Wednesday, April 22, 2015

Gene Schaerr's Ungenial Amicus Brief: A Breakdown

On April 28, 2015, the Supreme Court will hear oral arguments on the constitutionality of state-level bans on gay marriage. There is no handy case caption for this day - no "Roe v. Wade" or "Brown v. Board of Education" - because back in January, the Court agreed to hear four separate cases, but only by consolidating them. The Court also limited their consideration to two questions:
  1. Does the Constitution require the states to let gay couples get married? (That's known as "the marriage question.")
  2. If a gay couple was legally wed in one state, does the Constitution require other states to recognize that marriage? (That's known as "the recognition question.")
To make things extra interesting, not all of the states want to be heard on both questions.  As Lyle Denniston says on the SCOTUSblog, "Kentucky is defending [i.e. seeking to uphold] both a ban on same-sex marriages and a separate ban on the official recognition of existing same-sex marriages.  Michigan is defending only a marriage ban, and Ohio and Tennessee are supporting only recognition bans."

Got all that?

For reporters and court watchers, there is a metric ton of potential reading material related to this four-for-one, including not only the briefs from the petitioners and the defending states, but also the   amicus briefs, which are filed by people or entities who are not parties to the suits but who feel they have information to share with the Court.  The Columbia Law School Sexuality and Gender Law Clinic filed such a brief, for example, as did the President of the House of Deputies of the Episcopal Church.  PFLAG filed a brief, and so did 226 mayors from across the country.  Whole entire states have weighed in, from Virginia to Hawaii.  None of these briefs, however, has generated the press coverage received by Gene Schaerr, who made the claim in his amicus brief that forcing states to permit same-sex marriages would lead to 900,000 abortions.  Yes, he counted.

On the surface, this claim seemed so wildly bizarre that I could easily dismiss the brief without reading it, but in a weird way, the bizarreness of it is exactly what made me need to read the brief in full.  And what I found there so interested me that I wanted to share it with you. 

First, for all the liberal scoffers who laugh at the idea that a same-sex marriage can hurt an opposite-sex marriage, Schaerr wants you to know you're not getting it:
Any ruling compelling states to redefine marriage in genderless terms will adversely alter the whole institution of marriage.  That is not because same-sex marriages will directly “harm” existing man-woman marriages. It is because the forced redefinition will undermine important social norms — like the value of biological connections between parents and children — that arise from the man-woman understanding. (6)
Okay, so norms.  Schaerr really likes norms.  He lists six that are valuable to society - and only applicable to heterosexual couples, obviously.  He makes a point of that.
  1. The "biological bonding norm" (kids have the right to be raised by their biological moms and dads, and for that matter, to be financed by them, which is the "maintenance norm" subset of the biological bonding norm)
  2. The "gender-diversity norm" (kids have the right to be raised by A mom and a dad, even if not their own mom and dad)
  3. The "postponement norm" (people should wait to make babies until they're in meaningful, committed relationships)
  4. The "procreation norm" (having and raising kids is socially valuable)
  5. The "exclusivity norm" (people should make babies with one partner only)
  6. The "child-centricity norm" (children first, you heathens - and that's the grandaddy norm)
All of these norms make society strong.  Damage these norms, and you damage society.

Now, you might be thinking "Wait, I'm adopted.  Are you saying I hurt society?"  Or "Wait, I'm a single mom!  Are you saying I hurt society?" Or "Wait, I'm married with no interest in having children!  Are you saying I hurt society?"  All of you can file into that line over there and wait for Schaerr to get to you.  I hope you brought a tasty snack, though.  And the Lord of the Rings trilogy.  He might not get to you for awhile.

What he'll definitely get to is the same line we've been hearing for years now about children who are not raised by both of their biological parents.  To quote the CDC:
Adverse outcomes accrue to children of divorce and children raised in single-parent families. Although not all single-parent families are the result of divorce and not all divorced mothers remain single, virtually all children of divorce spend some time in a single-parent household until the mother remarries.  Even when the mother does remarry, studies suggest that children in stepfamilies have similar risks of adverse outcomes as children in single-parent families: both groups of children do worse than children living with two biological parents in terms of academic achievement, depression, and behavior problems such as drug and alcohol abuse, premarital sexual intercourse, and being arrested.
I can't argue with the CDC.  Study after study (after study, plus more studies) find a risk of "adverse outcomes" awaiting the children of single mothers.  That said, did you miss the part where two gay parents equal one not-gay parent?  I did, too.  Even if we accept the "child-centricity norm," we can't say that the children of two heterosexual people who got divorced are the best point of comparison for the children of two gay people who got married, can we?  Because if we can, I'm not sure where to go from here.

We can't even safely or confidently say that heterosexual couples who stay married will uphold the norms that Schaerr identifies.  As he writes, "opposite-sex parents who embrace the norms of child-centricity and maintenance are also less likely to engage in behaviors - such as physical or sexual child abuse, neglect, or divorce -  that not only harm their children, but typically require state assistance or intervention" (emphasis mine).  Sure.  And accountants who brush and floss are less likely to lose their teeth.  Does that mean accountants have exceptional dental hygiene?

Schearr doesn't have time for accountants and toothbrushes.  A heterosexual marriage is a righteous marriage, and since that's so, he has this bit of logic to unfurl.  Changing the law to prohibit states from banning same-sex marriage would:
undermine those norms among heterosexual men, who generally need more encouragement to marry than women.  Such changes convey that society no longer needs men to bond to women to form well-functioning families or to raise happy, well-adjusted children.
Exactly!  Well said!

Wait, what was that again?

If gay people can marry, then . . . heterosexual men . . . will . . . think no one needs them?  And therefore . . . refuse to get married?  While sulking?  In a corner?  Sensitive group, those heterosexual men.

If you think that's absurd, by the way, Schaerr has FACTS and CHARTS to persuade you.  Just look at the marriage and divorce rates in states where gay marriage is legal!  (This is his table.)


Are you shocked and horrified by the way that gay marriage has driven down the marriage rates in those states?  I'm pretty shocked myself, except for the part where marriage rates fell for years without anyone blaming gay marriage.  Data from the CDC says the national rate in the year 2000 was 8.2.  In 2005, it was 7.6.  In 2010, 6.8.  Those were some busy stealth-gays.

Of course, the marriage rate has been holding at 6.8 for a few years now, so maybe I'm wrong.  Maybe other things used to cause it, but now gay marriage causes it.  Or maybe it's accountants who don't floss.

Because see, the problem with holding two things up next to each other is that you can't make them have a causal relationship.  Gay marriage didn't cause marriage rates to decline any more than single mothers have caused their children's grades to drop (or be at risk for dropping). 

Oh, and to circle back to that abortion issue, after the gays make the heterosexual men sulk in the corner refusing to get married because of norm damage, well, abortions.  How?
The logic is simple and intuitive: Fewer opposite-sex marriages means more unmarried women, which in turn means fewer children born, more children born to unmarried mothers, and more children aborted.
There are charts for this, too, and emphatic discussion of how Vermont, Iowa, Connecticut, and Massachusetts have some of the highest abortion rates in the country, caused, no doubt, by gay marriage.  Again.

If you're thinking by this point that you can write the Yale-educated Schaerr off as a crank or a lone gunman, I'll leave you with this.  These are the people who signed the brief along with him.



Aguirre, Dr. Maria S., Professor of Economics,

The Catholic University of America



Allen, Dr. Douglas W., Professor of Economics,

Simon Fraser University



Alvare, Helen M., Professor of Law,

George Mason University



Araujo, Dr. Robert John, University Professor Emeritus,

Loyola University Chicago



Baptist, Dr. Errol C., Clinical Professor of Pediatrics,

University of Illinois



Bateman, Dr. Michael, Assistant Professor of Pediatrics,

University of Minnesota



Bauman, Dr. Michael E., Professor of Theology and Culture,

Hillsdale College



Benton, Dr. Thomas B.B., Adjunct Faculty in Pediatrics,

University of Florida College of Medicine



Bleich, Dr. J. David, Professor of Jewish Law and Ethics,

Cardozo Law School, Yeshiva University



Boone, Dr. Mark J., Assistant Professor of Philosophy,

Forman Christian College



Bouvier, Dr. Joseph, Clinical Assistant Professor of

Child Health (Pediatrics) and Emergency Medicine,

University of Arizona College of Medicine



Bradford, Dr. Kay, Associate Professor of Family, Consumer & Human Development,

Utah State University



Bradford, Dr. Nathan F., Associate Professor of Family

Medicine, AnMed Health Oglesby Center



Brakman, Dr. Sarah-Vaughan, Associate Professor of Philsophy,

Villanova University



Busby, Dr. Dean, Professor of Family Life,

Brigham Young University



Carlson, Jr., Dr. Alfred J., Associate Faculty in Pediatrics,

University of Pennsylvania Medical School



Cavadini, Dr. John, Professor of Theology,

University of Notre Dame



Christensen, Dr. Bryce, Associate Professor of English,

Southern Utah University



Colosi, Dr. Peter J., Associate Professor of Moral Theology,

Charles Borromeo Seminary



Corral, Dr. Hernan, Professor of Private Law,

University of the Andes (Santiago, Chile)



Crosby, Dr. John F., Professor of Philosophy,

Franciscan University of Steubenville



De Jesus, Ligia M., Associate Professor of Law,

Ave Maria School of Law



Deneen, Dr. Patrick J., Associate Professor of Political Science,

University of Notre Dame



Dennis, Dr. Steven A., Professor of Human Development,

Brigham Young University-Idaho



DeWolf, David K., Professor of Law,

Gonzaga University



Duncan, Dwight, Professor of Law,

University of Massachusetts



Esolen, Dr. Anthony M., Professor of English,

Providence College



Farnsworth, Dr. Richard Y., Adjunct Associate Professor of Pediatrics,

University of Utah School of Medicine



Field, Dr. Scott, Adjunct Faculty in Pediatrics,

University of Alabama-Huntsville



Fields, Dr. Stephen M., Associate Professor of Theology,

Georgetown University



Fitzgibbons, Dr. Richard, Director,

Institute for Marital Healing



Foley, Dr. Michael P., Associate Professor of Patristics,

Baylor University



Gombosi, Dr. Russell, Adjunct Professor of Pediatrics,

Commonwealth Medical University (Scranton, PA)



Grabowski, Dr. John, Associate Professor of Moral Theology & Ethics,

The Catholic University of America



Hafen, Bruce C., Emeritus Dean and Professor of Law,

Brigham Young University



Hancock, Dr. Ralph, Professor of Political Science,

Brigham Young University



Hartle, Dr. Ann, Professor of Philosophy,

Emory University



Hawkins, Dr. Alan J., Professor of Family Life,

Brigham Young University



Healy, Dr. Nicholas J., Assistant Professor of Philosophy,

Pontifical John Paul II Institute on Marriage and Family

at The Catholic University of America



Hendershott, Dr. Anne, Professor of Psychology, Sociology & Social Work,

Franciscan University of Steubenville



Henry, Dr. Douglas, Associate Professor of Philosophy,

Baylor University



Hill, Dr. E. Jeffrey, Professor of Family Life, Brigham Young University



Hoffman, Dr. Robert P., Professor of Pediatrics,

The Ohio State University



Holland, Dr. Matthew S., University President and Professor of Political Science,

Utah Valley University



Jacob, Bradley P., Associate Professor of Law,

Regent University



Jacobs, Dr. Nathan A., Visiting Lecturer in Philosophy,

University of Kentucky



James, Dr. Spencer, Assistant Professor of Family Life,

Brigham Young University



Jeynes, Dr. William, Professor of Education,

California State University at Long Beach



Johnson, Dr. Byron R., Distinguished Professor of the Social Sciences,

Baylor University



Jones, Dr. Woodson S., Adjunct Professor of Pediatrics,

University of Texas Health Science Center



Kaleida, Dr. Phillips H., Formerly Professor of Pediatrics (Retired 2014),

University of Pittsburgh



Kampowski, Dr. Stephan, Professor of Philosophical Anthropology,

Pontifical John Paul II Institute on Marriage and Family at The

Catholic University of America



Keen, Dr. Mary, Clinical Associate Professor,

Loyola University Medical School



Keys, Dr. Mary M., Associate Professor of Political Science,

University of Notre Dame



Knapp, Dr. Stan J., Associate Professor of Sociology,

Brigham Young University



Koterski, Dr. Joseph W., Associate Professor of Philosophy,

Fordham University



Krason, Dr. Stephen, Professor of Political Science and Legal Studies,

Franciscan University of Steubenville



Kries, Dr. Douglas, Professor of Philosophy,

Gonzaga University



Lacy, Dr. Mark D., Associate Professor of Medicine,

Texas Tech University



Lafferriere, Dr. Jorge Nicolas, Professor of Civil Law,

Pontificia Universidad Catolica Argentina



Laughlin, Gregory K., Associate Professor of Law, Cumberland School of Law,

Samford University



Lindevaldsen, Rena M., Professor of Family Law,  

Liberty University School of Law



Lim, Dr. Paul, Adjunct Professor of Surgery,

University of Minnesota Medical School (Duluth)



Liu, Dr. Paul, Clinical Assistant Professor of Pediatrrics,

University of Arizona



Mansfield, Dr. Richard, Clinical Associate Professor of Pediatrics,

Georgia Health Science University; Assistant Professor of Pediatrics,

Virginia  College of Osteopathic Medicine



Marcin, Raymond B., Emeritus Professor of Law,

The Catholic University of America



Martins, Joseph J., Assistant Professor of Law,

Liberty University School of Law



Matthews, Dr. Randolph, Clinical Assistant Professor of Pediatrics,

Wake Forest School of Medicine



McCarthy, Dr. Margaret, Assistant Professor of Theological Anthropology,

Pontifical John Paul II Institute at The Catholic University of America



McGehee, Dr. Frank T., Clinical Instructor in Pediatrics, University of Texas-Arlington



Mikochik, Stephen, Visiting Professor, Ave Maria School of Law; Professor Emeritus,

Temple University School of Law



Miller, Dr. Jerry A., Clinical Professor of Pediatrics, Medical College of Georgia



Morton, Dr. Charles, Clinical Professor of Pediatrics,

University of Illinois College of Medicine at Urbana-Champaign



Nathanson, Dr. Paul, Religious Studies Faculty (retired),

McGill University



Nowicki, Dr. Michael J., Professor of Pediatrics,

University of Mississippi School of Medicine



Olson, Dr. Ross, Assistant Professor of Pediatrics (retired),

University of Minnesota



Pearson, Dr. James M., Assistant Clinical Professor,

East Tennessee State University College of Medicine



Pearson, Dr. Lewis, Assistant Professor of Philosophy,

University of St. Francis



Pecknold, Dr. C. C., Associate Professor of Theology,

The Catholic University of America



Peterson, Dr. James C., Professor of Ethics,

Roanoke College



Prudlo, Dr. Donald S., Associate Professor of Ancient & Medieval History,

Jacksonville State University



Pruss, Dr. Alexander, Professor of Philosophy,

Baylor University



Rane, Dr. Tom, Professor of Child Development,

Brigham Young University-Idaho



Schlueter, Dr. Nathan, Associate Professor of Philosophy,

Hillsdale College



Schramm, Dr. David, Associate Professor of Human Development & Family Studies,

University of Missouri



Shaw, Dr. Bill, Assistant Professor of Pediatrics,

Virginia Commonwealth University



Shelton, Dr. Jean, Associate Professor of Pediatrics,

East Virginia Medical School



Sherlock, Dr. Richard, Professor of Philosophy,

Utah State University



Silliman, Dr. Ben, Professor of Youth Development,

North Carolina State University



Smith, Dr. Christine Z., Assistant Professor of Pediatrics,

Texas Tech Paul Foster School of Medicine



Smolin, David M., Professor of Law, Cumberland Law School,

Samford University



Sodergren, Dr. Andrew, Adjunct Assistant Professor  of Psychology, Pontifical John Paul II Institute at The Catholic University of America



Somerville, Dr. Margaret, Professor of Law, Professor Faculty of Medicine,

McGill University



Storm, Dr. Joanna, Professor of Psychology,

Franciscan University of Steubenville



Tollefsen, Dr. Christopher, Professor of Philosophy,

University of South Carolina



Vitz, Dr. Paul C., Senior Scholar and Professor of Psychology,

The Institute for Psychological

Sciences; formerly Professor of Psychology,

New York University



Vizcarrondo, Dr. Felipe E., Associate Professor,

University of Miami Miller School of Medicine



Walls, Dr. Jerry, Professor of Philosophy,

Houston Baptist University



Wheless, Dr. James W., Professor and Chief of Pediatric Neurology,

University of Tennessee



Williams, Dr. Richard N., Professor of Psychology,

Brigham Young University



Wilson, Jr., Dr. Robert, Clerkship Co-Director of Pediatrics,

Florida State University College of Medicine



Yates, Dr. Ferdinand D., Professor of Clinical Pediatrics,

State University of New York at Buffalo



Yenor, Dr. Scott, Professor of Political Science,

Boise State University



Young, Dr. Katherine K., Professor Emeritus of Religious Studies,

McGill University



Zanga, Dr. Joseph, Professor of Pediatrics,

Mercer University School of Medicine;

Clinical Professor of Pediatrics, Medical College of Georgia &

Philadelphia College of Osteopathic Medicine



Zaso, Dr. John, Clinical Assistant Professor of Pediatrics,

Hofstra NS-LIJ School of Medicine


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