Sixth Circuit Court of Appeals scheduling order, State non-recognition, Federal recognition

It appears from the initial scheduling order from the Sixth Circuit Court of Appeals, that all of the briefs will be filed prior to the end of June.  This schedule may change (and hopefully be expedited), but for now that is the schedule.  In the meantime, Michigan’s Governor and Attorney General are directing all State officials to delay recognition of all marriages whether performed in Michigan or in another state, pending the stay.  The Federal Attorney General, however, has issued a statement that all of the marriages performed in Michigan last Saturday will be recognized for Federal purposes.

The statement can be found here.

 

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Judge Friedman has ruled

Judge Friedman struck down the marriage amendment as violative of the equal protection clause of the 14th Amendment. He said the state has no rational basis. No stay was entered but a motion will likely be filed on Monday.

Read Judge Friedman’s entire ruling here, but…from the 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. “

Editor’s Note

Thank you all for following this blog over the past couple of weeks.  I have attempted to take down a great deal of information manually with a good old-fashioned pen and paper and then transcribe those scribbles to a document that is legible for all to read.  I have strived for accuracy, clarity and objectivity in this task, however, the process was difficult.  The blog contains reports and these are not intended to be transcripts.  I have paraphrased much of the testimony, but where I have used quotation marks I have attempted to quote the speaker directly.

I have attached links to documents and transcripts that have become available and will continue to add documents as they become available, and hope that the readers cross check any of my reports with actual transcripts if the reader is relying on a particular passage for any reason.

Please be forgiving if a detail was missed or not quoted exactly correctly.  Also, please do not assume that spelling or grammar contained in this blog is reflective of examples of my usual work, as speed of delivering the information took priority over proof reading.

Thank you.

Deboer v. Snyder – Day 9 Update 3

Attorney General’s closing arguments delivered by Attorney Heyse.

AG complimented the Judge and his staff for their graciousness.

Argues regarding second parent adoption that there is no fundamental right to adopt, and therefore it is not an issue in this case.  Disagreement as to the State’s methods for adoption are not subject to Constitutional challenge.

There is lots of emotion surrounding the case.  Emotions tend to blur the issues.  Marriage is between a man and a woman.  If reasonable people could disagree as to the rationale, then the Court has to rule for the State.  It is unfortunate that the Plaintiffs have had to make this about religion as opposed to science.  The experts have testified as to science and data, not their religion.

The State has multiple grounds for rational basis:  1) it is a good thing to have both a mom and a dad in a married relationship; 2) It is rational to believe that the State should promote that family structure; 3) the Court should proceed with caution. These are rational thoughts that the voters may have had when they passed the marriage ban.  The question should not be why not allow same sex marriage, or what harm would it do.  The voters were not answering those questions at the time they voted.

We should see their rationale as:  moms and dads are important; same sex marriage and parenting is too new; caution should be taken before eliminating a mom or a dad in the family; such a major change should be left to the voters.

The importance of moms and dads is very real.  Gender diversity in parenting is raising kids is important.  Different sexes bring something different to parenting, unique characteristics.  Men and women are different and not interchangeable and not dispensable.

State’s expert, Price, states that a father and a mother are ideal particularly if they are biologically related to the child and are married to each other.  There are benefits to biologically relatedness, therefore it is not irrational.  Goal is to encourage certain ideals, not to denigrate other family structures.  Not to say there are no other effective parental structures.  But – there are benefits to having a mom and a dad.  Therefore it is rational for the State to define marriage as between a man and a woman.

Same sex marriage is just too new.  Not a single generation’s worth of same sex marriage at this point.  No comprehensive study of children being raised by same sex couples.  Plaintiffs have failed to show that the people of the State of Michigan were irrational.

The studies are not settled.  Entirely debatable.  Not clear how children fare in same sex families.  If it is at least debatable, then the Court must rule in favor of the State.  Cites to studies that show children are not faring as well – Regnerus, Marks, and Allen studies.  Regnerus’ curiosity was piqued after the APA’s statement, so he began exploring further.  He took it upon himself to review all of the underlying studies.  No one paid him.  It was all on his own time and he found that the studies had flaws.  They were small, non-representative, convenience studies of privileged, while well-educated mothers without random participation.  They are of limited value – except, perhaps to psychologists.

The studies cannot and should not be used to make broad based decisions about the population as a whole.  APA’s claim of no studies showing negative outcomes existed is false.  There were 2 studies at that time.  The current studies are no sufficient to make long term decisions about policy changed.  The APA report was “lacking in substance and blurred the lines between science and advocacy”.

The large population studies that show outcomes are Regnerus, Price and Allen reports.  And, the Regnerus study was “never retracted”.

Barriers to these studies include a lack of protocol regarding identity of who is a same sex couple or household.  There is no ability to randomly locate and track children raised by same sex couples over a long period of time.

Price study replicated Rosenfeld’s study and found that outcomes of children were “not statistically significant, but there were differences”.

When controlled for “certain factors”, they found that children of opposite sex families were 25-30% more likely to make normal progress through school.  That is statistically significant.  Children of opposite sex families were 65% as likely to graduate.

Need large, long term, nationally representative study that tracks children of same sex couples.

This is not about political or religious views.  It is about science and the science is not settled.  Michigan voters acted rationally before re-defining marriage.   Ask whether including same sex couples in marriage would further the State’s goals.  We don’t know if same sex marriage will harm opposite sex marriage.  We don’t know, and the studies will not happen for years, so it should not be allowed.  Doing so puts the cart before the horse.

Lawrence v. Texas is distinguishable.  It is about same sex acts, not same sex marriage.  The difference between this challenge and the challenge in other states is that the other states did not consider reasons voters may have voted.  Did not consider that the science is unsettled.  Did not consider that moms and dads are different.  And, those courts misapplied the burden of proof.  Those cases did not have a trial.

Should the Court rule in plaintiffs’ favor, we do request a stay.  A stay is imperative to maintain the status quo.  Worth point out that the AG’s letter to the County Clerks did not tell clerks to disregard the law, but said that they must follow the law and abide by a stay.

Defining marriage is within the jurisdiction of the State per Windsor.  Clear Constitutional violation is the only way that Court can interfere with the State’s right to regulate marriage.  Voters relied on national trends at the time of the vote.  They voted to maintain the definition of marriage that has been the law in Michigan since the State began.  Plaintiffs cannot say that of the 2.7 million voters, not one had a single rational reason among them.  References the Baker decision.

This is likely to be back on the ballot soon.  Urges the Court to wait to let the voters decide.

Rebuttal from Mr. Mogill:

Nothing Ms. Heyse has said changes the law or the facts.  There is no need for rebuttal.

Judge:  complimented attorneys and their teams on both sides.  Complimented and thanked his staff.  Thanked the onlookers and the media for participating in the public court.  Expressed importance of the public nature and the checks and balance system in the justice system.

He needs to make findings of fact and law.  This will take some time as he has to review all of the testimony and the documentary evidence as well as read all of the relevant precedent before rendering a decision.    He said to expect a decision probably the week after next.  He will not be re-convening court to deliver the opinion, but rather will send it to the attorneys simultaneously and then immediately have it put on the Court’s website.

Deboer v. Snyder – day 9, part 2

Closing argument from Michael Pitt, Attorney for Oakland County Clerk, Lisa Brown, co-Defendant.

Ms. Brown is a public official who can and will issue marriage licenses to same sex couples.  Her allegiance is to this Court and this Court alone.

Michigan marriage amendment is of no consequence.  The Constitution provides protections to fundamental rights that go beyond the marriage ban.  She has taken an oath to uphold the Constitution.  In Lawrence v. Texas, the Court found a fundamental right to marriage, procreation, relations, and child bearing.  At the heart of this freedom, people have the right to determine their own concept of existence.  Committed same sex couples live together sometimes for decades as a family, raise children, help each other in times of illness, help each other’s families and should be therefore each other at the end of life.  The State and their experts have engaged in “breathtaking hypocrisy”.  Their position is “flat out irreconcilable” with concepts of freedom under the  Constitution.

Clerks have no discretion in carrying out duties.  They can make no determination of fitness or personal assessment.  Marriage is “so rooted in the notions of personal liberty, that the clerk may not inquiry into the relationship.

The marriage ban perpetuates inequality.  It ensures that the relationship will not now and not ever be worthy of recognition.  It ensures that homosexual couples will forever be banned from marriage. The “sanctioned humiliation must end and end now!”

State has essentially conceded this by continuously arguing their “fall-back position”, essentially saying, your honor, if you think our studies are not reliable, then you probably should wait.  Striking down the ban is too dramatic and you should wait until the research is complete.  They give no timeframe for that.  Due to the unreliability of their own studies, the Court should wait.  It would be error for the Court to take the State’s fall-back position.

The State has given no evidence to justify their arguments.  In Claybourne v. Claybourne Living Center, a case that examined the ability of a community to ban a group residential home, the Court stated that near negative attitudes or fear are not reasons for treating groups of people differently.

There is no evidence that opposite sex marriages will be harmed.  Harm to same sex families is REAL, not abstract and speculative.

The Clerk requests that the Court, if striking down the ban, explicitly restrain the State from in any way interfering with issuing marriage licenses to same sex couples, and further state that any interference will be deemed a violation of this Court’s Order.  The Court’s Order should make it clear that personal feelings and beliefs should give way to the Court’s directive.

There has not been any request for an automatic stay, and the Court can grant an injunction against interference with the Order.  The State would have to request a stay, and that analysis is subject to the same four factors as for granting a preliminary injunction.

Judge Friedman interjected that if a Motion for Stay is made, that he will require notice to all parties.

Mr. Pitt continuing:  Impresses on the Court the importance of moving to a decision quickly and recites several important rights that same sex couples are missing out on while this matter is pending.  “Time is of the essence”.

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.

Deboer v. Snyder – Day 8 Update 2 (final for the day)

Cross Examination of Dr. Allen

Attorney for Plaintiff:  So you are not a psychologist, a sociologist, no degree or even took a class in sociology, not an expert in child dev.  (correct to all)

Do you acknowledge there is a broad consensus that outcomes for children do not differ if their parents are same sex or opposite sex?  Yes, but he disagrees.

Do you agree that small sample/convenience samples are common in the field of psychology?  Answers yes, as they relate to the child outcome studies.

Qn – throughout the field of psychology?  Answer – I don’t know.

Convenience samples look at things in a more individualized and personal way.  Yes.

That psychologists looks at people and economists look at numbers.  Answer:  No, numbers are looking at people.

Would you agree that psychologists were using convenience samples to study people long before they started studying same sex families?  Yes.

Regarding the Regnerus study – you previously stated that he was comparing apples to oranges?  Yes, but…

Did you say that the Regnerus study also used a random sample it was still too small to identify enough same sex couples.  “stability was too correlated with household type” and that he had to expand his definition?  Yes.  To be a same sex couple in his data set is the same than as being unstable.

Qn – so he expanded the definition of parent to someone the child may never have known?  Answer – correct.

Qn – was that a reasonable trade off? Answer – It was reasonable because the reader can decide if it was reasonable or unreasonable.

Discussion about not having enough married same sex couples, thereby limiting the population that can be studied.  Qn:  So it would be better to have marriage available in all 50 states so we can get the answer to these questions quicker?  Yes, for academic reasons.

Qn regarding his view of Rosenfeld work:  Did you ever say that “solid” evidence exists on child outcomes?  “Solid” work?  “Solid” statistical work?  Answer: Can’t recall.  Plaintiff’s attorney read him a quote from his report stating:  Rosenfeld’s study was “the first solid piece of statistical work done on the topic.”  Did he mean when he said it?  Yes.  Did he refer to the study as a “watershed publication”?  Yes.  Did you state that the importance of Rosenfeld’s study is hard to overstate?  Yes.

How many children are held back a grade before graduating in the aggregate?  Answer 10-12%

His opinion of the minimum sample size to find statistical significance?  He quoted Nock and said roughly 800, depending on what was being studied.

The number of children lived for at least 5 years in the same sex household in the Rosenfeld study was 3,502.  So, even when corrected for residency and for same sex parents, is more than 4 times the amount he just stated was needed for an adequate sample.

When it comes to correcting for “own child” and “5 year residency” the dispute between Rosenfeld and Allen is a difference in methodology, right?  Yes.

Quoted from Allen’s report:  Rosenfeld’s justification was legitimate to adjust for children raised in same sex households, not just living there at the time of the survey? Answer – Correct

In fact, Allen was able to re-create Rosenfeld’s data, correct?   Answer – correct

Dr. Allen has tried to distinguish the outcomes of Rosenfeld’s study, and claim that Rosenfeld holds out that there are “no differences” in the outcomes of the children raised by same sex couples as those raised by opposite sex couples.  In fact, Rosenfeld’s conclusions if that there are “no statistically significant differences”, isn’t that right?  Answer correct.

Allen read from Rosenfeld’s report where he concluded “Fundamentally no difference” and “No inherent negative impact” and held that out as support that Rosenfeld misrepresented the conclusion as being “no difference” as opposed to “no statistically significant difference”.

He reiterated that his research shows that the odds of boys living with gay male parents is 69% higher for reaching high school graduation than children raised by opposite sex couples.  But, Allen states that this finding is “statistically insignificant”.

He was shown a graph that had been included in his report that illustrated what he identifies as the flaw in Rosenfeld’s findings.  He admits on cross examination that the graph was “stylized and metaphorical” and not actually representative of the statistics found by Rosenfeld.

Qn – the illustration would leave the reader with the impression that children of same sex couples are at least a full grad behind what you label “traditional kids” by the time they are age 8.  Isn’t that right?  Yes, but it is stylized.  Did you say in your report that the graph was not accurate?  Answer: No.  In paragraph 26 of your report says:  “However, what actually was found is represented in Fig 2.” And now you are saying that it is stylized?  Referred to page 87.  Answer:  Well, I guess I did say that.

You say that one of the advantages of using the Canadian census is that the same sex couples self identify because of the questions that are included on the survey.  In fact, the survey asked if the household contains a husband and wife, or a same sex couple, but does not specify if the couple is co-habitating or is married.  Answer – I was assured by the census department that it does measure the two different groups.  Plaintiff’s attorney showed him the survey questionnaire, and he conceded that the questions were set up so that the answer did not differentiate between married and co-habitating.

There was discussion about how divorce was calculated into Allen’s data.  He admits that it would not be possible to tell when the participant was divorce, was divorced more than once, or was married now but was previously divorced.

Admits that the children covered by the study would have all been born before same sex marriage was legalized in Canada.

The Canadian census did not say when the difficulty in school started, what the child’s circumstances were at the time or who they were living with at the time.  Correct.

The Canadian census does not divide the children out into biological, foster, adopted or step children.  Answer: correct.

You have personal beliefs about homosexuality, isn’t that right?  Yes.

Qn: In fact, you believe that the consequence of homosexual acts will result in the permanent separation of the person and God, in other words, they will go to Hell?

Answer:  Yes, if they don’t repent.

Re-Direct by AG:

The trade-off you mentioned regarding the Regnerus study, can you elaborate?  Yes,  Can’t separate instability from same sex households.  Being unstable is the same thing as being in a same sex couple.  So, all the variation of the same sex couple is consumed with the instability category.  If you leave it out, the sample drops significantly.  He made a trade off to keep them in and keep the sample larger.

You want to see lots of different studies.

Conclusion of Defendant State’s case.

Friday:  Court starts at 10 am.  Closing arguments.

Monday:  If any party wants to submit a brief with findings of fact and conclusions of law, they will be accepted at noon on Monday.

{editorial comment – Because the Court is willing to take briefs from the parties on Monday, it is a clear indication that the court will not be making a ruling from the bench tomorrow.}

Deboer v Snyder Day 8 – Update 1

Day 8 of the trial.

Witness:  Douglas W. Allen, Ph.D., called by the AG.

Full Professor at Simon Fraser University, Burnaby, B.C. Canada, Research Fields: Microeconomic Theory, Law and Economics.  Douglas Allen received his B.A.(hons) (1983) and M.A. (1984) from SFU, and his Ph.D. (1988) from the University of Washington where he studied under Professor Yoram Barzel. He was an assistant professor at Carleton University in Ottawa before moving to SFU in 1990.

His field of study is the economics of transaction costs and property rights, and he has applied this methodology to understanding institutions like marriage and divorce, welfare, the church, farm organization, homesteading, and the military. He is currently writing a book called “The Nature of the Farm” with Professor Dean Lueck.  The bulk of professor Allen’s teaching is in microeconomic theory and law and economics.

Some Recent Publications Include

  • The Institutional Revolution: Measurement & The Economic Emergence of the Modern World (Chicago: The University of Chicago Press, 2012)
  • “The Evolution of Criminal Law and Police During the Pre-Modern Era” (with Yoram Barzel) Journal of Law, Economics, and Organization 27(3) October 2011: pp. 540–567.
  • “The Ancient Olympics As a Signal of City-State Strength” (with Vera Lantinova) Economics of Governance  14(1), 2013: 23–44.
  • Nontraditional Families and Childhood Progress through School: A Comment on Rosenfeld” (with Joe Price and Catherine Pakaluk) Demography 50(3) June 2013: 955–961.

(Taken from the Simon Fraser University website)

One of the Circle of Experts for the Ruth Institute, an organization that promotes families at college level, and is opposed to same sex marriage.

Has published a paper in Demography based on Rosenfeld’s research, a paper based on the Canadian Census of 2006 relating to high school graduation rates among children raised by same sex couples, and a volume published by the Witherspoon Institute that “extends Rosenfeld’s study”.

He “worked on” four cases involving same sex marriage.  The Ontario case regarding same sex marriage, Halpern, an “Irish Case” where Irish citizens sought to divorce in Canada, the Perry case and this case.

He is a member of the Christian and Missionary Alliance Church.

He states: He studies economics of institutions, and because marriage is an institution, his work also applies.  He will testify as to 1) Literature since 1995 relating to same sex marriage, 2) Rosenfeld’s study and why there is more to it, and 3) his high school graduation rates paper.

He was certified as an expert in Economics with specialty in applied economics, empirical economics and the family.

On direct examination, he started with his literature review.  The article is titled More Heat Than Light, a review of literature from 1995-2013.  He looked at 60 studies involving same sex marriage and parenting in different household types.   Of those he stated that 54 were questionable because the results were not generalizable, they were small samples, biased samples (he explained this meant convenience samples) and that they were  “difference of means test with no power”, that there was researcher bias, they used “soft” measures and they were unable to replicate (because the research did not publish the data or make the code available).  He explained that “power” was a term of art that meant that the results had a “narrow confidence band” and that the studies had too much “noise”, another term of art that meant that it had a wide range or band of outcomes.

In a graph showing the articles he reviewed, 18 of them were dated 2001 and before.  He did not explain how he chose the studies he included.  Other witnesses state that there are about 150 studies published.

He testified that there were three studies he looked at published since 2010, the Rosenfeld study, the Regnerus study and his own study about high school graduation rates.  All of these were random sample studies, all had hard content, none were time series data, and all were gay & lesbian studies.  The Rosenfeld study had a gay sample of 3502 participants and a comparison group size of over 700,000.  The Regnerus study had a gay sample of 248 participants and a comparison group size of 2,988.  The Allen study (2013) had a gay sample of 8,632 and a comparison group size of 1,189,833.  Allen states that his 2013 study was comparable to Rosenfeld.  He cites to five other literature reviews, one by Steven Nock covering studies up to 2001, a review by Loren Marks covering studies up to 2005, and three by Walter Schumm dated 2005, 2011, and 2012.

Dr. Allen calls the 54 studies “preliminary” studies that can’t be generalized to inform public policy decisions.  He also stated that “counting studies” and finding a large consensus that “no differences exist is not a valid exercise.  Further, “standard practice” doesn’t resolve the problems.   He states that the research is just getting started.  When asked if the census studies should be considered as evidence, he states ”yes, because it is all we’ve got”.

In his critique of Rosenfeld’s study that examined the progression of children through school in relation to their household type, he criticizes Rosenfeld and quotes him as saying there is “no difference between children raised by same sex couples and opposite sex couples.  In fact, Allen states, there is “no statistical difference” and per Allen this is a different outcome.  He criticized Rosenfeld for not including a standard error factor.  He states that when the opposite hypothesis is tested, the results are different as between the heterosexual married couples and all of the rest of the categories (such as heterosexual co-habitating, separated/divorced/widowed women, never married men, etc.)  than those measures are when the same sex couples are measured against the other groups.  He states that the results are not robust to sample selection change because, adding back in those removed from the study as not the household head’s “own children” made a difference in the data outcome, that addition back in the participants removed because they did not meet the 5 year residency control made a difference in the results, and that the gender of the same sex parent and the gender of the children makes a difference.

His solution was to add back in the “own child” control and the “5 year residence” control  to increase the size of the study, and then tell the computer which ones experienced a divorce, which ones moved, which ones were foster, step or adopted children, and correct for other factors affecting outcome after the data is processed.  He states that it is only a dispute about how the calculation is done and the variables controlled for in the study.

Allen went into some discussion about how the Canada census differs from the US census and why that data lends itself to this study.  In his study he was able to separate the gender of the parents and the genders of the children and concluded that boys raised by gay men had a 69% greater odds of graduating from high school.  He concluded that “it looks like gender combination matters.  If shouldn’t matter if household types don’t matter.”

He admits that his work was criticized in blogs and by Rosenfeld when it was published.  The biggest concern was that the children were age 17-22 at the time of the census, and there was no information about what could have happen prior to age 12 that could have influenced the child’s odds of graduating from high school.  Also, they would have still had to be part of the household at the time of the census, and there was concern that children of opposite sex couples vs same sex couples may be more or less prone to living at home longer.

He again stated that there is not enough data and time to form any define conclusions. Power comes from sample size and from studies of different variables.

Opinions:  He stated verbally:  “Of evidence available there is no hard evidence that child outcomes are not different.  Must be cautious in making such a fundamental change to such a fundamental institution.”  However, the power point slide showing at the time he was saying this stated:

“Children in gay and lesbian homes do not perform as well as children in intact, opposite sex married homes.”  “Social Science is a long way from stating anything conclusive”  “Any conclusive statements are premature – not made based on any solid evidence since that evidence does not yet exist.”

{Editorial comment – There appear to be significant internal inconsistencies in these conclusory statements}

Cross will be posted later this evening.

More documents added to Helpful Links & Documents page

New documents added to “Helpful Links & Documents” page include:

Witness List – State amended

Witness List – Plaintiff – amended

Response to Motion to exclude 2PA

P’s motion for Summary Dis

Order re Motion to Exclude 2PA

Order granting Motion to Bifurcate

Motion to exclude Regnerus testimony

Motion to exclude 2PA

Motion to Bifurcate

Answer to Amend Complaint – Snyder

Answer to Amend Complaint – Brown