By Sunnivie Brydum
Originally published on Advocate.com April 10 2014 2:00 PM ET
Just hours before lawyers for the state argued before the 10th Circuit Court of Appeals that Utah's ban on marriage equality is constitutional, those same attorneys distanced themselves from a widely debunked study that claimed children are better off in homes with opposite-sex parents.
The defense attorney representing Utah's Republican governor filed a last-minute notice with the 10th Circuit Court in Denver at 6:22 p.m. Wednesday contending that University of Texas associate professor Mark Regnerus' parenting study had "very little relevance" to the state's case defending its constitutional amendment banning same-sex marriage, according to BuzzFeed's Chris Geidner.
Attorney Gene Schaerr, who is representing the interests of Utah Gov. Gary Herbert in the case before the 10th Circuit Court of Appeals today, said he was filing the notice, which Geidner calls "unusual," "in response to recent press reports and analysis of the study by professor Mark Regnerus."
Although the state cited the study in two separate footnotes in its brief defending marriage inequality, "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," writes Schaerr in the motion.
Indeed, the Regnerus study — widely cited by conservative opponents to marriage equality — faced strict scrutiny from the time it was first released, as fellow academics, scholars, an even the American Psychological Association critiqued Regnerus' methodology and the sizable payment he received from right-wing groups to conduct the study in the first place. As early as October 2012, Regnerus himself admitted that he has used faulty data, comparing the adult outcomes of children raised in households with two married, opposite-sex parents, to those of children raised by single parents who had at one point had a gay or lesbian relationship. Just three weeks ago, a federal judge wholly dismissed Regnerus' supposed "expertise" on the issue after the associate professor testified in defense of Michigan's ban on marriage equality. Federal District Judge Bernard Friedman, who overturned Michigan's ban on same-sex marriage last month, also wrote that "The Court finds Regnerus’ testimony entirely unbelievable and not worthy of serious consideration," according to ThinkProgress.
In its motion, Utah backtracks on its arguments citing Regnerus's supposed conclusions, claiming that they weren't relevant to the state's case anyway.
"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," writes Shaerr in the motion, published in part at ThinkProgress. "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."
Attorneys for the state and for the three same-sex couples who challenged the constitutionality of Utah's constitutional amendment prohibiting marriage equality are arguing their case before the a three-judge panel at the 10th Circuit Court of Appeals in Denver today. The same panel will hear arguments surrounding Oklahoma's marriage inequality next Thursday, in the first pair of marriage equality cases to reach the appellate level.
Many observers expect either the Utah or Oklahoma case to reach the Supreme Court, possibly prompting the nine justices to definitively rule on the constitutionality of bans on same-sex marriage nationwide. Even if the Utah and Oklahoma cases don't reach the Supreme Court, the rulings will impact current statutes regarding marriage in the 10th Circuit, which includes Kansas, Colorado, New Mexico, Wyoming, Oklahoma, and Utah. Five other district appellate courts are considering challenges to state laws barring marriage equality, and most observers expect at least one — if not several — to reach the Supreme Court within the next few years. While the nation's highest court stopped short of mandating marriage equality nationwide in its June 2013 ruling in Windsor v. U.S., every subsequent federal trial challenging state marriage laws has resulted in a federal judge ruling in favor of the same-sex plaintiffs.