Deboer v. Snyder – Day 9 (Last day) closing arguments, part 1

Plaintiffs renewed their Daubert objections to State’s witnesses Price, Regnerus and Allen, to recognize them as experts.

State renewed their motion in limine to exclude the second parent adoption issue.

Plaintiffs’ closing delivered by Kenneth Mogill

“The promise of equality is the promise of America”  15,000 gay and lesbian people living in Michigan, 2600 same sex couples and 5300 children of those people are being deprived of equality in Michigan. They have been subjected to pervasive institutionalized discrimination.  The legacy of discrimination remains.  The door is barred from entry into one of the most cherished institutions because they love the wrong kind of person.  Right to marry is a fundamental right.  Denial of that right is denial of due process under the Constitution.

No other group is required to establish parenting competency as a condition of marriage.  The denial of the right to marry is a denial of equal protection.

Marriage is based on mutual consent.  There is no obligation to procreate, no obligation for intimacy, and even a prisoner who is unable to have contact with a spouse can marry.

The clergy are given the authority by law to marry people, but are unable to impose additional restrictions under the law.  Civil law does not speak to religious authority and the churches are free to impose additional requirements as a condition of providing their services.  Civil law does not speak to the religious authority, and the church cannot speak to the legal requirements.

It is the right of the adult to marry the person they love without regard to race.  In Griswold, the Court stated:  For better or for worse – enduring and intimate to the degree of being sacred.  In Lawrence a fundament right was found as to marrying, procreation, child rearing and relations.  In the dissent to Windsor, Justice Scalia projected the outcome when he said: The crumbing of the jurisdictional basis has been laid.

No other group in America has been required to establish parenting competency as a pre-requisite to marry.  Groups whose children have evidenced poor outcomes have never been banned from marriage, such as the economically disadvantaged and the divorced.

If the State wants to restrict marriage to those with the optimum outcome for children, then marriage would be limited to the wealthiest, highest educated, urban, Asian Americans.

There is no rational basis.  The witnesses offered by Plaintiffs are at the top of their field.  They offered candid reports of their findings.  They are sociologists, psychologists, historians of marriage and demographers.  The witnesses offered by the State, particularly Allen and Regnerus, are part of a fringe that is fighting desperately for inequality.

All of the experts on both sides agree that that a strong consensus exists that there are no real differences in outcomes of children raised by same sex parents.  However, the State’s witnesses disagree with the consensus, even though they agree it exists.

Small, convenience samples are the bread and butter of psychological research.  Yet, they were attacked by the Defendant’s experts who are not psychologists and approach research in an entirely different way.  150 studies on family structure exist, and it is well established that correlations for positive child outcomes have nothing to do with same sex parenting.  Defendant offers no psychologist to dispute this.  The conclusion is that sexual orientation is unrelated to outcomes and well qualified parents can be found in any combinations of gender.  There is no correct parenting model.  In response Defendant offers two economists, one of whom offered a review of studies only up through 2005.

The State’s witnesses have repeated stated that the research is “preliminary”, “in its infancy” and that the Court needs to “press the pause button” and meet a very high research threshold that may take in excess 25 years to meet.  Individual small scale studies don’t hit all of the points, but when you have an aggregate of studies that reach the same conclusion, it validates the results.  The State is looking at a brick home, but is only willing to look at the individual bricks – not the whole that is bonded together with mortar.

The American Psychological Association, the American Medical Association, and the American Academy of Pediatrics all support the studies and agree.  The Court is urged to consider the testimony, the credibility of the witnesses, the openness or bigotry of the witness, and read carefully the studies and the critiques regarding the logic of Rosenfeld.  The reports of the critics is an exercise in obscuration and double speak.

Rosenfeld study was also corroborated by Allen’s 2013 study – to some degree.  He testified that there was a difference between living in a same sex household and being rasied in a same sex household.  Allen conceded his 35% was based on who was living where between years tested (1984-1989).  He conceded this point in a footnote in his report where he stated that the study does not examine “growing-up” in a same sex household.  He later did a five year residency review which takes into account a five year residency stability factor and other relevant variables.  In that follow up he finds that there are “no statistically significant differences”.  That information was buried in the Index.

More fraudulent than Dr. Allen was the Regnerus report.  It is impossible to find a more rejected and reviled sociological study.  He invited anti-marriage antagonists to comment on the study while it was in progress.  He constructed a study defining a “parent” in a way to include people who never lived with and may never have met the child.  In comparing the two subjects where were raised from birth to 18 by the same sex couple, he says they turned out just fine.  He rushed to conclusion before the data was complete.

On the same day Regnerus was to testify, his Department at the University of Texas issued a press statement making it clear that his views were not the views of the Department and the Department views his study as fundamentally flawed conceptually and logically.  The American Sociological Association issued a public statement with an utter rejection of his study.

The State’s experts view this as a social science experiment.  But – it is a reality.  Real people. Real children.  These people exist and whether or not they are entitled to the same rights and protections of the law is a matter of discrimination.  Support, Stability and status should be afforded to the couples and the children.  This can be done without discouraging opposite sex couples to marry, to have children or to divorce.  There is no evidence it will harm opposite sex marriages in any way.

The plaintiffs represent a group that with historic patters of disadvantage.  The rational basis of the State to discriminate must be rooted in the realities of the subject being discussed.  The rationales advanced by the State don’t even come close to being rational.  It violated equal protection.

The State’s rationales are that regulation of marriage is a matter for the State to determine.  While that is true, they overlook that the regulation is subject to Constitutional regulation.  Fundamental rights may not be submitted to vote.  (Cites to West Virginia Board of Education v. Barnett).

Without second parent adoption, the non-legal parent is continuously vulnerable.  State and children in foster care would benefit tremendously by expanding the pool of adoptive parents.  It is illogical to certify plaintiffs as foster parents and then not allow them to adopt each other’s children.  If the legal parent dies, then the other parent must get in line with other family members at the courthouse and be subject to a list of priority placements.

On the subject of tradition, there are two concepts: traditional marriage and the role of tradition in the law.  Professor Cott gave a lesson in the tradition of marriage.  She stated that the notion of any one tradition in marriage is incorrect.  Marriage has evolved from a hierarchical and gender role model to one where women have achieved equality, and have earned the right to exit the marriage.  Prior racial barriers have been eliminated.  Today, as a matter of law, marriage is a gender neutral institution with regard to gender roles in marriage.  Fear that changes in marriages would be destroyed by women’s equality, by no –fault divorce and by inter-racial marriages has been unfounded.  The tradition most relevant in marriage is that of being able to change.  Capacity for change has been a core value that has kept marriage as a viable institution.  A move toward marriage equality has been the trend.

Tradition in the law is a concept that provides stability and predictability in the legal system.  Constitutional law also provides a tradition of changing as long standing legal principals no longer meet the needs of society.  Neither the antiquity nor the steadfast advancement to that tradition insulates it from change.

So, where is the tipping point? When it provides us with the ability to see discrimination that previously was unseen by too many people, that is the time.   (Romer)

For April and Jayne and their children and all the others who have had to endure this discrimination, we ask that you find this ban unconstitutional.


One thought on “Deboer v. Snyder – Day 9 (Last day) closing arguments, part 1

  1. Oh my, for being there and for reporting so fully on what happened at this Trial.
    Know that your efforts are deeply appreciated.
    Deeply appreciated.
    You did the best reporting and I have read it all.
    You did the BEST““1


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