Last night, on the eve of oral argument today in Kitchen v. Herbert, the Tenth Circuit challenge to Utah’s ban on same-sex marriage, the state filed an unusual letter distancing itself from a controversial study that questioned the parenting abilities of gay men and lesbians in comparison to married biological fathers and mothers. The state had cited the study, produced by University of Texas sociologist Mark Regnerus, in two footnotes in its opening brief to the court submitted earlier this year. In light of what Utah called “recent press reports and analysis” of the Regnerus paper (presumably including a federal court decision dismissing Regnerus’s views as “not worthy of serious consideration”), the state thought it important to “supplement” its initial brief in two respects.
First, Utah said that its “principal concern” in the same-sex marriage litigation is that allowing gay couples to wed might harm “the children of heterosexual parents.” (emphasis original) In other words, the state is not claiming that allowing same-sex marriage might somehow harm the children of gay couples. The comparison of outcomes for children in same-sex couple households and opposite-sex couple households, argued the state, “has little if any bearing on” the welfare of children being raised by opposite-sex couples “given that being raised in a same-sex household would normally not be one of the alternatives available to children of heterosexual parents.” The unstated corollary is that being raised by a married biological mother and father would not normally be one of the alternatives available to children of same-sex parents.
This is a reasonable concession by Utah, and echoes a point that same-sex-marriage advocates have been making for years. If gay couples were asking for the right to snatch away the children of married mothers and fathers then a comparison of the two family forms would be relevant in the debate. But that’s obviously not what they’re asking for; they want only the protection of marriage for their own families. The welfare of children being raised by same-sex couples, apparently, is not something that concerns Utah in this litigation.
The state, of course, continues to make the bold claim that same-sex marriage might eventually hurt children raised in heterosexual homes. That’s a point worth considering, and I’m sure gay-marriage advocates will be eager to contest it at oral argument today. But Utah’s letter has at least done us the service of beginning to clear up years of constitutional confusion on this issue. Even under the most deferential form of judicial review, it’s hard to see the connection between Regnerus’s findings and the legitimate state interest in the welfare of the vast majority of children being raised in the households of heterosexual parents.
The second clarification in Utah’s letter frankly acknowledges the methodological limitations and inconclusive nature of Regnerus’s paper, a point that critics in the field of sociology have been making since the paper first appeared:
The Regnerus study did not examine as its sole focus the outcomes of children raised in same-sex households but, because of sample limitations inherent in the field of study at this point, examined primarily children who acknowledged having a parent who had engaged in a same-sex relationship. Thus, the Regnerus study cannot be viewed as conclusively establishing that raising a child in a same-sex household produces outcomes that are inferior to those produced by man-woman parenting arrangements.
In the view of the lawyers for Utah, one of the most socially conservative states in the country, the leading sociologist in the nation opposing same-sex marriage has produced a work that (1) has no bearing on the question of same-sex marriage and that (2) cannot be said to establish the irrelevant claim it makes. This is not a hopeful development for those who believed Regnerus’s work would show at last the harm that might be done by allowing same-sex couples to wed. The support for that contention, if there is any, must lie elsewhere.