Expert Witnesses Contribute to Same Sex Marriage Litigation


Same Sex Marriage Expert WitnessLast week, the Supreme Court made it unlawful to prevent same-sex marriage. Obergefell v. Hodges 576 U.S. ___ (2015). This landmark ruling is the culmination of several cases challenging state laws or policies that discriminated against same-sex couples. Such as Bourke v. Beshear, in which a U.S. district court and Sixth Circuit Court of Appeals found that Kentucky was required to recognize valid same-sex marriages from other jurisdictions. Tanco v. Haslam, in which a U.S. district court and Sixth Circuit Court of Appeals relied on Beshear to find that Tennessee must recognize valid same-sex marriages as well. Also DeBoer v. Snyder, which involved Michigan laws banning same-sex marriage and adoption by unmarried same-sex couples.

These cases were consolidated with Obergefell. Which involved the Ohio Registrar discriminating against same-sex couples legally married in another state, to be heard by the Supreme Court. Of these cases, the Michigan case, DeBoer v. Snyder, which received the most treatment from the Supreme Court aside from Obergefell, saw both sides making extensive use of expert witnesses. DeBoer v. Snyder, 772 F.3d 388 (2014).

The plaintiffs in DeBoer filed suit in the U.S. District Court for the Eastern District of Michigan in January, 2012, on behalf of themselves and their three children. Their suit challenged the state’s ban on adoption by same-sex couples so that the plaintiffs could jointly adopt their children. It also named the governor and state-attorney general of Michigan as defendants, as well as the Oakland County Clerk. Michigan law restricts second-parent adoption to married couples, and prior to Obergefell did not license or recognize same-sex marriages. It was determined that the ban on same-sex marriage was the underlying issue here. So the case focused as much on that as it did the adoption issue, since being allowed to marry would help the plaintiffs circumvent the second-parent adoption law.

Ten expert witnesses testified at that trial, five for the plaintiffs and five for the defendants. The plaintiffs’ experts testified that same-sex couples were equally capable of raising children as heterosexual couples. They also testified as to why same-sex marriage should be accepted in general. The defendants’ experts testified that children raised in non-traditional homes are disadvantaged. They also pointed out that studies relied on by plaintiffs were based on small sample sizes that were statistically inadequate. Although the district court ruled in favor of the plaintiffs, the Court of Appeals overturned that decision. Stating the Fourteenth Amendment didn’t prohibit a State from defining marriage as a relationship between one man and one woman.

The following are summaries of each of the expert witness’s testimony:

Plaintiff Experts

1). The plaintiffs’ first expert witness was a psychologist who focuses on psychological issues in gay and lesbian parenting and adoption. Including the effects on children who grow up in non-traditional families. This expert testified that there was no discernible differences in children raised by same-sex couples as opposed to those raised by heterosexuals.

2). The plaintiffs’ second expert was a professor of American history at Harvard University who specialized in the history of gender and sexuality. This professor had researched the evolution of gender roles and marriage trends for decades. She testified that discrimination involving marriage, such as interracial marriage, has eroded over time. She also cited to the historic lack of any law listing procreation as a requirement for marriage, a common argument made by opponents of same-sex marriage.

3). The plaintiffs’ third expert wrote a doctoral dissertation which used United States Census data to find that the number of gay people in Michigan was increasing. Noting the increasingly positive attitude about gay marriage among the general population.

4). The plaintiffs’ fourth expert was a professor of sociology at Stanford University and a social demographer. He testified that there is no basis for believing that children develop better in households with heterosexual parents based on studies he performed using United States Census data.

5). The plaintiff’s fifth expert was a law professor at the University of Michigan, and the university’s head of the Child Advocacy Law Clinic. He testified that more children would be adopted if same-sex couples had the same joint-adoption rights as heterosexual couples. Since they would know that if they died or became incapacitated, the other parent would be able to assume the legal right of custody over them.

Defense Experts

1). The defendants’ first expert was an economist at Simon Fraser University in Vancouver, British Columbia. This expert has found in his studies that there is a nexus between same-sex parenting and childhood instability. Citing that children raised by same-sex couples are 35 percent less likely to make normal progress through school compared to those children coming from traditional married households. He said that any reports stating otherwise rely on limited data and small sample sizes. During cross-examination, this expert stated that he believes homosexual acts are grounds for being sent to Hell.

2). The defendants’ second expert was Lisa Brown, a Democrat who was elected Oakland County Clerk & Register of Deeds, a defendant in the case. However, Brown testified that she was in favor of same-sex marriage.

3). The defendants’ third expert works for the Louisiana State University School of Social Work and has researched the role of faith in families. His testimony focused on the small sample sizes that the Plaintiff’s witnesses relied on in their studies.

4). The defendants’ fourth expert was an economics professor at Brigham Young University. He testified that using the same data that plaintiff’s fifth expert used, he in fact arrived to the conclusion that children raised by same-sex couples were 35 percent less likely to make normal progress in school.

5). The defendants’ fifth and final expert was an associate professor of sociology at the University of Texas at Austin. He conducted research that looked at children in stable, long-term two parent homes compared to those in less-stable homes. After admitting that this research did not specifically focus on same-sex parenting, he testified that there is not enough evidence available for social scientists to make conclusions about the ability of same-sex couple to raise families.

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About The Author

Jared Firestone, J.D., is a personal injury attorney, licensed realtor, and freelance legal writer who writes on contracts, advanced legal research, and E-discovery.