Legal Scholar’s Pro-DOMA Brief Relies on Bad Research, Worse Reasoning

by Steve Weinstein
EDGE Media Network Contributor
Thursday Mar 28, 2013

A March 27 opinion piece in The Wall Street Journal presents some the right's best-known minds' amicus brief to the Supreme Court before hearings on the validity of California's Proposition 8 and the federal Defense of Marriage Act.

Nelson Lund, a law professor at George Mason University in Arlington, Va., restates the amicus brief he filed with another intellectual star, Leon Kass. From St. John's College in Annapolis, the "Great Books School" of classic Western thought(full discloser: We intersected there for a year.), to Catholic University, the University of Chicago and Harvard, he's the new right's rock star, an associate of ideas arena, the Heritage Foundation. That's the think tank that gave us the Reagan Revolution, so prestigious Jim DeMint gave up the Senate to run it.

Lund's argument boils down to a gloss on "The Simpsons" Rev. Lovejoy's wife's "Won't someone think of the children!"


1) Studies of children raised by same-sex parents are fatally flawed, influenced by ideology or a hopelessly skewed database. As proof Lund cites a study that, he says, "relied on a sample recruited entirely at lesbian events, in women's bookstores and through lesbian newspapers."

2) Social science is inevitably influenced by the researcher's own ideology. Lund quotes the late Democratic senator from New York, Daniel Patrick Moynihan's "social scientists are frequently caught up in the politics which their work necessarily involved." He could have just looked in the mirror: George Mason groups his paper under the heading of "social sciences."

3) The only study that passes muster is one conducted by University of Texas-Austin sociologist Mark Regnerus.

4) Legal recognition of same-sex parenting would be wading into uncharted waters and should await further research.

As one of the right's best and brightest, attention must be paid.

If he was skeptical about his own field of expertise, Daniel Moynihan had no such doubts about the Defense of Marriage Act, which he, unique in his time, vehemently opposed and voted against. In 2004, at the dawn of U.S. marriage equality, Ben Smith sought out Moynihan's widow, Elizabeth. In The New York Observer, she said her husband would cheer: "Gay marriage, that's people saying marriage is good."

Moynihan most famously decried the lack of two-parent homes as the underlying cause of America's underclass. That led Mike Huckabee to channel the late senator, who, he said, "understood the economic reality of out-of-wedlock children." Ruth Marcus, in The Washington Post, took the same thought to the opposite conclusion: "Isn't that an argument for same-sex marriage?"

Not the Best Researcher to Rely On
It's the centerpiece of Lund's' Journal argument, however, that proves its undoing.

Regnerus, he writes, found that children raised in same-sex households "were at a significant disadvantage with respect to a number of indicators -- such as depression, educational attainment and criminal behavior - compared to children of intact biological families."

Except that he didn't.

As soon as a peer-reviewed scholarly journal published the University of Texas at Austen sociologist's paper, 200 of his peers, along with activists and organizations like GLAAD, ripped it apart. It soon came to light that the anti marriage-equality Witherspoon Institute and Bradley Foundation sought someone who they knew would come to conclusions they wanted. They paid Regnerus $700,000.

Since Regnerus could only borrow the data from other studies on 248 couples, that's about $3,000 per. Instead of a gold-plated study, Regnerus came up what a member of the peer-reviewed journal that published -- and then retracted -- his paper called "bullshit." Or maybe golden cow pies.

After reviewing the paper, the editorial board of "Social Science Research" concluded, according to board member Darren Sherkat, that Regnerus' methodology was so "extremely misleading," it should have "disqualified it immediately."

Just this month, American Independent reporter Sofia Resnick exposed how Witherspoon "choreographed its release in time to influence [verbatim from the documents] 'major decisions of the Supreme Court.'" Resnick also found that Witherspoon timed the results for maximum impact on public opinion. "Witherspoon's president clearly expected results unfavorable to the gay-marriage movement," she writes.

Finally, even Regnerus himself backpedaled. "I said 'lesbian mothers' and 'gay fathers,' when in fact, I don't know about their sexual orientation," he admitted. "Self-identity is a different kind of thing than behavior, and lot of people weren't out in that era."

Groups like the U.S. Conference of Catholic Bishops, congressional Republicans and academics like Lund remains unfazed by the repudiation of Regnerus' peers, his publisher, and even himself. They blithely continue to use Regnerus as the gold standard by which all children of same-sex parents should be judged.

It would be a lot more fun to hear Lund weigh in on Regnerus' latest study released late last year.

In the name of research, the Christian scholar spent lonely hour after lonely hour gazing at online porn. His thesis: Porn doesn't "discriminate one sex act from another. Gazers are treated to a veritable fire hose dousing [sic] of sex-act diversity." It also "redirects sex from any of it as a baby-making activity" and "reinforces the idea that people can share their bodies but not their inmost selves"

Warning that "correlation doesn't mean causation," Regnerus then proceeded to massage data from a broad survey conducted by his own school of 18 to 39 year olds. Not surprisingly, Regnerus was able to come up to the same conclusion with which he started: The more straight men watch (straight, if hardly narrow) porn, the more likely they are to support same-sex marriage. "Young adult men's support for redefining marriage may not be entirely the product of ideals," he wrote, but is "a byproduct of regular exposure to diverse and graphic sex acts."

If Regnerus had really wanted to save marriage, why didn't he figure out how to make porn that encourages "baby-making activity"? The baby-hating voters of Los Angeles County didn't help either when they voted to force porn actors to use condoms on the set last year.

Ridiculous? Yes. Also Malicious.
All of this would be ludicrous, yet another instance of "organizations that tout the value of politically congenial research that suffers from more severe methodological shortcomings" (Lund's words) did it bring so much misery to the lives of so many.

Ideologues masking as practitioners of the scientific method like Regnerus can be dismissed as useful idiots. It's the Lundites who use these bogus studies to persuade lawmakers to do as much as they can to deny gay men and lesbians the means to do their job, so they can become the unfit parents the right always said they were. Godwin's Law, applied: Reduce Jews to the level of animals, so you prove they're animals.

Nor does Lund acknowledge reality. Whether by surrogacy, adoption, opposite-sex, marriage, guardianship, kidnapping or finding a handbag in the cloakroom of Victoria Station, gay men and lesbians have been raising children ever since it first took a village, and will continue to do so until that's left of life on this planet are cockroaches and Cher.

Lund not only isn't thinking of the children. He doesn't give a damn about them, as long as marriage remains the bedrock of society.

Riiiiight ...Like Carmen Electra's nine-day marriage to Dennis Rodman. Or Mario Lopez's to Ali Landry; 18 days. Or Pamela Anderson and Kid Rock; 122 days. (Ask Regnerus if there's a sex tape circulating on the Internet). And the winner -- so far: Britney Spears and Jason Alexander, 55 hours. Or how about women who change marriages more often than the rest of trade in our cars, like Zsa Zsa Gabor, whose nine thus far (give her time; she's not dead yet) beats out "poor little rich girl" Barbara Hutton's seven? At least they got to share playboy Porfirio Rubirosa's legendary endowment.

Isn't it reassuring to know that two people whose time together on this earth can be measure in decades won't bring about the decay of that?

What's really scary, however, is that someone as careless -- or clueless - as Lund is teaching our future lawyers and lawmakers. A constitutional scholar who clerked for Supreme Court Justice Sandra Day O'Connor, the current justices, Lund predicts "are unlikely to take so momentous a step unless they are persuaded that granting this new right to same-sex couples will not harm children." They'll be persuaded to vote for traditional marriage in both cases.

I'd rather place my money with every other right-wing pundit, from Fox News to the National Review to Rush Limbaugh, and bet the Supremes won't fall for "bullshit" masking as science.

Steve Weinstein has been a regular correspondent for the International Herald Tribune, the Advocate, the Village Voice and Out. He has been covering the AIDS crisis since the early '80s, when he began his career. He is the author of "The Q Guide to Fire Island" (Alyson, 2007).


  • , 2013-04-01 02:03:59

    I disagree with you there. The author takes a rather personal approach to this story, and does state his opinions a few times. But it is, for the most part, a presentation of facts and quotes where the authors opinion shines through, but does not overtake the facts.

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