the deficiencies of these small

15

convenient sample studies relied on by the APA, we also

16

provided evidence that there are large population-based

17

studies that do actually show a difference between children

18

being raised in same-sex households and those being raised

19

by a mother and father. Those studies are from Dr.

20

Regnerus, Price, and Allen, State defendants’ expert

21

witnesses.

22

As Dr. Regnerus testified about his survey data

23

collection project the National Family Structure Study, or

24

the NFSS as we’ve all come to know it, that particular

25

study included high quality data. And that was acknowledged

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by plaintiffs’ own expert, Michael Rosenfeld.

2

Doctor Regnerus’ NFSS study was the first to call

3

into question this no differences claim using the

4

population base study. He testified that he conducted a

5

large population base study of young adults which included

6

248 respondents who had reported that their parents had

7

been in a romantic relationship with someone of the same

8

sex while they were growing up. These respondents were

9

between the ages of 18 and 39. Notably, those children who

10

identified a parent as having had a same-sex relationship

11

self-reported outcomes that were less favorable than those

12

whose biological parents were and remain married. And

13

despite all the criticisms and controversies surrounding

14

the NFSS that particular study was never retracted from the

15

journal that it was published in.

16

Both plaintiffs and State defendants’ expert

17

witnesses agree that conducting high quality empirical

18

studies on same-sex parenting is challenging for a variety

19

of reasons, not the least of which is that this is such a

20

small population of individuals, and the fact that there’s

21

a lack of settled protocols about how to identify parental

22

sexual orientation.

23

Doctor Regnerus’ NFSS study acknowledged those

24

challenges. But, nevertheless, Dr. Regnerus indicated in

25

his expert report and during his testimony that no existing

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study bears the ability to randomly locate, track and

2

compare large numbers of children, thousands or even

3

hundreds raised continuously by gay couples with the same

4

among heterosexual couples over many years.

5

He testified that’s the type of study that’s

6

needed, that the science in this area remains young. He

7

agreed that it’s probably too soon to get adequate data on

8

married same-sex couples, and he recommended that more

9

research should be done before the State alters its

10

definition of marriage.

11

In addition to Dr. Regnerus’ study, Doctors

12

Price, Allen, and Pakaluk also found differences and

13

outcomes for children being raised by same-sex couples. And

14

Dr. Price and Dr. Allen were here to testify about those

15

differences. They indicated that they replicated

16

plaintiffs’ expert witness Michael Rosenfeld’s study

17

regarding normal progress in school for elementary

18

children. And they found that although the difference

19

between outcomes of children being raised by same-sex

20

couples and heterosexual married couples was not

21

statistically significant, there was, in fact, a difference

22

in outcomes. The odds for children in heterosexual married

23

couples of making normal progress through school were 15

24

percent higher than for children of same-sex couples, and

25

that was based on replication of Dr. Rosenfeld’s study.

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Now, as Dr. Joseph Price pointed out during his

2

testimony, this is important. He stated and I quote,

3

“Is being 15 percent more likely to be held back

4

in school that big of a deal? I think actually that is

5

something that parents would be concerned about.”

6

Doctors Price and Allen testified that when they

7

ran the numbers on Rosenfeld’s study with slight variations

8

it did show a statistical difference in outcomes.

9

When they controlled for certain factors and

10

depending on which restriction they restored they found

11

that children from married heterosexual couples were

12

between 25 and 30 percent more likely to make normal

13

progress through school as compared to children living in

14

same-sex households. And their numbers were statistically

15

significant.

16

Doctor Allen also testified that he went on to

17

replicate the Rosenfeld study using data from the Canadian

18

Census which he testified has advantages over the U.S.

19

Census data. In that study, he examined the association of

20

household type with children’s high school graduation rates

21

in particular looking at children between the ages of 17

22

and 22.

23

Doctor Allen testified that with his study he had

24

a large random sample and that in that sample he controlled

25

for parental marital status. He distinguished between gay

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and lesbian families, and he had a sample that was large

2

enough to evaluate differences in gender between parents

3

and children.

4

His study concluded that children living with gay

5

and lesbian families in 2006, were about 65 percent as

6

likely to graduate compared to children living with

7

opposite sex married families. He also found that daughters

8

of same-sex parents do considerably worse than sons

9

meaning, as he testified, gender does matter.

10

Now, Dr. Allen acknowledged that census data is

11

limited. But so is the data that Dr. Rosenfeld relied on

12

for purposes of his study.

13

Doctors Regnerus, Marks and Allen all agreed that

14

while there is evidence of poorer outcomes for children

15

raised by same-sex couples this area of social science is

16

not settled, and that definitive conclusions cannot be

17

drawn from the existing research. They all agreed what’s to

18

make any definitive conclusions is a large, long-term

19

nationally represented study tracking children of same-sex

20

married couples. No such study currently exists.

21

And, again, I just want to point out, your Honor,

22

that these experts focus on the merits of the social

23

science. This case is not about their religious views of

24

the State’s witnesses. It’s about science and data, what’s

25

best for children.

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Plaintiffs have failed to show that it’s not

2

prudent for the people of the State of Michigan to wait

3

until there is larger, more comprehensive data before

4

redefining marriage. And, again, Michigan does not have to

5

prove its reasons. Rather, plaintiffs must show that

6

there’s no rational basis for those reasons.

7

Right now, your Honor, it’s just too early to

8

know the effects that redefining marriage will have on the

9

institution itself. And for that reason, Michigan voters

10

acted rationally by encouraging a cautious approach before

11

redefining marriage.

12

Now, plaintiffs raise several arguments in an

13

attempt to improperly shift the Court’s focus away from

14

this rational basis review, but these arguments must be

15

rejected.

16

Plaintiffs argue that because other groups with

17

poor child outcomes are not excluded from marriage, it’s

18

not rational to exclude them. But this argument, your

19

Honor, improperly inverts the standard. The question here

20

is not whether it’s proper to exclude same-sex couples, it

21

should be whether including them would further the State’s

22

goals. Because doing so would not, plaintiffs’ argument

23

fails.

24

Plaintiffs also argue that allowing same-sex

25

marriage would benefit families, it would stabilize them.

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But what the evidence has shown in this case, your Honor,

2

is we’re just not sure if that’s true. Doctors Price and

3

Regnerus and plaintiffs’ own witnesses, Doctors Brodzinsky

4

and Rosenfeld testified that there is evidence of

5

instability in the relationships of same-sex married

6

couples. All agree that the studies in this area are mixed.

7

Plaintiffs also argue that same-sex marriage will

8

not harm opposite sex marriage. But for the reasons I’ve

9

just stated we just don’t know yet. Plaintiffs argue that

10

the natural evolution of marriage is that it’s now become

11

gender neutral, But that contradicts Dr. Cott’s own

12

testimony where she recognized that there is a difference

13

between men and women.

14

Plaintiffs argue that the type of study that’s

15

required is not likely to happen any time soon so they

16

should be allowed to marry. In other words, your Honor,

17

let’s make it legal and then see what happens. But this

18

puts the cart before the horse.

19

I want to turn now to some of the case law that’s

20

been cited by both plaintiffs’ counsel and Mr. Pitt. I will

21

point out, your Honor, that Lawrence is distinguishable

22

from this particular case. This case is not about the

23

criminalization of same-sex intimate acts. This case is

24

about the State’s definition of marriage.

25

I also want to point out the distinctions between

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this case and the recent decisions around the country that

2

have struck down laws defining marriage as between one man

3

and one woman because those cases, your Honor, are

4

different from ours.

5

While those cases conclude that there’s no

6

rational basis for preserving marriage as between a man and

7

a woman those cases did not consider some of the reasons

8

voters might have supported the Marriage Amendment, reasons

9

that we’re presenting here in our case. Those cases do not

10

consider that it might be prudent to proceed with caution

11

when a change is so new and that social science on the

12

issue is still in its infancy. Those cases while they may

13

implicitly disagreed that the best setting for raising

14

children is for a child to be raised by both a mother and

15

father did not consider the basic point that moms and dads

16

are different, and that kids benefit from having both.

17

They unfortunately appear to have misapplied the

18

burden of proof and improperly framed the issue to reach

19

their conclusions. As this Court has previously noted,

20

those cases are different. Those cases didn’t have a trial.

21

Therefore, this Court can make its own independent decision

22

and affirm Michigan’s constitution.

23

As a side note, your Honor, despite the strength

24

in our case we do recognize that there are never any

25

guarantees. So should this Court rule in plaintiffs’ favor

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we do request a stay just as we’ve done so in the past.

2

I think it’s clear from Oakland County Clerk Lisa

3

Brown’s testimony as well as her counsel’s argument here

4

today that she and likely other clerks are ready, willing

5

and able to issue licenses immediately in the event of an

6

adverse ruling by this Court. So a stay, your Honor, is

7

imperative to maintain the status quo throughout the

8

pendency of an appeal, and to avoid the confusion and the

9

uncertainty that has resulted in other states when a stay

10

has not been granted.

11

And on that note, your Honor, I think it’s also

12

worth pointing out that a letter that our Department sent

13

out in October of 2013, did not tell clerks to disobey the

14

law. Quite the opposite. That letter told clerks that they

15

would need to follow the law including any stay that a

16

court grants.

17

But this brings me to my final point, your Honor,

18

and I can’t stress enough this point: this decision to

19

maintain the definition of marriage as between a man and a

20

woman was a decision that the people of Michigan made, and

21

one that they had the clear authority to make. Again, after

22

Windsor it is clear that defining marriage is within the

23

exclusive province of the state. Indeed, plaintiffs’

24

expert, Professor Cott, agreed that states have the right

25

to regulate marriage. Therefore, this Court cannot

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1

interfere with the state’s authority unless there is a

2

clear constitutional violation.

3

And if there’s anything that we’ve all learned

4

over the course of the last few weeks, your Honor, is that

5

not much is clear when we talk about the topics of same-sex

6

marriage and parenting.

7

It’s also important to note, your Honor, that

8

plaintiffs have not put forth any direct evidence to show

9

that the voters of the state of Michigan acted out of

10

animus when they passed the Marriage Amendment. Rather,

11

they rely on national trends at the time that the Amendment

12

was passed, and they attempt to improperly impute those

13

trends to the state of Michigan.

14

I want to be clear that the passage of the

15

Marriage Amendment was not a vote against same-sex couples.

16

It was not based on animus or bigotry, but rather a vote to

17

maintain the definition of marriage that had been in

18

existence since the inception of the state. This was not

19

merely the whim of a few. This was the vote of the

20

majority. It is the will of the people, and that decision

21

should stand.

22

The Marriage Amendment is a product of state

23

political process, something that federal courts rarely

24

invade and should not. This is especially true given the

25

Baker decision, a decision that Windsor did not repudiate

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and it still stands as good law.

2

If plaintiffs are so confident that their

3

position on this issue is the only viable one then why not

4

put it to a vote? In fact, this issue is likely to be on

5

the ballot soon. So why not let the people decide?

6

In conclusion, your Honor, if reasonable people

7

could disagree then the Court must uphold the Michigan

8

Marriage Amendment.

9

The alternative is to hope that 2.7 million

10

voters who all reached the same conclusion did not have

11

among them a single rational reason for their vote.

12

This is consistent with our most basic freedom,

13

our freedom to govern ourselves which is just as important

14

as any of the individual freedoms protected by the Bill of

15

Rights. So I ask you again, your Honor, let the people

16

decide.

17

For all of these reasons, your Honor, we ask that

18

you rule in favor of State defendants.

19

Thank you.

20

THE COURT: Thank you, very much.

21

Rebuttal?

22

MR. MOGILL: If it please the Court, the Court has

23

all of our arguments. The Court is aware of the evidence.

24

Nothing that Ms. Heyse has said changes the law or the

25

facts --

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THE COURT: You’ve got to get a little closer.

2

MR. MOGILL: Nothing that Ms. Heyse has said

3

changes the law or the facts or refutes our arguments.

4

Therefore, there is no need for rebuttal.

5

Thank you.

6

THE COURT: Thank you.

7

Okay. Let me just make a few comments.

8

Number one, and I’ve said it before during the

9

trial, the attorneys in this case are the epitome of

10

collegiality. They are excellent. It’s not often as a judge

11

that you can get off the bench at the conclusion of a trial

12

and say that the attorneys and the teams for both sides

13

gave the highest, professional, and skill to their

14

particular issues and did it in a manner that was

15

collegial, that was fair, and that presented the evidence

16

for their respective clients in a manner that would, as

17

I’ve indicated before, did not only expect it, but would be

18

exemplary. I appreciate it. And I can’t tell you how

19

important it is for both sides. I mean, it’s just

20

unbelievable, and I can’t wait to share it with my

21

colleagues because one of the things we always talk about,

22

you know, the perfect trial in terms of collegiality, in

23

terms of skill, in terms of presentation, in terms of

24

representation of respective clients, in both case both

25

sides were perfect. There’s no other way of putting it, and

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1

appreciate it. It’s the greatest way for a judge to try a

2

case.

3

Let me also take just a couple of seconds to

4

thank my staff. As we all know, my staff was fabulous.

5

Carol Mullins who is our case manager, chief of

6

staff, took care of all the details. I think it permitted

7

me to get on the bench. It permitted the attorneys to be

8

able to move this case in a manner that they did, in a very

9

timely manner so we appreciate her services.

10

Pat Hommel who is our secretary now known as

11

administrative assistant, put everything together

12

internally for us. We could come out. We could listen to

13

this case. We didn’t have to be distracted with anything,

14

phones, anything. Whatever it was, Pat took care of it.

15

We have Joan Morgan, of course, and Joan

16

coordinated the court reporting and did much of it herself

17

so that the transcripts could be available for the sides

18

and whoever needed whatever they needed. I am sure that all

19

of the court reporters that participated did an excellent

20

job and the transcripts will be perfect.

21

The spectators, you know, the courts are open,

22

and we don’t often get spectators. It’s the unusual case.

23

It was such a pleasure to look out at the front at the

24

friendly faces, many of which I saw day in and day out.

25

Many of which I saw came in, came out. But it was a

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1

pleasure because the Constitution does talk about a public

2

court. Hopefully those that have come down today and the

3

other days that we had the case, understand at least what

4

it’s all about and hopefully you’ll come back on other

5

cases. Hopefully -- when I was in the state court which was

6

a long time ago we had court watchers. They came every day.

7

Most of them were senior citizens or lots of times they --

8

there was a parent that would drop their child off at day

9

care and come over and watch a case or two. And it is very

10

interesting. Today unfortunately because of security it’s

11

much more difficult, you’ve got to take your belt off and

12

so forth. But every single day -- of course, I love what I

13

do, but every single day, it is of interest. We’re talking

14

about human things. People’s problems. The Constitution.

15

The statutes. As most of you have seen, at least once or

16

twice during the trial we swear in new citizens. Just

17

fantastic. So I appreciate looking out every day seeing

18

many of you day-to-day, many of in and out, but always a

19

friendly face. And for that, I appreciate it.

20

Let’s talk about what’s next. For the attorneys

21

they know what’s next. For those who have an interest in

22

the case and also the media. We should talk about the

23

media. We know the media has been upstairs. They have their

24

own media room, but they’ve been reporting. That’s also

25

important. First Amendment, freedom -- you know, all those

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1

freedoms are very, very important for all of those folks

2

that couldn’t come down here on a daily basis have

3

information. The media is a very, very check and balance.

4

Our whole system is on a check and balance. Executive

5

versus legislative. Judicial versus both of those. And the

6

press and the people. That’s what it’s all about. So all of

7

you that came and the press is important.

8

The next step is mine. As the judge in this

9

particular matter what’s -- we all know I have to do

10

something. I have to decide this case. How do I decide this

11

case?

12

I have essentially two duties to do. I have to

13

make findings of fact and conclusions of law. And those

14

conclusions of law deal with statutory law, constitutional

15

law. I have to make factual findings. You’ve heard the

16

evidence. For those who weren’t here during the trial, you

17

say were both sides in the same courtroom because each side

18

has its position. You can see each side has cited

19

witnesses. We’ve heard witnesses. I have a lot of things to

20

do. I’ve got a lot of reading to do. I have a lot of

21

decision making to do. The kind of decision making that I

22

have to start with is when I make the findings of the fact,

23

who do I do that? I listen to the testimony. We have

24

witness books. Most of you have seen them. I have to read

25

all of those. I have to determine how much weight I’m going

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1

to give to each witness. How credible they are. How

2

believable they are. Does their testimony make sense in the

3

context of this whole case. Those are the kind of decisions

4

that I have to make.

5

Then I have to apply that to the law. As you can

6

see, both sides differ as to lots of things in the law. So

7

I’ve got to do that.

8

How do I do that? Just -- I go through it and

9

it’s going to take a lot of time. I have assistance. These

10

two fellows who I have not introduced yet are my law

11

clerks. This is Dan Weininger who is one of my law clerks.

12

This is Steve Thoburn my other law clerk. They’re going to

13

play a role in it. What role do they play in it?

14

I’m going to read this. I’m going to go over it.

15

And I’m going to have some questions that I need somebody

16

to do some research for me and partially do it for me.

17

That’s what their position is. They’re going to be working

18

very, very hard because we’ve got a lot of reading to do.

19

You could hear, there’s a lot of cases. Got to read those

20

cases. I’m going to have some questions. Each one of those

21

cases that were cited today as well as lots of briefs --

22

they’re stacked on Dan’s desk. I mean, all around his

23

office there’s briefs. Every one of those has cases that

24

are cited by either side. We not only have to read those

25

cases, but within those cases there’s other cases because

12-10285

DEBOER, ET. AL., V SNYDER, ET. AL.

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CLOSING ARGUMENTS

67

FRIDAY, MARCH 7TH, 2014

1

that’s how we do it. The law is based upon precedent. And

2

we also have the Constitution here. We have to analyze the

3

Constitution. Those are the kind of things that we have to

4

do.

5

And the reason I’m kind of alluding to it because

6

most people don’t know what we do. They say, oh, what do

7

you do? That’s what we do and it takes time.

8

So -- I think it’s important. People have asked

9

me well, you know, when are you going to make a decision?

10

Let me tell you that I know -- I know how much

11

reading I have to do. At the beginning of the trial I think

12

I told the attorneys that on these kind of trials -- when I

13

say “these,” a bench trial, where I don’t have a jury and I

14

have to do all those things, I have to do them relatively

15

quickly because I have to remember -- I have a transcript

16

of what was said, but I’ve got to remember how they said

17

it, how it fit into something else. If I wait too long it

18

gets clouded. Just like a jury decides, right after a case

19

they go back there. It may take a week, two weeks, a day.

20

They talk about it. They think about it. I do the same

21

thing.

22

I know that I can’t do it in a week, okay. This

23

is our number one primary job. We have nothing else. I

24

anticipate the week after next hopefully to be able to get

25

it out. I just tell you that because I think it’s fair. I

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CLOSING ARGUMENTS

68

FRIDAY, MARCH 7TH, 2014

1

don’t want you to be on pins and needles. We all are. Both

2

sides are. I am. I am because I can’t -- I’m anxious to get

3

into it. Anxious to make those decisions. To look at them.

4

To study them. To go over them. So I can assure you I will

5

be doing that.

6

The way it’s going to be -- I’m not -- some

7

judges will convene court again and read it and so forth. I

8

don’t write that many opinions, number one.

9

But, number two, I’m going to -- we call it

10

electronic file. It will be electronically filed. The

11

attorneys will get it immediately. It will be immediately

12

posted on our website. That’s how we do it.

13

I am going to write it. It’s going to take some

14

time. But I’m going to write it so that everybody sitting

15

here today, all our spectators who have been here and so

16

forth, can understand it.

17

So that’s going to take a little more time, too,

18

because generally I write it for the lawyers. I’m still

19

writing it for the lawyers, but I know how much interest

20

there is, and I see those faces out there, and I appreciate

21

those faces out there. Hopefully, we will put it together

22

so everybody understands it.

23

So with that said, again, let me thank everybody.

24

We will stand in recess, and I will get the opinion out as

25

soon as I can.

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CLOSING ARGUMENTS

69

FRIDAY, MARCH 7TH, 2014

1

Okay.

2

(Proceedings concluded, 12:10 p.m.)

3

4

-- --- --

5

6

CERTIFICATE

7

8

I, JOAN L. MORGAN, Official Court Reporter for the

9

United States District Court for the Eastern District of

10

Michigan, appointed pursuant to the provisions of Title 28,

11

United States Code, Section 753, do hereby certify that the

12

foregoing proceedings were had in the within entitled and

13

number cause of the date hereinbefore set forth, and I do

14

hereby certify that the foregoing transcript has been

15

prepared by me or under my direction.

16

17

S:/ JOAN L. MORGAN, CSR

18

Official Court Reporter

19

Detroit, Michigan 48226

20

21

22

23

24

25

March 24, 2014

12-10285

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 2:12-cv-10285-BAF-MJH Doc # 164 Filed 04/06/14 Pg 1 of 116 Pg ID 4224

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, ET AL.,

Plaintiffs, v. RICHARD SNYDER, ET AL.,

HONORABLE BERNARD A. FRIEDMAN No. 12-10285

Defendants. _____________________________/

BENCH TRIAL VOLUME 1
Tuesday, February 25, 2014

Appearances:

FOR THE PLAINTIFFS:

CAROLE M. STANYAR, ESQ. DANA M. NESSEL, ESQ. KENNETH MOGILL, ESQ. ROBERT SEDLER, ESQ. VICKIE HENRY, ESQ.

FOR THE DEFENDANTS: RICHARD SNYDER BILL SCHUETTE,
LISA BROWN

TONY C. JETER, ESQ. KRISTIN M. HEYSE, ESQ. JOSEPH E. POTCHEN, ESQ. MICHELLE BRYA, ESQ. BETH M. RIVERS, ESQ. ANDREA J. JOHNSON, ESQ. MICHAEL L. PITT. ESQ. - - -

To obtain a certified transcript, contact: Lawrence R. Przybysz, MA, CSR, RPR, RMR, CRR
Official Federal Court Reporter Theodore Levin United States Courthouse 231 West Lafayette Boulevard, Room 718
Detroit, Michigan 48226

2:12-cv-10285-BAF-MJH Doc # 164 Filed 04/06/14 Pg 2 of 116 Pg ID 4225
(313)414-4460. Lawrence_Przybysz@mied.uscourts.gov Proceedings recorded by mechanical stenography.
Transcript produced by computer-aided transcription.

2:12-cv-10285-BAF-MJH Doc # 164 Filed 04/06/14 Pg 3 of 116 Pg ID 4226
Bench Trial Tuesday, February 25, 2014

I N D E X - - -
Plaintiff's Case in Chief

Page Vol.

David M. Brodzinsky, Ph.D. Cross-Examination By Mr. Potchen: Recross-Examination By Ms. Stanyar:
Michael J. Rosenfeld, Ph.D. Direct Examination By Mr. Mogill:

51 34 1
40 1

Certification of Reporter .....................116

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Bench Trial Tuesday, February 25, 2014

4

1

Detroit, Michigan

2

Tuesday, February 25, 2014

3

2:00 p.m.

4

- - -

5

- - -

6

DAVID M. BRODZINSKY, PH.D.,

7

being first duly sworn by the Court to tell

8

the truth, was examined and testified upon

9

their oath as follows:

10

- - -

11

CROSS-EXAMINATION

12 BY MR. POTCHEN:

13

Q. Can you hear me now? Thank you. Good afternoon.

14

A. Good afternoon.

15

Q. We have heard a lot about foster and adoption and I

16 want to talk a little bit more about the facts of this

17 case that we have here today. Here the children are not

18 lingering in foster care, is that correct?

19

A. That's correct.

20

Q. And here the children have been adopted, is that

21 correct?

22

A. By the respective parents, yes.

23

Q. So both adult plaintiffs are raising the children,

24 correct?

25

A. That's correct.

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

5

1

Q. And all three of these children are being raised by

2 Ms. Deboer and Ms. Rowse together, correct?

3

A. Correct.

4

Q. Ms. Deboer and Ms. Rowse did not refuse to adopt the

5 children because they couldn't get married, right?

6

A. I assume so, yes.

7

Q. And they did not refuse to adopt the children

8 because they couldn't do so jointly, correct?

9

A. Correct.

10

Q. And you would agree that Ms. Deboer and Ms. Rowse

11 who are not married, are in a stable loving relationship,

12 correct?

13

A. I will assume although I have not interviewed them.

14

Q. And you agree that they are providing a stable

15 environment for the children they have adopted, correct?

16

A. I would assume so.

17

Q. And, in fact, you don't recall personally of any

18 adoptive same sex couple who chose not to adopt solely

19 because they couldn't do so jointly, isn't that true?

20

A. Not personally, correct.

21

Q. Now, Doctor Brodzinsky, you understand that Ms.

22 Deboer on Ms. Rowse would like to get legally married in

23 the State of Michigan?

24

A. Correct.

25

Q. And you agree that this notion of same sex marriage

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

6

1 is something relatively new in the United States, correct?

2

A. Correct.

3

Q. And you are aware that no state in this country

4 permitted same sex marriage until Massachusetts did in May

5 of 2004, correct?

6

A. Correct.

7

Q. And you know that no country in the world allowed

8 same sex couples to marry until the Netherlands did in

9 2000, correct?

10

A. I didn't know the specific date but I knew the

11 Netherlands was first.

12

Q. You agree that as a result of this fairly new

13 concept of same sex marriage, it's been difficult to find

14 studies showing outcomes for children raised by same sex

15 marriage couples?

16

A. Correct.

17

Q. And, in fact, you testified that no comprehensive

18 study has been done on children outcomes actually raised

19 by married same sex couples, correct?

20

A. Correct.

21

Q. And you also agree that the research is mixed as to

22 whether allowing same sex couples to marry will result in

23 greater stability in their relationship, isn't that true?

24

A. Repeat the question.

25

Q. Sure. You agree that the research is mixed as to

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

7

1 whether allowing same sex couples to marry will result in

2 greater stability in their relationship?

3

A. I'm not sure I completely follow that question but I

4 will respond that there are studies on relationship

5 stability in same sex couples. And I think you were

6 asking are those studies mixed as to whether or not there

7 is a higher or lesser breakup rates compared to

8 heterosexuals.

9

Q. I am talking about outcomes. And we can refer to

10 your deposition if you could like to?

11

A. Please.

12

MR. POTCHEN: May I approach the witness?

13

THE COURT: Of course.

14

MR. POTCHEN: Do you need this?

15

THE COURT: I don't ready need it. I

16 appreciate it though.

17 BY MR. POTCHEN:

18

Q. I ask you to turn to page 185, lines eight through

19 eighteen.

20

THE COURT: Sorry. I may need it if you

21 don't mind. What page?

22

MR. POTCHEN: Page 185.

23

THE COURT: Thank you.

24 BY MR. POTCHEN:

25

Q. I'm going read starting at page, line eight --

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

8

1 excuse me.

2

THE COURT: Go ahead. That's right.

3 BY MR. POTCHEN:

4

Q. I guess at this point I am not looking to impeach

5 him. Does this refresh your recollection?

6

A. Sure.

7

Q. Yes. You would agree that the research is mixed as

8 to whether allowing same sex couples to marry will result

9 in greater stability in their relationship?

10

MS. STANYAR: Objection. That's not what the

11 deposition language says.

12

THE COURT: I guess you can answer the

13 question. And then the next question would be -- why

14 don't you repeat the question?

15

THE WITNESS: I don't think --

16

THE COURT: Hold on, one second. Let him

17 repeat the question. It's out of my mind, too.

18 BY MR. POTCHEN:

19

Q. You would agree that the research is mixed as to

20 whether allowing same sex couples to marry will result in

21 greater stability in their relationship?

22

A. I do not believe that what we are talking about in

23 my deposition exactly addresses the question you are

24 asking. What my deposition response here has to do with

25 was talking about the research that -- about the breakup

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

9

1 rates of same sex couples. And there is some old research

2 by Anderson and there is some new research on civil

3 relationships by Balson (ph) and there is a UK study by

4 Ross that I mentioned in here. And the old studies showed

5 higher breakup rates and the new ones show either no

6 differences or actually the UK shows over a five year

7 period lesser breakup rates. That is what this was

8 referring to.

9

Q. When we're talking about breakup rates, we're

10 talking about stability?

11

A. Yes.

12

Q. And the research is mixed when we talk about

13 stability?

14

A. Yes, okay.

15

Q. Okay. You understand that the definition of

16 marriage in Michigan has always been the union of one man

17 and one woman, correct?

18

A. I assume, yes. I don't know the law specifically

19 though.

20

Q. You don't know Michigan's marriage laws?

21

A. I have not reviewed them. But I assume given what

22 this case is about, that it's defined by a man and woman.

23

Q. Okay. You know that Michigan never recognized same

24 sex marriage, correct?

25

A. Yes, that's correct.

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

10

1

Q. As to your publications, nothing that you have

2 published deals with the issue same sex marriage, correct?

3

A. That's correct.

4

Q. And as to your publications, only a small

5 percentage, around 10 percent, deal with the issue of same

6 sex parenting, correct?

7

A. Correct.

8

Q. And your clinical work does not focus on same sex

9 marriage, correct?

10

A. Not same sex marriage, no.

11

Q. When doing research on child development, I'm going

12 to now move on to research, okay -- you agree that the use

13 of convenient samples is the traditional method?

14

A. Correct.

15

Q. And convenient sampling is basically done by getting

16 data from people who volunteer or who are selected due to

17 their availability and easy access, correct?

18

A. Correct.

19

Q. And the advantages of this type of sampling is the

20 availability and the quickness to which data can be

21 gathered, correct?

22

A. Correct.

23

Q. The disadvantages are the risks that the sample

24 might not represent the population as a whole, correct?

25

A. Correct. If that is the question of interest, then,

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

11

1 correct.

2

Q. And another disadvantage is it might be biased by

3 the volunteers for the sample?

4

A. That's possible.

5

Q. You agree that much of the research on child

6 development in same sex households is based on convenient

7 samples, correct?

8

A. The bulk of it is, yes.

9

Q. And you agree there are other ways to research

10 outcomes for children besides using convenient samplings,

11 correct?

12

A. Correct. As I testified, too, if you are interested

13 in what is going on in the family, then the smaller

14 samples make it much more readily -- it's much easier to

15 look at that. The large samples generally do not allow us

16 to do that.

17

Q. I want to make sure I have this correct on your

18 direct testimony, statistical power is affected by sample

19 size, correct?

20

A. Sample size, yes, is one of the factors.

21

Q. And you agree that in well-conducted social science

22 research, it's important to have clearly defined

23 comparison groups before drawing conclusions regarding

24 either similarities or differences between the two groups,

25 correct?

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

12

1

A. Generally true, yes.

2

Q. So it's important to compare apples to apples, I

3 believe was the term used today?

4

A. Yes. I would point out that no study can do that

5 exactly because we can't control people's lives. So we

6 try to match for what we believe to be the relevant

7 factors, and what we can't match for, we try to take into

8 account in other statistical ways for that. But certainly

9 what we go -- what we -- the goal is to try to match for

10 relevant factors.

11

Q. Right. The goal is to match apples to apples.

12 Whether you can do it all the time might not be possible.

13

A. That's correct.

14

Q. I want to switch to this APA policy statement that

15 was entered as Exhibit 112 into the testimony here today.

16 And the APA policy statement says, not a single study has

17 found children of lesbian or gay parents to be

18 disadvantaged in any significant respect relative to

19 children of heterosexual parents.

20

A. Correct.

21

Q. And you testified there have been actually a few

22 studies, you just don't agree with the studies, that have

23 found children of lesbian or gay parents to be

24 disadvantaged, isn't that true?

25

A. The studies of state's witnesses have allegedly

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

13

1 shown that.

2

Q. Whether you agree with them or not, first of all,

3 there are studies that have found children of lesbian

4 and/or gay parents to be disadvantaged, isn't that true?

5

A. That's what they allege, yes.

6

Q. Now, the APA's policy statement came out in 2005.

7 Are you aware of that?

8

A. Yes.

9

Q. And the APA policy statement relied on 67

10 manuscripts. Are you aware of that?

11

A. I wasn't aware of the specific number.

12

Q. Okay. Did you know that only 59 of those

13 manuscripts were published?

14

A. Again, I don't know the specific of what they based

15 it on.

16

Q. You don't know any of the specifics?

17

A. I wasn't part of the group that assessed that.

18

Q. Okay. Were you aware that 45 of those studies are

19 based on convenient samples?

20

A. That would probably be accurate. I don't know the

21 specifics, but certainly convenient samples were the main

22 type of samples available at that time.

23

Q. Were you aware that one of the studies forming the

24 basis for the APA policy statement had only five

25 participants?

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

14

1

A. I wasn't aware of that, no.

2

Q. Did you know, of the 59 published studies, 26 did

3 not include a heterosexual comparison group?

4

A. I did not. But, of course, again, the question of

5 which comparison group is governed by the questions of

6 interest.

7

Q. These had no comparison groups. Were you aware of

8 that?

9

A. I wasn't aware of that, no.

10

Q. Did you know of the 33 published studies which had

11 comparison groups, 13 of the comparison groups were single

12 parents in comparing them to same sex couples?

13

A. I wasn't aware of that.

14

Q. And so I guess you wouldn't know of the 20

15 remaining, how many consisted of two biological

16 heterosexual parents?

17

A. I would not know that, no.

18

Q. You testified that children who grow up in families

19 where they don't have a relationship with a biological

20 parent or two biological parents, they generally do quite

21 well?

22

A. Yes.

23

Q. But you agree that biology plays a role in the life

24 of a child, correct?

25

A. It can, yes.

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

15

1

Q. To be clear, you are not claiming that it is somehow

2 bad for a child to be raised by his or her married

3 biological father and biological mother if they are

4 providing a good environment for the child?

5

A. Yes. Absolutely. Correct.

6

Q. And you are not against opposite sex parents raising

7 a child in a good environment, correct?

8

A. Of course not.

9

Q. I want to ask a few questions about adoption that

10 you testified to. In Michigan a single person can adopt

11 whether they are gay, lesbian, straight, if they are

12 deemed fit by the Department of Human Services?

13

A. That's correct.

14

Q. And Michigan does not prohibit individuals from

15 adopting if they are living with a same sex partner,

16 correct?

17

A. I believe that is correct.

18

Q. And Michigan does not prohibit individuals from

19 adopting if they are living with their sister, is that

20 correct?

21

A. As a single parent, you mean?

22

Q. Yes.

23

A. To the best of my knowledge. I don't know, but I

24 wouldn't think they would prohibit that.

25

Q. Now, despite the fact that single people can adopt,

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

16

1 you believe the pool should be expanded to allow for joint

2 adoption, isn't that true?

3

A. Yes, I do.

4

Q. You believe when people are cohabitating and wish to

5 adopt jointly, they should be allowed to adopt jointly?

6

A. If they are in a committed relationship, yes.

7

Q. And the committed relationship is the key to you?

8

A. Yes, as opposed to people who are just living

9 together for a brief period of time.

10

Q. And your pool of joint adoptive parents is not

11 limited to same sex couples only, isn't that true?

12

A. Say that again, please.

13

Q. Sorry. Your pool of joint adoptive parents is not

14 limited to same sex couples only, correct?

15

A. My pool?

16

Q. Yes. You want the pool of adoptive people to be

17 expanded for joint adoption, correct?

18

A. Yes.

19

Q. And this pool that we are talking about of joint

20 adoptive parents is not limited solely to same sex

21 couples, correct?

22

A. Through the home study, if the caseworker does a

23 home study, sees that this is a couple in a committed

24 relationship, good mental health, all of the other

25 relevant factors that are assessed, I would suggest that

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

17

1 they be allowed just like individuals who are gay or

2 lesbian.

3

Q. Right. So you believe both heterosexual couples and

4 same sex couples should be allowed to adopt jointly?

5

A. Same -- the same criteria should be applied to both.

6

Q. And they don't need to be married to jointly adopt,

7 correct?

8

A. If you're talking cohabiting, no. I would encourage

9 them to marry perhaps but I would not necessarily disagree

10 with your statement, no.

11

Q. And in your view, two sisters should be allowed to

12 jointly adopt?

13

A. I didn't say that. In fact, I said I had never

14 thought about that in deposition. And I would be talking

15 about two individuals who are in a committed married like

16 relationship.

17

Q. Does it have to be a sexual relationship?

18

A. Does have to be -- I never even thought of that.

19

Q. I asked you -- you said committed, and I asked you

20 two sisters, and you said I haven't thought about that.

21

A. I said in a marriage like relationship.

22

Q. You said committed.

23

A. I also followed up --

24

Q. I don't want to mince your words. I'm asking, under

25 your view, can two sisters jointly adopt?

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David M. Brodzinsky, Ph.D. - Cross Tuesday/February-25-2014

18

1

A. I never thought of that until -- and I gave it no

2 other thought because I think it's somewhat of a

3 ridiculous question, frankly.

4

Q. You still have not thought about that answer even

5 though you believe two committed people can jointly adopt?

6

A. Two people in a committed relationship of a married

7 like forum is what we usually think of in cohabiting

8 individuals.

9

Q. So in a marriage like forum, but not married,

10 correct?

11

A. That's correct.

12

Q. Let's look at the research that you relied on for

13 your opinions today. From all of the studies that you

14 have relied on, most of what is known comes from studying

15 white Caucasian parents, isn't that true?

16

A. Most, but not all, yes.

17

Q. And you agree that there is diversity in the gay and

18 lesbian community, correct?

19

A. Correct.

20

Q. You are familiar with the Williamston (ph)

21 Institute, correct?

22

A. Yes.

23

Q. And you are aware that they found that same sex

24 parents and their children are more likely to be racial

25 and ethnic minorities, isn't that true?

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1

A. That's correct.

2

Q. So the same sex parents in the studies that you

3 relied on for your opinions are not representative of the

4 gay and lesbian parents as a whole, isn't that true?

5

A. They are not. But what we know is that those other

6 groups you are talking about, the same factors that

7 predict child development outcomes are found in those

8 families --

9

Q. So let me ask you this question --

10

MS. STANYAR: Let him finish his answer.

11

MR. POTCHEN: I went on and he went on

12 speaking longer.

13

THE COURT: Let's move on.

14

MR. POTCHEN: Thank you.

15

THE COURT: Doctor, if you have not finished

16 your answer let us know.

17

THE WITNESS: I certainly will.

18 BY MR. POTCHEN:

19

Q. In your January 14th deposition you were asked to

20 specify the studies and reports that you believed best

21 supported your opinion. Do you recall that?

22

A. I'm sorry. In the deposition?

23

Q. In your deposition you were asked to specify the

24 studies and reports that supported your opinions?

25

A. Yes. I gave some examples.

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1

Q. Correct. And I think you gave some here today. You

2 gave Gartrell (ph). Is that one of them?

3

A. Yes.

4

Q. Brandweis (ph), is that another one?

5

A. Brandweis.

6

Q. Goldenbach (ph)?

7

A. Goldenbach. Several of her studies.

8

Q. Boss (ph). She works in Holland. And Patterson I

9 believe was another one.

10

A. Correct.

11

Q. Now you would agree that these studies were focused

12 on children raised by lesbian women, correct?

13

A. Well, some of the Goldenbach studies I was talking

14 about include gay men.

15

Q. Let's talk about Patterson first. Charlotte

16 Patterson. And she is from the United States?

17

A. Yes. University of Virginia.

18

Q. And I think you said you were relying on her

19 Adolescent Health Survey?

20

A. That is one of the studies I was relying on.

21

Q. Now, for the Ad Health Survey, Patterson relies on a

22 group of children born to or adopted by lesbian mothers in

23 the San Francisco Bay area, correct?

24

A. The Ad Health data?

25

Q. Yes.

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1

A. That is a national data site.

2

Q. They didn't ask parents to specify their sexual

3 orientation, isn't that true?

4

A. The Ad Health Data, they don't. I think, just like

5 the census data, it's derived from various kinds of

6 questions that are asked in the surveys.

7

Q. The number of lesbian families in the Ad Health

8 Survey is unknown, isn't that true?

9

A. The overall number?

10

Q. Yes.

11

A. We don't know the overall number.

12

Q. Okay. What was the sample size for the Ad Health

13 data?

14

A. The Ad Health data is about 12 thousand.

15

Q. And according to Patterson, the sample was

16 predominantly Caucasian, well-educated, middle to up

17 class, isn't that true?

18

A. In the Ad Health data, hers are mixed. She actually

19 has only 60 percent white.

20

Q. And what year was her data collected?

21

A. I actually don't remember.

22

Q. Does '94 and '95 sound about right?

23

A. I will accept that.

24

Q. Okay. And Brandweis and her colleagues in Belgium

25 studied -- I'm switching to Brandweis -- studied children

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1 born into lesbian homes by donor insemination, correct?

2

A. Correct.

3

Q. And you agree that donor insemination can be

4 expensive, correct?

5

A. It can be if it's going through a clinic. Some

6 women do it at home. But through the clinics it's pretty

7 expensive.

8

Q. You would agree using your words here that we are

9 not going find many poor parents who are going to use

10 donor insemination, correct?

11

A. Through the clinics.

12

Q. In Brandweis' '97 study -- that is the study you

13 relied on, the '97 study -- she compared four to eight

14 year old children born to 30 lesbian mothers via donor

15 insemination, children born to 38 heterosexual families

16 via donor insemination, and children born to 30

17 heterosexual families in the conventional way or naturally

18 conceived, is that correct?

19

A. Correct.

20

Q. And the sample size was 30 lesbian families and 68

21 heterosexual families in Belgium, correct?

22

A. Correct.

23

Q. And Brandweis found that the quality of the couple's

24 relationships and the quality of the mother/child

25 interaction did not differ between the lesbian mother

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1 families in either of the heterosexual family groups,

2 right?

3

A. I believe so, yes.

4

Q. Buy she also found that the quality of interaction

5 between the mother and the child in lesbian families was

6 superior to that between the father and the child in both

7 groups of heterosexual families, isn't that true?

8

A. I believe so. That kind of finding comes up

9 frequently in the studies. I'm not positive it was with

10 her but I will accept that.

11

Q. This study, correct me if I'm wrong or whether

12 you're aware of it, noticed a distinction between the

13 gender of the parent and how the child interacts with the

14 parent, correct?

15

A. Well, yes, to the extent that there were differences

16 between the female head of the household and the

17 heterosexual fathers, yes.

18

Q. Okay. Now, moving onto Gartrell. Gartrell is a

19 1996 study that used the national longitudinal lesbian

20 family study, correct?

21

A. Her studies go all the way to 2014. But so she

22 started earlier on. And there is many studies published

23 from the same data set but with different measures.

24

Q. Same measures that differed in the longitudinal

25 study, meaning it's over a number years.

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1

A. Different control groups.

2

Q. Let's talk a little bit about how she got her data

3 for the study.

4

A. Uh-huh.

5

Q. She used -- and this is an informal networking and

6 word of mouth referrals, correct?

7

A. Snowballing technique, yes.

8

Q. And the participation was solicited via

9 announcements at lesbian events and women book stores and

10 lesbian newspapers, correct?

11

A. That was part it, yes.

12

Q. And the participants recruited in three metropolitan

13 area in which the researchers resided?

14

A. Correct.

15

Q. Boston, Washington, D.C. And San Francisco,

16 correct?

17

A. I will accept that. I don't know about D.C. but I

18 know the two.

19

Q. And the ultimate study group comprised of 84

20 families of children conceived by donor insemination,

21 correct?

22

A. 84 -- that may be the original sample. I think the

23 followups were 78.

24

Q. 78 -- it got smaller?

25

A. Yes. You always get some attrition in longitudinal

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1 studies. But hers actually, very little attrition.

2

Q. Right. Okay. So there is this approach, looked at

3 three metropolitan areas, correct?

4

A. Correct.

5

Q. So the sample size, we have already talked about

6 that, was not compared to any heterosexual couples,

7 correct?

8

A. Wrong. I mean, the original study was not. But the

9 subsequent studies used a variety of different control

10 groups, either national data sets or national survey data.

11 There are four or five studies that do use comparisons.

12

Q. But original study did not.

13

A. No. It was not focused on that issue.

14

Q. Right. And you are aware that Ms. Gartrell reported

15 that over half of the people from the original study were

16 separated before their offspring reached 18?

17

A. I believe that's correct.

18

Q. Now looking at Goldenbach.

19

A. Goldenbach, yes.

20

Q. Her study is the Avon Longitudinal Study, is that

21 correct?

22

A. She has three studies. Four studies. Three of

23 which are longitudinal. So one of them is the Avon

24 Longitudinal study of parents and children.

25

Q. Since that is the one that I had my notes on, let's

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1 talk about that, okay?

2

A. Okay.

3

Q. That is a local community study from a community in

4 England, is that correct.

5

A. It's -- her sample is a combined sample. In other

6 words, she has a national data set of which she only got

7 18 lesbian families from that and then she used a

8 convenient sample type of approach to increase her sample

9 size. So it's considered a combined community sample.

10

Q. Right. So she started out with 18 and then

11 ultimately the sample size was 39 lesbian mothers.

12

A. I think 39 is correct, yes.

13

Q. Okay. And, again, well, this did not look at

14 children raised in male heads of household, is that true?

15

A. That's true.

16

Q. And the Goldenbach study used single parent

17 households as a compare group, is that true?

18

A. One of the comparison groups. She also uses

19 heterosexuals later on.

20

Q. Right. She also use heterosexual single mothers as a

21 comparison?

22

A. Single mothers and married -- two parent

23 heterosexual families, too.

24

Q. Right. And none of these studies specifically

25 tracked same sex married couples, correct?

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1

A. I don't know if she had -- she required the

2 heterosexuals to married. We assume that most are, but we

3 don't know the actual number.

4

Q. You don't know?

5

A. We don't know.

6

Q. And, in fact, and I guess you already said this, but

7 it's too recent to get that kind of data again, isn't that

8 true?

9

A. Not on married heterosexuals.

10

Q. I'm sorry. Married same sex.

11

A. We are talking about heterosexuals.

12

Q. I am talking about married same sex.

13

A. It's probably too soon to get adequate data on

14 married same sex couples.

15

Q. Thank you. Now, you have critiqued Regnerus, Allen

16 and Sarantakos in your testimony?

17

A. Yes.

18

Q. But you have not worked on the data sets that formed

19 the basis of the Regnerus study or the Allen study, have

20 you?

21

A. Nor have I worked on data sets of the other studies

22 that I relied on. We generally, as researchers, don't

23 work on other people's data sets. And yet we still are

24 able to use the information from their research and see

25 whether, as reviewers, see whether or not they have done

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1 the appropriate kind of controls or whether their

2 conclusions follow from their results. We don't need to

3 work with the data sets to know whether a study has been

4 done appropriately or not.

5

Q. Again, I'm asking that you never worked on data set,

6 correct?

7

A. On their data set.

8

Q. And on their data set, correct?

9

A. I never worked on their data set.

10

Q. And you never analyzed their data set, correct?

11

A. That's correct.

12

Q. And you can't speak to what the data actually says,

13 isn't that true?

14

A. I can speak to what they say the data says.

15

Q. I am asking what the data says. You never worked

16 with it?

17

A. I can't speak to what my analysis of the data would

18 say.

19

Q. Okay. Now, one of the critiques you have of the

20 Allen study is that many of the same sex families came

21 from failed marriages, isn't that true?

22

A. That's an assumption based upon when the families

23 were formed.

24

Q. So, in your opinion, do you believe that Allen

25 should have controlled for this?

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1

A. Controlled for what?

2

Q. The failed marriages?

3

A. The data actually, I don't think his census allows

4 him to even know whether there is failed marriages earlier

5 on. That's part of the problem with using existing data

6 sets like a census. They don't ask the appropriate

7 questions.

8

Q. Okay. So you don't know if he controlled for it or

9 didn't control for it?

10

A. He controlled for -- he doesn't control for previous

11 failed marriages in his study.

12

Q. Okay. Now, the funding for your research comes

13 through the Donaldson Institute, isn't that true?

14

A. It's the Donaldson's research. I work for the

15 Donaldsons. I don't get funding myself.

16

Q. Right. But you were a founding member of the

17 Donaldson Adoption Institute, right?

18

A. That's correct.

19

Q. And you served on its Board?

20

A. I used to serve on its Board until 2006 when I moved

21 to California. It was too expensive to me to fly back and

22 forth to Board meetings. I went off the Board and went on

23 their staff as a researcher. And most of the work I did

24 as a Board member was really staff work. I did research

25 for them.

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1

Q. And the Donaldson Institute looks to improve

2 adoption practices, I believe was your testimony?

3

A. Correct.

4

Q. And the Donaldson Institute supports same sex

5 marriage, correct?

6

A. It does, yes.

7

Q. And the Rainbow Foundation funds some of the

8 Donaldson Institution's research, correct?

9

A. It funded one study once about ten years ago at the

10 amount of about $10,000.

11

Q. And the Boudet (ph) Foundation also funds research

12 for the Donaldson Institute, correct?

13

A. It funds our work. Not specific research.

14

Q. Now, the Boudet Foundation is a LGBT oriented,

15 correct?

16

A. It is.

17

Q. And you are aware that the Boudet Foundation has

18 awarded over $200,000 since 2006 to the Donaldson Adoption

19 Institute?

20

A. I actually didn't get the figures on that. I don't

21 actually --

22

Q. You are not aware how much they funded the Donaldson

23 Institute?

24

A. I am not aware. I would have thought closer to 150,

25 but that's -- I'm not on the Board anymore so I don't

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1 follow that funding information.

2

Q. Didn't -- you were there in the Study For Adoption

3 By Gays And Lesbian Policy Project? Did you work on that

4 study?

5

A. Which one? Expending Resources Three?

6

Q. It's called Adoption On Gays And Lesbian Policy

7 Project is what was funded by -- maybe this will refresh

8 your recollection.

9

A. Okay.

10

MR. POTCHEN: May I approach, your Honor?

11

THE COURT: Please.

12 BY MR. POTCHEN:

13

Q. I'm going to show you something called a form 990-PF

14 which is basically a tax return for a foundation. And

15 that is from 2006. And I believe on the third -- last

16 page that you are looking at, indicates some funding for

17 the Donaldson Institute.

18

A. Correct.

19

Q. What does that say?

20

A. It says -- it says total, 100,000, and then goes

21 over to '85, zero; '86, 50,000; '06, 50,000; '07, 50,000.

22

Q. So that's 100,000 in 2006 over a period of years,

23 correct?

24

A. Yes, that's correct.

25

Q. Okay. I'm going to give you all three of these.

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1 There is another form 990 from 2009 and I should have it

2 highlighted there. How much did the Boudet Foundation

3 fund the Donaldson Institute?

4

A. Fifty thousand.

5

Q. And the one in 2010?

6

A. Fifty thousand.

7

Q. Okay.

8

A. Hold it. Ten thousand.

9

Q. Ten thousand. And the one in 2012?

10

A. Sixty thousand.

11

Q. Okay. You would agree with me those figures add up

12 to over $200,000?

13

A. That's correct. Our annual budget is over a million

14 dollars now. So their funding represents a very small

15 percentage of the amount we bring in through various

16 donations and fund raising at any one year. Fifty

17 thousand, sixty thousand is the most they gave in a year,

18 in a budget of over a million, is a small percentage.

19

Q. Okay. You were also on the Scientific Advisory

20 Board of the Rockway Institute in San Francisco, correct?

21

A. Technically, I am. I had no involvement with them

22 other than consulting with their -- I think the person who

23 is the head of the institute.

24

Q. And that Board focuses on lesbian and gay issues,

25 correct?

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1

A. Yes, it does.

2

Q. And you were the clinical supervisor and consultant

3 to the Pacific Center in Berkley, California, correct?

4

A. I was. I am not doing it this year because for

5 different reasons. But for three years I supervised

6 interns who were working with gay and lesbian families.

7 Pacific Center is a small community based center focusing

8 on the mental health of the LGBT community.

9

MR. POTCHEN: If I may, your Honor?

10

THE COURT: Of course. Thank you.

11

MS. STANYAR: One moment, Judge.

12

MR. POTCHEN: That's all I have.

13

THE COURT: Thank you. Any redirect? Gather

14 your thoughts.

15

MS. STANYAR: Yes.

16

THE COURT: Take your time.

17

- - -

18

RECROSS-EXAMINATION

19 BY MS. STANYAR:

20

Q. Mr. Potchen asked you questions about the APA policy

21 statement and the APA's position. And he went into the

22 number of studies that they actually had relied on. Do

23 the studies cited by the APA back in, I guess, was it

24 2005?

25

A. Yes.

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1

Q. Do they comprise the universe of studies that tell

2 us about same sex parenting?

3

A. Hardly.

4

Q. Did they comprise the universe of studies that tell

5 us about child outcomes in same sex parenting?

6

A. Hardly.

7

Q. Mr. Potchen asked you about whether or not any of

8 the studies that you discussed focused on, just on married

9 same sex couples?

10

A. That's correct. He did.

11

Q. Is there any reason to expect child outcomes to be

12 worse in same sex parent families if the parents can be

13 married?

14

A. The answer is, no. Marriage benefits children. If

15 the children are doing as well in families when they are

16 not married, I know of no research that suggests when

17 people get married, their children do worse. If we were

18 to allow gays and lesbians to marry, the idea that they

19 might do worse, they may not do any better, but to do

20 worse, that doesn't make any sense to me.

21

Q. Is the social science research pretty clear that

22 marriage stabilizes families?

23

A. Yes, it does.

24

Q. Can you only get information about same sex couples,

25 same sex couple families from studies using comparison

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1 groups or can we learn about them from studies that don't

2 use comparison groups?

3

A. Absolutely. You learn a lot from when you work with

4 a group of individuals without a comparison group. You

5 find out information about what is going on in the family

6 that might benefit that family. The research that I have

7 done at the institute on and gay and lesbian adoptive

8 parents does not use a comparison because we were not

9 really interested in the question of, are they doing

10 better or worse than heterosexuals?

11

What we were looking for is information about

12 the kinds of adoptions they are doing and the kinds of

13 needs they have given the kinds of adoptions they are

14 doing, the extent of openness in adoption and what may

15 help them to manage those relationships with the birth

16 families when there is open adoption, the kind of support

17 that they are getting and so forth.

18

So it gives us a lot of information to help

19 support families who are gay or lesbian just like we do

20 the same kind of research with heterosexuals in order to

21 find out how can we best support individuals who are

22 adopting children, particularly some of the more difficult

23 children, the kids coming out of the foster care system.

24

Q. So whether or not you use a comparison group, is it

25 more a product of what you are looking at?

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1

A. Absolutely.

2

Q. Okay. And you can learn from studies that have

3 comparison groups and you can learn from studies that

4 don't.

5

A. Absolutely.

6

Q. Mr. Potchen asked you about the issue of statistical

7 power --

8

A. Yes.

9

Q. -- when you have small samples.

10

A. Yes.

11

Q. Are there any methods available to address the issue

12 of statistical power in studies that have small sample

13 sizes?

14

A. Yes. It's called meta-analysis. Meta-analysis is the

15 statistical procedure that is used in virtually every area

16 of science when you have many studies in the same area and

17 you want to see whether or not there is a statistical

18 pattern across those studies, you can pool that

19 information in statistical ways that I don't think we need

20 to go into right now. But it gives you a sense of whether

21 there is a pattern. And meta-analysis increases your

22 power. In other words, it increases the ability to find

23 differences between group means that are true differences.

24

And there has been three meta-analyses of the

25 literature. The most recent one is the most relevant, was

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1 done in 2008 by a woman named Alice Krol (ph). I'm not

2 sure if it's Alice or Alicia. And what she finds is that

3 across the studies they did in 19 or 20 studies, there

4 were no differences detected, even with increased

5 statistical power using meta-analysis with one exception.

6 And that is that parents of gay and lesbian families

7 tended to evaluate their family, the parent/child

8 relationships in a more positive way than heterosexual

9 families. That was the only thing they found. And when

10 you look at individual studies you can see that happening

11 often.

12

Q. Thank you. That's all.

13

THE COURT: Okay. Any objection to this

14 witness being excused? Okay. Thank you, Doctor. You may

15 be excused. You may remain in the courtroom if you care

16 to since you already testified or you may leave. Whatever.

17

THE WITNESS: May I stay?

18

THE COURT: All witnesses, once they

19 testified, unless we need them for rebuttal.

20

MS. STANYAR: Yes.

21

THE COURT: I'm sorry. Next witness?

22

MR. MOGILL: I need a couple minutes.

23

THE COURT: When you get a chance, if I could

24 have a witness list, I had one. I looked on my desk. I

25 think I left it at home. Do we have one laying around?

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1 You don't have to do it right now, but I would like to

2 have it. Take your time. Ready?

3

MR. MOGILL: I think we are ready to set this

4 up.

5

THE COURT: Please have a seat. Let me swear

6 you in first.

7

- - -

8

MICHAEL J. ROSENFELD, PH.D.,

9

being first duly sworn by the Court to tell

10

the truth, was examined and testified upon

11

their oath as follows:

12

THE COURT: Please have a seat. And would

13 you be kind enough to give us your full name and spell the

14 last name and get set up.

15

THE WITNESS: My full name is Michael John

16 Rosenfeld, R-o-s-e-n-f-e-l-d.

17

THE COURT: Okay. Technology has changed the

18 presentations for the better, I might say. But things

19 have really changed throughout years with computerization

20 and so forth. And I'm not sure we have one in this case

21 but we have had witnesses that have been other places and

22 we do it all by video conferencing and it's pretty much

23 like they are sitting right here. It's unbelievable, the

24 technology that is available now.

25

For those that that will be in the building

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1 watching the case for whatever reason, stop on the seventh

2 floor and see the historical courtroom and some day when

3 we are waiting for a witness I will give you the history

4 on it. But it's absolutely something to see and the

5 history is also unbelievable and we can talk about that

6 some other time. But you can read about it also. There

7 is a brochure in the historical room about that court.

8 It's always open unless the Judge is sitting at that

9 point. But it's still open. You can just walk in. It is

10 you really something to see and also the history is

11 unbelievable. Al right. Ready?

12

MR. MOGILL: I think we are.

13

- - -

14

DIRECT EXAMINATION

15 BY MR. MOGILL:

16

Q. Professor, are you settled?

17

A. I'm settled.

18

Q. Okay. I know the Judge already swore you but if you

19 could for the record, please state your full name?

20

A. Michael John Rosenfeld. Do you want me to spell it?

21

Q. Right ahead.

22

A. R-o-s-e-n-f-, as in Fred, e-l-d, as in David.

23

Q. And professor, how are you employed?

24

A. I'm an Associate Professor of Sociology at Stanford

25 University in California.

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1

Q. How long have you been at Stanford?

2

A. So, I have been an Associate Professor there since

3 2008. Before that I was an Assistant Professor from 2000

4 to 2008.

5

Q. Would you tell the Court please where you received

6 your undergraduate and graduate education?

7

A. I have a 1989 bachelor's in mathematics from Brown

8 University. I graduated magna cum laude and Phi Beta

9 Kappa. I have a 1991 Master's in Latin American Studies

10 from the University of Chicago and 2000 Ph.D. from the

11 University of Chicago in Sociology.

12

THE COURT: 2000 -- you kind came out --

13 you're fine. Something with the microphone. 2000 --

14

THE WITNESS: 2000 Ph.D. in Sociology from

15 the University of Chicago. That same year I started at

16 Stanford.

17 BY MR. MOGILL:

18

Q. While you were at Chicago doing your Ph.D --

19

THE COURT: Move the microphone a little bit

20 closer.

21 BY MR. MOGILL:

22

Q. While you were at Chicago doing your Ph.D. studies,

23 did you receive any academic honors?

24

A. There was the Centennial Fellowship. That was the

25 highest rank of fellowship that Chicago offered. I have

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1 that. And I think I had a couple of years of NIH funding

2 as well.

3

Q. At Stanford, do you have any administrative

4 responsibility?

5

A. Right. I'm currently the director of undergraduate

6 studies in sociology. That's been going on for five

7 years. Previously I have been the Director of the

8 Sociology Master's Program for two years and for one year

9 I was the Director of Urban Studies which is an

10 undergraduate program separate from sociology.

11

Q. At Stanford have you received any academic honors?

12

A. So I have won several teaching awards. There was

13 the Dean's Award for teaching which is an university wide

14 award. And then there was the Phi Beta Kappa Teaching

15 Award which is voted on by the students who are elected to

16 Phi Beta Kappa. There is the Urban Studies Teaching Award

17 voted on by the students who graduated from urban studies.

18 There was a Hellman award for Assistant Professors from

19 the Hellman Foundation.

20

Q. How do you spell that, please?

21

A. H-e-l-l-m-a-n, I believe.

22

Q. Okay.

23

THE COURT: From the mayonnaise.

24

A. And 2005 paper of mine in the American Journal of

25 Sociology. The Critique Of Exchange Theory was awarded

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1 the Roger Gould (ph) Memorial Award for the best paper in

2 the AJS from 2005.

3 BY MR. MOGILL:

4

Q. Have you published any academic works that are --

5 have you published any academic works?

6

A. Yes.

7

Q. Tell the Court, please, have you published any

8 books?

9

A. Yes. So I have a 2007 book, The Age Of

10 Independence, Interracial Unions, Same Sex Unions and the

11 Changing American Family published by Harvard University

12 Press. I have a variety of articles about topics like

13 marriage, mate selection, who marries who, how it changes

14 over time, the history of marriage. There is a particular

15 article in the Journal of Demography from 2010 about the

16 outcomes of children raised by different family types

17 which I believe we will be talking about in a little

18 while.

19

Q. We will. Are these all peer reviewed publications?

20

A. These are all peer reviewed.

21

Q. Professor, are there three journals that would be

22 considered to be top journals in the field of sociology?

23

A. Historically, the top three journals in sociology

24 are the American Journal of Sociology, The American

25 Sociological Review which is the official journal of the

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1 American Sociological Association and Social Forces.

2

Q. Have you published original research in any of these

3 journals?

4

A. Yes, I published original research in all three of

5 those top journals.

6

Q. Have you served on the Editorial Board of any of

7 these journals?

8

A. I've served on the Editorial Boards of two of them

9 -- The American Journal of Sociology and Social Forces.

10

Q. Have you been asked at any point to do a manuscript

11 review for your various journals?

12

A. Yes. For those and many others.

13

Q. Do you also speak at seminars and conferences as

14 listed on your curriculum vitae?

15

A. Yes, I do.

16

Q. And we will get into that evidence in a moment.

17 Professor, I will ask you a little bit about your

18 teaching. In the course of your work at Stanford, do you

19 teach any courses that relate to the subject area of this

20 case?

21

A. I do, indeed. I teach a class called The Changing

22 American Family which is a big undergraduate class. There

23 is a version of that that I teach for freshman students

24 only. I teach a graduate class, Sociology Of The Family,

25 for Ph.D. students. I teach Introduction To Data Analysis

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1 for undergraduates and a separate class, Introduction to

2 Data Analysis for Ph.D. students. I teach a class called

3 The Urban Underclass which is really about race and

4 segregation and public policy and poverty and to the

5 extent that it relates to family and poverty, we may touch

6 on that. And the other class I teach is a little bit of

7 an obscure statistical method but it comes into play in

8 some of the papers I published on marriage.

9

Q. Okay. And in any of your teaching, do you, does the

10 subject of same sex families and relationship comparisons

11 between same sex families and opposite sex families come

12 into the curriculum?

13

A. Absolutely. The classes on the American family or

14 the sociology of the family, certainly we talk about same

15 sex couples.

16

Q. I would like to show you or ask you to take a look,

17 please, at the binder in front of you, and look at what

18 has been marked right behind the water pitcher. That's

19 good.

20

A. I don't want to knock the water over on my way to

21 the documents.

22

THE COURT: Any way you are comfortable.

23 BY MR. MOGILL:

24

Q. If you can take a look at what's been marked as

25 Plaintiff's Exhibit 200. Is that something that you can

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1 identify?

2

A. Yes. This looks like my CV.

3

Q. Does it appear to be a current version of your CV?

4

A. It does.

5

MR. MOGILL: I would move the admission of

6 Plaintiff's Proposed Exhibit 200.

7

MS. HEYSE: No objection.

8

MR. MOGILL: I offer Professor Rosenfeld as

9 an expert in the filed of sociology.

10

THE COURT: Any voir dire or objection?

11

MS. HEYSE: No objection, your Honor.

12

THE COURT: Very well. You may so testify.

13 BY MR. MOGILL:

14

Q. Professor, what I would like to do next is ask you a

15 couple of questions just because it's probably fair to

16 assume that a lot of people don't know what sociologists

17 do.

18

THE COURT: If you can move the base just a

19 little closer, that would solve the problem. Perfect.

20 Thank you.

21

MR. MOGILL: Thank you, judge.

22

THE COURT: No problem.

23 BY MR. MOGILL:

24

Q. Professor, since it's likely that a lot of people

25 don't know what sociologists such as yourself do so let's

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1 start with, what is it that sociologists do? What do you

2 study?

3

A. Sociologists study society, individuals, and groups.

4 And one of the primary groups that has always been

5 relevant in sociology is the family.

6

Q. How is it that sociologists go about studying

7 society and groups including the family?

8

A. So, there's a lot of different ways. So, the branch

9 of sociology that I am most familiar with that I use the

10 most is study of large data sets. So survey research and

11 analysis of survey research are sort of key aspects of

12 this. But sociologists are a very diverse bunch and they

13 also do ethnography which is the study of small groups,

14 participant observation. They do all sorts, all kinds of

15 studies.

16

Q. Okay. Are there different kinds of studies even

17 among the ones you just mentioned?

18

A. So, among survey research, within survey research

19 there is sort of an important distinction between what we

20 call cross-sectional studies and longitudinal studies.

21

Q. And is there a way to explain that to a layperson?

22

A. So a cross-sectional study is a study of a

23 population at one moment in time. And a longitudinal

24 study is a study of the population where you follow the

25 same subjects over time. And both of these have

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1 advantages and disadvantages. But it's important to keep

2 in mind which is which.

3

Q. You kind of alluded a minute ago to your own work.

4 But I want to ask you specifically, in your research what

5 methods or method do you use?

6

A. So, most of the research I do is research with large

7 data sets. And primarily that means accessing public data

8 like the US Census and analyzing it. So one of the great

9 things about the social sciences is we have a lot of

10 access to free publicly available data such as the US

11 Census. So one downloads it and analyzes it and tries to

12 study subjects under question. And there is also, if

13 there isn't data available out there, one might also

14 consider trying to build a survey oneself.

15

Q. Okay. Are there other research methodologies that

16 in your opinion are valid and reliable?

17

A. Right. Certainly. There is a lot of small scale

18 studies in sociology and in psychology and other fields.

19 There is all sorts of research methods. There is

20 nationally representative studies which you can do when

21 you have a defined sample to study but there is also

22 convenient sample studies where you study populations at

23 hand. And all of those can be valid and important and

24 relevant.

25

Q. Okay. With respect to your own work as a

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1 sociologist, is there an area that you concentrate your

2 work in?

3

A. So my work is mostly about family and marriage, and

4 to a certain extent, children and children development and

5 what we know about couples and marriage and divorce as

6 well.

7

Q. How do you go about -- again, you've alluded to, but

8 how specifically do you go about conducting your own

9 research?

10

A. So, if we are talking about analysis of large data

11 sets, one gets the data from the census website or some

12 other source and one studies it using software to analyze

13 the data. And so there is a sort of a wide variety of

14 tools at hand to do that.

15

Q. Why don't we be specific here. Are you currently

16 engaged in any research projects supported by grants?

17

A. Yes. So, I have a grant from the National Science

18 Foundation of the United States and I am the principal

19 investigator of the study. It's called How Couples Meet

20 And Stay Together. It's a longitudinal study of couples

21 first fielded in 2009 and I am following the same couples

22 and individuals over time.

23

Q. Okay. So now you are about going into the fifth

24 year?

25

A. Yes.

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1

Q. And what kind of data are you gathering in that

2 study?

3

A. Well, originally we gather data about the history of

4 the couples and the individuals and how they met and what

5 their background was. And now we are mainly following

6 them to see if they are still together or if they have

7 broken up and if they have broken up, why. One of the

8 things you can do readily with a longitudinal study that

9 is more difficult to do than with another study, is one of

10 the predictors of something like couple breakup because

11 you can actually follow the same people over time.

12

Q. Are there any same sex couples in the sample that

13 you are studying?

14

A. Yes. So there is a sizeable, what we call an over

15 sample of same sex couples. We went out of our way to get

16 at many as we could into the sample. It's a national

17 representative sample but we also increase the number of

18 same sex couples. We have about 470 of them.

19

THE COURT: One quick question. All of this

20 data, when you say follow up, you follow it on the data

21 that is available to you from the Government?

22

THE WITNESS: No. When I talk about follow

23 up, I am talking about the longitudinal study that I have.

24 And there is a survey company that follows up with those

25 individuals, resurveys them over time.

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1

THE COURT: So you get original data and then

2 this company follows up with specific --

3

THE WITNESS: Right. I write the questions.

4 They track down the same people and ask them among the

5 questions, you know, two years ago, you said you were

6 married to Susan. Are you still married to Susan?

7

THE COURT: Got you. And you are allowed to

8 do that, and, again, I always thought that the census data

9 does not --

10

THE WITNESS: The census data -- I'm sorry.

11 The census data is a cross-sectional survey. You can't

12 follow individuals from census to census.

13

THE COURT: Okay.

14

THE WITNESS: And that's one of the limits of

15 the census. So, but when you are designing one's own

16 survey, you can --

17

THE COURT: But you use that initially and

18 then you go into your own survey?

19

THE WITNESS: Right. They are separate

20 things. The census survey data is separate and it's

21 cross-sectional. You can't follow people.

22

THE COURT: I'm sorry.

23

MR. MOGILL: No. It's a very important

24 question. Thank you.

25

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1 BY MR. MOGILL:

2

Q. So let's just make sure that the record is clear,

3 professor. The How Couples Met And Stay Together Study,

4 did that or did that not start with the census?

5

A. No.

6

Q. This is entirely separate?

7

THE COURT: Now I understand.

8 BY MR. MOGILL:

9

Q. We will be talking in a moment about your demography

10 study which was based on the census?

11

A. Right.

12

Q. Okay. How long, professor, have sociologists been

13 studying families and children?

14

A. Well, the birth of sociology as a discipline, it

15 goes back to the late 19th Century. And right from the

16 beginning, sociologists were studying the family. So as

17 long as there has been sociology, there has been sociology

18 of the family.

19

Q. Within the discipline of sociology is there at this

20 point in time a scholarly consensus about the impact on

21 children of being raised by same sex parents?

22

A. There is absolutely a scholarly consensus.

23

Q. What is that?

24

A. The scholarly consensus is that children raised by

25 same sex couples are at no disadvantage.

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1

Q. How has the consensus been expressed in the field?

2

A. So, the consensus has been expressed in sociology

3 through an Amicus Brief that the American Sociological

4 Association submitted in the Perrin and Windsor cases.

5

Q. The United States Supreme Court this past term?

6

A. This past term.

7

Q. And how many members are there in the American

8 Sociological Association?

9

A. I believe there are in excess of 14,000 members in

10 the American Sociological Association which I believe

11 accounts for the majority of all people in the United

12 States with sociology Ph.D's.

13

THE COURT CLERK: I'm sorry. Can you move

14 back a little bit?

15

THE WITNESS: Is this better?

16

THE COURT CLERK: They will let me know.

17

THE COURT: They are monitoring.

18 BY MR. MOGILL:

19

Q. Are all of the sociologists in the USA from the same

20 kind of background and same kind of political perspective

21 and same kind of views on the world?

22

A. No. There is a broad range of people covering

23 probably the whole range of people that there are in

24 sociology.

25

Q. Is it common or not within the field of sociology to

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1 come to a consensus on a question such as this?

2

A. Consensus is actually somewhat unusual. I do

3 research in quite a number of the areas where there is no

4 scholarly consensus, and that's okay. There is several

5 different camps with different theories and they defend

6 those different theories and that's fairly typical. So

7 scholarly consensus in sociology is not that common.

8

Q. Is the conclusion that children raised by same sex

9 parents have outcomes as good as the outcomes for children

10 raised by opposite sex parents subject to reasonable

11 debate within the field of sociology?

12

A. I don't believe so.

13

Q. Why not?

14

A. Well, the Amicus Brief, the consensus is a consensus

15 opinion that this debate has been settled. So you

16 couldn't have a consensus if there was sort of a

17 fundamental question about the central issue. So, I

18 believe that the consensus is an indication that there

19 isn't fundamental debate about the central issue, but that

20 doesn't mean that there isn't any debate at all about any

21 issues of relevance.

22

Q. Is the manner in which the American Sociological

23 Association made its determination to submit that Amicus

24 Brief a further indication of the extent of the consensus

25 within the discipline?

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1

A. Yes. What I know about this is that the brief, the

2 text of the brief, the substance of the brief was voted on

3 and unanimously approved by the elected counsel of the

4 American Sociological Association. So to me that

5 indicates that there is broad support for this consensus.

6

Q. Is it reasonable for an academic to assert that

7 research into this subject is in its infancy or

8 preliminary?

9

A. I don't believe so.

10

Q. Why not?

11

A. Because the consensus is based on broad research. A

12 lot of that research is in psychology and developmental

13 psychology. But there is a big field of research on

14 children's outcomes for children raised by same sex

15 couples. And the literature seems to show very

16 definitively that those children have good outcomes.

17

Q. Within the field sociology, is there a consensus as

18 to whether there are any particular social circumstances

19 that are consistently associated with poorer child

20 outcomes?

21

A. Absolutely. So we know that poverty is associated

22 with poor child outcomes. We know that living in

23 segregated neighborhoods has a negative effect. We know

24 that parental education has a big influence over

25 children's outcomes, so children who grew up with parents

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1 who are high school dropouts, for instance, are at a

2 really serious disadvantage. And we also know from the

3 literature on families that family instability, that is,

4 children whose family go through many transitions, divorce

5 and so on, that they are at a real disadvantage as well.

6

Q. Okay. Is it important to keep these kinds of

7 factors in mind when engaging in research in the field in

8 order for one's research to be valid and reliable?

9

A. Absolutely. You have to account for the things that

10 we already know have a big impact on children if you want

11 to measure anything else.

12

Q. You've mentioned that among your published and peer

13 reviewed work has been a study that was published on

14 demography. The name of that study again is?

15

A. Non-Traditional Families And Childhood Progress

16 Through School, I believe.

17

Q. I'm going to ask you if you could look, please, in

18 your book.

19

MR. MOGILL: May I approach?

20

THE COURT: Of course.

21 BY MR. MOGILL:

22

Q. We're going to find 109 here somewhere. 109. It

23 was admitted during Doctor Brodzinsky's testimony.

24 Professor, I've turned your binder to Exhibit 109 which

25 already has been admitted into evidence.

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1

A. Okay.

2

Q. Can you identify that?

3

A. That looks like my 2010 demography paper.

4

MS. HEYSE: For clarification, it's not been

5 admitted.

6

THE COURT: I don't think it's been admitted.

7

MR. MOGILL: I stand corrected. I apologize.

8 BY MR. MOGILL:

9

Q. Is that your paper?

10

A. It is.

11

Q. You authored it?

12

A. I did.

13

MR. MOGILL: I move its admission.

14

THE COURT: Any objection?

15

MS. HEYSE: No objection. The parties

16 stipulated to allowing the witness's original articles.

17

THE COURT: Thank you. I appreciate that.

18 And I would so rule. So it's admitted.

19

MR. MOGILL: I apologize for not remembering

20 it has not been admitted.

21

THE COURT: That's great. As I said at the

22 beginning, your cooperation is fabulous.

23 BY MR. MOGILL:

24

Q. Professor, with respect to this demography study

25 would you tell the Court, please, why you engage in this

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1 research?

2

A. Well, going back to my dissertation at the

3 University of Chicago, I had been using the census to

4 study families. So I was well familiar with the census

5 data. And when you have a tool and a resource at hand I

6 suppose one is always thinking about what you can do with

7 the tool and the resource.

8

So I was aware that there hadn't been studies of

9 children raised by same sex couples using the US Census

10 data and so I set about to try to figure out if I could

11 study that population with this data set. And the data

12 set has some natural advantages. It has some

13 disadvantages too which I suppose we will discuss. But

14 one of the natural advantages of the 2000 US Census is

15 that it's enormous in sample size. Even small populations

16 you find a lot of people in the 2000 US Census, public use

17 files.

18

Q. Okay. And what was it that you wanted to examine in

19 particular in this specific study?

20

A. Well, so, what I wanted to know is if there was a

21 way we could figure out something useful about children's

22 outcomes for children raised by same sex couples and in

23 the Census there is not a lot of questions about children.

24 But the one thing, two things that we know is how old they

25 are and what grade they are in. It's possible to figure

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1 out with those two pieces of information if the child is

2 making good progress through school or if they appear to

3 have been held back.

4

Q. Now, the Census is a cross-sectional study, right?

5

A. Yes. The census -- I am glad you asked me that.

6 The census is a cross-sectional study.

7

Q. How do you find out about something longitudinal if

8 you are using the cross-sectional study?

9

A. Exactly. That's a key question. So ordinarily, you

10 would only know what family the child was living with at

11 the time of the Census which wouldn't help you answer the

12 question about what the family was when the child was

13 going through school in the past few years, but there is

14 an additional question in the Census about whether or not

15 all the members of the household were living in the same

16 place five years ago and if they are all living in the

17 same place five years ago, you can -- you know that the

18 family has been together for at least five years. So that

19 knowledge helps you know that the family that was there at

20 the time of the Census has been together for at least five

21 years and then you know at least five years worth of who

22 was raising the child.

23

Q. What was the overall size of your sample in that

24 study?

25

A. As I mentioned, the Census is a big sample survey.

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1 So there were 700,000 primary school children in the

2 sample including the three thousand children who had been

3 raised by same sex couples.

4

THE COURT: How did you get the sample? How

5 did you determine -- just random?

6

THE WITNESS: No. The Census files are

7 available to everybody. And so I downloaded them and then

8 I was looking for the grade school children and I selected

9 them.

10

THE COURT: I see. There are seven hundred

11 thousand?

12

THE WITNESS: Seven hundred thousand children

13 who have lived at least five years with the family.

14

THE COURT: I got it now. Thank you.

15 BY MR. MOGILL:

16

Q. How did you identify which ones were being raised in

17 same sex households?

18

A. So, the Census is a survey that is filled out by the

19 head of household. And they indicate, they indicate a

20 bunch of things about themselves and everybody else living

21 in the household. So if they indicate that another adult

22 in the household is their spouse or their unmarried

23 partner and they indicate that that person is the same

24 gender as they are themselves, then that is a same sex

25 couple.

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1

Q. Okay. And obviously in 2000, this predated

2 legalization of same sex marriage in any state?

3

A. Right. There wasn't federally recognized or state

4 recognized marriage for same sex couples. But many same

5 sex couples reported themselves as married anyway because

6 they have marriage like commitments. They considered

7 themselves married. So, it's not -- the Census recoded

8 them actually. The Census didn't allow the married answer

9 to stand, but it was fairly common for same sex couples in

10 long term committed relationships to report themselves as

11 married. In my own data I see that as well, that couples

12 who live in states where there is no same sex marriage

13 report themselves as married if they have been together

14 for a long time and they made that marriage like

15 commitment.

16

Q. Are there other same sex couples who were not

17 legally married at the time who you were able to identify

18 as couples but --

19

A. There were two options. You could identify the

20 other -- the head of household could identify the other

21 person as their spouse or as their unmarried partner.

22

Q. Professor, how long from beginning to develop the

23 study design to publishing the article on demography, how

24 long did it take you to do this study?

25

A. It took about four years from when I started

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1 planning that study to when the paper actually came out

2 which might seem like a long time. It seemed like a long

3 time to me. And that's just sort of the nature of how

4 academic publishing in the social science works. It's a

5 very slow process.

6

Q. Okay. As a result of the study, is there a main

7 overall finding that you have?

8

A. Yes. The main overall finding is that progress

9 through school for children raised by same sex couples is

10 just as good as the progress through school for children

11 raised by any other kind of family when you compare

12 similarly situated families, that is, families with the

13 same incomes, families with the same parental education

14 and so on.

15

Q. Okay. Now, I'm going to ask you a lot of questions

16 about that.

17

A. Yes.

18

Q. And is it correct that you prepared a series of

19 slides to show the Court today that will help explain how

20 you came to that conclusion?

21

A. Yes, it is.

22

Q. And is it also correct that in the course of going

23 through these slides that you are going to address the

24 kind of factors you've identified?

25

A. Yes.

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1

Q. And so where is the starting point, professor?

2

THE COURT: Before you start, usually I take

3 a break at 3:30 but it seems like a good spot to break.

4 No use for him start and stopping so we will take about

5 twelve minutes, give or take. Let's try to reconvene at

6 twenty to.

7

(Recess from 3:25 p.m. until 3:45 p.m.)

8

THE COURT: You may be seated. Thank you,

9 very much. You may proceed.

10

MR. MOGILL: Thank you, Judge.

11

THE COURT: Okay.

12 BY MR. MOGILL:

13

Q. So, professor, at the break we were just about to

14 start taking a look at your data.

15

A. Yes.

16

Q. How you break it down.

17

A. Yes.

18

Q. And explain to the Court where you start and how you

19 got to your conclusion?

20

A. Right. So, what I want to do first is just show --

21

THE COURT: Is this an exhibit?

22

MR. MOGILL: This is a demonstrative exhibit.

23 It's identified as such as our list.

24

THE COURT: Is it in your book?

25

MR. MOGILL: Yes.

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1

THE COURT: What number, just so we have a

2 whole record. You don't have to tell me right this

3 second. I just think the record, we have to make sure what

4 we are doing.

5

MR. MOGILL: 202.

6

THE COURT: 202. Thank you.

7

MR. MOGILL: I apologize.

8

THE COURT: No problem. That's why we are

9 looking at the screen.

10 BY MR. MOGILL:

11

Q. 202, professor.

12

A. So, this is actually a table that's adapted from my

13 2010 demography paper. And what I want to do with this

14 table is give a little bit of perspective about what we

15 are talking about when we talk about percentage of

16 children who have ever been held back. These are primary

17 school, elementary school children. What percentage have

18 been held back and what kind of different categories.

19 It's important to have a little bit of perspective about

20 how big the differences are we are actually talking about.

21

Q. I want to interrupt you for a second.

22

A. Yes.

23

Q. Why is it that you choose to study elementary school

24 children?

25

A. Right. So, because in the Census we only know what

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1 the family was for the past five years, that five year

2 window covers all or most of elementary school for these

3 children. But if you are looking at later outcomes, high

4 school or something, then the five year window only covers

5 a fraction of their progress through school. So the key is

6 we want to know as much as we can about what the family

7 was when the child was going back through school. You

8 don't know what the family was. So the early outcomes are

9 the only, I think the only outcomes that are relevant.

10

Q. Is there another reason why it's useful,

11 particularly useful to study early outcomes?

12

A. Right. So research on children and on educational

13 outcomes over the life course really shows that a lot of

14 disadvantage is sort of fixed in at the early ages. We

15 are sort of getting earlier and earlier in our

16 understanding and approach to sort of the differences

17 between children and readiness for school. It's sort of a

18 big thing that they measure at the kindergarten levels.

19 So, and those things actually have a lot of predictive,

20 pretty good value for who is going to do well in school

21 later on. So the early years are important for the

22 children and for the design of the study both.

23

Q. Okay. With that background, what do you have?

24

A. So, the numbers for children left back in school,

25 these are the raw numbers and so they're not -- in this

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1 column here.

2

Q. What do you mean by raw numbers?

3

A. What I mean is this is -- in this column it's

4 numbers that are not corrected for whether the family is

5 rich or poor, whether they live in a rural area or the

6 suburbs and so on. It's sort of the average for that

7 group. And, of course, so there is a couple points I want

8 to make about the averages. And with respect to what I

9 was saying about what we know affects children's outcome.

10 So there is a variety of family structures here. The

11 heterosexual married couples, their children have a

12 6.8 percent --

13

Q. I want to interrupt you.

14

A. Yes.

15

Q. Before we go into each subcategory, why don't we

16 identify what these subcategories are to the Court?

17

A. So first subcategory is family type. And then there

18 is child's relationship to the head of household. So most

19 of the children are natural born children but there are

20 also adopted children, step-children, foster children that

21 are identified as much in the US Census. We have child's

22 race, and on the next page, because this table goes over

23 two pages, we have income of the household, gender of the

24 child, metropolitan status, meaning suburban, urban and

25 rural, and householders' education, education attainment

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1 of the adult.

2

Q. So now that we've identified the universe of factors

3 we are looking at, let's go back to the first slide. I

4 know you were starting to talk about raw numbers there.

5

A. So, what you see here at the top is the children

6 raised by heterosexual married couples. They have a

7 6.8 percent rate of grade retention. The children raised

8 by same sex couples had a 9.6 percent rate of grade

9 retention. So it's a difference of about three percent.

10 It turns out that most of that three percent difference is

11 actually explained by the difference in income and

12 education of the families.

13

Q. Is that reflected anywhere on this slide?

14

A. Absolutely. So, when you control, if you go to the

15 far right column, is the difference to the reference group

16 in each category significant after you accounted for the

17 key factors, and the main key factors are income and

18 education, the answer is, no. The children of same sex

19 couples can't be statistically distinguished in terms of

20 progress through school from the children of heterosexual

21 married couples after you account for -- when you are

22 comparing apples to apples, comparing rich families to

23 rich families and poor families to poor families. And

24 that's a key finding.

25

So, and there's other things we know affect

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1 children's outcomes. So, relationship to the head of

2 household has a big influence. The natural born children

3 who are also the most likely to have lived their entire

4 life in that family, they have the lowest rate of grade

5 retention. There is pretty big differences by race. The

6 Asian-American children are actually the most likely to

7 make good progress through school.

8

Q. If I can interrupt you before you who move to race.

9 Is relationship to the head of household something

10 specifically identified in the US Census?

11

A. Yes. Right. So there is different categories for

12 the different relationships. Adopted, step, and foster

13 children are separate boxes to check on the long form of

14 the Census.

15

Q. Okay. I'm going to have another question for you

16 about that maybe half an hour, forty-five minutes from

17 now.

18

A. I'm looking forward to that. So, as I was saying,

19 there are big differences by race as well. So,

20 Asian-American children actually are slightly more likely

21 to make good progress through school than white children

22 who are more likely to make good progress than Hispanic

23 children who are likely to make good progress than

24 African-American children, and so on. There are big

25 differences based on household income and that sort of

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1 goes along with the way that you would expect. The most

2 well to do families have the children who are least likely

3 to be held back in school. And the poor families have the

4 children who are most likely to be held back in school.

5 And those differences are much greater than the

6 differences between, say, heterosexual married couples'

7 children and the children of same sex couples.

8

Female students, girls, I suppose you would say,

9 for elementary school, are more likely to make good

10 progress through school. They are less likely to be held

11 back than boys. Children whose school is in the suburbs

12 who live in the suburbs, they have a lower rate of grade

13 retention than students who live in the city who in turn

14 have a lower rate of grade retention than people in rural

15 areas. And lastly, the householders' education has an

16 enormous influence as well.

17

So, the children whose -- who live in a

18 household where the head of the household has a college

19 degree, only 4.4 percent of them have been held back in

20 school. But the children who live in a household where

21 the head of household has not completed high school, they

22 have a rate of grade retention of about 14.3 percent.

23

Q. Okay. So you started out with these aggregates.

24

A. Right.

25

Q. And then where do you go from there?

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1

A. So one other thing that I wanted to mention about

2 this is that there is a couple of categories of, you know,

3 it's natural in a sense to compare the children of same

4 sex couples to the children of heterosexual married

5 couples, but there are other comparisons that are natural

6 and relevant as well.

7

So if you look down here, the heterosexual

8 cohabiting couples, these are couples in the 2000 Census,

9 heterosexual couples that were not married. Their

10 children had a rate of grade retention of 11.7 percent

11 which is actually a little bit more than the children who

12 were living with same sex couples which was 9.6 percent.

13

Now, the difference between 9.6 and the 11.7 was

14 not statistically significant. So I think we would say

15 that as far as we can tell from the data, there was no

16 difference that we can measure between the progress

17 through school of the heterosexual cohabitors and the same

18 sex couples. And what is relevant about that is that in

19 2000 and we are talking about children, the Census was in

20 2000, so these are children going through school in

21 1990's. So, the same sex couples, none these same sex

22 couples were legally married in the United States at that

23 time. So, to a large extent, the heterosexual cohabiting

24 couples are in one sense the most natural comparison

25 because they are the most similarly situated in terms of

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1 legal status.

2

Q. Okay. Now, when you take all these of factors into

3 account, you have these controls, you have already

4 indicated that there is no statistically significant

5 difference.

6

A. Right.

7

Q. Could you explain to the Court how it is that

8 process, without getting deeply into math and going over

9 all of our heads, how that process is carried out so that

10 you get a fair number and a fair statistical comparison?

11

A. Right. So, there are procedures in applied

12 statistics for comparing groups while controlling for

13 other things. And maybe that's the most I should say

14 about that which is it's well-established how you can

15 control for something like family income or parental

16 education and then look at the difference between two

17 other groups net of whatever the difference between income

18 and education might explain. And as I say about the

19 difference between outcomes for family types, the

20 difference between the family types are fairly narrow to

21 start with. And after you account for the differences in

22 income and education which are the biggest things that

23 drive children's educational progress, the family type

24 groups are all clustered pretty close together.

25

Q. And if you could, just to make it perfectly clear,

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1 why is it that you want to conduct your study in a way

2 that takes into account these factors?

3

A. Because the family groups differ a lot in income and

4 in parental education. And if you want to know what the

5 affect of family is on children, you have to control for

6 that. Control is kind of a word --

7

Q. So this family structure at this income level, this

8 family structure at this income level?

9

A. Right. It really comes down to a statistical way of

10 comparing apples to apples. You want to compare similarly

11 situated families to similarly situated families as much

12 as you can to see whether some other factor like family

13 type still has an affect on outcomes after you have

14 controlled for the things that you know affect children's

15 outcomes.

16

Q. One second. Thank you. Now, professor, one of the

17 arguments that the state defendants are making in this

18 case is that Michigan's ban on same sex marriage is

19 reasonable because it promotes -- it helps provide an

20 optimal child rearing environment for children. Is it

21 possible to look at your data in a way that examines

22 optimal child outcomes?

23

A. Yes. If we follow the theory, and this is not a

24 theory that I subscribe to, but I understand your question

25 that this is a theory promoted by the state defendant's

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1 witnesses, if we follow the theory that only families that

2 were in a statistical sense, most likely to have children

3 make good progress, if we only allowed groups whose

4 average outcomes were most associated with good progress,

5 we would actually end up excluding almost everybody. And

6 let me just explain what I mean by that.

7

Among the racial groups, the Asian children

8 actually make slightly better progress than the white

9 children. If we excluded people based on which racial

10 group was most likely to make progress, we would be

11 excluding everybody except the Asian children. And if we

12 look at income, you know, the rich children are much more

13 -- the children of rich families are much more likely to

14 make good progress than the poor. So if we would be

15 excluding everybody except people with the highest

16 incomes, the children living in the suburbs make better

17 progress than children in urban or rural areas, we would

18 be excluding everybody except suburban residents. And

19 parents with college degrees have children who are more

20 likely to make good progress through school.

21

So if we follow this theory to its logical

22 extent, it's a broad experiment I suppose, but if we

23 follow it to its logical extent, only Asian families with

24 high incomes and advanced degrees who lived in the suburbs

25 would be allowed to marry, if that were the rule that were

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1 applied.

2

Q. Thank you, professor. Now, I want to turn away from

3 your study and ask you -- actually, we are still going to

4 be a little bit on your study. But I will ask you some

5 questions about response to a particular -- two particular

6 responses to your study.

7

A. Yes.

8

Q. You are aware, are you not, that after your study

9 was published, Professor Allen and Professor Pavaluk and

10 Professor Price published a comment also in demography

11 critical of your study?

12

A. Yes.

13

Q. And it's correct, is it not, that you published a

14 reply also in demography?

15

A. That's correct.

16

Q. And it's also correct in his report in this

17 particular case, Professor Allen has expanded on his

18 critique of your demography study, is that correct?

19

A. That's correct.

20

Q. All right. Now, I would like to start first with

21 Professor Allen's critique from his report. Are you

22 familiar with that?

23

A. I am, indeed.

24

Q. Have you read Professor Allen's report submitted in

25 this case?

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1

A. I have.

2

Q. As you understand it, what is Professor Allen's main

3 criticism of your demography study?

4

A. Right. I would like to --

5

Q. Have you prepared a slide or two?

6

A. Yes, I have. So, I'm going to skip over this one

7 for a moment. I will come back to that one. This slide,

8 the left hand side of this slide is Allen's figure two

9 from his report.

10

Q. Does that purport to be based on anything in your

11 study?

12

A. Yes. He introduced this figure by saying, what

13 Rosenfeld actually found was represented in figure two.

14 So since I'm Rosenfeld, I thought that I should look into

15 that and see if that was correct.

16

Q. Is this at paragraph 26 of Professor Allen's report?

17

A. I believe so. I believe so. So the argument that

18 he's making, if you look at the ovals in his figure, the

19 ovals are supposed to represent the confidence intervals

20 for what grade the child would actually be in. And if you

21 look at the large --

22

Q. Excuse me. Right there. I need to know what the

23 confidence interval means.

24

A. So the confidence interval means, if you were able

25 to replicate the study, the data, in other words, if you

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1 had another census sample of equal size, where do you

2 think there would be a ninety-five percent chance that the

3 average from the second sample would be in? And if you

4 had many samples of the similar size, what would the

5 distribution of them be? Because the average would be

6 different. There is nature variation in every sample and

7 so the ninety-five percent confidence interval is supposed

8 to tell you where you think based on the data you have at

9 hand, what you think 95 percent of other theoretical

10 samples would begin. And that gives you an idea of how

11 much uncertainty there is. The larger the confidence

12 interval, the more uncertainty there is. And so if you

13 look at Allen's figure two, you will see that there is --

14 the biggest oval is the oval for same sex. This is --

15 it's a plot of age and grade.

16

Q. Aging on --

17

A. Aging on the X axis and grade on the Y axis. And in

18 theory there is a line that is there that is a helpful

19 line to indicate that every year the student should be

20 advancing one grade. That is the idea. And the question

21 is, well, how much do we know about the grade level of

22 children raised by same sex couples? And in his figure he

23 suggests by that big oval, if you look at the Y axis you

24 will see he has grade two and three.

25

Q. On the up and down axis?

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1

A. There is two and three. Those are the grades. If

2 you look at the oval for same sex couples it looks like

3 the uncertainty goes from somewhere around one or less

4 than one to maybe where four would be although he has not

5 marked all of the numbers. Anyway, it covers several

6 years of grade.

7

So the idea here would be that there is an

8 enormous uncertainty about what grade you could expect

9 children of same sex couples actually to be in. And that

10 enormous uncertainty would cover three or four years. And

11 that uncertainty is so wide that it includes not only the

12 traditional children of traditional, what he refers to as

13 traditional, which is the heterosexual married couples,

14 but also the foster children.

15

And so it's a specific argument. I would

16 characterize my interpretation of his argument is that the

17 reason Rosenfeld found no difference between the children

18 of same sex couples and the children of heterosexual

19 married couples is that the uncertainty about grade

20 attained for the children of same sex couples is so broad

21 that it would encompass almost anything. And that's my

22 interpretation of what he was arguing. And that's what

23 the figure purports to show.

24

Q. Okay. Now, does figure two actually reflect your

25 data?

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1

A. Right. So here is -- the right side of this little

2 exhibit is one view of what the data actually shows.

3

Q. With or without controls?

4

A. Without controls.

5

Q. Is this is looking -- it's marked at the top?

6

A. This is looking at the three groups of the

7 traditional, just adopting his terminology there, the

8 heterosexual married couples. The children of same sex

9 couples and the foster children, and what I have done here

10 is I have plotted the actual data on the same Y axis so my

11 grade two lines up with his grade two, my grade three

12 lines up with his more or less. And here I'm plotting it

13 without controls because you actually see a bigger

14 difference between the groups without controls.

15

Q. I want to stop you for a second.

16

A. Yes.

17

Q. Your figure says nine year old and his says eight

18 year olds?

19

A. Yes.

20

Q. That is not an accident, is it?

21

A. No.

22

Q. Can you explain to the Court why that is?

23

A. I am going to go back to the previous figure here.

24 The Census happens in the spring. It happens at the end

25 of the school year in April. So by April, most ninth

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1 graders, sorry, most nine year olds are in third grade at

2 the end of the school year. Some of them don't turn nine

3 until fourth grade. But if you are in second grade and

4 you are nine years old, it's very likely you have been

5 held back.

6

Really what we are looking at is the nine year

7 old who should be in third grade and if they have been

8 held back, they are still in second grade. And the

9 difference between Allen's figure and mine on the years,

10 it's not actually a material difference in terms of the

11 discussion we are having, but since I am plotting the data

12 accurately, I had to plot it for what it actually shows.

13 So there is a difference in the years but it's not

14 actually the difference that I think is relevant to the

15 argument. The difference that is relevant to the

16 argument --

17

Q. Your figure on the right side represents what your

18 data actually shows, correct?

19

A. This is an actual graph of the uncertainty in actual

20 grade attained for this sample from the 2000 Census

21 without controls. In a minute I will show you with

22 controls. But what I want to point out here is that the

23 figure -- first of all, on this scale, the grade attained

24 by traditional and same sex couples are so close that you

25 can't tell the two points apart because if you will

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1 remember, in the previous figure, there were only three

2 percentage points apart to start with. Three percentage

3 points on the scale is a tiny difference.

4

The other thing is that the actual confidence

5 intervals are plotted here. It's just they are so small

6 you can't see them on this scale. On this scale, the

7 confidence intervals, for instance, of what grade same sex

8 couples children would be in, it covers a range of

9 4 percent and 4 percent on this, you can't really see it.

10 So I have plotted, you know, the grade attained and the

11 confidence interval. But as you can see, it's quite

12 different from the picture that Professor Allen made.

13

Q. Okay. Now, so is there anything else that is

14 particularly noteworthy about the differences in what you

15 actually found and what Professor Allen claims you found

16 with respect to the placement of the ellipsis in his

17 figure?

18

A. So another thing to notice about his figure is he

19 has his ellipse for the grade by year of same sex

20 children -- raised by same sex couples is so large that it

21 also completely encompasses what we know about foster

22 children. And that would suggest that there wouldn't be a

23 way of distinguishing in the data between outcomes of

24 foster children and the outcomes of children raised by

25 same sex couples.

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1

Now, foster children are at a pretty substantial

2 disadvantage without having -- many don't have a stable

3 family situation. In the actual data, in fact, over here

4 on the right, you can see that the foster children and

5 their entire confidence interval are totally outside the

6 confidence interval for the same sex children raised by

7 same sex couples and children raised by traditional or

8 heterosexual married couples. That is a substantial

9 difference. In my models actually, the foster children do

10 significantly worse than the children raised by same sex

11 couples.

12

Q. Now, your figure on this slide next to Professor

13 Allen's figure as you already indicated is, before you

14 controlled the factors like parent education, income, you

15 also prepared a slide that shows what these differences

16 are and are not when you do control.

17

A. Yes.

18

Q. Probably the next slide.

19

A. Right. That would be. Yes. So on the same scale,

20 and this is again, Allen's figure two reproduced on the

21 left, on the same scale here, we have the three points,

22 traditional children of traditional heterosexual married

23 couples, children of same sex couple, and foster children

24 after controlling for income and education. And the main

25 difference between this and the previous figure is that

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1 here the points on the right are much closer together.

2 Because after you controlled, after you accounted for

3 income and education, there is not that much difference

4 between the family types left because income and parental

5 education are the biggest driving forces in children's

6 educational outcomes.

7

Q. Is it still 95 percent confidence levels?

8

A. The 95 percent confidence intervals are plotted

9 there but they are just so small you can't actually see

10 them on the scale.

11

Q. Which leads to the next question. And that is --

12 that's really hard to see. Can you zoom in?

13

A. I can zoom in. I can zoom in. So, this is the

14 zoomed in version of the figure. And what I want to show

15 you here is that now the Y axis of the two figures are

16 different. So on the right hand side, the grade level

17 goes from only 2.8 to 3. And, remember, for nine year

18 olds, if no one was left back in school they all would be

19 in third grade. But a certain percentage were left back

20 so get a little less than third grade on the average. The

21 entire Y axis of this figure would fit into this little

22 fraction right below three of the figure on the left. But

23 so the figure on the right is zoomed in so we can actually

24 see what the points look like and the confidence intervals

25 and so on.

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1

Q. So, in your figure with the zoom, now that it's

2 blown up and you can see sort of like under a

3 microscope --

4

A. Yes.

5

Q. -- the square representing where the traditional

6 children are and the diamond with the bar above and below

7 for same sex children, that bar goes above the square for

8 traditional children?

9

A. Right.

10

Q. Could you tell the Court what that means?

11

A. Absolutely. So, previously what I said and what the

12 paper demonstrates is that controlling for income and

13 parental education, there is no significant difference

14 between the children of same sex couples and the children

15 of heterosexual married couples. What we see here is a

16 graphic representation of that. The average in the model

17 of grade attained for the traditional heterosexual married

18 couples is a little bit higher. It's like one percent

19 less likely to be left back in school. But because there

20 are uncertainty about the difference, the confidence

21 interval which is the bars where -- that surround the

22 children of same sex couples, go actually above the

23 average for the children of traditional heterosexual

24 married couples, which means that the data are consistent

25 with the -- well, they are consistent with the two groups

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1 being the same in the real world in terms of progress

2 through school. They are also consistent with the children

3 of heterosexual married couples doing a little bit better

4 and they are also consistent --

5

Q. Heterosexual?

6

A. Heterosexual married couples.

7

Q. Heterosexual married couples?

8

A. Right. So the traditional category is heterosexual

9 married couples. And the data also is consistent with a

10 real world in which the children of same sex couples

11 actually did a little better.

12

Q. What does that reflect?

13

A. That's reflected in the fact that this confidence

14 interval goes a little bit higher than that square. The

15 fact that the square is entirely within that confidence

16 interval means that the model is consistent with the

17 reality because, remember, the Census, even though it's an

18 enormous sample size, it's only 5 percent of the country.

19 So, there is uncertainty about what the other 95 percent

20 are up to. And we can sort of quantify that statistical

21 uncertainty.

22

So here is just a graphical expression of the

23 fact that consistent with the model are either that the

24 children of heterosexual married couple do a little bit

25 better than same sex couples or they do actually the same

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1 or the children of same sex couples do a little bit

2 better. And that's -- and that's what we mean by no

3 significant difference.

4

When there is no significant difference when any

5 of those three options could be true in the real world, we

6 generally treat the result as if there is no difference in

7 the real world. We haven't proved that there's no

8 difference in the real world. But we also have not been

9 able to reject the hypothesis that in the real world the

10 two groups are the same.

11

Q. How do you account for these huge differences

12 between Professor Allen's figure two and your graph as you

13 have documented it?

14

A. I can't account for that difference. I know how --

15 I can reproduce how my figure was created. And I believe

16 I reported that. I made a supplemental report to

17 demonstrate how the numbers were arrived at. I don't know

18 how Allen's figure was arrived at, but it's my opinion

19 that it's not -- that Allen's figure is not consistent

20 with the data.

21

Q. Were you working with the same data?

22

A. Yes.

23

Q. Can you explain to the Court why you can be sure you

24 were working with the same data?

25

A. Yes. So, you know, the first part of the answer is

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1 that the Census 2000 is available to everybody. So it's

2 the same data. But the second and more particular part is

3 that when Price, Allen and Pavuluk were preparing their

4 critique of my name paper in demography, I think maybe

5 Professor Price, but I don't remember who it was, e-mailed

6 asking me for my version of the census data with the

7 recipe that I used to create the models that I used in my

8 demography paper and I was happy to send it to them and

9 they reproduced my model exactly in their paper and did

10 some other things.

11

Q. So they could see that they replicated your data?

12

A. They replicated my models exactly. So as to what

13 Rosenfeld's model is, there is no debate. We both have

14 used the same model and demonstrated it in the published

15 reports. The one other point I wanted to make clear --

16

Q. It's the same question I was going to ask you. Go

17 for it.

18

A. The one other thing I was going to say was that you

19 can see here clearly that the confidence interval for

20 foster children is completely outside the confidence

21 interval for children raised by same sex couples. The two

22 are totally distinguishable statistically in this model in

23 the Census. So there isn't -- it's not true that you

24 can't distinguish between them. You can. Absolutely.

25 And it's also possible to make a direct test of the

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1 outcomes for the children raised by same sex couples

2 compared to the foster children. And I reported that in

3 the supplemental report as well. It's a significant

4 difference.

5

Q. So one or two more questions regarding Professor

6 Allen's critique of your demography study. If you step

7 back just to give it some perspective, what is the

8 percentage of grade level range represented by the

9 confidence interval for the children being raised in same

10 sex households? And what is Professor Allen's, actually

11 two questions -- and what does Professor Allen's figure

12 suggest that the range is?

13

A. So the actual confidence interval for children

14 raised by same sex couples, the range of it is about

15 4 percent of one grade year. You can see it goes from

16 about 2.91 to about 2.945. So the entire range of that

17 uncertainty is about 4 percent of one grade level. And if

18 you look at Allen's figure, the entire range of the

19 uncertainty is on the order of three or four actual entire

20 grade years which is a difference of at least 50 times, 50

21 times greater.

22

Q. Is his range even remotely accurate?

23

A. I don't believe so.

24

Q. If, in fact, his range, his figure is inaccurate, is

25 that significant?

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1

A. Well, the argument as I understand it that Professor

2 Allen was making was that there was enormous uncertainty

3 in outcomes of children raised by same sex couples. So it

4 was a statistical argument. But there is also a more

5 general argument that the defense witnesses make, as I

6 understand it, which is that we just don't know enough

7 about outcomes for children raised by same sex couples,

8 that there is uncertainty not only the Census but in the

9 literature at large. And here Professor Allen had an

10 opportunity to quantify that uncertainty. And as far as I

11 can tell, he exaggerated it by at least 50 times.

12

Q. I would like to turn away from this. As we talked

13 about a few minutes ago, it's correct, is it not, that

14 Professor Allen and Professor Pavaluk and Professor Price

15 published a comment critical of you and you responded to

16 that?

17

A. Yes. That's correct.

18

Q. And also, again, in demography. What is your

19 understanding of the critique in demography that they

20 published?

21

A. So, let me see if I have it. So, the procedure that

22 Allen, Pavuluk and Price went through, in their critique

23 of me, was that they extended the sample of children under

24 study. I limited the sample to children who lived in the

25 same household with the same parent for at least five

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1 years.

2

Q. Explain again why that was important to you?

3

A. Because the question that we are trying to figure

4 out is how does family affect children's outcomes? And

5 so, if you don't know what the family is, then you can't

6 use that data to answer the question. If the family is

7 unknown, that data does not help at all.

8

Q. You don't know what is accounting for any

9 difference.

10

A. Right. So, and as I said, because the Census is a

11 cross-sectional survey, you have to be careful about

12 knowing what was going on in the past. For a lot of

13 questions in the Census, you only know what the status was

14 at the time of the Census. But we have this five year

15 question, you know, was each person living in the same

16 house five years ago?

17

So what they added into the model was a large

18 number of children, several hundred thousand, who had not

19 been living in the same place with the same parents for

20 the past five years and, therefore, whose family, while

21 they were going through elementary school, was unknown.

22 If we don't know they were living with this family, we

23 don't know what family they were living with. And that's

24 relevant especially to the study of children raised by

25 same sex couples because they are especially likely to

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1 have come from an earlier relationship. That is, it's

2 typical in the data to see that --

3

Q. Particularly at this point in time?

4

A. Particularly at this point in time. This is the

5 1990's. It's typical for the children to have been raised

6 by a prior family. Now, in the Census we don't know what

7 the prior fairly is, but we know that the percentage of

8 adopted and foster children is pretty low. So the

9 presumption is the child is the natural child of one of

10 the partners of the same sex couple. And there must have

11 been an earlier family for most of those children.

12

Q. Now, methodologically, as I understand it, what you

13 did to control for family stability was in front, pull out

14 children who had not been in the same family for five

15 years, correct?

16

A. That's right.

17

Q. And what you are saying if I understand you

18 correctly is that Allen, Pavaluk and Price in their

19 comment put those kids back in?

20

A. Right.

21

Q. Did they claim that they took them out in the back

22 end?

23

A. Well, what they would say, I think, if I can

24 characterize it, is they put those additional children

25 into the model but then they control for whether we know

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1 the child was in this family five years ago or not. And

2 in my view, and I stated so in my response to their

3 critique, in my view, that that is very problematic

4 because if you don't know what family the child was raised

5 in, the additional data does not give you any useful

6 information.

7

Sometimes there is a tendency, especially so

8 among the people like me who do large sample surveys, is

9 you always want a bigger sample. The larger sample is

10 always good. But if the larger sample doesn't include the

11 information you need it to include, not only does it not

12 help, but it can totally bias all of the analyses that you

13 are doing.

14

So, the problem with adding the children of

15 unknown family in is that they then skew all the other

16 measures and just controlling for whether you know the

17 family or not doesn't solve the problem.

18

Q. Is there an analogy maybe to soup?

19

A. So, a soup analogy. A soup analogy would be

20 something like, if you had your vegetarian friends coming

21 over for dinner and you were making a vegetarian soup but

22 then you added in the meat at some point because you

23 thought the meat might be helpful, but then you realized

24 that the vegetarian friends would not eat the meat and you

25 took the meat out, would it be just as good -- would it

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1 still be vegetarian soup? And the answer is, that analogy

2 is a little -- it may not be an exact enough an analogy.

3 But the idea I am trying to get across with that is that

4 doing the analysis with the sample that is not

5 appropriate, skews the analysis in a way that you can't

6 fix later.

7

Q. Okay. Now it's correct, is it not, that their

8 criticism of your study actually has two particular

9 points. One, the five year control, and there is a second

10 one, isn't that correct?

11

A. Yes.

12

Q. Would you explain to the Court what that second

13 control is?

14

A. They also added -- I had looked only at the children

15 at the head of household identified as the natural born

16 child of the head of household because those are the

17 children most likely to have been with the family the

18 longest. And they added in the adopted children, the

19 stepchildren, and the foster children. And the difficulty

20 with this is that we don't know anything in the Census

21 about the process of how the step and adopted and foster

22 children came into the family.

23

So, and it's also been argued in the literature

24 I think fairly persuasively that same sex couples are more

25 likely to adopt children with special needs. And so, the

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1 adoption process and situation is not comparable between

2 the two groups. And if you don't know anything about it,

3 if you don't in the US Census, in my view, you couldn't

4 really use those other cases because the truth is adopted

5 children and foster children and to a certain extent

6 stepchildren as well, they carry some baggage from

7 previous family transitions into the same sex couple

8 family. And you want to try as hard as you can to

9 distinguish between the affect of living with same sex

10 couple parents, being raised by same sex couples from the

11 affect of the prior divorce or the family disruption that

12 put the kid in foster care or up for adoption in the first

13 place. And since the family disruption that put the kid

14 in that situation in the first place could have some real

15 long term consequence, you want to limit that as much as

16 you can.

17

Q. Now, do Allen, Pavaluk and Price claim that they

18 put -- put the step, adopted and foster children into the

19 soup and then controlled for it?

20

A. Right. So --

21

Q. Is the critique of that the same as the five year

22 stability?

23

A. It's the same critique because there is difference

24 between the groups that we can't observe. So just

25 controlling for adopted doesn't account for the fact that

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1 the process for adoption would be entirely different

2 potentially between the two groups in ways we couldn't

3 observe.

4

Q. Okay. And have you reduced, I think we have already

5 identified that you reduced your response to their comment

6 to a published reply in demography, is that correct?

7

A. That is correct.

8

Q. If you could look in the binder for Plaintiff's

9 Proposed Exhibit 201 --

10

A. Yes.

11

Q. -- and if I can ask you if that is, in fact, your

12 reply to Allen et al. published in demography just this

13 past year?

14

A. It is.

15

MR. MOGILL: That being the case, I move for

16 its admission.

17

THE COURT: I think there is a stipulation

18 that as long as the witness who is testifying is also the

19 author, they have no objection.

20

MR. MOGILL: I understand it's stipulated.

21

THE COURT: Okay. Thank you.

22 BY MR. MOGILL:

23

Q. Professor, I would like to turn your attention now

24 to another matter but still involving Professor Allen.

25 Are you aware of a study that Professor Allen conducted

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1 and which has been published based on high school

2 graduation rates in Canada based on the 2006 Census?

3

A. Yes.

4

Q. Before we go there, I want to back up. One last

5 question when we go back to the, not the figures -- right

6 where we are. Is it significant -- if you just look at

7 stepchildren?

8

A. Right. My analysis is that if you only added

9 stepchildren in, the stepchildren wouldn't change the

10 result. That it's the adopted and foster children who

11 really make the difference and whose -- the process of

12 them coming into the family is most different.

13

Q. Okay. Now, Professor Allen has, again, there is a

14 study published of high school graduation rates among 17

15 to 22 year olds in Canada.

16

A. Right.

17

Q. And that is based on the 2006 Canadian Census?

18

A. Yes.

19

Q. Are you familiar with that study?

20

A. I am.

21

Q. And have you carefully reviewed it?

22

A. I have.

23

Q. And in your opinion, does this study measure

24 anything about children growing up in same sex couple

25 households?

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1

A. It doesn't measure affects of being raised by same

2 sex couples or growing up in a same sex couple household

3 because the Canadian Census like the US Census has the

4 five year mobility question. Were these people all living

5 together in the same place five years ago or not? But

6 because Allen is studying high school outcomes, the five

7 year window only covers a small portion of the child

8 trajectory through school. So if you are talking about

9 subjects who were age 17 to 22 and you know something --

10

Q. 7 or 17?

11

A. 17 to 22. Talking about subjects who are 17 to 22,

12 and you are talking, and you know something about their

13 family for the past five years, that means you know

14 something about their family from when they were 12 to 17

15 but you know nothing about what family they were living

16 with before 12 to 17.

17

Q. With respect to those who were 22, you don't know

18 anything about the family before they were 17?

19

A. In fact, my reading of Allen's analysis is that for

20 some of this analysis he used only one year mobility which

21 means he was only considering families that had been

22 together for one year which for a lot of these subjects

23 wouldn't even cover high school. So it's -- and this is

24 not Allen's fault because the data, the Canadian Census,

25 it's a cross-sectional census. You only really, you know

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1 about the family at the time of the census and then the

2 Canadian census does not have, if I recall correctly,

3 educational outcomes for earlier ages so the high school

4 degree is the first outcome you could use. And the

5 problem is that the one year window or the five year

6 window does not cover enough of the child's trajectory to

7 know what the affect of family was.

8

Q. Does the Canadian 2006 Census identify -- have the

9 boxes that US Census does, the 2000 US Census, to identify

10 children by whether their own child, step, adopted, or

11 foster?

12

A. The Canadian Census has only one category for child.

13 So they instruct the people who are filling out the Census

14 to fill out, child, regardless of whether the child is a

15 natural born child or a stepchild or an adopted child or

16 foster child.

17

Q. Is that question six on the 2006 Canadian census?

18

A. I don't remember what question number it is.

19

Q. Okay. So given these limitations, what else don't

20 we know?

21

A. So, but the relevance of not knowing who the adopted

22 and foster children are is that same sex couples are more

23 likely to have adopted and foster children. And adopted

24 and foster children are more likely to have trouble making

25 progress through school because of the family disruptions

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1 and instability that comes before living with the same sex

2 couples.

3

Q. Given these limitations, what can one say about what

4 Professor Allen was actually measuring in that study?

5

A. I don't believe that Professor Allen's high school

6 graduation study tells us anything about children raised

7 by same sex couple families.

8

Q. Does it permit one to draw any conclusion at all

9 about the affect on children's outcomes of where they were

10 raised?

11

A. We don't have complete information about who raised

12 them, so the answer is, no.

13

Q. In fact, we have very little information about who

14 raised them, isn't that right?

15

A. That's right.

16

Q. I would like to turn to a different subject now.

17

A. Okay.

18

Q. One of the areas that has been discussed already and

19 will be discussed further in this case is a study by Mark

20 Regnerus, known as the new family structure survey. Are

21 you familiar with that survey?

22

A. I am.

23

Q. Did you have any contact with Professor Regnerus

24 before that study was conducted?

25

A. He e-mailed me with a couple of questions about the

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1 survey, actually really about sample size of children

2 raised by same sex couples that you could expect to get

3 using different kinds of survey strategies. I was happy

4 to e-mail him back with whatever information that I could

5 offer.

6

Q. Okay. In your opinion, Professor Rosenfeld, is

7 Professor Regnerus' study relevant to the question of

8 whether children raised by same sex couples have outcomes

9 as good as children raised by opposite sex couples?

10

A. It's not, for the same kind of reason, it's not

11 because the new family structure study and the way

12 Regnerus analyzed the data. He wasn't actually analyzing

13 the data for children who are really raised by same sex

14 couples.

15

So for instance, in his 2012 paper, How

16 Different Are The Adult Children Of Parents Who Have Same

17 Sex Relationships, he identified 236 subjects whose mother

18 had ever had a girlfriend -- see, I got that wrong

19 there -- whose mother who had a girlfriend and father had

20 a boyfriend. That is a little correction we need to make

21 there. Of those 236, what he called lesbian mother and

22 gay father families, only 75 had ever lived with a same

23 sex couple. So the great majority of those couples, of

24 the subjects had never lived with same sex couples and

25 might never have known the girlfriend referred to if

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1 mother had a girlfriend or father had a boyfriend.

2

Q. Okay.

3

A. And then among those 75 subjects, whoever lived with

4 same sex couple parents, the average years living with

5 same sex couple parents was only four years. So we are

6 talking about subjects who went through several different

7 family structures. Typically they were living with mom

8 and dad and then mom and dad broke up and then at some

9 point later the custodial parent had a same sex partner.

10 So there's a lot of family transitions.

11

Q. Were there any subjects in the study who had been

12 raised for the full 18 years by a same sex couple?

13

A. According to my counting, there were only three

14 subjects who had, for their entire childhood, lived with a

15 same sex couple.

16

Q. How did they turn out?

17

A. Turned out fine. It's also important to note that

18 Regnerus' study, it's a study of adults who had

19 retrospective questions about the families they grow up

20 in. So when we are talking about same sex couples here we

21 are talking about same sex couples from the past. If you

22 interview somebody who is 30 years old and you asked them

23 who they were living with when they were a child, we are

24 talking about a decade or two in the past, so we are

25 talking about same sex couples that were formed in the mid

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1 1990s typically. Some of them go back to the 70's and

2 80's.

3

Q. Did you conduct an independent analysis of Professor

4 Regnerus' data?

5

A. Yes.

6

Q. Why did you do that?

7

A. I was interested to know whether the results were

8 robust. And my analysis of his data show that what

9 predicts the negative outcomes in these subjects is the

10 number of transitions they went through as children and

11 that's consistent --

12

Q. Explain what you mean by that.

13

A. So if you are living with both parents and the

14 parties get divorced, that is a transition. Maybe father

15 moves out. And then maybe stepdad moves in a couple years

16 later. That is another transition. Maybe the

17 grandparents move in and they move out. All of those

18 transitions have been shown to predict negative outcomes

19 for children because children crave stability. And

20 instability in the family is potentially harmful to

21 children.

22

And so what is interesting about how Regnerus

23 did the analysis is that he was comparing the children

24 whose mother ever had a girlfriend or father had a

25 boyfriend to the children who were raised by the people

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1 with in tact biological families, that is, couples where

2 mom and dad were married to each other and stay married

3 for the 18 years that the child lived there and continued

4 to stay together and be married after the child had moved

5 out of the house.

6

And so he was building into his comparison of

7 family type a comparison between children who had not had

8 any family transitions and children who had many. And we

9 know from thirty years of research on marriage and divorce

10 that family transitions cast a big shadow over children's

11 outcomes. And so if you control for family transitions in

12 Regnerus' data which I have done, you find that all of the

13 negative outcomes that he ascribed to having had a lesbian

14 mother or gay father are actually predicted by family

15 transitions. And when you control for family transitions,

16 none of those negative outcomes are associated with

17 lesbian mother or gay father.

18

Q. Have you prepared a slide that illustrates in detail

19 the trajectory for a couple of the subjects in Professor

20 Regnerus' study?

21

A. Right. So because the story is, you know, the

22 analysis is kind of complicated, I thought it would be

23 helpful to look at a couple of typical cases. And before

24 I get into the explanation of these typical cases what I

25 want to say is that my analysis of the data is based on

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1 the whole data, not just on these two cases. So, I am not

2 holding these two case out as -- the analysis does not

3 depend on these two cases. But it's a lot easier to

4 explain what we mean by family transitions and the life

5 course when you actually look at a life course history of

6 the children.

7

Case number one is an 18 year old female

8 subject. She was in the category of having had a lesbian

9 mother. She never lived with same sex couple parents

10 because the majority of the subjects who had, who were

11 categorized as having a lesbian mother or gay father,

12 never lived with same sex couple. So at birth she was

13 living with her biological mother and father together.

14 When she was five, the biological father moved out. When

15 the child was six, both grandparents moved in. When the

16 child was seven, both grandparents moved out. When the

17 child was 12, the biological father moved back in, but

18 that didn't last so long because when she was 14, the

19 biological father moved out again.

20

THE COURT: How did the two of you get all of

21 this information?

22

THE WITNESS: So one of the things that is

23 really interesting and I think useful and valuable about

24 Regnerus' survey, is that he put the subjects through a

25 calendar of who they lived with for every year of

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1 childhood in his survey.

2

THE COURT: You took that all off the

3 Canadian --

4

THE WITNESS: No. It's not the Canadian

5 Census at all.

6

THE COURT: There is a number there. Is that

7 on the left side? Is that --

8

THE WITNESS: That's the subject number in

9 the data set, the new family structure survey, which is

10 the data gathered by Mark Regnerus.

11

THE COURT: He did his own survey?

12

THE WITNESS: He did his own survey.

13

THE COURT: I got it.

14

THE WITNESS: He did his own survey. And

15 it's actually an interesting survey. It's interesting in

16 part because of how much it tells us about the

17 relationship between family instability when you are a

18 child and negative outcomes later on in life. So,

19 actually it contains a lot of data about, you know, it

20 has --

21

THE COURT: It was in his report so that you

22 had access to it?

23

THE WITNESS: I have actually access to the

24 data itself. The data is public. I did my own

25 independent analysis of the data. This wasn't in his

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1 report, but I actually analyzed, I downloaded his data set

2 that he used to do his analysis. I have the same data

3 set.

4

THE COURT: That's different than the Census?

5

THE WITNESS: Right. It's totally different

6 from the Census.

7

THE COURT: And it's based on a survey that

8 he did?

9

THE WITNESS: Right.

10

THE COURT: It was available to you?

11

THE WITNESS: Right. It's publicly

12 available. Anybody -- and that's the norm in the social

13 sciences, is that you get the grant. You do the survey.

14

THE COURT: Now I get all of that.

15

A. So, case number one, you know, went through a lot of

16 transitions as a child. This is sort of a more than

17 average number of transitions, but never lived with same

18 sex couple. And she is only 18. I just have a little bit

19 of information there. She never has been arrested, never

20 been convicted, light smoker. Not much you can say about

21 her outcomes particularly. She was on public assistance,

22 apparently, at some point growing up. She is on public

23 assistance at age 18.

24

There is -- it's fairly typical that children

25 who are raised in poverty, at least early on, they were in

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1 poverty again. And what I just want to point out is that

2 you might wonder, how could case one be categorized as

3 being the daughter of a lesbian mother since the only

4 partner she ever -- the only family she ever lived with

5 were mother and father together? So the answer is that

6 that is how most of the lesbian mother and gay father

7 families are in Regnerus' data. Most of them never lived

8 with same sex couples. And the reason that is important

9 is because it's the same sex couple's influence on the

10 child that we are really trying to understand. And you

11 can't really say, using case one, you can't say anything

12 about the affect of committed same sex relationships on

13 children because this subject never lived with a same sex

14 couple at all.

15

Q. How about subject number two?

16

A. Subject number two is typical of the smaller group

17 of subjects who at one point did live with a same sex

18 couple. So when she was born she was living only with

19 biological mother. When the subject was age one,

20 biological father moved in. At age 11, biological father

21 moved out and mother's girlfriend moved in. So for two

22 years from 11 to 13, the subject was living with

23 biological mom and biological mom's girlfriend. She was

24 living with the same sex couple for two years. And then

25 at age 13 there was a change of custody. We don't know

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1 why. She moved out of mother and mother's girlfriend's

2 house and moved into biological father's house. And for

3 the rest of her childhood she was living with biological

4 father.

5

Q. What conclusions can we draw about the influence of

6 being raised in a same sex parents from subject number two

7 or case number two?

8

A. There's a few things to say about this. One is that

9 there is a lot of transitions and turmoil around, before

10 and after the co-residence with same sex couples. Same

11 sex couple, the subject was only living with for two years

12 and the child was 18 years. So there was a lot of other

13 stuff going on.

14

The second thing that is typical about this case

15 is that there is the biological mother and father family

16 first before there is the same sex couple. That is how

17 most of the -- the vast majority of children who lived

18 with same sex couples in the Regnerus data set, the new

19 family structure, the vast majority of those couples,

20 those children were first with the biological mother and

21 biological father.

22

And what is relevant about that is that the

23 biological mother and biological father family has to

24 break up before the same sex couple is formed. And we

25 know from research on marriage and divorce that the

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1 breakup or the divorce of the heterosexual, the biological

2 mother and biological father couple, that that breakup and

3 whatever rancor or turmoil accompanies it, that has some

4 potentially negative repercussions for children.

5

What is difficult in the survey data since most

6 of the children who end up living with same sex couples

7 first had to go through this difficult transition. It's

8 very difficult with the survey data to separate out

9 whatever affect there might be if there is any of same sex

10 couple parenting on children because there is this earlier

11 turmoil that precedes it. Now --

12

Q. So is there a different way that a researcher who is

13 interested in getting meaningful, valid, reliable

14 information could have gone about that, for example, with

15 subjects like these two?

16

A. Well, so, one of the things that you find in the

17 child development psychology literature that studies

18 children raised by same sex couples and that literature is

19 outside of my immediate area, so I don't know everything

20 there is to know about that literature, but there are some

21 well known studies that look at planned same sex couple

22 families, that is, lesbian couples who become pregnant

23 through donor insemination or assisted reproductive

24 technology. And so in those families, the child comes in

25 the families at birth. There is no previous disruption.

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1 And in some ways, those families are more useful to study

2 for the question of what is the affect of same sex couples

3 on children because in those families the child starts out

4 in that family. And so there is no prior disruption.

5

Q. You don't have the confounding affect of transition?

6

A. You don't have the potential confounding affect.

7

THE COURT: Just quickly, in one, years spent

8 living with same sex couples. The answer is zero.

9

THE WITNESS: Right.

10

THE COURT: But he still uses it according to

11 you in his study?

12

THE WITNESS: Right.

13

THE COURT: He uses it because there was some

14 indication that mother was a lesbian.

15

THE WITNESS: There was some indication that

16 mother had once had a girlfriend. What we don't know is

17 whether -- we don't know anything about the seriousness of

18 that relationship or how durable it was. So we don't

19 actually know whether the mother would have considered

20 herself a lesbian or not. We don't have any information

21 about that. We only have the report from the child

22 decades later that mother had once had a girlfriend.

23

THE COURT: But the report also indicates

24 years spent living with same sex, zero.

25

THE WITNESS: Right. The data indicates

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1 that. It is in the data.

2

THE COURT: The data is part of the survey

3 which has been provided to somebody and whoever responds

4 to that survey put zero.

5

THE WITNESS: Well, they didn't actually -- I

6 don't think there was a question how many years did you

7 live with a same sex couple? What there is the calendar.

8 Who did you live with in year one, two, three? If you go

9 through the calendar data and it turns out that mother's

10 girlfriend was never living there with mother, I created

11 the zero based on the calendar.

12

THE COURT: The zero is based on the rest of

13 the calendar.

14

THE WITNESS: Base on the calendar and the

15 data.

16

A. The one other thing I want to point out about the

17 same sex couple in case two that is important and relevant

18 is that we never observe whether that same sex couple

19 broke up. We don't -- they may still be together. This

20 subject was 24 and this is at age 13 so that may be 12 or

21 13 years ago now. Those -- that couple may still be

22 together. And the reason we don't know whether they are

23 or not is because we only know who was living with the

24 child. The calendar is only about who is living with the

25 child. Once the child is no longer living with the mom we

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1 don't have any information about who the mom is living

2 with.

3

So one of the arguments that Professor Regnerus

4 makes, my understanding of that argument is that you can

5 tell by the small number of years people who lived with

6 same sex couples lived with same sex couples that there

7 was instability among those same sex couples, that the

8 same sex couples broke up. But, in fact, what is also

9 very common in this data is not that the same sex couple

10 broke up, although there are instance of that. What is

11 also very common is change of custody where the same sex

12 couple -- the parent in the same sex union no longer has

13 custody of the child and then you don't know whether there

14 was a breakup or not. In this case, we can't tell whether

15 or not that couple -- that's what happened. At age 13,

16 subject moved from biological mother and mother's

17 girlfriend's house to biological father's house. And we

18 don't know whether the couple ever broke up. But what I

19 can say is that there is a substantially higher percentage

20 of custody changes among the parents who are in the same

21 sex unions than there are among any other parents.

22

Q. Is there another kind of study that might have

23 helped get more meaningful information in cases like these

24 two young women?

25

A. As I was trying to suggest, there is -- there were

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1 some convenient sample studies that psychologists have

2 done with planned families.

3

Q. You talked about the donor insemination.

4

A. Right.

5

Q. But part of your point, that these cases would be a

6 perfect illustration for when a convenient study would be

7 particularly useful?

8

A. Right. So the advantage, I mean, every kind of

9 research has advantages and disadvantages, but one of the

10 disadvantages in the large survey enterprise is that it's

11 especially difficult to capture sort of a needle in a

12 haystack populations. So the lesbian moms who conceive

13 through donor insemination is a needle in a haystack

14 population. You never find enough of them in a survey.

15 But if you go to the sperm bank and you study people who

16 became pregnant through the sperm bank, that is what we

17 call a convenient sample study. It has advantages and

18 disadvantages. The advantage, one of the advantages of

19 convenient sample study is you can find the needle in the

20 haystack population and study them directly, whereas a lot

21 of the time in surveys you can't find them at all.

22

Q. Professor, is your opinion of these extreme flaws,

23 extreme problems with Professor Regnerus' study shared by

24 the American Sociological Association as an organization?

25

A. In their Amicus Brief, the American Sociological --

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1

Q. The Perrin and Windsor case?

2

A. In the Perrin and Windsor case, the American

3 Sociological Association presented a similar critique to

4 the critique I just presented along the lines that

5 Regnerus' study doesn't tell us anything about children

6 actually raised by same sex couples. And the reason is

7 that the data doesn't have that many children raised by

8 same sex couples and the subjects he was using were not

9 actually raised by same sex couples. And so it doesn't

10 inform the central question which is what is the impact on

11 children being raised by same sex couples?

12

Q. Is a public critique like that by the national

13 organization for the field of sociology normal or unusual?

14

A. In my experience, it's unusual for the American

15 Sociological Association to call out and criticize work

16 published by a sociologist.

17

Q. I would like to segue-way from Professor Regnerus'

18 study to a subject that you talked about in discussing

19 that. And that is the question of family stability.

20

A. Okay.

21

Q. So related to the question of stability, what does

22 the research show about marriage and divorce rates among

23 heterosexual couples? Do you have a slide?

24

A. Right. This is numbers based on the national survey

25 of family growth which is a project of the Center for

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1 Disease Control. So this is a whole entire different

2 survey. Apologies for that. We are sort of crossing many

3 different surveys. And I know that can be hard to keep in

4 mind.

5

Q. In general, does the data show that there are big

6 differences in divorce rates among heterosexual married

7 couples based on particular groupings?

8

A. Yes. So this is data on expected divorce rate after

9 ten years for first marriages in a bunch of different

10 categories. If you look at race, for instance, Asian

11 women, only about seventeen percent of them were divorced

12 after ten years. White women, it was 32 percent.

13 African-American women, it was 44 percent. There is big

14 differences in the divorce rate depending on how old the

15 woman was when she first got married. So women who

16 married when they are teenagers are at higher risk of

17 divorce than women who marry when they are over 25. And

18 nowadays the median age for a first marriage is over 25.

19 It's typical for people to marry over 25.

20

But the people who marry when they are

21 teenagers, the woman who marry when they are teenagers are

22 at substantially increased risk of divorce. There is a

23 big educational gradient. So people with less than a high

24 school education have a 40 percent chance of getting

25 divorced within ten years. But people with a bachelor

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1 degree have only a 15 percent chance of getting divorced

2 within ten years.

3

And whether the mother had a child before the

4 marriage also has -- is predictive of divorce. So women

5 who come into the marriage without children have about a

6 29 percent divorce rate over ten years, whereas woman who

7 come into the marriage with children already have about a

8 44 percent divorce rate. So what is useful about the NSFG

9 data, and they have gone through several cycles --

10 National Survey Of Family Growth.

11

Q. That is a Government survey, right?

12

A. It's a Government survey out of the sub-department

13 of the Centers For Disease Control.

14

Q. So --

15

THE COURT: Let's break here because we are

16 getting into family stability.

17

MR. MOGILL: I will tell you, Judge, I

18 probably have fifteen, twenty minutes. And it's a good

19 time to break. But you are right.

20

THE COURT: Is it a good time to break?

21

MR. MOGILL: That's fine. But I also just

22 want to alert you I will be done in less than half an hour

23 in the morning.

24

THE COURT: That's great. I appreciate that,

25 and I would usually work late to finish up so that we can

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Michael J. Rosenfeld - Direct Tuesday/February-25-2014

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1 get the Professor back to California, but not that we

2 don't want to get rid of you, but I am not allowed to work

3 late anymore because they turn the heat off. We used to

4 work late all the time just to accommodate witnesses.

5

MR. MOGILL: It's so warm outside.

6

THE COURT: And they turn everything off.

7 It's a real chore now. So I'm sorry. You can finish up.

8 We will reconvene tomorrow at 9:00. We will start with

9 the family stability and go from there.

10

MR. MOGILL: Thank you, very much.

11

THE COURT: Good. Be careful. See you in

12 the morning at 9:00 a.m.

13

- - -

14

15

16

17

18

19

20

21

22

23

24

25

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1

C E R T I F I C A T I O N

2

I, Lawrence R. Przybysz, official court reporter

3 for the United States District Court, Eastern District of

4 Michigan, Southern Division, appointed pursuant to the

5 provisions of Title 28, United States Code, Section 753,

6 do hereby certify that the foregoing is a correct

7 transcript of the proceedings in the above-entitled cause

8 on the date hereinbefore set forth.

9

I do further certify that the foregoing

10 transcript has been prepared by me or under my direction.

11

12 s/Lawrence R. Przybysz
13 Official Court Reporter

14

- - -

15

16

17

18

19

20

21

22

23

24

25

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, ET AL.,

Plaintiffs, v. RICHARD SNYDER, ET AL.,

HONORABLE BERNARD A. FRIEDMAN No. 12-10285

Defendants. _____________________________/

BENCH TRIAL

Monday, March 3, 2014

Appearances:

FOR THE PLAINTIFFS:

LESLIE COOPER, ESQ. CAROLE M. STANYAR, ESQ. DANA M. NESSEL, ESQ. KENNETH MOGILL, ESQ. ROBERT SEDLER, ESQ. VICKIE HENRY, ESQ.

FOR THE DEFENDANTS:

TONYA C. JETER, ESQ. KRISTIN M. HEYSE, ESQ. JOSEPPH E. POTCHEN, ESQ. MICHELLE BRYA, ESQ. BETH M. RIVERS, ESQ. ANDREA J. JOHNSON, ESQ. MICHAEL L. PITT, ESQ. - - -

To obtain a certified transcript, contact: Lawrence R. Przybysz, MA, CSR, RPR, RMR, CRR
Official Federal Court Reporter Theodore Levin United States Courthouse 231 West Lafayette Boulevard, Room 718

2:12-cv-10285-BAF-MJH Doc # 165 Filed 04/06/14 Pg 2 of 118 Pg ID 4341
Detroit, Michigan 48226 (313)414-4460. Lawrence_Przybysz@mied.uscourts.gov
Proceedings recorded by mechanical stenography. Transcript produced by computer-aided transcription.

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Bench Trial Monday, March 3, 2014

I N D E X - - -
Defendant's Case in Chief Mark Regnerus, Ph. D. Direct Examination By Ms. Heyse:

Page Vol. 61

Certification of Reporter .....................118

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Bench Trial Monday, March 3, 2014

4

1

Detroit, Michigan

2

Monday, March 3, 2014

3

1:00 p.m.

4

- - -

5

THE COURT: Thank you. You may be seated,

6 who is the next witness?

7

MR. POTCHEN: Before we begin, I would like

8 to apologize I didn't bring this up before the break. Mr.

9 Girgis was on the stand and he authenticated the book,

10 What is Marriage? And we would like to move to admit this

11 book. I mean, he's still in the courtroom if you would

12 like to ask any questions about that. But to the extent

13 that this Court ruled regarding his qualifications for an

14 expert, we understand that, but --

15

THE COURT: I will admit it for the sole

16 purpose -- is that he testified that this was his book and

17 that this is a copy of that book. It was part of the voir

18 dire to see whether or not he could testify.

19

MR. POTCHEN: Thank you, your Honor. And

20 that's Defendant's Exhibit Number Four.

21

THE COURT: Very well. Okay.

22

MS. HEYSE: He is just right in the hall.

23

THE COURT: No worries. As I said, both

24 side -- collegiality in terms of timing.

25

MS. HEYSE: Thank you, your Honor.

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Bench Trial Monday, March 3, 2014

5

1

THE COURT: Be kind enough to raise your

2 hand.

3

- - -

4

MARK REGNERUS, PH. D.,

5

being first duly sworn by the Court to tell

6

the truth, was examined and testified upon

7

their oath as follows:

8

THE COURT: Come in and have a seat. Get

9 comfortable. when you have had an opportunity to be

10 seated, give us your full name and spell the last name,

11 please.

12

THE WITNESS: My name is Mark Regnerus. Last

13 name spelling, R-e-g-n-e-r-u-s.

14

THE COURT: Thank you, very much. You may

15 proceed.

16

- - -

17

DIRECT EXAMINATION

18 BY MS. HEYSE:

19

Q. Good afternoon, Doctor Regnerus.

20

A. Good afternoon.

21

Q. Doctor Regnerus, where are you employed?

22

A. I'm employed at the University of Texas at Austin.

23

Q. And what do you do there?

24

A. I am an Associate Professor in sociology In the

25 Sociology Department.

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Mark Regnerus, Ph. D. - Direct Monday/March-3-2014

6

1

Q. Do you hold any other titles at the University of

2 Texas at Austin?

3

A. I am a research associate in the Population Research

4 Center.

5

Q. And are you tenured?

6

A. I'm tenured.

7

Q. And when were you tenured?

8

A. I was tenured in 2007.

9

Q. And what are your duties with respect to the

10 positions that you hold at the University of Texas?

11

A. I am responsible for up to four courses per year,

12 administrative duties. In terms of committees, chairs and

13 sitting on the committees, like admissions and things like

14 that.

15

THE COURT: Like admissions? That is the

16 most important one, you would think.

17

THE WITNESS: Right. And I expected to have

18 an ongoing research agenda.

19 BY MS. HEYSE:

20

Q. You mentioned you teach some courses at the

21 university?

22

THE COURT: I didn't hear the question.

23 BY MS. HEYSE:

24

Q. You mentioned that you teach --

25

THE COURT: Pull the microphone closer.

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Mark Regnerus, Ph. D. - Direct Monday/March-3-2014

7

1 Probably the base so you don't have to worry about moving

2 it. Perfect.

3 BY MS. HEYSE:

4

Q. You mentioned, Doctor, that you teach some courses

5 at the university. Can you tell us little bit about

6 those.

7

A. My primary course is the Introduction To Sociology

8 for undergraduates. It's a large course. Basically it

9 covers the fundamentals of the discipline. And then I

10 will teach as my secondary course sometimes I will teach a

11 graduate course in how to write for the social sciences.

12 And sometimes I will teach a sociology and religion

13 course. I came in teaching because I'm interested in

14 sociology and religion, back in 2002. So I still teach

15 classes on it occasionally. But intro is my primary.

16

Q. And you mentioned you have some administrative

17 responsibilities. Can you explain that a little bit more?

18

A. Right. This semester I am on the, this year I'm on

19 the Admissions Committee Team. We review people who apply

20 for the graduate program in sociology, offer admission to

21 some of them. And the Executive Committee which is sort

22 of, we give counsel to the Chair of the Department on

23 certain matters that come before their attention. So,

24 this is the kind of committee work we are talking about.

25

Q. Okay. Thank you. Can you tell us little bit about

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Mark Regnerus, Ph. D. - Direct Monday/March-3-2014

8

1 your educational background --

2

A. My Master's and Ph.D. is from the University of

3 North Carolina, Chapel Hill, in sociology.

4

THE COURT: Where? Blue?

5

THE WITNESS: North Carolina. Sky blue. Not

6 dark blue.

7

THE COURT: That's right. I was just there

8 last week on the campus.

9

A. Nice. Prior to that time I had my undergraduate

10 degree at Trinity Christian College, a small liberal arts

11 school outside Chicago, also in sociology.

12

Q. What does the study of sociology entail?

13

A. Sociology is about sort of the influence of social

14 forces on human behavior and then also how people, how

15 they operate in sort of social groups and things like that

16 and sort of the influence of sort of how social structures

17 change or don't change. And but then within that there

18 are, you know, dozens of sort of subdisciplines where

19 people focus their attention one, say, for example,

20 religion or family or the economy and like that.

21

Q. And where do you tend to focus your attention,

22 Doctor Regnerus?

23

A. In my research?

24

Q. Yes?

25

A. As I said, I started at University of Texas

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Mark Regnerus, Ph. D. - Direct Monday/March-3-2014

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1 interested in sociology of religion, mapping religious

2 influences on human behavior with an emphasis on teenagers

3 because I was interested in the data from the National

4 Longitudinal Study of Adolescent Health based at the

5 University of North Caroline where I went to school. But

6 I drifted away from that over the last few years. I wrote

7 on religious influences on adolescent sexual behavior. At

8 that point I became interested in sort of the study of

9 sexual relationships and relationship formation. And so

10 that's what I have done since then.

11

Q. Can you give the Court an overview of your

12 employment history before coming to the University of

13 Texas?

14

A. Right. After I finished my Ph.D. in 2000 I was

15 employed for a year as a research associate at the

16 University of North Carolina. And then I went to Calvin

17 College in Grand Rapids for a year. I was the director of

18 the center for social research. And then from there I

19 went to Texas in 2002.

20

Q. You mentioned you teach an introduction to sociology

21 course at the University of Texas. What are some of the

22 topics that are covered in that particular course?

23

A. We give, I should say I gave introduction to the

24 basic research methods for sociologists, what sociologists

25 do. But then we go through some of the kinds of the key

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Mark Regnerus, Ph. D. - Direct Monday/March-3-2014

10

1 aspects of sociology -- the socialization, how people

2 learn things, culture, what it is, how it changes, social

3 structure and how things change very slowly and often not

4 at all. And then we get a little bit later in the

5 semester we hit on things like family, population change,

6 some of the sort of more focused areas within sociology.

7

Q. Does that course touch on the issues of same sex

8 marriage or parenting?

9

A. It does. Not extensively so, but it does.

10

Q. Have you published any peer review articles?

11

A. Yes. About 30 to 32, somewhere in there. 31.

12

Q. Do any of them deal with issues that are relevant to

13 this trial?

14

A. Yes. A few.

15

Q. And how are they relevant?

16

A. One is on the New Family Structure Study which is --

17 that was something I published in 2012 which I'm sure we

18 will talk about. And the follow up which was not peer

19 reviewed but it was a response to critics of the original

20 study. So those are the two primary.

21

Q. Aside from those that specifically address

22 children's outcomes, what we are going to talk about

23 today, do you have -- to any of those address more general

24 topics of say, parent/child relationships?

25

A. Uh-huh.

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11

1

Q. And how many those touch on that topic?

2

A. I think there are roughly six, six or seven that

3 talk about the relationship between parent and children

4 and especially the quality of interaction between parent

5 and child.

6

Q. Do any of the peer reviewed articles address the

7 topic of social science research methods?

8

A. Right. Probably five or six would be characterized

9 as being about methods or methodological novelties, ways

10 of asking certain questions in different ways, yeah.

11

Q. Have you published any books, Doctor Regnerus?

12

A. I published two books.

13

Q. What are the topics of those books?

14

A. The first one which I briefly mentioned earlier was

15 on -- it's called Forbidden Fruit: Religion In The Lives,

16 Religion Sexual Behavior In The Lives Of American

17 Teenagers. That was 2007 from Oxford. The second one was

18 called Pre-Marital sex in America: How young Americans

19 meet, mate and think about marrying. That was 2011 from

20 Oxford.

21

Q. And were your books well received by your peers?

22

A. Generally speak, yeah. I had multiple reviews in

23 journals about those books. I think the last book had

24 one, you know, mediocre review but it had four or five

25 positive reviews.

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Mark Regnerus, Ph. D. - Direct Monday/March-3-2014

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1

Q. Have you ever been asked to review other peers'

2 work?

3

A. Yes.

4

Q. And how many times have you done that?

5

A. For journal article peer review I have done at least

6 three times as many as I have published. So, somewhere

7 between 90 and 120 I would say over the last 12 years.

8

Q. Just out of curiosity have you done any peer review

9 work since the release of the NFSS study?

10

A. Yes.

11

Q. Have any -- has any of your peer review work covered

12 the issues of marriage or same sex marriage?

13

A. Same sex relationships, yes.

14

Q. Have you given any presentations, Doctor Regnerus?

15

A. I have.

16

Q. How many have you given?

17

A. Probably somewhere between 50 and 60, I would say.

18

Q. And what topics?

19

A. Oh, all manner of topics. As I said earlier my

20 research interests have changed somewhat. Most of the

21 articles that I have published are those 30, I had

22 presented in conference format at least at some point or

23 another, so --

24

Q. Have you received any awards or recognition for your

25 work?

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1

A. Yes.

2

Q. Okay. And what type of awards or recognition have

3 you received?

4

A. It's listed in the CV in detail. But 2001 there was

5 ASA Section, the American Sociological Association section

6 on religion through a paper award for the year. I think I

7 one that one twice. One was with co-authors. I think I

8 won the ASA sections, Religion Section Student Award at

9 one time and I think was runner up a couple times in the

10 crime law and deviance section of the ASA student paper.

11

Q. And that's the American Sociological Association?

12

A. That is.

13

Q. ASA?

14

A. Yes.

15

Q. How many studies or data collection efforts have you

16 collected?

17

A. I have been a part of probably five or six data

18 collection efforts. National Longitudinal Study of

19 Adolescent Health and National Study for Family Growth.

20 They each asked me to play a minor role in different

21 points in consulting on their survey questionnaire in one

22 particular section of that. The National Study Of Youth

23 And Religion I was more of a key part in that. Then the

24 New Family Structure Study one I was principal

25 investigator of. So I would say at least five in general

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1 that I have been part of either in a minor way or an

2 extensive way. A project on religion and H.I.V. AIDS in

3 Africa. That was several years ago. That was -- I was

4 the co-investigator of that.

5

Q. You touched on this a little bit, but how many of

6 these studies were you the principal investigator?

7

A. Either principal or co of two, I would say.

8

Q. Are you affiliated with the Austin Institute for the

9 Study Of The Family And Culture?

10

A. I am.

11

Q. And how are you affiliated?

12

A. I am a senior fellow.

13

Q. And what does the Austin Institute do?

14

A. We conduct research, social science research on

15 matters related to family, marriage, sexual behavior, that

16 general orbit of things.

17

Q. When did you become a senior fellow?

18

A. I think it was late summer, early fall of 2013.

19

Q. Okay. And how did you get that position?

20

A. I was part of the founding of that institute and so

21 in discussion with other people who helped found it, it

22 just made more sense for me to have a senior fellow

23 status, not in the sort of the running of the day-to-day

24 of it.

25

Q. What does being a senior fellow entail?

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1

A. I give ideas to the staff about things that they

2 should consider studying. There is a research associate

3 or research assistant, I guess, that we co-author pieces

4 with and he crunches numbers and I give him ideas about

5 what he should consider doing. So it's ideation mainly, I

6 would say.

7

Q. Can you give an example of the type of work that you

8 do at the Austin Institute?

9

A. Well, we have -- one of the things we are interested

10 in doing is sort of getting information out in creative

11 ways speaking not just sort of the standard journal format

12 but based on my suggestion and encouragement they created

13 an animated video of about nine minutes that focuses on

14 the dynamics of the mating market.

15

THE COURT: What kind of market?

16

THE WITNESS: The mating market. How people

17 meet and fall in love and some marry or some don't. So

18 that went up live in February and it's already got about

19 300,000 views. So, things like that. But also sort of

20 regular academic papers. We call them research shorts

21 where the research assistant will crunch some numbers and

22 write a brief kind of on-line abstract of certain ideas.

23

Q. And just for the record, where is that available?

24

A. These things are on the web, the Austin students'

25 website.

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1

Q. Okay. Have you spoken to any legislature or

2 legislative officials?

3

A. I think it was back in November. I am not totally

4 sure about the date of 2013, some Hawaiian legislators, I

5 went out and talked to. I think there were four of them

6 in advance of their, I think they had the same sex

7 marriage bill going through both their house and Senate.

8

Q. What was the purpose of your speaking with them?

9

A. They wanted to ask me questions about the New Family

10 Structure Study and my awareness of other population based

11 projects going on in the area about that.

12

Q. And have you written or signed any Amicus briefs

13 regarding --

14

A. I have.

15

Q. -- regarding same sex marriage?

16

A. I have.

17

Q. At this time, if you will look at that very large

18 binder next to you and open it up to the tab for Exhibit

19 Five?

20

A. My CV?

21

Q. Yes. Can you identify that for me, Doctor Regnerus?

22

A. Yes. That's my Curriculum Vitae.

23

Q. I'm sorry?

24

A. My Curriculum Vitae.

25

Q. Does that appear to be a true and accurate copy of

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Mark Regnerus, Ph. D. - Direct Monday/March-3-2014

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1 your Curriculum Vitae?

2

A. Yes.

3

MS. HEYSE: Your Honor, I move for admission

4 of State Defendant's Exhibit Number Five.

5

THE COURT: Any objection?

6

MS. COOPER: No objection.

7

THE COURT: Received.

8 BY MS. HEYSE:

9

Q. Doctor Regnerus, can you explain the areas of

10 expertise you will be testifying about today?

11

A. I will be testifying about sociology in general,

12 survey research methods and measurement of sexual

13 relationships and I presume the New Family Structure Study

14 and its articles.

15

Q. Thank you. And more specifically within those areas

16 of the expertise, have you been asked to provide your

17 expert opinion regarding outcomes for children being

18 raised in same sex households, correct?

19

A. Yes. That's correct.

20

Q. And did you, in fact, conduct a study called The New

21 Family Structure Study the acronym NFSS?

22

A. I did.

23

Q. Did that study look at adult outcomes among children

24 whose parents reported having a same sex relationships?

25

A. I looked at adult children who reported their

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1 parents have had same sex relationships, yes.

2

Q. And the outcomes for those individuals?

3

A. Yes. But it was not the parent who reported the

4 relationship. It was the child.

5

Q. Thank you for clarifying.

6

A. Adult child.

7

Q. Can you tell the Court what methods you followed

8 with regard to the NFSS? What type study was that?

9

A. Right. This was a large survey. We screened 15,058

10 people, asked them a series of questions. The key focus

11 here was the question whether their mother or father,

12 while they were growing up, whether the mother or father

13 ever had a romantic relationship with a member of the same

14 sex. And we then interviewed extensively across a lot of

15 different domains, 2,988 people, including everyone who

16 said yes to that particular question. And then I analyzed

17 that data.

18

Q. And why did you follow those methods? Is this a

19 typical or standard --

20

A. Right. I don't think it was typical or standard.

21 In this domain of study there are not very many very large

22 population based samples out there because we are talking

23 about a fairly small population to begin with. So, the

24 interest was in sort of collecting a large enough number

25 of cases so that you didn't encounter a problem with too

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1 small of samples to actually detect differences between

2 groups which tended to be a problem certainly when you

3 think about studies that compare 18 kids. And, I mean,

4 you are just not going to have enough cases to detect real

5 differences that maybe exist in the population.

6 Statistically you can't do that. So we want to collect a

7 large population data set because there is not many of

8 them on this broader topic.

9

Q. And what were your general findings?

10

A. Our general findings were that.

11

MS. COOPER: Objection. The witness has not

12 been qualified as an expert yet.

13

THE COURT: Yes. The objection is sustained.

14 He has gotten a little bit further.

15

MS. HEYSE: Thank you, your Honor. Two

16 things, your Honor. I forget at the outset to provide you

17 with a copy.

18

THE COURT: That's great. Just hand it to

19 me.

20

MS. HEYSE: I apologize.

21

THE COURT: Nothing to worry about. Thank

22 you.

23

MS. HEYSE: And, second, then at this time,

24 your Honor, I move to qualify Doctor Regnerus as an expert

25 in the area of sociology, and, more specifically, the

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1 sociology of sexual behaviors.

2

THE COURT: Okay. Counsel, do you have any

3 objection or voir dire?

4

MS. COOPER: No objection.

5

THE COURT: You may proceed.

6

MS. HEYSE: Thank you, your Honor.

7 BY MS. STANYAR:

8

Q. Doctor Regnerus, I want to start out talking about

9 sampling and general research methods terminology. Okay?

10 What is population based data?

11

A. Population based data is about the sampling that is

12 involved in this. There two broad different types of

13 sampling strategies when you want to talk -- to get

14 information about a group of people. There is probability

15 based sampling and there is non-probability based

16 sampling.

17

So, for example, if I wanted to get a population

18 based sample of the City of Detroit, you would want

19 everyone in Detroit to have an equal chance of being in

20 it, in your sample. So that's a probability based study

21 of a particular population. So you note underlying

22 population and then you can generate meaningful estimates

23 and statistics because the underlying population you are

24 trying to map is known. That's different than

25 non-probability based studies which might want to get at a

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1 population but the methods they use don't allow them to

2 generalize to a larger population.

3

Q. Would an example of a population based probability

4 study be one that's nationally representative?

5

A. A nationally representative study would be, its

6 population that speaks to, you know, the nation, right?

7 So, there are a variety of these kinds of studies out

8 there, sure.

9

Q. That would be one type?

10

A. Uh-huh.

11

Q. And you touched a little bit on a non-probability

12 sample. Would an example of a non-probability sample be a

13 convenient sample?

14

A. Yes, correct.

15

Q. Okay.

16

A. Convenient samples are a type of non-probability

17 sample where you pick, I mean, you use variety of means to

18 sort of collect the people that are going to be in your

19 study. It could be, you know, like you go in a coffee

20 shop and you can pull off a tab. Would you like to be in

21 this study? Or you see a billboard. We would like you

22 for this study. That is a convenient sample. People opt

23 into that. And since it's not really known what is the

24 underlying probability that they would be picked randomly,

25 it's difficult to generalize that to the broader

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1 population that you might be after.

2

So there is convenient samples, too, that are --

3 we call them snowball samples where if I said I want to

4 talk to -- I want to survey Red Wings fans, you talk to

5 one, you say, do you know any other ones? My brother.

6 You talk to the brother. It's a snowball. You pick up

7 cases along the way. So, you know, that's not a

8 probability sample because not everybody has an equal

9 chance of being in it. They are opting in based and on

10 their own self selection and observation about it. So

11 it's not able to tell us about the real population that

12 you are after like a probability study can.

13

Q. Okay. If these convenient sample studies are not

14 able to tell you about the population as a whole, why are

15 they used?

16

A. Well, there are different things you can learn from

17 convenient samples and I have used them in my own research

18 in the past. I mean, depends on what you purported to do

19 with them, right? So the book I am slowly working on, we

20 talked to a hundred different 24 to 32 year olds. We

21 wanted 50 men, 50 women. So we call that a quota sample.

22 Right? And we didn't use some sort of random method to

23 get them in. We just want different people of different

24 kinds of jobs. And so it was a quota sample. But I can't

25 generalize from that to knowing something about all 24 to

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1 32 year olds. What I can say is I have learned something

2 about the lives of these people. What I can't know from

3 it is how similar they are or how different they are from

4 all 24 that 32 year olds. From that kind of thing and

5 hopefully in the same book, I lean on probability,

6 nationally representative samples, survey data. So, it's

7 more, for me, that provides color commentary. You can go

8 in-depth in people's lives and things like that but you

9 don't get a sense of what is going on among the large

10 group that way.

11

Q. So, in your opinion, should these convenient samples

12 be used to render opinions in social science?

13

A. Not exclusively. I mean, they can inform us about

14 aspects of people's lives and relationships but I don't

15 think you should make major decisions without getting a

16 sense of the underlying population and especially leaning

17 on national representative data.

18

Q. So there a better method for rendering opinions in

19 social science?

20

A. I think it's unwise to make major decisions without

21 leaning on large population based nationally

22 representative studies especially if you have something

23 that is -- has more of a broad or national scope to it.

24 Sure.

25

Q. So is there such thing as an ideal study?

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1

A. Depends on what the purpose -- what you are trying

2 to accomplish. But ideal studies of this sort would be

3 large. I mean, you say how large? Large enough so that

4 you could analyze, you can create sub-samples that are not

5 ten or fifteen people large. You know, hundreds and

6 hundreds of cases drawn from a sampling strategy where

7 everybody in the underlying population you are trying to

8 get at has an equal chance of getting in, equal chance of

9 weighing in. I think that's the fairest way.

10

Q. Would an ideal study be a random sampling?

11

A. Yes.

12

Q. Okay. Why is that important?

13

A. Random is just sort of, do the people who make up

14 this population have a equal shot at being part of it? I

15 think that's what random is about. And I think it's a

16 good thing, otherwise people, if people just opt in you

17 don't hear the average person. You hear the people who

18 are most interested in signing up for the study.

19

Q. And in the ideal study, it would be representative?

20

A. It would be representative of the underlying

21 population that you are trying to --

22

Q. Would it be longitudinal?

23

A. Ideally, yes. I mean, the benefits of measuring

24 people over time and revisiting them is a helpful thing.

25 You can see how they changed. And you can see how, you

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1 can see how people change or how trends emerge or fade

2 over time if you talk to the same people or you give the

3 same questions over ideally many years. I mean, one of

4 the better studies that we hear about regularly is the

5 general social survey. They ask the same questions, some

6 of which get out of date. They asked the same questions

7 since 1972. So you can kind of map how --

8

THE COURT: Who is they? Who does that

9 study?

10

THE WITNESS: The National Opinion Research

11 Center at University of Chicago.

12

A. So quite often when you see in the newspaper some

13 sort of social survey, some change in American views on

14 this, that or the next thing, it will be from the general

15 social survey. It's not asking the same people but it's

16 asking a different group of people the same question over,

17 every two years for since 1972.

18 BY MS. HEYSE:

19

Q. Would your ideal study also be replicable?

20

A. Ideally, yes. You know, when I have created survey

21 questions I will often sort of lean on other people who

22 have asked them so that if they have a national

23 representative survey and I have one, we can ask the same

24 question and you can compare them over time. So,

25 replicability is ideal.

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1

Q. Why is that important?

2

A. So that you can sort of assess changes or trends,

3 surveys questions. You first want them to be valid, good,

4 that they measure what they purport to measure. But

5 seconding you want them to be comparable which is what is

6 replicability is about.

7

Q. And why is this ideal study that you described

8 better than the convenient sample studies?

9

A. I'm sorry. Could you say that again?

10

Q. Why is the ideal study that we just talked about

11 random, representative, longitudinal, replicable? Why is

12 that better than these convenient sample studies?

13

A. Because you actually know something about the

14 underlying population you purport to talk about. So, what

15 happens often is, and in a lot of convenient samples they

16 don't claim to do this, but people still tend to interpret

17 their data in that way because you see a study and you

18 automatically kind of mentally accord it, this is a study

19 of all such and such. Even if they don't, even if the

20 creators of the study are not claiming that. But a

21 convenient sample is like we learn something about who is

22 in the sample. Since we don't know their likelihood of

23 inclusion because it's not a probability sample, we don't

24 know if what they are like is what the underlying

25 population is like. So, there are some limitations to

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1 what you can know from convenient samples.

2

Q. So would it be fair to say can you learn a lot about

3 individuals that are being studied?

4

A. Is it fair to say -- I'm sorry?

5

Q. You can learn a lot about the individuals being

6 studied?

7

A. Sure.

8

Q. But not necessarily about the population or the

9 nation as a whole?

10

A. Correct.

11

Q. Okay. In social science research is it important to

12 have a clearly defined comparison group before you draw a

13 conclusion regarding differences between those two groups?

14

A. Right. It's ideal. And people will disagree on the

15 construction of the comparison groups, but what you want

16 to be as clear about who is in this and who is not in this

17 so that when other scientists come along and read your

18 data they can sort of say, I see how you made that group

19 and I agree or disagree or I think we should do it a

20 different way.

21

Q. What are controls in social science research?

22

A. Controls. Okay. So, when we talk about regression

23 models, when we predict an outcome based on a set of

24 independent variables or a set of effects, usually we have

25 in mind like the thing we are most interested in, like

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1 what is the effect of X and Y? Net of other things,

2 right? When you say net of other things you are talking

3 about a set of controls. Usually sometimes they are

4 standard. Sometimes they are just things that you think

5 may influence an outcome but that are not critically

6 important to what you are interested in. So that what we

7 call controls. And most regression models employ some

8 sort of series of controls when they are doing that.

9

Q. And why are they used?

10

A. In part because you want to sort of test sort of the

11 influence of X on Y and you might be hypothesizing it

12 exists independently of this set of controls. So, but

13 it's usually sort of a standard set of demographic things

14 you will often see. Other things that might affect the

15 outcome but that are not of interest to you or

16 different -- there is no sort of established protocol

17 about what must be a controlled variable in models. I

18 mean, some -- there are disputes in sociology, like should

19 you have 20 control variables? Some people call it

20 everything but the kitchen sink. Other people say, no, we

21 don't have all of those. Focus on just a handful. So

22 there is no protocol, but it's a common practice.

23

Q. What are some the standard or common controls that

24 you mentioned?

25

A. Age, like as people age, they tend to do different

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1 things or think different things. So, gender or sex,

2 male, female, race and ethnicity and that's the sort of

3 the -- in sociology we often do mother's education as a

4 proxy for social class of the family. Income, if you know

5 it, although a lot of people don't like to report their

6 income. So sometimes that can be a little tricky. But

7 there is a standard -- those are standard controls.

8

Q. Okay. Let's turn now to the American Psychological

9 Association's position with regard to outcomes for

10 children. Are you familiar with their No Differences

11 Claim?

12

A. In general, yes.

13

Q. Do you have an opinion on that No Difference Claim?

14

A. I think it's premature. In the social science of

15 family which I have monitored off and on since I have been

16 in graduate school I have not been actively into it until

17 the last several years. But things historically did not

18 change very quickly in the study of families and parents

19 and things like that. But they seem to have changed

20 rapidly in the last ten or fifteen years. And such that

21 it seems premature to say that something that involves a

22 reduced kinship, meaning somebody is not a biological

23 parent to the child, to claim there are no differences.

24 And it's important to clarify what the No Differences is

25 against.

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1

But it suggests there is no differences between

2 a parenting unit that, at least in one case, it lacks a

3 genetic link to a child compared to parent units where

4 there is a mother and a father and they are both the

5 parents of that child and they stay in that relationship

6 together. That had long been considered. I mean, in 1994

7 I think it was McLanahan and Sandefur in Wisconsin. And

8 this was not a study of same sex parents, but it was about

9 single parent families. And they said, if we were going

10 to design the ideal family, I mean, we would pick this

11 sort of two parent ideal where there is two genetic

12 connections to the child, two sources of -- resources for

13 the child and security and things like that.

14

So just to watch the social science discourse

15 change so rapidly on this subject struck me as

16 unscientific, premature, and worth -- I mean, scientists

17 are nothing if not tending to be a little skeptical when

18 people purport rapid change in a paradigm. So it just

19 strikes me as premature.

20

Q. What type of studies does the APA rely onto support

21 this No Differences Claim?

22

A. There are probably other people who could speak to

23 that a little more clearly. But my read on it is when it

24 was issued, there was primarily non-probability samples.

25 More psychology than sociology. And I'm not trying to

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1 criticize the psychologists here, but I think it's wise if

2 you are going make a statement on No Differences that you

3 would want a variety of probability sample studies to be

4 weighed in that. So there are more non-probability

5 convenient samples studies than I would want to lean on in

6 making that claim.

7

Q. Okay. And do these non-probability convenience

8 sample studies tend to be small in size?

9

A. Not all of them. But most them, typically well

10 under a hundred. Sometimes 78 or 44. Yeah. Typically

11 under a hundred.

12

Q. Okay. And what is the problem with the small sample

13 size?

14

A. The small sample size issue is, do you have, they

15 call it statistical power, do you have the power to detect

16 real differences that might exist in the population but --

17 and the smaller the sample size, the more difficult it

18 becomes to detect real differences. So you could, if you

19 had 20 cases of something versus 20 other cases, you could

20 say we don't detect any statistical difference between

21 this group of 20 and this group of 20. You could look at

22 face value, you can look at the numbers and they could

23 look dramatically different but they are not statistically

24 different because they are, it's called type two error,

25 the ability to detect statistically what might exist in

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1 reality. So the smaller the sample size, the higher the

2 risk of making that kind of error is. So, the known

3 hypothesis, when you look at groups, you say there is no

4 differences, but you can make a mistake in saying I see no

5 differences when there actually exists -- your sample size

6 is too small to detect them.

7

Q. Would it be fair to say that bigger is better for

8 purposes of statistical power?

9

A. Generally bigger is better.

10

Q. Do the studies that the APA relies on, what type

11 comparison groups do they use?

12

A. That also varies widely. Some of the No Differences

13 Claims have been about -- one I can remember is a matched

14 sample of comparable sort of social demographics, but that

15 was one of the Patterson pieces that exactly used the 44

16 cases in the Ad Health Study which is a probability study.

17

But the comparison group was some matched sample

18 out the same study, but they didn't tell us what they were

19 like. Right? I mean, were these kids from single parents

20 or kids from step-parents? Have they had household

21 transitions in their lives? They didn't say. So some of

22 them are more clear about their comparison category being

23 heterosexual single mothers or heterosexual step-parents

24 arrangements. But in those studies there has been wide

25 variety of comparison groups used. Not -- I mean there is

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1 not one stable reliable comparison group.

2

Q. You mentioned this earlier, and I wanted to make

3 sure it's clear for the record, you referred to something

4 called reduced kinship. Can you explain what that is?

5

A. Right. Reduced kinship is sort of the basic idea

6 that when a biological mother and father are not raising a

7 child together in the same household, some guys go off to

8 the military, so, I mean, there is still an intact family

9 even though dad or whoever is gone. But where the family

10 has been broken up, the mother, biological mother, and

11 father are not actively in, you know, raising the child

12 together at the same time.

13

Q. Do you have any opinion with regard to children

14 being exposed to reduced kinship?

15

A. I think it's not the ideal. Now, we certainly

16 didn't necessarily forbid diminished kinship

17 relationships, obviously. But states typically consider

18 them as concessions to, ideally -- I think about foster

19 care. There is always that impulse to get foster children

20 back in the household with their mother and father. And

21 so far as that is possible, states wish to do that.

22 That's sort of this longstanding interest in kinship

23 structure.

24

Q. So just to be clear, are you saying that either

25 step-parenting or adoption are bad things?

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1

A. I am not saying they are bad things. I am saying

2 they are typically recognized as concessions, sometimes

3 necessary, but sort of not the ideal what people want for

4 a child typically.

5

Q. What is the ideal.

6

A. Married, mother and father, stably residing with the

7 child.

8

Q. And why is that better than a reduced kinship

9 relationship?

10

A. Well, better largely in the data historically but

11 also back to that McLanahan and Sandefur comment, they

12 talk about biological parents are less likely to abuse or

13 harm a child. It doesn't mean they never do, but on

14 average, they are less likely than a step-parent

15 relationship. More likely to sacrifice for that child.

16 And just, in general, children flourish better in

17 households where mom and dad are together and married.

18

Q. Turning back now to the studies that the APA relied

19 on. Did some of those studies use a comparison group with

20 reduced kinship?

21

A. Yes. I mean, many of them did. There was no

22 consistent -- there is not a consistent category that was

23 used as a comparison.

24

Q. Do you see this as a problem or --

25

A. I understand the impulse because there is, in a lot

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1 of these same sex parents relationships, there is reduced

2 kinship, I mean, almost by definition there, right? So

3 there is an impulse to compare them to something

4 comparable. At the same time, one runs the risk in this

5 declaring there is no difference in forgetting to compare

6 them to sort of kinship structures that are in tact and

7 original, biological. So I think we run the risk of not

8 remembering the structure that has been historically best

9 for children. So then when you get claims like No

10 Differences, I think they, you know, people hear this and

11 think they are just like anybody else. Well, anybody else

12 perhaps of diminished kinship structure which is not

13 ideal.

14

Q. Are there also issues with source bias in these

15 small convenient samples relied on by the APA?

16

A. Yes. Source bias is who is doing the reporting on

17 the child in the study? Some of the times you are talking

18 about children who are young, too young to report for

19 themselves so the parents will report. But parents, you

20 when parents are talking about their kids and their

21 well-being, you know, I know about my kids. I am more apt

22 to paint them publicly as better than they, right? I say

23 my kids are good, right? But there is an impulse in

24 reporting about one's children to feel social desirability

25 bias, the impulse to say things about them that may not be

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1 completely a hundred percent accurate.

2

So, that improves if you talk to say, teenagers,

3 about themselves. Right? Teachers, teachers often can

4 give what I call a little more objective perspective

5 although teachers have their own biases, but it's probably

6 ideal to wait until, I think to wait. That's why we did

7 to wait until they are out house so they can reflect on

8 their own lives and speak for themselves.

9

Q. So, Doctor Regnerus, are you saying there is no

10 benefit to the type of studies that the APA relied on?

11

A. I am not staying there is no benefits. Different

12 studies seek to do different things. Some studies kind of

13 are social psychological aspects of parent/child

14 relationships or parenting processes. So you can learn a

15 lot from the dynamics of different families from

16 convenient sample studies. What you cannot know is how

17 much they reflect an underlying population. So, if you

18 had ten same sex couples in a convenient sample you can

19 know a lot about those ten, but can you know how similar

20 those ten are to same sex couples s everywhere? I would

21 said the answer is no, not from a non-probability study.

22

Q. So given that critique, in your opinion, what type

23 of study is needed to definitively conclude there is no

24 difference?

25

A. What kind of study is needed?

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1

Q. Yes.

2

A. A study as far as I am aware has not been done yet.

3 The science in this domain as I said is new. People have

4 been studying this for a while but just in the last year

5 several years we have kind of started getting questions on

6 it and to national representative studies. I have a

7 longitudinal study, something that tracks kids from, I was

8 going to say from birth, but really you want people from

9 before, when parents meet or get together, and track them

10 through the birth of children into ideally into their

11 adulthood and interview every few years.

12

So, and a large -- that would be a large study,

13 a national representative study. I mean, it reminds me

14 of, you know, day care was -- the affects of day care and

15 kids is people have all sorts of opinions about that, but

16 several years ago there was finally this Omnibus study of

17 day care that had come to fruition, meaning they had done

18 several different waves of this talking to parents,

19 watching children, etc. So, it kind of clarified the story

20 about day care and people's lives, kids' lives, that I

21 think would be ideal and necessary really to get a sense

22 of whether the No Differences line is true or with respect

23 to what kind of kinship structure are we talking about No

24 Differences.

25

THE COURT: What did the study say about day

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1 care?

2

THE WITNESS: You know, I don't actually

3 recall the punch lines because my kids were really small

4 and in day care. But I was thinking it was a mixed bag

5 and it was not sort of -- they are not demonstrable. I

6 think the mother/child connections were a little weakened

7 but the kids didn't seem any worse for wear academically

8 for it. And socially, they were a little bit more

9 advanced. I think that was the punch line. But I just

10 remember it being an Omnibus study of day care that people

11 have been waiting for a long time.

12 BY MS. HEYSE:

13

Q. I want to talk about the New Family Structure Study

14 and I am going refer to it at the NFSS. Again, you were

15 the principal investigator for that study, correct?

16

A. I was.

17

Q. And is this a large population based study?

18

A. It is. I mean, as large as we could make it. We

19 screened 15,000 people between the ages of 18 and 39.

20 15,058. Asked them a series of questions, one of which

21 was, you know, there are about adoption and things like

22 that. But one of which was, have your mother or father,

23 did the mother or father have a romantic relationship with

24 a member of the same sex while you were growing up with

25 another woman or another man? And we interviewed all

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1 those, 2000 some odd other people from different kinds of

2 household experiences, and asked them 80, 100 plus

3 different questions about their life in the past, their

4 relationship with their parents, mother, father, how their

5 life is going now, questions about their employment

6 status, any interaction with the Criminal Justice System,

7 education. I think I had a question or two on religion.

8 A series of questions on sexual behavior. Just kind of

9 across the spectrum set of questions.

10

Q. Okay.

11

A. What was your original question? Did I answer it?

12

Q. Yes, you did. That's fine. What were your general

13 findings with regard to that study?

14

A. My general findings with regard to the study is, I

15 called into the question the No Differences Claim with

16 respect to the in tact biological family which is not

17 often used as the comparison category in a lot of these

18 convenient samples, when mom and dad are married, were

19 married and are married, even when the child is an adult,

20 compared to kids for whom their mother or their father had

21 had a same sex relationship. And out of 40 different

22 outcomes we evaluated including things that they reflected

23 on their childhood and things that are current today. 25,

24 I might get the details mixed up, but 25 of the 40

25 different outcomes, there was a simple statistical

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1 difference and always in the favor of the in tact

2 biological family. I think 24 of those held up after,

3 meaning they were still significant with a series of

4 controlled variables. The controlled variables were age,

5 race, ethnicity, mother's education, gender, their

6 perception about their family income while they were

7 growing up, a measure of whether they had been bullied as

8 a child or during their growing up years, and a measure of

9 the gay friendliness of the state in which they were

10 residing now, measures of the different states. There was

11 scale I think the Los Angeles Times put out, one to five.

12 I used this as a control variable.

13

So even after those controls there was 24

14 differences between the kids who grew up in an in tact

15 biological family and kids for whom the mother had a same

16 sex relationship. There were fewer statistical

17 differences between kids whose father had a gay

18 relationship. Partly that is a function of the sample

19 size. We had 73 of those cases compared to 175 for the

20 mother, where the mother had a same sex relationship.

21

So when you get to smaller ends, you, of course,

22 you lose statistical power. So even if there were

23 differences, you would be less apt to detect that many of

24 them. There are fewer among the men. And they were less

25 likely to have lived with their father as well. So, then

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1 they were with their mother.

2

And then I also compared them with kids who grew

3 up in step-families or kids who had single parents. Now,

4 what we did is had a household roster where we asked who

5 did you live with at each year while you were growing up?

6 Who was in the household? And, I mean, there is a lot of

7 messy households out there. So even the step-parenting

8 thing, we said, the step-parents might have came in at age

9 16, might have come in at age two, right? Single parents

10 where the mom never really, typically the mother, they

11 lived with her and she didn't remarry. But we also

12 compared kids who said their mom had a same sex

13 relationship or the dad with kids that largely grew up in

14 a single parent household or step-parenting household and

15 adopted before age two. --

16

THE COURT: Define same sex relationship.

17

THE WITNESS: I mean, just from that screener

18 question where we said, while you were growing up did your

19 mother ever have a romantic relationship with another

20 woman, I think, or it might have been phrased a member of

21 the same sex. Did your father ever have a romantic

22 relationship with a member of the same sex?

23

THE COURT: While you were growing up?

24

THE WITNESS: During your growing up years.

25

THE COURT: So they may not have even been in

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1 that same household.

2

THE WITNESS: They may not have been in same

3 household.

4

THE COURT: If there's divorce or separation.

5

THE WITNESS: There was a great deal of

6 separation, yes.

7

THE COURT: Just curious.

8

A. Just to follow up on that. The screener question

9 was designed to be able to capture people for whom that

10 may have been true as well as people for whom, you know,

11 no, I was -- my mother had me by assisted reproductive

12 technology. We didn't ask whether that was true. They

13 could have stayed with their mother and partner during

14 their entire growing years.

15

So that was the product of the decision we

16 hammered out at the beginning like how do we -- we know

17 that like ART is not going to be common as a form of how

18 these kids came into being, but how can we make sure that

19 gets included even though we don't expect it to be the

20 normative experience of kids. So that question was meant

21 to be big enough to get in the fold everybody for whom,

22 you know, their parents had had a same sex relationship,

23 some of which lasted, some of which they started with, a

24 majority of which they did not start with. They started

25 with a heterosexual union.

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1

THE COURT: Okay. I was just curious. Thank

2 you. You may continue.

3

MS. HEYSE: Thank you.

4 BY MS. HEYSE:

5

Q. I'm going to back you up a little bit, Doctor

6 Regnerus, and talk about how the NFSS came about. When

7 did you first begin working on the NFSS?

8

A. I think it was envisioned in 2010 at some point. I

9 want to say in the fall, but it might have been kicking

10 around in the summer.

11

Q. Go ahead.

12

A. It was not my brain child, but it came out of the

13 series of conversations that were involving me and

14 eventually the funding agency, Witherspoon Institute,

15 Princeton, New Jersey. And kind of the recognition that,

16 wow, the social science here doesn't have a lot of

17 probability based large samples, albeit, of a smallish

18 population. There was a sense of a lot of social science

19 here based on small samples, the non-probability samples.

20 There should be more on large samples, probability

21 samples.

22

So, I was finishing my second book at that time

23 and this was, you know, an idea that struck me as curious.

24 So I agreed to think more about it. And then there was a

25 meeting of several social scientists to talk about what

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1 would social science in this domain of family look like?

2 And out of that emerged, I mean, I proposed a project that

3 eventually turned into the NFSS, although basically it was

4 just this idea of we should do a big study, a big random

5 population based study in this area. But it didn't take

6 real shape until January of 2011 when I had gotten several

7 consultants on board who met in Austin in January to talk

8 about sampling strategy which was kind of a big deal

9 because I had said, you know, the way that studies had

10 been done before, this was non-probability samples, etc.

11 How should we be distinctive? So the assumption in the

12 room was, we have to have a probability sample, nationally

13 representative.

14

And we talked about what should be on the

15 survey? But the primary thing was hammering out how are

16 we going to go about getting a nationally representative

17 sample? So I had a representative of the data collection

18 firm that I had already figured we should go with because

19 they are the largest in the country, present to tell us

20 what he thought their data, I mean, the people in their

21 sample, how many people could -- what the sample sizes

22 would look like. So, that was January 2011.

23

And then at spring, we wrote the survey for it

24 and got it started in July. Most of the cases came in

25 early because -- they can collect data rather quickly on,

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1 you know, cases that are easy to find, but we really sort

2 of emphasized to them we want to find as many adopted kids

3 and children who said their mother and father had a same

4 sex relationship. So we left it in the field for quite a

5 while. I mean, months and months until, I don't know,

6 early 2012. Yes. Does that answer the question?

7

Q. Uh-huh. You mentioned that Witherspoon Institute

8 funded the NFSS. Were there any -- was there any other

9 funding for the study?

10

A. I don't know. Like half way along Witherspoon had

11 reached out to the Bradley Foundation to see if they would

12 help. They are in Milwaukee. Also, a socially

13 conservative foundation. But, they said, sure, we will

14 help. I think they paid $90,000 for it.

15

Q. You mentioned also conservative?

16

A. Witherspoon, they are -- I think they originally

17 started as kind of a Gradebooks Institute located next to

18 Princeton. But they are generally socially and

19 politically conservative. And they hadn't funded social

20 science research but they were interested in it and

21 excited about the study possibility and agreed to fund it.

22 I agreed. I floated the idea and agreed to lead it if

23 they didn't tell me how to do it, nor would they have a

24 clue how to do, you know, a probability based survey

25 study.

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1

Q. Were any deadlines placed on you by the Witherspoon

2 Institute?

3

A. You know, in all the e-mail that came out about this

4 study, there was one where Louise Tellez, who is the

5 President of Witherspoon, had said it would be nice to

6 have this by the time the Supreme Court case is on. I

7 think that was back in 2010. I was oblivious of the

8 Supreme Court cases.

9

Q. I want to stop you there. What Supreme Court cases

10 are you referring to?

11

A. He just said Supreme Court cases.

12

Q. Okay.

13

A. Or something like that. I had never considered that

14 a deadline or a mandate of any sort, keeping in mind that

15 was 2010, well before anything came to the Supreme Court.

16 But he said, you know, the emphasis is just on doing a

17 good job. I always saw my goal as doing a good job. The

18 only deadline I worked with was internal because I had

19 finished one book and was interested in starting another

20 book on 24 to 32 year old relationship behaviors.

21

And I didn't want this to take forever. So, I

22 kept, you know, I think a lot, a lot of researchers say I

23 would like to be done by such and such a time so I can get

24 on with another project. I told them I would write them a

25 report at the end of the project and that report was, in

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1 my mind, a primary deliverable. And that just -- I had

2 set deadlines for myself about when that report should get

3 written. And I had one of my colleagues at the University

4 of Texas had agreed to, you know, co-author that report

5 with me. And we were going to discuss all sorts of the

6 statistics and comment back and forth about what we saw in

7 the data.

8

Q. Were you provided any directive from the Witherspoon

9 Institute or anyone else for that matter about the results

10 of the study?

11

A. No. I had told Witherspoon, well, they wouldn't

12 have attempted to do that, but I told them I am going to

13 tell you whatever the data says. And, frankly, I had no

14 idea what the study would reveal.

15

Q. Doctor Regnerus, was the purpose of the NFSS to

16 inform the debate on same sex marriage?

17

A. Not to my -- in my estimation, it was not. I say in

18 the articles I have written about it, that it doesn't

19 primarily address, it's not intended to address political

20 and legal questions. I'm here addressing a legal

21 question. But that's not its intention. It's not its

22 primary strength I would say.

23

That said, it can be -- I mean, politicians and

24 legislators can, you know, they should have good

25 information and I think I wanted to provide quality

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1 information on people's household experiences and child

2 outcomes that they might find useful. But that was not

3 its intention.

4

Q. I think you mentioned earlier that you had some

5 assistance or you were consulted with regard to drafting

6 the survey?

7

A. Uh-huh.

8

Q. Is that correct?

9

A. Yes.

10

Q. Were there any individuals -- actually, can you tell

11 me who assisted with that survey?

12

A. Cynthia Osborne at the LBJ school in UT was the kind

13 of the co-investigator of sorts. She helped me with the

14 survey questionnaire and was more interested in it than

15 the average consultant. Back in January of 2011 we met in

16 Austin with several people who offered advice on the

17 design and broadly on the survey. Most of them, their

18 roles started and finished roughly then. I kept them

19 aware of what was going on at different points in time.

20 In the spring of 2012, I offered the data to them. Only a

21 couple of them wanted it at the time. So, does that help?

22

Q. Did you ask Doctor Gary Gates to consult on your

23 study?

24

A. I did ask him to consult. I asked Brandt (ph)

25 Powell of Indiana University to consult. I asked my

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1 Michael Rosenfeld to consult. He gave me some good

2 information but elected not to consult. Abbey Goldberg,

3 Susan Brown at Bowling Green. And it might be one or two

4 others. Tim Bidlar (ph), Southern Cal.

5

Q. Did Doctor gates decline your invitation?

6

A. He did.

7

Q. How many outcomes were you evaluating in the survey

8 itself?

9

A. We had no fixed idea. Just we had, wanted to have a

10 big survey of a lot of present and past stuff. And if I

11 had to tally them up there is probably 80, 100 different

12 distinctive outcomes. Some of them we pooled into

13 indexes. You could use them separately if you wanted to,

14 but --

15

Q. How many did you ultimately settle on when you

16 analyzed the data?

17

A. I settled on 40 for the published article.

18

Q. And how were those outcomes chosen?

19

A. To be a broad representation of their growing up

20 years, their current life, and different kinds of domains,

21 a little bit of, you know, experience with the Criminal

22 Justice System. I think we had, you know, smoking,

23 drinking behavior, how to get -- how do you get along with

24 your mother, parent/child. There is an index of sort of

25 the security of your -- as you reflect upon your life

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1 growing up, how secure did your family feel? Do you feel

2 you have any negative experience that you are still

3 working out with respect to the family? Your family of

4 origin, sexual partnerships, experience of sexual

5 violence, just a bunch different domains. 40 total

6 questions or 40 total variables.

7

Q. Who did your data collection, Doctor Regnerus?

8

A. It's a research firm called Knowledge Networks. I

9 think they're in Paolo Alto, in Washington. As far as I

10 can tell, they do the best on-line population based

11 nationally representative survey firm. They keep an

12 active data base of over 50,000 people that you can, you

13 pay to sample those people. So, it's the best on-line

14 source of nationally representative data that's out there.

15 They get a lot of federal contracts, a lot of university

16 contracts.

17

Q. Did Professor Michael Rosenfeld also use that

18 particular data collection?

19

A. Yes, for how his How Couples Stay Together Project,

20 which is a two year, three wave study. He might still be

21 doing that study in different waves. But he used

22 Knowledge Networks for that.

23

Q. So you were able to analyze the data, Doctor

24 Regnerus. How many individuals reported growing up with a

25 parent that had a same sex relationship?

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1

A. We had 248 total out of the 15,048 who said, yes, my

2 mother or my father had a romantic relationship with

3 someone of the same sex. 157 said that was true of their

4 mother. 73 said it was true their father.

5

Q. So you observed more children reporting their mom

6 had a same sex relationship, correct?

7

A. That's correct.

8

Q. Were you able to -- if I can have the next slide,

9 please -- were you able to tell who those children lived

10 with and how were you able to tell?

11

A. Yes. I mean, this slide is of, well -- there is not

12 175. Not quite 175 filled out all of the household

13 calendar data. But of those that did, we were able to map

14 who grew up with who, when. Those are four of the most

15 common living arrangements. And you can tell that modal

16 means by which kids came into the world was with a

17 biological mother and father. And that union failed and

18 at some point after that they had -- that's when the

19 relationship, same sex relationship they are speaking of

20 occurred.

21

Another -- it looks like roughly 30 to 35

22 percent said at the time of their birth or age one they

23 were only with their biological mother. So, most of those

24 same sex relationships did not occur, the vast majority

25 did not occur at birth.

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1

Q. I just want to back up for a minute because I'm not

2 sure we touched on it. What is the household calendar?

3 What was purpose of it?

4

A. The household calendar is envisioned like an Excel

5 file where you -- they had told us who had lived with them

6 at some point in their childhood and we automatically map

7 onto this screen those names, those roles. If they said

8 the mother had a same sex partner, so that row comes in,

9 and each year while they were growing up. And we asked

10 them to tell, who did you live with at the different years

11 of your life until you left the household or turned 18?

12

And so they would click on like when -- they

13 could click saying I lived with my mother the entire time

14 and it all goes in. But if they had lived with different

15 people or if mom had had a spouse that came, a husband

16 came, they would, if they left their mom to live with

17 their dad, we could X out until that age and then X in

18 they lived with their father. So that is how the

19 household calendar worked.

20

Q. And if I understand you correctly, the majority of

21 the respondents in the NFSS were the product of a failed

22 heterosexual union?

23

A. Yes. And you can see from the slide that that is

24 the case.

25

Q. For the folks that are not familiar with this graph,

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1 can you just explain what this represents?

2

A. So, if you look at the pyramid, the triangle at the

3 bottom that starts -- this is the percentage of

4 arrangements, the household arrangements, and on the

5 bottom is the age and years of the child, the respondent

6 who is now an adult. So you can see that over half said

7 when I was age one I was with my biological mother and

8 biological father. That is the darkest part of the bottom

9 group. Another share that gray area, said I lived with my

10 biological mother only from. So that is almost all the

11 way up to 90 percent of the kids.

12

Then next to top haphazard row, those who said

13 they lived with their biological mother or mother's

14 partner, very few were born into that arrangement but the

15 share of them that experienced it grew over time

16 especially, I mean, the modal age is 14. That is when the

17 most people who said their mom had a same sex

18 relationship, lived with mom and her partner, and that

19 goes to 18. It diminished a little bit. But teenage

20 years were when that maternal same sex relationship was

21 most likely to be residential for the kid.

22

Q. What is the final category?

23

A. The top, the biological mother, biological father,

24 which is typically, so far as we can tell, probably a

25 joint custody kind of relationship. You spend time, but,

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1 yeah, the joint custody kind of relationship, so far as I

2 can tell. They could say, if they had joint custody, I

3 lived with my mother and I lived with my father, but they

4 were not in the same place.

5

Q. Thank you. Did you use the acronyms LM and GF in

6 your results?

7

A. I did in the initial, the July 2012 article, and I

8 regret that. And I said that as much in the November

9 followup because it seemed to conflate sexual orientation,

10 using it as adjective rather than a reflection of the

11 relationship.

12

In the original article in July 2012 I said,

13 right when I described these acronyms I said, we shouldn't

14 assume this means that the parent is lesbian by their own

15 self-reported orientation because we didn't talk to the

16 parents and I didn't want to presume that the child -- I

17 didn't want the child feeling like they had to out their

18 parent if their parent was not out. So I stated pretty

19 clearly in the article, one should not read this as a

20 description of orientation of their parents.

21

But I regret doing that. And the origin was

22 that when I first got the data back, the first round of

23 the data back, I was like, I need some acronyms to start

24 working through this and when I was coding the data. So

25 that is what I did. And I never really let it go. So I

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1 clarified in the November article, I shouldn't be

2 conflating this in the popular imagination even if I had

3 been clear in the article. So at that point I said let's

4 talk about these as mothers who have had lesbian

5 relationships or fathers who had a gay relationship.

6

Q. And just so the record is clear, the LM

7 represents --

8

A. It stands for lesbian mother.

9

Q. And then the GF?

10

A. Gay father.

11

Q. Thank you. Did you control for family transitions

12 or instability in the NFSS?

13

A. I did not control for that in either the July or the

14 November follow up. And that's been a source of some

15 contention about this. Not about the data set, because

16 the data set is able to evaluate this. But it became

17 obvious to me in analyzing the data that, and you can see

18 a little bit in the slide, that sort of the household

19 transitions were notable and most of the children who

20 experienced mother who had a same sex relationship or the

21 father who had a same sex relationship experienced

22 household instability. And there was only handful of

23 cases where there was a nonstop presence of mom and her

24 partner in the household the entire childhood of the

25 respondent.

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1

So what does one do with instability? Some

2 people do control for it. And but my intention in the

3 July 2012 article was -- so this is a mapping of a new

4 data set and a description of a data set and I

5 characterized it that way in print. So I didn't think it

6 was helpful to control for instability which in some ways,

7 you know, I mean, there is a debate about this. Does it

8 hide something or does it reveal something? I wanted to

9 map something.

10

One of the things I think sociology is best at

11 is its ability to describe social reality. And in the

12 literature on same sex parenting, one could say that

13 rapidly moving to control for instability when instability

14 is endemic, writes it off like it's a control variable.

15 It's like we are not concerned about it. It doesn't

16 matter. And I thought that is not -- that doesn't really

17 do a service to trying to help people understand the lives

18 and households that we are describing. So I didn't elect

19 to do it in this study. It can be done. And the way I

20 framed it is that I made public and in November of 2012,

21 like five, four months, three months after this, the

22 article came out and saying there are different ways

23 people can evaluate this data and they are welcome to do

24 that.

25

THE COURT: So, is this the place to take an

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1 afternoon recess?

2

MS. HEYSE: Sure.

3

THE COURT: You can segue-way in?

4

MS. HEYSE: I will make it work, your Honor.

5 No problem.

6

THE COURT: I am not in a hurry. We will

7 take a 15 minute recess and reconvene at quarter to.

8 Thank you.

9

MS. HEYSE: Thank you, your Honor.

10

(Recess from 2:15 p.m. until 2:30 p.m.)

11

THE COURT: Thank you. You may be seated.

12 Doctor, first of all, I never know, do the profs like to

13 be called doctor or professor?

14

THE WITNESS: I prefer my first name.

15

THE COURT: No, I can't do that. But I

16 understand. I am just curious.

17

THE WITNESS: Doctor is fine.

18

THE COURT: I'm going ask you to straighten

19 out your chair and kind of talk to counsel and right into

20 the microphone. And I will tell you why. Usually I like

21 to have face contact with you. But the people -- you

22 maybe seated, I'm sorry -- the people that are here are

23 having a difficult time hearing you. And also being able

24 to see you and so forth. So just talk to counsel and move

25 your chair a little bit more. There you go. And those

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1 that can't hear, raise your hand this time. Don't wait

2 until we get to a break. Okay. You may proceed.

3

THE WITNESS: Would you like me to address

4 you?

5

THE COURT: No. Just look at counsel and then

6 your voice will be directed to her and to those that are

7 here and I can still hear. No problem. They are having a

8 hard time, and I understand why. These microphones are

9 such. Talk to counsel. They will be able to hear and see

10 you. For those that are hear, when you can't hear, don't

11 wait for a break. Raise your hand.

12

MS. HEYSE: Thank you, your Honor. I

13 understand they were having trouble hearing me, too.

14

THE COURT: Oh, good.

15

MS. HEYSE: I will try to pay attention.

16

THE COURT: Again, I'm sorry we had to wait

17 to long.

18

MS. HEYSE: Hopefully I will be closer.

19

THE COURT: I will, too, now. I just

20 realized I am not talking in the microphone.

21

MS. HEYSE: Thank you.

22 BY MS. HEYSE:

23

Q. I just want to backtrack for a moment, Doctor

24 Regnerus. Before the break we were actually taking a look

25 at this graph and I want to just make it clear or have you

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1 make it clear, what does this graph actually represent?

2

A. Right. It shows the sort of diversity of household

3 occupants for children who said their mother had a same

4 sex relationship. Clearly from that bottom piece you see

5 is that from the left side, age one, 55 percent of kids

6 said they lived with biological mother and father when

7 they were age one and that diminishes all the way down to

8 just a handful of cases well under 10 percent that was the

9 case at age 18.

10

A lot of them lived with just their biological

11 mother only. And that's not necessarily the same people

12 in the big gray block, but the same share roughly as at

13 age one lives with only their mother at age 18. And that

14 share above it, this is the kind of thing where you are

15 thinking about, when a child lives with his mom and her

16 same sex partner. Very few of them were born into that,

17 right? It looks like we have -- there's only two cases so

18 far as I can tell in the data where it's the case. And

19 along the way that number increases because either the

20 mother begins to partner with somebody or a relationship

21 fails and she begins to partner with somebody and that

22 peaks at age 14 where I think I want to say there was like

23 20 cases. I can't exactly recall where they are with

24 their mother and the partner in the same household. It

25 fluctuates over time.

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1

This also gives you an indication of sort of the

2 difficulty in tracking stability because it fluctuates

3 over time in that mother and mother's partner unit. So

4 the share of people who lived with their mom and her

5 partner for I think it was for over five years is like, I

6 think it was like 30 cases or so. It diminishes. Over

7 ten years it's less than that and down to the entire

8 childhood is two cases, right? And people got upset about

9 that, saying, you know, this is not a comparison of kids

10 who lived their entire life.

11

I said, that's correct. But this is a

12 population based study. This is what is going on in the

13 population of kids who are 18 to 39 years old now telling

14 us who they lived with when. It doesn't purport to be a

15 study of something that is not the case in the broader

16 population.

17

So, it looks quite different than some of the

18 non-probability studies that begin with a proposed sample

19 of people who are with their mom and partner at birth.

20 That's just uncommon in the population in this era. How

21 common it is today, I don't know. I don't think it's been

22 established.

23

Q. Sure. Does this graph tell you anything about the

24 number of respondents of the NFSS that were the product of

25 a failed heterosexual union?

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1

A. On the left, you know, most at age one is when

2 biological mother and father are together. Now, this does

3 not reflect their union status. Some of them were

4 married. Some of them were not married. But this slide

5 doesn't distinguish between that.

6

Q. And does it also indicate that a large majority of

7 respondents from the NFSS were being raised at least

8 living with the single mom?

9

A. Yes. A lot. Right? I mean, of this population,

10 right? Which is already a smallish minority. I mean, as

11 I said earlier, that becomes the modal household unit

12 where at probably at by age 10 or 11 the bio mom and dad

13 category has receded enough that the single mom, bio

14 mother only is pronounced then. So, the case where you

15 live with mom and her partner is higher obviously then

16 at -- in the teenage years but it's never the modal

17 household circumstance.

18

Q. So this indicates that for whatever reason the

19 children started out living with both bio mom and dad for

20 a period of time and then ultimately?

21

A. That is the modal, the most common experience.

22

Q. And ultimately, the biological father left the home

23 and mom was left to raise the kids?

24

A. Who knows who left the home? It was mom and the

25 child, and then some share -- that's when you sort of,

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1 they start. The mother's partner moves into the household

2 at some point. But that is never a large share of the

3 population.

4

Q. Okay. Thank you.

5

A. The focus though is to get a portion of what is

6 really going on out there, regardless of what we thought

7 might be going on.

8

Q. Okay. Thank you for explaining that. So what

9 comparison did you -- first comparison group did you

10 actually use for purposes of your results of the reporting

11 your reports of the NFSS?

12

A. I used the in tact biological family where the mom

13 and dad were together when the child was born and they are

14 still together today.

15

Q. Okay. Why did you use that particular comparison

16 group?

17

A. Because historically in the sociology of family it

18 had been documented that a stable in tact mom and dad

19 household has been the best context for children to

20 flourish in. So, I thought, well, why not? Why would you

21 want to compare it against something less than what has

22 been -- had long been considered the ideal, right?

23

Q. And I think you mentioned earlier in your testimony

24 that in doing that comparison in 24 of the 40 outcomes

25 when you had controlled the children, the respondents in

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1 the NFSS that had been exposed to a same sex relationship,

2 the outcomes were poorer from them when you compare them

3 to the stably in tact opposite sex union?

4

A. Correct.

5

Q. Was there a particular comparison group that had

6 outcomes most similar to the children who lived for some

7 duration with their mother or father and same sex partner?

8

A. Yeah. I got at this a little bit more firmly in the

9 November followup in social science research where you

10 split out more types of categories. Instead of 8, there

11 was 15. They compared most favorably, the ones where mom

12 lived, the respondent lived with the mom and partner for

13 some period of time, they compared most favorably to

14 single parents who did not have subsequent relationships

15 over the course -- before the child left the household.

16 They compare also fairly favorably to the child who said

17 their father had a gay relationship. And not that far

18 different, I mean, I think there was four differences, I

19 could look it up if you like, with step-parenting

20 arrangements, although I would have to look that up to

21 confirm that.

22

Q. Okay. What were some of the outcomes if you recall

23 where children of parents who had a same sex relationship,

24 those outcomes were poorer than those of the children that

25 were raised?

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1

A. Repeat that.

2

Q. I'm sorry. It's a longer question so I am happy to

3 do that. What were some of the outcomes, some of the

4 categories of outcomes where the children that were -- the

5 parents had had a same sex relationship, were poorer than

6 those of children who were raised by the stably in tact

7 biological?

8

A. Right. I can look it up and rattle them off or

9 rattle some of them off from memory.

10

Q. Which are you more comfortable with?

11

A. I would rather look it up. Do you want that from

12 the original or the followup where I have more categories

13 including when the respondent lived with the mother and a

14 partner?

15

Q. I am looking for some examples. I don't need an

16 exhaustive list.

17

A. Sure.

18

THE COURT: And tell us what you are looking

19 at, Doctor.

20

A. Sure. This is page 1372 of the November followup

21 where I compared -- they said the mother had a

22 relationship with another woman and they lived with their

23 partner. This is from Table One. After the set of

24 controls they are more likely to have received welfare

25 while growing up. They were more likely to be currently

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1 on public assistance, currently less likely to be

2 currently employed full-time, more likely to be currently

3 unemployed, more likely to say they had an affair while

4 they were married or cohabiting, more likely to have had a

5 sexually transmitted infection.

6

Table Two has less educational attainment, less

7 safety or security if their family of origin that they are

8 reflecting on, more negative impact from their family of

9 origin.

10

The Table Three has greater marijuana use,

11 greater frequency of smoking, frequency of having been

12 arrested or pled guilty to a non-minor offense. More

13 female sex partners among women. More male sex partners

14 among men.

15

Q. Can you just identify for the record what exhibit

16 number that is, Doctor Regnerus?

17

A. The tab number you mean?

18

Q. Correct.

19

A. That's seven.

20

Q. So State's Proposed Exhibit Seven. And can you

21 identify for the record what that document is, Doctor

22 Regnerus?

23

A. The title of it? Parental Same Sex Relationships.

24 Family stability And Subsequent Life Outcomes For Adult

25 Children. Answering Critics of the New Family Structure

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1 Study.

2

Parental Sexual Relationships, Family

3 Instability, and Subsequent Life Outcomes For Adult

4 Children, answering critics of the New Family Structure

5 Study with additional analysis.

6

Q. And is that your article, doctor Regnerus?

7

A. That's the November followup.

8

Q. Correct. Did you -- is that your original writing?

9

A. Correct.

10

Q. And does that appear to be a true and accurate copy?

11

A. Yes.

12

MS. HEYSE: At this time, I move for

13 admission of the State Defendant's Exhibit Number Seven,

14 your Honor.

15

THE COURT: Any objection?

16

MS. COOPER: No objection.

17

THE COURT: Number 17 is received.

18 BY MS. HEYSE:

19

Q. I guess while you have that book in front of you,

20 Doctor Regnerus, if you can open it to Exhibit Tab Six?

21

A. Okay.

22

Q. Can you identify that document for me?

23

A. By title?

24

Q. First identify what it is.

25

A. It's the original NFSS based summary article that I

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1 wrote which appeared in Social Sciences in July 2012.

2

Q. And very slowly, can you give us the title?

3

A. How Different Are The Adult Children Of Parents Who

4 Have Same Sex Relationships: Findings From The New Family

5 Structure's Study.

6

Q. Okay. And does this appear to be a true and

7 accurate copy of your article?

8

A. Yes.

9

MS. HEYSE: I move at this time for the

10 admission of State Defendant's Exhibit Number Six.

11

THE COURT: Any objections to six, you mean?

12 17 was already received.

13

MS. HEYSE: Yes. We went backwards.

14

MS. COOPER: No objection.

15

THE COURT: Very well. Received.

16 BY MS. HEYSE:

17

Q. Doctor Regnerus, were there any limitations to the

18 NFSS?

19

A. Yes. As in all studies have their limitations, this

20 is not a longitudinal study. It's cross-sectional. So

21 you get a snapshot at one point in time. So it's not able

22 to answer causal sort of claims about this causes this is

23 to happen. And I stated that clearly in the article.

24

It is not a study of parental same sex

25 orientation or sexual orientation. And I stated that

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1 pretty emphatically as well. I don't make claims about

2 the influence of sexual orientation, strong claims on any

3 sort of outcome. It's more a focus on relationships.

4 Partly it's a function of, you know, I don't think there

5 is any standard way that social scientists have decided to

6 document the orientation of parents in the literature as

7 far as I can tell. Certainly not in the census it does

8 not ask about orientation at all. So that's -- I'm losing

9 track of the original question.

10

Q. I was asking if there were any limitations to the

11 NFSS?

12

A. Right. It was not about -- not intended to be about

13 the orientation of parents. So it really is like snapshot

14 data, is able to answer certain things about what is going

15 on now without being able to say where it all came from.

16

Q. Okay. Were there any limitations with regard to the

17 age of the respondents?

18

A. To some extent. I mean, they are 18 to 39. So

19 these are young adults. So some, I mean, they all at some

20 level are removed from the household of origin. Most of

21 them, I assume. If they had gone to like age 13 that

22 would have involved a lot more invasive human subjects

23 review, I suspect. So we didn't.

24

But also that's a different kind -- there I

25 don't have the method of variance of asking kids who are

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1 now out of the house. You have to blend it with kids who

2 are in the house. But, so that's, I mean, one could say

3 it's a limitation. I think it's a source of strength to

4 talk to people after they are done with their childhood,

5 so to say.

6

Q. We took a look at the graph but were you actually

7 able to come up with a percentage of NFSS respondents that

8 were a product of the failed heterosexual union?

9

A. I think I said 55 percent is what that looks like at

10 age one.

11

Q. And were you able to determine a percentage of

12 respondents who were the product of assisted reproductive

13 technology or ART?

14

A. We didn't ask about their origins. So I took an

15 educated guess based on like whether the child was ever in

16 the household with a father. So I thought that's unlikely

17 to be the case. Or so I think in the original article my

18 hunch is, I think I said 18 to 25 percent that is the

19 maximum that was of a planned origin. Even though I still

20 think that's unlikely to all be assisted reproductive

21 technology. I don't think very many is the bottom line.

22

Q. What else would it be if it's not -- if they don't

23 fall within the ART category?

24

A. Surrogacy if it was among fathers. Yeah. So I

25 don't think -- I think the number is fairly small. It's

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1 hard to decipher like the bio mother only category. Like

2 did she -- was she in the union with a man for this?

3 Likely, I would say, but we don't know for sure.

4

Q. And were you able to determine the percentage of

5 respondents who were the product of an adoption?

6

A. Yes. There were statistics around adoption, either

7 by strangers or family members before age two or after age

8 two, by one person or two persons, yes.

9

Q. Okay. Was there any potential for source bias in

10 the NFSS?

11

A. In so far as you are not talking to the parents of

12 these children, I suppose. You are not getting reports

13 from their employer and things like that. But you are

14 getting a report from an adult about their own life. So I

15 think less source bias than you might have with studies of

16 younger children.

17

Q. And you made the NFSS data available to the public?

18

A. I did.

19

Q. And when did you do that?

20

A. I think it was November 1st, 2012 or right around

21 that, give or take a few days.

22

Q. Why did you do that?

23

A. It might have been October 1st. October 1st or

24 November 1st. Because I had said I would. Because it's a

25 scientific value to -- science moved forward, whether it's

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1 a social science or natural science, if people share their

2 data and can, you know, everybody can have an open look at

3 the data. And, you know, it long aggravated me that there

4 had been data sets dealing with not just this subject but

5 subject matters I am interested in that have not been made

6 public because they were funded privately. So nobody got

7 to know what their data says, right? So I was under no

8 obligation to release it because it was not federally

9 funded data. But it's the right thing to do.

10

Q. Not all researchers do that?

11

A. No. One of the primary data collection projects

12 that has contributed to the literature around this subject

13 is the National Longitudinal Lesbian Family Study.

14 Privately funded so far as I can tell. And never been

15 released publicly. I don't know what wave it's on now but

16 now it's 20 some years old I think. And, you know, I

17 think it's now 21 published studies. So, I mean, it's

18 fair to say, yeah, there is a literature that says, that

19 often says no differences. But when you're talking about

20 21 studies based on a small end sample of 78 people and a

21 data set that's never been made public so nobody else can

22 evaluate it, I mean, it's -- I don't think that is a

23 scientific value.

24

Q. Thank you. Doctor Regnerus, is researching the same

25 sex community challenging?

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1

A. It is. I mean, it's numerically a small population

2 at face value. There are different estimates about

3 basically, how we are going to map this? Is this about

4 sexual identity? Is it about attraction? Is it about

5 same sex behavior? There are different ways you might

6 want to map this. I elected to map it by relationship

7 behavior, parental relationship behavior. Fairly

8 objective in some ways.

9

You ask somebody to say, tell when your mother

10 or father, have they had a romantic relationship? So I

11 consider that a fairly objective measure. Obviously, it's

12 coming from somebody who is offering that information.

13 But it's not like saying, do you think your father is gay

14 or do you think your mother is a lesbian, which the child

15 may or may not think that. The parent may or may not

16 self-identify as that.

17

So I wanted to stick to relationship behavior.

18 And so I think we found 1.7 percent of the population had

19 a mother or father who said they had a mother or father

20 who had had a same sex romantic relationship.

21 1.7 percent. So you know you are looking for a small

22 population to begin with and it's a share -- it's a

23 percentage of the population who would consider themselves

24 gay or lesbian, right? Not all of them have children. And

25 in this era, from 18 to 39 year olds, I didn't want to

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1 make assumptions about how their parents or the kids would

2 describe their parents' identity. So that's why we stuck

3 with relationship behavior. That's long been my general

4 interest in the study of relationships is behavior, not

5 identity.

6

Q. Okay. Is the same sex community as a whole very

7 diverse?

8

A. It seems to me to be, yes. In both in the census

9 and in the NFSS, and I think Mike Rosenfeld's census based

10 study, I think he said 43 -- something like 43 percent or

11 39 percent of the population was of same sex couples in

12 his case, were African-American or Hispanic. I think mine

13 was 43 percent African-American or Hispanic.

14 Disproportionate compared to their shares in the

15 population as a whole. But they also, African-American

16 and Latino same sex couples, according to the National

17 Study Of Family Growth, another population study, are more

18 apt to have children and want to have children. So the

19 more you think about it, compared to the NLFSS which has,

20 I think is 12 percent of the national lesbian family

21 study. I think 12 percent is non-white. 94 percent of

22 them have a college education. That's just not -- that's

23 not reflective the underlying population, which is why we

24 wanted to go to population based studies.

25

Q. Let me back you up just a little bit. I think you

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1 mentioned in mine, you saw diversity. Are you referring

2 to in the NFSS you were able to tell about diversity?

3

A. Right. In the appendix I compared the general

4 percentages of a lot of different things to the current

5 population study. I think I saw the University of

6 Michigan, the National Study Of The Family Growth,

7 National Study Of Youth And Religion, Ad Health, all of

8 them. So that's how you kind of show people that your

9 data looks like other nationally representative population

10 based samples.

11

Q. Again, what was the percentage for minorities in the

12 NFSS?

13

A. In the NFSS, I think 43 percent. I think that was

14 it, that were African-American or Latino.

15

Q. You mentioned the NLFSS. So that is a study that is

16 relied on by the APA for purposes of the No Differences

17 Claim.

18

A. A couple times.

19

Q. Okay. And so it's your opinion that the type of

20 diversity that you found in the NFSS and other studies is

21 not reflected in those small convenient samples?

22

A. It is not.

23

Q. That are relied on by the APA?

24

A. 94 percent. I think 30 percent of the US has a

25 college education, I think. And this is 94 percent. But

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1 it comes from how do they collect -- how do they gather

2 their sample? It was essentially a convenience sample. I

3 think it included snowball aspects to it by putting up

4 advertisements in lesbian book stores in Washington,

5 Boston and San Francisco. So they are apt to pick up

6 people who frequent those book stores. Right? So, and

7 those three towns you would be more likely to be college

8 educated. So, I mean, you get where the

9 disproportionality comes from. But it's still like, that

10 is not an accurate reflection of the underlying population

11 of same sex parents.

12

Q. So in your opinion, diversity is reflected at these

13 large population based studies?

14

A. Yes, almost by definition since they are probability

15 samples. That is a more accurate picture of what is going

16 on out there as a whole.

17

Q. Did the NFSS tell you anything about the stability

18 of same sex couples?

19

A. Yes, it did. You look at sort of how many kids

20 lived with their mother and father for different -- or

21 their mother and her same sex partner for how long. I

22 think there was a total of 85 who lived with mom and her

23 partner for at least some segment of one year. Right? I

24 think it was 31 of those 85 lived for only up to one year

25 with mom and a partner together before either the

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1 relationship ended or, I mean, the person left the

2 household, the partner left the household or they turned

3 18. Another 20 cases, that was for two years duration.

4 And then that number keeps shrinking all the way to like

5 only two cases where they spent the entire growing up

6 years together. Yes.

7

So, I mean, the instability was notable. And

8 for the fathers who had a gay relationship, it's even, you

9 know, very few of them lived with dad and his partner for

10 a share of a year.

11

Q. So, so I understand you correctly, the NFSS showed

12 that there was instability within?

13

A. Within the household, right, in terms of comings and

14 goings. We are not exactly able to measure how often

15 these happened. It's possible the partner moved out but

16 they were still in a relationship with them. Probably

17 not. But we didn't measure when the relationship ended.

18 We measured who entered the household and how long did

19 they stay.

20

Q. Why did you measure that?

21

A. It was actually upon the advice of one of our

22 consultants, I believe. And this is emerging family

23 studies. This is getting a household roster. Right?

24 Because there is a growing awareness of the complex

25 families that people have. So, and if you take a look

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1 sort of saying I grew up in a step-parent family, when did

2 that start? Right? Obviously, if you are a step-parent

3 you are no longer with your biological father or mother.

4 When did your biological father or mother either leave or

5 one of the parents died?

6

I mean, so when did that start? Did it start at

7 age two or age ten? Are you on your second step-dad or

8 third step-mother? So the household roster was meant to

9 capture some of that complexity. And I think it did. I

10 mean, I don't lean very heavily on the household roster in

11 the first article because it's very complex. The first

12 article is intended to be an overview of what we learned.

13 But a household roster data was there and for people to

14 analyze, make the data public and people can analyze it.

15

Q. I want to follow up on a question or a point that

16 the Judge made earlier. Did you include respondents --

17 include in your results respondents that never lived with

18 their parents, same sex romantic partner?

19

A. Yes. And then the November followup I distinguished

20 the moms who did from the moms who did not, the kids whose

21 mothers lived in the same household as a partner from the

22 mothers who didn't. But I did in the July article, yes.

23 It was about split roughly fifty fifty. I think 90 said

24 they had not lived with their mother's partner. 85 did.

25

Q. Why did you include those people?

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1

A. For a couple reasons. One is that I have to be

2 sensitive to sample size. I was -- having looked at the

3 household rosters, we were aware that stability was not

4 profound. So, I mean, unless I wanted to create ten

5 categories of a group that is only 175 large to begin

6 with, and then your statistical power goes down to very

7 little and then you are in the same boat that everybody

8 else had been in except for the census. Right? And the

9 census didn't ask about orientation or behavior.

10

So it was a judgment call with respect to sort

11 of both sample size and the reflection of how long a lot

12 of those relationships had lasted or so far as we could

13 tell in terms of household. Not very many years. So they

14 had a lot in common that those whose -- the mother had

15 been in a relationship with another woman weren't

16 reporting extensive household experience with that person.

17

Q. Were there any respondents of the NFSS that lived

18 with their parent and the parent's same sex partner

19 through age 18?

20

A. Who? From the beginning?

21

Q. Uh-huh.

22

A. Yes. Two. There were some people for whom the

23 relationship started later and was still ongoing at age

24 18.

25

Q. I mean, any respondents that lived with their parent

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1 and same sex partner from birth to through age 18?

2

A. Yes. Two.

3

Q. Two. Okay. And what were the outcomes like for

4 those two children?

5

A. Right. On average they looked pretty good.

6

Q. Are you aware of any other research regarding the

7 stability of same sex couples?

8

A. Yes, I mean, Michael Rosenfeld attempted to tackle

9 it in the census. And that's where Professor Allen and

10 Professor Pakaluk and Professor Price sort of contest how

11 he deals with residential stability in the census. And he

12 lops it off at sort of as to the last five years. And I

13 think Professor Allen and company say, why do you do that?

14 You are then giving a false sense of the instability. I

15 mean, so there is a debate going on among them about that.

16

I mean, I also know in the Early Childhood

17 Longitudinal Study, The Kindergarten Cohort, which Daniel

18 Potter published articles in the Journal of the Emerging

19 Family, July of 2012. Controlling for instability, he

20 doesn't find any differences. I think it's some sort of

21 academic progress outcome.

22

But if you dig deeper into those cases, and

23 that's public data, you find that there were no cases

24 where the gay couple stayed together for eight years, I

25 think through kindergarten through eighth grade and

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1 70 percent of the lesbian couples had broken up by eighth

2 grade. So it was extensive instability in that data set.

3 Right? But once you control for it there is no

4 differences. Right?

5

So a lot of this debate and a lot of the

6 criticism around this revolves around what you do you do

7 with instability, right? If you control for it, are you

8 saying, oh, well, we realize that it matters but our focus

9 is on this other variable. But it's a live question. Is

10 there, you know, something -- is there something, you

11 know, systematically unstable about that kind of

12 arrangement? So, and one could say if you control for it

13 you are not shedding light on it. You are just sort of

14 pushing that out of sight. So I had I assessed that as

15 being an overview portrait of what is going on,

16 instability and all. Right? So --

17

Q. You mentioned that NFSS shows evidence of

18 instability within same sex couples. And you mentioned

19 the ECLS. Are you aware of the study by Anderson?

20

A. The Norwegian Sweden study, right.

21

Q. Did that inform your decision or your opinion with

22 regard to the stability of same sex couples?

23

A. Right. And I think Norway and Sweden might have

24 slightly different definitions of union and marriage. But

25 in their study, that was, I think it was in Demography,

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1 and they actually mapped sort of predictions for estimates

2 for what they would expect in subsequent years. I think

3 they said we should expect lesbians, lesbian couples,

4 lesbian marriage -- I'm not sure if they are marriages or

5 unions -- to break up at a rate of 30 percent over six

6 years. Gay couples, 20 percent over six years. And

7 heterosexual couples, I want to say 12 percent over six

8 years. So 30, 20, 12.

9

Q. Thank you.

10

A. That was -- I think that was Norwegian data.

11

Q. Did you also --

12

A. I think that might have been the Swedish data.

13 Sorry.

14

Q. Did Rosenfeld also have some research with regard to

15 the stability of same sex couples?

16

A. In the How Couples Meet And Stay Together project

17 which also used Knowledge Networks, and he presented that

18 at the Denver American Psychological Meeting in 2012. And

19 he documented, I mean, he called it a lesbian effect on

20 instability in relationships. So after a variety of

21 controls, he still found lesbian unions were more apt to

22 break apart.

23

Q. And what about the NLFSS?

24

A. NLFSS, National Longitudinal Lesbian And Family

25 Study. It's not a national study so I did not focus as

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1 much on that. That's interesting to look at. So it's

2 94 percent college educated, overwhelmingly white, and in

3 Boston, Washington and San Francisco, it's like you would

4 say it's a privileged sample. Right? In terms of

5 opportunities. And yet by wave five when the kids were on

6 average 17 years old, 40 of the 71 couples they had

7 tracked since the birth of the child had broken up. So

8 it's 56 percent I think it is. Which struck me as higher

9 than I would have expected in a sample of sort of

10 privileged folks. Right? So, 56 percent by the time the

11 kid was 17.

12

Q. I want to go back for a minute to --

13

THE COURT: Why are they privileged? I don't

14 get it.

15

THE WITNESS: Overwhelmingly college

16 educated. Eighty-seven were white, etc.

17

MS. HEYSE: Thank you.

18 BY MS. HEYSE:

19

Q. I want to go back to your response to my question

20 about how many of the children, the respondents from the

21 NFSS had lived with their parents and same sex partner

22 from birth to age 18. So the two that actually --

23

A. Right.

24

Q. In your opinion, Doctor Regnerus, are two children

25 enough to make any judgment on outcomes for -- let me

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1 finish the question -- outcomes for children of same sex

2 parent as a whole?

3

A. Right. I mean, two comes from 175, right? Or some

4 share of those did not fill out the household calendars.

5 But most of them did. So, it's just long odds, right? I

6 mean, to get, to be those two kids who turned up fine, on

7 average, it's just sort of the odds were against them

8 compared to the odds against -- I think, 40 percent of the

9 sample was -- said their mothers and father were married

10 and still married today. Right? So, much taller odds to

11 succeed and to witness that kind of stable union.

12

Q. So, in the NFSS, there were, if I understand you

13 correctly, there were two respondents that came from a

14 stably coupled same sex household?

15

A. Correct. From the household roster that is what we

16 mapped.

17

Q. Did your screening protocol somehow prevent these

18 stably coupled same sex households from appearing in the

19 NFSS?

20

A. Not that I recall. No. If it had, there wouldn't

21 be two, right? And I remember after the first criticism

22 starting rolling in, I went right back to the screener

23 questionnaire and I tried to map out all of the

24 permutations possible and I didn't see any problem.

25

Q. So you were surprised by the fact that there were

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1 only --

2

A. I was.

3

Q. -- two?

4

A. I didn't know what it expect really. But you would

5 think there would be more than two.

6

Q. All right. I'm going it a turn here now and talk to

7 you a little bit about some of the criticisms that

8 plaintiff's experts had lodged against the NFSS. We have

9 mentioned names a couple times. I just want to make it

10 clear for the record. Are you familiar with plaintiff's

11 expert witness, Doctor Michael Rosenfeld?

12

A. Yes.

13

Q. Are you familiar with his work?

14

A. Over the last several years, yes. I mean, with

15 respect to this area, yes.

16

Q. Doctor Rosenfeld has criticized the NFSS because you

17 did not control for instability. Do you have a reaction

18 to that criticism?

19

A. He criticized the data or my article?

20

Q. The results.

21

A. Okay. So the article?

22

Q. Correct.

23

A. Yes, I mean, I understand his complaint. I don't

24 think that was the purpose of that original overview

25 article which was to map, rather than explain away some

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1 things. And it intended to bring up the subject of why

2 such instability, right? So, as I point out, I already

3 had seen like the instability was endemic in the sample on

4 average and not just the instability of the same sex

5 relationships, but the households in which the mother had

6 had a same sex relationship. There was -- most of them

7 had come from a heterosexual group, right?

8

So there was relationship instability of all

9 sort, not just same sex. And I think it's an active

10 social scientific debate about what to think about that

11 and what to do about that, right? But in the -- for this

12 case, Michigan is thinking about what it out to esteem in

13 the household of its average children. So, I think, it's

14 helpful to see how children fare when mom and dad stay

15 together. I stated I think it was in the followup article

16 or in my report, there may be a gold standard, same sex

17 household of stably coupled mothers or fathers, but no

18 population based data that I have seen is yet able to

19 widely consistently confirm evidence of it, right? It may

20 exist. Just maybe we have not collected large enough date

21 or over time data or -- so, it might exist but we are not

22 seeing it consistently in the population based data that

23 we have and that's been collected in the last several

24 years.

25

And, you know, you bump from mine up to like --

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1 you have to go up to the Census to start talking about --

2 it doesn't get much bigger than that, right? I mean,

3 talking about -- to document more stable relationships.

4 But the Census does not ask about orientation or behavior.

5 So they do their own estimation. I think they do a good

6 job. But you can't figure out like how long mom and her

7 partner have been together.

8

Q. When you are referring to, they do a good job, are

9 you referring to --

10

A. People who use the census to analyze relationships.

11

Q. Any, in particular, you are referring to --

12

A. I mean, both Gary Gates and Mike Rosenfeld used the

13 census and Joe Price used the census and Doug Allen has

14 used the Census. They have a lively debate about this

15 subject. And it all seems to hinge around household

16 instability and what to make of it. To control for it

17 makes it disappear and go out your mind and say, it

18 doesn't matter. I mean, or are you giving the impression

19 it doesn't matter. It matters profoundly. And I think we

20 to people and to the public to sort of describe social

21 reality any all its complexity.

22

Q. So given these questions surrounding stability and

23 the limitations with regard to studying same sex couples

24 that you mentioned earlier, do you think it's just too new

25 to make definitive conclusions?

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1

A. Absolutely. You think about all of the data

2 collection projects that ought to be done before one

3 settles a scientific question like this. I mean, you can

4 go back 20 to 30 years ago when people starting dabbling

5 in this area. Most of it was convenient samples. The

6 probability based sample discussions have been, I am

7 thinking, the last three years, four years, maybe at the

8 most. Right?

9

And then to say we settled this No Differences

10 question back in 2005 or 2006 when the APA thing came out,

11 we weren't even working with probability based large

12 samples at that time really. I mean, Ad Health Study had

13 44 cases, I guess, right? Of same sex couples. But 44 is

14 not that large of a number, right? Of the statistical

15 power to detect genuine difference that might exist in the

16 population is limited.

17

So, it is very new. So it's intellectually

18 usually it was frustrating to see social science close off

19 a debate by claiming that it doesn't -- your screen has

20 changed -- closing off a debate by saying this is settled

21 when we haven't even corrected the ideal kind of data yet,

22 right? And assess its limitations, census limitations.

23 Let's get some more before making wide scale changes of an

24 institution that has been around for time immemorial.

25

Q. Those experts have also criticized the NFSS as not

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1 being a study of children actually raised by same sex

2 couples.

3

A. Right.

4

Q. Do have you a reaction to that criticism?

5

A. Sure. I am aware of the tension around this. To

6 say one is raised, does that mean you have spent your

7 entire household, your growing up years in the same

8 household with the same person? Increasingly American

9 family lives are complicated. So you have got more people

10 coming and going. More people experiencing step-parents.

11 More people experiencing single parenthood and things like

12 that.

13

Who is doing the raising in all these? If you

14 primarily live with your mother but see your father on the

15 weekend, is your father not raising you? I mean, I assume

16 the father is raising you to some extent. So, raising, we

17 have got this mentality that it's consistent, stable

18 presence, right? And that's optimal, I'm sure, as the

19 data suggests. That may be different than influence,

20 right? And whereas all sorts of parents can be influencing

21 children. Parental relationships can be influencing

22 children.

23

I mean, one of the things we noticed in the

24 data, we didn't make a whole lot about it, is one of the

25 next best parenting structures to when mom and dad are

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1 married and stayed married, are that if mom divorces and

2 never recouples, right? Never recouples until the kid is

3 out of the house. I mean, because the child only

4 experienced this one transition, right? Which is better

5 than experiencing -- can often be better than experiencing

6 a second or third transition. Subsequent marriages fail

7 at rates greater than first marriages. So instability

8 snowballs, really. So I maybe I'm getting away from your

9 original question.

10

Q. You're fine. Previous expert have also criticized

11 your use of stably in tact biological parents as a

12 comparison group saying you're comparing apples to

13 oranges. Do you have a reaction to that?

14

A. Right. Really, it's -- everything except in stably

15 intact parents would be -- it's a kinship reduction, to

16 some extent. So, I mean, even as I said earlier, like

17 figuring out, so what counts s a step-family? How long do

18 they have to live with their step-dad before he counts?

19 As raising, I mean -- so there is a lot of subjective

20 judgment calls in this stuff where you want to be clean

21 and clear about it. And we have eight categories. But

22 even in those comparison categories there is a lot -- it's

23 not just that the category of mom and her partner is

24 complex. It is. I mean, a mother and her stepfather is

25 complex. Stepfather, dad and a stepmother, is when did it

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1 occur? Did they break up again? So, the apples and oranges

2 suggests there is -- it's kind of dualist or binary when

3 the household rosters are complicated and people's lives

4 are complicated. And with respect to the mothers who have

5 had relationships with men of the same sex, the rosters

6 are all over the place. There is a lot of household

7 movement.

8

Q. Plaintiff's experts also criticized the NFSS as not

9 revealing anything about the well-being of children being

10 raised in families created by gays and lesbians. So in

11 other words, ART or by donor insemination. Do you have a

12 response to that?

13

A. Well, the point was of that was to map social

14 reality in the United States population based sample,

15 right? And that era -- there were clearly was probably not

16 too many people who had children by artificial means, or

17 Assisted Reproductive Technology or insemination.

18

What we don't know is how many, as of today,

19 everybody assumes it's a lot more. We know that Assisted

20 Reproductive Technology accounts for one and a half

21 percent of all births today. And so, donor insemination

22 or artificial technology, to say lesbian couples, what

23 share of that 1.5 percent are theirs? I mean, it's

24 certainly not half because they are not that numerous in

25 the population. It's some small share of 1.5 percent, so,

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1 right. For that you kind of, the NLFSS gives information

2 even though it's not a probability sample. You really --

3 to map sort of how the children who grew up who were donor

4 inseminated, their origin, you want that, and you want

5 that in a big survey. You want it to get a national

6 portrait of what that looks like and that doesn't exist.

7 Right? A lot of things in this domain do not exist yet.

8

Q. Previous experts have testified that essentially

9 putting together a group, a collection of these small

10 convenient sample studies over time is just as good as one

11 large population based study. Do you have an opinion on

12 that?

13

A. They can be illuminating about certain dynamics.

14 They not telling of what one should expect across the

15 population. I mean, it's a strange calculation to say,

16 you know, ten baseballs make a football. They are

17 different kinds of studies.

18

So, when we are dealing with questions of wide

19 import, I will always think we should privilege these

20 nationally representative studies of which they exist.

21 They are not cheap to do, but I think there is pressing

22 interests in it so they ought to be conducted.

23

So I don't usually say that or think about like

24 five of one thing equaling one or another. They are just

25 very different. They have their own strength and

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1 weaknesses. But in the case of something like some

2 significant policy things at stake, I think you ought to

3 error on the side of large data collection efforts

4 underlying representative samples.

5

Q. Thank you.

6

A. We do this when elections come up, right? CNN poll,

7 plus or minus 2 percent, who is voting for this or that

8 candidate? You want that to be representative of a state

9 or a country. You don't want to say CNN poll of the

10 people working in our office. That is not going to tell

11 us anything about what to expect in terms of what is

12 probable among the collective.

13

Q. When was your article published in Social Science

14 Research, the NFSS results?

15

A. July 2012. And followup was in November 2012.

16

Q. And what was the time line for publication of that

17 article?

18

A. Tag line. I'm not sure what you're saying.

19

Q. Do you recall when the Social Science Research

20 actually received that article?

21

A. When I submitted it to them?

22

Q. Correct.

23

A. Okay. Late January, early February.

24

Q. Okay. And do you recall when it was accepted by the

25 journal?

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1

A. I would say sometime in the middle of March. Prompt.

2

Q. And would you agree that that time frame is

3 unusually fast?

4

A. It was unusually fast.

5

Q. Do you know why that happened?

6

A. I can only speculate. But the part that I

7 contributed to was that I was prompt in once I got reviews

8 back, I was prompt in returning, you know, the edited

9 manuscript or a revised manuscript to the Journal. So I

10 didn't keep it with me for very long. I could have kept

11 it for months. I mean, one of my mantras that I learned

12 in graduate school, when you revise and submit a decision,

13 you hurry up and you clear your desk and that's what you

14 focus on because that's your job is publishing. So, that

15 was my part.

16

When I first contacted the editor of the journal

17 to -- I knew this was a sensitive subject. Wanted to know

18 if he would consider it. And I had asked for a speedy

19 review under the logic that I was still writing this

20 report, this larger report. I was going to try to get an

21 overview study in. Maybe we could squeeze it in before

22 the large report that is due. And it's only due in my

23 head, right? Like March. And I pushed it back to May and

24 I pushed it back to -- it was going to be September of

25 2012. So I asked him for a speedy review of which an

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1 editor is not under any obligation to do.

2

Q. You mentioned that you had asked him to do that

3 because you knew this was going to be sensitive. What do

4 you mean by that?

5

A. I asked him if he would consider it because some,

6 you know, quite often when I will submit an article I will

7 check in first with the editor like, would you even accept

8 a submission on this topic? Sometimes they don't take

9 literature reviews. I have written one or two of those

10 before, or studies -- if you are wondering, you just write

11 the editor and say, are you accepting stuff like this?

12 But social science research typically, historically has

13 been known for publishing things that involve some sort of

14 novel methodology or novel approach to a research

15 question. So, that's why I thought of them. Right? And

16 I had been a reviewer for them at various points in the

17 past and I found them easy to work with.

18

Q. What was the reaction to your article?

19

A. It was severe and swift. Surprised me. I knew it

20 would stir the pot and some people would be upset. But it

21 was clear that draft copies of the article had been

22 circulating for quite some time, from whatever source. I

23 don't know. And so people had developed extensive

24 critiques. One of the weird things, it felt like all a

25 sudden everybody turned into a methodological purist with

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1 this study when they left all sorts of methodological

2 challenges go in previous studies. So, I know a lot of

3 people were unhappy with it or unhappy with what it

4 implied or something.

5

Q. Sure. You said that it was severe and swift. What

6 do you mean by that? What happened?

7

A. Well it came out in June 12, a few weeks early.

8 That's why the on-line version. And, man, within a day I

9 was, you know, receiving complaints and there was stuff on

10 the web trying to take down this, the analyses, and we

11 learned nothing from this article, etc. You learned

12 nothing from this article? Seems unlikely.

13

Q. Was there an effort to get your article retracted?

14

A. Yes. Probably at a couple different times.

15

Q. And do you know who led that effort?

16

A. Well, there was a blogosphere effort to do so, but I

17 know Gary Gates, I think, it was Gary Gates had got 200

18 people, a little over 200 people signed the letter. Only

19 a handful of them were family demographers. I went and

20 looked and read their list and who that was. I mean,

21 family demographers, I think know better what this kind of

22 data collection challenge is.

23

Somebody once said creation is difficult.

24 Destruction is easy. There is a list, a letter of 200

25 people complaining to the editor. I don't recall if they

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1 asked for outright retraction. Retraction is only in the

2 case of outright fabrication. So that is not -- has not

3 happened. But they complained about different aspects of

4 the study including the time line, including the use of

5 the acronyms for which I definitely wanted to make that

6 right in the November followup. So, some legitimate

7 criticisms of which there always are in studies, some that

8 I thought were a little over the top.

9

Q. Was there an audit conducted?

10

A. There was, which is a very strange experience, very

11 unusual experience with respect to a social science study.

12 I never heard of such a thing. I don't know why the

13 editor agreed to do that. He was getting a lot of flack

14 from what I could tell and that he did not expect. And

15 decided, okay, I think it was an editorial board member of

16 his who had -- who did not like me and has not liked me

17 for years, for whatever reason. I'm not really sure. Had

18 agreed, who basically volunteered to do an audit and the

19 editor seemed to say, well, you can't -- we can't -- we

20 can't --

21

MS. COOPER: Objection. Hearsay.

22

THE COURT: It's not for the truth of the

23 matter. It's for the state of mind.

24

THE WITNESS: I should continue?

25

THE COURT: Do it from your perspective.

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1

THE WITNESS:

2

A. Sure. Can't be construed as being friendly. I mean,

3 and he wasn't friendly, nor was he neutral. This is a

4 person who has ranted in blogs for years about me and some

5 other people, some other friends of mine, and gave the

6 audit job to him which, you know, that doesn't seem to

7 compute.

8

So, he and the editor turned over, so far as I

9 can tell, the correspondence around the article. And he

10 solicited University of Texas for all my grant

11 expenditures on it and audited the process and concluded

12 that he didn't think the article should be published. He

13 thought it was deeply flawed, etc. And I'm not sure if

14 it's just because I didn't control for instability or not.

15 But, deeply flawed, etc. But concluded -- he could

16 foresee why the editor would have made the decision. He

17 had three reviews in hand that all said, publish. So, he

18 seemed to exonerate the editor and then took off on a rant

19 on the article itself which did not seem to be part of the

20 audit. The audit is to review process, not to review the

21 article. So that was done, I don't know, late summer of

22 2012. All very prompt. I mean, cooler heads would say

23 let science work this out another time, right?. And I was

24 still intending to release my data which I did in

25 November, October.

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1

Q. Who conducted that audit?

2

A. Darren Sheraat (ph), Professor of Sociology at

3 Southern Illinois.

4

Q. In your opinion, that was not an objective audit?

5

A. I think that is an understatement.

6

Q. Was your article every retracted?

7

A. It was not.

8

Q. Did all -- well, strike that. Baking up a little

9 bit. Was there also some allegation of misconduct that

10 resulted from the publication of the article?

11

A. Let's see. June 12 had come out. By July 5th,

12 University of Texas Research Integrity Officer said, Mark,

13 we are opening a scientific misconduct review of your

14 case. And I'm like, you're kidding me.

15

THE COURT CLERK: Can you speak into the mike

16 a little bit?

17

A. By early July, the scientific integrity officer at

18 the University of Texas said, Mark, we have to open a

19 scientific misconduct review of you which stunned me. And

20 it was a lie. We have had these allegations brought by

21 someone who is claiming scientific misconduct. We are

22 bound to do them. This was from a blogger in New York who

23 had made outlandish accusations of me. Successfully got

24 the university to put me under misconduct review, took all

25 of my lap tops, hard drive, my computer, all records, that

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1 sort of thing. They looked through my e-mail, and then I

2 have to go in front of a little tribunal of four or five

3 department chairs and the scientific misconduct officer

4 reading the eight charges of a blogger from New York who

5 is not an academic. Strange stuff.

6

Q. What was the ultimate result of that scientific

7 misconduct?

8

A. There are two processes to this. Misconduct review,

9 and if they find ample evidence, they ask for a scientific

10 misconduct investigation. The whole thing is supposed to

11 operate in where both parties are going to be quiet. The

12 blogger was not quiet. Right? So, but the end result is

13 I appeared before this little tribunal and told them my

14 side of the story. They evaluated it and recommended it

15 to the Provost to dismiss the case and not open the

16 scientific misconduct investigation. And the Provost

17 accepted their decision.

18

Q. It was dismissed at that first stage of the process?

19

A. It was.

20

Q. Did all of this controversy surrounding the release

21 of your article, did that leave you to ultimately write

22 that followup article.

23

A. That was -- not inherently, but that was a request

24 from the editor of the social science research. He said,

25 Mark, you know, you're getting a lot of criticism. I

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1 think I better open up some space in the November issue or

2 whatever issue he had in mind for critics and for you to

3 respond to your critics. So that is what he did.

4

Q. And was it November that that follow up was

5 published?

6

A. It was.

7

Q. And what did that followup say?

8

A. I went back to the data and I looked at -- I sliced

9 the pie some different ways. I had added seven different

10 categories that makes it more complex in some ways, but

11 one of the key things I did was sort of split the children

12 whose mother had a same sex relationship into these two

13 groups. Ones who lived with mom and her partner and ones

14 who did not. That makes sense. On average they look

15 quite similar over the outcomes. But it has more clarity

16 in our mind about what the child -- what kind of situation

17 they are in.

18

But even once where mom lived with the partner,

19 as I said, their relationship durations were not lengthy

20 on average. I think it's 22 percent is the statistic

21 for -- of whom the mom's relationship was ongoing when

22 they left the household at age 18. Otherwise they had,

23 their household relationship had started, then stopped.

24 78 percent.

25

Q. You started touching on this earlier?

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1

A. I'm sorry. There is more to that question. You

2 asked about the response. So there was that split. Then

3 there is also addressing the apples and oranges thing

4 which I had done a few minutes ago, talking about foster

5 care because some critics said same sex couples are more

6 likely to adopt from foster care. Went back to the data,

7 to the household rosters, because we had foster care as an

8 option. And so far as I could tell, there was only seven

9 out of 21 cases where the child either left foster care to

10 go with mother's partner and mother or else they went into

11 foster care from that. I mean, otherwise foster care

12 looked like randomly distributed across experiences in the

13 household. So I didn't think the foster care story was

14 what we were after. If you let me look, and I can briefly

15 summarize the other criticisms I addressed.

16

Q. Sure, if that helps you recall.

17

A. In number seven. So I addressed the LM and GF thing

18 where I said I shouldn't have done that. Classification.

19 Addressed the apples and oranges thing where it's like not

20 as easy as you might thing. They are complex household

21 structures. I addressed instability. Is it a controlled

22 variable or a pathway of analysis, right?

23

Other people would suggest a path analysis

24 approach which I did not do. One could do it with the

25 data, so forth. This maternal same sex relationship, does

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1 it predict instability which then predicts poorer outcomes

2 rather than mapping a direct influence from a maternal

3 same sex relationship? I addressed the subject of what do

4 you do with controlling for this thing?

5

I mean, and then the issue of instability, is it

6 a thing of the past or what do we know about it? And

7 that's where he talked about the Swedish data and

8 Norwegian data. I mentioned Bidlars (ph) and Stacey in

9 2010 when they did the literature review said they noted

10 mostly this was from the convenience studies that lesbian

11 parents face a, quote, somewhat greater risk of splitting

12 up due in part to their, quote, high standards of

13 equality.

14

I addressed that subject and people had said the

15 emphasis it is not a representative sample. This is -- we

16 should pay attention to Rosenfeld and the census, etc.

17 This is garbage. And I said, it's not garbage. And it

18 looks quite a bit like census estimates, NSFG

19 characteristics, etc.

20

And the subject of mixed orientation marriages,

21 which I don't know -- I don't always know, was this a

22 marriage that ended. In the graph I showed and that is

23 from the November followup, what people were basically

24 born in and what happened after that. But mixed

25 orientation marriages. Some are, yeah. Plenty are. I

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1 didn't ask whether -- I just asked if the parents, the

2 biological parents were divorced. Anyways, bisexuality

3 was the subject -- I'm sure of these women are bisexual.

4 Right? But one thing I did say in here, most of the time

5 when in the cases of when the respondent lived with mom or

6 partner, she had exited an opposite sex union, entered a

7 same sex union, either exited that -- or basically saying

8 they didn't know, man, woman, man. So it looked more like

9 a former heterosexual union, now a same sex union.

10

I addressed the subject but said it would be

11 impossible to tell. Those are the things that I sought to

12 address in that.

13

Q. Thank you. So, again, turning now, you touched on

14 this earlier and I want to circle back to it, in talking

15 about the topic of this area being a new area of social

16 science.

17

In your opinion, Doctor Regnerus, what has the

18 social science of same sex parents based on convenient

19 samples taught us to date?

20

A. I think it taught us about the dynamics going on

21 within same sex households. It's also shown us it's

22 possible to be stably raised in lesbian couple households.

23 And if it's possible, it doesn't show it's probable. I

24 mean, these convenience samples are not -- you can get

25 what is possible from them. I think Paul Amato (ph)

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1 brings this up in his response in the July article, you

2 know. He said if it would have been terribly destructive

3 we should have seen it by now, these convenience studies.

4 We see it's possible. We don't get a sense of what the

5 most likely outcome is. And you don't get that unless you

6 use probability based studies.

7

Q. Are you aware of other probability based studies

8 that have found sub-optimal outcomes for children raised

9 in same sex homes?

10

A. I mean, in Rosenfeld's assessment of the census, he

11 disputes this with Price, Allen, Pakaluk. But you look at

12 the raw numbers, the children who grow up in heterosexual

13 stably coupled heterosexual households fare better. It's

14 comparable. Nothing statistically significantly

15 different. That's one outcome. Academic progress in

16 school. Potter's longitudinal studies, that is also an

17 academic progress thing. This was 40 outcomes. So that

18 was lot to chew on. But the science really is young here.

19 Think about this. This is the study that has come out

20 with the most outcomes, right? Don't you think we should

21 have more of these kinds of things?

22

One of the kind of mantras of responses to

23 critics didn't come from me, but from some people, said if

24 you don't like the study, go field your own population

25 based national representative study and ask the questions

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1 you like. I really think it's too early to tell a lot of

2 these things. And until we have more data I think it's

3 rational and prudent of states to be very careful and to

4 privilege what we already know to be true about the stably

5 coupled married opposite sex households and tread very

6 carefully what we don't know to be true.

7

Q. Would Doug Allen's study of the Canadian census be

8 another probability study that showed sub-optimal

9 outcomes?

10

A. It is. I read it and I wrote a brief thing about

11 it. It's not -- that kind of thing other people can

12 analyze because you had to apply to the Canadian

13 Government to look at it and he no longer has access to it

14 himself. But he found less optimal outcomes. So people

15 pushing back and forth on that study too.

16

Q. And just to make it clear for the record, when you

17 are talking about this debate between Doctor Rosenfeld and

18 Doctors Price, Allen, Pakaluk, we are talking about the

19 study of the United States census data regarding

20 children's progress in school, correct?

21

A. Correct.

22

Q. Okay. And do you have an opinion regarding that

23 debate?

24

A. A modest opinion, you know, back to this sort of,

25 what are you going to do about instability? Is it

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1 relevant? Is it a controlled variable or is it something

2 to wrestle with? And I have some doubt on the side that

3 it's something to be open about and wrestle with rather

4 than to control for and mask probably because I'm not

5 making a claim that same sex orientation causes something,

6 right?

7

But to say, you know, the experience of parental

8 same sexual relationship was associated with, correlated

9 with greater household instability. And when you control

10 for it and say there is no differences, you know, people

11 do that, but I don't think it has -- that certainly has

12 not shed light on the social reality of the children in

13 those circumstances.

14

Q. You used the terminology, privilege, several times?

15

A. Privilege samples? That sort of thing?

16

Q. You just mentioned we should privilege what we have

17 known.

18

A. Right.

19

Q. I want to make sure it's clear what you mean that we

20 should privilege something?

21

A. I mean, in this case, you know, I think the State of

22 Michigan should tread carefully and privilege the

23 definition of marriage as between a man and woman because

24 historically, and still in this data set, you see that

25 it's the optimal child development environment for kids

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1 into adulthood even. Right? Not just in their growing up

2 years. So I think we should privilege what we can learn

3 from especially -- from these large data collection

4 projects in our decision making about what is prudent and

5 what is best to do.

6

Q. Doctor Regnerus, do you believe that this issue is

7 settled? So, in other words, there are no difference in

8 outcomes between --

9

A. No.

10

Q. -- children of same sex couples and children of

11 opposite sex couples?

12

A. Nothing -- it's not that nothing can ever be

13 settled, but we are definitely sort you in the novel

14 period of social science on relationships. I highly

15 recommend more data collection efforts, prudence going

16 forward with respect to large scale social changes. But

17 we have not settled anything. I think is what we have

18 learned is that it's possible to grow up in a same sex

19 household and the children be fine. You will only learn

20 if it's probable until you really track kids over time

21 with a lot of cases, far more cases than we have seen to

22 this point.

23

Q. Doctor Regnerus, are you affiliated with any

24 particular religion?

25

A. I am Roman Catholic.

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1

Q. So that's a yes?

2

A. Yes.

3

Q. Does that affiliation affect your research in any

4 way?

5

A. I would say people think it does in this stuff but I

6 don't see it, frankly. I mean, there is no Catholic way

7 of doing statistics or sampling strategy. I think, if

8 anything, it shapes research questions I am interested in.

9 But I'm not afraid of what data has to say. So I think it

10 shapes the kinds of things I study but not like the

11 process of studying them.

12

Q. Do you have a belief about marriage, what it is or

13 what it means?

14

A. I do.

15

Q. What is that?

16

A. I think that marriage is essentially a union between

17 a man and a woman. It's intended to be permanent.

18

Q. Are there specific norms of that relationship or

19 requirements of that relationship that you believe in?

20

A. I mentioned permanence. On average, marriage is,

21 among younger people, is to expect to welcome children. I

22 think partners expect sexual fidelity. I don't think

23 people who marry want to or expect to cheat or leave. So

24 I think it's built into the fabric of marriage, this sort

25 of permanent you and me, and baby makes three kind of

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1 mentality. And I think it's been true for a long time.

2

Q. So that I am clear, so, three, for lack of a better

3 term, requirements of marriage in your opinion are

4 permanence, fidelity or exclusivity --

5

A. Requirements?

6

Q. Components. Is that a better term?

7

A. Components. Historically, generally speaking,

8 stable components. I mean, we can error on polygamy. But

9 I think we moved away from that era. And I don't think

10 people on the average wish for that.

11

Q. I apologize for the terminology. So, again, three

12 main components in your estimation are permanence,

13 exclusivity and an expectation of producing children?

14

A. Right. That's not always the case with people but

15 that's historically been part of the arrangement. And,

16 you know, you see in the data, I didn't create that in my

17 mind, but when you see permanence, I don't have a measure

18 of fidelity among the in tact biological families.

19 Permanence and, you know, children, I mean, the children

20 flourish in that environment.

21

Q. What is your basis for that opinion or definition of

22 marriage?

23

A. I don't know. It's a pretty historically stable

24 basis. I don't think -- I mean, the Catholic Church likes

25 that argument. But I don't think it's uniquely religious

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1 in origin. It's fairly stable over time. It's

2 cross-religion, cross-culture.

3

MS. COOPER: Objection. It's beyond the

4 scope.

5

THE COURT: Sustained.

6 BY MS. HEYSE:

7

Q. Do you have an opinion about redefining marriage to

8 include same sex couples?

9

A. I don't think it's a good idea.

10

Q. And did that opinion affect your research in any

11 way?

12

A. No. Not in how I conducted the research. I mean,

13 it was -- the research question is a curiosity about how

14 children fare in same sex households but it didn't affect

15 the conduct of it. I mean, if it did, then I wouldn't

16 have gathered together a group of diverse consultants and

17 have different people weigh in on how we are going do

18 this. So, which I did those things.

19

Q. Doctor Regnerus, your testimony and your work places

20 a lot of emphasis on population based or probability

21 studies. Would that be accurate?

22

A. Yes. I have done other things, but I always like

23 doing things with large probability based studies.

24

Q. And you've been critical at least in your testimony

25 today to the extent that non-probability studies can

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1 actually be used, correct?

2

A. Not used in general, but used -- in this particular

3 case, to settle an intellectual dispute about No

4 Differences, I think it's unwise to lean on so many of

5 those or at least not exclusively. And the case in

6 general, I think you can learn about stability in same sex

7 couples households, but you don't want -- so I think you

8 should privilege larger non-probability samples to get

9 information about what is going on in the public and the

10 underlying population of both opposite sex and same sex

11 couples as a whole.

12

Q. So let me ask you this. If there were population

13 based studies that showed equivalent outcomes for children

14 raised by same sex couples and opposite sex biological

15 parents, would you reconsider your position with regard to

16 same second marriage?

17

A. Can you say that again?

18

Q. Sure. If there were population based studies that

19 show equivalent outcomes for children raised by same sex

20 couples and opposite sex biological parents, would you

21 consider your position about same sex marriage?

22

A. I mean, there are probability based studied that do

23 this. And even the NFSS in all fairness, 25 out of 40

24 outcomes where there are differences, it's not 40 out of

25 40. It's -- and even on the outcomes are there kids that

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1 fare just fine and kids of opposite sex couples that are

2 not faring fine. So it's a likelihood of occurrence. I

3 would want to see, certainly want to see more cases or

4 more studies. I think what is most likely to be changed

5 is my opinion about the No Differences thing, I mean, that

6 until we get a lot more evidence from probability based

7 studies I think we should be skeptical about that.

8

Q. So kind of up to wrap up your testimony from today,

9 Doctor Regnerus, based on the NFSS and your knowledge of

10 the research in this area, have you formed any opinions

11 relative to this case?

12

A. Right. I mean, I think the NFSS data together with

13 the disputes that go on around instability in the census

14 data and things like that suggest that it's prudent to --

15 for the state to retain its definition of marriage which

16 was the will of the people as between one man and one

17 woman. I think there is a wisdom in the people's

18 assessments here. And it's wisdom borne out in the data.

19 As I mentioned earlier, it's possible that there is a

20 stably coupled lesbian, you know, household type that just

21 doesn't show up in sufficient number of cases in

22 probability based data to make claims, and certainly not

23 to make major changes on it, right?

24

I mean, two kids, and those two kids are okay.

25 Well over a hundred. The odds are against it, right? And

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1 nothing is preventing people from having unions and having

2 children. But the state has to consider the entire

3 population of people, not just one group or not just sort

4 of the most stable of a group. I mean, they have to

5 consider the children as a whole and what is good for

6 them. And that's why I think with respect to the

7 population based data that is available, some of it

8 highlighted here, the most prudent thing to do is wait and

9 evaluate some of these changes over time before making any

10 radical moves around marriage. Marriage has been around a

11 long time. We are in the process of overhauling it very

12 rapidly on modest information.

13

Q. And is that opinion -- let me back up. I want to

14 make clear the opinions that you are expressing here

15 today. Okay? In your opinion, Doctor Regnerus, what is

16 the ideal environment for raising children?

17

A. When you are born into your married mother and

18 father's life and they stay together, ideally, and into

19 adulthood, right? I mean, that's the zero transitions,

20 right? And kids fare best when they experience zero

21 transition. Some transition can't be helped. Some

22 transitions, the parent gets violent. Things like that.

23

But the states usually recognize it's a

24 concession when we take a kid out of the household or a

25 parent decides to leave a household or the parent dies.

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1 That's not optimal. Right? So, I think the idea of

2 esteeming a kinship structure that by its very definition

3 reduced in terms of a biological connection between child

4 mother and father, I don't see why states would do that.

5 I mean, it's not the optimal context for flourishing for

6 children. It's a concession. I think states are prudent

7 when they say, this is what is best. This is what we want

8 for our children.

9

Q. In your opinion, Doctor Regnerus, can same sex

10 couples raise children?

11

A. Sure.

12

Q. In your opinion, is there any conclusive evidence

13 that shows that there are no differences in outcomes for

14 children growing up in households with same sex

15 relationships?

16

A. Say that again.

17

Q. Is there any conclusive evidence that there are no

18 differences in outcomes for children growing up in a

19 household with same sex relationships?

20

A. I don't think there is too many conclusive, too much

21 conclusive evidence that there are no differences. I

22 think there are some outcomes or some measures,

23 relationship with the mother. But on average, I don't

24 think we are anywhere near saying there is conclusive

25 evidence that there is no difference. APA disagrees,

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115

1 right? But APA, they wrote this years before we started

2 really focusing on some of these population based broad

3 nationally representative studies. And I think you should

4 privilege those kind of studies because they tell you what

5 is going on among the people, not just one small group.

6

Q. In light of that fact, that you don't believe there

7 is research and data to definitively answer that question

8 about child outcomes, do you have any opinion as to the

9 wisdom of making decisions on these questions without that

10 critical information?

11

A. I think in any business, they don't make critical

12 decisions based on lack of information. I think nor

13 should governments. We have started adding to a new

14 science. I mean, a new field, so to speak. Some

15 interesting information. Didn't know what I would find.

16 I think it's prudent to collect more data before one makes

17 any major conclusions on this. That doesn't seem to be

18 the movement of what is going on in the country. I mean,

19 people are asking for change prior to ample information.

20 I think it would be prudent and wise to be patient and map

21 this out. Map it out in multiple data over time before

22 you jump in.

23

Q. So is it your opinion until we have that research

24 and data, it's prudent for the State of Michigan to define

25 marriage as between a man and a woman in order promote

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1 what you believe is the ideal environment for raising

2 children?

3

A. I do, yes.

4

MS. HEYSE: I have no further questions.

5

THE COURT: Thank you, very much. I think we

6 will start Cross-Examination tomorrow. Tell me, what

7 witness do you have, the state has lined up?

8

MS. HEYSE: We have Doctor Joseph Price

9 coming tomorrow.

10

THE COURT: Tell me what is his science.

11

MS. HEYSE: He is -- economics, yes.

12

THE COURT: Okay. And good. So in terms of

13 timing, we will do Cross-Examination and then you will

14 call Doctor Price?

15

MS. HEYSE: Correct.

16

THE COURT: Okay. Any questions?

17

MS. NESSEL: I have a question regarding

18 Doctor Price. I was told by counsel there is a power

19 point presentation to accompany his testimony. We have

20 not received it and I was wondering if we could get a time

21 line.

22

THE COURT: Soon to have that.

23

MS. HEYSE: Sure. I am happy to do that. We

24 had some similar incidents with plaintiff's counsel. We

25 are happy to provide it to them. We are just doing some

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1 finalization.

2

THE COURT: As soon as you get it, e-mail it

3 to them.

4

MS. HEYSE: I got Ms. Nessel's e-mail address

5 to make sure I can get that to her.

6

THE COURT: Perfect. See you in the morning.

7

8

- - -

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1

C E R T I F I C A T I O N

2

I, Lawrence R. Przybysz, official court reporter

3 for the United States District Court, Eastern District of

4 Michigan, Southern Division, appointed pursuant to the

5 provisions of Title 28, United States Code, Section 753,

6 do hereby certify that the foregoing is a correct

7 transcript of the proceedings in the above-entitled cause

8 on the date hereinbefore set forth.

9

I do further certify that the foregoing

10 transcript has been prepared by me or under my direction.

11

12 s/Lawrence R. Przybysz
13 Official Court Reporter

14

- - -

15

16

17

18

19

20

21

22

23

24

25

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 2:12-cv-10285-BAF-MJH Doc # 166 Filed 04/06/14 Pg 1 of 149 Pg ID 4458

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, ET AL.,

Plaintiffs, v. RICHARD SNYDER, ET AL.,

HONORABLE BERNARD A. FRIEDMAN No. 12=1-285

Defendants. _____________________________/

BENCH TRIAL

Tuesday, March 4, 2014

Appearances:

FOR THE PLAINTIFFS:

CAROLE M. STANYAR, ESQ. DANA M. NESSEL, ESQ. KENNETH MOGILL, ESQ. ROBERT SEDLER, ESQ. VICKIE HENRY, ESQ.

FOR THE DEFENDANTS:

TONYA C. JETER, ESQ. KRISTIN M. HEYSE, ESQ. JOSEPH E. POTCHEN, ESQ. MICHELLE BRYA, ESQ. BETH M. RIVERS, ESQ. ANDREA J. JOHNSON, ESQ. MICHAEL L. PITT, ESQ. - - -

To obtain a certified transcript, contact: Lawrence R. Przybysz, MA, CSR, RPR, RMR, CRR
Official Federal Court Reporter Theodore Levin United States Courthouse 231 West Lafayette Boulevard, Room 718
Detroit, Michigan 48226

2:12-cv-10285-BAF-MJH Doc # 166 Filed 04/06/14 Pg 2 of 149 Pg ID 4459
(313)414-4460. Lawrence_Przybysz@mied.uscourts.gov Proceedings recorded by mechanical stenography.
Transcript produced by computer-aided transcription.

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Bench Trial Tuesday, March 4, 2014

I N D E X

- - -

Defendant's Case in Chief

Page Vol.

Joseph Price, Ph.D.

Direct Examination By Ms. Brya:

71

Voir Dire Examination By Ms. Nessel:

35 1

Direct Examination (Continuing) By Ms. Brya:47 1

Cross-Examination By Ms. Nessel:

109 1

Certification of Reporter .....................150

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4

1

Detroit, Michigan

2

Tuesday, March 4, 2014

3

1:00 P.m.

4

- - -

5

THE COURT: You may be seated. Thank you.

6 Judge Cohn called and said he had thirty students and they

7 were going come down on from where they are, or who they

8 are, I don't have any idea. But so we will start. When

9 they get in, we may take a second to see who they are.

10 It's always -- since they are in a group -- I don't know

11 if they are young, old, I have no idea. Okay. Why don't

12 we have the next witness and we will start.

13

MS. NESSEL: May I address --

14

THE COURT: Yes. Hold on for a second. Go

15 on.

16

MS. NESSEL: Your Honor, over the lunch

17 break, I was viewing the power point presentation that the

18 state defendants intend to present in conjunction with

19 Joseph Price's testimony. There were a number of slides

20 that were included in here that don't seem to reflect

21 anything at all that appeared in this witness's expert

22 report. And the slides are not numbered, but I can give

23 you the title.

24

THE COURT: Well, I think the way to handle

25 that is because I have never it and I don't know anything

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5

1 about it, is to deal with it as it comes up. I can't deal

2 with it in the abstract. I have not read this particular

3 witness's report because I don't think it was part of

4 anything that I wouldn't have read before. And so as it

5 comes up, feel free tree to stand up and to object or to

6 not object as you see fit.

7

MS. NESSEL: I will. Very good, your Honor.

8

- - -

9

JOSEPH PRICE, PH.D.,

10

being first duly sworn by the Court to tell

11

the truth, was examined and testified upon

12

their oath as follows:

13

THE COURT: You may be seated. Speak into

14 the microphone and look at whoever is asking the questions

15 and everybody can see your face and hear you.

16

THE WITNESS: Thank you.

17

THE COURT: You may proceed. Marshal, how

18 are you today? I haven't seen you in so long. When you

19 come in, I appreciate it. This is our United States

20 Marshal, Robert Grubbs. So we appreciate it. I have not

21 seen you in so long. I stopped up the other day and you

22 were busy. It's always good. Usually I won't call you

23 out. And sometimes Barbara will come or somebody. I

24 usually don't do it. But it's good to see you.

25

- - -

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Joseph Price, Ph.D. - Direct Tuesday/March-4-2014

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1

DIRECT EXAMINATION

2 BY MS. BRYA:

3

Q. Can you please state your name and spell it for the

4 record?

5

A. Yes. My name is Joseph Price, J-o-s-e-p-h,

6 P-r-i-c-e.

7

Q. Doctor Price, can you please tell the Court a little

8 bit of your educational background?

9

A. Sure. So I received my bachelor's in economics from

10 Brigham Young University. Immediately after that I

11 attended graduate school at Cornell university. I

12 received a Ph.D. in economics there. I worked Ron Yarbor

13 (ph) who is an expert on the economics of education. I

14 also worked with Liz Peters who is an expert on the

15 economics of the family. So this nice combination of both

16 education and the family are two of the kinds of

17 contributing factors to child outcomes.

18

And so, it's, you know, a nice set of training

19 for this particular case. I was also very lucky to be at

20 Cornell at a time when they ran conferences related to

21 fatherhood and conferences related to marriage. I was able

22 to interact as a graduate student with some of the leading

23 scholars in some of those fields. And also, because of my

24 work with Liz Peters, I was able to attend a Witherspoon

25 Institute sponsored conference at Princeton that dealt

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1 with issues of the family that brought together some of

2 the leading scholars on the family that I was able to be

3 involved with.

4

THE COURT: If you can talk to the attorney,

5 I can listen. Then everybody else can see your face.

6 Thank you.

7 BY MS. BRYA:

8

Q. You indicated that you received a Ph.D. in economics

9 from Cornell, is that correct?

10

A. That is correct.

11

Q. And did you have a particular emphasis, particular

12 focus with your Ph.D. program?

13

A. Yes. So the topic of my dissertation was titled

14 Economics Of The Family. The first chapter dealt with, it

15 dealt with birth order differences and how much time

16 parents spent with their children.

17

THE COURT: Can everybody hear? No. There

18 you go. Make sure you tell you, remember? We had a deal.

19 If you can't hear, let us know.

20

A. So the three chapters my dissertation dealt with

21 Parental Time Investments In Children -- the three

22 chapters of my dissertation dealt with Parental

23 Investments In Children, Marriage, And Student Outcomes

24 And Gender Difference In Competitive Settings.

25

Q. Thank you. That's perfect. I think that is a good

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1 pace. So continue like that and I will try to do the same

2 thing so we all can make sure the court reporter gets it

3 all down.

4

Can you tell me what your current occupation is?

5

A. Sure. I am --

6

THE COURT: When did you get your Ph.D?

7

THE WITNESS: I got it in 2007.

8

THE COURT: Thank you. You may proceed.

9

A. So I'm an empirical economist. Sometimes within

10 economics we would refer to this as applied

11 microeconomics. I work on topics related to health, labor

12 and the family. In particular, as an applied economist or

13 empirical economist we work primarily with large data

14 sets. We employ rigorous empirical methods, put emphasis

15 on robustness checks, falsification tests, placebo tests.

16 And we also have a norm within our field to conduct

17 research as transparently as possible. We make our code

18 available to each other. We share our data. We

19 collaborate. So I find to be a very open scholarly

20 community.

21

Q. And can you give the Court an overview of your

22 employment history, please?

23

A. Yes, I graduated from Cornell in 2007. And I

24 immediately took a position as an Assistant Professor of

25 Economics at Brigham Young University. I had been an

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1 Assistant Professor for six years and received tenure last

2 summer. So now I am an associate Professor Of Economics.

3

Q. And what are your job duties as an Associate

4 Professor of Economics?

5

A. So my job duties are split between teaching,

6 research and citizenship. And of these three, research

7 constitutes the majority of my time. Within that area of

8 research I advise lots of students. I had about, over 300

9 research assistants. And so within that role I have a key

10 role in mentoring future scholars, training them in

11 empirical methods and within the area of citizenship.

12 This would be citizenship both at the university by

13 serving on committees, but it's also citizenship to the

14 larger academic community by reviewing the work of other

15 scholars or serving as an editor on a journal.

16

Q. Are you affiliated with any organizations?

17

A. Yes. I have three affiliations outside of Brigham

18 Young University. The first is I'm a Faculty Research

19 Fellow at the National Bureau Of Economic Research,

20 referred to as the NBER. This is a rather prestigious

21 affiliation to have within economics. There is a

22 nomination process each year in which members of the

23 organization nominate promising young scholars. I was

24 nominated a few years ago and as part of that affiliation

25 I attend their conferences two or three times year. I can

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1 submit my working papers through their working paper

2 series which are disseminated to do libraries all around

3 the world.

4

And I'm part of the children's program which is

5 a subset of the MBR that focuses particularly on child

6 outcomes. It looks at the affect of family, education,

7 public health, on important child outcomes.

8

Q. Do you have any other affiliations with the

9 organization?

10

A. Yes. Another group I'm affiliated with is IZA. It's

11 a German organization. It's one of the premier

12 organizations for the labor economics. It's located in

13 Bonn, Germany. It's very similar to the MBR in that there

14 is a nomination process each year. It's rather

15 prestigious to be nominated to be a member of this

16 organization. It has several privileges of allowing you

17 to travel to Germany to show your work, participate in

18 conferences. But, again, it's, you know, it's again a

19 rather prestigious distinction among those of us that do

20 applied microeconomics.

21

And the third affiliation is with the Austin

22 Institute. This is a relatively newer organization. And

23 the only thing that I really have done with the Austin

24 Institute so far is to write a blog post. Their hope for

25 the Fellows is to be able to take academic studies, either

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1 done by us or others that might not be written in a way

2 that's accessible to the public and to try to translate

3 that research into the kind of writing that any educated

4 person would find accessible.

5

So the only blog post I have done at this point

6 was actually about the agricultural groups of gender

7 roles. So we see quite -- there is quite different gender

8 roles across different countries in the world. And part

9 of this stems from the way agriculture was conducted

10 hundreds of years ago.

11

So in some societies the way the terrain was set

12 up is you would conduct your farming using a plow and in

13 these societies --

14

MS. NESSEL: Your Honor, I'm going to object

15 to the narrative style. I don't think there is any

16 question that is directly being posed and yet the witness,

17 I think just on his own --

18

THE COURT: I will overrule. We are just

19 laying the foundation. It would take a lot less time by

20 allowing that. That's okay, Doctor. Take your time.

21 Generally, an examination like this is question and answer

22 but I think it would take too much time. You may proceed.

23

A. So the blog post is just showing that these -- so in

24 a plow society the men tend to work in the field and it

25 creates a gender specialization so the women work in the

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1 household. Whereas in societies where you need to hand

2 plant the crops, both the men and women work together in

3 the field and as a result they both work together in the

4 household. And what's intriguing about this article is

5 they show that these agricultural matters that occurred

6 hundreds of years ago that are no longer relevant continue

7 to affect the gender roles in society today. So that

8 would just be an example of the kind of role I have at

9 Austin Institute --

10

THE COURT: You are used to lecturing.

11 Students can't tell you that. I need one of you in my

12 classroom.

13

A. Yes. So my role would be to translate. In this

14 case the paper was actually rather technical. My role was

15 to convert it into something that, you know, the general

16 public could access and understand.

17

Q. Thank you. We talked a little bit about your

18 experience and your job duties as an Associate Professor

19 of Economics at Brigham Young. Can you tell me, do you

20 currently teach any courses?

21

A. Yes. So, I mean, I have been lucky at Brigham Young

22 University that my role is in teaching has been rather

23 minor. I taught the same class over and over again. But

24 I teach a class in microeconomics. And I teach a class in

25 behavioral economics.

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1

Q. And I think you alluded to do this before. Do you

2 conduct any research in your position as Associate

3 Professor?

4

A. Yes. That's actually what constitutes the majority

5 of my time. I run a research team. I have a large group

6 of research assistants that work for me. My primary areas

7 of research are economics of the family. But I have had a

8 string of research related to topics that come out of

9 racial bias or the response to medical research. But if I

10 had to characterize the bulk of my research it would

11 issues related to the family including child outcomes,

12 union formation, parental investments in children. That

13 was what my dissertation work was on. And that was the

14 topics I found most interesting.

15

Q. And does your research have any common themes?

16

A. Yes. So if I were to think about some of the

17 commonalities across the research I do, this is all

18 research using large representative data sets. This is

19 all research using what we would think of as the most

20 rigorous empirical methods possible. And it's also

21 research in which replication is incredibly important.

22 And as such, I conduct research that can be replicated and

23 extended by other scholars so we can build off each

24 other's work.

25

THE COURT: Excuse me, one second. Come on

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1 in. I understand there are some students. Come on in.

2 There is plenty of room. Do you have a commonality

3 between all of the students. Is there somebody that

4 is --Who are you?

5

A SPECTATOR: I am on the diversity

6 committee. We are getting the students to tour the

7 courthouse and sit in on proceedings.

8

THE COURT: Explain to them what this case is

9 about.

10

A SPECTATOR: This is the case at trial where

11 the gay marriage and I think it's also adoption --

12

THE COURT: That's good. Okay. I don't want

13 to go into it, but it's basically the plaintiffs are

14 challenging the constitutionality of the Michigan

15 Amendment banning same sex marriage, for lack of another

16 word. So that's basically what it's about. You are all

17 law students so I think you will pick it up pretty well.

18 Right now we have on the stand Doctor Price. And as you

19 know, in order to testify for those that are going to be

20 lawyers, in order to testify as an expert, the person that

21 calls that witness has to qualify them. So, now Doctor

22 Price is going through his credentials and so forth to

23 qualify. And I don't know exactly what he is going

24 testify to, but we will hear it soon.

25

Feel tree to leave whenever you have to. I

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1 suspect you are from different law schools. How many are

2 from Michigan State? There we go. Okay. How many from

3 UD? Okay. How many from Cooley? How many from Michigan?.

4 Okay. That's all we have. We used to have another one

5 that went to Florida. We don't talk about him anymore.

6 Good. Well, okay. Wayne State. I forgot about Wayne

7 State. How many from Wayne?

8

A SPECTATOR: We don't have anyone from

9 Wayne.

10

THE COURT: See. I lucked out today, didn't

11 I? We have a couple students right over here. We have one

12 from Michigan State and we have one from Wayne. And my

13 two law clerks, one sitting in the back there who went to

14 University of Michigan and one sitting over here who went

15 to St. John's in New York. So, and the rest attorneys.

16 When we take a break, you are more than welcome to talk to

17 the attorneys. We have great attorneys on both sides.

18 You will see something in this case that is most

19 important. If you go all through law school and come to

20 court and you talk to anybody, the most important thing

21 when you get out to practice law is collegiality between

22 the profession. And we are losing it. And we are getting

23 it back.

24

This case is a textbook case of the kind of way

25 cases should be tried. It's unbelievable. So, not

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1 unbelievable. It's the way it should be done and it's

2 been done a 100 percent in this case. Remember that from

3 day one, you know. You're attorneys and you can't take --

4 that's what you are there for. You are the buffer between

5 the courts and your client and so forth. And collegiality

6 and civility and reputation. From day one, you better do

7 the right thing because whatever happens when you first

8 start, that is your reputation. From then and you try to

9 change it and do whatever, that is your reputation. Those

10 are my couple of words. I'm sure Judge Cohn will give you

11 a couple, too. He's never without some advice. You may

12 continue.

13

MS. BRYA: Thank you, your Honor.

14 BY MS. BRYA:

15

Q. Doctor Price, before the brief break, we were

16 speaking, you were speaking about the commonality in your

17 research. I don't know. Or the common theme in your

18 research. Did you have an opportunity to fully answer

19 that question?

20

A. Yes.

21

Q. Okay. Have you published any peer reviewed

22 articles?

23

A. Yes. So, the vast majority of my articles are

24 published in peer review journals. The peer process

25 allows us to have other scholars check our work. It

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1 improves the work and so the majority of my papers were

2 published in peer review journals.

3

Q. Can you tell me approximately how many peer review

4 articles you have published?

5

A. Sure. So I have 23 articles that have been

6 published in print. I have another nine articles that

7 have been -- gone through the peer review process, been

8 accepted by the journals and are just waiting to come out

9 in print.

10

Q. And what journals are these articles published in?

11

A. So, my research has been published in some of the

12 top journals, both in economics, business, demography.

13 Within the field of economics, the Quarterly Journal Of

14 Economics is often viewed as the premier journal within

15 our field. I have published work there. Within the field

16 of demography, the Journal of Demography is generally

17 considered to be the premier journal. I published there

18 twice. Within business, the Journal Of Management Science

19 is considered to be one of the top hits in a business

20 school. And I published there as well.

21

Q. Do any of the articles that you have written cover

22 the topics of marriage or parenting?

23

A. Yes.

24

Q. Can you tell us a little bit about those articles?

25

A. Sure. So I will break them in three categories. I

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1 will talk about some articles that speak specifically to

2 child outcomes, some that speak specifically to union

3 formation, and then some that speak specifically to

4 parental time investment. But I also have kind of a

5 broader set of papers that at school based interventions

6 to improve child outcomes. And I can speak briefly about

7 those.

8

THE COURT: When you do, move the microphone

9 a little bit closer just a bit.

10

MS. BRYA: I'm remind you to go slow so the

11 court reporter can get it down.

12

THE COURT: Can you hear now? Are you okay?

13 Everybody back there? Okay. Great.

14

A. So the most important paper that I published

15 relevant to this case is a paper about the outcomes of

16 children raised by same sex couples compared to other

17 family structure types. It was published in 2002 in

18 Demography. It was published with Doug Allen and

19 Catherine Pakaluk. The paper builds on some very

20 innovative work that Michael Rosenfeld did.

21

I view his paper as kind of a quantum leap

22 forward in the methodological approach to same sex couple

23 presenting literature. What we did is took his paper as a

24 starting point. We replicated it. We extended it in some

25 new ways. And those extensions actually led us to some

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1 very striking and different conclusions than the original

2 paper had.

3

And then other papers related to child outcomes.

4 I have a paper with Casey Buckles about the effect of

5 marriage on infant health outcomes. And what we find is

6 that children born into a married couple have much better

7 outcomes even right at the start of life -- birth weight,

8 being born premature. And this gap has actually shrunk

9 over time. But it has continued to persist over the last

10 few decades.

11

And then I also have a paper about teenage birth

12 rates, also an important marker of child outcomes. And in

13 that case we are looking at the effect of high school

14 sports and teenage birth rates.

15

Then within the area of union formation, Case

16 Buckles wrote a paper looking at the repeal of blood test

17 laws. These were laws that had been historically been

18 this placed in various states. We tested for syphilis

19 gonorrhea. And the states have gotten rid of these laws

20 which you can think of as lowering the barriers or cost of

21 getting married. You actually see an uptick in marriage

22 rates in these states. And this uptick is particularly

23 noticeable in less educated couples, younger couples.

24

I also have some work with Jeff Due (ph) in

25 which we look at the factors that determine whether or not

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1 someone gets married. And we highlight the fact that the

2 factors that influence the entry into marriage depend on

3 whether you cohabit before marriage.

4

And I have written a handbook chapter that

5 documents a lot of public policies or other factors that

6 influence whether or not people get married.

7

Q. Okay.

8

A. And the third category would be the effect of

9 parental time inputs. And so my dissertation chapter was

10 trying to explain the fact that we have observed really

11 large birth order differences in child outcomes. So first

12 born children get higher test scores, more likely to go to

13 college, less likely to smoke, have a teen pregnancy. And

14 what I have shown in my dissertation is that an important

15 explanation for that is that parents spend a lot more time

16 with the first born child than they do with the second

17 born child. It's about 3,000 hours. It's about a year

18 and a half of full-time parenting that the first born

19 child gets that the second born child doesn't.

20

And so, again, this is, you know, I think an

21 important contributor to child outcomes. So we have been

22 using this as a way to try to understand the effects of

23 parental time investments on child outcomes.

24

Q. Are you the editor of any journals, Doctor Price?

25

A. Yes. I am the Associate Editor of the Economics Of

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1 Education Review.

2

Q. And what does it mean to be the Associate Editor?

3

A. So I am put in charge of 40 to 60 articles each

4 year. And I get to determine the fate of those papers.

5 What that means is I identify potential reviewers, usually

6 two to three reviewers per article. I send the article to

7 the two reviewers and ask them to evaluate the article for

8 me. I take their evaluation, combine it with my own

9 assessment of the paper and I have to make a decision

10 whether the paper should be accepted or rejected.

11

So this is an important gatekeeper role in the

12 profession. It's how we make sure that the good studies

13 get published and the less good studies don't. And so

14 it's kind of an honor given to scholars that have an

15 established publication record.

16

Q. How do you get to the editor of this particular

17 journal?

18

A. So you're usually invited by the editor-in-chief of

19 the journal. In this case, it's Dan Reese who is a

20 professor at UC Denver.

21

Q. Separate and apart from your duties as Associate

22 Editor of that journal, have you ever been asked to review

23 any articles for other people?

24

A. Yes. So, I have been a professor for about seven

25 years and during that time I have been asked to review

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1 academic articles for over 40 different journals. These

2 journals include nearly all of the top journals within

3 economics but also include the top journals from

4 sociology, demography, business, pediatrics.

5

And, again, in this role I play that kind of

6 second role which is an editor will ask me to review a

7 particular paper and it's my job to provide assessment of

8 whether this paper should be published or not. And I

9 provide a number reasons to justify that decision and I

10 also provide comments that are designed to be helpful to

11 the authors. And so, I have done this for over 40

12 different journals. I probably have reviewed over a

13 hundred different articles and played kind of a key role

14 in that.

15

Q. I'm going to direct your attention to what's been

16 marked as the State's Exhibit Eight. Is there a book up

17 there, Doctor Price, at all?

18

MS. BRYA: May I approach the witness, your

19 Honor?

20

THE COURT: You may.

21

MS. BRYA: Thank you.

22 BY MS. BRYA:

23

Q. Again, I would like to direct your attention to the

24 State's Exhibit Eight. It's eight tab in there. Do you

25 see what I am referring to?

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1

A. Yes.

2

Q. Can you tell me what this document is?

3

A. Sure. This document is my Curriculum Vitae. It's

4 an academic resume. This was my Vitae as of

5 December 2003. Since that time two other papers have been

6 accepted. So if you were to go to my website it would be

7 slightly different. But this is essentially my academic

8 record.

9

Q. Though separate, with the exception of those couple

10 of articles that you mentioned, this is a true and

11 accurate copy of your CV?

12

A. That's correct.

13

MS. BRYA: At this time, I move for the

14 admission of State's Exhibit Eight.

15

MS. NESSEL: No objection.

16

THE COURT: It will be received. Exhibit

17 six.

18

MS. BRYA: Thank you, your Honor. Did you say

19 Exhibit Eight, your Honor?

20

THE COURT: Eight? I said six. But it is

21 eight. I wrote six down by mistake.

22

MS. BRYA: Thank you, your Honor.

23 BY MS. BRYA:

24

Q. Have you received any grants for your work, doctor

25 Price?

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1

A. So the grants that I received are listed in my

2 Curriculum Vitae on page four. And if I had to

3 characterize these grants, I would split them into three

4 groups.

5

One group are grants that I received while I was

6 at Cornell university and these were grants that I

7 received from Cornell university. There is another set of

8 grants that I received while at Brigham Young University

9 from Brigham Young University. And there is another set

10 of grants that I have been received from Government

11 agencies or private foundations. And these include grants

12 from the US department of Agriculture, the Cornell Center

13 For Behavioral Economics and the Spencer (ph) Foundation.

14

If I were to kind of describe how this works,

15 those Cornell grants, I would have been -- in every case

16 there has to be a proposal. There is a competitive

17 process by which those proposals are compared to the

18 others submitted and some team has to make a decision on

19 which proposals to fund.

20

For the Cornell grant I would be competing with

21 people at Cornell. For the BYU grants, I would be

22 competing with people from BYU. For the national grants I

23 would be competing with scholars from all around country.

24 Collectively, it's over a half million dollars in funding.

25 This funding has allowed me to employ lots of

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1 undergraduate research assistants and conduct meaningful

2 research, but it's also a strong signal of the regard with

3 which my research is held in this community. These are

4 organizations, especially in the case of the Department of

5 US Agriculture, they started out by giving me a small

6 amount and we were very successful with that grant. They

7 gave us a larger amount. We were successful and they gave

8 us an even larger amount. And I imagine they would

9 continue to fund my research in the future.

10

Q. Are there any other sources of funding that you have

11 received for your research?

12

A. Yes. So on occasion since I have this really

13 talented and well-trained pool of research assistants, on

14 occasion I am asked to employ those students to conduct

15 various types of empirical tasks. So in one recent case

16 an app developer asked us to evaluate this company's app

17 by going into an elementary school and actually conducting

18 a test.

19

So in that case we told the app developer to

20 write us a check. They wrote the check. The money goes

21 into a research account and that research account is used

22 to pay the wages of my research assistants. In other

23 cases, the monies come from the University of Chicago, the

24 University of Miami, Australian National University and

25 also the Witherspoon institute. And in the case of the

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1 Witherspoon institute, they are a foundation located in

2 Princeton, New Jersey.

3

As part of the Perry case, there was a number of

4 Amicus Briefs that were submitted. Many of these Amicus

5 Briefs had empirical statements and we used the money from

6 the Witherspoon Institute to have students verify those

7 empirical claims by recreating the data and replicating

8 the numbers of the reports.

9

Q. And is that funding source from the Witherspoon

10 Institute, is that included on your CV?

11

A. I included it on my CV earlier. And there's two

12 reasons that it's not on my CV anymore. One is that as I

13 was describing the nature of the grants, all of the grants

14 that are currently listed on my CV have this process by

15 which you submit a competitive proposal. You are

16 evaluated against other proposals, whereas all of the

17 other funding sources that I mentioned like University of

18 Chicago, University of Miami, Australian National

19 University, Witherspoon Institute, had a very different

20 approach to funding. Which is there wasn't competitive

21 proposal process. It was basically a group writing a

22 check to my department and the money being used to fund

23 the wages of research assistants. So I removed it for

24 that reason, that it didn't fit the same characteristics

25 of my other grants. But to be totally honest, I removed

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1 it because the Witherspoon Institute received some

2 negative publicity as a result of the research they

3 funded.

4

Q. Have you ever given any presentations?

5

A. Yes. So if you look on the second -- well,

6 basically the last two pages of my Curriculum Vitae, it

7 lists all the places I have been invited to give

8 presentations. These include over twenty different

9 conferences, some of which go to on a regular basis. It

10 also includes a list of schools where I have been invited

11 to give presentations including some of the best

12 departments in the United States. These include

13 presentations I have given at various countries around the

14 world. But, again, this is another signal of the degree

15 to which my research is held in esteem. These are places

16 that expend a lot of resources bringing scholars out and I

17 have been one of those scholars.

18

Q. I want to talk a little bit about honors and awards

19 or recognitions you have gotten, you received for your

20 work. Have you ever received the Wells and Morrow (ph)

21 Teaching And Learning Faculty Fellowship?

22

A. I have. This is an award given to one faculty

23 member at BYU each year. In my particular case, the

24 commendation listed that the major motivation for giving

25 me the award is the amount of mentored research I did at

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1 BYU. That's coupled with the high level of research

2 productivity with actually creating a really large group

3 of good scholars that have gone to various graduate

4 schools.

5

Q. And what was that particular research for?

6

A. It was more broadly my research related to the

7 economics of the family. Some of that was the research

8 that I will be testifying to today related to the outcomes

9 of children raised by same sex parents. But it just

10 speaks more broadly to a research agenda that includes a

11 lot of students as part of the research process.

12

Q. And did you ever receive the Emmalene B. Wells

13 Scholarly And Creative Work Grant from the Spencer (ph)

14 Foundation?

15

A. Let me just -- the Emmalene Wells Grant is actually

16 something given by BYU, but it's an award given to

17 recognize a young scholar whose had a high level of

18 research productivity. It's also given based on the

19 merits of the projects they propose for the future. In

20 this case, I received the award based on some research we

21 are going to be doing about gender differences and

22 cooperative settings. And with this new project we will

23 be looking at how men and women respond differently in a

24 cooperative setting.

25

And then in terms of the Spencer Foundation,

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1 this is a rather prestigious -- it's a very competitive

2 grant to receive. And we will using this to look at

3 different ways to encourage kids to do better at math. We

4 will be tapping into both to trying to get them to

5 practice more math at home but also practice more math at

6 school.

7

Q. Have you ever submitted any expert witness reports

8 in any cases?

9

A. Yes.

10

Q. Court cases?

11

A. Yes. I submitted an expert report in Utah, Idaho.

12 These two reports are very similar to each other. It was

13 documenting some basic descriptive facts of how -- the

14 nature of families in those two state. And then I

15 submitted an expert report to the State of Virginia which

16 was similar to the expert report that I submitted in this

17 case.

18

Q. And have you ever submitted any Amicus Brief in any

19 court case?

20

A. Yes. So I was signatory on an Amicus Brief that was

21 submitted to the Supreme Court as part of the Perry and

22 Windsor case, and a very similar Amicus Brief submitted to

23 some other states as well.

24

Q. For purposes of your testimony today what do you

25 plan to offer opinions on?

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1

A. Sure. So the main focus of my testimony today will

2 be about my published study in demography that describes

3 differences in child outcomes of children raised by same

4 sex parents and those of other family structure types.

5 This study builds on the innovative approach of Michael

6 Rosenfeld.

7

And so as part of that testimony I will be

8 describing the study that Michael Rosenfeld did which has

9 some really great strengths and was actually a large leap

10 forward from the research that occurred before his study.

11

There's a couple ways in which my analysis will

12 differ from his. And I will provide testimony that shows

13 that those differences actually lead to very striking and

14 different conclusions about the data that he was using.

15

I will also provide some supporting evidence

16 from some other recent studies that use national

17 representative data. This includes a study by Allen, a

18 study by Regnerus, a study by Potter. And then within

19 economics, it's very common to focus primarily on the

20 differences between outcomes, but at the same time also

21 provide some reasonable explanations why these differences

22 are occurring.

23

Even though my testimony will be primarily

24 focused on documenting the differences and outcomes

25 between children across different family structure types,

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1 I will also talk a little bit about some of the

2 explanations why that occurs that includes parent gender,

3 biological relatedness and family stability.

4

Q. Thank you. One additional question with respect to

5 the case in which you acted as an expert. Have you acted

6 as an expert in the Bassett case here in Michigan as well?

7

THE COURT: What case?

8

MS. BRYA: Bassett case.

9

A. Yes. I am also -- I'm also an expert in the Bassett

10 case here this Michigan.

11 BY MS. BRYA:

12

Q. Can you tell me what religion you are, Doctor Price?

13

A. Sure. So I am a member of the Church of Jesus

14 Christ of Latter Day Saints.

15

Q. And do have you a religious view on same ex

16 marriage?

17

A. So I do have a personal religious view of same sex

18 marriage.

19

Q. Can you tell me, do your religious views impact your

20 research?

21

A. One of the nice things about being an empirical

22 economist is that the data do all the talking. So as an

23 empirical economist I follow where the data leads. And I

24 conduct my studies in a way that they can be replicated

25 and verified by other scholars. And I also have open and

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1 transparent discussions about the tradeoffs that you have

2 to make when conducting empirical research.

3

Q. What methods do you follow or did you follow in

4 arriving at your opinions that you provided in this case?

5

A. Yes. So, one of the decision we made right from the

6 start because the more -- the more latitude you give

7 yourself in terms of what you are allowed to do with your

8 empirical research, the more leeway it gives you to change

9 the results.

10

So we have decided right from the start we were

11 going to follow Michael Rosenfeld as closely as possible.

12 So in this case we are going to use the same outcome

13 measure, the same control variables, the same empirical

14 approach. So you can think of this as binding your hands

15 to the mast.

16

And then what we are going to do, and I will

17 testify to this today, I will just show you that there is

18 some really simple extensions you can do to his study, all

19 of which would be consistent with the standard practices

20 within economics. And these include, you know, don't

21 throw observations out of your data set if you don't have

22 to. And if you do, it's helpful to show the results both

23 before and after you throw observations out so that the

24 reader can make a judgment about whether that was an

25 appropriate decision.

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1

I will also speak to the importance of

2 distinguishing between statistical significance and

3 economic significance. And this is a case where I think

4 as an economist we can make a contribution. One of the

5 key things about economic research is we don't just focus

6 on whether or not two things are different from each other

7 but we ask ourselves whether these differences are

8 meaningful.

9

And this is why even though my research on

10 professional basketball has no bearing on this case, the

11 empirical methods that I draw from those studies are very

12 relevant. Because in that case I'm using very large data

13 sets. And because I have very large data sets, I would

14 actually estimate differences that are very precisely

15 estimated.

16

So in the case of the MBA, the racial bias of

17 the MBA referees is about 4 percent. And you might ask,

18 is that a big deal? Because I have so much data I can

19 actually precisely estimate it's between 3 and 5 percent.

20

And so as an economist we can talk about -- so

21 it's statistically significant. But it opens the question

22 of whether it's economically significant.

23

What I will be testifying to today is a

24 situation where in some cases it's not statistically

25 significant but it is economically significant. So I

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1 think this will be an important contribution. I will be

2 making the distinction between those two things.

3

MS. BRYA: Your Honor, based on Dr. Price's

4 testimony this afternoon, we request that he be designated

5 as an expert in the economics of the family.

6

THE COURT: Any voir dire or objection?

7

MS. NESSEL: Yes, your Honor. Both, please.

8

THE COURT: Okay. Do the voir dire first.

9

MS. NESSEL: Yes, please.

10

- - -

11

VOIR DIRE EXAMINATION

12 BY MS. NESSEL:

13

Q. Good afternoon, Doctor?

14

A. Good afternoon.

15

Q. All right. So, Doctor Price, you indicated that you

16 are here today to offer opinions about the question of

17 whether children have better outcomes when raised by a

18 father and mother compared to being raised by two parents

19 of the same gender, is that correct?

20

A. Yes.

21

Q. Okay. And in doing so, not only do you intend to

22 offer statistical data but also you intend to explore the

23 reasons behind that, correct?

24

A. Yes. My answer to that would be the reasons would

25 be a secondary thing. My primary focus will be on the

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1 differences and outcomes.

2

Q. But that's not encapsulated, the methods, those are

3 not encapsulated in numbers, correct? I mean, those are

4 behavioral features that you would be testifying to,

5 correct? The gender roles you mentioned?

6

A. Actually I didn't specifically speak to gender

7 roles. I said the parent gender would matter. And all I

8 will be describing in that case is I will just be pointing

9 out that fathers parent differently than mothers on the

10 average.

11

Q. That is something that you can find in the data by

12 statistics as to how they parent?

13

A. Yes. So --

14

THE COURT: Your examination is to his

15 qualifications to testify. As to the specifics of what he

16 testifies to, you may make objections at the time and if

17 it's beyond his expertise or something else, we can talk

18 about it.

19

MS. BRYA: Your Honor, if I may object. I am

20 not sure what is being put on the screen, but I would

21 object to it.

22

THE WITNESS: I actually do not know what

23 that is. It's not coming off my computer.

24

THE COURT: No. Somebody else. A lot of

25 people are connected to the same thing.

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1 BY MS. NESSEL:

2

Q. Sir, you don't have any professional training at all

3 related to children's development or their well-being.

4 Right?

5

A. I think I was pretty clear that as economists we

6 study child outcomes. So I guess it would depend on what

7 you mean by the phrase child development. I wouldn't

8 consider myself an expert on child development.

9

Q. Okay. And you have no professional training in the

10 field of psychiatry, correct?

11

A. That's correct.

12

Q. Okay. You are not an expert in psychology either,

13 are you?

14

A. No. I am not a psychologist.

15

Q. Okay. Now, you indicated for empirical economists

16 it's important to use large data sets? It's important to

17 use large data sets, random sampling, and large sample

18 sizes in forming your conclusions, correct?

19

A. I think those are important characteristics of

20 research that is going to lead to meaningful statistical

21 inference.

22

Q. But you are not an expert on accepted research

23 methodologies in the field of psychology, correct?

24

A. I am not.

25

Q. All right. And you don't have any training on the

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1 ways that psychologists think children may be affected by

2 family structures, correct?

3

A. That's correct.

4

Q. You have not familiarized yourself at all with the

5 types of factors that psychologists consider to be

6 potential mechanisms through which children might be

7 affected by the family structure?

8

MS. BRYA: Your Honor, I am going to object

9 as it relates to -- I don't think this goes to his

10 qualifications as an economist.

11

THE COURT: Well, to the scope of what he is

12 going to testify to, so far he said, no. So go on. The

13 last question.

14 BY MS. NESSEL:

15

Q. Sir, you have not familiarized yourself with the

16 types of factors that psychologists consider to be

17 potential mechanisms through which children might be

18 affected in the family structure, right?

19

A. As I mentioned earlier, I view the mechanisms as a

20 secondary part of my testimony. I picked three mechanisms

21 that I think are the type that you could measure in

22 nationally representative data sets. I imagine that

23 psychologists have a list of other mechanisms through

24 which parents affect their children. I wouldn't be clear

25 about whether this would be available in the kind of data

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1 sets that I use.

2

Q. Okay. And you don't know whether in the field of

3 psychology, for instance, using small convenient samples

4 is a common and accepted research methodology. Is that

5 true?

6

A. That's true.

7

Q. Okay. And you have no professional training at all

8 in the field of sociology, correct?

9

A. So I co-author with sociologists. But I was not --

10 my Ph.D. training was in economics. There is a lot of

11 overlap between economics and sociology but I am not a

12 sociologist.

13

Q. What about social work? Do you have any

14 professional training at all as a social worker?

15

A. I was not trained as a social worker.

16

Q. And the first paper that you ever published at all

17 related to same sex parenting was this paper with Douglas

18 Allen and Catherine Pakaluk, commenting on the Rosenfeld

19 study. It's a critique of his study, correct?

20

A. That was my first published paper.

21

Q. And that was not until 2012 that that was published,

22 correct?

23

A. That's correct.

24

Q. And that's your only paper at all that you ever

25 either authored or co-authored involving children with

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1 same sex parties?

2

A. For the specific topic of same sex parents, yes.

3

Q. Now, in your CV you have numerous publications that

4 you listed, correct?

5

A. That's correct.

6

Q. Okay. Seven of those relate to the National

7 Basketball Association?

8

A. Yes.

9

Q. So out of the things that you are an expert on, you

10 are mostly an expert on the MBA, correct?

11

A. Actually, that would never be the way I would

12 characterize myself to others. The MBA research is

13 research that lends itself well to research mentoring for

14 students. But if anyone were to ever ask me, are you a

15 researcher on the MBA, I would always characterize myself

16 as an applied micro person that does research on health

17 research and the family.

18

Q. But in terms of your publications that's your most

19 extensive area of knowledge, pertaining to the MBA?

20

A. Depends on how -- yeah, but there is a lot of papers

21 on my Vitae that relates to the MBA.

22

Q. And you think that translates to understanding child

23 outcomes of kids raised by same sex couples?

24

A. I think I was pretty clear earlier that the lessons,

25 the empirical lessons we learn working with large MBA data

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1 sets are immediately relevant for the kind of statistical

2 discussions we will be having in this case.

3

Q. Now, secondary to your MBA related publications, you

4 write a lot of articles about fruit and vegetables

5 consumption as well, correct?

6

A. That's correct.

7

Q. And you also write a number articles about

8 pornography?

9

A. Yes. I put that within the framework of economics

10 of the family.

11

Q. So, again, out of those 25, just the one that you

12 co-authored with Douglas Allen and Catherine Pakaluk deals

13 with the subject you will be testifying about here today?

14

A. It's the most immediately relevant paper on my Vitae

15 for the case today.

16

Q. Okay. And just to be clear of the difference, you

17 indicated that you are going to testify, correct, to the

18 mechanisms that cause -- not just that there are poorer

19 outcomes for children of same sex couples but also why,

20 reasons behind that. Is that correct?

21

A. Yes. I did say that was going to be a secondary

22 form of my testimony.

23

Q. Correct. And, I mean, part of what you will be

24 discussing, for instance, is Doctor Regnerus' study?

25

A. That's correct.

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1

Q. And he's a sociologist, right?

2

A. Yes.

3

Q. Now, in his study he doesn't discuss the whys. He

4 don't discuss why those poorer outcomes occurred. He just

5 discusses that they did occur, correct?

6

A. I wouldn't know offhand. But I imagine that to be

7 true.

8

Q. But you are going to talk about why, the reasons

9 behind the poorer outcomes for the children of same sex

10 couples. That is your intention here today.

11

A. I intend to provide some reasonable explanations why

12 the outcomes differ.

13

Q. And in doing so, just so I can understand what is

14 objectionable on our part and what isn't, you intend to

15 get into three specific areas that you identify as

16 mechanisms, right?

17

A. That's correct.

18

Q. One of those you identify as couple stability.

19 Right?

20

A. That's correct.

21

Q. Now, what you know about couples' stability you have

22 learned from reading a total of four articles about

23 couples' stability, is that correct?

24

A. That's correct.

25

Q. That's your expertise in that area, reading four

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1 articles?

2

A. Right. Well, in addition to reading the articles, I

3 was actually able to, in the case of Rosenfeld, I was

4 actually able to use the data myself and conduct my own

5 independent analysis using his data.

6

Q. Okay. How about in terms of what you intend to

7 testify about in terms of gender roles, what experience do

8 you have that lends itself to understanding gender roles

9 as they are applied to same sex couples and their rearage

10 of families?

11

A. To clarify, I don't really phrase it as gender

12 roles. I phrase it as mothers and fathers parent

13 differently. And actually my dissertation work on

14 parental time investment in children, I will be speaking

15 directly to research I published myself that shows that

16 fathers and mothers actually parent differently from an

17 objective standpoint.

18

Q. And just to be clear, that study involved the study

19 of zero same sex couples and zero children raised by same

20 sex couples, correct?

21

A. That study includes -- actually the American Time

22 Use Survey, it's often referred to as the ATUS, the

23 A-T-U-S, it does include same sex couples.

24

Q. What percentage?

25

A. I mean, it's a nationally representative sample. It

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1 would be -- I can't remember the exact number. But it my

2 original study I did not distinguish between same sex

3 couples and heterosexual couples.

4

Q. So this is another study that you are talking about,

5 a second study?

6

A. No. All I am saying is in the original Time Use

7 Study I did, I was looking at fathers and mothers because

8 in that study you only get the time use of one parent in

9 the household.

10

Q. It's a study of single parents then, correct?

11

A. So I do look at single parents, yes.

12

Q. And then in the area of biological relatedness, that

13 mechanism that you intend to testify to, your experience

14 as it relates to understanding biological relatedness

15 comes from the fact that you read between five to ten

16 articles related to biological relatedness, correct?

17

A. Yes. I mean, the other would be my exposure to the

18 topics while at graduate school at Cornell.

19

Q. Okay.

20

MS. NESSEL: Your Honor that completes my

21 voir dire.

22

THE COURT: How about your objection?

23

MS. NESSEL: My objection is not to Doctor

24 Price's --

25

THE COURT: You have to use the microphone.

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1 You can use that one, but I'm not sure.

2

MS. NESSEL: I don't have an objection to

3 Doctor Price testifying to a statistical analysis that is

4 based on numbers. Clearly, this gentleman knows a lot

5 about numbers. But thinking that involves behavioral

6 aspects things, things that pertain to sociology,

7 psychology, psychiatry, involved in these mechanisms that

8 he's going to discuss, these are not numbers driven type

9 of arguments that are being made. And I don't think that

10 Doctor Price is qualified to discuss any of those areas.

11

MS. BRYA: Your Honor, I think Doctor Price

12 has testified that not only is he an empirical economist,

13 but he specializes in these large data sets. He reviewed

14 others works more than a hundred times. He has done

15 numerous publications and numerous studies on his own in

16 all different topics related to the economics of the

17 family. And just because he only has one study on the

18 specific issue of child outcomes related to same sex

19 marriage isn't indicative of whether or not he is an

20 expert.

21

For example, plaintiff's witness, Doctor Michael

22 Rosenfeld, had only one study on this particular topic

23 but was qualified as an expert. And I believe that Doctor

24 Price is also qualified to speak to others studies that he

25 reviewed and documented and replicated in the case of

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1 Doctor Rosenfeld.

2

THE COURT: Okay. I think Doctor Price has

3 established a good case for testifying in the area of

4 economics of the family and I will allow him to do so.

5

As to the plaintiff's objection as to specific

6 testimony, I haven't heard it yet. You can make an

7 objection at that time. I don't know how it fits in. I

8 don't know how he's going to put it in and so forth. But

9 I think he's very well qualified to testify in the area

10 that he has been offered.

11

Now, if he exceeds that qualification and the

12 plaintiff believes that it's happening, let me know and we

13 will see how it comes out. I just don't know at this

14 time. But I think as to what he has been offered for

15 which is economics of the family, he's qualified.

16

Okay. You may proceed. Counsel.

17

MS. BRYA: Your Honor, if I can have a

18 moment, I need to reset the power point.

19

THE COURT: You can set the power point,

20 whatever you need to do. And they are apparently picking

21 everything up okay?

22

THE COURT CLERK: Yes.

23

THE COURT: Okay. Good. So what year -- are

24 you all in the same year? How many are first year?

25 Second year? Third year? Good. A lot of student loans.

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1

- - -

2

DIRECT EXAMINATION (Continuing)

3 BY MS. BRYA:

4

Q. Doctor Price, I understand you have a power point

5 presentation today to help talk through some aspects of

6 your testimony, is that correct?

7

A. That is correct.

8

Q. Okay. Just feel free to work the slide. If you

9 have any trouble with the machine or if goes to sleep let

10 us know and we can take a break and try to fix it.

11

Can you tell the Court about past research on

12 the issue of same sex couples and child outcomes?

13

THE COURT: Pull the microphone a little

14 closer to you.

15

A. Yes, I can do that. And this will be a summary of

16 the review of the literature conducted by Michael

17 Rosenfeld, by Doug Allen, Lauren Marks. And so let me

18 just point out some of the limitations that they have

19 highlighted in past research that I completely agree with.

20

So, one of the first limitations is convenience

21 sampling. So, any time you have a some group of people

22 you are trying to study, it's often difficult to find them

23 through a random sampling method. So what has been

24 historically used in many of the studies is what we would

25 think of as convenience sampling, trying to find people in

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1 whatever way you can. And this also often involves asking

2 people who you identify for your study to find other

3 people to be part of your study.

4

Now, one of the challenges about convenience

5 sampling rather than random sampling is that it's not

6 clear whether you are actually going to learn something

7 about the group you care about because you are going to

8 end up with a group that selected themselves into your

9 study.

10

For example, in Doug Allen -- Doug Allen's

11 review, he reviewed 53 studies. He found only four that

12 included a randomly drawn sample of children. And

13 actually three of these used the same data set. It's Ad

14 Health. And the other used some other data set. So

15 that's one limitation.

16

The another limitation is just small sample

17 size. In Rosenfeld's paper, he points out quite clearly

18 that the studies used in past research are too small to

19 allow for statistically powerful tests. In the studies

20 that -- he reviewed 45 studies. And the average sample

21 size was 38 children raised by a gay or lesbian parent.

22 And I will come back to this issue of what it means to be

23 statistically powerful. This will really be an important

24 issue in describing my research and comparing it to

25 Rosenfeld's. And another limitation that Rosenfeld points

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1 out is that the majority of studies only look at lesbian

2 parents.

3

MS. NESSEL: I will object at this point

4 because these appear to be psychological studies, but not

5 economic studies which, of course, Doctor Price is an

6 expert in economics. But I don't believe any of these

7 studies are economic studies. They are all psychological

8 and he also testified he's not familiar with how

9 psychologists do their work.

10

THE COURT: Counsel?

11

MS. BRYA: Your Honor, I think Doctor Price

12 has testified that he has reviewed the research of other

13 scholars in this area. And he is merely testifying as to

14 what others have pointed out as some of the limitations in

15 the past research. He was qualified to do that.

16

THE COURT: I will overrule objection. You

17 may continue.

18

A. So of the 45 studies that Rosenfeld looked at, only

19 seven included gay fathers. And I will show you in a

20 moment that leaving gay fathers out of the analysis is a

21 shortcoming. So not all children raised by same sex

22 couples are being raised by lesbian parents. There are a

23 number of children being raised without a mother. And so

24 in order for the analysis to be complete, it's important

25 to have children that are raised by both gay fathers and

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1 lesbian mothers. And Michael Rosenfeld is going to use

2 the U.S. decennial census to overcome these three

3 limitations of past research.

4

Q. Can you tell the Court a little bit about the

5 Rosenfeld study, please?

6

A. Sure. Let me just pull the slide that describes the

7 study just a little bit. So Rosenfeld's study was

8 published in 2010. So Rosenfeld's study was published in

9 2010 in Demography. This is the premier journal in the

10 field of demography and it actually has a rather unique

11 link between economics and sociologists, is that it's

12 actually a journal that would be considered a top hit for

13 both a tenured candidate in an economics department and a

14 tenured candidate in the sociology department.

15

So this case, this would be one of the only

16 journals where both Michael Rosenfeld and I, if we

17 published there, we would both be given equal credit in

18 our departments. So it makes it rather the most important

19 place for this kind research to be published because it

20 brings together people from different fields like

21 sociology and economics.

22

And so Rosenfeld, in setting this paper apart

23 and highlighting its importance, he uses the first part of

24 the paper to show, to highlight some of the limitations of

25 past research. And then he notes quite clearly that his

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1 is the only study in the literature that uses a large

2 nationally representative data set.

3

Q. We heard some prior testimony that Doctor Rosenfeld

4 believes his study compliments current research on the

5 outcomes of children raised by same sex couples. Is this

6 consistent with the way that he presented his article or

7 study in 2010?

8

A. If you actually read the way he wrote his paper it's

9 very clear that he wants to make it known that his study

10 is making a very important contribution. And,

11 unfortunately, one of the ways that we do that is by

12 dismissing the other studies that have come before. And

13 so he is very quick to point out some of these stark

14 weaknesses with some of the studies that came before his.

15 And in that sense I completely agrees with Rosenfeld. His

16 sample includes 3,502 children raised by same sex couples.

17 So compare that to the average of the studies that came

18 before where it was only 38. So with empirical methods we

19 think of this as like a quantum leap forward in terms of

20 the ability to detect a statistically significant effect.

21

Q. Can you tell the Court a little bit about the

22 Rosenfeld study?

23

A. Yes. So let me just direct your attention -- this

24 is Table One from Rosenfeld's study. One of the things

25 that I will just point out is these are the different

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1 family types that he's using in the paper. So in the

2 first row it says, heterosexual married. And he puts a

3 little note in parentheses that says REF. That just means

4 that is the reference group. So in all of his analyses he

5 is going to be comparing the other groups listed below to

6 the reference category which he chose which is

7 heterosexual married. And I will point out later that

8 this is an important decision that he made.

9

So some of the other groups he has included in

10 this table are lesbian cohabiting couples, gay male

11 cohabiting couples, separated divorced widowed women,

12 separated divorced widowed men, heterosexual cohabiting,

13 never married women, never married men.

14

And then in Column A what he's doing is he is

15 listing the number of children that fall into each these

16 categories. And so this is where you see right away that

17 he has 2000 children being raised by lesbian cohabiting

18 parents. But he also has 1400 children being raised by

19 gay male cohabiting couples.

20

Now, what he is going to do in a moment in this

21 analysis is he is going to combine those two groups

22 together into a single group that he is going call same

23 sex couples. But I think it's helpful to use this as the

24 starting point, this first table, because it shows you

25 that actually leaving gay fathers out of a study isn't an

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1 innocuous decision. There is actually a sizeable number

2 of kids being raised by gay fathers.

3

And then in Column B what he is going to do is

4 show you the main outcome variable that he is going to

5 use. And this is whether or not the children are

6 abnormally old for their grade. So if you are a 11 years

7 old then you really should be in fifth or sixth grade. If

8 we observe that you are in fourth grade, then we just

9 learned that at some point you must have been held back.

10 And this measure of held back, of being held back in

11 school is highly correlated with earnings later in life,

12 educational attainment. It's a marker that something has

13 not gone well for you. And I will show in a moment that

14 this measure is only really measured very well for a

15 couple of age groups. Mostly 11, 12, 15, 16 years old.

16 And so what Rosenfeld is doing in the last column is --

17

MS. NESSEL: Your Honor, I object to any

18 testimony from this witness regarding teenagers. There

19 was nothing in any of his expert reports that spoke to the

20 progress of teenage children.

21

THE COURT: He's not -- he's commenting on

22 Doctor Rosenfeld's report at this point to lay a

23 foundation, I suspect, for his report. I think he can

24 proceed?

25

A. So in the Column C, all he's doing is he's

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1 recognizing that he has some measuring error issues in

2 Column B. So he wants to scale it into something that

3 actually is closer to reality. So it's not the case -- so

4 if you look at that number in the first row, that only 1.7

5 percent of heterosexual kids have been held back, the

6 reason that number is so low is we can only observe that

7 particular measure if the kid is either 11 or 12. What

8 he's doing is scaling it to reflect grades one through

9 eight because he is going to multiply that by four and

10 that is going to reflect about the fraction of kids that

11 have been held back in school.

12

Q. In the 1.7 you were referring to a minute ago,

13 that's there, and I guess what would be under Column B?

14 Heterosexual married, 1.70?

15

A. That's right. So under Column B, in the first row,

16 this would be children raised by heterosexual married.

17 And so 1.7 percent of them in the data set are coded as

18 having been held back. Since we only measure that,

19 measure precisely for a few of the grades, he's going to

20 scale it up by a factor of four.

21

Q. Thank you. I think we can move to the next.

22

THE COURT: I was going to say something to

23 the students but we will talk about it later.

24

MS. BRYA: If you want to do that now I have

25 no problem with that.

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1

THE COURT: Well, that's okay.

2 BY MS. BRYA:

3

Q. Thank you, your Honor. Is there anything that, else

4 that you feel that is significant to point out with

5 respect to this slide?

6

A. No. I mean, this slide naturally leads into the

7 next slide which is where he actually conducts the real

8 analysis for his paper. So in this case we are comparing

9 raw numbers across these different family structure types.

10 We have not controlled for any of the other

11 characteristics that might differ, like income or

12 education or race or age.

13

THE COURT: Doctor Rosenfeld got these

14 numbers from the census?

15

THE WITNESS: Exactly.

16

THE COURT: Just for our students, so you

17 know where he got his numbers. Doctor Rosenfeld's

18 underlying numbers came from the census and he testified

19 that the census only can track a certain age group and

20 therefore he equated that. Anyhow, just so you students

21 know what is going on.

22

THE WITNESS: That is a very good point.

23

THE COURT: They're law students. They

24 should know a little bit about that.

25

THE WITNESS: I will point out that issue

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1 later. You only know, you have grade measured in

2 categories, not the actual grade that the kid is in.

3 BY MS. BRYA:

4

Q. Can you go ahead and flip the slide, Doctor Price,

5 to the next one. Let me see if I can try to get it so

6 it's not off the screen. This slide is entitled Logistic

7 Regression Results, correct?

8

A. Yes.

9

Q. Can you explain for those of us that are aren't

10 economists what that phrase means?

11

A. So I will certainly do my best. This is the kind

12 table that terrifies my student? But let me just walk you

13 through how this works.

14

So I mentioned earlier that the children being

15 raised by heterosexual married parents, they are the

16 reference group. And you will notice they don't actually

17 have a number next to them. You will see them up at the

18 top of the table in the first row where it says Family

19 Type, and in parentheses, Heterosexual Married. They are

20 the omitted group. They are the reference category. All

21 the other numbers reported in each column are relative to

22 that group.

23

When you look at the second row where it says

24 Same Sex Couples Cohabit and then you see a negative

25 co-efficient, all that means is that children being raised

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1 by a same sex couple is less likely to be making normal

2 progress in school. That means they are more likely to

3 have been held back.

4

And that little asterisk right next to the

5 number, that is a way that economists and sociologists use

6 to indicate whether or not that difference is

7 statistically significant. And so in this table if you

8 see three asterisks, that means it's statistically

9 significant at the 1 percent level which is a really kind

10 of strong form of statistical significance. If you see

11 two stars, that is at the five percent level which is the

12 conventional cut-off. And if you see one star, that is at

13 the 10 percent level. And so even though the conventional

14 level is 5 percent, we'll often report the 10 percent

15 level just because for some people that's a reasonable

16 cut-off. But I think the normal convention within

17 economics and sociology is to use a 5 percent cut-off.

18 What you see in the first row, the first column is that --

19

Q. This is the column entitled Model One.

20

A. Yes, this is the column entitled Model One and Table

21 Three. All that co-efficient is telling you is that there

22 is a difference. It's statistically significant at the

23 10 percent level. But one of the unfortunate ways about

24 the way this table was created is that number, negative

25 .267 actually does not have any meaningful interpretation.

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1 Like if you were to ask, like if you were to show this

2 table to any scholar and ask them, can you tell me what

3 that number means, they wouldn't be able to tell you what

4 it means. You have to run it through kind of a

5 complicated formula that none of us can do in our head.

6

Now, the other thing that he doesn't provide

7 here which is standard practice in most papers is he

8 hasn't provided either standard errors or a Confidence

9 Interval. All he's given us is the asterisk that tells us

10 it's statistically significant at the 10 percent level.

11 It doesn't give us any idea about what the range of

12 possible estimates might be. And so I will kind of point

13 to that in a second when I show our conversion of this

14 table.

15

Q. Can you tell us what the difference between Model

16 One, Model Two, model Three, Model Four and Model Five,

17 what that means?

18

A. Yes. This is actually very standard practice in an

19 empirical paper, especially like the first empirical paper

20 in an area. So he's running that first regression without

21 any controls. And then as you move across the models to

22 Model Two, he's adding in some additional controls

23 regarding income, education, and then as you get to Model

24 Three, Model Four, and Model Five, he's going to add in

25 additional controls with each column. So we would think

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1 of that as increasing the number of things that we are

2 trying to make comparable across these family structure

3 types.

4

Q. Thank you.

5

THE COURT: What is the relevance? What do

6 you mean when you say 1 percent, 5 percent, 10 percent?

7 Of what?

8

THE WITNESS: Oh, that is a great question.

9 So when we say that, that it's significant at the

10 5 percent level, then that means that if I detect, if I

11 get a result that says it's significant at the give

12 percent level there is only a 5 percent chance that there

13 is actually no difference. So we have this problem that

14 we are never certain. And so we have -- we pre-commit to

15 a set of cut-off rules. We are going to say we are

16 certain if we are at least 5 percent if there is only a

17 5 percent we are wrong. That's why I said if you use a

18 10 percent cut-off rule, then you're you being a little

19 less conservative. You're saying, hey, as long as we are

20 not 10 percent, as long as there is not a 10 percent we

21 are wrong, we will be okay with it being the answer. I

22 think the convention is to use five percent.

23

THE COURT: I've got it.

24

MS. BRYA: Thank you.

25

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1 BY MS. BRYA:

2

Q. Did you do a study Doctor Price based on Doctor

3 Rosenfeld's study?

4

A. Yes. I am actually going to use -- so this is

5 Rosenfeld's study right here. So we are going to use this

6 as a starting point because we agree with Michael

7 Rosenfeld that this is really great data. We agree with

8 the controls that he including. We agree with the outcome

9 measure that he is including. There's only two things

10 that we disagree about. And the one is very innocuous.

11 It's we disagree with the omitted group that he used.

12

And let me show you why this is important. If I

13 am looking at this table and you were to ask me, are same

14 same sex couples different than single mothers? Okay. So

15 I look at that Model Five. This is his preferred

16 specification. I would see a number that is a negative

17 1.42 and then I go to, Never Married Women. This is on

18 the sixth row, and I see a number that is negative 1.45.

19 And I ask myself, are those two numbers different from

20 each over? They are really close to each other. But

21 without providing standard errors I cannot tell without

22 going back to the original data whether or not those two

23 numbers are different from each other.

24

Q. When you say standard errors, can you describe what

25 that means?

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1

A. So imagine, one way to think about standard error is

2 imagine the average difference between two groups is

3 ten-points on a math test. You might be curious, how

4 precisely are those estimated? If I told that the

5 difference is ten and the standard error is a half, that

6 means there is a big difference and it's really precisely

7 estimated.

8

If I told you that the average difference was

9 ten but the standard errors were 30, then actually I have

10 very little -- there is very little I can be confident

11 about whether those two groups are different. So the

12 standard errors give me some sense of how confidence I am

13 in whether those differences are actually statistically

14 significant.

15

And just for the general audience, the kind of

16 analogue that you see all the time in the political realm

17 is often times when they are reporting polls prior to an

18 election. They will say, President Barrack Obama has

19 60 percent of the vote and the sampling error is plus or

20 minus five. That is a little less precise than if they

21 said it was plus or minus one. I think all of us have had

22 an encounter with sampling variation. That is what the

23 standard errors are designed to do, to tell us how certain

24 we are about something.

25

Q. Thank you. Can you tell us a little bit more just

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1 in general about the study that you performed?

2

A. Sure. We are going to use Rosenfeld as a starting

3 point. Like I said, we are going to use the same outcome,

4 the same category, family type categories. We are going

5 to use the same control variables and use Model Five as

6 the starting point. And what we are going to do is make

7 one small change. We are going change the omitted group

8 from Heterosexual Married to Same Sex Couples. And what

9 that would allow us to do is all of those comparisons that

10 have stars on them right now, when you see those stars

11 that is telling you those groups are different than

12 Married Heterosexual. Those stars will tell you nothing

13 about whether or not those groups are different from same

14 sex cohabiting couples. So all we are going to do is

15 change the groups.

16

Let me show you how that works. So this is, so

17 if you look at Column Five, those numbers right there, I

18 am going to show you the exact same numbers in Column One

19 of this new table. And this is Table Two from my paper.

20 So I haven't done anything at this time. All I have done

21 is re-reported his results in that column. And what we do

22 is replicated his data from scratch. And Rosenfeld was, I

23 mean he's a great scholar. He was generous. He shared

24 his data with us. And so we were able to use his data to

25 verify that we were doing things exactly the same way he

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1 was. And that's why I can show you his results using our

2 data.

3

So at this point there is no difference between

4 what we did and what he did. And notice again you see a

5 lot of groups with stars on them. But those stars are all

6 relative to the Heterosexual Married Group. So now all

7 I'm going to do is just change this Column Two of Table

8 Two. I am just going to change what the omitted group is.

9 So now the omitted group is going to be same sex couples.

10 Now if you look you can see this right away. You will

11 notice that the number in the upper left and the number

12 that is just diagonal from it, those are identical to each

13 other.

14

Q. Can you tell -- can you identify for purposes of --

15 just for purposes of the record and for purposes of all

16 you who are trying to understand which two numbers you

17 were referring to, that you were comparing to each other.

18

A. I will describe in words but I will point them out.

19 look at Column One in Row One you will see a number which

20 is negative .142 and it has a standard error of .125. So

21 the other thing I have done here is I've added in the

22 standard errors. That's something that should have been

23 there in the first place. This is what he would have put

24 if he put the standard errors.

25

And all I'm going to do is compare that to the

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1 second column, second row, and you will notice that this

2 number is exactly the same as the other number. The only

3 difference is one is negative and one is positive. And

4 all that is happening here is in the second column the

5 omitted group is Same Sex Couples. And so all we are

6 saying is that children raised by heterosexual married

7 couples are more likely to be making normal progress in

8 school.

9

Now, we still have the problem that I can't

10 interpret that number for you .142. It's call a logistic

11 co-efficient. It doesn't have a meaningful

12 interpretation. But the thing you notice right away is if

13 you go down this row, so I am in the second column, the

14 Married Women row. Now you will see that we have this

15 difference. It's negative .008. It has a standard error

16 of .130. And notice there is no asterisk on this.

17

So another way -- so the way Rosenfeld described

18 his results is he says, hey, look, children raised by same

19 sex couples are not statistically different from children

20 raised by heterosexual married couples. It would have

21 been equally valid for him to have said, hey, look, they

22 are not any different, statistically different than

23 children raised by single mothers or other groups. So,

24 the only group that they there statistically different

25 from is a group that is rather disadvantaged which is

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1 separated divorced or widowed men.

2

Q. Can you describe for us, again, what this means when

3 something is statistically significant?

4

A. Yes. I think I will be able to illustrate that

5 question here in a moment because what I am going to try

6 to do is help you see the difference between whether

7 something is statistically significant different or

8 whether it's economically significant.

9

So I told you before these numbers actually

10 don't have any means. They are logistic progressions.

11 There is two things you can do to make them meaningful.

12 One is you can do something called an odds ratio which is

13 what I'm going to show you. The other is you can report a

14 marginal effect. So this last column, these are odds

15 ratios. And again, I'm still using Rosenfeld's sample,

16 making all the same decisions he did. I'm just providing

17 results in a way that you can interpret them.

18

Q. What is an odds ratio?

19

A. So an odds ratio is, the best way to think about it,

20 let me put you in the context of these numbers. If you

21 look at Column Four, Row Two, right here you see a number

22 that is 1.153. This does have a meaningful

23 interpretation. What this means is that the odds of a

24 child in a heterosexual married household is about

25 15 percent higher that will be making normal progress

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1 through school than a child raised by a same sex couples.

2 And then, yes, that would be the way to interpret it.

3 It's the odds are about 15 percent higher.

4

Q. And was that what you found when you performed your

5 study?

6

A. Actually this table right here is out of our study.

7 But, again, at this point if you look across the bottom we

8 are using this sample size. At this point I have not

9 changed Rosenfeld's study. The only thing I have done is

10 I have changed the reference group. I've added in

11 standard errors. And I put it in a way that is easier to

12 interpret.

13

Now, what you do can with the standard errors is

14 you can create something called a 95 percent Confidence

15 Interval for that odds ratio. I told you that children

16 raised by heterosexual married couples, their odds of

17 making normal progress in school is 15 percent higher than

18 a child raised in a same sex couples.

19

Now that I have standard errors I can tell you

20 what the Confidence Interval is. And what that Confidence

21 Interval is, so this will tell me the range of which I'm

22 certain about the truth. And that truth ranges from

23 children being raised by same sex couples doing slightly

24 better off, about 10 percent better off, to doing

25 47 percent worse off. So this is rather imprecise. This

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1 is a big range.

2

And actually if you read the footnote in

3 Rosenfeld's paper it was pretty clear he should have known

4 this from the start because he did a power calculation. A

5 power calculation is going to tell you how big your

6 Confidence Interval is going to be and what is the

7 likelihood you will be able to detect the true effect.

8

What he said is if the odds of grade retention

9 were one point five times higher for children with

10 heterosexual married parents -- so right now I'm reading

11 off the screen. If the odds of grade retention were one

12 point five times higher for children of heterosexual

13 married parents than for children of same sex couples, the

14 power to detect the difference would be lower but still

15 substantial at .83.

16

Now, the normal cut-off for a power calculation

17 is .8. So what he is telling you from the start and what

18 .8 means is that, imagine there is a true difference.

19 There is a 20 percent chance that you will fail to detect

20 a true difference. So if your power is .9 that means

21 there is only a 10 percent chance you will fail to detect

22 a true difference. And the cut-off, again, when we

23 pre-commit to decision rules, we pre-commit to a

24 significance level of 5 percent. We also generally commit

25 to a power level of .8.

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1

And so what Rosenfeld is saying from the start

2 is that suppose the effect were something like 45 percent

3 higher, I wouldn't be able to detect it. And that's

4 exactly what we are finding here. What we are finding in

5 this table is that the difference is 15 percent and so he

6 would have known right from the start that if the true

7 difference was 15 percent, he would have never been able

8 to detect it given his sample size.

9

Q. Can you tell us again a little bit more about this

10 idea of statistical significance and the ranges that you

11 have been speaking of. Just kind of more in layman's

12 terms for those that might not be as educated in doing

13 those studies?

14

A. In this case, this effect right here is not

15 statistically significant. And this is what Rosenfeld

16 emphasizes in his study. He says, hey, look, they are not

17 statistically different from each other.

18

Now in contrast, if you focus on the economic

19 significance, then you would say actually it's 15 percent

20 difference a big deal? Is being 15 percent more likely to

21 be held back in school, is that a big deal? I think

22 actually that is something that would concern most

23 parents.

24

So if you think, if something is 15 percent more

25 likely to happen, would you be concerned? I think most

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1 parents would be concerned about that kind of odds ratio.

2 Again, that is a judgment call. But if that is the true

3 difference, what the power calculation indicates is that

4 that there will no way to actually statistically detect

5 that kind of true difference.

6

Q. Can you tell us as a result of your replication and

7 what you did here, what you found, what were the

8 conclusions of your findings?

9

A. For this part of the replication, again, I am going

10 to make one other change to a study in a second, but at

11 this point, I have not changed his sample. I will do that

12 in a moment. But if I don't change his sample, all I can

13 really conclude from this table is that the outcomes of

14 children raised by same sex couples are not statistically

15 different than almost any group, even groups that we

16 know -- that we have thought of historically as being

17 disadvantaged like single mothers.

18

So, unfortunately, the outcomes of children

19 raised by single mothers are different from the outcomes

20 of children raised by a father and mother. And so this

21 would be saying that we can't even make that distinction

22 for these children.

23

Q. Then I think, Doctor Price, if you move to the next

24 slide, I wanted you, for purposes of the Court, I know you

25 explained this whole idea of statistical significance.

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1 Are you familiar with a phrase, null hypothesis?

2

A. Yes. So this will be a little counterintuitive to

3 some people in the audience. But, in fact, let me use a

4 simple analogy. Imagine I wanted to prove that reading to

5 your kid is important. We will be really clear. This

6 means kids that get read to by their parents, they score

7 better on reading scores at school. This is a reasonable

8 thing to assume is true.

9

And so the way I would prove that statement is

10 true is I would actually assume the opposite. So I would

11 formulate a null hypothesis. I would say, let's just

12 suppose that reading to your kid has no impact on the

13 reading test scores. So my null hypothesis is that if I

14 compare kids that are read to a lot and kids that are not

15 read to a lot, I am going find no difference in test

16 scores. And what I do is I conduct a statistical test.

17 And what the that statistical test will tell me is if my

18 null hypothesis is incorrect.

19

So the way you prove something is by rejecting

20 the opposite. And this gets tricky because imagine that

21 what I want to prove is there is no difference. So

22 imagine I wanted to prove that reading to your kid has no

23 impact on reading performance in school. This is actually

24 a challenging thing to do because I could run my analysis

25 and if my sample is not big enough, then maybe the reading

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1 score difference is, I don't know, maybe 5 percent. But

2 my standard errors are big enough that I don't know if

3 that is statistically significant. Then I actually

4 wouldn't be able to say anything meaningful. All I would

5 say is I failed to reject my null hypothesis.

6

If you really want to prove that there is no

7 difference, you have to do two things. One is you have to

8 show that the magnitude of the difference is really close

9 to zero. And you have to have really, really tight

10 standard errors or really tight Confidence Intervals.

11 What this will allow you to do is say something like,

12 reading to your kids, imagine the differences is only one

13 percent for reading to your kids and I have a really tight

14 Confidence Interval. I might be able to say, well reading

15 to your kids really doesn't benefit them any more than

16 3 percent. So my Confidence Interval would allow me to

17 rule something out. But it never really would let me say

18 that there is no effect. All I can do is rule out effects

19 that are large. And if I can rule out effects that are --

20 if I can rule out that it doesn't do any better than

21 2 percent, maybe we realize that that's not important.

22 But, again, like it's really challenging to show there is

23 no effect. It's very -- it's much easier to show there is

24 an effect because all you have to do is have enough

25 observations to reject the null hypothesis.

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1

Q. Can you tell me how that concept fits into what

2 we're talking about today?

3

A. Yes. So, in some sense, Rosenfeld's study is in a

4 harder position than mine because what Rosenfeld needs to

5 show if his claim is there is no difference is he needs to

6 have estimates that are really close to zero and really

7 tight Confidence Intervals. And what that means in order

8 to do that is you have to have a really large sample.

9 What his power calculation shows is he didn't have a big

10 enough sample. It's a big sample relative to past

11 research but there are some reasons why it's underpowered.

12

Now, on the flip side, if I wanted to show there

13 are differences, then you just need a sample that is big

14 enough to reject the null hypothesis. It's an unfortunate

15 asymmetry in the way science works. It's always easier to

16 reject a null hypothesis than it is to prove that the null

17 hypothesis is true.

18

Q. Thank you. Can you tell me about any restrictions

19 that Doctor Rosenfeld used on --

20

THE COURT: Let's take a break here. Is this

21 a good time to break? And then we'll talk about the

22 restrictions.

23

MS. BRYA: Yes, your Honor.

24

THE COURT: Okay. We're going to take 15

25 minutes. And for those students, I don't know if you are

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1 coming back or you are on your way home or school or

2 something. You are welcome the whole day and the next day

3 but good luck to each of you. There is always room for

4 good new attorneys. We stand in recess.

5

(Recess from 2:50 p.m. until 3:10 p.m.)

6

THE COURT: Okay. You may continue, counsel.

7

MS. BRYA: Thank you, your Honor. And thank

8 you, Larry, for asking us to slow way down --

9

THE COURT: Yes, please slow down.

10

MS. BRYA: And we will try to slow way down.

11 We will try to do that as best we can.

12

THE COURT: And you will get a perfect

13 transcript if we can slow down.

14

MS. BRYA: Yes, I know. I know. Thank you,

15 very much for bring that to our attention. And we will

16 make sure that we speak slowly.

17

And Doctor Price, I will try to remind you as well

18 to speak slowly.

19 BY MS. BRYA:

20

Q. I think before the break we were speaking a little

21 bit or we were starting to speak a little bit about some

22 restrictions that Doctor Rosenfeld employed in his study.

23 Can you explain a little bit about those restrictions and

24 what that means?

25

A. Sure. So, Rosenfeld uses two restrictions on which

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1 children to include -- Rosenfeld uses two restrictions on

2 which children to include in his sample. The first

3 restriction is that a child must be the biological child

4 of the household head. That's the first restriction. The

5 second restriction is it must be a child who has been

6 living at the same address with the same parents for at

7 least five years.

8

Q. What are the consequences of using these particular

9 restrictions in the study?

10

A. There's two main consequences. The first is that

11 you eliminate over half the children from your sample so

12 these are children that won't be counted as part of your

13 analysis. And by removing half your sample, it will

14 necessarily reduce the precision that you have.

15

And the second consequence is that by imposing

16 the sample restrictions, it cuts off two of the potential

17 channels through which family structure affects child

18 outcomes. And one of those is biological relatedness.

19 And the other is stability.

20

Q. Doctor Price, if you move to the next slide, I

21 believe it's Table Three, can you explain to us what this

22 table shows?

23

THE COURT: Was table is that?

24

THE WITNESS: So the table that you see on

25 these slides, this is Table Three from the paper that I

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1 published.

2

THE COURT: I just wasn't sure.

3

THE WITNESS:

4

A. This is from the paper published with Doug Allen and

5 Catherine Pakaluk. Now, the first column in Table Three

6 is simply showing you the results from before. If you

7 look at the bottom of that table you will see 716,000

8 children. This is the sample used in Michael Rosenfeld's

9 paper.

10

Q. So the first column there then deals solely with

11 Doctor Rosenfeld's study and his results and numbers?

12

A. Yes. And if you are looking at the bottom of the

13 table you will see a little row that says, Sample

14 Restrictions. And so then we just list what the two

15 sample restrictions are. The first one is that you have

16 to be the only child or biological child of the household

17 head. And the second is that you have to be a five year

18 resident. That's five years in the same house with the

19 same parents.

20

And then if you look across the bottom of this

21 table, the X's indicate which of those restrictions are in

22 place. So in the first column those restrictions are in

23 place. This is the approach that Rosenfeld used. In the

24 second column only the second restriction, only the first

25 restriction is in place.

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1

Q. What is that first restriction?

2

A. That's the own child restriction. And you can

3 actually look across the bottom of the table. So as you

4 see, what happens to the sample size, you went from seven

5 hundred kids to one point three million kids. So this

6 case, just by relaxing the five year resident restriction,

7 your sample size goes up dramatically.

8

And then if you look in the third column, what

9 we are doing there is imposing the five year resident

10 restriction. But we are relaxing the own child

11 restriction. So, again, there you can see your sample

12 size increases from 716,000 up to 792,000. So the bigger

13 restriction is the five year residence restriction.

14

If you look at the Fourth Column you will notice

15 that neither of those rows have an X. And so we actually

16 are not imposing any restriction on the sample. And we do

17 agree with Michael Rosenfeld that biological relatedness

18 is an important characteristic.

19

And so we continue to include that as a control

20 in the analysis. But we don't just throw those

21 non-biologically related children out of the sample. And

22 the same thing with the five year resident characteristic.

23 That is also -- stability is an important control

24 variable. So we included that in the regression as a

25 control. But, again, we don't throw out children who

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1 haven't been in the same home or with the same parents for

2 less than five years.

3

Now, let me just direct your attention to the

4 very top of the table. If you look across the first row

5 it says Married Heterosexual. Now, the comparison group

6 in this table is children being raised by same sex

7 couples. And what the numbers are that you are seeing,

8 those are odds ratios.

9

Q. When you talk about the numbers that we are seeing,

10 what numbers are you referring to?

11

A. In Column One, this would be the number 1.153. In

12 Column Two this would be the number 1.258. In Column

13 Three, this would be 1.295. And then in Column four would

14 be 1.354. These are all odd ratios. These are telling

15 you how much more likely it is for a child in a married

16 heterosexual household to be make normal progress in

17 school relative to a child being raised by a same sex

18 couples.

19

If I had to interpret those numbers, that first

20 number in Column One means that if I impose both of the

21 sample restrictions, then children being raised by married

22 heterosexual household are about -- their odds of making

23 normal progress in school is about 15 percent higher and

24 it's not statistically significant.

25

If I go to Column Two, the way to interpret that

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1 is that children being raised by married heterosexual

2 parents are 25 percent more likely to be make normal

3 progress in school. And this is statistically

4 significant. And when you see those three asterisks, that

5 mean that is it's statistically significant at the

6 1 percent level. Really strong level significance.

7

And if you go to Column Three, it says that

8 children being raised by married heterosexual couples, the

9 odds of them making normal progress in school is

10 29 percent higher than children raised by same sex

11 couples. And this is statistically significant at the

12 5 percent level.

13

And if you go to the Fourth Column, what that

14 indicates is that children being raised by married

15 heterosexual couples are 35 percent higher odds of making

16 normal progress in school. And this is statistically

17 significant at the 1 percent level.

18

Now, the reason we presented the table this way

19 is it illustrates a couple points. First of all, the

20 conclusions you draw are quite striking and quite

21 different if you employ a different set of sample

22 restrictions. And the second thing you notice is looking

23 at Column Two and Three, is that relaxing either one of

24 the assumptions causes you to have a statistically

25 significant difference and an economically significant

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1 magnitude.

2

So I will describe a little bit about why I

3 don't think you should impose the sample restrictions but

4 keep in mind that it would have to be the case that both

5 of these sample restrictions would have to be valid to

6 make the results not statistically significant because

7 relaxing either one of those restrictions gives us results

8 that are noticeably different than what Rosenfeld had.

9

Q. Thank you. You referenced, for purposes of this

10 table, you referenced this idea of an own child

11 restriction. Can you explain what that means?

12

A. Let me provide a little bit of information about how

13 the census codes this variable. So, the census

14 instructions about how to determine whether the child is

15 the own child of the household head is the specific

16 instruction, is this a natural born son or daughter of the

17 household head? And then in addition, the census gives

18 you instructions on who the household head is. And the

19 instructions are it's the person or one of the people

20 living here who owns, is buying or rents this house,

21 apartment or mobile home. If there is no such person,

22 start with any adult living or staying here. Just as a

23 point of reference so you can understand how this variable

24 works --

25

Q. Slow down a little bit. Thank you.

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1

A. So to give you a point of reference of how this

2 variable works in households with married heterosexual

3 couples, 95 percent of the time the male parent is listed

4 as the household head. Whereas in heterosexual cohabiting

5 households it's actually only -- that's true only

6 45 percent of the time. So it's an interesting statement

7 about cohabiting unions in the United States, that it's

8 actually more often to be the case that it's the woman of

9 the household that is listed as the household head.

10

This is important because this variable about

11 whether you are the own child in the household head hinges

12 completely on which of the parties in the household is

13 recorded in the census as being the household head. So

14 the majority of children who are not the own child of the

15 household head are actually the own child of the other

16 parent in the household. So which children you throw away

17 hinges on this in some ways arbitrary distinction of which

18 of the two parents is considered by the census to be the

19 household head.

20

Q. And when you say which children you throw away, you

21 mean that the data is not used, is that right?

22

A. So I don't mean we throw away children. But in some

23 sense that's what is happening when we impose sample

24 restrictions. We are telling the children, you do not

25 count as part of this analysis. You don't get to

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1 contribute to our results.

2

And in some ways, Michael Rosenfeld is arguing

3 that because we don't impose the own child restriction, we

4 are leaving stepchildren in the analysis. And our point

5 really is that in a same sex couples household the child

6 cannot be the own child, cannot be the natural born child

7 of both parents.

8

And so if you were to, in a real sense, exclude

9 stepchildren from your analysis, the study couldn't happen

10 in the first place. All you would have left are children

11 that were, actually, I mean, so he excludes adopted and

12 foster children. In same sex couples household it has to

13 be the case that the child is either a foster child, an

14 adopted child or is biologically related to only one of

15 the parents.

16

Q. Can you tell me, tell the Court about the stability

17 restriction that Doctor Rosenfeld employed?

18

A. Yes. So the stability restriction is based on some

19 information that is available in the 2000 census that asks

20 each person in the household whether they were in that

21 same household five years ago. And so the stability

22 restriction then says, let's only use families where both

23 the child and the parents have lived in the same address

24 for the last five years.

25

Now, this restriction, what it does is it

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1 eliminates 47 percent of children being raised in married

2 heterosexual households even though for the majority of

3 these, these are not family structure changes. These are

4 residential changes. It also eliminates 78 percent of

5 children being raised in heterosexual cohabiting

6 households. And it eliminates 57 percent of children

7 being raised in same sex couples.

8

So our concern with the stability restriction

9 is, one, is it eliminates a lot of children from the

10 sample, particularly children in the types of family

11 structure types that we would like to include in the

12 analysis. And the second thing it does is it cuts off one

13 of the mechanisms through which family structure affects

14 child outcomes. And that's stability.

15

Q. What is the motivation for using this particular

16 restriction?

17

A. Yes. So, clearly when we are looking at an outcome

18 like being held back in school, it's clear that that

19 outcome is the result of things that have happened in the

20 child's life over the last several years. And so what

21 Rosenfeld wanted to do is he wants to be able to match the

22 child's current family structure with the family structure

23 that they experienced five years ago.

24

Now, the cost of that is that you throw away a

25 lot of data and you cut off one of the channels through

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1 which family structure affects children which is

2 stability. But I think it helps to highlight that the

3 benefits of matching current family structure and past

4 family structure are not as great as you would expect.

5 And let me -- this will be a little technical so I will

6 try to be as clear as I can.

7

Q. Thank you.

8

A. But what will happen is if I don't impose this

9 restriction I let all of these kids stay in the sample,

10 then I introduce something called measurement error which

11 is for a particular kid, I'm saying, today you are part of

12 this type of family. And I'm going to assume that was the

13 same type of family you had five years ago.

14

Now, for many kids this will be true. All of

15 the kids that Rosenfeld kept in his sample, this will be

16 true. It will also be true for lots of kids that he

17 excluded from his sample because some of these kids have

18 been in a heterosexual married household for the last five

19 years. They just happened to live in a different

20 location. And this could be true about same sex couples.

21 It could be true about heterosexual cohabiting couples.

22

In this case what I am doing is introducing

23 something called measurement error. And the consequence

24 of measurement error is that it biases your co-efficients

25 toward zero and it makes it more difficult to detect a

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1 true effect.

2

And so the point we are making is that the

3 consequences that Rosenfeld is trying to avoid by imposing

4 this sample restriction is actually resulting in the exact

5 same kind of consequences happening which is reducing the

6 precision and making it more difficult to find a true

7 effect.

8

Q. Do you have any concerns with the sample size used

9 by Doctor Rosenfeld?

10

A. Yes. So I mentioned earlier that this is by far the

11 largest data set. It has by far the most children raised

12 by same sex couples of any other data set nationally

13 representative or not. But there's a few reasons why the

14 effective sample size is much smaller. And so I listed

15 these three reasons right here to try explain them

16 briefly.

17

But, first of all, even though our full data set

18 has 1.6 million children, only a small fraction of

19 children in the United States are raised by same sex

20 couples. So right from the start this data set that looks

21 very large, one point six million, actually only has, you

22 know, 5,600 -- 5,000 or 6,000 that are in these type of

23 family.

24

Now, the second problem is that the outcome

25 measure we are looking at is binary and uncommon.

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1

Q. What does that mean?

2

A. It means, it's a yes or no variable. It's like

3 having been held back or not. And it actually doesn't

4 happen that often. I showed you in that original table

5 that in the data itself it only happens about 2 percent of

6 the time. If we are using something like a math test

7 score and we would say the math test score is continuous,

8 meaning it spans a large -- has a lot of variance in it

9 and it's common. Everyone has, if they take the test they

10 will have a test score. If that was may outcome variable

11 then actually having five or 6,000 kids would be

12 wonderful.

13

In this case we are limited because we only have

14 that outcome variable that is binary and uncommon. But

15 actually it's the third reason that bites the most. And

16 that's that the way that you measure being held back in

17 school is you ask the question, are you older than you

18 should be given your grade? And the problem with the 2000

19 census is we don't know your exact grade. If we know your

20 exact grade we would know perfectly well whether or not

21 anyone was held back.

22

In the 2000 census all we know is are you in

23 first through fourth grade or are you in fifth through

24 eighth grade? And so let's think about this for a second.

25 If a child is nine years old, then he should actually be

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1 in second grade, he or she. And so if I observe any the

2 data, all I am going to know is he is somewhere between

3 first and fourth grade. He could be held back or he could

4 not. I have no idea. With nine year olds I have no idea

5 whether they have been held back.

6

Now, an 11 year old, I do know because if I

7 observe an 11 year old being in first through fourth

8 grade, then I know that he must have been held back. The

9 same thing with the 15 year old. If I see a 15 year old

10 that is in fifth grade then I know he must have been held

11 back. And this is why in that first table I showed you

12 Rosenfeld multiplied the numbers by four because there was

13 actually two age groups for which he has the outcome

14 variable measured precisely.

15

Q. So does this idea that you are speaking of, does

16 this result in any sort of measurement error?

17

A. Yes. So this actually is a troubling type

18 measurement error. It means if I were to run Rosenfeld's

19 analysis on just nine year olds, I wouldn't detect any

20 different across family structure groups because every

21 single nine year old in the sample is coded as not having

22 been held back.

23

So what that means is if I run my analysis on

24 say all the ages from 5 to 17, then I am going get a

25 really precise estimate for the 11 and 15 year olds. But

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1 this statement is going to be diluted by all of the other

2 ages for which I actually can't measure the outcome

3 variable. And here is just the simple table. It's just

4 using the data and just showing what are the ages of the

5 kids that are recorded as being held back. So in the data

6 in you look at 11 year olds, there is fourteen thousand

7 three hundred kids that have been held back. And the

8 reason they are held back --

9

MS. NESSEL: Your Honor, if it please the

10 Court, we have never seen this particular graph before.

11 It's not in the report anywhere. I don't think there is

12 any anything that speaks to this in the report. And so I

13 think it's outside the bounds of what Doctor Price should

14 be permitted to testify to.

15

THE COURT: Why don't you voir dire the

16 witness and see. I'm sorry, counsel. Doctor, this is a

17 chart that you prepared.

18

THE WITNESS: This is something -- I use the

19 data to prepare for demonstration purposes.

20

THE COURT: Okay. And the information that

21 is contained on this, is it contained in your report?

22

THE WITNESS: This was not. This particular

23 report was not contained in the reports.

24

THE COURT: But was the information

25 contained --

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1

THE WITNESS: No. This information, this

2 particular issue became apparent as I started to work with

3 Rosenfeld's supplementary report.

4

THE COURT: It wasn't in your report?

5

THE WITNESS: It wasn't in my expert report.

6

THE COURT: Then I will sustain the

7 objection.

8

THE WITNESS: That's fine. I agree.

9

MS. BRYA: Your Honor, we can move on

10 obviously. That's fine.

11 BY MS. BRYA:

12

Q. You spoke before about the consequences of

13 measurement error. And I think if you go forward a couple

14 slides I think you have a table that shows some of the

15 comparison of the results. Can you -- this is the one.

16 Can you explain to us what this means? What this table

17 shows?

18

A. Yes. So this --

19

MS. NESSEL: Your Honor, I have the same

20 objection as before. I don't believe this was contained

21 anywhere within the expert's report.

22

THE COURT: Doctor, was it contained in the

23 report?

24

THE WITNESS: This again was prompted by --

25

THE COURT: I will sustain the objection.

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1 Thank you.

2 BY MS. BRYA:

3

Q. Doctor Price, when you performed your study with

4 Allen and Pakaluk, what were your ultimate findings?

5

A. Okay. So our ultimate findings were two-fold. The

6 first was that if we restricted ourself to the sample

7 restrictions that Rosenfeld used, then by changing the

8 omitted group used, we highlighted the fact that while it

9 is true that Rosenfeld was not able to detect a

10 statistically significant difference between children

11 raised by same sex couples and children raised by married

12 heterosexual couples, it would have been equally valid to

13 say he couldn't detect a difference between same sex

14 couples and, say, single mothers.

15

The second point of the paper was that one of

16 the reasons, main reason he was having trouble detecting

17 differences across groups was that he was eliminating over

18 half of the children from the sample. And this was having

19 two consequences. One is it was dramatically reducing the

20 precision on the estimates. And it was also cutting off

21 two of the channels through which family structure affects

22 the child outcomes. And those two channels are about

23 relatedness and stability.

24

Q. So when you performed your study did you find

25 differences between those children raised by same sex

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1 couples versus children raised by heterosexual married

2 couples?

3

A. Yes. So like I showed on that earlier slide,

4 depending on which sample restrictions you use -- so I

5 showed you four different results.

6

Q. Can you go back to this, if that's helpful?

7

A. So, this would be the main results of the paper is I

8 think there is four ways that you could run the analysis.

9 These are different sample restriction you would employ.

10 I think actually what would be standard and typical for

11 more economists would be to use the Fourth Column which

12 includes the full sample of children, but controls for

13 things like own child or five year resident.

14

Now, if you feel really strongly about one of

15 those restrictions, then if you employ either of those

16 restrictions then you do find that there is a noticeable

17 difference between children raised by same sex couples and

18 married heterosexual couples. And, again, this is working

19 within the confines of the approach that Rosenfeld used

20 using the same control variables, using the same outcome

21 variables.

22

Q. When you say there is a noticeable difference, what

23 do you find? Are the children raised by heterosexual

24 married couples, are their outcomes better or worse than

25 those of same sex couples?

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1

A. Yes, so if you use the Fourth Column, the way to

2 interpret that would be to say that children raised by

3 both the father and mother are a married heterosexual

4 couple, their odds of making normal progress in school is

5 35 percent higher than a child raised by same sex couples.

6 And this is statistically significant at the 1 percent

7 level. That's the comparison that Rosenfeld made.

8

In this case now you actually have precision to

9 compare heterosexual cohabiting couples and you find that

10 a child being raised by a heterosexual cohabiting couple

11 has odds of making normal progress in school of about 15

12 percent higher. And that's statistically significant at

13 15 percent.

14

Q. Again, can you describe for us what it means to be

15 statistically significant?

16

A. Yes. So statistically significant means we have

17 certainty that that number is different from zero. And

18 the standard errors tell us, so our best guess is that

19 it's 35 percent. The standard errors tell us that it

20 might be higher, it might be a little bit lower. But it's

21 certainly greater than zero.

22

Q. After you completed your study, based on Doctor

23 Rosenfeld's study, did you prepare a publication or

24 article based on that?

25

A. Yes.

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1

Q. If I can direct your attention to State's Exhibit

2 Nine. Just let me know when you are there. Do you know

3 what that document is?

4

A. Yes. This is the paper that was published in

5 Demography in 2012. It's co-authored with Catherine

6 Pakaluk and Doug Allen.

7

Q. And is it a true and accurate copy of the

8 publication?

9

A. Yes.

10

MS. BRYA: Your Honor, at this time, I move

11 for the admission of the State's Exhibit Nine.

12

THE COURT: Any objection?

13

MS. NESSEL: No objection.

14

THE COURT: Received.

15

THE COURT CLERK: I'm getting a message. Can

16 you move the mike closer to you? Thank you.

17 BY MS. BRYA:

18

Q. You indicated before, Doctor Price, that you had

19 found differences in the outcomes of children reared by

20 same sex couples versus those reared by heterosexual

21 married couples, is that correct?

22

A. That's correct.

23

Q. And I believe you said that the outcomes of those

24 children reared by heterosexual married couples were

25 better than that of same sex couples, is that correct?

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1

A. That's correct.

2

Q. Are there other studies that support your findings

3 regarding outcomes of children?

4

A. Yes. So if you look within the area of studies that

5 use nationally representative large data sets there

6 actually are several that provide supporting evidence for

7 the results that we published in our demography paper.

8

Q. When economists perform studies and do research,

9 along with evaluating the research, do you also try to

10 find some explanation with respect to your findings, some

11 reason, some cause as to why you found what you found?

12

A. Yes. So economists just as a general

13 characterization are focused mostly on differences and

14 outcomes. But it's also a very common practice in a paper

15 that's documented differences and outcomes to provide some

16 reasonable explanations for those differences.

17

Q. You mentioned before, Doctor Price, about other

18 studies that supported the idea that there were difference

19 and outcomes between children raised by same sex couples.

20

MS. NESSEL: Your Honor, I object. Counsel

21 keeps using the word outcomes, plural. And really it

22 should be outcome because we are only talking about one

23 particular outcome. It's literally one.

24

THE COURT: Okay. If it's outcome, say

25 outcome. If it's more than one --

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1

MS. BRYA: Yes, your Honor.

2 BY MS. BRYA:

3

Q. You were talking before about the difference that

4 you found in doing your study regarding this outcome

5 between differences between those children raised by same

6 sex couples and those raised by heterosexual married

7 couples and I believe you referenced some other studies.

8 Can you tell me who performed those studies? What studies

9 you were referring to?

10

A. Sure. There is three studies that when I say

11 several studies I meant three studies. One was authored

12 by Doug Allen, one my Mark Regnerus and the other by

13 Daniel Potter. And actually I think one thing that is

14 interesting about these studies is it highlights some of

15 the approaches by which you can obtain large enough

16 samples of children raised by same sex couples.

17

So in the case of the Rosenfeld study one

18 approach is to find a data set that's really large to

19 begin with and then hope there is enough children being

20 raised by same sex couples in the data set. And this is

21 the approach used by Doug Allen. So he's using a data set

22 that included 20 percent of the population of Canada and

23 in many ways his study is very similar in nature to the

24 study that Michael Rosenfeld and then Doug, Catherine and

25 I did. But this is using Canadian data. And in his case I

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1 find that children being raised by same sex couples are

2 less likely to graduate from high school. He finds the

3 difference to be about 35 percent.

4

Now, another approach to getting a large sample

5 of children raised by gay or lesbian parents is to

6 specifically over-sample them. Now, this may seem like

7 it's the same as convenience sampling, but the difference

8 with over-sampling is you are starting with the random

9 sampling frame. But you are going to include -- a larger

10 fraction of your sample will be from one particular group.

11 So you still have a random sampling frame. But you are

12 going to try to pick up more children that you want to

13 focus on.

14

So in Mark's case, you used data from Knowledge

15 Networks, a very well established way of collecting data.

16 A bit expensive. I have not used it for that reason. But

17 Mark had some funding that allowed him to use Knowledge

18 Networks. He was able to gather together reasonably large

19 samples.

20

I think what we learned from his data collection

21 efforts is that children raised by gay or lesbian parents

22 are challenging to find in a random sampling frame. I

23 think he might have had a 150 or 170 kids that -- whose

24 mother had a same sex relationship at some point. I think

25 60 or 70 kids whose father had a same sex relationship at

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1 some point.

2

And so what Mark does is he compares children

3 from those family types to other family types. And he

4 finds that relative to children being raised by two

5 biological parents, children whose mother or father fell

6 into one of those categories had noticeably worse

7 outcomes.

8

Now, one thing that is really nice about Mark

9 Regnerus' data is he made it publicly available almost

10 right away. Many scholars keep the data private for a

11 while or they keep it private forever. Mark was quite

12 generous to make it publicly available. And as a result

13 other scholars have been able to use the data for their

14 own purposes. I was able to use the data myself. I was

15 able to reanalyze the results that he published in his

16 paper and I just made one small change. I adopted the

17 Rosenfeld approach of combining children with a gay or

18 lesbian parent together into a single category. And if

19 you do that, then you find that the statistical

20 significant difference is that Mark identifies are even

21 stronger because any time you split a group into smaller

22 pieces it will be harder to identify the statistical

23 significance of any one of those groups.

24

Q. You testified before that as an economist often

25 times you try to find some reasonable explanations to go

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1 with your study or your conclusions. In your opinion are

2 there any mechanisms that provide an explanation for why

3 children raised by same sex couples have worse outcomes

4 than children being raised by married heterosexual

5 couples?

6

A. Yes. So as I mentioned earlier, in my expert report

7 I talked about three reasonable explanations or reasonable

8 mechanisms. Now, I would imagine that a psychologist

9 would choose a different list. These have the nice

10 feature that in almost any nationally representative data

11 set you can identify the gender of the parents. You can

12 generally identify whether the children are biologically

13 related to those parents. And if there is any

14 longitudinal component to the data I can tell how stable

15 the family is.

16

So the three explanations that I chose to

17 include in my report, and, again, these are of a secondary

18 nature of providing what I would think is plausible

19 explanations for the differences and outcomes, we are

20 observing, and it's the fact that fathers and mothers

21 parent differently.

22

MS. NESSEL: Your Honor, I'm sorry. Again

23 I'm going to object to this entire area.

24

THE COURT: I understand. I understand.

25 This is the area that you objected to before. But I think

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1 that with his explanation as to what he did and why he did

2 it, I think I will accept it.

3

MS. BRYA: Thank you, your Honor.

4

A. So the second would be biological relatedness. And

5 the third would be family stability. And these are three

6 areas where these are all potential reasons why we would

7 observe outcomes that differ based on family structure

8 type.

9

Q. When you talk in terms of parental gender can you

10 explain what you mean by that?

11

A. Sure. So, some of these will fall into what the

12 plaintiff's counsel referred to as soft measures. So just

13 and as -- and these are all based on average differences

14 between fathers and mothers. Just as an average tendency,

15 mothers tend to be more empathetic, tender minded and

16 nurturing. Based on data from Norway and Sweden where

17 they tried to make parenting as egalitarian as possible,

18 they have generous maternity leave policies. Fathers are

19 actually in some ways almost required to take those or the

20 benefits are lost. And so they find even in those

21 countries if you look at the way fathers and mothers

22 parent their infants, the mothers are more likely to

23 display affectionate behavior, vocalize, smile, attend,

24 discipline and soothe.

25

Q. Can I ask you to slow down a little bit?

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1

A. Sure. And then just as a general practice, mothers

2 tend to stress emotional security and personal safety.

3 And then in my own research I have done research on

4 parents spending time with their children. And the really

5 nice thing about the American Time Use Survey is you have

6 a really objective measure of how parents spend their time

7 with children. And you have a list of hundreds of

8 different activities that they can do with those children.

9 And what you find is in households that have both a father

10 and mother you see that mothers tend to spend more total

11 time with their children even if both parents are working.

12 And, in particular, you see mothers spending more time

13 reading, talking, and doing house work with their children

14 around the home.

15

MS. NESSEL: Your Honor, I promise this is

16 the last objection I am going to make about this.

17

THE COURT: You can make as many as you want.

18 No limit on objections.

19

MS. NESSEL: If you look at the screen, how

20 does an economist make a determination that mothers are

21 more empathetic, tender minded and nurturing?

22

THE COURT: I'm sure you're going to ask him

23 on and Cross-Examination. I will await it.

24

A. Now, in contrast, if you look at fathers, they tend

25 to stress competition, challenge, initiative, risk taking

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1 and independence. And actually in some of my own research

2 about how men and women respond differently in competitive

3 settings, this actually isn't surprising. Men tend to be

4 overconfident. They tend to --

5

THE COURT: Let me ask you, I think her

6 objection -- maybe we should put in context. Where did

7 you get that information?

8

THE WITNESS: Sure. So, if you look at the

9 first three bullet points, these are summaries based on

10 research that was reviewed by Steven Rhodes and also by

11 David Popano (ph).

12

THE COURT: That's where you got it.

13

THE WITNESS: The bottom bullet point is

14 actually using my own data, using the American Time Use

15 Survey.

16

THE COURT: Excellent. The father

17 information?

18

THE WITNESS: And the father information are

19 from the same sources. If you look more broadly at

20 difference, gender differences and risk taking and

21 overconfidence, this would be -- there is a plethora of

22 studies in economics that looks at overconfidence in

23 financial markets, in risk taking. I mean, there is a

24 reason that our jails have lots of men in them.

25

So, I mean, hopefully that's not surprising. So

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1 fathers have this rough and tumble approach that helps

2 children learn self-control. And that certain types of

3 physical violence are not acceptable. And then in my own

4 analysis using the American Time Use Survey you observe

5 that fathers spend more time watching TV with their kids,

6 more time playing sports and more time doing outside work.

7 And one of the saddest things doing research in this area

8 is that fathers actually do not spend that much time

9 reading to their kids. That is a very large gender

10 difference. That's rather unfortunate on average.

11

Q. The second mechanism that you mentioned is about

12 relatedness, is that correct?

13

A. That's correct.

14

Q. What do you mean by that?

15

A. Actually let me finish the slide really quick. I

16 think I mentioned -- I think the reason that lots of

17 people like to look at Sweden and Norway is any of any

18 country in the world that has tried to eradicate gender

19 differences in parenting, they have been by far the most

20 successful. But even in those countries that have been

21 very successful in getting fathers to play a bigger role

22 in the home you still see notable differences. And I will

23 just -- this is just a quote from Dave Popano (ph), but

24 his statement is basically children have dual needs that

25 must be met, one for independence and the other for

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1 relatedness. One for the child and the other for support.

2

Q. So, now, if you can give us a little bit of --

3

THE COURT: Going back to the last slide,

4 this the same sex relationship, that his quote, if each

5 party to that relationship takes a role, that they

6 couldn't fulfill that?

7

THE WITNESS: It's certainly true there will

8 be same sex couples that one of the partners can adopt the

9 typically female role and the other can adopt the typical

10 male role. The point I am making is there are average

11 gender differences and it's unlikely that a father could

12 take the place of a mother.

13

THE COURT: Unlikely based upon --

14

THE WITNESS: Just the fact that we have

15 seen --

16

THE COURT: Not statistically. You don't

17 mean statistically. This is just based on your reading?

18

THE WITNESS: This is based on my reading of

19 the literature. This would be based on differences from

20 heterosexual couples.

21

THE COURT: Okay. You may continue.

22

MS. BRYA: Thank you, your Honor.

23 BY MS. BRYA:

24

Q. Can you tell me about the second mechanism you

25 mentioned about biological relatedness, what that means?

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1

A. Yes. So it's impossible for a child to be

2 biologically related to both parents of a same sex couple.

3 If you look at the children in the 2000 census 3.6 percent

4 of children raised by same sex couples are adopted. About

5 .8 percent are foster children. Therefore, the vast

6 majority of children being raised by same sex couples are

7 stepchildren. And we have learned from heterosexual

8 couples that there is an unique set of challenges that

9 come with step-parenting.

10

Q. Can you tell us what those unique challenges are?

11

A. So here would be a couple -- so, it's often noted by

12 step-parents they feel like they are competing with the

13 biological spouse of their child for time and attention.

14

MS. NESSEL: Your Honor, I object now as to

15 this new screen. This is all taken from psychological

16 literature.

17

THE COURT: I think we are getting off his

18 expertise.

19

THE WITNESS: That's fine.

20

THE COURT: He is giving us some opinions.

21 But I will sustain the objection. He is giving us

22 opinions which he is entitled to, but I think he's outside

23 of his expertise in terms of his economics and statistical

24 data.

25

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1 BY MS. BRYA:

2

Q. Can you tell us --

3

THE COURT: For the record, and I think,

4 because it would be difficult for the plaintiffs to

5 cross-examine and so forth. That's the reason that I

6 think that it shouldn't come in at this point. But go on.

7 BY MS. BRYA:

8

Q. Can you tell us, Doctor Price, about the third

9 mechanism that you referred to? I believe you said it was

10 family stability?

11

A. Yes. So this would be the reason most rooted in the

12 kind of empirical data that economists would use. And, in

13 fact, you know, one of the best studies on this is using

14 data from Norway and Sweden. One of the things I don't

15 think all of us realize about Norway and Sweden, but they

16 actually keep data on everybody in the whole country and

17 they allow researchers to use that data. So if you are

18 trying to answer a question like how long do couples stay

19 together, they have kind of the perfect data to look at

20 this.

21

The other nice thing about Norway and Sweden is

22 they were one of the first countries to legally recognize

23 same sex couples. So in Norway this happened in 1993 and

24 in Sweden it happened in 1995. And the authors of this

25 paper are really clear that in Norway and Sweden same sex

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1 couples are afforded nearly all of the same legal rights

2 as heterosexual married couples.

3

And so this paper simply examines whether or not

4 same sex couples that has a civil union has a different

5 stability rate than a heterosexual couple that's married.

6 And they find that male same sex couples are about fifty

7 percent more likely to divorce than heterosexual married

8 couples and that female same sex couples are more than

9 twice as likely to divorce than heterosexual couples.

10

This doesn't speak to any specific couples

11 because there is going to be same sex couples that have

12 long and stable relationships. This is just speaking to

13 an average difference between two groups and provides one

14 potential explanation for why differences in child outcome

15 might differ between those groups.

16

Q. Thank you. Are you aware of any study on this issue

17 from a scholar by the name of Balsom (ph)?

18

A. Yes.

19

MS. NESSEL: I object. I don't believe there

20 was any mention of the Balsom study in Doctor Price's

21 expert report. I could be wrong, but I don't recall

22 seeing it.

23

THE COURT: Doctor, was there --

24

THE WITNESS: It was not in my expert report.

25 It came up in the deposition.

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1

THE COURT: I will sustain the objection.

2 BY MS. BRYA:

3

Q. Are you aware, Doctor Price, about the Early

4 Childhood Longitudinal Study?

5

A. Yes. So this one was in my expert report. So this

6 is the data that Potter used to study the outcomes of

7 children raised by same sex couples. When I mentioned

8 there was other nationally representative data sets that

9 allowed you to look at the outcomes of children from

10 different family structure types, I mentioned there was

11 the Allen study, the Regnerus study and the Potter study.

12

One of the things about the Potter study is it

13 has this really nice advantage that you can follow kids

14 over time starting in kindergarten. And so you follow

15 these kids up through maybe eighth grade. I think there

16 are seven waves of data.

17

Now, with any sample it's often hard to -- kids

18 move or they exit the survey. And that can happen for any

19 number of reasons. It often happens when a family breaks

20 up. But that's not necessarily what has to have happened.

21 But in Potter's data there was 60 children being raised by

22 same sex couples during the fall of their kindergarten

23 year. So it's natural to ask, well, what happens to these

24 kids as we move to first grade or third grade?

25

And so by the start of first grade among these

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1 60 children, 33 percent have left the sample. And of

2 those that remained, only 56 percent still live with the

3 same sex couples. So this is 22 children. So depending

4 on how you think about the kids who left the sample, I

5 mean, the conservative number would be 56 percent are

6 still with the same sex couples. If those that left the

7 sample also had a family transition, the number would be

8 smaller.

9

And then if you look at the same children at the

10 start of third grade, 47 percent of them have left the

11 sample and of those that remain, 28 percent still live

12 with the same sex couple. It's about nine children out of

13 the original 60.

14

Now, in contrast, you can compare this to one of

15 the other groups Potter looked at which was two married

16 biological parents. And for this group by the start of

17 first grade only 13 percent have left the sample and of

18 those that remain 94 percent are still with those parents.

19 And if you look at by the start of the third grade

20 23 percent have left sample. And of those, 91 percent are

21 still living with those parents.

22

So, again, this is using US data. It's a

23 longitudinal study that has been used in lots of research

24 used by Daniel Potter to look at the outcomes of children

25 in these households. But if you use the data it actually

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1 provides some interesting insight into the stability rate

2 differences across family structure types.

3

Q. What is that insight that you feel it provides?

4

A. If you compare these numbers, what you will see is

5 that children being raised by two married biological

6 parents are really stable. So of those that we have full

7 information at least 94 percent are still together. And

8 in contrast, those rates are much much lower for children

9 being raised by same sex couples, like 56 percent or

10 28 percent.

11

Q. Doctor Price, what is your opinion as to the ideal

12 environment for raising children?

13

A. So, I think based on --

14

MS. NESSEL: Again, I am interjecting. Same

15 objection.

16

THE COURT: Sustain. If he has reached an

17 opinion based upon his expertise, not his personal

18 opinion -- based upon his studies and so forth.

19

MS. BRYA: Yes, your Honor. That's what I

20 was getting at. Based on the studies, I was trying to

21 summarize what we have discussed today.

22 BY MS. BRYA:

23

Q. Based on the studies that you did, that you

24 conducted, your expertise and experience, what is your

25 opinion as to the ideal environment for raising children?

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1

A. Yes. So based on the study that I published myself,

2 using the Rosenfeld approach, combined with supporting

3 evidence from Regnerus and Allen, I think this evidence is

4 all based on large nationally representative data sets all

5 point to same direction, that the ideal environment for a

6 child is to be raised by a father and mother and

7 particularly if the child is biologically related to both

8 parents, particularly if those parents are married.

9

MS. BRYA: Your Honor, if I may have a

10 moment?

11

THE COURT: Of course.

12

MS. BRYA: Thank you. Thank you, your Honor.

13 I appreciate that.

14

THE COURT: You may cross-examine.

15

MS. BRYA: I have no other questions for this

16 witness.

17

THE COURT: All right.

18

- - -

19

CROSS-EXAMINATION

20 BY MS. NESSEL:

21

Q. Doctor Price --

22

THE COURT: Closer to the microphone.

23 BY MS. NESSEL:

24

Q. Out of curiosity --

25

THE COURT: A little closer.

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1 BY MS. NESSEL:

2

Q. The last thing you indicated was the ideal

3 environment for children is with their biological mother

4 and father, correct?

5

A. That's correct.

6

Q. What do you propose to do with the children of April

7 and Jane who had biological parents that abandoned or

8 surrendered that at birth who don't have a biological

9 mother or father?

10

MS. BRYA: Objection, your Honor.

11 Irrelevant.

12 BY MS. NESSEL:

13

Q. I am asking, what would be the ideal environment for

14 those children who no longer have a biological mother or

15 father? Are you suggesting to the Court that people like

16 April or Jane who are same sex couples ought not to be

17 taking that child into their home and raising that child?

18

MS. BRYA: Your Honor, I think it's a

19 compound question.

20

THE COURT: Can you answer it?

21

THE WITNESS: I can try to answer it.

22

A. So the way I phrased my statement was, I believe

23 that the ideal environment for a child is to be raised by

24 a father and a mother. And then I added a layer that said

25 particularly if they're biologically related to those

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1 parents and particularly if they -- those parents are

2 married to each other.

3

Q. Well, not every child has the ability to have that

4 ideal environment, correct?

5

A. It doesn't change what the ideal environment is.

6

Q. There is lots of kids in the State of Michigan and

7 in the United States that don't have the opportunity to

8 have that ideal environment, correct?

9

A. I would wouldn't have any information about that.

10

Q. You don't have any information about that?

11

MS. BRYA: Your Honor, I'm going to object.

12 I think she is being argumentative.

13

THE COURT: Don't argue with him.

14

MS. NESSEL: Very good, Judge.

15 BY MS. NESSEL:

16

Q. Let's talk about how you began studying same sex

17 parent and child outcomes associated with it, Doctor

18 Price. Now, before you began studying data on outcomes

19 for children raised by same sex parents, you already had

20 the view that marriage should be restricted to a man and a

21 woman, correct?

22

A. This was a personal religious belief.

23

Q. That you held, correct?

24

A. That I held, yes.

25

Q. Okay. And in your view that you held, that marriage

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1 should be restricted to a man and woman, that was not

2 based on any scientific research, correct?

3

A. That's correct.

4

Q. And you just stated, on your religious beliefs,

5 right?

6

A. Yes.

7

Q. Okay. Now, did you make these religious beliefs or

8 the belief that you held that marriage should be limited

9 to a man and woman, did you make that known to your

10 colleagues at BYU?

11

MS. BRYA: Objection, your Honor. I think

12 that's irrelevant.

13

THE COURT: Sustained.

14 BY MS. NESSEL:

15

Q. You never delved into this area at all prior to

16 2010, correct?

17

A. That's not correct.

18

Q. Well, when did you first start investigating the

19 area of outcomes for children raised by same sex parents?

20

A. Going back through my files, the first paper that I

21 sketched out related to same sex marriage was

22 February 2007.

23

Q. And what was that paper about?

24

A. It was a paper about changes in same sex marriage

25 laws and the decision to cohabit.

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1

Q. And was that ever submitted for publication

2 anywhere?

3

A. It was not.

4

Q. So, and did you ever share that paper with anyone?

5

A. It's possible I would have shared it with people.

6 I'm not sure.

7

Q. Don't know if you shared it with anyone at all?

8

A. I don't know if I shared it with anyone at all.

9

Q. Now, you indicated, I think you indicated earlier

10 but perhaps not, do you recall attending or being

11 recruited to attend a seminar held at the Heritage

12 Foundation in Washington, D.C.?

13

A. Yes. That occurred in December of 2010.

14

Q. Okay. And that was -- first of all, what is the

15 Heritage Foundation?

16

A. I don't know actually.

17

Q. It's a conservative think tank that opposes same sex

18 marriage, correct?

19

A. That's why I couldn't answer your question. I know

20 they have a broader set of things they look into including

21 religious liberty and other things. But I'm not clear

22 what their --

23

Q. But you know that that organization opposes same sex

24 marriage, correct?

25

MS. BRYA: Objection, your Honor. I think

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1 it's been asked and answered.

2

MS. NESSEL: I don't think it was answered.

3

A. I know there are people at the Heritage Foundation

4 that oppose same sex marriage.

5 BY MS. NESSEL:

6

Q. So as a whole, as a group, as an organization, you

7 don't know what the Heritage Foundation's position is on

8 same sex marriage?

9

A. I don't know for sure but I would imagine they are

10 opposed to same sex marriage.

11

Q. You go to this meeting at the Heritage Foundation in

12 Washington, D.C., you said, in September of 2010. Were

13 there other groups and representatives of other groups

14 which opposed same sex marriage at that particular

15 meeting?

16

A. Yes. So the Alliance Defense Fund was there. This

17 was during -- around the time of the Perry case in

18 California. David Blackenhorn (ph) was there to talk

19 about his experience serving as an expert witness in

20 California.

21

Q. Okay. So if this was in December 2010, it's after

22 the decision by Judge --

23

MS. BRYA: Your Honor --

24

THE COURT: Wait, wait, please. What is your

25 objection?

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1

MS. BRYA: My objection is just I would like

2 our witness to be allowed to finish his answer, if

3 possible.

4

THE COURT: Sustained. Let him finish the

5 answer before you ask the next question.

6

MS. NESSEL: Yes, sir.

7 BY MS. NESSEL:

8

Q. Is there anything more you wanted to answer?

9

A. No.

10

Q. So in December 2010 that was after the decision by

11 Justice Walker in the Proposition Eight Case or the Perry

12 case had been rendered, correct?

13

A. Yes.

14

Q. And so you go to this meeting, you said, and I can't

15 recall, you said Maggie Gallagher (ph) from the National

16 Organization For Marriage was there, correct?

17

A. I think so. I wasn't sure.

18

Q. And representatives from the Alliance Defending

19 Freedom were there?

20

A. I thought it was the Alliance Defense Fund.

21

Q. I'm sorry. The Alliance Defend Fund. Were there

22 representatives there?

23

A. Yes.

24

Q. They also oppose same sex marriage?

25

A. I guess.

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1

Q. As does the National Organization For Marriage?

2

A. Yes.

3

Q. And all of your fellow defense experts testifying in

4 this case were there as well, correct?

5

A. I am not sure if that's correct. I know Doug Allen

6 was there but I'm not sure about the others.

7

Q. Okay. So who are you not sure about then? You are

8 sure that Doug Allen was there, correct?

9

A. Yes. I'm pretty sure Doug Allen was there. I

10 imagine Lauren Marks (ph) was there but I am not positive

11 on that. And I am not sure about Mark Regnerus.

12

Q. Have you ever met your co-author, Douglas Allen,

13 before of this meeting?

14

A. I met Catherine before but I had not met Doug Allen

15 before.

16

Q. This is your first opportunity that you met Douglas

17 Allen who you go on and co-author the report, Exhibit

18 Nine, I believe it is?

19

MS. BRYA: Objection, your Honor. Asked and

20 answered. She just asked him that question.

21

THE COURT: Sustained.

22 BY MS. NESSEL:

23

Q. You said your guest speaker was David Blankenhorn,

24 correct?

25

A. I don't know if I would refer to him as a guest

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1 speaker. He was a prominent part of the meeting to

2 describe his experience.

3

Q. All right. To describe his experience. He was there

4 to talk about how things had gone so very wrong for them

5 in the Perry case, correct? In terms of his testimony,

6 the issues or problems that developed from his testimony?

7

MS. BRYA: Objection, your Honor. Hearsay.

8 I think it's a compound question and I think it

9 mischaracterized his testimony.

10

THE COURT: It's compound, but the hearsay

11 objection is overruled. You may proceed. It's hearsay

12 but it's what somebody else said for the purpose.

13

A. He described what it was like to be deposed and what

14 it was like to go on the stand.

15 BY MS. NESSEL:

16

Q. And a discussion following the lecture or

17 presentation given by David Blankenhorn, there was a

18 discussion had by everyone there about the need for social

19 science that would support same sex marriage bans like the

20 one that existed in California, correct?

21

A. I imagine that was one of the discussion items.

22

Q. That was one of the discussions. Okay. And you

23 participated in that discussion, I take it?

24

A. I wasn't a very active participant. I was a young

25 scholar at the time.

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1

Q. Is this when you received your grant from the

2 Witherspoon Institute?

3

A. No. I actually received money before then.

4

Q. When did you receive your grant?

5

A. Well, so the work that I did for that, I mean, the

6 money was used to pay students over Thanksgiving break.

7

Q. Of?

8

A. I don't remember if it was 2010 or 2009. My guess

9 would be 2009 though.

10

Q. And you said that that money was used for -- I'm

11 sorry?

12

A. I was able to entice students -- I had a bunch of

13 students that wanted to work over the break. We used the

14 money to pay their wages and pay for pizza.

15

Q. That one grant was the only grant that you received

16 from the Witherspoon Institute?

17

A. Yes. That was only money. I mean, they paid me an

18 honorarium before for -- I was a discussant. I discussed

19 the work of some of the presenters at a conference held at

20 Princeton about the social costs of pornography.

21

Q. Okay. So now it's at -- I should say they're at

22 this December 2010 meeting or sometime after that that you

23 and Douglas Allen and Catherine Pakaluk decided to do your

24 critique of Rosenfeld's study together, correct?

25

A. So actually as of June 2010, I started to -- I made

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1 a list of projects that would be interesting to do related

2 to same sex marriage and same sex parenting. Following

3 that meeting Doug and I ended up working on another

4 project together. I started the demography paper that I

5 talked about today in about March of 2010. I worked on it

6 completely by myself until about November, at which point

7 I had done all of the empirical work and I asked Doug and

8 Catherine to join me as co-authors. Catherine is a

9 Harvard trained economist and I asked her to help double

10 check my empirical work and I asked both Doug and

11 Catherine to help with finishing the writing of the paper.

12

Q. The data that you collected, I think you said

13 March 2011, where did you get that data from specifically?

14

A. Repeat the question.

15

Q. The data. I mean, you said you started collecting

16 data in March of 2011. Is that what you indicated?

17

A. So all I know -- so I went to try to recreate the

18 time line of these events and all I know is that on

19 March 2011 that is the first date that you see a draft of

20 the paper in relatively complete form.

21

Q. When you say you see a draft, where would this draft

22 appear?

23

A. Just in the files on my computer.

24

Q. Had anyone else seen this draft up until the time

25 that you discussed this with Catherine Pakaluk and Douglas

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1 Allen following your December 2010 meeting with them?

2

A. Again, the thing is, I don't actually know if I

3 discussed the paper with Doug or Catherine until

4 November 2010. That is the first time their names appear

5 on the paper.

6

Q. Right. And it's after that that you all decided to

7 do this critique collectively, correct?

8

A. Yes. I had been working on it on my own starting as

9 early as June 2010. By March 2011 there is a draft that

10 has my name on it for which the empirical work is

11 relatively complete. You see improvements on that draft

12 in April, May, June, July of 2011, and then starting in

13 November, you see Catherine and Doug's names added to the

14 paper. And that was primarily to both double check my

15 work, but also because I felt they were better writers

16 than me and I needed some help in crafting it.

17

Q. So that's a yes, then, to my question?

18

MS. BRYA: Objection, your Honor.

19

THE COURT: Sustained. He answered the

20 question.

21 BY MS. NESSEL:

22

Q. All right. How was this critique of Rosenfeld, how

23 was that funded?

24

A. So, actually I had funding from BYU. They have a

25 mentoring grant. They encouraged me to hire students.

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1 And so part of that funding was used to have some students

2 help me pull the data together and make sure that it

3 matched up with the data that we received from Michael

4 Rosenfeld.

5

Q. Okay. Now, let's talk for another moment about your

6 grant that you indicated you received from the Witherspoon

7 Institute. You indicated that that grant did not appear

8 in the CV that you submitted for this case, correct?

9

A. That's correct.

10

Q. All right. And I am trying to understand the

11 reasons that you would omit a grant when you have a list

12 of grants -- I'm sorry. Your answer when you were asked

13 by counsel about that was that you didn't think it fit in

14 with the other grants that were given or you didn't think

15 it fit in with this type case? I am trying to look for

16 clarification.

17

A. The primary reason was that it doesn't fit the

18 category of the other grants I have on my Vitae. In all

19 of those other grants there is a competitive application

20 process. You submit a proposal. They decide whether or

21 not they want to fund it, and then you receive the money.

22

Q. Okay. But you included that in your CV that you

23 submitted on the Bassett case here in this same

24 courthouse, correct?

25

A. That is not correct.

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1

Q. No?

2

A. It was included as part of a preliminary CV. Oh,

3 actually -- okay. Sorry. Let me back up. I might have

4 included it as part of the Bassett case.

5

Q. And the Bassett case, what did that deal with?

6

A. This deals with -- so my particular testimony is

7 about two things: One, whether or not people respond to

8 incentives when deciding whether to marry; and, two,

9 whether or not marriage confers benefits to the State of

10 Michigan.

11

Q. But that case though, the content of that case or I

12 should say what the case was about, was about whether or

13 not the state could deny domestic partnership benefits to

14 state employees, correct?

15

A. That's correct.

16

Q. Okay. And so not so very much different from what

17 we are here about today in terms of whether or not same

18 sex couples should be able to marry and jointly adopt.

19 Pretty much the same category in terms of cases, correct?

20

A. Yes. I mean --

21

MS. BRYA: Objection, your Honor. I think

22 that is not for him to give his opinion as to whether or

23 not that case is relevant to this one.

24

THE COURT: He was just getting ready to

25 explain the case.

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1

A. Yes. So from my perspective in terms of the

2 empirical work that I described, they are actually quite

3 different. I wouldn't be able to comment on how similar

4 the legal issues are. But they both involve same sex

5 couples.

6

Q. I'm just trying to understand why it was relevant to

7 submit in the Bassett case but then it comes off your CV

8 when you come to testify as an expert in this particular

9 case?

10

A. Yes. And so I will be super clear with you. The

11 two reasons are: One, I mean, the primary reason is it's

12 not a grant in the traditional sense of all of the other

13 grants. It's actually a much smaller amount. There is a

14 competitive process. There was a reimbursement for the

15 wages of my students. But, second, as I mentioned in the

16 deposition, it was also motivated by the fact that the

17 Witherspoon Institute received a lot of negative publicity

18 as a result of the Regnerus study.

19

Q. How you edited your CV basically was predicated on

20 what you thought would look good or look bad when you were

21 presented as a witness, correct?

22

A. That would certainly be part of the reason, yes.

23

Q. Okay. All right. And you indicated that you are

24 associated with an organization called the Austin

25 Institute, correct?

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1

A. Correct.

2

Q. And the person who invited you to serve as a Fellow

3 there was Mark Regnerus?

4

A. Correct.

5

Q. Now, I'm sorry. Explain again because I wasn't clear

6 on your answer. The Austin Institute, its purpose is

7 what?

8

A. I don't know. I mean --

9

Q. I'm sorry. Did you say I don't know?

10

A. I don't know.

11

MS. BRYA: Your Honor, I think it calls for

12 speculation.

13

THE COURT: He can answer. He said I don't

14 know, and he was going to explain why.

15

A. So what I can explain is what I have been asked to

16 do as part of the Austin Institute. And what I have been

17 asked to do is on occasion write a blog post that takes

18 something from the research community and translates it

19 into something that the public can use. And the one blog,

20 the only blog I have done to this point was about the

21 agricultural roots of gender roles. My next blog, I don't

22 know what I will do that, but I will probably talk about

23 whether it's appropriate for parents to encourage

24 incentives for children.

25

Q. Being a Fellow of the Austin Institute, is that a

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1 paid position?

2

A. I received a two thousand dollars stipend.

3

Q. Who funded the Austin Institute?

4

A. I actually don't know.

5

Q. Okay. Now, you're getting paid for your testimony

6 in this case, correct?

7

A. That's correct.

8

Q. And what is your hourly fee that you're being paid?

9

A. So I charge $300 an hour for time spent, either

10 being deposed or preparing or being here in the courtroom.

11

Q. Does that roughly translate to what your salary is

12 at BYU? Your hourly rate?

13

A. It would be higher than my hourly rate at BYU.

14

Q. A lot higher than your hourly rate, correct?

15

A. That's correct.

16

Q. All right. And with you having done the expert

17 report and being deposed and now testifying at trial, what

18 is the total amount that you expect to be paid for your

19 participation in this case?

20

A. I haven't crunched the numbers, but, I don't know.

21 It might be $15,000.

22

Q. Okay. Paid to you by the State of Michigan,

23 correct?

24

A. That's correct.

25

Q. Now, Doctor Price, is it fair to say you know a lot

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1 about the benefits of marriage, correct?

2

A. I don't know what you mean by a lot, but I have done

3 research on the benefits of marriage.

4

Q. When I say a lot, I mean, you have written a chapter

5 and a book that was published on this topic, correct?

6

A. Well, the chapter that I wrote in a book was about

7 things that influence people to become married. That's

8 not necessarily about the benefits of marriage but it's

9 clear that people respond to incentives when deciding to

10 marry.

11

Q. In your book though you acknowledge that marriage is

12 associated with a number, a high number of positive

13 outcomes, correct?

14

A. Again, that was, you know, one paragraph in the

15 paper and it is similar to what I explained earlier is

16 that often will include a set of reasons why we think

17 marriage might be important or why family structure might

18 be important.

19

Q. All right. Well, let's go some of those positive

20 outcomes that you cite in the paper that result in people

21 getting married. You know, married people, you say, live

22 longer, correct?

23

A. Correct.

24

Q. Married people engage in fewer riskier behaviors,

25 correct?

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1

A. That's correct.

2

Q. Married people earn more money, correct?

3

A. Correct.

4

Q. People who are married have better child outcomes

5 for the children they are raising, correct?

6

A. Correct.

7

Q. Marriage has a positive impact on both the

8 individuals who are married and their children?

9

A. That is correct.

10

Q. All right. People behave better when someone with

11 power to reward or sanction is watching and marriage

12 provides a situation in which there is someone watching

13 much of the time. You said that, correct?

14

A. That's correct.

15

Q. All right. The institution of marriage comes with

16 expectations, obligations, and social sanctions against

17 certain behaviors, correct?

18

A. That's correct.

19

Q. And marriage facilitates a wide net of social bonds

20 involving the extended families and friends of both

21 individuals in the marriage, correct?

22

A. That's correct.

23

Q. Marriage provides legal access to the partner's

24 resources and a system of which each individual in the

25 marriage can take advantage of economies of scale,

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1 correct?

2

A. Correct.

3

Q. What does that mean, economies of scale?

4

A. So, economies of scale just means that it's cheaper

5 to take care of the needs of two people together than it

6 would be to take care of the needs of those two people if

7 they lived separately.

8

Q. And that's why that is a benefit of being married,

9 correct?

10

A. Yes.

11

Q. All right. The Federal Government uses marriage as

12 a mechanism for rights and protections such as Social

13 Security, correct?

14

A. I don't know that exactly.

15

Q. You don't know about Social Security and whether the

16 Federal Government --

17

A. I don't actually.

18

Q. Okay. So then you don't know, as an economist you

19 don't know if Social Security is an important economic

20 safety net for families in this country and seniors?

21

A. I do know that Social Security is an important

22 safety net in this country.

23

Q. Okay. Now, I think you mentioned earlier in your

24 testimony, I think you cited in some of your papers, are

25 you familiar with the work of Gary Gates?

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1

A. The work of Gary Gates? Yes.

2

Q. Okay. He is a well known demographer with a special

3 expertise in the LGBT community, correct?

4

A. That's correct.

5

Q. Right. And you, yourself, you reviewed census data

6 on same sex couples and their children here in the United

7 States, correct?

8

A. That's correct.

9

Q. And have you also reviewed data as it pertains to

10 Michigan specifically?

11

A. Of same sex couples in Michigan?

12

Q. Right. How many same sex couples live in Michigan.

13 How many are raising children in Michigan. That type of

14 thing?

15

A. No. I've never broken any data down by state.

16

Q. Okay. But you do know, don't you, Doctor, that same

17 sex couples are raising children in all 50 states of our

18 nation?

19

A. I wouldn't be surprised.

20

Q. That doesn't surprise you?

21

A. That doesn't surprise me.

22

Q. Okay. Even the states that don't have marriage

23 equality, there are same sex couples raising kids.

24

A. Yes.

25

Q. Okay. And even the states that don't allow for

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1 joint or second party adoption for same sex couples such

2 as is Michigan, still you have same sex couples raising

3 children, correct?

4

A. That's correct.

5

Q. Okay. And you would concede, would you not, sir,

6 that gays and lesbians would likely continue to have

7 relationships and form couples regardless of whether that

8 relationship is recognized by law or not?

9

A. I mean, I don't know if I said that, but I imagine

10 it's true.

11

Q. And you also would concede that these couples, even

12 if it's not sanctioned by law specifically, they would go

13 on to individually adopt children or they will have

14 children through artificial insemination or surrogacy or

15 some other means?

16

MS. BRYA: Your Honor, I object as to

17 speculation.

18

THE COURT: I don't know where we are going

19 but he may answer that.

20

A. I wouldn't see any reason why they wouldn't. I

21 imagine they would do that.

22 BY MS. NESSEL:

23

Q. But it's these families, the ones that where

24 marriage is not available to them, between the adults, and

25 where joint adoption is not available, these couples and

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1 their children are going to be worse off because they

2 don't have the legal protection that you say benefits

3 people who get married, right?

4

MS. BRYA: Your Honor, I would object to that

5 as it relates to the legal --

6

THE COURT: From an economics standpoint he

7 can testify, but not from a legal, if he has an opinion.

8

A. So all I can really speak to is that all of those

9 statements you made about marriage we have learned based

10 on heterosexual marriage. And I wouldn't be the type of

11 expert that can speak to whether they would transfer over

12 to same sex couples.

13 BY MS. NESSEL:

14

Q. As an economist, I mean, when you look at all of

15 these different factors that you clearly have studied in

16 terms of heterosexual marriages, the ones that we just

17 spoke about -- economies of scale, and people living

18 longer, and people earning more money and so forth, if

19 those apply to heterosexuals who are married, why would

20 they not apply to same sex couples the same way? Why

21 would it be different for them just because they both

22 happen to be of the same gender rather than opposite

23 genders?

24

A. I mean, I wouldn't be able to give you a definitive

25 answer. But one explanation that has been cited in the

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1 literature is that most the gains to marriage operate

2 through men changing their behavior. So women have a

3 domesticating effect on men. And this is clear when you

4 look at the changes in risky behavior or earnings. It's

5 primarily operating through men changing their behavior.

6 And so that would be one explanation is that. But, again,

7 I don't have any definitive answer. If you had to push me

8 to provide an explanation, that would be one explanation,

9 that women have a positive effect on men.

10

Now, so women could then have a positive effect

11 on other women. What I don't know is if men have a

12 positive effect on other men. If you look at some

13 behavior in fraternities or gangs, it's not clear if men

14 have that same kind of domestication.

15

Q. Are you comparing the marriage between two men to be

16 the same as a fraternity or a gang?

17

A. No. I'm just saying these are situation in which men

18 are brought together and their behavior affects each

19 other's behavior.

20

Q. I see. So do you have any reason as an economist to

21 believe that families that are raising kids, same sex

22 couples where they don't have the right to get married and

23 they don't have the right to jointly adopt, do you have

24 any reason to think that they would be worse off and their

25 children would be worse off if they married?

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1

A. I don't have any reason to believe that.

2

Q. Okay. And, in fact, by all of these predictors,

3 such as, for instance -- strike that. The economies of

4 scale, why would economies of scale be any different

5 between a man and a woman and two men and two women? It

6 would affect all three groups exactly the same, correct?

7

A. Yes. But in that case it's not clear why it would

8 differ between whether or not you are married. I mean,

9 economies of scale will operate if you are living

10 together. So --

11

Q. Wouldn't it also for heterosexuals?

12

MS. BRYA: Your Honor, I ask that he be

13 allowed --

14

THE COURT: You have to let him finish his

15 answer.

16

MS. NESSEL: I understand.

17

A. With the specific example of economies of scale it's

18 not clear if that particular explanation differs anything

19 between cohabiting and married. But, again, I mean, you

20 are talk specifically about economies of scale. That one

21 I don't know. That is just about when two people live

22 together their expenses are less than when they are living

23 separately.

24

Q. I'm just not clear because you say in your book, and

25 again, I will quote it -- marriage provides legal access

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1 to the partner's resources in a system in which each

2 individual in the marriage can take advantage of economies

3 of scale. So you don't say in cohabitation. You say in

4 marriage.

5

A. Yes. So what I'm saying is that that is one of the

6 benefits of moving from singlehood to married.

7

Q. And it would benefit from single to married whether

8 or not it was an opposite sex relationship or whether it

9 was a same sex relationship, correct?

10

A. But, again, I'm saying in that chapter I'm talking

11 about, these are some of the benefits of moving from

12 singlehood to marriage. And actually some of those

13 benefits you're going to obtain by moving into a

14 cohabiting union.

15

Q. But that's not the way you have it phrased in your

16 book. You don't say cohabitation. You say married, right?

17

THE COURT: Ask the question. What is the

18 question?

19 BY MS. NESSEL:

20

Q. The question is, why would you use the term, or I

21 should say, the word, married, and not cohabitating when

22 you are writing a book where you talk about positive

23 outcomes of marriage? Why not call it positive outcomes

24 of cohabitation?

25

A. No. Because the whole chapter, that whole handbook

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1 chapter is looking at policies that have changed people's

2 decisions of whether or not to marry. Hence they are

3 moving from a state of not being married to being married.

4 And I'm just saying that these are some of the reasons why

5 when people marry, they accrue positive benefits. In that

6 chapter I was focused primarily on this distinction

7 between marriage and not marriage. And all I'm saying is

8 that some of those benefits could operate through

9 cohabitating couples or civil unions or other

10 arrangements. I don't really have anything specific to

11 say to that.

12

Q. Did you do a separate analysis that just involved

13 cohabitating partners versus people who are legally

14 married?

15

A. No. Because all of the studies in that article you

16 are referring to, I'm reviewing the work in that done by

17 other people. In all of those other articles, the

18 comparison that they were making was, are you married or

19 are you not married?

20

Q. And there was no room for cohabitation there?

21

A. No. Because most of these articles that I reviewed,

22 we are looking at law changes that created either an

23 incentive or disincentive for people to marry.

24

Q. And those laws that create incentives or

25 disincentives to marry, those would apply to same sex

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1 couples as well as opposite sex couples in the event that

2 same sex couples were permitted to marry, correct?

3

MS. BRYA: Objection, again, your Honor. I

4 don't know that he can testify to what the law is going to

5 say.

6

A. I don't know. All the articles were focused

7 primarily on heterosexual marriage.

8 BY MS. NESSEL:

9

Q. But you don't have any reason to believe that those

10 laws, if people marry to get protection of those laws, you

11 wouldn't have any reason to believe that they would affect

12 people differently just because it's a same sex couple

13 versus an opposite sex couple that is seeking to get

14 married and be protected by those laws, correct?

15

MS. BRYA: Your Honor, objection. I think she

16 asked and he has answered the best he can.

17

THE COURT: He can answer it.

18

A. I don't know.

19 BY MS. NESSEL:

20

Q. Let's talk about your Rosenfeld critique. And I

21 have to concede I am a little confused by it. I wonder if

22 you can do an analysis where you state it this way? Are

23 you able to give us figures in terms of -- for a hundred

24 children, out of a hundred children, how many of them --

25 and you were talking about in the study how many kids go

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1 from one grade to the next, correct?

2

A. Yes.

3

Q. And it's second grade and third grade?

4

A. You mean, how many kids are held back in school?

5

Q. Well, is that the grade you are talking about when

6 you are trying to do an analysis of what grade they are

7 held back from?

8

A. So we don't know what grade they were held back

9 from. What we know is that when they reach a certain age

10 they have been held back prior to that.

11

Q. So out of a hundred children, say, what percentage,

12 don't even use the hundred figure, what percentage of

13 married -- the children of married heterosexuals were held

14 back in school according to your analysis? Not

15 Rosenfeld's. We have heard from him. But in your

16 analysis, what percentage were held back?

17

A. So, again, I didn't frame it in those terms. I

18 framed everything in terms of the odds ratio which is the

19 probability that -- the increased probability that

20 something happens.

21

Q. Okay. But when you say increased probability, for

22 instance, you can't tell us specifically how many kids

23 that is then out of a hundred kids would be held back --

24

A. Again --

25

Q. -- for each category? I'm trying to understand how

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1 many kids we are talking about. Are we talking about the

2 difference between one child between married heterosexual

3 parents and opposite sex parents? Are we talking about

4 half a kid? Are we talking about a quarter a kid? I

5 mean, how big is this ratio?

6

A. Again, I wasn't able to show -- I mean, the two --

7 there were a table, two tables that I was going to show

8 that I wasn't able to show.

9

Q. Can you explain?

10

A. Yes, sure. So, in the Rosenfeld study, he's using

11 all of the children between ages 5 through 17. And as I

12 pointed out, the only ages for which you can accurately

13 measure whether or not you have been held back is age 11

14 and 15. And so one thing you can do is you can actually

15 take the analysis and just run that analysis on kids that

16 are either 11 and 15. And what you find if do you that is

17 you find that the results are even larger than what I

18 showed you before. And they are statistically significant

19 even using the sample restrictions that Rosenfeld did.

20 So, again, part of the reason --

21

Q. Hold on. I'm sorry. I think you answered my

22 question. Let me ask you this.

23

MS. BRYA: Your Honor, I'm going to object to

24 that. I think he should have an opportunity finish his

25 answer. She asked it.

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1

THE COURT: That's fine. Go on. Move on.

2 He should be permitted to finish. Go on.

3 BY MS. NESSEL:

4

Q. On Direct Examination you said that 2 percent of all

5 kids in the study were held back, correct?

6

A. Again, that number is diluted by the fact that none

7 of the nine year olds were held back because if you are a

8 nine year old, we do not know if you have been held back.

9

Q. But you said -- that was the phrase you used.

10 2 percent of all kids are held back. Did you not say that

11 specific statistic?

12

A. I was doing that in the context of Rosenfeld's table

13 and I was pointing that in the data, 2 percent of the kids

14 are coded as having been held back. Now, Rosenfeld

15 acknowledges that that is an underestimate because of the

16 measurement error problem. So the way he corrects for it

17 is he just multiplies that number by four. I think

18 another way you can do it is just restrict the sample to

19 those ages for which you have reasonably good information

20 which is 11 and 15 year olds.

21

Q. All right. For my information then, what percent of

22 all kids are held back?

23

A. Again, I don't have that number readily available.

24 You could calculate it using the table.

25

Q. In real numbers we are talking about the difference

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1 between out of a hundred children, okay, that 98 of those

2 children will pass on to the next grade versus in other

3 categories what? 98 and a half? When you say that there

4 is a substantial likelihood higher that a child would not

5 pass on to the next grade from one category to the next,

6 we are really talking about the difference between 98 kids

7 out of a hundred versus what? 97 and a half kids out of a

8 hundred? I mean, we are not talking about the difference

9 between ten kids.

10

THE COURT: Give him a question.

11

A. Maybe ask the question.

12 BY MS. NESSEL:

13

Q. How many kids are we talking about per 100 kids that

14 total will move on to the next grade?

15

MS. BRYA: Your Honor, I object to that. She

16 asked and he told her he can't calculate that unless he

17 has a few minutes to do it.

18

A. So I do have two tables in my slide I can use to

19 calculate it if you want. I don't have that number. I

20 couldn't provide that number without doing a calculation

21 off those tables.

22

Q. Do my figures then presented to you, do those sound

23 correct between 97 and a half versus 98 kids between the

24 categories?

25

MS. BRYA: Your Honor, I'm going to object.

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1 I think he answered.

2

THE COURT: He hasn't doesn't the numbers.

3 He doesn't know.

4 BY MS. NESSEL:

5

Q. When you say twice as much we are talking about

6 figures that are that small, correct? You were going to

7 use that?

8

THE COURT: You're not talking about actual

9 people or things. You're talking about statistical.

10

THE WITNESS: I am talking about an increase

11 in the probability of something happening. So I think

12 like if I were to tell a parent there is a 30 percent

13 higher chance that X will happen, that would catch their

14 attention.

15 BY MS. NESSEL:

16

Q. But I think what you said, the percentage that you

17 used earlier regarding same sex couples and their

18 children, that they had a 15 percent greater risk of being

19 held back, is that the number you used?

20

A. Tell me what comparison you are talking about.

21

Q. Versus same sex couples -- their children versus

22 married heterosexuals and their children.

23

A. Again, I would have to look at the slide, but it's

24 more in the range of 30 percent.

25

Q. So when you say more in the range of 30 percent, I

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1 mean, I am trying to get basic numbers. Are we talking

2 about the difference between, you know, 30 kids passing on

3 to the next grade versus 60 kids passing on to the next

4 grade? Or are we talking about the difference between 97

5 and a half percent of kids passing on to the next grade

6 versus 98 percent of the kids passing on to the next

7 grade?

8

MS. BRYA: Your Honor, I'm going to object.

9 Again, we have gone over this and I think he said he

10 doesn't have the answer.

11

THE WITNESS: If you would like me to show

12 the tables, I can answer your question. I just can't

13 answer the question.

14

MS. NESSEL: Hold on a second, Doctor Price.

15 BY MS. NESSEL:

16

Q. Doctor Price, you indicated that that event, a child

17 not passing on to the next grade, is a rare event?

18

A. It's a rare event.

19

Q. That's why you need to have such large data samples

20 for this because it happens so infrequently?

21

A. Well, again, part of the reason we get that number

22 like 2 percent is because we only get to observe it for

23 two age groups. When you do the sale factor like

24 Rosenfeld did, it's maybe more like eight percent.

25

Q. Children not passing on to the next grade happens

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1 infrequently, whether it's an opposite sex couple's child

2 or a same sex couple's child, correct?

3

A. That's true. But to clarify --

4

THE COURT: That's okay.

5

THE WITNESS: Okay.

6 BY MS. NESSEL:

7

Q. All right. And so in looking at Rosenfeld's

8 measurements that he did and evaluating that, as you

9 indicated, you said that same sex couples you said have

10 noticeably worse outcomes than children raised by a father

11 and mother, correct?

12

A. That's correct.

13

Q. And, again, you are looking at normal progress in

14 school?

15

A. That's correct.

16

Q. All right. And you selected that measure because

17 you were taking what Rosenfeld did and you wanted to make

18 some changes to it. You felt as though it required

19 changing some of the factors that Rosenfeld used, right?

20

A. Maybe if you can clarify what you mean by factors.

21 I tried not to change any of his control variables. I

22 didn't change his outcome variables.

23

Q. But you did change some of the things in the study

24 obviously?

25

A. I made two small changes. One is completely

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1 innocuous. I just changed the reference group. That does

2 not do anything to the data. And the second is that I

3 took a reasonable step of including a broader set of

4 children in the analysis rather than eliminating them from

5 the sample.

6

Q. And even when did you those things, Doctor Price,

7 you actually -- you were unable to reject the hypothesis

8 that there is no difference between the outcomes of

9 children of same sex couples and heterosexual married

10 parents, correct? Did you use that language?

11

A. If you can repeat that? I don't think that is

12 correct. But if you can state it.

13

Q. Well --

14

A. Again, I showed you --

15

Q. I understand. Do you have the study in your hands

16 right now?

17

A. Yes. I can pull it up.

18

Q. Can you turn to page 958 of your study? That's not

19 the correct page. All right. Directing your attention to

20 page 958 of your study. Can you take a look at? You have

21 a graph and then you have a paragraph underneath that

22 graph, correct?

23

A. Yes.

24

Q. Can you please take a look at the last line of your

25 study or your critique of Rosenfeld's study?

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1

A. Correct.

2

Q. What you say in that analysis is, while we are

3 unable to reject the hypothesis that there is no

4 difference, this approach also makes it impossible to rule

5 out very large differences. That's what you said, right?

6

A. That's correct.

7

Q. So there could be large differences?

8

A. Yes.

9

Q. But there could be no difference at all?

10

A. That's true. Both of those statements --

11

THE COURT: Closer to the microphone.

12

A. I'm sorry. Both of the those statements are within

13 the Confidence Interval.

14 BY MS. NESSEL:

15

Q. But your testimony though in this case based on that

16 study supports a conclusion that children raised by same

17 sex couples have noticeably worse outcomes than raised by

18 a father and mother. That is what you testified to,

19 correct?

20

A. Yes. And my testimony is based primarily on the next

21 table which is table three.

22

Q. When you talk about children raised by same sex

23 couples having noticeably worse outcomes, you're talking

24 about averages, right?

25

A. That's correct.

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1

Q. And you agree that some children raised by same sex

2 couples have better outcomes than children raised by a

3 mother and father, a married mother and father, I should

4 say?

5

A. Yes. I would agree that is true in general. In this

6 case, you have a binary variable. And so you are either

7 held back or not held back. So there is lots of kids in

8 both groups that are not held back. All we are saying is

9 that the probability that a child is held back is higher

10 for some family types than it is for others.

11

Q. And you certainly don't know specifically about the

12 parenting capabilities of the plaintiffs in our case,

13 April and Jane, correct?

14

A. I don't.

15

Q. So whether or not the state has stipulated to them

16 being good parents, you are not aware of that?

17

A. I don't know.

18

Q. All right. Now, you also said you rely on Potter to

19 support your conclusion that children raised by same sex

20 couples have noticeably worse outcomes than children

21 raised by a father and mother, right?

22

A. I point out that there is different ways to

23 interpret the results from his paper.

24

Q. You said Potter compares the outcome, is this right,

25 on math test scores for K through 8 children in married

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1 two biological parent households than children of same sex

2 parent families? Is that correct?

3

A. That's correct.

4

Q. You said that in your report, right?

5

A. Yes.

6

Q. And the Potter study is good because he uses, I

7 think these were your words, a data set with a rich set of

8 measures of the child's family background in their

9 performance in school. Right?

10

A. Yes.

11

Q. Okay. Now, with the Potter study, once he included

12 controls for family structure in kindergarten as well as

13 the cumulative number of family transitions, does he not

14 find that the gap, the math test score gap between those

15 two groups disappears completely and is no longer

16 statistically significant at all? That's correct, isn't

17 it?

18

A. It requires a little bit of further interpretation.

19 I mean, the nice thing about the Potter paper is he shows

20 it all three ways. And you see large differences. It's

21 about a sixth of a standard deviation. He includes the

22 controls. It drops to about half. He includes controls

23 for family transitions and it goes away. The thing that

24 is a bit --

25

Q. I'm sorry. There is no question on the table.

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1

MS. BRYA: Yes, there is, your Honor. She

2 asked him a question.

3

THE COURT: You asked him a question.

4

A. The thing that is odd about this table is that same

5 approach also shows that children being raised by a single

6 mother have statistically significant better outcomes than

7 children being raised by two biological married parents.

8

Q. I'm sorry. From what component are you taking that

9 from?

10

A. In the Potter table you are referring to, if you

11 lock at the co-efficient on single mother, you will see

12 that's positive and statistically significant. And so,

13 again, if I were the reviewer of this paper, this would

14 raise some concerns.

15

Q. And that's why it's important for you to take into

16 consideration things like whether it's a single parent

17 family, whether it's a step-family, things of that nature,

18 correct? They play a role in all that?

19

A. All I am saying is his empirical method is a little

20 different than the way I would approach it. He's

21 controlling both for your family status at kindergarten.

22 He's including a control for how many family transitions

23 you've experienced. And then he's focusing on the

24 co-efficient on your current family status. It just makes

25 it very difficult to interpret his main results that he is

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1 discussing and it leads to this odd puzzle that children

2 raised by single mothers are doing statistically

3 significant better than what we would think of as the

4 ideal family type.

5

Q. And you rely and Potter's study though in forming

6 your conclusions, right?

7

A. I use the first two columns in which he is

8 conducting an analysis very similar to the way Rosenfeld

9 set up his study. It's only in the third column that

10 these kind of puzzling things start to emerge. And I

11 think it's largely driven by the way he set up his

12 empirical specification. And actually I don't think -- I

13 wouldn't consider that third column as being the standard

14 approach to estimating differences based on family

15 structure.

16

Q. You talked about the Rosenfeld --

17

THE COURT: I have a question. Do you have a

18 lot more to go through?

19

MS. NESSEL: I probably do, your Honor.

20

THE COURT: You do. Okay. No use -- if we

21 have to come back -- I was hoping we could finish tonight.

22

MS. NESSEL: I think we have to come back.

23

THE COURT: If you have more than that, we

24 have to reconvene in the morning. So we will stand in

25 recess until 9:00 tomorrow morning. Okay.

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- - -

2

C E R T I F I C A T I O N

3

I, Lawrence R. Przybysz, official court reporter

4 for the United States District Court, Eastern District of

5 Michigan, Southern Division, appointed pursuant to the

6 provisions of Title 28, United States Code, Section 753,

7 do hereby certify that the foregoing is a correct

8 transcript of the proceedings in the above-entitled cause

9 on the date hereinbefore set forth.

10

I do further certify that the foregoing

11 transcript has been prepared by me or under my direction.

12

13 s/Lawrence R. Przybysz
14 Official Court Reporter

15

- - -

16

17

18

19

20

21

22

23

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25

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 2:12-cv-10285-BAF-MJH Doc # 167 Filed 04/06/14 Pg 1 of 124 Pg ID 4607

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

APRIL DEBOER, ET AL.,

Plaintiffs, v. RICHARD SNYDER, ET AL.,

HONORABLE BERNARD A. FRIEDMAN No. 12-10285

Defendants. _____________________________/

BENCH TRIAL

Wednesday, March 5, 2014

Appearances:

FOR THE PLAINTIFFS:

CAROLE M. STANYAR, ESQ. DANA M. NESSEL, ESQ. KENNETH MOGILL, ESQ. ROBERT SEDLER, ESQ. VICKIE HENRY, ESQ.

FOR THE DEFENDANTS:

TONYA C. JETER, ESQ. KRISTIN M. HEYSE, ESQ. JOSEPH E. POTCHEN, ESQ. BETH M. RIVERS, ESQ. ANDREA J. JOHNSON, ESQ. MICHAEL L. PITT, ESQ. - - -

To obtain a certified transcript, contact: Lawrence R. Przybysz, MA, CSR, RPR, RMR, CRR
Official Federal Court Reporter Theodore Levin United States Courthouse 231 West Lafayette Boulevard, Room 718
Detroit, Michigan 48226 (313)414-4460. Lawrence_Przybysz@mied.uscourts.gov

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Proceedings recorded by mechanical stenography. Transcript produced by computer-aided transcription.

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Bench Trial Wednesday, March 5, 2014

I N D E X - - -
Defendant's Case in Chief Loren Marks, Ph.D. Direct Examination By Mr. Potchen: Cross-Examination By Ms. Stanyar: Redirect Examination By Mr. Potchen:

Page Vol.
51 27 1 121 1

Certification of Reporter .....................124

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1

Detroit, Michigan

2

Wednesday, March 5, 2014

3

1:00 p.m.

4

- - -

5

THE COURT: Thank you. You may be seated.

6 Any preliminary matters? Okay. You may continue.

7

- - -

8

LOREN MARKS, PH.D.,

9

being first duly sworn by the Court to tell

10

the truth, was examined and testified upon

11

their oath as follows:

12

- - -

13

DIRECT EXAMINATION

14 BY MR. POTCHEN:

15

Q. Doctor Marks, I would like to now turn to studies

16 that you looked at. The first one would be the one

17 conducted by very Nanette Gartrell in 1996, The National

18 Lesbian Family Study. That would be in front of you. Can

19 you tell us where that is on the chart?

20

A. It appears to be the second one from the top.

21

Q. That's where it says Gatrell et al, 1996, right?

22

A. Correct.

23

Q. Okay. Did Doctor Gartrell use a longitudinal survey

24 for her study?

25

A. She did. In fact, I believe the title of the study

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1 was the National Longitudinal Or Lesbian Family Study.

2 Longitudinal is in the title and that is accurate.

3

Q. Okay. Do you know how the study was conducted?

4

A. It was 39 lesbian mothers were sampled from San

5 Francisco, thirty-seven from Boston and I believe eight

6 from Washington, D.C. The samples were based on informal

7 networking and recruits or volunteers that were -- that

8 were gathered through events at book stores and through

9 lesbian newspapers etc.

10

Q. Is that -- is there a certain name for that type of

11 sampling method?

12

A. It's convenience sampling.

13

Q. So while the title said National Longitudinal

14 Lesbian Family Study, did the approach actually constitute

15 a nationally representative sample?

16

A. No. A sample that small from three different cities

17 would not approximate a nationally representative sample.

18

Q. And the sample, did it consist of lesbian couples

19 only?

20

A. It was lesbian mothers only I believe. No gay

21 fathers.

22

Q. Was it compared to any heterosexual couples?

23

A. Gartrell, in at least early studies, did not have

24 any heterosexual comparison group.

25

Q. Okay. Now, I am going to turn to Golombok on the

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1 same chart, specifically her 2003 study. That is about

2 the middle of the page?

3

A. Yes.

4

Q. And do you know what the name of that particular

5 study was called?

6

A. I believe it was done in Avon, England and the name

7 of the study is the Avon Community Study or something

8 similar.

9

Q. So this was done in England. And what was the

10 sample size of that one?

11

A. Thirty-nine, again, lesbian mothers, and no gay

12 fathers, if memory serves.

13

Q. And those studies, there is a few there, one, two,

14 three, four, five, we are looking at Golombok right now.

15 There is a variety of Golombok studies, isn't that

16 correct?

17

A. Yes.

18

Q. What were the compare groups for those studies?

19

A. The comparison group, as I mentioned, for Gartrell

20 there was no comparison group. With Golombok et al. in

21 2003, there was a mixed bag of couples and singles.

22

Q. Okay. Then I want to go back to the slide, to

23 Brewaeys. And this is a 1997 study, is that correct?

24

A. It was. It was a study of donor inseminated

25 couples. I believe, again, all lesbian mothers, conducted

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1 in Belgium.

2

Q. Is insemination expensive?

3

A. I don't have exact figures but, yes, it's an

4 expensive and a cost prohibitive procedure.

5

Q. And generally, is that representative of the

6 population of gays and lesbians that were part of these

7 samples? Actually, let me rephrase that a little better.

8 Is that a representative population of the entire

9 population?

10

A. I would assume, no. Part of my critique earlier

11 today was that wealthy, well educated, white lesbians,

12 privileged on the whole, have been repeatedly sampled.

13 And if we move to the area of donor insemination you are

14 probably dealing with a relatively privileged class. The

15 same would be true for adoptive couples on the whole.

16 Those are generally expensive ways to acquire children

17 although biologically it's not cheap either.

18

Q. The '97 study, do you know what was being compared

19 in that particular study?

20

A. The outcomes that are mentioned there are emotional

21 and gender development. There are possibly other

22 variables as well.

23

Q. And the sample size, that was a 30 sample size?

24

A. It was. If we look across studies there, we have

25 got Brewaeys with 30, the minimum that we typically want

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1 to see in a quantitative study. I believe back with

2 Golombok it was 39. With Gartrell we have a nice number

3 at 154, 156 individuals. But, again, no comparison group

4 and no ability to make a strong comparative statement

5 across groups.

6

Q. And there is another study by a Chan?

7

A. I have two listed. Chan, Brooks, et al, 1998.

8 Chan, Raboy, 1998. Again, we are dealing with small

9 sample sizes. Thirty, the bare minimum. And the

10 heterosexual comparison group even lower than that at 16

11 with the second study, fifty-five, which is a better

12 number. But, again, we are below 30, the minimum on the

13 heterosexual comparison group. Again, we have got donor

14 inseminated couples and some concerns about

15 representativeness there.

16

Q. The final one I want to talk about from your chart

17 is the Wainright and Patterson which is probably two

18 slides up. Three. This would be --

19

A. Wainwright.

20

Q. 2004, second from the bottom. What can you tell us

21 about that particular survey or study?

22

A. This is an often featured study. It was selected,

23 for example, by two reviewers in a 2005 piece, and in

24 their opinion, one of the best few studies that have been

25 conducted to that point on gay and lesbian parenting.

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1 Often it's featured or claimed to be a rare nationally

2 representative sample. If we look closer, we find

3 something different, however. It is drawn from what is

4 called an Ad Health sample. On page 1889 of that

5 publication, the sample of Ad Health is listed at 12,105

6 for the entire sample. The subsample, however, of lesbian

7 mothers, if we continue to read on to 1890, I believe the

8 next page, we're told that in terms of the mothers who met

9 what Wainwright and Patterson called the idealized image

10 of lesbian mothers was very small at 18. The

11 questionnaire did not ask explicitly about sexual

12 orientation which kind of muddies the water in terms of

13 same sex parents. It's a little bit difficult to tell,

14 for example, if you are a same sex parent, is there a

15 possibility that it might be a mother, daughter or two

16 sisters sharing a home.

17

If we consider that that smaller number of 18

18 which fit the idealized type that is talked about on page

19 1890, that is a miniscule fraction of the overall sample

20 of 12,105. I ran the numbers on it. It's .00148 which is

21 lower than three individuals out of every 2000. That

22 would fit that idealized type. Again, in terms of those

23 who would report, we wonder about representativeness.

24

Q. I mean, just to interrupt, if someone were to

25 represent that that sample size was 12,000, in your

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1 opinion, would that be a misleading representation?

2

A. It would. That is the larger group that these 18 or

3 at best 44 were drawn from.

4

Q. Where do you get the 44 number from?

5

A. That is a little bit fuzzy reading through. They

6 mention on 1890 that there are 18 that meet idealized

7 image but another 26 appear to meet other qualifications

8 to bolster the overall comparison group to 44.

9

Q. So the largest true comparison group was 44?

10

A. For the lesbian mothers, yes.

11

Q. Okay. Did the Ad Health survey ask the parents to

12 specify their sexual orientation?

13

A. No, I don't believe it did.

14

Q. And, again, was this a study of lesbian mothers

15 only?

16

A. It was. The Wainright and Patterson article

17 mentions that there were only six gay fathers, I believe,

18 that identified. Again, they didn't ask. I am not

19 certain how they got that, but the number was small enough

20 that they dismissed that sub-sample.

21

Q. Are you aware if Patterson made any -- noticed

22 anything regarding her study?

23

A. The characteristics of the lesbian mothers by an

24 idealized image, we return again to some points that I

25 made earlier about privilege in terms of income, education

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1 and race.

2

Q. Okay. And what was the data collected for this

3 study?

4

A. The Ad Health sample that they drew was 1994, 1995.

5

Q. Is that a longitudinal study?

6

A. For purposes of that study that would be

7 cross-sectional, I believe. The Ad Health runs across

8 time, but for that purpose or purposes of that study, no.

9

Q. So it's not longitudinal, is that correct?

10

A. It doesn't appear to be in the Wainright et al.

11 piece in 2004.

12

Q. After you published your report that we have been

13 discussing your testimony today, did individuals indicate

14 that they disagreed with your findings?

15

A. There were many who did not like the report. I

16 heard from folks around the country. In terms of findings

17 I tried to be very explicit giving specific studies and

18 page numbers where possible so that a data audit trail was

19 created that could be retraced. Like anyone I make

20 mistakes, made several corrections working through, and

21 there were probably mistakes that remain. But the

22 critiques that I received were more about content than a

23 quibble over methods or findings.

24

Q. Okay. So, even though they disagreed perhaps with

25 what you were saying --

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1

MS. STANYAR: Objection.

2

THE COURT: I didn't hear the objection.

3

MS. STANYAR: I object to the date. So if we

4 can get a foundation.

5

THE COURT: Counsel?

6

MR. POTCHEN: I can identify.

7 BY MR. POTCHEN:

8

Q. Are you familiar with the person by the last name of

9 Amato?

10

A. Yes.

11

Q. Did that person stress any concerns regarding your

12 study?

13

A. Professor Amato reviewed my piece at some point and

14 he didn't express concern with the methods. He did

15 express concerns with one of the implications or

16 recommendations I made at the end, that ideally it would

17 be best if we had a national, large national

18 representative sample.

19

Q. Let me interrupt. What was the recommendation you

20 made at the end?

21

A. The recommendation that I made at the end is that

22 the validity of the studies in this area would increase

23 substantially if researchers in this area heeded a few

24 recommendations. I listed several. One of those was to

25 do our best to find some large representative samples.

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1 Professor Amato's point to me was that may be difficult to

2 do at this point, to find a large nationally

3 representative sample of gay and lesbian parents. And I

4 think it's a fair point, that it's difficult.

5

Q. And did a person named Eggebeen --

6

A. Professor Eggebeen also reviewed the article, yes.

7

Q. Was there any concerns raised by that Professor?

8

A. Not that I remember.

9

Q. How about Osborne?

10

A. Doctor Cynthia Osborne also reviewed it. I don't

11 remember pronounced concerns from her.

12

Q. Okay. But of the individuals who you heard from

13 regarding your piece, did any claim that your numbers or

14 the data was incorrect?

15

A. No.

16

Q. Okay. However, you felt the needed to submit a

17 written response to those comments?

18

A. I did. I did.

19

Q. If you would turn to Exhibit Number 18 to the book

20 beside you and tell us what that is?

21

A. Amato, Eggebeen and Osborne, the three professors I

22 just mentioned, reviewed my paper at some point. I don't

23 know if they were part of the formal review team or if

24 they were asked to write all reviews later. But at some

25 point they reviewed my paper carefully, all three of them,

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1 and wrote up critiques and recommendations and suggestions

2 that were to be published in the journal and were

3 published with the journal along with my article. I was

4 given the opportunity -- admittedly my turn around time

5 was very, very brief. It was a matter of by the time the

6 final one rolled in, a matter hours instead of days to

7 respond. But it was, I was given the opportunity to at

8 least respond to the critiques and counterrecommendations

9 that they made and that's what we have here.

10

Q. And so what is the name of the piece?

11

A. The piece is We See What We Seek, A Rejoinder To The

12 Responses of Amato, Eggebeen, and Osborne.

13

Q. And is that a true and accurate copy of the

14 rejoinder?

15

A. It appears to be. It's just two pages long.

16

MR. POTCHEN: I move to admit Exhibit 18?

17

THE COURT: Any objection.

18

MS. STANYAR: No objection.

19

THE COURT: Received.

20 BY MR. POTCHEN:

21

Q. What do you mean by We See What We Seek?

22

A. What I'm getting at, and I believe the closing line

23 of the article, maybe not verbatim, is that all of us have

24 blind spots. We have different theoretical perspectives

25 that direct us and give us permission and encourage us to

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1 see certain things. But by extension those same

2 perspectives and world views tend to blind us to other

3 things that are very important to consider. I close up by

4 saying that it's ironic perhaps that our blind spots are

5 best pointed out to us by those who see the world quite

6 differently than we do, particularly through respectful

7 interaction with others who see the world differently.

8 And that was the tone that I tried to take in this

9 rejoinder, that there is a great deal we can learn from

10 respectful dialogue.

11

Q. Are you familiar with the term reflexivity?

12

A. I am.

13

Q. Is that kind of what you are referring to here or is

14 that at all related or was it discussed in your paper?

15

A. I don't know that I mentioned the term reflexivity

16 but certainly it's the heart of what I'm talking about.

17 Briefly, in the sciences, we claim to hold an objective

18 ideal. We want to shoot for truth. Perhaps ideally truth

19 with a capital T, and at least with a smaller T. However,

20 the idea behind reflexivity is that because of those blind

21 spots that each of us have, the limitations and knowledge,

22 as well as the biases that we develop through a life

23 experiences, that it's almost impossible for any

24 individual to be completely objective. As a result, some

25 like me believe that a more authentic and honest approach

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1 to research is to essentially lay your cards on the table,

2 to be open and forthright about the biases that we hold,

3 specifically the biases that we hold that would directly

4 bear or be relevant on our domain of inquiry. The hope

5 there is that by being honest and transparent that it

6 introduces a fair set of checks and balances at one level,

7 and that also we become increasingly aware of our own

8 blindness and limitations and move towards a product

9 through interaction with others that more closely

10 approximates truth. It certainly is -- it's an ideal that

11 I endorse.

12

Q. Are you aware of any studies that may reflect this,

13 what you're talking about?

14

A. In much of my own qualitative work I include a

15 formal or informal reflexivity section trying to disclose

16 biases that would be relevant to the study at hand as I

17 mentioned a minute ago.

18

Q. Okay. What about studies by an individual named

19 Miller?

20

A. Yes. Miller is an interesting case in terms of

21 reflexivity and more appropriately, bias in terms of not

22 just an individual researcher but the field as a whole. I

23 believe at the outset today I discussed the APA's vote in

24 August of 2011. One hundred fifty-seven to zero in favor

25 of same sex marriage. There have been some writings by

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1 scholars including Schumm who have argued through other

2 data, through an evidence of homosexual bias or liberal

3 bias in published research.

4

An interesting case study, and we might move up

5 on the slide to Mucklow and Phelan. In 1979, 1980 and

6 1981, there were a series of three studies conducted by

7 scholars at Colorado State University. The Mucklow and

8 Miller team. Two of these studies had predominantly

9 positive findings regarding lesbian mother families.

10 Another study done by the same team, actually Miller,

11 Mucklow Jacobsen and Bigner in 1980 does not appear on

12 this slide. The point here was that we have the same

13 research team from the same academic institution producing

14 studies based on the same data set.

15

Additionally, two of these three studies were

16 published in the same journal, Psychological Reports.

17 What was noted by a scholar named Schumm was that the 1979

18 and 1981 piece, it presented a positive picture, had been

19 cited by 2010 about 65 times, while the Miller Mucklow

20 Jacobsen and Bigner piece had only been cited twice. I

21 did some research of my own on February 27th of this year,

22 you know, almost five years later, and found that the

23 Mucklow and Phelan --

24

MS. STANYAR: Objection. It's beyond his

25 report, Judge.

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1

MR. POTCHEN: I think he is making a point,

2 your Honor.

3

MS. STANYAR: It doesn't matter if he is

4 making a point.

5

THE COURT: I will allow him to testify. Go

6 on. February 27th of this year?

7

A. February 27th of this year I revisited these two

8 studies on Google Scholar and found the Miller or the

9 Mucklow and Phelan positive study from '79 had been cited

10 67 times. The Miller, Jacobsen and Bigner study from 1981

11 that appears up here had been cited a total of 89 times.

12

Out of curiosity I punched in the 1980 Miller,

13 Mucklow, Jacobsen and Bigner study that included negative

14 reports and found that it had been cited a total of six

15 times. And two of those citations were by a scholars

16 named Schumm who was indicating that the study seemed to

17 have been systematically overlooked and ignored. The

18 total citations in terms of ratio would be 156 to 6.

19 Schumm refers to this as a natural experiment in social

20 sciences.

21

Q. So --

22

THE COURT: I have one question. Does this

23 special Google site for scholars and scientists --

24

THE WITNESS: Yes, sir. Google Scholar dot

25 com. And you should be able to check and verify the

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1 numbers that I just presented.

2

THE COURT: I am not suggesting that. I

3 never knew -- so it's generally accepted scholars would

4 use that cite to do some research on what has been

5 published and so forth. Is that the purpose of the site?

6

THE WITNESS: Yes, sir.

7

THE COURT: Okay.

8

THE WITNESS: It's also a convenient search

9 engine for academics.

10

THE COURT: Is it free or do you have to --

11

THE WITNESS: It tends to be free, yes.

12

THE COURT: I was just curious. I'm sorry.

13 BY MR. POTCHEN:

14

Q. Looking at the chart here, so you were telling us

15 that the Miller 1979 report is up there, and the Miller

16 1981 report is up there because they showed positive

17 results. Yet the one study, the 1980 Miller report that

18 showed negative results was just completely eliminated

19 from the picture?

20

A. It was not cited in the APA brief, pages 5 to 45.

21

Q. Okay. As a social scientist do you believe it's

22 important to consider other viewpoints?

23

A. I do. And that's part of my point here, again, was

24 with blind spots and bias, it would appear important to

25 equally consider each of the three studies from the

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1 similar team of scholars.

2

Q. Have you noticed that your viewpoints in this

3 particular area have been met with any sort of resistance

4 that you have been testifying on today?

5

A. Yes.

6

Q. What have you experienced?

7

A. I would prefer not to go into detail.

8

Q. Okay. We can move on. Are you associated with the

9 Heritage Foundation?

10

A. No.

11

Q. Did the Heritage foundation fund your study at all?

12

A. No.

13

Q. Did anyone fund your study?

14

A. My study was unfunded.

15

Q. Okay. Did anyone from the Heritage Foundation ask

16 you to do your study?

17

A. No.

18

Q. What religion are you?

19

A. I am a member of the Church Of Jesus Christ of

20 Latter Day Saints, sometimes referred to as the Mormon

21 Church.

22

Q. Are you involved in the church?

23

A. I am, actively.

24

Q. Okay. And do you know what your religious view on

25 same sex marriage is?

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1

A. I do. The church opposes same sex marriage.

2

Q. Okay. And does your religion's view on same sex

3 marriage impact your findings that you presented here

4 today?

5

A. It's an interesting question.

6

Q. That's why I asked.

7

A. I think that the full truth in response to that

8 answer is both yes and no.

9

Q. Okay. Can you please explain?

10

A. I will. Given the amount of opposition that one

11 faces in this domain expressing opinions like I have, I am

12 not sure that anyone in their right mind would oppose the

13 social norm like 157 to zero without some deeper meaning

14 based motive. Again, being as honest as reflective as I

15 can, there is too much at stake. I think that in part,

16 that it was biases that at least encouraged me to take a

17 second look at the beginning and to look closely at these

18 studies. That's as honest as I believe I can be on the

19 yes answer.

20

In terms of the no response, if we were to walk

21 through either my 2012 article or my 2013 expert report

22 and go point by point through Table A and look at each of

23 the questions, question one, how representative ethically,

24 racially, economically were the samples that were drawn to

25 represent same sex parenting couples, I outlined

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1 specifically by article and often with page number trying

2 to the point of fault. Eggebeen said that my paper was

3 festooned with footnotes, trying to document and create a

4 data audit trail so that I could be challenged on any of

5 these points that were not objective and that were not

6 fair. If we move to point two.

7

Q. So was that answer to question one affected by your

8 religion?

9

A. No. No.

10

Q. So move on to two, please?

11

A. Move on to point two. Were there -- did all of the

12 studies in the APA brief use heterosexual comparison

13 groups? The answer, again, was no. Only 33 of the 59

14 did. Again, I document in Table A the 33 that did and the

15 26 that fell short in that area.

16

I don't mean to take the Court's time, but if we

17 could, if we took the time to walk through each of my six

18 points or seven points in the article, I have tried to

19 create a data audit trail whereby I can be challenged on

20 unfair and third party verifiable data. And in that

21 sense, I have a difficult time believing that that third

22 party verifiable data has anything to do with my religious

23 affiliation whatsoever.

24

Q. In answer to the questions, your religion did not

25 impact your answers to those questions?

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1

A. Specifically to the findings, no.

2

Q. Have any reports or studies been brought to your

3 attention that are definitive to the issue of children

4 being raised by same sex couples?

5

A. In short, if we are talking about, and I am, about

6 large representative samples that can be considered to be

7 generalizable, the answer is, no. Potential exceptions

8 would include Rosenfeld 2010 and Price, Allen and Pakaluk

9 2012. Extremely large census based studies. But both

10 those studies only look at one small dimension of one of

11 the seven or eight critically, societally important

12 outcomes that I mentioned. That outcome is education

13 based. It's progress through school which is a binary.

14 Yes or no, you pass it. It's not even nuanced by grade

15 point average, etc. So it's a crude measurement and I

16 believe both Rosenfeld and also Allen and colleagues

17 acknowledge that. But I think it's probably the best

18 study that we have to date.

19

Q. Okay. All right. Doctor Marks, what is your

20 opinion regarding the data claiming that there is no

21 difference between children being raised in same sex

22 households and those heterosexual two parent households?

23

A. None of the 59 studies cited in the brief compare a

24 large representative sample of same sex parents with a

25 large representative sample of marriage based in tact

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1 families. Not one. Further, if we look more closely, as

2 I mentioned earlier, those outcomes that should concern us

3 most from a societal and economic perspective have been

4 almost entirely overlooked in favor of gender and other

5 arguably less important outcomes.

6

So what we are left with largely are small

7 convenience samples that are biased, rather heavily even

8 by the researchers' own admissions that look at outcomes

9 often in childhood as opposed to adolescence or adulthood

10 when we would expect to see the most valid expressions of

11 those outcomes. After reading very carefully through the

12 59 studies, my conclusion was that I cannot personally as

13 a scientist in good conscience make a strong data based

14 claim for or against this issue. I don't believe that

15 that claim would be based in high quality science.

16

Q. Okay. Just a minute. In making that statement, do

17 any particular quotes come to mind?

18

A. I made the statement that I personally did not feel

19 remotely confident as a scientist making a strong data

20 based claim either way. In doing so, I think my opinion

21 lines up most closely with one presented by Professor

22 Schiller of Yale University in the journal American

23 Psychologist which is published by the American

24 Psychological Association, page 2007, page 712. Professor

25 Schiller says in part.

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1

MS. STANYAR: What year?

2

THE WITNESS: 2007.

3

MS. STANYAR: Beyond the scope.

4 BY MR. POTCHEN:

5

Q. Is this in your article?

6

A. The quote I'm going share is in my article and in my

7 expert witness and it's cited in the reference list.

8

MS. STANYAR: Your Honor, it's beyond the

9 scope.

10

THE COURT: He is quoting from somebody in

11 terms of what his bottom line was, I think, is basically

12 the way to put. He may testify. I'm sorry. I am

13 supposed to be talking into the microphone. He may

14 testify.

15

A. Professor Shiller's summation after doing her own

16 review was that the line between science and advocacy

17 appears blurred. I feel very, very similarly.

18

Q. Thank you.

19

MR. POTCHEN: No further questions.

20

THE COURT: Okay. You may cross-examine.

21

MS. STANYAR: Five minutes.

22

THE COURT: We will take a real five minutes.

23 I will find out -- you have the best person working on a

24 chair. I didn't see it.

25

MS. STANYAR: Right here.

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1

THE COURT: If Carol can't it, it isn't -- we

2 take a real five minutes.

3

(Recess from 2:50 p.m. until 3:10 p.m.)

4

THE COURT: I just got notice we've got a

5 bunch of money from Congress to do something in this

6 building. There's going to be a big press conference

7 across the hall in 115. So it was in the paper this

8 morning. It was in the paper this morning how much they

9 got and it said 40, but I heard 70. Tomorrow we will know

10 what we are going to do. It will be interesting. What

11 time was that press conference?

12

THE COURT CLERK: 2:00.

13

THE COURT: Senator Levin will be there by

14 video. It's a big deal. We will all be here to see that

15 maybe. Okay.

16

- - -

17

CROSS-EXAMINATION

18 BY MS. STANYAR:

19

Q. Good afternoon, Doctor Marks. Pleasure to be

20 cross-examining you again.

21

A. Thank you.

22

Q. I would like to first turn to a report from Family

23 Scholars entitled Why Marriage Matters, third edition,

24 from 2011.

25

MS. STANYAR: May I approach, Judge?

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1

A. Thank you.

2 BY MS. STANYAR:

3

Q. All right. You are listed as a co-author on this

4 report, is that right?

5

A. Yes.

6

Q. And this is a report from the Institute for American

7 values. Is that right?

8

A. Yes.

9

Q. All right. And you appear as one of the co-authors

10 on page, I guess, it would be page five?

11

A. Yes.

12

Q. Prior to agreeing that your name could be included

13 in this report as a co-author, did you review the entire

14 report?

15

A. Yes.

16

Q. Did you make recommendations and additions to the

17 text?

18

A. Some minor recommendation and minor additions, yes.

19

Q. I would like us to turn to page 12 of that report.

20 And these are 30 conclusions, a snapshot, and they fall

21 under the categories of family, economics, physical health

22 and longevity, mental health and emotional well-being and

23 crime and domestic violence. If we look at number two,

24 children are most likely to enjoy family stability when

25 they are born into a married family. Did you sign off on

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1 that conclusion?

2

A. Yes.

3

Q. Number four, cohabitation is not the functional

4 equivalent of marriage. You signed off on that statement?

5

A. Yes.

6

Q. Number seven, marriage and a normative commitment to

7 marriage fosters high quality relationship between adults

8 as well as between parents and children. You signed off

9 on that statement?

10

A. Yes.

11

Q. Number eight, marriage has important bio-social

12 consequences for adults and children?

13

A. Yes.

14

Q. Number nine, divorce and an unmarried child bearing

15 increases poverty for both children and mothers and

16 cohabitation is less likely to alleviate poverty than is

17 marriage?

18

A. Yes.

19

Q. Number ten, married couples seem to build more

20 wealth on average than singles or cohabitating couples?

21

A. Yes.

22

Q. Eleven, marriages reduces poverty and material

23 hardship for disadvantaged women and their children.

24

A. Yes.

25

Q. Number 14, parental divorce or failure to marry

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1 appears to increase children's risk of school failure?

2

A. Yes.

3

Q. Number 15, parental divorce reduces the likelihood

4 that children will graduate from college and achieve high

5 status jobs?

6

A. Yes.

7

Q. Number 16, children who live with their two married

8 parents enjoy better physical health on average than do

9 children in other family forums?

10

A. Yes.

11

Q. Number 18, marriage is associated with reduced rates

12 of alcohol and substance abuse for both adults and teens?

13

A. Yes.

14

Q. Number 21, marriage seems to be associated with

15 better health among minorities and the poor?

16

A. Yes.

17

Q. Number 22, children whose parents divorce have

18 higher rates of psychological distress and mental illness?

19

A. Yes.

20

Q. Number 27, marriage appears to reduce the risk that

21 adults will either be the perpetrators or victims of

22 crime?

23

A. Yes.

24

Q. Let me double back. Children whose parents, number

25 22 -- did we already cover that one? Yes, we did. Number

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1 24, family breakdown appears to increase significantly the

2 risk of suicide?

3

A. Yes.

4

Q. Number 26, boys raised in non-in tact families are

5 more likely to engage in delinquent and criminal behavior?

6

A. Yes.

7

Q. All right. In terms of your background in

8 preparation for your testimony today, did you read the

9 reports of the state defendant experts Doctor Allen,

10 Doctor Price, Doctor Regnerus or Mr. Girgis?

11

A. No.

12

Q. Okay. Did you review the reports of the plaintiff's

13 expert, Doctor Brodzinsky, Doctor Rosenfeld, Doctor Gates,

14 Mr. Sankaran?

15

A. I read all that you just mentioned except for

16 Sankaran. I also read Cott.

17

Q. Nancy Cott on marriage?

18

A. Yes.

19

Q. All right. Your undergraduate major at Brigham

20 Young University was family sciences, is that right?

21

A. Yes.

22

Q. And your Master's program was also in family

23 sciences and human development?

24

A. Yes.

25

Q. Okay. I asked you some questions during the

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1 deposition about your dissertation and some writings that

2 would have been published kind of --

3

THE COURT: Get closer to the microphone.

4 BY MS. STANYAR:

5

Q. At your deposition, I asked you some questions about

6 your dissertation and we had some followup questions about

7 which of your published works were based upon your

8 dissertation. Can you tell us which ones those are, the

9 primary ones?

10

A. Yes. The 2004 piece in family process was based on

11 my dissertation as well as 2005 bio-psycho-social health

12 and religion piece in the Journal on Religion and Health.

13 And a 2006 piece in Journal On Religion And Health on

14 religion and family. Those three. Others had pieces of

15 the dissertation but those three were based on the

16 dissertation.

17

Q. Would you agree with me that you also have both

18 studied and written and taught on, in particular,

19 African-American families?

20

A. Yes. It's a focal area for me.

21

Q. All right. Did you have a doctoral degree in

22 sociology?

23

A. No.

24

Q. Do have you a doctoral degree in psychology?

25

A. No.

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1

Q. How about social work? A doctoral degree in social

2 work?

3

A. No.

4

Q. In terms of focused expertise, do you consider

5 yourself an expert psychologist?

6

A. I think that that would be debatable. Psychology is

7 certainly subsumed. As I mentioned earlier, family

8 studies is a hybrid of psychology and sociology. I am

9 certainly familiar with both those disciplines.

10

Q. But in terms of a focused expertise you wouldn't

11 claim to be a psychologist or expert in psychology?

12

A. I wouldn't claim to be an expert psychologist.

13

Q. All right. Have you ever been qualified as an

14 expert in any court proceeding in psychology?

15

A. No.

16

Q. Is this the first time are you testifying in court?

17

A. Yes.

18

Q. All right. As an undergraduate did you ever take a

19 class specifically on methodology?

20

A. That's going back a ways but, yes, I took a methods

21 course as an undergrad.

22

Q. All right. We talked at your deposition about the

23 different classes that you have taught over the years and

24 if you need to refer to your CV, I think it's Exhibit 16

25 of the state. We talked about the classes that are listed

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1 in your CV and that you conducted or that you taught which

2 would have covered the topics of same sex marriage, same

3 sex couples or parenting by gay and lesbian parents. My

4 followup question now is, to the extent that you have

5 taught students in this area, have you ever assigned your

6 students reading by Charlotte Patterson as a teaching

7 tool?

8

A. No. Not specifically, although it's likely that she

9 or her work is cited in textbooks that I have used.

10

Q. But in terms of what you assigned to your students

11 to read?

12

A. No.

13

Q. How about Susan Golombok? Same question.

14

A. No.

15

Q. Michael Lamb, same question.

16

A. Michael lamb, possibly. Even probably. Doctor Lamb

17 has written on a wide array of topics. It's likely that I

18 assigned readings from Doctor Lamb at some point.

19

Q. Nanette Gartrell?

20

A. No.

21

Q. Did you provide an expert witness affidavit in the

22 case of Perry versus Schwarzenegger?

23

A. Yes.

24

Q. Was that in 2009, 2010?

25

A. Yes. Late 2009, I believe.

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1

Q. And did you also testify at a deposition, not in

2 court, but at a deposition in the Perry case?

3

A. Yes.

4

Q. All right. In terms of child outcomes, you

5 testified at the deposition in this case that child

6 outcomes is a broad area?

7

A. Yes.

8

Q. All right. And child outcomes, is that term used

9 broadly? Would you consider yourself an expert in child

10 outcomes as it's used broadly?

11

A. As it's used broadly, going back to my deposition, I

12 believe I said that it's difficult to imagine anyone who

13 could claim a broad expertise in child development because

14 there are so many different strains and forms of it.

15 There may be such a person, but it's not me.

16

Q. Okay. I think my question was, maybe I just

17 misspoke, how about child outcomes? Do you have a

18 specific expertise in child outcomes?

19

A. I deal with some child outcomes. But in terms of a

20 focus, specific expertise, not necessarily.

21

Q. In terms of -- am I correct that you would not claim

22 expertise broadly in the area either of child adjustments

23 and that you have to be careful about claiming expertise?

24

A. Yes, I would agree with that.

25

Q. Have you ever been qualified as an expert

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1 specifically in the area of either child development or

2 child adjustments?

3

A. No.

4

Q. Other than the Perry case and this case, were you

5 also involved in another case in Virginia, same issues,

6 same -- excuse me -- same sex marriage?

7

A. I was asked to submit an expert report for the

8 Virginia case, yes, about the same time that reports were

9 filed for the present case.

10

Q. Okay. Other than reading the articles that you

11 talked about cited by the APA in their brief and same sex

12 parenting and the few that you mentioned that were kind of

13 outside of that window, in addition to writing your 2012

14 article, in addition to writing your report in that

15 Virginia lawsuit, writing your report in this case,

16 appearing at your deposition, is there anything else that

17 you have done in the areas of child outcomes that would

18 have led to your having a focus in child outcomes?

19

A. I conduct primary research with a large quantitative

20 sample that looks at marriage and parenting issues. Child

21 outcomes are certainly implicit in that work as are

22 marriage outcomes. But the focus is mostly on process and

23 relationships.

24

Q. But in terms of -- I guess I am trying to get at, do

25 you have any other basis for your expertise in the area of

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1 child outcomes or other than those things that I

2 mentioned?

3

A. In terms of bearing on this case as you mentioned,

4 reading the 59 studies, writing the article, reading

5 another 40 plus, so, probably 100 plus articles in this

6 domain, that would be the extent.

7

Q. Okay. And am I correct that you have not conducted

8 any original primary research of your own in that area?

9

A. Yes, that's correct. Just the review work that has

10 been published that we already addressed.

11

Q. Okay. Would you agree with me that the 2012

12 article, your report in the Virginia case, and the report

13 in our case here are all very similar in terms -- not

14 identical but similar in terms of content?

15

A. Very similar, yes.

16

Q. All right. You indicated in answer to Mr. Potchen's

17 question that you have a specialty in methodology. Did

18 you talk about that?

19

A. I did.

20

Q. And I think you also said that your own speciality

21 is qualitative research?

22

A. Yes.

23

Q. That would be studying processes, parental processes

24 or -- qualitative research -- can you tell us again what

25 qualitative research is?

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1

A. Yes.

2

Q. And distinguish it from quantitative research?

3

A. Yes, I would be happy to. Quantitative research is,

4 in short, statistics based, focused on numbers.

5 Qualitative tends to be word based and the aim often is

6 depth instead of breadth.

7

Q. And quantitative?

8

A. Quantitative again would be statistics based.

9

Q. All right. I think you said something about the

10 fact that you had conducted quantitative studies? Did I

11 hear that correctly.

12

A. I have co-authored a handful of quantitative studies

13 over the last -- over the years.

14

Q. Let me ask, did any of them relate to same sex

15 parenting or child outcomes?

16

A. One related to child outcomes. If you would like me

17 to take a peek, I can.

18

Q. Yes, please.

19

A. The one I'm referring to is Laird, Marks and

20 Marrero, 2011, Religiosity, Self-control And Anti-social

21 Behavior published in the Journal Of Applied Development

22 Psychology.

23

Q. That was quantitative?

24

A. It was.

25

Q. All right. Was that a large study, a probability

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1 based study?

2

A. No. We made efforts to go beyond typical

3 convenience sampling. But it's tough. It's tough to move

4 passed convenience sampling. We employed a local agency,

5 a data finding agency on LSU's campus. The sample size

6 was modest.

7

Q. What do you mean by modest?

8

A. Probably 300 plus or minus.

9

Q. Was that the target group or was that the

10 ultimate --

11

A. The actual sample. It was adolescence.

12

Q. Was this a published study then?

13

A. It was.

14

Q. Okay. You talked about at least in the deposition

15 what you referred to as gold standard research. Am I

16 right?

17

A. Yes.

18

Q. And you described that, and am I right in terms of

19 child outcome research for the children of same sex

20 parents, you would categorize gold standard research as

21 being large scale, probability study, longitudinal,

22 according to measured into adulthood? Would that be

23 included in it?

24

A. Ideally, yes.

25

Q. Okay. How long into adulthood?

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1

A. That's a good question. And it would vary based on

2 the outcome of concern. For example --

3

Q. Infant mortality would be a shorter study?

4

A. Mortality. Divorce outcomes as adults obviously.

5 You would want to track that as long as possible, frankly,

6 but there is a lot of variation.

7

Q. And you want it to be replicable. I think you

8 already described that?

9

A. Yes.

10

Q. Am I correct the psychologists tend to use more in

11 the way of convenience samples as opposed to the large

12 representative studies?

13

A. Yes, I think psychologists are likely to use

14 convenience samples.

15

Q. They are likely to use not just -- not just in child

16 outcomes, but across the board they are likely to use

17 smaller sample sizes?

18

A. Compared to larger samples -- comparing them with.

19

Q. I'm saying larger samples comparing to the large

20 studies, the Rosenfeld type studies and Allen type

21 studies?

22

A. Yes. They are more likely to use small convenience

23 samples than sociology, demography, many family studies.

24

Q. I think we heard one expert actually say the

25 sociologists are concerned with numbers and broad based,

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1 you know, statistics and psychologists are kind of more

2 focusing more deeply into the family. Would that be

3 accurate?

4

A. I think in many cases there is probably some truth

5 to that.

6

Q. In the subset population of children of gay and

7 lesbian parents, we have had another euphemism, the needle

8 in a haystack population, that there may be some

9 difficulty in getting an adequate sample size. Is that

10 your understanding of this population in terms of how hard

11 it is to get a sample size?

12

A. I have not done primary research in this area as you

13 are aware. But it appears to be difficult.

14

Q. During your deposition in this case you talked about

15 the unique problems of studying a group that is -- has

16 suffered discrimination or stigmatization. You should

17 assume for purposes of this question we already have

18 evidence in the record in this case that gay and lesbian

19 persons in this country have been the target of

20 discrimination, disparate treatment, stigmatization,

21 abuse, harassment, and that they have been a disfavored

22 minority for many decades. Would this fact contribute to

23 the difficulty in finding subjects willing to participate

24 in the research studies?

25

A. I believe that it almost certainly would. And to

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1 expound a little bit, number one, it would be difficult to

2 get a group at all, a sample at all. A second difficulty

3 would be that when you are dealing with the sampling of

4 stigmatized groups of any kind, that if you are employing

5 convenience methods you would be most likely to get the

6 most privileged cross-section of that group, the group

7 that would be least fearful of stigmatization, the

8 relative privilege. I think in the deposition we

9 discussed a comparison with Muslims, for example.

10

Q. All right. So let's talk about that. You have a

11 focal area or you have studied Muslim families and you

12 talked about the fact that they were stigmatized and that

13 you have done research, and are there problems there with

14 getting sample size, adequate sample size?

15

A. Yes. And certainly I empathize with gay and lesbian

16 folks that are interested in researching gay and lesbian

17 families in terms of sample struggles. Again, that has

18 been my finding, that those most willing to speak to me or

19 speak out, period, tended to be those that are most

20 privileged. On one hand, that is an advantage because you

21 tend to get inside from those who are articulate and well

22 educated. The limitation as I discussed earlier today is

23 that it gives you virtually no power of generalized

24 ability to apply the findings of your study to a broader

25 population.

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1

Q. I think that you talked about this in deposition,

2 that with these convenience samples, hard to locate a

3 group of sufficient samples, they are doing the best they

4 can do, researchers are, to get a population?

5

A. That, I don't know. That I can't speak to.

6

Q. Okay. You talked about a researcher, I believe,

7 it's professor of family sociology and demography named

8 Paul Amato?

9

A. Yes.

10

Q. You have great respect for him?

11

A. I do.

12

Q. And actually he was one of the people that you

13 sought out to consult with when you were -- at what point

14 in your drafting of your report? Was it after it was done

15 or were you asking him for ideas for the structure of it

16 or was it both?

17

A. Paul Amato, actually, I did not seek out. He was, I

18 assume asked by the journal editor at some point to review

19 my work, either as an official peer reviewer or after it

20 was already accepted. I am not sure about that, which one

21 it is. But I didn't seek him out. But he was asked and

22 kindly obliged.

23

Q. Are these normally -- when peer reviewers are

24 reviewing your research, is it normally done blind or am I

25 wrong about that?

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1

A. Yes. Almost always it's done blind.

2

Q. When did you know that he was one of your reviewers?

3

A. Not until I got his -- well, I don't know. I

4 certainly knew once I got his article that incorporated

5 recommendations and feedback on mine. If I knew before

6 then, it wasn't very long before.

7

Q. So you're not saying that you published it and then

8 he read your article and then he provided feedback? There

9 was something before that, wasn't there?

10

A. Right. The article was accepted in March and

11 published in July.

12

Q. Of which year?

13

A. 2012. And so there was something of a lag time

14 between the acceptance and the formal publication.

15

Q. I see?

16

A. And it was either shortly before then or shortly

17 after then that Amato read my piece.

18

Q. We'll come back to him.

19

A. Okay.

20

Q. You indicated that you reviewed the expert witness

21 report of David Brodzinsky. He is the expert psychologist

22 in this case. His report included his background and his

23 qualifications. And I would like to ask you some

24 questions about Doctor Brodzinsky.

25

You should assume that we already heard

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1 testimony from -- that Doctor Brodzinsky conducted

2 research on this population, same sex parents, adoptive

3 parents, the children of same sex parents, that he has

4 done his own research. We have heard testimony that he

5 counseled over a thousand families, at least a hundred gay

6 and lesbian families. We have heard testimony that he

7 authored many articles on adoption by gay and lesbian

8 couples. He has published a book on this topic. He has

9 been qualified as an expert in child development,

10 parenting by gay and lesbian persons, and he has testified

11 in court as to these topics. He's a Ph.D. psychologist.

12

Based upon all of that, not only on your review

13 of the report, but based on what I just read in terms his

14 testimony, would you consider him an expert in the field

15 of children raised by same sex parents?

16

MR. POTCHEN: Objection, your Honor. Calls

17 for a legal conclusion.

18

THE COURT: I don't know if it calls for a

19 legal conclusion or not. But it would be his opinion and

20 if he has an opinion and wants to express it, he may do

21 so.

22

THE WITNESS: Doctor Brodzinsky's Vitae was

23 very impressive to me. His experience spans a few decades

24 and he obviously has been very busy.

25

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1 BY MS. STANYAR:

2

Q. Would you agree with me as between yourself and

3 Doctor Brodzinsky, given his background and given his

4 credentials and experience, that his expertise in this

5 specific area of gay and lesbian parenting and child

6 outcomes for gay and lesbian children would exceed yours?

7

A. I am sure that there are many things that Doctor

8 Brodzinsky knows that I do not. In terms of exceeding --

9 my focused testimony in the trial related to reading

10 through very carefully the 59 studies cited by the APA.

11 How carefully Doctor Brodzinsky has read those 59 studies

12 and reviewed them, I don't know.

13

Q. Fair enough. Are you familiar with the work of

14 Doctor Michael lamb?

15

A. I am.

16

Q. And would you recognize him as a pre-eminent scholar

17 and researcher in the area of gay and lesbian parenting

18 and child outcomes?

19

A. Yes.

20

Q. Would you recognize him as a leading expert in the

21 field?

22

A. Yes, I would.

23

Q. All right. Of your work that has been published in

24 peer review journals, do you consider all of that work

25 still to be of high quality social science looking back?

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1

A. Looking back. And I think we talked about it a

2 little bit in my deposition, but looking back at early

3 work, my first published studies came out when I was an

4 undergraduate doing the best that I could at that point in

5 time. I am not embarrassed by any of it. I think it's

6 still of publication quality. The peer reviewed

7 materials, I wouldn't scratch any of it off my Vitae. But

8 I would hope that like a discipline, that I progressed a

9 little bit across the past 20, 25 years.

10

Q. Does any of your research meet the gold standard

11 level that you defined as you defined it earlier today?

12

A. No.

13

Q. Is there a category of research -- I am not just

14 talking about your own -- but, in general, which is not

15 gold standard as you defined it, but which contributes to

16 the development of the social sciences and is published in

17 respected journals by respected scholars?

18

A. I sure hope so or I wasted an awful lot of my time.

19 Yes, there is. And we hope for incremental modest change

20 along the way as academics and scholars and scientists. I

21 certainly do not intend to say that gold standard research

22 is the only research that matters. Just to say that

23 generalizable representative research has to meet certain

24 standards from -- as dictated by science to be generalized

25 to broader populations.

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1

Q. I understand that. But these other studies, studies

2 that don't meet all of the criteria and certainly they

3 contribute to the research broadly.

4

A. Yes, the better ones do, certainly.

5

Q. In your report you indicate that you published over

6 60 studies and chapters relating to families. Is that

7 right?

8

A. Yes.

9

Q. How many of those chapters or articles specifically

10 involved comparing child adjustment outcomes of gay and

11 lesbian parents to other populations, other structures?

12

A. The only published work that I have done on lesbian

13 and gay parents is before us in terms of the exhibits, the

14 2012 pieces, my review piece of the 59 studies and the

15 rejoinder that we revisited just a little while ago.

16

Q. The rejoinder relates back to the 2012 article?

17

A. It does. It's not necessarily a stand alone piece.

18

Q. Both of which relate to your assessment of the

19 American Psychological Association's brief which we will

20 talk about?

21

A. Yes.

22

Q. Do you think that both family processes -- family

23 processes and family structures are important to child

24 outcomes?

25

A. Yes. Very.

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1

Q. In the empirical work that you reviewed, does family

2 structure correlate to good child outcomes or does family

3 structure cause good child outcomes?

4

A. Almost all social science that I am aware of is not

5 causal. It's very difficult to do truly causal work in

6 the social realm. So most of it is correlational, to

7 respond to the question.

8

Q. And can you define correlational for us?

9

A. Correlational means that two different phenomenon

10 are highly correlated -- well, either they relate to one

11 another -- for example, we know that poverty correlates

12 with lowered educational outcomes. However, it gets messy

13 when we start trying to draw arrows and determine which

14 came first, so to speak.

15

Q. All right. Let me ask you some questions about your

16 expert witness report. If you could turn to page two of

17 your report. You discuss in your report and here today in

18 your testimony under the introduction section, you say

19 that, quote, over the past few decades, differences have

20 been observed between outcomes of children in marriage

21 based in tact families compared with children in

22 cohabitating, divorced, step, and single parent families.

23 That appears in your report, correct?

24

A. Yes.

25

Q. All right. As you discuss that on page two, are you

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1 including in that paragraph, are you merging biological

2 and adoptive family together as you start to talk about

3 the research in that area?

4

A. That is an area where the water is muddied in social

5 science. My definition wouldn't be as important as the

6 definition operationalized in studies that have been done.

7 In short, some research that has been done has included

8 adoptive families under the heading of biological with no

9 distinguishing marker. Others partial out adoptive

10 families. So it's a little bit of both and it's not

11 always easy to tell.

12

Q. Okay. In the following paragraph we are going to

13 talk about this in a minute, when you talk about societal

14 level concerns, you have a number of topics there and it

15 pertains to footnoted material from 3 through 11?

16

A. Yes.

17

Q. That is a lot of studies, right?

18

A. Yes.

19

Q. A lot of research and a lot of studies that are

20 footnoted there, right?

21

A. Yes, it is.

22

Q. In some of that research, have they merged -- that

23 you are relying on for that paragraph -- have they merged

24 the two groups, biological with adopted?

25

A. Yes. I believe one example that comes to mind is

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1 Johnson et al, 1996, under number six which is

2 unfortunate. I think it would be -- I prefer precision in

3 scholarship as opposed to more vague statements. I would

4 have liked to have seen biological families considered

5 separately from adoptive families. I think they have

6 different issues. But even in studies where adoptive

7 families are linked under the heading of biological

8 families we are talking about 1 to 2 percent, perhaps just

9 slightly more in some studies of the US population. So it

10 makes the water a little bit more muddy but it is very

11 unlikely that it would completely change the outcome of

12 the overall findings.

13

Q. All right. So let's go back to that section. When

14 you are talking about differences that have been picked up

15 in the research there in that section, are you talking

16 about in one category, at page two, married with a small

17 percentage of adoptive in the one category, and you are

18 comparing it with cohabiting, divorced, step, and single

19 families. Those the comparators when you are talking

20 about this section right here?

21

A. Yes. Those are the primary ones involved.

22

Q. Okay. When you are at page two talking about that

23 section and societal level concerns, that research, there

24 isn't a separate category even in that area for same sex

25 couples?

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1

A. That is true.

2

Q. So let's look at the last paragraph on that page,

3 and these are the societal level concerns and those were

4 raised up on the screen. They would be health and

5 mortality and suicide risks in Category A, drug and

6 alcohol abuse in Category B, criminality and incarceration

7 in C, intergenerational poverty in subsection D, education

8 and/or labor force contribution in E, early sexual

9 activity in early child bearing in Subsection F, and, G,

10 divorce rates as adults?

11

A. Yes.

12

Q. Again, when you are talking about each of these

13 categories of societal level concerns, page two and page

14 three, research footnotes three to ten, you are still not

15 talking about specifically same sex parents, am I right?

16

A. Correct.

17

Q. And none of that research separates them out, same

18 sex parents and these other groups?

19

A. None that I'm referring to here, no.

20

Q. I would like to go into a little detail as to your

21 definition of married, in tact, mother, father, family.

22 So, married means currently married and it's a first

23 marriage for both?

24

A. Yes.

25

Q. What does in tact mean?

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1

A. In tact would refer to never divorced, either

2 partner.

3

Q. And there has to be a mother and father in the

4 family?

5

A. Yes.

6

Q. They have to be under the same roof?

7

A. Yes, typically.

8

Q. And again under this research, it's not necessarily

9 biological?

10

A. Not purely. We noted the adoption exception.

11

Q. Okay. So when I use the term during my examination

12 of you, your ideal family, this is what I am referring

13 to -- mother, father, in tact, all those things we just

14 talked about?

15

A. Okay.

16

Q. Okay. With respect to what you call hard outcomes,

17 and one of the good examples is high school graduation, is

18 one of the reason it's difficult to assign causation as

19 opposed to correlation is the fact that a lot can happen

20 to a child between birth and high school graduation?

21

A. Yes. Those confounding factors would certainly come

22 into play.

23

Q. Those would be, child's heterosexual parents can

24 divorce?

25

A. Yes.

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1

Q. Child can live in dire circumstances, poverty, crime

2 ridden neighborhood?

3

A. Yes.

4

Q. Child, a later adopted child can have a series of

5 prior foster care placements?

6

A. Yes.

7

Q. A child may have been born to a drug addicted birth

8 mother. That can affect?

9

A. Yes.

10

Q. All right. In 2005, you already talked about this,

11 the American Psychological Association issued its official

12 report on lesbian and gay parenting. And this report

13 includes the assertion that you quoted earlier, not a

14 single study, but basically the research fails to show

15 that children of lesbian or gay parents to be

16 disadvantaged in any significant respect relative to

17 children of heterosexual parents?

18

A. Correct.

19

Q. Okay. So this -- not to parse words -- but they say

20 there is not a single study but they also use this

21 qualifier, in any significant respect. So there is a

22 little wiggle room there in terms of, any significant

23 respect?

24

A. I follow you.

25

Q. Okay. And that statement sometimes referred to as

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1 the, quote, No Difference Conclusion?

2

A. Yes.

3

Q. And the year 2012 article, in essence, challenged

4 the APA's No Difference Conclusion?

5

A. Yes.

6

Q. Am I correct, and I think we talked about this at

7 the deposition, that you sought unofficial feedback from

8 about a dozen people in your effort to strengthen the

9 article to get constructive criticism?

10

A. Yes.

11

Q. One moment.

12

MS. STANYAR: May we approach, judge?

13

THE COURT: Come on. Do you want it on the

14 record?

15

MR. POTCHEN: No.

16

(Side bar conference held off the

17

record.)

18

THE COURT: For the record, because we have

19 people listening, there was a technical problem. And the

20 parties resolved it between themselves. So I didn't have

21 to make a decision.

22 BY MS. STANYAR:

23

Q. So when you referred to that, the unofficial

24 feedback from about a dozen people in your effort to

25 strengthen the article -- you may have already answered

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1 that -- when did you seek that feedback?

2

A. It was over the course of months beginning some time

3 in 2010 and concluding probably sometime in early,

4 probably late, mid to late 2011.

5

Q. All right. Was Brad Wilcox one of those people?

6

A. Yes.

7

Q. Was he the main author of Marriage Matters?

8

A. He was. He was the first author.

9

Q. Okay. All right. You already talked about the fact

10 that you wrote a rejoinder that was published in Social

11 Science Research. That would be the same -- that was same

12 journal that published the original article?

13

A. Yes, correct.

14

Q. All right. And that's -- it was a rejoinder to the

15 responses of Amato, Eggebeen and Osborne?

16

MR. POTCHEN: Carol, do you have a copy?

17

MS. STANYAR: I just have mine.

18

MR. POTCHEN: I have that.

19 BY MS. STANYAR:

20

Q. All right. And in the rejoinder I direct your

21 attention to the last paragraph of page 784 which is just

22 the first page. It would be the second sentence. Quote,

23 in seeking criticism for more than a dozen diverse

24 researchers on my article, I was repeatedly humbled and a

25 bit chagrined by holes and weaknesses they identified

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1 because their criticisms were valid and required more work

2 and a wider scope of vision. You wrote that?

3

A. Yes.

4

Q. Here is my question. Did you take all their

5 criticism or as to some criticism did you say, I'm going

6 to do it this way and just keep it as it is?

7

A. I took some. I discarded some. In the formal

8 review process, I typically have to address just about all

9 the criticism to get something published. In this case I

10 took some and left some.

11

Q. A couple sentences -- a couple sentences down, you

12 say, quote, even so, there are likely flaws and blind

13 spots that remain?

14

A. Yes.

15

Q. All right. Did Paul Amato raise a criticism about

16 your proposed sample size?

17

A. He did. He said that my recommendation for large

18 nationally representative samples was -- I am trying to

19 remember his exact words -- but I think it was optimistic,

20 saying that that would be difficult to pull off.

21

Q. Would it be difficult to assemble. In terms of pull

22 off, you mean actually difficult to come up with that kind

23 of sample size?

24

A. I assume that's what Doctor Amato meant.

25

Q. All right. Let me just -- I think you said at the

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1 deposition, Amato said it would be very difficult to

2 assemble that kind of sample at least any time in the near

3 future. I asked added a caveat that it might be more

4 realistic in the short term to shoot for a weighted

5 probability sample as opposed to a truly random

6 representative, one large one?

7

A. Yes.

8

Q. All right. So basically he is saying it's

9 unrealistic to come up with a big study of this size?

10

A. He is saying it would be difficult, yes, especially

11 now.

12

Q. This is the needle in the haystack problem. Is it

13 associated with the needle in the haystack problem?

14

A. Perhaps loosely. But the larger your sample, the

15 more likely you are to find differences if differences do,

16 in fact, exist.

17

Q. Did you, other than consulting with them, did you

18 ask any other social scientists to co-author your 2012

19 paper with you?

20

A. Of the dozen or so that I mentioned here informally,

21 the area where I was probably weakest in terms of relative

22 strength would be portion seven of the article.

23

Q. Which is no longer in this report?

24

A. Correct. It's not in the expert report. It deals

25 with --

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1

Q. You don't need to tell me what it deals with. Let

2 me ask a more pointed question. You already said that

3 your strength is qualitative?

4

A. Uh-huh.

5

Q. And would the area be more in the area of

6 statistical expertise? That's what you were looking for

7 in terms of a co-author?

8

A. Yes. In terms of informal invitations because it

9 was an area of relative weakness for me. Saying that I do

10 have a Ph.D. in family studies and took my share of the

11 miserable statistics classes that are required.

12

Q. I heard about it yesterday so I feel your pain.

13

A. I won't drag anyone through that. If you hate me for

14 anything else, love me for not revisiting statistics.

15 With that said, that was a portion of the article I had to

16 work very hard on. And to a methodologist or two that has

17 a specialty, and I don't remember who I invited

18 informally, but I said, by the way, if you want to jump on

19 and help me out with the method, you are more than welcome

20 to. Everyone that I informally invited, it was a short

21 list, politely declined.

22

Q. You mentioned Michael Rosenfeld?

23

A. I did.

24

Q. Okay. And you said he produced one of the two --

25 one of the few gold standard studies as you have defined

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1 that term?

2

A. Yes. I believe in my deposition the exact language

3 that I used was, if there has been a gold standard study

4 produced in this area, it would be Michael Rosenfeld's

5 2010 study, and by extension, the Price, Allen, and

6 Pakaluk 2012 study that uses a similar data set.

7

Q. That uses his data set or uses a different data set?

8

A. Uses the same data set.

9

Q. So it is the extension of the Rosenfeld --

10

A. It's an extension -- it's actually larger in size by

11 a little more than 80 percent because they include

12 families that Rosenfeld eliminated.

13

Q. He had them in a data set, right? And then he took

14 them out and there was a little bit of them taking out and

15 putting back, right?

16

A. Correct.

17

Q. That's all I understood from yesterday, by the way.

18

A. That's right.

19

Q. If you could have gotten Michael Rosenfeld as the

20 co-author of your 2012 article to add that statistical

21 expertise, would you have welcomed him?

22

A. I don't know -- I don't know Michael personally or

23 professionally well enough. But he has published

24 scholarship in high quality outlets. I respect him for

25 that. His feedback certainly would have been helpful.

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1

Q. All right. Your article in your testimony today

2 focuses on the studies leading up to and stopping at 2005

3 in terms of child outcome studies, correct?

4

A. Correct. In terms of the child outcome studies.

5

Q. For the article, was it your decision to focus on

6 the studies that were included in the APA report up to

7 2005 and to stop there? Was that your decision?

8

A. It was. I had, by 2012, when I published the

9 article, read several studies that were more recent. But

10 my focus was on the APA brief itself and it didn't seem

11 fair for me to critique studies that had come out after it

12 had been published.

13

Q. Was this identified as a limitation or a flaw by

14 anybody that had was reviewing your paper?

15

A. Yes. It was identified by one or two folks who said

16 it would be nice if you continued on and included more

17 recent work after 2005.

18

Q. That would be stronger if it included data up to the

19 present?

20

A. Yes.

21

Q. And did you consider that a valid suggestion? Not

22 doable, but a valid suggestion?

23

A. I think it is a valid suggestion if you take the

24 focus on the APA brief out of the equation, if I were just

25 writing a broad review. However, again, remembering that

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1 my focus was the specific parameters of the APA brief, I

2 think it was the right decision to disregard that.

3

Q. Let me ask you, but was part of your decision to

4 just focus on the studies up to 2005? Was it because you

5 didn't have enough time?

6

A. Yes. Time and then probably energy as well.

7

Q. And you had no funding?

8

A. No funding.

9

Q. All right.

10

A. No money.

11

Q. We may have already covered this, but the APA report

12 is now a reference that is routinely cited as

13 authoritative in same sex marriages, is that true?

14

A. It is. I believe I mentioned earlier today it's

15 difficult to find a case that does not feature

16 prominently.

17

Q. Okay. With the qualifier that I am asking you about

18 opinions, not empirical research, but opinions within the

19 social science community, is it fair to say there is a

20 consensus opinion in the field of psychology that is

21 consistent with the findings of the APA report from 2005

22 that there is no significant difference in outcomes of

23 children for same sex parents?

24

A. In terms of consensus opinion, 157 to zero is tough

25 to argue with. In terms of research that I cited from

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1 others, earlier today I noted a ratio liberal to

2 conservative on social issues including same sex marriage

3 at nearly 23 to one. That is awfully close to consensus

4 in anyone's book, I think.

5

Q. All right. So in terms of the broader social

6 science community, beyond psychology, would you agree that

7 in the broader social science community, that the claim

8 that there is a consensus is accurate, and whether or not

9 it's settled as an opinion, and the answer would be yes to

10 that, too?

11

A. I would agree with that. Again, I don't have hard

12 data like I did this morning with psychologists for the

13 fields of sociology or family studies. But I think it's a

14 reasonable assertion and assumption that we would see

15 similar, perhaps not quite as high, but similar parallels

16 in those two disciplines.

17

Q. All right. You talked about this idea this morning

18 and you were talking about the research of Enbar (ph) and

19 Lammers from 2012. You talked about this kind of the idea

20 of the ratio and that the ratio back in the 1960's was

21 more like three to one. Would that be liberal to

22 conservative?

23

A. Correct.

24

Q. And the ratio has now evolved. So the ratio is far

25 bigger in terms of liberal to conservative?

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1

A. Yes.

2

Q. Would the same be true again of the broader social

3 science community?

4

A. I don't have data like the Enbar (ph) and Lammers to

5 refer to again. But I suspect that the trends are similar

6 in sociology and family studies. If not in degree, at

7 least in direction.

8

Q. All right. So considering this idea of this growing

9 ratio, if we can just look at it so I can understand it in

10 another context. There was a time when even scientists

11 agreed that world was flat. Would you agree with me?

12

A. Yes.

13

Q. It would be a hundred to one the other way, I guess.

14 I don't know what way that would be, whether liberal or

15 conservative. Would that be opinion or would that be

16 empirical research or would it be both in that example?

17

A. I'm not sure how to respond. Opinion is sometimes

18 guised as empirical research and that is a foundational

19 concern for me. Hence, my effort to be meticulous to the

20 point that it bored myself putting together tables and on

21 so forth.

22

Q. So, now, obviously we know the world isn't flat and

23 the scientists -- both the opinion and the empirical

24 research is merged in that sense that we know that the

25 world is not flat, right?

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1

A. True.

2

Q. I mean, let's try another example to explore the

3 concept. Now, again you focus on another concept and

4 there would be two explanations for a ratio. And the

5 first explanation is that, as I understand it, that there

6 is a liberal conservative bias. I think that you talked

7 about that being one explanation?

8

A. Yes.

9

Q. And the second explanation would be that somebody is

10 right. Did I hear you right on that one?

11

A. I think that's close enough for our purposes here,

12 that essentially this is either opinion based ultimately

13 at the core or empirically research based and driven.

14

Q. And there is a right answer or a wrong answer?

15

A. Yes. There are probably other hypotheses but I

16 think those are the two that concern us most here today.

17

Q. So let's consider this idea of this ratio that would

18 be evolving over time in another analogous context. In

19 the 1600's at the time of the Salem witch trials you would

20 expect even among scientists that there would be a

21 percentage who believed as scientists, empirically or as

22 opinions, that there were witches and these witches were

23 guilty of these things?

24

A. Okay.

25

Q. And would you expect -- and can you tell us as to

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1 whether or not that ratio obviously changed over time?

2

A. I would assume that it did.

3

Q. Are there witches?

4

A. There are at my house on Halloween usually.

5

Q. But the explanation in that context doesn't have

6 anything to do with liberal or conservative at least at

7 this point. We know empirically that there aren't witches

8 the way they were described in the Salem witch trials?

9

A. I follow you.

10

Q. Okay. And I think I follow you, too, now. It's my

11 understanding in your testimony is that your primary

12 conclusion here today is that these are big social science

13 policy issues. They are important questions. We should

14 await the results of high quality social science research

15 as you have defined it. Does that fairly describe your

16 opinion?

17

A. I would say that the first part of the opinion you

18 expressed, that these are very important social issues, I

19 completely agree with. In terms of waiting, I don't know

20 about that. But when we make a science based truth claim,

21 as a discipline, as a society, I think we are doing

22 something that is very, very bold. And in some ways my

23 article, my research brief, as strange as it sounds in

24 this context in this courtroom, is not fundamentally for

25 me about same sex marriage.

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1

Q. I understand that.

2

A. It is about the importance of validity or of truth

3 and to holding ourselves to a certain standard. I believe

4 that truth is expensive and that we have not paid the

5 required price in this particular domain yet. Twenty

6 years from now we will be discussing different issues in

7 courtrooms. I don't pretend to know what those are. But

8 I hope that if social science weighs in, that it will do

9 so with the most valid scientific objective research that

10 it can to inform our social future.

11

In the meantime, I don't know that we can stand

12 by. But if we are working off of social scientists'

13 opinions, even consensus opinions, which I believe we may

14 well be doing, if we take such statements as the APA brief

15 at face value and they are based on opinion more than

16 empirical research, we are, in affect, making social

17 science and social scientists the de facto electoral

18 college.

19

Q. I understand that. Let me ask you the next

20 question. I think you are getting a little far afield.

21

THE COURT: Have you completed the answer?

22 Let him just complete this part of his answer and we will

23 move on.

24

A. To me, that becomes a very fundamental issue that as

25 big as this case is, may well be bigger than this case in

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1 terms of longevity and how it lasts. And as a result, I

2 think that today and in this courtroom we certainly have a

3 responsibility to measure twice or measure three times or

4 four before we cut once, to use the cut up analogy.

5

Q. And we are having this discussion and we have been

6 having this discussion for two weeks now, and it is a

7 serious discussion. And I think everybody in this room

8 takes it very seriously. So point taken.

9

Has the Government ever funded a study which

10 would meet your gold standard, longitudinal probability,

11 all those criterion, studying child outcomes for same sex

12 parents?

13

A. No, not that I am aware of.

14

Q. Do you know of any large Government funded study in

15 progress meeting your gold standard that would be studying

16 those issues?

17

A. No.

18

Q. Do you know of any study in progress funded by a

19 large university studying this issue under your gold

20 standard?

21

A. No.

22

Q. What is the likelihood that either the Government,

23 as a scientist and having reviewed all of the research,

24 what is the likelihood that either the Government or a

25 large scale university will fund such a study any time

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1 soon?

2

MR. POTCHEN: I will object, your Honor. It

3 calls for speculation.

4

THE COURT: Yes. He wouldn't know.

5 BY MS. STANYAR:

6

Q. Are you familiar with the author David Popenoe in

7 his book, Life Without Father?

8

A. Yes.

9

Q. And actually he is one of the co-authors on marriage

10 matters?

11

A. Yes, I believe so.

12

Q. Have you read his book, Life Without father, in its

13 entirety?

14

A. I have. It's been some time, but I have.

15

Q. And are you familiar with David Popenoe's argument

16 that gender differentiated parenting is essential for good

17 child outcomes?

18

A. Yes.

19

Q. Do you agree with that argument?

20

A. I have seen research that argues both directions.

21 And I would feel uncomfortable taking a data based stance

22 either way.

23

Q. And on the other side of that debate is someone you

24 respect, someone who is highly regarded across the social

25 science world, Michael Lamb?

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1

A. Yes.

2

Q. David Popenoe believes in the gender differentiated

3 parenting model. David Lamb, I'm sorry, Michael Lamb does

4 not?

5

A. I think that is an accurate assessment.

6

Q. All right. And Popenoe's view is that there are

7 parenting activities that men can do that women cannot do

8 or are very unlikely to do and there are parenting

9 activities that women can do that men are unlikely to do.

10 Am I characterizing Popenoe's theory?

11

MR. POTCHEN: Your Honor, this goes beyond

12 the scope of his report and the paper we have been

13 discussing.

14

THE COURT: I will give her a little leeway

15 since it's cross-examination. You may proceed.

16 BY MS. STANYAR:

17

Q. That is not a theory that you espouse?

18

A. It's not a theory that I espouse, but it's not

19 necessarily a theory I reject all together either.

20

Q. But you don't accept it?

21

A. Not fully.

22

Q. So am I correct that social science research so far

23 has not demonstrated to your satisfaction his theory of

24 gender differentiated parenting so much so that you would

25 adopt it and make it part of your understandings?

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1

A. Going back to Table B in my article and report and

2 those gold standard studies, as well as the Marriage

3 Matters book we looked at in some length, there are large

4 representative samples, many of them that indicate

5 significant differences in child outcomes across in tact

6 step, divorced, single families as we talked about

7 earlier. That much we know. Why those differences exist

8 remains a point of theoretical argument to some degree.

9 And that's why I am reluctant, trying to be a good

10 objective scientist, to reject or fully endorse that

11 theory. It may be valid.

12

Q. I think that you talked about in your deposition

13 that the messy part of that question is as to whether or

14 not the advantages of child outcomes that are attributed

15 by David Popenoe and people who agree with him, are they

16 attributed to having gender differentiated parents or is

17 it attributable to something else?

18

A. Yes.

19

Q. That's the messy part?

20

A. It's part of the mess.

21

Q. And one of the problems with that is if you are

22 comparing your ideal mother/father family with single

23 parents, the single parents -- the children are not going

24 to do as well, right?

25

A. That's what the data indicated.

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1

Q. In some of this research, the messy part of the

2 research is they are comparing the single moms with the

3 children -- they are comparing the children of the single

4 moms with the children of the ideal family?

5

A. Yes. But the differences also occur for

6 step-families, remarriage based families and cohabiting

7 couples as well.

8

Q. Well, the cohabiting families don't have the

9 advantage of marriage, right?

10

A. That's true.

11

Q. Okay. And you think that is a strong help to

12 families and to children?

13

A. I do. I cross those four or five subtypes of

14 families.

15

Q. And the step families, they are dealing with

16 additional problems of having an existing family and

17 bringing another adult into the picture and there is

18 problems associated with that, right?

19

A. True. There is some complexity that comes into the

20 picture.

21

Q. All right. You criticize --

22

THE COURT: Time for a break. I don't want

23 to overwork Larry. He is concentrating. We will just

24 take a short break. About ten or fifteen minutes.

25

(Recess from 2:50 p.m. until 3:10 p.m.)

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1

THE COURT CLERK: Thank you, very much. You

2 may be seated. Before we start, question. We were just

3 talking about this. When you refer to brief in relation to

4 the vote, what are you referring to? When you say -- you

5 said that you're responding to the brief.

6

THE WITNESS: Yes.

7

THE COURT: What brief?

8

THE WITNESS: I mean the 2005 APA brief on

9 lesbian and gay parenting.

10

THE COURT: That was submitted to the

11 association or to an outside --

12

THE WITNESS: That was presented by the

13 association to the rest of the academic world.

14

THE COURT: Okay. So it's not a legal brief.

15 It's a brief that was submitted to the Board and that was

16 the vote -- based upon that document, that was the vote

17 that when you -- that caused you to do what you have done?

18

THE WITNESS: I'm not sure what the vote was

19 on the initial brief.

20

THE COURT: But the final -- what has been

21 quoted here and lots of other places?

22

THE WITNESS: Yes.

23

THE COURT: It was based on that brief that

24 they finally came up with that as the conclusion and you

25 went back to the brief and realized that, I think, is that

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1 right?

2

THE WITNESS: Correct.

3

THE COURT: You're not talking about a legal

4 brief filed here or somewhere else?

5

THE WITNESS: No. I think I started out

6 talking about the 2005 American Psychological Association

7 brief on lesbian and gay parenting. And then I said 2005

8 APA brief. And then I abbreviated again to brief and I

9 don't think I can abbreviate it anymore.

10

THE COURT: We are on the same page with my

11 law clerks and interns and so forth. We had a discussion

12 concerning that, but we are on the same page.

13

THE WITNESS: Thank you.

14

THE COURT: All the lawyers are on the same

15 page.

16 BY MS. STANYAR:

17

Q. Let me ask a follow-up question to that. And

18 actually what it is, if you look at page three, it's the

19 lesbian and gay parents and their children summary of

20 research findings.

21

THE COURT: Yes. The law students think of

22 briefs only in the sense of underwear and legal briefs.

23 BY MS. STANYAR:

24

Q. And this is neither. You testified in answer to

25 Mr. Potchen's question, and actually you were criticizing

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1 the APA brief and report that we just described because it

2 relegated to a footnote what you considered to be

3 substantial research by an Australian researcher named

4 Sotirios Sarantakos?

5

A. Yes.

6

Q. Okay. And this is a significant portion of your

7 testimony and it's also a significant portion of your

8 report that you discuss Sarantakos from pages 16 to 19 of

9 your report?

10

A. Yes.

11

Q. Okay. So, first of all, I want to address, so we

12 are clear, there was a study in 1996 by Sarantakos,

13 correct?

14

A. Yes.

15

Q. And there was a book that kind of folded in the

16 research from 1996 but also involves expanded interviews

17 and research and study. It was a much -- a bigger book or

18 it was a book?

19

A. Yes, and a bigger sample.

20

Q. A bigger sample. All right. All right. As to --

21 specifically we are talking about the 1969 study is titled

22 Children In Three Contexts: Family, Education And Social

23 Development. That is the one we are talking about?

24

A. Yes.

25

Q. All right. As to the 1996 study, what was your

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1 understanding of the three groups he studied?

2

A. The three groups that he studied, one was children

3 of lesbian and gay parents. I believe 47 lesbian and 11

4 gay families. Fifty-eight cohabiting heterosexual couples

5 and 58 marriage based in tact families.

6

Q. So in that third group that you just mentioned that

7 is the equivalent your ideal family -- mother, father,

8 married, in tact household?

9

A. Yes. It appears to be from reading the article,

10 yes.

11

Q. Second group, heterosexuals, but just cohabitating?

12

A. Yes.

13

Q. He peeled off all of the group that wasn't married

14 for the heterosexuals, right?

15

A. It seems so.

16

Q. And the third group consists of couples or

17 homosexually parented children. Are they couples?

18

A. I believe they were couples.

19

Q. Okay. Am I correct that most of the children of the

20 same sex couples experienced parental divorce in the 1996

21 Sarantakos study?

22

A. Yes. I believe page 30 uses word, many. But we

23 visited that at length at the deposition and essentially I

24 think it's most. We can agree on that.

25

Q. All right. And part of that is because of the time

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1 period and the age of the children and if you kind of --

2 all of that lead you to the understanding that it's most

3 are from failed heterosexual relationships?

4

A. Yes.

5

Q. All right. From the information in his 1996 article

6 can you tell me whether or not any of the children from

7 the married group were subjected to divorce?

8

A. It appears the answer is no from what he tells us

9 there.

10

Q. Do you know whether or not Sarantakos ever did any

11 further investigation with respect to the 1996 study into

12 the same sex couples group to make any distinct category

13 for those who had not experienced divorce?

14

A. I don't remember reading anything in the 2000 book

15 that specifically addressed that, although it's possible.

16

Q. I think you answered this at the deposition, that

17 not to your knowledge?

18

A. Not to my knowledge.

19

Q. In the 1996 study did Sarantakos recognize this as a

20 flaw that one group, the same sex couple group, had

21 experienced divorce and the ideal family group had not?

22

A. I believe that he did.

23

Q. Okay. Let's go to page 29 of this report. I want

24 you to look at the paragraph under Family Structure. Is

25 anybody's sample marked?

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1

MR. POTCHEN: This is marked.

2 BY MS. STANYAR:

3

Q. Look under the section of Family Structure and go

4 almost to the bottom. It would be the last full sentence

5 under Family Structure. Are you with me? Children of

6 divorce?

7

A. Yes.

8

Q. Quote, children of divorce finally are thought to

9 demonstrate in higher proportions low performance and

10 misbehavior at school and to be suspended from school more

11 often than other children. And he cites a number of

12 different authors. Do you agree that is what that report

13 says?

14

A. Yes.

15

Q. He goes on to say, starting at the next paragraph,

16 this factor is found to have the strongest impact on child

17 behavior, referring to divorce. Children, as shown

18 elsewhere, children have experienced -- children who have

19 experienced parental divorce and have been through a

20 number of changes, paren, for example, cohabitation and

21 step-family, closed paren, are more likely to report

22 problems.

23

Continue on to page 20. Also to have been

24 involved in anti-social activities and delinquency and

25 more likely to become recidivists than children who

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1 experienced no radical changes in family history.

2

So he did recognize this as a flaw in his

3 research?

4

A. Yes.

5

Q. All right.

6

A. Or at least a limitation.

7

Q. A limitation. So Sarantakos is recognizing that

8 this is a failure to do an apples to apples comparison?

9

A. At some level, yes.

10

Q. You talked about instability. We are going to come

11 back to Sarantakos, but you talked about instability and

12 as it appears in some these various studies and

13 instability amongst the same sex couple population -- the

14 same sex couple population. You studied African-American

15 couples, have you not?

16

A. Yes.

17

Q. Both married couples, and you studied cohabitating

18 couples?

19

A. To a much lesser degree.

20

Q. But you have studied married couples?

21

A. Yes.

22

Q. You would agree with me that African-Americans have

23 elevated levels of breakup as compared to other groups?

24

A. They do.

25

Q. Couples who have lower educational levels, higher

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1 rates of breakup. There's a correlation there?

2

A. Yes.

3

Q. Couples who have lower incomes, there is also a

4 correlation to higher breakup rates?

5

A. Yes.

6

Q. Couples who have been married before, also higher

7 rates of breakup?

8

A. Yes.

9

Q. Second marriages?

10

A. Yes.

11

Q. Do you favor excluding any of them from the right to

12 marriage?

13

A. No.

14

Q. I would like now to turn to the 2000 book, okay?

15 Did you review the chapter where he is talking about the

16 children of same sex couples? That would be chapter

17 seven.

18

A. Yes.

19

Q. Okay. Would you degree with me that his 2000 book

20 is based upon interviews and other survey work that has

21 been conducted by Sarantakos himself?

22

A. Yes.

23

Q. Again, he folded it into the 1996 research?

24

A. Yes.

25

Q. He also does some review of literature as well?

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1

A. Yes.

2

Q. And you described that before as a very

3 comprehensive book?

4

A. It really is.

5

Q. Okay. There were 316 same sex couples, 153 gay men

6 couples, 153 lesbian couples?

7

A. Let's see. 153 gay men. 163 lesbian.

8

Q. Okay. All right. Do you know the time period --

9 are both of these comparative groups, are they studied

10 over time? They are not just a one shot cross-sectional,

11 but they are studied over time?

12

A. It's tough to tell. It looks to me as though some

13 of it is longitudinal and some of it is cross-sectional.

14

Q. Okay. Some of the research for the same sex couples

15 dates back to the 1980s. Do you think that's true?

16

A. Yes.

17

Q. Would you agree with me that when he finished his

18 research for his 2000 books, Sarantakos, his own studies

19 of the families, his own review of the research,

20 Sarantakos also agreed it was an early iteration of the No

21 Difference Conclusion?

22

A. No, I wouldn't agree with that.

23

Q. All right. Let's explore that. Before we get to

24 that, if you look at page 15 of the book, I hope it's

25 there. The third paragraph under the sample starts, the

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1 main criterion?

2

A. Okay.

3

Q. Are you with me?

4

A. With you.

5

Q. Okay. He reports, the main criterion were selection

6 of homosexuality, a minimum of one year --

7

THE COURT: Slow down.

8 BY MS. STANYAR:

9

Q. The main criterion of selection were homosexuality,

10 a minimum of one year cohabitation -- this is for the same

11 sex persons, couples -- perception of themselves as a

12 couple and perception as a couple but their peers. So, do

13 you degree with me that in the 2000 book, this is how he

14 defined the same sex couples?

15

A. Yes.

16

Q. Okay. As a social scientist and expert in family

17 studies, would you describe a relationship that lasts for

18 one year as a stable relationship?

19

A. I would like to see more longevity than one year if

20 I were conducting the study.

21

Q. All right. If you had -- if it's one year, a person

22 could have multiple relationships, multiple same sex

23 relationships, right? And they would tally up?

24

A. Yes. And -- I'm sorry. Continue.

25

Q. So it's a pretty low bar in terms of characterizing

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1 a couple that has been together for one year as a stable

2 relationship?

3

A. I think that you could do better, yes.

4

Q. Would it be a more fair and more reliable

5 methodology, would it be an apt -- let's put it this

6 way -- would it be an apt comparison to compare an 18 year

7 old child with your ideal family to a child who is raised

8 from birth to 18 by in tact same sex couples?

9

A. It's an interesting question.

10

Q. First of all, is it an apt comparison? Not that

11 anything else is, but is this an apt comparison?

12

A. I think that it could be. But if we were doing

13 longitudinal research, say, from birth to 18 years, it

14 would give us a lot more sense of process and what went

15 on. For example, if one of those families is far more

16 stable, the other less stable than the other, and we were

17 only looking at those who still had in tact relationships

18 between their parents and their homes, we might be dealing

19 with something that researchers Campbell and Stanley refer

20 to as experimental mortality where there is bias expressed

21 and that one of the families is more likely to break up

22 and therefore wouldn't be in your study at 18 years old.

23 And so you might be looking at the cream of one group as

24 compared to the typical situation in another.

25

Q. All right. I understand that. Let's look at page

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1 121.

2

A. Okay.

3

Q. Under the topic, Are Gays And Lesbians Unfit As

4 Parents? Look at the second sentence. I believe during --

5 in this paragraph he's talking here about a review of the

6 research.

7

A. Okay.

8

Q. Quote, overall, it has been found that homosexuality

9 and parenthood are not incompatible. He's citing some

10 studies by Handstom (ph) and Foster. Then he goes on in

11 that same paragraph, quote, lesbian mothers are as good as

12 their heterosexual counterparts. This is his findings

13 based upon his review of the research. Am I right about

14 that?

15

A. To me it appears that this is a review of the

16 literature. He's reporting what other researchers have

17 reported. Whether or not he agrees or it's based on his

18 research, I would disagree. It's unclear to me.

19

Q. Well, he is citing the research.

20

A. He is.

21

Q. And he's doing a review of the research in this

22 little section here, just as you have done review of the;

23 research that was cited by the APA up to 2005. So he's

24 looking at this and you are looking at what you looked at?

25

A. True. But as a good objective researcher, you are

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1 implicitly obligated to share your -- to share conclusions

2 that other researchers have forwarded even if they may be

3 poor quality.

4

Q. I understand that. We will go on and see whether

5 this is his opinion or not. And that is a fair point.

6

A. Sure.

7

Q. Would it be fair to say that he finds, at least

8 based upon the literature, this is what the literature

9 said, that the literature would support a statement that

10 has been found that homosexuality and parenthood are not

11 incompatible? In other words, this looks like an early

12 iteration of what we would call the No Difference

13 Conclusion?

14

A. I would say that he does share that statement from

15 Hamstom and Foster, that it's been found that

16 homosexuality and parenthood are not incompatible

17 certainly. But I would not go as far as to say that that

18 equates with the No Difference Hypothesis necessarily.

19

Q. Okay. I'm going to ask you to look at pages 117 to

20 118. My question at the bottom of the page to you,

21 referring to Sarantakos, question, but he finds that the

22 literature would support a statement that it has been

23 found that homosexuality and parenthood are not

24 compatible? Your answer, true. You further answer, and

25 to me this looks like an early iteration of what we would

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1 call the No Difference Hypothesis that we talked about

2 earlier today. Was that my question to you and was that

3 your answer?

4

A. Yes. And, yes. Going back to the first paragraph,

5 I believe that you just asked me about Hamstam and Foster

6 on the overall statement. If we move further down into

7 that same first paragraph, this is a statement that says

8 lesbian mothers are as good as their heterosexual

9 counterparts from Kepki (ph) et al. That I would say is

10 similar, a reiteration of the No Difference Hypothesis.

11

Q. When I asked you whether he finds in the literature,

12 when I was talking about that paragraph, your answer was,

13 this looks like an early iteration of what we would call

14 the No Difference Hypothesis we talked about earlier

15 today?

16

A. Yes.

17

Q. That was your answer?

18

A. Yes. Referring at that point, to the latter portion

19 of the paragraph.

20

Q. Fair enough. Let's turn to page 129.

21

A. In the deposition transcript?

22

Q. I'm sorry. No. 129 of Sarantakos's book. And if

23 you go to that page and look under the Australian

24 children, that section, he writes, quote, the trend and

25 the findings listed above presents a convincing answer to

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1 the question about the development of children of gay and

2 lesbian parents. They support the conclusion that

3 children of gay and lesbian parents perform as well as, if

4 not better than, children of heterosexual parents. The

5 findings suggest that there is no reason for concern about

6 their, meaning the children, their well-being or about the

7 suitability of same sex unions as socialization agencies.

8

All right. Would you agree with me that here,

9 Sarantakos is describing a strong leaning in the research

10 of other authors in his review of the research that he has

11 reviewed that supports the No Difference Finding?

12

A. Yes, I would. Of course, remembering that the

13 preceding several paragraphs are a review of literature of

14 other authors and not necessarily his conclusions based on

15 his own primary research.

16

Q. I agree. It's his review of the literature.

17

A. Yes.

18

Q. Okay. Let's go to page 134 of Sarantakos. The

19 second paragraph on that page, second sentence, first

20 sentence. There are no final data on this topic. And

21 feel free to read the rest of it. Nevertheless, a

22 preliminary finding suggests that the majority of

23 homosexual parents described their relationship with their

24 children in very favorable terms? Overall there is no

25 evidence to suggest that homosexual parents are inferior

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1 or even different from heterosexual parents. Gay and

2 lesbian parents love their children and care for them as

3 much as heterosexual parents. That passage.

4

Now, is that -- I understand that your

5 preference would be for hard measures, all right? Like

6 high school graduation rates. Nevertheless, am I right

7 that this is Sarantakos talking about Sarantakos?

8

A. Yes, it is. However, if we move to the next

9 sentence he does say, nevertheless, there are some

10 fundamental characteristics in the parenting roles which

11 were mentioned in our discussions and which deserve our

12 attention. So, he is saying, in part -- he confirms what

13 we would call the No Difference Hypothesis. But on page

14 131 of this book he gives several examples that are

15 exceptions to that rule that aren't based on that primary

16 data.

17

Q. All right. I understand what you are referring to.

18 This is the bottom of page 131 to 132. He's talking about

19 different -- what you would consider societal concerns.

20 Correct?

21

A. Yes.

22

Q. Let me -- there is not a question yet. I will get

23 to the question. He talks about, you know, drug use,

24 drinking, all those things. He talks about deviant

25 behavior of children. But he goes on to say, this is an

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1 issue which is very difficult to prove in terms of the

2 linkage, like what causes what. This is at the top of

3 132. Quote, kids who get involved in deviant behavior may

4 do so because of personal, emotional, family or social

5 factors. Whether these factors relate to homosexuality,

6 problems with school, peer reaction, pre-divorce family

7 experience, divorce or post-divorce experience is

8 difficult to ascertain.

9

A. Yes.

10

Q. Right? So he is talking about there are some

11 differences in terms of these societal concerns but he

12 doesn't assign sexual orientation of parents as the cause.

13 Correct?

14

A. That's correct. It would be wrong to draw a causal

15 link, and yet, the point is that those differences did

16 exist.

17

Q. They appeared?

18

A. They did appear. And in many cases with hard, not

19 soft measures.

20

Q. When you co-authored Marriage Matters, you looked at

21 a lot of those hard measures, all of which were associated

22 with the inability or the unmarried married status of

23 parents?

24

A. Yes.

25

Q. All right. Let's go back to what Sarantakos

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1 describes as his methodology. Do you degree that one of

2 the pronounced strengths of Sarantakos was his

3 methodology, sometimes called triangulation?

4

A. Yes. That was one feature.

5

Q. Okay. So his book was not just based upon

6 interviews with same sex parties, right?

7

A. Correct.

8

Q. Okay. There is the, my kid is cute phenomenon so we

9 don't have to worry about that because he used a lot of

10 different things. He used teachers assessments. He used

11 report cards. He used different reports. He did use

12 interviews. He used interviews with the parents. He used

13 observations of the children. He used all of those

14 things, right?

15

A. At least with some of the samples he did. I think

16 he made a good faith effort to do high quality research.

17

Q. And certainly with respect to the hard measures

18 versus the soft measures, relationship quality, all of

19 those things fell into the category of processes that you

20 described, I think in response to Mr. Potchen's questions.

21 Researchers certainly in psychology have been assessing

22 parent/child relationship issues for many, many years,

23 decades and decades as to all children, have they not?

24

A. They have.

25

Q. There is an established manner in which these things

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1 are measured in psychology for children, right? This is

2 the bread and butter of what psychologists do?

3

A. It's what many child developmentalists do, yes.

4

Q. Including psychologists?

5

A. Yes.

6

Q. Do you think that psychologists are the social

7 science group that analyze child adjustment perhaps more

8 than anybody else? It's more of a core of what they do?

9

A. Yes. I think that that may be a fair

10 generalization.

11

Q. All right. We talked about Mark Regnerus. And are

12 you familiar with Mark Regnerus' NFSS study?

13

A. Yes.

14

Q. You didn't list his as one of the gold standard

15 research studies, did you?

16

A. My statement, I think, was that if there has been a

17 same sex parenting study that warrants gold standard

18 labels, it would be Rosenfeld and the Price, Allen and

19 Pakaluk. I probably reversed the names there, but the

20 2012 followup study they did.

21

Q. Okay. And would you agree with me that at least one

22 of the weaknesses that you would identify with Regnerus'

23 research methodology is that he identifies -- the

24 definition was that the child identified their parent as

25 having had a same sex relationship at some point as

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1 opposed to focusing in on whether the person's orientation

2 as gay or lesbian?

3

A. I think that that is the most frequent criticism of

4 the study. It's what we will call an operational

5 definition. And it's kind of the mirror image of my

6 criticism. For example, of saying single parent mothers

7 represent all heterosexual parents, you have the right as

8 a researcher I think to look at the way other researchers

9 operationalize their definitions and voice your opinion

10 about how you would have done or would like to do it

11 better. I don't think that that completely negates the

12 value of the studies, but it's a criticism.

13

Q. All right. And another criticism we have talked

14 about here in court that I want to know your reaction to

15 it, Paul Amato has indicated that most of the young adults

16 with gay or lesbian parents or parents that fit in the gay

17 father/lesbian mother category in the New Family Structure

18 Survey have also experienced divorce as children. He

19 says, consequently, it is unlikely that many of the

20 disadvantages reported by these offsprings were due to

21 marital disruption that preceded or coincided with the

22 time when their parents came out as gay or lesbian. In

23 other words, these disadvantages may be due to failed

24 heterosexual marriages of parents rather than the sexual

25 orientation of the parents.

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1

So that's Paul Amato's criticism of Regnerus.

2 Do you agree with it?

3

A. I think it's a valid criticism.

4

Q. All right.

5

A. Another way to say it that I would prefer would be

6 to say that it's a limitation, similar to the Sarantakos

7 study and several others.

8

Q. Would you agree that it resonates along with the

9 limitations of Sarantakos's first 1996 study that we

10 talked about earlier?

11

A. Yes.

12

Q. Have you ever used a longitudinal study yourself?

13

A. No, not as primary research. I told Jim hoping to

14 in the deposition, but I am not there yet.

15

Q. Does this situation fit your idea family, a family

16 in which two married parents adopted the child at or near

17 birth and therefore, have no genetic tie to the child?

18 Would that fit your definition of the idea family?

19

A. It could.

20

Q. What researchers have identified a biological

21 connection between parent and child as the cause of good

22 adjustment outcomes?

23

A. The research that I am familiar with would not be

24 strong enough to refer to as causal research. I am

25 familiar and I believe that Why Marriage Matters refers to

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1 some correlational material, but I don't know of any that

2 is causal.

3

Q. Do I understand you correctly that as to your

4 professional opinion, the research has not established

5 that children fare worse when raised by same sex parents

6 than when raised by biological parents?

7

A. I don't think we do know definitively an answer to

8 that question.

9

Q. Is it your opinion that until we prove that there

10 are equivalent outcomes for the two groups, that marriage

11 should be restricted to heterosexual couples?

12

A. I am not in favor of redefining marriage at present.

13

Q. Is it your opinion that until we prove that there

14 are equivalent outcomes, that second parent adoption

15 should not be permitted as to same sex couples?

16

A. I don't necessarily have an opinion on that issue

17 that is research based.

18

Q. I would like to turn to the expert report of Joseph

19 Price and ask you to look at paragraph eight and read

20 along with me. Based upon my own research and my

21 evaluation of published research in this field, I conclude

22 that children raised by same sex parents have noticeably

23 worse outcomes than children raised by both a father and a

24 mother. Do you agree with Doctor Price -- well, would you

25 say that if he's looking at the same research you are, the

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1 science at this point in history does not support that

2 conclusion?

3

A. Each of us have different thresholds for being

4 convinced of anything. That is part of my core arguments,

5 I believe. It looks like Doctor Price here refers to his

6 own research which I mentioned earlier is one of arguably

7 two gold standard studies.

8

Q. Let me interrupt. He's also referring to, my

9 evaluation of published research in this field. He is not

10 just referring to his own research.

11

A. Yes, that's true. He cites both. His own study

12 found 35 percent difference in progress through school

13 with the largest data set ever used, a million three

14 hundred ninety-seven thousand nine hundred forty-four.

15

Q. Let me do a followup to that. I think we have

16 established --

17

MR. POTCHEN: He didn't finish his answer.

18

THE COURT: Did you finish your answer?

19

A. The point being that that is by far the largest

20 sample that has been used. However, as I indicated

21 earlier today, that is an important finding. It's an

22 important outcome. But we are talking about progress

23 through school, just through eighth grade. We are not

24 talking about GPA. We are talking about a binary measure.

25 Did they pass? Did they fail? We are not talking about

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1 high school graduation, collegiate achievement. While I

2 think it's an important finding, for me personally, the

3 burden of proof in this domain requires multiple studies

4 and multiple domains. I identified eight earlier.

5

Q. All right. And we had testimony -- I want to make

6 sure we are all on the same page -- we had testimony that

7 what that -- his finding meant, progress through school,

8 that the difference would be between 1.00 and 1.35. So,

9 what he is talking about is in one point, even at the

10 biggest, we are talking about a 1.35 percent of the

11 failure to achieve the next grade on time. And I may be

12 mangling that, but is that your understanding of what it

13 is?

14

A. By this point in the day, I have to tell you I

15 wrestle with statistics even at my best. I am not

16 comfortable making assessments of the study on the whole.

17

Q. Fair enough. And but your opinion is that -- so am

18 I correct that your position is that you think that Doctor

19 Price's opinion is premature, that we haven't had enough

20 study yet?

21

A. Again, each of us have different thresholds and mine

22 tends to be higher, apparently, than Doctor Price's. It's

23 also higher than Michael Rosenfeld's and others

24 representing the plaintiff. I want to see generalizable

25 large scale high quality studies across domains, not just

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1 in one domain, but across domains.

2

Q. Fair enough. And as between yourself and Doctor

3 Price, your testimony would be more neutral. That you

4 wouldn't talk in these kinds of absolutes. Is that a fair

5 statement?

6

MR. POTCHEN: Objection. Calls for

7 speculation?

8

THE COURT: Sustained.

9 BY MS. STANYAR:

10

Q. Let me ask another question. Is it correct that as

11 between yourself and Doctor Price, your testimony would be

12 more neutral?

13

MR. POTCHEN: Objection, again, your Honor.

14

THE COURT: In his opinion. He can answer.

15

THE WITNESS:

16

A. Yes, I think it would be more neutral than Doctor

17 Price's. It would also be more careful and stubborn,

18 perhaps, than Rosenfeld's on the other side of the aisle.

19

Q. You reviewed the study -- have you reviewed the

20 study of Allen regarding the Canadian census?

21

A. Yes. It's been a little while.

22

Q. You're aware that the age of their subjects, of

23 Allen's subjects was between the ages of 17 and 22 upon

24 the time that they were studied? Am I right about that?

25

A. I guess that sounds right.

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1

Q. And then he measured back five years or the Canadian

2 census did for purposes of determining what the family

3 structure was for the preceding five years, is that

4 correct?

5

A. Yes. That sounds correct.

6

Q. Okay. So if we considered a 17 year old in the

7 study, Allen has information on his or her family

8 structure from the age 12 to 17 for a 17 year old but they

9 didn't really know anything about the family structure

10 from birth to age 12, is that correct?

11

A. I believe that is correct.

12

MR. POTCHEN: I object to any questions about

13 Allen. He has not testified.

14

MS. STANYAR: I'm not going to call him back.

15

THE COURT: I will give you a little leeway.

16

MR. POTCHEN: It's outside the scope of his

17 report as well, your Honor.

18

THE COURT: Now that's a good argument.

19

MS. STANYAR: That's a good argument.

20

THE COURT: That one works. That's for sure.

21

MR. POTCHEN: They are letting me know. I

22 got help here.

23

THE COURT: Throw them in there. That's what

24 they tell you to do in law school. Draft a complaint.

25 Throw everything in there.

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1 BY MS. STANYAR:

2

Q. We had, we explored the issue again of gender

3 differentiated role modeling in this case. I have some

4 followup questions to that. Do you ascribe to, as it

5 relates to marriage, that marriage has stabilizing

6 benefits that apply only to heterosexual couples? And

7 here is the context. That, in other words, that I think

8 the example is that men need to be tamed and that their

9 behavior needs modification and that a woman does that

10 when they marry?

11

MR. POTCHEN: Your Honor, I object. This is

12 outside the scope as well.

13

THE COURT: Yes. I'm not sure where you are

14 going with this.

15

MS. STANYAR: All right.

16 BY MS. STANYAR:

17

Q. All right.

18

A. I think my wife would agree, Carol.

19

THE COURT: I knew he wanted to answer

20 something.

21

MS. STANYAR: He had that smirk. I knew he

22 was going to say something.

23 BY MS. STANYAR:

24

Q. Let's talk about the drawbacks and limitations of

25 large probability studies. You should assume that for

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1 purposes of these questions that we have had testimony in

2 this case from Mark Regnerus that he paid $415,000 to a

3 survey firm that conducted the NFSS study. They drew from

4 a pool of originally from 15,000 people. That was the

5 original pool. They interviewed just under 3,000 and

6 they -- Mark Regnerus got a total of two children who were

7 actually raised by same sex couples.

8

All right. Let's say we wanted to come up with,

9 instead of two children, let's multiply that by a hundred,

10 that we wanted to come up with 200 children actually

11 raised by same sex parents using a format like that. So

12 if we multiplied all of those numbers by a hundred

13 including the 415,000 figure by a hundred, you are talking

14 about a price for the survey to get potentially, would be

15 in the millions. Might be forty-one million dollars, but

16 it would definitely be in the millions to do that kind of

17 study.

18

A. It would pricey.

19

MR. POTCHEN: I object, your Honor. This is

20 such a compound question.

21

THE COURT: Yes. I think the bottom line is,

22 to do that kind of study, it would be in the millions?

23

THE WITNESS: Yes.

24 BY MS. STANYAR:

25

Q. Is that likely to happen?

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1

MR. POTCHEN: Objection. Calls for

2 speculation.

3

THE COURT: Sustained.

4 BY MS. STANYAR:

5

Q. You have done research on African-American

6 families -- different question than before. Are you aware

7 of research in terms of how well their children fare

8 within those families? Child outcomes?

9

A. In a general sense, the trends tend to follow those

10 of the nation broadly as outlined in the Why Marriage

11 Matters that you addressed and that we talked over

12 earlier. The children do better.

13

Q. Excuse me. Children in African-American families do

14 better?

15

A. Yes. In marriage based --

16

Q. In marriage based families?

17

A. Yes.

18

Q. Is there research that shows differences in child

19 outcomes based upon a mother's level of education?

20

A. I could not give you a study, but I am confident

21 that there is.

22

Q. All right. All right. And would you agree with me

23 that low levels of education are correlated with poorer

24 child outcomes?

25

A. Yes.

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1

Q. Same question as to lower incomes. Correlation

2 between lower incomes for the parents. Lower child

3 outcomes?

4

A. Yes, I would agree.

5

Q. Do you favor excluding low educated people from

6 marriage?

7

A. No.

8

Q. Do you favor excluding low income people from

9 marriage?

10

A. No.

11

Q. Do you have any opinion as to whether or not

12 allowing marriage by same sex couples affects the marriage

13 rate of heterosexual couples?

14

A. I think that the jury is still out on that and will

15 be for some time. In terms of the data, the closest

16 comparison that I am able to come up with in my own mind,

17 I think it's a plausible hypothesis. For example, the

18 cohabitation rate, depending on the studies that are

19 considered, is increased between four, six, even eightfold

20 since 1970 or so. Does one cohabiting couple in the

21 neighborhood change the social reality? Probably not.

22 But at the same time I have published my opinion that one

23 of the most important principles in social science is that

24 our behavior is permission to others to behave similarly.

25 But it is more than that. It is an invitation to do so.

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1

From that perspective, any change or any

2 behavior has potentially a quantum influence. Would such

3 a change have that kind of influence? That I can't say

4 and I don't believe that we have the data.

5

Q. So it's an opinion of yours that there is no

6 empirical research that is satisfying to you as a

7 scientist?

8

MR. POTCHEN: Your Honor, she asked for his

9 opinion.

10

THE COURT: What is the follow-up?

11

MS. STANYAR: The follow-up is that it's not

12 as a scientist based on empirical research.

13

A. Again, I think the jury still out. I am aware of

14 some data, but I would like to see more.

15 BY MS. STANYAR:

16

Q. Do you agree that adoption is a reasonably good

17 alternative for children that can't be raised by their

18 biological parents?

19

MR. POTCHEN: Objection. Outside the scope.

20

THE COURT: Sustained. He's not here for that

21 issue and he wasn't qualified for that. He may be

22 qualified, but he wasn't qualified for that. He wasn't

23 qualified in his voir dire today.

24

MS. STANYAR: All right.

25

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1 BY MS. STANYAR:

2

Q. You talked about some of the research -- we'll go

3 through this briefly -- in the APA studies and you said

4 that it's important to the question of the groups that

5 researchers select to represent the heterosexual parents

6 as compared to the same sex parents and that's becomes

7 critical, according to you?

8

A. Yes. I think it's very important.

9

Q. Okay. According to you, the selection of single

10 parent families in comparison to heterosexual parent -- a

11 heterosexual parent group is noteworthy. Strike that.

12 And you criticized the fact that a lot of those studies

13 don't have a heterosexual comparison group?

14

A. Yes. 26 did not of the 59.

15

Q. All right. Let's look at the Tasker, the Fiona

16 Tasker and Susan Golombok article.

17

A. I think I may have your version here.

18

Q. All right. This is one that you cite in your -- as

19 one that you reviewed, correct?

20

A. Yes.

21

Q. All right. In the original Tasker and Golombok

22 article or the original study, the original one was from

23 1976 to 1977, is that right?

24

A. That sounds about right. It goes back quite a ways.

25

Q. Okay. And if you look at page 206 of the article

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1 under Method, it indicates that the sample of lesbian and

2 heterosexual single mothers initially participated in the

3 study of their general psychological status in 1976 to

4 1977?

5

A. Yes.

6

Q. This is when it started. This was the original wave

7 and this was one that there were several waves of study as

8 to these particular women. So would you agree with me

9 that in this study they had 27 lesbian mothers and 27

10 single heterosexual mothers in the Fiona Tasker and

11 Golombok study?

12

A. Yes. That sounds about right. They list in the

13 abstract 25 for lesbian and 21 for heterosexual single.

14

Q. I think you're referring to, I think you are

15 referring to the later study. I am referring to --

16

A. I apologize. I see what you're saying.

17

Q. In the 1976, 1977 look at these women, there were 27

18 lesbian mothers and 27 single heterosexual mothers?

19

A. I follow you now.

20

Q. All right. 39 children a piece?

21

A. Correct.

22

Q. Okay. Then if you go to page 208, they did a

23 followup with the same women. And if you look at the

24 results at the bottom of page 208, there was a followup

25 study from 1991 to 1992 was 15 years later. And would you

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1 agree with me that at this point they were looking at 25

2 children raised by lesbian mothers, 25 children raised by

3 heterosexual mothers?

4

A. Looks about right.

5

Q. 22 of the 25 lesbian moms were living with a female

6 partner. So that's about 88 percent?

7

A. And we are now on to 209.

8

Q. We are on to 209. And then pretty similar, in the

9 18 of the 21 heterosexual moms left in the study at that

10 point were also living with a male partner because they

11 are heterosexual?

12

A. Correct.

13

Q. So this is an example of you don't have a comparison

14 of the lesbian moms to the ideal family, but you have a

15 comparison that looks -- does it look to you to be and

16 apples to apples comparison? You have single women. They

17 do what single women sometimes do.

18

THE COURT: Let's start asking just the

19 question because I would like to finish this witness and

20 allow him to be excused at 5:00. So why don't you ask the

21 questions and he will answer and just answer the questions

22 and we will hopefully get through all of your concerns.

23 BY MS. STANYAR:

24

Q. Does this appear to you to be an apples to apples

25 comparison?

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1

A. It appears that the researchers have made a good

2 faith effort to make it more of an apples to apples

3 comparison than many of the studies that I have seen.

4

Q. All right. During your deposition you were

5 discussing -- if you want to see it, let me know -- you

6 were discussing --

7

THE COURT: Back to the mike.

8 BY MS. STANYAR:

9

Q. You were discussing some studies --

10

THE COURT: I know it's not your normal

11 style.

12 BY MS. STANYAR:

13

Q. There was a study in which you had a situation in

14 which you had a lesbian mom and they were comparing that

15 person to a single heterosexual mom. And I think one of

16 the points you made is we really have to look to see

17 whether or not the lesbian mom has taken a partner. Do

18 you remember that or do you want to take a look at that?

19

A. It would probably be a good refresher.

20

Q. All right. In your deposition we are referring to

21 page --

22

THE COURT: He has a copy. Tell him what

23 page.

24 BY MS. STANYAR:

25

Q. Page 157 to 176. And I think there --

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1

THE COURT: And, Doctor, if you need some

2 water -- do you need some water? We will get you some.

3

THE WITNESS: That would be great. I

4 appreciate it.

5

THE COURT: Anybody else need water? All

6 set?

7 BY MS. STANYAR:

8

Q. All right. This is 157 to 176 and we are talking

9 about the Questen (ph) study, one of the ones that I think

10 it was listed in the Golombok and Tasker that we were

11 talking about. And then this conversation came up

12 about -- well, read it. I mean, to yourself.

13

A. Okay. Yes, I remember now.

14

Q. All right. I asked you this question. So basically

15 eight more of the women in the lesbian group had a partner

16 in the home. Is that the way you read it? And you said,

17 yes.

18

A. Yes.

19

Q. And was it your -- is it your opinion or was it your

20 opinion that that would make it an unfair comparison to

21 the single lesbian group or, excuse me, to the single

22 heterosexual group if the lesbians' moms had a partner

23 living with them at that point?

24

A. It could be.

25

Q. Is that because having a partner at home helps

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1 children?

2

A. It can.

3

THE COURT: That's okay. It can. I don't

4 mean to cut you off, but we have an answer. We are trying

5 to get you back home if we can. Not that we don't like

6 you. It's just I suspect you have other things to do,

7 though the students must love you being here.

8 BY MS. STANYAR:

9

Q. This is not the only time that we have -- would try

10 decide as a society whether or not certain people are

11 allowed to marry or not. Back in the 1960's the question

12 came up about interracial marriages. And you studied

13 African-American families. Do you know how many studies

14 they --

15

MR. POTCHEN: Your Honor, this is outside the

16 scope.

17

THE COURT: Yes. Sustained.

18 BY MS. STANYAR:

19

Q. You talked about Brewaeys, the study, donor

20 insemination, child development and family functioning in

21 lesbian mother father families. They use on page 1353,

22 they use the initials CBCL, if you look right under the

23 topic of Emotional And Behavioral Adjustment of Children.

24 Does that reference in the social sciences refer to a

25 child behavior check list?

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1

A. Yes, I believe so.

2

Q. All right. So is that a standard instrument that

3 social scientists use to measure child behavior?

4

A. It is.

5

Q. All right. And does it say here in this study, the

6 CBCL, the child behavior check list for ages 4 to 18

7 years, is a widely used and well validated instrument for

8 the assessment of behavioral emotional problems and social

9 competency of children on the basis of the reports of

10 their parents?

11

A. Yes.

12

Q. That is your understanding of what that is?

13

A. Yes.

14

Q. You have criticized some of these studies because

15 there wasn't a comparator group. Is Brewaeys an example

16 of where there is no comparator group but there is a

17 comparison being made or at least an assessment being done

18 and that is to the child behavior check list so the

19 children --

20

THE COURT: That was your first question.

21 What is your question?

22

MS. STANYAR: The children --

23 BY MS. STANYAR:

24

Q. Is it correct that children are being compared to

25 the norm?

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1

A. There is appears a standardized check list.

2 However, it appears to me that we do have a comparison

3 group. We have got two actually in this study. 38

4 heterosexual families with a donor inseminated child and

5 30 heterosexual families with a naturally conceived child.

6

MR. POTCHEN: We don't have those.

7 BY MS. STANYAR:

8

Q. This is Gartrell and this was several waves of

9 studies of the National Lesbian Family Study, correct?

10

A. Yes.

11

Q. The one in front of you is from 2005, is that right?

12

A. Yes.

13

Q. All right. I think this was one where you indicated

14 that you didn't think that there was a heterosexual

15 comparator group?

16

A. This one -- I am looking at 2005. I need to double

17 check.

18

Q. Let me hand you your --

19

A. Do you have the table?

20

Q. Yes. I have the table. Gartrell et al.. 2005?

21

A. There we go. Thank you.

22

Q. It didn't have a heterosexual comparator group, but

23 look to page 520. They were using the CBCL. Do you see?

24

A. I do.

25

Q. They were measuring the children against standard

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1 norms, against this assessment, the standard assessment.

2 Do you agree?

3

A. Yes, I see.

4

Q. All right. This is something that social science

5 does all the time in terms of measuring a child against

6 standard norms. For example, would it be typical for a

7 school social worker to evaluate whether a child needs

8 services?

9

A. Possible.

10

MR. POTCHEN: I object to the form of the

11 question.

12

THE COURT: Sustained.

13 BY MS. STANYAR:

14

Q. Is this something that, comparison to norms, is this

15 something that social science does often?

16

A. It's done from time to time, yes. As an aside here,

17 I mentioned earlier that part of my wrestle with that, the

18 samples were wealthy, well educated, and white. If we

19 take a glance under the method, we see here that the

20 mothers were predominantly college educated, middle and

21 upper class professional managers and the median household

22 income was $85,000. Bearing in mind that's almost ten

23 years ago, that's well above the median income for that

24 point in time.

25

Q. I understand what you mean.

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1

THE COURT: Let her ask the questions.

2 BY MS. STANYAR:

3

Q. The point I was making --

4

MR. POTCHEN: Can we move to the next

5 question, your Honor?

6

THE COURT: Let's move on.

7 BY MS. STANYAR:

8

Q. All right. You talked about the concept of

9 reflexivity and how you identified that in your written

10 articles and that it's your way of acknowledging bias?

11

A. Yes.

12

Q. And you testified that you have various areas that

13 could be perceived as bias. You talked about having a

14 preference for thorough research, correct?

15

A. Yes.

16

Q. And you are insisting in this case and in this

17 particular area on a specific type of research?

18

A. Not necessarily. I would like to see at least some

19 large representative samples. But I think there are a

20 number of different domains where we need to improve.

21

Q. All right. Would you agree with me that your

22 preference that there must be gold standard studies of

23 this kind before we can resolve the No Difference

24 Conclusion, that you are swimming upstream on this? That

25 is against the consensus?

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1

MR. POTCHEN: Objection to the form of the

2 question.

3

THE COURT: Can you answer it? I understand

4 the objection.

5

THE WITNESS: Could you restate, please?

6 BY MS. STANYAR:

7

Q. That you identified an area of what you identified

8 as your own bias, the fact that you insist on thorough

9 research. And I am asking you, is this insistence in this

10 case on the type of study that you already testified to

11 many times, is that bias here, number one?

12

THE COURT: Here in terms of what?

13

MS. STANYAR: In the case. Is that a bias

14 assist that you --

15

MR. POTCHEN: I object. The question is

16 vague and unclear.

17

THE COURT: You want to know whether or not

18 his beliefs in terms of his criticism of this brief and

19 ultimate conclusion are in the minority. As you use it,

20 he is swimming upstream.

21

MS. STANYAR: Yes.

22

THE COURT: I think that is your question.

23

MS. STANYAR: Yes.

24

THE WITNESS: I'm in the minority, yes.

25

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1 BY MS. STANYAR:

2

Q. Yes. All right. It isn't just the American

3 Psychological Association. The No Difference Conclusion

4 is accepted by a number different groups -- the American

5 Sociological --

6

MR. POTCHEN: Beyond the scope.

7

THE COURT: And also, by number. You don't

8 have to list them.

9 BY MS. STANYAR:

10

Q. It's accepted by the American Medical Association,

11 is that correct?

12

MR. POTCHEN: She just said she doesn't have

13 to list them.

14

MS. STANYAR: I'm not going to list them but

15 I have a question to follow up to that.

16

THE COURT: Ask the question.

17 BY MS. STANYAR:

18

Q. Is that known as a liberal organization?

19

A. I'm not familiar with the political leanings of the

20 American Medical Association.

21

Q. I think you testified -- we asked you questions

22 about the American Psychological Association's policy

23 statement titled Sexual Orientation, Parents And Children.

24 Are you familiar with the policy statement?

25

MR. POTCHEN: Objection. Outside the scope

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1 of this witness's testimony.

2

THE COURT: I'm not sure -- I don't know the

3 question. Are you familiar with the statement? With the

4 statement of the association?

5

THE WITNESS: I think I may have read it at

6 some point.

7

MS. STANYAR: And this pre-dates 2005.

8

THE COURT: He said he may have read it. Ask

9 him a question.

10 BY MS. STANYAR:

11

Q. It says homosexuality is not a psychological

12 disorder. Do you agree with that statement?

13

A. Yes.

14

Q. It says, beliefs that lesbians and gay adults are

15 not fit parents have no empirical foundation?

16

MR. POTCHEN: Again, your Honor, this is

17 outside the scope.

18

THE COURT: Sustained.

19 BY MS. STANYAR:

20

Q. All right. You authored an article teaching correct

21 principles promoting spiritual strength in the LDS people.

22 You co-authored that with another author?

23

A. Yes.

24

Q. And you talked about this with Mr. Potchen. This

25 identifies yourself as an active and committed member of

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1 the Church of Jesus Christ Latter Day Saints?

2

A. Yes.

3

Q. And in this article in particular you are

4 identifying in the reflexivity section that this may be an

5 area of potential bias?

6

A. Yes.

7

Q. All right. And that you identify at page 397 the

8 proclamation, the Mormon proclamation, for lack of a

9 better --

10

A. Yes.

11

THE COURT: What is the date?

12

MS. STANYAR: And date of this article?

13

THE COURT: Please. Just curious.

14

THE WITNESS: 2006.

15

MS. STANYAR: 2006.

16 BY MS. STANYAR:

17

Q. This is not about child outcome. It's about areas

18 of recognized perceived bias, correct?

19

A. Yes.

20

Q. All right. At page 398 you write that the LDS

21 directive is for a couple to be married by God's authority

22 in God's house, the holy temple, and then to have children

23 per the teaching that God's commandment for his children

24 to multiply and replenish the earth remains in force. You

25 wrote that?

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1

A. Yes.

2

Q. You also -- that statement remains accurate today.

3 You are still a member of the church?

4

A. Yes.

5

Q. And am I correct that you are the first counselor of

6 the Baton Rouge Stake?

7

A. Yes.

8

Q. And what does that mean?

9

A. In the faith that I'm a member of, we have lay

10 clergy.

11

THE COURT: You don't have to go into that.

12 You are active in your church.

13

THE WITNESS: I am lay clergy essentially.

14 BY MS. STANYAR:

15

Q. Are you a highly involved member?

16

A. I strive to be, yes.

17

Q. I'm going to ask you to look at a document titled

18 The Family, A Proclamation To The World, The First

19 Presidency And Council of the 12 Apostles Of The Church Of

20 Jesus Christ Of Latter Day Saints. Is the proclamation a

21 formal statement of the LDS church that is to be taken

22 seriously by you?

23

A. Yes.

24

Q. As part of your own personal dogma, do you

25 personally accept the proclamation in all of its --

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1

MR. POTCHEN: Your Honor, I'm going to object

2 to his personal --

3

THE COURT: I will sustain. He already

4 testified that he is a person of faith and so forth. I

5 don't think we have to go into the specific teachings of

6 any faith. And he also talked already about the biases

7 and so forth.

8

MR. POTCHEN: Thank you.

9

THE COURT: We are going too far.

10 BY MS. STANYAR:

11

Q. Lastly, we talked about the Why Marriage Matters

12 conclusions. Most significantly, the conclusions that

13 family stability comes with being born into a married

14 family. All of the different advantages that are listed

15 in Why Marriage Matters. Would you agree with me there

16 are no high quality studies which refute these benefits to

17 the children or for the children of same sex couples or to

18 the partners involved?

19

A. Yes.

20

Q. Do you know of any reason why a child being raised

21 by a same sex couple wouldn't be advantaged by having two

22 legal parents instead of just one?

23

MR. POTCHEN: Objection.

24

THE COURT: Sustained. He indicated he hasn't

25 done the research and so forth.

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1 BY MS. STANYAR:

2

Q. If the same sex marriage ban were struck down in

3 this case, you would go on studying this area of research,

4 could you not?

5

MR. POTCHEN: Objection. That calls for

6 speculation.

7

THE COURT: I think he can answer it.

8

THE WITNESS: Yes. Yes.

9 BY MS. STANYAR:

10

Q. Would you continue to research?

11

A. My research on this particular topic?

12

Q. This topic.

13

A. I haven't considered that. I haven't considered

14 that question.

15

Q. Well, wouldn't research in this area help families?

16

MR. POTCHEN: Objection.

17

THE COURT: Plus he's here. His research is

18 on a specific, whatever they call it, proclamation of the

19 association. Not the underlying.

20

MS. STANYAR: That's all I have.

21

THE COURT: Anything further? It's not

22 approximation. What is it called?

23

THE WITNESS: The APA brief?

24

THE COURT: No. The statement. The

25 statement.

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2:12-cv-10285-BAF-MJH Doc # 167 Filed 04/06/14 Pg 120 of 124 Pg ID 4726

Loren Marks, Ph.D. - Cross Wednesday/March-5-2014

120

1

THE WITNESS: Statement.

2

- - -

3

REDIRECT EXAMINATION

4 BY MR. POTCHEN:

5

Q. I would like a couple housekeeping things.

6

THE COURT: Absolutely.

7 BY MR. POTCHEN:

8

Q. I'm going to give you what's been marked as State's

9 Exhibit Number 21 and State's Exhibit Number 22 for

10 identification. Counsel has been discussing fairly

11 extensively from these documents. Can you please identify

12 what the State's Exhibit Number 21 is?

13

A. Children in three contexts -- family, education, and

14 social development authored Sotirios Sarantakos.

15

Q. That's the '96 study?

16

A. Yes.

17

Q. And then State's Exhibit Number 22, please?

18

A. Same Sex Couples, a book authored by the same

19 author, Sarantakos.

20

Q. Are both State's Exhibit Number 21 and 22 true and

21 authentic copies of the documents?

22

A. Yes. They appear to be.

23

Q. Okay. You indicated that you think we should

24 clarify -- I'm sorry. You have indicated some comments or

25 identified some comments on the publication Why Marriage

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2:12-cv-10285-BAF-MJH Doc # 167 Filed 04/06/14 Pg 121 of 124 Pg ID 4727

Loren Marks, Ph.D. - Redirect Wednesday/March-5-2014

121

1 Matters, and you remember when we began your testimony

2 there was a number of positive aspects of marriage

3 identified?

4

A. Yes.

5

Q. Were those positive aspects referring to only

6 marriage between a man and a women?

7

A. Yes.

8

Q. So those aspects were not opining in any way of same

9 sex marriage, is that correct?

10

A. No. Same sex marriage and same sex partners are not

11 mentioned in the Why Marriage Matters book.

12

Q. Those factors that were outlined do not apply to

13 same sex couples?

14

A. I don't think we know.

15

Q. Okay. You have -- you were asked some questions

16 about gender differentiated parenting during

17 Cross-Examination. Do you recall?

18

A. Yes.

19

Q. And do you believe it's important to be cautious

20 before eliminating gender diversified parenting?

21

A. Yes.

22

Q. Do you think that science is settled that it's a

23 good idea to completely eliminate both a mom and dad from

24 raising a child?

25

A. No. I don't think it's settled.

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2:12-cv-10285-BAF-MJH Doc # 167 Filed 04/06/14 Pg 122 of 124 Pg ID 4728

Loren Marks, Ph.D. - Redirect Wednesday/March-5-2014

122

1

Q. Why not?

2

A. Because based on the points that we went through in

3 Why Marriage Matters, what we do know is that in tact

4 marriage has significant correlation to positive

5 children's outcomes. We do know that. What we do not

6 know is why. Is it gender differentiated outcomes? We

7 don't know based on those large representative samples.

8

Q. Okay. Counsel on cross brought up a criticism of

9 your paper, that you should have included studies after

10 2005. Do you recall that?

11

A. Yes.

12

Q. And you indicated that you read 40 or so studies

13 post-2005 or that came out after 2005. Do you recall?

14

A. Yes.

15

Q. Has any of those post-2005 changed your opinion

16 regarding the No Difference Claim?

17

MS. STANYAR: Objection. I asked him.

18 Objection.

19

THE COURT: What is the objection?

20

MS. STANYAR: I didn't ask him what his

21 opinion was about any of those articles. I just asked him

22 whether there is any criticism by the people that he

23 consulted, and that was all.

24

THE COURT: I think his question is fair

25 because he is not going into them and I won't let him go

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2:12-cv-10285-BAF-MJH Doc # 167 Filed 04/06/14 Pg 123 of 124 Pg ID 4729

Loren Marks, Ph.D. - Redirect Wednesday/March-5-2014

123

1 into it either. It's just did he change his opinion? Yes

2 or no.

3

MR. POTCHEN: That's correct.

4 BY MR. POTCHEN:

5

Q. Do what you read post-2005, or does what you read

6 post-2005 change your opinion regarding the No Difference

7 Claim?

8

A. No.

9

THE COURT: That's fine. Otherwise we have

10 to go into all of those things.

11

MR. POTCHEN: That's it.

12

THE COURT: Perfect timing, Doctor. Have a

13 safe trip home. We appreciate you coming. Tomorrow we

14 will see everybody. It's my understanding that Doctor

15 Allen will be here.

16

MS. HEYSE: That's correct.

17

THE COURT: Have a safe trip home. See you

18 all in the morning and see Doctor Allen.

19

THE WITNESS: Thank you.

20

- - -

21

22

23

24

25

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2:12-cv-10285-BAF-MJH Doc # 167 Filed 04/06/14 Pg 124 of 124 Pg ID 4730 124

1

C E R T I F I C A T I O N

2

I, Lawrence R. Przybysz, official court reporter

3 for the United States District Court, Eastern District of

4 Michigan, Southern Division, appointed pursuant to the

5 provisions of Title 28, United States Code, Section 753,

6 do hereby certify that the foregoing is a correct

7 transcript of the proceedings in the above-entitled cause

8 on the date hereinbefore set forth.

9

I do further certify that the foregoing

10 transcript has been prepared by me or under my direction.

11

12 s/Lawrence R. Przybysz
13 Official Court Reporter

14

- - -

15

16

17

18

19

20

21

22

23

24

25

12-10285; April Deboer, et al. v. Richard Snyder, et al.

 
 Case: 14-1341 Document: 006111998445 Filed: 03/22/2014 Page: 1

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Filed: March 22, 2014

Tel. (513) 564-7000 www.ca6.uscourts.gov

Mr. Kristin Heyse Mr. Aaron D. Lindstrom Mr. Kenneth Marc Mogill Ms. Dana Nessell Ms. Carole M. Stanyar
Re: Case No. 14-1341, April Deboer, et al v. Richard Snyder, et al Originating Case No. : 2:12-cv-10285
Dear Counsel: The Court issued the enclosed Order today in this case.
Sincerely yours,
s/Patricia J. Elder Senior Case Manager

cc: Mr. David J. Weaver Enclosure

Case: 14-1341 Document: 006111998448 Filed: 03/22/2014 Page: 1

 
 Case: 14-1341 Document: 22-1 Filed: 03/25/2014 Page: 1

No. 14-1341

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

APRIL DEBOER; JANE ROWSE, individually )

and as parents and next friend of N.D.-R, R.D.-R )

and J.D.-R, minors,

)

)

Plaintiffs-Appellees,

)

)

v.

)

)

RICHARD SNYDER, in his official capacity as )

Governor of the State of Michigan; BILL

)

SCHUETTE, in his official capacity as Michigan )

Attorney General,

)

)

Defendants-Appellants.

)

FILED
Mar 25, 2014 DEBORAH S. HUNT, Clerk
O R D E R

Before: ROGERS and WHITE, Circuit Judges; CALDWELL, District Judge* The district court in this case enjoined the enforcement of Article I, § 25 of the Michigan Constitution, which provides that marriage is “the union of one man and one woman.” In light of the Supreme Court’s issuance of a stay in a similar case, Herbert v. Kitchen, 134 S. Ct. 893 (2014), a stay of the district court’s order is warranted. On March 21, 2014, the district enjoined the State of Michigan from enforcing the constitutional provision and its implementing statutes because the court concluded that those laws violate the Equal Protection Clause of the Fourteenth Amendment. DeBoer v. Snyder, No. 2:12-cv-10285, 2014 WL 1100794, at *17 (E.D. Mich. Mar. 21, 2014). Michigan filed a notice
* The Honorable Karen K. Caldwell, Chief United States District Judge for the Eastern District of Kentucky, sitting by designation.

Case: 14-1341

Document: 22-1 Filed: 03/25/2014
No. 14-1341 -2-

Page: 2

of appeal and made an emergency motion to stay the district court’s order in this court the same

day. This court temporarily stayed the district court’s order so that it could more carefully

consider Michigan’s request and a response from the plaintiffs. The plaintiffs filed a response,

and defendant Lisa Brown in her capacity as Clerk of Oakland County moved for leave to file a

response to Michigan’s motion.

Counsel for Michigan assert that during closing argument in the district court, counsel

asked the district court to stay its order should the court rule in favor of the plaintiffs. The

district court did not grant a stay. Federal Rule of Appellate Procedure 8(a) requires that a stay

pending appeal be brought first in the district court. However, a court of appeals may grant a

stay pending appeal if “the district court denied the motion or failed to afford the relief

requested.” Fed. R. App. P. 8(a)(2)(A)(ii). In the context of this case, the requirements of Rule

8 have been substantially met.

In deciding whether to grant a stay of a district court’s grant of injunctive relief, “we

consider (1) whether the defendant has a strong or substantial likelihood of success on the merits;

(2) whether the defendant will suffer irreparable harm if the district court proceedings are not

stayed; (3) whether staying the district court proceedings will substantially injure other interested

parties; and (4) where the public interest lies.” Baker v. Adams Cnty./Ohio Valley School Bd.,

310 F.3d 927, 928 (6th Cir. 2002). In this case, these factors balance no differently than they did

in Kitchen v. Herbert. Kitchen involved a challenge to “provisions in the Utah Code and Utah

Constitution that prohibited same-sex marriage.” No. 2:13-cv-217, 2013 WL 6834634, at *1 (D.

Utah Dec. 23, 2013). Like the decision below, the Kitchen court’s order enjoined Utah from

enforcing laws that prohibit same-sex marriage. 961 F. Supp. 2d 1181, 1216 (D. Utah 2013).

And like the stay requested by Michigan before this court, the Supreme Court’s order delayed the

Case: 14-1341

Document: 22-1 Filed: 03/25/2014
No. 14-1341 -3-

Page: 3

applicability of the Kitchen court’s order pending resolution by the Tenth Circuit. 134 S. Ct. 893

(2014). There is no apparent basis to distinguish this case or to balance the equities any

differently than the Supreme Court did in Kitchen. Furthermore, several district courts that have

struck down laws prohibiting same-sex marriage similar to the Michigan amendment at issue

here have also granted requests for stays made by state defendants. See Bishop v. United States

ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014); Bostic v. Rainey, No. 2:13cv395, 2014

WL 561978 (E.D. Va. Feb. 13, 2014); De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL

715741 (W.D. Tex. Feb. 26, 2014); Love v. Beshear, No. 3:13-CV-750-H (W.D. Ky. Mar. 19,

2014) (order granting stay).

We GRANT Lisa Brown’s motion to respond to Michigan’s stay motion. We GRANT

Michigan’s motion to stay the district court’s order pending final disposition of Michigan’s

appeal by this court.

WHITE, J., dissenting.

I agree that this court balances the traditional factors governing injunctive relief in ruling on a motion to stay a district court’s decision pending appeal: (1) whether the defendant has a strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if the district court proceedings are not stayed; (3) whether staying the district court proceedings will substantially injure other interested parties; and (4) where the public interest lies. “In order to justify a stay of the district court's ruling, the defendant must demonstrate at least serious questions going to the merits and irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted.” Baker v Adams County/Ohio Valley School Bd, 310 F3d. 927, 928 (6th Cir. 2012). Michigan has not made the requisite showing. Although the Supreme Court stayed the permanent injunction issued by the

Case: 14-1341

Document: 22-1 Filed: 03/25/2014
No. 14-1341 -4-

Page: 4

Utah District Court in Kitchen v. Herbert pending final disposition by the Tenth Circuit, 134

S.Ct. 893 (2014), it did so without a statement of reasons, and therefore the order provides little

guidance. I would therefore apply the traditional four-factor test, which leads me to conclude

that a stay is not warranted.

ENTERED BY ORDER OF THE COURT

Clerk

Case: 14-1341 Document: 22-2 Filed: 03/25/2014 Page: 1

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: March 25, 2014

Ms. Kristin M Heyse Michigan Attorney General P.O. Box 30758 Lansinig, MI 48909
Ms. Andrea J. Johnson Pitt McGhee 117 W. Fourth Street Suite 200 Royal Oak, MI 48067
Mr. Aaron D. Lindstrom Office of the Michigan Attorney General P.O. Box 30212 Lansing, MI 48909
Mr. Kenneth Marc Mogill Mogill, Posner & Cohen 27 E. Flint Street Second Floor Lake Orion, MI 48362-0000
Ms. Dana Nessell Nessel Kessel 645 Griswold Street Detroit, MI 48226
Mr. Michael L Pitt Pitt, McGehee, Palmer, Rivers & Golden 117 W. Fourth Street Suite 200 Royal Oak, MI 48067

Case: 14-1341 Document: 22-2 Filed: 03/25/2014 Page: 2
Ms. Beth M. Rivers Pitt, McGehee, Palmer, Rivers & Golden 117 W. Fourth Street Suite 200 Royal Oak, MI 48067
Ms. Carole Margaret Stanyar Law Offices of Deborah LaBelle 221 N. Main Street Suite 300 Ann Arbor, MI 48104
Re: Case No. 14-1341, April DeBoer, et al v. Richard Snyder, et al Originating Case No. : 2:12-cv-10285
Dear Sir or Madam,
The Court issued the enclosed Order today in this case.
Sincerely yours,
s/Cheryl Borkowski Case Manager
cc: Mr. David J. Weaver
Enclosure

 
 No. 14-1341

In the UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

APRIL DEBOER; JANE ROWSE, individually and as parent and next friend of N.D.-R, R.D.-R and J.D.-R, minors,
Plaintiffs-Appellees, v.
RICHARD SNYDER, in his official capacity as Governor of the State of Michigan; BILL SCHUETTE, in his official capacity as Michigan Attorney General,
Defendants-Appellants.
Appeal from the United States District Court Eastern District of Michigan, Southern Division
Honorable Bernard A. Friedman

BRIEF FOR MICHIGAN DEFENDANTS-APPELLANTS

Dated: May 7, 2014

Bill Schuette Attorney General
Aaron D. Lindstrom Solicitor General Co-Counsel of Record P.O. Box 30212 Lansing, MI 48909 (517) 373-1110 LindstromA@michigan.gov
Kristin M. Heyse Assistant Attorney General Co-Counsel of Record

TABLE OF CONTENTS Page
Table of Contents.........................................................................................i Table of Authorities .................................................................................. iii Statement in Support of Oral Argument................................................... x Jurisdictional Statement............................................................................1 Statement of Issue Presented .................................................................... 2 Introduction ................................................................................................ 3 Statement of Facts and Proceedings ......................................................... 5 I. The history of marriage in Michigan................................................5 II. The plaintiffs ..................................................................................... 6 III. The lawsuit and trial proceedings .................................................... 6 IV. The district court’s decision ............................................................ 10 Standard of Review .................................................................................. 12 Summary of Argument ............................................................................. 14 Argument .................................................................................................. 17 I. The Supreme Court’s decision in Baker v. Nelson controls
this Court’s decision. ....................................................................... 17 II. The definition of marriage is a policy question to be decided
by the people through the democratic process. .............................. 19 A. The people’s right to vote reaches this issue, because
there is no fundamental right to same-sex marriage. .......... 19 B. As Windsor reaffirmed, the definition of marriage is
left to voters at the state level in our federalist system.......25
i

C. Rational-basis review governs this issue and defers to the voters precisely to protect the democratic process. ........ 31
D. The district court failed to properly apply rationalbasis review. ........................................................................... 34
III. The people had numerous rational grounds for preserving the definition of marriage. .............................................................. 37 A. Encouraging opposite-sex couples to enter into a permanent, exclusive relationship within which to have and raise children—into a marriage—is a legitimate state interest. ......................................................................... 37 B. Michigan voters could rationally have concluded it is beneficial for children to be raised by both a mom and a dad. ......................................................................................... 40 C. It is rational to promote marriage in the setting where children naturally (biologically) come from—the union of a man and a woman. .......................................................... 52 D. Citizens of a State may not wish to alter a central building block of society. ........................................................ 54 E. Loving v. Virginia does not alter this analysis. .................... 58
Conclusion and Relief Requested.............................................................59 Certificate of Compliance ......................................................................... 62 Certificate of Service ................................................................................ 63 Designation of Relevant District Court Documents ............................... 64
ii

TABLE OF AUTHORITIES

Page

Cases
A Woman’s Choice—E. Side Women’s Clinic v. Newman, 305 F.3d 684 (7th Cir. 2002) ................................................................. 13
Agostini v. Felton, 521 U.S. 203 (1997) ............................................................................... 19
Andersen v. King Cnty., 158 Wash. 2d 1 (2006) ........................................................................... 53
Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073 (2012) ..................................................................... 24, 31
Baker v. Baker, 13 Cal. 87 (1859) .................................................................................... 39
Baker v. Nelson, 409 U.S. 810 (1972) ................................................................... 14, 17, 18
Ballard v. United States, 329 U.S. 187 (1946) ............................................................................... 40
Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) ............................................................................... 49
Bowen v. Gilliard, 483 U.S. 587 (1987) ............................................................................... 43
Burson v. Freeman, 504 U.S. 191 (1992) ............................................................................... 28
Chandler v. Florida, 449 U.S. 560 (1981) ............................................................................... 30
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) ........................................................... 22, 53

iii

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) ............................................................................... 32
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008)....................................................................22
Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012) ........................................................... 22, 59
Dayco Corp. v. FTC, 362 F.2d 180 (6th Cir. 1966) ................................................................. 13
Dillon v. Cobra Power Corp., 560 F.3d 591 (6th Cir. 2009) ................................................................. 12
Dixon v. Houk, 627 F.3d 553 (6th Cir. 2010) ................................................................. 41
Drummond v. Fulton Cnty. Dep’t of Family & Children’s Servs., 563 F.2d 1200 (5th Cir. 1977) ............................................................... 14
Dunagin v. City of Oxford, Miss., 718 F.2d 738 (5th Cir. 1983) ........................................................... 13, 36
Duren v. Missouri, 439 U.S. 357 (1979) ............................................................................... 41
Ex parte Burrus, 136 U.S. 586 (1890) ............................................................................... 25
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ....................................................................... passim
Gard v. Gard, 204 Mich. 255 (1918) ............................................................................. 39
Haddock v. Haddock, 201 U.S. 562 (1906) ............................................................................... 25
Hadix v. Johnson, 230 F.3d 840 (6th Cir. 2000) ................................................................... 8
iv

Heller v. Doe, 509 U.S. 312 (1993) ....................................................................... passim
Hernandez v. Robles, 7 N.Y.3d 338 (2006) ................................................................... 21, 44, 52
Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) ............................................................................... 19
In re Asbestos Litig., 829 F.2d 1233 (3d Cir. 1987).................................................................13
In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App. 2010) .......................................................... 44
Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) ................................................... 44
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ................................................................. 22
Johnson v. Robison, 415 U.S. 361 (1974) ......................................................................... 49, 50
Langevin v. Chenango Court, Inc., 447 F.2d 296 (2d Cir. 1971)...................................................................13
Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................... 28
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973) ............................................................................... 33
Lochner v. New York, 198 U.S. 45 (1905) ................................................................................. 37
Lockhart v. McCree, 476 U.S. 162 (1986) ......................................................................... 13, 36
Lofton v. Sec’ of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ............................................................... 23
v

Loving v. Virginia, 388 U.S. 1 (1967) ........................................................................... passim
Mandel v. Bradley, 432 U.S. 173 (1977) ............................................................................... 18
Maynard v. Hill, 125 U.S. 190 (1888) ................................................................... 39, 54, 59
Nguyen v. INS, 533 U.S. 53 (2001) ................................................................................. 53
Pennoyer v. Neff, 95 U.S. 714 (1877) ........................................................................... 25, 26
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ............................................................... 59
Peters v. Kiff, 407 U.S. 493 (1972) ............................................................................... 41
Peterson v. Bodlovich, 215 F.3d 1330 (7th Cir. 2000) ............................................................... 22
Phillips Chemical Co. v. Dumas Sch. Dist., 361 U.S. 376 (1960) ............................................................................... 34
Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, __ F.3d __, 2014 WL 1257965 (5th Cir. 2014) ...................................... 32
Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) ............................................................. 22
Roe v. Wade, 410 U.S. 113 (1973) ............................................................................... 31
Romer v. Evans, 517 U.S. 620 (1996) ............................................................................... 22
Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250 (6th Cir. 2006) ................................................................. 22
vi

Schuette v. BAMN, 572 U.S. ___ (2014) ........................................................................ passim
Simms v. Simms, 175 U.S. 162 (1899) ............................................................................... 25
Skinner v. State of Okl. ex rel. Williamson, 316 U.S. 535 (1942) ................................................................... 39, 54, 59
Song v. City of Elyria, Ohio, 985 F.2d 840 (6th Cir. 1993) ................................................................. 19
Sosna v. Iowa, 419 U.S. 393 (1975) ............................................................................... 26
State v. Fry, 4 Mo. 120 (1835) .................................................................................... 39
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) ................................................................. 23
Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ................................................................... 22
U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980) ............................................................................... 34
United States v. Harris, 2014 WL 819394 (7th Cir. Mar. 4, 2014) .............................................. 41
United States v. Koch, 383 F.3d 436 (6th Cir. 2004) ................................................................. 18
United States v. Singleterry, 29 F.3d 733 (1st Cir. 1994)....................................................................13
United States v. Virginia, 518 U.S. 515 (1996) ............................................................................... 41
United States v. Windsor, 133 S. Ct. 2675 (2013) ................................................................... passim
vii

Vance v. Bradley, 440 U.S. 93 (1979) ........................................................................... 34, 46
W. & S. Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648 (1981) ............................................................................... 33
W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ............................................................................... 20
Washington v. Glucksberg, 521 U.S. 702 (1997) ................................................................... 20, 21, 24
Watson v. Memphis, 373 U.S. 526 (1963) ............................................................................... 57
Williams v. State of N. Carolina, 317 U.S. 287 (1942) ............................................................................... 54
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989)..............................................................23
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ............................................................................... 19
Statutes 28 U.S.C. § 1331.......................................................................................... 1 38 U.S.C. § 1651(1) ................................................................................... 50 42 U.S.C. § 1983.......................................................................................... 1 MICH. COMP. LAWS § 551.1 ......................................................................... 5 RS 1846, Ch. 83, §§ 1–18 ............................................................................ 5
viii

Other Authorities HELEN M. ALVAŔE,
The Turn Toward the Self in the Law of Marriage & Family: Same-Sex Marriage & Its Predecessors, 16 STAN. L. & POL’Y REV. (2005)...................................................................................................... 56 J. WALLERSTEIN, J. LEWIS, & S. BLAKESLEE, The Unexpected Legacy of Divorce: The 25 Year Landmark Study (2000)...................................................................................................... 56 S. GIRGIS, R. ANDERSON, & R. GEORGE, What is Marriage? Man and Woman: A Defense (2012) ...................... 36 Sir Francis Bacon, 6 Bacon Abr. 523....................................................................................40 STEPHEN BREYER, Active Liberty: Interpreting Our Democratic Constitution (Vintage Books 2005).......................................................................28, 30 Tr. of Oral Argument at 15, Duren v. Missouri, 439 U.S. 357 (1979)...................................................................................................... 41
Rules FED. R. EVID. 201 ...................................................................................... 12
Constitutional Provisions KY. CONST. § 233A .................................................................................... 28 MICH. CONST. art. I, § 25 ........................................................................ 3, 6 OHIO CONST. art. XV, § 11 ........................................................................ 28 TENN. CONST. art. XI, § 18........................................................................28
ix

STATEMENT IN SUPPORT OF ORAL ARGUMENT The issue presented in this case is simple: was it rational for the people of Michigan to define marriage as between one man and one woman? But this issue is also exceptionally important. It is so important that the people of Michigan amended their constitution to resolve it. Because of the importance of the issue and of the gravity of the plaintiffs’ requested relief—asking a federal court to overturn a democratically enacted state constitutional amendment—the people of Michigan respectfully request that the State be afforded the opportunity to present oral argument and to address any questions the Court might have about this issue.
x

JURISDICTIONAL STATEMENT Because the plaintiffs in this case asserted federal questions under 42 U.S.C. § 1983 (Compl., RE 1, Page ID ## 2 & 5; Am. Compl., RE 38, Page ID ## 725, 728, & 732), the district court had jurisdiction over this case under 28 U.S.C. § 1331. The district court issued its final order and judgment disposing of all of parties’ claims on March 21, 2014. (Findings of Fact & Conclusions of Law (hereinafter “Conclusions”), RE 151, Page ID # 3974; Judgment, RE 152, Page ID # 3975.) The State defendants filed a timely notice of appeal that same day. (Notice of Appeal, RE 153, Page ID # 3976.)
1

STATEMENT OF ISSUE PRESENTED Is it rational for the people of a State to define marriage as the union of one man and one woman?
2

INTRODUCTION In 2004, the people of Michigan considered and debated how marriage should be defined. Exercising their basic democratic power to enact laws, they concluded that “[t]o secure and preserve the benefits of marriage for our society and for future generations of children,” marriage in Michigan would continue to consist only of “the union of one man and one woman.” MICH. CONST. art. I, § 25. This case presents a narrow question: was that decision rational? It was. Reasonable people of good will can disagree about the definition of marriage. 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. Or a reasonable voter, even one who supports same-sex relationships, might choose not to change a fundamental building block of society.
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By reaffirming the definition of marriage that has always existed in Michigan, Michigan’s voters did not disparage other relationships or deny the obvious point that same-sex couples can provide loving homes. The voters acknowledged, among many reasons, that marriage has always been linked to procreation, a biological reality that exists only in opposite-sex couples.
Striking down Michigan’s constitutional amendment, the district court rejected all of these points as not just wrong, but irrational. It concluded that out of the 2.7 million Michigan citizens who voted for the amendment, not a single one had a rational reason for the vote. The district court’s decision, to use Justice Kennedy’s recent words, demeans democracy. It denies each of those voters the dignity of a meaningful vote, labels each with the stigma of irrationality, and treats Michigan’s electorate as incapable of deciding this profound and sensitive issue.
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
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children had loving parents, no matter what their sexual orientation may be.
This appeal is also not about whether there is a fundamental right to same-sex marriage. The district court did not reach that issue, correctly recognizing that marriage is a topic left to the people to decide at the ballot box. Out of respect for democracy and to be consistent with the restrained and limited role of a federal court judging the rationality of a legislative choice left to the people, this Court should reverse.
STATEMENT OF FACTS AND PROCEEDINGS I. The history of marriage in Michigan
Michigan’s statutory marriage law dates back to 1846. RS 1846, Ch. 83, §§ 1–18. To be married, the statutes required “that the parties solemnly declare . . . that they take each other as husband and wife.” RS 1846, Ch. 83, § 9. The people of Michigan reaffirmed this and other limitations in 1996: “Marriage is inherently a unique relationship between a man and a woman.” MICH. COMP. LAWS § 551.1. As the statutes explain, “[a]s a matter of public policy, this state has a special interest in encouraging, supporting, and protecting that unique
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relationship in order to promote, among other goals, the stability and welfare of society and its children.” Id.
In 2004, the people of Michigan reaffirmed this understanding of marriage by enacting a constitutional amendment defining marriage: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” MICH. CONST. art. I, § 25.
II. The plaintiffs April DeBoer and Jayne Rowse are an unmarried same-sex couple
residing in Hazel Park, Michigan. (Conclusions, RE 151, Page ID # 3945.) They have lived together for eight years. (Id.) Both are nurses and state-licensed foster parents. (Id.) Each has adopted children with special medical needs: DeBoer has adopted child R, and Rowse has adopted both N and J. (Id.)
III. The lawsuit and trial proceedings This case began as a challenge to Michigan’s adoption laws, with
the plaintiffs not even challenging Michigan’s marriage amendment.
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(Compl., RE 1, Page ID ## 5–7.) But when the district court concluded that Michigan’s adoption laws had not caused any injury to the plaintiffs, the court did not dismiss the complaint for lack of standing. Instead—and on its own initiative—it “invit[ed] plaintiffs to seek leave to amend their complaint to include a challenge to [Michigan’s marriage amendment].” (Conclusions, RE 151, Page ID # 3946.)
The plaintiffs accepted the court’s invitation, adding a second count to their complaint that challenged the marriage amendment as violating both due process and equal protection. (Am. Compl., RE 38, Page ID # 730–33.) When the State moved to dismiss the amended complaint, the district court held a hearing on the motion at a Wayne State University Law School auditorium and then later denied dismissal. (Notice of Hr’g, RE 50, Page ID # 924; Op., RE 54, Page ID # 935.)
Next, the court denied the parties’ cross motions for summary judgment. (Op. & Order, RE 89, Page ID # 2003.) The court recognized both that “[t]he underlying facts are not in dispute” and that under rational-basis review “ ‘[t]he government has no obligation to produce evidence to support the rationality of its . . . [imposed] classifications
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and may rely entirely on rational speculation unsupported by any evidence or empirical data.’ ” (Op. & Order, RE 89, Page ID ## 1997 & 2000 (quoting Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000)). The court nonetheless concluded that “a triable issue of fact exists regarding whether the alleged rationales for the [Michigan marriage amendment] serve a legitimate state interest.” (Op. & Order RE 89, Page ID # 2000).
The plaintiffs moved to bifurcate the trial. In Phase 1, the trial would focus on whether the State has a rational basis for defining marriage as the union of one man and one woman; if the State won on rational-basis review, then in Phase 2 the district court would consider whether heightened scrutiny should apply because the plaintiffs belonged to a quasi-suspect or suspect class. (Pls.’ Mot. to Bifurcate, RE 100, Page ID ## 2029, 2027.) The district court granted the motion to bifurcate (Order, RE 105, Page ID # 2070), despite the fact—which it later expressly acknowledged—that “governing Sixth Circuit precedent does not consider gay, lesbian, bisexual or transgender persons to constitute suspect or quasi-suspect classes.” (Conclusions, RE 151, Page ID # 3962.)
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Before trial, the plaintiffs filed a motion in limine under Daubert to bar testimony by Sherif Girgis. The State responded by pointing out Girgis’s qualifications—which include having his book on the definition of marriage cited by two U.S. Supreme Court justices in United States v. Windsor, 133 S. Ct. 2675, 2715, 2717 (2013) (Alito and Thomas, JJ., dissenting)—and by highlighting the relevance of his testimony, which would address philosophical and policy rationales for selecting the definition of marriage that Michigan’s voters chose. (State Defs.’ Resp., RE 134, Page ID ## 2682, 2688–91, & 2692–95.) The district court denied the plaintiffs’ motion to exclude Girgis a week before the trial.
The trial on whether the voters of Michigan had a rational basis for defining marriage as between one man and one woman took eight days and focused on expert witnesses on social science. On the fifth day of trial, when it was time for the State to put on Girgis as its first witness, the district court reversed course and refused to qualify Girgis as an expert. (3/3/2014 Trial Tr., RE 157 at 37.)1
1 Page ID numbers for the trial transcripts are not yet available because the transcripts will not be released until June.
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IV. The district court’s decision The district court issued its opinion on Friday, March 21, 2014.
Treating the question of rational basis as hinging on factual issues that could be resolved in a courtroom, the court concluded that the testimony of every one of the plaintiffs’ expert witnesses was credible and gave weight to each. (Conclusions, RE 151, Page ID ## 3948 (Brodzinsky, a psychologist), 3950 (Rosenfeld, a sociologist), 3952 (Sankaran, a law professor), 3953 (Cott, a historian), & 3954 (Brown, a county clerk).) In contrast, the court decided that the testimony of every one of the State’s witnesses was not credible and not entitled to any weight. (Conclusions, RE 151, Page ID ## 3956 (Regnerus, a sociologist), 3960–61 (Marks, a family studies professor, Price, an economist, and Allen, an economist).) The court characterized these experts as “clearly represent[ing] a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields.” (Conclusions, RE 151, Page ID # 3960.) The court did, however, recognize that it was not possible to make any finding that the voters acted out of animus: “Since the Court is unable discern the intentions of each individual voter who cast their ballot in favor of the measure, it . . . cannot ascribe
10

such motivations to the approximately 2.7 million voters who approved the measure.” (Conclusions, RE 151, Page ID # 3969.)
In its conclusions of law, the district court recognized that it was supposed to apply “the most deferential level of scrutiny, i.e., rational basis review,” a level of review under which the government has “ ‘no obligation to produce evidence’ ” and under which the plaintiff can prevail only if “ ‘the government’s actions were irrational.’ ” (Conclusions, RE 151, Page ID # 3963.) It then concluded that none of the State’s suggestions for why voters might have enacted the amendment provided a rational basis for the amendment. (Conclusions, RE 151, Page ID # 3964.) Because it concluded the amendment failed rationalbasis review, the court did not reach a decision whether the amendment “burdens the exercise of a fundamental right under the Due Process Clause” or whether “classifications based on sexual orientation are deserving of heightened scrutiny.” (Conclusions, RE 151, Page ID ## 3961–62.)
The district court did not grant the State’s request for a stay, even though the Supreme Court had already reversed a district court and the Tenth Circuit for denying a stay in similar circumstances. Order,
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Herbert v. Kitchen, No. 13A687 (U.S. Jan. 6, 2014). As a result, county clerks across Michigan issued marriage licenses to more than 300 individuals on Saturday, March 22, 2014, the day after the opinion, until this Court intervened by granting the State’s emergency motion for a stay pending appeal. (Order, RE 156, Page ID # 3982; Order, RE 162, Page ID # 4214.)
STANDARD OF REVIEW The district court’s conclusions of law are reviewed de novo. Dillon v. Cobra Power Corp., 560 F.3d 591, 599 (6th Cir. 2009). While findings of adjudicative fact can be overturned only if they are clearly erroneous, id., that standard is beside the point here because “[t]he underlying facts” in this case “are not in dispute.” (Op. & Order, RE 89, Page ID ## 1997.) Instead, the only disputes at issue in this case concern questions of legislative fact. There are “fundamental differences between adjudicative facts and legislative facts.” FED. R. EVID. 201 advisory committee’s note. “Adjudicative facts are simply the facts of the particular case.” Id. “Legislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process, whether in the formulation
12

of a legal principle or ruling by a judge or court or in the enactment of a legislative body.” Id.; see also Dayco Corp. v. FTC, 362 F.2d 180, 186 (6th Cir. 1966); Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2d Cir. 1971) (Friendly, C.J.) (“Adjudicative facts” are “facts about the parties and their activities, businesses, and properties, as distinguished from general facts which help the tribunal decide questions of law and policy and discretion.”) (internal quotation marks and citation omitted).
Because of these differences, legislative facts are reviewed de novo. See Lockhart v. McCree, 476 U.S. 162, 168 n.3, 169 (1986) (“We are far from persuaded, however, that the ‘clearly erroneous’ standard of Rule 52(a) applies to the kind of ‘legislative’ facts at issue here.”); see generally Dunagin v. City of Oxford, Miss., 718 F.2d 738, 748–49 n.8 (5th Cir. 1983) (en banc) (plurality opinion of Reavley, J.); see also, e.g., United States v. Singleterry, 29 F.3d 733, 740 (1st Cir. 1994) (“The clear error standard does not apply, however, when the fact-finding at issue concerns ‘legislative,’ as opposed to ‘historical’ facts.”); In re Asbestos Litig., 829 F.2d 1233, 1252 n.11 (3d Cir. 1987); A Woman’s Choice—E. Side Women’s Clinic v. Newman, 305 F.3d 684, 688 (7th Cir. 2002) (Easterbrook, J.). That is why “[t]rials are seldom desirable . . . on
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legislative facts.” Drummond v. Fulton Cnty. Dep’t of Family & Children’s Servs., 563 F.2d 1200, 1210 (5th Cir. 1977).
SUMMARY OF ARGUMENT This case is directly controlled by the U.S. Supreme Court’s summary affirmance in Baker v. Nelson, 409 U.S. 810 (1972). Because that case addressed the precise issue presented here and has not been overturned by the U.S. Supreme Court, this Court has an obligation, as an intermediate appellate court, to follow that decision. Wholly aside from Baker, this Court should recognize that its role in reviewing this sort of policy question is quite limited. Given that the district court’s decision does not rest on the presence of a fundamental right that is enshrined in the Constitution or that has such deep roots in our history that it must be recognized under the substantive-dueprocess doctrine, this issue is a question properly left to the people through the democratic process. And as the U.S. Supreme Court recently emphasized in Schuette v. BAMN, 572 U.S. ___ (2014) (plurality by Kennedy, J.), our system of democracy is based on the premise that the people are capable of deciding even sensitive issues on “decent and rational grounds.” Id., slip op. at 17. As the Supreme
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Court has also recognized (repeatedly), this particular issue— marriage—is an issue left to the people at the state level. This local control affords greater liberty to more people, as different States could choose to adopt different marriage definitions.
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 underinclusive 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
15

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.
Marriage has been a basic building block of societies all around the world across the span of history. Many voters, even those voters who may support same-sex relationships, may not have wished to alter the definition of marriage between a man and a woman.
The district court rejected these modest rationales by failing to properly apply rational-basis review. Instead of following the Supreme Court’s guidance that rational bases are not subject to courtroom fact finding, the court required a trial and purported to resolve these important legislative policy decisions as if they were mere credibility determinations. Instead of recognizing that legislative decisions inherently involve generalizations, the district court departed from proper rational-basis review by rejecting plausible arguments on the grounds that the people’s means (its definition of marriage) were not perfectly tailored to its desired end (promoting what is, in general, the ideal setting for raising children).
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In the end, reasonable people could disagree about altering marriage to include same-sex couples. That is enough to satisfy rational-basis review. This Court should reverse.
ARGUMENT I. The Supreme Court’s decision in Baker v. Nelson controls
this Court’s decision. The plaintiffs’ equal-protection challenge fails as a matter of law for a simple reason: the U.S. Supreme Court rejected these same challenges decades ago, in Baker v. Nelson, 409 U.S. 810 (1972). In Baker, the plaintiffs asserted, just as here, “that the right to marry without regard to the sex of the parties is a fundamental right of all persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” Baker v. Nelson, 291 Minn. 310, 312 (1971). The Minnesota Supreme Court rejected both of these contentions, and the U.S. Supreme Court summarily affirmed “for want of a substantial federal question.” Baker, 409 U.S. at 810. While this might not be the most exciting ground on which to resolve this case, it has other virtues: it is simple, legally correct, and respectful of this Court’s modest role as an intermediate appellate
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court. The Supreme Court has made clear that its dismissals for want of a substantial federal question “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977). Because Baker presented and necessarily decided the precise issues present in this case, this Court is bound by Baker.
The Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), did not overturn Baker and does not grant this Court the authority to disregard Baker. As this Court has recognized when sitting en banc, “the ‘exhilarating opportunity’ to anticipate the overruling of Supreme Court precedent should be resisted, because the Court generally bears responsibility for determining when its own cases have been overruled by later decisions.” United States v. Koch, 383 F.3d 436, 439 (6th Cir. 2004) (en banc), rev’d on other grounds, 544 U.S. 995 (2005). The Supreme Court has been quite clear on this point: “We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. Rather, lower courts should follow the case which directly controls, leaving to this Court the prerogative of overruling its own
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decisions.” Agostini v. Felton, 521 U.S. 203, 237 (1997); Song v. City of Elyria, Ohio, 985 F.2d 840, 843 (6th Cir. 1993) (“summary dispositions have the same precedent[i]al value as other holdings and are binding on the lower courts until the Supreme Court decides otherwise”).
II. The definition of marriage is a policy question to be decided by the people through the democratic process. A. The people’s right to vote reaches this issue, because there is no fundamental right to same-sex marriage. “[F]or reasons too self-evident to warrant amplification here, we
have often reiterated that voting is of the most fundamental significance under our constitutional structure.” Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979); see also Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (describing voting as “a fundamental political right, because [it is] preservative of all rights”). The right to vote, exercised indirectly by electing representatives or directly through ballot initiatives and referenda, is the fundamental right to govern ourselves. It is “a fundamental right held not just by one person but by all in common.” Schuette v. BAMN, slip op. 16 (plurality opinion by Kennedy, J.).
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We as a country have, in specific areas, tied our own hands by removing certain issues from the political process. Some rights are so fundamental that we have chosen to enshrine them in the Bill of Rights. W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”). Other rights are so fundamental—so “objectively, ‘deeply rooted in this Nation’s history and tradition’ ” and “so rooted in the traditions and conscience of our people as to be ranked as fundamental” that they are “ ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed,’ ” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (citations omitted)—that they too cannot be impaired by Congress or by a state.
The issue of same-sex marriage is not such a topic. It is not a topic the people have expressly addressed in the U.S. Constitution, thereby resolving it through the democratic process, nor is it a right deeply rooted in our Nation’s history and tradition. To the contrary, as
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the Supreme Court recognized in Windsor, “[i]t seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might” marry. 133 S. Ct. at 2689; accord, 133 S. Ct. at 2715 (Alito, J., dissenting) (“It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition.”); see also Hernandez v. Robles, 7 N.Y.3d 338, 361 (2006) (plurality) (“Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.”). And the reason that rights must “be deeply rooted in our legal tradition” to be recognized under a substantive-due-process theory is to protect democracy: “to rein in” the necessarily “subjective elements” of substantive-due-process review, Glucksberg, 521 U.S. at 722, so that rights will be recognized through the democratic process, rather than being created by federal courts. See also id. at 723 (rejecting the argument that assisted suicide was a fundamental right because accepting that proposition would require “revers[ing] centuries of legal doctrine and practice, and strik[ing] down the considered policy choice of almost every State”).
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Nor is it true that issues touching on sexual orientation are entitled to some higher level of scrutiny. The Supreme Court has never announced that sexual orientation creates a suspect class; quite the opposite, the Supreme Court has applied rational-basis review to sexual-orientation issues. E.g., Romer v. Evans, 517 U.S. 620, 631 (1996) (“[I]f a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.”). This Court has properly followed the Supreme Court’s lead by concluding that “homosexuality is not a suspect class,” Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006); Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012)—decisions that are binding on this panel. Nine other circuits have reached the same conclusion. E.g., Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Peterson v. Bodlovich, 215 F.3d 1330 (7th Cir. 2000); Citizens for Equal Protection v. Bruning, 455 F.3d 859, 866–67 (8th Cir. 2006); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113–14, 1113 n.9 (10th Cir. 2008); Lofton v. Sec’ of Dep’t of Children & Family Servs., 358
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F.3d 804, 818 (11th Cir. 2004); Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en banc); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989).
While same-sex marriage thus is not a fundamental right and does not involve a suspect class, it undeniably is an issue of great importance and sensitivity to many people. But the fact that this is a sensitive topic does not allow courts to “disempower the voters from choosing which path to follow.” Schuette v. BAMN, 572 U.S. ___, slip op. 13 (2014) (plurality). As Justice Kennedy recently explained, “[i]t 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.” Id. at 17 (discussing race-based preferences in university admissions). “Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Id. at 18. Quite the opposite, “[o]ur constitutional system embraces, too, the right of citizens to . . . act in concert to try to shape the course of their own times.” Id. at 15–16. It would be “inconsistent with the underlying premises of a responsible, functioning democracy” to accept the argument that “a difficult question of public policy must be taken from
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the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign.” Id. at 16; see also Washington v. Glucksberg, 521 U.S. 702, 735 (1997) (“Our holding [regarding assisted suicide] permits this debate to continue, as it should in a democratic society.”).
These principles provide an important framework for this Court’s consideration of this case. The Supreme Court “has long held that ‘a classification neither involving fundamental rights nor proceeding along suspect lines . . . cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.’ ” Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2080 (2012) (quoting Heller v. Doe, 509 U.S. 312, 319–320 (1993)).
Here, the district court did not hold that same-sex marriage is a fundamental right or that it implicates a suspect class. Quite the opposite, it correctly assumed that same-sex marriage is an issue the people may address through legislation. (Conclusions, RE 151, Page ID # 3961 (“[T]he Court finds it unnecessary to address whether the [marriage amendment] burdens the exercise of a fundamental right
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under the Due Process Clause.”).) This part of the district court’s approach was consistent with the fact that domestic-relations laws have always been a topic left to the people at the state level.
B. As Windsor reaffirmed, the definition of marriage is left to voters at the state level in our federalist system.
The Supreme Court has repeatedly and consistently recognized that the people at the state level, not the federal level, have authority over the definition of marriage. E.g., Pennoyer v. Neff, 95 U.S. 714, 734–35 (1877) (“The State . . . has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.”); Ex parte Burrus, 136 U.S. 586, 593–94 (1890) (“The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the United States.”); Simms v. Simms, 175 U.S. 162, 167 (1899) (same); Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce.”), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942); Loving v. Virginia, 388 U.S. 1, 7 (1967)
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(“marriage is a social relation subject to the State’s police power”); Sosna v. Iowa, 419 U.S. 393, 404 (1975) (noting that “domestic relations” are “an area that has long been regarded as a virtually exclusive province of the States” and quoting Pennoyer and Simms).
Windsor reaffirmed this basic point: “By history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States.” 133 S. Ct. at 2689–90. Windsor specifically recognized that “[t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’ ” Id. at 2691.
Indeed, when the majority in Windsor overturned the federal Defense of Marriage Act, it highlighted the fact that DOMA was an “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage,” an aberration that conflicted with “the unquestioned authority of the States” over marriage. Id. at 2693 (emphasis added). Marriages recognized as valid under state law (such as, in Windsor, under New York law) were entitled to be treated
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with dignity precisely because it was “a dignity conferred by the States in the exercise of their sovereign power.” Id. The Court’s entire equalprotection analysis rests on this premise of state-conferred dignity. See id. (“the congressional purpose [was] to influence or interfere with state sovereign choices about who may be married”); id. at 2694 (recognizing that DOMA affected “state-sanctioned marriages” that “the State has sought to dignify”); id. at 2695 (“marriages made lawful by the State”); id. at 2696 (“a status the State finds to be dignified and proper”); id. (referring to “those whom the State, by its marriage laws, sought to protect in personhood and dignity”).
Applying this analysis requires respecting “state sovereign choices,” and implicitly recognizes that States do in fact have a choice not to extend marriage to same-sex couples. Many “States in the exercise of their sovereign power” have chosen not to extend the boundaries of marriage. Other States have chosen to extend marriage to same-sex couples. If the people of a State choose, as the people of 33 states including Michigan have, to retain the definition of marriage they have always recognized, so that marriage is a union of one man and one woman, their decision is also entitled to respect.
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In Michigan alone, roughly 2.7 million citizens (almost 60% of those who voted), exercising their right to vote on this issue, voted to retain Michigan’s longstanding definition of marriage.2 In the four States that comprise the Sixth Circuit, 8.6 million voters have reached the same conclusion and enacted similar amendments.3 KY. CONST. § 233A; OHIO CONST. art. XV, § 11; TENN. CONST. art. XI, § 18. Respecting the dignity of individuals in a democracy includes not just preserving their liberty to engage in private conduct, Lawrence v. Texas, 539 U.S. 558, 578 (2003), but also their liberty to engage in selfgovernment. Burson v. Freeman, 504 U.S. 191, 214 (1992) (Kennedy, J., concurring) (“Voting is one of the most fundamental and cherished liberties in our democratic system of government.”); see also STEPHEN BREYER, Active Liberty: Interpreting Our Democratic Constitution 21 (Vintage Books 2005) (“[T]he Constitution [is] centrally focused upon active liberty, upon the right of individuals to participate in democratic self-government.”). 2 http://ballotpedia.org/Michigan_Marriage_Amendment,_Proposal_2_ (2004). 3 http://ballotpedia.org/Ohio_Issue_1,_the_Marriage_Amendment_ (2004); http://ballotpedia.org/Kentucky_Marriage_Amendment_(2004); http://ballotpedia.org/Tennessee_Same-Sex_Marriage_Ban,_ Amendment _1_ (2006).
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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.4 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.
While this authority of the people, exercised at the state level, is subject to “certain constitutional guarantees,” Windsor, 133 S. Ct. at 2680, such as the prohibition against racial discrimination, Loving, 388 U.S. at 12 (“The Fourteenth Amendment requires that the freedom of 4 http://ballotpedia.org/Marriage_and_family_on_the_ballot (linking to individual statistics by state).
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choice to marry not be restricted by invidious racial discriminations.”), the only constitutional guarantee at issue in this appeal is whether the voters complied with the Equal Protection Clause by having a rational basis for their votes.
Leaving issues of domestic law to the people at the state level makes sense, as it permits the people to address social issues at a more local level. E.g., Chandler v. Florida, 449 U.S. 560, 579 (1981) (discussing States as laboratories of democracy); BREYER, Active Liberty 57 (Our country’s federal structure “help[s] to secure more effective forms of active liberty, i.e., as facilitating meaningful citizen participation in government by preserving a more local decision-making process.”). This freedom to vote has benefitted supporters of same-sex marriage, as they have succeeded in some States (such as Maine, Maryland, and Washington) in persuading voters through the democratic processes to redefine marriage to include same-sex relationships. But if the people of a given State choose not to alter a foundational building block of society or have other good-faith reasons for wanting to retain marriage as is, they should also have the freedom to make those choices. And by leaving this issue to the democratic processes, rather than engraving it
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into the bedrock of constitutional law, e.g., Roe v. Wade, 410 U.S. 113 (1973), the people can review their decisions concerning the definition of marriage and look for ways to resolve the issue through compromise and agreement, rather than through a judicial mandate.
C. Rational-basis review governs this issue and defers to the voters precisely to protect the democratic process.
As noted above, “ ‘a classification neither involving fundamental rights nor proceeding along suspect lines . . . cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.’ ” Armour, 132 S. Ct. at (quoting Heller, 509 U.S. at 319–320).
The rational-basis standard of review is not a mere bit of legal technicality. It is an important principle of judicial restraint and of separation of powers because it preserves the people’s authority to govern themselves by making policy decisions. The Equal Protection Clause “is not a license for courts to judge the wisdom, fairness, or logic of [the voters’] choices.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). To the contrary, “the courts have been very reluctant, as they should be in our federal system and with our respect for the
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separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent [a State’s] interests should be pursued.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 441–42 (1985). As the Fifth Circuit recently explained, “the rational basis test . . . affirms a vital principle of democratic self-government”: “[t]he court may not replace legislative predictions or calculations of probabilities with its own, else it usurps the legislative power.” Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, __ F.3d __, 2014 WL 1257965, *7 (5th Cir. 2014).
That is why the Supreme Court has emphasized that “rational basis review” includes “a strong presumption of validity.” Beach Commc’ns, 508 U.S. at 314–15. “Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.” Id. at 315 (internal quotation marks omitted). “This standard of review is a paradigm of judicial restraint.” Id. at 314.
The limitations imposed on a court applying rational-basis review serve this important interest of restraining judicial invalidation of democratically enacted laws. Under rational-basis review, courts must
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give the legislative body—here, the people themselves—the benefit of every doubt: “those attacking the rationality of the legislative classification have the burden ‘to negative every conceivable basis which might support it.’ ” Beach Commc’ns, 508 U.S. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)) (emphasis added). “ ‘States are not required to convince the courts of the correctness of their legislative judgments.’ ” Heller, 509 U.S. at 326. Quite the opposite: if “ ‘the question is at least debatable,’ ” then rational-basis review requires upholding the legislative judgment. Id. (quoting W. & S. Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 674 (1981)).
The Supreme Court has been quite clear that these conceivable bases do not have to be proved by evidence at a trial: “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Id.; Heller, 509 U.S. at 320 (“A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification.”). And “[t]hese restraints on judicial review have added force ‘where the legislature must necessarily engage in a process of line-drawing.’ ”
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Beach Commc’ns, 508 U.S. at 315 (quoting U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)). This added force applies here because setting the definition of marriage inherently requires line-drawing—lines such as age, number of participants, sex, consanguinity requirements, duration, and exclusivity. And as the Supreme Court has made clear, “[e]ven if [a] classification . . . is to some extent both underinclusive and overinclusive, and hence the line drawn by [the legislature or people] is imperfect, it is nevertheless the rule that in [rational basis review] ‘perfection is by no means required.’ ” Vance v. Bradley, 440 U.S. 93, 108–09 (1979) (quoting Phillips Chemical Co. v. Dumas Sch. Dist., 361 U.S. 376, 385 (1960)).
D. The district court failed to properly apply rationalbasis review.
Simply recounting these limitations confirms that the district court did not properly apply rational-basis review. At the outset, it should not have required the State to submit to a trial. Even after expressly acknowledging that the adjudicative facts of the case were not in dispute—“[t]he underlying facts are not in dispute,” it said—the district court nonetheless concluded that “a triable issue of fact exists
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regarding whether the alleged rationales for the [marriage amendment] serve a legitimate state interest.” (Op. & Order, RE 89, Page ID ## 1997, 1999; see also Conclusions, RE 151, Page ID # 3947 (“In setting the case for trial, the Court directed the parties to address a narrow legal issue: whether the [marriage amendment] survives rational basis review.”).) But the rationales for the amendment are issues of legislative fact, not adjudicative fact, and the Supreme Court has made clear such rationales are not “triable” issues of fact: “a legislative choice is not subject to courtroom fact-finding.” Beach Commc’ns, 508 U.S. at 315.
At the trial, the district court continued to treat possible rationales as questions of adjudicative fact. For example, the district court excluded the State’s first witness (Sherif Girgis) under the rules of evidence for experts, as if he were going to testify about adjudicative facts. The district court thus refused to hear from Girgis on philosophical questions about marriage, even though Justices of the Supreme Court have cited Girgis’s work on this precise issue without requiring him to qualify as an expert. Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting, joined by Thomas, J.) (citing S. GIRGIS, R.
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ANDERSON, & R. GEORGE, What is Marriage? Man and Woman: A Defense 53–58 (2012)).
The district court also acted as if debatable questions of social science were issues it could resolve through factual findings. (See generally Conclusions, RE 151, Page ID ## 3947–61 (purporting to make credibility determinations about social science studies).) But the Supreme Court has already indicated that it is “far from persuaded . . . that the ‘clearly erroneous’ standard of Rule 52(a) applies to the kind of ‘legislative facts at issue here.” Lockhart, 476 U.S. at 168 n.3 (addressing “social science studies” and citing Dunagin, 718 F.2d at 748 n.8 (plurality opinion of Reavley, J.)). As Judge Reavley pointed out, “[t]he writings and studies of social science experts on legislative facts are often considered and cited by the Supreme Court with or without introduction into the record or even consideration by the trial court.” Dunagin, 718 F.2d at 748 n.8 (citing cases).
More fundamentally, “[t]here are limits to which important constitutional questions should hinge on the views of social scientists who testify as experts at trial.” Id. “The social sciences play an important role in many fields, including the law, but other unscientific
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values, interests and beliefs are transcendent.” Id. Voters can act on “rational speculation,” Beach Commc’ns, 508 U.S. at 315—perhaps another term for common sense—without being second-guessed by courts. The Equal Protection Clause does not impose a regime of “rule by social scientists.” We do not have to accept their studies, all of which have limitations of one sort or another. See Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) (“The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.”).
These examples—and others addressed in the next section—reveal that the district court did not remain true to the limitations of rationalbasis review. Under a proper rational-basis review, Michigan’s marriage amendment may be sustained on numerous grounds.
III. The people had numerous rational grounds for preserving the definition of marriage. A. Encouraging opposite-sex couples to enter into a permanent, exclusive relationship within which to have and raise children—into a marriage—is a legitimate state interest. The first question in considering whether it is rational to define
marriage as between one man and one woman is to ask what the State’s interest in marriage is in the first place. Why is it that Michigan—like
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the other States and like countries around the world, throughout all of history—has thought it important to have laws relating to marriage, while leaving other relationships, like friendships, free from restrictions?
While most married people would consider the emotional connection to be a very important component of marriage, emotional connection alone does not explain the State’s interest. Friendships and relationships, after all, can also demonstrate love and commitment (think of a soldier diving on a grenade to save his squad), yet no state or country has shown any interest in passing laws about what it takes to enter into a friendship, or what it takes to end one. Friendships and relationships do not have age, gender, number, or consanguinity limits—siblings can be friends, and groups of people can be friends. If marriage, like other friendships, were only about an emotional connection—if it were only about love, commitment, and companionship—then it would be unclear what interest (other than moral approval of that friendship) the State might have.
The State’s interest in marriage springs from a feature of opposite-sex intimate relationships that is obviously different from
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other relationships (including opposite-sex Platonic friendships and same-sex intimate relationships): the sexual union of a man and a woman produces something more than just an emotional relationship between two people—it produces the possibility, even the likelihood, of the creation of a third person.
In short, the State has an interest in encouraging men and women to marry because of its interest in procreation and the raising of children. This point is well established in the law. E.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (describing marriage as “fundamental to our very existence and survival”); Skinner v. State of Okl. ex rel. Williamson, 316 U.S. 535, 541 (1942) (“Marriage and procreation are fundamental to the very existence and survival of the race.”); Gard v. Gard, 204 Mich. 255, 267 (1918) (“It has been said in many of the cases cited that one of the great purposes of marriage is procreation.”); Maynard v. Hill, 125 U.S. 190, 211 (1888) (“[Marriage] is the foundation of the family and of society, without which there would be neither civilization nor progress.”); Baker v. Baker, 13 Cal. 87, 103 (1859) (“[T]he first purpose of matrimony, by the laws of nature and society, is procreation.”); State v. Fry, 4 Mo. 120, 126 (1835) (“ ‘[M]arriage is a
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compact between a man and a woman for the procreation and education of children.’ ”) (quoting Sir Francis Bacon, 6 Bacon Abr. 523, 530).
Given these legitimate interests in procreation and in the raising of children, the relevant rational-basis question is whether defining marriage as between a man and a woman advances those interests.
B. Michigan voters could rationally have concluded it is beneficial for children to be raised by both a mom and a dad.
It is certainly within the realm of rational speculation to believe that children benefit from being raised by both a mother and a father. Men and women are different, and having both a man and a woman as part of the parenting team could reasonably be thought to be a good idea.
The idea that men and women are different is not a controversial one, at least in the United States Reports. The Supreme Court has recognized that “ ‘[t]he two sexes are not fungible; a community made up exclusively of one is different from a community composed of both.’ ” Ballard v. United States, 329 U.S. 187, 193 (1946). In Ballard, in the context of whether women needed to be included on juries, the Court recognized that “a distinct quality is lost if either sex is excluded.” Id.;
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see also, e.g., United States v. Virginia, 518 U.S. 515, 533 (1996) (quoting Ballard); Peters v. Kiff, 407 U.S. 493, 504 n.12 (1972) (quoting Ballard). A rational person might think that “men and women are persons of equal dignity and they should count equally before the law” while also thinking that “they are not the same.” Tr. of Oral Argument at 15, Duren v. Missouri, 439 U.S. 357 (1979) (argument by Ruth Bader Ginsburg). “There are differences between them that most of us value highly. . . . I think that we—perhaps all understand it when we see it and we feel it but it is not that easy to describe, yes, there is a difference.” Id. If this principle—that both men and women have important viewpoints and contributions to make—is true in the context of a jury pool, it is at least rational to conclude it is also true in the context of a family.
It is also rational to think that moms and dads both might make important contributions to child raising. E.g., Dixon v. Houk, 627 F.3d 553, 568 (6th Cir. 2010) (Cole, J., concurring) (approvingly identifying “lack of father figure” as a mitigating factor for punishment), rev’d on other grounds, Bobby v. Dixon, 132 S. Ct. 26 (2011); United States v. Harris, 2014 WL 819394 (7th Cir. Mar. 4, 2014) (same). Even the
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plaintiffs’ experts agree there are “average differences in the ways that mothers and fathers interact with their children.” (2/25/14 Trial Tr., RE 143 (Part B) at 15 (Brodzinsky).) “Mothers tend to be more emotion focused,” while “[f]athers, in turn, are more playful” and “a little bit more task-oriented in their interactions.” (Id. at 15–16.) As another of the plaintiffs’ experts acknowledged, “different sexes bring different contributions to parenting,” and “there are different benefits to mothering versus fathering.” (2/28/14 Trial Tr., RE 149 at 55 (Cott).) If, as the plaintiffs thus concede, mothers and fathers provide different benefits, it is hard to see how it could be irrational to encourage a structure that brings both sets of benefits to children.
One might also reasonably believe that it is beneficial for children to have a biological connection to both of their parents. The biological connection matters to parents: it matters to new parents at the maternity ward which child the nurse hands them. Similarly, children care who their biological parents are. Consider, for example, children who are adopted and who therefore do not know their biological parents. It is common for adopted children, even ones with wonderful, loving adoptive parents, to wonder who their biological parents are, to
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wonder what the people who gave them their genes are like, and to try to learn more about them and to get to know them. The same type of questions will arise for many children raised in same-sex marriages. By definition, same-sex parents necessarily require the exclusion of at least one biological parent, and at least one legal parent who would have no biological connection to the child. A reasonable person might think that an intact biologically related family is, on average, beneficial for children, and therefore worth promoting.
These modest statements—that men and women are different and that having both a mother and a father benefits a child—are not outside the realm of rational speculation. A rational person could quite easily conclude that both statements are true—or at least debatable, Heller, 509 U.S. at 326—and accordingly that promoting marriage between men and women therefore benefits the children that quite commonly are born to opposite-sex couples. A rational person, in short, might think that “ ‘[t]he optimal situation for the child is to have both an involved mother and an involved father.’ ” Bowen v. Gilliard, 483 U.S. 587, 614 (1987) (Brennan, J., dissenting) (stating that this principle is “underscored by considerable scholarly research”).
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A number of presumably rational jurists have already accepted these points. E.g., Hernandez v. Robles, 7 N.Y.3d 338, 359–60 (2006) (plurality) (“Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.”); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1115 (D. Haw. 2012) (concluding that it is “at least debatable” that “other things being equal, it is best for children to be raised by their married biological parents or with two parents of opposite genders”); In re Marriage of J.B. & H.B., 326 S.W.3d 654, 678 (Tex. App. 2010) (“The state also could have rationally concluded that children are benefited by being exposed to and influenced by the beneficial and distinguishing attributes a man and a woman individually and collectively contribute to the relationship.”).
These are modest claims, not bold ones. Most people in this country would probably agree with them, or at least think they are within the realm of reasonable debate. They are not the types of beliefs that can fairly be characterized as irrational or ridiculous.
The district court rejected these arguments, but only by repeatedly failing to follow the strictures of rational-basis review. First,
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it concluded that “the evidence adduced at trial disproved” the premise “that heterosexual married couples provide the optimal environment for raising children.” (Conclusions, RE 151, Page ID # 3964.) Now that is a bold claim. For one, it asserts (based on the testimony of four of the plaintiffs’ experts—a psychologist, a sociologist, a law professor, and a historian) that science has conclusively disproved the idea that the best scenario, on average, for raising children is for them to be raised by their biological mom and dad. For another, it rests on a legal premise— that these types of questions can be resolved by courtroom factfinding—that is directly contrary to Supreme Court precedent. E.g., Beach Commc’ns, 508 U.S. at 315 (“a legislative choice is not subject to courtroom fact-finding.”).
The district court also thought that the State’s “optimal childrearing justification . . . is belied” by the fact that the State does not impose certain requirements—“the ability to have children” (fertility), a promise “to raise them in any particular family structure,” or a promise to “achiev[e] certain ‘outcomes’ for children”—as prerequisites to marriage. (Conclusions, RE 151, Page ID # 3965.) In other words, the district court thought that by allowing infertile couples to marry,
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Michigan had conceded that child-rearing is not really important to marriage. But the facts that not every marriage will result in children, or that some marriages might end in divorce, or that some married opposite-sex couples will not be great parents does not undermine the generalization that being in a family with a married mom and dad is, on average, the optimal environment for children. This argument by the district court strays from the principle that “courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Heller, 509 U.S. at 321. “A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Id. (internal quotations omitted). Under rationalbasis review, “[e]ven if the classification . . . is to some extent both underinclusive and overinclusive, and hence the line drawn by [the legislature] imperfect, it is nevertheless the rule that in a case like this ‘perfect is by no means required.’ ” Vance, 440 U.S. at 108. In short, the fact that Michigan allows opposite-sex couples who, for various reasons, do not procreate to marry does not render its interest in marriage an irrational illusion.
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Similarly, the district court thought the amendment was irrational because Michigan does not “exclude certain classes of heterosexual couples from marrying whose children persistently have had ‘sub-optimal’ development outcomes.” (Conclusions, RE 151, Page ID # 3966.) Michigan’s position, the court thought, would lead to an absurd result if taken “to its logical conclusion”: the court thought it would mean that “only rich, educated, suburban-dwelling, married Asians may marry, to the exclusion of all other married heterosexual couples.” (Id.)
The problem with this objection, like the last, is that it asks for narrow tailoring, which is not a feature of rational-basis review. Instead, legislative choices “are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific,” Heller, 509 U.S. at 321. In other words, legislative bodies can make compromises and stop short of logical extremes; they can draw lines, saying “here, but no further.”
The district court’s next reason for finding it irrational to limit marriage to one man and one woman was that the definition “actually fosters the potential for childhood destabilization” for children being
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raised by same-sex couples. (Conclusions, RE 151, Page ID # 3967.) But this criticism is another under-inclusion argument. While it is true that extending the boundaries of marriage (for example, to same-sex couples) might give some children being raised in those arrangements more stability, that does not mean it is irrational to accept the generalization that maintaining the definition of marriage will promote stability for the vast majority of children (that is, children born of opposite-sex couples). And consider what the logical extension of the district court’s argument is: to eliminate this under-inclusion, all boundaries on marriage would be invalid because any given limitation could, with respect to particular children, make it less likely the adults raising them will stay together.
The district court’s final objection is that “the ‘optimal environment’ justification . . . is simply not advanced by prohibiting same-sex couples from marrying.” (Conclusions, RE 151, Page ID # 3967.) But this objection also departs from rational-basis review, because it asks the wrong question and therefore flips the burden of persuasion. Under rational-basis review, when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of
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other groups would not, we cannot say that the statute’s classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.” Johnson v. Robison, 415 U.S. 361, 383 (1974). In this case, including opposite-sex couples within the definition of marriage directly advances the State’s interest in encouraging those couples that can biologically procreate to care for their children. But extending marriage to samesex couples would do nothing to advance that interest. It is an interest that simply does not implicate same-sex couples, who are differently situated as a matter of simple biology. See Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 366–67 (2001) (“Under rational-basis review, where a group possesses ‘distinguishing characteristics relevant to interests the State has the authority to implement,’ a State’s decision to act on the basis of those differences does not give rise to a constitutional violation.”).
Given that including opposite-sex couples does advance this interest, it is not a valid objection under rational-basis review to ask whether it detracts from the interest to exclude others who do not advance the interest. Consider, for example, the situation in Robison. There, Congress sought to advance its interest in “ ‘enhancing and
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making more attractive service in the Armed Forces of the United States.’ ” 415 U.S. at 382 (quoting 38 U.S.C. § 1651(1)). It did this by providing educational benefits to all military veterans, based on Congress’s “judgment that such benefits would make military service more attractive to enlistees and draftees alike.” Id. Even for draftees (i.e., those who did not volunteer to serve), the presence of educational benefits advanced the governmental interest because the benefits “may help induce a registrant either to volunteer for the draft or not seek a lower Selective Service classification.” Id. But extending the benefits to a conscientious objector—someone who refuses to serve based on deeply held religious beliefs—would not advance the interest in encouraging service. Accordingly, the Court in Robison recognized that where including one group (enlistees and draftees) promotes a legitimate governmental purpose (encouraging military service) but adding another group (conscientious objectors) would not, a court cannot say the decision to give benefits to one but not the other is discriminatory. Id. at 383.
In any event, there is at least some cause to think that weakening the link between marriage and procreation (by no longer holding up the
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intact marriage of a man and a woman as the ideal environment for raising children) could harm the State’s interest in marriage. Without that definition, no institution in society would reinforce the idea, which even the plaintiffs’ experts admit, that mothers and fathers have, in general, different parenting strengths. Further, weakening marriage’s link to procreation might reduce the social norms that encourage husbands to stay with their wives and children, or for men and women to marry before having children.
In the end, it is at least debatable that defining marriage as between a man and a woman advances the State’s interest in encouraging parents to stick together to care for and raise their children. And if it is at least debatable, then this Court has no authority to overturn the people’s legislative choice. Beach Commc’ns, 508 U.S. at 320 (“The assumptions underlying these rationales may be erroneous, but the very fact that they are ‘arguable’ is sufficient, on rational-basis review, to ‘immuniz[e]’ the congressional choice from constitutional challenge.”) (alteration in original).
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C. It is rational to promote marriage in the setting where children naturally (biologically) come from—the union of a man and a woman.
It is a basic fact of biology that children come from the sexual union of a man and a woman. Because sexual interactions between a man and a woman produce children, the State has an interest in encouraging those sexual interactions to occur in long-term, committed relationships, so that the resulting children will be raised by both their mom and their dad.
Marriage between opposite-sex couples advances this interest. Promoting marriage as an institution encourages long-term, committed relationships. Promoting marriage between a man and a woman thus increases the likelihood that when children are born, both of their biological parents will be there to care for them and to prepare them to be mature members of society. E.g., Hernandez, 7 N.Y.3d at 359 (“The Legislature . . . could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.”).
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Promoting marriage between opposite-sex couples is thus a rational means to advance the State’s interest in caring for children, as a number of courts have recognized. E.g., Citizens for Equal Protection v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006) (recognizing that “defining marriage as the union of one man and one woman” is “rationally related to the government interest in ‘steering procreation into marriage’ ”); Andersen v. King Cnty., 158 Wash. 2d 1, 37 (2006) (“Under the highly deferential rational basis inquiry, encouraging procreation between opposite-sex individuals within the framework of marriage is a legitimate government interest furthered by limiting marriage to opposite-sex couples.”). The voters’ decision to tie marriage to oppositesex couples, as it has been throughout all of human history, thus is not an act of bigotry or animus. It is a simple recognition that biology matters. Nguyen v. INS, 533 U.S. 53, 73 (2001) (“To fail to acknowledge even our most basic biological differences . . . risks making the guarantee of equal protection superficial, and so disserving it.”).
Same-sex couples are not similarly situated to opposite-sex couples when it comes to producing children. Same-sex couples cannot produce a child unintentionally; they can only have a child through
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deliberate medical procedures that require the participation of at least one person (someone of the opposite sex) outside the couple. Promoting marriage for opposite-sex unions directly advances the State’s goal. It encourages the sexual relations that produce children to occur within a marriage relationship; extending marriage to same-sex unions would not promote that interest.
D. Citizens of a State may not wish to alter a central building block of society.
Marriage is a foundational institution, a basic building block of our society. This is not hyperbole. The Supreme Court, a body not known for exaggeration, has described marriage as “the foundation of the family and of society, without which there would be neither civilization nor progress,” Maynard v. Hill, 125 U.S. 190, 211 (1888), as “an institution more basic in our civilization than any other,” Williams v. State of N. Carolina, 317 U.S. 287, 303 (1942), and as “fundamental to the very existence and survival of the race,” Skinner v. State of Okl. ex rel. Williamson, 316 U.S. 535, 541 (1942). It is a cornerstone embedded deeply not only in Michigan’s and the Nation’s history, but also in the history of countries around the world.
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Voters, even those who approve of same-sex relationships, might not wish to alter the definition of this time-tested building block of society. A rational voter might worry about the law of unintended consequences, and might conclude that there is some risk that changing the definition of marriage to remove its inherent connection to procreation might undermine the value of marriage in the long term as an institution for linking parents to their biological children. A rational person might think, for example, that “[t]he long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.” Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting). “At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.” Id. at 2716.
One thing that we do know is that “it sometimes takes decades to document the effects of social changes . . . on children and society.” Windsor, 133 S. Ct. at 2715 n.5 (Alito, J., dissenting). As Justice Alito observed, “sociologists have documented” this fact in the area of “the sharp rise in divorce rates following the advent of no-fault divorce.” Id.
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(citing J. WALLERSTEIN, J. LEWIS, & S. BLAKESLEE, The Unexpected Legacy of Divorce: The 25 Year Landmark Study (2000)). Proponents of no-fault divorce relied on studies conducted in the 1950s through 1970s about the effects of divorce on children—even while acknowledging, much like the plaintiffs’ experts here, that the research was “ ‘new’ and ‘not definitive’ ”—to suggest that children were “far worse off in an intact but unhappy household than after a divorce.” HELEN M. ALVAŔE, The Turn Toward the Self in the Law of Marriage & Family: Same-Sex Marriage & Its Predecessors, 16 STAN. L. & POL’Y REV. 135, 149 & n.61 (2005). “The hastiness of these [social science] judgments” has become evident in light of more recent research documenting the negative effects of divorce on children. Id. at 149–50.
The district court rejected this line of reasoning as “not persuasive,” but did so by engaging in circular reasoning. (Conclusions, RE 151, Page ID # 3967.) Although recognizing that “[l]egislative and regulatory agencies often cite” a wait-and-see justification “when postponing decisions related to issues of public importance,” the court concluded that this “calculus is fundamentally altered when constitutional rights are implicated because ‘any deprivation of
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constitutional rights calls for prompt rectification.’ ” (Conclusions, RE 151, Page ID # 3967 (quoting Watson v. Memphis, 373 U.S. 526, 532–33 (1963).) But the district court’s reasoning assumes the very question to be decided: is it constitutional under the Equal Protection Clause for a State to define marriage as between a man and a woman? Its reasoning chases its own tail: Why is it irrational to wait and see? Because it violates a constitutional right. Why does it violate a constitutional right? Because it is irrational to wait and see. Why is it irrational to wait and see? Because it violates a constitutional right. And so on.
The district court’s second objection on this point is that allowing a State to proceed with caution “ ‘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.’ ” (Conclusions, RE 151, Page ID # 3968.) But the fact that it is often rational to proceed with caution does not make it any less rational in a particular instance. The fact that it will almost always be prudent to look both ways before crossing the street is not a reason to stop looking.
57

E. Loving v. Virginia does not alter this analysis. The Supreme Court’s decision in Loving enforced the Fourteenth Amendment’s ban on treating people differently because of their race. The Supreme Court properly struck down Virginia’s ban on interracial marriage, recognizing that “[t]here can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race.” Loving v. Virginia, 338 U.S. 1, 11 (1967). The Supreme Court recognized that the people of the United States had added the Equal Protection Clause specifically to eliminate racial discrimination: “it was the object of the Fourteenth Amendment to eliminate” “racial discrimination,” id. It reiterated that “[t]here can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” Id. at 12. This case is quite different from Loving. Here, the people of the United States have not passed any constitutional amendment whose central meaning is to address sexual orientation. It is simply not an issue that has been resolved by the people at the federal constitutional level. Further, this Court has already recognized that sexual
58

orientation is not a suspect class under the Equal Protection Clause. Davis, 679 F.3d at 438.
Loving also quite properly concluded that the statutes violated the Due Process Clause of the Fourteenth Amendment because it denied Mr. and Mrs. Loving the fundamental right to marry “by invidious racial discrimination.” Id. But in doing so, the Court was referring to marriage as it had always been understood—to marriage between one man and one woman. That is why the Court described marriage as “ ‘fundamental to our very existence and survival.’ ” Id. (quoting Skinner, 316 U.S. at 541 (1942), and citing Maynard, 125 U.S. 190 (1888)). Loving’s fundamental-rights analysis was premised on the idea that marriage is between one man and one woman and thus cannot be read as somehow discarding that requirement.
CONCLUSION AND RELIEF REQUESTED In the end, same-sex marriage is “an issue over which people of good will may disagree.” Perry v. Brown, 671 F.3d 1052, 1064 (9th Cir. 2012) (Reinhardt, J.). A decent and rational Michigan voter might have concluded, without taking leave of his or her senses, that marriage encourages men and women to care for the children they produce. The
59

voter might have thought that promoting marriage as the ideal for
raising children both increases the likelihood that opposite-sex couples
will have children within a marriage relationship and benefits children
by making it more likely they will be raised by their biological parents.
And having a child raised in that sort of environment is, at least most of
the time, probably a good thing. The reasons are at least debatable,
and that means this Court must reverse.
Justice Kennedy’s recent plurality opinion in Schuette about the
importance of democracy applies with equal force to this case:
This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters. Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate. [Schuette, slip op. at 18 (plurality opinion of Kennedy, J.) (citation omitted).] Here, the people had many rational grounds for wishing to
continue to define marriage as the union of one man and one woman.
Their decision, made through the democratic process and without any
60

evidence of animus, should be respected. The decision of the district

court should be reversed.

Respectfully submitted,

Bill Schuette Attorney General

Dated: May 7, 2014

/s/ Aaron D. Lindstrom Aaron D. Lindstrom Solicitor General Co-Counsel of Record P.O. Box 30212 Lansing, MI 48909 (517) 373-1110 LindstromA@michigan.gov
Kristin M. Heyse Assistant Attorney General Co-Counsel of Record

61

CERTIFICATE OF COMPLIANCE Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains no more than 14,000 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). There are a total of 11,860 words. 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Word 2010 in 14 point Century Schoolbook.
/s/ Aaron D. Lindstrom Aaron D. Lindstrom Solicitor General Co-Counsel of Record P.O. Box 30212 Lansing, MI 48909 (517) 373-1110 LindstromA@michigan.gov
62

CERTIFICATE OF SERVICE I certify that on May 7, 2014, the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
/s/ Aaron D. Lindstrom Aaron D. Lindstrom Solicitor General Co-Counsel of Record P.O. Box 30212 Lansing, MI 48909 (517) 373-1110 LindstromA@michigan.gov
63

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS
Defendants-Appellants, per Sixth Circuit Rule 28(c), 30(b), hereby
designated the following portions of the record on appeal:

Description of Entry

Date

Complaint Amended Complaint

01/23/2012 10/03/2012

Notice of Hearing Opinion Opinion & Order

01/11/2013 07/01/2013 10/16/2013

Plaintiffs’ Motion to Bifurcate

11/24/2013

Order

01/03/2014

State Defendants’ Response 02/14/2014

Trial Transcript (2/25/2014) 03/13/2014

Trial Transcript (2/26/2014) 03/13/2014 Trial Transcript (2/28/2014) 03/13/2014

Record Entry Page ID

No.

Number

R. 1

2, 5–7,

R. 38

725, 728, 730–33,

R. 50

924

R. 54

935

R. 89

1997, 1999, 2000, 2003

R. 100

2027, 2029,

R. 105 R. 134
R. 143
R. 144 R. 149

2070
2682, 2688– 95
(6, 10–11; 13– 15)5
(41)
(55)

5 Because the transcripts do not yet have page ID numbers, we are providing, in parentheses, the page numbers marked on the transcript.
64

Findings of Fact & Conclusions of Law Judgment Notice of Appeal Order Trial Transcript (3/3/2014) Order

03/21/2014
03/21/2014 03/21/2014 03/22/2014 03/26/2014 03/26/2014

R. 151
R. 152 R. 153 R. 156 R. 157 R. 162

3946–69, 3974 3975 3976 3982 (37) 4214

65

 
 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
__________________________________________________________________
#14-1341 __________________________________________________________________
APRIL DeBOER, et al.,
Plaintiffs-Appellees,
-vs-
RICHARD SNYDER, et al.,
Defendants-Appellants. __________________________________________________________________
Appeal from the United States District Court for the Eastern District of Michigan, Southern Division, Hon. Bernard A. Friedman
__________________________________________________________________
PLAINTIFFS-APPELLEES’ BRIEF ON APPEAL
(Counsel listed on next page)

s/Carole M. Stanyar CAROLE M. STANYAR P34830 221 N. Main Street, Suite 300 Ann Arbor, MI 48104 (313) 819-3953 cstanyar3@wowway.com
s/Dana M. Nessel DANA M. NESSEL P51346 645 Griswold, Suite 4300 Detroit MI 48226 (313)556-2300 dananessel@hotmail.com
Attorneys for Plaintiffs-Appellees
s/Robert A. Sedler ROBERT A. SEDLER P31003 Wayne State University Law School 471 W. Palmer Street Detroit, MI 48202 (313) 577-3968 rsedler@wayne.edu
Of Counsel for Plaintiffs-Appellees

s/ Kenneth M. Mogill Kenneth M. Mogill P17865 MOGILL, POSNER & COHEN 27 E. Flint St., 2nd Floor Lake Orion MI 48362 (248)814-9470 kmogill@bignet.net

TABLE OF CONTENTS INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 COUNTER-STATEMENT OF QUESTIONS PRESENTED . . . . . . . . . . . . . . . . 1 STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION . . 2 COUNTER-STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. Disparate treatment of gays and lesbians . . . . . . . . . . . . . . . . . . . 6 2. The definition of marriage in the law . . . . . . . . . . . . . . . . . . . . . . 7 3. Child development and outcomes . . . . . . . . . . . . . . . . . . . . . . . . 10 4. Impact on children of exclusion of same-sex couples from the right to marry and the right to adopt jointly . . . . . . . . . . . 14 5. The decision below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 THE DISTRICT COURT CORRECTLY HELD THAT, IN EXCLUDING PLAINTIFFS AND ALL OTHER GAY AND LESBIAN COUPLES FROM THE RIGHT TO MARRY, THE MICHIGAN MARRIAGE AMENDMENT AND RELATED STATUTES VIOLATE THE EQUAL PROTECTION CLAUSE, U.S. CONST., AM. XIV; THE AMENDMENT AND RELATED STATUTES ALSO VIOLATE THE
i

DUE PROCESS CLAUSE, U.S. CONST., AM. XIV.
A. In prohibiting Plaintiffs from marrying and deciding for themselves whether to form a legally recognized family, the MMA and related statutes, M.C.L.A. §§551.1 - 551.4 and 551.272, violate their fundamental right to marry the person of their choice, in violation of the due process clause of U.S. Const., Am. XIV.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
B. The MMA and related statutes cause social, psychological, financial and legal harm to same-sex couples and their children without any rational relationship to the attainment of a legitimate governmental purpose, and the trial court correctly concluded that these provisions violate the equal protection clause of U.S. Const., Am. XIV. . . . . . . . . . . . . . . . . . . . 33
1. Standard of review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2. Standard of scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(a) Encouraging responsible procreation . . . . . . . . . . . . . 42
(b) Promoting the “optimal environment” for children . . . 43
(c) The MMA and related statutes substantially harm children and families . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(d) Proceeding with caution/unintended consequences . . 47
(e) Tradition and morality . . . . . . . . . . . . . . . . . . . . . . . . . 48
(f) Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4. Propriety of trial court fact-finding . . . . . . . . . . . . . . . . . . . . 53
ii

5. Consideration of Plaintiffs’ claims is not barred by Baker v. Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
CONCLUSION AND RELIEF REQUESTED . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS . . . . . . 61
iii

INDEX OF AUTHORITIES

CASES

PAGE(S)

Atkins v. Virginia, 536 U.S. 304 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed 409 U.S. 810 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Beech Grove Invest. Co. v. Civil Rights Comm., 380 Mich. 405 (1968) . . . . 26-27

Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252 (N.D. Okla. 2013) . 57

Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) . 22, 38-41, 49

Bostic v. Rainey, 970 F.Supp.2d 476 (E.D. Va. 2014) . . . . . . . . . . . . . . . . . . . . . 57

Bourke v. Beshear, ___ F.Supp.2d ___ (W.D. Tenn. 2014) [2014 WL 556729] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 57

Caban v. Mohammed, 441 U.S. 380 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Califano v. Goldfarb, 430 U.S. 199 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Charlton v. Charlton, 397 Mich. 85 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) . . . . . . . passim

Clark v. Jeter, 486 U.S. 456 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 39

Cleburne Living Center v. City of Cleburne, Texas, 726 F.2d 191 (5th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Craigmiles v. Giles, 312 F.3d 220 (6th Cir 2002) . . . . . . . . . . . . . . . . . . . . . . . . 36

Davis v. Prison Health Services, 679 F.3d 433 (6th Cir 2012) . . . . . . . . . . . 33-34

iv

De Leon v. Perry, ___ F.Supp.2d ___ [2014 WL 715741] (W.D. Tex. 2014) . . 57 Dean v. District of Columbia, 653 A.2d 307 (D.C. App. 1995) . . . . . . . . . . . 55-56 Doe v. Plyler, 458 F.Supp. 569 (E.D. Tex. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . 54 Dunlap v. Michigan Dept. of Corrections, 65 Fed.Appx. 971 (6th Cir. 2003) . . 34 Eisenstadt v. Baird, 405 U.S. 438 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40 Equality Foundation v. City of Cincinnati, 128 F.3d 289 (6th Cir 1997) . . . . . . 33 Evans v. Romer, 1993 WL 518586 [unreported] (Dist. Ct. Colo.) . . . . . . . . . . . . 55 F.C.C. v. Beach Communications, 508 U.S. 307 (1993) . . . . . . . . . . . . . . . . . . . 54 Frontiero v. Richardson, 411 U.S. 677 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Geiger v. Kitzhaber, ___ F.Supp.2d ___ [2014 WL 2054264] (D. Or. 2014) . . 57 Gomez v. Perez, 409 U.S. 535 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-36 Griswold v. Connecticut, 381 U.S. 479 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Guzman v. U.S. Dept. of Homeland Sec., 679 F.3d 425 (6th Cir. 2012) . . . . . . 378 Hall v. Florida, ___ U.S. ___ [2014 WL 2178332] (2014) . . . . . . . . . . . . . . . . . 52 Harmon v. Davis, 489 Mich. 986 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Heller v. Doe, 509 U.S. 312 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 41, 49 Hunter v. Erickson, 393 U.S. 385 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 In re Martin, 200 Mich. App. 703 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) . . . . . . . . . . . . . . . . . . . 37, 42
v

Kirchberg v. Feenstra, 450 U.S. 455 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013) . . . . . . . . . . . . . . . . 48,57 Latta v. Otter, ___ F.Supp.2d ___ [2014 WL 1909999] (D. Idaho 2014) . . . . . . 57 Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Levy v. Louisiana, 391 U.S. 68 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Liberty Coins, LLC v. Goodman, ___ F.3d ___ [2014 WL 1357041]
(6th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Loving v. Virginia, 388 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim M.L.B. v. S.L.J., 519 U.S. 102 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Mass. v. Dept. of Health and Human Services, 682 F.3d 1
(1st Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 35, 39 Mathews v. Lucas, 427 U.S. 495 (1976) . . . . . . . . . . . . . . . . . . . . . . . 35,36, 40-41 Meyer v. Nebraska, 262 U.S. 390 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Mills v. Habluetzel, 456 U.S. 91 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 National Pride at Work v. Governor, 481 Mich. 56 (2008) . . . . . . . . . . . . . . . . 31 Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003) . . . . . . . . . . . 44 Orr v. Orr, 440 U.S. 199 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373
(6th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Perry v Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010) . . . . . . . . . . . . . 48
vi

Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 55
Plyler v. Doe, 457 U.S. 202 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Reitman v. Mulkey, 387 U.S. 369 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Roper v. Simmons, 543 U.S. 551 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250 (6th Cir 2006) . . . . . 38 Schuette v. Coalition to Defend Affirmative Action, et. al.,
134 S.Ct. 1623 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50-52 Smith v. Org. of Foster Families for Equality and Reform, 431 U.S. 816
(1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Stanley v. Illinois, 405 U.S. 645 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Ting v. A.T. & T., 319 F.3d 1126 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . 33 Turner v. Safley, 482 U.S. 78 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 55 U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) . . . . . . . . . . . . . . . . . 38 United States v. Virginia, 518 U.S. 515 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 45 United States v. Windsor, 133 S.Ct. 2675 (2013) . . . . . . . . . . . . . . . . . . . . . passim Vance v. Bradley, 440 U.S. 93 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Washington v. Seattle School District No. 1, 458 U.S. 457 (1982) . . . . . . . . . . . 51 Washington v. Yakima Indian Nation, 439 U.S. 463 (1979) . . . . . . . . . . . . . . . . 32
vii

Weber v. Aetna Cas. & Suv. Co., 406 U.S. 164 (1972) . . . . . . . . . . . . . . . . . . . . . 39

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . 26

West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943) . . . . . . 20, 52

Whitewood v. Wolf, ___ F.Supp.2d ___ (M.D. Pa. 2014) [2014 WL 2058105] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 56-59

Williams v. Illinois, 399 U.S. 235 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Windsor v. United States, 699 F.3d 169 (2d Cir 2012) . . . . . . . . . . . . . . . . . . . . 34

Wolf v. Walker, ___ F.Supp.2d ___ [2014 WL 2558444] (W.D. Wisc. 2014) . . . 56

Zablocki v. Redhail, 434 U.S. 374 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CONSTITUTIONS

PAGE(S)

U.S. Const., Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

U.S. Const., Amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 23, 33

Const. 1963, art. 1, §25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Const. 1963, art. 10, §1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

STATUTES and COURT RULES

PAGE(S)

29 U.S.C. §2901.101(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Defense of Marriage Act §3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Fed.R.App.P. 28(a)(9)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Fed.R.App.P. 32(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

viii

Fed.R.App.P. 32(a)(7)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Fed.R.App.P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Fed.R.App.P. 32(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Fed.R.Civ.P. 52(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 1855 P.A. 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 1996 P.A. 334 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 M.C.L.A. §206.506 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 M.C.L.A. §333.2855 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 M.C.L.A. §420.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 M.C.L.A. §§551.1 - 551.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 23 M.C.L.A. §551.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 M.C.L.A. §551.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 M.C.L.A. §551.272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 23 M.C.L.A. §552.23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 M.C.L.A. §600.2922(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 M.C.L.A. §700.2201-700.2205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 M.C.L.A. §700.3206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 M.C.L.A. §701.60(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 M.C.L.A. §710.24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ix

M.C.L.A. §750.520l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 M.C.L.A. §772.2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 M.C.L.A. §780.766(4)(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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REQUEST FOR ORAL ARGUMENT
Given the serious issues this case presents, Plaintiffs-Appellees respectfully
request oral argument in this case.
COUNTER-STATEMENT OF QUESTION PRESENTED
DID THE DISTRICT COURT CORRECTLY HOLD THAT, IN EXCLUDING PLAINTIFFS AND ALL OTHER GAY AND LESBIAN COUPLES FROM THE RIGHT TO MARRY, THE MICHIGAN MARRIAGE AMENDMENT AND RELATED STATUTES VIOLATE THE EQUAL PROTECTION CLAUSE, U.S. CONST., AM. XIV; AND DO THE AMENDMENT AND RELATED STATUTES ALSO VIOLATE THE DUE PROCESS CLAUSE, U.S. CONST., AM. XIV?
A. IN PROHIBITING PLAINTIFFS FROM MARRYING AND DECIDING FOR THEMSELVES WHETHER TO FORM A LEGALLY RECOGNIZED FAMILY, DO THE MMA AND RELATED STATUTES, M.C.L.A. §§551.1 551.4 AND 551.272, VIOLATE THEIR FUNDAMENTAL RIGHT TO MARRY THE PERSON OF THEIR CHOICE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF U.S. CONST., AM. XIV?
Plaintiff-Appellees answer “Yes”.
Defendant-Appellants answer “No”.
B. DO THE MMA AND RELATED STATUTES CAUSE SOCIAL, PSYCHOLOGICAL, FINANCIAL AND LEGAL HARM TO SAME-SEX COUPLES AND THEIR CHILDREN WITHOUT ANY RATIONAL RELATIONSHIP TO THE ATTAINMENT OF A LEGITIMATE GOVERNMENTAL PURPOSE, AND DID THE TRIAL COURT CORRECTLY CONCLUDE THAT
1

THESE PROVISIONS VIOLATE THE EQUAL PROTECTION CLAUSE OF U.S. CONST., AM. XIV?
Plaintiff-Appellees answer “Yes”. Defendant-Appellants answer “No”.
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION
Plaintiffs-Appellees [herein “Plaintiffs”] concur in the statement of subject matter and appellate jurisdiction offered by Defendants-Appellants [herein “the State”].
COUNTER-STATEMENT OF FACTS A. Introduction. April DeBoer and Jayne Rowse, both nurses, are in a longterm, committed relationship. They are “responsible and caring parents who are providing a stable and loving home for their children” (R168, Stipulated Facts, pg ID 4736; see also R151, Findings of Fact and Conclusions of Law, pg ID 3945). DeBoer individually adopted her daughter, “R”, and Rowse individually adopted her sons “J” and “N” (Id.). R and J are special needs children. J was in Michigan’s foster care system prior to being placed with DeBoer and Rowse, who were both licensed by the State to be foster parents. The other two children were surrendered at birth by their
2

mothers and adopted by DeBoer and Rowse after they were found to be qualified to adopt (R168, Stipulated Facts Regarding Plaintiffs, pg Id 4735-4736).1
DeBoer and Rowse initially brought this action as a challenge to M.C.L.A. §710.24, which permits married and single persons to adopt but precludes unmarried couples from adopting each other’s children. DeBoer and Rowse would marry each other if they could, but they are prohibited from doing so by the Michigan Constitution and statutory law.
Prior to 1996, Michigan law defined eligibility to marry in gender-neutral terms. That year, however, M.C.L.A. §551.1, which identifies marriage as “inherently a unique relationship between a man and a woman”, was enacted, and M.C.L.A. §§551.1 - 551.4 were amended to specify that the eligibility to marry is limited to “a man and a woman”. P.A. 334.2 In 2004, the possibility of legislation eliminating the exclusion of same-sex couples from the right to marry was foreclosed by enactment of the Michigan Marriage Amendment [MMA], Const. 1963, art. 1, §25, which provides:
To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in
1In order to be qualified to adopt, DeBoer and Rowse were carefully screened, then found by the local circuit court to be suitable parents (R168, Stipulated Facts Regarding Plaintiffs, pg Id 4735-4736).
2Pursuant to 1996 P.A. 334, M.C.L.A. §551.272 prohibits recognition of marriages of same-sex couples validly performed in other jurisdictions.
3

marriage shall be the only agreement recognized as a marriage or similar union for any purpose. B. Proceedings below. Following an initial district court hearing during which the judge, Hon. Bernard A. Friedman, suggested that their challenge was more appropriately directed at the MMA, Plaintiffs amended their complaint, adding a challenge to the MMA and related statutes on due process and equal protection grounds. Plaintiffs asserted then, as they do now, that the MMA and related statutes (1) violate their fundamental right to marry the person of their choice and (2) deny them the equal protection of the laws. The State argued that the right to marry does not extend to same-sex couples; with respect the Plaintiffs’ equal protection claim, the district court characterized the State’s rationales as “(1) providing children with ‘biologically connected’ role models of both genders that are necessary to foster healthy psychological development; (2) avoiding the unintended consequences that might result from redefining marriage; (3) upholding tradition and morality; and (4) promoting the transition of ‘naturally procreative relationships into stable unions’” (R151, pg ID 3946). After the court denied the State’s motion to dismiss and the parties’ crossmotions for summary judgment, the case proceeded to trial, where Plaintiffs’ witnesses were psychologist David Brodzinsky, sociologist Michael Rosenfeld, demographer
4

Gary Gates, law professor Vivek Sankaran, historian Nancy Cott, and (via his expert
report admitted into evidence by stipulation) historian George Chauncey.3 The State
called sociologist Mark Regnerus, economists Joseph Price and Douglas Allen and
family studies professor Loren Marks.4 Defendant Oakland County Clerk Lisa Brown,
who sided with Plaintiffs below and is not appealing the trial court’s decision, also
testified.
Virtually all of the contested evidence at trial concerned the State’s claim that
there is a legitimate debate about child outcomes. Plaintiffs offered uncontradicted
evidence as to (1) the history and on-going legacy of discrimination against gays and
lesbians in the United States and in Michigan, (2) the history and evolution of
marriage and eligibility to marry, (3) the harms suffered by the children of same-sex
3Plaintiffs’ evidence also included a January 28, 2013, Report of the Michigan Department of Civil Rights on LGBT Inclusion Under Michigan Law.
4The State also sought to call law student and philosophy graduate student Sherif Girgis as an expert witness but was unable to qualify him as an expert (R157, Daubert Hearing, Sherif Girgis, pg ID 4019-3985). Even if Girgis – who admittedly has no expertise in Michigan law regarding marriage or any other aspect of Michigan law – had not been found to be unqualified to be an expert witness, his proposed testimony would have been subject to objection as being based on a philosophical view of marriage rather than what the law of marriage is (R157, pg ID 4011-4015; R117, Plaintiffs’ Motion in Limine to Exclude Testimony of State Defendants’ Proposed Expert Witness Sherif Girgis, pg ID 2453-2465). The State does not challenge the trial court’s decision rejecting Girgis’ qualifications as an expert witness.
5

couples as a result of their parents’ exclusion from the right to marry, (4) the demographics of gay and lesbian families in the United States and in Michigan, and (5) the harms suffered by children in Michigan’s foster care system who remain in foster care solely because same-sex couples are prohibited from adopting jointly.
In light of the testimony presented and the district court’s findings of fact, the State has now abandoned its “different outcomes” argument. The State does not even discuss the trial testimony as to any of the issues.
1. Disparate treatment of gays and lesbians. Gays and lesbians have long been subjected to disparate treatment in the United States (R169-1, Chauncey Report, pg ID 4744-4789). They have been classified as degenerates, censored and demonized. They have been excluded from federal government jobs and service in the armed forces (Id.). They have been the victims of hate crimes, targeted by police and harassed in the workplace (Id.). Until the decision in Lawrence v. Texas, 539 U.S. 558 (2003), gays and lesbians could be prosecuted and imprisoned for their consensual sexual conduct. The legacy of this discrimination persists to this day (Id.).
There is “a high prevalence of discrimination based on sexual orientation and/or gender identity/expression” in Michigan (R170-1, Michigan Department of Civil Rights Report on LGBT Inclusion Under Michigan Law, pg ID 4805). This discrimination particularly impacts parents and children, who must “contend with
6

numerous social and economic vulnerabilities due to a combination of societal stigma and ways in which current laws limit their economic security” (Id. 4865).
2. The definition of marriage in the law. Marriage is a civil contract. M.C.L.A. §551.2. Marriage in the United States is and has always been a civil matter, authorized and regulated solely by state authorities with respect to who may marry and the rights and obligations involved in the marital contract, subject to constitutional limitations (R149, Cott, pg ID 3775, 3782-3785). While religious authorities are free to maintain their particular views as to which marriages they will accredit or bless within their respective denominations, any such conditions have no bearing on the legality of a marriage, and religious authorities may not impose conditions on marriage beyond those imposed by law (Id. 3782, 3785-3786).
Historically and today, the state has had many purposes in licensing and fostering marriage, including facilitating the government’s interactions with the populace and public order by organizing individuals into cohesive family units, developing a realm of liberty, intimacy and free decision-making by spouses, creating stable households and assigning individuals to care for one another and thus limiting the public’s liability to care for the vulnerable (Id. 3776, 3780, 3785-3786, 3821-3822, 3792-3793).
The state and federal governments encourage and foster marriage through the
7

dignity and status accompanying the relationship and through multiple economic and other material benefits (Id. 3783-3784). “A legal parent-child relationship affords children access to important economic resources, including but not limited to health insurance, social security disability and survivor’s benefits, and inheritance rights. Having legal ties to their parents is also enormously important to children’s psychological well-being” (R171-1, Brodzinsky Report, pg ID 4934).
In Michigan, as in all other states, marriage is and always has been separate from procreation. The right to marry has never been dependent on an interest in or ability to procreate. Neither age nor sterility has ever been a bar to marriage (R146, Brown, pg ID 3501-3505), nor has inability to bear children been a ground for divorce. Historically and today, couples have entered into non-procreative marriages for love, companionship, economic partnership and to create a stable household (R149, Cott, pg ID 3781, 3800).
Michigan’s county clerks may only issue marriages to opposite-sex couples, and they may not deny such licenses to couples on the basis of parenting skills or the unlikelihood of "good child outcomes," intent to have children or to cohabit as spouses, ability to procreate or likelihood to provide a safe and nurturing environment for children (R146, Brown, pg ID 3484-3485, 3506-3509). Clerks make no inquiry into and may not take into account such factors as whether persons applying for
8

marriage licenses are convicted pedophiles or are otherwise felons, had previously sexually assaulted children or had raised children who flunked out of school or became substance abusers, were monogamous or created stable households (Id. 35033505). The State’s asserted rationales for the MMA and related statutes "play no part whatsoever" in a determination as to whether or not a couple is granted or denied a marriage license (Id. 3508-3509).
Today, marriage is a legal institution in which the contracting parties are legally equal and free to decide as to appropriate behavior toward one another without regard to gender. State laws mandating different marital roles and imposing different marital obligations and responsibilities on the basis of gender were long ago held to be unconstitutional (R 149, Cott, pg ID 3781, 3790, 3794-3797, 3821-3824).
There is no single “traditional” definition of marriage. The institution has evolved over time from one in which features once considered essential – the subordination of women, limited ability to divorce, exclusion of enslaved persons from the right to marry and restrictions on inter-racial marriages – have been eliminated in response to social, economic and ethical changes – despite some people’s fears that the change would destroy the institution or be “unnatural” (Id. 3798-3799). Eliminating the exclusion of same-sex couples from the right to marry would be consistent with this historical trend (Id. 3777, 3781, 3787-3789, 3794-3803).
9

3. Child development and outcomes. The capacity to parent effectively is no way related to a person’s sexual orientation. Successful child-rearing depends on the quality of parents’ parenting, not the sexual orientation or gender of the parents. The key factors to predicting positive child outcomes are the quality of the parent-child relationship, the quality of the parents’ relationship, the parents’ parenting characteristics (e.g., warmth, nurturing, emotional sensitivity, age appropriate rules and structure), educational opportunities, the adequacy of financial and other support resources, and good parental mental health (R143, Brodzinsky, pg ID 3186-3187).
The roles and parenting styles parents choose vary from family to family and from time to time within families, but both mothers and fathers are equally capable of fully meeting the needs of children, and both mothers and fathers do so (Id. 31913196).
These conclusions are confirmed by over thirty years of research utilizing multiple types of studies, including longitudinal studies and so-called convenience sample studies the results of which have been replicated over a wide demographic spectrum and many years. The research in this area includes not just studies of samesex couple families over the past thirty years but also additional decades of research on all family types – two-parent heterosexual couple married families, single parent families, blended families and same-sex couple families (Id. 3188-3189, 3198-3221).
10

The research on which these conclusions rely is published in peer-reviewed journals (Id. 3198-3219), it is corroborated by clinical experience (Id. 3178-3181, 3220-3221), and it is supported by all of the relevant professional associations dedicated to children’s health and well-being, including the American Psychological Association, the American Sociological Association, the American Medical Association, the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the Child Welfare League of America, the National Association of Social Workers and the Donaldson Adoption Institute (Id. 3221-3224). There is no reasonable basis for questioning the consensus within the scientific communities as to the equivalent outcomes of similarly situated children raised by same-sex and opposite-sex couple parents (Id. 3219-3220; R144, Rosenfeld, pg ID 3277-3278).
While the State’s witnesses, particularly Prof. Regnerus and Prof. Allen,5 challenged this consensus, their own studies, properly interpreted, disprove their claims and support the consensus. Prof. Regnerus’ New Family Structures Study [NFSS] purported to suggest that children raised by same-sex couple parents fare more poorly in life than do children raised by opposite-sex couple parents. However,
5The district court’s analysis and rejection of the State’s other experts, Loren Marks and Joseph Price, can be found at R151, Findings, pg ID 3950, 39573960. See also R139, Plaintiffs’ Proposed Findings, pg ID 3018, 3037-3038, 3042-3044.
11

Regnerus compared children raised by intact, married opposite-sex couple parents with children raised by a parent who reported ever having had a romantic liaison with a person of the same sex, regardless of whether the other person ever lived with the child or the child even knew the other person (R151, Findings, 3954-3956). Controlling for family stability – universally recognized as a substantial factor in child outcomes – there is no difference in outcomes among children based on parents’ sexual orientation (R164, Rosenfeld, pg ID 4323-4330). Regnerus’ study included two children who had been raised by same-sex couples; both “appeared [to be] well adjusted” (R147, Regnerus, pg ID 3539).
Regnerus’ study has been widely condemned in the social science community, including in the American Sociological Association’s amicus brief in Windsor and Perry. The journal that published it sought and published an audit of it, and the audit concluded that the study should not have been published. During Regnerus’ testimony below, the sociology department chair at the University of Texas - Austin, where he teaches, issued a statement condemning his study as fundamentally flawed conceptually and methodologically (Id. 3552-3553).
The genesis of Regnerus’ study arose out of communications with anti-marriage equality advocates who let him know their “hopes for what emerges from the project” as well as their desire for results “before major decisions of the Supreme Court” (Id.
12

3590-3594).6 Taking all of these circumstances into account, the district court found that
“Regnerus’ testimony [is] entirely unbelievable and not worthy of serious consideration.” (Id. 3956).
The district court also found that Prof. Allen’s testimony lacks credibility. Based on a study he conducted utilizing 2006 Canadian census data, Allen testified that children in same-sex couple households are about 35% less likely to graduate from high school than are children living in opposite-sex couple married households (R148, Allen, pg ID 3741). However, when Allen controlled for parental education, marital status and residential stability, he, too, found no statistically significant difference in graduation rates, a conclusion expressed only in a chart in an appendix to his study and which he did not address or even note anywhere in the body of his report (Id. 3741-3743).
Allen and Prof. Price also critiqued a study by Prof. Rosenfeld demonstrating that children raised by same-sex couple parents progress in school as well as children raised by opposite-sex couple parents when controlling for parental income, education
6As the district court concluded, “[w]hile 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” (R151, Findings, pg ID 3957).
13

levels and family stability. In testifying as to his critique, however, Allen relied on diagrams he conceded were “metaphoric”, not accurate and not meant to be accurate (Id. 3654-3655, 3722-3725). As noted by Rosenfeld, Allen’s diagrams significantly distorted what the data actually showed (R164, Rosenfeld, pg ID 4297-4310).7,
Judge Friedman “was unable to accord the testimony of” any of the State’s experts “any significant weight” (R151, p 17, pg ID 3960); they
clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields. (R151, pg ID 3960). 4. Impact on children of exclusion of same-sex couples from the right to marry and the right to adopt jointly. “Social Security survivor benefits and government sponsored healthcare benefits are available to legally married couples, but not unmarried partners. Yet, by effectively foreclosing same-sex couples from obtaining these benefits, the MMA undermines the very aim of one of the central historical bases for civil marriage, namely, family stability” (R151, Findings, pg ID 3953; R149, Cott, pg ID 3784-3785). Further, [p]reventing same-sex couples from establishing legal ties for both partners through second parent or joint adoption can harm the child psychologically because of the ambiguous, socially unrecognized, and
7Allen is also deeply biased against gays and lesbians, believing that “unrepentant” homosexuals “go to hell” (Id. 3747-3748).
14

seemingly non-permanent relationship with the second parent. Such an arrangement can deprive the child of the emotional security, societal affirmation, sense of normality, identity, and social stability that comes with a full legal relationship with the second parent. They can also suffer unnecessary fear, anxiety, and insecurity related to possible separation from the second parent in the event of their parents’ separation or upon the death of the biological or adoptive legal parent. And they are, in fact, at risk of losing an important attachment relationship if such circumstances occur. It is well established in the research that children can suffer profoundly from broken attachments to parental figures.
(R171-1, Brodzinsky Report, ¶26(a), pg ID 4934).
Excluding same-sex couples from marriage also denies these couples the
stabilizing effect of marriage, which is also important to children, since family
stability is strongly associated with positive child outcomes (R147, Regnerus, pg ID
3563-3564; R167, Marks, pg ID 4633-4636; R143, Brodzinsky, pg ID 3256-3257).
Wills and guardianships do not provide sufficient protection against children
suffering the loss of a relationship with their non-legal parent. Even if the legal
parent’s will designates his or her partner as the child’s guardian, a court is not legally
required to honor it. The surviving partner has the burden of convincing a court that
he or she should be appointed guardian, the guardianship must be renewed annually
during the child’s minority, and there is always the risk of a guardianship contest with
relatives or anyone else claiming an interest in the child (R144, Sankaran, pg ID 3376-
3387; R143, Brodzinsky, pg ID 3255-3256). A child of same-sex couple parents who
15

suffers the loss of his or her legal parent is also at risk of losing his or her relationship
with his or her surviving non-legal parent.
Michigan’s adoption law harms the thousands of children in Michigan’s foster
care system awaiting adoption because it deters lesbian and gay couples from coming
forward to adopt them. The exclusion of same-sex couples from the right to adopt
jointly leaves them in the vulnerable position of raising a family without secure legal
family ties for both parents (R143, Brodzinsky, pg ID 3257-3261; R144,Sankaran, pg
ID 3390-3392).8
Same-sex couples are far more likely to adopt children and serve as foster
parents than are opposite-sex couples (R144, Sankaran, pg ID 3391; R143,
Brodzinsky, pg ID 3261-3262),9 and more likely to adopt children of color (regardless
8There are 14,000 children in the Michigan child welfare system, 3,500 of whom have been freed for adoption but are still in foster care because of the lack of available families to adopt them. Many of these children are hard to place because of serious medical or emotional challenges or because they are older. These children are disproportionately children of color and are often sibling groups. Some “age out” of foster care without ever being adopted – 800 children last year in Michigan alone. Children who “age out” are at high risk of homelessness, illicit drug use, criminal activity and mental health problems (R144, Sankaran, pg ID 3388-3391; R143, Brodzinsky, pg ID 3257-3259).
9Nationwide,14% of same-sex couples with children report having an adopted child versus 3% of opposite-sex couples; same-sex couples care for foster children at twice the rate of opposite-sex couples (R145, Gates, Tr 2/27/14, 34333435).
16

of their own race) and children with medical problems, developmental delays and/or
mental heath challenges – i.e., “special needs” children (R171-1, Brodzinsky Report,
pg ID 4933). However, same-sex couples are far less likely to adopt in states where same-sex partners are not able to adopt jointly.10
5. The decision below. On March 21, 2014, Judge Friedman issued Findings
of Fact and Conclusions of Law and Judgment (R151, pg ID 3944-3974; R152, pg ID
3975), concluding that the MMA’s exclusion of same-sex couples from the right to
marry is not “rationally related to the achievement of a legitimate governmental
purpose” (Id. 3963), and that the MMA violates the equal protection clause “because
the provision does not advance any conceivable legitimate state interest” (Id. 3961).
While not reaching Plaintiffs-Appellees’ due process claim as unnecessary in
light of his conclusion as to the equal protection claim, Judge Friedman noted that “the
Supreme Court has repeatedly recognized marriage as a fundamental right” (Id., 3961, n 5).11
10In states permitting joint adoptions, 18% of same-sex couples with children have adopted children; in states where joint adoption is prohibited, only 7% have adopted (R145, Gates, Tr 2/27/14, 3433-3435).
11The claim in the State’s Brief in this Court that, in declining to rule on the due process issue the district court “correctly assumed that same-sex marriage is an issue the people may address through legislation”, Brief, p 24, is unsupported by anything stated or implied by Judge Friedman in his Findings of Fact and Conclusions of Law or anywhere else in the record of the case.
17

In arriving at his conclusion, Judge Friedman carefully addressed and then rejected each of the State’s asserted rationales:
Optimal environment. The “optimal environment” rationale lacks a rational basis because the right to marry is separate from procreation; eligibility to marry does not depend on “the ability to have children, a requirement to raise them in any particular family structure, or the prospect of achieving certain ‘outcomes’”. Moreover, “the MMA actually fosters the potential for childhood destabilization... [S]hould either of the plaintiffs die or become incapacitated, the surviving non-legal parent would have no authority ... to make legal decisions ... without resorting to a prolonged and complicated guardianship proceeding ...” (Id. 3965-3966). Further, “Michigan law does not similarly exclude certain classes of heterosexual couples from marrying whose children persistently have had ‘sub-optimal’ development outcomes” (Id. 3966). Finally, “the ‘optimal environment’ ... goal is simply not advanced by prohibiting samesex couples from marrying... Prohibiting gays and lesbians from marrying does not stop them from forming families and raising children. Nor does prohibiting same-sex ... [couples from marrying] increase the number of heterosexual marriages or the number of children] raised by heterosexual parents. There is, in short, no logical connection between banning same-sex marriage and
18

providing children with an ‘optimal environment’ or achieving ‘optimal outcomes’” (Id. 3966-3967; emphasis and bold added);12
Proceeding with caution. “[W]hen constitutional rights are implicated ... ‘any deprivation of constitutional rights calls for prompt rectification.’ ... ‘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. 3967-3968; cites omitted);
Tradition and morality. Since “tradition alone does not satisfy rational basis review” and “traditional notions of marriage are often enmeshed with the moral disapproval of ... same-sex relationships”, “[t]he same Constitution that protects the free exercise of one’s faith in deciding whether to solemnize certain marriages rather than others, is the same Constitution that prevents the state from either mandating adherence to an established religion ... or ‘enforcing private moral or religious beliefs without an accompanying secular purpose.’... As a result, tradition and morality are not rational bases for the MMA” (Id., 3968-3969); and
12As Judge Friedman also found, “Taking the state defendants’ position to its logical conclusion, ... only rich, educated, suburban-dwelling Asians may marry, to the exclusion of all other heterosexual couples... The absurdity of such a requirement is self-evident. Optimal academic outcomes for children cannot logically dictate which groups may marry” (Id. 3966).
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Federalism. Noting the caveat in United States v. Windsor, 133 S.Ct.
2675 (2013), that states’ authority over the regulation of domestic relations is
subject to constitutional limitations, Judge Friedman reiterated the Supreme
Court’s admonition in West Virginia Board of Education v. Barnette, 319 U.S.
624, 638 (1943), that “fundamental rights may not be submitted to vote; they
depend on the outcome of no elections” (Id. 3972).
In sum, as Judge Friedman stated in his conclusion:
In attempting to define this case as a challenge to “the will of the people, ... state defendants lost sight of what this case is truly about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex parents... Today’s decision ... affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail.
(Id. 3973).
SUMMARY OF ARGUMENT
While the regulation of domestic relations is generally entrusted to the states,
state laws regulating marriage and family life must respect individuals’ constitutional
rights. Michigan’s exclusion of same-sex couples from the right to marry the person
of their choice infringes on the fundamental right to marry guaranteed by the due
process clause and deprives Plaintiffs of a basic freedom central to human dignity and
20

autonomy. This exclusion also deprives same-sex couples of substantial rights afforded to similarly situated opposite-sex couples and harms children financially, legally, socially and psychologically. Plaintiffs do not seek a new right to “same-sex marriage”. They seek, simply, the right to marry.
While heightened scrutiny should apply to the equal protection clause analysis because the marriage bans discriminate on the basis of sexual orientation, these laws fail under any standard of scrutiny. They are not rationally related to the achievement of any legitimate governmental purpose.
Marriage is a civil contract that is gender-neutral with respect to all of the parties’ rights and obligations.
Marriage is separate from procreation, and “encouraging responsible procreation” is unrelated to the purpose of the exclusion since allowing same-sex couples to marry in no way affects the incentives for opposite-sex couples to marry. Opposite-sex couples may marry regardless of ability or willingness to procreate, and the bans do not prevent either same-sex or opposite-sex couples from having children.
The bans stigmatize and humiliate adults and children, reduce the stability of relationships and deprive children of the benefits and stability of having two married parents.
The State’s “optimal environment” claim below – a claim the State has
21

abandoned in this Court – was properly found at trial to be entirely unfounded in fact. Tradition alone is not a legitimate basis for the disparate treatment of similarly
situated opposite-sex and same-sex couples. The lack of any rational connection between the marriage bans and any
legitimate state interest has led to the “emerging recognition”, Lawrence, supra, 539 U.S. at 572, and the inevitable conclusion – the conclusion reached by every federal court to address the issue post-decision in United States v. Windsor, 133 S.Ct. 2675 (2013) – that the primary purpose of these laws was and remains fear, prejudice or “some instinctive mechanism to guard against people who appear to be different in some respects from ourselves” – i.e., constitutionally impermissible “discrimination”. Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring).
22

ARGUMENT
THE DISTRICT COURT CORRECTLY HELD THAT, IN EXCLUDING PLAINTIFFS AND ALL OTHER GAY AND LESBIAN COUPLES FROM THE RIGHT TO MARRY, THE MICHIGAN MARRIAGE AMENDMENT AND RELATED STATUTES VIOLATE THE EQUAL PROTECTION CLAUSE, U.S. CONST., AM. XIV; THE AMENDMENT AND RELATED STATUTES ALSO VIOLATE THE DUE PROCESS CLAUSE, U.S. CONST., AM. XIV.
A. IN PROHIBITING PLAINTIFFS FROM MARRYING AND DECIDING FOR THEMSELVES WHETHER TO FORM A LEGALLY RECOGNIZED FAMILY, THE MMA AND RELATED STATUTES, M.C.L.A. §§ 551.1 - 551.4 AND 551.272, VIOLATE THEIR FUNDAMENTAL RIGHT TO MARRY THE PERSON OF THEIR CHOICE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF U.S. CONST., AM. XIV.
The right to marry is unquestionably a fundamental right, as is the right of a
married couple to decide between themselves whether or not to form a family. “The
freedom to marry has long been recognized as one of the vital personal rights essential
to the orderly pursuit of happiness by free men.” Loving v. Virginia, 388 U.S. 1, 12
(1967).
Marriage is the single most important legal and personal relationship between
two persons. A core aspect of the “fundamental right of privacy” implicit in the
Fourteenth Amendment’s due process clause, Zablocki v. Redhail, 434 U.S. 374, 384
(1978), “[m]arriage is a coming together for better or for worse, hopefully enduring
23

and intimate to the degree of being sacred.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965). It includes the right “to establish a home”, to “bring up children” and “to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free persons”. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
While the “regulation of domestic relations” has long been entrusted to the states, it is axiomatic that “[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons . . .” Windsor, 133 S.Ct. at 2691, citing Loving.
The right to marry is so fundamental and its attributes and benefits so personal that it extends even to a prison inmate who might never be released from custody and might, therefore, never have an opportunity to build a home life or have sexual contact with his or her spouse. Turner v. Safley, 482 U.S. 78 (1987).
Marriage is a civil contract, M.C.L.A. §551.2, the regulation of which is and has been a matter of civil law throughout American history (R149, Cott, pg ID 3775). While religious authorities are free to determine for themselves which marriages their particular denominations will accredit or bless, their views are of no moment with respect to the law. Religious authorities are not free to impose any requirements on the law, nor may the law force any religious authority to accredit or bless a valid marriage that a particular denomination chooses not to accredit or bless (Id. 3785-
24

3786. As Judge Friedman aptly stressed below:
Many Michigan residents have religious convictions whose principles govern the conduct of their daily lives and inform their own viewpoints about marriage. Nonetheless, these views cannot strip other citizens of the guarantees of equal protection under the law.
(R151, pg ID 3969; cites omitted).
See also Judge Heyburn’s recent opinion in Bourke v. Beshear, ___
F.Supp.2d ___ (W.D. Tenn. 2014) [2014 WL 556729] at *10:
Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons.
Marriage as an institution has substantially evolved over time from one in which
features which were long considered essential – the subordination of women, racial
restrictions and limited ability to divorce – have been eliminated in response to social,
economic and ethical changes (R149, Cott, pg ID 3789-3797). That is, there is no
single “traditional” definition of marriage. The changes in marriage over time have
both altered the nature of the institution and expanded its availability to couples
previously excluded from enjoyment of the right.
25

Historically, women and men were treated profoundly unequally in marriage. The doctrine of coverture treated a married couple as a single unit in which the woman was “covered” by her husband. At common law, a married woman had no right to control property, even property she had acquired prior to marriage. Cf. Charlton v. Charlton, 397 Mich. 85, 91 at n 2 (1976). In Michigan, coverture was partially abolished in 1855 but not finally abolished until 1963. 1855 P.A. 168; Const. 1963, art. 10, §1. Marital rape did not become a crime in Michigan until 1988. M.C.L.A. §750.520l. Gender-based differences in general were pervasive and were not eliminated as a matter of federal constitutional law until the mid-1970s. Cf., e.g., Kirchberg v. Feenstra, 450 U.S. 455 (1981); Orr v. Orr, 440 U.S. 199 (1977); Califano v. Goldfarb, 430 U.S. 199 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Frontiero v. Richardson, 411 U.S. 677 (1973). While these changes are now widely viewed as having improved and revitalized the institution, the unequal treatment of women and men in marriage had been “seen as essential to marriage for centuries” (R172-1, Cott Report, pg ID 4941).
Racial restrictions on eligibility to marry, although not changing the nature of the institution, were also long seen as essential to its preservation. Michigan abolished its anti-miscegenation law in 1883, cf. Beech Grove Investment Co. v. Civil Rights Commission, 380 Mich. 405, 434 (1968), but it was not until 1967 that the Supreme
26

Court struck down racial restrictions on the right to marry as violating both the due process and the equal protection clauses. Loving, supra.
In arguing that the fundamental right to marry does not extend to same-sex couples, State’s Brief, pp 24-25 – an argument that echoes Virginia’s failed argument in Loving that while the Lovings each had a fundamental right to marry, the right did not extend to a non-white person marrying a white person – the State confuses marriage as a matter of law with some persons’ cultural, social or religious views.
While it is correct that, for many people, as a social matter, “marriage has always been linked to procreation”, State’s Brief p 4; see also citations at pp 39-40, as a matter of law marriage is and always has been separate from procreation. The State may lawfully provide incentives for couples to marry and/or procreate and/or adopt, as it does, but this interest is limited by the due process clause; it is uncontested that the State does not, never has and constitutionally could not intrude on the privacy of the marital relationship by requiring that a married couple attempt to procreate or adopt or have the capacity to do so.
In asserting that Plaintiffs seek a “fundamental right to same-sex marriage”, State’s Brief pp 19-25, and that the right to marry is a right only to marriage by opposite sex couples, the State mischaracterizes both what Plaintiffs seek and the nature of the due process interest at issue.
27

DeBoer and Rowse seek no redefinition of the right to marry. Like the plaintiff couples in Whitewood v. Wolf, ___ F.Supp.2d ___ (M.D. Pa. 2014) [2014 WL 2058105] at *2,
[a]s plainly reflected in the way they live their lives, the plaintiff couples are spouses in every sense, except that the laws of the Commonwealth prevent them from being recognized as such. What DeBoer and Rowse seek is simply an end to their exclusion from the fundamental right to marry. Like opposite-sex couples, same-sex couples who marry decide for themselves what family and religious traditions, if any, to follow and celebrate, how to divide household chores and who will work outside the home. Like opposite-sex couples with children, same-sex couples with children decide for themselves how to share parenting responsibilities, which schools their children will attend and how best to parent their children. The experiences of the thousands of married same-sex couples in the states already permitting them to marry demonstrate clearly that the nature of the marital relationship is not changed depending on the gender or sexual orientation of the parties any more than women’s suffrage changed the nature of voting, the end of segregation at lunch counters changed the nature of eating in public or Loving changed the nature of marriage. What is changed by ending the exclusion of gay and lesbian couples from the right to marry is that they are no longer deprived of the same dignity and status accorded opposite-sex couples, and
28

their children are no longer harmed by their parents’ relegation to second-class legal
status.
The State’s characterization of the nature of the right to marry as being only a
right of opposite-sex couples to marry similarly misstates the nature of the right.
Fundamental rights are not so narrowly defined:
It is ... tempting ... to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified... But such a view would be inconsistent with our law. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia[.]
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847-
848 (1992).
While the Court has not considered the application of the fundamental right to
marry in the context of marriage by same-sex couples, it stressed in Lawrence that
“[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.
29

539 U.S. at 574 (citation omitted; emphasis added). As Justice Scalia conceded in dissent in that case,
If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct ... what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. 539 U.S. at 604-605. Most recently, in Windsor, Justice Kennedy eloquently noted the evolving nature of marriage: Extending eligibility to marry to include same-sex couples “enhance[s] the recognition, dignity, and protection of [that class of persons] in their own community.” 133 S.Ct. at 2692. A state’s choice to authorize same-sex marriages “reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” Id. at 2692-2693. “The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.” Id. at 2689. The dignity, status and stability that are central to the marital relationship are the core of the right, but the material benefits denied to same-sex couples excluded from the opportunity to marry and their children are also substantial. Under current
30

Michigan law, Plaintiffs and other same-sex couples who wish to marry are deprived
of myriad rights. “Loss of survivor’s social security, spouse-based medical care and
tax benefits are major detriments on any reckoning; provision for retirement and
medical care are, in practice, the main components of the social safety net for vast
numbers of Americans.” Massachusetts v. Department of Health and Human Services,
682 F.3d 1, 11 (1st Cir. 2012). See also 29 U.S.C. §2901.101(13) (spousal rights under
Family Medical Leave Act). DeBoer and Rowse also lose a host of additional rights
and benefits as a matter of Michigan law.13
13 Rights and benefits lost to gay and lesbian couples under Michigan law include, but are not limited to, intestacy rights permitting a surviving spouse to inherit automatically from the deceased spouse’s estate if there are no parents or issue, M.C.L.A. §700.2201-700.2205; authorizing a surviving spouse to an allowance or to occupy the homestead while the estate is being settled, M.C.L.A. §700.2205; authorizing a surviving spouse to file a wrongful death lawsuit when a spouse is killed, M.C.L.A. §600.2922(2)(a); receiving workers’ compensation death benefits and retirement benefits when a working spouse is killed or retires, M.C.L.A. §420.3; access to dissolution laws regulating separation and divorce, including child custody, visitation and support, M.C.L.A. §552.23, M.C.L.A. §772.2(c), and Harmon v. Davis, 489 Mich. 986 (2011); assuming decisionmaking authority for the spouse’s health decisions when the spouse cannot, including regarding life-sustaining procedures and organ donation, In re Martin, 200 Mich. App. 703 (1993); consenting to a post-mortem examination, M.C.L.A. §333.2855; making burial arrangements for a deceased spouse, M.C.L.A. §700.3206; receiving a spouse’s veterans’ benefits, M.C.L.A. §206.506; receiving crime victims’ recovery benefits for a spouse who is a crime victim, M.C.L.A. §780.766(4)(h); and being treated as a family for workplace benefits. See, e.g. National Pride at Work v. Governor, 481 Mich. 56 (2008); Id. at 98-99, notes 4449 (Kelly, J., dissenting).
31

Under Michigan law today, same-sex couples can lawfully love one another,
live together and be committed to one another. They may lawfully be intimate with
one another and plan their lives together, including deciding whether or not to form
a family. As a result of the MMA and related statutes, however, they are second-class
citizens when it comes to the human and material benefits of marriage and parenting.
In fact, the only way April DeBoer or Jayne Rowse could even become eligible to
adopt each other’s child(ren) under current Michigan law is if the other dies.
Applying the language and rationale from Loving to the instant claim:
To deny this fundamental freedom on so unsupportable a basis as the ... [sexual orientation-based] classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious ... discriminations [on the basis of sexual orientation]. Under our Constitution, the freedom to marry or not marry, a person of another ... [gender] resides with the individual and cannot be infringed by the State.
388 U.S. at 12.
For all of these reasons, the decision below was correct on due process grounds
and should be affirmed on this basis. See Washington v. Yakima Indian Nation, 439
U.S. 463, 476, n 20 (1979) (a reviewing court may affirm the result on different
grounds where claim was presented and there is support in the record).
32

B. THE MMA AND RELATED STATUTES CAUSE SOCIAL, PSYCHOLOGICAL, FINANCIAL AND LEGAL HARM TO SAME-SEX COUPLES AND THEIR CHILDREN WITHOUT ANY RATIONAL RELATIONSHIP TO THE ATTAINMENT OF A LEGITIMATE GOVERNMENTAL PURPOSE, AND THE TRIAL COURT CORRECTLY CONCLUDED THAT THESE PROVISIONS VIOLATE THE EQUAL PROTECTION CLAUSE OF U.S. CONST., AM. XIV.
1. Standard of review. This Court reviews a district court’s decision as to
injunctive relief for an abuse of discretion. Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1381 (6th Cir. 1995). The Court reviews the determinations underlying the district court’s decision by the standard applicable to each determination – conclusions of law are reviewed de novo, and findings of fact are reviewed for clear error. Cf., e.g., Ting v. A.T. & T., 319 F.3d 1126, 1134-1135 (9th Cir. 2003); Liberty Coins, LLC v. Goodman, ___ F.3d ___ [2014 WL 1357041] (6th Cir. 2014) at *4; Fed.R.Civ.P. 52(a).
To the extent that the State argues that the district court’s findings of fact should be reviewed de novo rather than for clear error because these are legislative rather than adjudicative facts, on the facts of this case, this is a distinction without a difference, since virtually all of the facts are now undisputed: The State stipulated to the essential facts regarding the Plaintiffs; stipulated to the admission of and did not present any evidence challenging Prof. Chauncey’s evidence of the history and legacy of
33

discrimination against and political powerlessness of gays and lesbians; did not present any evidence challenging Prof. Cott’s testimony on the history of marriage; did not and does not refute Prof. Gates’ testimony regarding the demographics of samesex couple families; did not and does not dispute Clerk Brown’s testimony regarding the eligibility requirements for a Michigan marriage license or Prof. Sankaran’s testimony regarding the Michigan foster care system and adoptions and guardianships by same-sex couples; and, in this Court, by not citing in any way to the trial record, has abandoned its contention below that children do or may fare worse when raised by same-sex parents. Fed.R.App.P. 28(a)(9)(A); Dunlap v. Michigan Dept. of Corrections, 65 Fed.Appx. 971 (6th Cir. 2003).
2. Standard of scrutiny. While this Court has previously applied rational basis review to claims of discrimination based on sexual orientation, cf., e.g., Equality Foundation v. City of Cincinnati, 128 F.3d 289 (6th Cir 1997); Davis v. Prison Health Services, 679 F.3d 433 (6th Cir 2012), Equality Foundation pre-dates the groundbreaking decision in Lawrence, supra, and the discrimination at issue in this case meets the four-factor test warranting heightened scrutiny: (1) As a group, gays and lesbians have historically endured persecution and discrimination; (2) sexual orientation has no relation to aptitude or ability to contribute to society; (3) gays and lesbians are a discernible group with non-obvious distinguishing characteristics,
34

especially in the subset of those who marry a partner of the same sex; and (4) the class
remains a politically weakened minority. City of Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985). See also analysis in Windsor v United States, 699 F.3d 169, 181-
185 (2nd Cir 2012) (applying heightened scrutiny), aff’d United States v Windsor,
supra.14
Heightened scrutiny is also warranted here because the discrimination at issue
involves children. Clark v. Jeter, 486 U.S. 456, 461 (1988). See also Mills v.
Habluetzel, 456 U.S. 91 (1982); Mathews v. Lucas, 427 U.S. 495 (1976); Gomez v.
Perez, 409 U.S. 535, 538 (1973).15
14The Supreme Court did not specify a standard of scrutiny in Windsor. However, as noted in Massachusetts v. Department of Health and Human Services, 682 F.3d 1, 10 (1st Cir 2012): “Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications ... In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.”
15When the district court denied Plaintiffs’ motion for summary judgment and determined that the constitutionality of the MMA and related statutes would be assessed on the rational basis standard, Plaintiffs moved to bifurcate the trial in order to preserve an opportunity to present additional evidence in support of the heightened scrutiny factors in the event the district court found that the MMA satisfied rational basis scrutiny (R100, Plaintiffs’ Motion to Bifurcate, pg ID 2027). The district court granted the motion (R105, Order, pg ID 2069). Since judgment was entered in Plaintiffs’ favor on the basis of rational basis scrutiny, the second phase never occurred. Plaintiffs have, however, preserved their argument that heightened scrutiny applies.
35

These provisions fail even on rational basis scrutiny, however. In arguing that the MMA should be upheld, the State incorrectly asserts that, in finding the provision unconstitutional, the district court necessarily concluded that “not a single one [voter] had a rational reason for the vote”. State’s Brief p 4. This argument misstates both the court’s findings and the applicable standard of review. Individually and taken together, Romer v. Evans, 517 U.S. 620 (1996), Lawrence and Windsor illustrate that the rational basis standard is not a “toothless one”, Mathews, supra, 427 U.S. at 510; Craigmiles v. Giles, 312 F.3d 220, 229 (6th Cir 2002). A claim of rationality “must find some footing in the realities of the subject addressed by the legislation.” Heller v. Doe, 509 U.S. 312, 321 (1993). In Romer, the Court struck down, on equal protection grounds, a Colorado constitutional provision adopted by a statewide referendum that prohibited the inclusion of sexual orientation in state and local anti-discrimination laws. In Lawrence, the Court struck down, on due process grounds, a state law prohibiting consensual sex by same-sex couples.16 Most recently, in Windsor, the Court held unconstitutional, as violative of equal protection under the Fifth Amendment’s due
16In Lawrence, Justice O’Connor concurred on the theory that the statutory discrimination against same-sex couples violated the equal protection clause. 539 U.S. at 578-586, O’Connor, J., concurring. While basing its decision on due process grounds, the Court also noted the link between due process and equal protection. 539 U.S. at 575.
36

process clause, §3 of the federal Defense of Marriage Act (“DOMA”),17 which denied federal recognition of lawfully performed marriages of same-sex couples, for the reason that the statute advanced no legitimate federal interest.
That is, in order to pass constitutional muster, a classification must be objectively reasonable and bear a reasonable relationship to the realities of the subject addressed by the legislation:
[E]ven in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass[.] Romer, 517 U.S. at 632. See also Vance v. Bradley, 440 U.S. 93, 97 (1979); Guzman v. United States Dept. of Homeland Sec., 679 F.3d 425, 432 (6th Cir. 2012). A law fails on equal protection grounds where “the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [a reviewing court] can only conclude that the government’s actions were irrational.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000); Craigmiles, supra, 312 F.3d at 229.
17For all practical purposes, §3 of DOMA is identical to the Michigan marriage equality ban, as the former, like its Michigan constitutional and statutory counterparts, defines and recognizes only marriages between a man and a woman.
37

As Romer and Windsor in particular suggest, the Court increasingly looks to the context of a challenged classification in conducting the rational basis inquiry; certain factors may warrant a more in-depth look at both the law’s purpose and the claimed fit between that purpose and the classification. The circumstances to be considered include whether the group targeted by the classification is traditionally disliked, whether important personal interests are at stake and whether the classification departs from past practices. In such circumstances, the usual expectations that classifications were drawn in good faith, for genuine purposes and not arbitrarily or to penalize a disfavored group are weakened.
When a classification targets historically disadvantaged groups, the Court has applied “a more searching form of rational basis review.” Lawrence, supra, 539 U.S. at 580 (O’Connor, J., concurring); Cleburne, supra, 473 U.S. at 453, n. 6 (Stevens, J., concurring) (persons with mental disabilities; courts must exercise special “vigilan[ce] in evaluating the rationality of any classification involving a group that has been subject to a ‘tradition of disfavor’”). See also Romer, supra, 517 U.S. at 634 (gay and lesbian persons); U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) (“hippies”). In such cases, the Court has recognized that dislike of these particular groups might well be the precise motivation for the challenged measures, and it has more closely assessed the challenged measure. Romer, 517 U.S. at 634. See also
38

Massachusetts v. U.S. Dept. of Health & Human Services, 682 F.3d 1, 11 (1st Cir. 2012) (“Judges and commentators have noted that the usually deferential ‘rational basis’ test has been applied with greater rigor … [where] courts have had reason to be concerned about possible discrimination.”).
Classifications may not be premised on “negative attitudes”, Cleburne, 473 U.S. at 448, “fear,” Id., “irrational prejudice,” Id. at 450, or “some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). See also Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir 2006).
Moreover, where an asserted relationship is too attenuated, such as when a purported justification “ma[kes] no sense in light of how [the government] treated other similarly situated groups,” Garrett, 531 U.S. at 366 n. 4, discussing Cleburne, 473 U.S. at 446-450; Id. at 449 (when an excluded group does not pose a “different or special hazard” from an included group with respect to the asserted purpose, it fails rational basis review), or when a law is so “riddled with exceptions” that the asserted purpose cannot “reasonably be regarded as [the law’s] aim”, Eisenstadt v. Baird, 405 U.S. 438, 449 (1972), it will not withstand rational basis scrutiny.
Laws that burden personal and family choices – as opposed to mere economic
39

regulation – also command closer attention, even where fundamental rights are not implicated. Lawrence, 539 U.S. at 580 (O’Connor, J., concurring); Eisenstadt, 405 U.S. at 447-453; Windsor, 133 S.Ct. at 2696; M.L.B. v. S.L.J., 519 U.S. 102, 116, 120 (1996).
A more probing scrutiny is also applied in assessing the constitutionality of laws that discriminate against children because of their parents’ status. Cf., e.g., Clark v. Jeter, supra; Levy v. Louisiana, 391 U.S. 68 (1968) (invalidating provision denying children of unmarried parents the right to claim for wrongful death); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972) (invalidating provision denying “unacknowledged illegitimate” children the right to collect, under workman’s compensation, upon father’s work-related death); Mathews, supra, 427 U.S. at 505 (“visiting condemnation upon the child in order to express society’s disapproval of the parents’ liaisons ‘is illogical and unjust’”).
Finally, the scope of review is also informed by whether the law at issue is meaningfully different from prior legislative acts. For example, Romer’s rational basis analysis was mindful of the fact that the state constitutional amendment at issue was “unprecedented” and of “an unusual character.” 517 U.S. at 633; see also Windsor, 133 S.Ct. at 2693.
For the reasons discussed below, the MMA and related statutes fail rational
40

basis analysis. 3. Argument. The undisputed evidence at trial established that gays and
lesbians have historically been the victims of discrimination, stigmatization and abuse in the United States and in Michigan and that the legacy of that discrimination continues to this day. The MMA and related statutes, by their explicit terms, single out gay and lesbian couples in excluding them from eligibility to marry. The MMA in particular is historically unprecedented in Michigan; no other provision in the state’s constitution enshrines discrimination into the state’s basic law, let alone exclusion from enjoyment of a fundamental right. That is, these laws are based on impermissible “negative attitudes”, Cleburne, “against people who appear to be different”. Garrett, supra, 531 U.S. at 374, Kennedy, J., concurring.
The State’s proffered justifications for the MMA are based on a manifestly false premise – that the question is whether there should be same-sex relationships and families headed by same-sex parents.18 The assumption, however, denies reality. There are same-sex relationships, there are families headed by same-sex couple parents, there will continue to be same-sex couples and families, and these couples and these families are similarly situated to opposite-sex couples who are not excluded from
18Cf., e.g., Prof. Regnerus’ testimony characterizing the issue as “a scientific question” (R165, pg ID 4426).
41

eligibility to marry. The MMA and related statutes are wholly unconnected to “the realities of the subject”, Heller, supra, no matter the rationale offered.
(a) Encouraging responsible procreation. The irrationality of this rationale is manifest, since marriage and procreation are independent of one another. Opposite-sex couples may marry without procreating, and people – whether gay or straight – can procreate without marrying. Same-sex couples are, in all relevant respects, similarly situated to opposite-sex couples in relation to adoption, and a lesbian couple using assisted reproduction technology is, in all relevant respects, similarly situated to an opposite-sex couple in which the woman becomes pregnant through the use of assisted reproduction technology as a result of the man’s sterility or other inability to procreate.
This rationale also necessarily but incorrectly implies that the law favors children naturally born into a family over those adopted. To the contrary, once a child is adopted, “there is no distinction between the rights and duties of natural progeny and adopted persons”. M.C.L.A. §701.60(2).19
It is also a perversion of logic to assert – and no evidence presented at trial supports such an assertion – that opposite-sex couples are in any way whatever
19See also Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 845 (1977) (“Adoption is recognized ... as the legal equivalent of biological parenthood.”).
42

encouraged toward “responsible procreation” by excluding same-sex couples from the right to marry.
The State is not only completely wrong as to these fundamental facts, it is also wrong in arguing that, since much legislation involves line-drawing, the exclusion of same-sex couples from the right to marry is just another example of the normal legislative process. State’s Brief, pp 46-48. Where, as here, the disparate treatment of similarly situated groups is entirely unrelated to the achievement of a legitimate governmental purpose, Kimel, supra, it is constitutionally impermissible.
(b) Promoting the “optimal environment” for children. As is overwhelmingly clear from the trial record, there is no rational connection between the exclusion of same-sex couples from marriage and the State’s claimed interest in providing children with biologically connected role models of both genders. While the State incongruously argues that a rational voter could believe this to be so, it has, for good reason, abandoned the position that there is, in fact, a rational basis for an “optimal outcome” argument.
No other group in society is required to establish any level of parenting competency in order to be eligible to marry. Groups whose children are known to have less favorable outcomes in life – including those who are economically disadvantaged and those who have previously been married – are entitled to marry
43

(R164 Rosenfeld, pg ID 4288-4291; R150, Price, 3822-3825), and it is inconceivable that the State would or constitutionally could attempt to limit their right to marry as a result.
Second, on the basis of the testimony presented at trial, the district court correctly court found that it is the quality of parenting, not the gender of the parent, that matters, that there is a well-founded, broad-based social science consensus both that same-sex couple parents are as competent as their opposite-sex couple counterparts and that, as to all matters relating to child development, children raised by same-sex couple parents have comparable outcomes with those of similarly situated children raised by opposite-sex couple parents.
Third, the evidence presented at trial demonstrated that there is no rational basis for a belief that a child needs both a mother and a father, living in the same household, for healthy adjustment. This argument presumes standardized gender-based roles in opposite-sex marriages and is as factually antiquated as it is legally unsound.20 Stereotypical assumptions about men and women and their respective societal roles are constitutionally impermissible justifications for laws or governmental action. Cf.,
20When this argument was raised by the DOMA defendants, the district court in Windsor observed that DOMA’s ban “[a]t most ... has an indirect effect on popular perceptions of what a family ‘is’ and should be, and no effect at all on the types of family structures in which children in this country are raised.” Windsor, supra, 833 F.Supp.2d at 405.
44

e.g., United States v. Virginia, 518 U.S. 515, 541-542 (1996) (government “may not exclude qualified individuals based on ‘fixed notions concerning the roles and abilities of males and females’”); Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 736 (2003) (discussing impermissible sex stereotyping about women’s roles “when they are mothers or mothers to be”); Caban v. Mohammed, 441 U.S. 380, 388-389 (1979) (rejecting the notion of “any universal difference between maternal and paternal relations” in parental roles); Stanley v. Illinois, 405 U.S. 645 (1972) (state law presumption that unmarried fathers are unfit violates due process and equal protection clauses).
Fourth, this rationale also fails because, as the district court noted, if child outcomes were determinative, only wealthy, educated, suburban-dwelling nevermarried Asians would be allowed to marry, since their children consistently perform best academically (R151, pg ID 3966).
Finally, the “optimal environment” justification fails here because notwithstanding the MMA,
. . . there are thousands of same-sex couples currently raising thousands of children in Michigan, and these numbers have steadily increased over the past 20 years. Prohibiting gays and lesbians from marrying does not stop them from forming families and raising children. . . There is, in short, no logical connection between banning same sex marriage and providing children with an “optimal environment” or achieving “optimal outcomes.”
45

(Id. 3966).
(c) The MMA and related statutes substantially harm children and families.
Far from creating the “optimal environment” for children, Michigan’s marriage and
second-parent adoption bans have a demonstrable destabilizing effect on children and
families. As detailed above, these laws deny children of same-sex couple parents the
dignity, status and security enjoyed by the children of opposite-sex couple parents as
well as exacting a harsh practical toll by depriving them of multiple substantial
material benefits (Id. 3953; R171-1, Brodzinsky Report, pg ID 4934). It was, in fact,
undisputed at trial that marriage has a stabilizing effect on couples and on families;21
in countries and jurisdictions where marriage is available to same-sex couples, couple
stability has seen a marked improvement (R151, Findings, pg ID 3949).
Moreover, the district court found that in this particular case
. . . should either of the plaintiffs die or become incapacitated, the
21See, e.g. R167, Marks, pg ID 4632-4636, agreeing that (1) children are most likely to enjoy family stability when they are born into a married family, (2) marriage, and a normative commitment to marriage, foster high-quality relationships between adults as well as between parents and children, (3) marriage has important bio-social consequences for adults and children, (4) unmarried child-bearing increases poverty for both children and mothers, (5) marriage reduces poverty and material hardship for disadvantaged women and their children, and (6) children who live with their own two married parents enjoy better physical health, on average, than do children in other family forms. In addition, Marks could offer no research-based reason why the foregoing conclusions would not apply to same-sex couple families (Id. 4724).
46

surviving non-legal parent would have no authority under Michigan law to make legal decisions on behalf of the surviving children without resorting to a prolonged and complicated guardianship proceeding. And in the event that a state court were to award guardianship of the surviving children to the non-legal parent, the guardianship would have to be renewed annually and would remain susceptible to the challenge of an interested party at any time. This, as Brodzinsky testified, places such children in a legally precarious situation and deprives them of “social capital.”
(Id. 3965-3966).
(d) Proceeding with caution/unintended consequences. The State also
argues that courts “should proceed with caution” before making a change in what it
refers to as the “traditional” definition of marriage. While the State’s witnesses
testified that the social science research regarding same-sex couple families is in its
“infancy” and that it is too soon to tell whether or not same-sex parent couples are
good for children, the State has essentially abandoned this argument in this Court, too,
also for good reason. As detailed above, the social science research is not remotely
in its “infancy”; there have been approximately 150 studies of same-sex couple
families spanning nearly thirty years and an even greater number of studies of all other
family structures over an even greater period of time; these studies utilize a variety of
methodologies, and they consistently replicate the same result: Children fare just as
well when raised by same-sex couple parents (R143, Brodzinsky, pg ID 3188-3224).
As the district court observed in rejecting this rationale:
47

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 [v. Schwarzenegger, 704 F.Supp.2d 921,972 (N.D. Cal. 2010)] (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.
(R151, pg ID 3968).15
(e) Tradition and morality. As also discussed above, the institution of
marriage has experienced major evolution over time, and it is factually incorrect to
assert the existence of a single “traditional” definition of marriage. A key aspect of
the “tradition” of marriage as a matter of law has been its capacity to evolve from one
of profound inequality between the partners to one of equality of the partners and to
expand its availability to those previously excluded from eligibility to marry – e.g.,
enslaved persons and inter-racial couples – in response to changing social, political,
15It is also noteworthy that additional large scale research on the topic is highly unlikely, as neither the government nor any large university is likely to fund it in light of the overwhelming social science consensus regarding child outcomes (R167, Marks, pg ID 4673; no such studies being funded or in progress).
48

economic and ethical conditions (R149, Cott, pg ID 3777, 3781, 3787-3789, 37943803). Even if there were a single “traditional” definition of marriage, however, “[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.” Heller, 509 U.S. at 326; Williams v. Illinois, 399 U.S. 235, 239-240 (1970). Likewise, fear of gays and lesbians and moral disapproval of homosexuality fail to state a rational basis as a matter of law.
Whether Michigan voters approving the MMA in 2004 were motivated by “malice or hostile animus” or a desire to continue “tradition” or an “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves,” Garrett, 531 U.S. at 374 (Kennedy, J., concurring), these are not permissible bases for unequal treatment of same-sex couples.
(f) Federalism. The State also argues that domestic relations, including the authority to define marriage, fall within the exclusive province of the states. However, it continues to exaggerate this authority. While the state obviously has extensive power in this area, “laws defining and regulating marriage, of course, must respect the constitutional rights of persons”, “[t]he states’ interest in defining and regulating the marital relation [is] subject to constitutional guarantees . . .” Windsor, 133 S.Ct. at 2692.
49

Finally, while Michigan’s ban on same-sex marriage would fail rational basis
analysis even if it were only a statutory ban, its unprecedented status as a
constitutional enshrinement of exclusion and discrimination is especially offensive to
the equal protection clause. Speaking for the Court in Romer, Justice Kennedy
stressed the particular repugnance of the comparably discriminatory Colorado
constitutional amendment struck down in that case:
... disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.”...
It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance... Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.
517 U.S. at 633 (citations omitted). For the reasons discussed below, Schuette v.
Coalition to Defend Affirmative Action, et. al., 134 S.Ct. 1623 (2014), does not
undermine this essential aspect of Romer.
Because Michigan’s same-sex marriage ban is a part of its constitution – the
50

only clause in that document enshrining discrimination in the fundamental law of the state – the State has foreclosed its legislature from ever enacting marriage equality as social attitudes change. The MMA literally forces supporters of gay and lesbian rights – the targets of more restrictive ballot initiatives than any other group in American history (R169-1, Chauncey Report, pg ID 4744-4789; R66-1, Brief of Amici Curiae Constitutional Scholars, pg ID 1326) – to seek change only through the very costly referendum process. As in Romer, the Michigan constitutional ban on marriage equality further denies Plaintiffs and all other same-sex couples the equal protection of the law for this reason, too.
The State misreads Justice Kennedy’s three-justice plurality opinion in Schuette. Beyond the fact that the opinion is not the opinion of the Court, it does not in any way support an argument that laws passed by referendum trump constitutional protections. The plurality opines that voters may constitutionally choose to foreclose one among multiple constitutionally permissible remedies for past discrimination; the opinion does not even purport to suggest that voters may enact a constitutionally discriminatory provision.
Distinguishing Reitman v. Mulkey, 387 U.S. 369 (1967), Hunter v. Erickson, 393 U.S. 385 (1969), and Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), the opinion is explicitly limited to situations in which “[t]he constitutional
51

validity of some of those choices regarding racial preferences is not at issue”. 134 S.Ct. at 1635 (emphasis added). The opinion also goes on to stress that permitting voters to choose among constitutionally permissible options is “not inconsistent with the well-established principle that when hurt or injury is inflicted ... by the encouragement or command of laws or other state action, the Constitution requires redress by the courts.” 134 S.Ct. at 1637 (emphasis added).
Nothing in the Court’s decision or the plurality opinion is properly read as undermining the “well-established principle” that a discriminatory law – whether enacted by a state’s legislature, a city council or voter referendum – is subject to the limitations of the Constitution:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
West Virginia State Board of Education v. Barnette, supra, 319 U.S. at 638.
Stated another way, as Justice Kennedy did most recently for the Court in Hall v. Florida, ___ U.S. ___ (2014), [2014 WL 2178332 at *16], “The States are laboratories for experimentation, but those experiments may not deny the basic
52

dignity the Constitution protects” (emphasis added). 4. Propriety of trial court fact-finding. The State seems to be suggesting, for
the first time in this Court, that if a controversial social issue is brought before a court, trial court fact-finding is impermissible. State’s Brief p 36 (“The district court also acted as if debatable questions of social science were issues it could resolve through factual findings.”).
This argument is not only quixotic in light of the history of this case, it is legally incorrect. The district court found that there was a genuine issue of material fact necessitating a trial due to the State’s claims during summary judgment litigation that its experts – Prof. Regnerus et al. – would demonstrate that the “no difference” consensus was reasonably subject to question by competent social scientists (R69-1, Brief, pg ID 1624-1625; R79, Reply Brief, pg ID 1908). The State continued to make this claim throughout the trial, in its argument for “judgment on partial findings” (R 149, pg ID 3835-3838), and in its closing argument (R158, pg ID 4068-4069). In a complete reversal, the State now distances itself from the wholly discredited Prof. Regnerus, failing even to refer to him in its brief in this Court. Having engaged actively in the trial process – at great expense to both sides – and without having raised this permutation of the argument before, the State’s claim rings utterly hollow.
53

The State’s argument asks this Court to ignore not just the trial record but also well-settled law regarding judicial fact-finding in constitutional litigation. The State argues that there is a presumption in favor of legislative enactments and that legislators (or the electorate) need not provide proof of “legislative choices” on the record. The State quotes repeatedly but incompletely from F.C.C. v. Beach Communications, 508 U.S. 307, 312-315 (1993). However, as the Court noted in that case, this so-called presumption applies only in the absence of “some reason to infer antipathy”. Id. at 314 (emphasis added). As Prof. Chauncey explained in his report, there is ample reason to infer antipathy against homosexuals in this country. See also R66-1, Amici Curiae, pg ID 1315-1320. Moreover, there is specific reason to infer antipathy in the passage of the MMA; as with DOMA, it excludes same-sex couples and no one else from the right to marry. That is its “essence”. Windsor, 133 S.Ct. at 2693.
Further, even where a presumption of constitutionality applies, the presumption is rebuttable. A litigant may and often does present evidence challenging the purported “rational relationship” between the enactment and its alleged purpose, and appellate courts regularly rely on such trial court records.16
16Cf., e.g., Plyler v. Doe, 457 U.S. 202, 227-234 (1982) (relying on record of district court trial at which plaintiffs offered studies and expert demographic
54

As one state appellate court has observed:
Difficult as it may be to determine legislative facts for making social and legal judgments about the constitutional rights of homosexuals, the courts have been asked to do so, they are obligated to do so, and they are as equipped as any institution to do so.
testimony regarding characteristics of undocumented foreign-born school children to attack State’s purported rationales; Doe v. Plyler, 458 F.Supp. 569, 577-578 (E.D. Tex. 1978)); City of Cleburne, supra, 473 U.S. at 442-445 (relying on extensive legislative fact-finding from district court, including expert testimony from psychologist as to defining characteristics of the “mental retardate”, to hold that ordinance requiring a permit for homes for mentally disabled people did not withstand rational basis scrutiny; Cleburne Living Center v. City of Cleburne, Texas, 726 F.2d 191, 197-198 (5th Cir. 1984)); Turner v. Safley, supra, 482 U.S. at 78 (examining trial court record in concluding that prison correspondence restrictions were “reasonably related to legitimate security interests” but restrictions on inmates’ right to marry were not); Planned Parenthood of Southeastern Pennsylvania v. Casey, supra (relying on trial record, including medical and sociological evidence, and district court’s factual findings, in considering whether state law posed an undue burden on a woman’s right to choose to terminate a pregnancy); Romer, supra (substantial trial record available to the Court, including testimony of twenty witnesses and trial court’s detailed analysis of evidentiary support for asserted state interests in ballot initiative; Evans v. Romer, 1993 WL 518586 [unreported] (Dist. Ct. Colo.) at ** 4-13); Atkins v. Virginia, 536 U.S. 304, 316-318 (2002) (in deciding whether execution of mentally retarded persons violates Eighth Amendment, relying, inter alia, on (a) trial court’s credibility assessment and findings regarding testimony of defendant’s expert clinical psychologist on questions involving mental retardation, (b) “consensus” on this topic, including official position of the American Psychological Association and (c) additional social science research); Roper v. Simmons, 543 U.S. 551, 569-570 (2005) (relying on social science research and facts found by trial court to show that “juveniles have less control, or less experience with control, over their own environment” and that “[t]he personality traits of juveniles are more transitory, less fixed” to support conclusion that capital punishment for crimes committed while a minor is unconstitutional).
55

Dean v. District of Columbia, 653 A.2d 307, 330 (D.C. App. 1995). Here, this Court has the benefit of both the abundant relevant social science
research and an extensive trial court record that was the product of the adversarial process, demonstrating that the presentation of legislative facts at trial through expert witnesses can effectively “focus the court’s attention on the most relevant concerns, present the range of informed opinion on the subject, and both identify and critique the most probative literature,” resulting in the court’s “sharpened, presumably reliable insight into complicated matters that, without such help, would be much more difficult for the judge to understand.” Dean, 653 A.2d at 327-328.
For all of these reasons, the trial court appropriately conducted a trial in this matter and its well-supported (and almost completely uncontested) findings of fact should be accepted by this Court.
5. Baker v. Nelson does not bar Plaintiffs’ claims. En route to rejecting state bans on marriage by same-sex couples and recognition of the marriages of same-sex couples validly performed in another jurisdiction, every marriage and marriagerecognition case decided post-Windsor has found that a federal challenge to these bans at issue is not barred by Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed 409 U.S. 810 (1972), for the reasons that “doctrinal
56

developments” since 1971 render that summary affirmance dismissal order devoid of precedential force (R151, Findings, pg ID 3970, n. 6; see also R46, Response, pg ID 821-824). See, e.g., Wolf v. Walker, ___ F.Supp.2d ___ [2014 WL 2558444] (W.D. Wisc. 2014); Whitewood v. Wolf, supra; Geiger v. Kitzhaber, ___ F.Supp.2d ___ [2014 WL 2054264] (D. Or. 2014) at *17, n.1; Latta v. Otter, ___ F.Supp.2d ___ [2014 WL 1909999] (D. Idaho 2014) at *7–10; De Leon v. Perry, ___ F.Supp.2d ___ [2014 WL 715741] (W.D. Tex. 2014) at *10; Bourke v. Beshear, ___ F.Supp.2d ___ (W.D. Tenn. 2014) [2014 WL 556729]; Bostic v. Rainey, 970 F.Supp.2d 476, 468470 (E.D. Va. 2014); Kitchen v. Herbert, 961 F.Supp.2d 1181, 1194–1195 (D. Utah 2013); Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 1277 (N.D. Okla.2013). For the reasons stated in these decisions, Baker is no bar to this Court’s consideration of the issues presented in this case.
CONCLUSION AND RELIEF REQUESTED A core strength of the American legal system, and a central aspect of its tradition, is its capacity to evolve in response to “emerging recognition”, Lawrence, 539 U.S. at 572, that attitudes and laws which were accepted in the past should now be recognized as, in fact, being hurtful and discriminatory. The lengthy, unbroken string of post-Windsor decisions striking down state law provisions preventing samesex couples from marrying and/or precluding state recognition of same-sex couples’
57

marriages validly entered into in another state vividly illustrates the point stressed by the Court in Lawrence that
... those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment ... knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. 539 U.S. at 578-579. The MMA and related statutory provisions are such laws. As a people and as a legal system, we now have the emerging recognition that, as the Court said of DOMA in Windsor, laws excluding same-sex couples from the right to marry discriminate against those couples and ... humiliate[] tens of thousands of children now being raised by same sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Windsor, 133 S.Ct. at 2694 (emphasis supplied). The MMA and related statutes violate both due process and equal protection, regardless of the standard of scrutiny applied, and the district court properly found that, in Judge Jones’ words in Whitewood, supra, “it is time to discard them into the ash heap of history”. 2014 WL 2058105 at *15. For all the reasons stated above, the decision below should be affirmed.
58

Respectfully submitted,

s/Carole M. Stanyar CAROLE M. STANYAR P34830 221 N. Main Street, Suite 300 Ann Arbor, MI 48104 (313) 819-3953 cstanyar3@wowway.com
s/Dana M. Nessel DANA M. NESSEL P51346 645 Griswold, Suite 4300 Detroit MI 48226 (313)556-2300 dananessel@hotmail.com

s/Kenneth M. Mogill Kenneth M. Mogill P17865 MOGILL, POSNER & COHEN 27 E. Flint St., 2nd Floor Lake Orion MI 48362 (248)814-9470 kmogill@bignet.net

Attorneys for Plaintiffs-Appellees

s/Robert A. Sedler ROBERT A. SEDLER P31003 Wayne State University Law School 471 W. Palmer Street Detroit, MI 48202 (313) 577-3968 rsedler@wayne.edu
Of Counsel for Plaintiffs-Appellees

Dated: June 9, 2014

59

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE
REQUIREMENTS 1. This principle brief complies with the type-volume limitation of F.R.App.P. 32(a) (7)(B) because this brief contains 13,884 words excluding the parts exempted by F.R.App.P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of F.R.App.P. 32(a)(5) and the type requirements of F.R.App.P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface in 14 point Times New Roman using Corel Wordperfect12.

Dated: June 9,2014

s/Carole M. Stanyar

CERTIFICATE OF SERVICE
CAROLE M. STANYAR hereby certifies that on the 9th day of June 2014, she served a copy of Appellees’ Brief on Appeal, and this Certificate of Service, upon Assistant Attorneys General Kristin Heyse, Tonya Jeter, and Joseph Potchen and upon counsel for Ms. Brown, Andrea Johnson and Michael Pitt, ECF filers.
s/Carole M. Stanyar

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DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS

R. No. 44
46
66-1 69-1
79
100 105 117
139 143 144 144 145 146 147 148 149

Description

Page ID

State’s Brief in Support of Motion to Dismiss Count II

767-769

Plaintiffs’ Response to Motion to Dismiss Count 821-824 II

Brief of Amici Curiae Constitutional Scholars 1315-1326

State’s Brief in Support of Motion for Summary 1611-1625 Judgment

Reply Brief to Response to State’s Motion for Summary Judgment

1908

Plaintiffs’ Motion to Bifurcate Trial

2027

Order Granting Plaintiffs’ Motion to Bifurcate 2069

Plaintiffs’ Motion in Limine to Exclude

2453-2465

Testimony of State Defendants’ Proposed Expert

Witness Sherif Girgis under Daubert

Plaintiffs’ Proposed Findings

3018-3044

Transcript, 2/25/14, Brodzinsky

3186-3262

Transcript, 2/26/14, Rosenfeld

3277-3278

Transcript, 2/26/14, Sankaran

3376-3392

Transcript, 2/27/14, Gates

3433-3435

Transcript, 3/3/14, Brown

3484-3509

Transcript, 3/4/14, Regnerus

3539-3594

Transcript, 3/6/14, Allen

3654-3748

Transcript, 2/28/14, Cott, motion for partial judgment

3775-3824, 3835-3838

61

150 151 152 157
158 164 165 167 168
169-1
170-1
171-1
172-1

Transcript, 3/5/14, Price

3822-3825

Findings of Fact and Conclusions of Law

3944-3974

Judgment in favor of Plaintiffs

3961-3975

Transcript, 3/3/14, Daubert Hearing, Sherif Girgis

3985-4019

Transcript, 3/7/14,Colloquy

4068-4069

Transcript, 2/25/14 Rosenfeld

4288-4330

Transcript, 3/3/14, Regnerus

4426

Transcript, 3/5/14, Marks

4632-4724

Stipulated Facts Regarding Plaintiffs (Trial Exhibit # 53)

4735-4736

[Plaintiffs’] Chauncey Report (Trial Exhibit # 51)

4744-4789

[Plaintiff’s] Michigan Department of Civil Rights 4805-4865 Report on LGBT Inclusion Under Michigan Law, Jan. 28, 2013, (Trial Exhibit # 50) filed by Plaintiffs

[Plaintiffs’] Brodzinsky Report (Trial Exhibit # 4933-4934 100)

[Plaintiffs’] Cott Report (Trial Exhibit)

4941

62

 
 2:12-cv-10C2a8s5e-:B1A4F-1-M34J1H Docu#m1e8n6t: 19F0iled 0F7ile/2d8:/0175/28P/2g0115of 5 PaPgge:ID1 5574

Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

July 28, 2015

Scott S. Harris Clerk of the Court (202) 479-3011

Clerk United States Court of Appeals
for the Sixth Circuit 524 Potter Stewart Courthouse 100 East Fifth Street Cincinnati, Ohio 45202

FILED
Jul 28, 2015
DEBORAH S. HUNT, Clerk

Re: James Obergefell, et al. v. Richard Hodges, Director, Ohio Department of Health, et al. No. 14-556 (Your docket Nos. 14-3057, 14-3464)

Re: Valeria Tanco, et al. v. Bill Haslam, Governor of Tennessee, et al. No. 14-562 (Your docket No. 14-5297)
Re: April DeBoer, et al. v. Rick Snyder, Governor of Michigan, et al. No. 14-571 (Your docket No. 14-1341)
Re: Gregory Bourke, et al. v. Steve Beshear, Governor of Kentucky No. 14-574 (Your docket Nos. 14-5291, 14-5818)

Dear Clerk:
Attached please find a certified copy of the judgment of this Court in the above-entitled cases. You may obtain a copy of the opinion by visiting our website @www.supremecourt.gov.

Sincerely, SCOTT S. HARRIS, Clerk

Enc. cc: All counsel of record

By
Elizabeth Brown Judgments/Mandates Clerk

2:12-cv-10C2a8s5e-:B1A4F-1-M34J1H Docu#m1e8n6t: 19F0iled 0F7ile/2d8:/0175/28P/2g0215of 5 PaPgge:ID2 5575

Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

July 28, 2015

Scott S. Harris Clerk of the Court (202) 479-3011

Mr. Alphonse A. Gerhardstein Gerhardstein & Branch Co. LPA 432 Walnut St., Suite 400 Cincinnati, OH 45202

Re: James Obergefell, et al. v. Richard Hodges, Director, Ohio Department of Health, et al. No. 14-556;

Re: Valeria Tanco, et al. v. Bill Haslam, Governor of Tennessee, et al. No. 14-562;

and Re: Gregory Bourke, et al.
v. Steve Beshear, Governor of Kentucky No. 14-574

Dear Mr. Gerhardstein:

Today, a certified copy of the judgment of this Court in the above-entitled cases was emailed to the Clerk of the United States Court of Appeals for the Sixth Circuit.

The petitioners are given recovery of costs in this Court as follows:

Printing of record: Clerk’s costs: Total:

$25,878.00 _ 900.00 ($300.00 to each set of petitioners)
$26,778.00

This amount may be collected from the respondents.

Sincerely,

SCOTT S. HARRIS, Clerk

By
Elizabeth Brown Judgments/Mandates Clerk
cc: All counsel of record Clerk, USCA for the Sixth Circuit (Your docket Nos. 14-3057, 14-3464, 14-5297, 14-5291, 14-5818)

2:12-cv-10C2a8s5e-:B1A4F-1-M34J1H Docu#m1e8n6t: 19F0iled 0F7ile/2d8:/0175/28P/2g0315of 5 PaPgge:ID3 5576

Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

July 28, 2015

Scott S. Harris Clerk of the Court (202) 479-3011

Ms. Carole M. Stanyar 221 N. Main Street Suite 300 Ann Arbor, MI 48104

Re: April DeBoer, et al. v. Rick Snyder, Governor of Michigan, et al. No. 14-571

Dear Ms. Stanyar:

Today, a certified copy of the judgment of this Court in the above-entitled case was emailed to the Clerk of the United States Court of Appeals for the Sixth Circuit.

The petitioners are given recovery of costs in this Court as follows:

Printing of record: Clerk’s costs: Total:

$7,131.80 300.00
$7,431.80

This amount may be collected from the respondents.

Sincerely,

SCOTT S. HARRIS, Clerk

cc: All counsel of record Clerk, USCA for the Sixth Circuit (Your docket No. 14-1341)

By
Elizabeth Brown Judgments/Mandates Clerk

2:12-cv-10C2a8s5e-:B1A4F-1-M34J1H Docu#m1e8n6t: 19F0iled 0F7ile/2d8:/0175/28P/2g0415of 5 PaPgge:ID4 5577
Supreme Court of the United States

No.

14-556

JAMES OBERGEFELL, ET AL., Petitioners v.
RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL.;

14-562 VALERIA TANCO, ET AL., Petitioners
v. BILL HASLAM, GOVERNOR OF TENNESSEE, ET AL.;

14-571 APRIL DeBOER, ET AL., Petitioners
v. RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.;
and 14-574 GREGORY BOURKE, ET AL., Petitioners
v. STEVE BESHEAR, GOVERNOR OF KENTUCKY

ON WRITS OF CERTIORARI to the United States Court of Appeals for the Sixth Circuit.
THESE CAUSES came on to be heard on the transcript of the record from the above court and were argued by counsel.
ON CONSIDERATION WHEREOF, it is ordered and adjudged by Court that the judgment of the above court are reversed with costs.

2:12-cv-10C2a8s5e-:B1A4F-1-M34J1H Docu#m1e8n6t: 19F0iled 0F7ile/2d8:/0175/28P/2g0515of 5 PaPgge:ID5 5578

IT IS FURTHER ORDERED that the petitioners James Obergefell, et al., Valeria Tanco, et al., April DeBoer, et al., and Gregory Bourke, et al. recover from Richard Hodges, Director, Ohio Department of Health, et al., Bill Haslam, Governor of Tennessee, et al., Rick Snyder, Governor of Michigan, et al., and Steve Beshear, Governor of Kentucky Thirty-four Thousand Two Hundred Nine Dollars and Eighty Cents ($34,209.80) for costs herein expended.
June 26, 2015

Case Nos. 14-556, 14-562 & 14-574

Printing of record: Clerk’s costs: Total:

$25,878.00 _ 900.00 ($300.00 to each set of petitioners)
$26,778.00

Case No. 14-571

Printing of record: Clerk’s costs: Total:

$7,131.80 300.00
$7,431.80

 
 U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:12-cv-10285-BAF-MJH

DeBoer et al v. Snyder et al Assigned to: District Judge Bernard A. Friedman Referred to: Magistrate Judge Michael J. Hluchaniuk Case in other court: U.S. Court of Appeals - Sixth
Circuit, 14-01341 Cause: 42:1983 Civil Rights Act

Date Filed: 01/23/2012 Date Terminated: 03/21/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
April DeBoer Individually and as parent and next friend of N.D.-R, R.D.-R, and J.D.-R

represented by Dana M. Nessel Nessel Kessel 645 Griswold Street 3060 Penobscot Building Detroit, MI 48226 313-556-2300 Fax: 313-961-7799 Email: dana@nesselandkessellaw.com ATTORNEY TO BE NOTICED

Joshua A. Block American Civil Liberties Union Foundation 125 Broad St. 18th Floor New York, NY 10004 212-549-2627 Fax: 212-549-2650 Email: jblock@aclu.org ATTORNEY TO BE NOTICED

Kenneth M. Mogill Mogill, Posner, 27 E. Flint Street 2nd FLoor Lake Orion, MI 48226 248-814-9470 Fax: 248-814-8231 Email: kmogill@bignet.net ATTORNEY TO BE NOTICED

Leslie Cooper

ACLU Foundation 125 Broad St. 18th Floor New York, NY 10004 212-549-2584 Fax: 212-549-2650 Email: lcooper@aclu.org ATTORNEY TO BE NOTICED
Mary L. Bonauto Gay & Lesiban Advocates & Defenders (GLAD) 30 Winter St. Suite 800 Boston, MA 02108 617-426-1350 Fax: 617-426-3594 Email: mbonauto@glad.org ATTORNEY TO BE NOTICED
Robert A. Sedler Wayne State University Law School 471 West Palmer Street Detroit, MI 48202 313-577-3968 Fax: 313-577-5166 Email: rsedler@wayne.edu ATTORNEY TO BE NOTICED
Vickie L. Henry Gay & Lesiban Advocates & Defenders (GLAD) 30 Winter St. Suite 800 Boston, MA 02108 617-426-1350 Fax: 617-426-3594 Email: vhenry@glad.org ATTORNEY TO BE NOTICED
Carole M. Stanyar 221 N. Main Street Suite 300 Ann Arbor, MI 48104 313-819-3953

Plaintiff Jayne Rowse Individually and as parent and next friend of N.D.-R, R.D.-R, and J.D.-R
Plaintiff N.D.-R a minor child by April DeBoer and Jayne Rowse

Email: cstanyar@wowway.com ATTORNEY TO BE NOTICED
represented by Dana M. Nessel (See above for address) ATTORNEY TO BE NOTICED
Joshua A. Block (See above for address) ATTORNEY TO BE NOTICED
Kenneth M. Mogill (See above for address) ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) ATTORNEY TO BE NOTICED
Mary L. Bonauto (See above for address) ATTORNEY TO BE NOTICED
Robert A. Sedler (See above for address) ATTORNEY TO BE NOTICED
Vickie L. Henry (See above for address) ATTORNEY TO BE NOTICED
Carole M. Stanyar (See above for address) ATTORNEY TO BE NOTICED
represented by Carole M. Stanyar (See above for address) ATTORNEY TO BE NOTICED
Dana M. Nessel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
R.D.-R a minor child by April DeBoer and Jayne Rowse

Joshua A. Block (See above for address) ATTORNEY TO BE NOTICED
Kenneth M. Mogill (See above for address) ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) ATTORNEY TO BE NOTICED
Mary L. Bonauto (See above for address) ATTORNEY TO BE NOTICED
Robert A. Sedler (See above for address) ATTORNEY TO BE NOTICED
Vickie L. Henry (See above for address) ATTORNEY TO BE NOTICED
represented by Carole M. Stanyar (See above for address) ATTORNEY TO BE NOTICED
Dana M. Nessel (See above for address) ATTORNEY TO BE NOTICED
Joshua A. Block (See above for address) ATTORNEY TO BE NOTICED
Kenneth M. Mogill (See above for address) ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) ATTORNEY TO BE NOTICED
Mary L. Bonauto

Plaintiff
J.D.-R a minor child by April DeBoer and Jayne Rowse

(See above for address) ATTORNEY TO BE NOTICED
Robert A. Sedler (See above for address) ATTORNEY TO BE NOTICED
Vickie L. Henry (See above for address) ATTORNEY TO BE NOTICED
represented by Carole M. Stanyar (See above for address) ATTORNEY TO BE NOTICED
Dana M. Nessel (See above for address) ATTORNEY TO BE NOTICED
Joshua A. Block (See above for address) ATTORNEY TO BE NOTICED
Kenneth M. Mogill (See above for address) ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) ATTORNEY TO BE NOTICED
Mary L. Bonauto (See above for address) ATTORNEY TO BE NOTICED
Robert A. Sedler (See above for address) ATTORNEY TO BE NOTICED
Vickie L. Henry (See above for address) ATTORNEY TO BE NOTICED

V.

Defendant Richard Snyder in his official capacity as Governor of the State of Michigan
Defendant

represented by Joseph E. Potchen Michigan Department of Attorney General Corporate Oversight Division P.O. Box 30755 Lansing, MI 48909 517-373-1160 Email: potchenj@michigan.gov ATTORNEY TO BE NOTICED
Kristin M. Heyse Michigan Department of the Attorney General 525 W Ottawa St. 3rd Floor P.O. Box 30758 48909 517-373-7700 Fax: 517-335-1152 Email: heysek@michigan.gov ATTORNEY TO BE NOTICED
Michelle M. Brya State of Michigan Department of Attorney General 525 W. Ottawa Street - 3rd Fl P.O. Box 30758 Lansing, MI 48909 5173737700 Fax: 5173351152 Email: BryaM@michigan.gov ATTORNEY TO BE NOTICED
Tonya C. Jeter Michigan Attorney General 3030 West Grand Boulevard Detroit, MI 48226 313-456-0280 Fax: 313-456-0291 Email: jetert@michigan.gov ATTORNEY TO BE NOTICED

Bill Schuette in his official capacity as Michigan Attorney General
Defendant Bill, Jr. Bullard Oakland County Clerk
Defendant Lisa Brown

represented by Joseph E. Potchen (See above for address) ATTORNEY TO BE NOTICED
Kristin M. Heyse (See above for address) ATTORNEY TO BE NOTICED
Michelle M. Brya (See above for address) ATTORNEY TO BE NOTICED
Tonya C. Jeter (See above for address) ATTORNEY TO BE NOTICED
represented by Bill, Jr. Bullard Office of the Clerk/Register of Deeds 1200 N. Telegraph Road Building 12 East Pontiac, MI 48341 PRO SE
Keith J. Lerminiaux Oakland County Corporation Counsel 1200 N. Telegraph Road Suite 419 Bldg. 14E Pontiac, MI 48341-0419 248-858-0550 Email: lerminiauxk@oakgov.com ATTORNEY TO BE NOTICED
represented by Andrea J. Johnson Orrick Herrington Sutcliffe LLP 2121 Main Street Wheeling, WV 26003-2809 304-234-3423 Fax: 304-231-2801 Email: andrea.johnson@orrick.com ATTORNEY TO BE NOTICED
Beth M. Rivers Pitt, Dowty,

117 W. Fourth Street Suite 200 Royal Oak, MI 48067-3804 248-398-9800 Email: brivers@pittlawpc.com ATTORNEY TO BE NOTICED
Michael L. Pitt Pitt, McGehee, 117 W. Fourth Street Suite 200 Royal Oak, MI 48067-3804 248-398-9800 Email: mpitt@pittlawpc.com ATTORNEY TO BE NOTICED

V.
Movant
Stephen P. Gorsline TERMINATED: 03/27/2012

represented by Stephen P. Gorsline 528 East Mahan Avenue Hazel Park, MI 48030-1228 PRO SE

Amicus

American Civil Liberties Union

represented by Jay Kaplan American Civil Liberties of Michigan 2966 Woodward Ave. Detroit, MI 48201 313-578-6800 Fax: 313-578-6811 Email: kaplan@aclumich.org ATTORNEY TO BE NOTICED

Michael J. Steinberg American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 313-578-6814 Email: msteinberg@aclumich.org ATTORNEY TO BE NOTICED

Amicus

Michigan Law Professors

represented by Alan M. Gershel Thomas M. Cooley Law School 2630 Featherstone Road Auburn Hills, MI 48326 248.751.7800 x7765 Email: gershela@cooley.edu ATTORNEY TO BE NOTICED

Amicus Constitutional Law Scholars

represented by Diane M. Soubly Butzel Long PC 301 East Liberty Street Suite 500 Ann Arbor, MI 48104 734-995-3110 Fax: 734-995-1777 Email: soubly@butzel.com ATTORNEY TO BE NOTICED

Amicus Michigan Catholic Conference

represented by Thomas J. Rheaume , Jr. Bodman PLC 6th Floor at Ford Field 1901 St. Antoine Street Detroit, MI 48226 313-259-7777 Fax: 313-393-7579 Email: trheaume@bodmanlaw.com ATTORNEY TO BE NOTICED

Amicus Michigan Family Forum

represented by James A. Campbell Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 480-444-0020 Fax: 480-444-0028 Email: jcampbell@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

01/23/2012
01/23/2012 01/23/2012 01/23/2012 01/23/2012
01/31/2012 02/01/2012 02/03/2012 02/03/2012 02/03/2012

1 COMPLAINT for Declaratory and Injunctive Relief filed by All Plaintiffs against All Defendants. Plaintiff requests summons issued. Receipt No: 0645-3349176 - Fee: $ 350. County of 1st Plaintiff: Oakland - County Where Action Arose: Oakland - County of 1st Defendant: Washtenaw. [Previously dismissed case: No] [Possible companion case(s): United States District Court for the Eastern District of Michigan, Southern Division, 12cv-10038, Judge David Lawson] (Stanyar, Carole) (Entered: 01/23/2012)
2 NOTICE by All Plaintiffs re 1 Complaint,, Notice of Identification of Case as Companion Case (Stanyar, Carole) (Entered: 01/23/2012)
3 SUMMONS Issued for *Bill Schuette* (Werner, L) (Entered: 01/23/2012)
4 SUMMONS Issued for *Richard Snyder* (Werner, L) (Entered: 01/23/2012)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (Werner, L) (Entered: 01/23/2012)
5 NOTICE of Appearance by Joseph E. Potchen on behalf of All Defendants. (Potchen, Joseph) (Entered: 01/31/2012)
6 CERTIFICATE OF SERVICE re 2 Notice (Other) by All Plaintiffs as to previously filed Notice of Identification of Case as Companion Case (Stanyar, Carole) (Entered: 02/01/2012)
7 CERTIFICATE of Service/Summons Returned Executed. All Plaintiffs. (Stanyar, Carole) [RETURN AS TO RICHARD SNYDER ONLY] Modified on 2/3/2012 (VLun). (Entered: 02/03/2012)
8 CERTIFICATE of Service/Summons Returned Executed. All Defendants. (Stanyar, Carole) [RETURN AS TO BILL SCHUETTE ONLY] Modified on 2/3/2012 (SSro). (Entered: 02/03/2012)
9 [FILED ON WRONG CASE] Bankruptcy Record - IMAGE NOT PUBLICLY AVAILABLE. (Attachments: # 1 Document Continuation, # 2 Document Continuation, # 3 Document

02/03/2012 02/03/2012 02/08/2012 02/17/2012 02/17/2012 02/21/2012 02/22/2012 03/05/2012 03/13/2012
03/13/2012
03/13/2012

Continuation) (VLun) Modified on 2/3/2012 (VLun). (Entered: 02/03/2012)
10 NOTICE of Correction re 9 Bankruptcy Record - FILED ON WRONG CASE, PLEASE DISREGARD. (VLun) (Entered: 02/03/2012)
11 RESPONSE to 2 Notice (Other) by All Defendants. (Attachments: # 1 Exhibit Exhibit 1) (Potchen, Joseph) (Entered: 02/03/2012)
12 ATTORNEY APPEARANCE: Tonya C. Jeter appearing on behalf of All Defendants (Jeter, Tonya) (Entered: 02/08/2012)
13 MOTION for Leave to File Excess Pages by All Defendants. (Potchen, Joseph) (Entered: 02/17/2012)
14 MOTION to Dismiss by All Defendants. (Potchen, Joseph) (Entered: 02/17/2012)
15 NOTICE of determination on briefs re 14 MOTION to Dismiss (CMul) (Entered: 02/21/2012)
16 ORDER granting 13 Motion for Leave to File Excess PagesSigned by District Judge Bernard A. Friedman. (SJa) (Entered: 02/22/2012)
17 MOTION for Leave to File Amicus Curiae Brief by Stephen P. Gorsline. (PMil) (Entered: 03/07/2012)
18 (STRICKEN 3/16/2012) MOTION for Summary Judgment Plaintiffs' Motion for Summary Judgment and Combined Brief in Response to Defendants' Motion to Dismiss and in Support of Plaintiffs' Motion for Summary Judgment by All Plaintiffs. (Stanyar, Carole) Modified on 3/16/2012 (CMul). (Entered: 03/13/2012)
19 MOTION for Leave to File Excess Pages as to Combined Response to Defendants' Motion to Dismiss and in Support of Plaintiffs' Motion for Summary Judgment by All Plaintiffs. (Stanyar, Carole) (Entered: 03/13/2012)
20 (STRICKEN 3/16/2012) STATEMENT of Plaintiffs Statement of Undisputed Material Facts in Support of Motion for Summary Judgment by All Plaintiffs (Attachments: # 1Index of Exhibits, # 2 Exhibit 1: Declaration of April DeBoer, # 3 Exhibit 2: Declaration of Jayne Rowse, # 4 Exhibit 3: Declaration of Wendy DeBoer, # 5 Exhibit 4: Declaration of Cynthia Bostwick,

03/14/2012 03/15/2012 03/15/2012 03/16/2012 03/16/2012 03/19/2012 03/19/2012
03/19/2012

# 6 Exhibit 5: Declaration of Kathi Nelson, # 7 Exhibit 6: Declaration of Jeanne A. Howard, # 8 Exhibit 6a: Position Statement, American Psychiatric Association, Adoption and Coparenting of Children by Same-sex Couples, # 9 Exhibit 6b: Curriculum Vitae, Jeanne Howard) (Stanyar, Carole) Modified on 3/16/2012 (CMul). (Entered: 03/13/2012)
21 RESPONSE to 17 MOTION for Leave to File Amicus Curiae by Stephen Gorsline filed by All Plaintiffs. (Stanyar, Carole) (Entered: 03/14/2012)
22 NOTICE TO APPEAR: Status/Scheduling Conference set for Wednesday, 3/28/2012 02:30 PM before District Judge Bernard A. Friedman (CMul) (Entered: 03/15/2012)
TEXT-ONLY CERTIFICATE OF SERVICE re 22 Notice to Appear on Stephen P. Gorsline at 528 East Mahan Ave., Hazel Park, MI 48030-1228. (CMul) (Entered: 03/15/2012)
23 ORDER granting in part and denying in part 19 Motion for Leave to File Excess Pages and striking documents 18 and 20 .. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 03/16/2012)
TEXT-ONLY CERTIFICATE OF SERVICE re 23 Order on Motion for Leave to File Excess Pages on Stephen P. Gorsline at 528 East Mahan Avenue, Hazel Park, MI 48030-1228. (CMul) (Entered: 03/16/2012)
24 RESPONSE to 14 MOTION to Dismiss filed by All Plaintiffs. (Stanyar, Carole) (Entered: 03/19/2012)
25 MOTION for Summary Judgment , Brief in Support by All Plaintiffs. (Attachments: # 1Index of Exhibits, # 2 Exhibit 1. Declaration of April DeBoer, # 3 Exhibit 2. Declaration of Jayne Rowse, # 4 Exhibit 3. Declaration of Wendy DeBoer, # 5 Exhibit 4. Declaration of Cynthia Bostwick, # 6 Exhibit 5. Declaration of Kathi Nelson, # 7 Exhibit 6. Declaration of Jeanne Howard, Ph.D., # 8 Exhibit 6a. Position Statement, American Psychiatric Association, Adoption and Co-Parenting of Children by Same-Sex Couples (2002), # 9 Exhibit 6b. Curriculum Vitae, Jeanne Howard) (Stanyar, Carole) (Entered: 03/19/2012)
26 CERTIFICATE OF SERVICE re 25 MOTION for Summary Judgment , Brief in Support, 24 Response to Motion by All Plaintiffs (Stanyar, Carole) (Entered: 03/19/2012)

03/27/2012 03/27/2012 03/28/2012
03/29/2012 04/02/2012 06/01/2012 06/22/2012 06/25/2012 08/29/2012
09/07/2012 09/07/2012

27 ORDER denying 17 Motion for Leave to File. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 03/27/2012)
TEXT-ONLY CERTIFICATE OF SERVICE re 27 Order on Motion for Leave to File on Stephen P. Gorsline at 528 East Mahan Ave., Hazel Park, MI 48030-1228. (CMul) (Entered: 03/27/2012)
Minute Entry - Status Conference held on 3/28/2012 before District Judge Bernard A. Friedman. Disposition: Response to 25 Plaintiff's Motion for Summary Judgment stayed pending disposition of 14 Defendant's motion dismiss (CMul) (Entered: 03/28/2012)
28 NOTICE of Appearance by Dana M. Nessel on behalf of All Plaintiffs. (Nessel, Dana) (Entered: 03/29/2012)
29 REPLY to Response re 14 MOTION to Dismiss filed by All Defendants. (Potchen, Joseph) (Entered: 04/02/2012)
30 Notice of Determination of Motion Without Oral Argument re 25 MOTION for Summary Judgment (CMul) (Entered: 06/01/2012)
31 NOTICE of hearing on 14 MOTION to Dismiss. Motion Hearing set for 7/25/2012 02:00 PM before District Judge Bernard A. Friedman (CMul) (Entered: 06/22/2012)
32 RE-NOTICE of hearing on 14 MOTION to Dismiss. Motion Hearing set for Wednesday, 8/29/2012 02:00 PM before District Judge Bernard A. Friedman (CMul) (Entered: 06/25/2012)
Minute Entry - Motion Hearing held on 8/29/2012 re 14 MOTION to Dismiss filed by Richard Snyder, Bill Schuette before District Judge Bernard A. Friedman. Disposition: taken under advisement(Court Reporter Joan Morgan) (CMul) (Entered: 08/29/2012)
33 MOTION for Leave to File First Amended Complaint for Declaratory and Injunctive Relief by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit A, Amended Complaint for Declaratory and Injunctive Relief) (Stanyar, Carole) (Entered: 09/07/2012)
34 EXHIBIT Amended Exhibit A, Amended Complaint for Declaratory and Injunctive Reliefre 33 MOTION for Leave to

09/21/2012 09/24/2012
09/25/2012 10/03/2012 10/03/2012 10/03/2012 10/03/2012 10/05/2012 10/05/2012 10/08/2012 10/22/2012 11/07/2012

File First Amended Complaint for Declaratory and Injunctive Relief by All Plaintiffs (Stanyar, Carole) (Entered: 09/07/2012)
35 RESPONSE to 33 MOTION for Leave to File First Amended Complaint for Declaratory and Injunctive Relief filed by All Defendants. (Potchen, Joseph) (Entered: 09/21/2012)
36 ORDER granting 33 Motion for Leave to File; denying as moot 14 Motion to Dismiss; and denying as moot 25 Motion for Summary Judgment. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 09/24/2012)
37 NOTICE TO APPEAR: Status Conference set for 10/3/2012 10:00 AM before District Judge Bernard A. Friedman (CMul) (Entered: 09/25/2012)
Minute Entry - Status Conference held on 10/3/2012 before District Judge Bernard A. Friedman. (CMul) (Entered: 10/03/2012)
38 AMENDED COMPLAINT filed by All Plaintiffs against All Defendants. NEW PARTIES ADDED. (Stanyar, Carole) (Entered: 10/03/2012)
REQUEST for SUMMONS for Bill, Jr. Bullard. (Stanyar, Carole) (Entered: 10/03/2012)
39 SUMMONS Issued for *Bill, Jr. Bullard* (DWor) (Entered: 10/03/2012)
40 SCHEDULING ORDER. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 10/05/2012)
41 ORDER for incorporation of filings. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 10/05/2012)
42 NOTICE of Appearance by Kenneth M. Mogill on behalf of All Plaintiffs. (Mogill, Kenneth) (Entered: 10/08/2012)
43 CERTIFICATE of Service/Summons Returned Executed. Bill, Jr. Bullard served on 10/9/2012, answer due 10/30/2012. (Stanyar, Carole) (Entered: 10/22/2012)
44 MOTION to Dismiss by Bill Schuette, Richard Snyder. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Attachment 1, # 3 Exhibit Attachment 2, # 4Exhibit Attachment 3) (Potchen, Joseph) (Entered: 11/07/2012)

11/08/2012 12/05/2012
12/19/2012 12/20/2012 12/21/2012 01/11/2013
01/25/2013 02/12/2013 02/20/2013
03/07/2013

45 MOTION to Dismiss Amended Complaint by Bill, Jr. Bullard. (Lerminiaux, Keith) (Entered: 11/08/2012)
46 RESPONSE to 44 MOTION to Dismiss , 45 MOTION to Dismiss Amended Complaint as to Count II, the Michigan Marriage Amendment filed by All Plaintiffs. (Attachments: # 1Exhibit Garden State Equality v Dow, 2012 WL 540608 (NJ Super L)(unpublished opinion)) (Stanyar, Carole) (Entered: 12/05/2012)
47 REPLY to Response re 45 MOTION to Dismiss Amended Complaint filed by Bill, Jr. Bullard. (Lerminiaux, Keith) (Entered: 12/19/2012)
48 REPLY re: 44 by Bill Schuette, Richard Snyder. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2) (Potchen, Joseph) Modified on 12/21/2012 (TMcg). (Entered: 12/20/2012)
49 MOTION for Leave to File Amicus Curiae Brief by American Civil Liberties Union. (Steinberg, Michael) (Entered: 12/21/2012)
50 NOTICE of hearing on 45 MOTION to Dismiss Amended Complaint,and 44 MOTION to Dismiss . Motion Hearing set for 3/7/2013 09:00 AM before District Judge Bernard A. Friedman Hearing to be held at Wayne State University Law School. (CMul) (Entered: 01/11/2013)
51 ORDER GRANTING 49 Motion to File Amicus Curiae Brief. Signed by District Judge Bernard A. Friedman. (MWil) (Entered: 01/25/2013)
52 NOTICE by Bill, Jr. Bullard of withdrawal of 45 MOTION to Dismiss Amended Complaint . (Lerminiaux, Keith) (Entered: 02/12/2013)
53 SUPPLEMENTAL BRIEF re 46 Response to Motion, 25 MOTION for Summary Judgment , Brief in Support Plaintiffs' Memorandum of Law Regarding Recent Amendment to MCLA §710.24 filed by All Plaintiffs. (Stanyar, Carole) (Entered: 02/20/2013)
Minute Entry - Motion Hearing held on 3/7/2013 re: 44 MOTION to Dismiss filed by Richard Snyder, Bill Schuette before District Judge Bernard A. Friedman. Disposition: Taken Under Advisement. Decision stayed.(Court Reporter Joan Morgan) (MWil) (Entered: 03/07/2013)

07/01/2013 07/01/2013 07/03/2013 07/03/2013 07/08/2013 07/09/2013 07/10/2013
07/11/2013
07/22/2013 07/23/2013 07/30/2013 07/30/2013

54 OPINION AND ORDER denying 44 Motion to Dismiss the amended complaint. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 07/01/2013)
Set Hearings: Status/Scheduling Conference set for 7/10/2013 03:00 PM before District Judge Bernard A. Friedman (CMul) (Entered: 07/01/2013)
55 ATTORNEY APPEARANCE: Andrea J. Johnson appearing on behalf of Lisa Brown , Oakland County Clerk (Johnson, Andrea) (Entered: 07/03/2013)
56 ATTORNEY APPEARANCE: Michael L. Pitt appearing on behalf of Lisa Brown , Oakland County Clerk (Pitt, Michael) (Entered: 07/03/2013)
57 NOTICE of Appearance by Kristin M. Heyse on behalf of Bill Schuette, Richard Snyder. (Heyse, Kristin) (Entered: 07/08/2013)
58 ATTORNEY APPEARANCE: Beth M. Rivers appearing on behalf of Lisa Brown , Oakland County Clerk (Rivers, Beth) (Entered: 07/09/2013)
Minute Entry for proceedings held before District Judge Bernard A. Friedman: Scheduling Conference held on 7/10/2013, Set Motion Hearing for 10/1/2013 at 1:00 p.m. Disposition: Cross Motion filing deadlines established (CMul) (Entered: 07/11/2013)
59 SCHEDULING ORDER: Dispositive Motion Cut-off set for 8/14/2013 Signed by District Judge Bernard A. Friedman. (Refer to image for additional dates) (CMul) Modified on 7/30/2013 (CMul). (Entered: 07/11/2013)
60 ANSWER to Amended Complaint for Declaratory and Injunctive Relief by Bill Schuette, Richard Snyder. (Heyse, Kristin) (Entered: 07/22/2013)
61 ANSWER to Amended Complaint for Declaratory and Injunctive Relief by Lisa Brown. (Johnson, Andrea) (Entered: 07/23/2013)
62 CONSENT of Substitution of Counsel by Bill, Jr. Bullard (Lerminiaux, Keith) (Entered: 07/30/2013)
63 ORDER of Attorney Substitution. Attorney Michael L. Pitt for April DeBoer added. Signed by District Judge Bernard A. Friedman. (KKra) (Entered: 07/30/2013)

08/12/2013 08/12/2013 08/13/2013 08/14/2013
08/14/2013
08/14/2013 08/21/2013

64 Amicus Curiae BRIEF by All Plaintiffs (Attachments: # 1 Document Continuation Amicus Brief Attachment, # 2 Index of Exhibits List of Attached Internet Sources Cited) (Gershel, Alan) (Entered: 08/12/2013)
65 MOTION Leave to File Amicus Brief in Support of Plaintiffs by Michigan Law Professors. (Attachments: # 1 Document Continuation Amicus Brief Attachment, # 2Index of Exhibits Internet Sources Cited, # 3 Exhibit Attachments A through L, # 4Exhibit Attachments N through R) (Gershel, Alan) (Entered: 08/12/2013)
66 MOTION for Leave to File Brief Amici Curiae and Brief Amici Curiae as exhibit by Constitutional Law Scholars. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4Exhibit, # 5 Exhibit) (Soubly, Diane) (Entered: 08/13/2013)
67 Cross MOTION for Summary Judgment as to Counts I and II by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1. Declaration of April DeBoer, 3/9/12, # 3 Exhibit 2. Declaration of Jayne Rowse, 3/10/12, # 4 Exhibit 3. Declaration of Wendy DeBoer, 3/9/12, # 5 Exhibit 4. Declaration of Cynthia Bostwick, 3/12/12, # 6 Exhibit 5. Declaration of Kathi Nelson, 3/12/12, # 7 Exhibit 6. Declaration of Jeanne Howard, 2/12/12, with attachments, # 8 Exhibit 6(a) Position Statement of the American Psychiatric Association, Adoption and Co-Parenting of Children by Same-Sex Couples, # 9 Exhibit 6(b) Curriculum Vitae of Jeanne Howard, Ph.D.) (Stanyar, Carole) (Entered: 08/14/2013)
68 MOTION for Summary Judgment In Support of Plaintiffs by Lisa Brown. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exh 1 Oath of Office, # 3 Exhibit Exh 2 Michigan House Journal, # 4 Exhibit Exh 3 Legislative Analysis, # 5 Exhibit Exh 4 BLAG Brief) (Johnson, Andrea) Modified on 8/15/2013 (DWor). [DOCUMENT ENTITLED "DEFENDANT BROWN'S BRIEF IN SUPPORT OF SUMMARY JUDGMENT FOR PLAINTIFFS"] (Entered: 08/14/2013)
69 MOTION for Summary Judgment by Bill Schuette, Richard Snyder. (Attachments: # 1Document Continuation Brief in Support) (Heyse, Kristin) (Entered: 08/14/2013)
70 MOTION for Leave to File Amicus Curiae Brief by Michigan Catholic Conference. (Attachments: # 1 Exhibit A) (Rheaume, Thomas) (Entered: 08/21/2013)

08/21/2013 08/29/2013 08/30/2013 09/09/2013 09/09/2013 09/09/2013
09/10/2013

71 MOTION for Leave to File Brief of Amicus Curiae Michigan Family Forum in Support of Defendants and Brief in Support of Motion by Michigan Family Forum. (Attachments: # 1Brief of Amicus Curiae Michigan Family Forum in Support of Defendants) (Campbell, James) (Entered: 08/21/2013)
72 ORDER granting 65 Motion to file amicus curiae briefs; granting 66 Motion to File amicus curiae briefs; granting 70 Motion to File amicus curiae briefs; granting 71 Motion for Leave to File amicus curiae briefs;. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 08/29/2013)
73 MOTION for Leave to File Amici Curiae Brief by American Civil Liberties Union. (Attachments: # 1 Exhibit A, Amici Curiae Brief) (Kaplan, Jay) (Entered: 08/30/2013)
74 RESPONSE to 67 Cross MOTION for Summary Judgment as to Counts I and II filed by Bill Schuette, Richard Snyder. (Attachments: # 1 Exhibit) (Heyse, Kristin) (Entered: 09/09/2013)
75 RESPONSE to 68 MOTION for Summary Judgment In Support of PlaintiffsDEFENDANT BROWN'S filed by Lisa Brown. (Rivers, Beth) (Entered: 09/09/2013)
76 RESPONSE to 69 MOTION for Summary Judgment filed by April DeBoer, J.D.-R, N.D.-R, R.D.-R, Jayne Rowse. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Exhibit A, Brief of Amicus Curiae of American Sociological Association in Support of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor, filed in Hollingsworth v Perry, S Ct #12-144, and United States v Windsor, S Ct #12-307, # 3 Exhibit Exhibit B, Second Declaration of Jeanne Howard, September 9, 2013, # 4 Exhibit Exhibit C, M. Regnerus, Q & A With Mark Regnerus About the Background of His New Study, (2012), http://www.patheos.com/blogs/blackwhiteandgray/2012/06/q-awith-mark-regnerus-about-the-background-of-his-new-study/, # 5 Exhibit Exhibit D, Current Preamble to Marriage from a Childs Perspective: How Does Family Structure Affect Children...?, K. Moore, S. Jekielek, and C. Emig, Child Trends Research Brief) (Stanyar, Carole) (Entered: 09/09/2013)
77 NOTICE OF HEARING on 67 Cross MOTION for Summary Judgment as to Counts I and II, 69 MOTION for Summary Judgment , and 68 MOTION for Summary Judgment In Support of Plaintiffs. Motion Hearing set for Wednesday, 10/16/2013

09/17/2013 09/17/2013 09/17/2013
09/25/2013
10/02/2013 10/04/2013 10/08/2013 10/09/2013 10/10/2013 10/11/2013
10/11/2013 10/16/2013

02:30 PM before District Judge Bernard A. Friedman Courtroom #100 (CMul) (Entered: 09/10/2013)
78 REPLY to Response re 67 Cross MOTION for Summary Judgment as to Counts I and IIfiled by All Plaintiffs. (Stanyar, Carole) (Entered: 09/17/2013)
79 REPLY to Response re 69 MOTION for Summary Judgment filed by Bill Schuette, Richard Snyder. (Heyse, Kristin) (Entered: 09/17/2013)
80 REPLY to Response re 68 MOTION for Summary Judgment In Support of Plaintiffs, 67Cross MOTION for Summary Judgment as to Counts I and II filed by Lisa Brown. (Johnson, Andrea) (Entered: 09/17/2013)
81 NOTICE by All Plaintiffs Notice of Filing Exhibit in Support of Plaintiffs' Motion for Summary Judgment (Attachments: # 1 Index of Exhibits, # 2 Exhibit Excerpts of Deposition of Loren Marks, 10/30/09, filed in Perry v Schwarzenegger, N.D.Cal. No 1016696,11/1/10) (Stanyar, Carole) (Entered: 09/25/2013)
82 MOTION for Order to Realign the Parties by Bill Schuette, Richard Snyder. (Heyse, Kristin) (Entered: 10/02/2013)
83 ORDER granting 73 Motion for Leave to File. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 10/04/2013)
84 RESPONSE to 82 MOTION for Order to Realign the Parties filed by All Plaintiffs. (Mogill, Kenneth) (Entered: 10/08/2013)
85 NOTICE of Appearance by Robert A. Sedler on behalf of All Plaintiffs. (Sedler, Robert) (Entered: 10/09/2013)
86 REPLY to Response re 82 MOTION for Order to Realign the Parties filed by Bill Schuette, Richard Snyder. (Heyse, Kristin) (Entered: 10/10/2013)
87 REPLY to Response re 82 MOTION for Order to Realign the Parties Corrected to Remove Error Messages on page 1 filed by Bill Schuette, Richard Snyder. (Heyse, Kristin) (Entered: 10/11/2013)
88 RESPONSE to 82 MOTION for Order to Realign the Parties filed by Lisa Brown. (Johnson, Andrea) (Entered: 10/11/2013)
Minute Entry for proceedings held before District Judge Bernard A. Friedman: Motion Hearing held on 10/16/2013 re 68 MOTION

10/16/2013
10/16/2013 10/31/2013
11/05/2013 11/11/2013 11/12/2013 11/14/2013 11/15/2013 11/15/2013 11/15/2013

for Summary Judgment In Support of Plaintiffs filed by Lisa Brown, 69 MOTION for Summary Judgment filed by Richard Snyder, Bill Schuette, 67 Cross MOTION for Summary Judgment filed by Jayne Rowse, R.D.-R, N.D.-R, J.D.-R, April DeBoer (Court Reporter Joan Morgan) (CMul) (Entered: 10/16/2013)
89 OPINION AND ORDER denying 67 Motion for Summary Judgment and denying 69Motion for Summary Judgment. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 10/16/2013)
90 NOTICE TO APPEAR: Bench Trial set for 2/25/2014 09:00 AM before District Judge Bernard A. Friedman (CMul) (Entered: 10/16/2013)
91 NOTICE TO APPEAR BY TELEPHONE: Tele - Status Conference set for 11/12/2013 02:30 PM before District Judge Bernard A. Friedman Plaintiff to initiate call. (CMul) (Entered: 10/31/2013)
92 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 11/12/2013 01:00 PM before District Judge Bernard A. Friedman (CMul) (Entered: 11/05/2013)
TEXT-ONLY NOTICE: Hearing on (tele conference will be rescheduled) November 12, 2013 is Cancelled re 92 Notice to Appear (CMul) (Entered: 11/11/2013)
93 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 11/14/2013 10:30 AM before District Judge Bernard A. Friedman (CMul) (Entered: 11/12/2013)
Minute Entry for proceedings held before District Judge Bernard A. Friedman: Telephonic Status Conference held on 11/14/2013 (Court Reporter Joan Morgan) (CMul) (Entered: 11/14/2013)
94 STIPULATION AND ORDER regarding witness list deadlines Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 11/15/2013)
95 State Defendants' WITNESS LIST by All Defendants (Heyse, Kristin) (Entered: 11/15/2013)
96 WITNESS LIST by All Plaintiffs (Stanyar, Carole) (Entered: 11/15/2013)

11/21/2013 11/21/2013 11/21/2013 11/24/2013 11/24/2013 11/25/2013 12/03/2013
12/04/2013 12/11/2013
01/03/2014 01/08/2014

97 STIPULATION AND ORDER regarding pretrial deadlines and discovery Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 11/21/2013)
98 [STRICKEN] CERTIFICATE OF SERVICE by Richard Snyder Defendants' First Set of Interrogatories and Requests to Produce to Plaintiffs (Heyse, Kristin) Modified on 11/21/2013 (KKra). (Entered: 11/21/2013)
NOTICE of Error directed to: Kristin M. Heyse re 98 Certificate of Service. Document is prohibited discovery, disclosure or a certificate of service thereof. Document was stricken.[No Image Associated with this docket entry] (KKra) (Entered: 11/21/2013)
99 Amended WITNESS LIST by All Plaintiffs (Stanyar, Carole) (Entered: 11/24/2013)
100 MOTION to Bifurcate Proceedings Relating to Presentation of Testimony on Equal Protection Heightened Scrutiny Based on Suspect or Quasi-Suspect Class by All Plaintiffs. (Stanyar, Carole) (Entered: 11/24/2013)
101 AMENDED by All Defendants Witness List (Heyse, Kristin) (Entered: 11/25/2013)
102 Notice of Determination of Motion Without Oral Argument re 100 MOTION to Bifurcate Proceedings Relating to Presentation of Testimony on Equal Protection Heightened Scrutiny Based on Suspect or Quasi-Suspect Class (CMul) (Entered: 12/03/2013)
103 ORDER denying 82 Motion for Order to realign. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 12/04/2013)
104 RESPONSE to 100 MOTION to Bifurcate Proceedings Relating to Presentation of Testimony on Equal Protection Heightened Scrutiny Based on Suspect or Quasi-Suspect Class filed by Bill Schuette, Richard Snyder. (Attachments: # 1 Exhibit, # 2 Exhibit) (Heyse, Kristin) (Entered: 12/11/2013)
105 ORDER granting 100 Motion to Bifurcate. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 01/03/2014)
106 STIPULATION AND ORDER regarding discovery Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 01/08/2014)

01/15/2014 01/16/2014 01/17/2014 01/17/2014 01/22/2014 01/27/2014 02/04/2014 02/04/2014
02/04/2014
02/05/2014

107 NOTICE of Appearance by Vickie L. Henry on behalf of All Plaintiffs. (Henry, Vickie) (Entered: 01/15/2014)
108 NOTICE of Appearance by Joshua A. Block on behalf of All Plaintiffs. (Block, Joshua) (Entered: 01/16/2014)
109 NOTICE of Appearance by Leslie Cooper on behalf of All Plaintiffs. (Cooper, Leslie) (Entered: 01/17/2014)
110 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 2/12/2014 01:00 PM before District Judge Bernard A. Friedman (CMul) (Entered: 01/17/2014)
111 ATTORNEY APPEARANCE: Michelle M. Brya appearing on behalf of Bill Schuette, Richard Snyder (Brya, Michelle) (Entered: 01/22/2014)
112 NOTICE of Appearance by Mary L. Bonauto on behalf of All Plaintiffs. (Bonauto, Mary) (Entered: 01/27/2014)
113 STIPULATION AND ORDER for protective order Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 02/04/2014)
114 MOTION in Limine to Disqualify and Exclude Vivek S. Sankaran, J.D. by Bill Schuette, Richard Snyder. (Attachments: # 1 Brief in Support of Motion, # 2 Exhibit Exhibit A to Brief, # 3 Exhibit Exhibit B to Brief) (Heyse, Kristin) (Entered: 02/04/2014)
115 MOTION in Limine to Exclude References to Second-Parent Adoptions and to Exclude Witnesses by Bill Schuette, Richard Snyder. (Attachments: # 1 Brief in Support of Motion, # 2 Exhibit Exhibit A to Brief, # 3 Exhibit Exhibit B to Brief) (Heyse, Kristin) (Entered: 02/04/2014)
116 MOTION in Limine to Exclude Proposed "Expert" Testimony of Dr. Mark Regnerus under Daubert by All Plaintiffs. (Attachments: # 1 Index of Exhibits in support of Regnerus Daubert motion, # 2 Exhibit Mark Regnerus, deposition transcript excerpts, 1/8/14, # 3Exhibit Mark Regnerus, expert witness report, 12/20/13, Dep. Ex. 1, # 4 Exhibit Regnerus, Findings from the National Family Structure Study, 3/2012, Dep. Ex. 5, # 5Exhibit Regnerus, NFSS, Additional Analyses, 8/15/12, Dep. Ex. 6, # 6 Exhibit Paul Amato, Reviewing Regnerus, 7/20/13, Dep. Ex. 9, # 7 Exhibit Brief of Amicus Curiae of American Sociological Association filed in Hollingsworth v Perry, U.S.S.Ct. No. 12-144, # 8 Exhibit E-mails between Luis Tellez, Brad Wilcox and Mark

02/05/2014 02/05/2014 02/05/2014
02/06/2014 02/06/2014 02/06/2014 02/06/2014 02/06/2014

Regnerus, 9/21/10, Dep. Ex. 11, # 9 Exhibit E-mails between Regnerus and Paul Amato, Dep. Ex. 13, # 10 Exhibit Request for Funding for NFSS, University of Texas at Austini, 4/15/11, Dep. Ex. 14) (Stanyar, Carole) (Entered: 02/05/2014)
117 MOTION in Limine to Bar Testimony of State Defendants' Proposed Expert Sherif Girgis Under Daubert by All Plaintiffs. (Attachments: # 1 Exhibit Sherif Girgis, deposition transcript excerpts, 1/18/14) (Stanyar, Carole) (Entered: 02/05/2014)
118 MOTION in Limine to Exclude Proposed Expert Testimony of Joseph Price and Douglas Allen under Daubert by All Plaintiffs. (Attachments: # 1 Exhibit Douglas Allen, deposition transcript excerpts, 1/18/14) (Stanyar, Carole) (Entered: 02/05/2014)
119 MOTION to Strike 118 MOTION in Limine to Exclude Proposed Expert Testimony of Joseph Price and Douglas Allen under Daubert, 116 MOTION in Limine to Exclude Proposed "Expert" Testimony of Dr. Mark Regnerus under Daubert, 117 MOTION in Limine to Bar Testimony of State Defendants' Proposed Expert Sherif Girgis Under Daubert by Bill Schuette, Richard Snyder. (Potchen, Joseph) (Entered: 02/05/2014)
120 CERTIFICATE OF SERVICE re 117 MOTION in Limine to Bar Testimony of State Defendants' Proposed Expert Sherif Girgis Under Daubert by All Plaintiffs (Stanyar, Carole) (Entered: 02/06/2014)
121 CERTIFICATE OF SERVICE re 116 MOTION in Limine to Exclude Proposed "Expert" Testimony of Dr. Mark Regnerus under Daubert by All Plaintiffs (Stanyar, Carole) (Entered: 02/06/2014)
122 CERTIFICATE OF SERVICE re 118 MOTION in Limine to Exclude Proposed Expert Testimony of Joseph Price and Douglas Allen under Daubert by All Plaintiffs (Stanyar, Carole) (Entered: 02/06/2014)
123 MOTION TO EXTEND Time for Filing Daubert Motions by One Day, and for Order Nunc Pro Tunc, and Combined Response to State Defendants' Motion to Strike Plaintiffs' Daubert Motions by All Plaintiffs. (Stanyar, Carole) (Entered: 02/06/2014)
124 MOTION TO EXTEND (Corrected) Time for Filing Daubert Motions by One Day, and for Order Nunc Pro Tunc, and Plaintiffs' Response to State Defendants' Motion to Strike

02/06/2014
02/08/2014
02/10/2014 02/10/2014 02/12/2014 02/13/2014 02/13/2014
02/13/2014 02/14/2014 02/14/2014

Plaintiffs' Daubert Motions by All Plaintiffs. (Stanyar, Carole) (Entered: 02/06/2014)
125 EXHIBIT Supplemental Exhibits to Plaintiff's Motion To Bar Testimoney Of State Defendant's Proposed Experts Allen and Price re 118 MOTION in Limine to Exclude Proposed Expert Testimony of Joseph Price and Douglas Allen under Daubert by All Plaintiffs (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Nessel, Dana) (Entered: 02/06/2014)
126 CERTIFICATE OF SERVICE re 124 MOTION TO EXTEND (Corrected) Time for Filing Daubert Motions by One Day, and for Order Nunc Pro Tunc, and Plaintiffs' Response to State Defendants' Motion to Strike Plaintiffs' Daubert Motions by All Plaintiffs (Stanyar, Carole) (Entered: 02/08/2014)
127 ORDER denying 119 Motion to Strike; terminating 123 Motion to Extend ; and granting 124 Motion to Extend. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 02/10/2014)
128 CERTIFICATE OF SERVICE re 125 Exhibit, by All Plaintiffs (Nessel, Dana) (Entered: 02/10/2014)
Minute Entry for proceedings held before District Judge Bernard A. Friedman: Telephonic Status Conference held on 2/12/2014 (Court Reporter Joan Morgan) (CMul) (Entered: 02/12/2014)
129 STIPULATED PROTECTIVE ORDER Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 02/13/2014)
130 RESPONSE to 115 MOTION in Limine to Exclude References to Second-Parent Adoptions and to Exclude Witnesses George Chauncey and Nancy Cott filed by All Plaintiffs. (Attachments: # 1 Exhibit Dr. David Brodzinsky, Expert Witness Report, 12/20/13) (Stanyar, Carole) (Entered: 02/13/2014)
131 RESPONSE to 114 MOTION in Limine to Disqualify and Exclude Vivek S. Sankaran, J.D. filed by All Plaintiffs. (Attachments: # 1 Exhibit Sankaran Expert Report, # 2 Exhibit Sankaran CV) (Mogill, Kenneth) (Entered: 02/13/2014)
132 CERTIFICATE OF SERVICE re 131 Response to Motion by All Plaintiffs (Mogill, Kenneth) (Entered: 02/14/2014)
133 REPLY to Response re 114 MOTION in Limine to Disqualify and Exclude Vivek S. Sankaran, J.D. filed by Bill Schuette, Richard Snyder. (Heyse, Kristin) (Entered: 02/14/2014)

02/14/2014 02/14/2014 02/14/2014
02/18/2014 02/25/2014 02/25/2014 02/26/2014 02/27/2014

134 RESPONSE to 117 MOTION in Limine to Bar Testimony of State Defendants' Proposed Expert Sherif Girgis Under Daubert filed by Bill Schuette, Richard Snyder. (Attachments: # 1 Index of Exhibits, # 2 Exhibit, # 3 Exhibit) (Potchen, Joseph) (Entered: 02/14/2014)
135 RESPONSE to 116 MOTION in Limine to Exclude Proposed "Expert" Testimony of Dr. Mark Regnerus under Daubert filed by Bill Schuette, Richard Snyder. (Attachments: # 1Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3) (Heyse, Kristin) (Entered: 02/14/2014)
136 RESPONSE to 118 MOTION in Limine to Exclude Proposed Expert Testimony of Joseph Price and Douglas Allen under Daubert filed by Bill Schuette, Richard Snyder. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 Allen Transcript, # 3 Exhibit 2 Allen CV, # 4 Exhibit 3 Allen Report, # 5 Exhibit 4 Price Report, # 6 Exhibit 5 Price Transcript) (Heyse, Kristin) (Entered: 02/14/2014)
137 ORDER denying 114 Motion in Limine and denying 117 Motion in Limine. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 02/18/2014)
138 ORDER denying 115 Motion in Limine; denying 116 Motion in Limine; denying 118Motion in Limine. Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 02/25/2014)
Minute Entry for proceedings held before District Judge Bernard A. Friedman: Bench Trial Begun and Continued on 2/25/2014. Bench Trial set for 2/26/2014 09:00 AM before District Judge Bernard A. Friedman (Court Reporter Joan Morgan (9-11); Christin Russell (11-1); Larry Przybysz (2-5)) (CMul) (Entered: 02/26/2014)
Minute Entry for proceedings held before District Judge Bernard A. Friedman: Bench Trial Held and Continued on 2/26/2014. Bench Trial set for 2/27/2014 09:00 AM before District Judge Bernard A. Friedman (Court Reporter Joan Morgan (9-11) Christin Russell (11-12:30)) (CMul) (Entered: 02/26/2014)
Minute Entry for proceedings held before District Judge Bernard A. Friedman: Bench Trial Held and Continued on 2/27/2014. Bench Trial set for 2/28/2014 09:00 AM before District Judge Bernard A. Friedman (Court Reporter Joan Morgan) (CMul) (Entered: 02/27/2014)

02/28/2014 03/03/2014
03/04/2014
03/05/2014
03/06/2014 03/07/2014 03/10/2014 03/10/2014 03/10/2014

Minute Entry for proceedings held before District Judge Bernard A. Friedman: Bench Trial Held and Continued on 2/28/2014. Bench Trial set for 3/3/2014 09:00 AM before District Judge Bernard A. Friedman (Court Reporter Christin Russell) (CMul) (Entered: 03/03/2014)
Minute Entry for proceedings held before District Judge Bernard A. Friedman: Bench Trial Held and Continued on 3/3/2014. Bench Trial set for 3/4/2014 09:00 AM before District Judge Bernard A. Friedman (Court Reporter Joan Morgan (9-10); Christin Russell (10-11); Larry Przybysz (1-4:30)) (CMul) (Entered: 03/04/2014)
Minute Entry for proceedings held before District Judge Bernard A. Friedman: Bench Trial Held and Continued on 3/4/2014. Bench Trial set for 3/5/2014 09:00 AM before District Judge Bernard A. Friedman (Court Reporter Joan Morgan (9-11), Christin Russell (11-12), Larry Przybysz (1-5)) (CMul) (Entered: 03/05/2014)
Minute Entry for proceedings held before District Judge Bernard A. Friedman: Bench Trial Held and Continued on 3/5/2014. Bench Trial set for 3/6/2014 09:00 AM before District Judge Bernard A. Friedman (Court Reporter Christin Russell (9-12), Larry Przybysz (1-5)) (CMul) (Entered: 03/06/2014)
Minute Entry for proceedings held before District Judge Bernard A. Friedman: Bench Trial Held and Continued on 3/6/2014. Bench Trial set for 3/7/2014 10:00 AM before District Judge Bernard A. Friedman (Court Reporter Joan Morgan (9-1)) (CMul) (Entered: 03/06/2014)
Minute Entry for proceedings held before District Judge Bernard A. Friedman: Bench Trial Held and Completed on 3/7/2014. Disposition: Taken Under Advisement(Court Reporter Joan Morgan) (CMul) (Entered: 03/07/2014)
139 Proposed Findings of Fact by All Plaintiffs (Stanyar, Carole) (Entered: 03/10/2014)
140 NOTICE by Bill Schuette, Richard Snyder State Defendants' Proposed Conclusions of Law (Heyse, Kristin) (Entered: 03/10/2014)
141 Proposed Findings of Fact by Bill Schuette, Richard Snyder (Heyse, Kristin) (Entered: 03/10/2014)

03/10/2014 03/13/2014
03/13/2014
03/13/2014

142 NOTICE by Bill Schuette, Richard Snyder State Defendants' Closing Brief (Heyse, Kristin) (Entered: 03/10/2014)
143 TRANSCRIPT of Bench Trial -Volume 1am session held on February 25, 2014. (Court Reporter/Transcriber: Joan Morgan, Christin Russell) (Number of Pages: 147) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/3/2014. Redacted Transcript Deadline set for 4/14/2014. Release of Transcript Restriction set for 6/11/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Morgan, J) (Entered: 03/13/2014)
144 TRANSCRIPT of Bench Trial -Volume 2 am session held on February 26, 2014. (Court Reporter/Transcriber: Joan Morgan, Christin Russell) (Number of Pages: 138) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/3/2014. Redacted Transcript Deadline set for 4/14/2014. Release of Transcript Restriction set for 6/11/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Morgan, J) (Entered: 03/13/2014)
145 TRANSCRIPT of Bench Trial -Volume3 am session held on February 27, 2013. (Court Reporter/Transcriber: Joan Morgan) (Number of Pages: 66) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/3/2014. Redacted Transcript Deadline set for 4/14/2014. Release of Transcript Restriction set for 6/11/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Morgan, J) (Entered: 03/13/2014)

03/13/2014 03/13/2014 03/13/2014 03/13/2014

146 TRANSCRIPT of Bench Trial Volume 5 am session held on March 3, 2014. (Court Reporter/Transcriber: Joan Morgan) (Number of Pages: 41) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/3/2014. Redacted Transcript Deadline set for 4/14/2014. Release of Transcript Restriction set for 6/11/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Morgan, J) (Entered: 03/13/2014)
147 TRANSCRIPT of Bench Trial -Volume 6 held on March 4, 2014. (Court Reporter/Transcriber: Joan Morgan, Christin Russell) (Number of Pages: 105) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/3/2014. Redacted Transcript Deadline set for 4/14/2014. Release of Transcript Restriction set for 6/11/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Morgan, J) Modified on 4/8/2014 (JPur). (Entered: 03/13/2014)
148 TRANSCRIPT of Bench Trial -Volume 8 held on March 6, 2014. (Court Reporter/Transcriber: Joan Morgan) (Number of Pages: 149) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/3/2014. Redacted Transcript Deadline set for 4/14/2014. Release of Transcript Restriction set for 6/11/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Morgan, J) (Entered: 03/13/2014)
149 TRANSCRIPT of Bench Trial, Volume 4 held on 2/28/2014. (Court Reporter/Transcriber: Christin E. Russell) (Number of Pages: 78) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript.

03/13/2014
03/21/2014 03/21/2014 03/21/2014 03/21/2014 03/22/2014 03/22/2014

If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/3/2014. Redacted Transcript Deadline set for 4/14/2014. Release of Transcript Restriction set for 6/11/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Russell, C.) (Entered: 03/13/2014)
150 TRANSCRIPT of Bench Trial, Volume 7 - Part A held on 3/5/2014. (Court Reporter/Transcriber: Christin E. Russell) (Number of Pages: 102) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/3/2014. Redacted Transcript Deadline set for 4/14/2014. Release of Transcript Restriction set for 6/11/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Russell, C.) (Entered: 03/13/2014)
151 FINDINGS OF FACT AND CONCLUSIONS OF LAW Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 03/21/2014)
152 JUDGMENT in favor of Plaintiffs against Defendants Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 03/21/2014)
153 NOTICE OF APPEAL by Bill Schuette, Richard Snyder re 152 Judgment, 151Memorandum Opinion & Order. Receipt No: 0645-4559116 - Fee: $ 505 - Fee Status: Fee Paid. (Heyse, Kristin) (Entered: 03/21/2014)
154 Certificate of Service re 153 Notice of Appeal. (DWor) (Entered: 03/21/2014)
155 ORDER from U.S. Court of Appeals - Sixth Circuit re 153 Notice of Appeal filed by Richard Snyder, Bill Schuette [Appeal Case Number 14-1341] (KKra) (Entered: 03/25/2014)
156 ORDER from U.S. Court of Appeals - Sixth Circuit re 153 Notice of Appeal filed by Richard Snyder, Bill Schuette [Appeal Case Number 14-1341] (KKra) (Entered: 03/25/2014)

03/25/2014 03/26/2014
04/01/2014
04/01/2014

162 ORDER from U.S. Court of Appeals - Sixth Circuit re 153 Notice of Appeal filed by Richard Snyder, Bill Schuette [Appeal Case Number 14-1341] (KKra) (Entered: 04/02/2014)
157 TRANSCRIPT of Bench Trial, Volume 5 - Part B held on 3/3/2014. (Court Reporter/Transcriber: Christin E. Russell) (Number of Pages: 40) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/16/2014. Redacted Transcript Deadline set for 4/28/2014. Release of Transcript Restriction set for 6/24/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Russell, C.) (Entered: 03/26/2014)
158 TRANSCRIPT of Bench Trial, Volume 9 held on March 7th, 2014. (Court Reporter/Transcriber: Joan L. Morgan) (Number of Pages: 69) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/22/2014. Redacted Transcript Deadline set for 5/2/2014. Release of Transcript Restriction set for 6/30/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Morgan, J) (Entered: 04/01/2014)
159 TRANSCRIPT of Cross-Motions for Summary Judgment held on October 16, 2013. (Court Reporter/Transcriber: Joan L. Morgan) (Number of Pages: 54) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/22/2014. Redacted Transcript Deadline set for 5/2/2014. Release of Transcript Restriction set for 6/30/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Morgan, J) (Entered: 04/01/2014)

04/01/2014 04/01/2014 04/04/2014 04/06/2014
04/06/2014

160 TRANSCRIPT of Motion held on March 7, 2013. (Court Reporter/Transcriber: Joan Morgan) (Number of Pages: 33) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/22/2014. Redacted Transcript Deadline set for 5/2/2014. Release of Transcript Restriction set for 6/30/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Morgan, J) (Entered: 04/01/2014)
161 TRANSCRIPT of Motion held on August 29, 2012. (Court Reporter/Transcriber: Joan Morgan) (Number of Pages: 31) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/22/2014. Redacted Transcript Deadline set for 5/2/2014. Release of Transcript Restriction set for 6/30/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Morgan, J) (Entered: 04/01/2014)
163 STIPULATION AND ORDER to enlarge time Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 04/04/2014)
164 TRANSCRIPT of Bench Trial held on February 25, 2014. (Court Reporter/Transcriber: Lawrence Przybysz) (Number of Pages: 116) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/28/2014. Redacted Transcript Deadline set for 5/7/2014. Release of Transcript Restriction set for 7/7/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Przybysz, L) (Entered: 04/06/2014)
165 TRANSCRIPT of Bench Trial held on March 3, 2014. (Court Reporter/Transcriber: Lawrence Przybysz) (Number of Pages: 118) (Appeal Purposes) The parties have 21 days to file with the

04/06/2014
04/06/2014
05/09/2014 05/09/2014

court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/28/2014. Redacted Transcript Deadline set for 5/7/2014. Release of Transcript Restriction set for 7/7/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Przybysz, L) (Entered: 04/06/2014)
166 TRANSCRIPT of Bench Trial held on March 4, 2014. (Court Reporter/Transcriber: Lawrence Przybysz) (Number of Pages: 149) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/28/2014. Redacted Transcript Deadline set for 5/7/2014. Release of Transcript Restriction set for 7/7/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Przybysz, L) (Entered: 04/06/2014)
167 TRANSCRIPT of Bench Trial held on March 5, 2014. (Court Reporter/Transcriber: Lawrence Przybysz) (Number of Pages: 124) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/28/2014. Redacted Transcript Deadline set for 5/7/2014. Release of Transcript Restriction set for 7/7/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Przybysz, L) (Entered: 04/06/2014)
168 NOTICE by All Plaintiffs of Filing Trial Exhibit 53, Stiplated Facts Regarding Plaintiffs(Attachments: # 1 Exhibit Stipulated Facts Regarding Plaintiffs) (Stanyar, Carole) (Entered: 05/09/2014)
169 NOTICE by All Plaintiffs of Filing Trial Exhibit 51, Expert Report of George Chauncy, PhD (Attachments: # 1 Exhibit

05/09/2014 05/09/2014 06/02/2014 11/06/2014 11/20/2014 01/20/2015 06/26/2015 07/25/2015

George Chauncey, PhD, Expert Witness Report) (Stanyar, Carole) (Entered: 05/09/2014)
170 NOTICE by All Plaintiffs of Filing of Plaintiffs' Exhibit 50, MDCR Report (Attachments: # 1 Exhibit Michigan Department of Civil Rights Report on LGBT Inclusion Under Michigan Law, 1/28/13) (Stanyar, Carole) (Entered: 05/09/2014)
171 NOTICE by All Plaintiffs of Filing Trial Exhibit 100, Expert Witness Report of Dr. David Brodzinsky (Attachments: # 1 Exhibit Expert Witness Report of Dr. David Brodzinsky, 12/20/13) (Stanyar, Carole) (Entered: 05/09/2014)
172 NOTICE by All Plaintiffs of Filing Trial Exhibit, Expert Witness Report of Professor Nancy Cott (Attachments: # 1 Exhibit Expert Witness Report of Professor Nancy Cott, 12/19/13) (Stanyar, Carole) (Entered: 06/02/2014)
173 OPINION from U.S. Court of Appeals - Sixth Circuit re 153 Notice of Appeal filed by Richard Snyder, Bill Schuette [Appeal Case Number 14-1341] (KKra) (Entered: 11/19/2014)
174 LETTER from the US Supreme Court that a petition for writ of certiorari was filed on 11/14/14. [Supreme Court Case Number: 14-571] [Court of Appeals Case Number: 14-1341] (SSch) (Entered: 11/20/2014)
175 LETTER from the US Supreme Court granting the petition for writ of certiorari [Supreme Court Case Number: 14-571] [Court of Appeals Case Number: 14-1341] (KCla) (Entered: 01/27/2015)
176 OPINION from U.S. Supreme Court re 153 Notice of Appeal filed by Richard Snyder, Bill Schuette [Appeal Case Number 14-1341] (KCla) (Entered: 07/13/2015)
177 MOTION for Attorney Fees Pursuant to 42 U.S.C. §1988 by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Michigan State Bar Survey of Attorney Fees (2014), # 3Exhibit Affidavit of Attorney Carole Stanyar, # 4 Exhibit Time Records of Attorney Stanyar, Part I, # 5 Exhibit Time Records of Attorney Stanyar, Part II, # 6 Exhibit Affidavit of Attorney Dana Nessel, # 7 Exhibit Time Records of Attorney Nessel, # 8Exhibit Affidavit and Time Records of Attorney Mogill, # 9 Exhibit Affidavit of Professor Sedler, # 10 Exhibit Time Records of Professor Sedler, # 11 Exhibit Affidavit of Attorney Mary Bonauto, # 12 Exhibit Time Records of Attorney Bonauto, Part I, # 13 Exhibit Time Records of Attorney Bonauto, Part II,

07/25/2015 07/27/2015 07/27/2015 07/27/2015 07/27/2015 07/28/2015 08/10/2015 08/10/2015 08/10/2015

# 14 Exhibit Affidavit and Time Records of Attorney Vickie Henry, # 15 Exhibit Affidavit of Attorney Patricia Streeter, with attachment, # 16 Exhibit Affidavit of Attorney Juan Mateo, # 17 Exhibit Letter of State of Utah, Kitchen v. Herbert, regarding Mark Regnerus, April 9, 2014) (Stanyar, Carole) (Entered: 07/25/2015)
178 CERTIFICATE OF SERVICE re 177 MOTION for Attorney Fees Pursuant to 42 U.S.C. §1988 by All Plaintiffs , Brief and Exhibits in Suport (Stanyar, Carole) (Entered: 07/25/2015)
179 MOTION for Attorney Fees (Corrected, re R 177) by All Plaintiffs. (Stanyar, Carole) Modified on 7/27/2015 (DTyl). [RE DOCKET ENTRY 177 ] (Entered: 07/27/2015)
180 MOTION for Attorney Fees (Corrected) referencing R 177 by All Plaintiffs. (Stanyar, Carole) Modified on 7/27/2015 (DTyl). [RE DOCKET ENTRY 177 ] (Entered: 07/27/2015)
181 NOTICE OF HEARING on 180 MOTION for Attorney Fees. Motion Hearing set for 9/30/2015 02:00 PM before District Judge Bernard A. Friedman (CMul) (Entered: 07/27/2015)
182 MOTION for Attorney Fees , MOTION re 180 MOTION for Attorney Fees (Corrected) referencing R 177 by Jayne Rowse. (Attachments: # 1 Exhibit Time sheet) (Henry, Vickie) (Entered: 07/27/2015)
186 JUDGMENT from U.S. Court of Appeals - Federal Circuit re 153 Notice of Appeal filed by Richard Snyder, Bill Schuette [Appeal Case Number 14-571] (KCla) (Entered: 08/11/2015)
183 EXHIBIT Amended Declaration and timesheets of Robert Sedler re 180 MOTION for Attorney Fees (Corrected) referencing R 177 by All Plaintiffs (Sedler, Robert) (Entered: 08/10/2015)
184 STIPULATION AND ORDER re 180 MOTION for Attorney Fees Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 08/10/2015)
185 RESPONSE to 180 MOTION for Attorney Fees (Corrected) referencing R 177 filed by Bill, Jr. Bullard. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Ltr from K Mogill 7-182013) (Asmar, David) (Entered: 08/10/2015)

08/17/2015 08/17/2015 08/27/2015 09/29/2015
10/07/2015

187 ORDER from U.S. Court of Appeals - Sixth Circuit re 153 Notice of Appeal filed by Richard Snyder, Bill Schuette [Appeal Case Number 14-1341] (KCla) (Entered: 08/24/2015)
188 MANDATE from U.S. Court of Appeals - Sixth Circuit as to 153 Notice of Appeal filed by Richard Snyder, Bill Schuette [Appeal Case Number 14-1341] (KCla) (Entered: 08/24/2015)
189 NOTICE by All Plaintiffs of withdrawal of 180 MOTION for Attorney Fees (Corrected) referencing R 177 as to Oakland County Clerk Bullard only. (Stanyar, Carole) (Entered: 08/27/2015)
190 STIPULATION AND ORDER to adjourn 182 MOTION for Attorney Fees MOTION re 180 MOTION for Attorney Fees (Corrected) referencing R 177 , :( Motion Hearing set for 12/1/2015 02:00 PM before District Judge Bernard A. Friedman) Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 09/29/2015)
191 STIPULATION AND ORDER DISMISSING MOTION FOR TAXABLE COSTS AND ATTORNEY FEES AS TO DEFENDANTS SNYDER AND SCHUETTE (Doc. ## 177, 180) Signed by District Judge Bernard A. Friedman. (CMul) (Entered: 10/07/2015)

 
 USDOJ: Statement by Attorney General Eric Holder on Federal Recognition of Same-Sex Marriages in Michigan


Home » Briefing Room » Justice News

Department of Justice

Office of Public Affairs FOR IMMEDIATE RELEASE

Friday, March 28, 2014

Statement by Attorney General Eric Holder on Federal Recognition of Same-Sex Marriages in Michigan


Attorney General Eric Holder issued the following statement today on the status of same-sex marriages performed in the state of Michigan:


“I have determined that the same-sex marriages performed last Saturday in Michigan will be recognized by the federal government. These families will be eligible for all relevant federal benefits on the same terms as other same-sex marriages. The Governor of Michigan has made clear that the marriages that took place on Saturday were lawful and valid when entered into, although Michigan will not extend state rights and benefits tied to these marriages pending further legal proceedings. For purposes of federal law, as I announced in January with respect to similarly situated same-sex couples in Utah, these Michigan couples will not be asked to wait for further resolution in the courts before they may seek federal benefits to which they are entitled.  


“Last June’s decision by the Supreme Court in United States v. Windsor was a victory for equal protection under the law and a historic step toward equality for all American families. The Department of Justice continues to work with its federal partners to implement this decision across the government. And we will remain steadfast in our commitment to realizing our country’s founding ideals of equality, opportunity, and justice for all.”

14-320

Attorney General

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http://www.justice.gov/opa/pr/2014/March/14-ag-320.html[3/28/2014 10:32:41 AM]

 
 General Docket United States Court of Appeals for the Sixth Circuit

Court of Appeals Docket #: 14-1341 Nature of Suit: 3440 Civil Rights: Other April DeBoer, et al v. Richard Snyder, et al Appeal From: Eastern District of Michigan at Detroit Fee Status: fee paid

Docketed: 03/21/2014

Case Type Information: 1) Civil 2) Private 3) Civil Rights

Originating Court Information: District: 0645-2 : 2:12-cv-10285 Trial Judge: Bernard A. Friedman, U.S. District Judge Date Filed: 01/23/2012 Date Order/Judgment: 03/21/2014

Date NOA Filed: 03/21/2014

Prior Cases: None

Current Cases: None

APRIL DEBOER Plaintiff - Appellee

Carole Margaret Stanyar Direct: 313-819-3953 [COR LD NTC Retained] Law Offices 221 N. Main Street Suite 300 Ann Arbor, MI 48104-0000
Kenneth Marc Mogill Direct: 248-814-9470 [COR NTC Retained] Mogill, Posner & Cohen 27 E. Flint Street Second Floor Lake Orion, MI 48362-0000
Dana M. Nessel Direct: 313-556-2300 [NTC Retained] Nessel Kessel Firm: 313-556-2300 645 Griswold Street Detroit, MI 48226
Robert A. Sedler Direct: 313-577-3968

[COR NTC Retained] Law Office 471 W. Palmer Detroit, MI 48202-0000

JANE ROWSE, individually and as parents and next friend of N.D.-R, R.d.-R and J.D.-R, minors
Plaintiff - Appellee
v.

Carole Margaret Stanyar Direct: 313-819-3953 [COR LD NTC Retained] (see above)
Kenneth Marc Mogill Direct: 248-814-9470 [COR NTC Retained] (see above)
Dana M. Nessel Direct: 313-556-2300 [COR NTC Retained] (see above)
Robert A. Sedler Direct: 313-577-3968 [COR NTC Retained] (see above)

LISA BROWN Defendant
RICHARD SNYDER, in his official capacity as Governor of the State of Michigan
Defendant - Appellant
BILL SCHUETTE, in his official capacity as Michigan Attorney General

Beth M. Rivers Direct: 248-398-9800 [COR LD NTC Retained] Pitt, McGehee, Palmer, Rivers & Golden Firm: 248-398-9800 117 W. Fourth Street Suite 200 Royal Oak, MI 48067
Kristin M. Heyse Direct: 517-373-7700 [COR NTC Retained] Office of the Attorney General of Michigan P.O. Box 30758 Lansing, MI 48909
Aaron D. Lindstrom Direct: 517-241-8403 [COR NTC Retained] Office of the Michigan Attorney General P.O. Box 30212 Lansing, MI 48909
Kristin M. Heyse Direct: 517-373-7700

Defendant - Appellant
-----------------------------TRADITIONALIST YOUTH NETWORK
Amicus Curiae
ERIN BLANKENSHIP Terminated: 06/17/2014
Intervenor JAMES OBERGEFELL
Amicus Curiae
SHAYLA BLANKENSHIP Terminated: 06/17/2014
Intervenor DAVID BRIAN MICHENER
Amicus Curiae
ROBERT GRUNN Amicus Curiae
FAMILY RESEARCH COUNCIL Amicus Curiae

[COR NTC Retained] (see above)
Aaron D. Lindstrom Direct: 517-241-8403 [COR NTC Retained] (see above)
Kyle James Bristow Direct: 586-713-8395 [COR LD NTC Retained] Law Office P.O. Box 1954 Clarkston, MI 48347
Alphonse A. Gerhardstein Direct: 513-621-9100 [COR LD NTC Retained] Gerhardstein & Branch Firm: 513-621-9100 432 Walnut Street Suite 400 Cincinnati, OH 45202
Alphonse A. Gerhardstein Direct: 513-621-9100 [COR LD NTC Retained] (see above)
Alphonse A. Gerhardstein Direct: 513-621-9100 [COR LD NTC Retained] (see above)
Paul Benjamin Linton Direct: 847-291-3848 [COR LD NTC Retained] Law Offices 921 Keystone Avenue Northbrook, IL 60062-0000

DAVID A. ROBINSON Amicus Curiae

David A. Robinson Direct: 203-214-4078 [COR LD NTC Retained] P.O. Box 780 North Haven, CT 06473

NORTH CAROLINA VALUES COALITION Amicus Curiae

Deborah Jane Dewart Direct: 910-326-4554 [COR LD NTC Retained] Law Office 620 E. Sabiston Drive Swansboro, NC 28539

LIBERTY LIFE AND LAW FOUNDATION Amicus Curiae

Deborah Jane Dewart Direct: 910-326-4554 [COR LD NTC Retained] (see above)

MICHIGAN FAMILY FORUM Amicus Curiae

James R. Wierenga Direct: 616-454-3883 [COR LD NTC Retained] David & Wierenga 50 Monroe Street, N.W. Suite 720W Grand Rapids, MI 49503

THE BECKET FUND FOR RELIGIOUS LIBERTY
Amicus Curiae

Eric C. Rassbach [COR LD NTC Retained] The Becket Fund for Religious Liberty 3000 K Street, N.W. Suite 220 Washington, DC 20007

U.S. CONFERENCE OF CATHOLIC BISHOPS Amicus Curiae

Alexander Dushku [COR LD NTC Retained] Kirton & McConkie 60 E. South Temple Suite 1800 Salt Lake City, UT 84111
Carl H. Esbeck Direct: 573-882-6543 [COR NTC Retained] National Association of Evangelicals Ninth & Conley Streets 203 Hulston Hall Columbia, MO 65211
R. Shawn Gunnarson [COR NTC Retained] Kirton & McConkie 60 E. South Temple

NATIONAL ASSOCIATION OF EVANGELICALS
Amicus Curiae

Suite 1800 Salt Lake City, UT 84111
Jeffrey Hunter Moon Direct: 202-541-3300 [COR NTC Retained] United States Conference of Catholic Bishops 3211 Fourth St., N.E. Washington, DC 20017
Michael F. Moses Direct: 202-541-3312 [COR NTC Retained] United States Conference of Catholic Bishops 3211 Fourth St., N.E. Washington, DC 20017
Anthony R. Picarello, Jr. [COR NTC Retained] The Becket Fund for Religious Liberty Firm: 202-955-0098 1350 Connecticut Avenue, N.W. Suite 605 Washington, DC 20036-0000
Sherri C. Strand Direct: 314-552-6199 [COR NTC Retained] Thompson Coburn One U.S. Bank Plaza St. Louis, MO 63101
Alexander Dushku [COR LD NTC Retained] (see above)
Carl H. Esbeck Direct: 573-882-6543 [COR NTC Retained] (see above)
R. Shawn Gunnarson [COR NTC Retained] (see above)
Jeffrey Hunter Moon Direct: 202-541-3300 [COR NTC Retained] (see above)
Michael F. Moses Direct: 202-541-3312 [COR NTC Retained] (see above)

LUTHERAN CHURCH-MISSOURI SYNOD Amicus Curiae
PUBLIC ADVOCATE OF THE UNITED STATES
Amicus Curiae U.S. JUSTICE FOUNDATION
Amicus Curiae

Anthony R. Picarello, Jr. [COR NTC Retained] (see above)
Sherri C. Strand Direct: 314-552-6199 [COR NTC Retained] (see above)
Alexander Dushku [COR LD NTC Retained] (see above)
Carl H. Esbeck Direct: 573-882-6543 [COR NTC Retained] (see above)
R. Shawn Gunnarson [COR NTC Retained] (see above)
Jeffrey Hunter Moon Direct: 202-541-3300 [COR NTC Retained] (see above)
Michael F. Moses Direct: 202-541-3312 [COR NTC Retained] (see above)
Anthony R. Picarello, Jr. [COR NTC Retained] (see above)
Sherri C. Strand Direct: 314-552-6199 [COR NTC Retained] (see above)
William Jeffery Olson Direct: 703-356-5070 [COR LD NTC Retained] Law Office 370 Maple Avenue, W. Suite 4 Vienna, VA 22180-5615
William Jeffery Olson Direct: 703-356-5070 [COR LD NTC Retained]

(see above)

LINCOLN INSTITUTE FOR RESEARCH AND EDUCATION
Amicus Curiae

William Jeffery Olson Direct: 703-356-5070 [COR LD NTC Retained] (see above)

ABRAHAM LINCOLN FOUNDATION FOR PUBLIC POLICY RESEARCH
Amicus Curiae

William Jeffery Olson Direct: 703-356-5070 [COR LD NTC Retained] (see above)

INSTITUTE ON THE CONSTITUTION Amicus Curiae

William Jeffery Olson Direct: 703-356-5070 [COR LD NTC Retained] (see above)

CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND
Amicus Curiae

William Jeffery Olson Direct: 703-356-5070 [COR LD NTC Retained] (see above)

POLICY ANALYSIS CENTER Amicus Curiae

William Jeffery Olson Direct: 703-356-5070 [COR LD NTC Retained] (see above)

MICHIGAN CATHOLIC CONFERENCE Amicus Curiae

James J. Walsh Direct: 734-761-3780 [COR LD NTC Retained] Bodman Firm: 734-761-3780 201 S. Division Street Suite 400 Ann Arbor, MI 48104
Thomas J. Rheaume, Jr. Direct: 313-259-7777 [COR NTC Retained] Bodman Firm: 313-259-7777 1901 Saint Antoine Street Sixth Floor Detroit, MI 48226

CHURCH OF JESUS CHRIST OF LATTER-DAY Alexander Dushku

SAINTS

[COR LD NTC Retained]

Amicus Curiae

(see above)

Carl H. Esbeck Direct: 573-882-6543 [COR NTC Retained]

(see above)
R. Shawn Gunnarson [COR NTC Retained] (see above)
Jeffrey Hunter Moon Direct: 202-541-3300 [COR NTC Retained] (see above)
Michael F. Moses Direct: 202-541-3312 [COR NTC Retained] (see above)
Anthony R. Picarello, Jr. [COR NTC Retained] (see above)
Sherri C. Strand Direct: 314-552-6199 [COR NTC Retained] (see above)

ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION
Amicus Curiae

Alexander Dushku [COR LD NTC Retained] (see above)
Carl H. Esbeck Direct: 573-882-6543 [COR NTC Retained] (see above)

R. Shawn Gunnarson [COR NTC Retained] (see above)

Jeffrey Hunter Moon Direct: 202-541-3300 [COR NTC Retained] (see above)

Michael F. Moses Direct: 202-541-3312 [COR NTC Retained] (see above)

Anthony R. Picarello, Jr. [COR NTC Retained] (see above)

Sherri C. Strand Direct: 314-552-6199

EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND
Amicus Curiae
DAVID BOYLE Amicus Curiae
ROBERT OSCAR LOPEZ Amicus Curiae
COALITION OF BLACK PASTORS Amicus Curiae
STATE OF INDIANA Amicus Curiae
STATE OF ALABAMA Amicus Curiae
STATE OF ALASKA Amicus Curiae
STATE OF ARIZONA Amicus Curiae

[COR NTC Retained] (see above)
Lawrence J. Joseph Direct: 202-669-5135 [COR LD NTC Retained] Law Office 1250 Connecticut Avenue Suite 200 Washington, DC 20036
David Boyle Direct: 734-904-6132 [COR LD NTC Retained] P.O. Box 15143 Long Beach, CA 90815
David Boyle Direct: 734-904-6132 [COR LD NTC Retained] (see above)
Erin Elizabeth Mersino Direct: 734-930-7145 [COR LD NTC Retained] Thomas More Law Center Firm: 734-827-2001 P.O. Box 393 Ann Arbor, MI 48106
Thomas Molnar Fisher Direct: 317-232-6255 [COR LD NTC] Office of the Attorney General of Indiana Firm: 317-232-6201 302 W. Washington Street Fifth Floor Indianapolis, IN 46204-0000
Thomas Molnar Fisher Direct: 317-232-6255 [COR LD NTC] (see above)
Thomas Molnar Fisher Direct: 317-232-6255 [COR LD NTC] (see above)
Thomas Molnar Fisher Direct: 317-232-6255

STATE OF COLORADO Amicus Curiae
STATE OF IDAHO Amicus Curiae
STATE OF LOUISIANA Amicus Curiae
STATE OF MONTANA Amicus Curiae
STATE OF SOUTH CAROLINA Amicus Curiae
STATE OF SOUTH DAKOTA Amicus Curiae
STATE OF UTAH Amicus Curiae
AMERICAN FAMILY ASSOCIATION OF MICHIGAN
Amicus Curiae

[COR LD NTC] (see above)
Thomas Molnar Fisher Direct: 317-232-6255 [COR LD NTC] (see above)
Thomas Molnar Fisher Direct: 317-232-6255 [COR LD NTC] (see above)
Thomas Molnar Fisher Direct: 317-232-6255 [COR LD NTC] (see above)
Thomas Molnar Fisher Direct: 317-232-6255 [COR LD NTC] (see above)
Thomas Molnar Fisher Direct: 317-232-6255 [COR LD NTC] (see above)
Thomas Molnar Fisher Direct: 317-232-6255 [COR LD NTC] (see above)
Thomas Molnar Fisher Direct: 317-232-6255 [COR LD NTC] (see above)
Mathew D. Staver Direct: 800-671-1776 [COR LD NTC Retained] Liberty Counsel P.O. Box 540774 Orlando, FL 32854
Mary Elizabeth McAlister Direct: 434-592-7000 [COR NTC Retained] Liberty Counsel Firm: 434-592-7000 PO Box 11108

Lynchburg, VA 24506
Anita L. Staver Direct: 800-671-1776 [COR NTC Retained] Law Office P.O. Box 540774 Orlando, FL 32854

AMERICAN ACADEMY OF MATRIMONIAL LAWYERS
Amicus Curiae

Diana Raimi Direct: 734-929-0835 [COR LD NTC Retained] Jaffe, Raitt, Heuer & Weiss 201 S. Main Street Suite 300 Ann Arbor, MI 48104

AMERICAN ACADEMY OF MATRIMONIAL LAWYERS - MICHIGAN CHAPTER
Amicus Curiae

Diana Raimi Direct: 734-929-0835 [COR LD NTC Retained] (see above)

EMPLOYERS AND ORGANIZATIONS REPRESENTING EMPLOYERS
Amicus Curiae

Susan Baker Manning Direct: 202-373-6172 [COR LD NTC Retained] Bingham McCutchen Firm: 202-373-6000 2020 K Street, N.W. Washington, DC 20006
Michael Louis Whitlock Direct: 202-373-6196 [COR NTC Retained] Bingham McCutchen Firm: 202-373-6000 2020 K Street, N.W. Washington, DC 20006

GAY & LESBIAN ADVOCATES & DEFENDERS
Amicus Curiae

Paul R.Q. Wolfson Direct: 202-663-6390 [COR LD NTC Retained] Wilmer Hale Firm: 202-663-6000 1875 Pennsylvania Avenue, N.W. Washington, DC 20006
Felicia H. Ellsworth Direct: 617-526-6687 [COR NTC Retained] Wilmer Hale Firm: 617-526-6000 60 State Street Boston, MA 02109

NATIONAL EDUCATION ASSOCIATION Amicus Curiae
MICHIGAN EDUCATION ASSOCIATION Amicus Curiae
SERVICE EMPLOYEES INTERNATIONAL UNION
Amicus Curiae
SEIU HEALTHCARE MICHIGAN Terminated: 06/16/2014
Amicus Curiae SEIU HEALTHCARE MICHIGAN Terminated: 06/16/2014
Amicus Curiae

Mark Christopher Fleming Direct: 617-526-6909 [COR NTC Retained] Wilmer Hale Firm: 617-526-6000 60 State Street Boston, MA 02109
Dina Bernick Mishra Direct: 202-663-6249 [COR NTC Retained] Wilmer Hale Firm: 202-663-6000 1875 Pennsylvania Avenue, N.W. Washington, DC 20006
Alan Evan Schoenfeld Direct: 212-937-7294 [COR NTC Retained] Wilmer Hale Firm: 212-230-8800 250 Greenwich Street 7 World Trade Center New York, NY 10007
Jason Walta Direct: 202-822-7035 [COR LD NTC Retained] Office of General Counsel National Education Association Firm: 202-822-7035 1201 16th Street, N.W. Washington, DC 20036
Jason Walta Direct: 202-822-7035 [COR LD NTC Retained] (see above)
Jason Walta Direct: 202-822-7035 [COR LD NTC Retained] (see above)

SEIU HEALTHCARE MICHIGAN Amicus Curiae
AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES (AFSCME), AFL-CIO
Amicus Curiae
AMERICAN FEDERATION OF TEACHERS, AFL-CIO
Amicus Curiae
AFT MICHIGAN Amicus Curiae
HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC
Amicus Curiae
PROFESSOR GARY J. GATES Amicus Curiae
WILLIAMS INSTITUTE Amicus Curiae
UCLA SCHOOL OF LAW Amicus Curiae
CARLOS A. BALL Amicus Curiae

Jason Walta Direct: 202-822-7035 [COR LD NTC Retained] (see above)
Jason Walta Direct: 202-822-7035 [COR LD NTC Retained] (see above)
Jason Walta Direct: 202-822-7035 [COR LD NTC Retained] (see above)
Jason Walta Direct: 202-822-7035 [COR LD NTC Retained] (see above)
Benjamin G. Shatz [COR LD NTC Retained] Manatt, Phelps & Phillips 11355 W. Olympic Boulevard Los Angeles, CA 90064
Benjamin G. Shatz [COR LD NTC Retained] (see above)
Benjamin G. Shatz [COR LD NTC Retained] (see above)
Benjamin G. Shatz [COR LD NTC Retained] (see above)
Jyotin R. Hamid Direct: 212-909-6000 [COR LD NTC Retained] Debevoise & Plimpton 919 Third Avenue New York, NY 10022
Joseph Benjamin Rome Direct: 212-909-6000 [COR NTC Retained] Debevoise & Plimpton 919 Third Avenue New York, NY 10022

GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY
Amicus Curiae

Nicholas M. O'Donnell Direct: 617-338-2814 [COR LD NTC Retained] Sullivan & Worcester Firm: 617-338-2800 One Post Office Square Boston, MA 02109

CATO INSTITUTE AND CONSTITUTIONAL ACCOUNTABILITY CENTER
Amicus Curiae

Elizabeth B. Wydra, Chief Counsel Direct: 202-296-6889 [COR LD NTC Retained] Constitutional Accountability Center 1200 18th Street, N.W. Suite 501 Washington, DC 20036

AMERICAN PSYCHOLOGICAL ASSOCIATION
Amicus Curiae

Paul March Smith Direct: 202-639-6000 [COR LD NTC Retained] Jenner & Block Firm: 202-639-6000 1099 New York Avenue, N.W. Suite 900 Washington, DC 20001

AMERICAN ACADEMY OF PEDIATRICS Amicus Curiae

Paul March Smith Direct: 202-639-6000 [COR LD NTC Retained] (see above)

AMERICAN PSYCHIATRIC ASSOCIATION Amicus Curiae

Paul March Smith Direct: 202-639-6000 [COR LD NTC Retained] (see above)

NATIONAL ASSOCIATION OF SOCIAL WORKERS
Amicus Curiae

Paul March Smith Direct: 202-639-6000 [COR LD NTC Retained] (see above)

KENTUCKY PSYCHOLOGICAL ASSOCIATION
Amicus Curiae

Paul March Smith Direct: 202-639-6000 [COR LD NTC Retained] (see above)

MICHIGAN LAW PROFESSOR Amicus Curiae

Alan M. Gershel Direct: 248-751-7800 [COR LD NTC Retained] Thomas M. Cooley Law School 2630 Featherstone Road Auburn Hills, MI 48326

COMMONWEALTH OF MASSACHUSETTS Amicus Curiae
STATE OF CALIFORNIA Amicus Curiae
STATE OF CONNECTICUT Amicus Curiae
STATE OF DELAWARE Amicus Curiae
DISTRICT OF COLUMBIA Amicus Curiae
STATE OF HAWAII Amicus Curiae
STATE OF ILLINOIS Amicus Curiae
STATE OF IOWA Amicus Curiae
STATE OF MAINE Amicus Curiae
STATE OF MARYLAND Amicus Curiae

Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] Office of the Massachusetts Attorney General One Ashburton Place Boston, MA 02108
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)

STATE OF NEW HAMPSHIRE Amicus Curiae
STATE OF NEW MEXICO Amicus Curiae
STATE OF NEW YORK Amicus Curiae
STATE OF OREGON Amicus Curiae
STATE OF RHODE ISLAND Amicus Curiae
STATE OF VERMONT Amicus Curiae
STATE OF WASHINGTON Amicus Curiae
COLAGE Amicus Curiae
FAMILY EQUALITY COUNCIL Amicus Curiae
HISTORIANS OF ANTI-GAY DISCRIMINATION
Amicus Curiae

Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Jonathan Benjamin Miller Direct: 617-963-2073 [COR LD NTC Retained] (see above)
Christy L. Anderson [COR LD NTC Retained] Bryan Cave 1700 Lincoln Street Suite 4100 Denver, CO 80203
Christy L. Anderson [COR LD NTC Retained] (see above)
Catherine Emily Stetson Direct: 202-637-5491 [COR LD NTC Retained] Hogan Lovells

NATIONAL WOMEN'S LAW CENTER Amicus Curiae

MICHIGAN ASSOCIATION FOR JUSTICE Amicus Curiae

ERA

Amicus Curiae

GENDER JUSTICE Amicus Curiae

LEGAL MOMENTUM Amicus Curiae

Firm: 202-637-5810 555 Thirteenth Street, N.W. Columbia Square Washington, DC 20004
Marcia D. Greenberger [COR LD NTC Retained] National Women's Law Center 11 Dupont Circle, N.W. Suite 800 Washington, DC 20036
Emily J. Martin Direct: 202-588-5180 [COR NTC Retained] National Women's Law Center 11 Dupont Circle, N.W. Suite 800 Washington, DC 20036
Marcia D. Greenberger [COR LD NTC Retained] (see above)
Emily J. Martin Direct: 202-588-5180 [COR NTC Retained] (see above)
Marcia D. Greenberger [COR LD NTC Retained] (see above)
Emily J. Martin Direct: 202-588-5180 [COR NTC Retained] (see above)
Marcia D. Greenberger [COR LD NTC Retained] (see above)
Emily J. Martin Direct: 202-588-5180 [COR NTC Retained] (see above)
Marcia D. Greenberger [COR LD NTC Retained] (see above)
Emily J. Martin

Direct: 202-588-5180 [COR NTC Retained] (see above)

LEGAL VOICE Amicus Curiae

Marcia D. Greenberger [COR LD NTC Retained] (see above)
Emily J. Martin Direct: 202-588-5180 [COR NTC Retained] (see above)

NATIONAL ASSOCIATION OF WOMEN LAWYERS
Amicus Curiae

Marcia D. Greenberger [COR LD NTC Retained] (see above)
Emily J. Martin Direct: 202-588-5180 [COR NTC Retained] (see above)

NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES
Amicus Curiae

Marcia D. Greenberger [COR LD NTC Retained] (see above)
Emily J. Martin Direct: 202-588-5180 [COR NTC Retained] (see above)

SOUTHWEST WOMEN'S LAW CENTER Amicus Curiae

Marcia D. Greenberger [COR LD NTC Retained] (see above)
Emily J. Martin Direct: 202-588-5180 [COR NTC Retained] (see above)

WOMEN'S LAW PROJECT Amicus Curiae

Marcia D. Greenberger [COR LD NTC Retained] (see above)
Emily J. Martin Direct: 202-588-5180 [COR NTC Retained] (see above)

WOMEN LAWYERS ASSOCIATION OF MICHIGAN
Amicus Curiae

Marcia D. Greenberger [COR LD NTC Retained] (see above)

Emily J. Martin Direct: 202-588-5180 [COR NTC Retained] (see above)

PROFESSORS OF LAW ASSOCIATED WITH THE WILLIAMS INSTITUTE
Amicus Curiae

Marcia D. Greenberger [COR LD NTC Retained] (see above)
Emily J. Martin Direct: 202-588-5180 [COR NTC Retained] (see above)

AMERICAN SOCIOLOGICAL ASSOCIATION Amicus Curiae

Carmine D. Boccuzzi, Jr. Direct: 212-225-2508 [COR LD NTC Retained] Cleary, Gottlieb, Steen & Hamilton Firm: 212-225-2000 One Liberty Plaza New York, NY 10006

BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM, (BALIF)
Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] Munger, Tolles & Olson Firm: 415-512-4000 560 Mission Street 27th Floor San Francisco, CA 94105
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] Munger, Tolles & Olson Firm: 213-683-9100 355 S. Grand Avenue 35th Floor Los Angeles, CA 90071

AUSTIN LGBT BAR ASSOCIATION Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

BAR ASSOCIATION OF SAN FRANCISCO,

Jerome Cary Roth

(BASF)

Amicus Curiae

Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

FREEDOM TO MARRY Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

GLBT BAR ASSOCIATION OF WASHINGTON, (QLaw)
Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)

Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

LATINA & LATINO CRITICAL LEGAL THEORY, INC., (LatCrit)
Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

LGBT BAR ASSOCIATION OF MARYLAND Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

LGBT BAR ASSOCIATION OF OREGON, (OGALLA)
Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained]

(see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

LGBT BAR ASSOCIATION OF OREGON, (OGALLA) Terminated: 06/17/2014
Amicus Curiae

LGBT & ALLIED LAWYERS OF UTAH BAR ASSOCIATION
Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

LOVE HONOR CHERISH Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

MARRIAGE EQUALITY USA Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

MINNESOTA LAVENDAR BAR ASSOCIATION
Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION, (NAPABA)
Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)

Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

NEW MEXICO LESBIAN AND GAY LAWYERS ASSOCIATION, ("NMLGLA")
Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

STONEWALL BAR ASSOCIATION OF GEORGIA, INC.
Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

STONEWALL BAR ASSOCIATION OF TENNESSEE
Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

STONEWALL COLUMBUS Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

STONEWALL LAW ASSOCIATION OF GREATER HOUSTON

Jerome Cary Roth Direct: 415-512-4010

Amicus Curiae

[COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

UNIVERSITY OF NEW MEXICO LAMBDA LAW STUDENT ASSOCIATION
Amicus Curiae

Jerome Cary Roth Direct: 415-512-4010 [COR LD NTC Retained] (see above)
Nicole Susan Phillis Direct: 213-683-9149 [COR NTC Retained] (see above)

LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS
Amicus Curiae

Joshua A. Block Direct: 212-549-2627 [COR LD NTC Retained] ACLU 125 Broad Street 18th Floor New York, NY 10004

Chase Strangio Direct: 212-549-2627 [COR NTC Retained] ACLU 125 Broad Street 18th Floor New York, NY 10004

PUBLIC INTEREST ORGANIZATIONS Amicus Curiae

Joshua A. Block Direct: 212-549-2627 [COR LD NTC Retained] (see above)
Chase Strangio Direct: 212-549-2627 [COR NTC Retained] (see above)

BAR ASSOCIATIONS Amicus Curiae

Joshua A. Block Direct: 212-549-2627 [COR LD NTC Retained] (see above)
Chase Strangio Direct: 212-549-2627 [COR NTC Retained] (see above)

PARENTS, FAMILIES AND FRIENDS OF LESBIANS AND GAYS, INC.
Amicus Curiae
DANIEL ACCIAVATTI Amicus Curiae
TODD ANDERSON Amicus Curiae
LYN BANKES Amicus Curiae
DANIEL SCOTT BEAN Amicus Curiae
KEN BRAUN Amicus Curiae
TIM BROWN Amicus Curiae
LEON DROLET Amicus Curiae
SUSAN GRIMES GILBERT Amicus Curiae
BILL BROWNSON Amicus Curiae
JAN DOLAN Amicus Curiae

Andrew John Davis Direct: 415-625-1050 [COR LD NTC Retained] Folger Levin Firm: 415-625-1050 199 Freemont Street 20th Floor San Francisco, CA 94105
Sean Robert Gallagher [COR LD NTC Retained] Polsinelli Shughart 1515 Wynkoop Street Suite 600 Denver, CO 80202
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained]

PATRICIA GODCHAUX Amicus Curiae
JENNIFER GRATZ Amicus Curiae
DOUG HART Amicus Curiae
DAVE HONIGMAN Amicus Curiae
RICK JOHNSON Amicus Curiae
JIM KOLBE Amicus Curiae
RICHARD D. MCLELLAN Amicus Curiae
DEBORAH D. PRYCE Amicus Curiae
MIKE PUMFORD Amicus Curiae
JOHN J.H. "JOE" SCHWARZ, MD Amicus Curiae
JUDITH L. SCRANTON Amicus Curiae
JERRY VORVA Amicus Curiae

(see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)

CHRISTOPHER WARD Amicus Curiae
GREG MCNEILLY, Republican political strategist, former Executive Director, Michigan Republican Party Terminated: 06/17/2014
Amicus Curiae
GREG MCNEILLY, Chairman, Republican National Committee, 2005-2007 Terminated: 06/17/2014
Amicus Curiae
GREG MCNEILLY Amicus Curiae
KENNETH MEHLMAN Amicus Curiae
CONSTITUTIONAL LAW SCHOLARS Amicus Curiae
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
Amicus Curiae
BISHOPS OF THE EPISCOPAL CHURCH IN KENTUCKY, MICHIGAN, OHIO, & TENNESSEE, et al
Amicus Curiae
OUTSERVE-SLDN Amicus Curiae

Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Sean Robert Gallagher [COR LD NTC Retained] (see above)
Diane M. Soubly Direct: 734-747-7050 [COR LD NTC Retained] Stevenson Keppelman 444 S. Main Street Ann Arbor, MI 48104
Ria Tabacco Mar Direct: 212-965-2200 [COR LD NTC Retained] NAACP Legal Defense & Educational Fund 40 Rector Street Fifth Floor New York, NY 10006
Jeffrey S. Trachtman Direct: 212-715-9175 [COR LD NTC Retained] Kramer, Levin, Naftalis & Frankel 1177 Avenue of the Americas New York, NY 10036
Christopher Dowden Man Direct: 202-974-5608 [COR LD NTC Retained] Chadbourne & Parke 1200 New Hampshire Avenue, N.W. Suite 300

Washington, DC 20036-0000

AMERICAN MILITARY PARTNER ASSOCIATION
Amicus Curiae

Christopher Dowden Man Direct: 202-974-5608 [COR LD NTC Retained] (see above)

COLUMBIA LAW SCHOOL SEXUALITY AND GENDER LAW CLINIC
Amicus Curiae

Suzanne B. Goldberg Direct: 212-854-2640 [COR LD NTC Retained] Columbia University School of Law 435 W. 116th Street New York, NY 10027

COURTNEY JOSLIN, et al (family law professors)
Amicus Curiae

Sara Bartel Direct: 415-268-6412 [COR LD NTC Retained] Morrison & Foerster Firm: 415-268-7000 425 Market Street San Francisco, CA 94131

PETER W. BARDAGLIO, et al, Historians of Marriage
Amicus Curiae

Daniel McNeel Lane, Jr. Direct: 210-281-7070 [COR LD NTC Retained] Akin Gump Firm: 210-281-7000 300 Convent Street Suite 1500 San Antonio, TX 78205
Jessica Weisel Direct: 310-229-1055 [COR LD NTC Retained] Akin Gump Firm: 310-229-1000 2029 Century Park, E. Suite 2400 Los Angeles, CA 90067
Matthew Edwin Pepping Direct: 210-281-7115 [COR NTC Retained] Akin Gump Firm: 210-281-7000 300 Convent Street Suite 1500 San Antonio, TX 78205

ANTI-DEFAMATION LEAGUE, et al Amicus Curiae

Rocky Chiu-feng Tsai Direct: 415-315-6358 [COR LD NTC Retained]

Ropes & Gray Three Embarcadero Center San Francisco, CA 94111

LAW ENFORCEMENT OFFICERS AND ORGANIZATIONS
Amicus Curiae

George David Carter, Jr. Direct: 202-750-3502 [COR LD NTC Retained] Innovista Law 1200 18th Street, N.W. Suite 700 Washington, DC 20036

Stephanie A. Joyce Direct: 202-857-6081 [COR LD NTC Retained] Arent Fox 1717 K Street, N.W. Washington, DC 20036

Joseph Paul Bowser Direct: 202-857-6102 [COR NTC Retained] Arent Fox 1717 K Street, N.W. Washington, DC 20036

Hunter Thompson Carter Direct: 212-484-3946 [COR NTC Retained] Arent Fox 1675 Broadway New York, NY 10019

APRIL DEBOER; JANE ROWSE, individually and as parents and next friend of N.D.-R, R.D.-R and J.D.-R, minors

Plaintiffs - Appellees

v. LISA BROWN

Defendant

RICHARD SNYDER, in his official capacity as Governor of the State of Michigan; BILL SCHUETTE, in his official capacity as Michigan Attorney General
Defendants - Appellants

03/21/2014 3

Civil Case Docketed. Notice filed by Appellants Bill Schuette and Richard

3 pg, 12.82 KB Snyder. Transcript needed: n. (YH)

03/21/2014 7

Appellant MOTION filed by Mr. Aaron D. Lindstrom for Bill Schuette and

21 pg, 113.62 KB Richard Snyder for EMERGENCY motion to stay district court order and

motion for stay pending appeal. Certificate of service: 03/21/2014. (YH)

03/21/2014 4

APPELLANT APPEARANCE filed by Attorney Mr. Aaron D. Lindstrom

1 pg, 77.81 KB for Appellants Bill Schuette and Richard Snyder. (YH)

03/21/2014 6

ADDITIONAL CITATION filed by Mr. Aaron D. Lindstrom for Bill

31 pg, 247.42 KB Schuette and Richard Snyder. Certificate of Service: 03/21/2014. (YH)

03/22/2014 10
1 pg, 119.85 KB

ORDER filed to request response to the defendants' emergency motion to stay by 12:00 noon on Tuesday, March 25, 2014, from Dana Nessell for April Deboer and Jane Rowse and Carole M. Stanyar for April Deboer and Jane Rowse. Entered by order of the court. (SSR)

03/22/2014 11
2 pg, 23.11 KB

ORDER filed GRANTING motion stay district court order [7] filed by Mr. Aaron D. Lindstrom until Wednesday, March 26, 2014. Entered by order of the court. (PJE)

03/24/2014 9

The case manager for this case is now: Cheryl Borkowski (PJE)

03/24/2014 12

APPEARANCE filed for Appellees April Deboer and Jane Rowse by

1 pg, 76.89 KB Carole Stanyar. Certificate of Service: 03/24/2014. (CMS)

03/24/2014 13

APPEARANCE filed for Lisa Brown by Beth M. Rivers. Certificate of

1 pg, 35.87 KB Service: 03/24/2014. (BMR)

03/25/2014 14
18 pg, 99.12 KB

RESPONSE in opposition filed regarding a motion stay district court order, [7]; previously filed by Mr. Aaron D. Lindstrom in 14-1341. Response from Attorney Ms. Carole Margaret Stanyar for Appellees April DeBoer and Jane Rowse Certificate of Service:03/25/2014. (CMS)

03/25/2014 15
16 pg, 976.6 KB

MOTION filed by Ms. Carole Margaret Stanyar for April DeBoer and Jane Rowse to expedite appeal. Certificate of Service: 03/25/2014.--[Edited 03/25/2014 by CB] (CMS)

03/25/2014 16

BRIEFING LETTER SENT setting briefing schedule: appellant brief due

6 pg, 19.08 KB 05/07/2014;. appellee brief due 06/09/2014; (CB)

03/25/2014 17

MOTION to respond to emergency motion to stay filed by Beth M. Rivers

17 pg, 286.75 KB for Defendant Lisa Brown. Certificate of Service: 03/25/2014.--[Edited

03/25/2014 by CB] (BMR)

03/25/2014 18
6 pg, 89.6 KB

REPLY filed by Mr. Aaron D. Lindstrom for Bill Schuette and Richard Snyder regarding Emergency Motion for Immediate Consideration and Motion for Stay Pending Appeal. Certificate of Service: 03/25/2014. (ADL)

03/25/2014 19

APPEARANCE filed for Appellees April DeBoer and Jane Rowse by

1 pg, 33.74 KB Kenneth M. Mogill. Certificate of Service: 03/25/2014. (KMM)

03/25/2014 20

APPEARANCE filed for Appellants Bill Schuette and Richard Snyder by

1 pg, 76.62 KB Kristin M. Heyse. Certificate of Service: 03/25/2014. (KMH)

03/25/2014 21

ADDITIONAL CITATION filed by Ms. Carole Margaret Stanyar for April

1 pg, 321.72 KB DeBoer and Jane Rowse. Certificate of Service: 03/25/2014. (CMS)

03/25/2014 22
6 pg, 250.98 KB

ORDER filed: We GRANT Michigan's motion to stay the district court's order pending final disposition of Michigan's appeal by this court [7] filed by Mr. Aaron D. Lindstrom. We GRANT Lisa Brown's motion to respond

to Michigan's stay motion [17]. John M. Rogers, Circuit Judge; Helene N. White, Circuit Judge (Dissenting) and Karen K. Caldwell, Chief District Judge. (PM)

03/25/2014 23
0 pg, 0 KB

MOTION to file AMICUS BRIEF filed by Kyle J. Bristow for Traditionalist Youth Network, LLC. Certificate of Service: 03/25/2014. (COUNSEL CONTACTED TO REFILE MOTION AND BRIEF SEPARATELY) --[Edited 03/26/2014 by CB] (KJB)

03/26/2014 24

APPEARANCE filed for Amicus Curiae Traditionalist Youth Network by

1 pg, 46.38 KB Kyle J. Bristow. Certificate of Service: 03/26/2014. (KJB)

03/26/2014 25
8 pg, 222.87 KB

MOTION to file AMICUS BRIEF filed by Kyle J. Bristow for Traditionalist Youth Network, LLC. Certificate of Service: 03/26/2014. (BLANKET CONSENT FOR ALL AMICUS FILED ON 4/29/14)-[Edited 04/29/2014 by CB] (KJB)

03/26/2014 26

AMICUS BRIEF filed by Mr. Kyle James Bristow for Traditionalist Youth

35 pg, 443.38 KB Network. Certificate of Service:03/26/2014. (BLANKET CONSENT FOR

ALL AMICUS FILED ON 4/29/14)--[Edited 04/29/2014 by CB] (KJB)

04/04/2014 27
11 pg, 90.52 KB

PETITION for initial en banc hearing filed by Mr. Aaron D. Lindstrom for Bill Schuette and Richard Snyder. Certificate of Service: 04/04/2014. (ADL)

04/07/2014 28
2 pg, 10.54 KB

LETTER SENT to Ms. Carole Margaret Stanyar for April DeBoer and Jane Rowse, notifying that she is directed to respond to the petition for initial en banc hearing filed by Mr. Aaron D. Lindstrom. Response due 04/21/2014. (BLH)

04/08/2014 29
1 pg, 58.09 KB

CIVIL APPEAL STATEMENT OF PARTIES AND ISSUES filed by Attorney Mr. Aaron D. Lindstrom for Appellants Bill Schuette and Richard Snyder. Certificate of Service:04/08/2014. (ADL)

04/08/2014 30
1 pg, 62.61 KB

TRANSCRIPT ORDER FORM filed by Mr. Aaron D. Lindstrom for Bill Schuette and Richard Snyder; Transcript on file in district court. Certificate of Service: 04/08/2014. (ADL)

04/11/2014 31
6 pg, 46.81 KB

RESPONSE in opposition filed regarding a petition for initial en banc hearing, [27]; previously filed by Mr. Aaron D. Lindstrom in 14-1341. Response from Attorney Mr. Kenneth Marc Mogill for Appellees April DeBoer and Jane Rowse Certificate of Service:04/11/2014. (KMM)

04/15/2014 32
1 pg, 33.01 KB

APPEARANCE filed for Amici Curiae Robert Grunn, David Brian Michener and James Obergefell by Alphonse A. Gerhardstein. Certificate of Service: 04/15/2014. (AAG)

04/15/2014 33
3 pg, 141.1 KB

MOTION to file AMICUS BRIEF filed by Alphonse A. Gerhardstein for James Obergefell, David Mchener, Robert Grunn. Certificate of Service: 04/15/2014. (Attached memorandum locked and TENDERED; not granted leave to file, motion pending).--[Edited 04/15/2014 by BLH] (AAG)

04/15/2014

34
10 pg, 112.59 KB

TENDERED memorandum as amici curiae in support of plaintiffappellees' response to state defendant-appellants' petition for initial hearing en banc. Received from Attorney Mr. Alphonse A. Gerhardstein for James Obergefell, David Brian Michener and Robert Grunn. (BLH)

04/16/2014 35
2 pg, 131.34 KB

ORDER filed granting motion filed by Mr. Alphonse A. Gerhardstein for James Obergefell, David Michener, and Robert Grunn for leave to file a memorandum as amici curiae in support of plaintiff-appellees' response to state defendant-appellants' petition for initial hearing en banc [33]. Entered by order of the court. (BLH)

04/16/2014

36
10 pg, 147.07 KB

AMICI MEMORANDUM filed by Mr. Alphonse A. Gerhardstein for James Obergefell, David Brian Michener and Robert Grunn in support of plaintiff-appellees' response to state defendant-appellants' petition for initial hearing en banc. Copies: Electronic. Certificate of Service:04/15/2014. (BLH)

04/17/2014 37
3 pg, 127.98 KB

NOTIFICATION filed by Ms. Roberta A. Kaplan for Equality Ohio and Equality Ohio Education Fund to inform the Court of their intent to file a motion to intervene in this case and case number 14-3057 . Certificate of Service: 04/17/2014. (BLH)

04/17/2014 38
2 pg, 120.89 KB

FILED: Letter by Mr. Kenneth Marc Mogill for April DeBoer and Jane Rowse in response to the NOTIFICATION filed by Ms. Roberta Kaplan. Certificate of Service: 04/17/2014.--[Edited 04/18/2014 by BLH] (KMM)

04/21/2014 39

MOTION to INTERVENE filed by Alec Scott Gibbs for Erin Dawn

26 pg, 553.67 KB Blankenship Shayla Dawn Blankenship. Certificate of Service: 04/21/2014.

(ASG)

04/21/2014 40

INTERVENOR APPEARANCE filed by Attorney Mr. Alec Scott Gibbs

1 pg, 89.99 KB for Intervenors Erin Blankenship and Shayla Blankenship. (CB)

04/24/2014 41

APPEARANCE filed for Appellees April DeBoer and Jane Rowse by

1 pg, 76.54 KB Robert Sedler. Certificate of Service: 04/24/2014. (RAS)

04/28/2014 42
2 pg, 74.4 KB

ORDER filed denying petition for initial en banc hearing [27] filed by Mr. Aaron D. Lindstrom. Entered by order of the court. (BLH)

04/29/2014 43

APPEARANCE filed for Amicus Curiae Family Research Council by Paul

1 pg, 77.52 KB Benjamin Linton. Certificate of Service: 04/29/2014. (PBL)

04/29/2014 44
1 pg, 59.24 KB

NOTIFICATION: BLANKET CONSENT OF APPELLANT FOR AMICUS: filed by Mr. Aaron D. Lindstrom for Bill Schuette and Richard Snyder regarding Consent to timely filing of amicus curiae briefs regardless of the side supported. Certificate of Service: 04/29/2014.-[Edited 04/29/2014 by CB] (ADL)

04/29/2014 45
1 pg, 195.76 KB

NOTIFICATION : BLANKET CONSENT OF APPELLEE FOR AMICUS: to Clerk of Court re consent to filing of amicus briefs by Mr. Kenneth Marc Mogill for April DeBoer and Jane Rowse. Certificate of Service: 04/29/2014.--[Edited 04/30/2014 by CB] (KMM)

05/07/2014 46
76 pg, 231.9 KB

APPELLANT BRIEF filed by Mr. Aaron D. Lindstrom for Bill Schuette and Richard Snyder. Certificate of Service:05/07/2014. Argument Request: requested. (ADL)

05/08/2014 47

AMICUS APPEARANCE filed by Attorney Mr. David A. Robinson for

1 pg, 76.43 KB Amicus Curiae David A. Robinson. (CB)

05/08/2014 48

AMICUS BRIEF filed by Mr. David A. Robinson for David A. Robinson

29 pg, 250.08 KB Copies:1. Certificate of Service:05/08/2014. (NO MOTION REQUIRED,

BLANKET CONSENT)--[Edited 05/08/2014 by CB] (CB)

05/08/2014 49
1 pg, 76.67 KB

APPEARANCE filed for Amici Curiae Liberty Life and Law Foundation and North Carolina Values Coalition by Deborah J Dewart. Certificate of Service: 05/08/2014. (DJD)

05/08/2014 50
40 pg, 96.35 KB

AMICUS BRIEF filed by Ms. Deborah Jane Dewart for North Carolina Values Coalition and Liberty Life and Law Foundation. Certificate of Service:05/08/2014. (NO MOTION REQUIRED, BLANKET CONSENT)--[Edited 05/14/2014 by CB] (DJD)

05/09/2014 51

AMICUS BRIEF filed by Mr. Paul Benjamin Linton for Family Research

37 pg, 185.22 KB Council. Certificate of Service:05/09/2014. (NO MOTION REQURIED,

BLANKET CONSENT)--[Edited 05/14/2014 by CB] (PBL)

05/09/2014 52
1 pg, 100 KB

APPEARANCE filed for Amicus Curiae Michigan Family Forum by James R. Wierenga. Certificate of Service: 05/09/2014. (JRW)

05/13/2014 53

APPEARANCE filed for Amicus Curiae The Becket Fund for Religious

1 pg, 73.52 KB Liberty by Eric C. Rassbach. Certificate of Service: 05/13/2014. (ECR)

05/13/2014 54

AMICUS BRIEF filed by Mr. James R. Wierenga for Michigan Family

36 pg, 525.38 KB Forum. Certificate of Service:05/13/2014. (NO MOTION REQUIRED,

BLANKET CONSENT)--[Edited 05/14/2014 by CB] (JRW)

05/13/2014 55

AMICUS BRIEF filed by Mr. Eric C. Rassbach for The Becket Fund for

50 pg, 212.45 KB Religious Liberty. Certificate of Service:05/13/2014. (NO MOTION

REQUIRED, BLANKET CONSENT)--[Edited 05/14/2014 by CB] (ECR)

05/14/2014 56

APPEARANCE filed for Amicus Curiae Michigan Catholic Conference by

1 pg, 77.38 KB Thomas J. Rheaume, Jr.. Certificate of Service: 05/14/2014. (TJR)

05/14/2014 57
1 pg, 590.44 KB

AMICUS APPEARANCE filed by Attorney Alexander Dushku for Amici Curiae National Association of Evangelicals, Ethics & Religious Liberty Commission of The Southern Baptist Convention, U.S. Conference of Catholic Bishops, Lutheran Church-Missouri Synod and Church of Jesus Christ of Latter-Day Saints. (CB)

05/14/2014 58
1 pg, 36.04 KB

AMICUS APPEARANCE filed by Attorney Mr. R. Shawn Gunnarson for Amici Curiae National Association of Evangelicals, Ethics & Religious Liberty Commission of The Southern Baptist Convention, U.S. Conference of Catholic Bishops, Lutheran Church-Missouri Synod and Church of Jesus Christ of Latter-Day Saints. (CB)

05/14/2014 59
1 pg, 53.04 KB

AMICUS APPEARANCE filed by Attorney Anthony R. Picarello, Jr. for Amici Curiae National Association of Evangelicals, Ethics & Religious Liberty Commission of The Southern Baptist Convention, U.S. Conference of Catholic Bishops, Lutheran Church-Missouri Synod and Church of Jesus Christ of Latter-Day Saints. (CB)

05/14/2014 60
1 pg, 39.56 KB

AMICUS APPEARANCE filed by Attorney Ms. Sherri C. Strand for Amici Curiae National Association of Evangelicals, Ethics & Religious Liberty Commission of The Southern Baptist Convention, U.S. Conference of Catholic Bishops, Lutheran Church-Missouri Synod and Church of Jesus Christ of Latter-Day Saints. (CB)

05/14/2014 61

AMICUS APPEARANCE filed by Attorney Mr. Carl H. Esbeck for Amici

1 pg, 72.95 KB

Curiae National Association of Evangelicals, Ethics & Religious Liberty Commission of The Southern Baptist Convention, U.S. Conference of Catholic Bishops, Lutheran Church-Missouri Synod and Church of Jesus Christ of Latter-Day Saints. (CB)

05/14/2014 62
1 pg, 48.52 KB

AMICUS APPEARANCE filed by Attorney Mr. Michael F. Moses for Amici Curiae National Association of Evangelicals, Ethics & Religious Liberty Commission of The Southern Baptist Convention, U.S. Conference of Catholic Bishops, Lutheran Church-Missouri Synod and Church of Jesus Christ of Latter-Day Saints. (CB)

05/14/2014 63
1 pg, 51.04 KB

AMICUS APPEARANCE filed by Attorney Mr. Jeffrey Hunter Moon for Amici Curiae National Association of Evangelicals, Ethics & Religious Liberty Commission of The Southern Baptist Convention, U.S. Conference of Catholic Bishops, Lutheran Church-Missouri Synod and Church of Jesus Christ of Latter-Day Saints. (CB)

05/14/2014 64

AMICUS APPEARANCE filed by Attorney Mr. David Boyle for Amici

1 pg, 76.95 KB Curiae David Boyle and Robert Oscar Lopez. (CB)

05/14/2014 65

AMICUS BRIEF filed by Mr. Thomas J. Rheaume, Jr. for Michigan

36 pg, 462.65 KB Catholic Conference. Certificate of Service:05/14/2014. (TJR)

05/14/2014 66

APPEARANCE filed for Amicus Curiae Coalition of Black Pastors by

1 pg, 86.35 KB Erin Mersino. Certificate of Service: 05/14/2014. (EEM)

05/14/2014 67
0 pg, 0 KB

CORPORATE DISCLOSURE STATEMENT filed by Attorney Ms. Erin Elizabeth Mersino for Amicus Curiae Coalition of Black Pastors Certificate of Service: 05/14/2014. (INCLUDED IN BRIEF)--[Edited 05/16/2014 by CB] (EEM)

05/14/2014 68
1 pg, 84.12 KB

APPEARANCE filed for Amici Curiae Abraham Lincoln Foundation for Public Policy Research, Conservative Legal Defense and Education Fund, Institute on the Constitution, Lincoln Institute for Research and Education, Policy Analysis Center, Public Advocate of the United States and U.S. Justice Foundation by William J. Olson. Certificate of Service: 05/14/2014. (WJO)

05/14/2014 69
0 pg, 0 KB

MOTION to file AMICUS BRIEF filed by Mary E. McAlister for American Family Association of Michigan. Certificate of Service: 05/14/2014. (THIS DOCUMENT IS A BRIEF, FILED INCORRECTLY, BEING REFILED)--[Edited 05/16/2014 by CB] (MEM)

05/14/2014

70
42 pg, 223.11 KB

AMICUS BRIEF filed by Mr. William Jeffery Olson for Conservative Legal Defense and Education Fund, Lincoln Institute for Research and Education, Public Advocate of the United States, U.S. Justice Foundation, Abraham Lincoln Foundation for Public Policy Research, Institute on the Constitution and Policy Analysis Center. Certificate of Service:05/14/2014. (WJO)

05/14/2014 71
0 pg, 0 KB

AMICUS BRIEF filed by Ms. Erin Elizabeth Mersino for Coalition of Black Pastors. Certificate of Service:05/14/2014. (COUNSEL HAS FILED CORRECTED AMICUS BRIEF)--[Edited 05/16/2014 by CB] (EEM)

05/14/2014 72

APPEARANCE filed for Amicus Curiae Eagle Forum Education & Legal

1 pg, 26.08 KB Defense Fund by Lawrence J. Joseph. Certificate of Service: 05/14/2014.

(LJJ)

05/14/2014 73

AMICUS BRIEF filed by Mr. Lawrence J. Joseph for Eagle Forum

40 pg, 247.54 KB Education & Legal Defense Fund. Certificate of Service:05/14/2014. (LJJ)

05/14/2014 75
1 pg, 29.08 KB

AMICUS APPEARANCE filed by Attorney Mr. Thomas Molnar Fisher for Amici Curiae AZ, LA, IN, MT, AK, CO, SC, UT, ID, AL and SD. (LAJ)

05/14/2014 76
49 pg, 180.9 KB

AMICUS BRIEF filed by Mr. Thomas Molnar Fisher for AZ, LA, IN, MT, AK, CO, SC, UT, ID, AL and SD. Copies:1. Certificate of Service:05/14/2014. (LAJ)

05/14/2014 77
1 pg, 86.55 KB

AMICUS APPEARANCE filed by Attorney Ms. Mary Elizabeth McAlister (co-counsel) for Amicus Curiae American Family Association of Michigan. (LAJ)

05/14/2014 78
1 pg, 86.55 KB

AMICUS APPEARANCE filed by Attorney Ms. Anita L. Staver (cocounsel) for Amicus Curiae American Family Association of Michigan. (LAJ)

05/14/2014 79

AMICUS APPEARANCE filed by Attorney Mr. Mathew D. Staver (Lead)

1 pg, 86.54 KB for Amicus Curiae American Family Association of Michigan. (LAJ)

05/14/2014 80

AMICUS BRIEF filed by Ms. Mary Elizabeth McAlister, Ms. Anita L.

39 pg, 551.13 KB Staver and Mr. Mathew D. Staver for American Family Association of

Michigan. Copies:1. Certificate of Service:05/14/2014. (LAJ)

05/14/2014

82
54 pg, 144.28 KB

AMICUS BRIEF filed by Alexander Dushku for National Association of Evangelicals, Ethics & Religious Liberty Commission of The Southern Baptist Convention, U.S. Conference of Catholic Bishops, Lutheran Church-Missouri Synod and Church of Jesus Christ of Latter-Day Saints Copies:1. Certificate of Service:05/14/2014. (CB)

05/14/2014 83

AMICUS BRIEF filed by Mr. David Boyle for David Boyle. Certificate of

43 pg, 538.44 KB Service:05/14/2014. (CB)

05/14/2014 84

AMICUS BRIEF filed by Mr. David Boyle for Robert Oscar Lopez.

36 pg, 472.33 KB Certificate of Service:05/14/2014. (CB)

05/15/2014 74

CORRECTED AMICUS BRIEF filed by Coalition of Black Pastors filed

47 pg, 363.62 KB by Ms. Erin Elizabeth Mersino for Coalition of Black Pastors. Certificate

of Service:05/15/2014. Argument Request: waived. (EEM)

05/16/2014 81

RULING LETTER SENT declaring as moot motion to file amicus brief [69], declaring as moot motion to file amicus brief [25], declaring as moot motion to file amicus brief [23]. **THESE MOTIONS WERE NOT NECESSARY, BLANKET CONSENT FOR ALL AMICUS TO FILE. (CB)

05/16/2014 85

APPEARANCE filed for Amicus Curiae Michigan Catholic Conference by

1 pg, 26.26 KB James J. Walsh. Certificate of Service: 05/16/2014. (JJW)

05/22/2014 86

APPEARANCE filed for Appellees April DeBoer and Jane Rowse by

1 pg, 269.99 KB Dana M. Nessel. Certificate of Service: 05/22/2014. (DMN)

05/29/2014 87

APPEARANCE filed for Amici Curiae American Academy of

1 pg, 18.56 KB

Matrimonial Lawyers and American Academy of Matrimonial Lawyers Michigan Chapter by Diana Raimi. Certificate of Service: 05/29/2014. (DR)

06/04/2014 88
0 pg, 0 KB

MOTION filed by Mr. Kenneth Marc Mogill for April DeBoer and Jane Rowse for order accepting amicus briefs as cross-filed. Certificate of Service: 06/04/2014. (CORRECTED MOTION REFILED)--[Edited 06/04/2014 by CB] (KMM)

06/04/2014 89
3 pg, 37.44 KB

MOTION filed by Mr. Kenneth Marc Mogill for April DeBoer and Jane Rowse for CORRECTED MOTION for order accepting amicus briefs as cross-filed. Certificate of Service: 06/04/2014. (KMM)

06/04/2014 90

CANCELLED MOTION filed by Mr. Kenneth Marc Mogill for April DeBoer and Jane Rowse ; Reason: CORRECTED MOTION FILED ; motion for cross filing of Amicus briefs [88].--[Edited 06/04/2014 by CB] (CB)

06/09/2014 91

APPELLEE BRIEF filed by Ms. Carole Margaret Stanyar for April

74 pg, 297.69 KB DeBoer and Jane Rowse. Certificate of Service:06/09/2014. Argument

Request: requested. (CMS)

06/09/2014 92
44 pg, 3.18 MB

MOTION to file AMICUS BRIEF filed by Beth M. Rivers for Lisa Brown. Certificate of Service: 06/09/2014. (COUNSEL TO REFILE USING CORRECT ENTRY)--[Edited 06/10/2014 by CB] (BMR)

06/10/2014 93
61 pg, 3.27 MB

Motion filed by Ms. Beth M. Rivers for Lisa Brown to file statement in support of plaintiffs-appellees and statement in support with exhibits. Certificate of service:06/10/2014. (CB)

06/13/2014 94
1 pg, 46.74 KB

AMICUS APPEARANCE filed for Gay & Lesbian Advocates & Defenders by Paul R.Q. Wolfson. Certificate of Service: 06/13/2014. (PRW)

06/13/2014 95

AMICUS APPEARANCE filed for Gay & Lesbian Advocates &

1 pg, 46.05 KB Defenders by Mark C. Fleming. Certificate of Service: 06/13/2014. (MCF)

06/13/2014 96
1 pg, 46.7 KB

AMICUS APPEARANCE filed for Gay & Lesbian Advocates & Defenders by Felicia H. Ellsworth. Certificate of Service: 06/13/2014. (FHE)

06/13/2014 97

AMICUS APPEARANCE filed for Gay & Lesbian Advocates &

1 pg, 46.78 KB Defenders by Dina B. Mishra. Certificate of Service: 06/13/2014. (DBM)

06/13/2014 98

AMICUS APPEARANCE filed for Gay & Lesbian Advocates &

1 pg, 46.28 KB Defenders by Alan Schoenfeld. Certificate of Service: 06/13/2014. (AES)

06/13/2014 99

AMICUS APPEARANCE filed for National Education Association et

1 pg, 26.42 KB al. by Jason Walta. Certificate of Service: 06/13/2014. (JW)

06/13/2014 100
1 pg, 57.01 KB

AMICUS APPEARANCE filed for Howard University School of Law Civil Rights Clinic; Prof. Gary J. Gates, Williams Institute, UCLA School of Law by Benjamin G. Shatz. Certificate of Service: 06/13/2014. (BGS)

06/13/2014 101

AMICUS BRIEF filed by Benjamin G. Shatz, counsel for amicus Howard

40 pg, 295.66 KB University School of Law Civil Rights Clinic. Certificate of

Service:06/13/2014. (BLANKET CONSENT)--[Edited 06/16/2014 by CB]

(BGS)

06/13/2014 102

AMICUS APPEARANCE filed for Carlos A. Ball by Jyotin Hamid.

1 pg, 89.36 KB Certificate of Service: 06/13/2014. (JRH)

06/13/2014 103

AMICUS APPEARANCE filed for Carlos A. Ball by Joseph Rome.

1 pg, 85.78 KB Certificate of Service: 06/13/2014. (JBR)

06/16/2014 104
1 pg, 37.33 KB

AMICUS APPEARANCE filed for GLMA: Health Professionals Advancing LGBT Equality by Nicholas M. O'Donnell. Certificate of Service: 06/16/2014. (NMO)

06/16/2014 105
1 pg, 76.7 KB

AMICUS APPEARANCE filed for Cato Institute & Constitutional Accountability Center by Elizabeth B. Wydra. Certificate of Service: 06/16/2014. (EBW)

06/16/2014 106
1 pg, 26.16 KB

AMICUS APPEARANCE filed for American Psychological Association, American Academy of Pediatrics, American Psychiatric Association, National Association of Social Workers, and Kentucky Psychological Association by Paul M. Smith. Certificate of Service: 06/16/2014. (PMS)

06/16/2014 107

AMICUS BRIEF filed by Cato Institute & Constitutional Accountability

45 pg, 343.51 KB Center. Certificate of Service:06/16/2014. (EBW)

06/16/2014 108
45 pg, 2.12 MB

AMICUS BRIEF filed by American Psychological Association, American Academy of Pediatrics, American Psychiatric Association, National Association of Social Workers, and Kentucky Psychological Association. Certificate of Service:06/16/2014. (PMS)

06/16/2014 109

AMICUS APPEARANCE filed for Michigan Law Professors by Alan M.

1 pg, 76.74 KB Gershel. Certificate of Service: 06/16/2014. (AMG)

06/16/2014 110

AMICUS APPEARANCE filed for Commonwealth of Massachusetts, et

1 pg, 76.51 KB al. by Jonathan B. Miller. Certificate of Service: 06/16/2014. (JBM)

06/16/2014 111
1 pg, 77.03 KB

AMICUS APPEARANCE filed for Family Equality Council and COLAGE by Christy L. Anderson. Certificate of Service: 06/16/2014. (CLA)

06/16/2014 112
1 pg, 54.34 KB

AMICUS APPEARANCE filed for Historians of Anti-Gay Discrimination by Catherine E. Stetson. Certificate of Service: 06/16/2014. (CES)

06/16/2014 113

AMICUS BRIEF filed by Catherine E. Stetson Historians of Anti-Gay

49 pg, 399.77 KB Discrimination. Certificate of Service:06/16/2014. (CES)

06/16/2014

114
47 pg, 479.77 KB

AMICUS BRIEF filed by Mr. Jason Walta for AFSCME, Michigan Education Association, National Education Association, SEIU Healthcare Michigan, Service Employees International Union, AFT Michigan and American Federation of Teachers. Certificate of Service:06/16/2014. (JW)

06/16/2014 115
1 pg, 77.36 KB

AMICUS APPEARANCE filed for Nat'l Women's Law Ctr, Equal Rights Advocates, Gender Justice, Legal Momentum, Legal Voice, Nat'l Ass'n of Women Lawyers, Nat'l P'ship for Women & Families, SW Women's Law Ctr, Women's Law Project, and Professors of Law Associated with the Williams Inst. by Marcia D. Greenberger. Certificate of Service: 06/16/2014. (MDG)

06/16/2014 116

AMICUS APPEARANCE filed for American Sociological Association by

1 pg, 26.33 KB Carmine D. Boccuzzi, Jr.. Certificate of Service: 06/16/2014. (CDB)

06/16/2014 117

AMICUS BRIEF filed by Ms. Diana Raimi for American Academy of

21 pg, 237.13 KB Matrimonial Lawyers and American Academy of Matrimonial Lawyers -

Michigan Chapter. Certificate of Service:06/16/2014. (DR)

06/16/2014 118
1 pg, 77.32 KB

AMICUS APPEARANCE filed for Nat'l Women's Law Ctr, Equal Rights Advocates, Gender Justice, Legal Momentum, Legal Voice, Nat'l Ass'n of Women Lawyers, Nat'l P'ship for Women & Families, SW Women's Law Ctr, Women's Law Project, and Professors of Law Associated with the Williams Inst. by Emily J. Martin. Certificate of Service: 06/16/2014. (EJM)

06/16/2014 119

AMICUS BRIEF filed by Rocky C. Tsai, Anti-Defamation League, et al..

58 pg, 184.24 KB Certificate of Service:06/16/2014. (RCT)

06/16/2014 120
0 pg, 0 KB

AMICUS APPEARANCE filed for Law Enforcement Officers and Organizations by George David Carter, Jr.. Certificate of Service: 06/16/2014. (TO BE REFILED UNDER OWN ECF ACCOUNT)--[Edited 06/17/2014 by CB] (SAJ)

06/16/2014 121
0 pg, 0 KB

AMICUS APPEARANCE filed for Law Enforcement Officers and Organizations by Hunter T. Carter. Certificate of Service: 06/16/2014. (TO BE REFILED UNDER OWN ECF ACCOUNT)--[Edited 06/17/2014 by CB] (SAJ)

06/16/2014 122
0 pg, 0 KB

AMICUS APPEARANCE filed for Law Enforcement Officers and Organizations by Joseph P. Bowser. Certificate of Service: 06/16/2014. (TO BE REFILED UNDER OWN ECF ACCOUNT)--[Edited 06/17/2014 by CB] (SAJ)

06/16/2014 123
2 pg, 34.01 KB

AMICUS APPEARANCE filed for Bay Area Lawyers for individual Freedom (BALIF), et al. by Jerome C. Roth. Certificate of Service: 06/16/2014. (JCR)

06/16/2014 124
1 pg, 26.17 KB

AMICUS APPEARANCE filed for Leadership Conference on Civil and Human Rights, American Civil Liberties Union, et al. by Chase Strangio. Certificate of Service: 06/16/2014. (CS)

06/16/2014 125

AMICUS BRIEF filed by Alan M. Gershel for Michigan Law Professors.

35 pg, 499.14 KB Certificate of Service:06/16/2014. (AMG)

06/16/2014 126
2 pg, 34 KB

AMICUS APPEARANCE filed for Bay Area Lawyers for Individual Freedom (BALIF), et al. by Nicole S. Phillis. Certificate of Service: 06/16/2014. (NSP)

06/16/2014 127

AMICUS BRIEF filed by Jerome C. Roth, Nicole S. Phillis on behalf of

53 pg, 125.92 KB Bay Area Lawyers for Individual Freedom (BALIF), et al.. Certificate of

Service:06/16/2014. (NSP)

06/16/2014 128
1 pg, 26.12 KB

AMICUS APPEARANCE filed for Leadership Conference on Civil and Human Rights, American Civil Liberties Union, et al. by Joshua Block. Certificate of Service: 06/16/2014. (JAB)

06/16/2014 129

AMICUS APPEARANCE filed for Parents, Families and Friends of

1 pg, 146.06 KB Lesbians and Gays, Inc. by Andrew J. Davis. Certificate of Service:

06/16/2014. (AJD)

06/16/2014 130

AMICUS BRIEF filed by Andrew J. Davis for Parents, Families and

35 pg, 132.71 KB Friends of Lesbians and Gays, Inc.. Certificate of Service:06/16/2014.

(AJD)

06/16/2014 131

AMICUS BRIEF filed by Nicholas M. O'Donnell for GLMA: Health

45 pg, 299.42 KB Professionals Advancing LGBT Equality. Certificate of

Service:06/16/2014. (NMO)

06/16/2014 132
3 pg, 78.27 KB

AMICUS APPEARANCE filed for Daniel J. Acciavatti Todd Anderson Lyn Bankes Daniel Scott Bean Ken Braun Tim Brown Bill Brownson Jan Dolan Leon Drolet Susan Grimes Gilbert Patricia Godchaux Jennifer Gratz Doug Hart Dave Honigman Rick Johnson Jim Kolbe Richard D. McLellan et al by Sean R. Gallagher. Certificate of Service: 06/16/2014. (SRG)

06/16/2014 133

AMICUS BRIEF filed by Sean R. Gallagher. Certificate of

40 pg, 100.93 KB Service:06/16/2014. (SRG)

06/16/2014 134

AMICUS BRIEF filed by Mr. Paul R.Q. Wolfson for Gay & Lesbian

39 pg, 615.46 KB Advocates & Defenders. Certificate of Service:06/16/2014. (PRW)

06/16/2014 135
8 pg, 155 KB

ORDER filed denying motion to intervene and to expedite consideration [39]. Entered by order of the court. (CB)

06/16/2014 136
3 pg, 94.17 KB

AMICUS APPEARANCE filed for Constitutional Law Scholars A Bhagwat, L Bollinger, E Chemerinsky, W Dellinger, M Dorf, L Epstein, D Farber, B Friedman, E Katz, J Jeffries, Jr., L Lessig, W Marshall, F Michelman, J Schacter, S Sherry, G Stone, D Strauss, L Tribe & W Van Alstyne by Diane M. Soubly. Certificate of Service: 06/16/2014. (HAS BEEN REFILED WITH ONE APPEARANCE FORM)--[Edited 06/17/2014 by CB] (DMS)

06/16/2014

137
44 pg, 438.39 KB

AMICUS BRIEF filed by Diane M. Soubly Constitutional Law Scholars A Bhagwat, L Bollinger, E Chemerinsky, W Dellinger, M Dorf, L Epstein, D Farber, B Friedman, E Katz, J Jeffries, Jr., L Lessig, W Marshall, F Michelman, J Schacter, S Sherry, G Stone, D Strauss, W VanAlystyne. Certificate of Service:06/16/2014. (DMS)

06/16/2014 138

AMICUS APPEARANCE filed for NAACP Legal Defense & Educational

1 pg, 26.36 KB Fund, Inc. by Ria Tabacco Mar. Certificate of Service: 06/16/2014. (RAT)

06/16/2014 139

AMICUS BRIEF filed by Ria Tabacco Mar for Amicus Curiae NAACP

40 pg, 617.51 KB Legal Defense & Educational Fund, Inc.. Certificate of

Service:06/16/2014. (RAT)

06/16/2014 140

AMICUS BRIEF filed by Christy L. Anderson for Family Equality Council

39 pg, 100.99 KB and COLAGE. Certificate of Service:06/16/2014. (CLA)

06/16/2014 141

AMICUS BRIEF filed by Carmine D. Boccuzzi, Jr. for American

41 pg, 186.87 KB Sociological Association. Certificate of Service:06/16/2014. (CDB)

06/16/2014 142

AMICUS BRIEF filed by Jonathan B. Miller for the Commonwealth of

42 pg, 171.13 KB Massachusetts, et al.. Certificate of Service:06/16/2014. (JBM)

06/16/2014 143

AMICUS BRIEF filed by Mr. Joseph Benjamin Rome for Carlos A. Ball.

35 pg, 285.9 KB Certificate of Service:06/16/2014. (JBR)

06/16/2014 144
4 pg, 175.36 KB

AMICUS APPEARANCE filed for BISHOPS OF THE EPISCOPAL CHURCH IN KENTUCKY, MICHIGAN, OHIO, AND TENNESSEE; GENERAL SYNOD OF THE UNITED CHURCH OF CHRIST; MORMONS FOR EQUALITY; RECONSTRUCTIONIST RABBINICAL ASSOCIATION; RECONSTRUCTIONIST RABBINICAL COLLEGE, ET AL. by Jeffrey S. Trachtman. Certificate of Service: 06/16/2014. (JST)

06/16/2014

145
51 pg, 216.66 KB

AMICUS BRIEF filed by Jeffrey S. Trachtman, BISHOPS OF THE EPISCOPAL CHURCH IN KENTUCKY, MICHIGAN, OHIO, AND TENNESSEE; GENERAL SYNOD OF THE UNITED CHURCH OF CHRIST; MORMONS FOR EQUALITY; RECONSTRUCTIONIST RABBINICAL ASSOCIATION; RECONSTRUCTIONIST RABBINICAL COLLEGE, ET AL.. Certificate of Service:06/16/2014. (JST)

06/16/2014 146
1 pg, 34.27 KB

AMICUS APPEARANCE filed for OUTSERVE-SLDN and The American Military Partner Association by Christopher D. Man. Certificate of Service: 06/16/2014. (CDM)

06/16/2014 147

AMICUS BRIEF filed by OUTSERVE-SLDN and The American Military

36 pg, 97.7 KB Partner Association. Certificate of Service:06/16/2014. (CDM)

06/16/2014 148

AMICUS BRIEF filed by Chase Strangio for Leadership Conference on

49 pg, 485.52 KB Civil and Human Rights, American Civil Liberties Union, et al. Certificate

of Service:06/16/2014. (CS)

06/16/2014 149

Oral argument date set for 1:00 p.m. Wednesday, August 6, 2014. Notice

3 pg, 14.46 KB of argument sent to counsel on 06/16/2014. (MCP)

06/16/2014

150
57 pg, 409.48 KB

AMICUS APPEARANCE filed for NWLC, ERA, Gender Just., Legal Momentum, Legal Voice, Mich. Ass'n for Just., Nat'l Ass'n of Wom. Lawyers, Nat'l P'ship for Wom. & Fam., SW Wom. L. Ctr., Wom. Lawyers Ass'n of Mich., WLP, Profs. of Law Associated with the Williams Inst. by Marcia D. Greenberger. Certificate of Service: 06/16/2014. (MDG)

06/16/2014 151
1 pg, 76.72 KB

AMICUS APPEARANCE filed for Columbia Law School Sexuality and Gender Law Clinic by Suzanne B. Goldberg. Certificate of Service: 06/16/2014. (SBG)

06/16/2014 152
34 pg, 99.37 KB

AMICUS BRIEF filed by Suzanne B. Goldberg on behalf of Columbia Law School Sexuality and Gender Law Clinic. Certificate of Service:06/16/2014. (SBG)

06/16/2014

153
57 pg, 409.48 KB

AMICUS BRIEF filed by Marcia D. Greenberger for NWLC, ERA, Gender Just., Legal Momentum, Legal Voice, Mich. Ass'n for Just., Nat'l Ass'n of Wom. Lawyers, Nat'l P'ship for Wom. & Fam., SW Wom. L. Ctr., Wom. Lawyers Ass'n of Mich., WLP, and Profs. of Law Assoc'd with Wms. Inst.. Certificate of Service:06/16/2014. (MDG)

06/16/2014 154

AMICUS BRIEF filed by Law Enforcement Officers and Organizations.

50 pg, 270.95 KB Certificate of Service:06/16/2014. (SAJ)

06/16/2014 155
2 pg, 312.8 KB

AMICUS APPEARANCE filed for Joan Heifetz Hollinger, Courtney Joslin, Sarah Abramowicz, Jamie Abrams and Fifty-two Other Family Law Professors by Sara Bartel. Certificate of Service: 06/16/2014. (SB)

06/16/2014 156

AMICUS BRIEF filed by Joan Heifetz Hollinger, Courtney Joslin, Sarah

48 pg, 467.35 KB Abramowicz, Jamie Abrams and Fifty-two Other Family Law Professors.

Certificate of Service:06/16/2014. (SB)

06/16/2014

157
35 pg, 734.31 KB

AMICUS BRIEF filed by Mr. Benjamin G. Shatz for Howard University School of Law Civil Rights Clinic, Gary J. Gates, Williams Institute and UCLA School of Law counsel for amicus curiae Prof. Gary J. Gates, Williams Institute, UCLA School of Law. Certificate of Service:06/16/2014. (BGS)

06/16/2014 158
0 pg, 0 KB

AMICUS APPEARANCE filed for Peter W. Bardaglio, et al. by Daniel McNeel Lane, Jr.. Certificate of Service: 06/16/2014. (COUNSEL TO REFILE UNDER OWN ECF ACCOUNT)--[Edited 06/17/2014 by CB] (JW)

06/16/2014 159
2 pg, 36.4 KB

AMICUS APPEARANCE filed for Peter W. Bardaglio, et al. by Jessica M. Weisel. Certificate of Service: 06/16/2014. (JW)

06/16/2014 160

AMICUS BRIEF filed by Jessica M. Weisel, for Peter W. Bardaglio, et al..

44 pg, 131.07 KB Certificate of Service:06/16/2014. (JW)

06/16/2014 161

AMICUS APPEARANCE filed for Peter W. Bardaglio, et al. by Matthew

2 pg, 36.42 KB E. Pepping. Certificate of Service: 06/16/2014. (MEP)

06/16/2014 162
1 pg, 286.19 KB

AMICUS APPEARANCE filed for Amicus Curiae Employers and Organizations Representing Employers by Michael L. Whitlock. Certificate of Service: 06/16/2014. (MLW)

06/16/2014 163

AMICUS BRIEF filed by Michael L. Whitlock for Employers and

106 pg, 4.26 MB Organizations Representing Employers. Certificate of Service:06/16/2014.

(MLW)

06/16/2014 164
1 pg, 22.59 KB

AMICUS APPEARANCE filed for Constitutional Law Scholars A Bhagwat L Bollinger E Chemerinsky W Dellinger M Dorf L Epstein D Farber B Friedman E Katz J Jeffries Jr. L Lessig W Marshall F Michelman J Schacter S Sherry G Stone D Strauss L Tribe & W Van Alstyne by Diane M Soubly - Corrected Appearance of Counsel. Certificate of Service: 06/16/2014. (DMS)

06/17/2014 165
9 pg, 74.4 KB

ORDER filed denying motion for cross filing of amicus briefs [89] filed by Mr. Kenneth Marc Mogill. Entered by order of the court. (CB)

06/17/2014 166

AMICUS APPEARANCE filed for Peter W. Bardaglio, et al. by Daniel

2 pg, 37.32 KB McNeel Lane, Jr.. Certificate of Service: 06/17/2014. (DML)

06/17/2014 167
1 pg, 56.98 KB

AMICUS APPEARANCE filed for Law Enforcement Officers and Organizations by Stephanie A. Joyce. Certificate of Service: 06/17/2014. (SAJ)

06/18/2014 168
1 pg, 73.31 KB

Oral argument acknowledgement filed by Attorney Ms. Carole Margaret Stanyar for Appellees April DeBoer and Jane Rowse. Certificate of Service: 06/18/2014. (CMS)

06/18/2014 169

AMICUS APPEARANCE filed for Anti-Defamation League, et al. by

1 pg, 77.04 KB Rocky C. Tsai. Certificate of Service: 06/18/2014. (RCT)

06/19/2014 170

Oral argument acknowledgement filed by Attorney Mr. Aaron D.

1 pg, 73.48 KB Lindstrom for Appellants Bill Schuette and Richard Snyder. Certificate of Service: 06/19/2014. (ADL)

06/23/2014 171
1 pg, 69.09 KB

APPEARANCE filed for Amicus Curiae Law Enforcement Officers and Organizations by Hunter T. Carter. Certificate of Service: 06/23/2014. (HTC)

06/23/2014 172
1 pg, 104.39 KB

AMICUS APPEARANCE filed for Amicus Curiae Law Enforcement Officers and Organizations by Joseph P. Bowser. Certificate of Service: 06/23/2014. (JPB)

06/26/2014 173

REPLY BRIEF filed by Attorney Mr. Aaron D. Lindstrom for Appellants

39 pg, 229.84 KB Bill Schuette and Richard Snyder. Certificate of Service:06/26/2014.

(ADL)

07/02/2014 174
7 pg, 35.18 KB

Errata to Brief of Amici Curiae Joan Heifetz Hollinger, Courtney Joslin, Sarah Abramowicz, Jamie Abrams, and Fifty-Two Other Family Law Professors in Support of Plaintiffs-Appellees and Affirmance filed 06/16/2014 by Ms. Sara Bartel for Courtney Joslin. Certificate of Service: 07/02/2014. (SB)

07/03/2014 175
1 pg, 78.3 KB

AMICUS APPEARANCE filed for Amicus Curiae Law Enforcement Officers and Organizations by G. David Carter. Certificate of Service: 07/03/2014. (GDC)

07/03/2014 176

Amicus MOTION filed by Mr. David Boyle for David Boyle for leave to

5 pg, 170.41 KB file an Amicus reply brief . Certificate of Service: 07/03/2014. (CB)

07/03/2014 177
0 pg, 0 KB

REPLY BRIEF filed by Attorney Mr. David Boyle for Amici Curiae David Boyle Copies:1. Certificate of Service:07/03/2014. (MOTION TO FILE DENIED 7/7/14)--[Edited 07/07/2014 by CB] (CB)

07/07/2014 178
11 pg, 36.05 KB

ORDER filed denying motion of Amicus David Boyle to file a Amicus reply brief [176] filed by Mr. David Boyle. Entered by order of the court. (CB)

07/08/2014 179

ORDER filed denying motion of Lisa Brown for leave to file a statement in

12 pg, 152.21 KB support of appellees [93] filed by Ms. Beth M. Rivers. Entered by order of

the court. (CB)

07/14/2014 180
20 pg, 166.1 KB

ORDER filed regarding protocol for oral arguments scheduled for August 6, 2014 in these cases . Entered by order of the court. [14-1341, 14-3057, 14-3464, 14-5291, 14-5297] (CB)

07/24/2014 181
1 pg, 49.04 KB

LETTER filed by Mr. Kenneth Marc Mogill for April DeBoer and Jane Rowse regarding courtroom seating. Certificate of Service: 07/24/2014. (KMM)

08/06/2014 182
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CAUSE ARGUED by Mr. Aaron D. Lindstrom for Appellants Bill Schuette and Richard Snyder, by Ms. Carole Margaret Stanyar for Appellees April DeBoer and Jane Rowse, before Daughtrey, Circuit Judge; Sutton, Circuit Judge and Cook, Circuit Judge. (MCP)

	  

 
 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0275p.06
UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

14-1341

┐

APRIL DEBOER, et al.,

│ │

Plaintiffs-Appellees, │

v.
RICHARD SNYDER, Governor, State of Michigan, in his official capacity, et al.,
Defendants-Appellants.

││>
│ │ │

│

14-3057

│

JAMES OBERGEFELL, et al.,

│

v.

Plaintiffs-Appellees,

│ │

│

RICHARD HODGES, Director of the Ohio Department │

of Health, in his official capacity,

│

Defendant-Appellant.

│ │

│

14-3464

│

BRITTANI HENRY, et al.,

│

Plaintiffs-Appellees,

│ │

v.

│

RICHARD HODGES, Director of the Ohio Department of Health, in his official capacity,
Defendant-Appellant.

│ │ │ │

│

14-5291

│

GREGORY BOURKE, et al.,

│

Plaintiffs-Appellees,

│ │

v.

│

STEVE BESHEAR, Governor, Commonwealth of Kentucky, in his official capacity,
Defendant-Appellant.

│ │ │ │

│

│

Nos. 14-1341; 3057; 3464; 5291; 5297; 5818

1

Nos. 14-1341/ 3057/ 3464/ 5291/ 5297/ 5818 DeBoer v. Snyder

Page 2

14-5297

│

VALERIA TANCO, et al.,

│ │

Plaintiffs-Appellees, │

v.

│ │

WILLIAM EDWARD “BILL” HASLAM, Governor, State │

of Tennessee, in his official capacity, et al.,

│

Defendants-Appellants. │ │

14-5818

│

TIMOTHY LOVE, et al.,

│ │

Plaintiffs/Intervenors-Appellees, │

v.

│ │

STEVE BESHEAR, Governor, Commonwealth of

│

Kentucky, in his official capacity,

│

Defendant-Appellant. │ ┘

14-1341 Appeal from the United States District Court for the Eastern District of Michigan at Detroit; No. 2:12-cv-10285—Bernard A. Friedman, District Judge.
14-3057 & 14-3464 Appeals from the United States District Court for the Southern District of Ohio at Cincinnati; Nos. 1:13-cv-00501 & 1:14-cv-00129—Timothy S. Black, District Judge.
14-5291 & 14-5818 Appeals from the United States District Court for the Western District of Kentucky at Louisville; No. 3:13-cv-00750—John G. Heyburn II, District Judge.

14-5297 Appeal from the United States District Court for the Middle District of Tennessee at Nashville; No. 3:13-cv-01159—Aleta Arthur Trauger, District Judge.

Argued: August 6, 2014

Decided and Filed: November 6, 2014

Before: DAUGHTREY, SUTTON and COOK, Circuit Judges.

Nos. 14-1341/ 3057/ 3464/ 5291/ 5297/ 5818 DeBoer v. Snyder

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_________________
COUNSEL
ARGUED: Aaron D. Lindstrom, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant in 14-1341. Carole M. Stanyar, Ann Arbor, Michigan, for Appellees in 14-1341. Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant in 14-3057 and 14-3464. Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for Appellees in 14-3057 and 143464. Leigh Gross Latherow, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant in 14-5291 and 14-5818. Laura E. Landenwich, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, for Appellees in 14-5291 and 145818. Joseph F. Whalen, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants in 14-5297. William L. Harbison, SHERRARD & ROE, PLC, Nashville, Tennessee, for Appellees in 14-5297. ON BRIEF: 14-1341: Aaron D. Lindstrom, Kristin M. Heyse, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Carole M. Stanyar, Ann Arbor, Michigan, Dana M. Nessel, Detroit, Michigan, Robert A. Sedler, WAYNE STATE UNIVERSITY LAW SCHOOL, Detroit, Michigan, Kenneth M. Mogill, MOGILL, POSNER & COHEN, Lake Orion, Michigan, for Appellees. Kyle J. Bristow, BRISTOW LAW, PLLC, Clarkston, Michigan, Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, David A. Robinson, North Haven, Connecticut, Deborah J. Dewart, Swansboro, North Carolina, Paul Benjamin Linton, Northbrook, Illinois, James R. Wierenga, DAVID & WIERENGA, P.C., Grand Rapids, Michigan, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., James J. Walsh, Thomas J. Rheaume, Jr., BODMAN PLC, Detroit, Michigan, William J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, Lawrence J. Joseph, Washington, D.C., Thomas M. Fisher, OFFICE OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, Mary E. McAlister, LIBERTY COUNSEL, Lynchburg, Virginia, Mathew D. Staver, Anita L. Staver, LIBERTY COUNSEL, Orlando, Florida, Anthony R. Picarello, Jr., Jeffrey Hunter Moon, Michael F. Moses, U.S. CONFERENCE OF CATHOLIC BISHOPS, Washington, D.C., Alexander Dushku, R. Shawn Gunnarson, KIRTON MCCONKIE, Salt Lake City, Utah, Erin Elizabeth Mersino, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, David Boyle, Long Beach, California, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Jason Walta, NATIONAL EDUCATION ASSOCIATION, Washington, D.C., Diana Raimi, JAFFE RAITT HEUER & WEISS, P.C., Ann Arbor, Michigan, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Alan M. Gershel, THOMAS M. COOLEY LAW SCHOOL, Auburn Hills, Michigan, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Nicholas M. O’Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan,

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Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Jonathan B. Miller, OFFICE OF THE MASSACHUSETTS ATTORNEY GENERAL, Boston, Massachusetts, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Chase B. Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., for Amici Curiae. 14-3057: Bridget E. Coontz, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Jacklyn Gonzales Martin, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, Chase B. Strangio, James D. Esseks, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Drew Dennis, ACLU OF OHIO, INC., Cleveland, Ohio, for Appellees. Byron J. Babione, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Lawrence J. Joseph, Washington, D.C., Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Gregory R. Nevins, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Atlanta, Georgia, Susan L. Sommer, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., New York, New York, Camilla B. Taylor, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Chicago, Illinois, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Roberta A. Kaplan, Jaren Janghorbani, Joshua D. Kaye, Jacob H. Hupart, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New York, Thomas D. Warren, BAKER & HOSTETLER LLP, Cleveland, Ohio, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., Shannon P. Minter, Christopher F. Stoll, NATIONAL CENTER FOR LESBIAN RIGHTS, Washington, D.C., for Amici Curiae. 14-3464: Eric E. Murphy, Bridget E. Coontz, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Jacklyn Gonzales Martin, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, Susan L. Sommer, M. Currey Cook, Keith Hammeran, LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC., New York, New York, Paul D. Castillo, LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC., Dallas, Texas, for Appellees. Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Sean R. Gallagher, POLSINELLI PC,

Nos. 14-1341/ 3057/ 3464/ 5291/ 5297/ 5818 DeBoer v. Snyder

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Denver, Colorado, Nicholas M. O’Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Paul D. Ritter, Jr., Christopher J. Weber, Robert G. Schuler, KEGLER, BROWN, HILL & RITTER CO., L.P.A., Columbus, Ohio, Lawrence J. Joseph, Washington, D.C., Harlan D. Karp, Tina R. Haddad, Cleveland, Ohio, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Joseph R. Guerra, SIDLEY AUSTIN LLP, Washington, D.C., Emma L. Dill, BRYAN CAVE LLP, San Francisco, California, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, G. David Carter, Joseph P. Bowser, Hunter T. Carter, ARENT FOX LLP, Washington, D.C., Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Harlan D. Karp, Cleveland, Ohio, for Amici Curiae. 14-5291: Leigh Gross Latherow, William H. Jones, Jr., Gregory L. Monge, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant. Laura E. Landenwich, Daniel J. Canon, L. Joe Dunman, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, Shannon R. Fauver, Dawn R. Elliott, FAUVER LAW OFFICE, PLLC, Louisville, Kentucky, for Appellees. David A. Robinson, North Haven, Connecticut, Deborah J. Dewart, Swansboro, North Carolina, Stanton L. Cave, LAW OFFICE OF STAN CAVE, Lexington, Kentucky, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., David Boyle, Long Beach, California, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Andrew J. Davis, FOLGER, LEVIN LLP, San Francisco, California, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Nicholas M. O’Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Suzanne B. Goldberg,

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COLUMBIA LAW SCHOOL, New York, New York, Joshua A. Block, Chase Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., for Amici Curiae. 14-5297: Joseph F. Whalen, Martha A. Campbell, Kevin G. Steiling, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. William L. Harbison, Phillip F. Cramer, J. Scott Hickman, John L. Farringer, SHERRARD & ROE, PLC, Nashville, Tennessee, Abby R. Rubenfeld, RUBENFELD LAW OFFICE, PC, Nashville, Tennessee, Maureen T. Holland, HOLLAND AND ASSOCIATES, PLLC, Memphis, Tennessee, Regina M. Lambert, Knoxville, Tennessee, Shannon P. Minter, Christopher F. Stoll, Amy Whelan, Asaf Orr, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California, for Appellees. Deborah J. Dewart, Swansboro, North Carolina, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., Byron J. Babione, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Nicholas M. O’Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Barbara J. Chisholm, P. Casey Pitts, ALTSHULER BERZON LLP, San Francisco, California, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Joshua A. Block, Chase B. Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN

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GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, for Amici Curiae. 14-5818: Leigh Gross Latherow, William H. Jones, Jr., Gregory L. Monge, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant. Laura E. Landenwich, Daniel J. Canon, L. Joe Dunman, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, for Appellees. Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, for Amicus Curiae.
SUTTON, J., delivered the opinion of the court, in which COOK, J., joined. DAUGHTREY, J. (pp. 43–64), delivered a separate dissenting opinion.
_________________

OPINION _________________

SUTTON, Circuit Judge. This is a case about change—and how best to handle it under the United States Constitution. From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen. That would not have seemed likely as recently as a dozen years ago. For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world.
But things change, sometimes quickly. Since 2003, nineteen States and the District of Columbia have expanded the definition of marriage to include gay couples, some through state legislation, some through initiatives of the people, some through state court decisions, and some through the actions of state governors and attorneys general who opted not to appeal adverse court decisions. Nor does this momentum show any signs of slowing. Twelve of the nineteen States that now recognize gay marriage did so in the last couple of years. On top of that, four federal courts of appeals have compelled several other States to permit same-sex marriages under the Fourteenth Amendment.

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What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, libertyassuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.
Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?
Through a mixture of common law decisions, statutes, and constitutional provisions, each State in the Sixth Circuit has long adhered to the traditional definition of marriage. Sixteen gay and lesbian couples claim that this definition violates their rights under the Fourteenth Amendment. The circumstances that gave rise to the challenges vary. Some involve a birth, others a death. Some involve concerns about property, taxes, and insurance, others death certificates and rights to visit a partner or partner’s child in the hospital. Some involve a couple’s effort to obtain a marriage license within their State, others an effort to achieve recognition of a marriage solemnized in another State. All seek dignity and respect, the same dignity and respect given to marriages between opposite-sex couples. And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?

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I.
Michigan. One case comes from Michigan, where state law has defined marriage as a relationship between a man and a woman since its territorial days. See An Act Regulating Marriages § 1 (1820), in 1 Laws of the Territory of Michigan 646, 646 (1871). The State reaffirmed this view in 1996 when it enacted a law that declared marriage “inherently a unique relationship between a man and a woman.” Mich. Comp. Laws § 551.1. In 2004, after the Massachusetts Supreme Judicial Court invalidated the Commonwealth’s prohibition on same-sex marriage, Goodridge v. Dep’t of Pub. Health , 798 N.E.2d 941 (Mass. 2003), nearly fifty-nine percent of Michigan voters opted to constitutionalize the State’s definition of marriage. “To secure and preserve the benefits of marriage for our society and for future generations of children,” the amendment says, “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” Mich. Const. art. I, § 25.
April DeBoer and Jayne Rowse, a lesbian couple living in Michigan, challenge the constitutionality of this definition. Marriage was not their first objective. DeBoer and Rowse each had adopted children as single parents, and both wanted to serve as adoptive parents for the other partner’s children. Their initial complaint alleged that Michigan’s adoption laws violated the Equal Protection Clause of the Fourteenth Amendment. The State moved to dismiss the lawsuit for lack of standing, and the district court tentatively agreed. Rather than dismissing the action, the court “invit[ed the] plaintiffs to seek leave to amend their complaint to . . . challenge” Michigan’s laws denying them a marriage license. DeBoer R. 151 at 3. DeBoer and Rowse accepted the invitation and filed a new complaint alleging that Michigan’s marriage laws violated the due process and equal protection guarantees of the Fourteenth Amendment.
Both sets of parties moved for summary judgment. The district court concluded that the dispute raised “a triable issue of fact” over whether the “rationales” for the Michigan laws furthered “a legitimate state interest,” and it held a nine-day trial on the issue. DeBoer R. 89 at 4, 8. The plaintiffs’ experts testified that same-sex couples raise children as well as opposite-sex couples, and that denying marriage to same-sex couples creates instabilities for their children and families. The defendants’ experts testified that the evidence regarding the comparative success of children raised in same-sex households is inconclusive. The district court sided with the

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plaintiffs. It rejected all of the State’s bases for its marriage laws and concluded that the laws failed to satisfy rational basis review.
Kentucky. Two cases challenge two aspects of Kentucky’s marriage laws. Early on, Kentucky defined marriage as “the union of a man and a woman.” Jones v. Hallahan , 501 S.W.2d 588, 589 (Ky. 1973); see An Act for Regulating the Solemnization of Marriages § 1, 1798 Ky. Acts 49, 49–50. In 1998, the Kentucky legislature codified the common law definition. The statute says that “‘marriage’ refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.” Ky. Rev. Stat. § 402.005. In 2004, the Kentucky legislature proposed a constitutional amendment providing that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.” Ky. Const. § 233A. Seventy-four percent of the voters approved the amendment.
Two groups of plaintiffs challenge these Kentucky laws. One group, the fortuitously named Love plaintiffs, challenges the Commonwealth’s marriage-licensing law. Two couples filed that lawsuit: Timothy Love and Lawrence Ysunza, along with Maurice Blanchard and Dominique James. Both couples claim that the Fourteenth Amendment prohibits Kentucky from denying them marriage licenses.
The other group, the Bourke plaintiffs, challenges the ban on recognizing out-of-state same-sex marriages. Four same-sex couples filed the lawsuit: Gregory Bourke and Michael DeLeon; Jimmy Meade and Luther Barlowe; Randell Johnson and Paul Campion; and Kimberly Franklin and Tamera Boyd. All four couples were married outside Kentucky, and they contend that the State’s recognition ban violates their due process and equal protection rights. Citing the hardships imposed on them by the recognition ban—loss of tax breaks, exclusion from intestacy laws, loss of dignity—they seek to enjoin its enforcement.
The district court ruled for the plaintiffs in both cases. In Love, the court held that the Commonwealth could not justify its definition of marriage on rational basis grounds. It also thought that classifications based on sexual orientation should be subjected to intermediate

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scrutiny, which the Commonwealth also failed to satisfy. In Bourke, the court invalidated the recognition ban on rational basis grounds.
Ohio. Two cases challenge Ohio’s refusal to recognize out-of-state same-sex marriages. Ohio also has long adhered to the traditional definition of marriage. See An Act Regulating Marriages § 1, 1803 Ohio Laws 31, 31; Carmichael v. State , 12 Ohio St. 553, 560 (1861). It reaffirmed this definition in 2004, when the legislature passed a Defense of Marriage Act, which says that marriage “may only be entered into by one man and one woman.” Ohio Rev. Code § 3101.01(A). “Any marriage entered into by persons of the same sex in any other jurisdiction,” it adds, “shall be considered and treated in all respects as having no legal force or effect.” Id. § 3101.01(C)(2). Later that same year, sixty-two percent of Ohio voters approved an amendment to the Ohio Constitution along the same lines. As amended, the Ohio Constitution says that Ohio recognizes only “a union between one man and one woman” as a valid marriage. Ohio Const. art. XV, § 11.
Two groups of plaintiffs challenge these Ohio laws. The first group, the Obergefell plaintiffs, focuses on one application of the law. They argue that Ohio’s refusal to recognize their out-of-state marriages on Ohio-issued death certificates violates due process and equal protection. Two same-sex couples in long-term, committed relationships filed the lawsuit: James Obergefell and John Arthur; and David Michener and William Herbert Ives. All four of them are from Ohio and were married in other States. When Arthur and Ives died, the State would not list Obergefell and Michener as spouses on their death certificates. Obergefell and Michener sought an injunction to require the State to list them as spouses on the certificates. Robert Grunn, a funeral director, joined the lawsuit, asking the court to protect his right to recognize same-sex marriages on other death certificates.
The second group, the Henry plaintiffs, raises a broader challenge. They argue that Ohio’s refusal to recognize out-of-state marriages between same-sex couples violates the Fourteenth Amendment no matter what marital benefit is affected. The Henry case involves four same-sex couples, all married in other States, who want Ohio to recognize their marriages on their children’s birth certificates. Three of the couples (Brittani Henry and Brittni Rogers; Nicole and Pam Yorksmith; Kelly Noe and Kelly McCracken) gave birth to children in Ohio and wish to have both of their names listed on each child’s birth certificate rather than just the child’s

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biological mother. The fourth couple (Joseph Vitale and Robert Talmas) lives in New York and adopted a child born in Ohio. They seek to amend their son’s Ohio birth certificate so that it lists both of them as parents.
The district court granted the plaintiffs relief in both cases. In Obergefell, the court concluded that the Fourteenth Amendment protects a fundamental right to keep existing marital relationships intact, and that the State failed to justify its law under heightened scrutiny. The court likewise concluded that classifications based on sexual orientation deserve heightened scrutiny under equal protection, and that Ohio failed to justify its refusal to recognize the couples’ existing marriages. Even under rational basis review, the court added, the State came up short. In Henry, the district court reached many of the same conclusions and expanded its recognition remedy to encompass all married same-sex couples and all legal incidents of marriage under Ohio law.
Tennessee. The Tennessee case is of a piece with the two Ohio cases and one of the Kentucky cases, as it too challenges the State’s same-sex-marriage recognition ban. Tennessee has always defined marriage in traditional terms. See An Act Concerning Marriages § 3 (1741), in Public A cts of the G eneral Assembly of North-Carolina and Tennessee 46, 46 (1815). In 1996, the Tennessee legislature reaffirmed “that the historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage.” Tenn. Code Ann. § 36-3-113(a). In 2006, the State amended its constitution to incorporate the existing definition of marriage. See Tenn. Const. art. XI, § 18. Eighty percent of the voters supported the amendment.
Three same-sex couples, all in committed relationships, challenge the recognition ban: Valeria Tanco and Sophy Jesty; Ijpe DeKoe and Thomas Kostura; and Johno Espejo and Matthew Mansell. All three couples were legally married in other States. The district court preliminarily enjoined the law. Relying on district court decisions within the circuit and elsewhere, the court concluded that the couples likely would show that Tennessee’s ban failed to satisfy rational basis review. The remaining preliminary injunction factors, the court held, also weighed in the plaintiffs’ favor.

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All four States appealed the decisions against them.
II.
Does the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment require States to expand the definition of marriage to include same-sex couples? The Michigan appeal (DeBoer) presents this threshold question, and so does one of the Kentucky appeals (Love). Caselaw offers many ways to think about the issue.
A.
Perspective of an in termediate co urt. Start with a recognition of our place in the hierarchy of the federal courts. As an “inferior” court (the Constitution’s preferred term, not ours), a federal court of appeals begins by asking what the Supreme Court’s precedents require on the topic at hand. Just such a precedent confronts us.
In the early 1970s, a Methodist minister married Richard Baker and James McConnell in Minnesota. Afterwards, they sought a marriage license from the State. When the clerk of the state court denied the request, the couple filed a lawsuit claiming that the denial of their request violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971). The Minnesota Supreme Court rejected both claims. As for the due process claim, the state court reasoned: “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. . . . This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause . . . is not a charter for restructuring it by judicial legislation.” Id. As for the equal protection claim, the court reasoned: “[T]he state’s classification of persons authorized to marry” does not create an “irrational or invidious discrimination. . . . [T]hat the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate . . . [creates only a] theoretically imperfect [classification] . . . [and] ‘abstract symmetry’ is not demanded by the Fourteenth Amendment.” Id. at 187. The Supreme Court’s decision four years earlier in Loving v. Virginia, 388 U.S. 1 (1967), which invalidated Virginia’s ban on interracial marriages, did not change this conclusion. “[I]n commonsense and in a constitutional sense,” the state court

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explained, “there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Baker, 191 N.W.2d at 187.
Baker and McConnell appealed to the United States Supreme Court. The Court rejected their challenge, issuing a one-line order stating that the appeal did not raise “a substantial federal question.” Baker v. Nelson, 409 U.S. 810, 810 (1972). This type of summary decision, it is true, does not bind the Supreme Court in later cases. But it does confine lower federal courts in later cases. It matters not whether we think the decision was right in its time, remains right today, or will be followed by the Court in the future. Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions “until such time as the Court informs [us] that [we] are not.” Hicks v. Miranda, 422 U.S. 332, 345 (1975) (internal quotation marks omitted). The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.
But that was then; this is now. And now, claimants insist, must account for United States v. Windsor, 133 S. Ct. 2675 (2013), which invalidated the Defense of Marriage Act of 1996, a law that refused for purposes of federal statutory benefits to respect gay marriages authorized by state law. Yet Windsor does not answer today’s question. The decision never mentions Baker, much less overrules it. And the outcomes of the cases do not clash. Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it. To respect one decision does not slight the other. Nor does Windsor’s reasoning clash with Baker. Windsor hinges on the Defense of Marriage Act’s unprecedented intrusion into the States’ authority over domestic relations. Id. at 2691–92. Before the Act’s passage in 1996, the federal government had traditionally relied on state definitions of marriage instead of purporting to define marriage itself. Id. at 2691. That premise does not work—it runs the other way—in a case involving a challenge in federal court to state laws defining marriage. The point of Windsor was to prevent the Federal Government from “divest[ing]” gay couples of “a dignity and status of immense import” that New York’s extension of the definition of marriage gave them, an extension that “without doubt” any State could provide. Id. at 2692, 2695. Windsor made explicit that it does not answer today’s question, telling us that the “opinion and its holding are confined to . . . lawful

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marriages” already protected by some of the States. Id. at 2696. Bringing the matter to a close, the Court held minutes after releasing Windsor that procedural obstacles in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), prevented it from considering the validity of state marriage laws. Saying that the Court declined in Hollingsworth to overrule Baker openly but decided in Windsor to overrule it by stealth makes an unflattering and unfair estimate of the Justices’ candor.
Even if Windsor did not overrule Baker by name, the claimants point out, lower courts still may rely on “doctrinal developments” in the aftermath of a summary disposition as a ground for not following the decision. Hicks, 422 U.S. at 344. And Windsor, they say, together with Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996), permit us to cast Baker aside. But this reading of “doctrinal developments” would be a groundbreaking development of its own. From the perspective of a lower court, summary dispositions remain “controlling precedent, unless and until re-examined by [the Supreme] Court.” Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976); see Hicks, 422 U.S. at 343–45. And the Court has told us to treat the two types of decisions, whether summary dispositions or full-merits decisions, the same, “prevent[ing] lower courts” in both settings “from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley , 432 U.S. 173, 176 (1977). Lest doubt remain, the Court has also told us not to ignore its decisions even when they are in tension with a new line of cases. “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see Agostini v. Felton, 521 U.S. 203, 237 (1997).
Just two scenarios, then, permit us to ignore a Supreme Court decision, whatever its form: when the Court has overruled the decision by name (if, say, Windsor had directly overruled Baker) or when the Court has overruled the decision by outcome (if, say, Hollingsworth had invalidated the California law without mentioning Baker). Any other approach returns us to a world in which the lower courts may anticipatorily overrule all manner of Supreme Court decisions based on counting-to-five predictions, perceived trajectories in the caselaw, or, worst of all, new appointments to the Court. In the end, neither of the two preconditions for ignoring Supreme Court precedent applies here. Windsor as shown does not

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mention Baker, and it clarifies that its “opinion and holding” do not govern the States’ authority to define marriage. Hollingsworth was dismissed. And neither Lawrence nor Romer mentions Baker, and neither is inconsistent with its outcome. The one invalidates a State’s criminal antisodomy law and explains that the case “does not involve . . . formal recognition” of same-sex relationships. Lawrence, 539 U.S. at 578. The other invalidates a “[s]weeping” and “unprecedented” state law that prohibited local communities from passing laws that protect citizens from discrimination based on sexual orientation. Romer, 517 U.S. at 627, 633, 635–36.
That brings us to another one-line order. On October 6, 2014, the Supreme Court “denied” the “petitions for writs of certiorari” in 1,575 cases, seven of which arose from challenges to decisions of the Fourth, Seventh, and Tenth Circuits that recognized a constitutional right to same-sex marriage. But this kind of action (or inaction) “imports no expression of opinion upon the merits of the case, as the bar has been told many times.” United States v. Carver , 260 U.S. 482, 490 (1923). “The ‘variety of considerations [that] underlie denials of the writ’ counsels against according denials of certiorari any precedential value.” Teague v. Lane , 489 U.S. 288, 296 (1989) (internal citation omitted). Just as the Court’s three decisions to stay those same court of appeals decisions over the past year, all without a registered dissent, did not end the debate on this issue, so too the Court’s decision to deny certiorari in all of these appeals, all without a registered dissent, does not end the debate either. A decision not to decide is a decision not to decide.
But don’t these denials of certiorari signal that, from the Court’s perspective, the right to same-sex marriage is inevitable? Maybe; maybe not. Even if we grant the premise and assume that same-sex marriage will be recognized one day in all fifty States, that does not tell us how— whether through the courts or through democracy. And, if through the courts, that does not tell us why—whether through one theory of constitutional invalidity or another. Four courts of appeals thus far have recognized a constitutional right to same-sex marriage. They agree on one thing: the result. But they reach that outcome in many ways, often more than one way in the same decision. See Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) (fundamental rights); Baskin v. Bogan , 766 F.3d 648 (7th Cir. 2014) (rational basis, animus); Latta v. Otter , No. 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7, 2014) (animus, fundamental rights, suspect classification); Bishop v. Smith , 760 F.3d 1070 (10th Cir. 2014) (fundamental rights); Kitchen v. Herbert ,

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755 F.3d 1193 (10th Cir. 2014) (same). The Court’s certiorari denials tell us nothing about the democracy-versus-litigation path to same-sex marriage, and they tell us nothing about the validity of any of these theories. If a federal court denies the people suffrage over an issue long thought to be within their power, they deserve an explanation. We, for our part, cannot find one, as several other judges have concluded as well. See Bostic, 760 F.3d at 385–98 (Niemeyer, J., dissenting); Kitchen, 755 F.3d at 1230–40 (Kelly, J., concurring in part and dissenting in part); Conde-Vidal v. Garcia-Padilla , No. 14-1253-PG, 2014 WL 5361987 (D.P.R. Oct. 21, 2014); Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014).
There are many ways, as these lower court decisions confirm, to look at this question: originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning. The parties in one way or another have invoked them all. Not one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.
B.
Original meaning. All Justices, past and present, start their assessment of a case about the meaning of a constitutional provision by looking at how the provision was understood by the people who ratified it. If we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm of constitutional interpretation—that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly—to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur—unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so. See U.S. Const. art. V. If American lawyers in all manner of settings still invoke the original meaning of Magna Carta, a Charter for England in 1215, surely it is not too much to ask that they (and we) take seriously the original meaning of the United States Constitution, a Charter for this country in 1789. Any other approach, too

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lightly followed, converts federal judges from interpreters of the document into newly commissioned authors of it.
Many precedents gauging individual rights and national power, leading to all manner of outcomes, confirm the import of original meaning in legal debates. See, e.g. , Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173–80 (1803); McCulloch v. Ma ryland, 17 U.S. (4 Wheat.) 316, 401–25 (1819); Legal Tender C ases, 79 U.S. 457, 536–38 (1870); Myers v. United States , 272 U.S. 52, 110–39 (1926); INS v. Chadha , 462 U.S. 919, 944–59 (1983); Plaut v. Spendthrift Farm, Inc. , 514 U.S. 211, 218–25 (1995); Washington v. Glucksburg , 521 U.S. 702, 710–19 (1997); Crawford v. Washington, 541 U.S. 36, 42–50 (2004); Boumediene v. Bush, 553 U.S. 723, 739–46 (2008); Giles v. California, 554 U.S. 353, 358–61 (2008); District of Columbia v. Heller, 554 U.S. 570, 576–600 (2008).
In trying to figure out the original meaning of a provision, it is fair to say, the line between interpretation and evolution blurs from time to time. That is an occupational hazard for judges when it comes to old or generally worded provisions. Yet that knotty problem does not confront us. Yes, the Fourteenth Amendment is old; the people ratified it in 1868. And yes, it is generally worded; it says: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.
Tradition reinforces the point. Only months ago, the Supreme Court confirmed the significance of long-accepted usage in constitutional interpretation. In one case, the Court held that the customary practice of opening legislative meetings with prayer alone proves the constitutional permissibility of legislative prayer, quite apart from how that practice might fare under the most up-to-date Establishment Clause test. Town of Greece v. Galloway , 134 S. Ct. 1811, 1818–20 (2014). In another case, the Court interpreted the Recess Appointments Clause based in part on long-accepted usage. NLRB v. Noel Canning, 134 S. Ct. 2550, 2559–60 (2014). Applied here, this approach permits today’s marriage laws to stand until the democratic processes say they should stand no more. From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning that the Fourteenth Amendment permits, though it does not require, States to define marriage in that way.

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C.
Rational basis review. Doctrine leads to the same place as history. A first requirement of any law, whether under the Due Process or Equal Protection Clause, is that it rationally advance a legitimate government policy. Vance v. B radley, 440 U.S. 93, 97 (1979). Two words (“judicial restraint,” FCC v. Beach Commc’ns, Inc. , 508 U.S. 307, 314 (1993)) and one principle (trust in the people that “even improvident decisions will eventually be rectified by the democratic process,” Vance, 440 U.S. at 97) tell us all we need to know about the light touch judges should use in reviewing laws under this standard. So long as judges can conceive of some “plausible” reason for the law—any plausible reason, even one that did not motivate the legislators who enacted it—the law must stand, no matter how unfair, unjust, or unwise the judges may consider it as citizens. Heller v. Doe, 509 U.S. 312, 330 (1993); Nordlinger v. Hahn, 505 U.S. 1, 11, 17–18 (1992).
A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States. Hesitant, yes; but still a rational basis, some rational basis, must exist for the definition. What is it? Two at a minimum suffice to meet this low bar. One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.
Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way

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to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means. People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues. Dandridge v. Williams, 397 U.S. 471, 486–87 (1970).
No doubt, that is not the only way people view marriage today. Over time, marriage has come to serve another value—to solemnize relationships characterized by love, affection, and commitment. Gay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment. All of this supports the policy argument made by many that marriage laws should be extended to gay couples, just as nineteen States have done through their own sovereign powers. Yet it does not show that the States, circa 2014, suddenly must look at this policy issue in just one way on pain of violating the Constitution.
The signature feature of rational basis review is that governments will not be placed in the dock for doing too much or for doing too little in addressing a policy question. Id. In a modern sense, crystallized at some point in the last ten years, many people now critique state marriage laws for doing too little—for being underinclusive by failing to extend the definition of marriage to gay couples. Fair enough. But rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges, even a better way supported by evidence and, in the Michigan case, by judicial factfinding. If legislative choices may rest on “rational speculation unsupported by evidence or empirical data,” Beach Commc’ns , 508 U.S. at 315, it is hard to see the point of premising a ruling of unconstitutionality on factual findings made by one unelected federal judge that favor a different policy. Rational basis review does not empower federal courts to “subject” legislative line-

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drawing to “courtroom” factfinding designed to show that legislatures have done too much or too little. Id.
What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.
To take another rational explanation for the decision of many States not to expand the definition of marriage, a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries. That is not preserving tradition for its own sake. No one here claims that the States’ original definition of marriage was unconstitutional when enacted. The plaintiffs’ claim is that the States have acted irrationally in standing by the traditional definition in the face of changing social mores. Yet one of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time. As a matter of state law, the possibility of gay marriage became real in 2003 with the Massachusetts Supreme Judicial Court’s decision in Goodridge. Eleven years later, the clock has not run on assessing the benefits and burdens of expanding the definition of marriage. Eleven years indeed is not even the right timeline. The fair question is whether in 2004, one year after Goodridge, Michigan voters could stand by the traditional definition of marriage. How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage? A State still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere. Even today, the only thing anyone knows for sure about the long-term impact of redefining marriage is that they do not know. A Burkean sense of caution does not violate the Fourteenth Amendment, least of all when measured by a timeline less than a

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dozen years long and when assessed by a system of government designed to foster step-by-step, not sudden winner-take-all, innovations to policy problems.
In accepting these justifications for the four States’ marriage laws, we do not deny the foolish, sometimes offensive, inconsistencies that have haunted marital legislation from time to time. States will hand some people a marriage license no matter how often they have divorced or remarried, apparently on the theory that practice makes perfect. States will not even prevent an individual from remarrying the same person three or four times, where practice no longer seems to be the issue. With love and commitment nowhere to be seen, States will grant a marriage license to two friends who wish to share in the tax and other material benefits of marriage, at least until the State’s no-fault divorce laws allow them to exit the partnership freely. And States allow couples to continue procreating no matter how little stability, safety, and love they provide the children they already have. Nor has unjustified sanctimony stayed off the stage when it comes to marital legislation—with monogamists who “do not monog” criticizing alleged polygamists who “do not polyg.” See Paul B. Beers, Pennsylvania Politics Today and Yesterday 51 (1980).
How, the claimants ask, could anyone possibly be unworthy of this civil institution? Aren’t gay and straight couples both capable of honoring this civil institution in some cases and of messing it up in others? All of this, however, proves much too much. History is replete with examples of love, sex, and marriage tainted by hypocrisy. Without it, half of the world’s literature, and three-quarters of its woe, would disappear. Throughout, we have never leveraged these inconsistencies about deeply personal, sometimes existential, views of marriage into a ground for constitutionalizing the field. Instead, we have allowed state democratic forces to fix the problems as they emerge and as evolving community mores show they should be fixed. Even if we think about today’s issue and today’s alleged inconsistencies solely from the perspective of the claimants in this case, it is difficult to call that formula, already coming to terms with a new view of marriage, a failure.
Any other approach would create line-drawing problems of its own. Consider how plaintiffs’ love-and-commitment definition of marriage would fare under their own rational basis test. Their definition does too much because it fails to account for the reality that no State in the country requires couples, whether gay or straight, to be in love. Their definition does too little

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because it fails to account for plural marriages, where there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point. What they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage. The predicament does not end there. No State is free of marriage policies that go too far in some directions and not far enough in others, making all of them vulnerable—if the claimants’ theory of rational basis review prevails.
Several cases illustrate just how seriously the federal courts must take the line-drawing deference owed the democratic process under rational basis review. Massachusetts Board of Retirement v. Murgia , 427 U.S. 307 (1976), holds that a State may require law enforcement officers to retire without exception at age fifty, in order to assure the physical fitness of its police force. If a rough correlation between age and strength suffices to uphold exception-free retirement ages (even though some fifty-year-olds swim/bike/run triathlons), why doesn’t a correlation between male-female intercourse and procreation suffice to uphold traditional marriage laws (even though some straight couples don’t have kids and many gay couples do)? Armour v. City of Indianapolis , 132 S. Ct. 2073 (2012), says that if a city cancels a tax, the bureaucratic hassle of issuing refunds entitles it to keep money already collected from citizens who paid early. If administrative convenience amounts to an adequate public purpose, why not a rough sense of social stability? More deferential still, Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552 (1947), concludes that a State’s interest in maintaining close ties among those who steer ships in its ports justifies denying pilotage licenses to anyone who isn’t a friend or relative of an incumbent pilot. Can we honestly say that traditional marriage laws involve more irrationality than nepotism?
The debate over marriage of course has another side, and we cannot deny the costs to the plaintiffs of allowing the States to work through this profound policy debate. The traditional definition of marriage denies gay couples the opportunity to publicly solemnize, to say nothing

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of subsidize, their relationships under state law. In addition to depriving them of this status, it deprives them of benefits that range from the profound (the right to visit someone in a hospital as a spouse or parent) to the mundane (the right to file joint tax returns). These harms affect not only gay couples but also their children. Do the benefits of standing by the traditional definition of marriage make up for these costs? The question demands an answer—but from elected legislators, not life-tenured judges. Our task under the Supreme Court’s precedents is to decide whether the law has some conceivable basis, not to gauge how that rationale stacks up against the arguments on the other side. Respect for democratic control over this traditional area of state expertise ensures that “a statewide deliberative process that enable[s] its citizens to discuss and weigh arguments for and against same-sex marriage” can have free and reasonable rein. Windsor, 133 S. Ct. at 2689.
D.
Animus. Given the broad deference owed the States under the democracy-reinforcing norms of rational basis review, the cases in which the Supreme Court has struck down a state law on that basis are few. When the Court has taken this step, it usually has been due to the novelty of the law and the targeting of a single group for disfavored treatment under it. In one case, a city enacted a new zoning code with the none-too-subtle purpose of closing down a home for the intellectually disabled in a neighborhood that apparently wanted nothing to do with them. The reality that the code applied only to homes for the intellectually disabled—and not to other dwellings such as fraternity houses—led the Court to invalidate the regulation on the ground that the city had based it upon “an irrational prejudice against the mentally retarded.” City o f Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 450 (1985). In another case, a statewide initiative denied gays, and gays alone, access to the protection of the State’s existing antidiscrimination laws. The novelty of the law, coupled with the distance between the reach of the law and any legitimate interest it might serve, showed that the law was “born of animosity toward” gays and suggested a design to make gays “unequal to everyone else.” Romer, 517 U.S. at 634–35.
None of the statewide initiatives at issue here fits this pattern. The four initiatives, enacted between 2004 and 2006, codified a long-existing, widely held social norm already reflected in state law. “[M]arriage between a man and a woman,” as the Court reminded us just

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last year, “had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” Windsor, 133 S. Ct. at 2689.
Neither was the decision to place the definition of marriage in a State’s constitution unusual, nor did it otherwise convey the kind of malice or unthinking prejudice the Constitution prohibits. Nineteen States did the same thing during that period. Human Rights Campaign Found., Equality from State to State 2006 , at 13–14 (2006), available at http://s3.amazonaws.com/hrc-assets//files/assets/resources/StateToState2007.pdf. And if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.
Who in retrospect can blame the voters for having this fear? By then, several state courts had altered their States’ traditional definitions of marriage under the States’ constitutions. Since then, more have done the same. Just as state judges have the authority to construe a state constitution as they see fit, so do the people have the right to overrule such decisions or preempt them as they see fit. Nor is there anything static about this process. In some States, the people have since re-amended their constitutions to broaden the category of those eligible to marry. In other States, the people seemed primed to do the same but for now have opted to take a waitand-see approach of their own as federal litigation proceeds. See, e.g., Wesley Lowery, SameSex Marriage Is Gaining Mome ntum, but Some Advocates Don’ t W ant I t on the Ballo t in Ohio, Wash. Post (June 14, 2014), http://www.washingtonpost.com/politics/same-sex-marriageis-gaining-momentum-but-ohio-advocates-dont-want-it-on-the-ballot/2014/06/14/a090452ae77e-11e3-afc6-a1dd9407abcf_story.html (explaining that Ohio same-sex marriage advocates opted not to place the question on the 2014 state ballot despite collecting nearly twice the number of required signatures). What the Court recently said about another statewide initiative that people care passionately about applies with equal vigor here: “Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Schuette v. Coal. to De fend Affirm ative Action , 134 S. Ct. 1623, 1638 (2014). “It is demeaning to the

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democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Id. at 1637.
What of the possibility that other motivations affected the amendment process in the four States? If assessing the motives of multimember legislatures is difficult, assessing the motives of all voters in a statewide initiative strains judicial competence. The number of people who supported each initiative—Michigan (2.7 million), Kentucky (1.2 million), Ohio (3.3 million), and Tennessee (1.4 million)—was large and surely diverse. In addition to the proper role of the courts in a democracy, many other factors presumably influenced the voters who supported and opposed these amendments: that some politicians favored the amendment and others opposed it; that some faith groups favored the amendment and others opposed it; that some thought the amendment would strengthen families and others thought it would weaken them or were not sure; that some thought the amendment would be good for children and others thought it would not be or were not sure; and that some thought the amendment would preserve a long-established definition of marriage and others thought it was time to accommodate gay couples. Even a rough sense of morality likely affected voters, with some thinking it immoral to exclude gay couples and others thinking the opposite. For most people, whether for or against the amendment, the truth of why they did what they did is assuredly complicated, making it impossible to pin down any one consideration, as opposed to a rough aggregation of factors, as motivating them. How in this setting can we indict the 2.7 million Michigan voters who supported the amendment in 2004, less than one year after the first state supreme court recognized a constitutional right to gay marriage, for favoring the amendment for prejudicial reasons and for prejudicial reasons alone? Any such conclusion cannot be squared with the benefit of the doubt customarily given voters and legislatures under rational basis review. Even the gay-rights community, remember, was not of one mind about taking on the benefits and burdens of marriage until the early 1990s. See George Chauncey, Why Marriage? The History Shaping Today’s Debate over Gay Equality 58, 88 (2004); Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage 48–52 (2013). A decade later, a State’s voters should not be taken to task for failing to be of one mind about the issue themselves.

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Some equanimity is in order in assessing the motives of voters who invoked a constitutionally respected vehicle for change and for resistance to change: direct democracy. See Pac. States Tel. & Tel. Co. v. Oregon , 223 U.S. 118, 151 (1912). Just as gay individuals are no longer abstractions, neither should we treat States as abstractions. Behind these initiatives were real people who teach our children, create our jobs, and defend our shores. Some of these people supported the initiative in 2004; some did not. It is no less unfair to paint the proponents of the measures as a monolithic group of hate-mongers than it is to paint the opponents as a monolithic group trying to undo American families. “Tolerance,” like respect and dignity, is best traveled on a “two-way street.” Ward v. Polite, 667 F.3d 727, 735 (6th Cir. 2012). If there is a dominant theme to the Court’s cases in this area, it is to end otherness, not to create new others.
All of this explains why the Court’s decisions in City of Cleburne and Romer do not turn on reading the minds of city voters in one case or of statewide initiative supporters in the other. They turn on asking whether anything but prejudice to the affected class could explain the law. See City of Cleburne, 473 U.S. at 450; Romer, 517 U.S. at 635. No such explanations existed in those cases. Plenty exist here, as shown above and as recognized by many others. See Lawrence, 539 U.S. at 585 (O’Connor, J., concurring in the judgment) (“Unlike the moral disapproval of same-sex relations[,] . . . other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”); Bishop, 760 F.3d at 1104–09 (Holmes, J., concurring) (same); Citizens for Equal Prot. v. Bruning , 455 F.3d 859, 868 (8th Cir. 2006) (enactment not “‘inexplicable by anything but animus’ towards same-sex couples”); Conaway v. Deane, 932 A.2d 571, 635 (Md. 2007) (no reason to “infer antipathy”); Hernandez v. Robles , 855 N.E.2d 1, 8 (N.Y. 2006) (those who favor the traditional definition are not “irrational, ignorant or bigoted”); Andersen v. King Cnty. , 138 P.3d 963, 981 (Wash. 2006) (en banc) (“the only reason” for the law was not “anti-gay sentiment”).
One other point. Even if we agreed with the claimants that the nature of these state constitutional amendments, and the debates surrounding them, required their invalidation on animus grounds, that would not give them what they request in their complaints: the right to same-sex marriage. All that the invalidation of the amendments would do is return state law to where it had always been, a status quo that in all four States included state statutory and common

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law definitions of marriage applicable to one man and one woman—definitions that no one claims were motivated by ill will. The elimination of the state constitutional provisions, it is true, would allow individuals to challenge the four States’ other marital laws on state constitutional grounds. No one filed such a challenge here, however.
E.
Fundamental right to marry. Under the Due Process Clause, courts apply more muscular review—“strict,” “rigorous,” usually unforgiving, scrutiny—to laws that impair “fundamental” rights. In considering the claimants’ arguments that they have a fundamental right to marry each other, we must keep in mind that something can be fundamentally important without being a fundamental right under the Constitution. Otherwise, state regulations of many deeply important subjects—from education to healthcare to living conditions to decisions about when to die— would be subject to unforgiving review. They are not. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (public education); Maher v. Roe , 432 U.S. 464, 469 (1977) (healthcare); Lindsey v. Normet , 405 U.S. 56, 73–74 (1972) (housing); Glucksberg, 521 U.S. at 728 (right to die). Instead, the question is whether our nation has treated the right as fundamental and therefore worthy of protection under substantive due process. More precisely, the test is whether the right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 721 (internal citations omitted). That requirement often is met by placing the right in the Constitution, most obviously in (most of) the guarantees in the Bill of Rights. See id. at 720. But the right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognizing a fundamental right to same-sex marriage does not exist.
That leaves the other option—that, even though a proposed right to same-sex marriage does not appear in the Constitution, it turns on bedrock assumptions about liberty. This too does not work. The first state high court to redefine marriage to include gay couples did not do so until 2003 in Goodridge.
Matters do not change because Loving v. Virginia , 388 U.S. 1 (1967), held that “marriage” amounts to a fundamental right. When the Court decided Loving, “marriage between

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a man and a woman no doubt [was] thought of . . . as essential to the very definition of that term.” Windsor, 133 S. Ct. at 2689. In referring to “marriage” rather than “opposite-sex marriage,” Loving confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples. Loving did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” 388 U.S. at 12, a reference to the procreative definition of marriage. Had a gay AfricanAmerican male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.
A similar problem confronts the claimants’ reliance on other decisions treating marriage as a fundamental right, whether in the context of a statute denying marriage licenses to fathers who could not pay child support, Zablocki v. Redhail, 434 U.S. 374, 383 (1978), or a regulation restricting prisoners’ ability to obtain marriage licenses, Turner v. Safley , 482 U.S. 78, 94–95 (1987). It strains credulity to believe that a year after each decision a gay indigent father could have required the State to grant him a marriage license for his partnership or that a gay prisoner could have required the State to permit him to marry a gay partner. When Loving and its progeny used the word marriage, they did not redefine the term but accepted its traditional meaning.
No doubt, many people, many States, even some dictionaries, now define marriage in a way that is untethered to biology. But that does not transform the fundamental-rights decision of Loving under the old definition into a constitutional right under the new definition. The question is whether the old reasoning applies to the new setting, not whether we can shoehorn new meanings into old words. Else, evolving-norm lexicographers would have a greater say over the meaning of the Constitution than judges.

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The upshot of fundamental-rights status, keep in mind, is strict-scrutiny status, subjecting all state eligibility rules for marriage to rigorous, usually unforgiving, review. That makes little sense with respect to the trials and errors societies historically have undertaken (and presumably will continue to undertake) in determining who may enter and leave a marriage. Start with the duration of a marriage. For some, marriage is a commitment for life and beyond. For others, it is a commitment for life. For still others, it is neither. In 1969, California enacted the first pure no-fault divorce statute. See Family Law Act of 1969, 1969 Cal. Stat. 3312. A dramatic expansion of similar laws followed. See Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. Rev. 79, 90. The Court has never subjected these policy fits and starts about who may leave a marriage to strict scrutiny.
Consider also the number of people eligible to marry. As late as the eighteenth century, “[t]he predominance of monogamy was by no means a foregone conclusion,” and “[m]ost of the peoples and cultures around the globe” had adopted a different system. Nancy F. Cott, Public Vows: A History of Marriage and the Nation 9 (2000). Over time, American officials wove monogamy into marriage’s fabric. Beginning in the nineteenth century, the federal government “encouraged or forced” Native Americans to adopt the policy, and in 1878 the Supreme Court upheld a federal antibigamy law. Id. at 26; see Reynolds v. United States , 98 U.S. 145 (1878). The Court has never taken this topic under its wing. And if it did, how would the constitutional, as opposed to policy, arguments in favor of same-sex marriage not apply to plural marriages?
Consider finally the nature of the individuals eligible to marry. The age of consent has not remained constant, for example. Under Roman law, men could marry at fourteen, women at twelve. The American colonies imported that rule from England and kept it until the mid-1800s, when the people began advocating for a higher minimum age. Today, all but two States set the number at eighteen. See Vivian E. Hamilton, The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage, 92 B.U. L. Rev. 1817, 1824–32 (2012). The same goes for the social acceptability of marriage between cousins, a union deemed “desirable in many parts of the world”; indeed, around “10 percent of marriages worldwide are between people who are second cousins or closer.” Sarah Kershaw, Living Together: Shaking Off the Shame, N.Y. Times (Nov. 25, 2009), http://www.nytimes.com/2009/11/26/garden/26cousins.html. Even in the United States, cousin marriage was not prohibited until the mid-nineteenth century, when

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Kansas—followed by seven other States—enacted the first ban. See Diane B. Paul & Hamish G. Spencer, “It’s Ok, We’re Not Cousin s by Blood”: The Cousin Marriage Controversy in Historical Perspective, 6 PLoS Biology 2627, 2627 (2008). The States, however, remain split: half of them still permit the practice. Ghassemi v. Ghassemi, 998 So. 2d 731, 749 (La. Ct. App. 2008). Strict scrutiny? Neither Loving nor any other Supreme Court decision says so.
F.
Discrete and insular class without political power. A separate line of cases, this one under the Equal Protection Clause, calls for heightened review of laws that target groups whom legislators have singled out for unequal treatment in the past. This argument faces an initial impediment. Our precedents say that rational basis review applies to sexual-orientation classifications. See Davis v. Prison Health Servs. , 679 F.3d 433, 438 (6th Cir. 2012); Scarbrough v. Morgan Cnty. Bd. of Educ. , 470 F.3d 250, 260–61 (6th Cir. 2006); Stemler v. City of Florence, 126 F.3d 856, 873–74 (6th Cir. 1997).
There is another impediment. The Supreme Court has never held that legislative classifications based on sexual orientation receive heightened review and indeed has not recognized a new suspect class in more than four decades. There are ample reasons for staying the course. Courts consider four rough factors in deciding whether to treat a legislative classification as suspect and presumptively unconstitutional: whether the group has been historically victimized by governmental discrimination; whether it has a defining characteristic that legitimately bears on the classification; whether it exhibits unchanging characteristics that define it as a discrete group; and whether it is politically powerless. See Rodriguez, 411 U.S. at 28.
We cannot deny the lamentable reality that gay individuals have experienced prejudice in this country, sometimes at the hands of public officials, sometimes at the hands of fellow citizens. Stonewall, Anita Bryant’s uninvited answer to the question “Who are we to judge?”, unequal enforcement of antisodomy laws between gay and straight partners, Matthew Shepard, and the language of insult directed at gays and others make it hard for anyone to deny the point. But we also cannot deny that the institution of marriage arose independently of this record of discrimination. The traditional definition of marriage goes back thousands of years and spans

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almost every society in history. By contrast, “American laws targeting same-sex couples did not
develop until the last third of the 20th century.” Lawrence, 539 U.S. at 570. This order of events prevents us from inferring from history that prejudice against gays led to the traditional
definition of marriage in the same way that we can infer from history that prejudice against
African Americans led to laws against miscegenation. The usual leap from history of
discrimination to intensification of judicial review does not work.
Windsor says nothing to the contrary. In arguing otherwise, plaintiffs mistake Windsor’s avoidance of one federalism question for avoidance of federalism altogether. Here is the key
passage:
Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. “‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’”
Windsor, 133 S. Ct. at 2692 (quoting Romer, 517 U.S. at 633). Plaintiffs read these words (and others that follow) as an endorsement of heightened review in today’s case, pointing to the first
two sentences as proof that individual dignity, not federalism, animates Windsor’s holding.
Yet federalism permeates both parts of this passage and both parts of the opinion.
Windsor begins by expressing doubts about whether Congress has the delegated power to enact a statute like DOMA at all. But instead of resolving the case on the far-reaching enumerated-
power ground, it resolves the case on the narrower Romer ground—that anomalous exercises of power targeting a single group raise suspicion that bigotry rather than legitimate policy is afoot.
Why was DOMA anomalous? Only federalism can supply the answer. The national statute
trespassed upon New York’s time-respected authority to define the marital relation, including by
“enhanc[ing] the recognition, dignity, and protection” of gay and lesbian couples. Id. Today’s case involves no such “divest[ing]”/“depriv[ing]”/“undermin[ing]” of a marriage status granted

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through a State’s authority over domestic relations within its borders and thus provides no basis for inferring that the purpose of the state law was to “impose a disadvantage”/“a separate status”/“a stigma” on gay couples. Id. at 2692–95. When the Framers “split the atom of sovereignty,” U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 838 (Kennedy, J., concurring), they did so to enhance liberty, not to allow the National Government to divest liberty protections granted by the States in the exercise of their historic and in this instance nearly exclusive power. What we have here is something entirely different. It is the States doing exactly what every State has been doing for hundreds of years: defining marriage as they see it. The only thing that has changed is the willingness of many States over the last eleven years to expand the definition of marriage to encompass gay couples.
Any other reading of Windsor would require us to subtract key passages from the opinion and add an inverted holding. The Court noted that New York “without doubt” had the power under its traditional authority over marriage to extend the definition of marriage to include gay couples and that Congress had no power to enact “unusual” legislation that interfered with the States’ long-held authority to define marriage. Windsor, 133 S. Ct. at 2692–93. A decision premised on heightened scrutiny under the Fourteenth Amendment that redefined marriage nationally to include same-sex couples not only would divest the States of their traditional authority over this issue, but it also would authorize Congress to do something no one would have thought possible a few years ago—to use its Section 5 enforcement powers to add new definitions and extensions of marriage rights in the years ahead. That would leave the States with little authority to resolve ever-changing debates about how to define marriage (and the benefits and burdens that come with it) outside the beck and call of Congress and the Court. How odd that one branch of the National Government (Congress) would be reprimanded for entering the fray in 2013 and two branches of the same Government (the Court and Congress) would take control of the issue a short time later.
Nor, as the most modest powers of observation attest, is this a setting in which “political powerlessness” requires “extraordinary protection from the majoritarian political process.” Rodriguez, 411 U.S. at 28. This is not a setting in which dysfunction mars the political process. See Reynold s v. Sims , 377 U.S. 533 (1964); Baker v. Carr , 369 U.S. 186 (1962). It is not a setting in which the recalcitrance of Jim Crow demands judicial, rather than we-can’t-wait-

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forever legislative, answers. See Brown v. Bd. of Educ. , 347 U.S. 483 (1954). It is not a setting in which time shows that even a potentially powerful group cannot make headway on issues of equality. See Frontiero v. Richardson , 411 U.S. 677 (1973). It is not a setting where a national crisis—the Depression—seemingly demanded constitutional innovation. See W. Coast Hotel Co. v. Parrish , 300 U.S. 379 (1937). And it is not a setting, most pertinently, in which the local, state, and federal governments historically disenfranchised the suspect class, as they did with African Americans and women. See United States v. Carolene Prods. Co. , 304 U.S. 144, 152 n.4 (1938).
Instead, from the claimants’ perspective, we have an eleven-year record marked by nearly as many successes as defeats and a widely held assumption that the future holds more promise than the past—if the federal courts will allow that future to take hold. Throughout that time, other advances for the claimants’ cause are manifest. Nationally, “Don’t Ask, Don’t Tell” is gone. Locally, the Cincinnati charter amendment that prevented gay individuals from obtaining certain preferences from the city, upheld by our court in 1997, Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati , 128 F.3d 289 (6th Cir. 1997), is no more. The Fourteenth Amendment does not insulate influential, indeed eminently successful, interest groups from a defining attribute of all democratic initiatives—some succeed, some fail—particularly when succeeding more and failing less are in the offing.
Why, it is worth asking, the sudden change in public opinion? If there is one thing that seems to challenge hearts and minds, even souls, on this issue, it is the transition from the abstract to the concrete. If twenty-five percent of the population knew someone who was openly gay in 1985, and seventy-five percent knew the same in 2000, Klarman, supra, at 197, it is fair to wonder how few individuals still have not been forced to think about the matter through the lens of a gay friend or family member. That would be a discrete and insular minority.
The States’ undoubted power over marriage provides an independent basis for reviewing the laws before us with deference rather than with skepticism. An analogy shows why. When a state law targets noncitizens—a group marked by its lack of political power and its history of enduring discrimination—it must in general meet the most demanding of constitutional tests in order to survive a skirmish with a court. But when a federal law targets noncitizens, a mere rational basis will save it from invalidation. This disparity arises because of the Nation’s

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authority (and the States’ corresponding lack of authority) over international affairs. Mathews v. Diaz, 426 U.S. 67, 84–85 (1976). If federal preeminence in foreign relations requires lenient review of federal immigration classifications, why doesn’t state preeminence in domestic relations call for equally lenient review of state marriage definitions?
G.
Evolving meaning. If all else fails, the plaintiffs invite us to consider that “[a] core strength of the American legal system . . . is its capacity to evolve” in response to new ways of thinking about old policies. DeBoer Appellees’ Br. at 57–58. But even if we accept this invitation and put aside the past—original meaning, tradition, time-respected doctrine—that does not take the plaintiffs where they wish to go. We could, to be sure, look at this case alongside evolving moral and policy considerations. The Supreme Court has done so before. Lawrence, 539 U.S. at 573. It may do so again. “A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights . . . to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557 (1996). Why not do so here?
Even on this theory, the marriage laws do not violate the Constitution. A principled jurisprudence of constitutional evolution turns on evolution in society’s values, not evolution in judges’ values. Freed of federal-court intervention, thirty-one States would continue to define marriage the old-fashioned way. Lawrence, by contrast, dealt with a situation in which just thirteen States continued to prohibit sodomy, and even then most of those laws had fallen into desuetude, rarely being enforced at all. On this record, what right do we have to say that societal values, as opposed to judicial values, have evolved toward agreement in favor of same-sex marriage?
The theory of the living constitution rests on the premise that every generation has the right to govern itself. If that premise prevents judges from insisting on principles that society has moved past, so too should it prevent judges from anticipating principles that society has yet to embrace. It follows that States must enjoy some latitude in matters of timing, for reasonable people can disagree about just when public norms have evolved enough to require a democratic response. Today’s case captures the point. Not long ago American society took for granted the rough correlation between marriage and creation of new life, a vision under which limiting

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marriage to opposite-sex couples seemed natural. Not long from now, if current trends continue, American society may define marriage in terms of affirming mutual love, a vision under which the failure to add loving gay couples seems unfair. Today’s society has begun to move past the first picture of marriage, but it has not yet developed a consensus on the second.
If, before a new consensus has emerged on a social issue, federal judges may decide when the time is ripe to recognize a new constitutional right, surely the people should receive some deference in deciding when the time is ripe to move from one picture of marriage to another. So far, not a single United States Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the Fourteenth Amendment. No one would accuse the Supreme Court of acting irrationally in failing to recognize a right to same-sex marriage in 2013. Likewise, we should hesitate to accuse the States of acting irrationally in failing to recognize the right in 2004 or 2006 or for that matter today. Federal judges engaged in the inherent pacing that comes with living constitutionalism should appreciate the inherent pacing that comes with democratic majorities deciding within reasonable bounds when and whether to embrace an evolving, as opposed to settled, societal norm. The one form of pacing is akin to the other, making it anomalous for the Court to hold that the States act unconstitutionally when making reasonable pacing decisions of their own.
From time to time, the Supreme Court has looked beyond our borders in deciding when to expand the meaning of constitutional guarantees. Lawrence, 539 U.S. at 576. Yet foreign practice only reinforces the impropriety of tinkering with the democratic process in this setting. The great majority of countries across the world—including such progressive democracies as Australia and Finland—still adhere to the traditional definition of marriage. Even more telling, the European Court of Human Rights ruled only a few years ago that European human rights laws do not guarantee a right to same-sex marriage. Schalk & Kopf v. A ustria, 2010-IV Eur. Ct. H.R. 409. “The area in question,” it explained in words that work just as well on this side of the Atlantic, remains “one of evolving rights with no established consensus,” which means that States must “enjoy [discretion] in the timing of the introduction of legislative changes.” Id. at 438. It reiterated this conclusion as recently as this July, declaring that “the margin of appreciation to be afforded” to States “must still be a wide one.” Hämäläinen v. Finland, No. 37359/09, HUDOC, at *19 (Eur. Ct. H.R. July 16, 2014). Our Supreme Court relied on the

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European Court’s gay-rights decisions in Lawrence. 539 U.S. at 576. What neutral principle of constitutional interpretation allows us to ignore the European Court’s same-sex marriage decisions when deciding this case? If the point is relevant in the one setting, it is relevant in the other, especially in a case designed to treat like matters alike.
Other practical considerations also do not favor the creation of a new constitutional right here. While these cases present a denial of access to many benefits, what is “[o]f greater importance” to the claimants, as they see it, “is the loss of . . . dignity and respect” occasioned by these laws. Love Appellees’ Br. at 5. No doubt there is much to be said for “dignity and respect” in the eyes of the Constitution and its interpreters. But any loss of dignity and respect on this issue did not come from the Constitution. It came from the neighborhoods and communities in which gay and lesbian couples live, and in which it is worth trying to correct the problem in the first instance—and in that way “to allow the formation of consensus respecting the way the members” of a State “treat each other in their daily contact and constant interaction with each other.” Windsor, 133 S. Ct. at 2692.
For all of the power that comes with the authority to interpret the United States Constitution, the federal courts have no long-lasting capacity to change what people think and believe about new social questions. If the plaintiffs are convinced that litigation is the best way to resolve today’s debate and to change heads and hearts in the process, who are we to say? Perhaps that is not the only point, however. Yes, we cannot deny thinking the plaintiffs deserve better—earned victories through initiatives and legislation and the greater acceptance that comes with them. But maybe the American people too deserve better—not just in the sense of having a say through representatives in the legislature rather than through representatives in the courts, but also in the sense of having to come face to face with the issue. Rights need not be countermajoritarian to count. See, e.g. , Civil Rights Act of 1964, Pub. L. No. 88352, 78 Stat. 241. Isn’t the goal to create a culture in which a majority of citizens dignify and respect the rights of minority groups through majoritarian laws rather than through decisions issued by a majority of Supreme Court Justices? It is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage.
Last, but not least, federal courts never expand constitutional guarantees in a vacuum. What one group wants on one issue from the courts today, another group will want on another

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issue tomorrow. The more the Court innovates under the Constitution, the more plausible it is for the Court to do still more—and the more plausible it is for other advocates on behalf of other issues to ask the Court to innovate still more. And while the expansion of liberal and conservative constitutional rights will solve, or at least sidestep, the amendment-difficulty problem that confronts many individuals and interest groups, it will exacerbate the judgeconfirmation problem. Faith in democracy with respect to issues that the Constitution has not committed to the courts reinforces a different, more sustainable norm.
III.
Does the Constitution prohibit a State from denying recognition to same-sex marriages conducted in other States? That is the question presented in the two Ohio cases (Obergefell and Henry), one of the Kentucky cases (Bourke), and the Tennessee case (Tanco). Our answer to the first question goes a long way toward answering this one. If it is constitutional for a State to define marriage as a relationship between a man and a woman, it is also constitutional for the State to stand by that definition with respect to couples married in other States or countries.
The Constitution in general does not delineate when a State must apply its own laws and when it must apply the laws of another State. Neither any federal statute nor federal common law fills the gap. Throughout our history, each State has decided for itself how to resolve clashes between its laws and laws of other sovereigns—giving rise to the field of conflict of laws. The States enjoy wide latitude in fashioning choice-of-law rules. Sun Oil Co. v. Wortman , 486 U.S. 717, 727–29 (1988); Allstate Ins. Co. v. Hague, 449 U.S. 302, 307–08 (1981).
The plaintiffs in these cases do not claim that refusal to recognize out-of-state gay and lesbian marriages violates the Full Faith and Credit Clause, the principal constitutional limit on state choice-of-law rules. Wisely so. The Clause “does not require a State to apply another State’s law in violation of its own legitimate public policy.” Nevada v. Hall, 440 U.S. 410, 422 (1979). If defining marriage as an opposite-sex relationship amounts to a legitimate public policy—and we have just explained that it does—the Full Faith and Credit Clause does not prevent a State from applying that policy to couples who move from one State to another.
The plaintiffs instead argue that failure to recognize gay marriages celebrated in other States violates the Due Process and Equal Protection Clauses. But we do not think that the

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invocation of these different clauses justifies a different result. As shown, compliance with the Due Process and Equal Protection Clauses in this setting requires only a rational relationship between the legislation and a legitimate public purpose. And a State does not behave irrationally by insisting upon its own definition of marriage rather than deferring to the definition adopted by another State. Preservation of a State’s authority to recognize, or to opt not to recognize, an outof-state marriage preserves a State’s sovereign interest in deciding for itself how to define the marital relationship. It also discourages evasion of the State’s marriage laws by allowing individuals to go to another State, marry there, then return home. Were it irrational for a State to adhere to its own policy, what would be the point of the Supreme Court’s repeated holdings that the Full Faith and Credit Clause “does not require a State to apply another State’s law in violation of its own public policy”? Id.
Far from undermining these points, Windsor reinforces them. The case observes that “[t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities.” 133 S. Ct. at 2691 (internal quotation marks omitted). How could it be irrational for a State to decide that the foundation of its domesticrelations law will be its definition of marriage, not somebody else’s? Windsor adds that “[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.” Id. How could it be irrational for a State to apply its definition of marriage to a couple in whose marital status the State as a sovereign has a rightful and legitimate concern?
Nor does the policy of nonrecognition trigger Windsor’s (or Romer’s) principle that unprecedented exercises of power call for judicial skepticism. States have always decided for themselves when to yield to laws of other States. Exercising this power, States often have refused to enforce all sorts of out-of-state rules on the grounds that they contradict important local policies. See Restatement (First) of Conflict of Laws § 612; Restatement (Second) of Conflict of Laws § 90. Even more telling, States in many instances have refused to recognize marriages performed in other States on the grounds that these marriages depart from cardinal principles of the State’s domestic-relations laws. See Restatement (First) of Conflict of Laws

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§ 134; Restatement (Second) of Conflict of Laws § 283. The laws challenged here involve routine rather than anomalous uses of state power.
What of the reality that Ohio recognizes some heterosexual marriages solemnized in other States even if those marriages could not be performed in Ohio? See, e.g. , Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958). The only reason Ohio could have for banning recognition of same-sex marriages performed elsewhere and not prohibiting heterosexual marriages performed elsewhere, the Ohio plaintiffs claim, is animus or “discrimination[] of an unusual character.” Obergefell Appellees’ Br. at 18 (quoting Windsor, 133 S. Ct. at 2692).
But, in making this argument, the plaintiffs misapprehend Ohio law, wrongly assuming that Ohio would recognize as valid any heterosexual marriage that was valid in the State that sanctioned it. That is not the case. Ohio law recognizes some out-of-state marriages that could not be performed in Ohio, but not all such marriages. See, e.g., Mazzolini, 155 N.E.2d at 208 (marriage of first cousins); Hardin v. Davis , 16 Ohio Supp. 19, 20 (Ohio Ct. Com. Pl. 1945) (marriage by proxy). In Mazzolini, the most relevant precedent, the Ohio Supreme Court stated that a number of heterosexual marriages—ones that were “incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited”—would not be recognized in the State, even if they were valid in the jurisdiction that performed them. 155 N.E.2d at 208–09 (noting that first-cousin marriages fell outside this rule because they were “not made void by explicit provision” and “not incestuous”). Ohio law declares same-sex marriage contrary to the State’s public policy, placing those marriages within the longstanding exception to Ohio’s recognition rule. See Ohio Rev. Code § 3101.01(C).
IV.
That leaves one more claim, premised on the constitutional right to travel. In the Tennessee case (Tanco) and one of the Ohio cases (Henry), the claimants maintain that a State’s refusal to recognize out-of-state same-sex marriages illegitimately burdens the right to travel—in the one case by penalizing couples who move into the State by refusing to recognize their marriages, in the other by preventing their child from obtaining a passport because the State refused to provide a birth certificate that included the names of both parents.

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The United States Constitution does not mention a right to travel by name. “Yet the constitutional right to travel from one State to another is firmly embedded in our jurisprudence.” Saenz v. Roe , 526 U.S. 489, 498 (1999) (internal quotation marks omitted). It provides three guarantees: (1) “the right of a citizen of one State to enter and to leave another State”; (2) “the right to be treated as a welcome visitor rather than an unfriendly alien” when visiting a second State; and (3) the right of new permanent residents “to be treated like other citizens of that State.” Id. at 500.
Tennessee’s nonrecognition law does not violate these prohibitions. It does not ban, or for that matter regulate, movement into or out of the State other than in the respect all regulations create incentives or disincentives to live in one place or another. Most critically, the law does not punish out-of-state new residents in relation to its own born and bred. Nonresidents are “treated” just “like other citizens of that State,” id., because the State has not expanded the definition of marriage to include gay couples in all settings, whether the individuals just arrived in Tennessee or descend from Andrew Jackson.
The same is true for the Ohio law. No regulation of movement or differential treatment between the newly resident and the longstanding resident occurs. All Ohioans must follow the State’s definition of marriage. With respect to the need to obtain an Ohio birth certificate before obtaining a passport, they can get one. The certificate just will not include both names of the couple. The “just” of course goes to the heart of the matter. In that respect, however, it is due process and equal protection, not the right to travel, that govern the issue.
* * *
This case ultimately presents two ways to think about change. One is whether the Supreme Court will constitutionalize a new definition of marriage to meet new policy views about the issue. The other is whether the Court will begin to undertake a different form of change—change in the way we as a country optimize the handling of efforts to address requests for new civil liberties.
If the Court takes the first approach, it may resolve the issue for good and give the plaintiffs and many others relief. But we will never know what might have been. If the Court takes the second approach, is it not possible that the traditional arbiters of change—the people—

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will meet today’s challenge admirably and settle the issue in a productive way? In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.
For these reasons, we reverse.

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_________________

DISSENT _________________

MARTHA CRAIG DAUGHTREY, Circuit Judge, dissenting.

“The great tides and currents which engulf the rest of men do not turn aside in their course to pass the judges by.” Benjamin Cardozo, The Nature of the Judicial Process (1921)
The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.
In the main, the majority treats both the issues and the litigants here as mere abstractions. Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status—de jure status, if you will—with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully

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legitimate parents at their children’s schools. They seek to do this by virtue of exercising a civil right that most of us take for granted—the right to marry.1
Readers who are familiar with the Supreme Court’s recent opinion in United States v. Windsor, 133 S. Ct. 2675 (2013), and its progeny in the circuit courts, particularly the Seventh Circuit’s opinion in Baskin v. Bogan , 766 F.3d 648, 654 (7th Cir. 2014) (“Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, . . . they are about the welfare of American children.”), must have said to themselves at various points in the majority opinion, “But what about the children?” I did, and I could not find the answer in the opinion. For although my colleagues in the majority pay lip service to marriage as an institution conceived for the purpose of providing a stable family unit “within which children may flourish,” they ignore the destabilizing effect of its absence in the homes of tens of thousands of same-sex parents throughout the four states of the Sixth Circuit.
Indeed, with the exception of Ohio, the defendants in each of these cases—the proponents of their respective “defense of marriage” amendments—spent virtually their entire oral arguments professing what has come to be known as the “irresponsible procreation” theory: that limiting marriage and its benefits to opposite-sex couples is rational, even necessary, to provide for “unintended offspring” by channeling their biological procreators into the bonds of matrimony. When we asked counsel why that goal required the simultaneous exclusion of samesex couples from marrying, we were told that permitting same-sex marriage might denigrate the institution of marriage in the eyes of opposite-sex couples who conceive out of wedlock, causing subsequent abandonment of the unintended offspring by one or both biological parents. We also were informed that because same-sex couples cannot themselves produce wanted or unwanted offspring, and because they must therefore look to non-biological means of parenting that require planning and expense, stability in a family unit headed by same-sex parents is assured without the benefit of formal matrimony. But, as the court in Baskin pointed out, many “abandoned children [born out of wedlock to biological parents] are adopted by homosexual couples, and

1See, e.g., Loving v. Virg inia, 388 U.S. 1, 12 (1967) (“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”) (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)). The Supreme Court has described the right to marry as “of fundamental importance for all individuals” and as “part of the fundamental ‘right of privacy’ implicit in the Fourteenth Amendment's Due Process Clause.” Zablocki v. Redhail, 434 U.S. 374, 384 (1978).

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those children would be better off both emotionally and economically if their adoptive parents were married.” Id. How ironic that irresponsible, unmarried, opposite-sex couples in the Sixth Circuit who produce unwanted offspring must be “channeled” into marriage and thus rewarded with its many psychological and financial benefits, while same-sex couples who become model parents are punished for their responsible behavior by being denied the right to marry. As an obviously exasperated Judge Posner responded after puzzling over this same paradox in Baskin, “Go figure.” Id. at 662.
In addressing the “irresponsible procreation” argument that has been referenced by virtually every state defendant in litigation similar to this case, the Baskin court noted that estimates put the number of American children being raised by same-sex parents at over 200,000. Id. at 663. “Unintentional offspring are the children most likely to be put up for adoption,” id. at 662, and because statistics show that same-sex couples are many times more likely to adopt than opposite-sex couples, “same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters.” Id. at 663. Moreover, “[i]f marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents.” Id. at 664.
The concern for the welfare of children that echoes throughout the Baskin opinion can be traced in part to the earlier opinion in Windsor, in which the Supreme Court struck down, as unconstitutional on equal-protection grounds, section 3 of the federal Defense of Marriage Act (DOMA), which defined the term “marriage” for federal purposes as “mean[ing] only a legal union between one man and one woman as husband and wife,” and the term “spouse” as “refer[ring] only to a person of the opposite sex who is a husband or a wife.” Id. at 2683 (citing 1 U.S.C. § 7). Although DOMA did not affect the prerogative of the states to regulate marriage within their respective jurisdictions, it did deprive same-sex couples whose marriages were considered valid under state law of myriad federal benefits. As Justice Kennedy, writing for the majority, pointed out:
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency . . . . The differentiation demeans the [samesex] couple, whose moral and sexual choices the Constitution protects, see

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Lawrence [v. Texas], 539 U.S. 558 [(2003)], and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Id. at 2694.
Looking more closely at the situation of just one of the same-sex couples from the six cases before us brings Justice Kennedy’s words on paper to life. Two of the Michigan plaintiffs, April DeBoer and Jayne Rowse, are unmarried, same-sex partners who have lived as a couple for eight years in a home they own together. They are both trained and employed as nurses, DeBoer in a hospital neonatal department and Rowse in an emergency department at another hospital. Together they are rearing three children but, due to existing provisions in Michigan’s adoption laws, DeBoer and Rowse are prohibited from adopting the children as joint parents because they are unmarried. Instead, Rowse alone adopted two children, who are identified in the record as N and J. DeBoer adopted the third child, who is identified as R.
All three children had difficult starts in life, and two of them are now characterized as “special needs” children. N was born on January 25, 2009, to a biological mother who was homeless, had psychological impairments, was unable to care for N, and subsequently surrendered her legal rights to N. The plaintiffs volunteered to care for the boy and brought him into their home following his birth. In November 2009, Rowse completed the necessary steps to adopt N legally.
Rowse also legally adopted J after the boy’s foster care agency asked Rowse and DeBoer initially to serve as foster parents and legal guardians for him, despite the uphill climb the baby faced. According to the plaintiffs’ amended complaint:
J was born on November 9, 2009, at Hutzel Hospital, premature at 25 weeks, to a drug addicted prostitute. Upon birth, he weighed 1 pound, 9 ounces and tested positive for marijuana, cocaine, opiates and methadone. His birth mother abandoned him immediately after delivery. J remained in the hospital in the NICU for four months with myriad different health complications, and was not expected to live. If he survived, he was not expected to be able to walk, speak or function on a normal level in any capacity. . . . With Rowse and DeBoer’s constant care and medical attention, many of J’s physical conditions have resolved.

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The third adopted child, R, was born on February 1, 2010, to a 19-year-old girl who received no prenatal care and who gave birth at her mother’s home before bringing the infant to the hospital where plaintiff DeBoer worked. R continues to experience issues related to her lack of prenatal care, including delayed gross motor skills. She is in a physical-therapy program to address these problems.
Both DeBoer and Rowse share in the responsibilities of raising the two four-year-olds and the five-year-old. The plaintiffs even have gone so far as to “coordinate their work schedules so that at least one parent is generally home with the children” to attend to their medical needs and perform other parental duties. Given the close-knit, loving environment shared by the plaintiffs and the children, DeBoer wishes to adopt N and J legally as a second parent, and Rowse wishes to adopt R legally as her second parent.
Although Michigan statutes allow married couples and single persons to adopt, those laws preclude unmarried couples from adopting each other’s children. As a result, DeBoer and Rowse filed suit in federal district court challenging the Michigan adoption statute, Michigan Compiled Laws § 710.24, on federal equal-protection grounds. They later amended their complaint to include a challenge to the so-called Michigan Marriage Amendment, see Mich. Const. art. I, § 25, added to the Michigan state constitution in 2004, after the district court suggested that the plaintiffs’ “injury was not traceable to the defendants’ enforcement of section [710.24]” but, rather, flowed from the fact that the plaintiffs “were not married, and any legal form of same-sex union is prohibited” in Michigan. The case went to trial on the narrow legal issue of whether the amendment could survive rational basis review, i.e., whether it proscribes conduct in a manner that is rationally related to any conceivable legitimate governmental purpose.
The bench trial lasted for eight days and consisted of testimony from sociologists, economists, law professors, a psychologist, a historian, a demographer, and a county clerk. Included in the plaintiffs’ presentation of evidence were statistics regarding the number of children in foster care or awaiting adoption, as well as testimony regarding the difficulties facing same-sex partners attempting to retain parental influence over children adopted in Michigan. Gary Gates, a demographer, and Vivek Sankaran, the director of both the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan Law School,

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together offered testimony painting a grim picture of the plight of foster children and orphans in the state of Michigan. For example, Sankaran noted that just under 14,000 foster children reside in Michigan, with approximately 3,500 of those being legal orphans. Nevertheless, same-sex couples in the state are not permitted to adopt such children as a couple. Even though one person can legally adopt a child, should anything happen to that adoptive parent, there is no provision in Michigan’s legal framework that would “ensure that the children would necessarily remain with the surviving non-legal parent,” even if that parent went through the arduous, time-consuming, expensive adoption-approval process. Thus, although the State of Michigan would save money by moving children from foster care or state care into adoptive families, and although same-sex couples in Michigan are almost three times more likely than opposite-sex couples to be raising an adopted child and twice as likely to be fostering a child, there remains a legal disincentive for same-sex couples to adopt children there.
David Brodzinsky, a developmental and clinical psychologist, for many years on the faculty at Rutgers University, reiterated the testimony that Michigan’s ban on adoptions by same-sex couples increases the potential risks to children awaiting adoptions. The remainder of his testimony was devoted to a systematic, statistic-based debunking of studies intimating that children raised in gay or lesbian families, ipso facto, are less well-adjusted than children raised by heterosexual couples. Brodzinsky conceded that marriage brings societal legitimatization and stability to children but noted that he found no statistically significant differences in general characteristics or in development between children raised in same-sex households and children raised in opposite-sex households, and that the psychological well-being, educational development, and peer relationships were the same in children raised in gay, lesbian, or heterosexual homes.
Such findings led Brodzinsky to conclude that the gender of a parent is far less important than the quality of the parenting offered and that family processes and resources are far better predictors of child adjustment than the family structure. He testified that those studies presuming to show that children raised in gay and lesbian families exhibited more adjustment problems and decreased educational achievement were seriously flawed, simply because they relied on statistics concerning children who had come from families experiencing a prior traumatic breakup of a failed heterosexual relationship. In fact, when focusing upon children of

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lesbian families created through donor insemination, Brodzinsky found no differences in comparison with children from donor insemination in heterosexual families or in comparison with children conceived naturally in heterosexual families. According to Brodzinsky, such a finding was not surprising given the fact that all such children experienced no family disruption in their past. For the same reason, few differences were noted in studies of children adopted at a very early age by same-sex couples and children naturally born into heterosexual families.
Nancy Cott, a professor of history at Harvard University, the director of graduate studies there, and the author of Public Vows: A History of Marriage and the Nation, also testified on behalf of the plaintiffs. She explained how the concept of marriage and the roles of the marriage partners have changed over time. As summarized by Cott, the wife’s identity is no longer subsumed into that of her husband, interracial marriages are legal now that the antiquated, racist concept of preserving the purity of the white race has fallen into its rightful place of dishonor, and traditional gender-assigned roles are no longer standard. Cott also testified that solemnizing marriages between same-sex partners would create tangible benefits for Michigan citizens because spouses would then be allowed to inherit without taxation and would be able to receive retirement, Social Security, and veteran’s benefits upon the death of an eligible spouse. Moreover, statistics make clear that heterosexual marriages have not suffered or decreased in number as a result of states permitting same-sex marriages. In fact, to the contrary, Cott noted that there exists some evidence that many young people now refuse to enter into heterosexual marriages until their gay or lesbian friends can also enjoy the legitimacy of state-backed marriages.
Michael Rosenfeld, a Stanford University sociologist, testified about studies he had undertaken that confirmed the hypothesis that legitimation of same-sex relationships promotes their stability. Specifically, Rosenfeld’s research established that although same-sex couples living in states without recognition of their commitments to each other did have a higher breakup rate than heterosexual married couples, the break-up rates of opposite-sex married couples and same-sex couples in recognized civil unions were virtually identical. Similarly, the break-up rates of same-sex couples not living in a state-recognized relationship approximated the break-up rate of heterosexual couples cohabiting without marriage.

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Rosenfeld also criticized the methodology of studies advanced by the defendants that disagreed with his conclusions. According to Rosenfeld, those critical studies failed to take into account the stability or lack of stability of the various groups examined. For example, he testified that one such study compared children who had experienced no adverse family transitions with children who had lived through many such traumatic family changes. Not surprisingly, children from broken homes with lower-income-earning parents who had less education and lived in urban areas performed more poorly in school than other children. According to Rosenfeld, arguments to the contrary that failed to control for such differences, taken to their extreme, would lead to the conclusion that only high-income individuals of Asian descent who earned advanced degrees and lived in suburban areas should be allowed to marry.
To counteract the testimony offered by the plaintiffs’ witnesses, the defendants presented as witnesses the authors or co-authors of three studies that disagreed with the conclusions reached by the plaintiffs’ experts. All three studies, however, were given little credence by the district court because of inherent flaws in the methods used or the intent of the authors. For example, the New Family Structures Study reported by Mark Regnerus, a sociologist at the University of Texas at Austin, admittedly relied upon interviews of children from gay or lesbian families who were products of broken heterosexual unions in order to support a conclusion that living with such gay or lesbian families adversely affected the development of the children. Regnerus conceded, moreover, that his own department took the highly unusual step of issuing the following statement on the university website in response to the release of the study:
[Dr. Regnerus’s opinions] 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 the findings from Dr. Regnerus’[s] work have been cited inappropriately in efforts to diminish the civil rights and legitimacy of LBGTQ partners and their families.
In fact, the record before the district court reflected clearly that Regnerus’s study had been funded by the Witherspoon Institute, a conservative “think tank” opposed to same-sex marriage, in order to vindicate “the traditional understanding of marriage.”
Douglas Allen, the co-author of another study with Catherine Pakaluk and Joe Price, testified that children raised by same-sex couples graduated from high school at a significantly

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lower rate than did children raised by heterosexual married couples. On cross-examination, however, Allen conceded that “many of those children who . . . were living in same-sex households had previously lived in an opposite sex household where their parents had divorced, broken up, some kind of separation or transition.” Furthermore, Allen provided evidence of the bias inherent in his study by admitting that he believed that engaging in homosexual acts “means eternal separation from God, in other words[,] going to hell.”
The final study advanced by the defendants was conducted by Loren Marks, a professor in human ecology at Louisiana State University, in what was admittedly an effort to counteract the “groupthink” portrayed by perceived “liberal psychologists.” But although Marks criticized what he perceived to be “a pronounced liberal lean on social issues” by many psychologists, he revealed his own bias by acknowledging that he was a lay clergyman in the Church of Jesus Christ of Latter Day Saints (LDS) and that the LDS directive “for a couple to be married by God’s authority in God’s house, the holy temple, and then to have children per the teaching that God’s commandment for his children to multiply and replenish the earth remains in force.”
Presented with the admitted biases and methodological shortcomings prevalent in the studies performed by the defendant’s experts, the district court found those witnesses “largely unbelievable” and not credible. DeBoer v. Snyder, 973 F. Supp.2d 757, 768 (E.D. Mich. 2014). Proceeding to a legal analysis of the core issue in the litigation, the district court then concluded that the proscriptions of the marriage amendment are not rationally related to any legitimate state interest. Addressing the defendants’ three asserted rational bases for the amendment,2 the district court found each such proffered justification without merit.
Principally, the court determined that the amendment is in no way related to the asserted state interest in ensuring an optimal environment for child-rearing. The testimony adduced at trial clearly refuted the proposition that, all things being equal, same-sex couples are less able to provide for the welfare and development of children. Indeed, marriage, whether between samesex or opposite-sex partners, increases stability within the family unit. By permitting same-sex

2In the district court, the state did not advance an “unintended pregnancy” argument, nor was that claim included in the state’s brief on appeal, although counsel did mention it during oral argument. In terms of “optimal environment,” the state emphasized the need for children to have “both a mom and a dad,” because “men and women are different,” and to have a “biological connection to their parents.”

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couples to marry, that stability would not be threatened by the death of one of the parents. Even more damning to the defendants’ position, however, is the fact that the State of Michigan allows heterosexual couples to marry even if the couple does not wish to have children, even if the couple does not have sufficient resources or education to care for children, even if the parents are pedophiles or child abusers, and even if the parents are drug addicts.
Furthermore, the district court found no reason to believe that the amendment furthers the asserted state interests in “proceeding with caution” before “altering the traditional definition of marriage” or in “upholding tradition and morality.” As recognized by the district court, there is no legitimate justification for delay when constitutional rights are at issue, and even adherence to religious views or tradition cannot serve to strip citizens of their right to the guarantee of equal protection under the law.
Finally, and relatedly, the district court acknowledged that the regulation of marriage traditionally has been seen as part of a state’s police power but concluded that this fact cannot serve as an excuse to ignore the constitutional rights of individual citizens. Were it otherwise, the court observed, the prohibition in Virginia and in many other states against miscegenation still would be in effect today. Because the district court found that “regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail,” the court held the amendment and its implementing statutes “unconstitutional because they violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.” Id. at 775.
If I were in the majority here, I would have no difficulty in affirming the district court's opinion in DeBoer. The record is rich with evidence that, as a pragmatic matter, completely refutes the state’s effort to defend the ban against same-sex marriage that is inherent in the marriage amendment. Moreover, the district court did a masterful job of supporting its legal conclusions. Upholding the decision would also control the resolution of the other five cases that were consolidated for purposes of this appeal.
Is a thorough explication of the legal basis for such a result appropriate? It is, of course. Is it necessary? In my judgment, it is not, given the excellent—even eloquent—opinion in DeBoer and in the opinions that have come from four other circuits in the last few months that

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have addressed the same issues involved here: Kitchen v. Herbert , 755 F.3d 1193 (10th Cir. 2014) (holding Utah statutes and state constitutional amendment banning same-sex marriage unconstitutional under the Fourteenth Amendment); Bostic v. Schaefer , 760 F.3d 352 (4th Cir. 2014) (same, Virginia); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) (same, Indiana statute and Wisconsin state constitutional amendment); and Latta v. Otter , Nos. 14-35420, 14-35421, 1217668, 2014 WL 4977682 (9th Cir. Oct. 7, 2014) (same, Idaho and Nevada statutes and state constitutional amendments).3
Kitchen was decided primarily on the basis of substantive due process, based on the Tenth Circuit’s determination that under Supreme Court precedents, the right to marry includes the right to marry the person of one’s choice. The court located the source of that right in Supreme Court opinions such as Maynard v. Hill , 125 U.S. 190, 205 (1888) (recognizing marriage as “the most important relation in life”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (holding that the liberty protected by the Fourteenth Amendment includes the freedom “to marry, establish a home and bring up children”); Loving, 388 U.S. at 12 (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”); Zablocki, 434 U.S. at 384 (recognizing that “the right to marry is of fundamental importance for all individuals”); and Turner v. Safley, 482 U.S. 78, 95-96 (1987) (in the context of a prison inmate’s right to marry, “[such] marriages are expressions of emotional support and public commitment[,] . . . elements [that] are important and significant aspects of the marital relationship” even in situations in which procreation is not possible). Kitchen, 755 F.3d at 1209-11. The Tenth Circuit also found that the Utah laws violated equal protection, applying strict scrutiny because the classification in question impinged on a fundamental right. In doing so, the court rejected the state’s reliance on various justifications offered to establish a compelling state interest in denying marriage to same-sex couples, finding “an insufficient causal connection” between the prohibition on same-sex marriage and the state’s “articulated goals,” which included a purported interest in fostering biological reproduction, encouraging optimal childrearing, and maintaining gendered parenting styles. Id. at 1222. The court also

3On October 6, the Supreme Court denied certiorari and lifted stays in Kitchen, Bostic, and Baskin, putting into effect the district court injunctions entered in each of those three cases. A stay of the mandate in the Idaho case in Latta also has been vacated, and the appeal in the Nevada case is not being pursued. As a result, marriage licenses are currently being issued to same-sex couples throughout most—if not all—of the Fourth, Seventh, Ninth, and Tenth Circuits.

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rejected the state’s prediction that legalizing same-sex marriage would result in social discord, citing Watson v. City of Memphis , 373 U.S. 526, 535 (1963) (rejecting “community confusion and turmoil” as a reason to delay desegregation of public parks). Id. at 1227.
The Fourth Circuit in Bostic also applied strict scrutiny to strike down Virginia’s samesex-marriage prohibitions as infringing on a fundamental right, citing Loving and observing that “[o]ver the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms.” 760 F.3d at 376. In a thoughtful opinion, the court analyzed each of the state’s proffered interests: maintaining control of the “definition of marriage,” adhering to the “tradition of opposite-sex marriage,” “protecting the institution of marriage,” “encouraging responsible procreation,” and “promoting the optimal childrearing environment.” Id. at 378. In each instance, the court found that there was no link between the state’s purported “compelling interest” and the exclusion of same-sex couples “from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.” Id. at 384. As to the state’s interest in federalism, the court pointed to the long-recognized principle that “[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons,” id. at 379 (quoting Windsor, 133 S. Ct. at 2691), and highlighted Windsor’s reiteration of “Loving’s admonition that the states must exercise their authority without trampling constitutional guarantees.” Id. Addressing the state’s contention that marriage under state law should be confined to opposite-sex couples because unintended pregnancies cannot result from same-sex unions, the court noted that “[b]ecause same-sex couples and infertile opposite-sex couples are similarly situated, the Equal Protection Clause counsels against treating these groups differently.” Id. at 381-82 (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).
The Seventh Circuit’s Baskin opinion is firmly grounded in equal-protection analysis. The court proceeded from the premise that “[d]iscrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect.” 766 F.3d at 654. But the court also found that “discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is

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not subjected to heightened scrutiny.” Id. at 656. This conclusion was based on the court’s rejection of “the only rationale that the states put forth with any conviction—that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended,” an argument “so full of holes that it cannot be taken seriously.” Id. (emphasis in original). The court therefore found it unnecessary to engage in “the more complex analysis found in more closely balanced equal-protection cases” or under the due process clause of the Fourteenth Amendment.” Id. at 656-57.
The Ninth Circuit’s opinion in Latta also focuses on equal-protection principles in finding that Idaho’s and Nevada’s statutes and constitutional amendments prohibiting same-sex marriage violate the Fourteenth Amendment. Because the Ninth Circuit had recently held in SmithKline Beecham Corp. v. Abbott Labs. , 740 F.3d 471, 481 (9th Cir. 2014), that classifications based on sexual orientation are subject to heightened scrutiny, a conclusion the court drew from its reading of Windsor to require assessment more rigorous than rational-basis review, the path to finding an equal-protection violation was less than arduous. As did the Tenth Circuit in Kitchen, the court in Latta found it “wholly illogical” to think that same-sex marriage would affect opposite-sex couples’ choices with regard to procreation. Latta, 2014 WL 4977682, *5 (citing Kitchen, 755 F.3d at 1223).
These four cases from our sister circuits provide a rich mine of responses to every rationale raised by the defendants in the Sixth Circuit cases as a basis for excluding same-sex couples from contracting valid marriages. Indeed, it would seem unnecessary for this court to do more than cite those cases in affirming the district courts’ decisions in the six cases now before us. Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of samesex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens. Perhaps that is the case, but it does not relieve the dissenting member of the panel from the obligation of a rejoinder.

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Baker v. Nelson
If ever there was a legal “dead letter” emanating from the Supreme Court, Baker v. Nelson, 409 U.S. 810 (1972), is a prime candidate. It lacks only a stake through its heart. Nevertheless, the majority posits that we are bound by the Court’s aging one-line order denying review of an appeal from the Minnesota Supreme Court “for want of a substantial federal question.” As the majority notes, the question concerned the state’s refusal to issue a marriage license to a same-sex couple, but the decision came at a point in time when sodomy was legal in only one state in the country, Illinois, which had repealed its anti-sodomy statute in 1962. The Minnesota statute criminalizing same-sex intimate relations was not struck down until 2001, almost 30 years after Baker was announced.4 The Minnesota Supreme Court’s denial of relief to a same-sex couple in 1971 and the United States Supreme Court’s conclusion that there was no substantial federal question involved in the appeal thus is unsurprising. As the majority notes— not facetiously, one hopes—“that was then; this is now.”
At the same time, the majority argues that we are bound by the eleven words in the order, despite the Supreme Court silence on the matter in the 42 years since it was issued. There was no recognition of Baker in Romer v. Evans , 517 U.S. 620 (1996), nor in Lawrence v. Texas , 539 U.S. 558 (2003), and not in Windsor, despite the fact that the dissenting judge in the Second Circuit’s opinion in Windsor made the same argument that the majority makes in this case. See Windsor v. United States, 699 F.3d 169, 189, 192-95 (2d Cir. 2012) (Straub, J., dissenting in part and concurring in part). And although the argument was vigorously pressed by the DOMA proponents in their Supreme Court brief in Windsor,5 neither Justice Kennedy in his opinion for the court nor any of the four dissenting judges in their three separate opinions mentioned Baker. In addition, the order was not cited in the three orders of October 6, 2014, denying certiorari in Kitchen, Bostic, and Baskin. If this string of cases—Romer, Lawrence, Windsor, Kitchen, Bostic, and Baskin—does not represent the Court’s overruling of Baker sub silentio, it certainly creates the “doctrinal development” that frees the lower courts from the strictures of a summary

4See Doe v. Ventura, No. 01-489, 2001 WL 543734 (D. Ct. of Hennepin Cnty. May 15, 2001) (unreported). 5See United States v. Windsor, Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives, No. 12-307, 2013 WL 267026 at 16-19, 25-26 (Jan. 22, 2013).

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disposition by the Supreme Court. See Hicks v. Miranda , 422 U.S. 332, 344 (1975) (internal quotation marks and citation omitted).

Definition of Marriage
The majority’s “original meaning” analysis strings together a number of case citations but can tell us little about the Fourteenth Amendment, except to assure us that “the people who adopted the Fourteenth Amendment [never] understood it to require the States to change the definition of marriage.” The quick answer is that they undoubtedly did not understand that it would also require school desegregation in 1955 or the end of miscegenation laws across the country, beginning in California in 1948 and culminating in the Loving decision in 1967. Despite a civil war, the end of slavery, and ratification of the Fourteenth Amendment in 1868, extensive litigation has been necessary to achieve even a modicum of constitutional protection from discrimination based on race, and it has occurred primarily by judicial decree, not by the democratic election process to which the majority suggests we should defer regarding discrimination based on sexual orientation.
Moreover, the majority’s view of marriage as “a social institution defined by relationships between men and women” is wisely described in the plural. There is not now and never has been a universally accepted definition of marriage. In early Judeo-Christian law and throughout the West in the Middle Ages, marriage was a religious obligation, not a civil status. Historically, it has been pursued primarily as a political or economic arrangement. Even today, polygynous marriages outnumber monogamous ones—the practice is widespread in Africa, Asia, and the Middle East, especially in countries following Islamic law, which also recognizes temporary marriages in some parts of the world. In Asia and the Middle East, many marriages are still arranged and some are even coerced.
Although some of the older statutes regarding marriage cited by the majority do speak of the union of “a man and a woman,” the picture hardly ends there. When Justice Alito noted in Windsor that the opponents of DOMA were “implicitly ask[ing] us to endorse [a more expansive definition of marriage and] to reject the traditional view,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting), he may have been unfamiliar with all that the “traditional view” entailed, especially for women who were subjected to coverture as a result of Anglo-American common law.

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Fourteenth Amendment cases decided by the Supreme Court in the years since 1971 that
“invalidat[ed] various laws and policies that categorized by sex have been part of a
transformation that has altered the very institution at the heart of this case, marriage.” Latta,
2014 WL 4977682, at *20 (Berzon, J., concurring).
Historically, marriage was a profoundly unequal institution, one that imposed distinctly different rights and obligations on men and women. The law of coverture, for example, deemed the “the husband and wife . . . one person,” such that “the very being or legal existence of the woman [was] suspended . . . or at least [was] incorporated and consolidated into that of the husband” during the marriage. 1 William Blackstone, Commentaries on the Laws of England 441 (3d rev. ed. 1884). Under the principles of coverture, “a married woman [was] incapable, without her husband’s consent, of making contracts . . . binding on her or him.” Bradwell v. Illinois , 83 U.S. 130, 141 (1872) (Bradley, J., concurring). She could not sue or be sued without her husband’s consent. See, e.g., Nancy F. Cott, Public Vows: A History of Marriage and the Nation 11–12 (2000). Married women also could not serve as the legal guardians of their children. Frontiero v. Richardson, 411 U.S. 677, 685 (1973) (plurality op.).
Marriage laws further dictated economically disparate roles for husband and wife. In many respects, the marital contract was primarily understood as an economic arrangement between spouses, whether or not the couple had or would have children. “Coverture expressed the legal essence of marriage as reciprocal: a husband was bound to support his wife, and in exchange she gave over her property and labor.” Cott, Public Vows, at 54. That is why “married women traditionally were denied the legal capacity to hold or convey property . . . .” Frontiero, 411 U.S. at 685. Notably, husbands owed their wives support even if there were no children of the marriage. See, e.g., Hendrik Hartog, Man and Wife in America: A History 156 (2000).
There was also a significant disparity between the rights of husbands and wives with regard to physical intimacy. At common law, “a woman was the sexual property of her husband; that is, she had a duty to have intercourse with him.” John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America 79 (3d ed. 2012). Quite literally, a wife was legally “the possession of her husband, . . . [her] husband’s property.” Hartog, Man and Wife in America, at 137. Accordingly, a husband could sue his wife’s lover in tort for “entic[ing]” her or “alienat[ing]” her affections and thereby interfering with his property rights in her body and her labor. Id. A husband’s possessory interest in his wife was undoubtedly also driven by the fact that, historically, marriage was the only legal site for licit sex; sex outside of marriage was almost universally criminalized. See, e.g., Ariela R. Dubler, Immoral Purposes: Marriage and the Genus of Illicit Sex , 115 Yale L.J. 756, 763–64 (2006).
Notably, although sex was strongly presumed to be an essential part of marriage, the ability to procreate was generally not. See, e.g. , Chester Vernier, American

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Family Laws: A Comparative Study of the Family Law of the Forty-Eight American States, Alaska, the District of Columbia, and Hawaii (to Jan. 1, 1931) (1931) I § 50, 239–46 (at time of survey, grounds for annulment typically included impotency, as well as incapacity due to minority or “non-age”; lack of understanding and insanity; force or duress; fraud; disease; and incest; but not inability to conceive); II § 68, at 38–39 (1932) (at time of survey, grounds for divorce included “impotence”; vast majority of states “generally held that impotence. . . does not mean sterility but must be of such a nature as to render complete sexual intercourse practically impossible”; and only Pennsylvania “ma[d]e sterility a cause” for divorce).
The common law also dictated that it was legally impossible for a man to rape his wife. Men could not be prosecuted for spousal rape. A husband’s “incapacity” to rape his wife was justified by the theory that “‘the marriage constitute[d] a blanket consent to sexual intimacy which the woman [could] revoke only by dissolving the marital relationship.’” See, e.g. , Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape , 88 Calif. L. Rev 1373, 1376 n.9 (2000) (quoting Model Penal Code and Commentaries, § 213.1 cmt. 8(c), at 342 (Official Draft and Revised Comments 1980)).
Concomitantly, dissolving the marital partnership via divorce was exceedingly difficult. Through the mid-twentieth century, divorce could be obtained only on a limited set of grounds, if at all. At the beginning of our nation’s history, several states did not permit full divorce except under the narrowest of circumstances; separation alone was the remedy, even if a woman could show “cruelty endangering life or limb.” Peter W. Bardaglio, Reconstructing the Household: Families, Sex, and th e Law in th e Nineteenth-Century South 33 (1995); see also id. 32–33. In part, this policy dovetailed with the grim fact that, at English common law, and in several states through the beginning of the nineteenth century, “a husband’s prerogative to chastise his wife”—that is, to beat her short of permanent injury—was recognized as his marital right. Reva B. Siegel, “The Rule of Love”: Wife Beati ng as Prerogative and Privacy , 105 Yale L.J. 2117, 2125 (1996).
Id. at *20-21.
Women were not the only class deprived of equal status in “traditional marriage.” Until
the end of the Civil War in 1865, slaves were prohibited from contracting legal marriages and
often resorted to “jumping the broomstick” to mark a monogamous conjugal relationship.
Informal “slave marriage” was the rule until the end of the war, when Freedmen’s Bureaus began
issuing marriage licenses to former slaves who could establish the existence of long-standing
family relationships, despite the fact that family members were sometimes at great distances
from one another. The ritual of jumping the broomstick, thought of in this country in terms of

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slave marriages, actually originated in England, where civil marriages were not available until enactment of the Marriage Act of 1837. Prior to that, the performance of valid marriages was the sole prerogative of the Church of England, unless the participants were Quakers or Jews. The majority’s admiration for “traditional marriage” thus seems misplaced, if not naïve. The legal status has been through so many reforms that the marriage of same-sex couples constitutes merely the latest wave in a vast sea of change.

Rational-Basis Review.
The principal thrust of the majority’s rational-basis analysis is basically a reiteration of the same tired argument that the proponents of same-sex-marriage bans have raised in litigation across the country: marriage is about the regulation of “procreative urges” of men and women who therefore do not need the “government’s encouragement to have sex” but, instead, need encouragement to “create and maintain stable relationships within which children may flourish.” The majority contends that exclusion of same-sex couples from marriage must be considered rational based on “the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended children.” As previously noted, however, this argument is one that an eminent jurist has described as being “so full of holes that it cannot be taken seriously.” Baskin, 766 F.3d at 656 (Posner, J.).
At least my colleagues are perceptive enough to acknowledge that “[g]ay couples, no less than straight couples, are capable of sharing such relationships . . . [and] are capable of raising stable families.” The majority is even persuaded that the “quality of [same-sex] relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment.” All of which, the majority surmises, “supports the policy argument made by many that marriage laws should be extended to gay couples.” But this conclusion begs the question: why reverse the judgments of four federal district courts, in four different states, and in six different cases that would do just that?
There are apparently two answers; first, “let the people decide” and, second, “give it time.” The majority posits that “just as [same-sex marriage has been adopted in] nineteen states and the District of Columbia,” the change-agents in the Sixth Circuit should be “elected

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legislators, not life-tenured judges.” Of course, this argument fails to acknowledge the impracticalities involved in amending, re-amending, or un-amending a state constitution.6 More to the point, under our constitutional system, the courts are assigned the responsibility of determining individual rights under the Fourteenth Amendment, regardless of popular opinion or even a plebiscite. As the Supreme Court has noted, “It is plain that the electorate as a whole, whether by referendum or otherwise, could not order [government] action violative of the Equal Protection Clause, and the [government] may not avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the body politic.” City of Cleburne , 473 U.S. at 448 (internal citation omitted).
Moreover, as it turns out, legalization of same-sex marriage in the “nineteen states and the District of Columbia” mentioned by the majority was not uniformly the result of popular vote or legislative enactment. Nine states now permit same-sex marriage because of judicial decisions, both state and federal: Massachusetts, Connecticut, Iowa, New Mexico, and Colorado (state supreme court decisions); New Jersey (state superior court decision not appealed by defendant); California (federal district court decision allowed to stand in ruling by United States Supreme Court); and Oregon and Pennsylvania (federal district court decisions not appealed by defendants). Despite the majority’s insistence that, as life-tenured judges, we should step aside and let the voters determine the future of the state constitutional provisions at issue here, those nine federal and state courts have seen no acceptable reason to do so. In addition, another 16 states have been or soon will be added to the list, by virtue of the Supreme Court’s denial of certiorari review in Kitchen, Bostick, and Baskin, and the Court’s order dissolving the stay in Latta. The result has been the issuance of hundreds—perhaps thousands—of marriage licenses in the wake of those orders. Moreover, the 35 states that are now positioned to recognize samesex marriage are comparable to the 34 states that permitted interracial marriage when the

6In Tennessee, for example, a proposed amendment must first be approved by a simple majority of both
houses. In the succeeding legislative session, which can occur as long as a year or more later, the same proposed amendment must then be approved “by two-thirds of all the members elected to each house.” Tenn. Const. art. XI, § 3. The proposed amendment is then presented “to the people at the next general election in which a Governor is to be chosen,” id., which can occur as long as three years or more later. If a majority of all citizens voting in the gubernatorial election also approve of the proposed amendment, it is considered ratified. The procedure for amending the constitution by convention can take equally long and is, if anything, more complicated. In Michigan, a constitutional convention, one of three methods of amendment, can be called no more often than every 16 years. See Mich. Const. art. XII, § 3.

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Supreme Court decided Loving. If the majority in this case is waiting for a tipping point, it seems to have arrived.
The second contention is that we should “wait and see” what the fallout is in the states where same-sex marriage is now legal. The majority points primarily to Massachusetts, where same-sex couples have had the benefit of marriage for “only” ten years—not enough time, the majority insists, to know what the effect on society will be. But in the absence of hard evidence that the sky has actually fallen in, the “states as laboratories of democracy” metaphor and its pitch for restraint has little or no resonance in the fast-changing scene with regard to same-sex marriage. Yet, whenever the expansion of a constitutional right is proposed, “proceed with caution” seems to be the universal mantra of the opponents. The same argument was made by the State of Virginia in Loving. And, in Frontiero v. Richardson , 411 U.S. 677 (1973), the government asked the Court to postpone applying heightened scrutiny to allegations of gender discrimination in a statute denying equal benefits to women until the Equal Rights Amendment could be ratified. If the Court had listened to the argument, we would, of course, still be waiting. One is reminded of the admonition in Martin Luther King, Jr.’s “Letter from Birmingham Jail” (1963): “For years now I have heard the word "Wait”! . . . [But h]uman progress never rolls in on wheels of inevitability . . . [and] time itself becomes an ally of the forces of social stagnation.”

Animus
Finally, there is a need to address briefly the subject of unconstitutional animus, which the majority opinion equates only with actual malice and hostility on the part of members of the electorate. But in many instances involving rational-basis review, the Supreme Court has taken a more objective approach to the classification at issue, rather than a subjective one. Under such an analysis, it is not necessary for a court to divine individual malicious intent in order to find unconstitutional animus. Instead, the Supreme Court has instructed that an exclusionary law violates the Equal Protection Clause when it is based not upon relevant facts, but instead upon only a general, ephemeral distrust of, or discomfort with, a particular group, for example, when legislation is justified by the bare desire to exclude an unpopular group from a social institution or arrangement. In City of Cleburne , for example, the Court struck down a zoning regulation that was justified simply by the “negative attitude” of property owners in the community toward individuals with intellectual disabilities, not necessarily by actual malice toward an unpopular

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minority. In doing so, the Court held that “the City may not avoid the strictures of the [Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic,” 473 U.S. at 448, and cited Palmore v. Sidoti , 466 U.S. 429, 433 (1984), for the proposition that “[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” In any event, as the majority here concedes, we as a country have such a long history of prejudice based on sexual orientation that it seems hypocritical to deny the existence of unconstitutional animus in the rational-basis analysis of the cases before us.
To my mind, the soundest description of this analysis is found in Justice Stevens’s separate opinion in City of Cleburne:
In every equal protection case, we have to ask certain basic questions. What class is harmed by the legislation, and has it been subjected to a “tradition of disfavor” by our laws? What is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies the disparate treatment? In most cases the answer to these questions will tell us whether the statute has a “rational basis.”
Id. at 453 (Stevens, J., concurring) (footnotes omitted). I would apply just this analysis to the constitutional amendments and statutes at issue in these cases, confident that the result of the inquiry would be to affirm the district courts’ decisions in all six cases. I therefore dissent from the majority’s decision to overturn those judgments.
Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary. Of course, the framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims.
More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have the

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authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

 
 (Slip Opinion)

OCTOBER TERM, 2014

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO 
 DEPARTMENT OF HEALTH, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 14–556. Argued April 28, 2015—Decided June 26, 2015*
Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition. Each District Court ruled in petitioners’ favor, but the Sixth Circuit consolidated the cases and reversed.
Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Pp. 3–28. (a) Before turning to the governing principles and precedents, it is appropriate to note the history of the subject now before the Court. Pp. 3–10. (1) The history of marriage as a union between two persons of the opposite sex marks the beginning of these cases. To the respondents, it would demean a timeless institution if marriage were extended to same-sex couples. But the petitioners, far from seeking to devalue marriage, seek it for themselves because of their respect—and need—for its privileges and responsibilities, as illustrated by the pe-
—————— * Together with No. 14–562, Tanco et al. v. Haslam, Governor of Ten-
nessee, et al., No. 14–571, DeBoer et al. v. Snyder, Governor of Michigan, et al., and No. 14–574, Bourke et al. v. Beshear, Governor of Kentucky, also on certiorari to the same court.

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Syllabus
titioners’ own experiences. Pp. 3–6. (2) The history of marriage is one of both continuity and change.
Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.
This dynamic can be seen in the Nation’s experience with gay and lesbian rights. Well into the 20th century, many States condemned same-sex intimacy as immoral, and homosexuality was treated as an illness. Later in the century, cultural and political developments allowed same-sex couples to lead more open and public lives. Extensive public and private dialogue followed, along with shifts in public attitudes. Questions about the legal treatment of gays and lesbians soon reached the courts, where they could be discussed in the formal discourse of the law. In 2003, this Court overruled its 1986 decision in Bowers v. Hardwick, 478 U. S. 186, which upheld a Georgia law that criminalized certain homosexual acts, concluding laws making samesex intimacy a crime “demea[n] the lives of homosexual persons.” Lawrence v. Texas, 539 U. S. 558, 575. In 2012, the federal Defense of Marriage Act was also struck down. United States v. Windsor, 570 U. S. ___. Numerous same-sex marriage cases reaching the federal courts and state supreme courts have added to the dialogue. Pp. 6– 10.
(b) The Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Pp. 10–27.
(1) The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453; Griswold v. Connecticut, 381 U. S. 479, 484–486. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Applying these tenets, the Court has long held the right to marry is protected by the Constitution. For example, Loving v. Virginia, 388 U. S. 1, 12, invalidated bans on interracial unions, and Turner v. Safley, 482 U. S. 78, 95, held that prisoners could not be denied the right to marry. To be sure, these cases presumed a relationship in-

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3

Syllabus
volving opposite-sex partners, as did Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding that the exclusion of same-sex couples from marriage did not present a substantial federal question. But other, more instructive precedents have expressed broader principles. See, e.g., Lawrence, supra, at 574. In assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453–454. This analysis compels the conclusion that same-sex couples may exercise the right to marry. Pp. 10–12.
(2) Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12. Decisions about marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. This is true for all persons, whatever their sexual orientation.
A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception, 381 U. S., at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense. See Lawrence, supra, at 567.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___. This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate.

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Syllabus
Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. See Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. Pp. 12–18.
(3) The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet each may be instructive as to the meaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause; and in Zablocki v. Redhail, 434 U. S. 374, where the Court invalidated a law barring fathers delinquent on child-support payments from marrying. Indeed, recognizing that new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged, this Court has invoked equal protection principles to invalidate laws imposing sexbased inequality on marriage, see, e.g., Kirchberg v. Feenstra, 450 U. S. 455, 460–461, and confirmed the relation between liberty and equality, see, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 120–121.
The Court has acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See Lawrence, 539 U. S., at 575. This dynamic also applies to same-sex marriage. The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians. Pp. 18–22.
(4) The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protec-

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5

Syllabus
tion Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry. Baker v. Nelson is overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Pp. 22–23.
(5) There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right. Bowers, in effect, upheld state action that denied gays and lesbians a fundamental right. Though it was eventually repudiated, men and women suffered pain and humiliation in the interim, and the effects of these injuries no doubt lingered long after Bowers was overruled. A ruling against same-sex couples would have the same effect and would be unjustified under the Fourteenth Amendment. The petitioners’ stories show the urgency of the issue they present to the Court, which has a duty to address these claims and answer these questions. Respondents’ argument that allowing samesex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples’ decisions about marriage and parenthood. Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths. Pp. 23–27.
(c) The Fourteenth Amendment requires States to recognize samesex marriages validly performed out of State. Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character. Pp. 27–28.
772 F. 3d 388, reversed.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.

Cite as: 576 U. S. ____ (2015)

1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–556, 14-562, 14-571 and 14–574
_________________

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

JUSTICE KENNEDY delivered the opinion of the Court.
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow

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Opinion of the Court
persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.
I
These cases come from Michigan, Kentucky, Ohio, and Tennessee, States that define marriage as a union between one man and one woman. See, e.g., Mich. Const., Art. I, §25; Ky. Const. §233A; Ohio Rev. Code Ann. §3101.01 (Lexis 2008); Tenn. Const., Art. XI, §18. The petitioners are 14 same-sex couples and two men whose same-sex partners are deceased. The respondents are state officials responsible for enforcing the laws in question. The petitioners claim the respondents violate the Fourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed in another State, given full recognition.
Petitioners filed these suits in United States District Courts in their home States. Each District Court ruled in their favor. Citations to those cases are in Appendix A, infra. The respondents appealed the decisions against them to the United States Court of Appeals for the Sixth Circuit. It consolidated the cases and reversed the judgments of the District Courts. DeBoer v. Snyder, 772 F. 3d 388 (2014). The Court of Appeals held that a State has no constitutional obligation to license same-sex marriages or to recognize same-sex marriages performed out of State.
The petitioners sought certiorari. This Court granted review, limited to two questions. 574 U. S. ___ (2015). The first, presented by the cases from Michigan and Kentucky, is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. The second, presented by the cases from Ohio,

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3

Opinion of the Court
Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a State to recognize a samesex marriage licensed and performed in a State which does grant that right.
II
Before addressing the principles and precedents that govern these cases, it is appropriate to note the history of the subject now before the Court.
A
From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. 2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J. Legge transl. 1967). This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next, children; and then the family.” See De Officiis 57 (W. Miller transl. 1913). There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures,

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and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.
That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.
The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.
Recounting the circumstances of three of these cases illustrates the urgency of the petitioners’ cause from their perspective. Petitioner James Obergefell, a plaintiff in the Ohio case, met John Arthur over two decades ago. They fell in love and started a life together, establishing a lasting, committed relation. In 2011, however, Arthur was diagnosed with amyotrophic lateral sclerosis, or ALS. This debilitating disease is progressive, with no known cure. Two years ago, Obergefell and Arthur decided to commit to one another, resolving to marry before Arthur died. To fulfill their mutual promise, they traveled from

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Ohio to Maryland, where same-sex marriage was legal. It was difficult for Arthur to move, and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur’s death certificate. By statute, they must remain strangers even in death, a stateimposed separation Obergefell deems “hurtful for the rest of time.” App. in No. 14–556 etc., p. 38. He brought suit to be shown as the surviving spouse on Arthur’s death certificate.
April DeBoer and Jayne Rowse are co-plaintiffs in the case from Michigan. They celebrated a commitment ceremony to honor their permanent relation in 2007. They both work as nurses, DeBoer in a neonatal unit and Rowse in an emergency unit. In 2009, DeBoer and Rowse fostered and then adopted a baby boy. Later that same year, they welcomed another son into their family. The new baby, born prematurely and abandoned by his biological mother, required around-the-clock care. The next year, a baby girl with special needs joined their family. Michigan, however, permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent. If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt. This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives.
Army Reserve Sergeant First Class Ijpe DeKoe and his partner Thomas Kostura, co-plaintiffs in the Tennessee case, fell in love. In 2011, DeKoe received orders to deploy to Afghanistan. Before leaving, he and Kostura married in New York. A week later, DeKoe began his deployment, which lasted for almost a year. When he returned, the two

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settled in Tennessee, where DeKoe works full-time for the Army Reserve. Their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines. DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.
The cases now before the Court involve other petitioners as well, each with their own experiences. Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses’ memory, joined by its bond.
B
The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.
For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman. See N. Cott, Public Vows: A History of Marriage and the Nation 9–17 (2000); S. Coontz, Marriage, A History 15–16 (2005). As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. See Brief for Historians of Marriage et al. as Amici Curiae 16–19. These and other developments in the institution of marriage over the past centuries were not mere superficial changes.

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Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000).
These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.
This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians. Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate. See Brief for Organization of American Historians as Amicus Curiae 5–28.
For much of the 20th century, moreover, homosexuality was treated as an illness. When the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until 1973. See Position Statement on Homosexuality and Civil

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Rights, 1973, in 131 Am. J. Psychiatry 497 (1974). Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable. See Brief for American Psychological Association et al. as Amici Curiae 7–17.
In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance. As a result, questions about the rights of gays and lesbians soon reached the courts, where the issue could be discussed in the formal discourse of the law.
This Court first gave detailed consideration to the legal status of homosexuals in Bowers v. Hardwick, 478 U. S. 186 (1986). There it upheld the constitutionality of a Georgia law deemed to criminalize certain homosexual acts. Ten years later, in Romer v. Evans, 517 U. S. 620 (1996), the Court invalidated an amendment to Colorado’s Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation. Then, in 2003, the Court overruled Bowers, holding that laws making same-sex intimacy a crime “demea[n] the lives of homosexual persons.” Lawrence v. Texas, 539 U. S. 558, 575.
Against this background, the legal question of same-sex marriage arose. In 1993, the Hawaii Supreme Court held Hawaii’s law restricting marriage to opposite-sex couples constituted a classification on the basis of sex and was therefore subject to strict scrutiny under the Hawaii Constitution. Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44. Although this decision did not mandate that same-sex marriage be allowed, some States were concerned by its implications and reaffirmed in their laws that marriage is

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defined as a union between opposite-sex partners. So too in 1996, Congress passed the Defense of Marriage Act (DOMA), 110 Stat. 2419, defining marriage for all federallaw purposes as “only a legal union between one man and one woman as husband and wife.” 1 U. S. C. §7.
The new and widespread discussion of the subject led other States to a different conclusion. In 2003, the Supreme Judicial Court of Massachusetts held the State’s Constitution guaranteed same-sex couples the right to marry. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003). After that ruling, some additional States granted marriage rights to samesex couples, either through judicial or legislative processes. These decisions and statutes are cited in Appendix B, infra. Two Terms ago, in United States v. Windsor, 570 U. S. ___ (2013), this Court invalidated DOMA to the extent it barred the Federal Government from treating same-sex marriages as valid even when they were lawful in the State where they were licensed. DOMA, the Court held, impermissibly disparaged those same-sex couples “who wanted to affirm their commitment to one another before their children, their family, their friends, and their community.” Id., at ___ (slip op., at 14).
Numerous cases about same-sex marriage have reached the United States Courts of Appeals in recent years. In accordance with the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues. That case law helps to explain and formulate the underlying principles this Court now must consider. With the exception of the opinion here under review and one other, see Citizens for Equal Protection v. Bruning, 455 F. 3d 859, 864–868 (CA8 2006), the Courts of Appeals have held that excluding same-sex couples from marriage violates the Constitution. There also have been many

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thoughtful District Court decisions addressing same-sex marriage—and most of them, too, have concluded samesex couples must be allowed to marry. In addition the highest courts of many States have contributed to this ongoing dialogue in decisions interpreting their own State Constitutions. These state and federal judicial opinions are cited in Appendix A, infra.
After years of litigation, legislation, referenda, and the discussions that attended these public acts, the States are now divided on the issue of same-sex marriage. See Office of the Atty. Gen. of Maryland, The State of Marriage Equality in America, State-by-State Supp. (2015).
III
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453 (1972); Griswold v. Connecticut, 381 U. S. 479, 484–486 (1965).
The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradi-

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tion guide and discipline this inquiry but do not set its outer boundaries. See Lawrence, supra, at 572. That method respects our history and learns from it without allowing the past alone to rule the present.
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley, 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause. See, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 116 (1996); Cleveland Bd. of Ed. v. LaFleur, 414 U. S. 632, 639–640 (1974); Griswold, supra, at 486; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942); Meyer v. Nebraska, 262 U. S. 390, 399 (1923).
It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions,

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has made assumptions defined by the world and time of which it is a part. This was evident in Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.
Still, there are other, more instructive precedents. This Court’s cases have expressed constitutional principles of broader reach. In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond. See, e.g., Lawrence, 539 U. S., at 574; Turner, supra, at 95; Zablocki, supra, at 384; Loving, supra, at 12; Griswold, supra, at 486. And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453–454; Poe, supra, at 542–553 (Harlan, J., dissenting).
This analysis compels the conclusion that same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.
A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki, supra, at 384 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. Indeed, the Court has noted it would

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be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.” Zablocki, supra, at 386.
Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.” Goodridge, 440 Mass., at 322, 798 N. E. 2d, at 955.
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Windsor, 570 U. S., at ___– ___ (slip op., at 22–23). There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12 (“[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”).
A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception. 381 U. S., at 485. Suggesting that marriage is a right “older than the Bill of Rights,” Griswold described marriage this way:
“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social

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projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. ” Id., at 486.
And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U. S., at 95–96. The right to marry thus dignifies couples who “wish to define themselves by their commitment to each other.” Windsor, supra, at ___ (slip op., at 14). Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.
As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made samesex intimacy a criminal act. And it acknowledged that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” 539 U. S., at 567. But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer, 262 U. S., at 399. The Court has recognized these connections by describing the varied rights as a unified whole: “[T]he right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.” Zablocki, 434 U. S., at 384

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(quoting Meyer, supra, at 399). Under the laws of the several States, some of marriage’s protections for children and families are material. But marriage also confers more profound benefits. By giving recognition and legal structure to their parents’ relationship, marriage allows children “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, supra, at ___ (slip op., at 23). Marriage also affords the permanency and stability important to children’s best interests. See Brief for Scholars of the Constitutional Rights of Children as Amici Curiae 22–27.
As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. See Brief for Gary J. Gates as Amicus Curiae 4. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents, see id., at 5. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___ (slip op., at 23).
That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of

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precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.
Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order. Alexis de Tocqueville recognized this truth on his travels through the United States almost two centuries ago:
“There is certainly no country in the world where the tie of marriage is so much respected as in America . . . [W]hen the American retires from the turmoil of public life to the bosom of his family, he finds in it the image of order and of peace . . . . [H]e afterwards carries [that image] with him into public affairs.” 1 Democracy in America 309 (H. Reeve transl., rev. ed. 1990).
In Maynard v. Hill, 125 U. S. 190, 211 (1888), the Court echoed de Tocqueville, explaining that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress.” Marriage, the Maynard Court said, has long been “ ‘a great public institution, giving character to our whole civil polity.’ ” Id., at 213. This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential. See generally N. Cott, Public Vows. Marriage remains a building block of our national community.
For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the

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basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. See Brief for United States as Amicus Curiae 6–9; Brief for American Bar Association as Amicus Curiae 8–29. Valid marriage under state law is also a significant status for over a thousand provisions of federal law. See Windsor, 570 U. S., at ___ – ___ (slip op., at 15–16). The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.
There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come

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the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.
Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which called for a “ ‘careful description’ ” of fundamental rights. They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent “right to same-sex marriage.” Brief for Respondent in No. 14–556, p. 8. Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right. See also Glucksberg, 521 U. S., at 752–773 (Souter, J., concurring in judgment); id., at 789–792 (BREYER, J., concurring in judgments).
That principle applies here. If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving 388 U. S., at 12; Lawrence, 539 U. S., at 566–567.
The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources

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alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. See M. L. B., 519 U. S., at 120– 121; id., at 128–129 (KENNEDY, J., concurring in judgment); Bearden v. Georgia, 461 U. S. 660, 665 (1983). This interrelation of the two principles furthers our understanding of what freedom is and must become.
The Court’s cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause. The Court

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first declared the prohibition invalid because of its unequal treatment of interracial couples. It stated: “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” 388 U. S., at 12. With this link to equal protection the Court proceeded to hold the prohibition offended central precepts of liberty: “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” Ibid. The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions.
The synergy between the two protections is illustrated further in Zablocki. There the Court invoked the Equal Protection Clause as its basis for invalidating the challenged law, which, as already noted, barred fathers who were behind on child-support payments from marrying without judicial approval. The equal protection analysis depended in central part on the Court’s holding that the law burdened a right “of fundamental importance.” 434 U. S., at 383. It was the essential nature of the marriage right, discussed at length in Zablocki, see id., at 383–387, that made apparent the law’s incompatibility with requirements of equality. Each concept—liberty and equal protection—leads to a stronger understanding of the other.
Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970’s and 1980’s. Notwithstanding the gradual erosion of the doctrine of cover-

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ture, see supra, at 6, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reed v. Reed, O. T. 1971, No. 70–4, pp. 69–88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These classifications denied the equal dignity of men and women. One State’s law, for example, provided in 1971 that “the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.” Ga. Code Ann. §53–501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage. See, e.g., Kirchberg v. Feenstra, 450 U. S. 455 (1981); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142 (1980); Califano v. Westcott, 443 U. S. 76 (1979); Orr v. Orr, 440 U. S. 268 (1979); Califano v. Goldfarb, 430 U. S. 199 (1977) (plurality opinion); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero v. Richardson, 411 U. S. 677 (1973). Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution.
Other cases confirm this relation between liberty and equality. In M. L. B. v. S. L. J., the Court invalidated under due process and equal protection principles a statute requiring indigent mothers to pay a fee in order to appeal the termination of their parental rights. See 519 U. S., at 119–124. In Eisenstadt v. Baird, the Court invoked both principles to invalidate a prohibition on the distribution of contraceptives to unmarried persons but not married persons. See 405 U. S., at 446–454. And in Skinner v. Oklahoma ex rel. Williamson, the Court invalidated under both principles a law that allowed steriliza-

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tion of habitual criminals. See 316 U. S., at 538–543. In Lawrence the Court acknowledged the interlocking
nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See 539 U. S., at 575. Although Lawrence elaborated its holding under the Due Process Clause, it acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State. See ibid. Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State “cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Id., at 578.
This dynamic also applies to same-sex marriage. It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. See, e.g., Zablocki, supra, at 383–388; Skinner, 316 U. S., at 541.
These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No

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Opinion of the Court
longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as oppositesex couples.
IV
There may be an initial inclination in these cases to proceed with caution—to await further legislation, litigation, and debate. The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage. In its ruling on the cases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would be appropriate for the respondents’ States to await further public discussion and political measures before licensing same-sex marriages. See DeBoer, 772 F. 3d, at 409.
Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts. See Appendix A, infra. Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades. As more than 100 amici make clear in their filings, many of the central institutions in American life—state and local governments, the military, large and small businesses, labor unions, religious organizations, law enforcement, civic groups, professional organizations, and universities— have devoted substantial attention to the question. This has led to an enhanced understanding of the issue—an understanding reflected in the arguments now presented

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for resolution as a matter of constitutional law. Of course, the Constitution contemplates that democ-
racy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN, 572 U. S. ___ (2014), noting the “right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, “[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” Id., at ___ (slip op., at 15). Thus, when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking. Id., at ___ (slip op., at 17). This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.
The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943). This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Ibid.

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Opinion of the Court
It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of samesex couples to marry.
This is not the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights. In Bowers, a bare majority upheld a law criminalizing same-sex intimacy. See 478 U. S., at 186, 190–195. That approach might have been viewed as a cautious endorsement of the democratic process, which had only just begun to consider the rights of gays and lesbians. Yet, in effect, Bowers upheld state action that denied gays and lesbians a fundamental right and caused them pain and humiliation. As evidenced by the dissents in that case, the facts and principles necessary to a correct holding were known to the Bowers Court. See id., at 199 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting); id., at 214 (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). That is why Lawrence held Bowers was “not correct when it was decided.” 539 U. S., at 578. Although Bowers was eventually repudiated in Lawrence, men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after Bowers was overruled. Dignitary wounds cannot always be healed with the stroke of a pen.
A ruling against same-sex couples would have the same effect—and, like Bowers, would be unjustified under the Fourteenth Amendment. The petitioners’ stories make clear the urgency of the issue they present to the Court. James Obergefell now asks whether Ohio can erase his marriage to John Arthur for all time. April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon. Ijpe DeKoe and

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Thomas Kostura now ask whether Tennessee can deny to one who has served this Nation the basic dignity of recognizing his New York marriage. Properly presented with the petitioners’ cases, the Court has a duty to address these claims and answer these questions.
Indeed, faced with a disagreement among the Courts of Appeals—a disagreement that caused impermissible geographic variation in the meaning of federal law—the Court granted review to determine whether same-sex couples may exercise the right to marry. Were the Court to uphold the challenged laws as constitutional, it would teach the Nation that these laws are in accord with our society’s most basic compact. Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.
The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so. See Kitchen v. Herbert, 755 F. 3d 1193, 1223 (CA10 2014) (“[I]t is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples”). The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they

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27

Opinion of the Court
describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing samesex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
V
These cases also present the question whether the Constitution requires States to recognize same-sex marriages validly performed out of State. As made clear by the case of Obergefell and Arthur, and by that of DeKoe and Kostura, the recognition bans inflict substantial and continuing harm on same-sex couples.
Being married in one State but having that valid marriage denied in another is one of “the most perplexing and distressing complication[s]” in the law of domestic relations. Williams v. North Carolina, 317 U. S. 287, 299 (1942) (internal quotation marks omitted). Leaving the current state of affairs in place would maintain and pro-

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mote instability and uncertainty. For some couples, even an ordinary drive into a neighboring State to visit family or friends risks causing severe hardship in the event of a spouse’s hospitalization while across state lines. In light of the fact that many States already allow same-sex marriage—and hundreds of thousands of these marriages already have occurred—the disruption caused by the recognition bans is significant and ever-growing.
As counsel for the respondents acknowledged at argument, if States are required by the Constitution to issue marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined. See Tr. of Oral Arg. on Question 2, p. 44. The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.
* * *
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.

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29

AppendOixpiAnitoonoopfinthioenCoofutrhte Court

APPENDICES 

A 
 State and Federal Judicial Decisions 

Addressing Same-Sex Marriage


United States Courts of Appeals Decisions

Adams v. Howerton, 673 F. 2d 1036 (CA9 1982) Smelt v. County of Orange, 447 F. 3d 673 (CA9 2006)
Citizens for Equal Protection v. Bruning, 455 F. 3d 859 (CA8 2006)
Windsor v. United States, 699 F. 3d 169 (CA2 2012) Massachusetts v. Department of Health and Human
Services, 682 F. 3d 1 (CA1 2012) Perry v. Brown, 671 F. 3d 1052 (CA9 2012)
Latta v. Otter, 771 F. 3d 456 (CA9 2014) Baskin v. Bogan, 766 F. 3d 648 (CA7 2014)
Bishop v. Smith, 760 F. 3d 1070 (CA10 2014) Bostic v. Schaefer, 760 F. 3d 352 (CA4 2014)
Kitchen v. Herbert, 755 F. 3d 1193 (CA10 2014) DeBoer v. Snyder, 772 F. 3d 388 (CA6 2014)
Latta v. Otter, 779 F. 3d 902 (CA9 2015) (O’Scannlain, J., dissenting from the denial of rehearing en banc)

United States District Court Decisions

Adams v. Howerton, 486 F. Supp. 1119 (CD Cal. 1980) Citizens for Equal Protection, Inc. v. Bruning, 290
F. Supp. 2d 1004 (Neb. 2003) Citizens for Equal Protection v. Bruning, 368 F. Supp.
2d 980 (Neb. 2005)
Wilson v. Ake, 354 F. Supp. 2d 1298 (MD Fla. 2005) Smelt v. County of Orange, 374 F. Supp. 2d 861 (CD Cal.
2005) Bishop v. Oklahoma ex rel. Edmondson, 447 F. Supp. 2d
1239 (ND Okla. 2006)

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AppendOixpiAnitoonoopfinthioenCoofutrhte Court
Massachusetts v. Department of Health and Human Services, 698 F. Supp. 2d 234 (Mass. 2010)
Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (Mass. 2010)
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (ND Cal. 2010)
Dragovich v. Department of Treasury, 764 F. Supp. 2d 1178 (ND Cal. 2011)
Golinski v. Office of Personnel Management, 824
 F. Supp. 2d 968 (ND Cal. 2012)

Dragovich v. Department of Treasury, 872 F. Supp. 2d
 944 (ND Cal. 2012)

Windsor v. United States, 833 F. Supp. 2d 394 (SDNY
 2012) 

Pedersen v. Office of Personnel Management, 881 
 F. Supp. 2d 294 (Conn. 2012)
Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (Haw. 2012)
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (Nev. 2012) Merritt v. Attorney General, 2013 WL 6044329 (MD La., Nov. 14, 2013) Gray v. Orr, 4 F. Supp. 3d 984 (ND Ill. 2013) Lee v. Orr, 2013 WL 6490577 (ND Ill., Dec. 10, 2013) Kitchen v. Herbert, 961 F. Supp. 2d 1181 (Utah 2013) Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (SD Ohio 2013) Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (ND Okla. 2014) Bourke v. Beshear, 996 F. Supp. 2d 542 (WD Ky. 2014) Lee v. Orr, 2014 WL 683680 (ND Ill., Feb. 21, 2014) Bostic v. Rainey, 970 F. Supp. 2d 456 (ED Va. 2014) De Leon v. Perry, 975 F. Supp. 2d 632 (WD Tex. 2014) Tanco v. Haslam, 7 F. Supp. 3d 759 (MD Tenn. 2014) DeBoer v. Snyder, 973 F. Supp. 2d 757 (ED Mich. 2014) Henry v. Himes, 14 F. Supp. 3d 1036 (SD Ohio 2014) Latta v. Otter, 19 F. Supp. 3d 1054 (Idaho 2014)

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31

AppendOixpiAnitoonoopfinthioenCoofutrhte Court
Geiger v. Kitzhaber, 994 F. Supp. 2d 1128 (Ore. 2014) Evans v. Utah, 21 F. Supp. 3d 1192 (Utah 2014) Whitewood v. Wolf, 992 F. Supp. 2d 410 (MD Pa. 2014) Wolf v. Walker, 986 F. Supp. 2d 982 (WD Wis. 2014) Baskin v. Bogan, 12 F. Supp. 3d 1144 (SD Ind. 2014) Love v. Beshear, 989 F. Supp. 2d 536 (WD Ky. 2014) Burns v. Hickenlooper, 2014 WL 3634834 (Colo., July 23, 2014) Bowling v. Pence, 39 F. Supp. 3d 1025 (SD Ind. 2014) Brenner v. Scott, 999 F. Supp. 2d 1278 (ND Fla. 2014) Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (ED La. 2014) General Synod of the United Church of Christ v. Resinger, 12 F. Supp. 3d 790 (WDNC 2014) Hamby v. Parnell, 56 F. Supp. 3d 1056 (Alaska 2014) Fisher-Borne v. Smith, 14 F. Supp. 3d 695 (MDNC 2014) Majors v. Horne, 14 F. Supp. 3d 1313 (Ariz. 2014) Connolly v. Jeanes, ___ F. Supp. 3d ___, 2014 WL 5320642 (Ariz., Oct. 17, 2014) Guzzo v. Mead, 2014 WL 5317797 (Wyo., Oct. 17, 2014) Conde-Vidal v. Garcia-Padilla, 54 F. Supp. 3d 157 (PR 2014) Marie v. Moser, ___ F. Supp. 3d ___, 2014 WL 5598128 (Kan., Nov. 4, 2014) Lawson v. Kelly, 58 F. Supp. 3d 923 (WD Mo. 2014) McGee v. Cole, ___ F. Supp. 3d ___, 2014 WL 5802665 (SD W. Va., Nov. 7, 2014) Condon v. Haley, 21 F. Supp. 3d 572 (S. C. 2014) Bradacs v. Haley, 58 F. Supp. 3d 514 (S. C. 2014) Rolando v. Fox, 23 F. Supp. 3d 1227 (Mont. 2014) Jernigan v. Crane, ___ F. Supp. 3d ___, 2014 WL 6685391 (ED Ark., Nov. 25, 2014) Campaign for Southern Equality v. Bryant, ___ F. Supp. 3d ___, 2014 WL 6680570 (SD Miss., Nov. 25, 2014) Inniss v. Aderhold, ___ F. Supp. 3d ___, 2015 WL 300593 (ND Ga., Jan. 8, 2015)

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AppendOixpiAnitoonoopfinthioenCoofutrhte Court
Rosenbrahn v. Daugaard, 61 F. Supp. 3d 862 (S. D., 2015)
Caspar v. Snyder, ___ F. Supp. 3d ___, 2015 WL 224741 (ED Mich., Jan. 15, 2015)
Searcey v. Strange, 2015 U. S. Dist. LEXIS 7776 (SD Ala., Jan. 23, 2015)
Strawser v. Strange, 44 F. Supp. 3d 1206 (SD Ala. 2015) Waters v. Ricketts, 48 F. Supp. 3d 1271 (Neb. 2015)

State Highest Court Decisions
Baker v. Nelson, 291 Minn. 310, 191 N. W. 2d 185 (1971) Jones v. Hallahan, 501 S. W. 2d 588 (Ky. 1973) Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993) Dean v. District of Columbia, 653 A. 2d 307 (D. C. 1995) Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999) Brause v. State, 21 P. 3d 357 (Alaska 2001) (ripeness) Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003) In re Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N. E. 2d 565 (2004) Li v. State, 338 Or. 376, 110 P. 3d 91 (2005) Cote-Whitacre v. Department of Public Health,446 Mass. 350, 844 N. E. 2d 623 (2006) Lewis v. Harris, 188 N. J. 415, 908 A. 2d 196 (2006) Andersen v. King County, 158 Wash. 2d 1, 138 P. 3d 963 (2006) Hernandez v. Robles, 7 N. Y. 3d 338, 855 N. E. 2d 1 (2006) Conaway v. Deane, 401 Md. 219, 932 A. 2d 571 (2007) In re Marriage Cases, 43 Cal. 4th 757, 183 P. 3d 384 (2008) Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A. 2d 407 (2008) Strauss v. Horton, 46 Cal. 4th 364, 207 P. 3d 48 (2009)

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33

AppendOixpiAnitoonoopfinthioenCoofutrhte Court
Varnum v. Brien, 763 N. W. 2d 862 (Iowa 2009) 
 Griego v. Oliver, 2014–NMSC–003, ___ N. M. ___, 316 
 P. 3d 865 (2013) Garden State Equality v. Dow, 216 N. J. 314, 79 A. 3d 1036 (2013) Ex parte State ex rel. Alabama Policy Institute, ___ So. 3d ___, 2015 WL 892752 (Ala., Mar. 3, 2015)

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AppendOixpiBnitoonoopfinthioenCoofutrhte Court
B 
 State Legislation and Judicial Decisions

Legalizing Same-Sex Marriage


Legislation

Del. Code Ann., Tit. 13, §129 (Cum. Supp. 2014) D. C. Act No. 18–248, 57 D. C. Reg. 27 (2010) Haw. Rev. Stat. §572 –1 (2006) and 2013 Cum. Supp.)
Ill. Pub. Act No. 98–597 Me. Rev. Stat. Ann., Tit. 19, §650–A (Cum. Supp. 2014) 2012 Md. Laws p. 9
2013 Minn Laws p. 404 2009 N. H. Laws p. 60
2011 N. Y Laws p. 749 2013 R. I. Laws p. 7 2009 Vt. Acts & Resolves p. 33
2012 Wash. Sess. Laws p. 199

Judicial Decisions
Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003)
Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A. 2d 407 (2008)
Varnum v. Brien, 763 N. W. 2d 862 (Iowa 2009) Griego v. Oliver, 2014–NMSC–003, ___ N. M. ___, 316 P. 3d 865 (2013) Garden State Equality v. Dow, 216 N. J. 314, 79 A. 3d 1036 (2013)

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1

ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–556, 14-562, 14-571 and 14–574
_________________

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the

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OBERGEFELL v. HODGES

ROBERTS, C. J., dissenting
past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.
But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered).
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.
Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

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3

ROBERTS, C. J., dissenting
The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become.” Ante, at 19. I have no choice but to dissent.
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

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ROBERTS, C. J., dissenting

I 

Petitioners and their amici base their arguments on the “right to marry” and the imperative of “marriage equality.” There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?
The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two. Even if history and precedent are not “the end” of these cases, ante, at 4, I would not “sweep away what has so long been settled” without showing greater respect for all that preceded us. Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (slip op., at 8).
A
As the majority acknowledges, marriage “has existed for millennia and across civilizations.” Ante, at 3. For all those millennia, across all those civilizations, “marriage” referred to only one relationship: the union of a man and a woman. See ante, at 4; Tr. of Oral Arg. on Question 1, p. 12 (petitioners conceding that they are not aware of any society that permitted same-sex marriage before 2001). As the Court explained two Terms ago, “until recent years, . . . marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 13).
This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbi-

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ans. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. See G. Quale, A History of Marriage Systems 2 (1988); cf. M. Cicero, De Officiis 57 (W. Miller transl. 1913) (“For since the reproductive instinct is by nature’s gift the common possession of all living creatures, the first bond of union is that between husband and wife; the next, that between parents and children; then we find one home, with everything in common.”).
The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.
Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.” J. Q. Wilson, The Marriage Problem 41 (2002).
This singular understanding of marriage has prevailed in the United States throughout our history. The majority accepts that at “the time of the Nation’s founding [marriage] was understood to be a voluntary contract between

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a man and a woman.” Ante, at 6. Early Americans drew heavily on legal scholars like William Blackstone, who regarded marriage between “husband and wife” as one of the “great relations in private life,” and philosophers like John Locke, who described marriage as “a voluntary compact between man and woman” centered on “its chief end, procreation” and the “nourishment and support” of children. 1 W. Blackstone, Commentaries *410; J. Locke, Second Treatise of Civil Government §§78–79, p. 39 (J. Gough ed. 1947). To those who drafted and ratified the Constitution, this conception of marriage and family “was a given: its structure, its stability, roles, and values accepted by all.” Forte, The Framers’ Idea of Marriage and Family, in The Meaning of Marriage 100, 102 (R. George & J. Elshtain eds. 2006).
The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife.” Windsor, 570 U. S., at ___ (slip op., at 17) (quoting In re Burrus, 136 U. S. 586, 593–594 (1890)). There is no dispute that every State at the founding—and every State throughout our history until a dozen years ago—defined marriage in the traditional, biologically rooted way. The four States in these cases are typical. Their laws, before and after statehood, have treated marriage as the union of a man and a woman. See DeBoer v. Snyder, 772 F. 3d 388, 396–399 (CA6 2014). Even when state laws did not specify this definition expressly, no one doubted what they meant. See Jones v. Hallahan, 501 S. W. 2d 588, 589 (Ky. App. 1973). The meaning of “marriage” went without saying.
Of course, many did say it. In his first American dictionary, Noah Webster defined marriage as “the legal union of a man and woman for life,” which served the purposes of “preventing the promiscuous intercourse of the sexes, . . . promoting domestic felicity, and . . . securing the

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maintenance and education of children.” 1 An American Dictionary of the English Language (1828). An influential 19th-century treatise defined marriage as “a civil status, existing in one man and one woman legally united for life for those civil and social purposes which are based in the distinction of sex.” J. Bishop, Commentaries on the Law of Marriage and Divorce 25 (1852). The first edition of Black’s Law Dictionary defined marriage as “the civil status of one man and one woman united in law for life.” Black’s Law Dictionary 756 (1891) (emphasis deleted). The dictionary maintained essentially that same definition for the next century.
This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning. Early cases on the subject referred to marriage as “the union for life of one man and one woman,” Murphy v. Ramsey, 114 U. S. 15, 45 (1885), which forms “the foundation of the family and of society, without which there would be neither civilization nor progress,” Maynard v. Hill, 125 U. S. 190, 211 (1888). We later described marriage as “fundamental to our very existence and survival,” an understanding that necessarily implies a procreative component. Loving v. Virginia, 388 U. S. 1, 12 (1967); see Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942). More recent cases have directly connected the right to marry with the “right to procreate.” Zablocki v. Redhail, 434 U. S. 374, 386 (1978).
As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court.

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Loving, 388 U. S., at 6–7. The majority observes that these developments “were
not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” Ante, at 6–7. They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 6.
B
Shortly after this Court struck down racial restrictions on marriage in Loving, a gay couple in Minnesota sought a marriage license. They argued that the Constitution required States to allow marriage between people of the same sex for the same reasons that it requires States to allow marriage between people of different races. The Minnesota Supreme Court rejected their analogy to Loving, and this Court summarily dismissed an appeal. Baker v. Nelson, 409 U. S. 810 (1972).
In the decades after Baker, greater numbers of gays and lesbians began living openly, and many expressed a desire to have their relationships recognized as marriages. Over time, more people came to see marriage in a way that could be extended to such couples. Until recently, this new view of marriage remained a minority position. After the Massachusetts Supreme Judicial Court in 2003 interpreted its State Constitution to require recognition of same-sex marriage, many States—including the four at issue here—enacted constitutional amendments formally adopting the longstanding definition of marriage.
Over the last few years, public opinion on marriage has

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shifted rapidly. In 2009, the legislatures of Vermont, New Hampshire, and the District of Columbia became the first in the Nation to enact laws that revised the definition of marriage to include same-sex couples, while also providing accommodations for religious believers. In 2011, the New York Legislature enacted a similar law. In 2012, voters in Maine did the same, reversing the result of a referendum just three years earlier in which they had upheld the traditional definition of marriage.
In all, voters and legislators in eleven States and the District of Columbia have changed their definitions of marriage to include same-sex couples. The highest courts of five States have decreed that same result under their own Constitutions. The remainder of the States retain the traditional definition of marriage.
Petitioners brought lawsuits contending that the Due Process and Equal Protection Clauses of the Fourteenth Amendment compel their States to license and recognize marriages between same-sex couples. In a carefully reasoned decision, the Court of Appeals acknowledged the democratic “momentum” in favor of “expand[ing] the definition of marriage to include gay couples,” but concluded that petitioners had not made “the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.” 772 F. 3d, at 396, 403. That decision interpreted the Constitution correctly, and I would affirm.
II
Petitioners first contend that the marriage laws of their States violate the Due Process Clause. The Solicitor General of the United States, appearing in support of petitioners, expressly disowned that position before this Court. See Tr. of Oral Arg. on Question 1, at 38–39. The majority nevertheless resolves these cases for petitioners based

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almost entirely on the Due Process Clause. The majority purports to identify four “principles and
traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. Ante, at 12. In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45. Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.
A
Petitioners’ “fundamental right” claim falls into the most sensitive category of constitutional adjudication. Petitioners do not contend that their States’ marriage laws violate an enumerated constitutional right, such as the freedom of speech protected by the First Amendment. There is, after all, no “Companionship and Understanding” or “Nobility and Dignity” Clause in the Constitution. See ante, at 3, 14. They argue instead that the laws violate a right implied by the Fourteenth Amendment’s requirement that “liberty” may not be deprived without “due process of law.”
This Court has interpreted the Due Process Clause to include a “substantive” component that protects certain liberty interests against state deprivation “no matter what process is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993). The theory is that some liberties are “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and therefore cannot be deprived without compelling justification. Snyder v. Massachusetts, 291

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U. S. 97, 105 (1934). Allowing unelected federal judges to select which un-
enumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. Our precedents have accordingly insisted that judges “exercise the utmost care” in identifying implied fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Washington v. Glucksberg, 521 U. S. 702, 720 (1997) (internal quotation marks omitted); see Kennedy, Unenumerated Rights and the Dictates of Judicial Restraint 13 (1986) (Address at Stanford) (“One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.”).
The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” Id., at 450. In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical

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opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Id., at 621.
Dred Scott’s holding was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox, but its approach to the Due Process Clause reappeared. In a series of early 20th-century cases, most prominently Lochner v. New York, this Court invalidated state statutes that presented “meddlesome interferences with the rights of the individual,” and “undue interference with liberty of person and freedom of contract.” 198 U. S., at 60, 61. In Lochner itself, the Court struck down a New York law setting maximum hours for bakery employees, because there was “in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law.” Id., at 58.
The dissenting Justices in Lochner explained that the New York law could be viewed as a reasonable response to legislative concern about the health of bakery employees, an issue on which there was at least “room for debate and for an honest difference of opinion.” Id., at 72 (opinion of Harlan, J.). The majority’s contrary conclusion required adopting as constitutional law “an economic theory which a large part of the country does not entertain.” Id., at 75 (opinion of Holmes, J.). As Justice Holmes memorably put it, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a leading work on the philosophy of Social Darwinism. Ibid. The Constitution “is not intended to embody a particular economic theory . . . . It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embody-

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ing them conflict with the Constitution.” Id., at 75–76. In the decades after Lochner, the Court struck down
nearly 200 laws as violations of individual liberty, often over strong dissents contending that “[t]he criterion of constitutionality is not whether we believe the law to be for the public good.” Adkins v. Children’s Hospital of D. C., 261 U. S. 525, 570 (1923) (opinion of Holmes, J.). By empowering judges to elevate their own policy judgments to the status of constitutionally protected “liberty,” the Lochner line of cases left “no alternative to regarding the court as a . . . legislative chamber.” L. Hand, The Bill of Rights 42 (1958).
Eventually, the Court recognized its error and vowed not to repeat it. “The doctrine that . . . due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely,” we later explained, “has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Ferguson v. Skrupa, 372 U. S. 726, 730 (1963); see DayBrite Lighting, Inc. v. Missouri, 342 U. S. 421, 423 (1952) (“we do not sit as a super-legislature to weigh the wisdom of legislation”). Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them “unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955).
Rejecting Lochner does not require disavowing the doctrine of implied fundamental rights, and this Court has not done so. But to avoid repeating Lochner’s error of converting personal preferences into constitutional mandates, our modern substantive due process cases have stressed the need for “judicial self-restraint.” Collins v. Harker Heights, 503 U. S. 115, 125 (1992). Our precedents have required that implied fundamental rights be “objec-

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tively, deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U. S., at 720–721 (internal quotation marks omitted).
Although the Court articulated the importance of history and tradition to the fundamental rights inquiry most precisely in Glucksberg, many other cases both before and after have adopted the same approach. See, e.g., District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 72 (2009); Flores, 507 U. S., at 303; United States v. Salerno, 481 U. S. 739, 751 (1987); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); see also id., at 544 (White, J., dissenting) (“The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”); Troxel v. Granville, 530 U. S. 57, 96–101 (2000) (KENNEDY, J., dissenting) (consulting “ ‘[o]ur Nation’s history, legal traditions, and practices’ ” and concluding that “[w]e owe it to the Nation’s domestic relations legal structure . . . to proceed with caution” (quoting Glucksberg, 521 U. S., at 721)).
Proper reliance on history and tradition of course requires looking beyond the individual law being challenged, so that every restriction on liberty does not supply its own constitutional justification. The Court is right about that. Ante, at 18. But given the few “guideposts for responsible decisionmaking in this unchartered area,” Collins, 503 U. S., at 125, “an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on [an] abstract formula,” Moore, 431 U. S., at 504, n. 12 (plurality opinion). Expanding a right suddenly and dramatically is likely to require tearing it up from its roots. Even a sincere profession of “discipline” in identify-

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ing fundamental rights, ante, at 10–11, does not provide a meaningful constraint on a judge, for “what he is really likely to be ‘discovering,’ whether or not he is fully aware of it, are his own values,” J. Ely, Democracy and Distrust 44 (1980). The only way to ensure restraint in this delicate enterprise is “continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles [of] the doctrines of federalism and separation of powers.” Griswold v. Connecticut, 381 U. S. 479, 501 (1965) (Harlan, J., concurring in judgment).
B
The majority acknowledges none of this doctrinal background, and it is easy to see why: Its aggressive application of substantive due process breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.
1
The majority’s driving themes are that marriage is desirable and petitioners desire it. The opinion describes the “transcendent importance” of marriage and repeatedly insists that petitioners do not seek to “demean,” “devalue,” “denigrate,” or “disrespect” the institution. Ante, at 3, 4, 6, 28. Nobody disputes those points. Indeed, the compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds about whether same-sex couples should be allowed to marry. As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant.
When the majority turns to the law, it relies primarily on precedents discussing the fundamental “right to marry.” Turner v. Safley, 482 U. S. 78, 95 (1987); Zablocki, 434 U. S., at 383; see Loving, 388 U. S., at 12. These cases

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do not hold, of course, that anyone who wants to get married has a constitutional right to do so. They instead require a State to justify barriers to marriage as that institution has always been understood. In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible.
None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” See Tragen, Comment, Statutory Prohibitions Against Interracial Marriage, 32 Cal. L. Rev. 269 (1944) (“at common law there was no ban on interracial marriage”); post, at 11–12, n. 5 (THOMAS, J., dissenting). Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.” Ante, at 11.
In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. See Windsor, 570 U. S., at ___ (ALITO, J., dissenting) (slip op., at 8) (“What Windsor and the United States seek . . . is not the protection of a deeply rooted right but the recognition of a very new right.”). Neither petitioners nor the majority cites a

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single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim.
2
The majority suggests that “there are other, more instructive precedents” informing the right to marry. Ante, at 12. Although not entirely clear, this reference seems to correspond to a line of cases discussing an implied fundamental “right of privacy.” Griswold, 381 U. S., at 486. In the first of those cases, the Court invalidated a criminal law that banned the use of contraceptives. Id., at 485– 486. The Court stressed the invasive nature of the ban, which threatened the intrusion of “the police to search the sacred precincts of marital bedrooms.” Id., at 485. In the Court’s view, such laws infringed the right to privacy in its most basic sense: the “right to be let alone.” Eisenstadt v. Baird, 405 U. S. 438, 453–454, n. 10 (1972) (internal quotation marks omitted); see Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).
The Court also invoked the right to privacy in Lawrence v. Texas, 539 U. S. 558 (2003), which struck down a Texas statute criminalizing homosexual sodomy. Lawrence relied on the position that criminal sodomy laws, like bans on contraceptives, invaded privacy by inviting “unwarranted government intrusions” that “touc[h] upon the most private human conduct, sexual behavior . . . in the most private of places, the home.” Id., at 562, 567.
Neither Lawrence nor any other precedent in the privacy line of cases supports the right that petitioners assert here. Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneli-

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ness” by the laws challenged in these cases—no one. Ante, at 28. At the same time, the laws in no way interfere with the “right to be let alone.”
The majority also relies on Justice Harlan’s influential dissenting opinion in Poe v. Ullman, 367 U. S. 497 (1961). As the majority recounts, that opinion states that “[d]ue process has not been reduced to any formula.” Id., at 542. But far from conferring the broad interpretive discretion that the majority discerns, Justice Harlan’s opinion makes clear that courts implying fundamental rights are not “free to roam where unguided speculation might take them.” Ibid. They must instead have “regard to what history teaches” and exercise not only “judgment” but “restraint.” Ibid. Of particular relevance, Justice Harlan explained that “laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up . . . form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis.” Id., at 546.
In sum, the privacy cases provide no support for the majority’s position, because petitioners do not seek privacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits. Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 196 (1989); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 35–37 (1973); post, at 9–13 (THOMAS, J., dissenting). Thus, although the right to privacy recognized by our precedents certainly plays a role in protecting the intimate conduct of same-sex couples, it provides no affirmative right to redefine marriage and no basis for striking down the laws at issue here.

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3
Perhaps recognizing how little support it can derive from precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rights taken by this Court in Glucksberg. Ante, at 18 (quoting 521 U. S., at 721). It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach.
Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York, 198 U. S. 45. The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” Ante, at 1–2. The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Ante, at 12. This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner, 198 U. S., at 58 (emphasis added).
To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. Ante, at 10, 11. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences

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adopted in Lochner. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold this law,” which “is an illegal interference with the rights of individuals . . . to make contracts regarding labor upon such terms as they may think best”).
The majority recognizes that today’s cases do not mark “the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights.” Ante, at 25. On that much, we agree. The Court was “asked”—and it agreed—to “adopt a cautious approach” to implying fundamental rights after the debacle of the Lochner era. Today, the majority casts caution aside and revives the grave errors of that period.
One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 144117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their

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children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015).
I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.
4
Near the end of its opinion, the majority offers perhaps the clearest insight into its decision. Expanding marriage to include same-sex couples, the majority insists, would “pose no risk of harm to themselves or third parties.” Ante, at 27. This argument again echoes Lochner, which relied on its assessment that “we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.” 198 U. S., at 57.

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Then and now, this assertion of the “harm principle” sounds more in philosophy than law. The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractive moral philosophy. But a Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of “due process.” There is indeed a process due the people on issues of this sort—the democratic process. Respecting that understanding requires the Court to be guided by law, not any particular school of social thought. As Judge Henry Friendly once put it, echoing Justice Holmes’s dissent in Lochner, the Fourteenth Amendment does not enact John Stuart Mill’s On Liberty any more than it enacts Herbert Spencer’s Social Statics. See Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 Harv. J. L. & Pub. Pol’y 1035, 1036–1037, 1058 (2006). And it certainly does not enact any one concept of marriage.
The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. I agree with the majority that the “nature of injustice is that we may not always see it in our own times.” Ante, at 11. As petitioners put it, “times can blind.” Tr. of Oral Arg. on Question 1, at 9, 10. But to blind yourself to history is both prideful and unwise. “The

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past is never dead. It’s not even past.” W. Faulkner, Requiem for a Nun 92 (1951).
III
In addition to their due process argument, petitioners contend that the Equal Protection Clause requires their States to license and recognize same-sex marriages. The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other. Ante, at 20. Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases. It is casebook doctrine that the “modern Supreme Court’s treatment of equal protection claims has used a means-ends methodology in which judges ask whether the classification the government is using is sufficiently related to the goals it is pursuing.” G. Stone, L. Seidman, C. Sunstein, M. Tushnet, & P. Karlan, Constitutional Law 453 (7th ed. 2013). The majority’s approach today is different:
“Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.” Ante, at 19.
The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. Ante, at 22. Yet the majority fails to provide even a single sentence explaining how the Equal

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Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 197 (2009). In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.” Lawrence, 539 U. S., at 585 (O’Connor, J., concurring in judgment).
It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits. Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.
IV
The legitimacy of this Court ultimately rests “upon the respect accorded to its judgments.” Republican Party of Minn. v. White, 536 U. S. 765, 793 (2002) (KENNEDY, J., concurring). That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the

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people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing “formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.” Ante, at 7–9.
Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description— and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. Ante, at 9, 10, 23. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” Ante, at 19. The answer is surely there in one of those amicus briefs or studies.
Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” Ante, at 8. In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unre-

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solved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). As a plurality of this Court explained just last year, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Schuette v. BAMN, 572 U. S. ___, ___ –___ (2014) (slip op., at 16– 17).
The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of samesex marriage. They see voters carefully considering samesex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before.
When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” Post, at 2–3 (SCALIA, J., dissenting).
But today the Court puts a stop to all that. By deciding

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this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.
Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for

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religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept samesex marriage. Ante, at 19. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n] or stigmatiz[e]” same-sex couples. Ante, at 19. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring defini-

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tion of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 6–7 (ALITO, J., dissenting). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted. Ante, at 19.
In the face of all this, a much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.
* * *
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
I respectfully dissent.

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SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–556, 14-562, 14-571 and 14–574
_________________

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.
The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.

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Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
I
Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of govern-

—————— 1 Brief for Respondents in No. 14–571, p. 14.

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ment is supposed to work.2 The Constitution places some constraints on self-rule—
constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,”3 denying “Full Faith and Credit” to the “public Acts” of other States,4 prohibiting the free exercise of religion,5 abridging the freedom of speech,6 infringing the right to keep and bear arms,7 authorizing unreasonable searches and seizures,8 and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people”9 can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?
Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):
“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”10

——————
2 Accord, Schuette v. BAMN, 572 U. S. ___, ___–___ (2014) (plurality opinion) (slip op., at 15–17).
3 U. S. Const., Art. I, §10. 4 Art. IV, §1. 5 Amdt. 1. 6 Ibid. 7 Amdt. 2. 8 Amdt. 4. 9 Amdt. 10. 10 United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 16) (internal quotation marks and citation omitted).

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“[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”11
But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.12 We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.
But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.13 That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its
——————
11 Id., at ___ (slip op., at 17). 12 See Town of Greece v. Galloway, 572 U. S. ___, ___–___ (2014) (slip op., at 7–8). 13 Ante, at 10.

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dimensions . . . . ”14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”15 The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17
This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section

——————
14 Ante, at 11. 15 Ibid. 16 Ante, at 10–11. 17 Ante, at 12–18.

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of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
II
But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that

——————
18 The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners. See Brief for American Bar Association as Amicus Curiae in Nos. 14–571 and 14– 574, pp. 1–5.
19 See Pew Research Center, America’s Changing Religious Landscape 4 (May 12, 2015).

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every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.20 They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.22 Of course the opinion’s showy profundities are often
——————
20 Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003).
21 Windsor, 570 U. S., at ___ (ALITO, J., dissenting) (slip op., at 7). 22 If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that

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SCALIA, J., dissenting
profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court
——————
allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
23 Ante, at 13. 24 Ante, at 19. 25 Ibid.

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SCALIA, J., dissenting
really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational popphilosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.
* * *
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”26 With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

——————
26 The Federalist No. 78, pp. 522, 523 (J. Cooke ed. 1961) (A. Hamilton).

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1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–556, 14-562, 14-571 and 14–574
_________________

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.
The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our

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THOMAS, J., dissenting
Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.
I
The majority’s decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing “due process” before a person is deprived of his “life, liberty, or property.” I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. McDonald v. Chicago, 561 U. S. 742, 811–812 (2010) (THOMAS, J., concurring in part and concurring in judgment). It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property. U. S. Const., Amdt. 14, §1. Worse, it invites judges to do exactly what the majority has done here—“ ‘roa[m] at large in the constitutional field’ guided only by their personal views” as to the “ ‘fundamental rights’ ” protected by that document. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 953, 965 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part) (quoting Griswold v. Connecticut, 381 U. S. 479, 502 (1965) (Harlan, J., concurring in judgment)).
By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue

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that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue “beyond the reach of the normal democratic process.” Brief for Petitioners in No. 14–562, p. 54. But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a “bare majority” of this Court, ante, at 25, is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only “due process” is but further evidence of the danger of substantive due process.1
II
Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all—whether under a theory of “substantive” or “procedural” due process—a party must first identify a deprivation of “life, liberty, or property.” The majority claims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.

——————
1 The majority states that the right it believes is “part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.” Ante, at 19. Despite the “synergy” it finds “between th[ese] two protections,” ante, at 20, the majority clearly uses equal protection only to shore up its substantive due process analysis, an analysis both based on an imaginary constitutional protection and revisionist view of our history and tradition.

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A 1
As used in the Due Process Clauses, “liberty” most likely refers to “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure.
Both of the Constitution’s Due Process Clauses reach back to Magna Carta. See Davidson v. New Orleans, 96 U. S. 97, 101–102 (1878). Chapter 39 of the original Magna Carta provided, “No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.” Magna Carta, ch. 39, in A. Howard, Magna Carta: Text and Commentary 43 (1964). Although the 1215 version of Magna Carta was in effect for only a few weeks, this provision was later reissued in 1225 with modest changes to its wording as follows: “No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers or by the law of the land.” 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (1797). In his influential commentary on the provision many years later, Sir Edward Coke interpreted the words “by the law of the land” to mean the same thing as “by due proces of the common law.” Id., at 50.
After Magna Carta became subject to renewed interest in the 17th century, see, e.g., ibid., William Blackstone referred to this provision as protecting the “absolute rights

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of every Englishman.” 1 Blackstone 123. And he formulated those absolute rights as “the right of personal security,” which included the right to life; “the right of personal liberty”; and “the right of private property.” Id., at 125. He defined “the right of personal liberty” as “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” Id., at 125, 130.2
The Framers drew heavily upon Blackstone’s formulation, adopting provisions in early State Constitutions that replicated Magna Carta’s language, but were modified to refer specifically to “life, liberty, or property.”3 State
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2 The seeds of this articulation can also be found in Henry Care’s influential treatise, English Liberties. First published in America in 1721, it described the “three things, which the Law of England . . . principally regards and taketh Care of,” as “Life, Liberty and Estate,” and described habeas corpus as the means by which one could procure one’s “Liberty” from imprisonment. The Habeas Corpus Act, comment., in English Liberties, or the Free-born Subject’s Inheritance 185 (H. Care comp. 5th ed. 1721). Though he used the word “Liberties” by itself more broadly, see, e.g., id., at 7, 34, 56, 58, 60, he used “Liberty” in a narrow sense when placed alongside the words “Life” or “Estate,” see, e.g., id., at 185, 200.
3 Maryland, North Carolina, and South Carolina adopted the phrase “life, liberty, or property” in provisions otherwise tracking Magna Carta: “That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land.” Md. Const., Declaration of Rights, Art. XXI (1776), in 3 Federal and State Constitutions, Colonial Charters, and Other Organic Laws 1688 (F. Thorpe ed. 1909); see also S. C. Const., Art. XLI (1778), in 6 id., at 3257; N. C. Const., Declaration of Rights, Art. XII (1776), in 5 id., at 2788. Massachusetts and New Hampshire did the same, albeit with some alterations to Magna Carta’s framework: “[N]o subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.” Mass. Const., pt. I, Art. XII (1780), in 3 id., at 1891; see also

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decisions interpreting these provisions between the founding and the ratification of the Fourteenth Amendment almost uniformly construed the word “liberty” to refer only to freedom from physical restraint. See Warren, The New “Liberty” Under the Fourteenth Amendment, 39 Harv. L. Rev. 431, 441–445 (1926). Even one case that has been identified as a possible exception to that view merely used broad language about liberty in the context of a habeas corpus proceeding—a proceeding classically associated with obtaining freedom from physical restraint. Cf. id., at 444–445.
In enacting the Fifth Amendment’s Due Process Clause, the Framers similarly chose to employ the “life, liberty, or property” formulation, though they otherwise deviated substantially from the States’ use of Magna Carta’s language in the Clause. See Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty, and Property,” 4 Harv. L. Rev. 365, 382 (1890). When read in light of the history of that formulation, it is hard to see how the “liberty” protected by the Clause could be interpreted to include anything broader than freedom from physical restraint. That was the consistent usage of the time when “liberty” was paired with “life” and “property.” See id., at 375. And that usage avoids rendering superfluous those protections for “life” and “property.”
If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well. See Hurtado v. California, 110 U. S. 516, 534–535 (1884). Indeed, this Court has previously commented, “The conclusion is . . . irresistible, that when the same phrase was employed in the Fourteenth Amendment [as was used in the Fifth Amendment], it was used in the same sense and with no greater extent.” Ibid. And this
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N. H. Const., pt. I, Art. XV (1784), in 4 id., at 2455.

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Court’s earliest Fourteenth Amendment decisions appear to interpret the Clause as using “liberty” to mean freedom from physical restraint. In Munn v. Illinois, 94 U. S. 113 (1877), for example, the Court recognized the relationship between the two Due Process Clauses and Magna Carta, see id., at 123–124, and implicitly rejected the dissent’s argument that “ ‘liberty’ ” encompassed “something more . . . than mere freedom from physical restraint or the bounds of a prison,” id., at 142 (Field, J., dissenting). That the Court appears to have lost its way in more recent years does not justify deviating from the original meaning of the Clauses.
2
Even assuming that the “liberty” in those Clauses encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.
The founding-era understanding of liberty was heavily influenced by John Locke, whose writings “on natural rights and on the social and governmental contract” were cited “[i]n pamphlet after pamphlet” by American writers. B. Bailyn, The Ideological Origins of the American Revolution 27 (1967). Locke described men as existing in a state of nature, possessed of the “perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.” J. Locke, Second Treatise of Civil Government, §4, p. 4 (J. Gough ed. 1947) (Locke). Because that state of nature left men insecure in their persons and property, they entered civil society, trading a portion of their natural liberty for an increase in their security. See

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id., §97, at 49. Upon consenting to that order, men obtained civil liberty, or the freedom “to be under no other legislative power but that established by consent in the commonwealth; nor under the dominion of any will or restraint of any law, but what that legislative shall enact according to the trust put in it.” Id., §22, at 13.4
This philosophy permeated the 18th-century political scene in America. A 1756 editorial in the Boston Gazette, for example, declared that “Liberty in the State of Nature” was the “inherent natural Right” “of each Man” “to make a free Use of his Reason and Understanding, and to chuse that Action which he thinks he can give the best Account of,” but that, “in Society, every Man parts with a Small Share of his natural Liberty, or lodges it in the publick Stock, that he may possess the Remainder without Controul.” Boston Gazette and Country Journal, No. 58, May 10, 1756, p. 1. Similar sentiments were expressed in public speeches, sermons, and letters of the time. See 1 C.

——————
4 Locke’s theories heavily influenced other prominent writers of the 17th and 18th centuries. Blackstone, for one, agreed that “natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature” and described civil liberty as that “which leaves the subject entire master of his own conduct,” except as “restrained by human laws.” 1 Blackstone 121–122. And in a “treatise routinely cited by the Founders,” Zivotofsky v. Kerry, ante, at 5 (THOMAS, J., concurring in judgment in part and dissenting in part), Thomas Rutherforth wrote, “By liberty we mean the power, which a man has to act as he thinks fit, where no law restrains him; it may therefore be called a mans right over his own actions.” 1 T. Rutherforth, Institutes of Natural Law 146 (1754). Rutherforth explained that “[t]he only restraint, which a mans right over his own actions is originally under, is the obligation of governing himself by the law of nature, and the law of God,” and that “[w]hatever right those of our own species may have . . . to restrain [those actions] within certain bounds, beyond what the law of nature has prescribed, arises from some after-act of our own, from some consent either express or tacit, by which we have alienated our liberty, or transferred the right of directing our actions from ourselves to them.” Id., at 147–148.

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Hyneman & D. Lutz, American Political Writing During the Founding Era 1760–1805, pp. 100, 308, 385 (1983).
The founding-era idea of civil liberty as natural liberty constrained by human law necessarily involved only those freedoms that existed outside of government. See Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L. J. 907, 918–919 (1993). As one later commentator observed, “[L]iberty in the eighteenth century was thought of much more in relation to ‘negative liberty’; that is, freedom from, not freedom to, freedom from a number of social and political evils, including arbitrary government power.” J. Reid, The Concept of Liberty in the Age of the American Revolution 56 (1988). Or as one scholar put it in 1776, “[T]he common idea of liberty is merely negative, and is only the absence of restraint.” R. Hey, Observations on the Nature of Civil Liberty and the Principles of Government §13, p. 8 (1776) (Hey). When the colonists described laws that would infringe their liberties, they discussed laws that would prohibit individuals “from walking in the streets and highways on certain saints days, or from being abroad after a certain time in the evening, or . . . restrain [them] from working up and manufacturing materials of [their] own growth.” Downer, A Discourse at the Dedication of the Tree of Liberty, in 1 Hyneman, supra, at 101. Each of those examples involved freedoms that existed outside of government.
B
Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it.
Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They

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have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.
Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and powers of attorney.
Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.
To the extent that the Framers would have recognized a natural right to marriage that fell within the broader

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definition of liberty, it would not have included a right to governmental recognition and benefits. Instead, it would have included a right to engage in the very same activities that petitioners have been left free to engage in—making vows, holding religious ceremonies celebrating those vows, raising children, and otherwise enjoying the society of one’s spouse—without governmental interference. At the founding, such conduct was understood to predate government, not to flow from it. As Locke had explained many years earlier, “The first society was between man and wife, which gave beginning to that between parents and children.” Locke §77, at 39; see also J. Wilson, Lectures on Law, in 2 Collected Works of James Wilson 1068 (K. Hall and M. Hall eds. 2007) (concluding “that to the institution of marriage the true origin of society must be traced”). Petitioners misunderstand the institution of marriage when they say that it would “mean little” absent governmental recognition. Brief for Petitioners in No. 14– 556, p. 33.
Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Loving v. Virginia, 388 U. S. 1 (1967), for example, involved a couple who was criminally prosecuted for marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3.5 They were each sen-
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5 The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. “America’s earliest laws against interracial sex and marriage were spawned by slavery.” P. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 19 (2009). For instance, Maryland’s 1664 law prohibiting marriages between “ ‘freeborne English women’ ” and “ ‘Negro Sla[v]es’ ” was passed as part of the very act that authorized lifelong

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tenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. Id., at 3.6 In a similar vein, Zablocki v. Redhail, 434 U. S. 374 (1978), involved a man who was prohibited, on pain of criminal penalty, from “marry[ing] in Wisconsin or elsewhere” because of his outstanding child-support obligations, id., at 387; see id., at 377–378. And Turner v. Safley, 482 U. S. 78 (1987), involved state inmates who were prohibited from entering marriages without the permission of the superintendent of the prison, permission that could not be granted absent compelling reasons, id., at 82. In none of those cases were individuals denied solely governmental
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slavery in the colony. Id., at 19–20. Virginia’s antimiscegenation laws likewise were passed in a 1691 resolution entitled “An act for suppressing outlying Slaves.” Act of Apr. 1691, Ch. XVI, 3 Va. Stat. 86 (W. Hening ed. 1823) (reprint 1969) (italics deleted). “It was not until the Civil War threw the future of slavery into doubt that lawyers, legislators, and judges began to develop the elaborate justifications that signified the emergence of miscegenation law and made restrictions on interracial marriage the foundation of post-Civil War white supremacy.” Pascoe, supra, at 27–28.
Laws defining marriage as between one man and one woman do not share this sordid history. The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history. Brief for Scholars of History and Related Disciplines as Amici Curiae 1. It arose not out of a desire to shore up an invidious institution like slavery, but out of a desire “to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.” Id., at 8. And it has existed in civilizations containing all manner of views on homosexuality. See Brief for Ryan T. Anderson as Amicus Curiae 11–12 (explaining that several famous ancient Greeks wrote approvingly of the traditional definition of marriage, though same-sex sexual relations were common in Greece at the time).
6 The prohibition extended so far as to forbid even religious ceremonies, thus raising a serious question under the First Amendment’s Free Exercise Clause, as at least one amicus brief at the time pointed out. Brief for John J. Russell et al. as Amici Curiae in Loving v. Virginia, O.T. 1966, No. 395, pp. 12–16.

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recognition and benefits associated with marriage. In a concession to petitioners’ misconception of liberty,
the majority characterizes petitioners’ suit as a quest to “find . . . liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.” Ante, at 2. But “liberty” is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment. The majority’s “better informed understanding of how constitutional imperatives define . . . liberty,” ante, at 19,—better informed, we must assume, than that of the people who ratified the Fourteenth Amendment—runs headlong into the reality that our Constitution is a “collection of ‘Thou shalt nots,’ ” Reid v. Covert, 354 U. S. 1, 9 (1957) (plurality opinion), not “Thou shalt provides.”
III
The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.
A
The majority apparently disregards the political process as a protection for liberty. Although men, in forming a civil society, “give up all the power necessary to the ends for which they unite into society, to the majority of the community,” Locke §99, at 49, they reserve the authority to exercise natural liberty within the bounds of laws established by that society, id., §22, at 13; see also Hey §§52, 54, at 30–32. To protect that liberty from arbitrary interference, they establish a process by which that society can

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adopt and enforce its laws. In our country, that process is primarily representative government at the state level, with the Federal Constitution serving as a backstop for that process. As a general matter, when the States act through their representative governments or by popular vote, the liberty of their residents is fully vindicated. This is no less true when some residents disagree with the result; indeed, it seems difficult to imagine any law on which all residents of a State would agree. See Locke §98, at 49 (suggesting that society would cease to function if it required unanimous consent to laws). What matters is that the process established by those who created the society has been honored.
That process has been honored here. The definition of marriage has been the subject of heated debate in the States. Legislatures have repeatedly taken up the matter on behalf of the People, and 35 States have put the question to the People themselves. In 32 of those 35 States, the People have opted to retain the traditional definition of marriage. Brief for Respondents in No. 14–571, pp. 1a– 7a. That petitioners disagree with the result of that process does not make it any less legitimate. Their civil liberty has been vindicated.
B
Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.
The history of religious liberty in our country is familiar: Many of the earliest immigrants to America came seeking freedom to practice their religion without restraint. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1422– 1425 (1990). When they arrived, they created their own havens for religious practice. Ibid. Many of these havens were initially homogenous communities with established

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religions. Ibid. By the 1780’s, however, “America was in the wake of a great religious revival” marked by a move toward free exercise of religion. Id., at 1437. Every State save Connecticut adopted protections for religious freedom in their State Constitutions by 1789, id., at 1455, and, of course, the First Amendment enshrined protection for the free exercise of religion in the U. S. Constitution. But that protection was far from the last word on religious liberty in this country, as the Federal Government and the States have reaffirmed their commitment to religious liberty by codifying protections for religious practice. See, e.g., Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U. S. C. §2000bb et seq.; Conn. Gen. Stat. §52–571b (2015).
Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious

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practice.7 Although our Constitution provides some protection
against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.
IV
Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. Ante, at 3, 13, 26, 28.8 The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity.
Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal”
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7 Concerns about threats to religious liberty in this context are not unfounded. During the hey-day of antimiscegenation laws in this country, for instance, Virginia imposed criminal penalties on ministers who performed marriage in violation of those laws, though their religions would have permitted them to perform such ceremonies. Va. Code Ann. §20–60 (1960).
8 The majority also suggests that marriage confers “nobility” on individuals. Ante, at 3. I am unsure what that means. People may choose to marry or not to marry. The decision to do so does not make one person more “noble” than another. And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships is specious.

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and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.
The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracterization of the arguments presented by the States and their amici can have no effect on the dignity of those litigants. Its rejection of laws preserving the traditional definition of marriage can have no effect on the dignity of the people who voted for them. Its invalidation of those laws can have no effect on the dignity of the people who continue to adhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them.
* * *
Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible

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understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent.

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SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–556, 14-562, 14-571 and 14–574
_________________

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.1 The question in
——————
1 I use the phrase “recognize marriage” as shorthand for issuing mar-

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these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.
I
The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by government regulation. For social democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning.
To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “ ‘deeply rooted in this Nation’s history and tradition.’ ” Washington v. Glucksberg, 521 U. S. 701, 720–721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor, 570 U. S. ___, ___ (2013) (ALITO, J., dissenting) (slip op., at 7). Indeed:
“In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass.
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riage licenses and conferring those special benefits and obligations
 provided under state law for married persons. 


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309, 798 N. E. 2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.
“What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.” Id., at ___ (slip op., at 7–8) (footnote omitted).
For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.
II
Attempting to circumvent the problem presented by the newness of the right found in these cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States

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encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations. This understanding of the States’ reasons for recognizing marriage enables the majority to argue that samesex marriage serves the States’ objectives in the same way as opposite-sex marriage.
This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.
Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.
If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women.2 This de-
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2 See, e.g., Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, D. Martin, B. Hamilton, M. Osterman, S. Curtin, & T. Matthews, Births: Final Data for 2013, 64 National Vital Statistics Reports, No. 1, p. 2 (Jan. 15, 2015), online at http://www.cdc.gov/nchs/data/nvsr/nvsr64/

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velopment undoubtedly is both a cause and a result of changes in our society’s understanding of marriage.
While, for many, the attributes of marriage in 21stcentury America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe.
As I wrote in Windsor:
“The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage—have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.
“We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some
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nvsr64_01.pdf (all Internet materials as visited June 24, 2015, and available in Clerk of Court’s case file); cf. Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics (NCHS), S. Ventura, Changing Patterns of Nonmartial Childbearing in the United States, NCHS Data Brief, No. 18 (May 2009), online at http://www.cdc.gov/ nchs/ data/databrief/db18.pdf.

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time to come. There are those who think that allowing same-sex marriage will seriously undermine the institution of marriage. Others think that recognition of same-sex marriage will fortify a now-shaky institution.
“At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.” 570 U. S., at ___ (dissenting opinion) (slip op., at 8–10) (citations and footnotes omitted).
III
Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.
It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

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Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.
Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.
Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that

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preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.
Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.