Those wailing over one of the consequences of the recent election, the change in Virginia’s position on the Marshall-Newman amendment, would have us believe that there would be no one else defending it in court. But of course that wasn’t true. District court Judge Arenda Wright Allen’s order for the oral arguments in Bostic v. Rainey that took place Tuesday shows that the time allotted to defenders of the amendment was double the time allotted to the plaintiffs seeking to overturn it. In addition, attorneys for proponents of the amendment were provided by the Alliance Defending Freedom (formerly Alliance Defense Fund), a well-funded legal “ministry” that claims to win nearly 80% of its court cases. The problem faced by amendment proponents was not a lack of competent legal counsel. The problem was the lack of a constitutionally permissible justification for walling off a class of people from the fundamental right of marriage, based only on their orientation.

An argument from religion, or tradition, or one based on moral disapproval of gay people, or a wish to discourage gay people from existing, simply won’t survive scrutiny; those days are over. What the proponents of such bans have to show is that there is an important state interest that justifies treating people who want to marry a partner of the same sex differently from people who want to marry a partner of a different sex. And the argument they’ve settled on is the idea that “children do better with a mom and a dad.” You can see the talking point prominently displayed on the signs of protesters outside the courthouse; it was also expected to do the heavy lifting inside. As VFF’s Victoria Cobb put it, the proponent’s attorneys argued that “the government’s interest in marriage is in the upbringing of children by a mother and a father.”

The obvious problem with this argument is that the social science research and the professional medical and child welfare associations say that it’s not true: Children raised by two parents of the same sex actually do as well, or better in some cases, than children raised by two opposite sex parents.

In order to deal with this problem (because just accepting reality would be out of the question for those who wish to create their own reality), proponents of marriage bans need to claim that there is legitimate “disagreement” with this professional consensus. The amicus brief submitted by a group of academics mostly from Regent University and Brigham Young University is a case in point. Their brief illustrates the strategy of trying to undermine that consensus and the research that led to it. The brief claims that “nearly all of the studies upon which the ‘no difference’ assertion is based are rather limited, involving non-random, non-representative samples, often with relatively few participants,” and goes on to say that the samples don’t represent “the lesbian and gay population raising children.”

What the authors apparently mean by the phrase “the lesbian and gay population raising children,” though, is not what you probably assume.

If a study claimed to be examining the outcomes of ‘same sex’ parenting versus ‘different sex’ parenting, what would you expect the two groups of subjects to look like? I would expect that the researcher compared same sex couple-headed families to male-female couple-headed families, and also matched them on such characteristics as socio-economic status and educational level. But that’s not what the studies typically cited to counter the professional consensus do. In fact, the studies that have historically been presented as making this comparison actually include no same sex couple-headed families at all. What they typically show instead is that children who are raised by intact, married two parent families do better than children raised in homes broken by divorce or otherwise traumatized, which is not really a surprise. Courts have since become wise to the misrepresentation.

Why does the amici brief in Bostic focus on the supposed sampling weaknesses in the studies they want to undermine? To answer that, we need to go back to 2008 and the recognition by anti-marriage equality activists that they had a pretty serious constitutional problem. The solution to this problem was supposed to be a study rather triumphantly released in the summer of 2012: The Mark Regnerus “New Family Structures Study.”

The road to Mark Regnerus’ paper began years earlier, when religious right intellectuals began plotting how to use academic research to make a legal case against same-sex marriage. Academic research was needed because it was becoming increasingly difficult to make non-religious arguments against same-sex marriage that an average judge would buy.

It was a series of meetings among social-conservative scholars that led to the publication of an influential short book titled, Marriage and the Public Good: Ten Principles, published in 2008 by the Witherspoon Institute and signed by many of the leaders of the movement to fight same-sex marriage in America, including Robert P. George, who co-founded the Witherspoon Institute and National Organization for Marriage, and Jennifer Roback Morse, who founded NOM’s Ruth Institute. On the issue of same-sex marriage, the Ten Principles predicted that future academic research would show that “children reared by same-sex parents will experience greater difficulties with their identity, sexuality, attachments to kin, and marital prospects as adults, among other things.” But at the time there was no legitimate scientific research proving this point.

The New Family Structures Study was envisioned as that research. It began with a conclusion, not a question, and was designed to supplant previous research by correcting the sampling weaknesses in that research. Hence, the main selling point of the study when it was released was that it used the first “large, representative, population-based sample” to include “gay and lesbian parents.” As it turns out, though, the Regnerus study doesn’t do any better than previous ones at including actual “gay and lesbian parents” in any sense that would be relevant. The way it defines that category is so loose that it might as well not have included them at all. The comparison actually made is between intact families headed by married male-female biological parents, and families headed by single parents who had conducted, at some point while raising children under 18, a relationship of any duration with a partner of the same sex. For example, the study included 163 respondents with a “lesbian mother,” but of those respondents only two reported living with two mothers during their entire childhood; most never lived with their mother’s partner at all and were not parented by her. Yet the entire category was treated as representing same sex couple parents.

See the problem? The study never actually measured outcomes for children raised by same-sex couples, and the results have nothing to say about same sex couples who are seeking marriage to provide more security for the children they are already raising together.

This fundamental flaw has been widely reported, as well as irregularities in the way the study was funded and reviewed. After conducting an internal audit, a board member of the journal Social Science Research found the study’s definition of gay and lesbian parenting “extremely misleading” and said that such misrepresentation should have “disqualified it immediately” from publication.

It was further revealed that the peer review process was engineered. Documents obtained via Freedom of Information Act demands show that at least two reviewers – unbeknownst to journal editors – were also paid consultants on the project, and that the paper didn’t get normal oversight because of a very unusual expedited publication schedule; the funders wanted it published in advance of the Supreme Court hearing of the DOMA and Prop 8 cases. One of those reviewers was University of Virginia sociology professor W. Bradford Wilcox, “who played myriad roles on the project and whose undisclosed ties with the Witherspoon Foundation contradicted assurances from Regnerus and Witherspoon that the study’s funders were not involved in design or implementation of the research.”

These revelations have resulted in a motion just days ago to have testimony by Mark Regnerus excluded from consideration in a case filed to overturn Michigan’s anti-marriage amendment. The Plaintiffs in Deboer v. Snyder assert, with a great deal of supporting evidence, that testimony by Mark Regnerus would fail to meet “the minimum requirements imposed by the Federal Rules of Evidence. His flawed methodology and generic conclusions, untethered to any of the specific factual issues in this case, render his opinion unreliable and irrelevant under Federal Rules of Evidence.” The 146 page motion provides a detailed explanation of what is wrong with the Regnerus study, for those who enjoy this sort of thing.

We know that the amendment proponents’ briefs and testimony in Bostic v. Rainey rely heavily on the argument that the Regnerus study was funded and designed to support; in fact, that argument, if it were supported by any evidence, would be the only one left with any hope of retaining the Marshall-Newman amendment as constitutional. It speaks volumes that anti-marriage equality activists had to engage in such deliberate misrepresentation and subterfuge throughout the process of producing their signature study.

We are highly encouraged that Judge Wright Allen considered summary judgment without a hearing, and emphasized the final word when she told petitioners that she would be making her ruling “soon.” It suggests that all possible arguments have been thoroughly considered at this point and that nothing new has been presented in this case. Let’s get on with it.