Tuesday, March 4, 2014

Regnerus testifies and is cross examined...and the University of Texas Department of Sociology issues disclaimer

THIS I find unusual.  The Sociology Department of the University of Texas has issued a statement that the testimony of Mark Regnerus in the Michigan second-parent adoption/same-sex marriage case does not reflect the views of that Department or of the American Sociological Association.  I can't remember ever seeing anything like that!

As I wrote about last week, the best place to follow the trial is the blog of Michigan attorney Jane Bassett, but I also recommend this Twitter feed from Trea Baldas, which provides short real time updates.  Maybe others are not as transfixed as I am, but what this court decides about Regnerus's testimony is going to have a huge impact on LGBT family litigation going forward.

To me, by his own admission, he is not saying it is worse for children to stay in foster care than to be adopted by a lesbian or gay parent.  He is not saying it is worse for a child to be adopted by a same-sex couple than by a single lesbian or gay parent.  He is not saying that blocking same-sex marriage will keep lesbians and gay men from raising children.  I just cannot see how his testimony helps the state.  He is certainly saying that children do best with their married biological parents.  He doesn't like married heterosexuals using donor eggs or sperm, but he would not prohibit it.  Nor would he categorically prohibit all sorts of other people whose children have so-called less desirable outcomes (e.g., people with less money or education) from adopting children or getting married.

As a legal matter, the significance of Regnerus's testimony depends to some degree on what level of "scrutiny," in Equal Protection terms, the court applies to the state's bans on second-parent adoption and same-sex marriage.  Under the most basic form of rational basis review, the state's argument about what the bans accomplish doesn't have to be very good; it just can't be irrational.  A decade ago, a federal appeals court found that Florida's ban on gay adoption wasn't irrational, but that ban is gone, thanks to a more recent state court ruling finding it irrational indeed.  And it is going to be hard for the state to argue going forward that the US Supreme Court's ruling in Windsor last summer leaves sexual orientation classifications under the barest form of rational basis review.

If you want to stay tuned, just check in a few times a day with the websites above.  And thanks to the writers for making it possible for the rest of us to get these details.

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