Appeals Court Should Correct Judge Friedman's Botched Social Science

Peter Sprigg is Senior Fellow for Policy Studies at Family Research Council. This article appeared in The Daily Caller on August 6, 2014.

The U.S. Circuit Court of Appeals for the Sixth Circuit that oversees Michigan will hear oral arguments this week regarding a series of decisions striking down state laws that define marriage as the union of a man and a woman, preventing recognition of same-sex "marriages" from other states, or both. The most interesting may be DeBoer v. Snyder, in which Judge Bernard A. Friedman ruled the Michigan Marriage Amendment unconstitutional.

The case began as a challenge by a same-sex couple to a Michigan law which limits adoption to single persons or married couples, thus preventing them from jointly adopting a child. Judge Friedman, however, "invited" the plaintiffs "to amend their complaint" against the adoption law and instead challenge the marriage amendment directly.

Apart from the case challenging California's marriage amendment (Proposition 8), which the Supreme Court declined to decide on the merits last year, the Michigan case is the only one in which the District Court judge also decided to hold an actual trial with witnesses and evidence, rather than granting "summary judgment" based on legal principles.

Since the issue of homosexual couples raising children was central to the case, Friedman heard testimony from several expert witnesses on both sides regarding the social science research on outcomes for children raised by homosexuals. Psychologist David Brodzinsky and sociologist Michael Rosenfeld testified about studies purporting to show little to no difference in developmental outcomes among such children.

However, the state presented equally qualified scholarly witnesses to challenge the claim that there are "no differences" between children raised by homosexual parents and those raised by their own, married biological mother and father.

As the judge noted, "family studies professor Loren Marks and economist Joseph Price questioned the validity of these studies [cited by Brodzinsky and Rosenfeld] in view of their statistical methodologies," such as small sample sizes, inadequate control groups, and the lack of "hard" outcome variables.

Price testified regarding an article he co-authored which "found that children raised by same-sex couples have noticeably worse outcomes than children raised by heterosexual couples." Economist Douglas Allen testified regarding his own study using Canadian census data which showed that children raised by homosexual parents were less likely to graduate from high school than children raised in heterosexual married households.

Marks also cited an Australian study by Sotirios Sarantakos which found that "children of married [heterosexual] couples are more likely to do well at school in academic and social terms, than children of cohabiting and homosexual couples."

Sociologist Mark Regnerus testified about his groundbreaking "New Family Structures Study" (NFSS), published in the journal Social Science Research in 2012, which found numerous significant differences between children raised by parents who had a same-sex romantic relationship and children raised by an "intact biological family" (that is, their married biological mother and father), almost all of which showed superior outcomes for the latter.

Judge Friedman was fawning in his adulation of the pro-homosexual witnesses, describing each as "fully credible" or "highly credible" and attaching either "considerable weight" or "great weight" to their testimony.

On the other hand, he simply dismissed the other witnesses. Loren Marks (whose published critique of the pro-homosexual parenting studies is, in reality, devastating) was described as "largely unbelievable." Furthermore, "The Court was unable to accord the testimony of Marks, Price, and Allen any significant weight."

However, Judge Friedman's attack on Mark Regnerus was completely over the top.

Unlike the previous studies on children of homosexual parents, Regnerus put together a representative, population-based sample that was large enough to draw scientifically and statistically valid conclusions. He also examined forty outcome measures, not just one or a handful. Because of these and other methodological improvements over previous studies, the Regnerus study stands as the gold standard in the field.

Judge Friedman dismissed it with language that sounded like the attacks upon it by LGBT bloggers. "The Court finds Regnerus's testimony entirely unbelievable and not worthy of serious consideration," he declared. Echoing unfounded accusations from homosexual activists, he charged that "his 2012 'study' was hastily concocted at the behest of a third-party funder." Yet the funders had no input into the design or conduct of the study, and even scholar Darren Sherkat, an early critic who was tapped to do an "audit" of the publication process by the journal editor, vigorously denied that the article was rushed to publication.

Friedman also claimed that "Regnerus's own sociology department at the University of Texas has distanced itself from the NFSS" - neglecting to mention that the university had investigated charges of misconduct brought by a "gay" blogger and concluded, ""Professor Regnerus did not commit scientific misconduct," and, "None of the allegations ... were substantiated."

Judge Friedman showed profound ignorance of social science and disregard for proper constitutional jurisprudence. We can only hope that that Sixth Circuit will do better.