Amicus Curiae: Friend of the Court, Friend of the Academy

(Photo: Katie Kullen/Flickr)

On Monday the American Sociological Society filed a “friend of the court” brief in the U.S. 10^th Circuit Court of Appeals arguing that children raised in same-sex households do not do worse than kids raised by heterosexual parents. The cases from Utah and Oklahoma under consideration are not about child-rearing, but about overturning bans on gay marriage; the gist of the ASA’s contribution was to support gay marriage by shooting down one ostensibly “research-based” argument against it.

“In this instance, when the social science evidence is exhaustively examined — which the ASA has done — the facts demonstrate that children fare just as well when raised by same-sex parents,” the brief reads. “Unsubstantiated fears regarding same-sex parents do not overcome these facts and provide no justification for upholding the Marriage Bans.”

This is the third time in little over a year ASA — which is a partner to Social Science Space — has filed an amicus curiae brief to support legalizing gay marriage by attacking child-welfare objections. The association filed a brief with the Ninth Circuit in October over bans in Nevada and Hawai’i, and in February 2013 filed one before the U.S. Supreme Court addressing both California’s anti-gay marriage Proposition 8 and the federal Defense of Marriage Act.

‘Doing this is part of the professional project of science, not too dissimilar from either lobbying for funding of social science research at the National Institutes of Health or the National Science Foundation or ensuring that sociological research is available to journalists and legislators’

The ASA’s action isn’t unique, but it is notable.

Individual social scientists are often the author, and individual bits of research often the fodder, for amicus briefs or expert witnessing. When scholarly societies file they bring to the bench their own field-specific expertise & along with their prestige and a reputation as the arbiter of consensus.

The American Psychological Association is a frequent filer, for example, on a slew of big policy issues, ranging from abortion to the validity of eyewitness testimony, although gay rights, in particular gay marriage (with 19 filings), is the most common subject.

Writing in the Duke Journal of Gender Law & Policy, Amy Rubin noted in 2011 that “over the past century, there has been a marked increase in the number of social science studies brought to the attention of courts and a correlated rise in the frequency with which studies are cited in judicial opinions.” In a chapter titled “Law’s Appropriation of Social Science,” The Blackwell Companion to Law and Society suggests that “despite admitted tensions, the US courts have for some time turned to social science, albeit in inconsistent and episodic ways.” Some of the episodes, though, have been of high import, such as 1954’s landmark school desegregation case, Brown vs. Topeka Board of Education.

For its part, science has been equally halting in its comfort with appearing on the stand. And yet, argues sociologist Donald Tomaskovic-Devey, “Doing this is part of the professional project of science, not too dissimilar from either lobbying for funding of social science research at the National Institutes of Health or the National Science Foundation or ensuring that sociological research is available to journalists and legislators.”

The ASA’s filing has been lauded (granted, by people on the same side of the argument) as a model of how a scholarly society can weigh in on a policy matter. For example, Jeff Kosbie, a JD/PhD candidate in sociology at Northwestern, wrote last year at his blog Social (In)Queery about ASA’s February 2013 filing:

While ASA does not frequently file amicus briefs at the Supreme Court, this is not the first time that it has done so. The last time (that I’m aware of) that ASA submitted an amicus brief was in 2011, in the Wal-Mart v. Dukes case. [The ASA also filed a pro-affirmative action brief in 2012.- ed.] In the Dukes case, William Bielby (past president of ASA) presented expert testimony on how Wal-Mart’s managerial culture may have led to a consistent pattern of gender discrimination in employment. ASA’s amicus brief specifically did not take sides on Bielby’s substantive argument, instead defending the scientific legitimacy of his methods (Nielsen et al. 2011). The debate surrounding that brief raises useful issues to think about how ASA should be involved at the Supreme Court.

In fact, that debate filled a special issue of Sociological Methods & Research. Authors in that special issue, which included a tick-tock review of how the ASA came to file a brief in this particular case, both hailed and failed the ASA. The filing was a “missed opportunity,” it highlighted the need for “an expanded role for sociological expertise among both plaintiffs and the defense in discrimination cases,” it “speaks directly to issues of workplace discrimination.” It was … controversial. (The special edition’s editor sided with the naysayers.)

Returning to Kosbie and the current case, he argues:

One of ASA’s key roles is defending and promoting sociology as a discipline. By filing an amicus brief at the Supreme Court, ASA puts its imprimatur on a set of scientific claims as legitimate. While different parties disagreed over how ASA’s Dukes brief presented the scholarly literature, they did agree that ASA could play a key role in certifying to the court the state of scientific knowledge in a field (Nielsen et al. 2011, see also other articles in that same special issue of Sociological Methods and Research). The same-sex marriage brief is a model for this goal of presenting the state of scientific research. The brief reflects an extensive review of the relevant literature. It includes key discussions of methodology, laying out in layman’s terms why the methods used in particular studies are important. The brief takes the time to describe the process of developing scientific consensus around how parenting impacts children. Instead of making more aggressive normative claims about how children should be raised or how same-sex parents are good for children, the brief is limited to the very modest claim that no evidence shows that children of same-sex parents fare any worse than children of opposite-sex parents.

There’s a continuum, from neutral science translation to open advocacy, in how social science has been deployed in amicus actions. It’s the same range that other “experts” have pondered since the dawn of amicus. The briefs date at least to English common law, where, as Allison Lucas explained in the Fordham Urban Law Review, “the amicus submission originally was intended to provide a court with impartial legal information that was beyond its notice or expertise, which is where the name amicus curiae, or ‘friend of the court’ is derived.”

More than three decades ago in the journal Law and Human Behavior, Ronald Roesch, Stephen L. Golding, Valerie P. Hans and N. Dickon Reppucci noted, “There has been a long-standing debate about the appropriate role for social scientists with respect to public policy. Should social scientists limit themselves to conducting and publishing their research and leave it to others to apply their research findings? Or do they have an ethical obligation to assist the courts and other social groups in matters relating to their expertise?”

‘The ‘Brandeis Brief’ – heavy on social science data and policy analysis, light on legal citation – has been a staple of American argument’

It’s a series of questions that have been asked since the social science camel first poked a nose under the tent flaps of jurisprudence. Legal scholars have pinpointed that exact poke as future justice Louis Brandeis’s filing in another workplace labor suit, 1908’s Muller v. Oregon. According to John Monahan and Laurens Walker at the University of Virginia, “Brandeis’ brief in Muller v. Oregon initiated the use of social science materials in American courts.” And “since then,” writes George Mason University law professor David E. Bernstein, “the ‘Brandeis Brief’ – heavy on social science data and policy analysis, light on legal citation – has been a staple of American argument.” (While ‘light’ is in the eye of the respondent, the latest ASA amicus brief included eight legal precedents– and 45 academic sources.)

Bernstein comes not to praise Brandeis’s opus, but to leaven it. “Brandeis’s brief, rather than being a social science masterpiece, consisted largely of a “hodgepodge” of reports of factory or health inspectors, testimony before legislative investigating committees, statutes, and quotes from medical texts, among other miscellany,” he writes, adding a late-article caveat that, “All of this is not to deny that Brandeis’s Muller brief was innovative, and, more important, received sufficient attention that it influenced the way future cases were argued before the Supreme Court and otherwise.”

Beyond the Pale

The ASA brief is notable for another reason: it explicitly shoots down the work of a specific sociologist. Some 14 of the document’s 43 pages are used to rebut the work of Mark Regnerus, an associate professor of sociology at the University of Texas at Austin whose work on the ill effects of same-sex parents—presented through a 2012 article in Social Science Research— are routinely cited by opponents of gay marriage.

ASA Executive Officer Sally T. Hillsman makes the rebuttal crystal clear in a release from the American Sociological Association:

“As I have stated before—and as I will continue to state—the Regnerus papers and other sources gay marriage opponents often rely on provide no basis for their arguments because this research does not directly examine the well-being of children raised by same-sex parents. Therefore, these analyses do not undermine the social science research consensus and do not establish a legitimate basis for gay marriage bans.”

Even as Regnerus had just finished testifying as an expert witness opposing any bid to reverse Michigan’s ban on gay unions, Hillsman characterized the use of Regnerus’s work as a “misportrayal” and that opponents of gay marriage “often misinterpret or misrepresent social science research.” As has been demonstrated in the climate change wars, even outliers from the mainstream view can be used to muddy the waters of consensus and create the perception that the science is unsettled.

While Regnerus may be lonely, he’s not alone. Another academic testifying in Michigan was Joseph Price, a Brigham Young University economist. And a companion paper to Regnerus’s in Social Science Research by Louisiana State University’s Loren Marks jousts directly with the mainstream. In it, Marks takes on a 2005 American Psychological Association brief (not an amicus filing) that said pernicious stereotypes of gays as poor parents were not supported by research. Still, Regnerus remains the social science poster boy for opposition to gay marriage; there’s even an anti-Regnerus website.

Regnerus for his part makes no bones about his personal views although, as some observers like William Saletan have noted, his academic results aren’t nearly as homophobicly black-and-white as partisans on both sides would claim. “Let me be clear,” he wrote in an article for Slate, “I’m not claiming that sexual orientation is at fault here, or that I know about kids who are presently being raised by gay or lesbian parents. Their parents may be forging more stable relationships in an era that is more accepting and supportive of gay and lesbian couples. But that is not the case among the previous generation, and thus social scientists, parents, and advocates would do well from here forward to avoid simply assuming the kids are all right.”

Nonetheless, Regnerus’s home institution, its College of Liberal Arts, and the sociology department chair, have gone to some effort to distance themselves from him, which he terms “sad”: “Dr. Regnerus’ opinions are his own. They do not reflect the views of the university. Like all faculty, he has the right to pursue his areas of research and express his point of view. We encourage the community of scholars and society as a whole to evaluate his claims.”

Regnerus says bosses were out of line. “I think they just wanted to distance themselves from me, which is sad."

— Tresa Baldas (@TBaldas) March 4, 2014