Author archives: Peter Sprigg

Elections Deal Another Setback to the “Rainbow Revolution”

by Peter Sprigg

November 14, 2014

On October 30, just five days before the mid-term elections, the McClatchy newspaper chain ran a breathless article under the headline, “Rainbow Revolution: U.S. welcoming gay marriage, changing politics.”

Much of the focus of the article was on changes in attitudes toward homosexuality in the Republican Party. It began with an account of something that it said “would have been unimaginable even a couple years ago.” It told how “[t]he most powerful Republican in Washington,” House Speaker John Boehner, “flew to San Diego … to help raise money for an openly gay candidate for the House of Representatives” (Carl DeMaio). It reported that DeMaio, along with Richard Tisei of Massachusetts, were “[a] pair of openly gay Republicans … running in competitive House races.” According to the article, Boehner’s “decision to campaign for gay candidates was met with surprisingly nominal opposition, which he was able to brush aside quickly.”

The McClatchy article, penned by Anita Kumar, also highlighted Monica Wehby, the (heterosexual) Republican candidate for the Senate in Oregon, who ran a TV ad highlighting her support for redefining marriage, “featuring a gay man who successfully fought the state’s same-sex marriage ban.”

Democrats were not completely ignored, however. The article also cited Maine “where Democrat Mike Michaud could become the first openly gay governor in the nation.” Meanwhile, “In Colorado, Democratic Sen. Mark Udall launched a social media campaign against his Republican opponent for voting against a bill that would protect gays from discrimination.”

Apart from specific candidates, this “first story in an occasional series on the changes in American attitudes about gays and gay marriage” declared, “After decades of solid opposition, a majority of Americans now support marriage between those of the same sex.”

That was the media spin on October 30, 2014.

What a difference five days make.

DeMaio and Tisei, the two homosexual Republican Congressional candidates? Both lost.

Monica Wehby, the Republican Senate candidate who considers someone a hero for helping to overturn a popular vote defining marriage as the union of a man and a woman? She lost.

Democrats Michaud and Udall? They both lost, too.

And that “majority” that supposedly supports same-sex “marriage?” According to nationwide exit polls on Election Day, it was only 48%—exactly the same proportion who continue to oppose such a redefinition (and a decline from the 49-46% plurality which supporters of marriage redefinition had in the 2012 exit polls). This was based on a poll question asking, “Should your state legally recognize same-sex marriage?” Note that polls which correctly frame the issue by asking about the definition of marriage have consistently shown that most American continue to believe that marriage should be defined as the union of one man and one woman. For example, in this 2013 poll, when asked, ““Would you approve or disapprove of changing the definition of the word marriage to also include same-sex couples?” only 39% approved while 56% disapproved.

While the media may view the world through rainbow-colored glasses, and there may be a “rainbow revolution” underway on the subject of marriage in the courts (which, under our constitutional system, are supposed to be the least revolutionary branch of government), it is clear that actual voters—you know, “We, the People,” who are the sovereign rulers of this country—are not so eager to join this “revolution.”

As FRC President Tony Perkins pointed out after the election, the concern about candidates like DeMaio, Tisei, and Wehby “was not these candidates’ sexual orientation, but their policy orientation.” The threat to the family posed by redefining marriage, and the threat to religious liberty posed by the aggressive agenda for the forced affirmation and celebration of homosexuality, are becoming ever clearer, and a candidate’s support for these radical policies is not something that will motivate the Republican base to turn out and support them.

In fact, exit polls showed that opposition to redefining marriage remains widespread—and even dominant in several of the key battleground states which were crucial to the Republican takeover of the Senate. The most complete set of exit poll results that I was able to find in the days after the election was posted online by NBC News, and included data on the marriage question for 24 states.

In Arkansas, Republican Tom Cotton unseated Democratic incumbent Mark Pryor in a state where voters said “No” to same-sex “marriage” by a whopping margin of 69% to 27%. In North Carolina—the most recent state to adopt a marriage amendment, in 2012—Republican Thom Tillis beat Democratic incumbent Kay Hagan in a state which still opposes a revisionist view of marriage by 57% to 39%. In Louisiana, incumbent Democrat Mary Landrieu in probably in trouble in a December runoff against Republican challenger Bill Cassidy (Louisiana is the most pro-marriage state in the NBC exit polls, opposing a redefinition of marriage by 73% to 25%). In West Virginia, Republican Shelley Moore Capito will replace retiring Democratic incumbent Jay Rockefeller (the state’s voters oppose same-sex “marriage” by a 67% to 31% margin).

Meanwhile, Republican incumbents Mitch McConnell, Tim Scott, and Pat Roberts held off Democratic challengers in Kentucky (against same-sex “marriage” 64%-33%); South Carolina (62%-34%); and Kansas (51%-45%). In Georgia, Republican David Perdue held the seat of retiring incumbent Republican Saxby Chambliss (Georgia voters oppose same-sex “marriage” by 62%-34%).

Only one Democratic Senate candidate was victorious in a state where a majority of voters oppose same-sex “marriage”—incumbent Sen. Mark Warner of Virginia, who narrowly edged out establishment Republican Ed Gillespie (the state says “no” to recognizing same-sex “marriage” by 53% to 45%).

So Democrats fared extremely poorly in states that oppose same-sex “marriage.” Yet it is undeniable that the country is sharply divided on this issue. The 24 states with exit poll results on this issue reported on the NBC website included ten with majorities (and two more with pluralities) against recognizing same-sex “marriage,” eleven with majorities in favor of it, and one (Florida) perfectly mirroring the 48% to 48% tie nationwide.

Some have argued that as public opinion gradually shifts toward more people making peace with same-sex “marriage,” the Republican Party will have to abandon its staunch opposition in order to keep up with the times. Did Republicans who oppose same-sex “marriage” struggle at the polls in the states where majorities of voters reportedly support it?

The answer is no. Joni Ernst of Iowa, Dan Sullivan of Alaska, and Cory Gardner of Colorado are all Republicans who were victorious in key battleground states without endorsing same-sex “marriage,” even though its recognition is reportedly supported by voters in Iowa (50% to 42%), Alaska (55% to 41%) and Colorado (62% to 32%). Scott Brown, on the other hand, lost in New Hampshire (where voters support recognition of same-sex “marriage” by the largest margin reported, 70% to 28%)—despite being endorsed by the pro-homosexual Log Cabin Republicans.

Although not tested by the exit polls, my theory is that even as polls seem to show significant support for the redefinition of marriage, that support is very thin, whereas the opposition is much more deep-seated. In other words, far more of those who express opposition to the redefinition of marriage do so out of deep conviction, and are likely to oppose a candidate based on this issue alone. Many of the 40% of Americans who (according to the exit polls) attend religious services at least once a week probably fall into this category.

On the other hand, much of the expressed support for changing the definition of marriage is just a matter of going along with the perceived cultural tide, rather than a deep conviction. (Indeed, with the recent spate of court rulings in favor of redefining marriage across the country, answering “yes” to the question, “Should your state legally recognize same-sex marriage?” may amount to little more than a declaration that their state should obey rulings of the courts—not that such a definition is the ideal public policy).

The percentage of voters who will oppose a candidate only because he or she refuses to endorse marriage redefinition is probably relatively small—mostly, just the 1.6% of American adults who (according to a recent federal survey) self-identify as gay or lesbian.

In summary, the historic 2014 elections for the Senate demonstrate that supporting the redefinition of marriage and the rest of the pro-homosexual agenda is a loser, and opposing it is a winner, across the country—especially for Republican candidates.

So much for the “rainbow revolution.”

[Below are the exit poll results on marriage for all 24 states where they were reported by NBC News, in order of the most to least opposition to redefining marriage:]

Question: “Should your state legally recognize same-sex marriage?”

State Yes No

Louisiana 25% 73%

Arkansas 27 69

West Virginia 31 67

Kentucky 31 67

Georgia 34 62

South Carolina 34 62

North Carolina 39 57

Ohio 41 54

Virginia 44 53

Kansas 45 51

Michigan 45 49

Pennsylvania 47 49

Florida 48 48

[Total U.S. 48 48]

Wisconsin 52 45

Iowa 50 42

Alaska 55 41

Minnesota 58 39

Illinois 58 38

New York 59 36

California 61 35

Colorado 62 32

Oregon 64 32

Maine 66 32

New Hampshire 70 28

How Important is Election Day Turnout? Ask Anthony Brown.

by Peter Sprigg

November 11, 2014

On Election Day (or, with early and absentee voting, during election season), not every citizen who is registered to vote will actually vote. There are a variety of reasons. Some have not put in the time and effort to educate themselves about the people and issues on the ballot. Some don’t believe their vote will make a difference. Some may be confident that their favored candidate(s) will win anyway; some may be fatalistic that their favored candidate(s) will lose anyway. Some may have logistical problems getting to the polls; some may simply forget.

Because of all these factors, it is a given for anyone who has ever been involved in a political campaign that “turning out your voters” is a key to victory. Success hinges not just on persuading a majority of your fellow citizens that you are the best candidate; it also hinges on success in motivating those voters to actually vote.

It should be no surprise that the highest voter turnout generally comes in presidential election years. That is when the media coverage of politics is at its most intense. Even people who pay no attention to local or state legislative races, or even races for Congress or Governor, will generally form an opinion on which candidate should be the next President of the United States, and will make an effort to express that view at the ballot box.

That means, however, that in a non-presidential year, like the 2014 mid-term elections, fewer votes will be cast, and therefor “turning out your voters” is even more crucial.

Anthony Brown learned that the hard way.

Brown has served two terms as Lieutenant Governor of Maryland under Gov. Martin O’Malley, the former mayor of Baltimore. O’Malley is leaving office and is considered a dark horse candidate for the 2016 Democratic presidential nomination. Brown was his designated successor for the governor’s mansion, easily winning the Democratic nomination.

The election should have been a shoo-in for Brown. Maryland is one of the bluest of deep blue states. President Obama carried the state in 2012 with 61% of the vote.

In one of the biggest (and most under-reported) upsets on election night, however, Brown lost to his Republican opponent, Larry Hogan, 51%-47%.

I was curious as to how big a role turnout played in this surprising outcome, so I went back to look at some vote totals I compiled after the 2012 election. (I had written a blog post then about how even in the four states which did not vote to defend the definition of marriage as the union of one man and one woman, the pro-marriage vote had well exceeded the vote received by Republican nominee Mitt Romney.)

Comparing those votes with this year’s governor’s race confirmed the importance of turnout. Although Hogan won in 2014 with 51% of the vote, and Romney lost Maryland badly in 2012 with only 36% of the vote, the raw number of votes Hogan received in victory was only 91% of the number of votes Romney received in defeat.

What does that say about Brown? He received less than half as many votes as President Obama did in 2012—only 792,000 compared to Obama’s 1.6 million.

A similar trend probably prevailed across the country. Masses of Obama voters just stayed home on Election Day—leading to the Republican wave we saw on Election Night.

Excerpts - Judge Upholds “Principles of Logic and Law” in Backing Natural Marriage in Puerto Rico

by Peter Sprigg

October 23, 2014

U. S. District Court Judge Juan M. Pérez-Giménez issued a ruling on October 21 upholding Puerto Rico’s law defining marriage:

Marriage is a civil institution that emanates from a civil contract by virtue of which a man and a woman are mutually obligated to be husband and wife . . .”

Pérez-Giménez, a Jimmy Carter appointee, was the second District Court judge to stand against the tide of judges who have asserted a constitutional right to “marry” someone of the same sex in the months since the June 2013 ruling of the Supreme Court in United States v. Windsor. (Windsor struck down the portion of the federal Defense of Marriage Act, or “DOMA” which defined marriage for all purposes of federal law as the union of one man and one woman.) Judge Martin L. C. Feldman upheld the Louisiana marriage law on September 3.

The fundamental basis of the opinion by Judge Pérez-Giménez was a simple one, but one that most of the other courts addressing this issue have sidestepped—namely, that there is already binding Supreme Court precedent on whether the U.S. Constitution requires states to permit “marriages” of same-sex couples, and the answer is, “No.”

Following are some excerpts from the strong decision (some citations omitted):

The plaintiffs have brought this challenge alleging a violation of the federal constitution, so the first place to begin is with the text of the Constitution. The text of the Constitution, however, does not directly guarantee a right to same-gender marriage . . .

Without the direct guidance of the Constitution, the next source of authority is relevant Supreme Court precedent interpreting the Constitution. On the question of same-gender marriage, the Supreme Court has issued a decision that directly binds this Court.

The petitioners in Baker v. Nelson [1972] were two men who had been denied a license to marry each other. They argued that Minnesota’s statutory definition of marriage as an opposite-gender relationship violated due process and equal protection – just as the plaintiffs argue here. The Minnesota Supreme Court rejected the petitioners’ claim . . .

The petitioners’ appealed … The Supreme Court considered both claims and unanimously dismissed the petitioners’ appeal “for want of [a] substantial federal question.”

… The dismissal was a decision on the merits, and it bound all lower courts with regard to the issues presented and necessarily decided, Mandel v. Bradley, … (1977) . . .

This Court is bound by decisions of the Supreme Court that are directly on point; only the Supreme Court may exercise “the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., … (1989). This is true even where other cases would seem to undermine the Supreme Court’s prior holdings. Agostini v. Felton, … (1997)(“We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent…”). After all, the Supreme Court is perfectly capable of stating its intention to overrule a prior case. But absent an express statement saying as much, lower courts must do as precedent requires.

… The Supreme Court, of course, is free to overrule itself as it wishes. But unless and until it does, lower courts are bound by the Supreme Court’s summary decisions “‘until such time as the Court informs [them] that [they] are not.’” Hicks v. Miranda, … (1975) … .

The First Circuit expressly acknowledged – a mere two years ago – that Baker remains binding precedent “unless repudiated by subsequent Supreme Court precedent.” Massachusetts v. U.S. Dept. of Health and Human Services, … (1st Cir. 2012). According to the First Circuit, Baker prevents the adoption of arguments that “presume or rest on a constitutional right to same-sex marriage.”

. . .

Windsor does not – cannot – change things. Windsor struck down Section 3 of DOMA which imposed a federal definition of marriage, as an impermissible federal intrusion on state power. The Supreme Court’s understanding of the marital relation as “a virtually exclusive province of the States,” (quoting Sosna v. Iowa, … (1975)), led the Supreme Court to conclude that Congress exceeded its power when it refused to recognize state-sanctioned marriages.

The Windsor opinion did not create a fundamental right to same-gender marriage nor did it establish that state opposite-gender marriage regulations are amenable to federal constitutional challenges. If anything, Windsor stands for the opposite proposition: it reaffirms the States’ authority over marriage, buttressing Baker’s conclusion that marriage is simply not a federal question. Contrary to the plaintiffs’ contention, Windsor does not overturn Baker; rather, Windsor and Baker work in tandem to emphasize the States’ “historic and essential authority to define the marital relation” free from “federal intrusion.” It takes inexplicable contortions of the mind or perhaps even willful ignorance – this Court does not venture an answer here – to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.

. . .

Lower courts, then, do not have the option of departing from disfavored precedent under a nebulous “doctrinal developments” test. See National Foreign Trade Council v. Natsios, … (1st Cir. 1999) (“[D]ebate about the continuing viability of a Supreme Court opinion does not, of course, excuse the lower federal courts from applying that opinion.”); see also, Scheiber v. Dolby Labs., Inc., … (7th Cir. 2002) (“[W]e have no authority to overrule a Supreme Court decision no matter how dubious its reasoning strikes us, or even how out of touch with the Supreme Court’s current thinking the decision seems.”)(Op. of Posner, J.).

. . .

IVCONCLUSION

That this Court reaches its decision by embracing precedent may prove disappointing. But the role of precedent in our system of adjudication is not simply a matter of binding all succeeding generations to the decision that is first in time. Instead, stare decisis embodies continuity, certainly, but also limitation: there are some principles of logic and law that cannot be forgotten.

Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is “exclusively [an] opposite-sex institution … inextricably linked to procreation and biological kinship,” Windsor, … (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.

Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.

A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? See Elizabeth Brake, Minimal Marriage: What Political Liberalism Implies for Marriage Law, 120 ETHICS 302, 303 (2010). It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice.”

Of course, it is all too easy to dismiss such concerns as absurd or of a kind with the cruel discrimination and ridicule that has been shown toward people attracted to members of their own sex. But the truth concealed in these concerns goes to the heart of our system of limited, consent-based government: those seeking sweeping change must render reasons justifying the change and articulate the principles that they claim will limit this newly fashioned right.

For now, one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law. This principle

is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds … Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.

Schuette v. Coalition to Defend Affirmative Action, … (2014)(Op. of Kennedy, J.).

For the foregoing reasons, we hereby GRANT the defendants’ motion to dismiss. The plaintiffs’ federal law claims are DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

San Juan, Puerto Rico, this 21st day of October, 2014.

S/ JUAN M. PÉREZ-GIMÉNEZ

JUAN M. PÉREZ-GIMÉNEZ

UNITED STATES DISTRICT JUDGE

We know from the social science that children do best with a mom and a dad.”-TRUE

by Peter Sprigg

October 17, 2014

On Sunday, October 12, Family Research Council President Tony Perkins appeared on Fox News Sunday to debate the redefinition of marriage with Ted Olson, a prominent Republican attorney and advocate of giving civil marriage licenses to homosexual couples.

At one point in the discussion, Olson began to argue that we should redefine marriage because it would benefit children who are being raised by same-sex couples. Perkins replied, “We know from the social science that children do best with a mom and a dad.”

Within hours, the “fact-checking” website PolitiFact posted an analysis of the statement—and rated it “False.”

Unfortunately, the PolitiFact article itself gets a failing grade.

That is, unless they think the non-partisan, non-profit research group Child Trends was also telling a “falsehood” when they reported, “An extensive body of research tells us that children do best when they grow up with both biological parents in a low-conflict marriage.”

Presumably, they also think it was “false” when the anti-poverty group the Center for Law and Social Policy reported, “Research indicates that, on average, children who grow up in families with both their biological parents in a low-conflict marriage are better off in a number of ways than children who grow up in single-, step- or cohabiting-parent households. Compared to children who are raised by their married parents, children in other family types are more likely to achieve lower levels of education, to become teen parents, and to experience health, behavior, and mental health problems.”

And I guess they would also rate as “false” the statement by the Institute for American Values, which declared (as one of its “fundamental conclusions” about “what current social science evidence reveals about marriage in our social system”), “The intact, biological, married family remains the gold standard for family life in the United States, insofar as children are most likely to thrive—economically, socially, and psychologically—in this family form.”

I suppose PolitiFact would also say it was false when the American College of Pediatricians said that “the family structure which leads to optimal child development is the family headed by two biological parents in a low-conflict marriage.” The ACP added details:

A growing and increasingly sophisticated body of research indicates that children with married parents (both a mother and a father) have more healthful measures of:

  • thriving as infants
  • physical and mental health
  • educational attainment
  • protection from poverty
  • protection from antisocial behavior
  • protection from physical abuse


The PolitiFact article put much emphasis on “peer-reviewed” literature. Are they actually suggesting that the conclusions of every single one of the sources cited in the following passage (adapted from my book Outrage) are “false”?

Children raised by opposite-sex married parents experience lower rates of many social pathologies, including:

  • premarital childbearing (Kristin A. Moore, “Nonmarital School-Age Motherhood: Family, Individual, and School Characteristics,” Journal of Adolescent Research 13, October 1998: 433-457);
  • illicit drug use (John P. Hoffman and Robert A. Johnson, “A National Portrait of Family Structure and Adolescent Drug Use,” Journal of Marriage and the Family 60, August 1998: 633-645);
  • arrest (Chris Coughlin and Samuel Vucinich, “Family Experience in Preadolescence and the Development of Male Delinquency,” Journal of Marriage and the Family 58, May 1996: 491-501);
  • health, emotional, or behavioral problems (Deborah A. Dawson, “Family Structure and Children’s Health and Well-Being: Data from the 1988 National Health Interview Survey on Child Health,” Journal of Marriage and the Family 53, August 1991: 573-584);
  • poverty (Federal Interagency Forum on Child and Family Statistics, America’s Children: Key Indicators of Well-Being 2001, Washington, D.C., p. 14);
  • or school failure or expulsion (Dawson, op.cit.).

PolitiFact must also not trust federal government survey research—such as that published just a few months ago which said, “Children in nonparental care were 2.7 times as likely as children living with two biological parents to have had at least one adverse experience, and more than 2 times as likely as children living with one biological parent and about 30 times as likely as children living with two biological parents to have had four or more adverse experiences.” (Note that if you turn this around, it is saying that “children living with two biological parents” are at least fifteen times less likely “to have had four or more adverse experiences” than children in any other living situation with which they were compared.)

Finally, the Mapping America series produced by FRC’s own Marriage and Religion Research Institute (MARRI) has documented (based primarily on federal government survey data) literally dozens of outcome measures for which, on average, children raised in an intact married family do better than those in other family structures.

There are certainly other things PolitiFact could have said to put Perkins’ comment in perspective. They might legitimately have pointed out, for example, that relatively few studies have been conducted to date which makes direct comparisons between children raised by their married, biological mother and father and children raised by same-sex couples. While it is certainly true, not false, that there is a large and robust body of social science evidence indicating that “children do best with a mom and a dad,” as Perkins indicated, most of the studies involved in that body of research compared children raised by their married, biological mother and father with children raised in alternate family structures such as single-parent, divorced, or step-parent households—but did not include direct comparisons with the (relatively tiny) population of children raised by same-sex couples.

For example, the New Family Structures Study spearheaded by sociologist Mark Regnerus resulted in dramatic (and statistically powerful) results demonstrating the strong advantage held by the “intact biological family” over numerous other family forms. However—as Regnerus made clear from the beginning—even his comparison with “gay fathers” or “lesbian mothers” was only based on the adult respondents having said that at some point between birth and age 18, their father or mother had a same-sex romantic relationship. It was not a comparison with children raised by same-sex couples living and raising the children together (of which very few could be found, even in Regnerus’ large sample).

A key illustration of how the PolitiFact article lacked objectivity is that its description of the Regnerus research sounds as though it were simply cut and pasted from the talking points of “gay” bloggers. It is true that his research was sharply criticized in a variety of quarters—that is to be expected, given that academia is now dominated by liberal elites who are unwilling to tolerate the slightest dissent from the pro-homosexual orthodoxy. It is also true that among his fellow sociologists who distanced themselves from the study were members of the sociology department at his own university, the University of Texas.

However, it is false to say (as PolitiFact did) that the university itself “denounced” Regnerus’ research. On the contrary, the university conducted a full investigation of charges brought by a “gay” blogger who uses the pen name “Scott Rose,” and concluded, “Professor Regnerus did not commit scientific misconduct… . None of the allegations of scientific misconduct put forth by Mr. Rose were substantiated …” The New Family Structures Study continues to be hosted by the Population Research Center within the College of Liberal Arts at the University of Texas at Austin.

The journal which published two Regnerus articles based on the New Family Structures Study, Social Science Research, also published extensive critiques of his work. Its editor designated a sharp critic of Regnerus, Darren Sherkat, to conduct an “audit” of the publication process. Since PolitiFact was dismissive of a book-length scholarly work because it was not subject to “peer review” like academic journal articles, it is worth noting what Sherkat said about peer review of Regnerus’ work: “Five of the reviewers are very regular, reliable SSR reviewers, and all six were notable scholars. Indeed, the three scholars who are not publicly conservative can be accurately described as social science superstars.” Most importantly, as editor James D. Wright points out, “all reviewers of both papers agreed that the papers warranted publication. The unanimity of reviewer opinion is notable in this case and is also fairly unusual.” A more thorough description of the Regnerus study can be found here, and a more detailed analysis of its actual findings can be found here.

One early study which did make a direct, couples-to-couples comparison was a 1996 study by an Australian sociologist who compared children raised by heterosexual married couples, heterosexual cohabiting couples, and homosexual cohabiting couples. It found that the children of heterosexual married couples did the best, and children of homosexual couples the worst, in nine of the thirteen academic and social categories measured.

More recently, studies based on U.S. and Canadian census data have allowed couples-to-couples comparisons using much larger sample sizes, but with respect to only a single outcome measure. Canadian economist Douglas W. Allen and two co-authors analyzed data from the 2000 census in the United States and reported, “Compared with traditional married households, we find that children being raised by same-sex couples are 35% less likely to make normal progress through school.” Another study by Allen using the 2006 Canada census found, “Children living with gay and lesbian families [i.e., a “same-sex married or common law couple”] in 2006 were about 65% as likely to graduate compared to children living in opposite sex marriage families.”

Advocates for homosexual parenting and the redefinition of marriage sometimes argue (as PolitiFact did in a similar article challenging a Ralph Reed comment in April 2014), “What studies really show is that children are better off with two parents. Those studies do not focus on gender.” This statement by PolitiFact is clearly false. Most of the studies cited above focused on the presence of two biological parents—which by definition includes both the mother and the father. At best, same-sex couples resemble a step-parent situation, in which at most one of the caregivers is the biological parent of the child. The Child Trends publication cited above noted:

Children growing up with stepparents also have lower levels of well-being than children growing up with biological parents. Thus, it is not simply the presence of two parents, as some have assumed, but the presence of two biological parents that seems to support children’s development.”

(Note: FRC believes that adopted children also benefit from the gender complementarity in parenting provided by an adoptive mother and father. However, the bulk of the research has focused specifically on households headed by the married, biological mother and father.)

On the other hand, the research that has been done specifically on children raised by same-sex couples has usually compared them only to children of “heterosexual” parents—including single-parent or divorced households—rather than comparing them directly to children raised by their married, biological mother and father (the “intact biological family,” as Regnerus refers to it).

The Center for Law and Social Policy report, cited above, summarized the implications of this succinctly:

Children of gay or lesbian parents do not look different from their counterparts raised in heterosexual divorced families regarding school performance, behavior problems, emotional problems, early pregnancy, or difficulties finding employment. However, … children of divorce are at higher risk for many of these problems than children of married parents [emphasis added].

The PolitiFact article seemed to be devoted to debunking things that Tony Perkins did not say, rather than what he actually did say. If Perkins had said, “We know from the social science that children do better with a mom and a dad than with two moms or two dads,” PolitiFact might legitimately have challenged it—not because it is “false,” but because there is insufficient research on that direct comparison to assert we can “know” it as a social science certainty.

If Perkins had said, “We know from the social science that children do better with heterosexual parents than with homosexual parents,” then PolitiFact might also have challenged that—again, not because it is “false,” but because family dysfunction among heterosexuals (such as out-of-wedlock births, divorce, and cohabiting parents) is clearly harmful to children as well.

However, Perkins was clear, precise—and accurate—in what he did say, that “children do best with a mom and a dad.”

If, though, the social science research has not provided us with true, apples-to-apples comparisons between children raised by same-sex couples and children raised by their mother and father, was it legitimate for Tony Perkins to bring this truth about the general parenting research into a debate specifically about same-sex “marriage?”

I believe it was, because of the significant difference in quality and quantity between the two bodies of research at issue. As indicated by the summary statements quoted above, the research showing that children raised by their married biological mother and father do better than any other family structure with which they have been compared is extensive, methodologically sound, and convincing.

On the other hand, the research focused specifically on children raised by same-sex couples, most of which has been reported as showing that they do just as well or show “no differences” in comparison with children raised by “heterosexual parents,” suffers from serious methodological flaws.

Much of it has relied on small, non-random “convenience samples”—obtained, for example, by advertising in “gay” media. These samples may not be truly representative of the population of same-sex couples raising children. Parents whose children have significant problems may be less likely to volunteer, and parents who do volunteer may have an incentive (including a political one, knowing the significance of the research in public debates) to downplay any problems their children have (many such studies rely on the parent’s own report of child well-being).

In addition, arguments touting the large number of published studies supporting the “no differences” claim are misleading, because many of those studies are based on a single data set, from the National Longitudinal Lesbian Family Study (NLLFS). The NLLFS website lists 21 publications which have been directly based on this study, and five more related to it.

A 149-page book published in 2001 did a detailed analysis of the homosexual parenting research up to that point. The result was:

We conclude that the methods used in these studies are so flawed that these studies prove nothing. Therefore, they should not be used in legal cases to make any argument about ‘homosexual vs. heterosexual’ parenting. Their claims have no basis.”

A similar analysis was conducted by researcher Loren Marks and published in the same 2012 issue of Social Science Research as the first Regnerus article. Marks analyzes the 59 previous studies cited in a 2005 policy brief on homosexual parents by the American Psychological Association (APA). Marks debunks the APA’s claim that “[n]ot a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents.” Marks also points out that only four of the 59 studies cited by the APA even met the APA’s own standards by “provid[ing] evidence of statistical power.” As Marks so carefully documents, “[N]ot one of the 59 studies referenced in the 2005 APA Brief compares a large, random, representative sample of lesbian or gay parents and their children with a large, random, representative sample of married parents and their children.”

So, the research supposedly showing “no differences” between children raised by same-sex couples and those raised by heterosexuals (remember, they are not usually compared with children raised by their own mother and father) is simply unreliable. The research showing that children do best when raised by their own, married, biological mother and father, when compared with numerous other family structures, is robust and clear-cut.

Essentially, homosexual activists (and PolitiFact) are claiming that children raised by homosexual couples are, remarkably, the lone exception to the overwhelming social science research consensus regarding the optimal family structure for children.

We rate their claim, “Highly Implausible.”

Supremes Dodge Most Important Issue Before Them — Marriage

by Peter Sprigg

October 6, 2014

The Supreme Court has declined to take up any of the pending same-sex “marriage” cases before them.

There is bad news and good news in this decision. The bad news is that these states have been denied the opportunity to defend their legitimate power to define marriage before the Supreme Court. The good news is that the Supreme Court does not seem to be as eager as many people assumed to issue a “Roe v. Wade“-type decision redefining marriage.

This decision reflects cowardice on the part of the Supreme Court. People on both sides of the marriage debate agree that the constitutional issues that have been raised should be addressed by the highest court in the land. The Court is right to fear a backlash if they impose a redefinition of marriage on all fifty states; but they are wrong to just let the lower courts do their dirty work for them.

The decision is baffling on several levels. It is hard to understand why the Court heard the case (Hollingsworth v. Perry) challenging California’s Proposition 8 in 2013 (then declined to rule on the merits because of standing issues), but is refusing much clearer cases now. Some say they are waiting for “circuit split” on the issue, but one already exists — the Eighth Circuit upheld Nebraska’s marriage amendment in 2006 (Citizens for Equal Protection v. Bruning). Furthermore, the Supreme Court’s own “dismissal for want of a substantial federal question” of a same-sex “marriage” case out of Minnesota in 1972 (Baker v. Nelson) remains binding precedent until the Supreme Court itself explicitly overrules it.

Everyone needs to be reminded that the question of whether redefining marriage is good public policy is separate from the question of whether the Constitution of the United States mandates such a redefinition. Even those who favor redefining marriage should understand that such a radical social change is more likely to be accepted if it is adopted through the democratic process, rather than imposed from on high by a court.

One thing is clear — anyone who claims to know what the Supreme Court is thinking is wrong.

Judge Posner Ignores the Obvious: Kids Care More about a Mom and Dad than about a Government Certificate

by Peter Sprigg

September 8, 2014

Ed Whelan of the Ethics and Public Policy Center has been doing a great job at National Review Online debunking Judge Richard Posner’s opinion striking down the Indiana and Wisconsin marriage laws for a panel of the U. S. Court of Appeals for the Seventh Circuit on September 4 (see here, here, here, and here).

I will note here just one thing that jumped out at me in both the oral arguments and the opinion. Judge Posner makes the following argument (pp. 22-23 of the opinion):

Consider now the emotional comfort that having married parents is likely to provide to children adopted by same-sex couples. Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers. If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple. Conversely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates.

Judge Posner’s set-up of this hypothetical situation sounds like a demonstration of how same-sex “marriage” could harm children raised by same-sex couples:

Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers.

Perhaps it is a function of his long judicial career, but Judge Posner seems to think that it is entirely the law which will determine whether such a child experiences “comfort” or distress from such a situation. If the law says that the two women or two men raising the child cannot be “married,” the child will experience distress. But if the law says that the two women or two men raising the child are “married,” then they will experience “emotional comfort,” presumably from the knowledge that their family is just like that of their friends.

Except, even in Judge Posner’s own framing of the situation, it is not the absence of a marriage certificate that makes the children feel different from his peers. It is that “all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be).” If the child’s “two moms” or “two dads” are permitted to “marry” — well, “all his classmates” will still have “a mom and a dad,” while the child in question will still be “not in step with [his] peers” because he will still not have a mom and a dad!

Judge Posner is naïve in the extreme if he thinks that such a child would care more about whether his caregivers have a certificate from the government than about whether his family includes something as fundamental on a human level as a mother and a father.

Men and women make babies, and same-sex couples do not.”

by Peter Sprigg

September 2, 2014

On August 26, 2014, a three-judge panel of the U. S. Court of Appeals for the Seventh Circuit heard oral arguments in Chicago in cases challenging the marriage laws of two states, Indiana and Wisconsin.

I have already written a detailed blog post outlining highlights of the arguments and my reactions to them. However, I thought it would be worth sharing some more extended excerpts of the argument in defense of a one-man-one-woman definition of marriage. Indiana Solicitor General Thomas Fisher outlined (and Wisconsin Assistant Attorney General Timothy Samuelson endorsed) the core constitutional argument — that marriage exists as a public institution primarily to promote responsible procreation.

At oral arguments, the attorneys are frequently interrupted by the judges, so the following quotes are taken from a variety of points during the argument. The quotes are my own transcription from the audio which the court posted here.

Thomas Fisher:                                                     

If we don’t have marriage, what is the issue we’re dealing with? We’re dealing with widespread heterosexual activity that creates babies. There has to be a mechanism to deal with that. The mechanism is, let’s channel potentially procreative couples into relationships that are durable and longstanding and will remain together for the sake of the child… .

The question is, “What can we do to nudge heterosexual couples, who may produce children, to plan for this — to plan for the consequences and appreciate the consequences of sexual behavior?” Those consequences don’t arise with same-sex couples… . .

 … [A]ll this is a reflection of biology. It’s simply that men and women make babies, and same-sex couples do not… .

We have to have a mechanism for dealing with those babies, and marriage is that mechanism.

Truth Matters in Ex-Gay Debate

by Peter Sprigg

August 29, 2014

[Note: A condensed version of this post appeared at The Christian Post on August 28, 2014 under the title, “Ex-Gay Therapy Debate: The Truth Matters.”]

The fact that some people change their sexual orientation from homosexual to heterosexual (some spontaneously as a developmental change, some through religious counseling, and some through professional therapy) is a big problem for the homosexual movement. It seriously undermines the myth that people are “born gay and can’t change” This myth is essential to making the public believe that disapproval of (or even failure to actively affirm and celebrate) men choosing to have sex with men and women choosing to have sex with women is exactly as loathsome as “discrimination” based on race.

The organized ex-gay movement is small and poorly-funded, but it poses such an existential threat to pro-homosexual mythology that homosexual activists have mounted a furious assault upon it. The principal form this assault has taken is the introduction of laws that would ban any and all “sexual orientation change efforts” (or “SOCE”) with minors by licensed mental health providers. This idea was pioneered in California where they originally wanted a ban across the board regardless of age. However, it was concluded that this shocking violation of a long-time ethical principle of client autonomy might be too much to take, so the ban was limited to minors on the grounds of “protecting” children. Such laws have been adopted already in California and New Jersey, but similar bills died in more than a dozen other states over the last year or so.

As noted, “protection of minors” has been a key selling point in the legislatures that have considered these bills, and the threatened loss of licensing has been the legal stick employed. However, the Southern Poverty Law Center (SPLC), a wealthy, left-wing, anti-Christian political advocacy group that was linked to domestic terrorism in federal court, has executed a pincer movement in New Jersey by suing SOCE providers, including unlicensed counselors who work with adults, charging “fraud” under that state’s consumer protection laws.

Most “sexual reorientation therapy” today consists of “talk therapy” — a client simply talking with a counselor about his or her feelings, experiences, relationships with parents and peers, etc. Some therapists add other positive techniques that have been validated in a variety of contexts — not just SOCE.

However, to generate opposition to SOCE, its opponents have reached back decades to techniques some therapists once used called “aversion therapy” — attempting to associate homosexual feelings with some sort of negative stimuli. No one has been able to identify a single therapist actually practicing today who uses “aversive” techniques in SOCE — but that hasn’t stopped homosexual activists from pretending that they do.

In a hearing before the New Jersey legislature, one witness in support of the ban was a young person who is a male-to-female transgender and goes by the name Brielle Goldani. Christopher Doyle is ex-gay, a therapist himself, and a founder of the ex-gay advocacy group Voice of the Voiceless. He was also present at the March 18, 2013 hearing, and described Goldani’s testimony in a piece for WorldNetDaily the following week:

QUOTE

Twice a week I was hooked up to electrodes on my hands,” she said. “I, a child, was shocked repeatedly by people who had my parent’s permission to torture me.” Goldani, now 29, claims that she had no rights when her parents sent her away as a male teenager. She claims that the torture occurred at conversion camp called True Directions. “This is nothing more than legalized child abuse,” claimed Goldani at the hearing.

Having attended and testified at the hearing myself, I was shocked and horrified to hear about such abuse… . So I tracked down Goldani and talked to her on the phone to find out more information.

Goldani claims that an Assemblies of God Church in Columbus, Ohio, ran the True Directions conversion therapy camp:

There were 12 boys, and 12 girls. The first Sunday I was there, I was forced to sit in their church service, which was nothing but hate speech. Then, on Monday, the heavier therapy began. We were forced to masturbate to heterosexual images and soft-core pornography, such as Sports Illustrated swimsuit models. Twice a week, my hands were hooked up to electrodes for two hours at a time while we were shown positive images such as a nuclear family, a female with children, a male construction worker and a female receptionist. I was also subjected to forced IV injections twice a week for two hours each while being made to watch negative images of what they didn’t approve of. … The injections made me vomit uncontrollably. Every Friday and Saturday evening, we were forced to go on ‘flirting dates’ where a camp counselor coached us on how to talk to the opposite sex romantically. … We were also given uniforms to wear, black pants and white shirts for boys, black skirts and white blouses for girls.”

END QUOTE

Doyle wrote in his article, “As a former homosexual and practitioner of Sexual Orientation Change Effort (SOCE) therapy, I had never heard of such inhumane treatment, except from anti-ex-gay activists who often claim that SOCE employs such barbaric methods.” So he did further research to see if he could verify any of Goldani’s account.

The Assemblies of God in Ohio denied that any such camp existed, or that they had ever participated in such activities. The state government of Ohio could find no record that a camp named “True Directions” had ever existed there. Goldani claimed that her family’s church in New Jersey had paid for him to go to the camp for a month and a half, but the pastor of the church scoffed at the idea that they would ever have done such a thing.

Doyle did find one reference to a “gay conversion camp” called “True Directions,” though. It was part of the plot of a fictional 1999 movie called But I’m a Cheerleader, which starred drag queen RuPaul. It would be hard to conclude anything other than that Goldani took the plot of this far-fetched movie, and tried to pass it off as her own life story.

The latest debate over the issue occurred on June 27 at a committee hearing on a bill similar to the California and New Jersey measures that has been introduced in the District of Columbia. You can read my account of the hearing on the Family Research Council Blog, and my testimony on the FRC website.

One of the witnesses at that hearing who testified in support of the proposed ban was Dr. Gregory Jones, who introduced himself as a “gay identified” licensed clinical psychologist who specializes in “Affirmative LGBTQ Mental Health.”

In his testimony, Jones included this quote from a recent article on the SOCE bans that appeared on Time magazine’s website on June 23, 2014:

QUOTE

Sam Brinton says that his father first tried physical abuse to rid his young son of homosexual feelings. When that didn’t work, Brinton’s parents turned to something called reparative therapy. Some of the memories are hazy more than 10 years later, but Brinton does remember the tactics the counselor used. There was talk therapy, about how God disapproved, and there was aversion therapy, during which pictures of men touching men would be accompanied by the application of heat or ice. “It was pretty much mental torture,” Brinton says. “To this day, I still have light pain when I shake hands with another male.”

END QUOTE

I had seen the Time article — and it, in turn rang a bell. The name of Sam Brinton had first come to my attention the week before that, when a piece appeared in Politico that was authored by John Paulk. In the 1990’s and early 2000’s, John and his wife Anne were former homosexuals who worked for Focus on the Family promoting the ex-gay message. In 2003, they fled the spotlight to move to Oregon, where John opened a catering business.

John Paulk has now renounced his ex-gay advocacy and, apparently, returned to homosexuality. (Anne Paulk, his now-estranged wife remains active in the ex-gay movement.)

A sidebar article accompanied John Paulk’s piece in Politico: “Gay-Conversion Therapy: How It Works (Or Doesn’t),” By Elizabeth F. Ralph.

It included this:

QUOTE

Electroconvulsive Therapy

One former patient described his course of electroconvulsive therapy, in use today, as “The Month of Hell.” The treatment, he told the Huffington Post, “consisted of tiny needles being stuck into my fingers and then pictures of explicit acts between men would be shown and I’d be electrocuted.”

END QUOTE

This refers to Samuel Brinton, a Kansas State student whose story was reported almost three years ago in the Huffington Post:

QUOTE [emphasis added]

I grew up as the son of Southern Baptist missionaries and without knowing what the word “gay” was (we just called them abominations) I asked my father why I was feeling attracted to my best friend, Dale. I don’t remember the second punch but I do remember waking up in the emergency room for the third time asking the doctors not to send me back and telling them that I had not fallen down the stairs again. When “punching the gay out” didn’t work we moved to conversion therapy. Being told I had AIDS and was going to die if the government found me was only the beginning. I would be strapped down with blocks of ice or heating pads placed on my hands while pictures of men holding hands were shown. The conversion ended when I told my parents I was straight to stop the electrocution by needles in my fingers while gay sex acts where shown to me. When I would later come back out to them for a second time I was told never to walk back in that house if I wanted to walk out alive.

I tell you the story of my conversion therapy not for dramatic effect but to explain why I do what I do. I cannot let another child go through that torture because their parents think this is the only way to have a normal child.

END QUOTE

Brinton received an award from “Campus Pride,” the college LGBT group, for sharing his horror story of therapy. This report was so shocking that even some pro-“gay” media tried to verify this report — and couldn’t.

Even Wayne Besen, the most rabid “anti-ex-gay” activist, refused to use his story because it remains unverified. Here’s the full statement Besen posted in the comments section of the Queerty article which questioned Brinton’s story.

QUOTE [emphasis added]

Wayne Besen

Samuel came forward and told a story presumably in an effort to help others. There are groups like mine who would be thrilled to use his example to demonstrate the harm caused by “ex-gay” therapy. We live for real life examples like this.

However, until he provides more information to verify his experience, he makes it impossible for us to use him as an example. Indeed, it would be grossly irresponsible for us to do so.

If a group like mine puts out or promotes a story that turns out to be exaggerated or fake, the religious right would rake us through the coals and by extension the entire LGBT community. This would cast an ominous shadow on all of the legitimate ex-ex-gay testimonies that have helped so many people come out of the closet.

So, for the sake of the movement he is trying to help — it is critical that Sam reveal exactly who the therapist was that tortured him. He could do this publicly or privately, but we need more information before we can use his narrative.

We very much hope he will provide enough information so we can help people by sharing his compelling story.

Sincerely,

Wayne Besen

Truth Wins Out

Oct 11, 2011 at 8:51 pm

END QUOTE

Here is part of Brinton’s reply to Besen:

QUOTE

I was indirectly in contact with Wayne and although I know he wants me to send the information of the therapist that is simply not an option. Counselor after counselor has seen me revert to near suicidal tendencies when I try to dig deep into the memories of that time and I simply don’t have his name. I can picture him clear as day in my nightmares but his name is not there. The movement can’t use me I guess.

I have no problem with people not believing my story. It is not for me to try to prove. I don’t want to be the poster-child of the anti-conversion therapy movement since graduate school at MIT is plenty tough as it is.

. . .

Oct 14, 2011 at 2:11 am

END QUOTE

Brinton’s memory does not seem to have gotten any better since 2011, since Time reports “Some of the memories are hazy more than 10 years later.” And he seems to have dropped the claim that he was electrocuted as part of his therapy (or perhaps even Time thought that strained credulity). Yet what even Wayne Besen said would be “grossly irresponsible” (using Brinton as an example), Time is perfectly willing to do, thus making Brinton exactly what he coyly claimed he didn’t want to be — “the poster-child of the anti-conversion therapy movement.”

Critics of Natural Marriage Remain in Search of Legal Rationale in 7th Circuit Arguments

by Peter Sprigg

August 28, 2014

I regard it as absurd, you say it’s self-evident.”

That caustic remark — one of many — from Judge Richard Posner, during the August 26 oral arguments regarding Indiana and Wisconsin marriage laws, perhaps encapsulated the gulf between those seeking to retain the natural definition of marriage as the union of a man and a woman and those seeking to redefine it for the purpose of affirming homosexual relationships.

Posner, a 75-year-old Reagan appointee, directed his quip at Indiana Solicitor General Thomas Fisher, who was defending his state’s law defining marriage as the union of one man and one woman before the 7th U.S. Circuit Court of Appeals in a set of cases under the heading Baskin v. Bogan. The court also heard arguments regarding Wisconsin’s marriage amendment in the case of Wolf v. Walker. District courts in both cases ruled the state marriage laws unconstitutional earlier this year. (Oral arguments in the cases can be heard online at the links above.)

Mr. Fisher was right. The case for defining marriage as the union of a man and a woman is (or at least should be) self-evident. It is self-evident that opposite-sex and same-sex sexual relationships are not the same — the former can result in natural procreation, and the latter never can. That fact, in turn, makes it self-evident that society has a greater interest in both encouraging and regulating opposite-sex relationships (which it does through the institution of marriage) than same-sex ones.

Nevertheless, the homosexual movement has succeeded in draping a curtain over these self-evident truths by misdirection involving not the rule, but exceptions — namely, opposite-sex couples who do not procreate and same-sex couples who do raise children. The specific point which Judge Posner considered “absurd” was the idea (posed by Posner himself) that a sterile, elderly opposite-sex couple could in any way be a “model” for a younger couple forming a family.

Posner dominated the arguments in both cases, offering by far the most questions and comments of any of the three judges — at least when defenders of natural marriage were attempting to make their case. While it is customary for judges in such settings to seize control of the discussion rather than simply allow the attorneys free rein, for most of the arguments, Posner was pushing a single point of his own, arguing rather than asking questions, and often not even allowing time for a single sentence in reply.

Posner’s single-minded obsession was the presumed plight of children who are being raised by same-sex couples. When the state argued that marriage addresses the uniquely heterosexual problem of accidental or unintended procreation, Posner asked, “Now, isn’t it true most unintended children are put up for adoption?” (Fisher answered, correctly, “I think many times single mothers care for them.”) Posner seemed to assume that most children raised by homosexuals are adopted from this pool of “unintended” children — painting a picture of homosexual couples heroically rescuing children abandoned by their heterosexual parents. (In reality, most children being raised by homosexuals or same-sex couples are the biological child of one partner, conceived in a previous heterosexual relationship and now forcibly separated from one biological parent by the other.) Posner’s own “self-evident” truth — apparently heavily influenced by a brief filed by the pro-homosexual Family Equality Council — was that such children would be helped by their same-sex “parents” having access to the legal benefits of marriage. His question was, who would be harmed by that (or, alternatively, who benefits from the current law which prevents such same-sex “parents” from marrying)?

There are good answers to this question — see, for example, my FRC booklet, The Top Ten Harms of Same-Sex “Marriage.” Unfortunately, attorneys for the states seemed unprepared — or reluctant — to offer examples of such potential harms, suggesting only that we cannot know with certainty what the consequences would be. That aside, however, the kind of cost-benefit analysis Judge Posner was proposing is a fundamentally legislative task — not a judicial one. Whether costs outweigh benefits may help determine if a particular policy is wise — but it is not sufficient to determine if a policy is constitutional, or should be struck down by the courts.

Another judge in the three-judge panel, 57-year-old David Hamilton (appointed to a District Court position by Clinton and to the Appeals Court by Obama), was also skeptical of the state’s arguments. Hamilton, however, was far more measured in tone than Posner — and more balanced, asking challenging questions of the plaintiffs’ attorneys as well. Having warned each attorney that while they want to emphasize their strong points, the judges want to probe their weak ones, Hamilton pressed those backing the redefinition of marriage about one of Fisher’s arguments for Indiana — namely, “The position put forth by the plaintiffs in this case admit[s] of no limiting principle.”

In other words, as many have pointed out, the arguments put forth in support of same-sex “marriage” — such as “equality” and the freedom to marry whom you choose — could be equally applied to other types of unions, including polygamous or incestuous ones. That challenge was also pressed by the third judge, 65-year-old Ann Claire Williams (appointed by Reagan to a District Court and by Clinton to the Appeals Court). Even Posner, by far the most skeptical of “traditional” marriage, piled on in the polygamy discussion, asking, “How many people do you have a fundamental right to marry at one time? Just one? … I don’t understand — where do you draw the line?”

Attorneys for the plaintiffs mostly avoided the question or struggled to find an answer, with Ken Falk of the American Civil Liberties Union (ACLU) of Indiana falling back on his own form of “self-evident” truth, referring to “my mathematical diagram of marriage” in declaring that “if you have two people in it, regardless of their sexes … it’s going to look like marriage. If you have three or four people, it’s not going to look like marriage.” (Of course, for most of history, if it didn’t have a man and a woman, it didn’t “look like marriage.”)

Another Achilles’ heel for the marriage redefinition movement, despite a string of federal court victories since last year’s Supreme Court decision requiring federal recognition of same-sex unions that are legally recognized by states, is that no consensus has emerged about the legal or constitutional reasoning for declaring a “right” to same-sex “marriage.” The Supreme Court has said that the “liberty” interests protected by the “due process” clause of the 14th Amendment include a “fundamental right to marry,” which some courts have asserted also encompasses the right to marry a person of the same sex. However, the 7th Circuit judges seemed skeptical of that approach, with Hamilton saying, “Finding a federal right to marry that is undefined is a pretty problematic concept for substantive due process.” Even Posner was skeptical on this point, saying, “I think when you talk about fundamental rights … you get into a morass, right?”

Judge Hamilton asserted that “you’ve got a much stronger equal protection theory.” The problem for those seeking to overturn the marriage laws under “equal protection” is that most laws are presumed constitutional under the lenient “rational basis” test, which requires only that there be some conceivable “rational basis” for the classification in the law. Hamilton, therefore, raised the possibility that the differential treatment of same-sex couples might trigger “heightened scrutiny,” which places a heavier burden of proof upon the state to defend the law. “If we look strictly at the text,” Hamilton said, “what the statute does is classify based on sex… . So that would seem to point us in the direction of heightened scrutiny.”

Most courts, however, have viewed the “classification” as being based on sexual orientation rather than sex, and even attorney James Esseks of the ACLU, arguing in the Wisconsin case, admitted that 7th Circuit precedent does not apply heightened scrutiny for sexual orientation. (In reality, the “classification” in the marriage laws is based on “gender complementarity,” which is different from either of the other theories.) On the “heightened scrutiny” theory, Posner parted ways with Hamilton, declaring, “I don’t get any help from phrases like heightened scrutiny.” Posner, perhaps oblivious to what he was saying, even touched the third rail of debates over homosexuality by appearing to compare homosexuals to pedophiles and treat pedophilia as a “sexual orientation”:

If you were dealing with pedophiles, you wouldn’t say … any regulation of pedophiles was subject to heightened scrutiny because it’s an innate sexual orientation… . We don’t think of those terms when we’re dealing with all sorts of sexual compulsions, right? We just say, “This is obviously very harmful to other people.” So it’s illegal, even though these people can’t help it in many cases.

One thing that was disappointing in the oral arguments (in addition to Judge Posner’s vitriolic hostility to natural marriage) was the relatively weak defense offered by attorneys for the states. By focusing narrowly on the issue of accidental procreation (the one public concern that is absolutely unique to opposite-sex relationships), Indiana’s Fisher omitted broader state interests in encouraging procreation in general, and in encouraging the raising of children by both their mother and father. (Indeed, one of Judge Hamilton’s first statements to him was, “I would think that the state’s interest is equal regardless of whether the children are intended or unintended.”).

Assistant Attorney General Timothy Samuelson’s defense of Wisconsin’s law was even more vague, as he drew mockery from the judges for his reliance on “tradition” and “experience” as justifications for the one-man-one-woman definition. He was given little opportunity to develop a more technical argument he proposed regarding the difference between “negative” rights (such as protection from employment discrimination) and “positive” rights (such as access to the legal benefits of marriage). At one point, he said, “We defer to Mr. Fisher’s arguments [in the Indiana case] … [M]arriage provides a mechanism for tying unplanned children to their biological parents.” At another, he referred the judges to Supreme Court Justice Samuel Alito’s dissent in last year’s case striking down the federal definition of marriage (Alito had cited the increase in divorce rates following the adoption of no-fault divorce as an example of how changes in marriage laws can lead to unforeseen negative consequences).

In neither case did the state’s attorneys make assertions as to actual harms that might result from redefining marriage — forcing Judge Hamilton to raise the issue by mentioning friend-of-the-court briefs by pro-family professor Helen Alvare (who argues, “Redefining marriage in a way that de-links sex, marriage and children threatens to harm the most vulnerable Americans and exacerbate the ‘marriage gap’ responsible for increasing levels of social inequality in America”) and by authors Robert George, Sherif Girgis, and Ryan Anderson (who argue, “Redefining marriage would not extend its stabilizing norms, but undermine them across society.”) Fisher merely affirmed the state’s position is that they “can win without making that argument.”

Although all three judges seemed skeptical of the states codifying only natural marriage between a man and a woman, it remains unclear what argument will win in the 7th Circuit, given the lack of consensus on any constitutional rationale for striking those laws down, and the lack of a “limiting principle” to be placed upon such a redefinition of marriage.

Robin Williams, Rehab, and Reorientation

by Peter Sprigg

August 18, 2014

Robin Williams, the brilliantly talented comedian and actor, was found dead in his California home on August 11, the victim of an apparent suicide.

News coverage of his death reviewed his eclectic career, from the 1970’s TV hit Mork and Mindy to his Oscar for Good Will Hunting.

However, the media also reviewed his long history of drug and alcohol abuse. That began during his early days of television stardom. Williams reportedly gave up cocaine and alcohol, though, after his friend John Belushi died of an overdose and Williams became a father.

Williams spoke candidly about his addictions in a 2010 interview with the British newspaper The Guardian while on a publicity tour for his film World’s Greatest Dad (in which, ironically, he played a writer who fakes a suicide note and journal and attributes them to his late son).

Apparently, Williams quit alcohol and drugs cold turkey in the early ‘80’s, without any professional therapeutic intervention. He reported that he stayed sober for twenty years, but then began drinking again while working on location in a remote town in Alaska. After three years of drinking, a “family intervention” persuaded Williams to enter “rehab” (residential drug and alcohol rehabilitation) at the Hazelden Addiction Treatment Center near Newberg, Oregon, where he stayed for two months. After that, Williams told The Guardian, he continued to attend meetings of Alcoholics Anonymous every week.

Then just last month, news broke that Williams had again returned to rehab, this time at a Hazelden center in Minnesota. A spokesman for Williams said that he had not relapsed into substance abuse, but was “simply taking the opportunity to fine-tune and focus on his continued commitment [to sobriety], of which he remains extremely proud.” That was on July 1 — but six weeks later, he was dead.

In the wake of Williams’ suicide, many TV commentators and friends of the late star talked about the challenges of mental illness (Williams suffered from depression), addictions — and rehab. I saw comedian Andy Dick say, “I’ve been to rehab seventeen times.”

In light of this history, I have only one question for socially liberal political activists — why aren’t you trying to outlaw rehab?

I ask the question because such activists are trying to ban a form of mental health treatment — not drug and alcohol rehabilitation, but “sexual orientation change efforts” (“SOCE”), also known as “sexual reorientation therapy.” Such therapy involves assisting people with unwanted same-sex attractions to overcome them.

Why would someone want to change their sexual orientation? Some such individuals are simply disillusioned by their experiences in homosexual relationships. Some have legitimate concern about the well-documented health problems associated with homosexual conduct (especially among men), such as high rates of sexually transmitted diseases, of which HIV/AIDS is only one example. Others may seek help in conforming their behavior and lifestyle to the teaching of the religious faith to which they are committed. Some may aspire to a traditional family life, raising children in a home with both their mother and father present.

Whatever the motivation, there are those who have simply made a choice to walk away from the homosexual lifestyle, without clinical help — much like how Robin Williams simply stopped using drugs and alcohol in the 1980’s. Others have sought professional help, perhaps at the urging of family members, in the form of “sexual reorientation therapy” — much like when Williams entered a formal alcohol rehab program in 2006. Whether simply through personal development, religious counseling, or with the help of a licensed or unlicensed counselor, thousands (if not millions) of people have experienced significant changes in one or more of the elements of their sexual orientation (attractions, behavior, or self-identification).

Homosexual groups, however, have successfully pressured professional organizations such as the American Psychological Association to discourage such therapy. More recently, following an example set in California, legislators in several states have introduced bills to forbid licensed mental health counselors from engaging in SOCE with minors at all. Meanwhile in New Jersey (which already passed such a ban), the Southern Poverty Law Center has sued even unlicensed SOCE providers, charging them with “consumer fraud.”

Critics of reorientation therapy make two charges — that it is ineffective, and that it is harmful. But they support these charges only by holding such therapies to a standard of “effectiveness” and “safety” that is impossible for any mental health treatment to meet.

Some (but not all) clients of reorientation therapy testify to a complete transformation from homosexual to heterosexual, experiencing a change in their identity, behavior, and attractions. Others may change their identity, control their behavior, and begin to experience heterosexual attractions, but still experience occasional homosexual attractions as well. Still others may change identity and behavior, but continue to struggle with primarily homosexual attractions. Some clients change little with respect to their sexuality, but still find the therapy beneficial in exploring their feelings, family dynamics, etc. Some may seem to achieve significant changes for a period of time, but then suffer relapse. And finally, a few may simply experience little substantial change.

This range of outcomes is no different from any other form of mental health treatment — such as drug and alcohol rehabilitation. Yet critics of reorientation therapy claim that “it doesn’t work” because the proportion of clients who achieve complete transformation on a permanent basis is less than 100%. Can rehab live up to this standard?

There is actually no scientific evidence that reorientation therapy is more harmful than helpful. There are, however, anecdotal accounts of people who claim they found it harmful, or who had negative experiences after such therapy, such as depression or even suicide. However, mere chronological correlation is not scientific proof of causation — any more than Robin Williams’ suicide was “caused” by his recent return to rehab.

The real reason why homosexual activists object to reorientation therapy has nothing to do with science or mental health. Instead, it has everything to do with politics and ideology. If it is tolerable for some people to try to change from “gay” to straight — and for others to help them with the process — that might imply that it is tolerable to believe that there is something wrong with homosexuality itself. For ideological reasons, that is a belief that homosexual activists want stamped out at all costs.

If we were to apply the same standards to drug and alcohol rehabilitation that the homosexual activists want to apply to reorientation therapy, why not ban rehab? After all, since some people go to rehab and still suffer relapses afterwards, rehab is clearly “ineffective.” Robin Williams actually went to rehab, and shortly thereafter took his own life. Does that not clearly indicate that rehab is not only ineffective, but downright harmful? In addition, there are surely people who consume alcohol or use illicit drugs but are still able to function and make productive contributions to society — so there is obviously nothing inherently wrong with alcohol or drugs. Allowing people who struggle with their alcohol or drug use to seek professional help to discontinue them implies there is something wrong with them — thus reinforcing the unfair social stigma which attaches to people who use alcohol and drugs. And surely “family intervention” to force someone into rehab is a violation of their personal autonomy. In light of all these concerns, how can we allow the fraud of “rehab” to continue?

This kind of reasoning, of course, would be clearly absurd. There is no kind of mental health counseling that can guarantee it will substantially change the lives of 100% of its clients for the better. Those who do experience improvement may still struggle with temptation (hence the weekly AA meetings for support). Even among those who succeed in rehab, there can be no guarantee that none of them will, at some time in the future, relapse into the problems which caused them to enter treatment in the first place. Furthermore, the fact that a negative outcome (like suicide) follows a treatment like rehab chronologically does not mean that the treatment caused the negative outcome. It is far more likely that an underlying pathology (in Robin Williams’ case, depression) was the cause of both his substance abuse (which led him to rehab) and his suicide.

It would be absurd to ban rehab because it doesn’t work for everyone; doesn’t work 100% by eliminating all temptation; isn’t always permanent; is sometimes undertaken because of family pressure; or because bad things may happen afterwards. It would be equally absurd to ban rehab in order to protect the self-esteem of people who do not consider their alcohol or drug use to be a problem.

But the argument that we should ban sexual orientation change efforts (SOCE) is equally absurd — because it relies on all the same fallacious arguments.

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