Heard From, at Last
California Lawyer

Heard From, at Last

June 2014

Michigan's federal trial over same-sex marriage included evidence that courts in California never heard. Defenders of California's Proposition 8 banning same-sex marriage withdrew most of their expert witnesses in 2010, claiming they were intimidated by the (short-lived) prospect of video coverage. But two of them did testify this March - in defense of Michigan's ban: economist Douglas W. Allen of Simon Fraser University in Canada, and Loren D. Marks of Louisiana State University, an associate professor of child and family studies.

Allen testified that Canadian census data showed children raised by married heterosexual couples were more likely to graduate from high school than those raised by same-sex parents. Marks faulted the plaintiffs' studies, saying they were too small.

U.S. District Judge Bernard Friedman was unimpressed. The Reagan appointee found a consensus among some 150 studies that children fare just as well in gay as in straight households. In a ruling now on appeal, he wrote that Allen's study was myopic and that Marks's testimony represented a "fringe viewpoint." (See DeBoer v. Snyder, 2014 WL 1100794 (E.D. Mich.).)

Theodore J. Boutrous Jr. of Gibson, Dunn & Crutcher in Los Angeles, one of the attorneys who succesfully challenged Prop. 8, said the Michigan ruling demonstrates that claims of scientific support for a ban on gay marriage can't survive in court. But John Eastman, a law professor at Chapman University and chairman of the National Organization for Marriage, says the judge's response to conflicting testimony showed how "science has become political."

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