DETROIT — The legal battle over same-sex marriage moves Tuesday to a federal courtroom in Michigan where, for the first time since California’s famed Prop 8 case, a judge is expected to allow gay parenthood itself to be put on trial.
Federal Judge Bernard Friedman is weighing whether Michigan’s voter-approved ban on same-sex marriage is constitutional. The case started out with a lesbian couple suing the state to permit both women to adopt the other’s children; Friedman widened it and in doing so has given court watchers a sense he’s sympathetic to the couple’s argument.
Still, he plans to hear from witnesses from both sides, one of which contends that recent research shows that children are not affected by their parents’ sexual orientation, while the other maintains that they fare worse than children raised by heterosexual couples.
While such material has been submitted in written briefs to judges in other states weighing the issue, Friedman is the first to hold a trial and allow lawyers to debate the question since 2010, when Judge Vaughn Walker found California’s ban on same-sex marriage unconstitutional. That case was appealed to the U.S. Supreme Court, which ruled 5-4 to uphold Walker’s ruling.
Among the studies to be debated in court for the first time is one by University of Texas at Austin sociologist Mark Regnerus, published by the peer-reviewed journal Social Science Research in 2012, that found that adult children raised by gay couples were psychologically harmed by the experience.
Regnerus, who declined to be interviewed Monday, is expected to testify and be cross-examined at the trial, which could last as long as eight days.
The $785,000 study was funded largely by a conservative Washington, D.C., think tank, the Heritage Foundation, and has been harshly criticized by other academics and by professional associations. The American Academy of Pediatrics asserted in a 2013 report that an analysis of children in 11 nations that permit same-sex marriage showed “no evidence children in these countries have experienced difficulties as a result” of their parents’ sexual orientation.
“Most academic experts believe same-sex parents are just as capable parents as opposite-sex couples, but of course, most academics are sympathetic to gay marriage,” Harvard Law professor Michael Klarman said Monday via e-mail. “There are a few conservative academics who have purported to show that children do better raised by opposite-sex couples. But the studies can’t possibly be very persuasive because until very recently, children of same-sex couples were subject to all sorts of stigmas and stresses that might explain any differential in their levels of adjustment and achievement.”
Recent studies or reports in The Journal of Family Psychology and from the 14,000-member American Sociological Association agreed.
“If any conclusion can be reached from Regnerus’ study, it is that family stability is predictive of child well-being,” the ASA report said.
The Michigan case is different in part because Gov. Rick Snyder and Attorney General Bill Schuette, both Republicans, are defending their state’s ban. In other similar cases, including those in California, Virginia, Oregon and Nevada, the state chose not to offer a defense. Last month, in fact, Nevada’s Republican Gov. Brian Sandoval overruled his Attorney General Catherine Cortez Masto, a Democrat, who had filed a defense of the state’s gay marriage ban. Sandoval ordered Masto to withdraw the brief, saying he believed the Supreme Court rulings in June meant the ban is probably indefensible in court.
Same-sex marriage is legal in 17 states and the District of Columbia. The Williams Institute, a UCLA think tank focused on demographic research of gays and lesbians, estimates 6 million people have a gay parent and that Detroit has the third-highest proportion among major cities of same-sex couples raising children. Salt Lake City and Virginia Beach, Va., were higher, and Memphis, Tenn., and San Antonio tied Detroit.
The matter remains contentious. On Monday a coalition of Michigan clergy held a rally in support of limiting marriage to one man and one woman. The Rev. Lennell Caldwell of the First Baptist World Changers Church in Detroit said the group had the support of more than 100 pastors and Christian leaders around the state “who stand by both our Michigan constitution and our Judeo-Christian values.”
“We believe that marriage between one man and one woman creates the best possible environment for the health and wellness of children," he said in a statement. “While we agree that every American has a right to choose to live as he or she wants, no one is entitled to redefine marriage.”
While 58.6 percent of Michigan voters approved the ban on same-sex marriage when it appeared on the 2004 ballot, public opinion appears to have shifted dramatically during the intervening decade. A 2012 Michigan State University poll and one conducted in 2013 by a private polling firm found more than 56 percent of the state’s residents supported marriage equality.