In Appeal, Gay Marriage Opponents Seek to Regulate Sexual Behavior

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Gerry Bello's picture
Discredited researcher Mark Regnerus's feels gay marriage will lead to bad things; very bad things. Photo courtesy of bilerico.com

By Gerry Bello

The Ninth Circuit Court of Appeals is currently hearing several major cases relating to gay marriage. Rulings on one or all of them can be expected in within weeks. The cases challenge laws prohibiting gay marriage in Hawaii, Nevada, Idaho and Arizona. Intervention by additional private parties seeking to maintain a ban on gay marriage have happened in two of those cases.

Intervention in a court case is uncommon. It is a legal maneuver by which a party files a motion, friendly or not, to be added to a case as a party, typically as a defendant. Friendly intervenors are typically brought in to a case because they come with finances, legal expertise and other resources. Two of the the gay marriage cases before the Ninth Circuit Court of Appeals (Nevada and Hawaii) have seen private groups enter the case as intervenors, in order to assist those States' defense of legislation banning gay marriage. The text of their appeals are instructive as to their actual motivations and thinking.

In the Hawaii case, Jackson v. Abercrombie, the district court dismissed the appeal as moot because the law in question had been repealed by the legislature. The Hawaii family forum has appealed that dismissal hoping that another case, such as the one in Nevada (Sevick v. Sandoval) will be found in favor of a gay marriage ban. This would in turn allow the case to become a challenge to the new Hawaii law instead of a defense of the restrictive older law.

In Nevada's Sevick v. Sandoval, the intervenors brief is even more telling in its attack on gay marriage and the background of its authors and supporters. Written on behalf of the Nevada Coalition for the Protection of Marriage, it rests on flawed social science and naked religious appeals. It states in part “The man-woman meaning at the core of the marriage institution does and will influence people and guide their conduct now and in the coming generations in ways positive and beneficial to children generally, to the generality of adults, and to our Nation’s commitment to religious liberties.” Their claim rests on the concept that children in Elko will come to know that other children have same-gender parents in Las Vegas and their parents religious freedom will be somehow undermined.

The brief goes further in claiming that a same-sex couple being married is damaging to the religious freedom of those citizens who are straight. “A court-imposed change in the definition of marriage inevitably would create a wide variety of religious-freedom conflicts for individuals who object to genderless marriage on religious grounds.” The presumed infringement would be the infringement on the right of para-church organizations and private companies to deny benefits to same-sex couples based on religious doctrine.

From the writing of the brief, the Nevada Coalition for the Protection of Marriage clearly finds lesbian couple more objectionable than gay couples. They state “Man-woman marriage teaches an important cluster of norms and ideals: of a child knowing and being reared by her mother and father, of a child being raised by parents who can at the very least give her the benefits of gender complementarity, and of a child experiencing a father rather than fatherlessness in the home.” The selection of the genders of both child and parents in this quote clearly show that this private group has intervened preserve the benefits of daddy having control over his little girl regardless of what mommy wants. Thus a ruling in this case against the plaintiffs could conceivably also be used or cited in subsequent attacks on the institution of divorce, on child custody, and other family court issues.

The brief also rests its arguments in favor of gender binary exclusivity in legal marriage on a very controversial study. How different are the adult children of same sex relationships? Findings from the New Family Structure Study was written by Mark Regnerus, a sociology professor at UT Austin. The study has faced major scrutiny in the past including being repudiated by Regnerus' academic department chair. The study was also marred by disputes of the validity of its data by the American Medical Association, The American Society of Pediatrics and The American Sociological Association.

Dispite its rocky road in academia, the study is being presented in appeal case as evidence that children of gender-binary couples became more successful and happier adults than children of same-sex couples. The data disputed in the study centers around Regnerus making extensive use in his sample set of children from single parent households where one parent (sometimes not the custodial parent) had same-sex sexual experiences. His study did not differentiate whether these sexual experiences were within the context of a relationship, with the mother or father's life partner, were singular or episodic, or involved the custodial parent at all.

The study was funded by a conservative think-tank in New Jersey called the Witherspoon Institute.

Regnerus is no stranger to controversial behavior and statements. The Huffington Post caught up with him at a speech he gave at the Franciscan University of Steubenville in which he claimed that gay marriage, a monogamous institution, would lead to non-monogamy and anal sex for straight couples. "If gay marriage is perceived as legitimate by heterosexual women, it will eventually embolden boyfriends everywhere, and not a few husbands, to press for what men have always historically wanted but were rarely allowed: sexual novelty in the form of permission to stray without jeopardizing their primary relationship," He then went on to claim that "'normalization of gay men's sexual behavior'" in society will contribute to a surge in the "'practice of heterosexual anal sex.'"

What is clear from the construction of these briefs is that the attack on same-sex marriage is not an attempt to merely stop the clock of progress, but to turn both the clock and the calender back to a different time. This time seems to be one where they could argue that municipal fire codes infringe on their religious freedom to burn alleged witches at the stake.

Despite efforts by conservative activists, the federal court system has taken a dim view of attempts to proscribe same-sex unions since the Supreme Court struck down the Defense of Marriage Act. This has forced them, like their fellow travelers in anti-abortion movement, to take their struggle to control the private lives of others at the state and local level. The brief filed in Nevada cites the brief filed in Hawaii. It also cites a study carried out by a professor in Texas that was financed from New Jersey. We may be witnessing a national effort by the right-wing to create a de-centralized network similar to the pro-life movement, to attempt to force society to conform to their narrow worldview.

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