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Apr 10 2013

Conservative Justices Ignore Trial Record on Gay Parenting

The LA Times has an article about the claims by three conservative justices during oral argument in the marriage equality cases that same-sex parenting is some brand new phenomenon and there is disagreement on whether it’s good for children. And the article notes that those justices are ignoring the findings of the lower court:

Evan Wolfson, president of Freedom to Marry, said the questions from Scalia and other justices ignored the testimony in the initial trial of Proposition 8, California’s 2008 ban on same-sex marriage.

“That was the most astonishing aspect of the entire two days [of Supreme Court arguments], given the trial record in this case,” he said. “There was an enormous amount of evidence put in the record that gay parents are fit and loving and their children are doing well.”

Michael Lamb, a developmental psychologist at Cambridge University, testified at the Proposition 8 trial that research had shown children of same-sex parents were as likely to be well-adjusted as those of heterosexual parents. Nearly 40,000 children in California are being raised by gay couples.

When a case is appealed, both the appeals court and the Supreme Court generally accept the findings of fact made by the district court. They concern themselves with questions of law, not fact, and they usually show great deference to the district court judge’s factual determinations because they actually get to see the evidence presented and hear the witnesses testify and be cross-examined. And in the Prop 8 case, the district judge concluded that the evidence says same-sex parents are no different from opposite-sex parents in terms of outcomes for the children.

Dozens of studies now support that conclusion. And now we see the whole purpose behind that Regnerus study from last year, to provide some counter-example to all those studies. But the Regnerus study is a bad joke for all the reasons that have been pointed out. It simply does not compare similar families, it compares broken families with gay parents to stable and intact families with straight parents. But now we see why they were in such a hurry to get that study out, to provide some thin veneer of credibility to those justices who oppose marriage equality, allowing them to cite a “recent study” that concludes otherwise while ignoring the obvious methodological problems with it.

13 comments

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  1. 1
    Gregory in Seattle

    I don’t know the protocol of the US Supreme Court, but couldn’t someone have told Scalia et al., “You are either woefully misinformed or flat-out lying, and here is why”?

  2. 2
    tbp1

    Life is so much easier when you start with the conclusions, rather than the evidence.

  3. 3
    Modusoperandi

    Was the court always like this, or were people not paying attention before?

  4. 4
    anubisprime

    Not really unexpected that dubious if not outright balderdash that supports the anti-gay argument would be grasped by the conservatives in the supreme bench…they are looking for a way to punt this hot potato into the long grass…any means and a straw is as good a a lifebelt when between a delusion and a reality check.

  5. 5
    marcus

    Moduoperandi @ 3 IMNSHFO Scalia and Thomas are conservative ideologues with no respect for the rule of law, precedent or the intent of the Constitution (read individual liberty and the limitation of the state) . They have demonstrated this time and time again.

  6. 6
    Ray Ingles

    But now we see why they were in such a hurry to get that study out, to provide some thin veneer of credibility to those justices who oppose marriage equality, allowing them to cite a “recent study” that concludes otherwise while ignoring the obvious methodological problems with it.

    Is there evidence that the Regnerus study itself was rushed? Or was it simply rapidly seized upon? In other words, is there evidence it was actually designed and implemented in response to Proposition 8, or was it simply a bad study that was opportunistically appropriated and publicized?

    (Note, not questioning that the study itself was terrible. Just trying to tease out the causality.)

  7. 7
    Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    SCOTUS is responsible for the management of the lower courts.

    I think the more telling response would be: If you don’t believe that your triers of fact are competent, why haven’t you taken action to bring triers of fact up to a standard at which they are able to understand expert testimony?

    If you can’t so manage the federal courts, you could always retire…

  8. 8
    abb3w

    @3, Modusoperandi:

    Was the court always like this, or were people not paying attention before?

    There’s long been occasional problems with SCOTUS justices going outside the material presented (sometimes by liberal justices, as well), and dragging in something of their own liking while writing the opinion, which the appelant or respondent doesn’t even get to try to rebut. This, however, seems a bit more blatant, in that they seem to be ignoring/reversing the findings of fact from the lower court verdicts during oral argument without even having the parties address them.

  9. 9
    democommie

    When Ben P. stated in an earlier thread:

    “I think Anubis prime is probably right. It’s not that they don’t truly get it, it’s more that they just don’t care. They think promoting their religion is of paramount importance and whatever separation of church and state means, it just can’t mean that they aren’t allowed to promote Jesus at every turn.

    Although I’m presuming a bit here, I think the opposing sides on gun control make a good counter. 2nd Amendment caselaw is not well developed compared to freedom of religion caselaw, but post Heller it’s pretty clear that the 2nd Amendment protects an individual right to bear arms. The precise contours of that right aren’t yet developed though.

    My reply was:

    “And post-Dred Scott, it was pretty clear that owning people was perfectly okay with the constitution.

    Bullshit.”

    Scalia, Thomas and the rest of the majority in D.C. v Heller & McDonald v Chicago looked to precedent and text if it suited them and otherwise ignored both to write an opinion that satisfied their biased view on gun control or lack thereof. That was primarily due, I think, to their corporatist and conservative/conservative libertarian leanings.

    In the instant case with six catholic justices on the SCotUS it will be interesting to see what sort of contortions they go through to avoid making a just decision that might get them excommunicated, follow the lead of Scalia and Thomas and simply lie from the get-go and make an unjust ruling or simply punt the fucker.

    As I tend to ask a lot these days, might we just drop the idea that Scalia is a well inforned and prudent jurist? He’s a fucking ideologue and an asshole. He may well KNOW the law, he surer than fuck doesn’t apply that knowledge if it goes against his “feelings”.

  10. 10
    matty1

    And post-Dred Scott, it was pretty clear that owning people was perfectly okay with the constitution.

    1. I’d say it was at least 3/5ths clear before that.

    2. Being constitutional then doesn’t mean it still is now since there have been relevant amendments

    3. The law is not the same thing as morality. It is entirely possible for a judge to be factually correct that a constitution allows slavery yet slavery still be horribly wrong to the extent it would be better to ignore the letter of the law than uphold it.

  11. 11
    jameshanley

    @Marcus
    Scalia and Thomas are conservative ideologues with no respect for the rule of law, precedent or the intent of the Constitution (read individual liberty and the limitation of the state) .

    Yeah, that’s why Scalia wrote the opinion upholding 4th Amendment rights in Florida v. Jardines last week.

    Scalia’s generally an obnoxious ideologue, but your oversimplification of his positions suggests you’re not actually any better. He ignored relevant facts in the same-sex marriage cases, and you ignored relevant facts about him. Left, right or center, you ideologues all look the same.

  12. 12
    democommie

    James Hanley:

    Being an ideologue on a blog, or even in some elected position is not quite the same thing as being an idelogue on the SCotUS. Scalia’s got the stopped clock thing down but that’s about it–and most days I doubt that he’s even right, twice.

    @ Matty1:

    I hope I was not seen as being in favor of Dred Scott. I think it was a ruling that was made by a craven SCotUS or, worse, one that had some interest in retaining slavery as a U.S. institution.

  13. 13
    baal

    Calling Scalia a fucktwit and an odious slug of a human being is not ideology on my part by my considered opinion on reviewing his cases and public statements for about a decade now.

    Please note that Scalia doesn’t like privacy invasions if you can convince him that there is a chance it’ll impact him directly. So dogs sniffing private houses is out but rental units is in. I leave it to you to apply this heuristic across his opinions on the 4th amendment.

    The man does not create rules of law of general applicability. He instead checks the fiscal and likely social impacts first and back fills as necessary with his imagined ‘original’ past. He does have minor deviations from this rule but only for his 1) personal hide or 2) things the oligarchs couldn’t care less about.

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