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Update on trial will be provided shortly.
The afternoon started with the AG calling expert Joseph Price Ph.D, professor in economics at Brigham Young University.
His CV states
Associate Professor, Department of Economics, Brigham Young University, 2013 –
Assistant Professor, Department of Economics, Brigham Young University, 2007-2013
Faculty Research Fellow, NBER, 2008 –
Research Fellow, IZA, 2010-
Associate Editor, Economics of Education Review, 2014-
Ph.D. Economics, Cornell University, 2007.
B.A. Economics, Brigham Young University, 2003.
His publications include many topics including the NBA, healthy foods, and more recently child outcomes of children of same sex couples. He has three professional affiliations, including being a fellow at the Austin Institute (founded by Mark Regnerus).
He stated that he received funding from the Witherspoon Institute to verify the empirical data discussed in Perry. He removed this funding source from his grant list in his CV because the funding was out right compensation rather than an award of a competitive grant as the others in the list were, and because the Witherspoon Institute had received negative publicity from funding they provided to Mark Regnerus.
He served as an expert witness through submission of his report in the Utah, Idaho,
and Virginia marriage decisions. He was a signatory on an amicus brief that was submitted to the US Supreme Court and “other states”. He served as an expert in the Bassett case in Michigan, challenging the State’s ability to provide domestic partner benefits.
He testified he is a member of the Church of Jesus Christ of Latter-Day Saints and holds personal religious views about same sex marriage. However, he states that using empirical data means that he relies only on the data and has open and transparent discussions about his research. He stated that he will discuss statistical significance vs. economic significance.
On voir dire he stated that he does not have expertise in child development, but can testify to child outcomes. He has no expertise in psychology or methods used in psychology research. He has no expertise in psychiatry and is not familiar with types of factors psychologists consider to be potential mechanisms that predict outcomes. He is not trained in sociology but economics and sociology sometimes overlap. Not trained in social work. His first article on parenting and same sex parenting was published in 2012.
Judge certified him as an expert for economics only, and preserved the plaintiff’s objection as to any testimony that exceeds that qualification.
Dr. Price testified that in studying same sex parenting, he took the Rosenfeld study, which he complimented as a “quantum leap” in studying these subjects. However, his position was that there were two problems with the study. First that the results do not include a standard error factor. Second, he said that the study “throws away children” who should be included in the study. He clarified later that he meant that the data for these children was disregarded. In explaining this, he went into detail to show that the Rosenfeld survey grouped the subject children into those that were the parents “own” children, and further grouped the children by those who lived in the same residence with the same parents five years earlier. In Dr. Prince’s opinion, this allows the study to encompass more children and therefore be a more precise study. He stated that adjusting for these circumstances “cuts off two of the variables that predict outcomes – biological relatedness and stability”.
He stated that restricting the calculations to the sample used by Rosenfeld, there was no difference in the outcome of child progression through school between any of the groups. Eliminating ½ of the children with the stability and biological relatedness factors reduced the precision of the study.
He re-ran the data with the whole sample group included and not adjusting for stability and biological relatedness, and found a noticeable difference in the groups. In unrestricted data, the outcomes were 35% higher than same sex couples. In other words, the odds of children raised by same sex couples to be held back a grade by age 11 was 35 times that of children raised by opposite sex couples. He cited to other studies with similar negative results, including Regnerus, Potter, and Allen.
He gave three explanations as possible reasons for the outcome of his data and why the outcomes may differ based on family structure types:
Parental gender (males and females parent differently)
Re Gender; Mothers are more nurturing, soothing vocalize more, loving, smile, provide emotional security and safety. Fathers stress competition, spend more time watching TV and take care of outdoor housework.
Parental Gender: Needs both. Quotes Popenoe who proposed the juxtaposition of independence vs. relatedness and challenge vs support (Male vs female)
His opinion was that it was unlikely that a father can take the place of a mother and visa versa. He said that maybe lesbians can adapt and provide both parenting styles, but not likely gay fathers. He cited male behavior at fraternities and at sporting events as support for them not being able to assume a “motherly” demeanor.
He cited studies done in Norway and Sweden and the Potter study (Early Childhood Longitudinal Study) for the proposition that same sex couples are unstable and have a high rate of transition.
His conclusion was that an ideal environment is to raise children with a mother and father, biologically related and married to each other.
On Cross Examination:
He had no opinion as to what should happen with children who are in foster care or being abandoned by parents. He admitted that he already believed that marriage should be restricted to a man and a woman through his personal and religious beliefs.
He stated that he first started investigating child outcomes in 2007, although it was just a draft of an article and he had not shared that interest with anyone at that time. In 2010 he was recruited to attend a Heritage Foundation function. He knew at the time that the Heritage Foundation opposed same sex marriage. Others in attendance were Alliance Defense Fund, David Blankenhorn (witness at the Prop 8 trial), Maggie Gallagher (president of the Institute for Marriage and Public Policy), the National Organization for Marriage, Doug Allen and Lauren Marks. (Prof. Regnerus testified previously that he was also at this conference). At that conference, they discussed how to go about supporting marriage bans. It was after this that Dr. Prince received the compensation from the Witherspoon Institute.
As of June 2010 he made a list of projects he wanted to do involving same sex marriage and parenting by same sex couples. March 2011 he began collecting data and wrote the first draft of the paper. By November 2011, Doug Allen and a third author had joined the paper. The Rosenfeld critique was funded by BYU. He received a stipend of $2000 to join the Austin Institute.
He testified that his hourly rate for being an expert is $300 per hour and that his bill to date is about $15,000, to be paid by the State of Michigan.
He wrote a chapter in a book and set forth several positive outcomes for people who marry, including: live longer, fewer risky behaviors, earn more money, better child outcomes, behave better when someone is watching, facilitates a wider net of social bonds (in-laws), having legal access to resources of the spouse, and economy of scale. He was not sure that these benefits would benefit same sex couples or not if they were allowed to marry. He said that the benefits might just as well attach if the couple co-habitates. Qn – any reason that they wouldn’t transfer to same sex couples? Answer: Can’t give a definitive answer. But most of the changes due to marriage accrue to men, mostly because women are good at domesticating men when they marry.
He was asked about his opinion that the odds of children of same sex couples being held back at school are 35 times that of opposite sex couples. When asked him to ascribe a percentage, he was unable to. He did finally concede that the incidents of any child being held back are rare, and that the increased “odds” would not be all that significant. He states that he was unable to reject the hypothesis that there are “no differences” between the outcomes of children of same sex couples and the children of opposite sex couples advanced by Dr. Rosenfeld. He said “but there might be big differences”.
He stated that Dr. Potter’s math data study shows that any difference between the groups disappears when the control is added for family transitions. He further stated that Dr. Potter’s empirical data is different than he would have done, and that there is an “odd result” that shows that children of single mothers have better outcomes, and because that is not what he would have expected, he would call into the question the empirical method.
Testimony concluded for day. Will reconvene at 9 am on Wed. 3/5.
Jane Bassett will not be able to be in the courtroom on Wed. 3/5. We will try to find another source for gathering the information.
Leslie Cooper of the National ACLU cross-examined Mark Regnerus.
He acknowledged that more research had been done since 2005, but stated that a conclusion is “pre-mature” and that “the science is unsettled around this stuff”.
He stated that the two participants in his study that were raised from birth through adulthood by a same sex couple and reportedly “on average looked good” were too small of a sample to be relevant. He admitted that a study would take around 375,000 participants to yield 50 relevant participants to study that question. But, if there is a profound difference, then a smaller sample is sufficient.
Attorney Cooper asked the cost of the NFSS, and the response was $415,000. A study to yield enough participants would be “in the eight figure range”. He guessed that the federal government would probably fund that kind of study, and yes even if there are historians, psychologists, sociologist and pediatricians who have all concluded with their studies say that the outcomes for children are not negative.
When asked if the government did not fund such a study, is it his opinion that same sex marriage should never be allowed? Objected to by AG and sustained.
Witness stated that even if there were a type of study he specified as ideal that showed equivalent child outcomes to intact biological opposite sex couples, he would not support same sex marriage. He said that there were more considerations than child outcomes such as permanency, welcoming children and stability.
Witness states that stability is less common in households with two women, and fidelity is less common in households of two men. He did not cite any studies.
Witness admitted that children of households with fewer resources have worse outcomes. He would not favor denying such couples marriage rights.
Witness admitted that children of parents with less education have worse outcomes. He would not favor denying such couples marriage rights.
Qn: Are you in favor of denying marriage to people known to raise children who have not fared well? No. Because other criteria around marriage are paramount.
His position is that the state should privilege what is known to be an ideal environment for children.
He recognizes that same sex couples have children and that excluding marriage does not prohibit procreation. He knows of no studies that show otherwise. Does not know if marriage ban prevents any same sex couples from having kids.
He stated that in the NFSS that the children who reported having a parent who had a same sex relationship and then reported only living with the same sex couple for a limited amount of time, it was presumed that it was because the same sex couple broke up (thereby indicating a higher break up rate among lesbians). He used the term “in that era” several times, and did acknowledge that the children studied in the NFSS were children born before ART was a common process for bringing children into a same sex couple family and were likely the children born to a prior opposite sex union that ended. He said that it certainly was a possibility that children who report discontinuing residency with a mother who had a same sex marriage may have moved out and the relationship continued, but did not see that it was much chance that the child could have left to move in with the father.
Heterosexual couples in the NFSS were not defined by asking a parallel question such as did your parent ever have a romantic relationship with someone of the opposite sex during the time from your birth until age 18. The definition of opposite sex couples controlled for household instability by its very definition. He added “I didn’t ask how happy the couple was”.
He stated that he knew going into the research that children with disrupted households, in poverty, and with parents with less education in general have worse outcomes. He then testified that he had no idea what his study would show going in.
He distinguished his research by saying that he did not study sexual orientation, but rather sexual relationships. He stated that child outcomes in stable, planned LGB families are likely quite different from children born otherwise.
He indicated that he knew Paul Amato, and previously thought him to be a moderate in politics. Paul Amato has debunked witness’ work. He states that witness has made conflicting statements in public and in writing as to what his work means and what it supports. Again, witness advanced the argument that his work studied same sex relationships and not orientation.
The University of Texas Department of Sociology has issued a public disclaimer that Dr. Regnerus has personal opinions, and the opinions he advances are his own and not the opinion of the department. The American Sociological Association has published a similar disclaimer.
When asked about divorce rates in the US, witness was not able to provide any information. He did say that same sex couples in a legal marriage would be more likely to be stable and not break-up. He stated that overall African American couples and interracial couples divorce at a higher rate, and he would not favor banning marriages to these groups.
Witness had testified on direct that diminished kinships (one or both parents without a genetic connection to the child) increases the risk for the child. But, he does not disfavor re-marriage if the first marriage ends in divorce or death. He believed it was more sympathetic if the prior spouse died rather than as a result of divorce. Did not favor using donor eggs or sperm for married opposite sex couples, but did not believe it should be prohibited. He agreed that a planned child of a same sex couple is not subject to the same family disruption as a child who is the product of an opposite sex marriage and then the marriage breaks up. But, based on the reduced kinship theory, the genetic components of a same sex couple with a donor conceived child is more similar to a step-parent opposite sex couple.
Adoption with no kinship is a concession by the state, and necessary. He has no opinion as to whether or not a child in foster care should be adopted by a lesbian or gay person or if the child would be better or worse off by being adopted by both adults in the couple or only one person.
He states that sexual relationships outside of a married man and woman are wrong. His alumni profile (10 years ago) states “If your faith matters it should inform what you teach and what you research” “I’ve had students here who tell me I’m the only Christian professor they’ve had” “My world view colors what I do in the classroom” “That’s why I want my students to recognize the connection between my faith and my work”
He discussed his contact and work with Luis Tellez and Maggie Gallagher of the Witherspoon Institute, and Brad Wilcox who introduced them. His emails with them requested more information about their boundaries and the timeline for publishing the study, and asked them what they wanted the study to look like. He refers to a “coalition”. Tellez told him “Move on it, don’t dilly dally” “It would be great to have this before a major decision by the Supreme Court”. Ultimately, the paper was sent for publishing before all of the data was in, and just before the deadline for the last publication prior to the Windsor decision. The article was cited in the witness’s amicus brief to the Supreme Court. He presented the paper at a meeting of the Heritage Foundation, and they responded by sending him a Media Training Document. Witness could not remember if he read the talking points but testified that he “largely ignored it”.
He stated that his study of straight men shows that support for same sex marriage may be, in part, a result of increased exposure to porn.
The second witness called by the AG’s office was Mark Regnerus. He is an associate professor of sociology at the University of Texas, Austin. His duties include teaching Intro to Sociology, a graduate level course on how to write, and Sociology of Religion. He also has various administrative duties in the department. Sociology is the study of influences of social forces on human behavior, how people operate in social groups, and how social structures change or don’t change over time. His focus is on the sexual behaviors of adolescents and religion.
He has written 30-32 peer reviewed articles, and participated in 5-6 data collection studies. A couple of data studies he took a minor role, one he was more involved, and the final one he was a principal. The study is called the National Family Structure Study (NFSS), 2012. He is a Sr. Fellow for the Austin Institute for the Study of Family and Culture, and, he testified, since he was a founding member, it was fitting that he would take the role as Sr. Fellow. His duties include giving direction and suggestion to the researchers and providing “ideation”.
In the NFSS he stated that over 15,000 people were sampled. The participants were adults age 18-39 given a series of questions. Some of the questions centered around whether or not one or both of the participant’s parents ever had a romantic relationship with a person of the same sex. Those who answered yes were placed in one group. Those who answered no were either then asked if they were raised by their biological parents as a family unit from birth through adulthood (intact opposite sex family). Others were in a category of people raised by single mothers.
The AG moved to qualify Prof. Regnerus as an expert, and Plaintiffs’ attorney did not object.
On direct examination, he testified that his study is a population study that includes a much larger sample than convenience studies. It uses a probability based sampling as opposed to a non-probability based sampling. Because it is a population study, it measures a broader range of society, rather than a convenience study that targets a particular demographic of people to answer questions about that particular demographic. It is designed to measure the probability of the outcome being tested.
Prof. Regnerus readily admits that the group identified as those children with parents who had a same sex partner (originally identified in the study as lesbian mother and gay fathers, which Regnerus admits is a leap of logic in the labeling, and one he should not have made), were not self-identified, but rather identified by the adult children from the perspective of the child. He also stated that only two of the people in this group were raised by the same sex couple from birth through adulthood. He offered as a justification for comparing this group to the group where were raised to adulthood by their biological parents by saying that they were not comparable to the opposite sex parent families and more similar to the single parent families because of “reduced kinship” – having fewer biological connections between the parents and the child. He freely admits that disruption and transition in the household is a factor in how well children do, but states that disruption and transition is a regular part of same sex coupleship.
He states that a biological mother and father raising a child together to adulthood is “historically best for children”, and that anything other than that is reduced kinship and is a concession. Biological parents are less likely to abuse a child and are more likely to sacrifice for their child.
The Judge asked the witness what definition he was using for same sex relationship. He said that it was defined by the question asked of the adult children – did your mother/father ever have a romantic relationship with a member of the same sex. He added – during growing up years. The witness stated that they may not have been raised by the same sex couple and that there may have been a great deal of breaking up in the parent’s life.
AG resumed questioning: He stated that he began to be interested in this area of research and got several consultants on board in January 2011. “About ½ along” Witherspoon reached out as well as a conservative agency and offered $90k. Previously, Witherspoon had not funded social research before. The Chairperson for Witherspoon sent him an email and suggested that he should try to get the results of his study out before the Windsor and Perry cases were heard by the US Supreme Court. He, however, stated that he imposed his own deadlines and was not directed by Witherspoon as to the results of the study.
Prof. Regnerus called into question the study that found “no differences” between children raised from birth to adulthood by a same sex couple from those raised to adulthood by a mother and father. He stated that the finding that there is no difference in the outcome of the children is pre-mature, and that no probability can be ascribed based on the limited study. He also said that Mega-studies, the aggregate of several studies to show that that the results are similar in order to verify and bolster the findings is not enough to overcome the fact that they are convenience sample studies.
He testified that in the NFSS, there were 40 outcomes, and 24 of them showed that the group he labeled as having exposure to same sex parents, fared worse. He states he did not control for other factors such as transitions within the home structure. He states that the focus was not on the sexual orientation of the parent, but only on relationships. There was no question that identified children born as a result of assisted reproduction technology (ART), but he made assumptions that children being raised by a mother and father were not as a result of ART and that if the parent was a single mother, that there was likely a man involved at some time. He did not talk to the parents or get any further background.
He stated that there were two participants who were raised from birth through adulthood by a same sex couple. When asked how they were doing, he said – “On average they looked pretty good”.
He admitted to being highly criticized for his research methodology and reports of the data. He said that one critic complained that he did not control for instability in the parental relationship, and his response was “I understand his complaint, but that wasn’t the purpose of the article”. Prof. Regnerus stated that the reaction to the article was “Sever and Swift”. He was receiving complaints within a day. There were efforts to get the article retracted. 200 people complained to the editor. An audit was conducted. He had not heard of such a procedure before. He states that the editor doesn’t like him, and he gave the job of the audit to someone who has ranted about him for years. He doesn’t like Prof. Regnerus, and he doesn’t know why. The conclusion of the investigation was that the research was “deeply flawed” and “should not be published”. Article was not retracted. Then he was accused of misconduct. There was a scientific misconduct review of him. The review did not lead to an investigation, which would have been the next step, and seems to have resolved with the review team’s recommendation to the provost that the matter be dismissed.
He repeated that this research area is too new to make definitive conclusions. Too many unknowns. Social scientists are unable to document with any degree of certainty that no developmental harm is done to children growing up in households wherein parents or in (or have been in) same sex relationships. His opinion is that the state should privilege the definition of marriage to a man and a woman because it is the optimum child development atmosphere.
He stated that he is a member of the Roman Catholic Church, but does not see that as influencing his opinions or research. His belief about marriage is that it should remain between a man and a woman an intended to be permanent. It should be undertaken when young people expect to welcome children. There is an expectation of fidelity. And children flourish in that environment.
When asked if a population study showed that children of same sex parents showed positive outcomes, would that change his opinion? He said, some children fare just fine, but he is not going to revise his opinion about “no differences”.
Opinions: It’s possible that lesbians can raise children just fine, but not significant number to show it is probable – only possible. Most prudent thing to do is to wait before overhauling it on modest information. Ideal setting is a mother and a father raising a child to adulthood with no transitions. Attempting to simulate a family unit with reduced biological connections, that is a concession.
End of Direct Testimony
Tomorrow at 9am – Cross examination of Prof. Regnerus.
The AG then started its defense witnesses. The first witness was Sherif Girgis who has a BA in philosophy from Princeton, and an MA in philosophy. He is currently working on a PhD in philosophy at Princeton and a law degree at Yale. He cited several panels he has participated in, prizes and awards he has won and law review articles he has authored. He wrote a book called What is Marriage, Man, Woman and the Law. This book explores the conjugal and revisionists view of marriage. He is of the opinion that the conjugal view is the more “cogent” view.
He was a keynote speaker for a Federalist Society conference and participated at a panel at a Heritage Foundation function. He is a frequent panelist, debater and guest lecturer at several Universities, including MSU, Wayne, Oxford, Stanford University and Hillsdale College. He stated that, if qualified as a witness, he plans to offer that 1) the ways that the laws are changing in Michigan might undermine social goals; and 2) Reasons, apart from religion or animus to promote male-female bonds for their distinctive social values. He planned to explain these concepts through philosophical principals and the history of philosophy.
The attorney for Plaintiff then was given a chance to question him about his background to see if he met the test to be an expert in a Federal trial (Daubert test). He stated that he had never been an expert witness, that indeed he was still a student and that his exams are graded by others to determine if he passed or failed knowledge of the material, that his is not a member of the bar in any state, that he is not eligible for bar membership in any state, that he has not written any peer reviewed articles, that his is not a historian, an expert on Michigan law, a sociologist, a child development specialist, and to date, he has not taken any course in marriage or family law at law school. Plaintiffs’ attorney objected to him being qualified as an expert both on the grounds that his background is not in any area relevant to Michigan law and the rational basis for the marriage ban claimed by the AG. That if Michigan law required a conjugal relationship as a basis of marriage, that his testimony might be relevant, but it does not require such a relationship and the State cannot make such a requirement under the Constitution. He further argued that philosophy is not a science, and that it can’t be tested and proved.
AG responded that his testimony relates to the State’s justification for restricting marriage; i.e., procreative relationships.
The Judge ruled that there are two tests under Daubert, one being the qualifications of the person offered as an expert, and that the testimony will help the Court determine evidence or facts in this case. He ruled that, while someday Mr. Girgis would likely make a fine expert witness, at this time he does not have the background or experience that would help the Judge determine evidence or facts in this case. Plaintiff’s objection was sustained, and the witness was dismissed.
The day started with the Oakland County clerk, Lisa Brown taking the stand. Ms. Brown is technically a defendant in this matter. However, based on her testimony and her attorney’s opening arguments, she is not, as a practical matter, a hostile witness. As a party, she would be bound by the Judge’s decision, independent of Governor Snyder and Attorney General Schuette. Ms brown stated that, if this Court ruled the marriage ban unconstitutional, she would follow the Court’s order, even in the face of instructions from the Governor and the AG to refrain from issuing licenses.
Several months ago, Ms. Brown brought this case to the attention of Glen Copeland, the State Registrar and suggested that the State needed to prepare forms that would be available in case the marriage ban was overturned. He was unaware of the case, and asked Ms. Brown to draft a new form to submit to the County Clerk’s Association. The committee at the Association sent her back a second draft, and the forms are currently at the AG’s office waiting approval. Ms. Brown stated that she believed the forms were intentionally being held up at the AG’s office, but that if a form had not been approved at the time they were needed, that she would use the current form and alter it to fit the couple before her at that time.
Ms. Brown stated that her personal feelings and religious beliefs are irrelevant to the carrying out of her duties. In fact, it is a crime (misdemeanor) for a Clerk to refuse a marriage license to someone who is otherwise qualified. When asked if she has received any communication from the AG’s office regarding this case or same sex marriages, she testified that she and all of the Clerks throughout the State received an email on October 16, 2013 sent at 2:47 pm – the date and time set for the motion for summary disposition hearing in this case – from the AG’s office stating that even if the US District Court were to decide the marriage ban is unconstitutional, Clerks are instructed not to issue licenses. In the attached letter, bolded and underlined, it further stated: You are forbidden by Michigan Law to issue a license during an appeal. This email was followed up by a fax, a phone call and a letter sent by US post with similar content.
Ms. Brown stated that she does not report to the AG or to the Governor and would follow the Judge’s Order.
On cross, Ms. Nessel, attorney for the plaintiffs, asked if the Plaintiffs had applied for a license and had been turned down. The answer was yes. A series of questions then ensued about the circumstances of who can qualify for a license. There is no criminal background check, there is no requirement of the applicants to prove their ability or their intent to procreate, they do not have to prove parenting ability or show that children they have had previously are thriving, no inquiry into child abuse history, pedophilia, no check to see if there are outstanding warrants for unpaid child support, no inquiry into the stability of the couple’s relationship, inquiry into history of monogamy or intent to be monogamous, no question as to intent to engage in intercourse.
The only thing that they need is a driver’s license and a $20 application fee. There has never been a requirement to procreate, that the marriage will be stable, and that the future outcomes of the resulting children will have good outcomes in this life.
The AG had no cross examination questions of this witness.
Oakland County Clerk Brown testified. More info in her testimony later.
AG offered Sherif Girgis as an expert in philosophy. Judge Friedman declined to certify him as an expert under the Federal test for expert testimony. Next witness is Regnerus at 1 pm.
Other matters addressed by the Court today had to do with further discussion of the Michigan Department of Civil Right Report on LGBT Inclusion and whether or not it is 1) relevant, and 2) cumulative. The Judge ruled that it is relevant to the evaluation of the rational basis for keeping the marriage ban, and that while it may be cumulative, that does not warrant keeping it out. He has admitted the report as evidence.
The State then made a motion to the Court to dismiss plaintiff’s case because, it argued, Plaintiff has not met its burden of proof that there is zero value to a child to be raised by a mother and a dad. The State asked the Judge to take a cautious approach to changing the law. The Plaintiffs’ attorneys pointed out that not only as plaintiffs’ case negated every conceivable reason for the marriage ban, but that the State’s recitation of the standard is incorrect. The plaintiffs’ attorney pointed to the standard as set for the in the Judge’s ruling on the motion for summary disposition in October of last year as being the proper standard when reviewing a law that impacting historically disadvantaged groups.
Plaintiffs assert that they have created an overwhelming record establishing the utter lack of rational basis, and that given the multiple decision in other Federal Courts in the last few months, each saying that marriage bans are without rational basis.
Judge took the motion under advisement but said he wanted the trial to continue.
As an editorial comment, a motion for dismissal at the end of the plaintiff’s evidence is a routine procedure. This was not unexpected, and it is also quite common for a Judge to take matters under advisement and issue rulings after more of the case has unfolded. This is not at all indicative of how the Court will rule in the end.
Attorney General’s cross-exam of Prof Cott:
AG tried to limit Prof Cott’s testimony by restricting her to yes and no answers. The Judge spoke up and said, if you can’t answer a question with a yes or a no, he wanted her to say that. They tried to limit the areas of expertise by citing isolated parts of her transcript in which she said she was not an expert in the religion. Prof Cott read the quote they cited and it said – she was not an expert “in part” in religion. A similar question was asked about being an expert in the law. The portion was not quoted accurately by the AG. The judge asked her to elaborate, and she said that, to the extent she is a historian, she is a historian of religion and law as it pertains to her specialized area. She is not, however, a lawyer and so not a legal expert in that sense.
Prof Cott was asked if she believed Michigan should allow same sex marriages. Her response: I don’t deal in “should” . When pressed, she said that allowing same sex marriages would be consistent with the trends in history. IT would be the right direction to go.
They questioned her about getting paid to be a witness and that she received $30,000 in compensation for her role in the Perry v Schwarzenegger (Prop 8) case. And, whether or not the States have the right to regulate marriage by restricting related individuals from marrying, the age of the person who marries and the act of bigomy. All of which Prof. Cott agreed was within the realm of regulation by the states.
Prof. Cott pointed out that banning some marriages is the state’s action to demote or discredit some relationship and that, yes, she believed that banning same sex marriage relegates LGBT people to second class citizenship when it comes to marriage.
The AG asked if it was her opinion that that State should incentivize couples to form “stable and enduring unions so they can procreate and support each other and their children” and again tried to tie that language to a quote in Prof. Cott’s deposition. The quote material actually did not include the middle part of the sentence “so they can procreate” , and without that portion, Prof. Cott agreed with the statement.
RE-Direct by Plaintiff
Prof. Cott explained that sexual intimacy is going to occur between men and women in society and that the state’s interest is in creating household groupings that economically support the people within that household. Separately, states hold adults responsible for those they procreate. The concept of supporting child is central to our laws, while the concept of encouraging the bearing of children is invisible.
The centrality of gender difference or gender roles in marriage has “dropped out” of the laws. The relationship of marriage to gender has been on a trajectory where gender has a limited, if any, role to do with marriage. No one applying for a marriage license has ever been asked what their role will be in the marriage.
End of testimony.
Monday 3/3/14 at 9am
Defendant –Oakland County Clerk Brown will take the stand.
Then the AG’s office will start their case. Their first witness will be Sharif Gurgas and then Mark Regnarus will likely start testifying in the afternoon. It is anticipated to be a full day of testimony.
Continuation of Plaintiff’s witness.
Professor Nancy Cott is a Jonathan Trumbull Professor of American History; Director, Pforzheimer Foundation; Director Schlesinger Library at Radcliff. Her specialty is gender and sexuality; political and cultural history of the US in the 19th and 20th century. She is a member of the American Historians and the American Historical Society.
Most of Nancy Cott’s work in 19th and 20th century U.S. history focuses on gender questions. Her interests also include social movements, political culture, law, and citizenship. Her current project concerns Americans who came of age in the 1920s and shaped their lives internationally.
Since writing Public Vows, on the history of marriage as a public institution in the U.S., Professor Cott has participated in writing historians’ amici briefs on the same-sex marriage question in several states, including challenges to the federal Defense of Marriage Act, and she testified as an expert witness in the federal case Perry v. Schwarzenegger against Proposition 8 in California.
She teaches courses on the history of sexuality and gender, as well as (at the graduate level) twentieth-century U.S. history.
Professor Cott was offered , without objection by the AG , as an expert on the history of marriage. The Judge certified her as an expert for that purpose.
She authored a book entitled Public Vows which addresses the history of marriage which was preceeded by 10 years of research on the history of marriage. The title, she explained, is indicative of the dual aspect of marriage, public and private. The vows are private and form a contract between the people, marriage has historically been promoted by government to incentivize household units, and the public (government) vows to guarantee those private vows.
She explained that marriage is a civilly authorized public institution that also forms a private contract between the participants and is granted a legal status.
Marriage is encouraged by the government traditionally to promote social order and economic benefits. With marriage comes the obligation to support that benefits the state in that the state is then relieved of the obligation of supporting the persons in the marriage if there is illness or other cause of the person being unable to support him or herself.
Also, in the history of the US, discriminatory laws regarding marriage also tried to prescribe who is the most desirable people to include in the US. While some of these laws were dictated by emotions regarding race, it also was dictated by emotion about who should populate the US.
The history of marriage does not include laws regarding procreation as a means of validating the marriage. Sterility, aging limitations on fertility, and inability to bear a child have never impacted the right to marriage or be a cause for divorce. In fact, George Washing ton was known to be sterile. He helped raise Martha’s two children from a previous marriage and the child of one her children after he died. This is an early example of a non-biological family unit. Further, sexual intimacy is not a requirement for a valid marriage.
When asked what is the State’s interest in allowing or encouraging marriage between people who cannot procreate, the answer was: economic and social order including the obligation to support. She explained that in the 1920s when there was growing availability of contraception, non-procreative marriages were a recognized reality.
Marriage has always been a civil arrangement in the US. She quoted William Bradford, 1st Governor of the Plymouth Colony when American was in its infancy. He distinguished the new world from the Church of England by saying that marriage is in fact a civil entity with great property involved.
Professor Cott was asked – who has the authority to regulate marriages. The legislature and the courts have the authority to regulate. They regulate eligibility, requirements and obligations, rights, and who can perform the ceremony. Historically, in Michigan and other states, marriage gives special benefits in the law.
Religion does not play a role in the regulation of marriages. Religions have the right to freely exercise their ideals. Civil authorities have typically recognized their authority to do so within their religion. Clerics have been “loaned the authority” to perform the marriage by the civil authorities. Religions have the right to impose additional requirements in addition to legal requirements for ceremonies performed within their churches but have no right to impose additional regulations that would impact the validity of marriages. An example would be that that Catholic Church has traditionally barred divorced people from re-marrying in the church. This does not mean they cannot re-marry, but the church can refuse to allow the church to be used for such purposes.
The State of Michigan advances that the ban on marriage is justified because of “tradition”. Dr. Cott responded that when viewed in the eyes of history, marriage is a “moving target” and not static in any set tradition. One way in which marriage has changed relates to changes in the relationship between the spouses. Historically there were certain roles expected of each spouse that were reflected in the laws. The roles were asymmetrical and created a hierarchical system. The wife’s identity was absorbed into her husband’s identity to the point that she could not own property, could not enter into a debt, and could not bring a lawsuit. The husband had a strong set of responsibilities and was required to support his wife. This is known as “coverture” and is based on the idea that the wife is “covered” by her husband’s identity. Over time the court began to change this aspect as social norms changed.
In 1963, Michigan changed it Constitution to abolish coverture, but the big change did not come until the 1970s. Now, across Michigan and the US, the laws no longer view the roles within the marriage as hierarchical.
Another big change to marriage and how marriages are treated under the law and viewed by society came with the increase and change in the reasons for divorce in the 20th century. In 1971, Michigan was one of the first states to change their divorce laws to “no-fault” divorce. Prior to this, a couple could only divorce if it no longer served a state interest. It had to be shown to fault against the state (not the other spouse). If the marriage no longer served social order because of abuse in the home, or if the purposes of economic support were abandoned because the husband deserted the wife, then a divorce would be granted to free the spouses to enter into a new marriage and restore the social order and economics. When no-fault divorce was instituted, the focus changed from a the state’s interests to consent of the parties. If the parties no longer consented to be married, then they could be granted a divorce.
There are numerous ways in which states regulate who can marry. Interracial marriage bans were instituted in many states but all of these regulations only prohibited a non-white person from marrying a white person. No other racial combinations where prohibited. These laws were not reciprocal and undermined the claim that God’s plan was to keep the races apart, that nature would not have made people look different if they were intended to marry. Those laws changed and moved in a direction of consent and moved to a position of gender neutral rights and roles under the law.
Alarmists say that same sex marriages would undercut the institution of marriage. There is a consistent theme among various marriage bans that any change would be opposed as unnatural. However, the changes that have happened so far have not, in fact, undercut marriage. The government knew that there was sexual intimacy between people of different racial backgrounds and that the ban did not prevent this but rather that bans only served to demean the couples, putting social pressure and stigma on the couple.
The effect of the changes to marriage laws over the years has been to make marriage more equalitarian between the spouses , make it an institution of choice and consent, and the State honoring the couple’s decision to remain a unit for as long as the consent continues. In the face of this it shows that marriage is has resilliance and can be adjusted with the legal, social, and economic changes of society. This has actually helped keep marriage as a viable choice for people in today’s society. Opposite sex marriages have not suffered because of same sex marriage. After 10 years of marriage equality in Massachusetts, marriage remains a health institution. If anything, younger populations of opposite sex couples are saying they do not want to marry if others can’t. Overall, there is no evidence of harm to opposite sex marriages. Professor Cott’s predictions for the future: history shows changes made to the institution of marriage to bring it up to date have been beneficial to the institution of marriage.
Historically, Federal restrictions relating to marriage have included the refusal to view marriage between Native Americans as valid marriage, and refusal to give validity to proxy marriages of Japanese immigrants. There were marital disincentives for American women who married non-American men. The women would forfeit their citizenship and lose all of their property. Marriage laws under coverture eventually pushed the Federal Government in a position to allow joint tax returns for married couples. Couples were moving to community property states where the law viewed assets and income of the marital couple to be owned one half by each spouse. By dividing earnings from the sole wage earner in the household between the couple, they could get a better income tax rate. Eventually the IRS gave in and began allowing joint tax returns for couples.
Conclusion: the trend toward gender equality and neutrality has laid a course for marriage. Michigan’s Constitution ban has obstructed that path.
Concludes direct examination.