January 25, 2013 | by Chris Johnson
Anti-gay briefs ‘mischaracterized’ study
Paul Clement, gay news, Washington Blade

Former U.S. solicitor general Paul Clement filed the anti-gay DOMA brief (Public domain photo)

Attorneys who submitted anti-gay briefs to the Supreme Court in favor of California’s Proposition 8 and the Defense of Marriage Act are continuing the mischaracterization of a 2002 study on child development to suggest same-sex parents are less fit than opposite-sex parents, according to the non-profit that produced the study.

The 2002 study — which is is referenced in both the DOMA and Prop 8 briefs filed on Tuesday — is titled “Marriage from a Child’s Perspective: How Does Family Structure Affect Children and What Can We Do About It?” and was produced by the D.C.-based non-profit Child Trends, an organization that seeks to improve the lives of children by through research.

Carol Emig, president of Child Trends, said in a statement to the Washington Blade that attorneys who wrote these briefs misconstrued the group’s study in arguments against same-sex marriage because the findings say nothing about the quality of life for children raised by same-sex parents.

“The Child Trends brief in question summarizes research conducted in 2002, when same-sex parents were not identified in large national surveys,” Emig said. “Therefore, no conclusions can be drawn from this research about the well-being of children raised by same-sex parents.”

Emig added, “We have pointed this out repeatedly, yet to our dismay we continue to see our 2002 research mischaracterized by some opponents of same-sex marriage.”

Child Trends’ study concludes, among other things, that “the family structure that helps children the most is a family headed by two biological parents.” The study makes references to children raised by single parents and stepparents, but no explicit reference to same-sex parents is found in the report.

In the DOMA brief, signed by attorneys House General Counsel Kerry Kircher and former U.S. solicitor general Paul Clement, the Child Trends study is cited on page 47 as part of an argument that having DOMA on the books encourages childrearing by biological parents.

“Of course, only relationships between opposite-sex couples can result in children being raised by both of their biological parents,” the brief adds. “Therefore, when government offers special encouragement and support for relationships that can result in mothers and fathers jointly raising their biological children, it rationally furthers its legitimate interest in promoting this type of family structure in a way that extending similar regulation to other relationships would not.”

In the Prop 8 brief, signed by lead attorneys with ProtectMarriage.com, Andrew Pugno and Charles Cooper, the Child Trends study is referenced on page 37 as “a leading survey of social science research” under the argument that Proposition 8 furthers responsible procreation and child bearing.

“Because same-sex relationships cannot naturally produce offspring, they do not implicate the State’s interest in responsible procreation and childrearing in the same way that opposite-sex relationships do,” the brief states.

Attorneys affiliated with ProtectMarriage.com and the House Republican-led Bipartisan Legal Advisory Group didn’t respond to the Blade’s request for comment on the apparent misuse of the study in their legal briefs. The DOMA brief was filed in the case of Windsor v. United States and the Prop 8 brief was filed in the case of Hollingsworth v. Perry.

The reference to the study isn’t the first time anti-gay forces have referenced that study as part of their argument against same-sex marriage, nor is this the first time that Child Trends has objected to use of its research for anti-gay purposes.

In his 136-page ruling against Prop 8 issued in 2010, U.S. District Judge Vaughn Walker tore into David Blankenhorn, president of the Institute for American Values, for relying on the Child Trends study among others during testimony as evidence that parenting by same-sex parents is inadequate.

“Blankenhorn’s conclusion that married biological parents provide a better family form than married non-biological parents is not supported by the evidence on which he relied because the evidence does not, and does not claim to, compare biological to non-biological parents,” Walker writes.

David Blankenhorn, also citied the Child Trends brief as part of a 2008 essay titled ”Gay marriage deprives children,” in September 2008 when Proposition 8 was headed for the ballot. In a letter to the editor, Emig also objected to the use of her group’s study for that argument.

“In research studies, the number of gay parents, even in large national surveys, has been too small to allow for separate analyses,” Emig wrote. “What is needed is a large-scale study of a representative sample of same-sex couples. Clearly, a better understanding of the diversity, strengths, and challenges faced by varied types of families is needed to better inform debates such as this one.”

While opposing marriage equality at the time, Blankenhorn has since reversed his views on same-sex marriage and now accepts it.

Similar objections were voiced in 2012 by Child Trends in the Kennebec Journal when Protect Marriage Maine brought up the study during the campaign to legalize same-sex marriage at the ballot in Maine and in the Minneapolis Star Tribune when Minnesota for Marriage cited the study as a reason for passing the failed anti-gay marriage amendment there.

Jon Davidson, legal director at Lambda Legal, said the citing of this research in the Prop 8 and DOMA briefs is “dishonest, shameful, and, in my view, unprofessional.”

“These misrepresentations have not only been pointed out by the researchers before, but have been repeatedly debunked by the party and amicus briefs in these cases — and in expert testimony at trial in Perry and in expert witness declarations in Windsor — yet the attorneys fighting against marriage equality continue to baldly misrepresent the actual findings of this and the other research on which they purport to rely,” Davidson said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

13 Comments
  • So, this brief states "having DOMA on the books encourages childrearing by biological parents". I'm loss for words, kind words.

  • Family researchers include adoptive parents in the term “biological parents” when the child was adopted in the first two years of its life. In Perry v. Schwazzeneger (the Prop 8 case), the anti-gay side intended to use Loren Marks as an expert witness. But, Marks misused the term “biological parent” and under withering cross-examination admitted that family researchers do apply the term “biological parent” to adoptive parents. The anti-gay side then withdrew Marks as an expert witness.

  • Family researchers include adoptive parents in the term "biological parents" when the child was adopted in the first two years of its life. In Perry v. Schwazzeneger (the Prop 8 case), the anti-gay side intended to use Loren Marks as an expert witness. But, Marks misused the term "biological parent" and under withering cross-examination admitted that family researchers do apply the term "biological parent" to adoptive parents. The anti-gay side then withdrew Marks as an expert witness.

  • Lets just hope that this is pointed out AGAIN in front of the SC and they have a chance to see for themselves what a bunch of liars looks like. Why do they think they can get something like this past the SC?
    This is going to be the Prop 8 trial all over again. I just hope we get to watch this time and not have to wait for the play!

  • Can Child Trends file an amicus brief disavowing the use of their study? Is it just up to the parties to note this in a reply brief?

  • Did the researchers file an amicus brief explaining the lies of the Republicans?

  • The argument of the anti-gay marriage brief is utterly wrong. Aside from the fact that it is based on a lie (the misuse of a study which says NOTHING about gay parenting), it is both overly broad and underinclusive – two big constitutional no-no’s.

    Overly broad because it allows “straight” couples to marry even if they are infertile, and therefore no different from gay couples. (Neither can “naturally produce offspring”.)

    Underinclusive because while it allows one set of couples (heterosexuals) to have children by artificial means (even if the children will only be the biological “offspring” of one of the “parents”, or possibly even none), it would deny marriage to gay couples IN THE EXACT SAME SITUATION.

    And, of course, it doesn’t deal with the issue of adoption, let alone those who don’t procreate, and don’t wish to.

    In short, the argument has “merit” (if at all) ONLY if we made “natural procreation” a REQUIREMENT for marriage, declared all marriages void between persons incapable of it, and annulled all marriages where no procreation took place. That will never happen, of course, for obvious political reasons.

  • Anthony Noccolino

    From everything I have read, the court could rule one of three way on this issue:
    1) Rule in favor of prop 8 and keep the law as is.
    2) Rule against prop 8 with a narrow ruling that say it is illegal in CA to keep marriage licenses away from gay people.
    3) Rule that all anti-gay marriage amendments across the nation are invalid and that Gays and Lesbians do a constitutional right to marry and it is legal to do so nationwide.

  • Rex Equality Toltschin

    Typical Republicans – Being Truthful, Not One Of Their Values. Lying to further their hateful agenda always more their style.

  • Our children receive most of their education and upbringing from homosexual couples. I feel discrimination that causes such homophobia is not giving our children a fair chance. When I look back on those whose influence had the most impact on my reaching adulthood, homosexuality and homosexual couples were the inspiration that helped motivate my behavior.

  • As the S.C. reads this brief it must be wondering just how gullible Kerry Kircher and Paul Clement believe they truly are. By now the Child Trends research has been read by the S.C. and the context of these decisive findings seen for what they are: lies. Kircher and Clement are grasping for straws using the Child Trends study and if that’s the best they can do they’re going to lose the case.

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