Cross-posted on Queer(ing) Law
The American Sociological Association just filed an amicus brief in the same-sex marriage cases at the Supreme Court presenting the strong social science consensus that children of same-sex couples fare just as well as children of opposite-sex couples. This brief hasn’t received much attention in the mainstream press, but it has been mentioned in at least some of the blogosphere (see here, here, and here). I’m going to summarize the main points from the brief, then I will praise the brief for focusing on family stability instead of marriage, and finally I’m going to argue that this brief exemplifies the role that the ASA should play at the Supreme Court.
Summarizing the Brief
The amicus brief has two main sections. In the first section, it presents the scholarly consensus that “children of same-sex parents fare just as well as children of opposite-sex parents.” In the second section, it specifically responds to studies claimed to undermine this consensus. In particular, the brief details the methodological flaws and limitations of the Regenerus study that the anti-same-sex marriage side has heavily cited.
The brief starts out by presenting the “numerous nationally representative, credible, and methodologically sound social science studies [that] form the basis of this consensus.” It goes into detail on how these studies reveal no differences across several important measures, including “academic performance, cognitive development, social development, psychological health, early sexual activity, and substance abuse.” In very accessible language, the brief highlights the methodological strengths of various studies. Implicit in this discussion is the special authority of the ASA and its members in judging the methodological soundness of sociological research. The brief emphasizes that findings on child welfare are consistent across multiple areas. It also notes that, as a legal matter, the research presented in the brief is consistent with what experts presented at the trial level and the conclusions in the lower court opinions.
In the second section, the brief directly addresses the studies that opponents of same-sex marriage cite as support for claims that children fare better with opposite-sex parents. The brief carefully illustrates how these studies do not address same-sex parents. The ASA brief also argues that opponents of same-sex marriage mischaracterize the results of the studies. In particular, the brief includes a detailed discussion of the methodological flaws and weaknesses in the study by Mark Regnerus (himself a sociologist).
As explained in the ASA brief, the Regnerus study is heavily cited for the idea that children of opposite-sex couples fare better than children of same-sex couples. The study “examines children who… had a parent who at any time had a same-sex romantic relationship.” The vast majority of these children were not raised by stable same-sex couples. Instead, most of these were children of divorced opposite-sex couples where one parent later had a same-sex relationship of any duration. In many cases, the child did not even live with the parent in a same-sex relationship. Regnerus compared this group to children raised by married opposite-sex couples. The ASA brief powerfully makes the claim that Regnerus’s results only point to the importance of family stability and have no implications for same-sex parenting: “If any conclusion can be reached from Regnerus’s study, it is that family stability is predictive of child wellbeing.”
The brief then explains how anti-same-sex marriage groups mischaracterize other research involving single parents, divorced parents, step-parents, and adoptive parents. As with the Regnerus study, this other research shows how family stability matters to child outcomes but does not have implications for same-sex parenting. In fact, as the ASA brief notes, the authors of some of this other research have rejected the ways that anti-same-sex marriage groups have tried to use it.
How the Brief Avoids Privileging Marriage
Advocates for same-sex marriage frequently argue that the children of same-sex couples are hurt by laws prohibiting same-sex marriage. Same-sex marriage becomes the only solution to promote the welfare of children of same-sex couples. In this formulation, marriage and married couples become privileged over any other family form (see Nancy Polikoff for a great discussion of the problems with privileging marriage). Scholars from various disciplines argue that this leads to a failure to consider how state and social support matters to families that do not fit the two-parent married-couple model.
I was happy to see that ASA’s brief avoided this privileging of marriage. A few sentences (in a long brief) do suggest this idea of marriage as the solution. For example: “To the extent some of the studies cited by BLAG and the Proposition 8 Proponents show that stability improves child outcomes, they confirm that marriage rights for same-sex couples and the federal recognition of such marriages are likely to improve the wellbeing of children of same-sex parents by providing enhanced family stability;” “Extending this logic to the context of same-sex couples and their children, recognition of marriage rights of such couples could improve, not impair, the wellbeing of children being raised by currently unmarried same-sex parents” (Emphasis added). Even here, the language is careful. Marriage could contribute to the well-being of same-sex children, but it is not privileged as the only solution or the necessary goal.
Outside of these few sentences, the body of the brief forcefully argues that family stability is the key concern. The brief carefully avoids privileging marriage as the source of this stability: “In sum, as the overwhelming body of social science research confirms, whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s well being. Instead, the consensus is that the key factors affecting child wellbeing are stable family environments and greater parental socioeconomic resources, neither of which is related to the sex or sexual orientation of a child’s parents.” The brief “demonstrat[es] that children of residentially stable same-sex parents are as likely to make normal progress through school as children from stable opposite-sex married parents.”
This is true even when the brief explains why studies that compare divorced or single parents to married opposite-sex parents have no bearing on same-sex parents. The brief explains that “the studies confirm that parental stability and higher parental socioeconomic resources are the key drivers of positive child outcomes.” It would be easy to treat marriage as the explanatory factor for why married opposite-sex parents fare better than single parents, using that to argue for same-sex marriage. But the brief instead explains that parental stability is the key factor. By insistently focusing on family stability instead of marriage as the predictor for positive child outcomes, the brief avoids privileging marriage.
As a scholar who has worked on the power of law to legitimize and privilege marriage above other family forms, I particularly appreciated this care in not privileging marriage.
This Brief Exemplifies the Role That ASA Should Play
While ASA does not frequently file amicus briefs at the Supreme Court, this is not the first time that it has done so. The last time (that I’m aware of) that ASA submitted an amicus brief was in 2011, in the Wal-Mart v. Dukes case. In the Dukes case, William Bielby (past president of ASA) presented expert testimony on how Wal-Mart’s managerial culture may have led to a consistent pattern of gender discrimination in employment. ASA’s amicus brief specifically did not take sides on Bielby’s substantive argument, instead defending the scientific legitimacy of his methods (Nielsen et al. 2011). The debate surrounding that brief raises useful issues to think about how ASA should be involved at the Supreme Court.
One of ASA’s key roles is defending and promoting sociology as a discipline. By filing an amicus brief at the Supreme Court, ASA puts its imprimatur on a set of scientific claims as legitimate. While different parties disagreed over how ASA’s Dukes brief presented the scholarly literature, they did agree that ASA could play a key role in certifying to the court the state of scientific knowledge in a field (Nielsen et al. 2011, see also other articles in that same special issue of Sociological Methods and Research). The same-sex marriage brief is a model for this goal of presenting the state of scientific research. The brief reflects an extensive review of the relevant literature. It includes key discussions of methodology, laying out in layman’s terms why the methods used in particular studies are important. The brief takes the time to describe the process of developing scientific consensus around how parenting impacts children. Instead of making more aggressive normative claims about how children should be raised or how same-sex parents are good for children, the brief is limited to the very modest claim that no evidence shows that children of same-sex parents fare any worse than children of opposite-sex parents.
One of the key questions that came up in debate over the ASA’s Dukes brief was over the strength of the causal claims. Opponents of the brief claimed that even if Bielby accurately described the literature on employment discrimination, he had insufficient data to determine what happened at Wal-Mart. The ASA’s brief, however, only defended the applicability of sociological methods to individual case studies, not Bielby’s specific substantive arguments. Likewise, in the marriage cases at hand, the ASA brief does not make any causal claims about Proposition 8 or DOMA. The brief is limited to presenting the scholarly consensus that children of same-sex parents fare no worse than children of opposite-sex parents. From there, many advocates jump to the argument that Proposition 8 and DOMA are harmful to children of same-sex parents. But the ASA brief is far more measured. In a couple places it offers a qualified suggestion that marriage may promote the family stability that benefits children. But the bulk of the brief specifically does not engage with what impact, if any, Prop 8 or DOMA has had on families.
Perhaps the most contentious issue in the ASA brief is the strong direct refutation of the conclusions that the supporters of Prop 8 draw from the Regnerus study. Can a professional association present a scholarly consensus when at least one of its own members argues against that consensus? There might never be complete unanimity on any scholarly point. But as Nielsen et al (2011) so eloquently explain: “What does this mean for disciplinary associations like the ASA? It could mean abstention from the public sphere; because sociologists disagree, their collective representative cannot speak to these debates. But this solution comes with a major consequence. If the ASA does not represent our discipline, someone else will.”
Judges and courts are going to use social science evidence, whether we participate in court or not. Various studies suggest that judges actually do try to apply the relevant scientific standards to evidence presented in court. Judges want to know if evidence holds up to the standards of its discipline. They look for markers of acceptance in the scholarly community. ASA (and other professional academic organizations) can play a key role in providing this evidence. ASA’s brief in this case carefully detailed the numerous studies that went into producing a scholarly consensus. The brief particularly emphasized the methodological standards involved. It carefully explained the methodological flaws in Regnerus’s study, but even then the brief only claimed that the study did not support the results claimed of it. The brief was careful to provide the justices with the tools to evaluate the scientific knowledge for themselves. The brief uses strong, clear language to “[state] our findings in ways that are relevant to the questions before the court” (Nielsen et al 2011).
Without the ASA brief in this case, the Regnerus study would have stood for the voice of sociology. Thus the choice of whether to file a brief was not made in a vacuum. The choice was to stand up for disciplinary standards and methodological rigor. The choice was to identify what criteria sociologists agree on in studying same-sex parents. The choice was to defend the role of our discipline in the public sphere. And I’m glad that ASA filed the brief that it did.
Nielsen, Laura Beth, Amy Myrick, and Jill Weinberg. 2011. “Siding with Science: In Defense of ASA’s Dukes v. Wal-Mart Amicus Brief.” Sociological Methods and Research 40(4):646-67.
Polikoff, Nancy D. 2008. Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law. Boston: Beacon Press.