Saturday, March 22, 2014

Junk Science? Questions about Expert Testimony in Michigan's Same-Sex Marriage Ban Trial

by Nomad

The testimony of the state's expert witness challenging Michigan's same-sex marriage took an amusing turn when he admitted that he believed gays would suffer eternal damnation in the depths of hell. But that's only half of the story. 
Read more to learn the rest.

Last week, the testimony in a federal court challenge on Michigan's same-sex ban took an unusual turn. In order to show a clear bias in what was supposed to be pure science- the plaintiff's attorney asked Professor Douglas Allen, a Canadian economist about his personal views on homosexuality.

The Monkey Trial Trick
As the state's expert, Professor Allen had warned the court that, after reviewing 60 same-sex parenting studies over a 15-year period, he recommended that the state uphold its ban. On the surface, the testimony seemed persuasive.
Then, Attorney Ken Mogill asked Allen:
“Is it accurate that you believe the consequence of engaging in homosexual acts is a separation from God and eternal damnation? .. in other words, they’re going to hell.”
“Without repentance, yes,” answered Allen.
This courtroom technique is straight out of the historic "Scopes Monkey Trial" of 1925 in which Tennessee attempted to ban the teaching of evolution in the state's public schools. Those bans came after lobbying from by World Christian Fundamentals Association whose president also happened to be a state representative. (In the same-sex marriage debate, it's a bit more camouflaged and involves a few politically-active Christian groups.)  The climax of the Scopes trial had one legendary attorney the great William Jennings Bryan, taking the stand and being quizzed about his religious views. The defense attorney, Clarence Darrow, in effect, publicly humiliated the state's attorney. 

(However, it should be recalled too that the Tennessee court found that the teaching of evolution could be banned and the Supreme Court upheld that decision. It was a victory for fundamentalists though it is usually portrayed as victory for progressives, a victory of science over superstition.
In any event, the same-sex marriage bans have not met with the same Supreme Court approval, In fact, the decision by the high court has been the key to overturning the discriminatory laws on a state-by-state basis.
Douglas' answer suggested that his pure science might not be quite as pure as he suggested. Naturally, the courtroom exchange made all the headlines but it was only half of the story. 

Allegations and Professor Allen
Professor Douglas Allen has appeared in three other same-sex marriage cases as an expert witness. He has made some extraordinary claims to show the damage that gay marriage has on the children.
For example, according to his research, Allen alleges:
Girls raised by two gay men are only 15 percent as likely to graduate from high school compared to girls raised a mother and father.
And that:
Boys raised by two lesbian mothers are 76 percent as likely to graduate high school compared to boys raised by married heterosexuals.
As a professor in the Department of Economics at Simon Fraser University, there is no question of Professor Allen's qualifications. Here is his CV and it is certainly impressive.. for an economist.
And that's a problem.

When it comes to expert testimony, some would say it is unfair to question Allen's testimony solely on the basis of his personal religious beliefs. Whether he believes gay people will all be plunged into the fiery abyss is not the issue. He can believe that gay are all witches and warlocks if he wants.
There are plenty of other objections. 

First (and most obvious) is that an economist is- no matter what his or her credentials might be- is not a sociologist. High school dropout rates of children of gay and lesbian couples is related to the the study of society, not the study of the economy. In a court room, however, one academic can seem just as much of an authority on a subject as any other.
So the real question is whether Allen is actually qualified to be introduced as an expert at all.

Junk Science?
Apart from questions about the hard-to-prove religious bias and the questions of expertise of the expert, critics have other doubts.
They have taken a closer look at his research and have cast some doubt on the veracity of his conclusions.
On purely statistical grounds, his research has been called "meaningless " and others have called it "junk science." (That's not due to the conclusions per se but because of the way the information was massaged and molded to fit the desired results.)

When the research  was carefully dissected by Philip N. Cohen, a sociologist at the University of Maryland, College Park,  Allen's conclusions seemed very shaky indeed. Cohen takes each of Allen's points and observes the statistical flaws. Actually, he poked so many holes in the research, it looked like Swiss cheese by the time the critique was finished.
(The analysis is fairly technical but the basic allegation is that Allen has played some games with the numbers and has left out some important factors that would have changed the results.) 
Cohen concludes his review of the data with this statement which cuts to the heart of the problem with Allen's conclusions.
I am willing to believe anything, if it’s true, even if I wish it weren’t true. I try to watch out for how my biases might distort my research (which I think is good) or the research that I criticize that I think is bad. Don’t hate on the methods because you hate the conclusion, hate on the conclusion because the methods are wrong.
It's what the scientific method is all about. And according to Cohen, Allen has reached the wrong conclusions based on faulty analysis.
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The state's case is based on the presumption that traditional marriage promotes greater stability and is a better environment for children. With half of all traditional marriages ending in divorce, (40%–50% of all first marriages, and 60% of second marriages) that's going to be a tough argument to sell. 

Flaws with Divorce Argument
In an interview, Allen has cited a study from Norway and Sweden, where same-sex marriage is legal. He makes the startling claim  that lesbians were six times more likely to divorce compared to heterosexuals, and gays were three times more likely to divorce. (To divorce, to have been divorced?) 

The professor doesn't mention that divorce rates in Sweden are among the highest in the world (54.9 %). He has a good reason to pass over the fact. It might say something about the availability or social acceptability of divorce in general.

But just look at it from the opposite view. India has the lowest divorce rates but nobody is suggesting arranged marriages are a great idea.  One reason is not because everybody is happier there. Quite the opposite. In India there is no concept of joint marital property. Many women cannot afford to divorce even when the marriage is a disaster.  Are we also expected to emulate this model?

The study that Allen cited admits the difficulties involved in measuring this particular group. To quote:
Since this still is a recent family type, we are in no position to say much about any long-term patterns or developments.
That's exactly what Professor Allen is trying to do and what the State of Michigan has asked him to do. However, the study does conclude:
We found that divorce risks are higher in same-sex partnerships than in opposite-sex marriages, and that unions of lesbians are considerably less stable, or more dynamic, than union of gay men.
But that is not quite as straightforward as Allen would like us to believe. The study also notes:
Finally, we find that the profile of divorce risks by time since marriage formation is practically the same for same-sex partnerships and opposite-sex marriages.
Even if the finding are accurate, there are plenty of reasons not to make outrageous claims, as Allen does. It is, after all, one study. 

In November 2011 the Williams Institute published a body of research which included rates that same-sex couples were getting married and divorced. That study studied a larger group - one-fifth of same-sex couples in the U.S.- and found that of the nearly 150,000 same-sex couples have either married or registered civil unions or domestic partnerships, about 1% of the total number get divorced each year, in comparison to about 2% of the total number of married straight couples. 

Besides that, the state is not usually in a position to give its blessing to marriages based on statistical research. Would the state of Michigan pass a law based on the statistics against interracial marriages which have higher rates of divorce? 
If so, then perhaps education levels should be considered as well. Married couples who have attained higher levels of education are less likely to divorce than less-educated couples, says a study recently published in the journal Family Relations. And yet, the state ignores those groups in the endless search for social stability and the "proper" environment for a child. 

While all of this might seem like a argument between two academics, there is a serious side.
The ban has direct impact on American citizens. According to one source:
April DeBoer, 42, and Jayne Rowse, 49, sued in 2012 to try to overturn a Michigan law that bars them from adopting each other’s children, but the case was expanded when U.S. District Judge Bernard Friedman invited couple to amend their suit to challenge the state’s ban on same-sex marriage, “the underlying issue.”
Rowse and DeBoer did not testify, although the state agreed with a statement read into evidence that describes them as “responsible and caring parents” who are providing a loving home to their children.
"Responsible and caring parents" who provide "a loving home" but, simply because they are not heterosexual, ineligible to equal rights. It seems as though the state is trapped in its own discriminatory rhetoric.

Science Strikes Back
Legally speaking, the state must also prove that same-sex marriage bans do not cause greater damage to lives of couples and their children. The state ought to, according to Supreme Court, find some way to show conclusively that the interests of the public are served by this restrictive definition of marriage. That's going to be a toughie.
The American Psychological Association, American Psychiatric Association, and others wrote in a Sep. 2007 amicus brief, "...allowing same-sex couples to marry would give them access to the social support that already facilitates and strengthens heterosexual marriages, with all of the psychological and physical health benefits associated with that support.”
In fact, much more evidence can be found to the psychological damage caused by the laws.
A 2010 analysis published in the American Journal of Public Health found that after their states had banned gay marriage, gay, lesbian and bisexual people suffered a 37% increase in mood disorders, a 42% increase in alcohol-use disorders, and a 248% increase in generalized anxiety disorders.
This explains why the argument has now turned to children and gay parents. How else can you possibly justify this much undue anxiety?  Yet, the court is, in effect, being asked to weigh the psychological damage to one group after a divorce against the psychological damage of gay couples not to be able to have the full benefits to marriage. 

Other arguments against same-sex marriage (namely, that it will destroy the very foundation of society) have met with a big thumbs-down. For instance, a 2009 study  published  in Social Science Quarterly found that:
"[l]aws permitting same-sex marriage or civil unions have no adverse effect on marriage, divorce, and abortion rates, [or] the percent of children born out of wedlock..."
Nix to that.
But there are more experts- rather than economists- weighing in on the subject.
The Executive Board of the American Anthropological Association found that more than a century of research has shown "no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies."
So when the state of Michigan could find an expert to defend its specious claims, Professor Allen was seen as a god-send. They were more than willing to bring him to Michigan from Canada (presumably at taxpayer's expense).

Connections, Crusades and Campaigns
As if that weren't enough, there are other problems with Professor Allen's testimony.
It has to do with politics.

Critics have also pointed out that Allen also sits on the Board of Advisers (one of its "inner circle of experts) for the National Organization for Marriage (NOM). That organization has been instrumental in leading the crusade against gay marriage. Its California-based think-tank project, The Ruth Institute, has been called "a virulently anti-gay organization." In fact, Southern Poverty Law Center has listed the NOM project as a hate group, forcing NOM to back away from its support.
NOM has been under fire for other reasons. Serious charges have been made against the organization to which Professor Allen is an adviser. The allegations include "skirting campaign finance laws,and  money-laundering.
At least that's the charge  made by E.J. Graff. In the article titled “Dirty Money,” Graff writing for The Advocate points to NOM’s support by only a handful of secret donors who have paid for increasingly harsher anti-gay rhetoric.
Graff writes:  
“NOM puts its hundreds of thousands of dollars into state campaigns in ways that protect its donors from being identified.”
The organization has invested a lot of cash to guarantee that politicians make all the right noises.
It has dumped millions of dollars into all state campaigns related to marriage equality and will continue to do so. Its consultant, Frank Schubert, has orchestrated every anti [same-sex] marriage state campaign, crafting nearly identical television ads and websites based on identical talking points for every race.
So given his affiliations to this organization, Professor Allen might not be as impartial as he seems. His "strictly by the numbers" testimony should be viewed with a lot of skepticism.

The NOM connection also adds fuel to critic's suggestions that the reasons of the state of Michigan's war on same-sex marriage in court for has much less to do with protecting families and a lot more to do with protecting campaign financing.
The state must have some strong motivations for attempting to battle it out in the courtroom. It is not only defying the scientific view but the majority view as well.

Finding Against the Tide
Michigan's decision to uphold the same-sex marriage ban is the first of its kind since the 2010 trial in California. It comes in the wake of a series of federal court decisions striking down similar bans in Utah, Oklahoma, Virginia and Texas. At present, at least 17 states, including the District of Columbia now allow same-sex marriage. According to a recent poll this year, 59% of the voters nationwide support no limits on the marriage rights. And even taking a look at individual regions, the majority in every area  country support the freedom to marry. Polls also supply some interesting shocks. For example, despite religious prohibitions, Catholics as a group support same-sex marriage at even higher numbers (62%) that the nationwide average.
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It would seem that, despite the experts, the state of Michigan is throwing away taxpayers dollars on a war that has no chance of victory. Ironically, the questionable use of state funds comes at a time when Governor Rick Snyder is making a case for greater austerity. 

Yesterday, the Michigan court overturned the ban. Judge Bernard Friedman ruled Friday that the ban was unconstitutional. In his ruling, Friedman says the ban does not advance any legitimate state interest, showing what he thought of the state's so-called expert witness.