The Original Meaning of the 14th Amendment Supports Same-Sex Marriage

As pointed out by the dissenters in the case and by other critics, the great weakness in Justice Kennedy's opinion for the majority in Obergefell v. Hodges is that he does not make a good argument for how the text of the Constitution--particularly, the 14th Amendment--supports his conclusion that state bans on same-sex marriage are unconstitutional.  This is surprising, because Kennedy had access to an amicus curiae brief from the Cato Institute written by William Eskridge and Steven Calabresi (2015) that developed a cogent argument for how the original meaning of the 14th Amendment required striking down state bans on same-sex marriages, because these bans treat gays and lesbians as an inferior caste or class, and thus deny them the "equal protection of the laws" that is guaranteed by the 14th Amendment.

Two of the leading proponents of originalism--Antonin Scalia and Clarence Thomas--were dissenters in Obergefell; and so, as Eskridge (2015) has observed, Kennedy missed a perfect opportunity in this case to show the originalists that the original meaning of the Constitution really did require constitutional protection for same-sex marriage.  The five justices in the majority and two of the dissenting justices (Roberts and Alito) ignored original meaning altogether.

As Steven Calabresi and Hannah Begley (2016) explain it, a good originalist reading of the 14th Amendment needs to show the original meaning of the constitutional text as opposed to any supposed original intent of those who wrote or ratified that text.  In the case of same-sex marriage, the crucial constitutional text is the second sentence of the first section of the 14th Amendment:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Looking for the original intent of the congressmen who wrote and ratified this Amendment, an originalist like the late Chief Justice William Rehnquist would say that the framers of the 14th Amendment wanted to strike down the Black Codes in the southern states that were pushing the newly emancipated black slaves into an inferior caste status; and therefore the 14th Amendment is limited to prohibiting race-based discrimination, and it does not apply to other kinds of discrimination--such as sex discrimination or discrimination against homosexuals.  Moreover, those like Rehnquist might say, there is no evidence in the legislative history of the 14th Amendment that anyone intended that the amendment would be applied to striking down state bans on same-sex marriage.

There are problems with this kind of analysis.  First, it ignores the actual text of the Constitution.  The word "race" does not appear in the 14th Amendment, and therefore there is no textual basis for restricting its scope to racial discrimination.  Even the 13th Amendment, which abolishes slavery, does not mention race, because it abolishes slavery generally, not just racial slavery.  By contrast, the text of the 15th Amendment does specifically mention race: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."

We should say, then, as Scalia did, that the original meaning of these legal texts is found in the words themselves, and not in any imagined intent of those who wrote or ratified these texts.  We are governed by the words of our laws, and so it is the public meaning of those words that counts.

The second problem with an originalism of original intent is that it forces originalists into awkward  positions.  For example, the theory of original intent cannot explain or justify the Supreme Court's decision in 1967 in Loving v. Virginia, which held that laws banning racial intermarriage were unconstitutional violations of the 14th Amendment, although most originalists would probably want to say that that was a good decision.  Anyone who looks at the legislative history of the 14th Amendment will see that critics of the Amendment warned that it would strike down the laws against racial intermarriage, which would lead to the degeneration of the races by creating "mongrels"; and the defenders of the Amendment had to deny this.  This forces an originalist to conclude that the decision in Loving v. Virginia was wrong, because it was contrary to the original intent of the 14th Amendment (Calabresi and Matthews 2012).

The only way to save originalism from these problems is to follow Scalia in looking to the original public meaning of the words of a legal text rather than the subjective interpretations of the text by legislators.  Perhaps the best example of a commentary on the Constitution that derives the original meaning from a careful reading of the text itself is George Anastaplo's The Constitution of 1787: A Commentary (1989).  In his concern for finding the public meaning of the words of the Constitution, Anastaplo was influenced by his teacher at the University of Chicago Law School--William Winslow Crosskey.

The opinions that legislators have about the laws that they have written and ratified are often contradictory and motivated by a desire to impose their personal preferences on the laws.  Members of Congress often vote for a bill and then deny that it means what it says, because they want the support of both those who support and those who oppose the bill.  If we ask what the intent of the Congress was in writing and adopting a law, we are likely to get the answer that different members of Congress intended different things.  If we ask about the original intent of the Framers of the Constitution, we will get the same answer.

In contrast to original intent, the original public meaning of the words in a text can be known objectively by looking at dictionaries and grammar books that indicate the generally accepted meanings of the words at the time the laws were written.  One can also look at newspapers and other public records at the time the laws were being ratified to see the public meaning of those words.  And one can look at the legal and political history of how those words were used.

So, for example, one can find evidence for the original public meaning of the words of the 14th Amendment that support the conclusion that state laws banning interracial marriage were violations of the Privileges and Immunities Clause, as Calabresi and Matthews (2012) argue.  "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."  This phrase "privileges or immunities" comes from Article 4 of the Articles of Confederation and Article 4, section 2, of the Constitution, where the "free inhabitants" (Articles of Confederation) or the "citizens" (Constitution) in each state are entitled to the "privileges and immunities" of those in the several states.  This has been understood to mean that as citizens of one state travel to or reside in another state, they have all the civil rights--but not the political rights--of the citizens of that state.  So, for instance, if the marriage laws of a state allow its citizens to marry a cousin, then a citizen from another state should have the same right to marry a cousin.  If "privileges and immunities" include the right to marry, then the 14th Amendment means that no state can abridge the right to marry for black citizens, including the right of a black citizen to marry a white citizen.  That's why some of the opponents of the 14th Amendment and the Civil Rights Act of 1866 warned that these laws would strike down the laws against interracial marriage.

Some interpreters of the Privileges and Immunities Clause of the 14th Amendment have argued that it should be read as general language for the rights enumerated in the Civil Rights Act of 1866:

". . . citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens . . ."

If a white citizen can contract to marry another white citizen, then it follows that "citizens of every race and color . . . shall have the same right" to contract to marry a white citizen.

In fact, during Reconstruction, when the Republicans controlled the Southern states, the supreme courts of both Alabama and Texas in 1872 unanimously struck down laws banning interracial marriage as contrary to the Civil Rights Act of 1866 and the 14th Amendment.  These decisions were overturned in 1877, once Reconstruction was over, and the Democrats took control of these states.  In 1871, the Indiana Supreme Court (in State v. Gibson) upheld laws against interracial marriage.  And in 1883, the U.S. Supreme Court (in Pace v. Alabama) unanimously upheld Alabama's anti-miscegenation law.  What this dispute shows is that it was possible, soon after the adoption of the 14th Amendment, for some judges to see state bans on interracial marriage as contrary to the original meaning of that amendment.

Similarly, one can see the original meaning of the 14th Amendment--particularly, the Equal Protection Clause--as striking down state bans on same-sex marriage, even though those who wrote and ratified the 14th Amendment did not anticipate that this would happen.  The original meaning of the Constitution must often be applied to novel circumstances that were not foreseen by the people who originally wrote and ratified the language of the Constitution.  In this case, we must apply the original meaning of "the equal protection of the laws" to a demand for same-sex marriage that arose at the end of the 20th century in the United States.

In 2014, the United States Court of Appeals for the Sixth Circuit reversed Judge Bernard Friedman's ruling in DeBoer v. Snyder overturning Michigan's ban on same-sex marriage.  The Court held that the Equal Protection Clause of the 14th Amendment does not apply to state marriage laws, because there is no evidence that "the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage."  But as Eskridge and Calabresi (2015) have pointed out, this Court's concentration on original understanding--how the original supporters of the 14th Amendment understood its immediate effect--ignores how the original meaning of the words "equal protection of the laws" applies to state bans on same-sex marriage.

The words "equal protection of the laws" evoke a long history of legal and political thought about the primacy of equality under the law, going back at least as far as John Locke's account of human equality in the state of nature (Calabresi and Begley 2016).  Locke's affirmation that all men are by nature equally free in their rights to life, liberty, property, and the pursuit of happiness was echoed in the Virginia Declaration of Rights and the Declaration of Independence in 1776, and in most of the state constitutions after 1776.  The Massachusetts Constitution of 1780, declared that "all men are born free and equal, and have certain natural, essential, and unalienable rights."  It also declared: "Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men."  Thus, a respect for equality as equal treatment under the law required the prohibition of any legislation unjustly favoring any class of people over others.

In 1868--the year that the 14th Amendment was ratified--24 of the 37 state constitutions existing at that time had provisions guaranteeing inalienable or natural rights that belonged to all persons as naturally born equally free (Calabresi and Agudo 2008).  The right of people to be free and equal at birth bars legislation that creates inferior castes or classes.

In the context of this history, one can interpret the original meaning of "equal protection of the laws" in the 14th Amendment as forbidding any state laws that discriminate against classes of citizens.  Senator Jacob Howard in 1866 explained that the words "race" and "color" were dropped from the 14th Amendment because:

"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State.  This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another."

We can now see that state laws granting a right to marry to heterosexuals but denying that right to homosexuals commit "the injustice of subjecting one caste of persons to a code not applicable to another," and therefore they violate the 14th Amendment's prohibition of state laws that deny "to any person within its jurisdiction the equal protection of the laws."

Here is how John Corvino (2012) expressed this point:

"Once the state provides marriage as an option for different-sex partners, even if they cannot or choose not to have children; even if they are elderly; even if they are divorced; even if they are incapable of coitus, and thus what the new natural law theorists consider 'real marriage'--once the state provides marriage in all these diverse cases and more, but then denies it to same-sex couples, it is treating citizens unequally" (89-90).

REFERENCES

Anastaplo, George. 1989. The Constitution of 1789: A Commentary. Baltimore, MD: Johns Hopkins University Press.

Calabresi, Steven, and Sarah Agudo. 2008. "Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?" Texas Law Review 87: 7-120.

Calabresi, Steven, and Hannah Begley. 2016. "Originalism and Same-Sex Marriage." University of Miami Law Review 70: 648-707.

Calabresi, Steven, and Andrea Matthews. 2012. "Originalism and Loving v. Virginia." Brigham Young University Law Review 2012: 1394-1454.

Corvino, John. 2012. "The Case for Same-Sex Marriage," in John Corvino and Maggie Gallagher, Debating Same-Sex Marriage. Oxford: Oxford University Press.

Eskridge, William. 2015. "The Marriage Equality Cases and Constitutional Theory." Cato Supreme Court Review 14: 111-138.

Eskridge, William, and Steven Calabresi. 2015. Brief of Amicus Curiae Cato Institute, William Eskridge and Steven Calabresi in Support of Petitioners, Obergefell v. Hodges 135 S. Ct. 2584 (2014) (No. 14-556).

The Burden of Proof in Kennedy's Same-Sex Marriage Opinion

This is a video of the marriage of April DeBoer and Jayne Rowse in Michigan on August 22, 2015.  This marriage was made possible by the decision of the U. S. Supreme Court two months earlier on June 26 in Obergefell v. Hodges, in which the majority of the Justices decided that the Michigan state laws banning same-sex marriage were unconstitutional in violating the 14th Amendment to the Constitution.

You can see in the video that Rowse's clothing at the wedding is masculine in style, while DeBoer's is feminine, so that their lesbian wedding simulates the wedding of husband and wife.

When DeBoer and Rowse first met in 1999, DeBoer had just gone through a divorce, and she had not yet come out to her family and friends.  After they became a couple, they celebrated their union with a commitment ceremony in 2008 attended by family and friends.  They talked about becoming parents and about the possibility that someday they could be legally married.  They first tried to conceive naturally through donated sperm.  DeBoer became pregnant with triplets, but she lost all three in a miscarriage.  They then decided to try adoption.  They adopted four children, and since their marriage, they had adopted one more.  Then, after a nearly fatal automobile accident, they decided they needed to draw up wills and assign custody of their children.  But when they met with a lawyer, they learned that Michigan law allowed lesbians to adopt children, but it prohibited lesbian couples from adopting children jointly.  Only heterosexual couples could legally adopt children jointly.  Of their four children, Nolan, 6, and Jacob, 5, legally belonged to Rowse, while Rylee, 2, and Ryanne, 4, belonged to DeBoer.

In 2012, DeBoer and Rowse filed a lawsuit in a federal district court challenging Michigan's ban on joint adoption by same-sex couples.  District Court Judge Bernard Friedman advised them that they should amend their suit to challenge Michigan's ban on same-sex marriage as unconstitutional in violating the 14th Amendment.  They did that.  In this case of DeBoer v. Snyder, a trial was held in 2014.  Many of the leading proponents and opponents of same-sex marriage testified as witnesses.  Judge Friedman's ruling in the case overturned the state ban on same-sex marriage as unconstitutional.

Remarkably, Judge Friedman would later officiate at their wedding one year later.  Judge Friedman was first appointed a Federal District Judge in 1988 by President Ronald Reagan.

Meanwhile, in Kentucky, Ohio, and Tennessee, there were other suits challenging the constitutionality of state bans on same-sex marriage.  In all of these cases, the District Court ruled in favor of petitioners. But then, on appeal, the Sixth Circuit U.S. Court of Appeals consolidated all of these cases and reversed the rulings and thus upheld the state bans on same-sex marriage.  This decision was appealed to the U.S. Supreme Court.  The Court granted review that was limited to two questions.  The first question presented by the cases from Michigan and Kentucky was whether the 14th Amendment requires states to license same-sex marriages.  The second question presented by the cases from Ohio, Tennessee, and Kentucky was whether a state must recognize a same-sex marriage licensed and performed in another state. Finally, in 2015, these four cases were jointly decided by the Court in Obergefell v. Hodges, striking down state laws banning same-sex marriage as an unconstitutional violation of the 14th Amendment.

Although I have been inclined to agree with the decision in this case, I see two reasons why one might reasonably doubt the persuasiveness of Justice Anthony Kennedy's opinion for the majority in this case.  First, as I have indicated in some previous posts, the question of whether state governments have any rational justification for banning same-sex marriages depends on the question of whether same-sex marriages can secure the same two natural ends secured by heterosexual marriage--conjugal bonding and parental care.  That's why I have identified this as a debate over the natural law of marriage.  The problem is that this debate turns on an empirical question for which there is no conclusive answer because the pertinent evidence is insufficient.

The opponents of same-sex marriage have to prove that when heterosexual parents enter into a legal marriage, this increases the probability of good outcomes for their children; but when homosexual parents enter into a legal marriage, this decreases the probability of good outcomes for their children.  If that were true, that would be a rational justification for a state granting marriage rights to heterosexual parents, but denying marriage rights to homosexual parents, because this would be in the best interests of children.  So the opponents of same-sex marriage must prove that marriage is good for the children of heterosexual parents, but bad for the children of homosexual parents.  When DeBoer and Rowse were married in Michigan as a result of the Obergefell decision, this increased the risk of harm to their children.  It would have been better for these children to be raised by unmarried lesbian parents.

When Mark Regnerus testified as an opponent of same-sex marriage in DeBoer v. Snyder, he shifted the burden of proof to the other side.  "We aren't anywhere near saying there's conclusive evidence" that the outcomes for children of same-sex parents are no different when compared with the children of heterosexual parents.  "Until we get more evidence, we should be skeptical. . . . It's prudent for the state to retain its definition of marriage to one man, one woman."  That's why Regnerus filed an amicus curiae brief in the Obergefell case arguing that the Court should have upheld the constitutionality of state bans on same-sex marriage: as long as the evidence is inconclusive, it is prudent to allow states to refuse to run the risk of legalizing same-sex marriage, which might turn out to be harmful for children.

But notice the implication of this: beginning in the summer of 2015, same-sex parents like DeBoer and Rowse across all of the United States have had the constitutional right to marry; and so as hundreds of thousands of children are raised in same-sex marital households, we will have the evidence--once the children reach young adulthood over the next 20-25 years--to decide whether the outcomes are much worse on average than for heterosexual parenting.  We will then have to decide whether same-sex marriage is more threatening to heterosexual marriage and more harmful to children than the legal regime prior to the Obergefell decision, which allowed easy, no fault divorce, serial monogamy, heterosexual promiscuity, homosexual promiscuity, step-parenting, adoptive parenting, single parenting, unmarried heterosexual parenting, and unmarried homosexual parenting (by a gay father or a lesbian mother).

The first problem with Kennedy's opinion is that he assumed that the evidence conclusively showed that there is "no difference" between heterosexual marriage and same-sex marriage, particularly in the likely outcomes for children.  In fact, I agree with Regnerus that the evidence is inconclusive.  If one sees that, then one must decide which side of the debate bears the burden of proof.  It would have been more honest for Kennedy to have said that he was putting the greater burden of proof on the opponents of same-sex marriage.

The second problem with Kennedy's opinion is that he did not show how the unconstitutionality of banning same-sex marriage conformed to the original meaning of the 14th Amendment.  I will take that up in my next post.

Mark Regnerus, Loren Marks, and the Inconclusive Research on Same-Sex Parenting

In the summer of 2012, Social Science Research published two articles--one by Loren Marks and the other by Mark Regnerus--on the social scientific study of same-sex parenting.  They challenged the prevalent claim among academic scholars that there is "no difference" in the outcomes for children when one compares heterosexual parenting and same-sex parenting.  On the contrary, they argued, those studies supporting the "no differences" conclusion are rendered unreliable by their fundamental methodological flaws.  And, in fact, the analysis of new data gathered by Regnerus's New Families Structures Study (NFSS) was said to support the conclusion that children who have been raised in two-parent heterosexual married households tend to be on average physically, mentally, and socially better off as young adults than those children who have been raised by lesbian mothers or gay fathers.  The NFSS study also adds support to the copious research showing that two-parent heterosexual married households tend to have better outcomes for children as compared with adoptive families, divorced families, single parent families, and stepfamilies.

The day after the publication of these articles, they were being cited in amicus curiae briefs from conservative organizations opposing the legalization of same-sex marriages.  On the other side of the debate, proponents of same-sex marriage insisted that Regnerus's research was ruined by methodological mistakes, deception, and personal bias.  This set off one of the most intense public controversies in the recent history of social scientific research.  This debate continued in the amicus curiae briefs in the Supreme Court case of Obergefell v. Hodges in 2015, in which same-sex marriage was declared a constitutional right by a 5-4 decision.

Ultimately, this is a debate over the biological nature of marriage and parenting--over how families should be structured to satisfy the natural human inclinations to sexual mating, conjugal bonding, and parental care.

If one reads this research carefully, I suggest, one can see that neither side in this debate has made a conclusive empirical argument for its position.  Remarkably, both sides admit to the methodological flaws in their research that are criticized by the other side.  In principle, both sides are making falsifiable predictions that can be tested by empirical research.  But in practice, they face an intractable problem--that we have had so little experience with legalized same-sex marriages and parenting that there is not yet enough evidence for research to resolve the debate.  We might need 15 to 25 years of experience with married same-sex parenting before we can decide conclusively--by common observation or by scientific study--whether same-sex parenting is good for children.

In 2005, the American Psychological Association published a summary of the research findings on same-sex parenting authored by Charlotte J. Patterson.  She concluded: "Not a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents" (15).  This APA report--particularly the "not a single study" conclusion--has been the most often cited publication for the "no difference" position.  Slightly revised versions of this report have been filed by the APA as amicus curiae briefs in the court cases on same-sex marriage.

In his 2012 article, Marks examines that report and the 59 published studies it cites.  He shows that almost all of this research is methodologically defective in two ways: it relies on small samples that are not representative of the diverse population of lesbian and gay parents, and it does not compare lesbian and gay parenting with heterosexual parenting in stable intact marriage-based families.  Most often, small samples of white, urban, rich, highly educated, and middle-class or upper-class lesbian parents were compared with heterosexual single mothers.  Researchers employed "snowball" or convenience samples: for example, the researchers might post notices in lesbian newspapers or at lesbian meeting places inviting people to participate in a survey of lesbian parenting practices, which recruited people who were often biased towards reporting good outcomes for lesbian parents.  Moreover, these surveys of lesbian mothers never surveyed those young adults who had been raised by these mothers to allow the children to report their experiences.

This is not an accurate sampling of same-sex parenting, because such advantaged lesbian mothers can create unusually good environments for their children in a way that is not true for lesbian mothers and gay fathers who are not in such advantaged positions.  And it is not a fair comparison to compare advantaged lesbian mothers with heterosexual single mothers with all of the disadvantages of never married or divorced mothers.  None of the studies cited in the APA report compared children raised by two-parent same-sex couples in stable households with children raised by two-parent heterosexual couples in stable households.

As Marks (2012, 748, n. 91) indicates, the APA report admits that these criticisms are valid (Patterson 2005, 5-6).  But then, instead of throwing out all of the research reports that are open to these criticisms, Patterson reassures us that improvements are being made!

Marks also notes that there is at least one exception to the APA's claim that "not a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents." Studying some children in Australia, Sotirios Sarantakos concluded that "children of married couples are more likely to do well at school in academic and social terms, than children of cohabiting and homosexual couples" (1996, 24).  His study was a comparative analysis of 58 children of heterosexual married parents, 58 children of heterosexual cohabiting couples, and 58 children of homosexual couples, who were all matched in social conditions such as age, number of children, education, occupation, and socio-economic status.

The APA report dismissed this study with three criticisms.  The first was that "nearly all indicators of the children's functioning were based on subjective reports by teachers," and Sarantakos himself noted that teachers were often biased (Patterson 2005, 6, n. 1).  But Marks observes that Sarantakos also used other indicators of the children's success in school, including tests and observations (Marks 2012, 742).  He praises Sarantakos for modeling the "research ideal of triangulation of sources"--using multiple data sources, multiple methods, and multiple theoretical perspectives, so that one has a means for checking one's inferences (742-43).  (Notice that, as I have indicated in my previous post, Regnerus' reliance solely on a self-reporting internet survey falls short of this research ideal of triangulation.)

Marks is silent, however, about the two other criticisms of Sarantakos' study.  The children of the same-sex parents were socially ostracized in school.  And most of the children of same-sex parents had experienced parental divorce.  So, it could have been these factors--rather than same-sex parenting per se--that impeded the children's success in school.

Marks' critique of the APA report set the stage for Regnerus to present his NFSS research as both methodologically superior to research like the APA report and as overturning the "no differences" doctrine in showing that married heterosexual families with two biological parents really is best for children.

The NFSS fielded "a survey to a large, random sample of American young adults (ages 18-39) who were raised in different types of family arrangements" (Regnerus 2012a, 752).  2988 young adults completed full surveys on the internet through Knowledge Networks.  Based upon their answers to questions about their family life during their childhood, they were placed in one of eight categories of family structure.  They were then asked a series of questions about their lives that allowed inferences about how well they fared on 40 different social, emotional, and relational outcome variables.  This supported Regnerus' conclusion that the children of still-married heterosexual biological parents tended to live better lives as young adults than did the children with homosexual parents--and also better than children from other kinds of families.

At the "New Family Structures" website, there is a helpful visual presentation of the statistical comparisons of the outcomes for children of the different family types.  There are statistically significant differences in which "intact biological families" (IBF) tend to produce better outcomes for children than do "lesbian mother" (LM) families or "gay father" (GF) families.  For example, children from IBF families tend to show higher levels of education, lower levels of suicidal thoughts, lower levels of depression, less likelihood of being arrested, less likelihood of pleading guilty to a non-minor offense, less likelihood of being unemployed, less likelihood to be in psychological therapy, and less likelihood of being on public assistance.  For most of these factors, IBF is also superior in good outcomes for children as compared with other family structures--adoptive families, divorced families, single parent families, and stepfamilies.

It should be emphasized, however, that these are only differences on average in the risks for children in different family structures.  The great majority of children become healthy and happy young adults regardless of their family histories.  Regnerus stresses this: "most young-adult respondents in the NFSS report ample success and largely avoid problematic physical and emotional difficulties, regardless of their parents' experiences, decisions, and actions" (2012b, 1377).  This suggests that even family structures that are not the best for children on average might be good enough for most children.

Everything about Regnerus's study depends on his classification of family structures into eight categories.  Here is how he does it, including the sample size of respondents in his internet survey for each category (2012a, 757-58):

1.  IBF: Lived in intact biological family (with mother and father) from 0 to 18, and parents are still married at present (N = 919).

2.  LM: R reported R's mother had a same-sex romantic (lesbian) relationship with a woman, regardless of any other household transitions (N = 163).

3.  GF: R reported R's father had a same-sex romantic (gay) relationship with a man, regardless of any other household transitions (N = 73).

4.  Adopted: R was adopted by one or two strangers at birth or before age 2 (N = 101).

5.  Divorced later or had joint custody: R reported living with biological mother and father from birth to age 18, but parents are not married at present (N = 116).

6.  Stepfamily: Biological parents were either never married or else divorced, and R's primary custodial parent was married to someone else before R turned 18 (N = 394).

7.  Single parent: Biological parents were either never married or else divorced, and R's primary custodial parent did not marry (or remarry) before R turned 18 (N = 816).

8.  All others: Includes all other family structure/event combinations, such as respondents with a deceased parent (N = 406).

If Regnerus is studying young adults "who were raised in different types of family arrangements" [my emphasis added] (752), why does he exclude from IBF those children who were raised in an intact biological family from 0 to 18, but whose parents divorced some time after the children left home?  One possible explanation for this, is that Regnerus was worried that IBF would not look so good if it included #5--"divorced later."  Parents who divorced later may have had an unhappy marriage, but they decided to remain married until the children were raised and out of the house.  Their unhappy marriage might have created tensions in the household that affected the children.  If this is so, Regnerus' classification here overstates the positive effects of being reared by both biological parents for 18 years.

Here is how Regnerus summarizes his comparisons:

"To summarize, then, in 25 of 40 outcomes, there are simple statistically-significant differences between IBFs and LMs, those whose mothers had a same-sex relationship.  After controls, there are 24 such differences.  There are 24 simple differences between IBFs and stepfamilies, and 24 statistically-significant differences after controls.  Among single (heterosexual) parents, there are 25 simple differences before controls and 21 after controls.  Between GFs and IBFs, there are 11 and 19 such differences, respectively" (764).

Regnerus does not mention here that "divorced later" shows 16 simple differences and 20 differences after controls.  So, clearly, if "divorced later" had been included in IBF, then IBF would not have looked so good.  And notice that the children of gay fathers were actually a little better off by Regnerus' standards than those children who had been reared by both biological parents for 18 years, who then saw their parents divorce after the children had left home.

Another odd feature of Regnerus' classification is that while he claims to be studying the raising of children by lesbian mothers or gay fathers, most of those respondents whom he puts into the LM or GF categories spent little or no time as children being reared in a gay or lesbian household.

Notice also that those respondents who said that they had been reared in an IBF were not asked whether one or both of their parents had ever had a same-sex "romantic relationship."  Regnerus seems to assume that an IBF cannot also be a LM or GF.  Why not?  If it is possible that some of the IBFs were also LMs or GFs, that would subvert his classification and the conclusions he wants to make.

Finally, and most importantly, why doesn't Regnerus' classification scheme include something like IFSSP: Lived in intact family with same-sex parents from 0 to 18?  The most common criticism of Regnerus is that, as William Saletan put it, "the study doesn't document the failure of same-sex marriage.  It documents the failure of the closeted, broken, and unstable households that preceded same-sex marriage."  "What the study shows, then, is that kids from broken homes headed by gay people develop the same problems as kids from broken homes headed by straight people.  But that finding isn't meaningless.  It tells us something important: We need fewer broken homes among gays, just as we do among straights."  "Kids do better when they have two committed parents, a biological connection, and a stable home.  If that's good advice for straights, it's good advice for gays, too."  We might argue then that this study shows the need for same-sex marriage to promote the commitment of same-sex couples in providing a stable home for their children.

Regnerus writes: "Future studies would optimally include a more significant share of children from planned gay families, although their relative scarcity in the NFSS suggests that their appearance in even much larger probability samples will remain infrequent for the foreseeable future.  The NFSS, despite significant efforts to randomly over-sample such populations, nevertheless was more apt to survey children whose parents exhibited gay and lesbian relationship behavior after being in a heterosexual union. This pattern may remain more common today than many scholars suppose" (2012a, 765).  So here he recognizes the limitation of his study that has been stressed by the critics.

Regnerus also says that his study "does not evaluate the offspring of gay marriages, since the vast majority of its respondents came of age prior to the legalization of gay marriage in several states.  This study cannot answer political questions about same-sex relationships and their legal legitimacy" (755).

This indicates why I think the scientific debate over whether same-sex marriage and parenting is good or bad for children cannot at present be settled by conclusive evidence.  The legalization of same-sex marriage has occurred only in recent years, and it will be many years before we can see outcomes for children in same-sex married households.

Regnerus' argument, however, is that we do already have plenty of evidence that gay males and lesbian women are much less inclined than are heterosexual individuals to stable, enduring relationships with their sexual partners and to forming stable homes for children.  Most gays and lesbians have little interest in same-sex marriage and even less interest in same-sex parenting.  Regnerus' prediction, therefore, after the decision in Obergefell v. Hodges, was that after a few years of rising same-sex marriages, gays and lesbians will discover that this does not work for them, and same-sex marriage and parenting will decline.

By contrast, the proponents of same-sex marriage must predict that its legalization will allow gays and lesbians to satisfy their natural desires for conjugal bonding and parental care by committing themselves to marriage and parenting, and that their children will do at least as well on average as most children of heterosexual parents.

In 15-25 years, we will be able--through common observation and scientific study--to decide which prediction has been verified.

REFERENCES

Marks, Loren. 2012. "Same-Sex Parenting and Children's Outcomes: A Closer Examination of the American Psychological Association's Brief on Lesbian and Gay Parenting." Social Science Research 41: 735-751.

Patterson, Charlotte J. 2005. Lesbian & Gay Parenting. Washington, DC: American Psychological Associastion.

Regnerus, Mark. 2012a. "How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study." Social Science Research 41: 752-770.

Regnerus, Mark. 2012b. "Parental Same-Sex Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family Structures Study with Additional Analyses." Social Science Research 41: 1367-1377.

Saletan, William. 2012. "New Family Structures Study: Is Gay Parenthood Bad?  Or is Gay Marriage Good?"  Slate.com. June 12.

Don Juan and Other Bad Data in Mark Regnerus' New Family Structures Study

Mark Regnerus' New Family Structures Study administered a survey to a large, random sample of American young adults to study the children of parents who have had same-sex relationships as compared with other children in other kinds of family structure.  If you look at Regnerus' databook, you will discover that many of his respondents are extraordinary people.

For example, when the men were asked how many female sexual partners they had had over the previous 12 months, one man reported 785 (Regnerus 2012b, 1370)!  Wow!  There's a real Don Juan.  And he was not the only one.  20 of the men reported that they had had sexual relationships over their life with over 100 women--"100+" was the highest number in the survey questionnaire.  16 women reported that they had had sexual relationships with over 100 men (1368).  Asked how often they had had sex in the past 2 weeks, 15 respondents reported more than 30 times; 5 had had it 45-50 times; and one person had had sex 75 times in 2 weeks (1382).  (I reported this to my wife, but she was remarkably skeptical.)

Isn't it amazing that these folks can keep such an accurate count of their couplings?  Mozart's Don Giovanni had Leporello keeping a catalogue of the Don's conquests--1,003 in Spain alone!  Do these people have someone keeping a record for them?

Moreover, these folks started their sex lives really early.  They were asked: "How old were you (in years) the first time you ever had vaginal intercourse?"  10 of them answered 0 (1365)!  They started in their mother's womb!

The respondents to Regnerus' survey were unusual in other ways besides their sexual prowess.  One man reported that he was 7 feet 10 inches tall (1290).  They were asked: "How old were you (in years) the last time you were arrested?"  3 people said 1.  4 people said 0 (1338).  Maybe, these 4 were arrested before they were born for their sex crimes in the womb.

There is another explanation that might have occurred to you.  Is it possible that some of these respondents were jokesters who amused themselves by making up ridiculous answers?  Regnerus assures us that this cannot be the case, because "the data collection was conducted by Knowledge Networks (or KN), a research firm with a very strong record of generating high-quality data for academic projects" (Regnerus 2012a, 756).

High-quality data?  When Regnerus' paper was first published in Social Science Research in June of 2012, not even his critics questioned the quality of his data, although they did question his analysis of the data.  But, then, a few months later, Darren Sherkat reported that his study of Regnerus' databook revealed some "unlikely responses" (Sherkat 2012, 1348).  Three years later, Cheng and Powell (2015, 619-20) identified some "unreliable cases in his data" that might be the work of some "mischievous jokesters."

Regnerus has not commented on the dubious methods of Knowledge Networks in conducting online surveys.  Knowledge Networks is a marketing survey business that was acquired in 2011 by GfK, Germany's largest market research company.  Knowledge Networks recruits people for its "KnowledgePanel" by mailing envelopes to the homes of consumers telling them that they have been randomly selected to fill out online market research surveys.  The letter contains $2.  And they are promised compensation for their work.  If they do not have a computer or internet access, this is provided to them by the company for as long as they fill out surveys.  For every survey completed, the participants receive "points" that can be redeemed for a spin of a "Prize Wheel" or other contests, small gift cards, or a check for cash.  Some panel members have complained that the Prize Wheel is a scam, because it is programmed so that the spinner never lands on the Grand Prize.  One panel member who broke into the source code for the web page discovered this, and saw that after 1,000 spins, he never landed on the Grand Prize.

Most panel members work for cash.  But it takes over 8 hours to earn a $25 check.  Panel members generate about 1,000 points (worth $1) for each survey.  And each survey takes at least 20 minutes to complete.  So they're making about $3 per hour.

Needless to say, there is little incentive for panel members to work hard and think carefully as they fill out their online surveys.  Presumably, this often becomes boring, and they rush through their work; or they decide to amuse themselves by making up fraudulent answers to the questions.

There is no procedure at Knowledge Networks for "cleaning up the data" by throwing out answers that look suspicious.  And clearly Regnerus did not attempt to remove the bad data, because he was confident about Knowledge Network's "strong record of generating high-quality data."

Unfortunately, much of the social science research reported these days is based on this kind of data collection through online surveys with no attempt to identify fraudulent data.

Regnerus (2015) has written a response to Cheng and Powell's paper in which he admits that there were some "questionable cases" in his data.  He writes:

"To their credit, the authors helpfully pointed out a handful of cases that were questionable--respondents whose unlikely answers to other questions (like height, weight, etc.) suggest they weren't being honest survey-takers.  Such a critique is certainly fair and welcome; it's part of the long-term process of cleaning and clarification in any dataset of substantial size.  And removing those questionable cases actually strengthened my original analytic conclusions--and the authors say so. . . ."

". . . And while I welcome the documentation and removal of a handful of odd cases, it's a very different thing to suggest that the many respondents who report that they lived with their 'lesbian mother' or 'gay father' for a year or less are suspect cases, or 'misclassified.'  They are what they are . . . ."

"Social science was never going to save marriage's male-female infrastructure.  I never presumed it could or would.  What it can do--and that's what I will always love about it--is reveal what is going on. . . ."

Once we throw out "a handful of cases that were questionable," Regnerus suggests, we can rely on all of the other cases in his data to reveal to us what is going on.   So, for example, when the respondents report that they lived with their "lesbian mother" or "gay father" for a year or less, we know that these reports are true.  "They are what they are."

Keep in mind what we are talking about here.  The "cases" in Regnerus' data are self-reported answers to an internet questionnaire from people working for $3 an hour as members of a Knowledge Networks panel.  There was no attempt by anyone to check their answers to see if they were honest, unbiased, and accurate.

One of the most fundamental problems with all survey research--and particularly internet survey research--is "self-reporting bias": people answering survey questions cannot be trusted to be honest, unbiased, and accurate.  We can never know whether respondents' answers correspond to their actual behavior, to the behavior of others, or to their true beliefs.  For that reason, some researchers argue that reliable data in social research can only come from direct observation, experimentation, and multiple sources of data (Beam 2017).

Regnerus' silence about self-reporting bias suggests that he does not see this as a problem.  Is he suggesting that except for "a handful of odd cases," most self-reporting respondents to internet surveys are completely honest, unbiased, and accurate in their answers?  Some researchers such as Seth Stephens-Davidowitz (2017) have warned that survey research is unreliable because "Everyone lies."  Is Regnerus suggesting that no, except for "a handful of odd cases," everyone tells the truth?

Regnerus says that when a young adult reports having lived with a "lesbian mother" or "gay father" for a certain period of time, we can know this to be a factual truth.  Actually, the question in his internet survey questionnaire was this: "From when you were born until age 18 (or until you left home to be on your own), did either of your parents ever have a romantic relationship with someone of the same sex?"  The respondents were offered three possible answers: "(1) Yes, my mother had a romantic relationship with another woman.  (2) Yes, my father had a romantic relationship with another man.  (3) No."  Those who answered (1) were immediately classified by Regnerus as living in a "lesbian mother" (LM) household, while those who answered (2) were classified as living in a "gay father" (GF) household.

Notice that the respondents were not asked whether their parents were "lesbians" or "gay."  Rather, they were asked whether their parents had ever had a same-sex "romantic relationship."  What exactly is a same-sex "romantic relationship"?  And is this enough to identify a parent as "lesbian" or "gay"?  Moreover, can we rely on these young adults to answer this question accurately?  How reliable are their childhood memories?  Is it possible that their memory of something like this could be distorted?  Is it possible that their answers are not honest?  We could check their answers by interviewing their parents or others who knew them and by observational evidence of their behavior.  But, apparently, Regnerus believes that is unnecessary because the answers of the children are reliably telling us "what is going on."

One of the questions on Regnerus' survey was "Did you vote in the last presidential election?"  Political scientists studying voting behavior have discovered that many people cannot answer this question honestly and accurately, because if you check the voting records, you will see that many people who report having voted did not really vote.  They are either lying, or their memories are inaccurate.  Regnerus did not check the voting records for his respondents, because he apparently assumes that their answers on internet surveys are reliable.

Regnerus also asked questions about church attendance, criminal records, sexual behavior, educational achievement, and physical and mental health.  Other researchers have found that self-reported answers to such questions are often unreliable, and therefore they need to be checked against other data.  Regnerus seems to disagree with this because, again, he thinks that when people answer questions on an internet survey they are telling us "what is going on."  Is that plausible?



REFERENCES

Beam, George. 2017. The Problem with Survey Research. New York: Routledge.

Cheng, Simon, and Brian Powell. 2015. "Measurement, Methods, and Divergent Patterns: Reassing the Effects of Same-Sex Parents." Social Science Research 52: 615-26.

Regnerus, Mark. 2012a. "How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study." Social Science Research 41: 752-70.

Regnerus, Mark. 2012b. "New Family Structures Study (ICPSR 34392)." Inter-university Consortium for Political and Social Research.  Ann Arbor, Michigan.  Available online.

Regnerus, Mark. 2015. "Making Differences Disappear: The Evolution of Science on Same-Sex Households." The Public Discourse, May 12, 2015.  Available online.

Sherkat, Darren E. 2012. "The Editorial Process and Politicized Scholarship: Monday Morning Editorial Quarterbacking and a Call for Scientific Vigilance." Social Science Research 41: 1346-1349.

Stephens-Davidowitz, Seth. 2017. Everybody Lies: Big Data, New Data, and What the Internet Can Tell Us about Who We Really Are. New York: Dey Street Books.

Aquinas on Adoption: Can Same-Sex Marriage Show a "Likeness" to Heterosexual Marriage?

Thomas Aquinas argues for the natural law of marriage as rooted in the biological nature of those animals (such as birds) whose offspring require parental care from both parents.  Natural marriage understood in this way has two natural ends.  The primary end is the generation and rearing of offspring.  The secondary end is the conjugal bonding of male and female.

If one adopts this Thomistic view of marriage, then it might seem that Thomistic natural law could never sanction same-sex marriage as securing the two natural ends of marriage.  After all, Aquinas is clear in rejecting homosexuality as "contrary to nature," because no other animals engage in homosexual mating, and because homosexuals cannot naturally generate and rear children.  But now the biological study of animal behavior has shown that many animals engage in homosexual mating, and some of these homosexual animals care for offspring, which denies Aquinas's biological reasoning for rejecting homosexuality as unnatural.

One might then wonder whether there is any opening within Aquinas's natural law reasoning for supporting same-sex marriage and parenting.  One possible opening comes in what he says about the adoption of children:

"Art imitates nature and supplies the defect of nature where nature is deficient.  Hence just as man begets by natural generation, so by positive law which is the art of what is good and just, one person can take to himself another as a child in likeness [similitudo] to one that is his child by nature, in order to take the place of the children he has lost, this being the chief reason why adoption was introduced. . . . The sonship of adoption is an imitation [imitatio] of natural sonship" (ST, Suppl., q. 57, a. 1).

If adoptive parents can show a "likeness" or "imitation" of natural parents, so that "art imitates nature," then we might justify legal adoption as promoting the natural end of parental care of children, even when the adoptive parents are not the biological parents of the children.  Most heterosexual couples who want to have children prefer that these be their biological children.  But for various reasons, they can choose to adopt children who are either biologically related to them or not biologically related at all.  And when they do choose to adopt, they usually prefer to adopt younger rather than older children, so that there is a greater likelihood of a parent-child bonding comparable to that of biological parents with their children.

Recent research comparing children reared by their biological parents and adopted children suggests that there are differences, and that there is an elevated risk of bad outcomes for adopted children as compared with children reared by biological parents.  But still this is only a difference on average, and most adopted children grow up to become healthy and successful young adults.

We generally presume that the legal custody of children should go to their biological parents unless there is some good reason not to do this.  We allow for the legal adoption of children when this seems to be in the best interests of the children.

Same-sex couples cannot generate their own biological children through sexual intercourse.  But they can adopt children generated by heterosexual coupling.  Perhaps most commonly lesbian mothers have children that were conceived when the women were in a heterosexual marriage that they left by divorce.  More rarely gay males that were previously in a heterosexual marriage might take custody of children conceived in that marriage.  Or a same-sex couple might plan the adoption of children who are either unrelated biologically to either parent, or who are related to one or both of the parents.  Lesbian women can use assisted reproduction technology (ART) or surrogacy to generate children related to them either directly or indirectly.  If they use eggs or sperm from siblings, both same-sex partners could be biologically related to the children.  Is this same-sex parenting a close enough "likeness" to heterosexual parenting that both forms of parenting might satisfy the natural need of the children for parental care?

We are assuming here--as Aquinas does--that the natural gold standard for raising children is the intact and stable biological family with both biological parents sharing in the rearing of the children, and thus the goodness of any other family structure is judged by how well it approximates this natural family structure.  By the beginning of the 21st century, most of the scholarly research on marriage and the family had reached consensus on this.

One of the most commonly cited surveys of this research was by Moore, Jekielek, and Emig (2002), which concluded: "An extensive body of research tells us that children do best when they grow up with both biological parents in a low-conflict marriage."

They elaborated on this conclusion:

"Research findings linking family structure and parents' marital status with children's well-being are very consistent.  The majority of children who are not raised by both biological parents manage to grow up without serious problems, especially after a period of adjustment for children whose parents divorce.  Yet, on average, children in single-parent families are more likely to have problems than are children who live in intact families headed by two biological parents."

"Children born to unmarried mothers are more likely to be poor, to grow up in a single-parent family, and to experience multiple living arrangements during childhood.  These factors, in turn, are associated with lower educational attainment and a higher risk of teen and nonmarital childbearing."

"Divorce is linked to academic and behavior problems among children, including depression, antisocial behavior, impulsive/hyperactive behavior, and school behavior problems.  Mental health problems linked to marital disruption have also been identified among young adults."

"Children growing up with stepparents also have lower levels of well-being than children growing up with biological parents.  Thus, it is not simply the presence of two parents, as some have assumed, but the presence of two biological parents that seems to support children's development."

"Of course, the quality of a marriage also affects children.  Specifically, children benefit from a low-conflict marriage.  Children who grow up in an intact but high-conflict marriage have worse emotional well-being than children whose parents are in a low-conflict marriage" (1-2).

Whenever I have discussed these kinds of claims with college students, invariably some of those students who have been raised by single mothers or stepparents will protest that these claims are false, because, after all, young adults like themselves have done well without being raised by two biological parents.  We have then talked about this and noted that these claims are qualified by the words "on average" and "more likely": on average, there is a greater likelihood of harm to children raised by single parents or stepparents, although "the majority of children who are not raised by both biological parents manage to grow up without serious problems."  Moreover, even a household headed by two biological parents can be harmful to the children if there is a high level of conflict between the parents, which is why sometimes divorce is better for the children.

So what does this suggest about homosexual parenting?  Is it as good for children on average as heterosexual parenting in families headed by two biological parents in a low-conflict marriage?  Or does homosexual parenting bring increased risks for children comparable to parenting by unmarried mothers, divorced single mothers, and stepparents?

The answers here depend upon whether one thinks that homosexual parents are naturally inclined to form stable intact families headed by two parents in a low-conflict marriage who have some biological connection to the children, which would show some "likeness" to stable intact natural families with two biological parents in a low-conflict marriage.  Alternatively, if one thinks that the same-sex relationships of gay men and lesbian women tend inevitably to be unstable and full of conflict, then one will have to conclude that same-sex marriage will never succeed in securing good parenting for children, and so it can never approximate the success attainable by natural biological families.

This is the point that was made by William Saletan in his essay for Slate in response to Mark Regnerus's controversial article on parenting by people who have same-sex relationships.  Saletan (2012) began by asking: "Is same-sex marriage a good idea?  Or is an intact biological family the best environment for raising a child?  The answer may turn out to be yes and yes."

Surveying a large random sample of American young adults (ages 18-39), Regnerus identified those who reported that their mothers or their fathers had had a same-sex sexual relationship during their childhood.  These children were then put into the category of "gay father" (GF) or "lesbian mother" (LM).  Regnerus then identified the other children as belonging to another family structure during their childhood--"intact biological family" (IBF), "adopted," "divorced," "stepfamily," or "single-parent" household.  From what they reported about their lives, Regnerus could show that these GF or LM children were more likely to suffer emotional, mental, or social problems than those children raised in intact biological families.

This might seem to show that homosexuals cannot be good parents.  But that's not true, Saletan observes, because as Regnerus indicates, almost all of those children in the "gay father" (GF) or "lesbian mother" (LF) category came from a "failed heterosexual union," and these children spent little or no time being reared by same-sex parents.  These were not the children of stable, planned same-sex families.  They were the children of heterosexual unions that failed because gay men and lesbian women were trying to hide their homosexuality in a world where same-sex marriage was impossible.

So, Saletan explains, "this isn't a study of gay couples who decided to have kids.  It's a study of people who engaged in same-sex relationships--and often broke up their households--decades ago."  This study does tell us something important: "We need fewer broken homes among gays, just as we do among straights.  We need to study Regnerus's sample and fix the mistakes we made 20 or 40 years ago.  No more sham heterosexual marriages.  No more post-parenthood self-discoveries.  No more deceptions. No more affairs.  And no more polarization between homosexuality and marriage.  Gay parents owe their kids the same stability as straight parents."

Saletan concludes: "Kids do better when they have two committed parents, a biological connection, and a stable home.  If that's good advice for straights, it's good advice for gays, too."

In an essay for Slate posted the same day as Saletan's, Regnerus recognized Saletan's conclusion as one possible lesson from the research: "the instability detected in the NFSS could translate into a call for extending the relative security afforded by marriage to gay and lesbian couples" by legalizing same-sex marriage.

But Regnerus also saw that one could draw a different lesson: "it may suggest that the household instability that the NFSS reveals is just too common among same-sex couples to take the social gamble of spending significant political and economic capital to esteem and support this new (but tiny) family form while Americans continue to flee the stable, two-parent biological married model, the far more common and accomplished workhorse of the American household, and still--according to the data, at least--the safest place for a kid."  Clearly, this second lesson is the one favored by Regnerus.

Saletan and Regnerus agree with Aquinas that a household headed by two biological parents in a stable marriage is the best family structure to provide parental care.  Saletan and Regnerus disagree with one another, however, as to whether a stable and committed same-sex marriage with children can show at least a "likeness" to the natural parental care of children in a heterosexual marriage.

In my next post, I will say more about the debate over Regnerus's study.


REFERENCES

Aquinas, Thomas. Summa Theologica.  Available online.

Moore, Kristin Anderson, Susan M. Jekielek, and Carol Emig. 2002. "Marriage from a Child's Perspective: How Does Family Structure Affect Children, and What Can We Do About it?"  Trends in Child Research Brief.  June 2002.  Available online.

Regnerus, Mark. 2012. "Gay Parents: Are They Really No Different?" Slate.com. June 11, 2012.  Available online.

Saletan, William. 2012. "New Family Structures Study: Is Gay Parenthood Bad?  Or is Gay Marriage Good?"  Slate.com. June 11, 2012.  Available online.

The Darwinian Science of Same-Sex Marriage in Thomisitc Natural Law

On April 4-6, I will be lecturing at Saint Vincent College (Latrobe, PA) as part of a conference on "Science, Human Nature, and Public Policy."  Of the nine speakers for this conference, I foresee that I will be the only one arguing in favor of the modern scientific understanding of human nature as applied to public policy.  As often happens with me at such gatherings of conservatives who think modern science is the enemy, I will probably be everyone's punching bag.  This is likely to be similar to what happened a few years ago at a conference at Berry College organized by Peter Lawler on "The Science of Virtue."  I wrote about it here.

I will write a paper entitled "The Darwinian Science of Same-Sex Marriage in Thomistic Natural Law."  I will defend seven claims.

1. Thomistic natural law is rooted in biological science, because natural law corresponds to four levels of the natural inclinations of human biological nature.  (I have a post on that here.)

2. Darwinian science largely confirms this four-leveled conception of human nature.  (I have posts on that here and here.)

3. The biological character of Thomistic natural law is clearly manifest in the natural law of marriage.  (I have a post on that here.)

4. While Darwinian science largely confirms Thomas's natural law of marriage, it denies Thomas's claim that homosexuality is "contrary to nature" as indicated by the fact that no nonhuman animals show homosexuality.  (I have posts on that here and here.)

5. Justice Anthony Kennedy's opinion in Obergefell v. Hodges (2015) favoring same-sex  marriage as a constitutional right is implicitly, although not explicitly, a Thomistic natural law argument.  (I have posts on that here and here.)

6. The debate over same-sex marriage turns on empirically falsifiable predictions about whether same-sex marriages can satisfy the natural inclinations of marriage without harming children or weakening heterosexual marriage.

7. At this point in history, the scientific study of the relevant empirical evidence is inconclusive on this debate over same-sex marriage; and we might need 15-25 years of experience with legalized same-sex marriages to give us the evidence we need to settle the debate.  (I have some posts on this here, here, and here.)

Some of my material for this paper will be drawn from a paper I prepared two years ago for a symposium on "Law as a Guide to Justice" at the University of Cambridge.  I wrote about that here.

At the Saint Vincent conference, Mark Regnerus will be one of the speakers.  He is the author of a controversial study claiming that there is empirical evidence that same-sex parenting harms children.  I have written a post on that, and in my next post I will say more about it.

The Natural Right to Punish Cheaters Among Bacteria

In our discussion of the evolution of morality at the Liberty Fund conference in Tucson, some discussants complained that Ridley's account of the spontaneous evolution of morality did not recognize the importance of reason in moral judgment.  Ridley says a lot about Adam Smith's emphasis on moral sentiments, but he ignores Smith's recognition that the moral sentiments are guided by moral reasoning.

In response to this, Ken Blanchard (a political scientist at Northern State University, Aberdeen, South Dakota) said that evolutionary morality is always rational in the sense that there is some evolutionary logic in morality, even when there is little or no conscious reasoning involved.  For example, he observed, there is an evolutionary logic of justice even among bacteria.  All dead organic material is potential food for bacteria.  But the large organic molecules must be broken down by bacteria secreting enzymes that break up proteins and peptides, so that the smaller molecules can then be absorbed through the bacterial cell membranes.  Through "quorum sensing," bacteria communicate their presence to one another by secreting signaling molecules, detecting changes in concentration of signaling molecules, and then regulating the transcription of genes in response.  Once the signaling molecules exceed a certain threshold level (the quorum), this triggers changes in gene expressions.  In this case, it triggers the secretion of enzymes for dissolving the organic material into nutrients that can be consumed by the bacteria.  But since secreting enzymes is costly for bacteria, evolution can favor the appearance of mutant bacteria that cheat by not secreting the enzymes but then consuming the nutrients generated by the work of the other bacteria that secret the enzymes: the cheaters can thus enjoy the benefits of a public good without paying their fair share of the costs for producing that public good.  To enforce cooperation, bacteria have evolved the capacity for detecting these cheaters and punishing them by secreting cyanide that kills them.  Here then is the evolutionary logic of justice among bacteria in which those who fail to cooperate for the common good are punished.

I now realize that Blanchard was reporting the research of microbiologist E. Peter Greenberg and his colleagues.  Greenberg first introduced the term "quorum sensing" in 1994 to denote the regulation of bacterial gene expression by population sensing (Fuqua, Winans, and Greenberg 1994; Davis 2004).  Thirty years ago, most microbiologists assumed that bacteria could not communicate with one another, and so they could not use communication to coordinate social cooperation.  But now Greenberg and others have shown that just as human beings communicate with words, bacteria communicate with signal molecules, which allows them to cooperate with one another.  This has become part of a new field of research--called "sociomicrobiology"--that studies the social evolution of microorganisms (Parsek and Greenberg 2005; West et al. 2006).  As with plants and animals, bacterial cooperation is subject to social cheating, and one way to suppress cheating is for bacteria to engage in policing that punishes cheaters.  The bacterium Pseudomonas aeruginosa shows this, because these are the bacteria described by Blanchard, that secrete cyanide to punish social cheaters (Wang et al. 2015).

Policing punishment to enforce social cooperation has been seen in many animals (Clutton-Brock and Parker 1995; Bekoff and Pierce 2009).  For example, among social insects--particularly, ants, bees, and wasps--each worker in the colony would benefit from rearing her own sons, rather than the queen's sons.  But other workers have evolved to prevent this because it reduces the reproductive efficiency of the colony, and the policing workers are more related to the sons of the queen than the sons of other workers.  This has favored an evolutionary selection for policing by workers, who destroy the eggs laid by other workers (Ratnieks, Foster, and Wenseleers 2006).

A different kind of policing has been observed among some primates.  Among pigtailed macaques (Macaca nemestrina), building and preserving social networks requires conflict management.  A small group of individuals who are high ranking in the power structure--alpha males--exercise third-party policing by intervening impartially to control conflicts.  When monkeys come into conflict, a high-ranking individual can intervene with a threat that pacifies the conflict (Flack, de Waal, and Krakauer 2005; Flack, Girvan, de Waal, and Krakauer 2006).

Just as it is with bacteria and other animals, human beings have a naturally evolved propensity to punish cheaters who violate the social contract that supports social cooperation.  Lucretius recognizes this when he speaks of how justice originated when our early human ancestors formed "common pacts of peace" neither to harm nor be harmed, and here he follows Epicurus who taught that natural justice is "a pledge of reciprocal usefulness, neither to harm one another nor be harmed," which is enforced by the fear of punishment of those who violate this social contract (5.1012-1025).  This is the evolutionary Epicurean morality that Nietzsche promoted in Human, All Too Human.  This also corresponds to Locke's teaching about the "executive power of the law of nature"--the natural right to punish cheaters who violate the law of nature.

Extensive cross-cultural experimental research by evolutionary psychologists has shown that human beings are very good at detecting cheaters in a social exchange.  This has led them to conclude that one of the evolved mechanisms of the human brain is a cheater detection module (Cosmides & Tooby 1992, 2016; Van Lier, Revlin, De Neys 2013).  As I have indicated in some previous posts, Judge Morris Hoffman (2014) has surveyed the evidence for concluding that evolution built the human brain to punish cheaters, and that this explains how the legal system for punishment can be rooted in our evolved human nature.

This suggests that Darwinian natural right as enforced by the natural right to punish cheaters could have appeared in some form very early in the evolutionary history of life--perhaps with the first bacteria.

Some of these points have been developed in other posts--on bacterial morality (here), on the Lockean right to punish cheaters (here, here, and here), and on Nietzsche's evolutionary morality (here and here).


REFERENCES

Bekoff, Marc, and Jessica Pierce. 2009. Wild Justice: The Moral Lives of Animals. Chicago: University of Chicago Press.

Clutton-Brock, T. H., and G. A. Parker. 1995. "Punishment in Animal Societies."  Nature 373: 209.

Cosmides, Leda, and John Tooby. 1992. "Cognitive Adaptations for Social Exchange." In J. H. Barkow, Leda Cosmides, and John Tooby, eds., The Adapted Mind: Evolutionary Psychology and the Generation of Culture, 163-228.  Oxford: Oxford University Press.

Cosmides, Leda, and John Tooby. 2016. "Adaptations for Reasoning About Social Exchange." In David M. Buss, ed., The Hundbook of Evolutionary Psychology, 2nd ed., 2 vols., 2:625-68. Hoboken, N.J.: John Wiley.

Davis, Tinsley H. 2004. "Biography of E. P. Greenberg."  Proceedings of the National Academy of Sciences 101: 15830-15832.

Flack, Jessica C., Frans de Waal, and David C. Krakauer. 2005. "Social Structure, Robustness, and Policing Cost in a Cognitively Sophisticated Species." The American Naturalist 165: E126-E139.

Flack, Jessica C., Michelle Girvan, Frans de Waal, and David C. Krakauer. 2006. "Policing Stabilizes Construction of Social Niches in Primates."  Nature 439: 426-29.

Fuqua, W. Claiborne, Stephen C. Winans, and E. Peter Greenberg. 1994. "Quorum Sensing in Bacteria: the LuxR-LuxI Family of Cell Density-Responsive Transcriptional Regulators." Journal of Bacteriology 176: 269-75.

Hoffman, Morris. 2014. The Punishing Brain: The Evolution of Judge and Jury. Cambridge: Cambridge University Press.

Parsek, Matthew R., and E. P. Greenberg. 2005. "Sociomicrobiology: The Connections Between Quorum Sensing and Biofilms." TRENDS in Microbiology 13:27-33.

Ratnieks, F. L. W., K. R. Foster, and T. Wenseleers. 2006. "Conflict Resolution in Insect Societies." Annual Review of Entomology 51: 581-608.

Van Lier, Jens, Russell Revlin, and Wim De Neys. 2013. "Detecting Cheaters Without Thinking: Testing the Automaticity of the Cheater Detection Module." PLoS ONE 8 (1): e53827.

Wang, Meizhen, Amy L. Schaefer, Ajai A. Dandekar, and E. Peter Greenberg. 2015. "Quorum Sensing and Policing of Pseudomonas aeruginosa Social Cheaters." Proceedings of the National Academy of Sciences 112: 2187-2191.

West, Stuart, Ashleigh S. Griffin, Andy Gardner, and Stephen P. Diggle. 2006. "Social Evolution Theory for Microorganisms." Nature Reviews Microbiology 4: 597-607.

The Evolutionary Lucretian Liberalism of Spontaneous Order: A Liberty Fund Conference

The Liberty Fund conference in Tucson last week on "Lucretius, Evolutionary Morality, and Spontaneous Order" helped me to think through the idea of evolutionary Lucretian liberalism.

The question for this conference was whether an evolutionary study of cosmic history--from the origin of the universe to the present and into the distant future--supports the claim of classical liberalism that order emerges best from the bottom up through spontaneous evolution rather than from the top down through intelligent design and planning.

The fundamental thought is conveyed in one passage of Lucretius's On the Nature of Things: "Nature is seen, free at once, and quit of her proud rulers, doing all things by herself spontaneously [per se sponte omnia], without control of gods" (2.1090-93).  Matt Ridley sees this Lucretian teaching as a general theory of evolution that applies the classical liberal principle of spontaneous order to everything in the universe: "the physical world, the living world, human society, and the morality by which we live all emerged as spontaneous phenomena, requiring no divine intervention nor a benign monarch or nanny state to explain them" (The Evolution of Everything, 8).  The French physiocrats expressed this thought in a motto: Laissez faire et laissez passer, le monde va de lui meme! (Let do and let pass, the world goes on by itself!)  The alternative position is the Platonic teaching that all natural and social order requires intelligently designed planning from the top down.

With selected readings from Lucretius, Ridley, and Christian, Brown, and Benjamin's Big History, we talked about a wide range of topics over six sessions:

1. The Evolution of the Origin of the Universe
2. The Evolution of Life, Mind, and Culture
3. The Evolution of Morality
4. The Evolution of Religion
5. The Evolution of the Economy and Government
6. The Evolution of the Future

There were at least four kinds of criticism of the idea of Lucretian evolutionary liberalism.  The first criticism arose from the Straussian interpretation of Lucretius as an "ancient" philosopher, who therefore cannot rightly be identified as a "modern" liberal thinker.  I have responded to this criticism in my previous post.  After thinking more about this, I now believe that a crucial issue here is whether one can see Lucretius as drawing from an ancient Greek tradition of liberalism, as set forth by Eric Havelock in his Liberal Temper in Greek Politics, or whether Strauss was right in arguing that Havelock failed to identify any Greek thinker as a true liberal.  It seems to me that Havelock did identify in some of the pre-Socratic philosophers the evolutionary liberal idea of spontaneous order that was developed by Lucretius.

The second kind of criticism of evolutionary liberalism came from the traditionalist conservatives, who complained that this view of the world was morally, intellectually, and spiritually degrading--that it led to Nietzsche's "last man," who lives a comfortable life without any aspiration for anything high or noble.  The "Big History" of evolution that we were studying, one discussant observed, is actually a "small history" of small people in a soulless world with no transcendent longings.  This discussant also noted that in all of our reading nothing was said about the "regime"--Aristotle's politeia understood as the political community devoted to forming the human soul to achieve its highest virtues.

This is the conservatism of the Counter-Enlightenment with its scorn for the bourgeois liberalism and the scientific materialism that create a life of mediocrity without excellence.  In previous posts, I have responded to this Counter-Enlightenment attack on liberalism in my comments on Steven Smith (here), Roger Scruton (here), Patrick Deneen (here), and Benjamin Wiker (here).  I have also responded to the common appeal to Nietzsche's "last man" image by pointing out that the Nietzsche of Human, All Too Human defends an Epicurean evolutionary liberalism that recognizes the moral dignity of the bourgeois virtues (here and here).  Moreover, I have argued that those who sneer at the mediocrity of the bourgeois life need to confront Deirdre McCloskey's argument for the bourgeois virtues as including all of the moral, intellectual, and spiritual virtues (here).

As I have indicated in some of these posts, this debate over the virtues and vices of evolutionary liberalism ultimately comes down to an empirical question about the facts of human history: Has life in the illiberal regimes been generally more or less civilized than life in the liberal regimes?  As summarized by Ridley (28-33), people like Steven Pinker and Norbert Elias have presented historical evidence that the move from the illiberal social orders of the European Middle Ages to the liberal social orders of modern Europe was a "civilizing process," in which the moral standards of life improved.  The conservative critics of classical liberalism would have to prove that the factual evidence of history does not support this claim.  They would also have to recommend illiberal alternatives to liberalism.

A third criticism coming from the traditionalist conservatives was that evolutionary liberalism seems to assume a naïve progressivism that is denied by the fact that the cosmic and cultural evolution of history does not show inevitable and linear progress.  The authors of Big History present the entire history of the universe from the Big Bang to the present as a movement from simplicity to complexity through eight thresholds of increasing complexity.  Although they never mention Herbert Spencer, he also argued for a cosmic evolution from simplicity to complexity, from homogeneity to heterogeneity.  The authors of Big History rely on astronomer Eric Chaisson's claim that the cosmic history of increasing complexity can be studied through the measurable matrix of increasing flows of energy required to sustain more complicated structures against the entropy of the Second Law of Thermodynamics.

But eventually, according to the prevailing view of scientists, the universe must end in "heat death," because entropy will win.  Life on Earth will become impossible.  In 4 to 5 billion years, the Sun will die.  Over hundreds of billions of years, all the stars will fade out.  And with no stars, there will be no planets, and thus no biospheres to support life anywhere.  The universe will continue to expand forever into eternal darkness.  Entropy will have finally destroyed all structure and order.  For those scientists who believe our universe is part of a larger multiverse, other universes might continue to evolve.

Similarly, Lucretius offers four proofs that while the universe of atoms and the void--the "sum of sums" (summarum summa)--is eternal, our "world" (mundus) is mortal (5.235-415).  Our world as constituted by the Earth, all life on Earth, the Sun, the moon, and the stars will endure for a long time, but eventually it must all die.  New worlds can then arise out of atoms and the void.

Lucretius says that most human beings are afraid of this teaching that the world is mortal.  Earthquakes are especially fearful because they suggest the possibility that the Earth could be destroyed.  And "men fear to believe that a time of destruction and ruin awaits the nature of the great world, even when they see no great a mass of earth bowing to its fall" (6.565-68).

Leo Strauss quoted this as showing "fear of the most terrible truth"--the terrible truth that "nothing lovable is eternal or sempiternal or deathless, or that the eternal is not lovable" (Liberalism Ancient and Modern, viii, 135).  Strauss believed that only the few human beings capable of living the philosophic life can calmly accept this most terrible truth; and so in any healthy social order, this terrible truth would have to be hidden from the great multitude of human beings who cannot bear it.

Since Big History was written as a textbook for high school and college students, the authors must disagree with Strauss's claim that most human beings cannot bear the truth about the mortality of the world.  The authors admit that their view of the remote future as the "eternal death" of the universe is a "bleak picture."  And yet they try to see this as a "quite satisfying" picture for human beings, because it indicates that humanity has been lucky enough to live in "the springtime of the universe," the brief time when the universe has had all of the conditions for producing the wondrous world in which life and human beings could exist (304).

But rather than worrying about cosmic history many billions of years into the future, most human beings are surely more inclined to worry about the near future--the next hundred years or so--because they might imagine what the world will be like for their children and grandchildren.  With this in mind, our discussion turned to a consideration of whether we should be hopeful or gloomy about how well human beings in the near future will handle environmental problems such as global warming and the scarcity of natural resources and the threats from destructive technologies such as nuclear and biological weapons.

The authors of Big History sketch two alternative scenarios for "ominous trends" and "hopeful trends."  For the "ominous trends," they rely on gloomy predictions about the "limits to growth" by people like Lester Brown.  This kind of thinking has led people like Naomi Klein to argue that the only solution to our environmental problems as created by unregulated capitalism is to have "managed degrowth" to drastically reduce global production and consumption and then to execute a global plan for spending at least 10% of our global economic output on building renewable sources of energy to replace all high-carbon sources.

Against this sort of thinking, Ridley is clearly on the side of the "hopeful trends" scenario, because he believes that as long as there are free market incentives for solving environmental problems, there are likely to be innovative technological changes that will protect human beings from catastrophe. (I have written a post on the debate between Klein and Ridley here.)  As always, the key for Ridley is to allow for spontaneous cultural evolution:  "It is a fair bet that the twenty-first century will be dominated mostly by shocks of bad news, but will experience mostly invisible progress of good things.  Incremental, inexorable, inevitable changes will bring us material and spiritual improvements that will make the lives of our grandchildren wealthier, healthier, happier, cleverer, cleaner, kinder, freer, more peaceful and more equal--almost entirely as a serendipitous by-product of cultural evolution.  But the people with grand plans will cause pain and suffering along the way" (319-20).

Some of the discussants at the Liberty Fund conference agreed with this--thinking that as long as people were free to cooperate in spontaneously ordered groups, they could find imperfect solutions to their problems.  For example, one discussant spoke about Elinor Ostrom's studies of how neighbors cooperate to enforce social norms for managing common pool resources in ways that solve the "tragedy of the commons."

But at this point, some discussants brought up a fourth criticism of evolutionary liberalism--the fanaticism of Ridley's claim that everything good comes from bottom-up evolution, and everything bad comes from top-down planning.  Ridley declares: "bad news is man-made, top-down, purposed stuff, imposed on history.  Good news is accidental, unplanned, emergent stuff that gradually evolves.  The things that go well are largely unintended; the things that go badly are largely intended. . . . Letting good evolve, while doing bad, has been the dominant theme of history" (317-18).

While agreeing with Hayek about the importance of spontaneous order, Ridley ignores Hayek's claim that good order often does emerge top-down by design in deliberate organizations.  Families, firms, governments, military organizations--these are all deliberately designed forms of order.  And particularly in time of war, Hayek thought, a society might need to be centrally planned for warfare.

As I have indicated in a previous post (here), Ridley's version of evolutionary liberalism suffers from one fundamental flaw--an almost anarchistic scorn for government.  Unlike Hume, Smith, Darwin, and Hayek, Ridley fails to see that although governmental power is dangerous when it is unlimited and undivided, the spontaneous order of human civilization can arise only within a framework of general rules deliberately designed and enforced by government. 
Although Ridley has a short section on the evolution of marriage (85-90), he says nothing about the Hayekian account of the family as a deliberate organization rather than a spontaneous order.  I have written about that here and here.

Like Hayek, Ridley points to the evolution of the common law as an example of spontaneous order that shows how law can emerge without any need to be invented by lawmakers (33-36).  But Ridley is silent about Hayek's argument that the common law as "grown law" often needs correction by legislation as "made law" (Law, Legislation, and Liberty, vol. 1, 88-89).

I now regret that at this Liberty Fund conference we did not talk about the evolution of government, legislation, and the family as deliberate orders. We should have thought more about how the evolution of a free society requires both spontaneous order and deliberate order.

Some discussants suggested that good things can come either bottom-up or top-down.  One discussant pointed to Ridley's account of how Hong Kong became a place of free trade.  Sir Harry Pottinger, Hong Kong's first Governor in 1843, promoted free trade.  Then, in the 1960s, Sir John Cowperthwaite, the Financial Secretary of Hong Kong, resumed this experiment in free trade (233-34).  So here we see how top-down administrators can create the open space for bottom-up emergence of order.

Despite these four lines of criticism, it seemed that most of the discussants at this Liberty Fund agreed that the evolutionary science of the cosmos, culture, and mind can support classical liberalism.