Thoughts in a Haystack

U.S. District Court Judge Bernard Friedman struck down Michigan's ban on same-sex marriage as unconstitutional on Friday. I was busy all weekend with a work project and missed the news. But that's not the old news.

The old news is that the Religious Right will now be losing its collective mind once again.

Of particular interest here is that the trial in the case was the first time that Mark Regnerus, a sociologist at the University of Texas and the Religious Right's darling, had testified about his infamous "study" that supposedly showed (but did nothing of the sort) that children do better in families headed by opposite-sex parents than in those of same-sex parents.

Regnerus got absolutely smoked on cross examination.

Among other things:

~ Regnerus' admitted that he deliberately structured his study to compare children whose parents had a same-sex relationship with those who grew up in opposite-sex households undisturbed by separation or divorce;

~ Regnerus conceded that more than half of the respondents he classified as children of "gay dads" or "lesbian moms" were the offspring of failed heterosexual marriages, and that only two of the 3,000 respondents he interviewed had been raised by same-sex partners who remained together throughout their childhoods. And those two, like their peers in stable opposite-sex families "looked pretty good" in his study's measures of adult outcomes;

~ To add insult to injury (to whatever is left of Regnerus' reputation) his department at UT released a statement on the day he testified distancing themselves from his "study" and his personal views about same-sex marriage. When asked about that on cross examination, he said: "It's regrettable, I guess they just want to distance themselves from me." No wonder!

I have described Al Mohler as a marginally saner wingnut (he has admitted that the fight against same-sex marriage is lost) but the margin has all but disappeared this time. He says:

Judge Friedman, citing evidence that the study had been commissioned and paid for by conservative opponents of same-sex marriage, wrote, "The funder clearly wanted a certain result, and Regnerus obliged."

That is judicial slander pure and simple. I happen to know Mark Regnerus and I know the quality of his work, and I happen to know that this kind of accusation made in a judge's opinion like this really isn't a scientific statement about which, by the way, the judge is incompetent to rule.

Rather it is a political statement and it is intended to be the kind of political statement that, as Eckholm recognizes, will reverberate in other court decisions as well.

First of all, it is not "judicial slander" of any sort. Cases involving constitutional violations are bench trials, meaning that the judge is the jury. Fact finders are not only allowed but required to examine the motives of witnesses and determine their credibility based on the evidence presented. Let's look at some of that, as related by Judge Friedman:

The Court finds Regnerus's testimony entirely unbelievable and not worthy of serious consideration. The evidence adduced at trial demonstrated that his 2012 "study" was hastily concocted at the behest of a third-party funder, which found it "essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society" and which "was confident that the traditional understanding of marriage will be vindicated by this study." In the funder's view, "the future of the institution of marriage at this moment is very uncertain" and "proper research" was needed to counter the many studies showing no differences in child outcomes. Id. The funder also stated that "this is a project where time is of the essence." Id. Time was of the essence at the time of the funder's comments in April 2011, and when Dr. Regnerus published the NFSS in 2012, because decisions such as Perry v. Schwarzenegger and Windsor v. United States were threatening the funder's concept of "the institution of marriage."

While Regnerus maintained that the funding source did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged. Additionally, the NFSS is flawed on its face, as it purported to study "a large, random sample of American young adults (ages 18-39) who were raised in different types of family arrangements" (emphasis added), but in fact it did not study this at all, as Regnerus equated being raised by a same-sex couple with having ever lived with a parent who had a "romantic relationship with someone of the same sex" for any length of time. Whatever Regnerus may have found in this "study," he certainly cannot purport to have undertaken a scholarly research effort to compare the outcomes of children raised by same-sex couples with those of children raised by heterosexual couples. It is no wonder that the NFSS has been widely and severely criticized by other scholars, and that Regnerus's own sociology department at the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus's views in general and reaffirmed the aforementioned APA position statement.

In other words, Judge Friedman judged him the way any fact finder in court would ... he looked to his motives and actions and found those didn't match his testimony.

As to Judge Friedman being "incompetent to rule" on the quality of Regnerus' work, Mohler has no problem pronouncing on that subject, though he gives none of his qualifications to do so. On the other hand, the judge's only duty is to rule on the credibility of Regnerus' work in the scientific community, which determines if it is admissible in court as a support for the state's position. He had the benefit of the testimony of the plaintiff's expert's on that issue and it is no small matter that the American Psychological Association and Regnerus' own department at UT has disowned the "study."

Thus the judge has done nothing that any jury doesn't do ... he listened to the evidence presented in court and made a judgment based on it. Is Mohler against our court system?