Plaintiffs in Marriage Case Want Regnerus Ruled Out

A set of plaintiffs in Michigan who are challenging the state’s ban on same-sex marriage and same-sex adoption have filed a brief asking the court to disallow the testimony of Mark Regnerus as an expert in the case, citing the many methodological problems in his famous study of gay parenting (which wasn’t really about gay parenting at all). This is what is known as a Daubert challenge to the relevance and reliability of an ostensible expert in a case.

Daubert suggested four non-exclusive criteria “against which to measure the validity of the underlying principles and methods which undergird an expert’s opinion: [1] whether the technique or theory is capable of being tested; [2] whether it has been published and reviewed by peers in the relevant technical community; [3] the potential or known rate of error yielded by the methodology; and [4] whether the principle or theory has been generally accepted or shunned by the community of experts in the field.” The Sixth Circuit has identified several “red flags” that “caution against certifying an expert,” including (1) reliance on anecdotal evidence, (2) improper extrapolation, (3) failure to consider other possible causes, (4) lack of testing, and (5) subjectivity…

Specifically, Regnerus’s expected testimony is irrelevant because (A) it relies on misleading comparisons between children continuously raised by married parents and children who struggled with family instability, and (B) any purported association between parental same-sex romantic behavior and family instability is immaterial to

Defendants’ justification for the MMA. As a result of these flaws, Regnerus’s testimony lacks a “valid scientific connection” to the “pertinent inquiry.”…

Regnerus’s expected testimony is based on the New Family Structures Study (“NFSS”). However, the results of the NFSS are irrelevant and misleading. The study divides survey respondents into categories that are designed to show dissimilar results between children of heterosexual parents and children of parents who engaged in same-sex romantic behavior. The NFSS divides respondents with heterosexual parents into six different groups, distilling those respondents who “lived in [an] intact biological family . . . from [years] 0 to 18, and [whose] parents are still married” into a specific group labeled “IBF.” Regnerus refers to stably-coupled heterosexual households, like those in the IBF group, as the “gold standard.” The majority of NFSS respondents with heterosexual parents do not fall into this IBF group and are instead classified into one of the remaining five heterosexual-parent groups, such as “stepfamily” or “single parent” if their parents “were either never married or else divorced.” The NSFF takes a different approach to respondents who reported parental same-sex romantic behavior. It groups them into only two categories: children of “lesbian mothers” (“LM”) and “gay fathers” (“GF”). All six of the heterosexual parent categories are collapsed into these two groups, allowing the study to obscure the effects of divorce or similar factors behind a gay or lesbian label.

Despite the fact that the IBF group is designed to contain only the “gold standard” of heterosexual family arrangements, Regnerus repeatedly uses it as the baseline to which he compares the LM and GF groups. By engaging in this “apples-to-oranges” comparison, Regnerus conflates the effects of divorce, adoption, and single parenthood with the status of same-sex couples. As a result, he fails to address the relevant issue at hand — whether the MMA is justified because “only heterosexual marriages can provide children with the appropriate gender role-modeling required for healthy psychological development.” If the NFSS made an “apples-to-apples” comparison between children

of stable heterosexual couples and children of stable gay and lesbian couples, exactly two respondents would fall into the gay and lesbian analogue of the IBF group. The remaining respondents in the gay and lesbian parent groups struggled with factors like divorce that would disqualify the child of heterosexual parents from membership in the IBF group. Regnerus himself concedes that the two respondents raised by lesbian parents since birth are well-adjusted and compare favorably to the other respondents. Thus, in the only two instances where Regnerus could offer comparisons potentially relevant to the question of whether gay and lesbian couples parent as well as heterosexual couples, his study supports Plaintiffs’ claim that gay and lesbian parents can raise happy and healthy children.

I’ll be very curious to see if the judge disallows Regnerus’ testimony. The case here is pretty much unassailable, but judges are still reluctant to prevent a witness from testifying if one side calls them. But the motion asks the judge either to disallow the testimony or to give it no weight for all the reasons stated in the brief, so even if he allows Regnerus to testify, that doesn’t mean he’ll consider that testimony relevant or reliable. You can read the whole brief here.

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  • Michael Heath

    Ed concludes:

    . . . the motion asks the judge either to disallow the testimony or to give it no weight for all the reasons stated in the brief, so even if he allows Regnerus to testify, that doesn’t mean he’ll consider that testimony relevant or reliable. You can read the whole brief here.

    This appears to presume there’s no jury. I wonder if a different standard applies when a jury will hear testimony from known liars promoting a political agenda premised on lies as Mark Regnerus does. If a judge had a low bar for expert testimony when they alone determined the outcome, I would hope they’d have a much more rigorous standard when a jury was hearing the case.

    I’m reminded of the trials against tobacco companies and how those companies attorney’s presented so-called experts seeking to create false doubts about the scientific consensus on the health risks of smoking and second-hand smoke. I wonder how judges in those trials determined who didn’t qualify as an expert and who was allowed to testify.

  • colnago80

    The plaintiffs might actually be better off if the judge allows Regnerus to testify as that opens him up to cross examination and refutation by their witnesses. Discrediting of Regnerus in this suit would carry over to other actions in other states. For instance, Michael Behe’s testimony in the Dover case totally discredited him as a reputable scientist.

  • colnago80

    Re Michael Heath @ #2

    I don’t know about the Michigan action but it is my information that the trial in Pennsylvania will be a bench trial before Judge Jones, just as the Dover trial was. Since this is a constitutional issue, I would bet that the case in Michigan is probably a bench trial as the issue is the constitutionality of the law, rather then whether a defendant is guilty in the case of a criminal trial or libel in the case of a civil trial. It is my information that a jury is the trier of fact and the judge is a trier of the law.

  • colnago80

    Perhaps Ben P and/or John Pieret might want to weigh in on this issue.

  • dingojack

    I second MH’s inquiry. Is there a differing standard for jury trials? Or does the other side have to provide evidence to discredit the witness as an expert before their testimony can be ruled as ‘non expert opinion’?

    Does anyone know?


  • dingojack

    SLC – so in a jury trial the jury would be taken out and the legal issue argued by council, is that correct?


  • colnago80

    Re dingojack @ #5

    I don’t want to play lawyer here but it is my information that the answer is yes. At least for scientific evidence, any scientific evidence to be presented to a jury must be subject to what is called a Frye hearing, which essentially is similar to the Daubert test cited here in that the evidence must be generally accepted in the scientific community. For instance, the use of DNA evidence had to be subjected to a Frye hearing in Arlington, Va. which was the first jurisdiction in which it was used in the US. Another example of greater note was the O. J. Simpson case, since DNA evidence had not been accepted in California at that time (1995). The defense could have requested a Frye hearing (actually called Kelly/Frye hearing in that state) but chose not to, preferring to beat up on the data collection activities of the criminalists in the LA crime lab instead.

  • colnago80

    Re dingojack @ #6

    That’s my understanding. However, I am not a lawyer so it would be preferable if one or more of the lawyers who comment here to weigh in. By the way, a similar suit in Virginia was heard last week and it was a bench trial. Incidentally, all of these lawsuits are federal cases.

  • dingojack

    Thanks, I was just idly curious.



    Isn’t idly’ a funny looking word? I originally went for ‘idylly’ , but it just looked wrong (and, of course, it is)

  • Modusoperandi

    Update: He will be allowed to testify, but Yakkity Sax will be played in the background.

  • D. C. Sessions

    From other cases, I gather that the admissibility of evidence is before the same judge who will be weighing it in a bench trial. Of necessity, the Court is trusted to ignore inadmissible evidence since it’s too late to keep from hearing it.

  • Ben P

    From other cases, I gather that the admissibility of evidence is before the same judge who will be weighing it in a bench trial. Of necessity, the Court is trusted to ignore inadmissible evidence since it’s too late to keep from hearing it.

    I had a response written and then apparently deleted it. This is one of three possible solutions I’ve seen.

    Option 1 – the judge hears the Daubert motion, grants it or denies it, then proceeds to compartmentalize, and decide the trial based solely on the evidence introduced at the trial, as the law requires.

    Option 2 – The judge hears the motion, and rules that he’ll take it under advisement. Then he’ll hear the testimony, and simply evaluate the daubert motion along with the testimony in evaluating the credibility of the expert. This is the bench trial equivalent of a judge in a jury trial saying “I’ll let the testimony be admissible, this all goes to credibility.” The plaintiff can use the same arguments in front of the jury.

    Option 3- I’ve had federal judges appoint a magistrate specifically to hear the daubert motion and make a ruling, which the judge then accepts or rejects. That keeps the judge out of the nitty gritty of the testimony until the issue has been decided.