3:10-cv-00257 #174

Case3:10-cv-00257-JSW Document174
Filed10/14/11 Page1 of 36
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PAUL D. CLEMENT, ESQ. (DC Bar 433215) pclement@bancroftpllc.com H. CHRISTOPHER BARTOLOMUCCI, ESQ. (DC Bar 453423) cbartolomucci@bancroftpllc.com CONOR B. DUGAN, ESQ. (MI Bar P66901) cdugan@bancroftpllc.com NICHOLAS J. NELSON, ESQ. (MD Bar) nnelson@bancroftpllc.com BANCROFT PLLC 1919 M Street, NW, Suite 470 Washington, DC 20036 202-234-0090 (phone); 202-234-2806 (fax) OF COUNSEL: KERRY W. KIRCHER, GENERAL COUNSEL (DC Bar 386816) Kerry.Kircher@mail.house.gov CHRISTINE DAVENPORT, SR. ASST COUNSEL (NJ Bar) Christine.Davenport@mail.house.gov KATHERINE E. MCCARRON, ASST COUNSEL (DC Bar 486335) Katherine.McCarron@mail.house.gov WILLIAM PITTARD, ASST COUNSEL (DC Bar 482949) William.Pittard@mail.house.gov KIRSTEN W. KONAR, ASST COUNSEL (DC Bar 979176) Kirsten.Konar@mail.house.gov OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, DC 20515 202-225-9700 (phone); 202-226-1360 (fax) Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) )
KAREN GOLINSKI, Plaintiff, v.
Case No. 3:10-cv-0257-JSW Hearing: December 16, 2011, 9:00 a.m. SUPERSEDING OPPOSITION OF THE U.S. HOUSE OF REPRESENTATIVES TO
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SUPERSEDING OPPOSITION OF THE U.S. HOUSE OF REPRESENTATIVES TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT, Case No. 3:10-cv-0257-JSW
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, et al.,
) ) ) Defendants. ) __________________________________________)
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
TABLE OF CONTENTS SUMMARY OF ARGUMENT .................................................................................ix STATEMENT OF ISSUE..........................................................................................1 STATEMENT OF FACTS ........................................................................................1 RESPONSE TO PLAINTIFFS STATEMENT OF UNDISPUTED FACTS ..........2 General Statement ..........................................................................................2 Particularized Responses ...............................................................................2 ARGUMENT .............................................................................................................4 I. THE CLASSIFICATION IN DOMA IS NOT SUBJECT TO ANY HEIGHTENED SCRUTINY.........................................................................4 Binding Circuit Precedent Forecloses Application of Heightened Scrutiny on the Basis of Sexual Orientation..........4 Based on the Traditional Criteria Used to Determine Suspect or Quasi-Suspect Classes, Homosexuals Clearly Are Not a Suspect or Quasi-Suspect Class ................................................5 1. 2. 3. 4. C. History of Discrimination .............................................6 Ability to Participate in or Contribute to Society .........7 Immutability ..................................................................7 Political Powerlessness .................................................11
B.
DOMA Does Not Discriminate on the Basis of Sex.................17
1 2 3 4 5 II.
D.
DOMA Does Not Implicate a Fundamental Right ...................18
DOMA EASILY SURVIVES RATIONAL BASIS SCRUTINY ........................20 A. Congress Was Justified in Acting with Caution When Faced with the Unknown Consequences of a Proposed Novel Redefinition of the Foundational Social Institution of Marriage ....................................................................................21 DOMA Promotes Responsible Procreation ..............................23
B. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
CONCLUSION ..........................................................................................................25
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TABLE OF AUTHORITIES
Andersen v. King Cnty., 138 P.3d 963 (Wash. 2006)............................................................................18 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) .........................................................................11 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) .........................................................................5 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) .......................................................................................7, 11, 16 Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) .......................................................................................19 Conaway v. Deane, 932 A.2d 571 (Md. 2007) ..............................................................................17 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ............................................................................5 Diaz v. Brewer, No. 10-16797, 2011 WL 3890755 (9th Cir. Sept. 6, 2011) ...........................4 Disabled Am. Veterans v. U.S. Dept. of Veterans Affairs, 962 F.2d 136 (2d. Cir. 1992)..........................................................................17 FCC v. Beach Commcns, Inc., 508 U.S. 307 (1993) .......................................................................................2 Frontiero v. Richardson, 411 U.S. 677 (1973) .......................................................................................6, 10 Gill v. OPM, 699 F. Supp. 2d 374 (D. Mass. 2010) ............................................................20, 23 Heller v. Doe, 509 U.S. 312 (1993) .......................................................................................2, 17 Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) .......................................................................8
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High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (1990) .......................................................................................4, 6, 8, 11 In re Golinski, 587 F.3d 901 (9th Cir. 2009) .........................................................................1 In re Golinski, 587 F.3d 956 (9th Cir. 2009) .........................................................................1 In re Golinski, No. 09-80173 (9th Cir.) .................................................................................1 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ......................................................5, 17 Johnson v. Robison, 415 U.S. 361 (1974) .......................................................................................16 Lawrence v. Texas, 539 U.S. 558 (2003) .......................................................................................5, 7, 20, 25 Leib v. Hillsborough Cnty. Pub. Transp. Commn, 558 F.3d 1301 (11th Cir. 2009) .....................................................................17 Lofton v. Sec. of Dept of Children & Fam. Servs., 358 F.3d 804 (11th Cir. 2004) .......................................................................5, 24 Log Cabin Republicans v. United States, Nos. 1056634, 1056813, 2011 WL 4494225 (9th Cir. Sept. 29, 2011) .................................................4, 12 Loving v. Virginia, 388 U.S. 1 (1967) ...........................................................................................18 Lui v. Holder, No. 2:11-cv-01267-SVW (JCGx) (C.D. Cal.) ...............................................5 Lyng v. Castillo, 477 U.S. 635 (1986) .......................................................................................6, 16 Moore v. City of E. Cleveland, 431 U.S. 494 (1977) .......................................................................................19
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Newdow v. Lefevre, 598 F.3d 638 (9th Cir. 2010) .........................................................................8 Pedersen v. OPM, No. 3:10-cv-01750 (D. Conn.) .......................................................................10 Reynolds v. United States, 98 U.S. 145 (1878) .........................................................................................21 Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007) .......................................................................8 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .......................................................................................19 Romer v. Evans, 517 U.S. 620 (1996) .......................................................................................5 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ...........................................................................................16 Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ...........................................................5, 17 Steffan v. Cheney, 780 F. Supp. 1 (D.D.C. 1991) ........................................................................11 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) .........................................................17 Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y.).......................................................................10 Witt v. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008) .........................................................................20 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989)......................................................................8 Statutes and Legislative Authorities
21 1 U.S.C. 7 ................................................................................................................1 22 28 U.S.C. 1738 ........................................................................................................25 23

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Morrill Anti-Bigamy Act, ch. 126, 1, 12 Stat. 501, 501 (1862) .............................21 2011 R.I.H.B. 6103 (July 2, 2011) .............................................................................15 750 Ill. Comp. Stat. 75/20 (West 2011) .....................................................................15 Cal. Fam. Code 297.5 (West 2011).........................................................................15 Colo. Rev. Stat. 15-22-105 (West 2011).................................................................15 Conn. Gen. Stat. Ann. 46b-20, 46b25 (West 2011) ...........................................15 D.C. Code 46-401, et seq. (2011) ...........................................................................15 Del. Code Ann. tit. 13 212 (West 2011) .................................................................15 Haw. Rev. Stat. 572C-1 (2011) ...............................................................................15 N.H. Rev. Stat. Ann. 457:1-a, et seq. (2011) ..........................................................15 N.Y. Dom. Rel. 10-a (McKinney 2011) .................................................................15 Nev. Rev. Stat. Ann. 122A.010, et seq. (West 2011) .............................................15 Or. Rev. Stat. 106.305 (West 2011) ........................................................................15 Vt. Stat. Ann. tit. 15, 8, et seq. (West 2011) ...........................................................15 Wash. Rev. Ann. Code 26.60.010 (West 2011) ......................................................15 H.R. Rep. No. 104-664 (1996) ...................................................................................2 A Bill to Define and Protect the Institution of Marriage: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) ..........................3 Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) ............3 Other Authorities Letter from Eric H. Holder, Jr., Atty Gen., to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011) .....................................................12 Human Rights Campaign Lauds 2008 Election Results (Nov. 4, 2008) ...................14
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Joe Biden: National Consensus on Gay Marriage Inevitable, LGBTQ Nation (Dec. 25, 2010) ....................................................................16 Press Release, Victory! Administration Drops DOMA Defense, Human Rights Campaign ...............................................................................12 Reversal of Fortune, Natl J., Nov. 11, 2006 .............................................................14 The Gay & Lesbian Victory Fund and Leadership Institute, 2008 Annual Report .......................................................................................14 The Gay & Lesbian Victory Fund and Leadership Institute, 2010 Annual Report .......................................................................................14 U.S. Census 2010 .......................................................................................................15 Gay Histories and Cultures: An Encyclopedia 452 (George E. Haggerty ed., 2000) .....................................................................9 Abby Goodnough, Rhode Island Lawmakers Approve Civil Unions, N.Y. Times, June 29, 2011 ............................................................................13 Abby Phillip, Obama to Nominate Fourth Openly Gay Judicial Candidate, Politico, July 20, 2011 ...................................................................................13 Ann Hulbert, The Gay Science: What Do We Know About the Effects of SameSex Parenting?, Slate (Mar. 12, 2004) ..........................................................24 Dana Milbank, In A Quiet Moment Gay Judge Makes History, Wash. Post, July 18, 2011 ..............................................................................13 Elisabeth Bumiller, Obama Ends Dont Ask, Dont Tell Policy, N.Y. Times, July 22, 2011 .............................................................................13 Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, Gallup.com (May 20, 2011) ...........................................................................15 George A. Chauncey, Why Marriage?: The History Shaping Todays Debate Over Gay Equality (2004) ..............................................................................6 Janie Lorber, In Small Steps, Federal Agencies Recognize Gay Marriages, Roll Call, Oct. 3, 2011 ...................................................................................14
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Lisa M. Diamond, New Paradigms for Research on Heterosexual & SexualMinority Development, 32 J. of Clinical Child & Adolescent Psychol. 492 (2003) ......................................................................................................9 Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 301 (2000) ......................................................................10 Loren Marks, Same-Sex Parenting and Childrens Outcomes: A Closer Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting (Oct. 3, 2011) ....................................................24 Michael Barbaro, Behind N.Y. Gay Marriage, an Unlikely Mix of Forces, N.Y. Times, June 25, 2011 ............................................................................13 Michelle Minkoff et al., Proposition 8: Who Gave in the Gay Marriage Battle?, L.A. Times, July 13, 2011..............................................................................15 MJ Lee, Obama Backs Bill To End DOMA, Politico, July 19, 2011 .........................13 Nigel Dickson et al., Same Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607 (2003) ..............10 Norval D. Glenn, The Struggle for Same-Sex Marriage, 41 Socy 25 (2004).........................................................................................24 Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey, GLBTQ.com (2004)............................................6 Phil Reese, OMalley Backs 2012 Push for Marriage Equality, Wash. Blade, July 22, 2011 ...........................................................................13 Reid J. Epstein, John Kerry Backs Gay Marriage, Politico, July 22, 2011 ...............13 Susan Page, Gay Candidates Gain Acceptance, USA Today, July 19, 2011 ..................................................................................................13, 14
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SUMMARY OF ARGUMENT The question presented in this case is whether Congress may define marriage for purposes of federal benefits and burdens as that term was commonly understood for more than 200 yearsfrom the Nations founding through at least the close of the twentieth centuryor whether Congress was constitutionally obligated to accept a redefinition by some states that would encompass a form of marriage first legalized in the U.S. in 2004. The Defense of Marriage Act (DOMA) defines marriage for purposes of federal law as the legal union of one man and one woman. See 1 U.S.C. 7. Plaintiffs contention that DOMA should be subject to heightened scrutiny fails. First, circuit precedent establishes that the proper test under which sexual orientation classifications, like DOMA, should be analyzed is the rational basis test. Second, even if this Court were writing on a clean slate, sexual orientation does not constitute a suspect or quasi-suspect class under the traditional factors used to determine such classes. Homosexuality is not immutable as that term has been used in constitutional analysis. Moreover, homosexuals are far from politically powerless. In fact, their significant political progress in recent months and years belies their numbers. DOMA also does not discriminate on the basis of sex nor does it implicate a fundamental right. Therefore, rational basis scrutiny applies to DOMA. DOMA easily passes the rational basis test. There are a myriad of rational bases supporting DOMA. For example, the federal government has a valid interest in a uniform federal definition of marriage for federal law purposes, Congress was justified in acting with caution when facing the unknown consequences of a novel redefinition of marriage and Congress rationally could conclude that DOMA would advance responsible procreation and child-bearing. Accordingly, this Court should deny Plaintiffs motion for summary judgment.
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STATEMENT OF ISSUE Whether the Defense of Marriage Act, Pub. L. No. 104-199, 3, 110 Stat. 2419 (1996), codified at 1 U.S.C. 7, violates the equal protection component of the Fifth Amendments Due Process Clause. STATEMENT OF FACTS Plaintiff, an employee of the federal judiciary married to a same-sex spouse, receives health insurance through the Federal Employees Health Benefits Program (FEHBP) and has elected a family health insurance plan to provide coverage for herself and her son. See Second Amended Complaint 4, 19 (Apr. 14, 2011), ECF No. 102 (Sec. Am. Compl.). When Plaintiff requested that her employer enroll her spouse in her family plan, Defendants declined on the basis of DOMA Section 3. Id. 45. Plaintiff claims injury from her inability to include her spouse under the FEHBP. According to Chief Judge Kozinski, sitting as an administrative hearing officer, Golinski pays out of pocket to purchase additional health insurance for her spouse. In re Golinski, 587 F.3d 901, 904 (9th Cir. 2009) (Kozinski, C.J.). Chief Judge Kozinski ordered that Golinski be awarded ongoing back pay to offset these out of pocket expenses. In re Golinski, 587 F.3d 956, 960 (9th Cir. 2009) (Kozinski, C.J.) (Plaintiff is entitled to an award equal in amount to the benefits she would have received, but has been denied, under the FEHBP); Order at 2, In re Golinski, No. 09-80173 (9th Cir. Mar. 5, 2010) (Kozinski, C.J.), ECF No. 40 (awarding Plaintiff $6,272 in back pay for the period September 2008 to December 2009, plus interest, and ordering that she is entitled to additional back pay for subsequent periods); Sec. Am. Compl. 55 (alleging that Chief Judge Kozinski awarded Ms. Golinski ongoing back pay to reimburse her for the cost of purchasing separate individual insurance to cover [her spouse]).
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RESPONSE TO PLAINTIFFS STATEMENT OF UNDISPUTED FACTS General Statement The rational basis test applies to Plaintiffs equal protection challenge to DOMA Section 3. See infra p. 5 n.2 (citing case law from Ninth Circuit and ten other circuits). Under that test, Section 3 must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. FCC v. Beach Commcns, Inc., 508 U.S. 307, 313 (1993). Furthermore, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. Id. at 315. Accordingly, the House has no obligation to produce evidence to sustain the rationality of a statutory classification. Heller v. Doe, 509 U.S. 312, 320 (1993). [A] legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. Beach Commcns, 508 U.S. at 315. For these overarching reasons, not a single one of the allegedly undisputed facts identified by Plaintiff is material to this Courts disposition of her constitutional challenge to DOMA Section 3. Particularized Responses A. As to Plaintiffs section entitled The Passage of DOMA in 1996, the House
does not dispute that DOMA was enacted in 1996, that Plaintiff correctly has quoted the language of Section 3, that H.R. Rep. No. 104-664 (1996) contains the statements quoted by Plaintiff, or that certain Members of Congress made the floor statements quoted by Plaintiff; otherwise, this section of Plaintiffs statement of undisputed facts appears to reflect a misunderstanding of the word undisputed: How could Plaintiff otherwise deem undisputed (or an issue of fact for that matter) that DOMAs passage marked an unabashed expression of congressional animus towards homosexuality and same-sex relationships, that it is an
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undisputed fact[] that DOMA was hastily enacted, marked a dramatic departure from the federal governments longstanding deference to state law marriage determinations, and had a blunderbuss impact, or that it is an undisputed fact[] that Congress conducted virtually no fact-finding but set out to demonstrate its moral disapproval. Plaintiffs Memorandum of Points and Authorities in Support of Plaintiffs Motion for Summary Judgment at 2 (July 1, 2011), ECF No. 142 (Pl.s Mem. Summ. J.) (quotation marks omitted). Not only are Plaintiffs assertions disputed (and often not issues of fact), they are flatly wrong. See, e.g., infra pp. 21-25 (explaining rational bases that in fact motivated passage of DOMA), p. 21-22 (explaining long-standing federal government role in defining marriage for federal law purposes); Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) (congressional hearing, including witness testimony, held during consideration of DOMAdemonstrating level of congressional fact-finding more than appropriate for passage of bill that merely confirmed status quo; i.e., traditional definition of marriage); A Bill to Define and Protect the Institution of Marriage: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) (same); see also House Memorandum in Support of Its Motion to Dismiss (June 3, 2011), ECF 119-1 (House Mem. Mot. Dismiss) (making plainin brief filed twenty-eight (28) days before Plaintiffs filing of her statement of undisputed factsthat many of Plaintiffs allegedly undisputed facts are neither undisputed nor issues of fact). B. The House does not dispute the content of Plaintiffs section entitled Ms.
Golinskis Attempt to Enroll Her Spouse in Her Health Plan except insofar as Plaintiff makes the legal assertions of a discriminatory denial of certain benefits, that the United States regards her as unequal, or that she is receiving significantly less compensation, in terms of
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her employment benefits, than her similarly situated colleagues who have differentsex spouses. Pl.s Mem. Summ. J. at 3-4. ARGUMENT I. THE CLASSIFICATION IN DOMA IS NOT SUBJECT TO ANY HEIGHTENED SCRUTINY. A. Binding Circuit Precedent Forecloses Application of Heightened Scrutiny on the Basis of Sexual Orientation.
Plaintiff argues that the level of scrutiny for sexual orientation classifications remains 7 unsettled under Ninth Circuit and Supreme Court jurisprudence. Pl.s Mem. Summ. J. at 5. 8 This statement is simply and demonstrably wrong. As the House argued in its reply in support of 9 its motion to dismiss, the Ninth Circuit unequivocally answered this question in High Tech Gays 10 v. Defense Industry Security Clearance Office, 895 F.2d 563 (1990). See House Reply 11 Memorandum in Support of Its Motion to Dismiss at 5-7 (July 15, 2011), ECF No. 150 (House 12 Reply Mem. Mot. Dismiss). There, the Ninth Circuit held that homosexuals do not constitute 13 a suspect or quasi-suspect class entitled to greater than rational basis scrutiny under the equal 14 protection component of the Due Process Clause of the Fifth Amendment. High Tech Gays, 15 895 F.2d at 574. Until and unless this precedent is overturned by the en banc Ninth Circuit or 16 the Supreme Court, that ends the inquiry: rational basis scrutiny applies here.1 Indeed, a recent 17 18 19 20 21 22 23 Recently, a Ninth Circuit panel, in considering an appeal of the grant of a preliminary injunction, applied rational basis review, not heightened scrutiny, to an Arizona statute that ended certain health care benefits for both same-sex and opposite-sex domestic partners of Arizona state employees (after a brief period in which such persons had been eligible for benefits). See Diaz v. Brewer, No. 10-16797, 2011 WL 3890755 (9th Cir. Sept. 6, 2011). The panel viewed the statute as creating a classification of [state] employees on the basis of sexual orientation. Id. at *1. Notably, the State of Arizona did not seriously argue on appeal two possible justifications for the statutecost savings and promotion of marriage. Id. at *4, *5. In contrast, the House has seriously advanced those and other rational bases for DOMA. See also Log Cabin Republicans v. United States, Nos. 1056634, 1056813, 2011 WL 4494225, at *9 (continued .)
1
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DOMA case in the Central of District of California recognized precisely this binding authority and demonstrates the proper course for a district court in this Circuit. See Order, Lui v. Holder, No. 2:11-cv-01267-SVW (JCGx) (C.D. Cal. Sept. 28, 2011), ECF No. 38 (dismissing a challenge to Section 3 as foreclosed by Ninth Circuit precedent), attached as Exhibit A; see also In re Kandu, 315 B.R. 123, 143 (Bankr. W.D. Wash. 2004) (Lawrence did not eviscerate Ninth Circuits holding in High Tech Gays that homosexuals do not constitute a suspect or quasisuspect class); Smelt v. Cnty. of Orange, 374 F.Supp.2d 861, 879 (C.D. Cal. 2005) (DOMA does not make a suspect or quasi-suspect classification), vacated in part for lack of standing on DOMA Section 3, 447 F.3d 673, 686 (9th Cir.), cert. denied, 549 U.S. 959 (2006).2 B. Based on the Traditional Criteria Used to Determine Suspect or Quasi-Suspect Classes, Homosexuals Clearly Are Not a Suspect or Quasi-Suspect Class.
The traditional criteria for determining whether a class is suspect or quasi-suspect are: 12 (1) whether the class has suffered a history of discrimination; (2) whether the classification at 13 14 15 16 17 18 19 20 21 22 23 (9th Cir. Sept. 29, 2011) (OScannlain, J., concurring) (rational basis test would apply in substantive due process challenge to Dont Ask, Dont Tell statute, if case were not moot). 2 Sexual orientation never has been viewed as a suspect or quasi-suspect classification by the federal courts. First, the Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes. Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006). On the contrary, it has applied the rational basis test to equal protection challenges of classifications based on sexual orientation. See Lawrence v. Texas, 539 U.S. 558 (2003); Romer v. Evans, 517 U.S. 620 (1996). Second, every federal Court of Appeals that has addressed the questionand nearly every Circuit hashas concluded that homosexuals are not a suspect or quasi-suspect class. No fewer than eleven federal circuits, including the Ninth, have held that homosexuals are not a suspect class. See, e.g., Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008) (Absent additional guidance from the Supreme Court, we join our sister circuits in declining to read Romer as recognizing homosexuals as a suspect class for equal protection purposes.), cert. denied sub. nom., Pietrangelo v. Gates, 129 S. Ct. 2763 (2009); Citizens for Equal Prot., 455 F.3d at 866-67; Lofton v. Sec. of Dept of Children & Fam. Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004) (citing cases from the Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, District of Columbia, and Federal Circuits) ([A]ll of our sister circuits that have considered the question have declined to treat homosexuals as a suspect class.).
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issue relates to ones ability to perform or contribute to society, Frontiero v. Richardson, 411 U.S. 677, 686 (1973); (3) whether the class demonstrates immutable characteristics; and (4) whether the class at issue is politically powerless. See Lyng v. Castillo, 477 U.S. 635, 638 (1986) (holding that [c]lose relatives are not a suspect or quasi-suspect class because, [a]s a historical matter, they have not been subjected to discrimination; they do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are not a minority or politically powerless) (emphasis added).3 1. History of Discrimination. Plaintiff first argues that DOMA is subject to strict
scrutiny because lesbians and gay men have been subject to a history of discrimination. While the House does not dispute that homosexuals have been subject to discrimination, it is important to note that even Plaintiffs own expert has admitted that [a]lthough . . . antigay discrimination is popularly thought to have ancient roots, in fact it is a unique and relatively short-lived product of the twentieth century. George A. Chauncey, Why Marriage? The History Shaping Todays Debate Over Gay Equality 14 (2004). According to Dr. Chauncey, most of [the discrimination] was put in place between the 1920s and 1950s, and most [was] dismantled between the 1960s and the 1990s. Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey, GLBTQ.com (2004), http://www.glbtq.com/sfeatures/interviewgchauncey.html. Plaintiffs expert agrees with the Supreme Courts observation in Lawrence that the relatively short history of anti-gay discrimination is a consequence of the fact that
The questions of whether a classification involves an immutable characteristic and whether the class is politically powerless are essential to the heightened scrutiny analysis. See Lyng, 477 U.S. at 638; High Tech Gays, 895 F.2d at 573.
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homosexualityas a distinct category or classwas not even recognized in the United States until the late nineteenth century. 539 U.S. at 568-69 (relying on scholarly position that the concept of the homosexual as a distinct category of person did not emerge until the late 19th century); George A. Chauncey Decl. 10, 20-21, June 24, 2011, ECF No. 134, (Chauncey Decl.); George A. Chauncey, Ph.D., Dep. 48:24-51:24, July 12, 2011, (Chauncey Dep.), attached as Exhibit A to Declaration of Conor B. Dugan (Dugan Decl.), filed herewith. 2. Ability to Participate in or Contribute to Society. Plaintiff next argues that
DOMA does not rest[] on meaningful considerations, but rather target[s] a characteristic that bears no relation to ability to perform or contribute to society. Pl.s Mem. Summ. J. at 6 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985)). That is not the case. The Congress that enacted DOMA, and President Clinton who signed it, obviously thought that defining marriage in the way it has traditionally been defined was relevant and rationally related to several legitimate legislative goals. See also House Mem. Mot. Dismiss at 22-29. 3. Immutability. Plaintiff also states that the House cannot argue there is a triable
issue of fact regarding the immutable nature of sexual orientation, given Ninth Circuit authority already addressing this point. Pl.s Mem. Summ. J. at 7. But the Ninth Circuit has said conflicting things on immutability. In assessing whether homosexuality constitutes a suspect class the Ninth Circuit has held specifically that it is not an immutable characteristic: Homosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and
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quasi-suspect classes. High Tech Gays, 895 F.2d at 573.4 It is true that in Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in part on other grounds, Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005), the Ninth Circuit described sexual orientation as immutable. But the court was not addressing the question whether heightened scrutiny applied. And, even if Hernandez-Montiel had addressed the relevant question, one panel of the Ninth Circuit cannot overrule another one, and absent en banc review, the earlier precedent controls. See Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir. 2010), cert. denied, 131 S. Ct. 1612 (U.S. 2011) (quoting Robbins v. Carey, 481 F.3d 1143, 1149 n.3 (9th Cir. 2007)) (As a general rule, we, as a three-judge panel, are without authority to overrule a circuit precedent; that power is reserved to the circuit court sitting en banc.). Plaintiff further contends that [t]his understanding conforms with the settled consensus of the major professional psychological and mental health organizations. Pl.s Mem. Summ. J. at 7. Whether a classification is immutable for purposes of equal protection jurisprudence is of course a legal conclusionnot a scientific oneand Plaintiffs selective reading of scientific evidence warrants no deference from this Court. Plaintiffs claims also run headlong into the differing definitions of the terms sexual orientation, homosexual, gay, and lesbian supplied by her own experts. See Letitia Anne Peplau, Ph.D., Dep. 11:19-13:3, June 17, 2011, (Peplau Dep.), attached as Exhibit B to Dugan Decl. (declining to use term homosexuality and defining terms sexual orientation, gay, and
See also Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (Homosexuality, as a definitive trait, differs fundamentally from those defining any of the recognized suspect or quasi-suspect classes. Members of recognized suspect or quasi-suspect classes, e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature.).
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lesbian); Gary M. Segura, Ph.D., Dep. 14:17-16:15, July 8, 2011 (Segura Dep.), attached as Ex. C to Dugan Decl. (defining terms gay, lesbian, and homosexual); Chauncey Dep. 12:15-15:15 (acknowledging that some people distinguish gay and homosexual, but stating that he uses them synonymously; defining terms gay, lesbian, homosexuality, and homosociality); see also Lisa M. Diamond, New Paradigms for Research on Heterosexual & Sexual-Minority Development, 32 J. of Clinical Child & Adolescent Psychol. 490, 492 (2003) (There is currently no scientific or popular consensus on the exact constellation of experiences that definitively qualify an individual as lesbian, gay, or bisexual.); Gay Histories and Cultures: An Encyclopedia 452 (George E. Haggerty ed., 2000) ([T]he single word homosexuality has come to condense a variety of mutually conflicting ideas about same-sex sexual attraction and an assortment of conceptual models for understanding it . . . . [I]t is less useful to insist on any one definition of homosexuality than it is to describe and to account for the conceptual incoherence that now has become inseparable from both the term and the category.). These differing definitions show that these terms are amorphous and do not adequately describe a particular class. Plaintiffs argument also conflicts with her own experts admission that homosexuality cannot be determined at birth, see Peplau Dep. 25:21-23 ([L]ooking at a newborn, I would not be able to tell you what that childs sexual orientation is going to be.), and that a significant percentage of gays and lesbians believe they exercised some or a great deal of choice in determining their sexuality, id. 36:24-37:24. Plaintiffs own evidence indicates that more than 12% of self-identified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation. Peplau Dep. Ex. 4 at 186. This contrasts with actual suspect classes, which involve immutable characteristic[s] determinable
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at birth and determined solely by the accident of birth. Frontiero, 411 U.S. at 686 (plurality). Moreover, according to multiple studies, a not insignificant number of persons experience fluidity in their sexual attraction and even label their sexuality differently at different times. See, e.g., Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 297, 301 (2000) (50% of the respondents had changed their identity label more than once since first relinquishing their heterosexual identity); see also id. at 300 ([E]xclusive same-sex attractions are the exception rather than the norm among sexual minority women.); id. at 300-01 (The prevalence of nonexclusivity in sexual-minority womens attractions suggests that other-sex attractions and relationships remain an ever-present possibility for most sexual-minority women, a fact that creates multiple opportunities for discontinuity and inconsistency in the female sexualminority life course.); id. at 302 (One of the unavoidable implications of nonexclusivity and sexual fluidity is that no heterosexual woman can be unequivocally assured that she will never desire same-sex contact, just as no lesbian woman can be unequivocally assured that she will never desire other-sex contact.);5 Nigel Dickson et al., Same Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1611-12 (2003). Even Plaintiffs own expert discusses and recognizes the concept of sexual plasticity and
Dr. Diamond does not like the fact that the House has used her findings to support a legal conclusion with which she disagrees. See Expert Aff. of Lisa M. Diamond, Ph.D., Pedersen v. OPM, No. 3:10-cv-01750 (D. Conn. Sept. 14, 2011), ECF No. 99; Supplemental Decl. of Lisa M. Diamond, Ph.D., Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y. Sept. 15, 2011), ECF No. 86. But the House is merely accurately quoting Dr. Diamonds writings. Dr. Diamond, like every other academic, does not have a monopoly over the legal import of her academic observations. As to whether Dr. Diamonds research ultimately supports the immutability prong of the strict scrutiny analysis, that is the province of lawyers and the courts. It demands a legal answer, not a scientific answer.
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fluiditythat individuals have reported changes in their sexual orientation in midlife. Letitia Ann Peplau, Ph.D., Decl. 23, June 24, 2011, ECF No. 137 (Peplau Decl.). 4. Political Powerlessness. More than twenty years ago, the Ninth Circuit in
analyzing whether homosexuals were entitled to heightened scrutiny held that homosexuals are not without political power; they have the ability to and do attract the attention of lawmakers. High Tech Gays, 895 F.2d at 574 (quoting City of Cleburne, 473 U.S. at 445).6 That political clout has only increased, and dramatically, in the ensuing two decades. Despite this binding precedent, Plaintiff cites to the dissent from the denial of rehearing en banc in that case to argue that the House and the Ninth Circuit approached the inquiry into political powerlessness incorrectly by considering the question of absolute political powerlessness rather than relative political powerlessness. Pl.s Mem. Summ. J. at 8. This misconstrues the Houses argument which, to put it clearly and succinctly, is that homosexuals have a great deal of political power especially relative to other political constituencies. Plaintiffs claim to the contrary is particularly difficult to understand in light of recent political, legal, and cultural events that have occurred since High Tech Gays was decided twentyone years ago. Plaintiff cannot maintain that she is a member of a class that faces discrimination [that] is unlikely to be soon rectified by legislative means. City of Cleburne, Moreover, case law outside the Ninth Circuit supports the conclusion that homosexuals are not politically powerless. The Seventh Circuit more than twenty years ago stated that [i]n these times homosexuals are proving that they are not without growing political power. BenShalom v. Marsh, 881 F.2d 454, 466 (7th Cir. 1989). The court held that [i]t cannot be said they have no ability to attract the attention of the lawmakers and that the political approach is open to them. Id. (quoting City of Cleburne, 473 U.S. at 445); see also Steffan v. Cheney, 780 F. Supp. 1, 7-8 (D.D.C. 1991) ([I]t is still very clear that homosexuals as a class enjoy a good deal of political power in our society, not only with respect to themselves, but also with respect to issues of the day that affect them.), revd on other grounds sub nom. Steffan v. Aspin, 8 F.3d 57 (D.C. Cir. 1993).
6
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473 U.S. at 440. Given that the Ninth Circuit has just finished wrestling with the consequences of the repeal of Dont Ask Dont Tell, Plaintiff should not be heard to contend that such issues cannot be rectified through the legislative process. Log Cabin Republicans v. United States, Nos. 1056634, 1056813, 2011 WL 4494225 (9th Cir. Sept. 29, 2011). Moreover, Plaintiff appears oblivious to the irony of maintaining that homosexuals have limited political power in a case in which her position is supported by the Department of Justice at the insistence of the President. In light of the Departments longstanding duty to defend the constitutionality of federal statutes, its decision to decline to defend the constitutionality of DOMAnotwithstanding its acknowledgment that reasonable arguments can be advanced in defense of Section 3, that it survives rational basis review, and that eleven Circuit Courts of Appeal, including the Ninth, disagree with its conclusion that heightened scrutiny appliesand instead adopt the very position advocated by Plaintiff, is particularly telling. See Letter from Eric H. Holder, Jr., Atty Gen., to John A. Boehner, Speaker, U.S. House of Representatives, at 3 (Feb. 23, 2011), ECF No. 93-1. Indeed, President Obamas decision came after he received a letter from the Human Rights Campaign criticizing his Administrations defense of DOMA. See Segura Dep. Ex. 5. And the Human Rights Campaign rightly believed that it had helped persuade the President to change his mind. See Press Release, Victory! Administration Drops DOMA Defense, Human Rights Campaign, https://secure3.convio.net/hrc/site/Advocacy?cmd=display&page=UserAction&id=1045 (HRC supporters have written tens of thousands of letters to President Obama and it is time to thank the president for what hes done.). A spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless. A recent poll showed that more than two-thirds of Americans would
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vote for a well-qualified gay candidate for president if he or she were nominated by their party.7 In the past several months alone, the first openly gay male federal judge was confirmed by an overwhelming majority of the Senate; 8 President Obama nominated his fourth openly-gay candidate for a U.S. District Court judgeship; 9 Rhode Island passed a bill instituting civil unions for same-sex couples; 10 New York passed a law legalizing gay marriage over the opposition of the New York Catholic Conference and other groups; 11 President Obama took the final step in repealing the Dont Ask, Dont Tell policy; 12 President Obama announced his support of a Senate bill to repeal DOMA;13 and, several weeks ago, it was reported that the Obama administration has all but officially recognized gay partnerships as the legal equivalent of marriage, gradually redefining the concept through a series of changes to regulations governing Susan Page, Gay Candidates Gain Acceptance, USA Today, July 19, 2011, http://www.usatoday.com/news/politics/2011-07-19-gay-candidates-politics_n.htm. 8 Dana Milbank, In A Quiet Moment Gay Judge Makes History, Wash. Post, July 18, 2011, http://www.washingtonpost.com/opinions/in-a-quiet-moment-gay-judge-makeshistory/2011/07/18/gIQAo7PhMI_story.html (stating that final vote was 80-13 and that the remarkable thing about what happened vis--vis the nomination was that it was utterly unremarkable). 9 Abby Phillip, Obama to Nominate Fourth Openly Gay Judicial Candidate, Politico, July 20, 2011, http://www.politico.com/news/stories/0711/59489.html. 10 Abby Goodnough, Rhode Island Lawmakers Approve Civil Unions, N.Y. Times, June 29, 2011, http://www.nytimes.com/2011/06/30/us/30unions.html. 11 Michael Barbaro, Behind N.Y. Gay Marriage, an Unlikely Mix of Forces, N.Y. Times, June 25, 2011, http://www.nytimes.com/2011/06/26/nyregion/the-road-to-gay-marriage-in-newyork.html?pagewanted=all. 12 Elisabeth Bumiller, Obama Ends Dont Ask, Dont Tell Policy, N.Y. Times, July 22, 2011, http://www.nytimes.com/2011/07/23/us/23military.html; see also Reid J. Epstein, Dont Miss It: John Kerry Backs Gay Marriage, Politico, July 22, 2011, http://www.politico.com/news/stories/0711/59643.html; Phil Reese, OMalley Backs 2012 Push for Marriage Equality, Wash. Blade, July 22, 2011, http://www.washingtonblade.com/2011/07/22/omalley-backs-2012-push-for-marriage-equality/. 13 MJ Lee, Obama Backs Bill To End DOMA, Politico, July 19, 2011, http://www.politico.com/politico44/perm/0711/all_due_respect_52655160-80d9-4749-a26a3525888f615a.html.
7
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benefits for federal employees.14 Accordingly, gays and lesbians cannot be labeled politically powerless without draining that phrase of all meaning. The Gay and Lesbian Victory Fund, a group devoted to electing gays and lesbians to office, stated in its 2008 annual report that [i]ts hard to dispute the statement that 2008 was a watershed year in American politics.15 The report details the evidence that supports that conclusion: The Victory Fund endorsed 80 successful candidates and more than 70% of Victory-endorsed candidates won their elections in 2008.16 In the 2010 election, more than two-thirds of the Victory Fund-endorsed candidates won election, accounting for 107 electoral positions.17 The Victory Fund reports that only four states have no openly gay elected officials at any level.18 The Human Rights Campaign noted that it had been ranked the second most successful political organization in the entire country by National Journal.19 Plaintiff and her experts also attempt to use marriage referenda as evidence of political powerlessness. Pl.s Mem. Summ. J. at 9. This approach would transform the inquiry from a search for political powerlessness into a search for a lack of political omnipotence. Even perhaps especiallyin the debate over marriage, gay-rights groups have proven to be a major
Janie Lorber, In Small Steps, Federal Agencies Recognize Gay Marriages, Roll Call, Oct. 3, 2011, http://www.rollcall.com/issues/57_35/In-Small-Steps-Federal-AgenciesRecognize-Gay-Marriages-209092-1.html?pos=hbtxt. 15 The Gay & Lesbian Victory Fund and Leadership Institute, 2008 Annual Report at 2, http://www.victoryfund.org/files/victory_annual_08.pdf. 16 Id. 17 The Gay & Lesbian Victory Fund and Leadership Institute, 2010 Annual Report at 56, http://www.victoryfund.org/files/victory_annual_10.pdf. 18 Page, supra note 7. 19 Human Rights Campaign Lauds 2008 Election Results (Nov. 4, 2008), http://www.edgechicago.com/index.php?ch=parties&sc=&sc3=&id=82901 (citing Reversal of Fortune, Natl J., Nov. 11, 2006).
14
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political force well-equipped to wage and, very often, to win major policy battlesand who have gained more political ground in less time than just about any other interest group in American political history. According to Gallup polling, between 1996 and 2011, the portion of the United States population that believed that same-sex marriage should be recognized increased from 27% to 53%.20 In the campaign over Proposition 8, Californias traditional-marriage constitutional amendment, pro-homosexual forces outspent the proponents of traditional marriage.21 In the space of only half a decade, this popular and financial support has translated into legislation recognizing same-sex marriage in Vermont, New York, New Hampshire, Connecticut, and the District of Columbia,22 and offering legal rights for same-sex couples substantially equal to those of marriage in Delaware, Hawaii, Illinois, Rhode Island, Colorado, Oregon, California, Washington, and Nevada.23 When jurisdictions where such rights have been imposed judicially are added, a full 37% of the United States population now lives in states that substantively treat same-sex relationships identically to traditional marriages.24 As a result, no less a political
Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, Gallup.com , May 20, 2011, http://www.gallup.com/poll/147662/First-Time-MajorityAmericans-Favor-Legal-Gay-Marriage.aspx. 21 Michelle Minkoff et al., Proposition 8: Who Gave in the Gay Marriage Battle?, L.A. Times, July 13, 2011, http://projects.latimes.com/prop8/. 22 Vt. Stat. Ann. tit. 15, 8, et seq. (West 2011); N.Y. Dom. Rel. 10-a (McKinney 2011); N.H. Rev. Stat. Ann. 457:1-a, et seq. (2011); Conn. Gen. Stat. Ann. 46b-20 et seq., 46b25 (2011) (The registrar shall issue a license to any two persons eligible to marry under this chapter.) (emphasis added); D.C. Code 46-401, et seq. (2011). 23 Del. Code Ann. tit. 13 212 (West 2011); Haw. Rev. Stat. 572C-1 (2011); 750 Ill. Comp. Stat. Ann. 75/20 (West 2011); 2011 R.I.H.B. 6103 (July 2, 2011); Colo. Rev. Stat. Ann. 15-22-105 (West 2011); Or. Rev. Stat. Ann. 106.305 (West 2011); Cal. Fam. Code 297.5 (West 2011); Wash. Rev. Ann. Code 26.60.010 (West 2011); Nev. Rev. Stat. Ann. 122A.010, et seq. (West 2011). 24 Calculated from census data available at U.S. Census 2010, http://2010.census.gov/2010census/data/.
20
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personage than the Vice President, Joseph Biden, believes that, far from gays being locked out of marriage as a result of political powerlessness, a national consensus in support of gay marriage is an inevitability.25 As Plaintiff notes, women already had obtained legal protections through the political process when they were recognized as a protected class. Pl.s Mem. Summ. J. at 8. But, by contrast, the mentally handicapped and the poor have been held not to be politically powerless. City of Cleburne, 473 U.S. at 445; San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). And the very significant gains made by homosexual-rights groups both in legislative terms and in popular opinionand the phenomenal speed at which these victories have comedemonstrate that they have ample ability to attract the favorable attention of lawmakers. In addition, Plaintiffs attempts to equate the situation of homosexuals in this regard with that of women ignores the fact that homosexuals make up a much smaller portion of the population than do women. See Peplau Dep. 19:219:4 (stating that between 1 and 2 percent of [American] women identified as lesbian, and somewhere between 2 and 3 percent of [American] men identified as gay). The ability to make real political gains despite relatively small numbers bespeaks a proportionate political power significantly greater than that of protected classes. Where a group is not lacking in political power, it cannot claim the extraordinary protection from the majoritarian political process provided by heightened scrutiny. Rodriguez, 411 U.S. at 28. Political powerlessness and immutability are traditional indicia of suspectedness. Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974); see also Lyng, 477 U.S. at
Joe Biden: National Consensus on Gay Marriage Inevitable, LGBTQ Nation, Dec. 25, 2010, http://www.lgbtqnation.com/2010/12/joe-biden-national-consensus-on-gay-marriageinevitable-video/.
25
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638 (holding that [c]lose relatives are not a suspect or quasi-suspect class because, [a]s a historical matter, they have not been subjected to discrimination; they do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are not a minority or politically powerless) (emphasis added). Homosexuals are not relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian process. Disabled Am. Veterans v. U.S. Dept of Veterans Aff., 962 F.2d 136, 141 (2d. Cir. 1992). Accordingly, DOMA is not subject to strict or intermediate scrutiny. 26 C. DOMA Does Not Discriminate on the Basis of Sex.
Plaintiff makes a half-hearted effort to argue that DOMA is subject to heightened scrutiny because it discriminates on the basis of sex. Pl.s Mem. Summ. J. at 10. DOMA does not discriminate based on sex. No court ever has concluded to the contrary, and the House is unaware of any traditional-marriage provision, state or federal, that ever has been held to classify based on sex within the meaning of the U.S. Constitution. Instead, every court to have considered the question as a matter of federal law has concluded that DOMA classifies, if at all, on the basis of sexual orientation, not of sex. Smelt, 374 F. Supp. 2d at 877; Wilson v. Ake, 354 F. Supp. 2d 1298, 1307-08 (M.D. Fla. 2005); In re Kandu, 315 B.R. at 143; see also Conaway v. As we made clear earlier, DOMA clearly passes the rational basis test. See House Mem. in Supp. of Mot. to Dismiss at 22-29. As explained therein, under that test the government has no obligation to produce evidence to sustain the rationality of a statutory classification, Heller, 509 U.S. at 320, and [a] statute is presumed constitutional, and the burden is on the one attacking the legislative arrangement to negative every conceivable basis that might support it, whether or not the basis has a foundation in the record, id. at 320-21 (quotation marks, brackets, and citations omitted). Under rational basis review, a court must accept a legislatures generalizations even when there is an imperfect fit between means and ends. Leib v. Hillsborough Cnty. Pub. Transp. Commn, 558 F.3d 1301, 1306 (11th Cir. 2009) (citing Heller, 509 U.S. at 320). Moreover, while the House does not concede in the least that any form of heightened scrutiny is applicable to DOMA, even under a more searching standard DOMAs classification is constitutional.
26
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Deane, 932 A.2d 571, 598 (Md. 2007) (state DOMA did not discriminate based on sex); Andersen v. King Cnty., 138 P.3d 963, 969 (Wash. 2006) (same). This common-sense conclusion is consistent with Loving v. Virginia, 388 U.S. 1 (1967), which struck down a Virginia statute prohibiting interracial marriage. The purpose of the Virginia anti-miscegenation statute was to disadvantage racial minorities and maintain White Supremacy. Id. at 11. By contrast, there is not the slightest indication in either history or reason that DOMA was intended to effect or perpetuate any inequality between the sexes. Nor does it do so: the numbers of men and women in the population are very nearly equal, and in stark contrast to anti-miscegenation statutes, the very nature of traditional-marriage statutes precludes any possibility that they could be intended to prevent members of a supposedly inferior sex from marrying outside their sex. Instead, and quite obviously, DOMA was intended to distinguish between same-sex and opposite-sex relationships. It therefore does not discriminate on the basis of sex. D. DOMA Does Not Implicate a Fundamental Right.
Grasping at straws, Plaintiff argues finally that DOMA is subject to heightened scrutiny because it deprives her of substantive due process by burdening her constitutional liberty to build a family life with her same-sex partner and by unconstitutionally conditioning equal treatment of that liberty interest in a government-favored heterosexual manner. Pl.s Mem. Summ. J. at 10. Plaintiff cites no case law, but simply references the argument she made in her reply to the Houses motion to dismiss. She argues that DOMA burdens her family relationship and that [n]o adequate government interest can sustain such a burden. Id. In her opposition to the Houses motion to dismiss, Plaintiff cited several cases, see Plaintiffs. . . Opposition to . . . Motions to Dismiss at 17-18 (June 24, 2011), ECF No. 133 (Pl.s Oppn MTD), which do not
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support the conclusion that DOMA is subject to heightened scrutiny. First, she cites Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984). That case involved a claim on behalf of the then all-male Jaycees who precluded women from their ranks and wanted to continue that exclusion. The Court held that requiring the Jaycees to open their membership to women did not abridge their members freedom of intimate association or expressive association. It is hard to see the cases relevance to this case. Next, she cites Moore v. City of East Cleveland, 431 U.S. 494, 506 (1977). The government action at issue there limited dwelling places to single families [b]ut the ordinance contain[ed] an unusual and complicated definitional section that recognize[d] as a family only a few categories of related individuals. Id. at 495-96. The petitioner had faced criminal sanction because she lived with her son and grandsons (who were first cousins). The Supreme Court recognized that the family is not beyond regulation, id. at 499, but concluded that it needed to examine the questioned regulation with special care because it intrude[d] on choices concerning family living arrangements. Id. DOMA, however, neither intrudes on any family living arrangements, nor prevents any family living arrangements, and thus is nothing like the ordinance at issue in East Cleveland. There is nothing intrusive in the least about DOMA. It is simply a definitional statute that defines, for federal law purposes, marriage and spouse. Furthermore, East Cleveland did not articulate a nebulous right to build a family life. Rather, it cited a well-established right of freedom of personal choice in matters of marriage and family life. Id. (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974)). As noted, DOMA does nothing to prohibit Plaintiff from building a family life with her partner. Plaintiff also states that Lawrence reaffirmed that our laws and tradition afford
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constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Pl.s Oppn MTD at 17 (citing 539 U.S. at 573-74); see id. (also citing Gill v. OPM, 699 F. Supp. 2d 374, 387 (D. Mass. 2010)). Unfortunately for Plaintiff, even if the right recognized in Lawrence were to be read as expansively as Plaintiff suggests, the Lawrence Court pointedly declined to apply heightened scrutiny to invasions of this right. Additionally, even on Plaintiffs expansive reading of Lawrence as creating a right to autonomy in homosexual relationships, it is unclear how DOMA implicates this right. DOMA neither prevents the formation of same-sex marriages where they are allowed by the States nor breaks them apart once entered, nor does it limit a persons autonomy in any way. DOMA simply defines marriage for the purpose of assigning federal benefits and burdens; it is not the sort of regulation at issue in a case like Lawrencea criminal sanction for homosexual sodomy. Plaintiff has standing because of a pocket-book injury, not because federal law precludes her from marrying or raising a family. Such matters are left to the States. DOMA deals with the limited realm of federal benefits and burdens. Thus, Plaintiffs invocation of fundamental liberties or suggestions that DOMA subjects her to a governmentimposed stigma are misplaced. Pl.s Reply Mot. Dismiss at 17 (citing Lawrence, 539 U.S. at 575-76 and Witt v. Dept of Air Force, 527 F.3d 806, 819 (9th Cir. 2008)). II. DOMA EASILY SURVIVES RATIONAL BASIS SCRUTINY. Plaintiff continues to argue that DOMA is subject to a more stringent rational basis analysis. For all the reasons argued in the Houses reply memorandum in support of its motion to dismiss, see House Reply Mem. Mot. Dismiss at 17-19, that argument is misplaced as it fundamentally misconstrues the nature of the rational basis test. Rational basis is rational basis, and a more stringent analysis is called heightened scrutiny and is obviously inapplicable here.
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Moreover, Plaintiffs arguments concerning the various interests that fail to support DOMA also are misplaced. A. Congress Was Justified in Acting with Caution When Faced with the Unknown Consequences of a Proposed Novel Redefinition of the Foundational Social Institution of Marriage.
Just as before, Plaintiff argues that adhering to a historic definition of marriage is not a legitimate government end in itself, but instead a mere tautology. Pl.s Mem. Summ. J. at 12. She also argues that the federal government has no valid interest in advancing its own definition of marriage separate from state law. Id. For reasons stated previously, the first of these arguments fails. See House Reply. Mem. Mot. Dismiss at 21-24. The second argument also fails. Plaintiffs argument seems to be that because the federal government generally has deferred to States determinations of who is married, it is irrational for it to choose a different path than that dictated by state law. The argument confuses novelty and irrationality. It also ignores that DOMA implicates federal burdens and benefits, an area where the federal governments authority to apply its own federal rule is at its zenith. While it is true that the federal government generally has simply deferred to state law definitions of marriage, that is because up until the eve of DOMA, there was general uniformity in those states lawsthey all adopted the traditional definition. This is hardly the first time that the federal government has been involved with and injected itself into marriage law when States have deviated from the traditional definition. Thus, for instance, Congress banned polygamy in the United States territories when faced with widespread plural marriage in the Utah Territory. See Morrill AntiBigamy Act, ch. 126, 1, 12 Stat. 501, 501 (1862) (codified as amended at U.S. Rev. Stat. 5352) (repealed prior to codification in the U.S.C.); see also Reynolds v. United States, 98 U.S.
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145, 165-67 (1878). After the Civil War, during Reconstruction, the U.S. Freedmens Bureau promoted and supported the marriages of former slaves. See Nancy F. Cott, Ph.D., Decl. 77, June 24, 2011, ECF No. 135 (Cott Decl.). The federal government also worked to support the marriages of American Indians. See Nancy F. Cott, Ph.D., Dep., 17:20-18:1, July 6, 2011 (Cott Dep.), attached as Ex. D to Dugan Decl. (stating that in dealing . . . with native Americans through the Bureau of Indian Affairs, the form of marriage observed by these populations was of concern to that federal agency). Furthermore, as Plaintiffs own experts admit, the implicit understanding of marriage through the nineteenth century until at least the 1970s was that marriage was between a man and a woman. Chauncey Dep. 84:20-23; Cott Dep. 28:20-29:8. Thus, faced with the possibility of state courts beginning to tinker with the substantive centuries-old definition of marriage, Congress effort to maintain the traditional definition was consistent with its historical role and not at all unprecedented. Moreover, with respect to Section 3 in particular, Congress decision to preserve the same definition of marriagenamely, the traditional onethat prevailed at the time Congress passed innumerable statutes granting benefits and imposing burdens on marriages and spouses is a classic use of federal power to ration federal benefits and burdens. Every federal law involving marriage, spouses, or husbands and wives was written against the unequivocal backdrop of the centuries-old, traditional understanding of marriage. It is not the federal government that has done the rewriting. Rather, DOMA was simply a preservative measure to ensure that the will of previous Congresses was respected. States maintain their power to define marital relationships. But the federal government certainly was entitled to preserve the definition of marriage that, for federal law purposes, had governed all American law since the countrys founding.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
B.
DOMA Promotes Responsible Procreation.
Plaintiff states that when granting summary judgment for the Gill plaintiffs the court readily dispos[ed] of the claim that DOMA was intended to encourag[e] responsible procreation and child-bearing. That conclusion applies with equal force here. Pl.s Mem. Summ. J at 12 (quoting Gill, 699 F. Supp. 2d at 378, 388) (alteration by Plaintiff). In support of this contention, Plaintiff asserts that [s]ince the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents. Id. (quoting Gill, 699 F. Supp. 2d at 388-89). Contrary to Plaintiffs claims, as one would expect on such a divisive issue, there is no consensus. Indeed, the evidence relied upon by Plaintiffs own expert demonstrates that studies comparing gay or lesbian parents to heterosexual parents have serious flaws. See Michael E. Lamb, Ph.D., Dep., Ex. 6 at 327, June 24, 2011 (Lamb Dep.), attached as Ex. E to Dugan Decl. (Studies of children raised by same-sex parents have almost exclusively focused on families headed by lesbian mothers rather than gay fathers.); id., Ex. 8 at 526 (We still have relatively few studies of adolescent offspring of lesbian or gay parents, however, and some have advised caution when generalizing the results of research conducted with young children to adolescents.); id., Ex. 9 at 254 (Future research on gay and lesbian couples needs to address several key issues. One is sampling. Because most studies have used convenience samples of mostly white and well-educated partners, the extent to which findings generalize to the larger population of gay and lesbian couples is unknown. . . . Most studies on gay and lesbian couples have used self-report surveys. Future work could address some of the biases associated with self-report data . . . .). Numerous sources have pointed to methodological flaws in those studies
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
comparing heterosexual and homosexual parents. See Lofton, 358 F.3d at 825 nn. 24-25 (listing studies demonstrating serious methodological problems in gay parenting studies); Norval D. Glenn, The Struggle for Same-Sex Marriage, 41 Socy 25, 26-27 (Sept./Oct. 2004) (stating that studies of same-sex parenting are flawed in large part because the studies [of same-sex parents] have not used large and carefully matched comparison groups of parents and children in intact heterosexual families); id. at 27 (stating that research that would provide relevant evidence of similarities or differences between same-sex and opposite-sex parents has not been done, and, because it would be expensive and difficult, is not likely soon to be done); see also Ann Hulbert, The Gay Science: What Do We Know About the Effects of Same-Sex Parenting?, Slate (Mar. 12, 2004), http://www.slate.com/id/2097048/ (stating that both camps in gay marriage debate have converged lately on a very basic point: The existing science is methodologically flawed and ideologically skewed). Moreover, a recent study by Professor Loren Marks calls into question the very studies upon which Plaintiff relies. See Loren Marks, Same-Sex Parenting and Childrens Outcomes: A Closer Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting (Oct. 3, 2011), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1937762, attached as Exhibit B hereto. In that study Dr. Marks cautions that same-sex parenting studies cannot support a binary claim that same-sex parented families are either as good as or worse than intact heterosexual families and any such statement would not be grounded in science. Id. at 22. At the very least, this suggests that Congress had an eminently rational basis for enacting DOMA. When dealing with an institution as important as marriage and a definition as long-established as the traditional definition of marriage, it is eminently rational to move slowly and allow states to experiment with new definitions before those definitions are either transferred by force of law to
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other states, see DOMA 2, 28 U.S.C. 1738C, or adopted as the federal definition, see DOMA 3. See also Lawrence, 539 U.S. at 585 (OConnor, J., concurring) (preserving the traditional institution of marriage is legitimate state interest). Contrary to Plaintiffs argument, DOMA furthers the government interest in maintaining the link between marriage and children. In response, Plaintiff offers a glaring non sequitur: Neither DOMA, [n]or indeed any state law . . . require the ability to procreate as a precondition to marriage. Pl.s Mem. Summ. J. at 14. Plaintiffs argument relies on the invalid assumption that it is impossible for the government to foster the link between marriage and childbearing except by prohibiting marriage to anyone who cannot or will not have children. Rational basis does not demand that kind of narrow tailoring. Plaintiff gives no reason why the government cannot also reinforce the importance of children to marriage by recognizing that marriage must be defined with reference to the likelihood that marital relationships will involve children. Plaintiff also asserts that DOMAs non-recognition of marriages between same-sex couples does not in any conceivable way encourage heterosexuals to raise children within married relationships. Id. Plaintiff, however, offers no reason why a fundamental and entirely novel change in the definition of the institution of marriage would not be expected to affect peoples opinions regarding that institution.27 CONCLUSION For the foregoing reasons, Plaintiffs motion for summary judgment should be denied.
Plaintiff also claims that the refusal to provide spousal health coverage violates the Federal Employee Health Benefits Act because it discriminates on the basis of sex. See Pl.s Mem. Summ. J. at 15-16. For the same reasons that DOMA does not discriminate on the basis of sex, supra pp. 17-18, this argument also fails.
27
1 2 3 4 5 6 7 8 October 14, 2011 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
Respectfully submitted, BANCROFT PLLC /s/ Paul D. Clement Paul D. Clement, Esq.28 H. Christopher Bartolomucci, Esq. Conor B. Dugan, Esq. Nicholas J. Nelson, Esq.
Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives29
Kerry W. Kircher, Esq., as the ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatories Paul D. Clement, Esq., H. Christopher Bartolomucci, Esq., Conor B. Dugan,. Esq., and Nicholas J. Nelson, Esq. The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip decline to support the filing of this Superseding Opposition of the U.S. House of Representatives to Plaintiffs Motion for Summary Judgment.
29
28
Case3:10-cv-00257-JSW Document174-1
Exhibit A
Case 2:11-cv-01267-SVW -JCG Document 38 Filed 09/28/11 Page 1 of 5 of 6 ID #:692 Case3:10-cv-00257-JSW Document174-1 Filed10/14/11 Page2 Page
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. Title No: 2:11-CV-01267-SVW (JCGx) Date September 28, 2011
Handi Lui, et al. V. Eric H. Holder, U.S. Attorney General, et al.
Present: The Honorable Paul M. Cruz Deputy Clerk
STEPHEN V. WILSON, U.S. DISTRICT JUDGE N/A Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: N/A Proceedings:
Attorneys Present for Defendants: N/A
IN CHAMBERS ORDER re DEFENDANTS PARTIAL MOTION TO DISMISS; INTERVENOR'S MOTION TO DISMISS [18] [19]
I.
INTRODUCTION
Plaintiffs Hamdi Lui (Lui) and Michael Ernest Roberts,(Roberts) (collectively Plaintiffs) bring this suit challenging Defendants denial of Roberts Form I-130 Petition (the Petition). Roberts filed the Petition on behalf of Lui, seeking to classify Lui as an immediate relative in order for Lui to gain lawful permanent resident status in the United States. See 8 C.F.R. 204.1(a). Plaintiffs challenge the denial of the Petition on two grounds. First, Plaintiffs claim that the denial of the Petition violates the Immigration and Nationaity Acts (INA) anti-discrimination provision based on alleged sex discrimination. (Compl., 8, 32, 35). Second, Plaintiffs challenge the constitutionality of the denial of the Petition as a result of the United States Citizenship and Immigration Services (USCIS) interpretation of the Defense of Marriage Act (DOMA) Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at 1 U.S.C. 7. On June 17, 2011 Defendants filed their Partial Motion to Dismiss, which focuses solely on the INA sex discrimination claim. On the same day, Intervenor the Bipartisan Legal Advisory Group for the U.S. House of Representatives (Intervernor) filed its Motion to Dismiss, which focuses solely on Plaintiffs constitutional challenge to Section 3 of DOMA. Plaintiffs and Defendants filed separate Oppositions to Intervenors Motion to Dismiss.1
As Intervenor notes, in February of this year, the Department of Justice decided to forego defending the constitutionality of DOMA. Accordingly, Defendants filed an Opposition to Intervenors Motion to Dismiss in order to argue that Section 3 of DOMA is unconstitutional. : Initials of Preparer
CV-90 (06/04) CIVIL MINUTES - GENERAL
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II.
BACKGROUND FACTS
Plaintiff Lui is a native and citizen of Indonesia. Plaintiff Roberts is a U.S. Citizen. Plaintiffs, same-sex couple, were legally married under the laws of Massachusetts on April 9, 2009. On the same day, Plaintiff Roberts filed the Petition on behalf of Plaintiff Lui with the USCIS California Service Center. (Id. 28). On August 28, 2009, Plaintiffs Petition was denied. On January 20, 2011, the BIA dismissed Plaintiffs appeal of the I-130 Petition Denial. Plaintiffs claim that Defendants refusal to grant the Petition on the basis of Plaintiffs same-sex marriage constitutes sex discrimination in violation of the INAs anti-discrimination provision, 8 U.S.C. 1152(a)(1)(A). (Compl. 8). Plaintiffs further contend that Defendants application of DOMAs definition of marriage in making the determination that a same-sex spouse is not an immediate relative for I-130 petition purposes violated their constitutional due process and equal protection rights. (Id. 5, 18). III. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the claims stated in the complaint. See Fed. R. Civ. Proc. 12(b)(6). To survive a motion to dismiss, the plaintiffs complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. A complaint that offers mere labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (Citing Iqbal, 129 S. Ct. at 1951). In reviewing a Rule 12(b)(6) motion, the Court must accept all allegations of material fact as true and construe the allegations in the light most favorable to the nonmoving party. Daniel v. County of Santa Barbara, 288 F.3d 375, 380 (9th Cir. 2002). While a court does not need to accept a pleader's legal conclusions as true, the court reviews the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). The court may grant a plaintiff leave to amend a deficient claim "when justice so requires." Fed. R. Civ. P. 15(a)(2). "Five factors are frequently used to assess the propriety of a motion for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his Complaint." Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (Citing Ascon Properties, Inc. v. Mobil Oil Co., 866 : Initials of Preparer
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F.2d 1149, 1160 (9th Cir. 1989)). Where a motion to dismiss is granted, leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401. IV. DISCUSSION
The gravamen of Plaintiffs complaint is that Roberts Petition was improperly rejected because Lui, as Roberts same-sex spouse, qualifies as an immediate relative under the INA. Defendants maintain that the USCIS and the BIA do not engage in impermissible sex discrimination under the INA when they refuse to grant an I-130 petition under these circumstances. The Court finds that this proposition is well settled under Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), which also involved an I-130 immediate relative petition filed by a party to a same-sex marriage. See Adams, 673 F.2d at 1036 (holding that the agencys interpretation of marriage in the INA, 8. U.S.C. 1151(b), as excluding same-sex couples did not violate plaintiffs due process or equal protection rights under rational basis review).2 Furthermore, Plaintiffs have failed to assert any facts to suggest the Defendants discriminated against them on the basis of their sex, as opposed to their sexual orientation. Accordingly, the Court GRANTS Defendants Partial Motion to Dismiss without prejudice. As noted above, USCIS relied on the definitions of marriage and spouse contained in Section 3 of DOMA in denying Plaintiffs Petition. In this instance, Defendants walk a fine line, on the one hand
As Intervenor notes, eleven federal circuits have held that homosexuals are not a suspect class. See Cook v. Gates, 528 F.3d 42, 61-62 (1st Cir. 2008), cert. denied, Pietrangelo v. Gates, 129 S. Ct. 2763 (2009); Citizens for Equal Prot., v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Lofton v. Sec. of Dept. of Children & Fam. Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004), cert. denied, 543 U.S. 1081 (2005); Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997); Holmes v. Cal. Army Nat'l Guard, 124 F.3d 1126 (9th Cir. 1997); Richenberg v. Perry, 97 F.3d 256 (7th Cir. 1996); Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996); Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989); Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989); Town of Ball v. Rapides Parish Police Jury, 746 F.2d 1049 (5th Cir. 1984); Rich v. Sec'y of the Army, 735 F.2d 1220 (10th Cir. 1984); see also Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998) (not applying heightened scrutiny). : Initials of Preparer
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arguing in their Partial Motion to Dismiss that they did not violate the INA by discriminating against Plaintiffs on the basis of their same-sex marriage while simultaneously arguing that Section 3 of DOMA, which excludes same-sex couples from the definitions of marriage and spouse for purposes of federal law, violates equal protection. To the extent that Plaintiffs Challenge Section 3 of DOMA on equal protection grounds, that issue has been decided by Adams.3 673 F.2d at 1041.4 In Adams, the Ninth Circuit held that Congress's decision to confer spouse status . . . only upon the parties to heterosexual marriages has a rational basis and therefore comports with the due process clause and its equal protection requirements.5 Id. at 1042. The fact that DOMA was enacted years after the Ninth Circuits decision in Adams is not persuasive given that marriage as defined in Section 3 of DOMA is consistent with Adams. While Plaintiffs and Defendants point out the alleged deficiencies in the reasoning in Adams, this Court is not in a position to decline to follow Adams or critique its reasoning simply because Plaintiffs and Defendants believe that Adams is poorly reasoned.6 Furthermore, as Intervenor
In addition to Adams, Intervenor argues that Baker v. Nelson, 409 U.S. 810 (1972) controls. In Baker, plaintiffs, a same-sex couple, appealed a decision of the Minnesota Supreme Court affirming rejecting a constitutional challenge to the rejection of their application for a Minnesota marriage license. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), affd, 409 U.S. 810 (1972). The Supreme Court unanimously dismissed plaintiffs appeal for want of a substantial federal question. The Court need not determine the effect of a summary disposition of the Supreme Court because we are bound to follow the Ninth Circuits decision in Adams. See also, High-Tech Gays v. Def. Indus. Sec. Clearance Ofc., 895 F.2d 563, 571 (9th Cir. 1990) (rejecting the argument that homosexuality should be added to the list of suspect or quasi-suspect classifications requiring strict or heightened scrutiny). The Court in Adams noted that Congress has almost plenary power to admit or exclude aliens, and that, as a result, the decisions of Congress [in the immigration context] are subject only to limited judicial review. Adams, 673 F.2d at 1041. While the Court noted that, pursuant to its plenary power in the immigration context, Congress may enact statues which, if applied to citizens, would be unconstitutional, the Court ultimately upheld the exclusion of same-sex couples from the definition of marriage under the INA under rational basis review, as opposed to some lesser standard of review. Id. at 1042. The Court is aware of a similar case recently heard by District Judge R.Gary Klausner. See Torres-Barragan v. Holder, No. 2:09-cv-08564-RGK-MLG (C.D. Cal. April 30, 2010) (ECF No. 24) appeal docketed, No. 10-55768 (9th Cir.). The only substantive difference between Torres-Barragan and the instant action is that Torres-Barragan arose prior to the Department of Justices change in : Initials of Preparer
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CIVIL MINUTES - GENERAL Case No. Title argues, the No: 2:11-CV-01267-SVW (JCGx) Date September 28, 2011
prerogative to overturn Ninth Circuit precedent rests not with this District Court, but with the en banc Ninth Circuit and the Supreme Court. See Twentieth Century Fox Film Corp. v. Entmt Distrib., 429 F.3d 869, 877 (9th Cir. 2005) (citing Palmer v. Sanderson, 9 F.3d 1433, 1437 n.5 (9th Cir. 1993) (As a general rule, a panel not sitting en banc may not overturn circuit precedent.). The Court feels bound by Ninth Circuit precedent, and believes that those precedents are sufficiently clear.7 V. CONCLUSION
For the reasons set forth in this Order, Defendants Partial Motion to Dismiss and Intervenors Motion to Dismiss are hereby GRANTED without prejudice.
policy. The Court is aware of the District of Massachusetts decision in Gill v. OPM, 699 F. Supp. 2d 374 (D. Mass. 2010) appeal docketed, No. 10-2204 (1st Cir.), in which the court held that Section 3 of DOMA violates equal protection under rational basis review. The Court notes that the plaintiffs in Gill were spouses of federal employees who brought suit on the basis of denial of certain federal marriagebased benefits, thus the context of that case was somewhat different from the present case, which arose in the context of immigration law. More importantly, the courts decision in Gill does not affect this Courts obligation to follow binding Ninth Circuit precedent. : Initials of Preparer
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Exhibit B
Same-Sex Parenting and Childrens Outcomes: A Closer Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting
Loren Marks1
ABSTRACT: In 2005, the American Psychological Association (APA) issued an official brief on Lesbian and Gay Parenting. This brief included the assertion: Not a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents (p. 15). The present article closely examines this assertion and 59 published studies cited by APA to support it. Seven central questions address: (1) homogenous sampling, (2) absence of comparison groups, (3) comparison group characteristics, (4) contradictory data, (5) the limited scope of childrens outcomes studied, (6) paucity of long-term outcome data, and (7) lack of APAurged statistical power. The conclusion is that strong assertions, including those made by the APA, were not empirically warranted. Recommendations for future research are offered.
KEYWORDS: same-sex parenting, lesbian, gay
Louisiana State University; 341 School of Human Ecology; Baton Rouge, LA 70803; E-mail: lorenm@lsu.edu; FAX: (225)578-2697
1
Electronic copy available at: http://ssrn.com/abstract=1937762
Over the past few decades, differences have been observed between outcomes of children in marriage-based intact families and children in cohabiting, divorced, step, and single-parent families. These differences have recurred in connection with myriad issues of societal-level concern including: (a) health2 , mortality3 , and suicide risks4 , (b) drug and alcohol abuse5 , (c) criminality and incarceration6 , (d) intergenerational poverty7 , (e) education and/or labor force contribution8 , (f) early sexual activity and early childbearing9 , and (g) divorce rates as adults.10 These outcomes represent important impact variables that influence the well-being of children and families, as well as the national economy. By way of comparison, social science research has repeatedly reported no significant differences between children from gay/lesbian households and heterosexual households. These recurring findings of no significant differences have led some researchers and professional organizations to formalize related claims. Perhaps none of these claims has been more influential than the following from the 2005 American Psychological Association (APA) Brief on Lesbian and Gay Parenting: Not a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents.11 Are we witnessing the emergence of a new family form that (unlike cohabiting, divorced, or single-parent families) provides a context for children that is equivalent to the intact family? Many proponents of same-sex marriage contend that the answer is yes. Others are skeptical and wondergiven that other departures from the intact family form have been correlated with less-desirable child outcomesdo children in same-sex families demonstrably avoid being disadvantaged in any significant respect relative to children of heterosexual parents as the APA asserts? This is a question with important implications, particularly since the 2005 APA Brief on Lesbian and Gay Parenting has been repeatedly invoked in the current same-sex marriage debate.
2 3
Waite, 1995 Gaudino et al., 1999; Siegel et al., 1996 4 Wilcox et al., 2005, p. 28; Cutler et al., 2000 5 Bachman et al. 1997; Flewelling & Bauman, 1990; Horwitz et al., 1996; Johnson et al., 1996; Simon, 2002; Waite & Gallagher, 2000; Weitoft et al., 2003; Wilcox et al., 2005 6 Blackmon et al., 2005; Harper & McLanahan, 2004; Kamark & Galston, 1990, pp. 14-15; Manning & Lamb, 2003; Margolin, 1992, p. 546 7 Akerlof, 1998; Blackmon et al., 2005; Brown, 2004; Oliver & Shapiro, 1997; Rank & Hirschl, 1999 8 Amato, 2005; Battle, 1998; Cherlin et al., 1998; Heiss, 1996; Lansford, 2009; Manning & Lamb, 2003; McLanahan & Sandefur, 1994; Phillips & Asbury, 1993; Teachman et al., 1998 9 Amato, 2005; Amato & Booth, 2000; Ellis et al., 2003; McLanahan & Sandefur, 1994 10 Cherlin et al., 1995; Wolfinger, 2005 11 Patterson, p. 15 (from APA Brief, 2005)
2
Statement of Purpose and Specific Questions The overarching question of this paper is: Are the conclusions of the research presented in the 2005 APA Brief on Lesbian and Gay Parenting valid and precise, based on the cited scientific evidence? In the present paper, seven questions are posed, examined, and addressed: (1) How culturally, ethnically, and economically diverse were the gay/lesbian households in the published literature behind the APA Brief? (2) How many studies of gay/lesbian parents had no heterosexual comparison group? (3) When there were comparison groups, which groups were compared? (4) Does a scientifically-viable study exist to contradict the APAs published statement that not a single study has found children of lesbian or gay parents to be disadvantaged? (5) What types of outcomes have been investigated? (6) What do we know about the long-term outcomes of children of lesbian and gay parents? (7) Have the studies in this area committed the type II error and prematurely concluded that heterosexual couples and gay and lesbian couples produce similar parental outcomes? Two portions of the APA brief are of particular concern to us in the present paper: (a) the Summary of Research Findings (pp. 522), and (b) the first and largest section of the annotated bibliography, entitled Empirical Studies Specifically Related to Lesbian and Gay Parents and Their Children (pp. 2345). In the latter section (pp. 2345), the APA references 67 manuscripts. Eight of these studies are unpublished dissertations. 12 An adapted portion of one of these dissertations (Steckel, 1985) was eventually published (Steckel, 1987) and is included in the present examination; the other unpublished work is not. Fifty-nine published studies are listed in Table A, providing parameters from which to formulate responses to the seven questions outlined. Question 1: How culturally, ethnically, and economically diverse were the gay/lesbian households in the published literature behind the APA brief? In response to question 1, of the 59 published Empirical Studies Specifically Related to Lesbian and Gay Parents and Their Children, no studies mention AfricanAmerican, Latin-American, or Asian-American families in either their titles or subtitles. The reference list in the APA Briefs Summary of Research Findings (pp. 1522) is also void of any studies focusing on African-American, Latin-American, or AsianAmerican families.13 None of the Empirical Studies Specifically Related to Lesbian and Gay Parents and Their Children (pp. 2345) holds, as its focus, any of these minorities.
12
These unpublished dissertations that were not peer-reviewed include: Hand, 1991; McPherson, 1993; Osterweil, 1991; Paul, 1986; Puryear, 1983; Rees, 1979; Sbordone, 1993; Steckel, 1985. These are omitted in Table A. 13 Three years after the 2005 APA Brief, Moore (2008) published a small but pioneering study on African American lesbians.
3
A closer examination of the studies reveals that White/Caucasian samples comprise several of the studies from the Empirical Studies (pp. 2345) section of the APA Brief. For example: 1. All of [the fathers in the sample] were Caucasian (Bozett, 1980, p. 173). 2. Sixty parents, all of whom were White comprised the sample (Flaks et al., 1995, p. 107). 3. [All 40] motherswere white (Hoeffer, 1981, p. 537). 4. All the children, mothers, and fathers in the sample were Caucasian (Huggins, 1989, p. 126). 5. The twenty-five women were all white (Rand et al., 1982, p. 29). 6. All of the women[were] Caucasian (Siegenthaler & Bigner, 2000, p. 82). 7. All of the birth mothers and co-mothers were white (Tasker & Golombok, 1998, p. 52). 8. All [48] parents were Caucasian (Vanfrasussen et al., 2003, p. 81). Many other studies do not explicitly acknowledge all-White samples, but also do not mention or identify a single minority participantwhile others report almost all white samples.14 Same-sex researchers Lott-Whitehead and Tully (1993) cautiously added in the discussion of their APA Brief-cited study: Results from this study must be interpreted cautiously due to several factors. First, the study sample was small (N=45) and biased toward well-educated, white women with high incomes. These factors have plagued other [same-sex parenting] studies, and remain a concern of researchers in this field (p. 275). Similarly, in connection with this bias, Patterson (1992), who would later serve as sole author of the 2005 APA Briefs Summary of Research Findings on Lesbian and Gay Families, reported: Despite the diversity of gay and lesbian communities, both in the United States and abroad, samples of children [and parents] have been relatively homogeneous. Samples for which demographic information was reported have been described as predominantly Caucasian, well-educated, and middle to upper class.15 In spite of the privileged and homogenous nature of the non-representative samples employed in the studies at that time, Pattersons (1992) conclusion was as follows: Despite shortcomings [in the studies], however, results of existing research comparing children of gay or lesbian parents with those of heterosexual parents
14
Examples of explicit or implicitly all-White (or nearly all-White) samples include, but are not limited to: Bigner & Jacobsen, 1989a, 1989b; Bozett, 1980; Flaks et al., 1995; Green, 1978; Green et al., 1986; Hoeffer, 1981; Huggins, 1989; Koepke et al., 1992; Rand et al., 1982; Siegenthaler & Bigner, 2000; Tasker & Golombok, 1995, 1998; Vanfraussen et al., 2003 15 Patterson, 1992, p. 1029
are extraordinarily clear, and they merit attention There is no evidence to suggest that psychosocial development among children of gay men or lesbians is compromised in any respect relative to that among offspring of heterosexual parents.16 Pattersons conclusion in a 2000 review was essentially the same: [C]entral results of existing research on lesbian and gay couples and families with children are exceptionally clear. [The] home environments provided by lesbian and gay parents are just as likely as those provided by heterosexual parents to enable psychosocial growth among family members. 17 Although eight years had passed, in this second review, Patterson (2000) reported the continuing tendency of same-sex parenting researchers to select privileged lesbian samples. Specifically, she summarized, Much of the research [still] involved small samples that are predominantly White, well-educated [and] middle-class (p. 1064).18 Given the privileged, homogeneous, and non-representative samples of lesbian mothers employed in much of the research, it seems warranted to propose that Patterson was empirically premature to conclude that comparisons between gay or lesbian parents and heterosexual parents were extraordinarily clear19 or exceptionally clear.20 There is an additional point that warrants attention here. In Pattersons statements above, there are recurring references to research on children of gay parents. In 2000, Demo and Cox reported that children living with gay fathers were a rarely studied household configuration.21 In 2005, how many of the 59 published studies cited in the APAs list of Empirical Studies Specifically Related to Lesbian and Gay Parents and Their Children (pp. 2345) specifically addressed the outcomes of children from gay fathers? A closer examination reveals that only eight studies did so. 22 Of these eight studies, four did not include a heterosexual comparison group.23 In three of the four remaining studies (with heterosexual comparison groups), the outcomes studied were: -the value of children tofathers (Bigner & Jacobsen, 1989a, p. 163). -parenting behaviors offathers (Bigner & Jacobsen, 1989b p. 173). -problems and relationship with child (Harris & Turner, 1986, pp. 107108). The two Bigner and Jacobsen (1989a, 1989b) studies focused on fathers reports of fathers values and behaviors, not on childrens outcomesillustrating a recurring tendency in the same-sex parenting literature to focus on the parent, rather than the child. Harris and Turner (1986) addressed parent-child relationships, but their studys male
16 17
Patterson, 1992, p. 1036 (emphasis added) Patterson, 2000, p. 1064 (emphasis added) 18 Patterson, 2000, p. 1064 19 Patterson, 1992, p. 1036 20 Patterson, 2000, p. 1064 21 Demo & Cox, 2000, p. 890 22 Bailey et al., 1995; Barrett & Tasker, 2001; Bigner & Jacobsen, 1989a, 1989b; Bozett, 1980; Harris & Turner, 1986; Miller, 1979; Sarantakos, 1996 23 Bailey et al., 1995; Barrett & Tasker, 2001; Bozett, 1980; Miller, 1979
heterosexual comparison group was comprised of two single fathers. It appears that although several studies have examined aspects of gay fathers lives, almost no heterosexual comparison studies referenced in the APA Brief (pp. 2345) appear to have specifically focused on childrens developmental outcomesa rare exception is Sarantakos (1996), a study to which we will return later. In summary response to Question 1 (How culturally, ethnically, and economically diverse were the gay/lesbian households in the published literature behind the APA Brief?), the reader may ascertain that none of the cited articles (pp. 2345) focus on African-American, Latino, or Asian-American families. Further, many studies do not include any minority individuals or families. Finally, comparison studies on children of gay fathers were almost non-existent as well. By their own reports, social researchers examining same-sex parenting have repeatedly selected non-representative, homogeneous samples of privileged lesbian mothers to represent all same-sex parents. This pattern across three decades of research raises significant questions regarding lack of diversity and lack of generalizability in the same-sex parenting studies. Question 2: How many studies of gay/lesbian parents had no heterosexual comparison group? Of the 59 publications cited by the APA in the annotated bibliography section entitled Empirical Studies Specifically Related to Lesbian and Gay Parents and Their Children (pp. 2345), 33 involved a heterosexual comparison group. In direct response to Question 2, 26 (44.1 percent) of the studies on same-sex parenting did not include a heterosexual control group. In well-conducted science, it is important to have a clear comparison group before drawing conclusions regarding differences or the lack thereof. We see that nearly half of the Empirical Studies Specifically Related to Lesbian and Gay Parents and Their Children referenced in the APA Brief allowed no basis for comparison between these two groups (see Table A). To proceed with precision, this fact does not negate the APA claim. It does, however, dilute it considerably as we are left with not 59, but 33, studies with heterosexual comparison groups. Question 3: When there were comparison groups, which groups were compared? We now turn to a question regarding the nature of comparison samples. Of the 33 published Empirical Studies Specifically Related to Lesbian and Gay Parents and Their Children (APA Brief, pp. 2345) that did directly include a heterosexual comparison group, what were the more specific characteristics of the groups that were compared? The earlier examination and response related to Question 1 documented that, by Pattersons reports, Despite the diversity of gay and lesbian communitiesin the United States,24 the repeatedly selected representatives of same-sex parents have been small samples [of lesbians] that are predominantly White, well-educated [and] middle-class (p. 1064).25 In spite of homogenous sampling, there is considerable diversity among gay and lesbian parents. Considerable diversity exists among heterosexual parents as well. Indeed, the opening paragraph of this article noted recurring differences in outcomes of
24 25
Patterson, 1992, p. 1029 Patterson, 2000, p. 1064
children in marriage-based intact families and children in cohabiting, divorced, step, and single-parent families. To restate, these differences have recurred in connection with myriad issues of societal-level concern including: (a) health26 , mortality27 , and suicide risks28 , (b) drug and alcohol abuse29 , (c) criminality and incarceration30 , (d) intergenerational poverty31 , (e) education and/or labor force contribution32 , (f) early sexual activity and early childbearing33 , and (g) divorce rates as adults.34 Most of these findings are based on probability samples of thousands (see Table B for 17 illustrative studies). Because children in marriage-based intact families have historically fared better than children in cohabiting, divorced, step, or single-parent families on the above outcomes, the question of what groups researchers selected to represent heterosexual parents in the same-sex parenting studies becomes critical. A closer examination of the 33 published same-sex parenting studies with comparison groups which follows, listed chronologically, reveals that: 1. Pagelow (1980) used single mothers as a comparison group (p. 198). 2. Hoeffer (1981) used heterosexual single mothers (p. 537). 3. Kirkpatrick et al. (1981) used single, heterosexual mothers (p. 545). 4. Kweskin and Cook (1982) used women from Parents without Partners (p. 969). 5. Lyons (1983) used heterosexual single mothers (p. 232). 6. Golombok et al. (1983) used single-parent households (p. 551). 7. Green et al. (1986) used solo parent heterosexual mothers (p. 175). 8. Harris and Turner (1986) used 2 male single parents and 14 female single parents (p. 105). 9. Huggins (1989) used divorced heterosexual mothers35 (p. 123). 10. Tasker and Golombok (1995) used heterosexual single mothers (p. 203). 11. Tasker and Golombok (1997) used single heterosexual mothers (p. 38). We see that in selecting heterosexual comparison groups for their studies, many same-sex parenting researchers have not used marriage-based, intact families as heterosexual representatives, but have instead used single mothers (see Table A). Further, Bigner and Jacobsen used 90.9 percent single- father samples in two other studies (1989a, 1989b). 36
26 27
Waite, 1995 Gaudino et al., 1999; Siegel et al., 1996 28 Wilcox et al., 2005, p. 28; Cutler et al., 2000 29 Bachman et al. 1997; Flewelling & Bauman, 1990; Horwitz et al., 1996; Johnson et al., 1996; Simon, 2002; Waite & Gallagher, 2000; Weitoft et al., 2003; Wilcox et al., 2005 30 Blackmon et al., 2005; Harper & McLanahan, 2004; Kamark & Galston, 1990, pp. 14-15; Manning & Lamb, 2003; Margolin, 1992, p. 546 31 Akerlof, 1998; Blackmon et al., 2005; Brown, 2004; Oliver & Shapiro, 1997; Rank & Hirschl, 1999 32 Amato, 2005; Battle, 1998; Cherlin et al., 1998; Heiss, 1996; Lansford, 2009; Manning & Lamb, 2003; McLanahan & Sandefur, 1994; Phillips & Asbury, 1993; Teachman et al., 1998 33 Amato, 2005; Amato & Booth, 2000; Ellis et al., 2003; McLanahan & Sandefur, 1994 34 Wolfinger, 2005 35 4 of the 16 [divorced] heterosexual mothers were either remarried or currently living with a heterosexual lover (p. 127). 36 Of the 66 respondents, 6 were married, 48 were divorced, 8 were separated, and 4 had never been married (Bigner & Jacobsen, 1989a, p. 166). This means the sample was 90.9 percent single.
In total, in at least 13 of the 33 comparison studies listed in the APA Briefs list of Empirical Studies (pp. 2345) that include heterosexual comparison groups, the researchers explicitly sampled single parents as representatives for heterosexual parents. The repeated (and perhaps even modal) selection of single-parent families as a comparison heterosexual-parent group is noteworthy, given that a nonpartisan Child Trends (2002) review has stated that children in single-parent families are more likely to have problems than are children who live in intact families headed by two biological parents.37 Given that at least 13 of the 33 comparison studies listed in the APA Briefs list of Empirical Studies (pp. 2345) used single-parent families as heterosexual comparison groups, what group(s) did the remaining 20 studies use as heterosexual representatives? In closely examining the 20 remaining published comparison group studies, it is difficult to formulate precise reports of the comparison group characteristics, because in many of these studies, the heterosexual comparison groups are referred to as mothers or couples without appropriate specificity (see Table A for details). Were these mothers continuously marriedor were they single, divorced, remarried, or cohabiting? When couples were used, were they continuously marriedor remarried or cohabiting? These failures to explicitly and precisely report sample characteristics (e.g., married or cohabiting) are significant in light of Browns (2004) finding based on her analysis of a data set of 35,938 U.S. children and their parents, that regardless of economic and parental resources, the outcomes of adolescents (1217 years old) in cohabiting familiesare worsethan thosein two-biological-parent married families.38 Because of the disparities noted by Brown and others, scientific precision requires that we know whether researchers used: (a) single mothers, (b) cohabiting mothers and couples, (c) remarried mothers, or (d) continuously married mothers and couples as heterosexual comparison groups. Due to the ambiguity of the characteristics of the heterosexual samples in many same-sex parenting studies, let us frame a question that permits a more precise response, namely: How many of the studies in the APA Briefs Empirical Studies section (pp. 2345) explicitly compare the outcomes of children from intact, marriage-based families with those from same-sex families? In an American Psychologist article published the year after the APA Brief, Herek (2006) referred to a (large, national) study by McLanahan and Sandefur (1994) comparing the children of intact heterosexual families with children being raised by a single parent. Herek then emphasized that this [large scale] research literature does not include studies comparing children raised by twoparent same-sex couples with children raised by two-parent heterosexual couples.39 Isolated exceptions exist with relatively small samples (as discussed shortly in response to Question 4 and as listed in Table A), but they are rare. As we return to the APAs section of 33 published Empirical Studies (pp. 23 45) that directly involve heterosexual comparison groups, we see that the repeated, and perhaps modal, practice of same-sex parenting researchers has been to use single parents as heterosexual representatives. Nebulously defined mothers and couples are frequently used as heterosexual comparison groups, but only in rare cases are explicitly
37 38
Moore et al., 2002; For an extensive review, see Wilcox et al., 2011. Brown, 2004, p. 364 (emphasis added) 39 Herek, 2006, p. 612
intact, marriage-based families used as the group representing heterosexual parents. 40 This is important because the intact, marriage-based family is the family form consistently associated with best childrens outcomes in large-scale research.41 Given what we have seen regarding heterosexual comparison group selection, let us revisit three related claims. First, in 1992, Patterson posited that: [N]ot a single study has found children of gay and lesbian parents to be disadvantaged in any respect relative to children of heterosexual parents.42 Pattersons (2000) claim was similar: [C]entral results of existing research on lesbian and gay couples and families with children are exceptionally clear. [The] home environments provided by lesbian and gay parents are just as likely as those provided by heterosexual parents to enable psychosocial growth among family members. 43 Lastly, and most significantly, we turn to the APA Briefs Summary of Research Findings on Lesbian and Gay Parenting, also single-authored by Patterson (see p. 5): Not a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents.44 The reader will note that in all three of these claims (including that latter from the 2005 APA Brief), Patterson uses the broad and plural term heterosexual parents, a term that at least implicitly includes marriage-based, intact families. This broad claim is not nuanced by the vital information that with rare exceptions, the research does not include studies comparing children raised by two-parent, same-sex couples with children raised by marriage-based, intact heterosexual couples. Further, no mention is made that in at least 14 of the 33 extant comparison studies referenced in the Brief (pp. 2345), the groups selected to represent heterosexual parents were comprised largely, if not solely, of single parents. Question 3 asked, When there were comparison groups (used in same-sex parenting research), which groups were compared? In light of the information this closer examination has yielded, the scientific community is invited to assess whether or not the APA Briefs claim of no difference between children of lesbian or gay parents[and] children of heterosexual parents45 reflected appropriate scientific precision.
40 41
e.g., Sarantakos, 1996 Brown, 2004; McLanahan & Sandefur, 1994; Wilcox et al., 2011 42 Patterson, 1992, p. 1036 (emphasis added) 43 Patterson, 2000, p. 1064 (emphasis added) 44 Patterson, p. 15 (from APA Brief, 2005), (emphasis added) 45 Patterson, p. 15 (from APA Brief, 2005)
Question 4: Does a scientifically-viable study exist to contradict the conclusion that not a single study has found children of lesbian or gay parents to be disadvantaged? There is at least one notable exception to the APAs claim that Not a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents.46 In the Summary of Findings section, the APA Brief references a study by Sarantakos (1996), but does so in a footnote that critiques and dismisses the study (p. 6, footnote 1). On page 40 of the APA Briefs annotated bibliography, a reference to the Sarantakos (1996) article is offered, but there is no summary of the findings, only a note reading No abstract available. This statement from the APA Brief is not accurate. An abstract was available and was printed on the first page of the article. The last sentence of that abstract reported that in the majority of cases, the most successful [children] are children of married couples, followed by children of cohabiting couples and finally by children of homosexual couples (p. 23). Upon closer examination, we find that the Sarantakos (1996) study is a comparative analysis of 58 children of heterosexual married parents, 58 children of heterosexual cohabiting couples, and 58 children living with homosexual couples that were all matched according to socially significant criteria (e.g., age, number of children, education, occupation, and socio-economic status).47 The combined sample size (174) is the seventh-largest sample size of the 59 published studies listed in the APA Briefs Summary of Research Findings on Lesbian and Gay Parenting (see Table A). However, of the six studies with larger sample sizes, all were adult self-report studies,48 making the Sarantakos combined sample the largest study (APA Brief, pp. 2345) that examined childrens developmental outcomes. Key findings of the Sarantakos study are summarized below. To contextualize these data, the numbers are based on a teacher rating-scale of performance ranging from 1 (very low performance), through 5 (moderate performance) to 9 (very high performance).49 Based on teacher (not parent) reports, Sarantakos found several significant differences between married families and homosexual families (and cohabiting families).50 Language Achievement: Mathematics Achievement: Social Studies Achievement: Sport Interest/Involvement: Sociability/Popularity:
46 47
Married Married Married Married Married
7.7, Cohabiting 7.9, Cohabiting 7.3, Cohabiting 8.9, Cohabiting 7.5, Cohabiting
6.8, Homosexual 7.0, Homosexual 7.0, Homosexual 8.3, Homosexual 6.5, Homosexual
5.5 5.5 7.6 5.9 5.0
Patterson, p. 15 (from APA Brief, 2005) Sarantakos, 1996, p. 23 48 In order, these six studies include: (1) Morris et al., 2002 (N=2,431), who addressed adults reports of coming out; (2) Johnson and Connor, 2002 (N=415), who addressed adults reports of parenting beliefs, division of labor, etc.; (3) Crawford et al., 1999 (N=388), who addressed psychologists self-reports of gay adoption; (4) King and Black, 1999 (N=338), who addressed college students perceptions of gay parents; (5) Bos et al., 2003 (N=200), who addressed parental motives and desires; and (6) Bos et al., 2004 (N=200), who addressed parental reports of couple relations. Again, these foci are not on the child. 49 Sarantakos, 1996, p. 24 50 Social Studies Achievement is significant at the p=.008 level; the eight other differences are significant at the p=.000 level.
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School/Learning Attitude: Parent-School Relationships: Support with Homework: Parental Aspirations:
Married Married Married Married
7.5, Cohabiting 7.5, Cohabiting 7.0, Cohabiting 8.1, Cohabiting
6.8, Homosexual 6.0, Homosexual 6.5, Homosexual 7.4, Homosexual
6.5 5.0 5.5 6.551
Sarantakos concluded, Overall, the study has shown that children of married couples are more likely to do well at school in academic and social terms, than children of cohabiting and homosexual couples.52 While the above ratings were based on teacher reports, two other areas of homebased interest were based on parent reports: Personal Autonomy and Household Tasks (pp. 2728). In both of these areas, homosexual parents rated their children significantly higher than married parents. The latter two areas of interest differ in content from the nine listed above. However, as the data source shifted from teacher reports to parent reportsthe typical ordering of married families (first in 8 of 9 categories) and homosexual families (last in 8 of 9 categories) reversed (i.e., 8.3 for homosexual; 5.9 for married, on Personal Autonomy). It has long been known, and is well replicated, that individuals tend to rate the group with which they most identify more positively than they do other groups. This positive bias includes within-family ratings (Roese & Olson, 2007).53 As we proceed, it should also be noted that parent reports are the dominant (almost sole) basis of the same-sex parenting studies cited in the APA brief. In fact, the decision to de-emphasize the Sarantakos (1996) study was based, in part, on the criticism that nearly all indicators of the childrens functioning were based on subjective reports by teachers.54 Indeed, the Sarantakos study was primarily, but not solely, based on teacher reports. However, it may be argued that Sarantakos decision not to rely solely or extensively on parent reports (as done in most same-sex parenting studies) is a pronounced strength, given parents tendencies towards bias when reporting on their own children. Further, Sarantakos also drew data from school aptitude tests and observations, thereby modeling a research ideal of triangulation of sources. 55 In fact, Sarantakos integrated not only three data sources to triangulate; he used five (teachers, tests, observations, as well as parent reports, and child reports). In light of this rigorous design, it was not surprising to learn that Sarantakos is the author of several methods textbooks (2005, 2007b) and the author/editor of a four-volume, 1672-page work in Sage Publications Benchmarks in Social Research Series, 2007a. Question 4 asked: Does a scientifically viable study exist to contradict the APAs published statement that not a single study has found children of lesbian or gay parents to be disadvantaged? The answer is yes. Sarantakos (1996) controlled for education, occupation, and socio-economic status and then, based on teacher reports, compared
51 52
Sarantakos, 1996, pp. 2427 Sarantakos, 1996, p. 30 53 Roese & Olson, 2007 54 APA Brief (2005), footnote 1, p. 6 (emphasis added) 55 Triangulation is a means of checking the integrity of the inferences one draws. It can involve the use of multiple data sources, multiple theoretical perspectives, multiple methods, or all of these (Schwandt, 2001, p. 257). In effect, the standard of triangulation is advocacy for internal checks and balances. The bottom line is that (as in the courtroom) additional witnesses, particularly more objective ones, are vital for the most-valid outcomes.
11
marriage-based families with homosexual families and found nine significant differenceswith children from marriage-based families rating higher in eight areas. By objective standards, compared with the studies cited by the APA Brief, the Sarantakos study was: a) The largest study to examine childrens outcomes,56 b) One of the most comparative (only about five other studies used three comparison groups57 ), and c) Perhaps the most comprehensively triangulated study (five data sources) conducted on same-sex parenting. 58 Accordingly, this study deserves the attention of scientists interested in the question of homosexual and heterosexual parenting, rather than the dismissal it received from APA. As we conclude the examination of Question 4, let us review a portion of APAs published negation of Sarantakos study: [Children Australia, the journal where the article was published] cannot be considered a source upon which one should rely for understanding the state of scientific knowledge in this field, particularly when the results contradict those that have been repeatedly replicated in studies published in better known scientific journals.59 Patterson and the APA dismissed the Sarantakos study, in part, because it contradicted the no significant difference findings that had been repeatedly replicated in studies published in better known scientific journals.60 For other scientists, however, the salient point behind Sarantakos findings is that the novel comparison group of marriage-based families introduced significant differences in childrens outcomes (as opposed to the recurring no difference finding with single-mother and couple samples). Additional studies with intact, marriage-based families as the heterosexual comparison group are conspicuously rare in the APA Briefs list of Empirical Studies Specifically Related to Lesbian and Gay Parents and Their Children (pp. 2345). We now turn to the fifth question. Question 5: What types of outcomes have been investigated? With respect to the APA Briefs claim that not a single study has found children of lesbian or gay parents to [have] disadvantaged [outcomes], what types of outcomes have been examined and investigated? Specifically, how many of the same-sex parenting
56
Six of the 59 studies listed in the 2005 APA Brief (pp. 2345) had larger samples, but, as discussed earlier, they all focused on adult reports of adult perceptions and outcomes. 57 For example, Brewaeys et al., 1997; Golombok et al., 2003; Golomobok et al., 1997; MacCallum & Golombok, 2004; Tasker & Golombok, 1998 58 In spite of the strong design with respect to triangulation, the Sarantakos study does not appear to be based on a true probability sample, nor is it or a large sample (although it is a subsample of a 900-plus study). The study is rigorous by comparison to other same-sex parenting studies, but is relatively limited compared with most of the nationally representative studies on intact families listed in Table C. 59 Patterson (2005) in APA Brief, p. 7, footnote 1. 60 Patterson (2005) in APA Brief, p. 7, footnote 1.
12
studies in Table A address the societal concerns of intergenerational poverty, collegiate education and/or labor force contribution, serious criminality, incarceration, early childbearing, drug and alcohol abuse, or suicide that are frequently the foci of significant national studies on children, adolescents, and young adults, as discussed previously? Anderssen and colleagues cataloged the foci of same-sex parenting studies in a 2002 review. In connection with the examined outcomes in the studies they reviewed, Anderssen et al. reported: Emotional functioning was the most often studied outcome (12 studies), followed by sexual preference (nine studies), gender role behavior (eight studies), behavioral adjustment (seven studies), gender identity (six studies), and cognitive functioning (three studies).61 Examination of the articles cited in the 2005 APA Brief on Lesbian and Gay Parenting yields a list of outcomes that are consistent with Anderssens summary. For example: sexual orientation62 ; behavioral adjustment, self-concepts, and sex-role identity63 ; sexual identity64 ; sex-role behavior65 ; self-esteem66 ; psychosexual and psychiatric appraisal67 ; socioemotional development68 ; and maternal mental health and child adjustment.69 Several other single studies address topics that fall outside the six most frequently studied outcomes noted by Anderssen et al., and there are a few foci that are examined in two or more studies, including: stigmatization 70 ; contact(s) with grandparents and other adults71 ; division of labor;72 and interviews with mothers.73 With these focal outcomes identified, it is noteworthy that all of the aforementioned outcomes of societal-level concern are absent from the list of most often studied outcome(s) as identified by Anderssen et al. 74 In response to the present articles Question 5 (what types of outcomes have been investigated for children of gay/lesbian families?), it may be concluded: In the same-sex parenting research that undergirded the 2005 APA Brief, it appears that gender-related outcomes were the dominant research concern, to the neglect of other important outcomes. To be more precise, Table A lists several categories of information regarding 59 published empirical studies; one of these categories is the outcome studied. More than 20 studies have examined gender-related outcomes, but there was a dearth of peer-reviewed journal articles from which to form science-based conclusions in myriad areas of societal concern including: intergenerational poverty, criminality, college education and/or labor force contribution,
61 62
Anderssen et al., 2002, p. 343 Bailey et al., 1995; Golombok & Tasker, 1996 63 Patterson, 1994 64 Green, 1978 65 Hoeffer, 1981; Kweskin & Cook, 1982 66 Huggins, 1989 67 Golombok et al., 1983 68 Golombok et al., 1997 69 Patterson, 2001 70 Gershon et al., 1999; King & Black, 1999 71 Fulcher et al., 2002; Patterson et al., 1998 72 Chan, Brooks, et al., 1998; Patterson, 1995 73 Gartrell et al., 1999, 2000 74 Anderssen et al., 2002, p. 343
13
drug/alcohol abuse, suicide, sexual activity and early childbearing, and eventual divorce as adults. In any less-developed area of empirical inquiry it takes time, often several decades, before many of the central and most-relevant questions can begin to be adequately addressed. This seems to be the case with same-sex parenting outcomes, as many of the issues of societal concern have gone unaddressed. For scientists and others who favor data-informed decisions, the identified dearth, in connection with several critical outcomes, presents a significant concern. Question 6: What do we know about the long-term outcomes of children of lesbian and gay parents? In the preceding response to Question 5, the outcomes of intergenerational poverty, criminality, college education and/or labor force contribution, drug/alcohol abuse, suicide, early sexual activity, early childbearing, and eventual divorce as adults were mentioned. The reader will note that these outcomes are not child outcomes per se. Indeed, most of these outcomes are not optimally observable until (at the soonest) mid-late adolescence or early adulthood (and in the case of divorce, not until middle adulthood). As discussed in Question 5, virtually none of the peer-reviewed, same-sex parenting comparison studies addressed these outcomes.75 Of the 59 published studies cited by the APA 2005 Brief (pp. 2345), it is difficult to find comparison studies of any kind that examine adolescent outcomes, and the few that do employ comparison groups of 44 or fewer.76 Let us further explore the importance of a lack of data centered on adolescents and young adults. Table B identifies 17 of the hundreds of available studies on outcomes of children from intact families (as contrasted with comparison groups such as cohabiting couples and single parents). Many of these studies are based on data from nationally representative sample sizes of several thousand. One of these studies included a data set of 35,938 childrenone of the largestnationally representative survey[s] of U.S. children and their parents.77 Based on analysis of this nationally representative sample, Susan Brown emphasized, The findings of this studydemonstrate the importance of separately examining children and adolescents. She then explained: Although the outcomes of children (611 years old) in cohabiting familiesare worsethan those of children in two-biological-parent married families, much of this differenceis economic. In contrast, regardless of economic and parental resources, the outcomes of adolescents (1217 years old) in cohabiting familiesare worsethan thosein two-biological-parent married families.78 In short, in the case of cohabiting families and two-biological-parent married families the differences in childrens outcomes increase in significance as the children grow older. The likelihood of significant differences arising between children from same-sex
75
Gartrell and colleagues (1999, 2000, 2005) have commenced to do so, but in 2005 they were reporting on children who were only 10 years old (with a sample size of 74 and no heterosexual comparison group). 76 i.e., Wainwright Russell, & Patterson, 2004 77 Brown, 2004, p. 355 78 Brown, 2004, p. 364
14
and married families may also increase across timenot just into adolescence but into early and middle adulthood. For example, research indicates that [d]aughters raised outside of intact marriages aremore likely to end up young, unwed mothers than are children whose parents married and stayed married, and that [p]arental divorce increases the odds that adult children will also divorce.79 Longitudinal studies that follow children across time and into adulthood to examine such outcomes are comparatively rare and valuable. We briefly turn to a key finding from one such study that has addressed children of divorce who are now in middle adulthood. Based on a 25-year longitudinal study, Wallerstein and colleagues (2001) state: Contrary to what we have long thought, the major impact of divorce does not occur during childhood or adolescence. Rather, it rises in adulthood as serious romantic relationships move center stage. When it comes time to choose a life mate and build a new family, the effects of divorce crescendo (p. xxix). Wallersteins research, like nearly all of the studies in the same-sex parenting literature, is based on a small, non-representative sample that should not be generalized or overextended. Her longitudinal work does, however, indicate that effects [can] crescendo in adulthood. Did any peer-reviewed, same-sex parenting study cited by the 2005 APA Brief (pp. 2345) track the societally significant long-term outcomes into adulthood? No. Is it possible that the major impact of same-sex parenting might not occur during childhood or adolescence[and that it will rise] in adulthood as serious romantic relationships move center stage? Is it possible that when it comes time to choose a life mate and build a new family that the effects of same-sex parenting will similarly crescendo as they did in Wallersteins study? It is possible. From a scientific perspective, the unfortunate answer to the question regarding the long-term (i.e., adult) outcomes of lesbian and gay parenting is that we have no empirical basis for responding, because not a single peer-reviewed comparison study has followed same-sex parented children across time and into mid-adulthood. We now move to a final empirical question regarding the same-sex parenting literature. Question 7: Have the studies in this area committed the type II error and prematurely concluded that heterosexual couples and gay and lesbian couples produce similar parental outcomes? In social science research, our questions are typically framed as follows: Are we 95 percent sure the two groups being compared are different? (p<.05). If our statistics seem to confirm a difference with 95 percent or greater confidence, then we say the two groups are significantly different. But what if, after statistical analysis, we are only 85 percent sure that the two groups are different? By the rules of standard social science, we would be obligated to say we were unable to satisfactorily conclude that the two groups are different. However, this reported finding of no statistically significant difference (at the p<.05 level; 95percent-plus certainty) is a grossly inadequate basis upon which to offer the science-based claim that the groups were conclusively the same. In research,
79
Wilcox et al. 2011, p.11
15
incorrectly concluding that there is no difference between groups when there is in fact a difference is a Type II error. A Type II error is more likely whenever undue amounts of random variation are present in a study. Specifically, small sample size, unreliable measures, imprecise research methodology, or unaccounted-for variables can all increase the likelihood of a Type II error. All one would have to do to be able to come to a conclusion of no difference is to conduct a study with a small sample and/or sufficient levels of random variation. Such weaknesses compromise a studys statistical power (Cohen, 1988). It must be re-emphasized that a conclusion of no significant difference means that it is unknown whether or not a difference exists. This conclusion does not necessarily mean that the two groups are the same. This point is especially important with same-sex parenting research because Patterson (1992, 2000) and the 2005 APA Brief seem to draw inferences of sameness based on the observation that gay and lesbian parents and heterosexual parents appear not to be statistically different from one anotherthereby becoming vulnerable to a classic Type II error. To make the APAs proposition of sameness more precarious, in a review published one year after the APA Brief in the flagship APA journal, American Psychologist, Herek (2006) acknowledged that many same-sex parenting studies have utilized small, select convenience samples and often employed unstandardized measures.80 Anderssen et al. (2002) similarly indicated in their review of same-sex parenting studies, The samples were most often small, increasing the chance to conclude that no differences exist between groups when in fact the differences do exist. This casts doubt on the external validity of the studies.81 With these limitations noted, the 2005 APA Brief explicitly claimed that findings of non-significant differences between samesex and heterosexual parents had been repeatedly replicated (p. 7, footnote 1). Many readers with more traditional scientific interpretations of replication are likely to view this as an overstatement for various reasons, including the sampling and measurement limitations acknowledged previously. Another reason for skepticism is that the logic of replication implies that different researchers are unlikely to make the same errors.82 However, if errors (e.g., similarly biased sampling approaches employing small, select convenience samples83 and comparison groups) are repeated by different researchers, the logic behind replication is undermined. As has been previously detailed in the response to Question 1 in this article, same-sex parenting researchers have repeatedly selected White, well-educated, middle- and upper-class lesbians to represent same-sex parents. This tendency has recurred even after this bias was explicitly identified by Patterson (1992, 2000). 84 Further, repeated sampling tendencies in connection with heterosexual comparison groups (e.g., single mothers), were documented in response to Question 3 in this paper. Whether these repeated sampling tendencies across studies that employed different measures constitute valid scientific replication must be determined by the informed reader.
80 81
Herek, 2006, p. 612 Anderssen et al., 2002, p. 348 82 Neuman, 1997, p. 150 83 Herek, 2006, p. 612 84 Further, single mothers have been repeatedly selected to represent heterosexual parents as documented in this papers response to Question 3.
16
An additional scientific question raised by the above information regarding small, select convenience85 samples is framed by Stacey and Biblarz (2001) who reveal that many of these [comparative same-sex parenting] studies use conventional levels of significanceon miniscule samples, substantially increasing their likelihood of failing to reject the null hypothesis.86 Was the APAs claim that Not a single study has found children of lesbian or gay parents to be disadvantaged87 based on clear scientific evidence or (perhaps) Type II errors? The last three editions of the APA Publication Manual (1994, 2001, 2010) have urged scholars to report effect sizes and to take statistical power into consideration when reporting their results. The APA 5th Publication Manual (2001) in use at the time of APAs 2005 Brief on Lesbian and Gay Parenting stated: Take seriously the statistical power considerations associated with your tests of hypotheses. Such considerations relate to the likelihood of correctly rejecting the tested hypotheses, given a particular alpha level, effect size, and sample size. In that regard, you should routinely provide evidence that your study has power to detect effects of substantive interest (e.g., see Cohen, 1988). You should be similarly aware of the role played by sample size in cases in which not rejecting the null hypothesis is desirable (i.e., when you wish to argue that there are no differences [between two groups]) (p. 24). The latter note regarding maintaining an awareness of statistical power in cases when you wish to argue that there are no differences bears directly on same-sex comparative research. The APA 5th Publication Manual (2001) continues: Neither of the two types of probability [alpha level or p value] directly reflects the magnitude of an effect or the strength of a relationship. For the reader to fully understand the importance of your findings, it is almost always necessary to include some index of effect size or strength of relationship in your Results section (p. 25). Let us restate three statements from the APA 5th Publication Manual (2001) for emphasis: 1) The APA urges researchers to: Take seriously the statistical power considerations and routinely provide evidence (p. 24). 2) The APA identifies a specific concern with sample size and statistical power in connection with cases where authors wish to argue that there are no differences between compared groups (p. 24). 3) The APA concludes: It is almost always necessary to include some index of effect size or strength of relationship in your Results section (p. 25).
85 86
Herek, 2006, p. 612 Stacey & Biblarz, 2001, p. 168, footnote 9 87 Patterson, p. 15 (from APA Brief, 2005)
17
Above, the APAs first exhortation is that an author should routinely provide evidence that your study has sufficient power(e.g., see Cohen, 1988). The reference cited here by the APA is the volume Statistical Power Analysis for the Behavioral Sciences (2nd ed.) by the late psychometrician Jacob Cohen, who has been credited with foundational work in statistical meta-analysis (Borenstein, 1999). In his APA-cited volume, Cohen stated: Most psychologists of whatever stripe believe that samples, even small samples, mirror the characteristics of their parent populations. In effect, they operate on the unstated premise that the law of large numbers holds for small numbers as well. [Citing Tversky and Kahneman] The believer in the law of small numbers has incorrect intuitions about significance level, power, and confidence intervals. Significance levels are usually computed and reported, but power and confidence levels are not. Perhaps they should be. But as we have seen, too many of our colleagues have not responded to [this] admonition. They do so at their peril (p. xv). First, let us briefly contextualize the law of small numbers with respect to the APA Brief-cited same-sex parenting studies. In response to Question 6, a study of family structure based on a nationally representative sample of 35,938 children was cited (Brown, 2004). By way of contrast, the combined non-representative sample total of all 59 same-sex parenting studies in the 2005 APA Brief (pp. 2345) is 7,80088 about onefifth (21.7 percent) the size of Browns nationally representative sample for a single study. We now turn to another question directly relating to Cohens above statements: How many of the published same-sex parenting studies with a heterosexual comparison group cited in APAs Brief (pp. 2345) provide[d] evidence of statistical power, consistent with APAs Publication Manual and the admonition of Jacob Cohen who is cited in the APA manual? An examination of the studies found only a few that did so. 89 In the practice of closer examination that has led us through responses to the first six questionslet us take a closer look. In addition to Cohens (1988) statement that statistical power is ignored at our own peril, he offered several tables in his volume for researchers to reference. Employing these tables, statistical experts Lerner and Nagai (2001) computed the sample sizes required for a power level of .80, or a Type II error rate of .20, or one in five findings (p. 102). At this power level, the minimum number of cases required to detect a small effect size90 is 393 for a T-test or ANOVA, or 780-plus
88
This figure (7,800) includes all same-sex parents and their children, heterosexual comparison groups, psychologists, students, etc. 89 These include Chan, Raboy, et al., 1998; Fulcher et al., 2002; Golombok & Tasker, 1996; Tasker & Golombok, 1997. 90 By way of context, in a 67 study meta-analysis of the average differences in outcomes between children with divorced and continuously married parents, Amato (2001) reported an average weighted effect size of between -0.12 and -0.22 (a -0.17 average) with an advantage in all five domains considered to children of continuously married parents (p. 360). These differences, although statistically robust and replicated, would be classified by most scholars as small effect sizes, not as large effect sizes. Even so, based on the data, most family scholars would agree that children whose parents remain continuously married tend to fare slightly to moderately better than when parents divorce. However, large numbers were needed to
18
for Chi-Square or Pearson Correlation Coefficient tests.91 In Table A of this report, the 59 published same-sex parenting studies cited in the APA Brief (pp. 2345) are compared against these standards. A close examination indicates that not a single study, including the few that reported power, meets these standards needed to detect a small effect size. Indeed, it appears that only two of the comparison studies (Bos et al., 2003; Bos et al., 2004) have combined sample sizes of even half of the minimum number of cases.92 In their book-length examination of same-sex parenting studies, Lerner and Nagai (2001) further indicate that 17 of the 22 same-sex parenting comparison studies they reviewed had been designed in such a way that the odds of failing to find a significant difference [between homo- and hetero-sexual groups] was 85 percent or higher. 93 Indeed, only one of the 22 studies they analyzed revealed a probability of Type II error below 77 percent, and that study did find differences.94 These significant methodological concerns (and several others) are raised and explained in Lerner and Nagais monograph (see, especially, pp. 95108; also Wardle, 1997). The significant concerns raised by Lerner and Nagai, however, are not substantively responded to in the 2005 APA Summary of Research Findings on Lesbian and Gay Parenting. Indeed, the Lerner and Nagai volume was never mentioned. To restate, in connection with the APAs published urging that researchers: Take seriously the statistical power considerations and routinely provide evidence, the academic reader is left at a disadvantage. Only four comparison studies specifically reported statistical power at all and no comparison study approached the minimum sample size of 393 needed to find a small effect. Question 7 has examined how comparisons have been made from a research methods standpoint. In summary, some same-sex parenting researchers have correctly acknowledged that miniscule samples95 significantly increase the chance to conclude that no differences exist between groups when in fact the differences do existthereby casting doubt on the external validity of the studies. 96 An additional concern is that the APA Briefs claim of repeatedly replicated findings of no significant difference rested
determine this small but important effect. Indeed, most effect sizes in social science research tend to be small. Rigorous and sound social science tends to include and account for many influential factors that each has a small but meaningful effect size. In social science, detecting a novel large effect from a single variable (whether it is divorce, remarriage, or same-sex parenting), is a comparatively rare occurrence. If we are to examine possible effects of same-sex parenting with scientific precision and rigor, related examinations would, like Amatos work, be designed and refined to detect small effect sizes. 91 Cohen (1988) proposes a relatively high power of .90 for cases where one is trying to demonstrate the r [difference] is trivially small (p. 104). If the .90 power were applied, the required sample sizes would further increase. However, because none of the studies in Table A of the present report approach the .80 power levels, .90 calculations are unnecessary here. 92 The minimum number of cases is 393. The two Bos et al. studies both have combined samples of 200. The Crawford et al. (1999) study almost meets the minimum N of 393 (with 388). However, the study examines neither parents nor children; it is an examination of psychologists self-reports regarding attitudes. Similarly, King and Black (1999) examine perceptions of 338 college students. 93 Lerner & Nagai, 2001, p. 103 94 The single exception was Cameron and Cameron (1996) with a comparatively low probability error rate of 25 percent. This study, like the Sarantakos (1996) study mentioned earlier, did report some significant differences between children of heterosexual and homosexual parents but, like Sarantakos (1996), was not addressed in the body of the 2005 APA brief but was instead moved to a footnote on p. 7. 95 Stacey & Biblarz, 2001, p. 168 96 Anderssen et al., 2002, p. 348
19
almost entirely on studies that were published without reports of the APA-urged effect sizes and statistical power analyses.97 This inconsistency seems to justify scientific skepticism. In light, however, of the finding that only two of the heterosexual comparison studies cited by Patterson in the APA Summary reach half of the required minimum sample size required to detect a small effect size, informed readers are offered an opportunity to assess the balance, precision, and rigor behind the conclusions posed in the 2005 APA Brief. Summary In 2005, the American Psychological Association (2005) claimed: Not a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents.98 Seven specific points of examination were presented at the outset of this article and were then respectively addressed. A restatement of these central questions and a summary of the examination-based responses are now offered. Question 1: How culturally, ethnically, and economically diverse were the gay/lesbian households in the published literature behind the APA brief? Summary Response to Question 1: In a decade review on same-sex families, Patterson (2000), the author of the APAs Summary of Research Findings on Lesbian and Gay Parenting, reported the tendency of same-sex parenting researchers to select privileged lesbian samples. Specifically, much of the research involved small samples that are predominantly White, well-educated [and] middle-class (p. 1064).99 Indeed, the reference list in APAs Summary of Research Findings (pp. 15-22) lists no studies that focus on African-American, Latin-American, or Asian-American families and several studies include no minority families at all. Further, there are almost no studies specifically examining outcomes of children of gay fathers. Although most same-sex parenting studies have been conducted with White, well-educated, middle- to upper-class lesbians, this group has been repeatedly employed by scholars in this domain to represent gay fathers and (all) lesbians, including those who are minority, poor, and less educated. Question 2: How many studies of gay/lesbian parents had no heterosexual comparison group? Summary Response to Question 2: Of the 59 publications cited by the APA in the annotated bibliography section entitled Empirical Studies Specifically Related to Lesbian and Gay Parents and Their Children (pp. 2345), only 33 involve a heterosexual comparison group, while 26 do not (44.1 percent). Accordingly, nearly half of the Empirical Studies Specifically Related to Lesbian and Gay Parents and Their Children
97 98
Schumm, 2010 Patterson, p. 15 (from APA Brief, 2005) 99 Patterson, 2000, p. 1064
20
referenced in the APA Brief (pp. 2345) allowed no basis for comparison between these two groups (see Table A for documentation). Question 3: When there were comparison groups, which groups were compared? Summary Response to Question 3: Most same-sex parenting studies report no significant differences between groups. However, White, educated, middle- to upperclass lesbians have typically been selected to represent same-sex parents while single heterosexual mothers have been repeatedly selected to represent heterosexual parents in at least a dozen studies. Cohabiting heterosexual couples have also been used on occasion, but almost no studies undergirding the APA Brief explicitly employed marriage-based, intact families as the heterosexual comparison group. Question 4: Does a scientifically-viable study exist to contradict the APAs published statement that not a single study has found children of lesbian or gay parents to be disadvantaged? Summary Response to Question 4: A study designed by a methodology expert (Sarantakos, 1996), did find several significant differences between intact and homosexual families in eight areas. Sarantakos concluded, Overall, the study has shown that children of married couples are more likely to do well at school in academic and social terms, than children of cohabiting and homosexual couples.100 This study, however, was dismissed in the APA Brief by a footnote101 and is disregarded in APA claims. Question 5: What types of outcomes have been investigated? Summary Response to Question 5: The present paper documents that while a score of papers on same-sex parenting address gender and related issues, the same claim cannot be made for myriad variables of critical societal and economic concern, including: (a) health, mortality, and suicide risks, (b) drug and alcohol abuse, (c) criminality and incarceration, (d) intergenerational poverty, (e) college education and/or labor force contribution, (f) early sexual activity and early childbearing, and (g) eventual divorce as adults. Indeed, these critical issues received almost no attention in the peerreviewed scholarship on same-sex parenting that undergirded the APA Briefs 2005 claim. Question 6: What do we know about the long-term outcomes of children of lesbian and gay parents? Summary Response to Question 6: The reader is reminded that most of the outcomes highlighted in Question 5 are not optimally observable until late adolescence and early to mid-adulthood. The empirical answer to the question regarding what is known about the long-term (i.e., adult) outcomes of lesbian and gay parenting is that we have no empirical basis for respondingno large-scale, peer-reviewed study has followed same-sex parented children across time and into mid-adulthood.
100 101
Sarantakos, 1996, p. 30 APA Brief (Patterson), 2005, p. 6, footnote 1
21
Question 7: Have the studies in this area committed the Type II error? Summary Response to Question 7: Same-sex parenting studies have not employed large enough samples to overcome the possibility, or probability, of the Type II error, thereby substantially increasing [the] likelihood of failing to find differences. 102 Further, significant critiques provided by social research methodology specialists Lerner and Nagai (2001) were not cited in the 2005 APA Brief.103 If the conclusion to be drawn is that there are no parenting differences between same-sex and heterosexual couples, such a conclusion cannot be drawn at the present time, given this problem with the Type II error, pervasive in the same-sex parenting literature. The APA Publication Manual urges researchers to take seriously the statistical power considerations and routinely provide evidence of adequate statistical power and effect sizes, however, a review of the 59 articles cited in the APA Brief (pp. 23-45), revealed that only a few complied. Further examination indicated that of the comparison studies, zero studies reached the minimum requirement of 393 to detect a small effect size. Indeed, only two comparison studies reached half of the minimum requirement. Conclusion We now return to the overarching question of this paper: Are we witnessing the emergence of a new family form that (unlike cohabiting, divorced, or single-parent families) provides a context for children that is equivalent to the intact family? Even after an extensive reading of the same-sex parenting literature, the author cannot offer a high confidence, data-based yes or no response to this question. The data are insufficient to support a strong claim either way, and thus insufficient to produce a definitive binary statement. Such a statement would not be grounded in science. Representative, largesample studies are neededmany of them, including high quality longitudinal studies (i.e., Table B). Although some same-sex opponents have made egregious overstatements104 and, conversely, some same-sex parenting researchers seem to have implicitly contended for an exceptionally clear105 verdict of no difference between same-sex and heterosexual parents since 1992, a closer examination leads to the conclusion that strong assertions, including those made by the APA, were not empirically warranted. The scientific conclusions in this domain will be clearer as researchers: (a) move from small convenience samples to larger nationally representative samples, (b) increasingly examine critical societal and economic concerns that emerge during adolescence and adulthood, (c) include more diverse same-sex families (e.g., gay fathers, racial minorities, and those without middle-high socioeconomic status), (d) include intact, marriage-based heterosexual families as comparison groups, and (e) acknowledge and respond to experts methodological critiques in the effort to refine and add validity and rigor to findings. In connection with this latter point, it is particularly vital that statistical power no longer be ignored. Taking these steps will help lead the field towards more
102 103
Anderssen et al., 2002; Lerner & Nagai, 2001; Stacey & Biblarz, 2001 Lerner & Nagai, 2001; Schumm, 2004 104 As indicated by Shiller (2007) 105 Patterson, 1992
22
nuanced and scientifically informed responses to significant questions affecting families and children.
23
Author and Year
GayLes N
55par;82chl 101 33 33 100 100 18 30 30 55 67 0 15 55 154 156 150 74 76 27 39 N/A 25 30 37 50par;56chl 23 20 18 415 N/A 20 47 couples 22
Hetero N
0 0 33 33 100 100 0 68 16 25 44 0 15 25 0 0 0 0 0 27 134 N/A 21 83 0 40par;48chl 16 20 18 0 N/A 20 0 22
Stat Used
T-test/Chi T-test/Chi T-test T-test MANOVA MANOVA Qualitativ e ANOVA Various ANOVA ANOVA MANOVA MANOVA T-test/Chi Descript. Descript. Descript. Descript. Reg. T-test/Chi Various N/A Pearson MANOVA/r Descript. Various ANOVA ANOVA T-test Various F Descript. MANOVA Chi-Sqr
Cohen N
393 393 393 393 393 393 N/A 393 393 393 393 393 393 393 N/A N/A N/A N/A 390 393 393 N/A 783 393 N/A 390 393 393 393 N/A 393 N/A N/A 785
Stat Power
N/A N/A No No No No N/A No No Reported No Almost No Reported N/A N/A N/A N/A N/A No No N/A Reported No. N/A No No No No No N/A No N/A No
Outcome Studied
Hetero Compar Group

None None Fathers Fathers Families Families None DI/Non-DI Couples DI Couples DI Couples Adoptiv e Parents N/A Married Couples Parents None None None None None Single Mother Families Couples & Singles
Bailey et al., 1995 Barrett & Tasker, 2001 Bigner & Jacobsen, 1989a Bigner & Jacobsen, 1989b Bos et al. 2003 Bos et al., 2004 Bozett, 1980 Brewaeys et al., 1997 Chan, Brooks, et al., 1998 Chan, Raboy, et al., 1998 Ciano-Boyce & Shelley-Sireci, 2002 Crawford et al., 1999 Flaks et al., 1995 Fulcher et al., 2002 Gartrell et al., 1996 Gartrell et al., 1999 Gartrell et al., 2000 Gartrell et al., 2005 Gershon et al., 1999 Golombok et al., 1983 Golombok et al., 2003 Golombok & Rust, 1993 Golombok & Tasker, 1996 Golombok et al., 1997 Green, 1978 Green et al., 1986 Harris & Turner, 1986 Hoeffer, 1981 Huggins, 1989 Johnson & Connor, 2002 King & Black, 1999 Kirkpatrick et al., 1981 Koepke et al., 1992 Kweskin & Cook, 1982
Sex ual Orientation Child Responses to a Gay Parent Parents Reports of Values of Children Parent Reports of Parent Behav ior Parental Motiv es and Desires Parent Reports of Couple Relations Father Disclosure of Homosex uality Emotional/Gender Dev elopment Div ision of Labor/ChildAdj Psy chosocial Adjustment Div ision of Child Care 388 Psy chologists' Attitudes Cognitiv e/Behav ioral/Parenting DI/Adult-Child Relationships Propspectiv e Parent Reports Reports on Parenting Issues Reports on Parenting Issues Health, School/Education Adolescent coping Psy chosex ual Dev elopment Socioemotional Dev ./Relations Reliability Testing of a Pre-School Gender Inv entory Sex ual Orientation Parent-Child Interactions Sex ual Identity Sex ual Identity /Social Relations Sex Roles/Relationship with Child Sex -role Behav ior Self-Esteem of Adolescent Children Parenting Beliefs/Div ision of Labor/etc. 338 College Students' Perceptions Gender Dev elopment Relationship quality Sex -Role Behav ior
Children of Single Mothers Couples & Singles None Single Mothers Single Moth. & Fath. Single Mothers Div orced Mothers None N/A Single Mothers None Single Mothers
24
Lewis, 1980 Lott-Whitehead & Tully, 1993 Lyons, 1983 McLeod et al., 1999 Miller, 1979 Miller et al., 1981 Morris et al., 2002 Mucklow & Phelan, 1979 OConnell, 1993 Pagelow, 1980 Patterson, 1994 Patterson, 1995 Patterson, 2001 Patterson et al., 1998 Rand, Graham, & Rawlings, 1982 Sarantakos, 1996 Siegenthaler & Bigner, 2000 Steckel, 1987 Sullivan, 1996 Tasker & Golombok, 1995 Tasker & Golombok, 1997 Tasker & Golombok, 1998 Vanfraussen et al., 2003 Wainwright et al., 2004 Wright, 1998
21 45 43 0 54 34 2,431 34 11 20 66 52 66 66 25 58 25 (Rev iew ) 34 couples 25 27 15 24 44 5
0 0 37 0 0 47 0 47 0 23 0 0 0 0 0 116 26 N/A 0 21 27 84 24 44 0
Qualitativ e Descriptiv e Descriptiv e Mult. Regr. Qualitativ e Chi-Sqr MANCOVA Chi-Sqr Qualitativ e Qual/Descr. T-test T-test/Chi/F Various Various Correlations F-test T-test N/A Qualitativ e Pearson Various ANCOVA/Chi ANOVA Various Qualitativ e
N/A N/A N/A N/A N/A 785 N/A 785 N/A N/A 393 393 393 393 783 393 393 N/A N/A 783 393 785 393 393 N/A
N/A N/A No No N/A No N/A No N/A N/A No No No No No N/A No No N/A No Reported N/A No No N/A
Child Response to M. Disclosure Adult Reports of Impacts on Children Adult Self-Reports 151 College Student Reports Father Behav ior & F-Child Bond Mother Role/Home Env ironment Adult Reports on "Coming Out" Behav ior and Self-Concept Social and Sex ual Identity Problems and Coping Social/Behavioral/Sex ual Identity Div ision of Labor/Child Adjustment Maternal Mental Health/Child Adjus. Contact w /Grandparents & Adults Mothers' Psy chological Health Children's Educational/Social Outcomes Mothers' Value of Children Psy chosocial Dev elopment of Children Div ision of Labor Psy chosocial/Sex ual Orientation Psy chological Outcomes/Family Rel. Work and Family Life Donor Insemination/Family Funct. Psy chosocial/School/Romantic Family Issues/Processes/Meaning
None None Div orced Mothers N/A None Mothers None Married Mothers None Single Mothers Av ailable Norms None None None None Married/Non-married Mothers None None Single Mothers Single Mothers DI & NC Couples Families Couples None
N/A = Not Applicable (e.g., In connection with Statistical Power, qualitative studies and studies without heterosexual comparison groups are coded as N/A).
25
Table B: Brief Overview of Intact/Divorce/Step/Single Family Studies

(N): Probability: Comp Grp: Long: Key: Number of reported participants Is the study based on a Probability Sample? Is a probability sample used as a comparison group? Does the study employ measurements across time? ! = Yes; X = No
(N) Amato, 1991 Aquilino, 1994 Booth & Amato, 2001 Brown, 2004106 Chase-Lansdale et al., 1995107 Cherlin et al., 1998108 Ellis et al. 2003 Harper & McLanahan, 2004109 Hetherington & Kelly, 2002110 Jekielek, 1998 Lichter et al., 2003111 Manning & Lamb, 2003 McLanahan & Sandefur, 1994 (based on 4 data sets): PSID112 NLSY113 HSBS114 NSFH115 Mitchell et al., 2009117 Nock, 1998118 Page & Stevens, 2005119 Rickel & Langer, 1985 9,643 4,516 629 35,938 17,414 11,759 762 2,846 1,400 1,640 7,665 13,231
Probability ! ! ! ! ! ! ! ! ! ! ! !
Comp Grp ! ! ! ! ! ! ! ! ! ! ! !
Long ! ! ! X ! ! ! ! ! ! X X
2,900 5,246 10,400 13,017116 4,663 3,604 2,023 1,000+
! ! ! ! ! ! ! !
! ! ! ! ! ! ! !
! ! ! ! ! ! ! !
106 107
National Survey of Americas Families (NSAF) United Kingdom study and sample 108 United Kingdom study and sample 109 National Longitudinal Survey of Young Men and Women (NLSY) 110 Virginia Longitudinal Study (VLS) 111 National Survey of Family Growth (NSFG) 112 Panel Study of Income Dynamics (PSID) 113 National Longitudinal Survey of Young Men and Women (NLSY) 114 The High School and Beyond Study (HSBS) 115 National Survey of Families and Households (NSFH) 116 This is the total original sample. The sub-sample is unlisted but is likely smaller. 117 National Longitudinal Study of Adolescent Health (Add Health) 118 National Longitudinal Survey of Young Men and Women (NLSY) 119 Panel Study of Income Dynamics (PSID)
26
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Case3:10-cv-00257-JSW Document174

KAREN GOLINSKI, Plaintiff, v.

UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, et al.,

PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

DOMA Does Not Discriminate on the Basis of Sex.................17

DOMA Does Not Implicate a Fundamental Right ...................18

21 1 U.S.C. 7 ................................................................................................................1 22 28 U.S.C. 1738 ........................................................................................................25 23

DOMA Promotes Responsible Procreation.

1 2 3 4 5 6 7 8 October 14, 2011 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Handi Lui, et al. V. Eric H. Holder, U.S. Attorney General, et al.

Present: The Honorable Paul M. Cruz Deputy Clerk

Attorneys Present for Plaintiffs: N/A Proceedings:

Attorneys Present for Defendants: N/A

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Handi Lui, et al. V. Eric H. Holder, U.S. Attorney General, et al.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Handi Lui, et al. V. Eric H. Holder, U.S. Attorney General, et al.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Handi Lui, et al. V. Eric H. Holder, U.S. Attorney General, et al.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Handi Lui, et al. V. Eric H. Holder, U.S. Attorney General, et al.

KEYWORDS: same-sex parenting, lesbian, gay

Patterson, 1992, p. 1029 Patterson, 2000, p. 1064

Married Married Married Married Married

5.5 5.5 7.6 5.9 5.0

School/Learning Attitude: Parent-School Relationships: Support with Homework: Parental Aspirations:

Married Married Married Married

7.5, Cohabiting 7.5, Cohabiting 7.0, Cohabiting 8.1, Cohabiting

6.8, Homosexual 6.0, Homosexual 6.5, Homosexual 7.4, Homosexual

6.5 5.0 5.5 6.551

Wilcox et al. 2011, p.11

Sarantakos, 1996, p. 30 APA Brief (Patterson), 2005, p. 6, footnote 1

Author and Year

Hetero Compar Group

21 45 43 0 54 34 2,431 34 11 20 66 52 66 66 25 58 25 (Rev iew ) 34 couples 25 27 15 24 44 5

Table B: Brief Overview of Intact/Divorce/Step/Single Family Studies

2,900 5,246 10,400 13,017116 4,663 3,604 2,023 1,000+

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