On Thursday the 10th Circuit Court of Appeals heard oral arguments in the appeal of a district court decision striking down Utah’s ban on same-sex marriage. In the wake of the Michigan case, they sent a letter to the court distancing itself from Mark Regnerus’ terrible study, which they had used at the trial level. That letter said, in part:
First, we wish to emphasize the very limited relevance to this case of the comparison addressed by Professor Regnerus. As the State’s briefing makes clear, the State’s principal concern is the potential long-term impact of a redefinition of marriage on the children of heterosexual parents. The debate over man-woman versus same-sex parenting has little if any bearing on that issue, given that being raised in a same-sex household would normally not be one of the alternatives available to children of heterosexual parents.
Second, on the limited issue addressed by the Regnerus study, the State wishes to be clear about what that study (in the State’s view) does and does not establish. 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.
Weirdly, the state is making its argument largely on the basis of protecting children of straight families, not gay ones. And to make things even more bizarre, they’ve actually argued that banning same-sex marriage protects diversity in parenting:
Although they attempt to address the first proposition — i.e., that children generally do better in various ways when raised by a mother and father, at least one of whom (or preferably both) is a biological parent — Respondents attack a straw man: They mischaracterize this point as an argument that “same-sex parents are inferior to opposite-sex parents.” That is not the point: The State does not contend that the individual parents in same-sex couples are somehow “inferior” as parents to the individual parents who are involved in married, mother-father parenting. The point, rather, is that the combination of male and female parents is likely to draw from the strengths of both genders in ways that cannot occur with any combination of two men or two women, and that this gendered, mother-father parenting model provides important benefits to children.
That this would be so is hardly surprising. Society has long recognized that diversity in education brings a host of benefits to students. If that is true in education, why not in parenting? At a minimum, the State and its people could rationally conclude that gender diversity — i.e., complementarity — in parenting is likely to be beneficial to children. And the State and its people could therefore rationally decide to encourage such diversity by limiting the coveted status of “marriage” to man-woman unions.
This is a terrible argument one every imaginable level. First, there isn’t even an attempt to explain why banning same-sex marriage will do anything at all to harm families headed by straight people. Do they think that if they ban same-sex marriage, all the gay people in the state will say, “Welp, so much for that. I guess I’ll go marry someone of the opposite sex so I can have kids and raise them that way”? Gay parents can and do raise children whether they are allowed to get married or not. The only thing at stake here is whether those couples and their children will be granted the protections of marriage.
Second, even if this argument were true, so what? There are lots of studies that show that children of wealthy families have better outcomes on average than children from poor families, white families do better on average than black ones, two-parent families do better than those headed by single parents. And yet Utah does not use that as an excuse, nor could they conceivably without being viewed as absurd, to ban the raising of children by those who are poor, black or single. As the judge in the Michigan case pointed out, if those arguments about the relative outcomes of families in different demographic categories were to be taken seriously, no one but wealthy Asian couples should be allowed to have kids.