I’m stepping out of discussions about the marital presumption for a moment to raise what is really a much broader issue. Generally the choices people make when advocating for any particular rule in family law (and in law generally, I would guess) are driven by some goal that they are trying to achieve.
For instance, in family law many people advocate for particular legal arrangments because they care about the well-being of children. Indeed, it is probably fair to say that the well-being of children is the single most broadly agreed upon goal of family law. There are other goals you an advance of course—interests of and/or fairness to adults, say. But the consideration of children—for a whole range of reasons–is often centrally placed in the debate.
Now the fact that many people agree on the centrality of the well-being of children does not mean that people agree on what family law should be. There are at least two reasons for this. First, I’m not sure we agree on what the well-being of children means. But more importantly, we don’t agree on what policies serve the well-being of children.
To illustrate with an issue that is frequently raised here, some people assert that the well-being of children is served when they are raised by their genetic parents. That leads them to advocate for legal recognition of parents on that basis, which makes perfect sense. But I don’t agree with the premise–that the well-being of children is served when they are raised by their genetic parents–so I don’t reach the same conclusion.
Now we can argue–forever, I imagine–about what might serve the well-being of children. I suspect when we do that we draw on some blend of our own experience leavened by education, anecdote and I’m not sure what else. But it’s also a subject that is (frequently) studied and so one can bring the results of the studies into the picture.
Now I’m generally a fan of science and scientific research. I believe that well-crafted research can help us discovery important truths about the world. But studies about the well-being of children aren’t like physics experiments and they are at best very difficult to well. You just cannot study a child raised by her/his genetic parents and then study the same child not raised by his/her genetic parents. You cannot take identical twins, separate them at birth and have one raised by the genetic parents and the other raised by a family that is identical to the genetic parents except that there’s no genetic connection.
I don’t mean to despair completely. There are certainly sound studies. But there are also so many unsound studies–and they may be unsound for different reasons. Yet if we (and I include myself in the “we”) like the conclusions they reach we may be a little more charitable about methodological problems.
At this point, let me be a bit more specific and talk about what got me started on this just now. There’s a trial being held in Michigan just now about whether a lesbian couple should have the right to adopt each other’s children and to get married. (The women have been foster parents and each has adopted some children, but the other cannot complete an adoption because MI won’t allow the women to marry and only married couples can co-adopt.)
The state’s contention is that different sex couples make better parents than same-sex couples do–or perhaps even that same-sex couples don’t make good parents. Obviously that is a disputed contention and the trial is supposed to resolve the dispute. (There’s a second issue that I haven’t seen addressed much: Even if it is true that different sex parents are better, how does barring same-sex couples from marrying encourage different sex parents to have children? Or how does letting same-sex couples get married harm different-sex parents? I think the state needs to make this connection in order to prevail here.)
Anyway, the state is relying primarily on a study by Mark Regnerus, a professor of sociology at the University of Texas. Professor Regnerus is the author of a study published a couple of years ago that found that young adults who had a parent who had been in a same-sex relationship fared less well than their counterparts who did not have such a parent.
The study has been the focus of a lot of criticism, largely because Regnerus did not compare children raised by same-sex couples to children raised by different sex couples. He compared children raised by different sex couples with children who were raised by a parent who at some point had a same-sex relationship. (You can read more about why this is a problem here or many other places I’m sure you can find.)
But now there’s this trial. And at trial Professor Regnerus will testify (next Monday, I believe) and he will be subject to cross-examination. (You can read a blog of the trial thus far here and you’ll see that there’s already groundwork for the cross-examination and you can also see a bit about the methodological objections to other studies.)
I’m eager to watch this all unfold. I’m curious about how the judge will reach a decision. Is it a question of credibility–who is telling the truth? Or does the judge decide which methodology is better?
What I really wonder, though, is whether anyone will be convinced of anything they didn’t already believe.
I’ve more to say on this topic but this is quite long enough, so I’ll stop right here.