12-2335 #155

12-2335, 12-2435
IN THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
EDITH SCHLAIN WINDSOR, In Her Official Capacity as
Executor of the Estate of Thea Clara Spyer,
Plaintiff-Appellee,
v.
UNITED STATES OF AMERICA,
Defendant-Appellant,
BIPARTISAN LEGAL ADVISORY GROUP OF
THE UNITED STATES HOUSE OF REPRESENTATIVES,
Intervenor-Defendant-Appellant,

On Appeal from the United States District Court
for the Southern District of New York, Case No. 10-civ-8435
JOINT APPENDIX VOLUME II
__________________________________
STUART F. DELERY
Acting Assistant Attorney General
MICHAEL JAY SINGER
(202) 514-5432
AUGUST E. FLENTJE
(202) 514-3309
Attorneys, Appellate Staff
Civil Division, U.S. Department of Justice
950 Pennsylvania Ave., N.W., Room 7228
Washington, DC 20530-0001
Case: 12-2335 Document: 155-1 Page: 1 08/17/2012 695244 194
TABLE OF CONTENTS

Volume I:

Dk. # Document Page

Docket Sheet .................................................................................................... A-1

9 Amended Complaint (Feb. 2, 2011) .............................................................. A-19

10 Notice to the Court by Defendant United States of America
(Feb. 25, 2011) .............................................................................................. A-46

22 Revised Scheduling Order (May 11, 2011) ................................................... A-57

26 Intervention Order (May 2, 2011) .................................................................. A-59

30 Affidavit of Andrew J. Ehrlich (filed June 24, 2011) .................................... A-71

31 Affidavit of Edith Schlain Windsor (filed June 24, 2011) ........................... A-199

32 Affidavit of Leticia Anne Peplau, Ph.D (filed June 24, 2011) .................... A-305

33 Affidavit of Nancy F. Cott, Ph.D (filed June 24, 2011) ............................... A-350

34 Affidavit of Michael Lamb, Ph.D (filed June 24, 2011) .............................. A-387

35 Affidavit of George Chauncey, Ph.D (filed June 24, 2011) ........................ A-526

36 Affidavit of Gary Segura, Ph.D (filed June 24, 2011) ................................. A-582

40 Brief for the State of New York as Amicus Curiae in Support of
the Plaintiff (filed July 27, 2011) ................................................................. A-638

51 Intervenor-Defendants Local Rule 56.1 Response to Plaintiffs
Statement of Material Facts (filed August 1, 2011) ..................................... A-671

53-1 Ex. A to Memorandum of Law of Intervenor-Defendant the Bipartisan
Legal Advisory Group of the United States House of Representatives
in Support of its Motion to Dismiss (filed August 1, 2011) ........................ A-690

53-2 Ex. B to Memorandum of Law of Intervenor-Defendant the Bipartisan
Legal Advisory Group of the United States House of Representatives
in Support of its Motion to Dismiss (filed August 1, 2011) ........................ A-718

ii

62 Declaration of Conor B. Dugan in Opposition to Motion for Summary
Judgment, (with Exhibit A) (filed August 2, 2011) ..................................... A-721

Volume II:

62 Exhibits B, D, E, & F to Declaration of Conor B. Dugan in Opposition
to Motion for Summary Judgment (filed August 2, 2011) .......................... A-737

74 Declaration of Lisa M. Diamond (filed August 22, 2011) ........................... A-837

82 Declaration of Roberta A. Kaplan (filed September 15, 2011) ................... A-840

83 Supplemental Affidavit of Edith Schlain Windsor
(filed September 15, 2011) ........................................................................ A-943

84 Supplemental Expert Affidavit of Letitia Anne Peplau, Ph.D

85 Supplemental Expert Affidavit of Michael Lamb, Ph.D

86 Supplemental Declaration of Lisa M. Diamond

91 Intervenor-Defendants Notice of Recent Decisions
(filed October 20, 2011) ............................................................................. A-966

93 Order Granting Motion for Summary Judgment and Denying Motions
to Dismiss (filed June 6, 2012) .................................................................... A-985

94 Judgment (filed June 7, 2012) .................................................................... A-1011

95 Notice of Appeal of Intervenor-Defendant the Bipartisan Legal
Advisory Group of the U.S. House of Representatives
(filed June 8, 2012) .................................................................................. A-1012

97 Notice of Appeal of United States of America (filed June 14, 2012) ........ A-1044

Recently Docketed Letters to the District Court in Chronological Order

124 November, 22, 2010 Letter from R. Kaplan to J. Jones ............................. A-1045

122 April 19, 2011 Letter from R. Kaplan to J. Jones ...................................... A-1047

* Pages A-1049 through A-1076 have been removed intentionally.
iii

121 August 17, 2011 Letter from R. Kaplan to J. Jones (with attachments) .... A-1077

110 December 8, 2011 Letter from R. Kaplan to J. Jones ................................ A-1272

109 January 23, 2012 Letter from R. Kaplan to J. Jones (with attachments) ... A-1274

108 February 6, 2012 Letter from R. Kaplan to J. Jones .................................. A-1374

107 February 8, 2012 Letter from R. Kaplan to J. Jones .................................. A-1376

106 February 16, 2012 Letter from H. C. Bartolomucci to J. Jones ................. A-1378

105 February 21, 2012 Letter from R. Kaplan to J. Jones ................................ A-1380

125 February 23, 2012 Letter from R. Kaplan to J. Jones ................................ A-1382

103 March 6, 2012 Letter from H. C. Bartolomucci to J. Jones ....................... A-1384

102 March 7, 2012 Letter from R. Kaplan to J. Jones ...................................... A-1387

126 March 15, 2012 Letter from H. C. Bartolomucci to J. Jones ..................... A-1389

101 March 28, 2012 Letter from R. Kaplan to J. Jones .................................... A-1390

100 March 29, 2012 Letter from R. Kaplan to J. Jones .................................... A-1392

99 May 29, 2012 Letter from R. Kaplan to J. Jones ....................................... A-1394

98 May 31, 2012 Letter from R. Kaplan to J. Jones ....................................... A-1396


Exhibit B
Case 1:10-cv-08435-BSJ-JCF Document 62-2 Filed 08/02/11 Page 1 of 51
A-737
Letitia Anne Peplau June 17, 2011
Page 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------
EDITH SCHLAIN WINDSOR, in her
capacity as Executor of the Estate
of CLARA SPYER,
Plaintiff,
-against- 10-CV-8435
THE UNITED STATES OF AMERICA,
Defendant.
--------------------------------------
(Caption continued on next page.)

DEPOSITION OF LETITIA ANNE PEPLAU, Ph.D.,
Friday, June 17, 2011
A-738
Page 2
1 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
2 --------------------------------------
3 JOANNE PEDERSEN & ANN MEITZEN,
GERALD V. PASSARO II,
4 LYNDA DEFORGE & RAQUEL ARDIN,
JANET GELLER & JOANNE MARQUIS,
5 SUZANNE & GERALDINE ARTIS,
BRADLEY KLEINERMAN & JAMES GEHRE, and
6 DAMON SAVOY & JOHN WEISS,
310 CV 1750
7 Plaintiffs, (VLB)
v.
8
OFFICE OF PERSONNEL MANAGEMENT,
9 TIMOTHY F. GEITHNER, in his official
capacity as the Secretary of the Treasury,
10 and HILDA L. SOLIS, in her official
capacity as the Secretary of Labor,
11 MICHAEL J. ASTRUE, in his official
capacity as the Commissioner of the
12 Social Security Administration,
UNITED STATES POSTAL SERVICE, JOHN
13 E. POTTER, in his official capacity as
The Postmaster General of the United
14 States of America,
DOUGLAS H. SHULMAN, in his official
15 capacity as the Commissioner of Internal
Revenue,
16 ERIC H. HOLDER, JR., in his official
capacity as United States Attorney General,
17 JOHN WALSH, in his official capacity as
18 Acting Comptroller of the Currency, and
19
20 Defendants.
21 --------------------------------------
22
23
24
25
A-739
Page 3
1
2
3 DEPOSITION OF LETITIA ANNE PEPLAU, Ph.D.,
4 an Expert Witness herein, taken by Defendant,
5 pursuant to Agreement, at the offices of Paul
6 Weiss Rifkind Wharton & Garrison, LLP, 1285 Avenue
7 of the Americas, New York, New York, on Friday,
8 June 17, 2011, at 10:40 a.m., before Margaret Eustace,
9 a Shorthand Reporter and notary public, within
10 and for the State of New York.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A-740
Page 11
1 L.A. Peplau, Ph.D.
2 A. Yes, I have.
3 Q. How many times?
4 A. I have testified twice.
5 Q. Have you ever been excluded as an
6 expert in a case?
7 A. No.
8 Q. Do you know the plaintiffs in both
9 these cases?
10 A. No, I don't.
11 Q. You have never met any of them?
12 A. No.
13 Q. I know the answer to this, but I will
14 ask it for the record: Are you an attorney?
15 A. No.
16 Q. I would like to go into the question
17 of sexuality.
18 How do you define homosexuality?
19 A. Homosexuality isn't actually a term I
20 would use. I would think of it in the terms
21 of the broader term of sexual orientation.
22 That is what I addressed in my affidavit.
23 Q. How would you define sexual
24 orientation?
25 A. I would define sexual orientation as
A-741
Page 12
2 an enduring set of emotional sexual
3 attractions towards men, toward women or
4 toward both.
5 I would as well define sexual
6 orientation as including a person's identity
7 as gay or lesbian or heterosexual or bisexual.
8 And I would also include it under the rubric
9 of sexual orientation related behavior. For
10 example, forming a relationship with a person
11 of the same sex or of the other sex.
12 Q. Within the definition of sexual
13 orientation, do you define gay differently
14 from that?
15 MR. BENSON: Object to the form.
16 A. I think the term gay is used in a
17 variety of ways. It is one of the sexual
18 orientation identity labels that some people
19 might adopt. The term is, I think, most
20 commonly used with regard to men, but it is
21 sometimes used in a generic way to apply to
22 women as well.
23 Q. How would you define lesbian?
24 A. I think of lesbian as an identity
25 label or category that would be used for women
A-742
Page 13
2 whose enduring attractions are toward other
3 women.
4 Q. How would you define bisexual?
5 A. Again, I would define it as an
6 identity label for a person whose emotional
7 and romantic and sexual attraction are towards
8 persons of both sexes.
9 Q. Do different fields of study use
10 different definitions of sexual orientation?
12 A. You know, I really am not an expert
13 on how philosophy or political science or
14 other fields might define sexual orientation.
15 So I don't have a good answer for that
16 question.
17 Q. What about in the social sciences?
19 A. You know, I am a psychologist, so the
20 definition of sexual orientation that I use
21 and that I am most familiar with is one that
22 is -- has been used by the American
23 Psychological Association, which is our
24 national professional association, it has been
25 used by them in their educational materials
A-743
Page 14
2 for the public and for practitioners. It is a
3 widely accepted definition within psychology,
4 but I really couldn't tell you what is a
5 standard sociology definition of sexual
6 orientation would be.
7 MR. DUGAN: I am going to have
8 this marked Exhibit 3. This is the APA
9 answers to your questions.
10 (APA answers were marked as
11 Defendants' Exhibit 3 for
12 identification.)
13 Q. Dr. Peplau, do you recognize this
14 document?
15 A. Yes.
16 Q. What is this document?
17 A. It's a document prepared by the
18 American Psychological Association. It is
19 called "Answers to your questions." It has
20 been prepared as an educational material by
21 the APA.
22 Q. I direct you to page 2 of this
23 document. There is a question that says, What
24 causes a person to have a particular sexual
25 orientation?"
A-744
Page 15
2 And I will read this in for the
3 record.
4 "There is no consensus amongst
5 scientists about the exact reasons that an
6 individual develops a heterosexual, bisexual,
7 gay or lesbian orientation. Although much
8 research has examined the possible genetic,
9 hormonal, developmental, social and cultural
10 influences on sexual orientation no findings
11 have emerged that permit scientists to
12 conclude that sexual orientation is determined
13 by any particular factor or factors. Many
14 think that nature and nuture both play complex
15 roles. Most people experience little or no
16 choice about their sexual orientation."
17 Do you agree with this?
18 A. Yes.
19 Q. And is this a consensus for you
20 amongst scientists?
22 A. I think it is a widespread view.
23 There are many ideas here, but in the main, I
24 think the ideas that the causes of sexual
25 orientation are not understood is an idea that
A-745
Page 16
2 is accepted by many researchers.
3 Q. Would it fair to say that scientists
4 don't know what causes a particular sexual
5 orientation?
6 A. I will say that.
7 Q. Paragraph 11 of your expert report
8 you stated --
9 MR. BENSON: Exhibit 2 for the
10 record.
11 MR. DUGAN: Yes.
12 Q. -- you stated that, "It is well
13 established that homosexuality is a normal
14 expression of human sexuality."
15 What do you mean by "normal" in
16 that sentence?
17 A. What I really mean is explained in
18 the following sentence, which says, "It is not
19 a mental illness, and being gay or lesbian has
20 no inherent association with a person's
21 ability to lead a happy, healthy or productive
22 life or to contribute to society."
23 I mean it in that way, that
24 homosexuality is part of a wide array of forms
25 of sexual orientation and that there is
A-746
Page 18
2 one that suggests that unlike some of the past
3 views that linked sexual orientation with
4 mental health that that is a view that
5 psychologists and I no longer accept.
6 Q. I want to go back to the question of
7 sexual orientation.
8 Is there a difference between sexual
9 orientation and sexual attraction?
10 A. I think sexual orientation is a
11 fairly broad term that encompasses many
12 components, and attraction would be one of the
13 ingredients of sexual orientation.
14 Q. Do scientists know what percentage of
15 the American population is homosexual?
17 A. There are a variety of estimates that
18 have been made based on research projects.
19 So, for example, in the national
20 representative probability sample by Laumann
21 and others, a project I reference, they used
22 people's sexual orientation identity
23 self-definition of being lesbian, gay or
24 bisexual or heterosexual.
25 And according to their data,
A-747
Page 19
2 somewhere between 1 and 2 percent of women
3 identified as lesbian, and somewhere between 2
4 and 3 percent of men identified as gay. And I
5 think that's a reasonable estimate, using
6 self-identification as a measure of sexual
7 orientation.
8 Q. Have these estimates varied
9 throughout time?
11 A. It is fairly new that we have
12 estimates based on representative probability
13 samples. And so prior to research by Laumann
14 and others, there were certainly estimates
15 that were based on nonrepresentative samples
16 and sometimes those estimate were different.
17 Q. You cite Dr. Kinsey's work.
18 A. Yes.
19 Q. I believe he said that -- he had that
20 famous 10 percent number about homosexuals.
21 Has that number been discredited?
22 MR. BENSON: Objection to form.
23 A. Yes. I would say that people have a
24 better understanding of Kinsey's numbers, that
25 Kinsey's sample of men, just where the number
A-748
Page 20
2 comes from was not representative, and that it
3 is, I think, now widely believed to have been
4 too large a number.
5 Q. Does the percentage of people who
6 consider themselves homosexual differ in
7 different areas of the country?
9 A. The data that I know that have
10 representative samples are not differentiated
11 by region of the country. For instance, the
12 Laumann data are not differentiated by region,
13 so I don't have a basis for answering that
14 question.
15 Q. The term LGBT, lesbian, gay, bisexual
16 and transgender, what does that term mean?
18 A. Sometimes when people are trying to
19 find a shorthand way to talk about people who
20 are not sort of traditionally heterosexual,
21 they will use acronyms. And I think that's
22 really just a way of saying here are a set of
23 people. For instance, in many colleges there
24 might be an LGBT resource center for students,
25 and that would be a center that provided
A-749
Page 25
2 homosexual acts?
4 Same objection.
5 A. You know, how I would classify such a
6 person would depend on the goal of the
7 research project. Researchers who are
8 interested in studying the transmission of
9 sexually transmitted diseases might be
10 particularly interested in studying men who
11 have sex with men regardless of whether they
12 identify as heterosexual or gay. And a term
13 that is commonly used for that for those men
14 is men who have sex with men, MSM.
15 Q. Can sexual orientation be defined at
16 birth?
18 A. What research shows is that people
19 come to understand their sexual orientation
20 most typically during adolescence, so I would
21 say that looking at a newborn, I would not be
22 able to tell you what that child's sexual
23 orientation is going to be.
24 Q. In paragraph 15 of Exhibit 2, you
25 describe the continuum of sexual orientation.
A-750
Page 36
2 (Copy of paper by Herek Norton
3 Allen and Sims was marked as
4 Defendants' Exhibit 4 for
5 identification.)
6 Q. Do you recognize that, Dr. Peplau?
7 A. Yes.
8 Q. What is that?
9 A. This is a copy of the paper by Herek
10 Norton Allen and Sims that I was referring to
11 in paragraph 25.
12 Q. If I could have you turn to page 186,
13 which is table 3 of this article.
14 You wrote, "95 percent of gay men
15 experience no choice at all or very little
16 choice about their sexual orientation."
17 Looking at table 3, is it fair to say
18 that nearly 7 percent of gay men felt that
19 they had a small amount of choice in their
20 sexuality and 5.2 percent said that they
21 experienced a fair amount or a great deal of
22 choice in their sexuality?
24 Q. Let me split that up.
25 Is it fair to say that 7 percent of
A-751
Page 37
2 gay men felt that they had a small amount of
4 A. Yes.
5 Q. And is it fair to say that 5.2
6 percent experienced a fair amount or great
7 deal of choice in their sexuality?
8 A. Yes.
9 Q. With regard to lesbians, doesn't the
10 study show that 31.6 percent of lesbian women
11 experience a small amount or a fair amount of
14 Compound.
15 Q. I will split that up.
16 Does this study show that 15.2
17 percent of lesbians experience a small amount
18 of choice in their sexual orientation?
19 A. Yes, that's what the study shows.
20 Q. And does this study show that 16.4
21 percent of lesbians experience a fair amount
22 or a great deal of choice in their sexual
23 orientation?
24 A. Yes, that's what this study shows.
25 Q. And looking at the last column there,
A-752
Page 38
2 on table 3, if one factors in gays, lesbians
3 and bisexuals, both bisexual men and women,
4 isn't it true that 14.2 percent experience a
5 small amount of choice in their sexual
6 orientation?
7 A. Yes, that's what the table shows.
8 Q. Is it true that 25.2 percent
9 experience a fair amount or a great deal of
10 choice in their sexual orientation?
11 A. So just so I am clear, what we are
12 doing here is we are adding in bisexuals, who
13 are people who are attracted to both men and
14 women, and when you do that you find that the
15 percent of lumping together lesbians, gay men
16 and bisexuals who report they have a fair
17 amount or a great deal of choice is 25
18 percent.
19 And, yes, that's what the table
20 shows.
21 MR. DUGAN: Mark that Exhibit 5.
22 (Paper by Greg Herek was
23 marked as Defendants' Exhibit 5
24 for identification.)
25 Q. Do you recognize Exhibit 5,
A-753
A-754
A-755
A-756
A-757
A-758
A-759
A-760
A-761
A-762
A-763
A-764
A-765
A-766
A-767
A-768
A-769
A-770
A-771
A-772
A-773
A-774
A-775
A-776
A-777
A-778

Name of Cases:
EDITH SCHLAIN WINDSOR,
in her capacity as Executor of the Estate of THEA CLARA SPYER,
Plaintiff,
v.
Defendant.
(10 Civ. 8435) (BSJ) (JCF)
DISTRICT OF CONNECTICUT
JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA
DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS,
SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE,
and DAMON SAVOY & JOHN WEISS,
Plaintiffs,
v.
OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official
capacity as the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity
as the Secretary of Labor, MICHAEL J. ASTRUE, in his official capacity as the
Commissioner of the Social Security Administration, UNITED STATES POSTAL
SERVICE, JOHN E. POTTER, in his official capacity as The Postmaster General of the
United States of America, DOUGLAS H. SHULMAN, in his official capacity as the
Commissioner of Internal Revenue, ERIC H. HOLDER, JR., in his official capacity as
United States Attorney General, JOHN WALSH, in his official capacity as Acting
Comptroller of the Currency, and THE UNITED STATES OF AMERICA,
Defendants.
(310-CV-1750) (VLB)
Date of Deposition: Friday, June 17, 2011
Name of Witness: Letitia Anne Peplau, Ph.D.

A-779
Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition
2
I wish to make the following changes, for the following reasons:

PAGE LINE: 16:3
CHANGE FROM: would it
CHANGE TO: would it be
REASON: Transcription error

PAGE LINE: 22:23
CHANGE FROM: ASEF (ph)
CHANGE TO: NSF [National Science Foundation]

PAGE LINE: 29:20
CHANGE FROM: questions
CHANGE TO: lesbians

PAGE LINE: 32:13
CHANGE FROM: Does California studies
CHANGE TO: Those California studies

PAGE LINE: 33:23
CHANGE FROM: I see against relationships of lesbians and gay men.
CHANGE TO: I seewhere it says, The relationships of lesbians and gay men
A-780
3

PAGE LINE: 41:4
CHANGE FROM: It was always conceivable
CHANGE TO: It is always conceivable

PAGE LINE: 42:1518
CHANGE FROM: All close same sex relationships between friends, relatives,
coworkers, acquaintances or others which shall be considered
homosexual relationships.
CHANGE TO: Of all close same-sex relationships between friends, relatives,
coworkers, acquaintances, or others, which shall be considered
homosexual relationships?

PAGE LINE: 49:56
CHANGE FROM: however, it actually an encompasses
CHANGE TO: however, it actually encompasses

PAGE LINE: 51:35
CHANGE FROM: harms not individuals in legal same sex marriage but gay men,
lesbians and bisexuals as a group.
CHANGE TO: harm not only individuals in legal same-sex marriages, but
gay men, lesbians, and bisexuals as a group.

A-781
4
PAGE LINE: 57:10
CHANGE FROM: no singular theory
CHANGE TO: no single theory

PAGE LINE: 57:14
CHANGE FROM: the interplay biological,
CHANGE TO: the interplay of biological,

PAGE LINE: 57:24
CHANGE FROM: that is all learning experience
CHANGE TO: that it is all learning, experience
REASON: Typographical error

PAGE LINE: 59:22
CHANGE FROM: married that the families would accept
CHANGE TO: married that their families would accept

PAGE LINE: 61:7
CHANGE FROM: protection or lesbians
CHANGE TO: protection for lesbians

A-782
5
PAGE LINE: 63:6
CHANGE FROM:
CHANGE TO: Add Q:

PAGE LINE: 66:6
CHANGE FROM: One form that
CHANGE TO: One form that is

PAGE LINE: 67:11
CHANGE FROM: homosexual marriage is one
CHANGE TO: homosexual marriage if one

PAGE LINE: 70:21
CHANGE FROM: I to want pose an objection
CHANGE TO: I want to pose an objection

PAGE LINE: 71:24
CHANGE FROM: will not effect heterosexual
CHANGE TO: will not affect heterosexual

A-783
6
PAGE LINE: 76:8
CHANGE FROM: they in partners are
CHANGE TO: that partners are

PAGE LINE: 77:25
CHANGE FROM: expert
CHANGE TO: experiment

PAGE LINE: 78:3
CHANGE FROM: assign peoples conditions
CHANGE TO: assign people to conditions

PAGE LINE: 78:18
CHANGE FROM: simply her asking
CHANGE TO: simply asking her

PAGE LINE: 80:13
CHANGE FROM: mental harm disparities
CHANGE TO: mental health disparities

A-784
7
PAGE LINE: 81:24
CHANGE FROM: Fingerhut, et al. Paper
CHANGE TO: Fingerhut, et al. paper

PAGE LINE: 82:16
CHANGE FROM: depressed
CHANGE TO: depression

PAGE LINE: 88:8
CHANGE FROM: an individual as
CHANGE TO: an individuals

PAGE LINE: 96:2
CHANGE FROM: many Americans old
CHANGE TO: many Americans hold

PAGE LINE: 98:4
CHANGE FROM: imagines of lesbian
CHANGE TO: images of lesbian

A-785
8
PAGE LINE: 98:6
CHANGE FROM: for trails
CHANGE TO: portrayals

PAGE LINE: 98:14
CHANGE FROM: More the point
CHANGE TO: More to the point
A-786
A-787

Exhibit D
A-788
In The Matter Of:
EDITHSCHLAINWINDSOR
v.
THEUNITEDSTATESOFAMERICA
___________________________________________________
NANCYF.COTT,PH.D.Vol.1
July6,2011
___________________________________________________

A-789
NANCY F. COTT, PH.D. - 7/6/2011
1-800-325-3376 www.merrillcorp.com/law
Merrill Corporation - New York
Page 1
- - - - - - - - - - - - - - - - - - x
capacity as Executor of the estate of
THEA CLARA SPYER
Plaintiff
v. No. 1:10-cv-08435(BSJ)(JCF)
THE UNITED STATES OF AMERICA
Defendant
- - - - - - - - - - - - - - - - - - x
DEPOSITION of NANCY F. COTT, PH.D.
Wednesday, July 6, 2011
9:34 a.m.
Gay & Lesbian Advocates & Defenders
30 Winter Street
Boston, Massachusetts
Michelle Keegan, Court Reporter
A-790
Page 2
1 A P P E A R A N C E S:
2
GAY & LESBIAN ADVOCATES & DEFENDERS
3 By Mary Bonauto, Esq.
30 Winter Street
4 Boston, Massachusetts 02108
(617) 426-1350
5 mbonauto@glad.org
Counsel for Plaintiffs in Peterson Case
6
7
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
8 By Andrew J. Ehrlich, Esq.
1285 Avenue of the Americas
9 New York, New York 10019
(212) 373-3166
10 aehrlich@paulweiss.com
Counsel for Plaintiffs in Windsor Case
11
12
BANCROFT PLLC
13 By Conor B. Dugan, Esq.
1919 M Street, N.W.
14 Washington, D.C. 20036
(202) 234-0090
15 cdugan@bancroftpllc.com
Counsel for the Defendant
16
17
UNITED STATES DEPARTMENT OF JUSTICE
18 By Jean Lin, Esq.
Federal Programs Branch
19 20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
20 (202) 514-3716
jean.lin@usdoj.gov
21 Conusel for the Defendant
22
Also Present:
23 Shira Hoffman
Peter Dunne
24 Suzanne Love
Ashley Dunn
25
A-791
Page 3
1
I N D E X
2
Videotaped Deposition of: Page
3
NANCY F. COTT, PH.D.
4
Examination by Mr. Dugan 4
5
Examination by Mr. Ehrlich 59
6
Further Examination by Mr. Dugan 61
7
8
E X H I B I T S
9
No. Page
10
Exhibit 1 Portion of deponent's CV 7
11
Exhibit 2 Deponent's expert affidavit 8
12
Exhibit 3 Bibliography 8
13
Exhibit 4 Excerpts from deponent's book, 42
14
"Public Vows"
15
16
17
Original exhibits retained by court reporter
18
19
20
21
22
23
24
25
A-792
Page 17
1 09:52:19
together.
2 09:52:24
Q I think you talked about the pair, in your
3 09:52:31
previous answer. Did that pair ever include same-sex
4 09:52:36
couples?
5 09:52:36
A Not to my knowledge, in the colonial part of
6 09:52:41
the -- part of North America or at the time of the
7 09:52:44
founding among those who consider themselves part of the
8 09:52:47
new United States.
9 09:52:47
Q Has marriage been a national or federal issue
10 09:53:02
at times during American history?
11 09:53:05
MR. EHRLICH: Objection to the form. Vague and
12 09:53:08
ambiguous.
13 09:53:08
You can answer.
14 09:53:10
A You said a national or a --
15 09:53:13
Q Let me rephrase.
16 09:53:15
Has marriage been an issue of federal law at
17 09:53:17
times during American history?
18 09:53:19
A Yes, marriage in federal territories.
19 09:53:23
Q What about marriage among native Americans?
20 09:53:29
A Yes, that's a good point, that in dealing with
21 09:53:34
Indians, again, in federal territories and in certain
22 09:53:43
states where the federal government was dealing with
23 09:53:51
the -- with native Americans through the Bureau of
24 09:53:56
Indian Affairs, the form of marriage observed by these
25 09:53:59
populations was of concern to that federal agency, yes,
A-793
Page 18
1 09:54:04
and to certain people in congress.
2 09:54:05
Q In the post civil war era, did the federal
3 09:54:12
government involve itself in the question of the
4 09:54:15
marriage between former slaves?
5 09:54:17
A During the civil war when the South was
6 09:54:21
occupied and in the very beginning of the post civil war
7 09:54:25
period when the southern states were not yet
8 09:54:28
reconstituted, yes, the federal government through the
9 09:54:32
Freedmen's Bureau concerned itself with marriages of the
10 09:54:36
freed men and women.
11 09:54:37
Q I'd like you to turn to Paragraph 13, page 5 of
12 09:54:55
Exhibit 2. This is your expert affidavit.
13 09:54:59
A I'm sorry. I didn't catch which page.
14 09:55:00
Q Page 5, Paragraph 13, right under Section B.
15 09:55:05
A Okay.
16 09:55:07
Q You write there, "What is seen as legitimate
17 09:55:11
marriage in a given society may be, for instance,
18 09:55:14
polygamous, monogamous, matrifocal or patrifocal,
19 09:55:19
patrilineal or matrilineal, lifelong or temporary, open
20 09:55:21
or closed to concubinage, divorce-prone or
21 09:55:25
divorce-averse," and so on.
22 09:55:26
Are you an expert in marriage and world
23 09:55:29
cultures?
24 09:55:30
A As I said at the outset, I am a specialist in
25 09:55:34
the history of the United States, but that is studied in
A-794
Page 20
1 09:57:40
to divorce his wife because she was past child-bearing
2 09:57:43
age. Men and women known to be sterile have not been
3 09:57:46
prevented from marrying, nor could a marriage be
4 09:57:49
annulled for an inability to bear or beget children."
5 09:57:57
What about the case of impotence? Has that
6 09:58:02
been a bar to marriage?
7 09:58:03
MR. EHRLICH: Objection to form. In --
8 09:58:04
Q -- in the United States, from the founding
9 09:58:06
until now.
10 09:58:07
MR. EHRLICH: Under federal law or any state
11 09:58:09
law?
12 09:58:09
MR. DUGAN: That's right.
13 09:58:10
A Federal law, so far as I know, has never dealt
14 09:58:14
with this. Certainly in colonial law there -- in New
15 09:58:21
England, yes, impotence or impotency was a reason to
16 09:58:25
dissolve a marriage if there had been no knowledge of
17 09:58:29
that by the partner who was deprived before the
18 09:58:38
marriage.
19 09:58:39
Knowledge that the person he or she was
20 09:58:42
marrying could not engage in sexual intercourse would --
21 09:58:47
if that knowledge was there before the marriage, then
22 09:58:49
the inability was not a cause for dissolving the
23 09:58:53
marriage.
24 09:58:53
Q Does this mean that consummation has been
25 09:58:57
required to validate marriages in the United States,
A-795
Page 21
1 09:59:00
federal or state subdivisions?
2 09:59:02
A Well, certainly federal law has never dealt
3 09:59:04
with this, so far as I am aware.
4 09:59:07
No, I do not think that consummation has been
5 09:59:10
required. I'm not aware of any law in a state or colony
6 09:59:16
that required consummation through sexual intercourse
7 09:59:19
for a marriage to be valid. Consent was considered
8 09:59:24
sufficient. And prior and more important and even the
9 09:59:28
Christian church from the beginning of the period
10 09:59:31
considered consent more important than consummation to a
11 09:59:34
marriage.
12 09:59:34
Q And in returning to the question of impotence,
13 09:59:38
do you know why impotence has been a grounds for
14 09:59:40
annulment or divorce in American law?
15 09:59:42
A Yes. I believe that it is because sexual
16 09:59:49
intimacy was assumed to be part of marriage. It was not
17 09:59:55
required for a marriage, but it was assumed to be part
18 09:59:57
of marriage. And that was the reason.
19 10:00:01
Q Would you turn to Paragraph 21, which goes from
20 10:00:15
the bottom of page 6 to the top of page 7. Dr. Cott,
21 10:00:19
you write, "The notion that the main purpose of marriage
22 10:00:22
is to provide an ideal or optimal context for raising
23 10:00:26
children was never the prime mover in states'
24 10:00:29
structuring of the marriage institution of the United
25 10:00:32
States, and it cannot be isolated as the main reason for
A-796
Page 28
1 10:11:15
characteristics and in their skills and in their
2 10:11:18
strengths and weaknesses. Yes.
3 10:11:21
Q Has monogony been a central part of the
4 10:11:38
American understanding of marriage?
5 10:11:40
MR. EHRLICH: Objection to the form. At all
6 10:11:43
points since the founding?
7 10:11:44
MR. DUGAN: At all points since the founding in
8 10:11:46
the states and in federal law.
9 10:11:49
A Has monogony be a central understanding of what
10 10:11:52
marriage is? I would say yes.
11 10:11:54
Q And where does the concept of monogony come
12 10:11:57
from?
13 10:11:58
MR. EHRLICH: Objection to the form and beyond
14 10:12:00
the scope of the affidavit.
15 10:12:01
But you can answer if you know.
16 10:12:02
A I believe it is Christianity that has been the
17 10:12:11
most important philosophical trend in enforcing
18 10:12:15
monogony -- Christianity as compared to Judaism or Islam
19 10:12:23
or Buddhism or other world religions.
20 10:12:27
Q And the understanding of monogony in the United
21 10:12:45
States from the founding until, let's say, 15 years ago,
22 10:12:49
monogony was understood to be between one man and one
23 10:12:52
woman, correct?
24 10:12:53
MR. EHRLICH: Objection to the form.
25 10:12:55
Understanding by whom?
A-797
Page 29
1 10:12:56
Q The public understanding.
2 10:12:57
A The general public understanding?
3 10:12:58
Q Yes.
4 10:12:59
A Yes, although I would put it back more than
5 10:13:05
15 years. I would say that really from the 1970s
6 10:13:09
certain people thought that monogony could -- was
7 10:13:15
appropriate for two people of the same sex, but it
8 10:13:17
wasn't a general majority view.
9 10:13:28
Q I want to paraphrase. I hope I'm accurately
10 10:13:45
paraphrasing your testimony about Christianity's
11 10:13:48
influence in establishing monogony. I think you said it
12 10:13:54
was a -- sort of the chief philosophical -- not
13 10:14:00
principle but philosophical sort of thread that led to
14 10:14:05
monogony in the west. Is that correct?
15 10:14:07
A Well, that valorized or celebrated monogony,
16 10:14:12
yes.
17 10:14:12
Q Does that mean monogony has been the norm in
18 10:14:15
Western society for 2,000 years?
19 10:14:18
20 10:14:19
Definitely beyond the scope of the affidavit.
21 10:14:20
But if you know, you can answer.
22 10:14:22
A No, not that long. In Roman -- Christian Rome,
23 10:14:27
for instance, monogony with concubinage was quite
24 10:14:32
typical for elites. So no, I think it's a much shorter
25 10:14:37
history than that.
A-798

Exhibit E
(First Part)
A-799
Michael E. Lamb, Ph.D. June 24, 2011
Page 1
--------------------------------------
of CLARA SPYER,
Plaintiff,
Defendant.
--------------------------------------
--------------------------------------
JOANNE PEDERSEN & ANN MEITZEN,
GERALD V. PASSARO II, LYNDA
DEFORGE & RAQUEL ARDIN, JANET
GELLER & JOANNE MARQUIS, SUZANNE
& GERALDINE ARTIS, BRADLEY
KLEINERMAN & JAMES GEHRE
DAMON SAYVOY & JOHN WEISS,
Plaintiffs,
Civil Action No.
-against- 310 CV 1750 (VLB)
TIMOTHY F. GEITHNER, in his official
capacity as the Secretary of the
Treasury, and HILDA L. SOLIS, in her
official capacity as the Secretary of
Labor, et al.,
Defendants.
--------------------------------------
DEPOSITION OF MICHAEL E. LAMB, Ph.D.
A-800
Page 2
1
2
3 DEPOSITION OF MICHAEL E. LAMB, Ph.D., a
4 Witness herein, taken by Intervenors, pursuant to
5 Notice, at the offices of Paul, Weiss, Rifkind,
6 Wharton & Garrison LLP, 1285 Avenue of the
7 Americas, New York, New York 10019 on Friday,
8 June 24, 2011, at 8:45 a.m., before DEBRA
9 STEVENS, a Registered Professional Reporter and
10 notary public, within and for the State of New
11 York.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A-801
A-802
A-803
A-804
A-805
A-806
A-807
A-808
A-809
A-810
A-811
A-812
A-813
A-814
A-815
A-816

Exhibit E
(Second Part)
A-817
A-818
A-819
A-820
A-821
A-822
A-823
A-824
A-825
A-826
A-827
A-828
A-829
A-830
A-831
A-832
A-833
A-834

Exhibit F
A-835
A-836
Case 1:10-cv-08435-BSJ-JCF Document 74 Filed 08/22/11 Page 1 of 3
A-837
A-838
A-839
capacity as Executor of the estate of THEA
CLARA SPYER,
Plaintiff,
v.
Defendant.
10 Civ. 8435 (BSJ) (JCF)
ECF Case
DECLARATION OF
ROBERTA A. KAPLAN
Roberta A. Kaplan declares as follows:
1. I am a partner at the firm of Paul, Weiss, Rifkind, Wharton &
Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019-6064,
counsel for Plaintiff Edith Schlain Windsor. I submit this Declaration in support of
Plaintiffs Reply Memorandum in Support of her Motion for Summary Judgment.
2. Attached to this Declaration as Exhibit A are true and correct
copies of excerpts from the deposition of Professor George Chauncey, Ph.D.
3. Attached to this Declaration as Exhibit B are true and correct
copies of excerpts from the deposition of Professor Letitia Anne Peplau, Ph.D.
4. Attached to this Declaration as Exhibit C are true and correct
copies of excerpts from the deposition of Professor Gary Segura, Ph.D.
5. Attached to this Declaration as Exhibit D are true and correct
copies of excerpts from the deposition of Professor Michael Lamb, Ph.D..
6. Attached to this Declaration as Exhibit E are true and correct
copies of excerpts from the deposition of Professor Nancy F. Cott, Ph.D.
A-840
I declare under penalty of perjury, pursuant to 28 U.S.C. 1746 (2006),
that the foregoing is true and current.
Executed at New York, New York on this 15th day of September 2011:
Roberta A. Kaplan, Esq.
A-841

EXHIBIT A
A-842
George A. Chauncey, Ph. D. July 12, 2011
Page 1
--------------------------------------
of CLARA SPYER,
Plaintiff,
Defendant.
--------------------------------------
DEPOSITION OF GEORGE A. CHAUNCEY, Ph.D.
Tuesday, July 12, 2011
A-843
Page 25
1 G. Chauncey
2 the family. And it did this in newspaper ads
3 published in the local papers and the pamphlets
4 that it distributed door to door and so forth.
5 So I would call it demeaning stereotypes and
6 inflammatory rhetoric used by that particular
7 organization.
8 Take another example. In 1992, I
9 believe it was called Coloradoans Against Special
10 Rights, but I need to double check that name, was
11 established in Colorado to enact Amendment 2, a
12 state constitutional amendment that would have
13 overturned existing protections, legislative
14 protections against discrimination against gay
15 people in Denver, Boulder, a couple other places
16 in Colorado, and have prohibited the government
17 from enacting any other such protections
18 legislatively or by regulation.
19 And the group that campaigned for that
20 was connected to groups that campaigned in
21 similar campaigns in other states and cities to
22 overturn such laws, and they distributed door to
23 door and played on churches -- played in churches
24 videos with names like "The Gay Agenda," "Gay
25 Rights/Special Rights," that again demonized
A-844
Page 26
1 G. Chauncey
2 homosexuals as child molesters, as people who
3 engaged in the most startlingly strange and
4 disgusting seeming kinds of sexual behavior, who
5 were a wealthy class, privileged class who didn't
6 need these rights and who threatened children.
7 So, those would be two examples.
8 Q. Can you give any examples of anti-gay
9 groups, contemporary anti-gay groups?
10 A. Well, today those groups would include
11 Focus on the Family, the American Family
12 Association, Traditional Values Coalition.
13 Groups of that sort that have organized -- the
14 National Organization For Marriage -- which have
15 organized around the country to pass
16 constitutional amendments prohibiting same-sex
17 couples from getting married. Those would be
18 some examples.
19 Q. Is the Church of Latter Day Saints an
20 anti-gay organization?
21 MS. KAPLAN: You mean the Mormons?
22 MR. DUGAN: Yes.
23 MS. KAPLAN: Objection to form.
24 A. Well, I guess I would want to say that
25 the Church of Latter Day Saints has certainly
A-845
Page 29
1 G. Chauncey
2 MR. DUGAN: Today.
3 MS. KAPLAN: Objection to form but you
4 can answer.
5 A. Well, again, your question is still a
6 little vague to me, I have to admit. But I will
7 attempt an answer. I will go in one direction.
8 I think that there is a difference
9 between a group seeking a tax break which might
10 be looked upon favorably at one point and then
11 get attention and be portrayed unfavorably at
12 another point and a group of people who are being
13 denied fundamental civil rights.
14 I think that in the case of gay and
15 lesbian Americans, we have seen in the last
16 decade really just an extraordinary degree to
17 which their basic rights have been subject to the
18 vicissitudes of public opinion, with -- since the
19 seventies, a large number of cases in which their
20 civil rights have been put to the vote in popular
21 referenda and, something like in three quarters
22 of the cases, have been taken away, or in just
23 the last decade you have seen 29 states enact
24 constitutional amendments which write in gay and
25 lesbian inequality into the fundamental law of
A-846
Page 30
1 G. Chauncey
2 the states.
3 It is hard to think of many other
4 groups that have been subject to the vicissitudes
5 of public opinion in quite that way.
6 Q. So when you are talking about civil
7 rights that are subject to the whims of public
8 opinion you have in mind things like marriage,
9 housing --
10 A. Freedom from discrimination. Now, we
11 can look in a longer duration and see for a long
12 time black civil rights were subject to the
13 vicissitudes of public opinion and were, even
14 after emancipation, were severely curtailed by
15 legislation across the south and Supreme Court
16 rulings, until a point when the courts said that
17 actually segregation of the schools is
18 unconstitutional.
19 When the court, the Supreme Court said
20 denying the freedom to marry to an interracial
21 couple is unconstitutional, the court said that
22 at a time when the vast majority of white
23 Americans -- and I think it is something like
24 90 percent of white southerners did not believe
25 that interracial couples should have the right to
A-847
Page 39
1 G. Chauncey
2 There were crackdowns in Boise, Idaho and Miami.
3 It would just go on and on. I can't give you a
4 precise number.
5 Q. Were there some regions of the country
6 that were not involved in these crackdowns?
7 A. I am unaware of regions through most
8 of the 20th century, certainly the mid 20th
9 century, which I am talking about here, in which
10 this did not happen.
11 Q. Turning to paragraph 12 on the same
12 page, page 5 of Exhibit 2? You write in that
13 first sentence, "Private hostility and
14 discrimination, often encouraged by government
15 officials, has had a similarly profound and
16 enduring negative effect on lesbians and gay men
17 in American society."
18 Is there any way to evaluate how
19 widespread this private hostility and
20 discrimination is and was?
21 MS. KAPLAN: Objection to form. You
22 can answer.
23 A. Well, again it is difficult to give
24 you precise numbers here, but I will give you two
25 examples of this. As I say in the sentence,
A-848
Page 40
1 G. Chauncey
2 private hostility and discrimination was often
3 encouraged by government officials. And one
4 example of this is that in President Eisenhower's
5 executive order in 1953, he not only banned
6 homosexuals from serving in civilian as well as
7 military agencies of the government but required
8 companies that had federal contracts to ferret
9 out and discharge their homosexual employees.
10 And at that time, early --
11 significantly, during the cold war, Korean war,
12 et cetera -- about 20 percent of American
13 companies had contracts with the federal
14 government, so they were required by this law to
15 do this.
16 It was just taken as a matter of
17 course on the part of most lesbians and gay men
18 in this period that except for a handful of
19 professions and job niches, they had to be very
20 careful to hide their homosexuality because they
21 would lose their jobs if their employers learned
22 that they were gay.
23 The most horrifying example I heard
24 was someone talking about a close friend of his
25 whose partner of many years was dying from a
A-849
Page 41
1 G. Chauncey
2 brain tumor and he was caring for him and he
3 could never tell his employers what was going on
4 and why he was sometimes missing days at work
5 because he knew he would lose his job if he did
6 so.
7 Q. I think you mentioned there were some
8 professions where gays and lesbians could be
9 open. Which professions were those?
10 A. Again, "be open" is a complicated word
11 in this context. There were a handful of
12 professions that were stereotypically associated
13 with gay men or lesbians, which typically were
14 low prestige, low income professions. Being a
15 waiter, low-level clerical work, being a sales
16 clerk at a department store were some of the
17 professions where people felt -- they still
18 typically wouldn't want to let their customers
19 know that they were gay, but often they didn't
20 deal with the public, as it were, and they could
21 get by.
22 But certainly of the many -- at this
23 point I have interviewed more than 180 older gay
24 men, and pretty consistently they felt that there
25 was a ceiling on how far they could progress if
A-850
Page 53
1 G. Chauncey
2 homosexual as an individual and to the growing
3 visibility of those individuals, began to
4 classify and discriminate against certain of its
5 citizens on the basis of their status or identity
6 as homosexuals."
7 When you use the term or the phrase
8 "hostility to same-sex conduct," is that the same
9 as hostility to gays or homosexuals?
11 A. Well, as I have tried to say, the
12 category of homosexual or heterosexual, gay
13 people or straight people didn't exist in the
14 same way before, so there was certainly a long
15 history of hostility to the behavior that would
16 come to be identified with and seen as
17 characteristic of the people that would come to
18 be known as homosexuals or gay people.
19 So, that's the longer tradition. But
20 as I have said here, it was in the 20th century
21 that the government began to classify and
22 discriminate against certain of its citizens on
23 the basis of their status as homosexuals. Again,
24 that drew on a longer history of vilification but
25 it took a distinctive form in the 20th century.
A-851
Name of Cases:
Plaintiff,
v.
Defendant.
(10 Civ. 8435) (BSJ) (JCF)
Plaintiffs,
v.
Defendants.
(310-CV-1750) (VLB)
Date of Deposition: Tuesday, July 12, 2011
Name of Witness: George Chauncey, Ph.D.
A-852
George Chauncey Errata Sheet for July 12, 2011 Deposition
2
PAGE LINE: 6:19
CHANGE FROM: Vicki
CHANGE TO: Vickie
REASON: Typographical Error
PAGE LINE: 7:1
CHANGE FROM: plaintiffs
CHANGE TO: plaintiff
PAGE LINE: 8:20
CHANGE FROM: American history since 1919; courses on American
CHANGE TO: American history since 1919; also courses on American
PAGE LINE: 8:24
CHANGE FROM: in the United States, courses on the history of
CHANGE TO: in the United States, and courses on the history of
PAGE LINE: 11:89
CHANGE FROM: for deposition preparation for the deposition.
CHANGE TO: for preparation for the deposition.
A-853
3
PAGE LINE: 12:25
CHANGE FROM: synonymous
CHANGE TO: synonymously
PAGE LINE: 14:4
CHANGE FROM: content to homosociality. So that American
CHANGE TO: content to homosociality. American society
PAGE LINE: 15:12
CHANGE FROM: this subject I wouldnt say that every single
CHANGE TO: this subject. I wouldnt say that every single
PAGE LINE: 18:23
CHANGE FROM: alone between mid 1920s and mid-1960s
CHANGE TO: alone between the mid-1920s and mid-1960s.
REASON: Transcription and typographical error
PAGE LINE: 23:11
CHANGE FROM: as second class citizens by denying the right to
CHANGE TO: as second class citizens by denying them the right to
A-854
4
PAGE LINE: 24:3
CHANGE FROM: courts to decide what they may wish to about this
CHANGE TO: courts to decide what they may wish to do about this
PAGE LINE: 25:810
CHANGE FROM: I believe it was called Coloradoans Against Special Rights, but I
need to double check that name,
CHANGE TO: Colorado for Family Values
REASON: Witness advised he would confirm the groups name and he did.
PAGE LINE: 27:25
CHANGE FROM: it was engaged
CHANGE TO: it has engaged
PAGE LINE: 29:24
CHANGE FROM: write in gay
CHANGE TO: write gay
REASON: Clarification
PAGE LINE: 31:5
CHANGE FROM: have been allow to.
A-855
5
CHANGE TO: have been allowed to marry.
PAGE LINE: 34:21
CHANGE FROM: Leviticus,
CHANGE TO: Leviticuss
PAGE LINE: 36:17
CHANGE FROM: accustomed to road shows, but in these days they
CHANGE TO: accustomed to road shows, but in those days they
PAGE LINE: 37:5
CHANGE FROM: I have think you touched on this
CHANGE TO: I think you have touched on this
PAGE LINE: 38:2021
CHANGE FROM: clippings of crackdowns. And so they both published
CHANGE TO: clippings of crackdowns. And so they published
PAGE LINE: 42:1011
A-856
6
CHANGE FROM: In the 1990s many clergy condemned and still condemn
homosexuality as sinful. The
CHANGE TO: In the 1990s, many clergy condemned (and still condemn)
homosexuality as sinful. The
PAGE LINE: 43:10
CHANGE FROM: Gods
CHANGE TO: God has
PAGE LINE: 44:13
CHANGE FROM: rights of that equality
CHANGE TO: rights or that equality
PAGE LINE: 48:1112
CHANGE FROM: intermeshed. There is some thought that the
CHANGE TO: intermeshed -- there is some thought that the
PAGE LINE: 51:4
CHANGE FROM: you know,
CHANGE TO: even though it
A-857
7
PAGE LINE: 51:5
CHANGE FROM: conduct. It was
CHANGE TO: conduct it was
PAGE LINE: 57:16
CHANGE FROM: of World War
CHANGE TO: in World War
PAGE LINE: 52:22
CHANGE FROM: same paragraph, you write, Between the 1920s and the 1950s
the government, drawing on long
CHANGE TO: same paragraph, you write, Between the 1920s and the 1950s,
the government, drawing on long
PAGE LINE: 63:3
CHANGE FROM: who was psychological better adjusted. And no
CHANGE TO: who was psychologically better adjusted. And no
PAGE LINE: 66:1821
CHANGE FROM: You say that []
CHANGE TO: Omit quotation marks.
REASON: This is a paraphrase of the actual text.
A-858
8
PAGE LINE: 67:11
CHANGE FROM: I have mentioned. And so there was much more
CHANGE TO: I have mentioned. And so there was a much more
PAGE LINE: 67:13
CHANGE FROM: that the
CHANGE TO: why the
PAGE LINE: 68:20
CHANGE FROM: campaigns and that
CHANGE TO: campaigns, in that
PAGE LINE: 69:4
CHANGE FROM: demonization and became an occasion for
CHANGE TO: demonization and it became an occasion for
PAGE LINE: 74:1617
CHANGE FROM: Polling data suggests the magnitude of the shift. In 1985 only a
quarter of
CHANGE TO: Polling data suggest the magnitude of the shift. In 1985, only a
quarter of
A-859
9
PAGE LINE: 74:20
CHANGE FROM: gay and more than half believed that they did not
CHANGE TO: gay, and more than half believed that they did not
PAGE LINE: 76:6
CHANGE FROM: camp
CHANGE TO: camps
PAGE LINE: 76:9
CHANGE FROM: accepted. It is very regionally and by religion
CHANGE TO: accepted. It varies regionally and by religion
PAGE LINE: 76:19
CHANGE FROM: has been relative more openness, less policing,
CHANGE TO: has been relatively more openness, less policing,
PAGE LINE: 78:12
CHANGE FROM: can be healed. NARTH also lectures partners with
CHANGE TO: can be healed. NARTH also lectures, partners with
A-860
10
REASON: Transcription error.
PAGE LINE: 79:21
CHANGE FROM: homosexuals to be disordered in some way, a
CHANGE TO: homosexuals to be disordered in some way, based on a
PAGE LINE: 83:24
CHANGE FROM: And so, their discrimination has taken
CHANGE TO: And so, discrimination has taken
PAGE LINE: 84:19
CHANGE FROM: meant and who was
CHANGE TO: meant and who it was
REASON: Transcription Error
PAGE LINE: 87:7
CHANGE FROM: respectful
CHANGE TO: respectable
PAGE LINE: 88:11
CHANGE FROM: beginning of the 20th century there was much more
CHANGE TO: beginning of the 20th century, it was much more
A-861
11
PAGE LINE: 91:13
CHANGE FROM: decision, which was significant, to overturn the
CHANGE TO: decision, which was significant, in overturning the
PAGE LINE: 91:19
CHANGE FROM: at any given
CHANGE TO: in the present
PAGE LINE: 94:19
CHANGE FROM: generic.
CHANGE TO: generic term.
PAGE LINE: 94:20
CHANGE FROM: Fifty years ago no state had a gay rights law
CHANGE TO: Fifty years ago no state had a gay rights law
REASON: Omit quotation marks; transcription error
PAGE LINE: 97:56
CHANGE FROM: changes that have led to decline
CHANGE TO: changes that have led to a decline
A-862
12
PAGE LINE: 98:3
CHANGE FROM: because of censorship, less representation at all
CHANGE TO: because of censorship, less representation, if at all,
PAGE LINE: 98:5
CHANGE FROM: that on the
CHANGE TO: that in the
PAGE LINE: 98:19
CHANGE FROM: there have also been persistence and even an
CHANGE TO: there has also been persistence and even an
PAGE LINE: 101:9
CHANGE FROM: Do this strand of gay liberationist
CHANGE TO: Does this strand of gay liberationist
PAGE LINE: 101:15
CHANGE FROM: bit but shared
CHANGE TO: bit, but it shares
A-863
13
PAGE LINE: 102:12
CHANGE FROM: Guy
CHANGE TO: Gay
PAGE LINE: 103:2
CHANGE FROM: Why dont you look at it.
CHANGE TO: Why dont you look at it?
PAGE LINE: 105:13
CHANGE FROM: Now as I say here, yes, there is
CHANGE TO: Now, as I say here, yes, there is a
PAGE LINE: 108:11
CHANGE FROM: directly but often
CHANGE TO: directly, but most often
PAGE LINE: 109:1819
CHANGE FROM: people who support anti-gay -- sorry. Laws against discrimination
against gay people but --
A-864
14
CHANGE TO: people who support anti-gay -- sorry, laws against discrimination
against gay people but
PAGE LINE: 110:20
CHANGE FROM: Dr. Chauncey that ran in University of Chicago
CHANGE TO: Dr. Chauncey that ran in the University of Chicago
PAGE LINE: 111:25
CHANGE FROM: referring to
CHANGE TO: referring to,
PAGE LINE: 112:23
CHANGE FROM: some of the sailors at this naval station training station in
Newport
CHANGE TO: some of the sailors at this naval training station in Newport
PAGE LINE: 112:20
CHANGE FROM: to page 28. I think it is second page in. This
CHANGE TO: to page 28. I think it is the second page in. This
PAGE LINE: 115:67
A-865
15
CHANGE FROM: hand -- I dont think have made a claim that marriage between
two women or two men have been
CHANGE TO: hand -- I dont think they made a claim that marriage between two
women or two men had been
PAGE LINE: 118:7
CHANGE FROM: the Jews or the
CHANGE TO: the Jews, or of
PAGE LINE: 118:8
CHANGE FROM: enslaved people or
CHANGE TO: enslaved people, or
A-866
A-867

EXHIBIT B
A-868
A-869
A-870
A-871
Name of Cases:
Plaintiff,
v.
Defendant.
(10 Civ. 8435) (BSJ) (JCF)
Plaintiffs,
v.
Defendants.
(310-CV-1750) (VLB)
Date of Deposition: Friday, June 17, 2011
Name of Witness: Letitia Anne Peplau, Ph.D.
A-872
2
PAGE LINE: 16:3
CHANGE FROM: would it
CHANGE TO: would it be
PAGE LINE: 22:23
CHANGE FROM: ASEF (ph)
CHANGE TO: NSF [National Science Foundation]
PAGE LINE: 29:20
CHANGE FROM: questions
CHANGE TO: lesbians
PAGE LINE: 32:13
CHANGE FROM: Does California studies
CHANGE TO: Those California studies
PAGE LINE: 33:23
CHANGE FROM: I see against relationships of lesbians and gay men.
CHANGE TO: I seewhere it says, The relationships of lesbians and gay men
A-873
3
PAGE LINE: 41:4
CHANGE FROM: It was always conceivable
CHANGE TO: It is always conceivable
PAGE LINE: 42:1518
CHANGE FROM: All close same sex relationships between friends, relatives,
coworkers, acquaintances or others which shall be considered
hom osexual relationships.
CHANGE TO: Of all close same-sex relationships between friends, relatives,
coworkers, acquaintances, or others, which shall be considered
hom osexual relationships?
PAGE LINE: 49:56
CHANGE FROM: however, it actually an encompasses
CHANGE TO: however, it actually encompasses
PAGE LINE: 51:35
CHANGE FROM: harms not individuals in legal same sex marriage but gay men,
lesbians and bisexuals as a group.
CHANGE TO: harm not only individuals in legal same-sex marriages, but
gay men, lesbians, and bisexuals as a group.
A-874
4
PAGE LINE: 57:10
CHANGE FROM: no singular theory
CHANGE TO: no single theory
PAGE LINE: 57:14
CHANGE FROM: the interplay biological,
CHANGE TO: the interplay of biological,
PAGE LINE: 57:24
CHANGE FROM: that is all learning experience
CHANGE TO: that it is all learning, experience
PAGE LINE: 59:22
CHANGE FROM: married that the families would accept
CHANGE TO: married that their families would accept
PAGE LINE: 61:7
CHANGE FROM: protection or lesbians
CHANGE TO: protection for lesbians
A-875
5
PAGE LINE: 63:6
CHANGE FROM:
CHANGE TO: Add Q:
PAGE LINE: 66:6
CHANGE FROM: One form that
CHANGE TO: One form that is
PAGE LINE: 67:11
CHANGE FROM: homosexual marriage is one
CHANGE TO: homosexual marriage if one
PAGE LINE: 70:21
CHANGE FROM: I to want pose an objection
CHANGE TO: I want to pose an objection
PAGE LINE: 71:24
CHANGE FROM: will not effect heterosexual
CHANGE TO: will not affect heterosexual
A-876
6
PAGE LINE: 76:8
CHANGE FROM: they in partners are
CHANGE TO: that partners are
PAGE LINE: 77:25
CHANGE FROM: expert
CHANGE TO: experiment
PAGE LINE: 78:3
CHANGE FROM: assign peoples conditions
CHANGE TO: assign people to conditions
PAGE LINE: 78:18
CHANGE FROM: simply her asking
CHANGE TO: simply asking her
PAGE LINE: 80:13
CHANGE FROM: mental harm disparities
CHANGE TO: mental health disparities
A-877
7
PAGE LINE: 81:24
CHANGE FROM: Fingerhut, et al. Paper
CHANGE TO: Fingerhut, et al. paper
PAGE LINE: 82:16
CHANGE FROM: depressed
CHANGE TO: depression
PAGE LINE: 88:8
CHANGE FROM: an individual as
CHANGE TO: an individuals
PAGE LINE: 96:2
CHANGE FROM: many Americans old
CHANGE TO: many Americans hold
PAGE LINE: 98:4
CHANGE FROM: imagines of lesbian
CHANGE TO: images of lesbian
A-878
8
PAGE LINE: 98:6
CHANGE FROM: for trails
CHANGE TO: portrayals
PAGE LINE: 98:14
CHANGE FROM: More the point
CHANGE TO: More to the point
A-879
A-880

EXHIBIT C
A-881
Gary M. Segura, Ph. D. July 8, 2011
Page 1
--------------------------------------
of CLARA SPYER,
Plaintiff,
Defendant.
--------------------------------------
DEPOSITION OF GARY MICHAEL SEGURA, Ph.D.
A-882
Page 28
1 G. Segura
2 MS. HENRY: Objection to form.
3 A. The term significant is a very
4 squishy term. Do they have resources? Yes.
5 Do they expend those resources? Certainly.
6 Are their resources sufficient to the needs of
7 the group to defend their basic interests?
8 That's a different question. Are those
9 resources -- let's see what am I looking
10 for -- comparable to the resources that are
11 arrayed against them? That's a different
12 question.
13 So taking a more narrow response to
14 your question, gays and lesbians do expend
15 financial resources in their own defense.
16 Those resources have repeatedly proven
17 insufficient to protect their basic interests
18 because the resources arrayed against them are
19 far superior.
20 Q. Have you studied how much money gay
21 and lesbian advocacy groups have spent on
22 political lobbying?
23 A. Not specifically. I have not summed
24 up their annual budgets.
25 Q. If you could turn to paragraph 13,
A-883
Page 29
1 G. Segura
2 page 5, you write "Political power refers to a
3 person's or group's demonstrated ability to
4 extract favorable or prevent unfavorable
5 policy outcomes from the political system."
6 What do you mean by the use of
7 extract in that sentence?
8 A. We want to look at two aspects of a
9 policy outcome. The first aspect is whether
10 or not that policy outcome is consistent with
11 the preferences of the group. The second is
12 whether or not the group themselves are in the
13 position to make that policy outcome happen or
14 if the policy outcome was simply the
15 happenstance of political conditions or a
16 meeting of the minds or an agreement of others
17 who agree with their position.
18 Q. What is the difference between, I
19 think political happenstance is the term you
20 used, and actual extraction of political
21 benefit?
22 A. I think the difference is best
23 illustrated in the following way: If the
24 desirable outcome is not achieved, are gays
25 and lesbians in the political position to
A-884
Page 57
1 G. Segura
2 more access to the Republican party than the
3 Democratic party.
4 Would you say that they have limited
5 access to the political process?
6 MS. HENRY: Objection.
7 A. So I do not present myself as an
8 expert on pro-life politics. That
9 notwithstanding, I would actually take issue
10 with the supposition.
11 There is a sizable contingent of
12 quote-unquote pro-life Democrats in the United
13 States Congress. One former Congressman, Bart
14 Stupak actually held up passage of the
15 comprehensive healthcare reform legislation
16 precisely over the issue of abortion. That
17 is, a Democratic legislator held the
18 President's signature policy goal hostage for
19 months over the issue of abortion.
20 So the idea that pro-lifers only have
21 sympathy in one party I think is actually
22 misrepresenting the facts.
23 Q. How is what you write there in
24 paragraph 32 in that final sentence different
25 from the normal give and take of politics?
A-885
Page 58
1 G. Segura
3 A. Let's think about a variety of groups
4 who contest for power in the political system.
5 When we think about businesses and the
6 financial sector, both parties seek the
7 support of businesses. This is a group that
8 we normally think of as associated with the
9 Republicans but not exclusively, and certainly
10 the President has made no secret of his effort
11 to keep Wall Street financial folks on board
12 with the Democratic party agenda. The
13 Democratic party would describe itself as
14 probusiness, even though obviously the
15 Republicans disagree. There is a case of both
16 sides trying to lure a group.
17 The same might be true for
18 Evangelical Christians, even though
19 Evangelical Christians are overwhelming
20 identified with the Republican party,
21 President Obama appeared at Saddleback Church
22 during the campaign, had Rick Warren give the
23 invocation at his inauguration, has made
24 frequent and repeated overtures to try to
25 bring some number of Evangelical Christians
A-886
Page 59
1 G. Segura
2 whose policy preferences might not be quite as
3 conservative as others into the Democratic
4 fold. Both sides seek their votes.
5 Another example might be police
6 unions or all sorts of peace officer
7 associations. Police unions tend to prefer
8 law and order sorts of policies from
9 Republicans, but they tend to prefer the
10 fiscal policies and public expenditure
11 policies of Democrats, and also, by the way,
12 the gun control policies of Democrats. So
13 both Democrats and Republicans seek the
14 support of police unions.
15 That is the rough and tumble of
16 politics, where one group has their support
17 sought from one political party and the other
18 tries to go in there and peel some away or
19 create an alternative narrative to get the
20 group to switch sides. That's what I think of
21 as the rough and tumble of politics.
22 In the case of gay men and lesbians,
23 there is a political party who, by practice
24 and by platform, is affirmatively
25 disinterested in their issues. That literally
A-887
Page 60
1 G. Segura
2 opposes employment nondiscrimination, opposes
3 adoption rights, opposes same-sex marriage
4 equality, opposes service in the military.
5 Opposes essentially every element of equality
6 that gays and lesbians seek.
7 So when gays and lesbian are seeking
8 legislative redress, there is the occasional
9 Republican that they might wish to go to. But
10 by and large, they really only have one party.
11 That sort of party capture is really
12 debilitating to the political power of a
13 group. And I would give you an example
14 outside of gays and lesbians which I think
15 illustrates my point. I think that in recent
16 years, though certainly not in the last year,
17 but in recent years, I think Latinos have been
18 advantaged vis-a-vis African-Americans because
19 African-Americans split 95 to 5 for the
20 Democratic party; whereas, Latinos are about a
21 two-thirds, one-third. And Republicans
22 believe that if they can get up to about 40
23 percent of the Latino vote, then that would
24 make them more competitive and they can win
25 elections. What this means is that at least
A-888
Page 143
1 G. Segura
2 I can't think of a group that has to
3 regularly face legislative and electoral
4 challenges to even the simplest effort at
5 securing protection from social hostility,
6 whether that be valid initiatives to overturn
7 gay rights ordinances that protect employment
8 discrimination, or whether that be the
9 same-sex marriage fight or other issues. So,
10 as I have testified earlier, there is no group
11 that has faced these ballot initiatives or
12 public referendum more frequently than gay men
13 and lesbians. Those things together I think
14 constitute a pretty extreme disadvantage.
15 Q. Earlier you talked about the
16 continuum of political power.
17 Is there a way to determine the
18 dividing line between politically powerful and
19 politically powerless?
20 A. The shorts answer is that the
21 dividing line would be contingent, and I
22 believe this was like one of your first
23 questions when you asked me what is the 50
24 percent mark or what is the threshold or
25 whatever.
A-889
Page 166
1 G. Segura
2 question. If you ask me a specific question,
3 I may have to read the section.
4 Q. Let me stipulate that this is a
5 letter that was written to President Barack
6 Obama lamenting the fact that his
7 administration was defending DOMA.
8 MS. KAPLAN: Did you get this off a
9 website? How did you get this?
10 MR. DUGAN: I got it from Chris
11 Bartolmucci. I presume he got it from a
12 website. I can fill in that gap.
13 MS. KAPLAN: If you can just let me
14 know.
15 MR. DUGAN: Sure.
16 Q. This letter was written to President
17 Obama June 2009. Sometime thereafter, the
18 President and the Attorney General determined
19 that they believe DOMA to be unconstitutional.
20 Could this be evidence of politically
21 effective power?
23 You can answer.
24 A. It could, but I am not buying it.
25 First of all, this letter was written
A-890
Page 167
1 G. Segura
2 almost two years before the administration
3 changed its policy on DOMA, so maybe in the
4 neighborhood of 21 months.
5 Second, the President of the United
6 States receives literally tens of thousands of
7 letters a day. He probably receives hundreds
8 of letters a day from leaders of large
9 organizations. So that a letter precedes a
10 policy change would require me to assume that
11 the order of, the temporal order of the events
12 is causal, and I have no reason to believe
13 that. I need a little bit more than a letter.
14 Q. Fair enough.
15 MR. DUGAN: Mark this as Exhibit 6.
16 I will represent that this was taken
17 from the White House website.
18 (Defendant's Exhibit 6, excerpt
19 from White House website,
20 marked for identification.)
21 Q. What is this Exhibit 6, Dr. Segura?
22 MS. KAPLAN: Objection to the form
23 and foundation.
24 If you know.
25 A. Based on my observation it appears to
A-891
Name of Cases:
Plaintiff,
v.
Defendant.
(10 Civ. 8435) (BSJ) (JCF)
Plaintiffs,
v.
Defendants.
(310-CV-1750) (VLB)
Date of Deposition: Friday, July 8, 2011
Name of Witness: Gary Michael Segura, Ph.D.
A-892
Gary Michael Segura Errata Sheet for July 8, 2011 Deposition
2
PAGE LINE: 10:15
CHANGE FROM: individuals
CHANGE TO: individuals
PAGE LINE: 13:9
CHANGE FROM: Pearce
CHANGE TO: Pedersen
PAGE LINE: 13:10
CHANGE FROM: Galinsky
CHANGE TO: Golinski
PAGE LINE: 14:19
CHANGE FROM: primarily the same sex sexual attraction
CHANGE TO: primarily same-sex sexual attraction
PAGE LINE: 16:24
CHANGE FROM: to prior to
CHANGE TO: prior to
A-893
3
PAGE LINE: 17:10
CHANGE FROM: and in least in one instance
CHANGE TO: and at least in one instance
PAGE LINE: 17:1213
CHANGE FROM: so I guess that would yes
CHANGE TO: so I guess that would mean yes
PAGE LINE: 18:6
CHANGE FROM: at as well
CHANGE TO: as well
PAGE LINE: 19:5
CHANGE FROM: is
CHANGE TO: are
PAGE LINE: 19:18
CHANGE FROM: do not possess meaningful degree
CHANGE TO: do not possess a meaningful degree
A-894
4
PAGE LINE: 19:25
CHANGE FROM: would like a break it down
CHANGE TO: would like to break it down
PAGE LINE: 22:12
CHANGE FROM: press government for return, et cetera.
CHANGE TO: press the government for a return, et cetera.
PAGE LINE: 23:7
CHANGE FROM: excluded from basics civil equality
CHANGE TO: excluded from basic civil equality
PAGE LINE: 23:25, 24:7
CHANGE FROM: firefighters
CHANGE TO: firefighters
PAGE LINE: 24:16
CHANGE FROM: achieve its end
CHANGE TO: achieve its ends
A-895
5
PAGE LINE: 25:8
CHANGE FROM: politicians candidates
CHANGE TO: politicians or candidates
PAGE LINE: 25:12
CHANGE FROM: successful, valid
CHANGE TO: successful, ballot
PAGE LINE: 26:11
CHANGE FROM: cost
CHANGE TO: costs
PAGE LINE: 26:15
CHANGE FROM: You could have someone says
CHANGE TO: You could have someone who says
PAGE LINE: 30:910
CHANGE FROM: If legislator
CHANGE TO: If a legislator
A-896
6
PAGE LINE: 31:4
CHANGE FROM: Thats powerful
CHANGE TO: Thats a powerful
PAGE LINE: 31:5
CHANGE FROM: are able
CHANGE TO: is able
PAGE LINE: 33:11
CHANGE FROM: some in
CHANGE TO: some. In
PAGE LINE: 33:18
CHANGE FROM: ?
CHANGE TO: .
PAGE LINE: 35:4
CHANGE FROM: just as easily choose not advocate on behalf
CHANGE TO: just as easily choose not to advocate on behalf
A-897
7
PAGE LINE: 36:1920
CHANGE FROM: presence or absence of significant gay population
CHANGE TO: presence or absence of a significant gay population
PAGE LINE: 37:5
CHANGE FROM: And if answer is
CHANGE TO: And if the answer is
PAGE LINE: 37:15
CHANGE FROM: I can look at two party votes
CHANGE TO: I can look at the party votes
PAGE LINE: 38:34
CHANGE FROM: knowing for sure counterfactual
CHANGE TO: knowing for sure the counterfactual
PAGE LINE: 38:19
CHANGE FROM: evidence
CHANGE TO: evidenced
A-898
8
PAGE LINE: 40:15
CHANGE FROM: think of good
CHANGE TO: think of a good
PAGE LINE: 40:20
CHANGE FROM: a heterosexual coup;e
CHANGE TO: a heterosexual couple
PAGE LINE: 40:24
CHANGE FROM: those basics rights
CHANGE TO: those basic rights
PAGE LINE: 43:13
CHANGE FROM: groups interest are
CHANGE TO: groups interests are
PAGE LINE: 43:18
CHANGE FROM: as or
CHANGE TO: as gay or
A-899
9
PAGE LINE: 44:18
CHANGE FROM: but isnt this the in case of any
CHANGE TO: but isnt this the case in any
PAGE LINE: 45:19
CHANGE FROM: disadvantage
CHANGE TO: disadvantaged
PAGE LINE: 45:7, 21; 46:13
CHANGE FROM: valid
CHANGE TO: ballot
PAGE LINE: 46:3
CHANGE FROM: cornered
CHANGE TO: concerned
PAGE LINE: 46:13
CHANGE FROM: valid
CHANGE TO: ballot
A-900
10
PAGE LINE: 48:13
CHANGE FROM: there is, not to my knowledge,
CHANGE TO: there is not, to my knowledge,
PAGE LINE: 48:23
CHANGE FROM: violences
CHANGE TO: violence
PAGE LINE: 49:14
CHANGE FROM: they would vote fort he hate
CHANGE TO: they would vote for the hate
PAGE LINE: 49:25
CHANGE FROM: acts
CHANGE TO: Acts
PAGE LINE: 50:19
CHANGE FROM: basics
CHANGE TO: basic
A-901
11
PAGE LINE: 52:19
CHANGE FROM: they have
CHANGE TO: they would have
PAGE LINE: 52:21
CHANGE FROM: had the administration switched position
CHANGE TO: had the administration switched positions
PAGE LINE: 53:19
CHANGE FROM: that Obama administration
CHANGE TO: that the Obama administration
PAGE LINE: 54:2
CHANGE FROM: That is, Obama administration
CHANGE TO: That is, the Obama administration
PAGE LINE: 54:7
CHANGE FROM: changes
CHANGE TO: change
A-902
12
PAGE LINE: 55:16, 55:21, 129:6, 171:13, 172:21, 175:2, 176:3, 177:8, 177:10,
177:16, 177:21
CHANGE FROM: Dont
CHANGE TO: Dont
PAGE LINE: 61:18
CHANGE FROM: votes
CHANGE TO: voters
PAGE LINE: 63:3
CHANGE FROM: are little
CHANGE TO: are a little
PAGE LINE: 64:7
CHANGE FROM: constitutionally-establish inequality
CHANGE TO: constitutionally-established inequality
PAGE LINE: 65: 15
CHANGE FROM: ,,
A-903
13
CHANGE TO: ,
PAGE LINE: 66: 19
CHANGE FROM: matter
CHANGE TO: marry
PAGE LINE: 68: 7
CHANGE FROM: Couldnt it simple demonstrate
CHANGE TO: Couldnt it simply demonstrate
PAGE LINE: 68: 21
CHANGE FROM: last
CHANGE TO: lasted
PAGE LINE: 70:25
CHANGE FROM: Imagine you are Maine voter
CHANGE TO: Imagine you are a Maine voter
PAGE LINE: 71:6
CHANGE FROM: enactment of marriage right
A-904
14
CHANGE TO: enactment of marriage rights
PAGE LINE: 71:13
CHANGE FROM: possible
CHANGE TO: possibly
PAGE LINE: 75:10
CHANGE FROM: in other state where
CHANGE TO: in other states where
PAGE LINE: 76:11
CHANGE FROM: activist might feel
CHANGE TO: activists might feel
PAGE LINE: 76:12
CHANGE FROM: pervail
CHANGE TO: prevail
PAGE LINE: 76:19
CHANGE FROM: activists
A-905
15
CHANGE TO: activists
PAGE LINE: 78:8
CHANGE FROM: was preemptive
CHANGE TO: was a preemptive
PAGE LINE: 78:10
CHANGE FROM: during that 2004 waive
CHANGE TO: during that 2004 wave
PAGE LINE: 79:3
CHANGE FROM: to a
CHANGE TO: to be a
PAGE LINE: 82:20
CHANGE FROM: reduce
CHANGE TO: reduces
PAGE LINE: 84:19
CHANGE FROM: and the district safe
A-906
16
CHANGE TO: and the district is safe
PAGE LINE: 84:24
CHANGE FROM: that 60 percent
CHANGE TO: that of the 60 percent
PAGE LINE: 86:10
CHANGE FROM: and reason
CHANGE TO: and the reason
PAGE LINE: 87:15
CHANGE FROM: is
CHANGE TO: are
PAGE LINE: 88:7, 88:9
CHANGE FROM: receive much
CHANGE TO: receive a much
PAGE LINE: 88:8
CHANGE FROM: packed donations
A-907
17
CHANGE TO: PAC donations
PAGE LINE: 88:23
CHANGE FROM: at
CHANGE TO: as
PAGE LINE: 89:6
CHANGE FROM: costal
CHANGE TO: coastal
PAGE LINE: 89:17
CHANGE FROM: I a lawyer, not accountant
CHANGE TO: I am a lawyer, not an accountant
PAGE LINE: 90:6
CHANGE FROM: group
CHANGE TO: groups
PAGE LINE: 91:10
CHANGE FROM: outcome process
A-908
18
CHANGE TO: outcome and process
PAGE LINE: 92:4
CHANGE FROM: political power numerous
CHANGE TO: political power or numerous
PAGE LINE: 93:8
CHANGE FROM: that is
CHANGE TO: that are
PAGE LINE: 93:22
CHANGE FROM: infectious decease
CHANGE TO: infectious disease
PAGE LINE: 94:17
CHANGE FROM: Randy Schultz
CHANGE TO: Randy Shilts
PAGE LINE: 94:22
CHANGE FROM: have
A-909
19
CHANGE TO: has
PAGE LINE: 99:19
CHANGE FROM: individuals or who know
CHANGE TO: individuals who know
PAGE LINE: 100:2
CHANGE FROM: crime study about Latino
CHANGE TO: crime study about Latinos
PAGE LINE: 101:8
CHANGE FROM: worse
CHANGE TO: worse,
PAGE LINE: 101:22
CHANGE FROM: and as consequence
CHANGE TO: and as a consequence
PAGE LINE: 104:2
CHANGE FROM: propose
A-910
20
CHANGE TO: proposing
PAGE LINE: 104:3
CHANGE FROM: have better
CHANGE TO: have a better
PAGE LINE: 104:24
CHANGE FROM: advocates our positio
CHANGE TO: advocates our position
PAGE LINE: 107:5
CHANGE FROM: We promise they anonymity
CHANGE TO: We promise them anonymity
PAGE LINE: 107:16
CHANGE FROM: The question is is
CHANGE TO: The question is, is
PAGE LINE: 108:16
CHANGE FROM: virtual
A-911
21
CHANGE TO: virtually
PAGE LINE: 109:23
CHANGE FROM: vary
CHANGE TO: very
PAGE LINE: 112:10
CHANGE FROM: time and profession
CHANGE TO: time in profession
PAGE LINE: 116:12
CHANGE FROM: heterosexual erotic art was not in any funded
CHANGE TO: heterosexual erotic art was not in any way funded
PAGE LINE: 116:20
CHANGE FROM: home
CHANGE TO: here
PAGE LINE: 120:15
CHANGE FROM: tough flowing
A-912
22
CHANGE TO: tough going
PAGE LINE: 121:1011
CHANGE FROM: I believe it was Senator could he burn
CHANGE TO: I believe it was Senator Coburn
PAGE LINE: 121:14
CHANGE FROM: imagine
CHANGE TO: imagine an
PAGE LINE: 122:6
CHANGE FROM: we had should
CHANGE TO: we should
PAGE LINE: 122:7
CHANGE FROM: and a perverts.
CHANGE TO: and perverts.
PAGE LINE: 125:17
CHANGE FROM: It would
A-913
23
CHANGE TO: It would be
PAGE LINE: 126:10
CHANGE FROM: content
CHANGE TO: contempt
PAGE LINE: 128:18
CHANGE FROM: An
CHANGE TO: And
PAGE LINE: 129:15
CHANGE FROM: in the Old
CHANGE TO: to the Old
PAGE LINE: 130:7
CHANGE FROM: thats answer you are looking for
CHANGE TO: thats the answer you are looking for
PAGE LINE: 131:6
CHANGE FROM: Paper
A-914
24
CHANGE TO: Papers
PAGE LINE: 134:15
CHANGE FROM: discrimination
CHANGE TO: nondiscrimination
PAGE LINE: 134:19
CHANGE FROM: majority of the Americans
CHANGE TO: majority of Americans
PAGE LINE: 134:22
CHANGE FROM: END
CHANGE TO: ENDA
PAGE LINE: 135:9
CHANGE FROM: if you are performing job
CHANGE TO: if you are performing your job
PAGE LINE: 139:56
CHANGE FROM: tremendous detail the about sources
A-915
25
CHANGE TO: tremendous detail about the sources
PAGE LINE: 139:9
CHANGE FROM: EAP
CHANGE TO: APA
PAGE LINE: 140:7
CHANGE FROM: and as
CHANGE TO: and as a
PAGE LINE: 141:9
CHANGE FROM: undermines gay and lesbians
CHANGE TO: undermines gay and lesbians
PAGE LINE: 142:19
CHANGE FROM: who
CHANGE TO: whom
PAGE LINE: 143:6
CHANGE FROM: valid
A-916
26
CHANGE TO: ballot
PAGE LINE: 144:4
CHANGE FROM: contestation over basics rights
CHANGE TO: contestation over basic rights
PAGE LINE: 144:13
CHANGE FROM: a group as powerless
CHANGE TO: a group as powerful
PAGE LINE: 144:19
CHANGE FROM: very
CHANGE TO: varies
PAGE LINE: 144:20
CHANGE FROM: shorts
CHANGE TO: short
PAGE LINE: 145:11
CHANGE FROM: so the one
A-917
27
CHANGE TO: so the one that
PAGE LINE: 146:12
CHANGE FROM: I think it primarily
CHANGE TO: I think it is primarily
PAGE LINE: 146:23
CHANGE FROM: various come forms
CHANGE TO: various forms
PAGE LINE: 147:10
CHANGE FROM: profession
CHANGE TO: professionals
PAGE LINE: 149:19
CHANGE FROM: that very significantly by geography
CHANGE TO: that varies significantly by geography
PAGE LINE: 151:4
CHANGE FROM: so it
A-918
28
CHANGE TO: so it is
PAGE LINE: 151:10
CHANGE FROM: there are still few
CHANGE TO: there are still a few
PAGE LINE: 154:1112
CHANGE FROM: it very equivalent
CHANGE TO: it was very equivalent
PAGE LINE: 154:17
CHANGE FROM: money reason
CHANGE TO: money for a reason
PAGE LINE: 155:4
CHANGE FROM: quite expense
CHANGE TO: quite expensive
PAGE LINE: 156:17
CHANGE FROM: older people
A-919
29
CHANGE TO: younger people
PAGE LINE: 157:6
CHANGE FROM: thats central argument
CHANGE TO: thats the central argument
PAGE LINE: 157:13
CHANGE FROM: some of nuance
CHANGE TO: some of the nuance
PAGE LINE: 160:9
CHANGE FROM: defining stories
CHANGE TO: defining what stories
PAGE LINE: 160:13
CHANGE FROM: that the arguments
CHANGE TO: that the argument
PAGE LINE: 161:24
CHANGE FROM: lesbians remain hotly
A-920
30
CHANGE TO: lesbians remains hotly
PAGE LINE: 163:2021
CHANGE FROM: defending the ing statute
CHANGE TO: defending the statute
PAGE LINE: 165:5
CHANGE FROM: So it less
CHANGE TO: So its less
PAGE LINE: 166:11
CHANGE FROM: Bartolmucci
CHANGE TO: Bartolomucci
PAGE LINE: 169:1920
CHANGE FROM: he is poor judge
CHANGE TO: he is a poor judge
PAGE LINE: 174:16
CHANGE FROM: separately equal
A-921
31
CHANGE TO: separate but equal
PAGE LINE: 176:89
CHANGE FROM: By themselves, they are not neither nor sufficient to demonstrate
policital power.
CHANGE TO: By themselves, they are neither necessary nor sufficient to
dem onstrate political power.
PAGE LINE: 176:18
CHANGE FROM: I am political scientist
CHANGE TO: I am a political scientist
PAGE LINE: 177:22
CHANGE FROM: repeal was
CHANGE TO: repeal which is
PAGE LINE: 180:13, 180:19
CHANGE FROM: Galinsky
CHANGE TO: Golinski
A-922
32
A-923
A-924

EXHIBIT D
A-925
Page 1
--------------------------------------
of CLARA SPYER,
Plaintiff,
Defendant.
--------------------------------------
--------------------------------------
JOANNE PEDERSEN & ANN MEITZEN,
GERALD V. PASSARO II, LYNDA
DEFORGE & RAQUEL ARDIN, JANET
GELLER & JOANNE MARQUIS, SUZANNE
& GERALDINE ARTIS, BRADLEY
KLEINERMAN & JAMES GEHRE
DAMON SAYVOY & JOHN WEISS,
Plaintiffs,
Civil Action No.
-against- 310 CV 1750 (VLB)
TIMOTHY F. GEITHNER, in his official
capacity as the Secretary of the
Treasury, and HILDA L. SOLIS, in her
official capacity as the Secretary of
Labor, et al.,
Defendants.
--------------------------------------
DEPOSITION OF MICHAEL E. LAMB, Ph.D.
A-926
Page 31
1 M. Lamb
2 Q. Have there been any studies of the
3 children of same-sex couples in the state of
4 Massachusetts?
5 A. I am not familiar with studies of
6 children in those circumstances in Massachusetts.
7 Q. Are you aware of any other study --
8 let me rephrase.
9 Are you aware of any studies of
10 children of same-sex parents in jurisdictions
11 where same-sex parents can be married?
12 A. Am I aware -- sorry. Can you repeat
13 it?
14 Q. Yes. Are you aware of any studies
15 that look at the benefits or the detriments
16 obtained by children of same-sex parents in
17 jurisdictions where same-sex marriage is allowed?
18 A. Same-sex marriage has been allowed
19 only quite recently in this country. There are
20 studies such as those by Henny Bos in the
21 Netherlands, where same-sex marriage has been
22 allowed longer, that would be directly relevant
23 to that issue.
24 Q. And what do those studies show?
25 A. The studies show, as I summarized
A-927
Page 32
1 M. Lamb
2 earlier, that there is no difference in
3 children's adjustment depending upon the sexual
4 orientation of their parents and that the
5 children's adjustment in those families, as in
6 all other circumstances, depends on the three
7 classes of variables that I have outlined in my
8 affidavit.
9 Q. In paragraph 41, Exhibit 2, you write,
10 "DOMA may convey to children of married same-sex
11 couples that their parents' relationships are
12 less valid or legitimate than the marriages of
13 heterosexual couples."
14 Can you point to any study that
15 confirms this supposition?
16 A. No. Again, I can't point to any
17 study, which is why I used the word "may."
18 Again, it's an extrapolation from the literature
19 that we do have focused on the factors that
20 affect children.
21 Q. In that same paragraph, paragraph 41,
22 you state that "DOMA denies --" let me read the
23 actual quote.
24 You write, "In addition to denying
25 children important federal legal protections,
A-928

EXHIBIT E
A-929
In The Matter Of:
LDlTHSCHLAlNWlNDSOR
t
THLUNlTLDSTATLSOlAMLRlCA
NANCYlCOTTPHDVoI
]uI

A-930
3b8828a4-74af-4853-9ec9-ed3844ff2d5e
Page 17
1 09:52:19
together.
2 09:52:24
Q I think you talked about the pair, in your
3 09:52:31
previous answer. Did that pair ever include same-sex
4 09:52:36
couples?
5 09:52:36
A Not to my knowledge, in the colonial part of
6 09:52:41
the -- part of North America or at the time of the
7 09:52:44
founding among those who consider themselves part of the
8 09:52:47
new United States.
9 09:52:47
Q Has marriage been a national or federal issue
10 09:53:02
at times during American history?
11 09:53:05
MR. EHRLICH: Objection to the form. Vague and
12 09:53:08
ambiguous.
13 09:53:08
You can answer.
14 09:53:10
A You said a national or a --
15 09:53:13
Q Let me rephrase.
16 09:53:15
Has marriage been an issue of federal law at
17 09:53:17
times during American history?
18 09:53:19
A Yes, marriage in federal territories.
19 09:53:23
Q What about marriage among native Americans?
20 09:53:29
A Yes, that's a good point, that in dealing with
21 09:53:34
Indians, again, in federal territories and in certain
22 09:53:43
states where the federal government was dealing with
23 09:53:51
the -- with native Americans through the Bureau of
24 09:53:56
Indian Affairs, the form of marriage observed by these
25 09:53:59
populations was of concern to that federal agency, yes,
A-931
3b8828a4-74af-4853-9ec9-ed3844ff2d5e
Page 18
1 09:54:04
and to certain people in congress.
2 09:54:05
Q In the post civil war era, did the federal
3 09:54:12
government involve itself in the question of the
4 09:54:15
marriage between former slaves?
5 09:54:17
A During the civil war when the South was
6 09:54:21
occupied and in the very beginning of the post civil war
7 09:54:25
period when the southern states were not yet
8 09:54:28
reconstituted, yes, the federal government through the
9 09:54:32
Freedmen's Bureau concerned itself with marriages of the
10 09:54:36
freed men and women.
11 09:54:37
Q I'd like you to turn to Paragraph 13, page 5 of
12 09:54:55
Exhibit 2. This is your expert affidavit.
13 09:54:59
A I'm sorry. I didn't catch which page.
14 09:55:00
Q Page 5, Paragraph 13, right under Section B.
15 09:55:05
A Okay.
16 09:55:07
Q You write there, "What is seen as legitimate
17 09:55:11
marriage in a given society may be, for instance,
18 09:55:14
polygamous, monogamous, matrifocal or patrifocal,
19 09:55:19
patrilineal or matrilineal, lifelong or temporary, open
20 09:55:21
or closed to concubinage, divorce-prone or
21 09:55:25
divorce-averse," and so on.
22 09:55:26
Are you an expert in marriage and world
23 09:55:29
cultures?
24 09:55:30
A As I said at the outset, I am a specialist in
25 09:55:34
the history of the United States, but that is studied in
A-932
3b8828a4-74af-4853-9ec9-ed3844ff2d5e
Page 31
1 10:15:59
where did the norm come from?
2 10:16:00
A Both from religious, i.e., Christian, sets of
3 10:16:07
belief and from political theories that were built with
4 10:16:13
that belief system as their base, although, again, that
5 10:16:19
deals with settler populations and not with native
6 10:16:22
Americans in that geographical range.
7 10:16:26
Q Would you turn to Paragraph 74 on page 18. In
8 10:16:39
the first sentence you write, "The U.S. Congress has
9 10:16:41
involved itself directly in making or breaking marriages
10 10:16:44
only in exceptional situations."
11 10:16:49
What do you mean by "exceptional situations" in
12 10:16:55
this line?
13 10:16:55
A I mean situations in which state governments
14 10:16:58
were not functioning, since state governments have
15 10:17:02
historically had jurisdiction over making and breaking
16 10:17:05
marriages.
17 10:17:05
Q And what have those exceptional situations been
18 10:17:10
where the federal government -- excuse me -- the
19 10:17:13
U.S. Congress has involved itself directly in marriage?
20 10:17:15
A First of all, in the federal territories where
21 10:17:20
congress has primary power; and secondly, as I describe
22 10:17:25
here, in the period of the civil war and immediately
23 10:17:33
after when areas that had been states were -- their
24 10:17:39
state governments were crushed and not yet really
25 10:17:43
assembled.
A-933
3b8828a4-74af-4853-9ec9-ed3844ff2d5e
Page 32
1 10:17:44
Q Turn to Paragraph 79, page 19 of Exhibit 2.
2 10:18:13
You write, Dr. Cott, "Congress acted not only because
3 10:18:16
the presence of polygamy on the North American continent
4 10:18:20
seemed loathsome but because Utah's intent to apply for
5 10:18:24
statehood loomed on the horizon."
6 10:18:25
What do you mean by "loathsome"?
7 10:18:27
A There was with an American political theory
8 10:18:34
since the founding, an opposition understood between
9 10:18:37
monogony and polygamy that aligned with the difference
10 10:18:41
between a government of laws in alignment with monogony
11 10:18:52
and a despotic government, which to American founders
12 10:18:56
and many Americans through the 19th century aligned with
13 10:18:59
polygamy. So that polygamy was not only foreign to
14 10:19:04
their religious beliefs of Christianity but also foreign
15 10:19:09
to their political intents.
16 10:19:16
Q If one finds something loathsome, does she
17 10:19:19
demonstrate an animus towards the things she finds
18 10:19:22
loathsome?
19 10:19:22
MR. EHRLICH: Objection to the form. Vague as
20 10:19:27
to "animus."
21 10:19:27
You can answer.
22 10:19:28
A Well, I don't understand why "animus" as a word
23 10:19:33
is so important to you in this question, but I would say
24 10:19:36
that just using the word as I do, yes, that 19th century
25 10:19:40
Americans in general and certainly members of congress
A-934
3b8828a4-74af-4853-9ec9-ed3844ff2d5e
Page 33
1 10:19:45
who are involved in this action and a series of
2 10:19:49
presidents exhibited great animus against polygamy.
3 10:19:57
They associated it with barbarism. That was the word
4 10:20:02
most used to describe polygamy.
5 10:20:05
Q And as a historical matter, congress had the
6 10:20:15
power to ban polygamy, correct?
7 10:20:17
A Only in the territories.
8 10:20:23
Q And in Paragraph 78 right above the last
9 10:20:43
paragraph we were looking at, you say that bigamy was a
10 10:20:46
crime in every state. Is it fair to say that polygamy
11 10:20:52
was an exceptional situation because it departed from
12 10:20:54
the understanding of monogony that Americans had
13 10:20:58
embraced?
14 10:20:59
15 10:21:01
A I don't understand the question. Polygamy was
16 10:21:04
an exceptional situation? Whose polygamy?
17 10:21:08
Q Well, you write that "U.S. Congress has
18 10:21:10
involved itself directly in making or breaking marriages
19 10:21:12
only in exceptional situations."
20 10:21:14
What made polygamy an exceptional situation?
21 10:21:17
MR. EHRLICH: Objection to the form. I think
22 10:21:18
she already described exceptional situations, and it
23 10:21:21
didn't relate to polygamy.
24 10:21:22
But you can answer.
25 10:21:23
A Well, I mean, exceptional in the general course
A-935
A-936
A-937
A-938
A-939
A-940
A-941
A-942
CLARA SPYER,
Plaintiff
Defendant.
STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
lOCiv. 8435(BSJ)(JCF)
EOF Case
SUPPLEMENTAL AFFIDAVIT OF
EDITH SCHLAIN WINDSOR
Edith Schlain Windsor, being duly sworn, states:
1. I am the plaintiff in this action seeking a refund of the federal
estate tax levied on and paid by the estate of my late spouse, Thea Clara Spyer ("Thea").
2. I submit this affidavit, which contains additional details about my
life experiences, in order to respond to certain issues raised by defendant-intervenor, the
Bipartisan Legal Advisory Group of the House of Representatives ("BLAG") in its
papers in opposition to the motion I made for summary judgment and in further support
of my motion for summary judgment.
My First Marriage to Saul Weiner
3. I understand that BLAG argues in its papers that my first, brief
marriage to Saul Weiner in 1951 demonstrates that I had a "choice" about my sexual
orientation. As I explain below, that is certainly not the case. What my marriage to Saul
Weiner shows is that although I tried to make a "choice" about my sexual orientation by
A-943
getting married to a man, I was simply unable to do so. Thus, as a matter of fact, I really
had no choice at all.
4. Before I met Thea, shortly after I graduated from Temple
University in 1950,1 married a man named Saul Weiner in Philadelphia.
5. Saul was my older brother's best friend, whom I had long looked
up to and respected. He and my brother were friends throughout high school and "hung
out" together at our house. They both served as soldiers in World War IISaul in the
Army in Europe; my brother in the Air Force. Saul often visited my family when he was
on leave during the war. During all those years, he thought of and treated me as a "kid
sister."
6. When the war ended, Saul and I started college together. By that
time, I had matured into a woman, and Saul had noticed. He began asking me out on
dates, and I accepted his offers. Although I had had the feeling that I was attracted to
women, and not men, since I was a young girl, I never considered the possibility of
consummating those feelings with anyone, and I didn't want to. In the context of the
homophobia that was so prevalent in the 1950's, I certainly did not want to be a "queer."
Instead, I wanted to live a "normal" life.
7. I cared very much for Saul, and I was able to convince myself that
I could have a life together with him. He was exactly what most girls wanted in a man.
He was big, handsome and strong, yet sweet. I think that if I had been straight, Saul
would have been the love of my life. We went to all the dances together and did the
things that couples did back then, which did not include physical intimacy prior to
marriage.
A-944
8. During our third year of college, Saul asked me to marry him, and
I accepted.
9. Soon after the engagement, I met and developed, for the first time
in my life, strong romantic feelings for another person, a female classmate of mine at
Temple University. I fell deeply in love with her.
10. I did not know what to do next, but I had such terribly strong
feelings for this woman that I decided I needed to break off my engagement with Saul. I
told Saul that I was not ready to get married. Inside, however, I knew that I needed to
figure how to deal with my love for this woman.
11. Of course, times were very different thenpeople did not even
talk about being gay or the possibility of having a life with someone of the same sex. I
associated my same-sex attractions with shame, and I did not want to be "queer." In
fact, people tried to reassure me that I wasn't destined to be "queer." I therefore tried to
stick it out with Saul.
12. Although I would get jealous when I saw two women together on
the street on a Saturday night, what I thought I really wanted was to be like my older
sisterto have a husband, children and lead a "normal" life. Because of the intense
social pressure and homophobia, even the woman I fell in love with in college was not
interested in staying together in a relationship with me.
13. Meanwhile, Saul persisted and kept asking me out. I loved him
and so did my whole family; everyone thought we made a great pair. My time with Saul
was wonderful in many ways, although not romantically, as I soon discovered after we
were married in May 1951.
A-945
14. After the wedding, it did not take long for me to realize that I
could not fulfill any of Saul's or my own expectations for the relationship. I couldn't
love Saul the way a wife should love her husband, and, after a few months, I told him so.
I also explained to Saul that I was yearning for women and that I needed something else
in my life. I explained to Saul that he deserved much better, and that I wanted him to
have someone in his life for whom he was the most desirable person imaginable.
15. And so, with a heavy heart, I moved back in with my mother.
Saul and I soon divorced on March 3, 1952.
16. Saul and I parted on good terms. He later got married to another
woman and had a family. He telephoned me on my 70th birthday in 1999 to wish me
well.
The FBI Interview
17. I also understand that BLAG makes statements in its opposition
papers seeking to minimize the seriousness of the discrimination that existed against gay
men and lesbians in the twentieth century. As a result, I would like to tell a story about
something that happened to me personally to add some context concerning what things
were really like for gay men and lesbians when I was young.
18. After Saul and I got divorced, I moved to New York from
Philadelphia, where, in 1955, I began working on a master's degree in applied
mathematics at NYU.
19. In order to cover tuition, I worked as a secretary at NYU. I took
some computer classes and later sought a technology-related job. I eventually got a job
as a research assistant, programming NYU's Univac computer, which was devoted to
A-946
United States Atomic Energy Commission work. Consequently, I had to get "Q"
security clearancea particularly high level of security clearancein order to perform
my duties.
20. While I was waiting to obtain this clearance, I received a letter
from the FBI requesting that I attend a meeting with them. Although they explained that
I did not need a lawyer for this meeting, it immediately occurred to me that the meeting
was really about my homosexuality. In other words, I expected to be asked by the FBI if
I was a "queer."
21. Not only did I worry that I might not get the necessary security
clearance if the FBI found out that I was "queer," but I was also very concerned that
being "queer" was actually illegal. After I went to the trouble of doing some research, I
came to understand that, for women, all that was illegal in New York at that time was
impersonating a man. So, I went to the FBI interview dressed even more "feminine"
than I usually didwearing a dress with crinolines and high heels.
22. There was no question in my mind that I would be completely
honest with the FBI, even though I knew doing so would likely mean that I would lose
the job that I loved. At the time, I was especially frightened because the FBI had asked
my building superintendent whether there were people coming and going from my
apartment. My superintendent told me that he had told them in response: "just a bunch
of college girls." As a result, I thought for sure that the FBI was "on to me."
A-947
23. As it turned out, the FBI was only following up on a false lead.
Fortunately for me, and to my great relief, the FBI agents asked a series of questions
about my sisters' friends in the teachers' union, but did not ask me any questions about
whether I was a lesbian. And in the end, despite all my fears and anxiety, I received my
"Q" security clearance.
2 ^ 1 S ^ J J 3 U^ ^ -
Edith Schlain Windsor
Sworn to before me on this 15 day of August, 2011
^jJA^y^^
Notary Public
A-948
A-949
A-950
A-951
CLARA SPYER,
Plaintiff,
Defendant.
10 Civ. 8435 (BSJ) (JCF)
ECF Case
SUPPLEMENTAL EXPERT AFFIDAVIT OF MICHAEL LAMB, PH.D.
I, Michael Lamb, Ph.D., hereby depose and say as follows:
1. I am Professor of Psychology in the Social Sciences and Head of the Division
of Social and Developmental Psychology in the Faculty of Social, Human and Political
Science at the University of Cambridge.
2. On May 19, 2011,1 submitted my expert affidavit in this matter, which set
forth my relevant background and experience, and attached my curriculum vitae and a list of
my publications from the last 10 years, at Exhibit A.
3. That affidavit set forth the principal opinion that I am offering in this case:
that children and adolescents raised by same-sex parents are as likely to be well-adjusted as
children raised by heterosexual parents, including "biological" parents.
4. I have read the relevant portions of the Rule 56.1 statement and memorandum
of law filed by the Bipartisan Legal Advisory Group of the House of Representatives
("BLAG") in opposition to plaintiffs motion for summary judgment. More specifically,
various statements on pages 23 and 24 of BLAG's memorandum suggest that the research on
the psychological adjustment of children with gay and lesbian parents is not valid or reliable
A-952
because it has "serious flaws." I submit this affidavit in order to respond to this statement,
with which I strongly disagree.
There is No Basis for Dismissal of the Studies Referenced in My Affidavit as "Flawed".
5. First, BLAG asserts that studies referenced in my affidavit "comparing gay or
lesbian parents to heterosexual parents have serious flaws," and as supposed support for this
position, quote from three articles discussed at my deposition. (BLAG Opp. Br. at 23-24.)
6. This assertion is both misleading and false. When these quotations from other
scholars' articles were presented to me at my deposition in this case, I explained how they
had been taken out of context and that the scientific research on gay parent families is robust,
meets accepted rigorous standards for research in the field, and supports the central
conclusion provided in my prior affidavit and reiterated here: that children with gay and
lesbian parents are just as likely to be well-adjusted as those with heterosexual parents.
7. Specifically, in response to the first quotation from a report I had cited
["Studies of children raised by same-sex parents have almost exclusively focused on families
headed by lesbian mothers rather than gay fathers" (BLAG Opp. Br. at 23)], I explained at
my deposition:
[I]t's a fact that there have been more studies that are focused on the
adjustment of children raised by lesbians rather than by gay parents. It's a fact
that results of studies that are focused on the children in both of those contexts
are similar to one another. And it's a fact that in both contexts one finds that
the adjustment of children is affected not by the sexual orientation or by the
family structure but by the family process variables that we talked about
earlier this morning.
(Dep. Tr. at 16:6-11. f For example, Fair, Forsell and Patterson (2010) Parenting and child
development in adoptive families: Does parental sexual orientation matter? Applied
1
There are fewer studies of children raised by gay fathers than lesbian mothers largely
because there have been fewer gay men than lesbians raising children in their own
households presumably because, among other things, it is easier for lesbians to bring
biological children into their families. Indeed, only quite recently have significant numbers
of gay men begun to do so, too.
A-953
Developmental Science, 14(3), 164-178 (referenced in my initial affidavit) studied a sample
of children raised since infancy in families headed by gay male couples. The results were the
same as in the lesbian family researchchild outcomes did not vary depending on the
parents' sexual orientation.
8. In other words, there is sufficient, indeed overwhelming, evidence that the
adjustment of children is not affected by their parents' sexual orientation, and the fact that
more studies have focused on children raised by lesbians, rather than by gay men, does
nothing to undercut that conclusion.
9. In response to BLAG's second quotation"We still have relatively few
studies of adolescent offspring of lesbian or gay parents however, and some have advised
caution when generalizing the results of research conducted with young children to
adolescents" (BLAG Opp. Br. at 23)I explained at my deposition as follows:
There are fewer studies of adolescents than there are of younger children. I
think that this statement here is part of a way of underscoring the importance
of this research. And it is important research. But there are several other
studies that have looked at adolescent offspring living with same-sex parents.
Q. Does the fact that there are, I think you said, fewer studies on
adolescents counsel us to be cautious about drawing conclusions about
adolescents who are raised by same-sex parents?
Well, I don't think it does because the results of those fewer studies are
consistent with the results of other research that looks at children's adjustment
and other research that looks at adolescents and the factors that are associated
with their adjustment. Again, I think what's important to underscore is how
important it is to look at any set of findings in context. In that context, the fact
that studies like this show that children being raised by same-sex parents are
as likely to be well adjusted as children raised by ~ sorry - as adolescents
raised by heterosexual parents and that when one looks at the correlates of
better or worse adjustment, that it's the same factors regardless of sexual
orientation. It is the convergence between the findings and the broader body
of literature that is really the key thing we want to look at.
(Dep. Tr. at 82:15-83:21.)
10. As I explained, although there is less research on adolescents than on younger
children, there have been several studies involving adolescents and they have uniformly
A-954
reported positive outcomes on the part of adolescents raised by gay parents. Further, the
correlates of positive adolescent adjustment are the same regardless of the parents' sexual
orientation.
11. The third quotation presented to me at my deposition and used by BLAG was
the following statement by Lawrence Kurdek:
Future research on gay and lesbian couples needs to address several key
issues. One is sampling. Because most studies have used convenience samples
of mostly white and well-educated partners, the extent to which findings
generalize to the larger population of gay and lesbian couples is unknown....
Most studies on gay and lesbian couples have used self-report surveys. Future
work could address some of the biases associated with self-report data . . . .
(BLAG Opp. Br. at 23-24.) When presented with this quote at my deposition, I explained as
follows:
Well, he's certainly correct in noting these issues in the literature on gay and
lesbian couples, particularly research of the sort that he has done, which has
painstakingly, and I think very usefully, shown that the dynamics of
relationships in gay and lesbian couples are characterized by the same
dimensions as those in heterosexual families and that clearly elaborating on
that and doing more research may be helpful for those who are interested in
further understanding couple dynamics. I do want to underscore that this, his
research, is focused on gay and lesbian couples, mostly couples without
children, and that these studies don't look at the relationship between the
couple variables and the children's adjustment. They are nevertheless very
useful because they do show that the research on the dynamics of those
couples is subject to and has the same sorts of correlates and variables as do
heterosexual couples, both those that are married as well as those who are co-
habiting.
(Dep. Tr. at 85:10-86:7.)
12. In other words, researchers typically identify areas for future research in their
studies. This does not mean, as BLAG suggests, that the studies are invalid or unreliable. As
I explained, Kurdek's research on same-sex couples' relationships is both rigorous and
reliable. It is also important to note that he was not discussing research on gay parents, as
BLAG incorrectly suggests.
A-955
13. Contrary to BLAG's misleading presentation, therefore, I have never
suggested that the scientific research on gay parent families is flawed or deficient; rather, I
made it clear that the research is not only robust, but reliably shows equally good outcomes
for children of gay and heterosexual parents. None of the quotations that BLAG cites
undercuts the validity of the research. BLAG fundamentally mischaracterizes the scientific
evidence, more fully summarized in my affidavit to which an extended bibliography was
appended.
The Sources BLAG Cites Do Not Reflect the Science
14. In further attempts to support its position that the gay parenting research
should be dismissed because of methodological flaws, BLAG also made reference to a
decision of the Eleventh Circuit Court of Appeals in the Lofton case (addressing a challenge
to a Florida law banning adoption by gay people) and two articles, one written by Anne
Hulbert, a writer, and one by George Dent, a law professor. Based on these writings, BLAG
claims that, "Numerous studies have pointed to methodological flaws in those studies
comparing heterosexual and homosexual parents." (BLAG Opp. Br. at 24.)
15. That is not the case. The Hulbert and Dent materials are non-scientific
sources and, thus, are fundamentally unreliable. As an initial matter, neither Anne Hulbert
nor George Dent have professional expertise with respect to child development. In addition,
their articles were not published in peer-reviewed scientific journals. Indeed, the three page
2
Some of the "authorities" that Dent cites in his article were authored by individuals who
have been discredited as biased with respect to the research on homosexuality. For example,
Dent cites Paul Cameron, the founder of an anti-gay advocacy organization called the Family
Research Institute, who reportedly had his membership in the American Psychological
Association revoked. He also cites George Rekers and Walter Schumm. Two courts have
found Rekers' testimony about gay parents to be biased. As a Florida court explained:
"[His] testimony was far from a neutral and unbiased recitation of the relevant scientific
evidence. Dr. Rekers' beliefs are motivated by his strong ideological and theological
convictions that are not consistent with science. Based on his testimony and demeanor at
trial, the court cannot consider his testimony to be credible nor worthy of forming the basis of
public policy." In re Adoption of Doe, 2008 WL 5006172, at *12 (Fla. Cir. Ct. Nov. 25,
A-956
article by Hulbert, which was published in a popular on-line magazine, www.slate.com,
contains an errata footnote acknowledging her earlier misunderstanding of statistics presented
in a study.
16. The Eleventh Circuit's characterization of the gay parenting research also does
not match reality. The sources cited by the Lofton court purporting to show that the research
is flawed include: (1) a 1995 commentary by Baumrind calling for the very kinds of studies
that have been published in the years since; (2) a booklet written by Lemer and Nagai that
was published by the Marriage Law Project, an advocacy organization that opposes marriage
for same-sex couples; and (3) a review article written by Stacey and Biblarz that, contrary to
the Court's characterization, deems the research sufficiently strong and reliable to draw the
following conclusion:
Because every relevant study to date shows that parental sexual orientation,
per se, has no measurable effect on the quality of parent-child relationships or
on children's mental health or social adjustment, there is no evidentiary basis
for considering parental sexual orientation in decisions about children's best
interest.
4
17. Contrary to the conclusion of the Lofton court, the research on gay parent
families is a robust body of research that meets the rigorous methodological standards
2008); see also Howard v. Child Welfare Agency Review Bd, 2004 WL 3154530 (Ark. Cir.
2004), aff d, 238 S.W.3d 1 (Ark. 2006)CTt was apparent from both Dr. Rekers' testimony
and attitude on the stand that he was there primarily to promote his own personal ideology. If
the furtherance of such ideology meant providing the court with only partial information or
selectively analyzing study results that was acceptable to Dr. Rekers. . . . Dr. Rekers'
willingness to prioritize his personal beliefs over his function as an expert provider of fact
rendered his testimony extremely suspect and of little, if any, assistance to the court in
resolving the difficult issues presented by this case."). As for Walter Schumm, the same
Florida court that criticized Rekers concluded that Schumm "integrates his religious and
ideological beliefs into his research." Id.
3
BLAG also cites in its motion to dismiss an article by Lynn Wardle as purported support
for its argument that children raised by same-sex parents miss the benefits of being raised by
men and women. (BLAG Mem. in Support of Mot. to Dismiss at 43.) Like Dent, Lynn
Wardle is a law professor with no professional expertise in child development and his article,
which was published in a law journal, is not a scientific publication.
4
The Hulbert article from slate.com similarly misinterprets Stacey and Biblarz.
A-957
demanded for publication in the leading academic journals. There is simply no basis on
which to dismiss this body of research as invalid or unreliable due to methodological
deficiencies.
18. Of the two studies cited by the Lofton court to purportedly show worse
outcomes for children with gay parents, the first, a publication by Paul Cameron, is worthless
because, although it claims to show that children are more likely to be molested by gay
parents than heterosexual parents, it makes clear that the researchers did not even ask
respondents about the sexual orientation of their parents. See also n. 1, supra. Second, the
Stacey and Biblarz review discussed above did not conclude that children with gay parents
fared worse than children with heterosexual parents. In fact, it concluded that there is "no
evidentiary basis for considering parental sexual orientation in decisions about children's best
interest." As discussed more fully in my original affidavit, the research on children raised by
gay parents consistently shows that parental sexual orientation has no bearing on child
outcomes. There can be no reasonable doubt that this is a matter of scientific consensus.
19. Finally, BLAG attempts to refute my statement that "[t]here is no empirical
support for the notion that the presence of both male and female role models in the home
promotes children's adjustment or well being," by referencing studies cited in the case
Mzarry v. Bd ofEduc. of Chi., 251 F.3d 604, 607 (7th Cir. 2001). (BLAG Rule 56.1 Stmt.
Tf47.) As BLAG notes, those studies show only that so far as heterosexuals are concerned, the
evidence that marriage "provides a stable and nourishing framework for child-rearing . . .
5
In addition, while BLAG did not cite it in the Windsor case, in Pedersen, BLAG cited
Norval Glenn's criticism of sampling in research on gay/lesbian parenting: See BLAG's
opposition to summary judgment in Pedersen, pp. 31-32 (citing Glenn's article, "The
Struggle for Same-Sex Marriage"). For the same reasons discussed above, Glenn's
article is without merit. Although Glenn dismisses this body of research for using small
convenience samples, such sampling is appropriate and routinely used in psychological
research. Moreover, a number of the studies on gay parent families did use representative
samples.
A-958
refutes any claim that policies designed to promote marriage are irrational." Significantly,
the Mzarry court and these studies were not comparing families of heterosexual and gay
couplesthey were simply comparing married and non-married heterosexual couples.
BLAG also cites a 1974 review by Biller extolling the positive impact that heterosexual
fathers can have on their children's development. The speculation nearly 40 years ago that
that children needed to have both male and female parents in order to be well-adjusted has
not been supported by the research. Research conducted since then has demonstrated that
both mothers and fathers are important to their children as parents, not as males and females,
and that the parents' genders do not affect children's adjustment.
20. Finally, the sources cited by BLAG are not only unscientific and do not
support their arguments, but were largely published prior to 2004. As discussed above and in
my original affidavit, the body of scientific research pre-dating 2004 fully supported my
opinion that child adjustment is not affected by the parents' sexual orientation. Since then,
however, there has been much additional research exploring the psychological adjustment of
children and adolescents raised by same-sex couples. (I cited forty-three academic articles
published after 2004 in Exhibit B appended to my initial affidavit.) This more recent research
only serves to underscore the established conclusion that child adjustment is not in any way
affected by parental sexual orientation.
6
In its motion to dismiss at 40-41, n. 11, BLAG says that "In 2004, Congress extensively
reviewed the evidence that children whose mother or father is absent are comparatively
worse off," and references an article by Barbara Dafoe Whitehead published in the
Atlantic magazine (http://www.theatlantic.eom/magazine/archive/l993/04/dan-quayle-
was-right/7015/) and a report by the organization Child Trends
(http://www.childtrends.org/files/marriagerb602.pdf) as examples. These articles discuss
the research on family dissolution and single parenthood among heterosexual parents,
noting poorer average outcomes for children whose family lives are disrupted by divorce
and those who do not have supportive relationships with both of their parents. These
articles do not, as BLAG suggests, say anything to support the claim that parents' gender
affects children's adjustment. And they have no relevance to gay parent families other
than to suggest that children of gay parents would also be more likely to be well adjusted
if their parents' relationships remained intact.
A-959
21. The conclusion stated in my affidavitthat children with gay, lesbian, and
heterosexual parents are all as likely as one another to be well-adjusted because it is the
quality of parenting and parent-child relationships, the quality of the parents' relationships
with partners and other significant adults, and their social and economic resources, rather
than their family structure or type that determines children's outcomesis well supported by
the empirical research literature, and is not undermined by the misleading assertions made by
BLAG in opposing plaintiffs motion for summary judgment.
I declare under penalty of perjury under the laws of the United States of America that
the foregoing is true and accurate.
Executed this [ o th day of September 2011 at Washington, DC.
A-960
A-961
A-962
A-963
A-964
A-965
FOR THE SOUTHERN DISTRICT OF NEW YORK

____________________________________
)
EDITH SCHLAIN WINDSOR, in her )
capacity as executor of the estate of )
THEA CLARA SPYER, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-CV-8435 (BSJ)(JCF)
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
____________________________________)

INTERVENOR-DEFENDANTS
NOTICE OF RECENT DECISIONS

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of
Representatives (the House) respectfully submits this notice of two recent decisions, each
relevant to both its motion to dismiss and its opposition to Plaintiffs motion for summary
judgment.
First, on September 29, 2011 (after the close of briefing on the Houses motion to
dismiss in this matter and after the Houses final submission in opposition to Plaintiffs motion
for summary judgment), the United States Court of Appeals for the Ninth Circuit issued the
decision attached at Exhibit A. See Log Cabin Republicans v. United States, --- F.3d ----, Nos.
10-56634 & 10-56813, 2011 WL 4494225 (9th Cir. Sept. 29, 2011) (per curiam); see also id. at
*5-10 (OScannlain, J., concurring). The Log Cabin Republicans decision and the concurring
opinion thereto are relevant to the Houses arguments, including regarding the propriety of
leaving political issues to the elected branches of government and the ability of homosexuals to
A-966
2
achieve gains through those branches. See, e.g., Mem. of Law . . . in Supp. of . . . Mot. to
Dismiss at 1-2, 43-45 (Aug. 1, 2011) (ECF No. 53); Mem. of Law in . . . Oppn to Pl.s Mot. for
Summ. J. at 1, 12-21 (Aug. 1, 2011) (ECF No. 50).
Second, on September 28, 2011 (also after the close of briefing on the Houses motion to
dismiss in this matter and after the Houses final submission in opposition to Plaintiffs motion
for summary judgment), the United States District Court for the Central District of California
issued the decision attached at Exhibit B, which dismisses a complaint that, like the instant one,
challenged on equal protection grounds the constitutionality of Section 3 of the Defense of
Marriage Act, 1 U.S.C. 7. See In Chambers Order, Lui v. Holder, et al., No. 2:11-cv-01267-
SVW (JCGx) (C.D. Cal. Sept. 28, 2011). The Lui decision is relevant to the Houses arguments
regarding the applicable standard of equal protection scrutiny. See, e.g., Mem. of Law in . . .
Oppn to Pl.s Mot. for Summ. J. at 5-7 (Aug. 1, 2011) (ECF No. 50); Mem. of Law . . . in Supp.
of . . . Mot. to Dismiss at 22-26 (Aug. 1, 2011) (ECF No. 53).

A-967
Respectfully submitted,

/s/ Paul D. Clement
Paul D. Clement
H. Christopher Bartolomucci
Conor B. Dugan
Nicholas J. Nelson
BANCROFT PLLC
1919 M Street, Northwest, Suite 470
Washington, District of Columbia 20036
Telephone: (202) 234-0090
Facsimile: (202) 234-2806

Counsel for the Bipartisan Legal Advisory
Group of the U.S. House of Representatives

OF COUNSEL:

Kerry W. Kircher, General Counsel
Christine Davenport, Senior Assistant Counsel
Katherine E. McCarron, Assistant Counsel
William Pittard, Assistant Counsel
Kirsten W. Konar, Assistant Counsel
OFFICE OF GENERAL COUNSEL
U.S. House of Representatives
219 Cannon House Office Building
Telephone: (202) 225-9700
Facsimile: (202) 226-1360

October 20, 2011
A-968

CERTIFICATE OF SERVICE

I certify that on October 20, 2011, I served one copy of Intervenor-Defendants Notice of
Recent Decisions by CM/ECF and by electronic mail (.pdf format) on the following:
Roberta A. Kaplan, Esquire, & Andrew J. Ehrlich, Esquire
New York City, New York 10019-6064
rkaplan@paulweiss.com
aehrlich@paulweiss.com

Alexis B. Karteron, Esquire, & Arthur N. Eisenberg, Esquire
NEW YORK CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, Nineteenth Floor
New York City, New York 10004
akarteron@nyclu.org
arteisenberg@nyclu.org

James D. Esseks, Esquire, Melissa Goodman, Esquire, & Rose A. Saxe, Esquire
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street
jesseks@aclu.org
mgoodman@nyclu.org
rsaxe@aclu.org

Jean Lin, Esquire
UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION
20 Massachusetts Avenue, Northwest, Seventh Floor
jean.lin@usdoj.gov

Simon Heller, Esquire
STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL
120 Broadway
simon.heller@ag.ny.gov

/s/ Kerry W. Kircher
Kerry W. Kircher

A-969

Exhibit A
A-970
Log Cabin Republicans v. U.S., --- F.3d ---- (2011)
11 Cal. Daily Op. Serv. 12,451, 2011 Daily Journal D.A.R. 14,795
2011 Thomson Reuters. No claim to original U.S. Government Works. 1
zo11 W qqqqzz
UnILed SLuLes CourL oI AeuIs,
NInLh CIrcuIL.
OG CABN REPUBCANS, u non-
roIIL cororuLIon, PIuInLIII-AeIIee,
v.
UNTED STATES oI AmerIcu; eon
PuneLLu, SecreLury oI DeIense, In hIs
oIIIcIuI cuucILy, DeIendunLs-AeIIunLs.
og CubIn ReubIIcuns, u non-roIIL
cororuLIon, PIuInLIII-AeIIunL,
v.
UnILed SLuLes oI AmerIcu; eon PuneLLu,
SecreLury oI DeIense, In hIs oIIIcIuI
cuucILy, DeIendunLs-AeIIees.
Nos. 1o-66q, 1o-681. Argued und
SubmILLed SeL. 1, zo11. IIed SeL. zq, zo11.
Synopsis
Background: Nonprofit corporation brought action against
federal government challenging as facially unconstitutional
the Don't Ask, Don't Tell statute and its implementing
regulations, which permitted discharge of military service
members on account of homosexual conduct, asserting claims
under the due process clause of the Fifth Amendment, the
right to equal protection guaranteed by that Amendment,
and the First Amendment right to freedom of speech. The
United States District Court for the Central District of
California, Virginia A. Phillips, J., dismissed equal protection
claim, but ruled after bench trial that policy violated due
process and First Amendment, and permanently enjoined
government from applying policy, 716 F.Supp.2d 884. Parties
appealed, and challenged statute was repealed while appeal
was pending.
Holdings: The Court of Appeals held that:
1 action became moot when repeal of statute took effect while
parties' appeal was pending;
2 collateral-consequences exception to mootness doctrine did
not apply; and
3 mootness of action deprived government of appeal to which
it was entitled, and thus vacatur of district court's judgment
was appropriate.
Vacated and remanded with directions to dismiss.
O'Scannlain, Circuit Judge, filed specially concurring
opinion.
Attorneys and Law Firms
Henry C. Whitaker, Attorney, Appellate Staff, Civil Division,
United States Department of Justice, Washington, D.C.,
argued the cause and filed the briefs for the defendants-
appellants/defendants-appellees. With him on the briefs were
Tony West, Assistant Attorney General, Andr Birotte Jr.,
United States Attorney, and Anthony J. Steinmeyer and
August E. Flentje, Attorneys, Appellate Staff, Civil Division,
United States Department of Justice, Washington, D.C.
Dan Woods, White & Case LLP, Los Angeles, CA, argued
the cause and filed a brief for the plaintiff-appellee/plaintiff-
appellant. With him on the brief was Earle Miller, Aaron A.
Kahn, and Devon A. Myers, White & Case LLP, Los Angeles,
CA.
Appeal from the United States District Court for the Central
District of California, Virginia A. Phillips, District Judge,
Presiding. D.C. No. 2:04cv08425VAPE.
Before ARTHUR L. ALARCN, DIARMUID F.
O'SCANNLAIN, and BARRY G. SILVERMAN, Circuit
Judges.
Opinion
OPINION
PER CURIAM:
*1 We are called upon to decide whether the congressionally
enacted Don't Ask, Don't Tell policy respecting
homosexual conduct in the military is unconstitutional on its
face.
I
A
In 1993, Congress enacted the policy widely known as Don't
Ask, Don't Tell. The policy generally required that a service
member be separated from the military if he had engaged or
attempted to engage in homosexual acts, stated that he is a
homosexual, or married or attempted to marry a person of the
same sex. 10 U.S.C. 654(b) (repealed); see, e.g., Dep't of
Def. Instructions 1332.14, 1332.30 (2008).
A-971
The nonprofit corporation Log Cabin Republicans brought
this suit in 2004, challenging section 654 and its
implementing regulations as facially unconstitutional under
the due process clause of the Fifth Amendment, the right to
equal protection guaranteed by that Amendment, and the First
Amendment right to freedom of speech. Log Cabin sought
a declaration that the policy is facially unconstitutional and
an injunction barring the United States from applying the
policy. The district court dismissed the equal protection claim
under Witt v. Department of the Air Force, 527 F.3d 806
(9th Cir.2008) (upholding section 654 against a facial equal
protection challenge), but allowed the due process and First
Amendment challenges to proceed to trial.
After a bench trial, in October 2010 the district court ruled
that section 654 on its face violates due process and the
First Amendment. The court permanently enjoined the United
States from applying section 654 and its implementing
regulations to anyone. The United States appealed; Log Cabin
cross-appealed the dismissal of its equal protection claim.
B
While the appeal was pending, Congress enacted the Don't
Ask, Don't Tell Repeal Act of 2010, Pub.L. No. 111321,
124 Stat. 3515 (2010) (Repeal Act). That statute provides
that section 654 would be repealed 60 days after: (1) the
Secretary of Defense received a report determining the impact
of repealing section 654 and recommending any necessary
changes to military policy, and (2) the President, Secretary of
Defense, and Chairman of the Joint Chiefs of Staff certified
that they had considered the report's recommendations and
were prepared to implement the repeal consistent with
military readiness, military effectiveness, and unit cohesion.
Repeal Act 2(b). The Repeal Act left section 654 in effect
until the prerequisites to repeal were satisfied and 60 days had
then passed.
The report was issued November 30, 2010, and certification
occurred July 21, 2011. Section 654 was thus repealed
September 20, 2011.
II
A
1 Because section 654 has now been repealed, we must
determine whether this case is moot. [I]t is not enough that
there may have been a live case or controversy when the case
was decided by the court whose judgment is under review.
Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d
732 (1987). Article III of the United States Constitution
requires that there be a live case or controversy at the time
that a reviewing federal court decides the case. Id.
*2 2 Applying that limitation, the Supreme Court and
our court have repeatedly held that a case is moot when
the challenged statute is repealed, expires, or is amended
to remove the challenged language. In determining whether
a case has become moot on appeal, the appellate court
review[s] the judgment below in light of the ... statute as it
now stands, not as it ... did before the district court. Hall v.
Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969)
(per curiam); see Burke, 479 U.S. at 363, 107 S.Ct. 734.
In Hall v. Beals, for example, the Supreme Court deemed
moot a challenge to a six-month residency requirement
imposed by Colorado for eligibility to vote in the 1968
presidential election. 396 U.S. at 4648, 90 S.Ct. 200. After
the district court rejected the challenge and the Supreme
Court noted probable jurisdiction, the Colorado legislature
reduced the residency requirement to two months, which
the plaintiffs would have met at the time of the 1968
election. Id. at 4748, 90 S.Ct. 200. The case was moot
because, under the statute as ... written when the Supreme
Court reviewed the district court's judgment, the appellants
could have voted in the 1968 presidential election. Id. at
48, 90 S.Ct. 200. Similarly, in United States Department
of the Treasury v. Galioto, after the Supreme Court had
noted probable jurisdiction to review a ruling that federal
firearms legislation unconstitutionally singled out mental
patients, the case became moot because Congress amended
the statute to remove the challenged language. 477 U.S. 556,
55960, 106 S.Ct. 2683, 91 L.Ed.2d 459 (1986). And in
Burke v. Barnes, where several congressmen challenged the
President's attempt to pocket-veto a bill, the Supreme Court
deemed the case moot because the bill expired by its own
terms before the Court could rule on the case. 479 U.S. at 363,
107 S.Ct. 734. As in cases dealing with repealed legislation,
the Court analyze[d] th[e] case as if[the plaintiffs] had
originally sought to litigate the validity of a statute which by
its terms had already expired. See id.
3 Following the Court's lead, we have routinely deemed
cases moot where a new law is enacted during the
pendency of an appeal and resolves the parties' dispute.
Qwest Corp. v. City of Surprise, 434 F.3d 1176, 1181 (9th
Cir.2006) (Qwest's challenge to ordinances rendered moot by
amendment exempting Qwest from ordinances); see Chem.
Producers & Distribs. Ass'n v. Helliker, 463 F.3d 871, 875
A-972
78 (9th Cir.2006) (case moot where amendment eliminated
challenged part of pesticide registration law); Martinez v.
Wilson, 32 F.3d 1415, 141920 (9th Cir.1994) (case moot
where, after injunction was issued, statute was amended to
eliminate challenged factors used by the State of California
in distributing funds under the Older Americans Act). Under
these precedents, when a statutory repeal or amendment gives
a plaintiff everything [it] hoped to achieve by its lawsuit,
the controversy is moot. Helliker, 463 F.3d at 876.
4 This suit became moot when the repeal of section 654
took effect on September 20. If Log Cabin filed suit today
seeking a declaration that section 654 is unconstitutional or
an injunction against its application (or both), there would be
no Article III controversy because there is no section 654. The
repeal, in short, gave Log Cabin everything its complaint
hoped to achieve. Helliker, 463 F.3d at 876. There is no
longer a present, live controversy of the kind that must exist
for us to reach the merits. Hall, 396 U.S. at 48, 90 S.Ct. 200.
B
*3 Log Cabin concedes that the injunctive relief awarded
by the district court [has] become moot due to the repeal,
but contends that its quest for declaratory relief is live under
either of two exceptions to mootness.
5 6 We are not persuaded. When a statutory repeal or
amendment extinguishes a controversy, the case is moot.
There is no exception for declaratory relief. See Native
Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1514 (9th
Cir.1994) (Declaratory relief is unavailable where [a] claim
is otherwise moot....); Pub. Utils. Comm'n of State of Cal. v.
FERC, 100 F.3d 1451, 1459 (9th Cir.1996) (same).
7 In any event, no exception to mootness applies here.
Log Cabin notes that generally a defendant's voluntary
cessation of a challenged practice does not deprive a federal
court of its power to determine the legality of the practice.
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283,
289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982). But voluntary
cessation is different from a statutory amendment or repeal.
Repeal is usually enough to render a case moot, even if
the legislature possesses the power to reenact the statute
after the lawsuit is dismissed. Helliker, 463 F.3d at 878.
Cases rejecting mootness in such circumstances are rare and
typically involve situations where it is virtually certain that
the repealed law will be reenacted. Id. (emphases omitted);
see, e.g., City of Mesquite, 455 U.S. at 289 & n. 11, 102
S.Ct. 1070 (City admitted that it intended to reenact precisely
the same provision that it had repealed after the district
court's adverse judgment); Ballen v. City of Redmond, 466
F.3d 736, 741 (9th Cir.2006) (statutory amendment adopted
only as an interim regulation in response to the district court's
summary judgment ruling); Coral Constr. Co. v. King Cnty.,
941 F.2d 910, 928 (9th Cir.1991) (district court had upheld
the challenged ordinance, allowing the County to reenact its
earlier ordinance without the spectre of a prior finding of
unconstitutionality).
We cannot say with virtual[ ] certain[ty], Helliker, 463
F.3d at 878, that the Congress that passed the Repeal Act
or a future Congress whose composition, agenda, and
circumstances we cannot knowwill reenact Don't Ask,
Don't Tell. We can only speculate, and our speculation cannot
breathe life into this case.
8 9 A second exception to mootness applies when a party
faces collateral consequences from a challenged statute
even when the statute is repealed. Log Cabin cites several
benefits that discharged service members may have lost as a
result of their separation. But because these missed benefits
are not legal penalties from past conduct, they do not fall
within this exception. Qwest, 434 F.3d at 1182; Pub. Utils.
Comm'n, 100 F.3d at 1461 (the collateral consequences must
be legal ).
III
10 Having determined that this case is moot, we must direct
the entry of such appropriate judgment, decree, or order, or
require such further proceedings to be had as may be just
under the circumstances. 28 U.S.C. 2106.
*4 11 The established practice when a civil suit becomes
moot on appeal is to vacate the district court's judgment and
remand for dismissal of the complaint. See United States
v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95
L.Ed. 36 (1950). Vacatur ensures that those who have been
prevented from obtaining the review to which they are entitled
[are] not ... treated as if there had been a review. Id. It
prevent[s] an unreviewable decision from spawning any
legal consequences, so that no party is harmed by what [the
Supreme Court has ] called a preliminary adjudication.
Camreta v. Greene, U.S. , 131 S.Ct. 2020, 2035, 179
L.Ed.2d 1118 (2011) (quoting Munsingwear, 340 U.S. at 40
41, 71 S.Ct. 104).
12 To be sure, in the rare situation when mootness[does]
not deprive the appealing party of any review to which[it] was
entitled, reviewing courts have left lower court decisions
intact. Camreta, 131 S.Ct. at 2035 n. 10. Vacatur thus may be
A-973
unwarranted when the losing party did not file an appeal or
settled the case. See id. (citing Karcher v. May, 484 U.S. 72,
83, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987), and U.S. Bancorp
Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 25, 115
S.Ct. 386, 130 L.Ed.2d 233 (1994)). In each circumstance,
the losing party voluntarily forfeit[s] his legal remedy by the
ordinary process[ ] of appeal and thus surrender[s] his claim
to the equitable remedy of vacatur. U.S. Bancorp, 513 U.S.
at 25, 115 S.Ct. 386.
That is not the situation before us. The United States did
not forfeit the appellate review to which it was entitled.
After the district court entered its judgment and injunction,
the United States appealed promptly, moved our court to
stay the district court order, filed two merits briefs disputing
the judgment and relief ordered, moved to reinstate the stay
of the injunction after this court briefly lifted it, filed a
letter brief reiterating its arguments against the district court's
judgment and injunction, and at oral argument made clear
that it still advances all of its arguments against the district
court's judgment and injunction. Mootness has thus deprived
the United States of the review to which it is entitled. Vacatur
is proper. See Arizonans for Official English v. Arizona, 520
U.S. 43, 74, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (holding
that vacatur was proper because, when the mooting event
occurred, the Arizona Attorney General was pursuing his
right to present argument on appeal).
We therefore vacate the judgment of the district court. Burke,
479 U.S. at 365, 107 S.Ct. 734 (vacating and remanding
to dismiss complaint); Helliker, 463 F.3d at 880 (same);
Martinez, 32 F.3d at 1420. Because Log Cabin has stated its
intention to use the district court's judgment collaterally, we
will be clear: It may not. Nor may its members or anyone
else. We vacate the district court's judgment, injunction,
opinions, orders, and factual findingsindeed, all of its past
rulingsto clear the path completely for any future litigation.
Those now-void legal rulings and factual findings have no
precedential, preclusive, or binding effect. The repeal of
Don't Ask, Don't Tell provides Log Cabin with all it sought
and may have had standing to obtain. (We assume without
deciding that Log Cabin had standing to seek a declaration
that section 654 is unconstitutional and an injunction barring
the United States from applying it to Log Cabin's members.
See Arizonans for Official English, 520 U.S. at 6667, 117
S.Ct. 1055 (court may assume without deciding that standing
exists in order to analyze mootness).) Because the case is
moot and the United States may not challenge further the
district court's rulings and findings, giving those rulings and
findings any effect would wrongly harm the United States.
1
*5 On remand, the district court will dismiss the complaint
forthwith.
VACATED AND REMANDED WITH DIRECTIONS TO
DISMISS.
O'SCANNLAIN, Circuit Judge, concurring specially:
I fully concur in the court's opinion. The repeal of Don't Ask,
Don't Tell has mooted this case, and our opinion properly
vacates the district court's judgment, injunction, rulings, and
findings.
I write separately because our inability to reach the merits
may leave uncertainty about the role Lawrence v. Texas, 539
U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), may have
in substantive due process challenges. Although Congress
spared us the need to reach the merits in this case, other such
challenges will come to the courts. Because guideposts for
responsible decisionmaking on matters of substantive due
process are scarce and open ended, Collins v. City of Harker
Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261
(1992), I think it useful to explain how courts should approach
the application of Lawrence in appropriate cases.
I
The Supreme Court has emphasized its reluctan[ce] to
expand the concept of substantive due process. Collins, 503
U.S. at 125, 112 S.Ct. 1061. To confine that concept to
its proper bounds, the Court has developed an established
method of substantive due process analysis that comprises
two primary features. Washington v. Glucksberg, 521 U.S.
702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997).
First, the Court requires a careful description of the
asserted fundamental liberty interest. Glucksberg, 521 U.S.
at 721, 117 S.Ct. 2258; see Reno v. Flores, 507 U.S. 292, 302,
113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Collins, 503 U.S. at
125, 112 S.Ct. 1061. In crafting such descriptions, the Court
has eschewed breadth and generality in favor of narrowness,
delicacy, and precision.
In Washington v. Glucksberg, for example, the Court framed
the issue before it as whether the liberty specially protected
by the Due Process Clause includes a right to commit suicide
which itself includes a right to assistance in doing so. 521
U.S. at 723, 117 S.Ct. 2258. The Court rejected capacious
formulations of the asserted right, such as the right to choose
a humane, dignified death or the liberty to shape death.
Id. at 722, 117 S.Ct. 2258 (internal quotation marks omitted).
A-974
Similarly, in Cruzan v. Director, Missouri Department of
Health, the Court formulated the interest at stake as a right
to refuse lifesaving hydration and nutrition, 497 U.S. 261,
279, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), rather than as
a right to die. So too in Reno v. Flores, where the Court
described the interest at issue as the alleged right of a child
who has no available parent, close relative, or legal guardian,
and for whom the government is responsible, to be placed in
the custody of a willing-and-able private custodian rather than
of a government-operated or government-selected child-care
institution. 507 U.S. at 302, 113 S.Ct. 1439. Again, the Court
rejected more general articulations of the alleged right, such
as the freedom from physical restraint and the right to
come and go at will. Id.
*6 Second, the Court examines whether that carefully
described right is deeply rooted in our Nation's history,
legal traditions, and practices or in supporting case law.
Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 (internal
quotation marks omitted); see Collins, 503 U.S. at 12629,
112 S.Ct. 1061 (examining the text [and] history of the Due
Process Clause); Cruzan, 497 U.S. at 26977, 110 S.Ct. 2841
(examining the common law and contemporary case law); see
also Flores, 507 U.S. at 303, 113 S.Ct. 1439 (observing that
no court had ever held that there was a constitutional right
of the sort alleged). In Glucksberg, for example, the Court
examined those sources for evidence of a right to commit
suicide with another's assistance. 521 U.S. at 724, 117 S.Ct.
2258; see id. at 71019, 72328, 117 S.Ct. 2258. Coming
up empty-handed, the Court concluded that this asserted
right ... is not a fundamental liberty interest protected by the
Due Process Clause. Id. at 728, 117 S.Ct. 2258.
The Court has imposed these dual limitations on substantive
due process analysis to preserve the judiciary's proper role
in the constitutional structure. [E]xtending constitutional
protection to an asserted right or liberty interest ... to a
great extent[ ] place[s] the matter outside the arena of
public debate and legislative action. Glucksberg, 521 U.S.
at 720, 117 S.Ct. 2258. Whenever the Court expands the
concept of substantive due process, moreover, it risks subtly
transform[ing] the liberty protected by the due process
clause to the policy preferences of the Members of th[e]
Court.Id.
In short, when confronted with assertions of new fundamental
rights, rather than invite innovation the Court has counseled
caution. The Court has developed a trusted method reflecting
that caution. And while the Court has on occasion departed
from its established method, it has not licensed lower courts
to do so. See Witt v. Dep't of Air Force, 548 F.3d 1264,
1273 (9th Cir.2008) (O'Scannlain, J., dissenting from denial
of rehearing en banc). Most important, when a right is not
rooted in our constitutional text, traditions, or history, our
authority as judges is at its end. We must then leave the task of
identifying and protecting new rights where the Constitution
leaves itwith the political branches and the people. See
Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258.
II
A
Against this established legal background, the district court
in this case reasoned as follows: Fundamental rights trigger
heightened judicial scrutiny. Log Cabin Republicans v.
United States, 716 F.Supp.2d 884, 911 (C.D.Cal.2010).
Lawrence v. Texas recogniz[ed] the fundamental right to an
autonomy of self that includes freedom of thought, belief,
expression, and certain intimate conduct. Id. (quoting 539
U.S. at 562, 123 S.Ct. 2472). Log Cabin's challenge to Don't
Ask, Don't Tell implicates that same fundamental right. Id.
Therefore, Don't Ask, Don't Tell must withstand heightened
scrutiny. Id.
This is not the established method of substantive due
process analysis. Indeed, this analysis was tantamount to a
conclusion that the Supreme Court in Lawrence rejected its
own settled approach and established a sweeping fundamental
right triggering heightened scrutiny regardless of context. On
that unsupported foundation, the district court subjected 10
U.S.C. 654 to heightened scrutiny.
*7 The Supreme Court's cases instruct that departures from
the constitutional text must be narrow, carefully considered,
and grounded in the Nation's history, traditions, or practices.
See supra Part I. The district court's decision followed none
of those instructions. Departing from settled practice was
particularly improper in this case, which involved a facial
constitutional challenge to a federal statute. Judging the
constitutionality of an Act of Congress is the gravest and
most delicate duty that federal courts are called upon to
perform. Rostker v. Goldberg, 453 U.S. 57, 64, 101 S.Ct.
2646, 69 L.Ed.2d 478 (1981) (internal quotation marks
omitted). Proper respect for Supreme Court precedents, for
a considered congressional policy, and for the traditions and
history of our country required the district court to apply the
tried and trusted method of substantive due process analysis.
B
A-975
Log Cabin's due process challenge required the district court
to begin by carefully formulating the interest at stake.
Glucksberg, 521 U.S. at 722, 117 S.Ct. 2258. Because Log
Cabin alleged that 10 U.S.C. 654 violates substantive
due process, this first step calls for examining the statutory
language, see Glucksberg, 521 U.S. at 723, 117 S.Ct. 2258.
1
Taking close account of that language, a substantive due
process challenge to section 654 presented the question
whether the due process clause protects the right of a
member of the armed forces to do any of the following
without being discharged: (1) to engage in, to attempt to
engage in, or to solicit another to engage in homosexual acts
without demonstrating that such conduct is (to simplify for
brevity) unusual for the service member, uncoerced, and non-
disruptive to the military; (2) to state that he is a homosexual
or bisexual and also to engage in, to attempt to engage in,
to have the propensity to engage in, or to intend to engage
in homosexual acts; or (3) to marry or to attempt to marry a
person known to be of the same biological sex. Put simply, the
substantive due process question raised by Don't Ask, Don't
Tell was whether a service member possesses a right to serve
in the military when he is known to engage in homosexual
conduct or when he states that he is a homosexual.
Having carefully described the asserted right, the next
question is whether the right is manifested in our Nation's
history, traditions, or practices. A trusted guide for this
analysis is past decisions of the courts, which have repeatedly
approved the very actions that Log Cabin contends are
unconstitutional. As our court recognized in 1997, [f]or
nearly twenty years we have upheld the constitutionality of
the military's authority to discharge service members who
engage in homosexual acts. Philips v. Perry, 106 F.3d
1420, 1425 (9th Cir.1997); see id. at 142527 (summarizing
cases). Affirming a discharge under section 654 in Philips, we
observed that this court has consistently held that regulations
of the nature at issue here ... are constitutional and noted
that [e]very other circuit to address this issue is in accord,
upholding against constitutional challenge the authority of
the military to discharge those members who engage in
homosexual conduct . Id. at 1427 & n. 12 (emphasis omitted)
(citing decisions of the Second, Tenth, D.C., and Federal
Circuits); see, e.g., Thomasson v. Perry, 80 F.3d 915, 92731,
934 (4th Cir.1996) (en banc); Dronenburg v. Zech, 741 F.2d
1388, 139798 (D.C.Cir.1984).
*8 Courts have rejected such challenges on equal protection
as well as due process grounds. See, e.g., Able v. United
States, 155 F.3d 628, 63536 (2d Cir.1998); Richenberg v.
Perry, 97 F.3d 256, 26062 (8th Cir.1996); Steffan v. Perry,
41 F.3d 677, 68687 (D.C.Cir.1994) (en banc); BenShalom
v. Marsh, 881 F.2d 454, 46465 (7th Cir.1989). Such equal
protection decisions are instructive here: The mere focus on
equal protection rather than on due process in such cases
confirms that the right asserted here has not been viewed as
part of the liberty protected by due process. See Flores, 507
U.S. at 303, 113 S.Ct. 1439 (The mere novelty of ... a claim is
reason enough to doubt that substantive due process' sustains
it.). Moreover, substantive due process and equal protection
doctrine are intertwined for purposes of equal protection
analyses of federal action because the Fifth Amendment's
equal protection guarantee is grounded in its due process
clause. Philips, 106 F.3d at 1427 (internal quotation marks
omitted).
These decisions, all of them recent by historical standards,
span the Nation and belie any claim that the right asserted by
Log Cabin is deeply rooted in our history or traditions. Indeed,
the alleged right certainly cannot be considered so rooted in
the traditions and conscience of our people as to be ranked as
fundamental when no court had held (until the district court
did here) that there is such a fundamental constitutional right.
Flores, 507 U.S. at 303, 113 S.Ct. 1439 (internal quotation
marks omitted).
C
The district court in this case never contended that the right
asserted by Log Cabin has deep roots in our history, tradition,
or practices, nor in a line of cases stretching an appreciable
distance into the past. Rather, the linchpin for the district
court's ruling was the Supreme Court's decision just eight
years ago in Lawrence.
Lawrence held that the liberty interest protected by the due
process clause prohibits states from criminalizing private
homosexual conduct by consenting adults. 539 U.S. at 578,
123 S.Ct. 2472. Nothing in Lawrence establishes a general
fundamental right to engage in homosexual conduct. See, e.g.,
Muth v. Frank, 412 F.3d 808, 817 (7th Cir.2005) (Lawrence
... did not announce ... a fundamental right, protected by the
Constitution, for adults to engage in all manner of consensual
sexual conduct....); Lofton v. Sec'y of the Dep't of Children
& Family Servs., 358 F.3d 804, 817 (11th Cir.2004) ([I]t
is a strained and ultimately incorrect reading of Lawrence to
interpret it to announce a new fundamental right.).
Indeed, far from establishing a broad interest, the Supreme
Court in Lawrence struck down with marksman-like precision
A-976
an outlier criminal statute and expressly emphasized the
limitations of the liberty interest guiding its holding:
The present case does not involve minors. It does not
involve persons who might be injured or coerced or who are
situated in relationships where consent might not easily be
refused. It does not involve public conduct or prostitution.
It does not involve whether the government must give
formal recognition to any relationship that homosexual
persons seek to enter.
*9 539 U.S. at 578, 123 S.Ct. 2472; see Lofton, 358 F.3d
at 815 (Lawrence's holding was that substantive due process
does not permit a state to impose a criminal prohibition
on private consensual homosexual conduct.). The case did
not address the military context, did not establish a right
to continued employment for those engaged in proscribed
conduct, and did not address how homosexual conduct might
be addressed outside a criminal context. The opinion does
not prescribe heightened scrutiny. These limitations make
clear that Lawrence does not establish that a member of the
armed forces has a constitutionally protected right to engage
in homosexual acts or to state that he or she is a homosexual
while continuing to serve in the military.
To be sure, Lawrence contained broad language on personal
autonomy. See, e.g., 539 U.S. at 562, 123 S.Ct. 2472 (Liberty
protects the person from unwarranted government intrusions
into a dwelling or other private places.... Liberty presumes
an autonomy of self that includes freedom of thought, belief,
expression, and certain intimate conduct.). But this broad
language does not constitute the careful[ ] formulation of
the interest at stake in this case and cannot, under Supreme
Court precedent, be transmuted into the new fundamental
right claimed by Log Cabin. Glucksberg, 521 U.S. at 722,
726, 117 S.Ct. 2258. In the end, careful application of the
Supreme Court's established method in substantive due
process cases shows that Lawrence did not establish any
fundamental rightlet alone any right relevant to the Don't
Ask, Don't Tell policy in the military.
D
Because Lawrence does not change the scrutiny applicable to
policies regarding personnel decisions in the military, section
654 should have been upheld if it was rationally related
to legitimate government interests. Glucksberg, 521 U.S. at
728, 117 S.Ct. 2258. When enacting section 654, Congress
put forth the legitimate interests of military capability and
success (among others), see, e.g., 10 U.S.C. 654(a)(6)-
(7), (13)-(15), and Congress could have rationally concluded
that the statute served those interests, as reflected in the
considerable evidence before it, see Philips, 106 F.3d at
142223; Thomasson, 80 F.3d at 92223. If we had been able
to reach the merits in this case, I would have been obliged to
vote to reverse.
2
III
[J]udicial self-restraint requires federal courts to exercise
the utmost care whenever we are asked to break new ground
in the field of substantive due process. Flores, 507 U.S. at
302, 113 S.Ct. 1439 (internal quotation marks omitted). This
note of caution is especially important in cases such as this
one, where moral and personal passions run high and where
there is great risk that the liberty protected by the Due
Process Clause [will] be subtly transformed into the policy
preferences of unelected judges. Glucksberg, 521 U.S. at
720, 117 S.Ct. 2258. The Constitution entrusts to public
debate and legislative action the task of identifying and
protecting rights that are not rooted in our constitutional text,
history, or traditions. Id. This case involves precisely such a
right, and legislative action achieved the goals pursued in this
lawsuit. That was the proper resolution: although Log Cabin
had every right to bring this suit, only Congressnot the
courtshad the authority under our Constitution to vindicate
Log Cabin's efforts here.
*10 In this highly charged area, we constitutionally inferior
courts should be careful to apply established law. Failure
to do so begets the very errors that plagued this case. That
failure culminated in a ruling that invalidated a considered
congressional policy and imposed a wholly novel view
of constitutional liberty on the entire United States. The
Supreme Court's cases tell us to exercise greater care, caution,
and humility than that. Indeed, our constitutional system
demands more respect than that. When judges sacrifice the
rule of law to find rights they favor, I fear the people may
one day find that their new rights, once proclaimed so boldly,
have disappeared because there is no longer a rule of law to
protect them.
1
In light of our disposition, we deny the United States'
Suggestion of Mootness and Motion to Vacate the
District Court Judgment filed September 20, 2011.
1
As relevant, section 654 provided:
A member of the armed forces shall be separated
from the armed forces under regulations prescribed
by the Secretary of Defense if one or more of
the following findings is made and approved
in accordance with procedures set forth in such
regulations:
A-977
(1) That the member has engaged in, attempted
to engage in, or solicited another to engage in a
homosexual act or acts unless there are further
findings, made and approved in accordance with
procedures set forth in such regulations, that the
member has demonstrated that
(A) such conduct is a departure from the member's
usual and customary behavior;
(B) such conduct, under all the circumstances, is
unlikely to recur;
(C) such conduct was not accomplished by use of
force, coercion, or intimidation;
(D) under the particular circumstances of the case,
the member's continued presence in the armed
forces is consistent with the interests of the armed
forces in proper discipline, good order, and morale;
and
(E) the member does not have a propensity or
intent to engage in homosexual acts.
(2) That the member has stated that he or she
is a homosexual or bisexual, or words to that
effect, unless there is a further finding, made
and approved in accordance with procedures set
forth in the regulations, that the member has
demonstrated that he or she is not a person who
engages in, attempts to engage in, has a propensity
to engage in, or intends to engage in homosexual
acts.
(3) That the member has married or attempted to
marry a person known to be of the same biological
sex.
10 U.S.C. 654(b).
2
So too for the district court's holding that Don't Ask,
Don't Tell on its face violates the First Amendment. I
do not address this ruling at length because it was little
more than a follow-on to the district court's due process
ruling. The district court's substantive due process
analysis focused on section 654(b)(1), which concerns
homosexual acts, whereas its First Amendment analysis
looked to section 654(b)(2), which concerns statements
made by service members. The district court concluded
that if the acts prong in section 654(b)(1) violates
substantive due process, then the limitation on speech
in section 654(b)(2) necessarily fails as well under
the First Amendment because that provision limits
speech in support of an unconstitutional objective. 716
F.Supp.2d at 926. As already explained, in my view
the substantive due process challenge could not have
succeeded here.
Moreover, the district court's ruling squarely
conflicted with our own decision just fourteen years
ago in Holmes v. California Army NationalGuard,
which rejected the argument that section 654(b)
(2) violates the First Amendment. 124 F.3d 1126,
1136 (9th Cir.1997). The district court believed that
Holmes's foundations ... all have been undermined
by Lawrence, 716 F.Supp.2d at 926, even though
Lawrence did not involve the First Amendment and
did not even transform the doctrine it did involve
(due process). Lawrence could hardly be taken to
undermine the established principle that the First
Amendment does not prohibit the use of speech
as evidence of the facts admitted. See Holmes,
124 F.3d at 1136. Because section 654(b)(1) has
a plainly legitimate sweep, section 654(b)(2) may
constitutionally be used to identify those within
that sweep. See Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 n. 6, 128 S.Ct.
1184, 170 L.Ed.2d 151 (2008) (First Amendment
facial challenge requires a showing that a substantial
number of [the challenged statute's] applications are
unconstitutional, judged in relation to the statute's
plainly legitimate sweep) (internal quotation marks
omitted).
Parallel Citations
11 Cal. Daily Op. Serv. 12,451, 2011 Daily Journal D.A.R.
14,795
End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works.
A-978

Exhibit B
A-979
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. No: 2:11-CV-01267-SVW (JCGx) Date September 28, 2011
Title Handi Lui, et al. V. Eric H. Holder, U.S. Attorney General, et al.
1
As Intervenor notes, in February of this year, the Department of Justice decided to forego
defending the constitutionality of DOMA. Accordingly, Defendants filed an Opposition to Intervenors
Motion to Dismiss in order to argue that Section 3 of DOMA is unconstitutional.
:
Initials of Preparer PMC
CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 5
Present: The Honorable STEPHEN V. WILSON, U.S. DISTRICT JUDGE
Paul M. Cruz N/A
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
N/A N/A
Proceedings: IN CHAMBERS ORDER re DEFENDANTS PARTIAL MOTION TO
DISMISS; INTERVENOR'S MOTION TO DISMISS [18] [19]
I. INTRODUCTION
Plaintiffs Hamdi Lui (Lui) and Michael Ernest Roberts,(Roberts) (collectively Plaintiffs)
bring this suit challenging Defendants denial of Roberts Form I-130 Petition (the Petition). Roberts
filed the Petition on behalf of Lui, seeking to classify Lui as an immediate relative in order for Lui to
gain lawful permanent resident status in the United States. See 8 C.F.R. 204.1(a). Plaintiffs challenge
the denial of the Petition on two grounds. First, Plaintiffs claim that the denial of the Petition violates
the Immigration and Nationaity Acts (INA) anti-discrimination provision based on alleged sex
discrimination. (Compl., 8, 32, 35). Second, Plaintiffs challenge the constitutionality of the denial of
the Petition as a result of the United States Citizenship and Immigration Services (USCIS)
interpretation of the Defense of Marriage Act (DOMA) Pub. L. No. 104-199, 110 Stat. 2419 (1996),
codified at 1 U.S.C. 7.
On June 17, 2011 Defendants filed their Partial Motion to Dismiss, which focuses solely on the
INA sex discrimination claim. On the same day, Intervenor the Bipartisan Legal Advisory Group for
the U.S. House of Representatives (Intervernor) filed its Motion to Dismiss, which focuses solely on
Plaintiffs constitutional challenge to Section 3 of DOMA. Plaintiffs and Defendants filed separate
Oppositions to Intervenors Motion to Dismiss.
1

Case 2:11-cv-01267-SVW -JCG Document 38 Filed 09/28/11 Page 1 of 5 Page ID #:692 Case 1:10-cv-08435-BSJ-JCF Document 91-2 Filed 10/20/11 Page 2 of 6
A-980
:
II. BACKGROUND FACTS
Plaintiff Lui is a native and citizen of Indonesia. Plaintiff Roberts is a U.S. Citizen. Plaintiffs,
same-sex couple, were legally married under the laws of Massachusetts on April 9, 2009. On the same
day, Plaintiff Roberts filed the Petition on behalf of Plaintiff Lui with the USCIS California Service
Center. (Id. 28). On August 28, 2009, Plaintiffs Petition was denied. On January 20, 2011, the BIA
dismissed Plaintiffs appeal of the I-130 Petition Denial.
Plaintiffs claim that Defendants refusal to grant the Petition on the basis of Plaintiffs same-sex
marriage constitutes sex discrimination in violation of the INAs anti-discrimination provision, 8
U.S.C. 1152(a)(1)(A). (Compl. 8). Plaintiffs further contend that Defendants application of
DOMAs definition of marriage in making the determination that a same-sex spouse is not an
immediate relative for I-130 petition purposes violated their constitutional due process and equal
protection rights. (Id. 5, 18).
III. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the claims stated in
the complaint. See Fed. R. Civ. Proc. 12(b)(6). To survive a motion to dismiss, the plaintiffs complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face. Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Id. A complaint that offers mere labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do. Id.; see also Moss v. U.S. Secret Service, 572
F.3d 962, 969 (9th Cir. 2009) (Citing Iqbal, 129 S. Ct. at 1951).
In reviewing a Rule 12(b)(6) motion, the Court must accept all allegations of material fact as true
and construe the allegations in the light most favorable to the nonmoving party. Daniel v. County of
Santa Barbara, 288 F.3d 375, 380 (9th Cir. 2002). While a court does not need to accept a pleader's
legal conclusions as true, the court reviews the complaint, accepting all factual allegations as true, and
drawing all reasonable inferences in favor of the nonmoving party. Knievel v. ESPN, 393 F.3d 1068,
1072 (9th Cir. 2005).
The court may grant a plaintiff leave to amend a deficient claim "when justice so requires." Fed.
R. Civ. P. 15(a)(2). "Five factors are frequently used to assess the propriety of a motion for leave to
amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4)
futility of amendment; and (5) whether plaintiff has previously amended his Complaint." Allen v. City
of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (Citing Ascon Properties, Inc. v. Mobil Oil Co., 866
A-981
2
As Intervenor notes, eleven federal circuits have held that homosexuals are not a suspect class.
See Cook v. Gates, 528 F.3d 42, 61-62 (1st Cir. 2008), cert. denied, Pietrangelo v. Gates, 129 S. Ct.
2763 (2009); Citizens for Equal Prot., v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Lofton v. Sec. of
Dept. of Children & Fam. Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004), cert. denied, 543 U.S.
1081 (2005); Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir.
1997); Holmes v. Cal. Army Nat'l Guard, 124 F.3d 1126 (9th Cir. 1997); Richenberg v. Perry, 97 F.3d
256 (7th Cir. 1996); Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996); Steffan v. Perry, 41 F.3d 677
(D.C. Cir. 1994); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989); Woodward v. United States, 871
F.2d 1068 (Fed. Cir. 1989); Town of Ball v. Rapides Parish Police Jury, 746 F.2d 1049 (5th Cir. 1984);
Rich v. Sec'y of the Army, 735 F.2d 1220 (10th Cir. 1984); see also Able v. United States, 155 F.3d 628,
632 (2d Cir. 1998) (not applying heightened scrutiny).
:
F.2d 1149, 1160 (9th Cir. 1989)).
Where a motion to dismiss is granted, leave to amend should be granted unless the court
determines that the allegation of other facts consistent with the challenged pleading could not possibly
cure the deficiency. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th
Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.
1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See
Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.
IV. DISCUSSION
The gravamen of Plaintiffs complaint is that Roberts Petition was improperly rejected
because Lui, as Roberts same-sex spouse, qualifies as an immediate relative under the INA.
Defendants maintain that the USCIS and the BIA do not engage in impermissible sex discrimination
under the INA when they refuse to grant an I-130 petition under these circumstances. The Court finds
that this proposition is well settled under Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), which also
involved an I-130 immediate relative petition filed by a party to a same-sex marriage. See Adams, 673
F.2d at 1036 (holding that the agencys interpretation of marriage in the INA, 8. U.S.C. 1151(b), as
excluding same-sex couples did not violate plaintiffs due process or equal protection rights under
rational basis review).
2
Furthermore, Plaintiffs have failed to assert any facts to suggest the Defendants
discriminated against them on the basis of their sex, as opposed to their sexual orientation. Accordingly,
the Court GRANTS Defendants Partial Motion to Dismiss without prejudice.
As noted above, USCIS relied on the definitions of marriage and spouse contained in Section 3
of DOMA in denying Plaintiffs Petition. In this instance, Defendants walk a fine line, on the one hand
A-982
3
In addition to Adams, Intervenor argues that Baker v. Nelson, 409 U.S. 810 (1972) controls. In
Baker, plaintiffs, a same-sex couple, appealed a decision of the Minnesota Supreme Court affirming
rejecting a constitutional challenge to the rejection of their application for a Minnesota marriage license.
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), affd, 409 U.S. 810 (1972). The Supreme Court
unanimously dismissed plaintiffs appeal for want of a substantial federal question. The Court need
not determine the effect of a summary disposition of the Supreme Court because we are bound to follow
the Ninth Circuits decision in Adams.
4
See also, High-Tech Gays v. Def. Indus. Sec. Clearance Ofc., 895 F.2d 563, 571 (9th Cir. 1990)
(rejecting the argument that homosexuality should be added to the list of suspect or quasi-suspect
classifications requiring strict or heightened scrutiny).
5
The Court in Adams noted that Congress has almost plenary power to admit or exclude aliens,
and that, as a result, the decisions of Congress [in the immigration context] are subject only to limited
judicial review. Adams, 673 F.2d at 1041. While the Court noted that, pursuant to its plenary power in
the immigration context, Congress may enact statues which, if applied to citizens, would be
unconstitutional, the Court ultimately upheld the exclusion of same-sex couples from the definition of
marriage under the INA under rational basis review, as opposed to some lesser standard of review. Id.
at 1042.
6
The Court is aware of a similar case recently heard by District Judge R.Gary Klausner. See
Torres-Barragan v. Holder, No. 2:09-cv-08564-RGK-MLG (C.D. Cal. April 30, 2010) (ECF No. 24)
appeal docketed, No. 10-55768 (9th Cir.). The only substantive difference between Torres-Barragan
and the instant action is that Torres-Barragan arose prior to the Department of Justices change in
:
arguing in their Partial Motion to Dismiss that they did not violate the INA by discriminating against
Plaintiffs on the basis of their same-sex marriage while simultaneously arguing that Section 3 of
DOMA, which excludes same-sex couples from the definitions of marriage and spouse for purposes of
federal law, violates equal protection.
To the extent that Plaintiffs Challenge Section 3 of DOMA on equal protection grounds, that
issue has been decided by Adams.
3
673 F.2d at 1041.
4
In Adams, the Ninth Circuit held that
Congress's decision to confer spouse status . . . only upon the parties to heterosexual marriages has a
rational basis and therefore comports with the due process clause and its equal protection
requirements.
5
Id. at 1042. The fact that DOMA was enacted years after the Ninth Circuits decision
in Adams is not persuasive given that marriage as defined in Section 3 of DOMA is consistent with
Adams. While Plaintiffs and Defendants point out the alleged deficiencies in the reasoning in
Adams, this Court is not in a position to decline to follow Adams or critique its reasoning simply
because Plaintiffs and Defendants believe that Adams is poorly reasoned.
6
Furthermore, as Intervenor
A-983
policy.
7
The Court is aware of the District of Massachusetts decision in Gill v. OPM, 699 F. Supp. 2d
374 (D. Mass. 2010) appeal docketed, No. 10-2204 (1st Cir.), in which the court held that Section 3 of
DOMA violates equal protection under rational basis review. The Court notes that the plaintiffs in Gill
were spouses of federal employees who brought suit on the basis of denial of certain federal marriage-
based benefits, thus the context of that case was somewhat different from the present case, which arose
in the context of immigration law. More importantly, the courts decision in Gill does not affect this
Courts obligation to follow binding Ninth Circuit precedent.
:
argues, the
prerogative to overturn Ninth Circuit precedent rests not with this District Court, but with the en banc
Ninth Circuit and the Supreme Court. See Twentieth Century Fox Film Corp. v. Entmt Distrib., 429
F.3d 869, 877 (9th Cir. 2005) (citing Palmer v. Sanderson, 9 F.3d 1433, 1437 n.5 (9th Cir. 1993) (As a
general rule, a panel not sitting en banc may not overturn circuit precedent.). The Court feels bound by
Ninth Circuit precedent, and believes that those precedents are sufficiently clear.
7

V. CONCLUSION
For the reasons set forth in this Order, Defendants Partial Motion to Dismiss and Intervenors
Motion to Dismiss are hereby GRANTED without prejudice.

.
A-984
Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 1 of 26
A-985
A-986
A-987
A-988
A-989
A-990
A-991
A-992
A-993
A-994
A-995
A-996
A-997
A-998
A-999
A-1000
A-1001
A-1002
A-1003
A-1004
A-1005
A-1006
A-1007
A-1008
A-1009
A-1010
------------------------------------------------------------)(
Plaintiff,
-against-
Defendant.
-----------------------------------------------------------)(
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: ____ --:---
b{?/11-- DATE FILED:
10 CIVIL 8435 (BSJ)
JUDGMENT
/ 1 ~ or;., 1'3
Plaintiff having moved for summary judgment; Defendant-Intervenor having moved to
dismiss, and the matter having come before the Honorable Barbara S. Jones, United States District
Judge, and the Court, on June 6, 2012, having rendered its Order granting Plaintiffs motion for
summary judgment, denying Defendant-Intervenor's motion to dismiss, declaring that section 3 of
the Defense of Marriage Act, 1 U.S.C. 7, is unconstitutional as applied to Plaintiff, awarding
Plaintiff judgment in the amount of$363,053.00, plus interest and costs allowed by law with each
party to bear their own costs and fees, it is,
ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the
Court's Order dated June 6, 2012, Plaintiffs motion for summary judgment is granted and
Defendant-Intervenor's motion to dismiss is denied; the Court declares that section 3 ofthe Defense
of Marriage Act, 1 U.S.C. 7, is unconstitutional as applied to Plaintiff; Plaintiff is awarded
judgment in the amount of$363,053.00, plus interest and costs allowed by law; each party shall bear
their own costs and fees; accordingly, the case is closed.
Dated: New York, New York
June 7, 2012
THIS DC'CUME1'j 1 WAS ENTERED
ON THE DOCKET ON----
BY:
RUBY J. KRAJICK
Clerk of Court
Deputy Clerk
A-1011
FOR THE SOUTHERN DISTRICT OF NEW YORK

__________________________________________
)
EDITH SCHLAIN WINDSOR, in her capacity as )
executor of the estate of THEA CLARA SPYER, )
)
Plaintiff, )
)
v. ) No. 10-CV-8435 (BSJ)(JCF)
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
__________________________________________)

NOTICE OF APPEAL OF INTERVENOR-DEFENDANT
THE BIPARTISAN LEGAL ADVISORY GROUP
OF THE U.S. HOUSE OF REPRESENTATIVES

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of
Representatives (House) hereby appeals to the U.S. Court of Appeals for the Second Circuit
the District Courts Order (June 6, 2012) (ECF No. 93), and Judgment (June 7, 2012) (ECF No.
94), both insofar as they grant plaintiffs [ . . . ] Motion for Summary Judgment (June 24, 2011)
(ECF No. 28) and deny the [House]s Motion to Dismiss (Aug. 1, 2011) (ECF No. 52). Copies
of the Order and Judgment are attached as Exhibits A and B, respectively.
The statutory basis for this appeal is 28 U.S.C. 1291. The House is exempt from the
filing fee requirement for this appeal. See 28 U.S.C. 1913; Judicial Conference of the United
States, Court of Appeals Miscellaneous Fee Schedule, available at
http://www.uscourts.gov/FormsAndFees/Fees/CourtOfAppealsMiscellaneousFeeSchedule.aspx.
A-1012
2

/s/ Paul D. Clement
Paul D. Clement
1

H. Christopher Bartolomucci
Conor B. Dugan
Nicholas J. Nelson

BANCROFT PLLC
1919 M Street, N.W., Suite 470
Telephone: (202) 234-0090
Facsimile: (202) 234-2806

Counsel for Intervenor-Defendant the Bipartisan
Legal Advisory Group of the U.S. House of
Representatives
2

OF COUNSEL:

Kerry W. Kircher, General Counsel
William Pittard, Deputy General Counsel
Christine Davenport, Senior Assistant Counsel
Todd B. Tatelman, Assistant Counsel
Mary Beth Walker, Assistant Counsel

OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
219 Cannon House Office Building
Telephone: (202) 225-9700
Facsimile: (202) 226-1360

June 8, 2012

1
Kerry W. Kircher, as the ECF filer of this document, attests that concurrence in the
filing of the document has been obtained from signatory Paul D. Clement.

2
The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters,
is currently comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable
Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable
Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The
Democratic Leader and Democratic Whip decline to support the filing of this Notice of Appeal.
A-1013


I certify that on June 8, 2011, I served one copy of the foregoing Notice of Appeal of
Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives
by CM/ECF and by electronic mail (.pdf format) on the following:
Roberta A. Kaplan, Esq.
Andrew J. Ehrlich, Esq.
New York City, NY 10019-6064
rkaplan@paulweiss.com; aehrlich@paulweiss.com

Alexis B. Karteron, Esq.
Arthur N. Eisenberg, Esq.
NEW YORK CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, Nineteenth Floor
New York City, NY 10004
akarteron@nyclu.org; arteisenberg@nyclu.org

James D. Esseks, Esq,
Melissa Goodman, Esq.
Rose A. Saxe, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street
jesseks@aclu.org; mgoodman@nyclu.org; rsaxe@aclu.org

Jean Lin, Esq.
UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION
20 Massachusetts Avenue, N.W., Seventh Floor
Washington, DC 20530
jean.lin@usdoj.gov

Simon Heller, Esq.
STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL
120 Broadway
simon.heller@ag.ny.gov

/s/ Kerry W. Kircher
Kerry W. Kircher
A-1014
Exhibit A

A-1015
Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 1 of 26 Case 1:10-cv-08435-BSJ-JCF Document 95-1 Filed 06/08/12 Page 2 of 27
A-1016
A-1017
A-1018
A-1019
A-1020
A-1021
A-1022
A-1023
A-1024
A-1025
A-1026
A-1027
A-1028
A-1029
A-1030
A-1031
A-1032
A-1033
A-1034
A-1035
A-1036
A-1037
A-1038
A-1039
A-1040
A-1041
Exhibit B
A-1042
------------------------------------------------------------)(
Plaintiff,
-against-
Defendant.
-----------------------------------------------------------)(
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: ____ --:---
b{?/11-- DATE FILED:
10 CIVIL 8435 (BSJ)
JUDGMENT
/ 1 ~ or;., 1'3
Plaintiff having moved for summary judgment; Defendant-Intervenor having moved to
dismiss, and the matter having come before the Honorable Barbara S. Jones, United States District
Judge, and the Court, on June 6, 2012, having rendered its Order granting Plaintiffs motion for
summary judgment, denying Defendant-Intervenor's motion to dismiss, declaring that section 3 of
the Defense of Marriage Act, 1 U.S.C. 7, is unconstitutional as applied to Plaintiff, awarding
Plaintiff judgment in the amount of$363,053.00, plus interest and costs allowed by law with each
party to bear their own costs and fees, it is,
ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the
Court's Order dated June 6, 2012, Plaintiffs motion for summary judgment is granted and
Defendant-Intervenor's motion to dismiss is denied; the Court declares that section 3 ofthe Defense
of Marriage Act, 1 U.S.C. 7, is unconstitutional as applied to Plaintiff; Plaintiff is awarded
judgment in the amount of$363,053.00, plus interest and costs allowed by law; each party shall bear
their own costs and fees; accordingly, the case is closed.
Dated: New York, New York
June 7, 2012
THIS DC'CUME1'j 1 WAS ENTERED
ON THE DOCKET ON----
BY:
RUBY J. KRAJICK
Clerk of Court
Deputy Clerk
A-1043

)
EDITH SCHLAIN WINDSOR, et al., )
)
Plaintiff, )
v. ) Civil Action No. 10-CV-8435 (BSJ)(JCF)
)
THE UNITED STATES OF AMERICA, ) ECF CASE
)
Defendant. )
)
NOTICE OF APPEAL
TO THE CLERK OF THIS COURT AND ALL PARTIES OF RECORD:
NOTICE IS HEREBY GIVEN that Defendant the United States of America hereby
appeals to the United States Court of Appeals for the Second Circuit from the Judgment dated
June 7, 2012 [ECF No. 94] and the underlying Order dated June 6, 2012 [ECF No. 93].
Dated this 14th day of June, 2012.
Dated: June 14, 2012 Respectfully submitted,
STUART F. DELERY
Acting Assistant Attorney General
ARTHUR R. GOLDBERG
Assistant Branch Director
/s/ Jean Lin
JEAN LIN (NY Bar No. 4074530)
Senior Trial Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
A-1044
A-1045
A-1046
Pages A-1049 through A-1076 have been removed intentionally.
1 285 AVENUE OF THE AMERI CAS
NEW YORK, NEW YORK 1 OO 1 9- 6064
TELEPHONE ( 2 1 2 ) 3 7 3 3 000
LLOYD K GARRI SON ( 1946- 1991)
RANDOLPH E PAUL ( 1946- 1956)
SI MON H RI FKI ND ( 1950- 1995)
LOUI S S WEI SS ( 1927- 1950)
JOHN F WHARTON ( 1927- 1977)
WRI TER S DI RECT DI AL NUMBER
WRI TER' S DI RECT FACSI MI LE
(212)373-3086
WRI TER' S DIRECT E-MAI L ADDRESS
(212)373-2818
UNI T 3 6 0 1 , FORTUNE PLAZA OFFI CE TOWER A
NO 7 DONG SANHUAN ZHONGLU
CHAO YANG DI STRI CT
BEI JI NG 100020
PEOPLE' S REPUBLI C OF CHI NA
TELEPHONE ( 86- 1 O) 5 8 2 8 - 63 00
12TH FLOOR, HONG KONG CLUB BUI LDI NG
3A CHATER ROAD, CENTRAL
HONG KONG
TELEPHONE (852) 2846- 0300
ALDER CASTLE
l O NOBLE STREET
L ONDONE C2 V 7 J U U K
TELEPHONE ( 44 20) 7 3 67 1 600
FUKOKU SEI MEI BUI LDI NG
2 2 UCHI SAI WAI CHO 2-CHOME
CHI YODA-KU TOKYO IOO-OOI 1 , JAPAN
TELEPHONE ( 81 3 ) 3 5 9 7 - 8 1 0 1
TORONTO- DOMI NI ON CENTRE
77 KI NG STREET WEST, SUI TE 3 1 OO
PO BOX 2 2 6
TORONTO, ONTARI O M5K 1J3
TELEPHONE (4 16) 5 04- 05 2 0
2001 K STREET NW
WASHI NGTON, DC 2 0006- 1 047
TELEPHONE ( 202) 2 2 3 7 3 0 0
5 00 DELAWARE AVENUE SUI TE 2 0 0
POST OFFI CE BOX 32
WI LMI NGTON DE 1 98 99- 003 2
TELEPHONE ( 302) 65 5 - 441 0
MATTHEW W ABBOTT
AL L AN J ARFFA
ROBERTA ATKI NS
DAVI D J BALL
JOHN F BAUGHMAN
LYNN B BAYARD
DANI EL J SELLER
CRAI G A BENSON*
MI TCHELL L BERG
MARK S BERGMAN
BRUCE BI RENBOI M
H CHRI STOPHER BOEHN1NG
ANGELO BONV1NO
HENK BRANDS
JAMES L BROCH1N
RI CHARD J BRONSTEI N
DAVI D W BROWN
SUSANNA M BUERGEL
PATRI CKS CAMPBELL*
JEANETTE K CHAN
YVONNE Y F CHAN
LEWI S R CLAYTON
JAY COHEN
KELLEY A CORNI SH
CHRI STOPHER J CUMMI NGS
CHARLES E DAVI DOW
DOUGLAS R DAVI S
THOMAS V DE LA BASTI DE III
ARI EL J DECKELBAUM
JAMES M DUBI N
ALI CE BELI SLE EATON
ANDREW J EHRLI CH
GREGORY A E2RI NG
LESLI E GORDON FAGEN
MARC FALCONE
ANDREW C FI NCH
BRAD J FI NKELSTEI N
ROBERTO FI NZI
PETER E FI SCH
ROBERT C FLEDER
MARTI N FLUMENBAUM
ANDREW J FOLEY
HARRI S B FREI DUS
MANUEL S FREY
KENNETH A GALLO
MI CHAEL E GERTZMAN
PAUL D GI NSBERG
ADAM M GI VERTZ
ROBERT D GOLDBAUM
NEI L GOLDMAN
ERI CS GOLDSTEI N
ERIC GOODISON
CHARLES H GOOGE, JR
ANDREW G GORDON
NI CHOLAS GROOMBRI DGE
BRUCE A GUTENPLAN
GAI NES GWATHMEY, III
AL AN S HALPERI N
CLAUDI A HAMMERMAN
GERARD E HARPER
BRI AN S HERMANN
ROBERT M HI RSH
MI CHELE HI RSHMAN
JOYCES HUANG
DAVI D S HUNTI NGTON
MEREDI TH J KANE
ROBERTA A KAPLAN
BRAD S KARP
J OHN C KENNEDY
ALAN W KORNBERG
DANI EL J KRAMER
DAVI D K LAKHDHI R
STEPHEN P LAMB*
JOHN E LANGE
DANI EL J LEFFELL
XIAOYU GREG LI U
JEFFREY D MARELL
MARCO V MASOTTI
EDWI N S MAYNARD
DAVI D W MAYO
ELI ZABETH R MCCOLM
MARK F MENDELSOHN
TOBY S MYERSON
JOHN E NATHAN
CATHERI NE NYARADY
J OHN J O' NEI L
ALEXYOUNG K OH
BRAD R OKUN
KELLEY D PARKER
ROBERT P PARKER*
MARC E PERLMUTTER
MARK F POMERANTZ
VALERI E E RADWANER
CARL L REI SNER
WALTER G RI CCI ARDI
WALTER RI EMAN
RI CHARD A ROSEN
ANDREW N ROSENBERG
PETER J ROTHENBERG
JACQUELI NE P RUBI N
RAPHAEL M RUSSO
JEFFREY D SAFERSTEI N
JEFFREY B SAMUELS
DALE M SARRO
TERRY E SCHI MEK
KENNETH M SCHNEI DER
ROBERT B SCHUMER
JAMES H SCHWAB
J OHN M SCOTT
STEPHEN J SHI MSHAK
DAVI D R S1CULAR
MOSES SI LVERMAN
STEVEN SI MKI N
JOSEPH J SI MONS
MARI LYN SOBEL
AUDRA J SOLOWAY
TARUN M STEWART
ERIC ALAN STONE
AI DAN SYNNOTT
ROBYN F TARNOFSKY
MONI CA K THURMOND
DANI EL J TOAL
MARK A UNDERBERG
LI ZA M VELAZQUEZ
MARI A T VULLO
LAWRENCE G WEE
THEODORE V WELLS JR
BETH A WI LKI NSON
STEVEN J WI LLI AMS
LAWRENCE I WI TDORCHI C
MARK B WLAZLO
JULI A TM WOOD
JORDAN E YARETT
KAYE N YOSHI NO
TONG YU
TRACEYA ZACCONE
T ROBERT ZOCHOWSKI JR
*NOT ADMITTED TO THE NEW YORK BAR
August 17,2011
BY HAND
Judge Barbara S. Jones
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007
Windsor v. United States, 10 Civ. 8435 (BSJ) (JCF)
Dear Judge Jones:
We write on behalf of the plaintiff, Edith Schlain Windsor, in the above-
captioned matter with respect to the Court's Order dated August 15, 2011 (the "August
15 Order").
In connection with Your Honor's consideration of Plaintiffs motion to
strike, filed on August 10, 2011, enclosed please find what we believe to be true and
correct copies of the 12 documents referenced by Defendant-Intervenor, the Bipartisan
Legal Advisory Group of the House of Representatives ("BLAG"), in opposition to
A-1077
Hon. Barbara S. Jones
Plaintiffs motion for summary judgment that are also the subject of Plaintiff s motion to
strike.
As we previously mentioned, we did not receive these materials in
discovery and they were not attached to BLAG's papers in opposition to Plaintiffs
motion for summary judgment.
1
Thus, we obtained most of these materials either by
searching the internet for them or by obtaining them from sources like amazon.com. As a
result, we apologize in advance if we have made any errors. Nevertheless, we believe
that the Court should have copies in order to facilitate its resolution of the pending
motion to strike.
Finally, while as the Court can imagine, we are loathe to raise this issue,
we note that in our letter to the Court dated August 11, 2011, we requested permission to
file a reply brief in connection with our motion for summary judgment of up to thirty (30)
pages. In the August 15 Order, however, Your Honor indicated that "Plaintiffs request to
file a reply in support of her motion for summary judgment of up to 25 pages will be
decided along with the Court's resolution of the motion to strike." Although we were not
sure whether this numerical disparity was intentional or not, we of course will comply
with whatever page limitation is ultimately ordered by the Court.
-fedrnf^^
Roberta A. Kaplan
End.
cc: James D. Esseks, Esq.
H. Christopher Bartolomucci, Esq.
Jean Lin, Esq.
i
As discussed in Plaintiffs motion to strike and related correspondence with the
Court, four of the documents Plaintiff seeks to strike were used by BLAG at the
depositions of Plaintiff s expert witnesses. (App. Entries 4, 5, 6, & 11.)
A-1078

Appendix
References to Documents in BLAGs 56.1 Statement and Opposition to Plaintiffs Motion for Summary Judgment
That Plaintiff Seeks to Strike
Entry
Location
of Citation
Material Cited
Proposition BLAG
Attempts to Support
References in
Plaintiffs
Expert Reports
References at
Depositions
1 BLAG 56.1
33, 39,
50, 51, 54,
55, 57; SJ
Br. at 10
Lisa M. Diamond, New Paradigms for
Research on Heterosexual and Sexual
Minority Development, 32 J. Clinical
Child and Adolescent Psychol. 492
(2003).
Sexual orientation is not
immutable; change in sexual
orientation occurs with
some frequency
None None
2 BLAG 56.1
33, 39,
50, 51, 54,
55, 57; SJ
Br. at 11
12
Lisa M. Diamond & Ritch C. Savin-
Williams, Explaining Diversity in the
Development of Same-Sex Sexuality
Among Young Women, 56 J. Soc. Issues
297, 301 (2000).
some frequency
None None
3 BLAG 56.1
33, 39,
50, 51, 54,
55, 57; SJ
Br. at 12
Nigel Dickson, et al., Same Sex
Attracting in a Birth Cohort: Prevalence
and Persistence in Early Adulthood, 56
Soc. Sci. & Med. 1607, 161213 (2003).
some frequency
None None
4 BLAG 56.1
40, 41,
42, 43, 44,
45, 46, 48;
SJ Br. at 23
Susan Golombok and Fiona Tasker,
Gay Fathers, The Role of The Father in
Child Development (2010).
Homosexual parenting
studies are flawed; cited to
dispute Plaintiffs assertions
that same-sex parents are not
as effective as straight
Lamb Aff. at
Ex. B.
Lamb Dep.
75:978:24.
A-1079

A-2
parents
5 BLAG 56.1
40, 41,
42, 43, 44,
45, 46, 48;
SJ Br. at 23
Jennifer L. Wainright and Charlotte J.
Patterson, Delinquency, Victimization,
And Substance Use Among Adolescents
With Female Same-Sex Parents, 20 J.
Family Psych. 526 (2006).
parents
Lamb Aff. at
Ex. B.
Lamb Dep.
81:1283:21.
6 BLAG 56.1
40, 41,
42, 43, 44,
45, 46, 48;
SJ Br. at
2324
Lawrence A. Kurdek, What Do We
Know About Gay And Lesbian
Couples? Current Directions in
Psychological Science (2005).
parents
Lamb Aff. at
Ex. B.
Lamb Dep.
83:2286:7.
7 BLAG 56.1
40, 41,
42, 43, 44,
45, 46, 48;
SJ Br. at 24
Ann Hulbert, The Gay Science: What Do
We Know About the Effects of Same-Sex
Parenting?, Slate.com, March 12, 2004,
http://www.slate.com/id/2097048/.
parents
None None
8 BLAG 56.1
47, 48
Linda J. Waite & Maggie Gallagher, The
Case for Marriage: Why Married People
Are Happier, Healthier, and Better Off
Financially (2000).
It is better for children to
have both male and female
parents in the home who
assume traditional gender
roles
None None
9 BLAG 56.1
47, 48
David Popenoe, Life without Father:
Compelling New Evidence That
Fatherhood and Marriage Are
Indispensable for the Good of Children
None None
A-1080

A-3
and Society (1996). roles
10 BLAG 56.1
47, 48
George W. Dent, Jr., The Defense of
Traditional Marriage, 15 J.L. & Pol. 581
(1999).
roles
None None
11 BLAG 56.1
50, 51;
SJ Br. at 11
Gregory M. Herek, et al., Demographic,
Psychological, and Social
Characteristics of Self-Identified
Lesbian, Gay, and Bisexual Adults in a
US Probability Sample, 7 Sex. Res. Soc.
Poly 176 (2010).
Immutable is not an
accurate descriptor for sexual
orientation
Peplau Aff. at
Ex. B.
Peplau Dep.
35:1338:20,
100:4101:18.
12 SJ Br. at 24 George W. Dent, Jr., No Difference?: An
Analysis of Same-Sex Parenting, ___
Ave Maria L. Rev. ___ (forthcoming
2011),
http://papers.ssrn.com/sol3/papers.cfm?a
bstract_id=1848184.
Research into gay and
lesbian parents has
limitations
None None

A-1081
A-1082
A-1083
A-1084
A-1085
A-1086
A-1087
A-1088
A-1089
A-1090
A-1091
Journal of Social Issues, Vol. 56, No. 2, 2000, pp. 297-313
Explaining Diversity in the Development of Same-Sex
Sexuality Among Young Women
Lisa M. Diamond*
University of Utah
Ritch C. Savin-Williams
Cornell University
This article summarizes findings from two ongoing studies charting the develop-
ment of 167 adolescent and young adult sexual-minority women. Results document
considerable variation in the quality, relative distribution, and context of women's
same-sex and other-sex attractions. Furthermore, contrary to conventional wis-
dom, the timing of a woman's first same-sex attractions is not systematically
related to subsequent features of sexual identity development. Rather, the quality
and context of a woman's early attractions and behavior is more important. We
argue that variability in sexual-minority and heterosexual women's development
is best explained by interactions between personal characteristics and environ-
mental contexts, and we urge future studies of the sexual-minority life course to
include women with same-sex attractions that do not identify as lesbian or
bisexual.
Models of sexual identity development typically posit a sequence of feelings,
experiences, and events through which individuals progressively realize, under-
stand, and accept a nonheterosexual (or sexual-minority) identity. Because most
of these "coming-out" models are based on men, they portray as normative a
sequence of feelings and experiences that may be entirely foreign to a sexual-
minority woman: early "precursors" such as gender atypicality or feelings of
differentness, late childhood and early adolescent same-sex attractions, lack of
Correspondence concerning this article should be addressed to Lisa M. Diamond, Department of
Psychology, University of Utah, 390 South 1530 East, Room 502, Salt Lake City, UT, 84112-0251
[e-mail: diamond@psych.utah.edu].
297
2000 The Society for the Psychological Study of Social Issues
A-1092
298 Diamond and Savin-Williams
sexual interest in the other sex, subsequent same-sex experimentation, and finally
adolescent self-labeling as lesbian, gay, or bisexual.
In fact, the developmental trajectories of most sexual-minority women violate
this "master narrative" in at least one way. Some sexual-minority women have
no childhood or adolescent recollections of same-sex attractions (Kitzinger &
Wilkinson, 1995), but assert that their same-sex attractions were triggered in adult-
hood by exposure to lesbian, gay, or bisexual ideas or individuals (Golden, 1996)
or the formation of an unusually intense emotional attachment to one particular
woman (Cassingham & O'Neil, 1999; Kitzinger & Wilkinson, 1995; Shuster,
1987). Others report abrupt changes in their sexual attractions over time (Wein-
berg, Williams, & Pryor, 1994).
Such cases run counter to the conventional view of sexual orientation as a
stable, early-appearing trait. Yet these cases have typically been considered few
in number and exceptional in natureunwanted noise in the "data" of normative
sexual identity development. The results of our intensive investigations of adoles-
cent and young adult sexual-minority women directly challenge this view
(Diamond, 1998, 2000a, 2000b; Diamond & Dube, 2000; Savin-Williams, in
press; Savin-Williams & Diamond, in press). Our findings lead us to propose that
variability in the emergence and expression of female same-sex desire during the
life course is normative rather than exceptional. In other words, the cases noted
above are not noise in the data; rather, they are the data with potentially the most to
tell us about female sexual development.
In this article we review major findings from our ongoing program of research,
integrate them with existing knowledge on female sexuality, and articulate a con-
ceptual approach to the study of female same-sex sexuality that aims to explain,
and not simply describe, the diverse developmental trajectories we have observed.
Our goal is not to replace a single model of development with an ever-increasing
number of ideosyncratic models but to highlight the conditions and processes that
produce multiple developmental trajectories. Toward this end, our main points are
as follows:
1. Because of the prevalence of nonexclusivity and fluidity in women's attrac-
tions, there is considerable variation in the quality and relative distribution of
women's same-sex and other-sex attractions as well as the context in which
these attractions are experienced.
2. The timing of a woman's first same-sex attractions does not systematically
predict their quality or exclusivity, nor does it predict the stability of her sexual
identity.
3. Variability in both sexual-minority and heterosexual women's sexual devel-
opment is best explained by interactions between personal characteristics and
environmental contexts.
A-1093
Explaining Diversity 299
Although we here emphasize women's development, the approach we advo-
cate would also enhance research on men's sexual development (Savin-Williams,
1998). Yet we believe it holds particular promise for research on women given the
prevalence of nonexclusivity and fluidity in women's attractions (Baumeister,
2000), as well as the documented tendency for social and environmental factors to
exert stronger influences on female than male sexual behavior (Udry, Talbert, &
Morris, 1986).
Sample and Methods
We here review findings from two independent, ongoing studies (for clarity,
Study A and Study B). Study A is a longitudinal study of the sexual attractions,
behaviors, and identities of 89 sexual-minority and 11 heterosexual women
who were first interviewed in 1995 when they were between the ages of 16 and
23 (Diamond, 1998). These women were reinterviewed 2 years later in 1997
(Diamond, 2000a, 2000b) and are currently undergoing a third round of interviews.
This is the first prospective study of female sexual-minority youth ever undertaken
and therefore offers a unique opportunity to observe the long-term course of sexual
identity development. Study B is an interview study of the childhood and adoles-
cent experiences of 78 female and 86 male sexual minorities between the ages of 17
and 25 (Savin-Williams, 1998, in press; Savin-Willaims & Diamond, in press).
Because this study uses a standardized, qualitative interview protocol, it permits
systematic examination of the quality and context of sexual identity milestones and
not just their timing.
Participants for both projects were recruited from similar sites: lesbian/gay/
bisexual community events and youth support groups in central New York, college
classes on gender and sexuality, campus social and political organizations, and
Internet list-serves (for more detail, see publications cited above). This wide-
ranging recruitment strategy was undertaken to ensure diversity in women's
histories of same-sex attractions and behaviors and to recruit women who decline
to identify as lesbian or bisexual but acknowledge same-sex attractions. Of the
participants in Study A, 34% identified as lesbian, 26% as bisexual, 20% as
"unlabeled" or "questioning" (collectively denoted unlabeled), and 10% as hetero-
sexual (heterosexual participants were recruited on the basis of having consciously
reflected on their sexual identity at some point in time and thus cannot be consid-
ered representative of most heterosexual women). Of the female participants in
Study B, 38% identified as lesbian, 42% as bisexual, and 20% as unlabeled. Both
samples overrepresent highly educated, middle-class White women; about 25% of
the women were working-class and 20% were women of color. A primary goal for
the ongoing expansion of both studies involves recruitment of greater numbers of
ethnic-minority and working-class women.
A-1094
The interview questions for both studies were modeled on those represented in
existing survey and interview data on sexual identity development (Golden, 1996;
Rust, 1992, 1993; Savin-Williams, 1998; Weinberg et al., 1994). Topics included
childhood experiences such as gender atypicality and feelings of differentness,
early sexual and emotional attractions, sexual and romantic relationship history,
and antecedents and processes of sexual questioning (for more details, see publica-
tions cited above).
Will the Real Sexual Minorities Please Stand Up?
Studying Bisexual and Unlabeled Women
Both studies include notable proportions of bisexual and unlabeled women,
who have been traditionally underrepresented in research on sexual minorities. In
fact, many researchers intentionally exclude such individuals from their samples
because they are difficult to categorize. As a journal reviewer for one of our recent
manuscripts queried, "How can you be sure of their true sexual orientation? It
would make for a cleaner study if you took them out."
The implicit assumption is that openly identified lesbians are the most
prototypical group of sexual-minority women and therefore the most valid basis
for generalizations about the development of same-sex sexuality. Yet this assump-
tion is questionable. Data from a random, representative sample of American men
and women (Laumann, Gagnon, Michael & Michaels, 1994) showed that 84% of
women with same-sex attractions or behavior identify as heterosexual. Given that
research on female sexual minorities has focused exclusively on openly identified
lesbian/bisexual women, it appears that our current understanding of the female
sexual-minority life course is based on the smallest, least representative subset of
this population. In our view, any explanation of female sexual development that
does not account for the full range of sexual-minority women is no explanation at
all. For this reason, we begin with a discussion of two phenomena that critically
influence variability in women's developmental trajectories: nonexclusivity and
fluidity in women's attractions.
Nonexclusivity
Contrary to conventional wisdom, exclusive same-sex attractions are the
exception rather than the norm among sexual-minority women. Laumann et al.
(1994) found that 4.4% of American women reported experiencing same-sex
attractions, and 94% of these women were also attracted to men. In fact, nearly two
thirds were predominantly attracted to men. Similarly, two thirds of the lesbian
women in Study A reported experiencing periodic attractions to men. The prev-
alence of nonexclusivity in sexual-minority women's attractions suggests that
A-1095
other-sex attractions and relationships remain an ever-present possibility for most
sexual-minority women, a fact that creates multiple opportunities for discontinuity
and inconsistency in the female sexual-minority life course. For example, nearly
one fourth of lesbians in Study A listed a high school boyfriend as one of the stron-
gest attractions they had ever experienced, yet many of these women reported that
they no longer experienced other-sex attractions (Diamond, 1998). An altogether
different subset of lesbians (again, approximately one fourth) pursued other-sex
sexual contact between the first and second interviews (Diamond, 1998, 2000b).
Such experiences may explain why so many women in Study A changed iden-
tity labels over time. Contrary to the notion that most sexual minorities undergo a
one-time discovery of their true identities, 50% of the respondents had changed
their identity label more than once since first relinquishing their heterosexual
identity (Diamond, 2000b). Rust (1993) ably identified nonexclusive attractions as
a key factor in such transitions. She argued that women with nonexclusive
attractions may comfortably adopt a lesbian or bisexual identity, depending on
such factors as the relative intensity of their attractions, perceived prospects for
same-sex and other-sex relationships, and their social network. When one of these
factors or its importance changes, identity may change as well. It is possible that by
the time women in Study A reach late adulthood, a majority will have reconsidered
or changed their sexual-minority identity in the process of navigating the multiple
possibilities engendered by nonexclusive attractions.
What about heterosexual women? If most sexual-minority women retain a
capacity for other-sex attractions, do most heterosexual women retain a capacity
for same-sex attractions? A reliable answer to this question is elusive, given the
stigma that prevents heterosexual women from readily acknowledging same-sex
attractions, yet Laumann et al. (1994) found that 7.3% of heterosexually identified
women admitted experiencing same-sex attractions or behavior. As they noted,
sporadic same-sex attractions and fantasies among heterosexuals may never culmi-
nate in same-sex behavior or identity change. Yet in order to interpret their devel-
opmental significance, both same-sex and other-sex attractions, fantasies, and
behaviors should be routinely assessed in studies of female sexual development.
Sexual Fluidity
One of the most significant challenges to traditional notions of sexual orienta-
tion is posed by heterosexual women who report experiencing sexual desire (some-
times culminating in sexual contact) for one and only one woman, typically an
extremely close friend. Such stories are often greeted with a wink and a knowing
smile, implying a tacit understanding that there is, of course, no such thing as one
same-sex attraction. However, the experiences of several heterosexual women
interviewed for Study A suggest that unusually intense emotional bonds some-
times spill over into authentic, albeit temporary, same-sex sexual desire.
A-1096
We attribute this phenomenon to sexual fluidity, defined as a capacity for
situation dependence in some women's erotic responses. The notion that female
sexuality is more situation dependent than male sexuality has been noted by many
researchers (Dixon, 1985; Kitzinger & Wilkinson, 1995; Pillard, 1990; Shuster,
1987; Weinberg et al., 1994) and has recently been the subject of an extensive
review and theoretical treatment by Baumeister (2000). However, notions of
fluidity have not been systematically integrated into models of female sexual
identity development, perhaps because sexual fluidity is thought to pose a de facto
challenge to any systematic developmental model of same-sex sexuality. How-
ever, this is not the case: Fluid sexual responsiveness is not the same as random
sexual responsiveness. Across a wide variety of cultures and historical periods, the
situations that trigger unexpected same-sex eroticism among ostensibly hetero-
sexual women are remarkably similar, allowing for some speculation regarding the
underlying mechanisms, limiting parameters, and even evolutionary bases of
sexual fluidity (Baumeister, 2000; Diamond, 2000c).
One of the most common triggers for sexual fluidity is an intense, emotionally
intimate relationship. For example, an unlabeled participant in Study A was inter-
viewed shortly after becoming sexually involved with her best Mend: "We've
known each other since we were twelve and we've always been really affectionate,
but last Tuesday it just sort of kept going.... Right now I only have these feelings
for her, and I don't know if that'll change. I don't know if I'm a lesbian. I just know
I want to be with her, forever." One might be tempted to characterize this woman as
a budding lesbian who was not quite ready to embrace her true identity. Two years
later, however, she reported that she and her best friend had gone back to being
platonic friends. Neither one ever experienced attractions for other women, nor
could they recall prior "repressed" same-sex attractions (to their disappointment,
actually). Both continue to identify as heterosexual. Similarly, a lesbian in Study A
unexpectedly fell in love with a close male friend between the first and second
interviews, and felt this relationship was "an exception."
In our view, neither one of these women's experiences is fully interpretable
without an appreciation for nonexclusivity and fluidity in women's attractions, and
we maintain that these phenomena should be integrated into models of all women's
sexual development. Yet by blurring distinctions among lesbian, bisexual, and
heterosexual women, they make it difficult to discern exactly who we have been
(and should be) sampling in research on sexuality. How should we distinguish a
latent bisexual from a curious heterosexual? At what point in a woman's develop-
ment can we reliably sort her into one of these categories?
In truth, the answer may be "never." One of the unavoidable implications
of nonexclusivity and sexual fluidity is that no heterosexual woman can be
unequivocally assured that she will never desire same-sex contact, just as no
lesbian woman can be unequivocally assured that she will never desire other-sex
contact. Of course, not all women appear equally fluid, and the question of
A-1097
individual differences in fluidity deserves substantive attention. For now, we argue
that it is both logistically impossible and theoretically misguided to study female
same-sex sexuality by seeking out "true" sexual minorities and assessing the
process by which they came out. The notion of "true" sexual minorities presumes
categories where there may be continua, and "coming out" presumes a single out-
come where there may be several.
We advocate replacing traditional assessments of identity labels with descrip-
tive data on women's actual feelings and behaviors in different circumstances and
replacing the traditional focus on coming out with a focus on sexual questioning.
The advantage of focusing on sexual questioning is that it shifts attention to the
process, rather than the outcome, of sexual development. Unlike coming out,
sexual questioning can be initiated by any woman, can be repeated multiple times,
and might never culminate with the adoption of a lesbian or bisexual identity. The
advantage of focusing on specific experiences of same-sex attractions and behav-
ior rather than identity labels is that it broadens the scope of our investigations to
include women who do not subscribe to the set of sexual identity categories defined
by (historically male) researchers. This allows us to begin modeling not "lesbian
identity development," but female sexual development, a process that possibly
involves varying degrees of same-sex and other-sex eroticism at different points in
the life course.
Although we define the population of sexual minorities fairly broadly, we
consider their defining characteristic to be same-sex attractions. Sexual attractions
have generally been considered the most reliable indicator of an individual's
sexual orientation (Cohen, 1999; Marmor, 1980). Yet our research suggests that
accurate models of female sexual development may have to jettison traditional
assumptions about when and how same-sex attractions emerge. Specifically, the
notion that the timing of a woman's first same-sex attractions predicts the future
course of her sexuality requires substantial revision. It is this topic to which we turn
next.
First Same-Sex Attractions: What's Age Got to Do With It?
/ should probably tell you that Fm not one of those people who knew they
were gay from when they were very little. I didn't know at all until I was
20! Listen, Fm probably not a very good example of a gay person, and I
don't want to mess up your study or anything, so it's okay if you don't
want to interview me after all.
(21-year-old bisexual)
Perhaps the most common question posed to sexual minorities by friends,
family members, and social scientists is, "When were you first attracted to the same
sex?" The most common answer, especially among women, is, "When I was
A-1098
young, although I didn't interpret it that way at the time." Most studies (including
our own) find that individuals' earliest recollections of same-sex attractions take
place around age 10 (see McClintock & Herdt, 1996, for a review); importantly,
this is also the age at which heterosexual children first recall experiencing sexual
feelings (Knoth, Boyd, & Singer, 1988) and has been linked to adrenal maturation
(McClintock & Herdt, 1996).
Yet rarely are these early feelings interpreted at the time as same-sex attrac-
tions, especially among women. The respondents in Study A reported that their
first conscious same-sex attraction occurred at a mean age of 15, and they did not
consider the relevance of these feelings for sexual identity until a mean age of 16.
Once the full range of variability is taken into account, some women show
disjunctures of 10 to 20 years between their first recollected experience and their
first recollected awareness of same-sex attractions. These gaps are typically attrib-
uted to the fact that women receive more ambiguous cues of sexual arousal from
their bodies than do men and are not socialized to monitor such cues as rigorously
as are men (Baldwin & Baldwin, 1997). Nonetheless, the attractions are presumed
to be "in there" all along, and sexual minorities often search their memories for
such prescient childhood desires in the process of sexual questioning.
"Early Onset" and "Late Onset" Subtypes
What if they can't find any? Is it possible that such individuals develop
authentic same-sex attractions in adulthood, with no prior warning? This notion
runs directly counter to the popular conceptualization of sexual orientation as an
early-appearing trait. Perhaps for this reason, women with late-appearing same-sex
attractions are often characterized as less essentially or exclusively attracted to the
same sex than those with early-appearing same-sex attractions and more likely to
question their sexual identities for ideological rather than sexual reasons. This con-
ceptual framework contrasts bom, primary, or exclusive lesbians with elective,
political, or bisexual lesbians (Burch, 1993; Ettore, 1980; Golden, 1996; Ponse,
1978). The underlying presumption is that a woman who recalls being sexually
attracted to women from the age of 10 is more essentially, consistently, and exclu-
sively attracted to the same sex than a woman whose first attractions emerged in a
Women's Studies class at age 20.
Despite its intuitive appeal, our research finds no support for this view. Study
A subdivided sexual-minority women into primary and elective subgroups to
determine whether this distinction fell along lesbian/bisexual lines. The primary
group contained women who reported a childhood feeling or event that presaged
their eventual sexual orientation (prepubertal same-sex attractions, childhood
gender atypicality, or "feelings of differentness"), experienced clear-cut same-sex
attractions before questioning their sexuality, and reported stability in their attrac-
tions over time. The elective group contained any woman who did not meet these
A-1099
criteria. As it turned out, there were equal proportions of lesbian, bisexual, and
unlabeled women in each group, and there was no link between group membership
and a woman's degree of same-sex attractions (Diamond, 1998). Since then,
follow-up assessments have established that women in the primary group are just
as likely to report changes in their sexual attractions or sexual identities over time
as women in the elective group. One important implication of these findings, which
we teased out with follow-up analyses, is that prior inconsistencies do not neces-
sarily foreshadow later inconsistencies, and prior stability does not necessarily
foreshadow later stability. Women who reported at the first interview that their
attractions had previously changed were not more likely to undergo subsequent
changes in either their attractions or their sexual identity.
These findings cast doubt not only on the notion of primary/elective subtypes
but also on the view that the timing of a woman's same-sex attractions gives us
critical information about the nature of her sexual orientation. Study B provides
further evidence to this effect: Neither the age of first same-sex attractions nor the
recollection of childhood experiences such as gender atypicality was associated
with subsequent features of sexual identity development, including the timing of
first same-sex sexual contact, the timing of first sexual-minority identification,
the sequencing of first sex and first identification, the total length of time of
the questioning process, or the selection of a lesbian versus bisexual versus
unlabeled identity.
In our minds, these counterintuitive findings spotlight two critical questions.
First, what did we think "age of first attractions" had to do with the rest of sexual
identity development to begin with? Were we assuming that earlier attractions
represented stronger attractions? More exclusive attractions? A more authentic
same-sex orientation? A more self-aware individual? These are all plausible and
testable hypotheses, but the simple truth is that few studies assessing age of first
attractions articulate a theoretical rationale for doing so, relying instead on a
collective, implicit intuition that it has some developmental relevance.
In our view, this vague notion of developmental relevance needs to be clarified
and reconsidered. We think the timing of same-sex attractions is relevant but not
for the reasons some have thought. Specifically, we believe that it taps general
features of sexual development (such as whether the sexual system is "on line" and
the availability of various eliciting stimuli) rather than predicting or explaining
variation in developmental trajectories. This does not mean that the childhood feel-
ings of heterosexual and sexual-minority women are necessarily identical, only
that the comparative timing of their same-sex and other-sex attractions may be less
informative than their comparative quality. Thus, rather than simply assessing the
age at which heterosexuals and sexual minorities first experienced same-sex and
other-sex attractions, we should assess the experiential context of these attractions,
their strength, their physiological and affective correlates, their frequency, and
their capacity to motivate behavior.
A-1100
Will the Real Same-Sex Attractions Please Stand Up ?
This brings us to a second question: When respondents report "age of first
attractions," what are they counting as an attraction? It is implicitly assumed that
researchers, study participants, and readers have comparable conceptualizations of
sexual attractions and that we all "know them when we feel them." Yet for many of
the women in Study A, a significant component of their questioning process
involved trying to determine just what qualified as a sexual attraction. As one
16-year-old noted, "When I look at a beautiful woman I'm not sure if I want her
or if I want to be her." Another young woman was unsure whether she had ever
experienced an authentic sexual attraction to either sex. Such reports challenge
the notion that same-sex and other-sex attractions are unambiguous, easily
recognizable experiences.
This becomes particularly clear when one attempts to interpret a sexual-
minority woman's most intense same-sex friendships. Nearly half of the young
women in Study A (Diamond, 2000a) reported having participated in a platonic
same-sex friendship characterized by high levels of emotional passion, devotion,
exclusivity, and physical affection. Such relationships typically occurred in early
adolescence, often long before sexual questioning, and appeared remarkably
similar to the unusually affectionate bonds that have been documented between
young women in a variety of cultures and historical periods (Faderman, 1981; Gay,
1985; Sahli, 1979; Smith-Rosenberg, 1975). In most cases, the intense feelings that
developed were not considered sexual (Diamond, 2000a; Faderman, 1981).
Should we consider such relationships early manifestations of same-sex
attractions? After all, even if women did not experience their feelings as explicitly
sexual, it seems plausible that sexual-minority women might unconsciously desire
more intense and affectionate same-sex friendships than do heterosexual women
and might find such relationships particularly rewarding even when they do not
involve explicit sexual interest or activity. At the same time, Faderman (1981) con-
vincingly argued that we are too eager to apply our contemporary cultural notions
of same-sex sexuality to such passionate friendshipsin many cases, they may be
authentically nonsexual attachments.
In truth, the affectional component of sexuality has been drastically
undertheorized in studies of both sexual minorities and heterosexuals, creating a
notable stumbling block for efforts to understand the uniqueness of women's expe-
riences. How common are passionate, platonic friendships among sexual-minority
and heterosexual women? To what extent does a young woman's sexual orienta-
tion prefigure experiences of emotional bonding? In our view, research on the
development of sexual orientation must begin to explore systematically processes
of emotional bonding and attachment formation to better understand how these
processes shape sexual desires and behaviors. Toward this end, we have begun to
A-1101
explore associations between the specific quality and context of sexual minorities'
first same-sex attractions and their subsequent development.
Do Quality and Context Matter?
When asked to describe their first same-sex attraction, interviewees listed a
wide range of divergent experiences. Examples included "wanted all the girls to
take their clothes off," "fixation on the popular girls in school," "loved to look at
pretty women," "moved my cot next to this one girl and wanted to be napping with
her," "platonic crushes on girlswanted to get to know them," "wanted to touch
Wonder Woman's breasts," "terribly upset when best friend moved away, couldn't
stop crying." The men in Study B, too, listed a wide range of experiences, but their
descriptions were more consistently linked to the concrete experience of sexual
arousal.
We coded interviewees' descriptions into three basic groups: The sexual
group included individuals who described this experience as involving explicit
sexual thoughts or sexual activity (for example, "wanted to touch Wonder
Woman's breasts"). The emotional group included individuals who described their
attractions as involving only emotional feelings (for example, "terribly upset when
best friend moved away"). The ambiguous group included individuals who
described this experience in terms that were neither explicitly sexual nor emotional
(such as "fixation on the popular girls in school"). The following discussion will
focus on the sexual and emotional categories, as these were the primary sites for
gender differences. The ambiguous category is clearly a fascinating one, but we
suspect it houses several meaningful subcategories, and we are holding off on
interpreting "ambiguous" attractions until we can tease them apart. Interrater
reliability for the existing coding scheme was assessed by calculating Cohen's
kappa on a subset of cases {n = 86), and this value was .86.
Although nearly two thirds of young men recalled an explicitly sexual context
for their first same-sex attraction, just over one third of the young women did so. In
contrast, women were five times as likely as young men to recall an exclusively
emotional basis for their first same-sex attraction (Savin-Williams & Diamond, in
press). Quite frequently these were emotional "crushes" on peers, teachers, or
coaches. The quality of a young man's or woman's same-sex attractions was not
associated with the age at which those attractions were experienced, or with the age
at which he/she first had same-sex sexual contact. Among women, however, the
quality of first attractions was associated with the context of first same-sex contact.
Women who described their first same-sex attractions as exclusively emotional
were more likely to have their first same-sex contact within an established
same-sex romantic relationship (a pattern characteristic of nearly 70% of the
women and only 5% of the men). Furthermore, women who had their first
same-sex sexual contact within a relationship were more likely to self-identify as
A-1102
sexual minorities before or soon after this experience, and they reported shorter
absolute latencies between first sex and first self-labeling. To the contrary, the
majority of sexual-minority men had their first same-sex sexual contact several
years before self-labeling.
We observed that some young women whose first sexual contact took place
within a relationship appeared to undergo a compressed version of sexual identity
development, moving quickly through self-labeling, first sex, first relationship,
and first disclosure during the course of a single, transformative romance. One
possibility is that such women are only comfortable acknowledging and acting on
sexual feelings when these feelings have an intimate emotional context. Alter-
natively, they may be disproportionately sensitive to emotional cues, such that
sexual attractions achieve greater strength, intensity, and motivational force when
they occur in an intimate emotional context. At the present time, we are simply
unable to discriminate between such possibilities. We now offer a number of
suggestions on how future research might address these questions.
Individual Differences and Person-Context Interactions
In our review of research on processes of sexual identity development, we are
struck by what the extant data do not address: individual differences in women's
personal characteristics and environmental/situational contexts. By personal
characteristics, we mean factors such as personality, attachment style, sexual atti-
tudes and expectations, self-efficacy, self-control, social skills, and even physical
attractiveness. By environmental/situational context, we mean factors such as a
woman's family relationships (including her degree of involvement in and super-
vision by the family), friendship and local community ties, ethnic background,
social class, access to educational and work opportunities, access to information
about sexuality, and opportunities for both same-sex and other-sex friendships and
romantic relationships.
Such factors have been exhaustively investigated in studies of heterosexual
feelings and behaviors during adolescence (see, for example, Feldman, Rosenthal,
Brown, & Canning, 1995; Goodson, Evans, & Edmundson, 1997; Udry, 1988), yet
have been almost entirely ignored by researchers investigating same-sex sexuality,
with the exception of ethnicity and social class. Even when ethnicity and social
class are addressed, the unfortunate tendency has been to emphasize group differ-
ences at the expense of individual differences.
Our suggestion that researchers pay greater attention to person-context inter-
actions is far from revolutionary: Such interactions have long been a chief concern
in developmental psychology. Yet investigations of sexual identity development
have been strangely myopic on this front. This may have been justifiable in the
earliest phases of research on sexual orientation but is no longer tenable. To under-
stand why women with similar feelings and experiences follow radically different
A-1103
Explaining Diversity
309
sexual identity trajectories, we must begin to assess factors other than sexual orien-
tation that impinge on their participation in (and subjective experience of) sexually
and emotionally intimate relationships.
For example, research on heterosexual adolescents has identified a wide range
of environmental factors that reliably influence me age at which an adolescent
becomes sexually active, ranging from peers' sexual attitudes and behavior (Udry,
1990) to mothers' coerciveness and love withdrawal (Miller et al., 1997). An
adolescent's personal characteristics also play a role, such as independence,
restlessness, achievement motivation, aggressiveness, tolerance for deviance, risk
taking, and religiosity (R. lessor, Costa, S. L. Jpssor, & Donovan, 1983; S. L.
lessor & R. lessor, 1974; Udry, Kovenock, Morris, & Vandenberg, 1995). Then
there is basic sexual motivation. It is well-known that some individuals are more
arousable than others (Bancroft, 1989), have more difficulty recognizing feelings
of sexual arousal (Heiman, 1975; Knoth et al., 1988), and are more likely to initiate
sexual behavior than others (Cyranowski & Andersen, 1998). These differences
are obviously related to social factors (Udry et al., 1986), but they also show
associations with individual differences in hormonal status and personality
(Andersen & Cyranowski, 1995) and are reliably associated with sexual behavior
(Udry, 1990).
How might our interpretation of a "late onset" lesbian change if we discovered
that she has a generally low sex drive, is fairly inhibited, and has had the same
boyfriend throughout high school? Such a woman might only become aware
of same-sex attractions if and when she encounters a situation that makes it extraor-
dinarily easy to do so, such as a Women's Studies class or having a lesbian room-
mate. She might only act on those attractions if the opportunity practically falls in
her lap, and this is probably more likely to occur if she is socially and physically
attractive, has plenty of female friends, is comfortable with intimacy, and enjoys
some degree of privacy. Conversely, a woman with unusually high arousability,
low self-restraint, a tendency to approach novel situations, and a history of early
heterosexual behavior might begin experimenting with same-sex sexual contact at
a fairly early age, even in environments that are less conducive to this behavior.
Importantly, the difference between these two women's trajectories might have
nothing to do with the quality or exclusivity of their same-sex attractions.
As if this is not complicated enough, we must also consider the fact that sexual
arousal and desire are not the only motivations for sexual behavior. Youths also
engage in sexual behavior to discharge negative affect, to achieve status, to attain
intimacy, to procure companionship, or to experience excitement (Cooper,
Shapiro, & Powers, 1998). The long-term implications of same-sex sexual behav-
ior for sexual identity development likely depends on these initial motivations. For
example, one interviewee in Study A indicated that although her "gut level" attrac-
tions for men were stronger than her attractions for women, she consistently
achieved greater levels of emotional intimacy with women than men. Because this
A-1104
was more important to her, she eventually identified as lesbian. To characterize this
woman as "in denial" of her bisexual orientation would be not only dismissive but
wrong. Yet in order to make sense of her identity development, we must move
beyond models of sexual orientation that assume clean, stable matches between
attractions, behavior, and identity toward models that acknowledge the multiple
factors shaping all women's experiences and interpretations of same-sex and
other-sex desires and relationships.
Conclusion
The incredible variability in the developmental trajectories of sexual minori-
ties, especially sexual-minority women, has received little systematic attention.
Instead, researchers have focused disproportionately on discerning whether
milestones such as "age of first same-sex attractions" predict the adult course of
sexual orientation. The findings from our research suggest that this approach may
be of limited usefulness. The quality, timing, and interpretation of same-sex and
other-sex erotic responses (and their manifestation in sexual behavior) are multiply
determined phenomena. This is anything but a new argument (Kinsey, Pomeroy, &
Martin, 1948), but it seems to have been forgotten in the rush to describe and
explain the unique experiences of gay, lesbian, and bisexual men and women. As a
result, researchers commonly treat sexual minorities as a homogeneous class of
people whose differences from heterosexuals (owing to their sexual orientation)
outweigh differences among themselves.
This reification of sexual identity categories has long been the subject of criti-
cism, particularly by feminist theorists who argue that the very notion of essential,
traitlike sexual predispositions is a historically specific social construction
(Kitzinger, 1987; Rust, 1993). An early blow against sexual categorization was
struck by Rich (1980), who argued in a now-classic article that all women occupy a
"lesbian continuum" ranging from passionate, platonic same-sex friendships to
explicit same-sex sexual affairs. Rich's notion of a lesbian continuum has been
most influential as an ideological vision, yet our research demonstrates that it is
also an empirical reality with substantive implications for understanding the course
of female sexual development.
For this reason, we argue that future research on sexual minorities should
undertake a large-scale shift from classifying individuals into sexual identity
categories to describing the full range of men's and women's same-sex and
other-sex desires, affections, and behaviors. This requires more complex and
labor-intensive research strategies, yet there is no alternative. Our failure to
systematically study the development of individuals who challenge our traditional
notions of same-sex and other-sex sexuality is, at a basic level, unscientific. Asking
all adolescents about the quality and context of their same-sex and other-sex
sexuality, and questioning our own assumptions about what experiences do and do
A-1105
not "count" as developmentally relevant, is a necessary first step toward building
models that both describe and explain diversity in human sexuality.
References
Andersen, B L ,& Cyranowski, J M (1995) Women's sexuality Behaviors, responses and individual
differences Journal of Consulting and Clinical Psychology, 63, 891-906
Baldwin, J D, & Baldwin, J I (1997) Gender differences in sexual interest Archives of Sexual Behav-
wr, 26, 181-210
Bancroft, J H (1989) Sexual desire and the brain Sexual and Marital Therapy, 3,11-27
Baumeister, R F (2000) Gender differences in erotic plasticity The female sex dnve as socially flexi-
ble and responsive Psychological Review, 126, 347-374
Brown, L (1995) Lesbian identities Concepts and issues In A R D' Augelli & C Patterson (Eds ),
Lesbian, gay, and bisexual identities over the lifespan (pp 3-23) New York Oxford University
Press
Burch, B (1993) On intimate terms The psychology of difference in lesbian relationships Chicago
University of Illinois Press
Cassingham, B J , & O'Neil, S M (1999) And then I met this woman WA Freeland, Soaring Eagle
Publishing
Cohen, K M (1999) The biology of male sexual orientation Relationship among homo eroticism,
childhood sex-atypical behavior, handedness, and spatial ability Unpublished manuscript,
University of Detroit-Mercy, Detroit, MI
Cooper, M L, Shapiro, C M, & Powers, A M (1998) Motivations for sex and nsky sexual behavior
among adolescents and young adults A functional perspective Journal of Personality & Social
Psychology, 75, 1528-1558
Cyranowski, J M ,& Andersen, B L (1998) Schemas, sexuality, and romantic attachment Journal of
Personality and Social Psychology, 74, 1364-1379
Diamond, L M (1998) Development of sexual orientation among adolescent and young women
Developmental Psychology, 34,1085-1095
Diamond, L M (2000a) Passionate friendships among adolescent sexual-mmonty women Journal of
Research on Adolescence, 10, 191-209
Diamond, L M (2000b) Sexual identity, attractions, and behavior among young sexual-mmonty
women over a two-year period Developmental Psychology, 36, 241-250
Diamond, L M (2000c, March) Variability in same-gender sexuality A model emphasizing evolved
processes underlying human mating Paper presented at the annual meeting of the Society for
Research on Adolescence, Chicago, EL
Diamond, L M , & Dube, E M (2000) Friendship and attachment among heterosexual and sexual-
mmonty youths Does the gender of your friend matter
9
Manuscript under review
Dixon, J K (1985) Sexuality and relationship changes in married females following the commence-
ment of bisexual activity Journal of Homosexuality, 11, 115-133
Ettore, E M (1980) Lesbians, women, and society, London Routledge
Faderman, L (1981) Surpassing the love of men New York William Morrow
Feldman, S S , Rosenthal, D R , Brown, N L , & Canning, R D (1995) Predicting sexual expenence
in adolescent boys from peer rejection and acceptance during childhood Journal of Research on
Adolescence, 5, 387-411
Gay, J (1985) "Mummies and babies" and friends and lovers in Lesotho Journal of Homosexuality,
77,97-116
Golden, C (1996) What's m a name? Sexual self-identification among women In R C Savm-
Wilhams & K M Cohen (Eds ), The lives of lesbians, gays, andbisexuals Children to adults
(pp 229-249) Fort Worth, TX Harcourt Brace
Goodson, P , Evans, A , & Edmundson, E (1997) Female adolescents and onset of sexual intercourse
A theory-based review of research from 1984 to 1994 Journal of Adolescent Health, 21,
147-156
Heiman, J R (1975) The physiology of erotica Women's sexual arousal PsychologyToday, 8,90-9'4
A-1106
lessor, R , Costa, F , lessor, L , & Donovan, J E (1983) Time of first intercourse A prospective study
Journal of Personality and Social Psychology, 44, 608-626
lessor, S L , & lessor, R (1974) Transition from virginity to nonvirginity among youth A social-
psychological study over time Developmental Psychology, 11, 473-484
Kinsey, A C , Pomeroy, W B , & Martin, C E (1948) Sexual behavior in the human male Philadel-
phia W B Saunders
Kitzinger, C (1987) The social construction of lesbianism London Sage
Kitzinger, C , & Wilkinson, S (1995) Transitions from heterosexuahty to lesbianism The discursive
production of lesbian identities Developmental Psychology, 31, 95-104
Knoth, R , Boyd, K , & Singer, B (1988) Empincal tests of sexual selection theory Predictions of sex
differences in onset, intensity, and time course of sexual arousal Journal of Sex Research, 24,
73-89
Laumann, E O , Gagnon, J H , Michael, R T, & Michaels, F (1994) The social organization of
sexuality Sexual practices in the United States Chicago University of Chicago Press
Marmor, J (1980) Homosexual behavior A modern reappraisal New York Basic Books
McClintock, M K , & Herdt, G (1996) Rethinking puberty The development of sexual attraction
Current Directions in Psychological Science, 5, 178-183
Miller, B C , Norton, M C , Curtis, T , Hill, E J , Schvaneveldt, P , & Young, M H (1997) The timing
of sexual intercourse among adolescentsFamily, peer and other antecedents Youth & Society,
29, 54-83
Pillard, R C (1990) The Kinsey Scale Is it familial? In D P McWhirter, S A Sanders, & J M
Reimsch (Eds ), Homosexuahty/heterosexuahty Concepts of sexual orientation (pp 88-100)
New York Oxford University Press
Ponse, B (1978) Identities in the lesbian world The social construction of self Westport, CT
Greenwood Press
Rich, A (1980) Compulsory heterosexuahty and lesbian existence Signs, 5, 631-660
Rust, P (1992) The politics of sexual identity Sexual attraction and behavior among lesbian and
bisexual women Social Problems, 39, 366-386
Rust, P (1993) Coming out in the age of social constructionism Sexual identity formation among
lesbians and bisexual women Gender and Society, 7, 50-77
Sahli, N (1979) Smashing Women's relationships before the fall Chrysalis, 8, 17-27
Savin-Williams, R C (1998) " And then I became gay" Young men's stories New York
Routledge
Savin-Williams, R C (in press) " And then I kissed her" Young women's stories New York
Routledge
Savm-Wilhams, R C, & Diamond, L M (in press) Sexual identity trajectories among sexual-mmonty
youths Gender compansons Archives of Sexual Behavior
Shuster, R (1987) Sexuality as a continuum The bisexual identity In Boston Lesbian Psychologies
Collective (Ed), Lesbian psychologies (pp 56-71) Urbana, IL University of Illinois Press
Smith-Rosenberg, C (1975) The female world of love and ritual Relations between women in
nineteenth century Amenca Signs, 1, 1-29
Udry, J R (1988) Biological predispositions and social control in adolescent sexual behavior Ameri-
can Sociological Review, 53, 709-722
Udry, J R (1990) Hormonal and social determinants of adolescent sexual initiation In J Bancroft &
J M Reimsch (Eds ), Adolescence and puberty (pp 70-87) New York Oxford University
Press
Udry, J R , Kovenock, J , Moms, N M , & Vandenberg, B J (1995) Childhood precursors of age at
first intercourse for females Archives of Sexual Behavior, 24, 329-337
Udry, J R , Talbert, L M , & Moms, N M (1986) Biosocial foundations for adolescent female sexual-
ity Demography, 23, 217-230
Weinberg, M S , Williams, C J , & Pryor, D W (1994) Dual attraction Understanding bisexuahty
New York Oxford University Press
LISA M DIAMOND is Assistant Professor of Psychology and Women's Studies
at the University of Utah. She received her doctorate in Human Development from
A-1107
Cornell University. Diamond's research focuses on adolescent and young adult
social and sexual development. She has written extensively on female sexual
identity development and is conducting the first long-term, prospective study of
sexual identity transitions among sexual-minority women. She also investigates
how peer attachment relationships (particularly best friendships and romantic
relationships) help adolescents and adults regulate negative emotions and physio-
logical stress and whether romantic relationships are uniquely beneficial. She has
been particularly interested in the phenomenon of "passionate friendships" among
young women.
RITCH C. SAVIN-WILLIAMS is Professor of Clinical and Developmental
Psychology and Director of Graduate Studies in the Department of Human Devel-
opment at Cornell University. Savin-Williams has written six books on adolescent
development. His latest, published by APA Press, "Mom, Dad, I'm Gay": Stories,
Research, Advice, details the coming-out process of sexual-minority youths. It
follows ". . . And Then I Became Gay ": Young Men's Stories (Routledge, 1998) and
(coedited with Kenneth M. Cohen) The Lives of Lesbians, Gays, and Bisexuals:
Children to Adults (Harcourt Brace, 1996). Savin-Williams is currently writing
about the experiences of growing up female with same-sex attractions, suicide
attempts among sexual-minority youths, and other aspects of gay youths. He is also
a licensed clinical psychologist with a private practice specializing in identity,
relationship, and family issues among young adults and has served as an expert
witness on same-sex marriage, adoption, and Boy Scout court cases.
A-1108
PERGAMON Social Science & Medicine 56 (2003) 1607-1615
SOCIAL
SCIENCE
&
MEDICINE
www.elsevier.com/locate/socscimed
Same-sex attraction in a birth cohort: prevalence and
persistence in early adulthood
Nigel Dickson*, Charlotte Paul, Peter Herbison
Department of Preventive and Social Medicine, University of Otago Medical School, P. O. Box 913, Dunedin, New Zealand
Abstract
There is a continuing debate about the importance of social versus biological factors in the expression of same-sex
attraction. Investigation of prevalence, continuities, and changes over time among young adults growing up in a
country with a relatively accepting climate to homosexuality is likely to illuminate this debate. Analyses were therefore
undertaken of self-reported same-sex attraction at age 21 and 26, in a cohort of about 1000 people born in 1972/3 in one
New Zealand city. Participants were also asked about same-sex behaviour and attitudes to same-sex relationships. By
age 26, 10.7% of men and 24.5% of women reported being attracted to their own sex at some time. This dropped to
5.6% of men and 16.4% of women who reported some current same-sex attraction. Current attraction predominantly
to their own sex or equally to both sexes (major attraction) was reported by 1.6% of men and 2.1%) of women.
Occasional same-sex attraction, but not major attraction, was more common among the most educated. Between age 21
and 26, slightly more men moved away from an exclusive heterosexual attraction (1.9% of all men) than moved towards
it (1.0%), while for women, many more moved away (9.5%) than towards (1.3%) exclusive heterosexual attraction.
These findings show that much same-sex attraction is not exclusive and is unstable in early adulthood, especially among
women. The proportion of women reporting some same-sex attraction in New Zealand is high compared both to men,
and to women in the UK and US. These observations, along with the variation with education, are consistent with a
large role for the social environment in the acknowledgement of same-sex attraction. The smaller group with major
same-sex attraction, which changed less over time, and did not differ by education, is consistent with a basic biological
dimension to sexual attraction. Overall these findings argue against any single explanation for homosexual attraction.
2002 Elsevier Science Ltd. All rights reserved.
Keywords: Same-sex attraction; Homosexuality; Longitudinal study; New Zealand
Introduction
The wave of studies over the last 15 years of the
prevalence of sexual behaviour and attitudes in popula-
tions began in response to the HIV epidemic. In New
Zealand such studies have been used to predict and
monitor the course of the HIV epidemic among
population samples and gay men, and to evaluate
preventive methods (Paul et al., 1995; Worth, Saxton,
Hughes, Reid, & Segedin, 1997). The focus of such
*Corresponding author. Tel.: +64-3-479-7211; fax: +64-3-
479-7298.
E-mail address: ndickson@gandalf.otago.ac.nz
(N. Dickson).
studies has not been on the causes of sexual preferences
or behaviours, but on their health implications. Other
threats to health among gay men and lesbians have been
the subject of increasing attention (Northridge, 2001).
There is growing evidence that homosexual young
people are more vulnerable to suicidal behaviour, which
may relate to social pressures against homosexuality and
lack of self-acceptance (Fergusson, Horwood, & Beau-
trais, 1999). Victimization has also been related to social
hostility to homosexuality (Russell, Franz, & Driscoll,
2001). The Institute of Medicine (IOM) report on
lesbian health (IOM, 1999) has highlighted the impor-
tance of characterizing the health needs of this popula-
tion. This called for prospective, longitudinal studies to
increase understanding of lesbian development and its
0277-9536/03/$-see front matter 2002 Elsevier Science Ltd. All rights reserved.
PI I : S0277- 9536( 02) 00161- 2
A-1109
1608 N. Dickson et al. I Social Science & Medicine 56 (2003) 1607-1615
implications for defining and measuring lesbian sexual
orientation. We hope to contribute to this understand-
ing, for both lesbians and gay men.
Investigations of the development of homosexuality
have tended to focus on adults with an established
homosexual identity reporting their earlier experiences.
This tells us little about those who have transient same-
sex attraction and experience at young ages. National
surveys of sexual behaviour such as that in the United
Kingdom reported by Johnson, Wadsworth, Wellings,
and Field (1994) have shown that there are major
differences in prevalence between reports of current and
lifetime homosexual experiences, suggesting that such
experiences are episodic or passing events for many
people, especially during adolescence. The very few
longitudinal studies have mainly followed groups
identified by some same-sex behaviour or attraction, so
have not been able to assess acquisition of same-sex
attraction over time (Diamond, 2000). In addition,
recruitment into these studies has been predominantly
through gay, bisexual, lesbian and women's studies
networks rather than from the general population
(Pattatucci & Hamer, 1995).
Information about continuities and changes over time
also casts light on theoretical claims about the nature of
sexual attraction and orientation. There has been a
major debate between essentialists and social construc-
tionists. But, as demonstrated by Stein (1990), in his
anthology of essays on both sides of this debate, the two
sides have a questionable understanding of each other's
views. Instead of taking a position within this con-
troversy, we have set out the theories that influenced the
choice of research methods and which we have used in
the interpretation of our results. Kinsey, Pomeroy, and
Martin (1948), in the first major empirical study of the
sexual behaviour of the American male, assumed that
sexual orientation was a matter of degree rather than of
kind, and framed their questions accordingly. Kinsey
believed that "the capacity of an individual to respond
erotically to any sort of stimulus... is basic to the
species" (Kinsey et al., 1948). We have used his scale,
with the modifications made by Johnston et al. (1994).
Subsequent empirical research has suggested that this
continuum of sexual attraction and behaviour is clearer
for lesbians, while for gay men there is more evidence for
a bimodal distribution (LeVay, 1996).
In contrast to Kinsey's view, that there is an innate
capacity to respond sexually to men or women, those
who argue for a genetic basis for sexual orientation
generally assume there are distinct categories of orienta-
tion and that the prevalence of homosexuality is stable
over time. LeVay (1996) states "the only kind of
prevalence data that could undermine a purely genetic
theory would be the demonstration that homosexuality
has rapidly become more common or less common
within a single culture".
The main aim of this study was to investigate the
prevalence and persistence of sexual attraction and
same-sex sexual contact, and attitudes to same-sex
relationships, among young adults enrolled in a multi-
disciplinary longitudinal study. The association of these
with education, as a key measure of the social
environment of young people, has also been examined.
We have also used this empirical evidence to test
theoretical claims about a continuum versus categories
of sexual attraction and about the roles of the
environment versus biology.
Methods
The sample was enrolled in the Dunedin Multi-
disciplinary Health and Development Study. This long-
itudinal study of about 1000 children born in Dunedin,
New Zealand in 1972-1973, and still living in the region
at age 3, has been described by Silva and Stanton (1996).
The sample was first followed up at age 3, then seen
every two years until age 15, and again at ages 18, 21
and 26, for an extensive medical, psychological and
behavioural assessment. Participants generally returned
to Dunedin for the assessments at ages 21 and 26, even if
overseas.
The questions on sexual behaviour were presented by
computer. Most responses were given by indicating the
desired response from a list of options. The opportunity
was given to skip every question. The participants were
informed of the strict safeguards for confidentiality. At
ages 21 and 26, questions on past and current sexual
attraction based on the 1990 British National Survey of
Sexual Attitudes and Lifestyles were asked ("What best
describes who you have ever felt [these days feel]
sexually attracted to?"), with six Kinsey-style options
being offered (Johnson et al., 1994). At age 26, men were
asked "Have you ever had sexual contact with another
man (or men)? By sexual contact we mean oral, anal or
any other form of sex", and women "Have you ever had
sexual contact with another woman (or women)? By
sexual contact we mean oral, vaginal or any other form
of sex". Sexual intercourse between men and women was
defined as penile-vaginal sex. Both men and women at
age 26 were asked their opinion about sex between men
and women using the same question as in the British
study ("What is your general opinion about sex between
two men/women?"). The highest educational qualifica-
tion was recorded at age 26. Those who had obtained a
non-university qualification after leaving school were
classified as having a "vocational" qualification.
To assess the representativeness of the sample,
information on the highest school qualification of people
normally resident in New Zealand aged 25 and 26 years
at the national census in 1996 was obtained. Chi-squared
tests for heterogeneity were used for comparison of
A-1110
N. Dickson et al I Social Science & Medicine 56 (2003) 1607-1615
1609
proportions. The relationship between same-sex attrac-
tion and education was examined using a log-linear
model.
full range of socioeconomic strata is represented in the
cohort.
Sexual attraction and same-sex contact
Results
Sample
Of the 1037 members of the cohort formed at age 3,
1019 were believed to be alive at age 26 in 1998/9. Of
these, 39 (3.8%) were either not traceable or refused
involvement in the whole study. In addition, 22 (2.2%)
who were seen either refused the sexual health section of
the assessment or did not compete this for other reasons.
The responses of one man have not been included
because of gross inconsistencies. In all, 485 men and 473
women, respectively, 92.4% and 95.8% of men and
women in the surviving cohort, answered questions
on sexual health. At formation the cohort was
slightly socio-economically advantaged compared to
New Zealand families as a whole at that time (Silva &
Stanton, 1996). This difference persisted, and at the
26-year-old assessment 15.1% of those seen had no
school qualification, compared to 25.7% of a compar-
able age group nationally at the census. Nonetheless, the
Most men and women had only ever been sexually
attracted to the opposite sex (Table 1). Fewer men than
women had ever been (10.7% versus 24.5%, /?<0.001),
or were at age 26 (5.6% and 16.4%,/?<0.001), attracted
at all to their own sex. However, similar proportions of
men and women had ever been (1.9% for each), or were
currently (1.6% and 2. 1%, respectively), attracted either
equally to both sexes, or mainly or only to their own.
(This combination is subsequently referred to as "major
same-sex attraction". Those who were more often
attracted to the opposite sex and at least once to their
own are referred to as having "occasional same-sex
attraction".).
The proportions of men (8.9%) and women (9.7%)
who reported ever having had sexual contact with a
person of their own sex were similar (p 0.74) (Table 2).
Of the 43 men reporting this, 17 (3.5% of all men) had
contact within the previous 12 months, of whom four
(0.8%) reported currently being in a sexual relationship
with another man. The lifetime numbers of male
partners reported by the 43 men ranged from 1 to 120.
Table 1
Sexual attraction currently and ever at age 26
Currently Ever
Men {N = 485) Women (N = 473) Men {N = 485) Women (N = 473)
No.
452
19
1
1
6
0
6
%
93.2
3.9
0.2
0.2
1.2
0.0
1.2
No.
387
68
4
2
4
1
7
%
81.9
14.3
0.8
0.4
0.8
0.2
1.5
a
No.
427
43
2
4
3
0
6
%
88.0
8.8
0.4
0.8
0.6
0.0
1.2
No.
350
107
4
5
0
3
4
%
74.1
22.6
0.8
1.1
0.0
0.6
0.8
Only to opposite sex, never to same sex
More often to opposite sex at least once to same sex
About equally to both sexes
More often to same sex, at least once to opposite sex
Only to same sex, never to opposite sex
Not attracted to anyone at all
Not answered
a
Includes those who were not asked as they had reported no sexual attraction ever.
Table 2
Same-sex sexual contact in previous year and ever at age 26
In previous 12 months Ever
Men {N = 485) Women (JV = 473) Men (JV = 485) Women (N = 473)
Yes
No
Not answered
No.
17
465
3
%
3.5
95.9
0.6
No.
15
456
2
%
3.2
96.4
0.4
No.
43
439
3
%
8.9
90.5
0.6
No.
46
425
2
%
9.7
89.9
0.4
A-1111
1610 N. Dickson et al I Social Science & Medicine 56 (2003) 1607-1615
One partner was reported by 23, between two and four
by 15, between five and nine by 2, and 10 or more by 3
men. Anal intercourse ever with another man was
reported by 13 (2.7%) of all the men, less than a third
of those who reported any same-sex sexual contact, and
by eight in the previous 12 months. Of the 46 women
who had ever had sexual contact with another woman,
15 (3.2% of all women) had done so within the previous
12 months, of whom four (0.8%) were currently in a
sexual relationship with another woman. The lifetime
number of female partners reported by these 46 women
ranged from 1 to 28. Twenty-seven had had one, 14
between two and four, 2 between five and nine, and 2
had had 10 or more female partners.
Of the eight men who at age 26 reported current
major attraction to men, five had had sexual contact,
and four anal intercourse, with a man during the
previous year. These behaviours were reported, respec-
tively, by four and two of the 19 men currently reporting
occasional attraction to men. Of the 10 women who
reported major current attraction to women, eight had
sexual contact with a woman in the previous year,
whereas this was reported by only four of the 68 women
who had occasional attraction to women.
Opinions of same-sex relationships
Opinions about same-sex relationships were polarized
(Table 3). While men and women had similar attitudes
about sexual relationships between women, men were
much more likely than women to consider sex between
men always or mostly wrong (36.3% vs. 22.2%
p = <0.001). The views of women about homosexual
behaviour were similar whether the behaviour involved
women or men.
Not surprisingly opinions were more favourable
among those who reported same-sex contact or attrac-
tion. Of the 17 men who had sexual contact with a man
in the past year, none thought sex between men was
wrong at all. Of the 15 comparable women, one thought
sex between women was rarely, and one mostly, wrong.
Of the 27 men who currently had any attraction to men,
again none thought sex between men at all wrong. Of
the corresponding 78 women, six thought sex between
women was wrong in some circumstances. All of these
six women were only occasionally attracted to women,
and only one had had sexual contact with another
woman in the previous year.
Attraction and current relationships
Overall 328 (67.6%) of the men were in a sexual
relationship with a woman at age 26, among whom 12
(3.7%) had an occasional, but none a major attraction
to other men. Of the 157 who were not in a heterosexual
relationship, 142 (90.4%) had had sexual intercourse
with a woman. Among these 142, seven (4.9%) had
occasional, and five (3.5%) a major attraction to other
men. Of the 15 men who had not had intercourse with a
woman, none reported occasional, and three (20.0%)
major attraction to men. Therefore, same-sex attraction
was more common among men not in a heterosexual
relationship, with one in ten (9.6%) of these having
some current same-sex attraction. Of the women, 374
(78.9%) were in a sexual relationship with a man, among
whom 55 (11.6%) reported occasional and 4 (0.8%)
major attraction to women. Of the 100 who were not in
a heterosexual relationship, 90 had had intercourse with
a man and of these, 12 (13.3%) reported occasional, and
five (5.5%) major attraction to women. Among the 10
women who had never had sexual intercourse with a
man, one reported occasional attraction, and one major
attraction to women. Overall of the 100 women not in a
relationship with a man, one in five (19.0%) had any
current attraction to other women.
At age 26, all four men and four women who were
currently in a same-sex relationship reported major
same-sex attraction. In fact, all of these except one
woman reported currently being attracted only to their
own sex.
Table 3
Opinions about same-sex sexual relationships reported at age 26
Sex between two men Sex between two women
Men (N = 485) Women (N = 473)
Men (JV = 485)
10.3
6.4
5.6
6.2
47.4
16.3
4.9
2.9
Women (N = 473)
14.2
6.1
4.3
4.4
51.2
12.5
5.3
2.1
Always wrong
Mostly wrong
Sometimes wrong
Rarely wrong
Not wrong at all
Depends
Do not know
Not answered
27.6
8.7
3.5
3.1
34.6
11.8
8.0
2.7
15.4
6.8
4.4
3.8
48.8
12.3
6.6
1.9
A-1112
N. Dickson et al I Social Science & Medicine 56 (2003) 1607-1615 1611
Association of education with sexual attraction, same-sex
sexual contact, and attitudes to same-sex relationships
Those men and women with the highest education
were more likely to report currently having any
attraction to their own sex (Table 4). For men there
was a trend across the range of educational levels, but
for women the difference was only apparent at the
highest level. However, for both men and women the
variation was solely due to variations in the proportion
with only occasional same-sex attraction. Whereas for
men this trend was statistically significant (p = 0.002), it
was not for women (p = 0.14). There was no difference
by education level among those who reported major
attraction to their own sex. For same-sex sexual contact
there were no significant differences according to
education. Opinions about same-sex relationships dif-
fered by educational level among both men and women,
in a way corresponding to the variation in sexual
attraction.
the two assessments (Fig. 1). Between age 21 and 26,
slightly more men moved away from an exclusive
heterosexual attraction (1.9% of all men) than moved
towards it (1.0%). Among the women, more reported
attraction only to the opposite sex at age 21 (90.7%)
than at age 26 (84.0%), as many more moved away
(9.5%) than towards (1.3%) exclusive heterosexual
attraction. There had been little change in the propor-
tion of women reporting major attraction to women
(1.9% at 21 and 2. 1% at 26). Not shown in the figure is
that no sexual attraction at age 21 was reported by three
men, of whom at age 26, two were attracted only to
women, and one occasionally to men. Among women,
13 reported no attraction at age 21, of whom at age 26, 8
were attracted only to men, one occasionally to women,
one had a major attraction to women, and three still
reported no attraction to either sex.
Discussion
Sexual attraction at ages 21 and 26
Overall 451 men and 436 women reported their
current sexual attraction at both ages 21 and 26. Among
the 448 men reporting any sexual attraction at both
ages, similar proportions were in the three categories at
The findings show the diversity of sexual attraction.
We were able to distinguish two groups having any
same-sex attraction. There was a large group with
occasional same-sex attraction, which was larger for
females than males and largest for those with the
most education. There was a smaller group with major
Table 4
Sexual attractions ever, same-sex contact ever and opinions of same-sex relationships between members of own sex by highest
qualification
Current sexual attraction
Only opposite sex
Occasional same sex
Major same sex
No one
Not answered
Men
a
Degree
Ar = 92
89.1
8.7
2.2
0
0
Vocational
Ar = 214
92.5
5.2
1.4
0
0.9
Same-sex contact in previous 12 months
Yes
No
Not answered
3.3
96.7
0
4.7
94.4
0.9
Attitude to sexual relationships between members of
Always/mostly wrong
Sometimes wrong
Rarely/not wrong
Depends
Do not know
Not answered
20.7
4.3
54.3
14.1
6.5
0.0
36.0
3.7
36.0
12.1
8.9
3.3
School
N= 177
96.0
0
1.7
0
2.3
2.3
97.1
0.6
own sex
45.2
2.8
31.6
9.0
7.9
3.4
Total
# = 485
93.2
3.9
1.6
0
1.2
3.5
95.9
0.6
36.3
3.5
37.7
11.8
8.0
2.7
Women
a
Degree
N= 121
78.5
19.8
1.7
0
0
1.7
97.5
0.8
8.2
4.1
74.6
9.8
2.5
0.8
Vocational
N= 183
83.1
12.6
2.7
0
1.6
4.9
95.1
0
23.0
4.4
48.6
18.0
4.4
1.6
School
N= 168
82.7
12.5
1.8
0.6
2.4
2.4
97.0
0.6
26.2
4.8
48.8
8.3
8.3
3.6
Total
V = 473
81.8
14.4
2.1
0.2
1.5
3.2
96.4
0.4
20.3
4.2
55.6
12.5
5.3
2.1
a
Two men and one woman who did not provide information on highest qualification.
A-1113
1612
N. Dickson et al I Social Science & Medicine 56 (2003) 1607-1615
Men
Only opposite sex
428 (95.5%)
Only opposite sex
424 (94.6%)
Occasional attraction to
same sex 15 (3.3%)
Occasional attraction to same
sex 17 (3.8%)
Major attraction to same
sex 5 (1.1%)
/ ^ ^
k
Major attraction to same sex
7 (1 6%)
Women
Only opposite sex
390 (90.7%)
Occasional attraction to
same sex 32 (7.4%)
Major attraction to same
sex 8 (1.9%)
345 ^
X^15 \ / ^ ^
r ^ |8
Only opposite sex
361 (84.0%)
Occasional attraction to same
sex 60 (14.0%) '
k
Major attraction to same sex
9(2.1%)
Age 21 years Age 26 years
Fig. 1. Persistence and change in current sexual attraction reported at ages 21 and 26.
same-sex attraction, which was of similar size for males
and females and did not differ according to education.
The findings also revealed a surprising degree of
change over time. Ten percent of men, and nearly a
quarter of women, reported same-sex attraction at any
time, but this nearly halved for current attraction at age
26. The changes were not just in one direction. The
instability was most marked for women, with a greater
movement away from exclusively heterosexual attrac-
tion from age 21 to 26 than among men.
The strengths of this study are that it is based on a
relatively large birth cohort with a very high response
rate, and used well-validated instruments (Johnson et al.,
1994). Moreover, the use of a computer, with safeguards
to protect confidentiality, is likely to improve disclosure
as has been shown by Turner et al. (1998). Disclosure
may also have been more complete because of the trust
in the study built up over many years. Care was taken to
distinguish sexual attraction from behaviour, to consider
sexual attraction on a continuum, and to avoid the use
of terms such as homosexual or bisexual which require
self-identification, which are potentially stigmatizing,
and may, as suggested by Johnson et al. (1994) affect
response. Because the responses were collected by
computer there was a possibility of entry mistakes by
the subjects. We investigated this possibility by examin-
ing consistency, and one person was excluded for grossly
inconsistent responses.
The prevalence of some same-sex attraction for men
(5.6%) was not markedly different from that found for
similar age groups in the US (18-29 years, 7.4%)
(Laumann, Gagnon, Michael, & Michaels, 1994) and
the UK (25-34 years, 5.3%) (Johnson et al , 1994). In
contrast the prevalence of same-sex attraction among
women (16.7%) was much higher than reported for US
women (4.4%) and UK women (5.7%). Our survey used
identical questions to the UK survey. Ever having same-
sex contact was similar in this sample of New Zealand
men (8.9%) as for men aged 25-34 years in the US
(6.8%) (only contact at age 18 and over) and higher than
A-1114
N. Dickson et al I Social Science & Medicine 56 (2003) 1607-1615 1613
in the UK (3.7%). (Michael, Wadsworth, Feinleib,
Johnson, Laumann, & Wellings, 1998). But again the
differences were more marked for women9.7% in
New Zealand compared to 3.7% and 2.0% of women
aged 25 to 34 years in the US and UK, respectively. The
US survey by Laumann et al. was conducted in 1992.
More recent data from the US General Social Surveys
show a significant increase in same-sex contact in the last
five years among women aged 18-59 years, from 1.0%
on 1991 to 3.3% in 1998 (Butler, 2000). A New Zealand
national survey in 1991 also showed a lower prevalence
of same-sex contact (Paul et al , 1995) in women aged
18-24 years than we found in this current study.
Three aspects of the results are particularly striking
and require explanation. First, the high prevalence
among women compared to men of same-sex attraction;
second, the greater proportion of women who report
same-sex attraction but not contact, compared to men;
and third, the higher rates of both same-sex attraction
and behaviour among women compared to other
comparable countries. These results cannot be explained
by the greater disclosure from the computer question-
naire, because they applied to women only. Disclosure
may be easier for women than men in New Zealand
because of more accepting attitudes to female homo-
sexuality than male (as our results have shown).
Conversely, admitting same-sex attraction may be
harder for men, so that those who do admit it have
stronger attraction, which they are more likely to act on.
The overall higher rate of same-sex attraction and
contact for women in New Zealand in relation to other
comparable countries, almost certainly represents a
recent increase in prevalence. As such it argues strongly
against a purely genetic explanation and suggests the
environment can have a significant influence. It might be
related to social changes which have happened with
particular intensity and rapidity in this country. Though
New Zealand has a strong feminist tradition: women got
the vote early, in 1893, the dominance of women in
public life is new and has been remarked on (Guardian
Weekly, 2000). In 2001, the Prime Minister, Leader of
the Opposition, Attorney General, Governor General-
elect and the Chief Justice were all women. It is also a
small country, having a population of less than 4
million, which tends to adopt new social trends easily as
indicated by the rapid uptake of the oral contraceptive
in the 1960s and vasectomy in the 1970s (Pool et al ,
1999). Also relevant is that there has been a recent
change in the age of sexual initiation of young women
compared to men: women now report earlier median age
of first intercourse than men (Dickson, Paul, Herbison,
& Silva, 1998). Changes that empower women socially
and sexually may be important in relaxing the taboos
around to whom women will allow themselves to feel
attracted. The increases in same-sex sexual partnerships
among women in the US (Butler, 2000) in the 1990s have
been attributed more specifically to the equalizing of
earning potential of men and women which enable
women to consider family structures and sexual partner-
ships which do not include men. Average hourly
earnings of women in New Zealand (Statistics New
Zealand, 1997) are now 81% of those of men.
The association of same-sex attraction with education
has also been found in the US, although there the
association between increasing education and increasing
prevalence of same-sex attraction was strongest among
women (Laumann et al , 1994). In New Zealand
relatively high rates of attraction were seen among
women of all educational levels, although this was most
common among those with a university education. What
is surprising and unexplained in these findings is that the
high rates of same-sex attraction in the highly educated
were not accompanied by higher rates of sexual contact
for the most educated, for either men or women, though
the numbers were small. Nevertheless, this lack of
association with education and sexual contact was also
seen in the US General Social Survey data (Butler,
2000).
Attitudes to homosexual sex were much more tolerant
than in either the US or the UK. We found that sex
between two men was regarded as "always" or "mostly
wrong" by 36.3% of men and 22.2% of women,
compared to 62.1% of men and 48.9% of women aged
25-34 years in the UK (Johnson et al , 1994). In the US,
70.7% of men and 66.8% of women in this age group
regarded any homosexual sex as always or almost
always wrong (Laumann et al , 1994). Tolerance has
increased during the 1990s in the US, though the
proportion regarding homosexual relations as "always
wrong" remained above 50% in 1998 (Butler, 2000).
The differences observed in behaviour, attraction and
attitudes compared to the US and UK, raise the
possibility that methodological differences may be
responsible. Our study had an unusually high response
rate and the computer-based questionnaire may have
facilitated disclosure. We have already shown higher
rates of reported numbers of heterosexual partners in
our study at age 18 compared to a national New
Zealand survey (Dickson, Paul, & Herbison, 1993).
Hence our higher rates may be partly because of greater
openness and accuracy. The higher educational attain-
ment of the sample compared to the population of this
age as a whole, means that we might also have slightly
overestimated the extent of same-sex attraction. Apply-
ing our rates for the three educational groups to the
distribution in the whole population of a similar age we
would expect rates of any current same-sex attraction of
4.3% for men and 15.3% for women (instead of 5.6%
and 16.7%).
An accepting climate towards homosexuality has been
found to be associated with higher rates of reported
homosexual behaviour among European countries
A-1115
1614 N. Dickson et al I Social Science & Medicine 56 (2003) 1607-1615
(Sandfort 1998). Nevertheless, as discussed by Catania,
Gibson, Chitwood, and Coates (1990), more acceptance
may increase reporting as well as occurrence, and it is
difficult to disentangle these. New Zealand does have a
relatively accepting climate towards homosexuality,
demonstrated not only by attitudes reported here but
also by openly gay Members of Parliament, and by the
annual Gay and Lesbian Hero Parade in Auckland
being attended by leading politicians.
Despite the present results suggesting relatively high
levels of homosexual behaviour among men (consistent
with a relaxed social climate towards homosexuality) we
have shown that the epidemic of HIV in New Zealand
was one of the first in developed countries to plateau
(Sharpies, Dickson, Paul, & Skegg, 1996). HIV preven-
tion programmes involving gay men were developed
early in the epidemic. One explanation is that a society
with more tolerance and less stigma enables the
development of effective HIV prevention programmes.
Conclusions
Much same-sex attraction is non-exclusive and
unstable. The large size of this unstable group in New
Zealand, compared to other countries, and for women
compared to men, and its variation by education, is
consistent with a large role for the social environment.
Nevertheless, we also noted a smaller group of men and
women who reported more major same-sex attraction.
Most people in this group reported some same-sex
attraction at both age 21 and age 26, and prevalence did
not differ by education. This minority may be less
influenced in the expression of their sexuality by their
social environmentconsistent with a basic biological
dimension to sexual orientation. Overall these findings
argue against any single explanation for homosexual
attraction.
Acknowledgements
This study was part of the Dunedin Multidisciplinary
Health and Development Study (DMHDS). We thank
Paula Sowerby and Dianne Morrison for monitoring the
interviews, and the other staff of the DMHDS who were
involved in the collection of the data and other aspects
of the study. We also thank the sample members and
their families for their long-term involvement in the
study. Helpful comments on an early draft of this paper
were received from Julie Fitzjohn, Tony Hughes, Rob
McGee, Shyamala Nada-Raja, Lianne Parkin, Sarah
Romans, Peter Saxton, David Skegg and Keren Skegg.
The Health Research Council of New Zealand funded
this study and provided salary support for Peter
Herbison.
References
Butler, A. C. (2000). Trends in same-gender sexual partnering,
1988-1998. The Journal of Sex Reaserch, 37, 333-343.
Catania, J. A, Gibson, D. R, Chitwood, D. D, & Coates, T. J.
(1990). Methodological problems in AIDS behavioural
research: Influences on measurement error and participation
bias in studies of sexual behaviour. Psychological Bulletin,
108, 339-362.
Diamond, L. M. (2000). Sexual identity, attractions, and
behaviour among young sexual-minority women over a 2-
year period. Developmental Psychology, 36, 241-250.
Dickson, N. P, Paul, C, & Herbison, P. (1993). Adolescents,
sexual behaviour and implications for an epidemic of HIV/
AIDS among the young. Genitourinary Medicine, 69, 133-140.
Dickson, N. P, Paul, C, Herbison, P., & Silva, P. (1998). First
sexual intercourse: Age, coercion, and later regrets reported
by a birth cohort. British Medical Journal, 316, 29-33.
Fergusson, D. M, Horwood, L. J, & Beautrais, A. L. (1999). Is
sexual orientation related to mental health problems and
suicidality in young people? Archives of General Psychiatry,
56, 876-880.
Guardian Weekly. (2000). Where women rule. Guardian
Weekly, 31 August-6 September.
Institute of Medicine. (1999). Lesbian health. Current assess-
ment and directions for the future. Washington, DC:
National Academy Press.
Johnson, A. M, Wadsworth, J, Wellings, K, & Field, J.
(1994). Sexual attitudes and lifestyles. Oxford: Blackwell.
Kinsey, A. C, Pomeroy, W. B, & Martin, C. E. (1948). Sexual
behavior in the human male. Philadelphia: Saunders.
Laumann, E. O, Gagnon, J. H., Michael, R. T, & Michaels, S.
(1994). The social organisation of sexuality. Chicago: The
University of Chicago Press.
LeVay, S. (1996). Queer science. Cambridge, MA: The MIT Press.
Michael, R. T, Wadsworth, J, Feinleib, J, Johnson, A. M,
Laumann, E. O, & Wellings, K. (1998). Private sexual
behaviour, public opinion, and public health policy related
to sexually transmitted disease: A US-British comparison.
American Journal of Public Health, 88, 749-754.
Northridge, M. E. (2001). Editorial note: Advancing lesbian,
gay, bisexual and transgender health. American Journal of
Public Health, 91, 855-856.
Pattatucci, A. M. L, & Hamer, D. H. (1995). Development and
familiarity of sexual orientation in females. Behavior
Genetics, 25, 407-420.
Paul, C, Dickson, N. P, Davis, P. B, Yee, R. L, Chetwynd, J,
& McMillan, N. (1995). Hetersexual behaviour and HIV
risk in New Zealand. Australian Journal of Public Health,
19, 13-18.
Pool, I , Dickson, J, Dharmalingam, A, Hillcoat-Nelletamby,
S, Johnstone, K, & Roberts, H. (1999). New Zealand's
contraceptive revolutions. Hamilton: Population Studies
Centre, University of Waikato.
Russell, S. T, Franz, B. T, & Driscoll, A. K. (2001). Same-sex
romantic attraction and experience of violence in adoles-
cence. American Journal of Public Health, 91, 903-906.
Sandfort, T. (1998). Homosexual and bisexual behaviour in
European countries. In M. Hubert, N. Bajos, & T. Sandfort
(Eds.), Sexual behaviour and HIV/AIDS in Europe. London,
Pennsylvania: UCL Press.
A-1116
N. Dickson et al. I Social Science & Medicine 56 (2003) 1607-1615 1615
Sharpies, K. J , Dickson, N. P , Paul, C, & Skegg, D. C. G. Turner, C. F , Ku, L, Rogers, S. M, Lindberg, L. D, Pleck, J.
(1996). HIV/AIDS in New Zealand: An epidemic in decline? H, & Sonenstein, F. L. (1998). Adolescent sexual beha-
AIDS, 10, 1273-1278. viour, drug use, and violence: Increased reporting with
Silva, P. A, & Stanton, W. R. (1996). From child to adult: the computer survey technology. Science, 280, 867-873.
Dunedin multidisciplinary health and development study. Worth, H, Saxton, P., Hughes, A, Reid, A, & Segedin, R.
Auckland: Oxford University Press. (1997). Male Call/Waea Mai, Tane Ma. Report one:
Statistics New Zealand. (1997). New Zealand official year book Methodology and demographic characteristics. Auckland:
1997. Wellington: Statistics New Zealand. New Zealand AIDS Foundation.
A-1117
The Role of the
Father in Child
Development
Fifth Edition
Edited by
Michael E. Lamb
University of Cambri dge
WILEY
John Wiley & Sons, Inc.
A-1118
This book is printed on acid-free paper @
Copyright 2010 by John Wiley & Sons, Inc. All rights reserved.
Published by John Wiley & Sons, Inc., Hoboken, New Jersey.
PubUshed simultaneously in Canada.
No part of this publication may be reproduced, stored m a retrieval system, or transmitted in any form or
by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as
permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior
written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to
the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, fax (978)
646-8600, or on the web at www.copynght.com. Requests to the Publisher for permission should be
addressed to the Permissions Department, John Wiley & Sons, Inc., I l l River Street, Hoboken, NJ 07030,
(201) 748-6011, fax (201) 748-6008.
Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts m
preparing this book, they make no representations or warranties with respect to the accuracy or
completeness of the contents of this book and specifically disclaim any implied warranties of
merchantability or fitness for a particular purpose. No warranty may be created or extended by sales
representatives or written sales materials. The advice and strategies contained herem may not be suitable
for your situation. You should consult with a professional where appropriate. Neither the pubhsher nor
author shall be liable for any loss of profit or any other commercial damages, including but not limited to
special, incidental, consequential, or other damages.
This pubUcation is designed to provide accurate and authoritative information in regard to the subject
matter covered It is sold with the understandmg that the pubhsher is not engaged in rendermg
professional services. If legal, accounting, medical, psychological or any other expert assistance is
required, the services of a competent professional person should be sought.
Designations used by companies to distinguish their products are often claimed as trademarks. In all
mstances where John Wiley & Sons, Inc. is aware of a claim, the product names appear in initial capital or
all capital letters. Readers, however, should contact the appropriate companies for more complete
information regarding trademarks and registration.
For general information on our other products and services please contact our Customer Care
Department withm the U.S. at (800) 762-2974, outside the United States at
(317) 572-3993 or fax (317) 572-4002
Wiley also pubHshes its books in a variety of electronic formats. Some content that appears in prmt may
not be available m electronic books. For more information about Wiley products, visit our website at
www.wiley.com.
Library of Congress Cataloging-in-Publication Data:
The role of the father m child development/edited by Michael E. Lamb. - 5th ed.
p cm
Includes index.
ISBN 978-0-470-40549-9 (cloth)
1. Fathers. 2 Father and child-United States. 3. Paternal deprivation-United States.
4. Smgle-parent families-United States. I. Lamb, Michael E., 1953-
HQ756.R64 2010
306.874
,
2-dc22
2009041484
Printed m the United States of America
10 9 8 7 6 5 4 3 2 1
A-1119
C H A P T E R 1 1
Gay Fathers
SUSAN GOLOMBOK and FIONA TASKER
t
I
A
LTHOUGH IT HAS always been the case that gay men have had children,
it is only in recent years that children have been raised in gay-father
families. This has occurred through several routes. First, children of
previously married gay men are more likely to live with their father following
a divorce. Second, more gay men are adopting children both singly and as
couples. Third, a small but increasing number of gay men are having children
with lesbian women and sharing parenting with them. Finally, as a result of
increasing accessibility to assisted reproductive technologies, gay men are
beginning to have children through surrogacy arrangements. In their recently
published report, the Ethics Committee of the American Society for Repro-
ductive Medicine (2006) concluded that requests for assisted reproduction
should be treated without regard for sexual orientation. Consequently, there
is likely to be a rise in the number of gay men who become parents through
assisted reproductive techniques.
In spite of these new routes to parenthood, it remains the case that most gay
fathers who no longer reside with the mother of their children do not have
children living with them. This chapter traces the various ways in which gay
men become fathers. We examine the experiences of those who had children in
the context of a heterosexual relationship or marriage and those who planned
their family after coming out as gay. The consequences for children are also
explored, followed by a consideration of the implications of the existing body
of research on gay-father families and the limitations of the findings.
&
HR!
-la
M
r:
PATHWAYS TO PARENTING
It is difficult to accurately estimate how many gay men are involved in
parenting. Given the prejudice that is regularly encountered by lesbians and
gay men (homophobia) and mainstream society's assumption of hetero-
sexuality (heterosexism), many individuals are reluctant to disclose their
sexual identity. Further, a universally accepted definition of sexual identity
remains elusive (Savin-Williams, 2005) or even untenable (Alexander, 1999;
-4
319
A-1120
320 GAY FATHERS
IS
Pi
% -
IK
1
Butler, 1990,1993). Data from the National Health and Social Life Survey have
indicated that between 2.7% and 4.9% of U.S. men have had a same-sex
relationship (Laumann, Gagnon, Michael, & Michaels, 1994). These data have
been used to estimate that between 1% and 12% of children are being raised
by a gay or lesbian parent (Perrin, 2002a, b). If we consider only the male
same-sex couples who declared an "unmarried partner" in the U.S. census in
2000, then 22% of male same-sex partner households also contained resident
children (Simmons & O'Connell, 2003).
More detailed surveys using convenience and snowball sampling through
the gay community have indicated that between 8% and 10% of gay men
in the United States have parenting responsibilities (Bryant and Demian,
1994; Kaiser Family Foundation, 2001) and, as discussed later, more may be
involved in the upbringing of children if broader definitions of parenting are
considered.
Changes in the sociohistorical context for gay men have raised the visibility
of gay parenthood, and gay fatherhood is less likely to be viewed by either
mainstream society or the gay community as the "social enigma" it once was
(Barret & Robinson, 2000; Signer, 1996). Moreover, fathers generally are
becoming more acceptable as primary caregivers within mainstream society.
The increasing proportion of fathers being awarded custodial responsibility
for their children has meant that "motherless" families are less likely to be
seen as unusual or to necessarily threaten the "best interests of the child."
Greater advocacy of gay fathers within increasingly diverse gay communities
has meant that they are more accepted or tolerated by gay men not involved
in parenting (Barret & Robinson). Gay parenthood seems more likely to be
contemplated by younger cohorts of gay men than ever before. For example,
for the 39 young adult gay men in Berkowitz's U.S. study: "The so-called gay
lens into the future has shifted from an imagined life of childlessness to a life
with new potentialities that include many familial possibilities, some of
which involve becoming a parent and some of which do not" (Berkowitz,
2007, p. 245). Stacey (2006) identified a passion-for-parenthood continuum
in the interview transcripts of the gay male parents and non-parents in Los
Angeles who talked to her about their views on becoming a parent: Of the
50 men interviewed, 22 revealed a passionate commitment to parenting,
26 indicated how situational factors (especially a partner' s interest in parent-
ing) influenced their own decision making, while only two could be classed
as completely rejecting the idea of parenthood.
Gay men' s involvement in parenting arises through various routes in a
wide diversity of circumstances. The largest group of gay parents so far
researched appear to be those who had children in the context of previous
heterosexual relationships and have subsequently identified as gay (Barrett &
Tasker, 2001; Dunne, 2001). Both studies were conducted with nationwide
samples in the United Kingdom. Most of these men then move out of the
marital home, but some continue their relationship with the mother of their
child. One common misconception is that gay men who fathered children
through previous heterosexual relationships "are not really gay." Some men
would no doubt self-identify, or be identified as, bisexual rather than gay m
many contexts. Dunne has argued that the sexual and emotional feelings and
A-1121
Pathways to Parenting 321
relationships narrated by the 50 gay fathers she interviewed were more
complex than the identity categories available to them as descriptions
(Dunne).
A growing group of gay parents are men who have children after coming
out as gay in planned gay-father families. Parenthood may be achieved
through adopting or fostering a child, through a surrogacy arrangement,
or through a formal or informal agreement to share parenting with a single
lesbian mother or a lesbian couple. Surrogacy may appeal to gay men who
want a genetic connection with their baby and those who do not wish to share
parenting across households (Lev, 2006). However, the financial costs of
surrogacy can be prohibitive for many gay men: Not only do they need to pay
expenses (and in some cases a fee) to the surrogate mother and sometimes to
an egg donor as well, but they also must fund the necessary legal costs to
ensure assignment of custody once the child is born.
Gay community surveys, such as the U.S. National Survey of Gay and
Lesbian Parents have indicated that a sizeable group of planned gay-father
families have been formed through adoptive parenting (Johnson and O'Connor,
2002). Nevertheless, gay men face a long and difficult journey when applying
to adopt. A survey of adoption agencies in the United States has suggested that
a growing number of agencies will consider lesbian or gay applicants (Brod-
zinsky, Patterson, & Vaziri, 2002). However, even when agencies are open to
applications, studies surveying social workers in the adoption field have
suggested that these professionals often hold negative and stereotypical views
of gay men (Hicks, 2006), and gay parents have recounted previous instances
of discrimination prior to successful adoption, for example, being placed last in
the queue for babies, being matched with hard-to-place children, or experienc-
ing "false starts" in the adoption process when a child's birth family member
registers an objection (Hicks & McDermott, 1999). In a study conducted in New
England, Gianino (2008) concluded that facing discrimination by public agen-
cies can make private adoption agencies seem a more attractive option for gay
men who can afford them but may expose them to the possibility of exploitation.
When joint adoption by a same-sex couple is not legal, couples are more
likely than they would be elsewhere to conceal their relationship from the
adoption agency, placing a strain on their relationship with each other and
with the agency (Gianino, 2008). The gay father who is not legally recognized
is left in a potentially vulnerable position, being unable to authorize medical
or legal decisions for their child. The lack of legal recognition may also expose
gay fathers to more subtle forms of prejudice. For example, the gay couples in
Gianino's study who were not able to jointly adopt were sometimes quizzed
by others as to who was the legal (i.e., the "real") adoptive parent (Gianino).
We can also catch glimpses of gay parenting in child-rearing arrangements
with lesbian mothers in multiparental families (Gross, 2006; Stacey, 2006). In
many of these cases, a gay father may be the known sperm donor and so be
genetically related to the child he parents; or his partner may be the actual
donor but the couple have planned fatherhood and both are involved in
parenting. Children may be resident only part-time with their gay father(s) or
may simply visit their fathers on a regular basis. Anecdotal reports indicate
that these arrangements can be satisfying for the gay fathers involved, but if
. SI
A-1122
m^:m
322 GAY FATHERS
K*
m
Ts r.
the living arrangements of the lesbian mother(s) change, it may be difficult for
the father to claim legal rights (The Times, 2008).
Studies of planned lesbian-led families have indicated that in the absence
of any continued involvement with a donor father, lesbian mothers often
identify a close male friend to be a male role model or play a significant
mentoring role in their child's life. Hare and Richards (1993) liken the mentor-
ing role ascribed to these men by the lesbian mothers in their study to that of
an older close friend rather than a father. Clarke (2006, 2007) has highlighted
the hegemonic tensions involved for lesbian mothers in claiming gay men as
role models. However, systematic research has not yet examined how gay men
define their relationship to children in these family arrangements.
Gay men also have planned families with single heterosexual women, for
example, with an intermediary organization arranging donor insemination
for gay men and single heterosexual women wanting parenthood without
intimate partnership (Segal-Engelchin, Erera, & Cwikel, 2005). In these hetero-
gay family configurations, the single heterosexual mother and single gay father
maintain separate households and the child generally resides with only one
parent (usually the mother) but both share parental responsibilities (Segal-
Engelchin et al.). The practical arrangements of coparenting between two
households may in many ways be similar to those reached in harmonious
divorce settlements, but the planned nature of these families may mean that
their resemblance to postdivorce households is untainted by previous conflict.
Segal-Engelchin and colleagues suggest several reasons why gay men may
want to parent in this context, including perhaps wanting to coparent with a
woman rather than a man in a quasi-traditional family arrangement, not
wanting to be a resident parent, or the relative ease of this route to parenthood
compared with the costs and difficulties associated with adoption or surro-
gacy. However, we do not know how gay men experience parenting in this
context, or how the experience of growing up in a hetero-gay family may
impact on child development.
GAY MEN AS PARENTS: CONTEXT AND
EXPERIENCE OF PARENTHOOD
Given the diversity in routes to gay parenthood and the variety of family
structures formed, the main issue that gay fathers have in common may not
be related to parenting per se but to how to best prepare their children to deal
with societal institutions, communities, and individuals that rarely affirm gay
fathering, frequently ignore it, or sometimes are openly hostile toward it.
Surveys that have assessed heterosexuals' attitudes toward same-sex
parenting have found that same-sex parents are rated more poorly than
heterosexual parents (Morse, McLaren, & McLachlan, 2007). From other
studies, we can see indications of the complexity of responses that gay fathers
might encounter from heterosexuals. For example, McLeod, Crawford, &
Zechmeister (1999) assessed the attitudes of heterosexual college students
toward gay male parenting through comparison of the responses to two
vignettes: the first one depicting a boy with a gay couple, the second
portraying an identical parenting situation except with a heterosexual couple.
A-1123
Gay Men as Parents Context and Experience of Parenthood 323
In comparison to the control condition, students rated the child with the gay
couple as experiencing significantly higher levels of general distress and,
in particular, being more confused about their sexual and gender identity.
While the gay fathers in the vignette were rated as being more loving,
nurturing, and responsive to their adopted son than was the heterosexual
father, this was paradoxically seen to count against the child' s well-being
because the alleged effeminacy of the gay men was seen as a contravention of
the traditional patriarchal concept of fatherhood. In another study where
heterosexual students were asked to evaluate vignettes depicting parenting
competency, gay male parenting skills were rated most positively and
heterosexual female parenting skills most negatively perhaps because low
expectations of men' s parenting meant greater praise for gay fathers who
were seen as active parents (Massey, 2007).
Armesto (2002) has suggested that parenting is inevitably more stressful
for gay men than for heterosexual men because gay fathers are a socially
stigmatized group. While studies have not systematically examined coming
out and psychological adjustment among gay fathers, other research has
indicated that whether or not gay men decide to disclose to others, coming out
decisions are omnipresent, stressful, and associated with increased risk to
mental health (Carragher & Rivers, 2002; Meyer, 2003). Gay fathers addition-
ally fear that disclosure may mean that their child will be stigmatized by
association or that they will be rejected by their child (Bigner, 1996).
DIVORCED GAY FATHERS
At first glance, one enigma of gay parenting is how gay men came to have
children within a marital or long-term heterosexual relationship. Findings
from earlier and more recent research suggest these gay fathers often married
because they had wanted to be a traditional husband or father (Barret &
Robinson, 2000; Benson, Silverstein, & Auerbach, 2005; Bigner & Jacobsen,
1989; Bozett, 1981, 1987; Dunne, 2001; Miller, 1979; Wyers, 1987). These
retrospective studies have recorded a mixture of motivations underlying
fatherhood. Some men felt they had been responding to societal or inter-
personal pressure to marry. Others recalled that when they married they did
not know what it meant to have a gay identity, thought that a gay identity was
incompatible with fatherhood, or could not see a reflection of themselves in
the negative stereotypes of gay men they had encountered. Some felt that
marriage would change their sexual desires away from men or that having
children would emphasize their manhood both to themselves and to others.
Others cited more positive personal reasons for matrimony and fatherhood,
such as the desire to have children or an affection for their wife.
In Benson et al.'s (2005) qualitative study of 25 gay fathers living in
metropolitan areas in the United States who had children while married,
some highlighted having children as a catalyst that opened them up emo-
tionally and from which they started to gain a sense of their own sexual
identity (Benson et al.). Identifying as gay, however, meant that these fathers
faced the challenge of whether and how to integrate their new sense of self
within the traditional boundaries of fatherhood. Some fathers in Benson
"BSl
i l l
f i l l
A-1124
324 GAY FAIHERS
et al.'s study decided not to disclose their sexual identity to their families or
attempt to integrate their sexual identity with fatherhood; prominent reasons
in these men' s accounts were protecting their children from any problems
disclosure might bring, feeling obliged to respond to pressure from their wife
(or other family members) not to disclose a gay identity, or not knowing when
to disclose or how to deal with the reactions they imagined their children or
other family members might have (see also Dunne (1987) for reflections on
group therapy with gay fathers around the issues involved in "coming out").
Writing from his psychoanalytic work with homosexual men married to
women, Isay (1998) suggested subconscious reasons connected with early
emotional loss of a psychological relationship with their own mother as the
motivation for some gay men to comply with matrimony and deny their
sexual feelings for other men. Other authors have suggested that some gay or
bisexual men reach an accommodation with their wives allowing for gay
relationships while still remaining married to, residing with, and/ or con-
tinuing an emotionally or sexually intimate relationship with her (Dunne,
2001; Matteson, 1987).
For some fathers in Benson et al.'s study, the desire for greater authen-
ticity became the drive for "coming out" and the reason for disclosing to their
families (Benson et al., 2005). Other researchers have suggested that a key
factor in coming out and precipitating the end of a prior heterosexual
relationship was falling in love with a same-sex partner (Miller, 1979). Studies
have not systematically addressed whether having their father come out
as gay in the context of a gay partnership clarifies or compounds children's
ability to come to terms with their father's gay identity. However, children's
acceptance may be complicated by disclosure of HIV infection (Shuster, 1996)
or other family members' objections (Lynch & Murray, 2000). Looking back at
their experiences of disclosing, many gay fathers said that managing family
reactions was generally not as difficult as they had anticipated (Miller).
Nevertheless, one author has argued that emotional distress surrounding
the process of "coming out" may last several years before resolution occurs
(Bigner, J 996).
No studies have yet compared the emotional well-being and parenting of
gay fathers who have come out to their children versus those who have not.
However, uncontrolled and retrospective studies have suggested long-term
benefits for fathers of coming out to one' s children (Armesto, 2002). Nearly
half of the fathers in Benson ct al.'s study who had come out to their children
regarded it as a transformative experience, increasing openness and honesty
in their relationship with their children, and felt that this was reciprocated by
their children (Benson et al., 2005). These men felt both lucky to be a father
and satisfied with their gay identity. One father summed this up as having
"the best of both worl ds" (pp 15). Llowever, the gay fathers in Benson et al.'s
study had to work hard to create a new social support network for themselves
that both facilitated their parenting and recognized their new gay identity.
Researchers have suggested that some of the gay fathers who had "come
out" to their children had developed a new parenting ideology that separated
fathering iôm (hetercOsexuality (Benson et ah, 2005; Silverstein, Auerbach, &
Levant, 2002). Here, the gay father's parenting identity and sexual identity are
A-1125
Gay Men as Parents: Context and Experience of Parenthood 325
seen as complementary rather than exclusivesexuality was not important
for gay men' s parenting; instead, it was the quality of their relationship with
their children that mattered.
Entering into a new partnership may be a goal for many previously
married gay men who would again like to have the commitment of a
long-term relationship initially sought in marriage (Bigner, 1996). While
forming new gay relationships postseparation or divorce presents similar
challenges to those encountered in heterosexual stepfamilies, the process is
more complicated in a new gay stepfather family because family members
need to negotiate how "out " they will be as a family group (Lynch & Murray,
2000). In nearly all of the lesbian and gay stepfamilies interviewed by Lynch
and Murray, decisions about whether to be out as a family had been a family
decision led by the child's level of comfort with being out rather than by the
biological parent and his or her new partner, who, for example, may have had
to make compromises in openly expressing affection for each other.
A couple of research studies have indicated that successful gay partner-
ships are associated with positive parenting, although as yet no longitudinal
studies have investigated causal linkage. Barrett and Tasker (2001) found that
gay fathers with cohabiting partners rated themselves as being more suc-
cessful than single gay fathers at meeting a variety of emotional, practical, and
financial parenting challenges. In another study of 48 gay-father stepfamilies,
the level of integration of a gay partner into family life with the children was
the factor most associated with positive ratings of family satisfaction as
reported by either divorced gay fathers, their partners, or their children
(Crosbie-Burnett & Helmbrecht, 1993).
PLANNED GAY-FATHER FAMILIES
Brinamen and Mitchell have proposed a six-stage model describing the
transition to parenting delineated from their thematic analyses of interviews
with 10 gay men living in the San Francisco Bay area who were parenting a
pre-school-age child (Brinamen & Mitchell, 2008). Initially these gay men
recalled abandoning a parent identity as during their youth they had viewed
fatherhood as incompatible with their developing sense of a gay identity.
Later on, a growing sense of comfort in a gay identity engendered greater
confidence in working out their own life goals, which led them to reexamine
previously held views of both fatherhood and gay identity. Subsequently,
recognition (of the strength) of gay families engendered a feeling of confidence in
the contribution that families of choice built on strong emotional ties could
make in supporting parenthood. In Gianino's study, the eight gay couples
who had adopted children saw partnership as the foundation of their
parenting and felt that their partnership was in turn strengthened by their
experience of parenting together (Gianino, 2008).
Prior to embarking on parenthood, Brinamen and Mitchell (2008) interpose
a fourth stage in their model of gay fatherhood: seeking models and mentors.
Other researchers also have noted that gay fathers have carefully explored the
prospect of parenthood by getting to know other gay families with children
(these were more likely to be lesbian-led families than families led by gay
'* [
;>
^1
A-1126
326 GAY FATHERS
I?*
l
J , ,
'
* *
t
4,
men) and by researching the growing literature on nonheterosexual parenting
(Gianino, 2008; Schacher, Auerbach, & Silverstein, 2005). Once committed to
the idea of parenthood, the gay men in these studies often made major
adjustments to their lives, such as moving to a different neighborhood or
changing jobs, to find a more conducive environment or access more support
in bringing up children. Preparation for parenthood also involved telling
others of their plans, and in particular sensitively informing their family of
origin and coping with any negative responses. In Brinamen and Mitchell's
fifth stage of the transition to parenthood, the gay father is seen as recognizing
the strengths of the gay father as a parent: valuing what he could offer as a parent
through being a gay man, for example, in terms of valuing difference or in
being more emotionally available than most heterosexual fathers were seen as
being. In the final stage of Brinamen and Mitchell's model, gay fathers are
viewed as transitioning into parenthood through integrating an expanded
identity as gay men and as fathers.
As gay fathers, the men interviewed in various studies have indicated how
they have valued drawing upon a variety of sources of social support, not
only from their own family of origin, with whom they often felt a deeper
connection through parenthood, but also from other types of nontraditional
families and new friends made through common parenting experiences with
heterosexual couples (Brinamen & Mitchell, 2008; Gianino, 2008; Schacher et
al., 2005) Some of the gay couples in Gianino' s (2008) study described feeling
isolated from mainstream parenting groups and children' s services but
linked this to their observation that these revolved around mothers, not
fathers, as primary caregivers; their experiences as gay fathers were thus
different from those of lesbian mothers in this key respect.
Most of the gay fathers studied have reported a positive response from the
gay community to the announcement that they were expecting a child but
also said that most of their gay friends would not choose to parent and
indicated that some friendships had cooled over the years (Brinamen &
Mitchell, 2008; Gianino, 2008; Mallon, 2004). In Brinamen and Mitchell's
study, gay fathers felt that they had expanded their identity to become more
than just a gay man and more than just a father, although this expanded
identity was also countered by the feeling that they were set apart from both
other gay men and other (heterosexual) fathers. Single gay fathers seem to
have been more vulnerable to these feelings of isolation than were men in gay
couples (Brinamen & Mitchell). Gay couples also appeared to have an easier
time being accepted by heterosexual parents and by mainstream parenting
services, perhaps because they fitted a more traditional parenting model
(Brinamen & Mitchell). However, parenting as a gay couple may also increase
the public visibility of the gay-father family, raising the greater possibility of
encountering prejudice and the need for vigilance (Gianino).
In reflecting on the strengths they brought to parenthood, gay fathers have
argued that they have been able to be more child centered than most
heterosexual fathers could through their greater openness and tolerance of
their child's choices (Brinamen & Mitchell, 2008). Bigner (1999) additionally
has argued that gay fathers may model androgynous behavior, particularly
for their sons, as fathers m motherless families must necessarily incorporate
' *
8
A-1127
Consequences for Child Development 327
nurturing roles into their parenting repertoire. The 21 urban American gay
fathers interviewed by Schacher et al. (2005) described degendered parenting
because their roles were not prescribed by gender as they were in the majority
of heterosexual couples they knew. The gay fathers described themselves as
having a hybrid parenting role, where both they and their partner divided
child care duties by preference, aptitude, or equality, rather than splitting into
"mother" or "father" roles, thus challenging the dominance embedded in
(hetero)patriarchal fatherhood (see also Gianino, 2008; Silverstein et al., 2002).
Schacher et al. (2005) reported that the gay fathers they interviewed de-
scribed a variety of different examples of heterosexist gender role strain as they
experienced double prejudice: first, against nonheterosexual parenting; sec-
ond, against a man taking on the role of the child's primary caregiver. They
sometimes were the recipients of greater critical attention and comment even
as they walked their children down the street. Within this context, gay fathers
felt the responsibilities of trailblazing and the need to be "super-parents" to
counteract cultural stereotypes, although pioneering social change also
brought its own satisfactions. Nevertheless, these fathers described experienc-
ing conflict, both internally and with their partner, as they made career
compromises in order to look after their children. They sometimes felt person-
ally devalued as a result of these compromises, despite clearly prioritizing
children and fatherhood over monetary or career success and feeling immense
personal satisfaction in their parenthood.
A further advantage of gay men' s parenting may lie in the flexibility of
multiparental child-rearing arrangements. There may be one, two, or more
parents, some of whom live together in the same household while others live
separately, some of whom may share the same ethnic identity while others do
not, some of whom may be biologically related to a particular child while
others are not. Many of the gay fathers in Schacher et al.'s study (2005)
reconceptualized family relationships as being based on love rather than
biology, encompassing a wide variety of family constellations.
CONSEQUENCES FOR CHILD DEVELOPMENT
Studies of children raised by same-sex parents have almost exclusively
focused on families headed by lesbian mothers rather than gay fathers.
This body of research was initiated in the 1970s and concentrated on women
who had become mothers within a heterosexual marriage before making the
transition to a lesbian relationship. The findings of the early investigations
were strikingly consistent (Golombok, Spencer, & Rutter, 1983; Green, Man-
del, Hotvedt, Gray, & Smith, 1986; Hoeffer, 1981; Huggins, 1989; Kirkpatrick,
Smith, & Roy, 1981). With respect to psychological well-being, children with
lesbian mothers did not show a higher incidence of psychological disorder, or
difficulties in peer relationships, than those from heterosexual homes. In
addition, there was no evidence of gender identity confusion for any of the
children studied, and in terms of gender role behavior, no differences were
found between children with lesbian and heterosexual parents for either boys
or girls (for reviews, see Falk, 1989; Golombok, 1999; Patterson, 1992,2002). A
longitudinal study of adults who had been raised as children in lesbian-
m
fl
A-1128
* ' i l l
W'
a
ft
* *
1
J
V
328 GAY FATHERS
mother families found that these young men and women continued to
function well in adult life (Tasker & Golombok, 1995, 1997). More young
people from lesbian-mother families than from heterosexual families had
experimented in same-sex relationships, although the large majority identi-
fied as heterosexual in adulthood (Golombok & Tasker, 1996).
More recent studies of children born through donor insemination and
raised in lesbian-mother families from birth produced similar results. The
children were not found to experience difficulties m terms of gender devel-
opment, peer relationships, or psychological well-being (Bos, 2004; Brewaeys,
Ponjaert, Van Hall, & Golombok, 1997; Chan, Raboy, & Patterson, 1998; Flaks'
Ficher, Masterpasqua, & Joseph, 1995; Gartrell, 2005; Golombok, Tasker, &
Murray, 1997; MacCallum & Golombok, 2004). Findings from general popu-
lation samples in the United States (Wainright & Patterson, 2006; Wainright,
Russell, & Patterson, 2004) and the United Kingdom (Golombok et al., 2003)
are also in line with those of earlier investigations in that the children were
found to be well adjusted with no differences in sex-typed behavior between
the children of lesbian and heterosexual parents for either boys or girls.
i
i
I*
I V."
r
; I
I'*
K*
! &*
B
' *
I V
CHILDREN OF GAY FATHERS WHO LIVE WITH THEIR MOTHER
Much less research has been conducted on children with gay fathers, and the
few studies that do exist are of children who live with their mother. There are
no indications, either from fathers' reports or from the limited number of
interviews with the children themselves, that children who live with their
mother but remain in contact with their gay father experience emotional or
behavioral problems (Barret & Robinson, 1994; Bigner, 1999; Bigner & Jacobsen,
1989; Bozett, 1987;Harris & Turner, 1986; Miller, 1979). However, no system-
atic evaluations of the self-esteem or psychological adjustment of children of
gay fathers have been carried out, and no study has systematically investi-
gated how children respond to the loss of contact with a gay father after
divorce (Tasker, 2005). Estimates vary as to how likely children with gay
fathers are to experience stigma and relationship problems with peers or
adults outside the family. Wyers (1987) reported that 20% of children in his
U.S. study were believed by their father to have experienced discrimination
due to his sexual orientation. In a survey of 101 gay and bisexual fathers in the
United Kingdom by Barrett & Tasker (2001), 37% reported that their children
had experienced teasing by other children. In contrast, neither Bozett (1987)
nor Miller (1979) recorded many instances of homophobia directed against
children of gay fathers in their U.S. samples, although it was thought that the
children may have avoided disclosing their father's sexual orientation to
those from whom they anticipated a negative response.
A recent investigation has shed light on the experiences of young people
with gay fathers from their own perspective based on an analysis of 67
published accounts from children of lesbian and gay parents in the United
Kingdom, United States, and New Zealand, one-third of which were from
those with a gay father (Fairtlough, 2008). Whereas 37 of the accounts were
predominantly positive or neutral, and only three were rated as somewhat
negative, 27 were characterized by both positive and negative feelings.
A-1129
Qualitative analysis of these accounts showed that the problems the young
people experienced arose almost entirely from the negative views of others. In
addition to negative societal views and institutional discrimination against
lesbian and gay people, the adolescents and young adults described instances
of homophobic behavior from family members, including parents, as well as
from peers. Just as in Tasker and Golombok' s (1995, 1997) study of young
adults raised in lesbian-mother families, these young people reported benefit-
ting from both parental openness and from having control over when and
how their family life was made public. Although the authors did not state
whether the pattern of findings differed according to the gender of the same-
sex parent, it seems likely that homophobia is just as salient a problem to
young people with gay fathers as it is for those with lesbian mothers. In a
study of school experiences in Australia, Ray and Gregory (2001) found
teasing and bullying to be common. The children were frustrated by peers'
lack of understanding about their families and lacked confidence in their
teachers' abilities to deal with homophobia.
-m
CHILDREN WHO LIVE WITH GAY FATHERS
At present, little is known about the psychological development and well-
being of the increasing number of children who are being raised by gay
fathers, that is, children who live with their gay fathers and have done so from
birth or early childhood. These children have generally been adopted by a gay
couple or born through assisted reproduction procedures such as surrogacy
and egg donation, although some are born within their gay father's marriage
to, or relationship with, their mother and reside with their gay father.
Can we assume that the psychological outcomes for children who live with
gay fathers will be the same as for children who live with lesbian mothers?
Although the concern that children with lesbian mothers would show
psychological problems was found to lack empirical support, the circum-
stances of children raised by gay fathers are more unusual. Not only are these
children being raised by same-sex parents, but also it is rare for fathers,
whether heterosexual or gay, to be primary caregivers. It is not known what
the combined effect of these two factors will be on children' s social, emo-
tional, identity, and gender development as they grow up. Whereas studies of
other types of nontraditional family suggest that the quality of family
relationships is more important for children' s psychological well-being
than is family structure (Golombok, 2000), the psychological processes that
operate in gay-father families may differ from those of other nontraditional
family forms.
Psychological Adjustment. With respect to children' s psychological adjust-
ment, difficulties would not necessarily be predicted unless gay fathers differ
from lesbian or heterosexual mothers with respect to the parenting processes
that are associated with children' s healthy psychological development such
as parental warmth, sensitivity, emotional involvement, appropriate disci-
pline, and control (Baumrind, 1989,1991; Bomstein, 2002; Bowlby, 1969,1988;
Darling & Steinberg, 1993; Maccoby, 1992). The literature on fathering
A-1130
330 GAY FATHERS
IV-
I**
I* ^
* ,
itB
suggests that fathers are just as capable of parenting as are mothers (Lamb
1997; Parke, 1996), and that children are just as likely to develop a secure
attachment relationship with their father as their mother (van IJzendoorn &
De Wolff, 1997). However, relationships between parents and their children
do not take place within a social vacuum. The wider social environment can
have a marked impact on the quality of family life and can also have a direct
effect on children's psychological well-being irrespective of the quality of
family relationships. It has been argued that children raised in gay-father
families may be exposed to greater prejudice and discrimination than chil-
dren who grow up in families headed by lesbian mothers and thus may be at
greater risk of developing psychological problems. Although both lesbian-
mother families and gay-father families deviate from the heterosexual norm,
gay-father families possess the additional feature of being headed by men in
the absence of women and thus may be more likely to be stigmatized by the
outside world. In spite of greater acceptance of nontraditional family struc-
tures over recent decades, it is often thought that mothers are more suited to
parenting than are fathers.
Adoption and assisted reproduction bring with them additional issues. In
heterosexual famiHes, adoption is associated with a greater incidence of emo-
tional and behavioral problems for children, although it is important to stress
that difficulties are most likely among those who are adopted later in childhood,
especially those who have experienced trauma in their early years (Brodzinsky,
Smith, & Brodzinsky, 1998). Assisted reproduction procedures such as surro-
gacy and egg donation have also been predicted to result in an increased risk
of psychological problems for children in heterosexual families due to the
absence of a genetic and/ or gestational link with the mother. Although the
existing empirical evidence does not support this claim (Golombok, Jadva,
Lycett, E., Murray, & MacCallum, 2005; Golombok, MacCallum, Murray,
Lycett, & Jadva, 2006a; Golombok, Murray, Jadva, MacCallum, & Lycett,
2004a; Golombok et al., 2004b; Golombok et al., 2006b), little is known about
children born through surrogacy or egg donation beyond the early years,
particularly the consequences of ongoing contact with the egg donor or surro-
gate mother. Moreover, studies of adoptive families and assisted reproduction
famihes created through gamete donation demonstrate that the quality of
communication about the nature of their family, and the circumstances of their
birth including their genetic origins, is central to children's psychological well-
being and self-esteem (Daniels & Taylor, 1993; Freeman, Jadva, Kramer, &
Golombok, 2009; Turner & Coyle, 2000) indicating that, for children with gay
fathers, open communication about their origins and their family structure may
be of crucial importance. Just as with adopted children (Grotevant & McRoy,
1998) and children conceived by donor insemination (Jadva, Freeman, Kramer,
& Golombok, 2009), it appears that parents should talk to children about their
nontraditional family at an early age. Children who were told about their gay
father when young were reported to be more accepting than those who found
out when older (Turner, Scadden, & Harris, 1990).
In the first controlled study of parenting and child development in gay-
father families conducted in the United States, Farr and Patterson (2009)
compared 29 gay couples with 27 lesbian couples and 52 heterosexual
%
A-1131
couples, all of whom had an adopted child aged between 1 and 5 years. The
children in the various family types did not differ with respect to psycholog-
ical adjustment as assessed by the parent or teacher version of the Child
Behavior Checklist (Achenbach & Rescorla, 2000) or the gender development
of boys or girls as measured by the Pre-School Activities Inventory (Golombok
& Rust, 2009). Regarding parenting behavior, no differences in discipli-
nary techniques or parenting stress were identified according to family
type. However, heterosexual fathers perceived themselves as less competent
at parenting than the other parents and a greater division of labor in relation
to child care was reported by the heterosexual couples than by the lesbian or
gay couples. As with studies of other family types (Golombok, 2000), family
processes were found to be the most important predictors of child outcomes.
Gender Development. What about children' s gender developmentare chil-
dren who grow up with gay fathers likely to follow a different path from those
with lesbian or heterosexual parents resulting from the presence of one or
two male gay parents and the absence of a female parent from the home?
Gender development is generally conceptualized according to three con-
structs: (a) gender identity, that is, a person' s concept of him- or herself as
male or female; (b) gender role behavior, that is, behavior that is considered to
be typical for boys or girls in a particular culture; and (c) sexual orientation,
that is, whether a person identifies as heterosexual, bisexual, lesbian, or gay.
Although a male gender identity, masculine gender role behavior, and a
heterosexual orientation typically go together, as do a female gender identity,
feminine gender role behavior, and a heterosexual orientation, different
permutations of these three constructs are not unusual. For example, a
man may have a male gender identity, masculine gender role behavior,
and a homosexual orientation, or he may have a female gender identity,
feminine gender role behavior, and a heterosexual orientation. Similarly, a
variety of patterns can be found among women (Hines, 2004).
A range of theories has been put forward to explain the processes involved
in gender development, each suggesting a different developmental pathway
for the sons and daughters of gay fathers. The most influential theories of
gender development have arisen from biological (Hines, 2004), social learning
(Bandura, 1977; Mischel, 1966,1970), and cognitive developmental (Kohlberg,
1966; Martin, 1993) perspectives. It is now generally agreed that sex differ-
ences in behavior result from an interplay among biological, psychological,
and social mechanisms from early fetal development onward (Bussey &
Bandura, 1999; Golombok & Fivush, 1994; Hines, 2004; Ruble, Martin, &
Berenbaum, 2006), with parents playing a minor, and possibly insignificant,
role (Golombok & Tasker, 1996).
A few studies have been conducted in the United States of the gender
development of the sons and daughters of gay fathers, focusing on children
who remained with their mother. With respect to gender identity and gender
role behavior, a small survey found the children of gay fathers to be
developing typical gender role identification and gender role behavior
(Harris & Turner, 1986; Turner et al., 1990). Other investigators have exam-
ined sexual orientation. From interviews with gay fathers about the sexual
'iii*! !
A-1132
Ifl.'n
332 GAY FATHERS
rv
1 4
Hfc
orientation of 27 adult daughters and 21 adult sons. Miller (1979) reported
that 3 daughters identified as lesbian, and 1 son identified as gay. Six sons and
13 daughters of gay fathers, aged between 14 and 35 years old, were
interviewed by Bozett (1987). Two sons reported being gay, and one daughter
identified as bisexual. In a more extensive study of 55 gay fathers and their
82 sons, the large majority of the sons were reported by their fathers to be
heterosexual, with 9% classified as gay or bisexual (Bailey, Bobrow, Wolfe, &
Mikach, 1995). Data obtained directly from around half of the sons generally
validated the fathers' reports. As suggested by Bailey et al., fathers with gay
offspring may have been more likely to participate in research of this kind
because they believed that the researchers would find them especially
interesting.
The only investigation to include a control group of young adults with
heterosexual fathers, thus allowing a comparison between individuals with
gay and heterosexual fathers using identical criteria for the assessment of
sexual orientation, is a study of 24 gay fathers and 24 heterosexual fathers by
Tasker and Barrett (2004) in the United Kingdom. Each group of fathers,
matched for age and social class, had 36 adult sons and daughters who
participated in a standardized, in-depth interview about their psychosexual
development. The children of gay fathers were more likely than the children
of heterosexual fathers to have been attracted to someone of the same gender
and to have had a sexual relationship with someone of the same gender. All of
the offspring of heterosexual fathers identified as heterosexual. Whereas the
large majority of offspring of gay fathers also identified as heterosexual, six
young adults did not. Of these, two sons identified as gay, one daughter
identified as lesbian, and two sons and one daughter identified as bisexual.
The investigations by Bailey et al. (1995) and Tasker and Barrett (2004)
obtained additional data on family environment factors that potentially could
be related to the development of a lesbian, gay, or bisexual orientation for the
offspring of gay fathers. Examples include the young person' s frequency of
contact with the father, acceptance of the father's gay identity, the father's
response to the young person' s partners, and the quality of the young person' s
relationship with the father. These possible influences were found to be
unrelated to the young people' s sexual orientation, suggesting that family
environment factors do not explain the greater same-gender sexual interest
shown by the adult offspring of gay fathers. The lack of influence of family
environment factors in their study led Bailey et al. to argue that genetic factors
may be involved. Nevertheless, the significant association between same-
gender relationships and a more positive response by fathers to the young
person' s partners found in Tasker and Barrett's study is in line with Golombok
and Tasker's (1996) conclusion that children who grow up in lesbian-mother
families may be more likely to engage in same-sex relationships because they
are not subject to the disapproval experienced by their peers from heterosexual
homes. Research on the sexual orientation of children of same-sex parents is in
its infancy, and no conclusions can be drawn about the relative influence of
family environment and genetic factors. As with other aspects of human
development and behavior, the answer is likely to involve a complex interplay
between the two (Rutter, 2005), with different individuals following different
A-1133
Limitations and Implications 333
pathways from conception to adult life. What is more certain, however, is that
the majority of children of gay fathers identify as heterosexual, indicating that
the sexual orientation of parents is, at most, a minor influence on the sexual
orientation of their daughters and sons.
As described above, only one controlled study has been conducted of the
development of young children who are actually living in gay-father families
(Farr & Patterson, 2009). In this study, no difference was identified in the sex-
typed behavior of boys or girls in comparison with their counterparts from
matched groups of lesbian and heterosexual families as measured by the Pre-
School Activities Inventory (Golombok & Rust, 2009). Thus, the commonly
held assumption that children raised by gay fathers would show atypical
gender role behavior was not supported by the findings of this study.
&
LIMITATIONS AND IMPLICATIONS
In spite of the pioneering studies of a small group of researchers in the 1970s
and 1980s, studies of gay fathers and their children lag well behind those of
families headed by lesbian mothers. Whereas much is known about children
in lesbian-mother families, there is currently only one controlled study of
children who live with gay fathers (Farr & Patterson, 2009). This is largely
because children with gay fathers have generally been raised by their
heterosexual mothers. It is only in recent years, through adoption, surrogacy,
and a variety of parenting arrangements between gay fathers and hetero-
sexual or lesbian mothers that children have begun to reside with gay fathers.
Research on gay-father families is currently at the same place as research on
lesbian-mother families was in the 1970s.
Although little is known about children who grow up with their gay
fathers, the body of research that does exist has begun to shed light on the
experiences of gay fathers and their children who live apart. These studies are
not without their problems. Most are qualitative studies of small samples.
Moreover, reliance on volunteers means that the samples may be biased. The
nature of such bias is unknown and can be overcome only through the
recruitment of representative samples. It is conceivable, however, that fathers
Whose children were experiencing problems may have been less likely to take
part in research on children' s psychological well-being. A further limitation is
the absence of comparison groups of lesbian or heterosexual families in the
majority of studies conducted so far. As a result, it is not known whether the
findings regarding gay-father families also apply to other family types, or
whether they arise from confounding factors such as age of the children,
socioeconomic status, or route to parenthood. For example, until demograph-
ically matched comparison groups of lesbian-mother families are assessed
using identical measures, we shall not know whether children of gay fathers
are more or less likely to experience homophobia than are children of lesbian
mothers. It should also be noted that the majority of gay fathers who have
participated in research are white, college-educated, and "out " about their
sexuality. They also tend to live in cities or areas that are tolerant of diversity,
and thus their experiences may not be generalizable to less accepting
communities.
A-1134
334 GAY FATHERS
Research on lesbian-mother families has helped dispel myths about the
problems that were widely assumed to arise for children. The findings of the
studies initiated in the 1970s and continuing to this day have contributed to
policy making and legislation in relation to same-sex parenting, not just for
lesbian women but also for gay men. Many changes have taken place over the
past 30 years; it is now rare for lesbian mothers to lose custody of their
children following divorce on the grounds of their sexual orientation; in some
countries and some states of the United States, lesbian and gay individuals
can adopt children, sometimes jointly; and an increasing number of fertility
clinics are offering assisted reproductive technologies not only to lesbian
women but also to gay men. Although gay men experience many more
obstacles to parenthood than do lesbian women, there is a slow shift toward
acceptance of gay men as fathers. This was highlighted in November 2008
when Florida's 30-year-old ban on gay adoption was declared un-
constitutional. In her ruling, the judge stated:
's
*!
V.
1
#
i
' " J
- t
Based on evidence presented from experts from all over this country and
abroad, it is clear that sexual orientation is not a predictor of a person's ability to
parent. . . . The most important factor in ensuring a well-adjusted child is the
quality of parenting.
The move toward same-sex marriage and other forms of legal recognition of
same-sex relationships (Herek, 2006; Wintemute, 2004, 2005, 2006), as well as
the greater openness of adoption agencies (Brodzinsky et al., 2002) and fertility
clinics to offer treatment to gay men (Ethics Committee of the American Society
for Reproductive Medicine, 2006), is likely to produce an increase in, and
greater acceptance of, gay-father families in the years to come.
REFERENCES
Achenbach, T. M. & Rescorla, L. A. (2000). Manual for the ASEBA. Preschool forms and
profiles Burlington, VT: University of Vermont, Research Center for Children,
Youth and Families.
Alexander, J. (1999). Introduction to the special issue: Queer values, beyond identity.
Journal of Gay, Lesbian, and Bisexual Identity, 4, 287-292.
American Civil Liberties Union (1999, April 6). ACLUFacf Sheet: Overview of Lesbian and
Gay Parenting, Adoption and Poster Care, www.aclu.org/issues/gay/parent.html.
Armesto, J. C. (2002). Developmental and contextual factors that influence gay
fathers' parental competence: A review of the literature. Psychology of Men and
Masculinity, 3, 67-78.
Bailey, J. M., Bobrow, D., Wolfe, M., & Mikach, S. (1995). Sexual orientation of adult
sons of gay fathers. Developmental Psychology, 31, 124-129.
Bandura, A. (1977). Social learning theory. Englewood Cliffs, NJ: Prentice Hall.
Barret, R. L., & Robinson, B. E. (2000). Gay fathers. Encouraging the hearts of gay dads and
their families. New York. Jossey-Bass.
Barrett, H., & Tasker, F. (2001). Growing up with a gay parent: Views of 101 gay
fathers on their sons' and daughters' experiences Educational and Child Psychology,
18, 62-77.
< 4
Is
1
A-1135
References 335
Baumrind, D. (1989). Rearing competent children. In W. Damon (Ed.), Child develop-
ment today and tomorrow (pp. 349-379). San Francisco: Jossey-Bass.
Baumrind, D. (1991). Effective parenting during the early adolescent transition. In
P. Cowan & M. Hetherington (Eds.), Family transitions. Hillsdale, NJ: Erlbaum.
Benson, A. L., Silverstein, L. B., & Auerbach, C. F. (2005). From the margins to the center:
Gay fathers reconstruct the fathering role. Journal of GLBT Family Studies, 2(3), 1-29.
Berkowitz, D. (2007). A sociohistorical analysis of gay men' s procreative conscious-
ness. Journal of GLBT Family Studies, 3, 157-190.
Bigner, J. J. (1999). Raising our sons: Gay men as fathers. Journal of Gay and Lesbian
Social Services, 10(1), 61-77.
Bigner, J. J. (1996). Working with gay fathers: Developmental, postdivorce parenting
and therapeutic issues. In J. Laird & R.-J. Green (Eds.), Lesbians and gays in couples
and families (pp. 370-403). San Francisco: Jossey-Bass.
Bigner, J., & Jacobsen, R. B. (1989). Parenting behaviors of homosexual and hetero-
sexual fathers. In F. W. Bozett (Ed.), Homosexuality and the family. New York:
Harrington Park.
Bornstein, M. H. (Ed.). (2002). Handbook of parenting: Children and parenting. Mahwah,
NJ: Erlbaum.
Bos, H. (2004). Parenting in planned lesbian families. Amsterdam: Vossiuspers UvA.
Bowlby, J. (1969). Attachment and loss: Vol. 1. Attachment. London: Hogarth Press.
Bowlby, J. (1988). A secure base: Clinical applications of attachment theory. London:
Routledge.
Bozett, F. W. (1981). Gay fathers: Evolution of the gay-father identity. American
Journal of Orthopsychiatry, 51, 552-559.
Bozett, F. W. (1987). Children of gay fathers. In F. W. Bozett (Ed.), Gay and lesbian
parents (pp. 39-57). New York: Praeger.
Brewaeys, A., Ponjaert, I., Van Hall, E., & Golombok, S. (1997). Donor insemination:
Child development and family functioning in lesbian-mother families with 4-8 year
old children. Human Reproduction, 12(6), 1349-1359.
Brinamen, C. F., & Mitchell, V. (2008). Gay men becoming fathers: A model of identity
expansion. Journal of GLBT Family Studies, 4, 521-541.
Brodzinsky, D., Patterson, C. J. & Vaziri, M. (2002). Adoption agency perspectives
on lesbian and gay prospective parents: A national study. Adoption Quarterly, 5(3),
5-23.
Brodzinsky, D. M., Smith, D. W., & Brodzinsky, A. B. (1998). Childrens adjustment to
adpption: Developmental and clinical issues. Developmental Clinical Psychology and
Psychiatry, 38, 1-141.
Brooks, D., & Goldberg, S. (2001). Gay and lesbian foster care placements: Can they
meet the needs of waiting children. Social Work, 46, 147-157.
Bryant, A. S., & Demian, N. (1994). Relationship characteristics of American gay and
lesbian couples: Findings from a national survey. Journal of Gay and Lesbian Social
Services, 1: 101-117.
Bussey, K., & Bandura, A. (1999). Social cognitive theory of gender development.
Psychological Review, 106(4), 676-713.
Butler, J. (1990). Gender trouble: Feminism and the subversion of identity. New York:
Routledge.
Butler, J. (1993). Bodies that matter: On the discursive limits of "sex."New York:
Routledge.
Carragher, D. J., & Rivers, I. (2002). Trying to hide: A cross-national study of growing
up for non-identified gay and bisexual male youth. Clinical Child Psychology and
| #
A-1136
336 GAY FATHERS
w
V.
r
l **
I ' t *
I * "
I*"*
1
.
Chan, R. W., Raboy, B., & Patterson, C. (1998). Psychosocial adjustment among
children conceived via donor insemination by lesbian and heterosexual mothers
Child Development, 69(2), 443-457.
Clarke, V. (2006). "Gay men, gay men and more gay men": Traditional, liberal and
critical perspectives on male role models in lesbian families. Lesbian and Gay
Psychology Review, 7, 19-35.
Clarke, V. (2007). Men not included? A critical psychology analysis of lesbian families
and male influence in child rearing. Journal of GLBT Family Studies, 3, 309-349.
Crosbie-Burnett, M., & Helmbrecht, L. (1993). A descriptive empirical study of gay
male stepfamilies. Family Relations, 42, 256-262.
Daniels, K., & Taylor, K. (1993). Secrecy and openness in donor insemination. Politics
and Life Sciences, 12(2), 155-170.
Darling, N., & Steinberg, L. (1993). Parenting style as context: An integrative model.
Psychological Bulletin, 118, 487^196.
Dunne, E. J. (1987). Helping gay fathers come out to their children. Journal of
Homosexuality, 13, 213-222.
Dunne, G. A. (2001). The lady vanishes? Reflections on the experiences of married
and divorced non-heterosexual fathers. Sociological Research Online, 6(3), www.
socresonline. org. uk/6/3/dunne. html.
Ethics Committee of American Society for Reproductive Medicine (2006). Access to
fertility treatment by gays, lesbians and unmarried persons. Fertility and Sterility,
86(5), 1333-1335.
Fairtlough, A. (2008). Growing up with a lesbian or gay parent: Young people's
perspectives. Health and Social Care in the Community, 16(5), 521-528.
Falk, P. J. (1989). Lesbian mothers, psychosocial assumptions in family law. American
Psychologist, 44(2), 941-947.
Farr, R., & Patterson, C. (2009). Adoptive families led by gay fathers: Family processes and
outcomes. Paper presented to the Society for Research in Child Development,
Denver, CO.
Haks, D. K., Ficher, L, Masterpasqua, F., & Joseph, G. (1995). Lesbians choosing
motherhood: A comparative study of lesbian and heterosexual parents and their
children. Developmental Psychology, 31(1), 105-114.
Freeman, T., Jadva, V., Kramer, W., & Golombok, S. (2009). Gamete donation:
Parents' experiences of searching for their child' s donor siblings and donor.
Human Reproduction, 23(3), 505-516.
Gartrell, N. (2005). The national lesbian family study: 4. Interviews with the 10-year-
old children. American Journal of Orthopsychiatry, 75(4), 551-572.
Gianino, M. (2008). Adaption and transformation: The transition to adoptive parent-
hood for gay male couples. Journal of GLBT Family Studies, 4, 205-243.
Golombok, S. (1999). Lesbian mother families. In A. Bainham, M. Richards, & S. D.
Sclater (Eds.), What is a parent? A socio-legal analysis (pp. 161-180). Oxford, UK:
Hart.
Golombok, S. (2000). Parenting: What really counts PLondon: Routledge.
Golombok, S., & Fivush, R. (1994). Gender development. New York: Cambridge
University Press.
Golombok, S., Jadva, V., Lycett, E., Murray, C, & MacCallum, F. (2005). Families
created by gamete donation: Follow-up at age 2. Human Reproduction, 20(1), 286-293.
Golombok, S., Lycett, E., MacCallum, F., Jadva, V., Murray, C, Rust, J.,et al. (2004b).
Parenting children conceived by gamete donation. Journal of Family Psychology,
18(3), 443-452.
Golombok, S., MacCallum, F., Murray, C, Lycett, E., & Jadva, V. (2006a). Surrogacy
families: Parental functioning, parent-child relationships and children's
A-1137
References 337
psychological development at age 2. Journal of Child Psychology and Psychiatry, 47
(2), 213-222
Golombok, S., Murray, C, Jadva, V, Lycett, E, MacCallum, F , & Rust, J. (2006b).
Non-genetic and non-gestational parenthood. Consequences for parent-child
relationships and the psychological well-being of mothers, fathers and children
at age 3. Human Reproduction, 21, 1918-1924.
Golombok, S., Murray, C, Jadva, V., MacCallum, F, & Lycett, E. (2004a) Families
created t hrough a surrogacy arrangement. Parent-child relationships m the first
year of life. Developmental Psychology, 40, 400^11.
Golombok, S., Perry, B., Burston, A, Murray, C, Mooney-Somers, J, Stevens, M.,
et al. (2003). Children with lesbian parents' A communi t y study. Developmental
Psychology, 39, 20-33.
Golombok, S & Rust, J. (2009). Preschool activities inventory London PsychCorp
Golombok, S., Spencer, A., & Rutter, M. (1983). Children in lesbian and single-parent
households: Psychosexual and psychiatric appraisal. Journal of Child Psychology and
Golombok, S., & Tasker, F (1996) Do parents influence the sexual orientation of their
children? Findings from a longitudinal st udy of lesbian families. Developmental
Psychology, 32(1), 3-11.
Golombok, S., Tasker, F., & Murray, C. (1997) Children raised m fatherless families
from infancy. Family relationships and the socioemotional development of chil-
dren of lesbian and single heterosexual mothers Journal of Child Psychology and
Psychiatry, 38(7), 783-792.
Green, R., Mandel, J B., Hotvedt, M E., Gray, J , & Smith, L. (1986). Lesbian mothers
and their children: A comparison with solo parent heterosexual mothers and their
children. Archives of Sexual Behavior, 15(2), 167-184.
Gross, M. (2006). Biparental and multiparental lesbian and gay families in France
Lesbian and Gay Psychology Review, 7, 35-46.
Grotevant, M., & McRoy, R. (1998). Openness m adoption: Exploring famdy connections.
New York: Sage.
Hare, J., & Richards, L. (1993). Children raised by lesbian couples Does the context of
birth affect father and partner involvement
7
Family Relations, 42, 249-255
Harris, M., & Turner, P. (1986). Gay and lesbian parents. Journal of Homosexuality, 12,
101-113.
Herek, G. (2006). Legal recognition of same-sex relationships m the United States. A
social science perspective. American Psychologist, 61, 607-621.
Hicks, S (2006). Maternal menperverts and deviants? Making sense of gay men as
foster carers and adopters. Journal of GLBT Family Studies, 2, 93-114.
Hicks, S., & McDermott, J. (1999). Lesbian and gay fostering and adoption Extraordinary
yet ordinary. London: Kingsley.
Hines, M. (2004). Brain gender. Oxford, UK: Oxford University Press
Hoeffer, B. (1981). Children' s acquisition of sex-role behaviour in lesbian-mother
families. American Journal of Orthopsychiatry, 24, 518-530.
Huggi ns, S. L. (1989). A comparative st udy of self-esteem of adolescent children of
divorced lesbian mothers and divorced heterosexual mothers In F Bozett (Ed ),
Homosexuality and the family (pp. 123-135). New York: Harrington Park.
Isay, R. A. (1998). Heterosexually married homosexual men Clinical and develop-
mental issues. American Journal of Orthopsychiatry, 68, 424432.
fadva, V., Freeman.T., Kramer, W., & Golombok, S (2009). The experiences of
adolescents and adults conceived by sperm donation' Comparison by age of
disclosure and family type Human Reproduction, 24(8), 1909-1919
m.'
' t i
t i
ml
" I
1
A-1138
-
M -* -
TV| V
MX-
I
338 GAY FATHERS
Johnson, S. M., & O'Connor, E. (2002). The gayby boom: The psychology of gay parenthood.
New York: New York University Press.
Kaiser Family Foundation (2001, November). Inside-OUT: A report on the experiences of
lesbians, gays and bisexuals in America and the public's views on issues and policies related
to sexual orientation. Publication #3193 (Menlo Park, CA: Henry J. Kaiser Founda-
tion), www.kff.org/kaiserpolls/3193-index.cfm (retrieved January 7, 2009).
Kirkpatrick, M., Smith, C, & Roy, R. (1981). Lesbian mothers and their children: A
comparative survey. American Journal of Orthopsychiatry, 51, 545-551.
Kohlberg, L. (1966). A cognitive-developmental analysis of children' s sex-role con-
cepts and attitudes. In E. E. Maccoby (Ed.), The development of sex differences.
Stanford, CA: Stanford University Press.
Lamb, M. (Ed.) (1997). The role of the father in child development. New York: Wiley.
Laumann, E. O., Gagnon, J. H, Michael, R. T., & Michaels, S. (1994). The social
organization of sexuality in the United States. Chicago: University of Chicago Press.
Lev, A. I. (2006). Gay dads: Choosing surrogacy. Lesbian and Gay Psychology Review, 7,
73-77.
Lynch, J. M., & Murray, K. (2000). For the love of the children: The coming out process
for lesbian and gay parents and stepparents. Journal of Homosexuality, 39, 1-24.
MacCallum, F., & Golombok, S. (2004). Children raised in fatherless families from
infancy: A follow-up of children of lesbian and single heterosexual mothers.
Journal of Child Psychology and Psychiatry, 45, 1407-1419.
Maccoby, E. E. (1992). The role of parents in the socialization of children. Develop-
mental Psychology, 28, 1006-1017.
Mallon, G. P. (2004). Gay men choosing parenthood. New York: Columbia University
Press.
Martin, C. L. (1993). New directions for investigating children's gender knowledge.
Developmental Review, 13(2), 184-204.
Massey, S. G. (2007). Sexism, heterosexism, and attributions about undesirable
behavior in children of gay, lesbian, and heterosexual parents. Journal of GLBT
Family Studies, 3, 457-483.
Matteson, D. R. (1987). The heterosexually married gay and lesbian parent. In F.W.
Bozett (Ed.), Gay and lesbian parents (pp. 138-161). New York: Praeger.
McLeod, A. C, Crawford, I., & Zechmeister, J. (1999). Heterosexual undergraduates'
attitudes toward gay fathers and their children. Journal of Psychology and Human
Sexuality, 11, 43-62.
Meyer, I. H. (2003). Prejudice, social stress, and mental health in lesbian, gay and
bisexual populations: Conceptual issues and research evidence. Psychological
Bulletin, 129, 674-697.
Miller, B. (1979). Gay fathers and their children. Family Coordinator, 28, 544-552.
Mischel, W. (1966). A social learning view of sex differences in behavior. In E. E.
Maccoby (Ed.), The development of sex differences (pp. 56-81). Stanford, CA: Stanford
University Press.
Mischel, W. (1970). Sex-typing and socialization. In P. Mussen (Ed.), Carmichael's
manual of child psychology (Vol. 2, pp. 3-72). New York: Wiley.
Morse, C. N., McLaren, S., & McLachlan, A. J. (2007). The attitudes of Australian
heterosexuals toward same-sex parents. Journal of GLBT Family Studies, 3,425-455.
Parke, R. D. (1996). Fatherhood. Cambridge, MA: Harvard University Press.
Patterson, C. J. (1992). Children of lesbian and gay parents. Child Development, 63,
1025-1042.
Patterson, C. J. (2002). Lesbian and gay parenthood. In M. Bornstein (Ed.), Handbook of
parenting (Vol. 3, pp. 317-338). Hillsdale, NJ: Erlbaum.
Ls
1;
A-1139
1 - i ^
References 339
Perrin, E. C. (2002a). Coparent or second parent adoption by same-sex parents.
Pediatrics, 109, 341-344.
Perrin, E. C. (2002b). Sexual orientation in child and adolescent health care. New York:
Kluwer Academic/Plenum.
Ray, V., & Gregory, R. (2001). School experiences of the children of lesbian and gay
parents. Family Matters, 59, 28-34.
Ruble, D. N., Martin, C. L., & Berenbaum, S. A. (2006). Gender development. In
N. Eisenberg (Ed.), Handbook of child psychology (Vol. 3, pp. 858-932). Hoboken, NJ:
Wiley.
Rutter, M. (2005). Genes and behavior: Nature-nurture interplay explained. Oxford, UK:
Blackwell.
Savin-Williams, R. C. (2005). The new gay teenager. London: Harvard University Press.
Schacher, S. J., Auerbach, C. F., & Silverstein, L. B. (2005). Gay fathers expanding the
possibilities for us all. Journal of GLBT Family Studies, 1(3), 31-52.
Segal-Engelchin, D., Erera, P. I., & Cwikel, J. (2005). The hetero-gay family. An
emergent family configuration. Journal of GLBT Family Studies, 1(3), 85-103.
Shuster, S. (1996). Families coping with HIV disease in gay fathers: Dimensions of
treatment. In J. Laird and R.-J. Green (Eds.), Lesbians and gays in couples and families
(pp. 404-419). San Francisco: Jossey-Bass.
Silverstein, L. B., Auerbach, C. F., & Levant, R. F. (2002). Contemporary fathers
reconstructing masculinity: Clinical implications of gender role strain. Professional
Psychology: Research and Practice, 33, 361-369.
Simmons, T., & O'Connell, M. (2003, February). Married-couple and unmarried-partner
households: 2000. Washington, DC: U.S. Census Bureau, www. census. gov/ prod/
2003pubs/censr-5.pdf (retrieved January 7, 2009).
Stacey, J. (2006). Gay parenthood and the decline of paternity as we knew it.
Sexuahties, 9, 27-55.
Tasker, F. (2005). Lesbian mothers, gay fathers, and their children: A review.
Developmental and Behavioural Pediatrics, 26(3), 224-240.
Tasker, F., & Barrett, H. (2004, May 12-16). The sexual identity of young adult sons
and daughters of gay fathers. Paper presented at the 7th Congress of the European
Federation of Sexology, Brighton, UK.
Tasker, F., & Golombok, S. (1995). Adults raised as children in lesbian families.
American Journal of Orthopsychiatry, 65(2), 203-215.
Tasker, F., & Golombok, S. (1997). Growing up in a lesbian family. New York: Guilford
Press.
The Times (2008, December 18). Gay father hunts for lesbian mother who vanished
with son. www.timesonlme.co.uk/tol/news/uk/crime/article5362610.ece
(accessed January 14, 2009).
Turner, A., & Coyle, A. (2000). What does it mean to be a donor offspring? The
identity experiences of adults conceived by donor insemination and the implica-
tions for counselling and therapy. Human Reproduction, 15(9), 2041-2051.
Turner, P., Scadden, L., & Harris, M. (1990). Parenting in gay and lesbian families.
Journal of Gay and Lesbian Psychotherapy, 55-66.
van IJzendoorn, M. H, & De Wolff, M. S. (1997) In search of the absent fathermeta-
analyses of infant-father attachment: A rejoinder to our discussants. Child Devel-
opment, 68(4), 604-609.
Wainright, J., & Patterson, C. (2006). Delinquency, victimization, and substance use
among adolescents with female same-sex parents. Journal of Family Psychology, 20
(3), 526-530.
Jik
A-1140
340 GAY FATHERS
f
Wainright, J, Russell, S., & Patterson, C (2004). Psychosocial adjustment, school
outcomes and romantic relationships of adolescents with same-sex parents. Child
Development, 75, 1886-1898.
Wintemute, R W. (2004). Sexual orientation and the charter. The achievement of
formal legal equality (1985-2005) and its limits. McGill Law Journal, 49, 1143
Wintemute, R. W. (2005). From "sex rights" to "love rights": Partnership rights as
human rights. In N Bamforth (Ed.), Sex rights. Oxford, UK: Oxford University
Press.
Wintemute, R.W. (2006). Same-sex marriage: When will it reach Utah? Bngham Young
University Journal of Public Law, 20, 527.
Wyers, N. L (1987) Homosexuality in the family: Lesbian and gay spouses. Social
Work, 32, 143-148.
w m-
m
A-1141
BRIEF REPORTS
Delinquency, Victimization, and Substance Use Among Adolescents
With Female Same-Sex Parents
Jennifer L. Wainright and Charlotte J. Patterson
University of Virginia
The question of whether parental sexual orientation has an impact on human development has
important implications for psychological theories and for legal policy. This study examined
associations among family type (same-sex vs. different-sex parents), family and relationship
variables, substance use, delinquency, and victimization of adolescents. Participants included
44 adolescents living with female same-sex couples and 44 adolescents living with different-
sex couples, matched on demographic characteristics and drawn from a national sample.
Analyses indicated that adolescents were functioning well and that their adjustment was not
associated with family type. Adolescents whose parents described closer relationships with
them reported less delinquent behavior and substance use, suggesting that the quality of
parentadolescent relationships better predicts adolescent outcomes than does family type.
Keywords: sexual orientation, parenting, substance use, delinquency, victimization
The question of whether parental sexual orientation has
an impact on human development has received considerable
attention recently from a variety of sources (Stacey &
Biblarz, 2001). This topic has important implications for
theories of socialization (Golombok, 1999) and for law and
social policy (Patterson, Fulcher, & Wainright, 2002; Perrin
& the Committee on Psychosocial Aspects of Child and
Family Health, 2002). A growing body of empirical re-
search has examined outcomes among children who are
reared by gay and lesbian parents.
Studies reported to date have identied few associations
between parental sexual orientation and young childrens
well-being (Patterson, 2000), but have suggested that pro-
cesses within the family may be associated with child out-
comes (Chan, Raboy, & Patterson, 1998). We still have
relatively few studies of adolescent offspring of lesbian or
gay parents, however, and some have advised caution when
generalizing the results of research conducted with young
children to adolescents (e.g., Baumrind, 1995; Perrin & the
Committee on Psychosocial Aspects of Child and Family
Health, 2002).
The small body of research that has focused on adoles-
cent offspring of families headed by same-sex couples
found no differences in young peoples self-esteem (Hug-
gins, 1989); depression, anxiety, and peer group hostility
(Tasker & Golombok, 1997); or depressive symptoms, anx-
iety, grade-point average, trouble in school, sexual behav-
ior, and romantic relationships (Wainright, Russell, &
Patterson, 2004) as a function of mothers sexual orienta-
tion. Wainright et al. (2004), however, did report signicant
associations between parental perception of parent
adolescent relationship quality and adolescent school
adjustment.
Considerable research indicates that parenting style inu-
ences the effectiveness of parents efforts to socialize their
children (Steinberg & Silk, 2002). A warm, accepting style
of parenting is generally related to optimal outcomes for
adolescents (Rohner, 1999), especially if it is combined
with appropriate limit setting and monitoring of adolescent
behavior (Steinberg & Silk, 2002). In particular, family
processes such as the quality of the parentadolescent rela-
tionship have been found to be associated with adolescent
risk behaviors (e.g., Crosnoe, Erickson, & Dornbusch,
2002; Matherne & Thomas, 2001).
We assessed levels of risk behavior among adolescent
offspring of female same-sex parents and explored factors
associated with individual differences within this group. We
assessed family type (i.e., whether parent has a same-sex or
different-sex partner) as well as relationship variables. On
the basis of previous ndings with children (e.g., Chan et
al., 1998), we expected to nd no differences in substance
use, risky and delinquent behaviors, or victimization based
on family type. Consistent with the literature on sources of
individual differences among adolescents (e.g., Steinberg &
Silk, 2002), however, we did expect to nd signicant
associations between relationship variables such as the qual-
ity of the parentadolescent relationship and adolescent
outcomes.
Jennifer L. Wainright and Charlotte J. Patterson, Department of
Psychology, University of Virginia.
Correspondence concerning this article should be addressed to
Charlotte J. Patterson, Department of Psychology, P.O. Box
400400, University of Virginia, Charlottesville VA 22904. E-mail:
CJP@virginia.edu
Journal of Family Psychology Copyright 2006 by the American Psychological Association
2006, Vol. 20, No. 3, 526530 0893-3200/06/$12.00 DOI: 10.1037/0893-3200.20.3.526
526
A-1142
Method
Participants
Participating families were drawn from a large, nationally rep-
resentative sample of adolescents in the United States collected for
the National Longitudinal Study of Adolescent Health (Add
Health), a school-based study of the health-related behaviors of
adolescents in Grades 712 (See Bearman, Jones, & Udry, 1997).
Data used in the present study were collected through the In-Home
Interview (IHI) and surveys, as well as in-school surveys of
students (collected in 19941995), and through in-home question-
naires of parents. Details on sampling and methods used in the
current research can be found in an earlier publication (Wainright
et al., 2004) that focused on psychosocial outcomes, school func-
tioning, and romantic attractions.
The focal group of families that were headed by a mother who
reported having a marriage or marriage-like relationship with a
woman consisted of 44 adolescents, 23 girls and 21 boys. Approx-
imately 31.8% identied themselves as non-White. On average,
the adolescents were 15.1 years of age (SD 1.5 years), with a
range of 12 to 18 years of age. Average household income was
approximately $45,500 per year. Each of these adolescents was
matched with an adolescent from the Add Health database who
was reared by different-sex parents, on the basis of gender, age,
ethnic background, adoption status, learning disability status, fam-
ily income, and parents education. The nal sample included 88
families, including 44 families headed by mothers with female
partners and 44 comparison families headed by different-sex
couples.
Dependent Measures
Substance use. Adolescents use of tobacco was assessed with
a composite variable (Sieving et al., 2000) that uses four items to
classify adolescents into one of seven levels of tobacco use (1
never smoked, 3 currently smoking 12 cigarettes/day, 5
currently smoking 610 cigarettes/day, 7 currently smok-
ing 20 cigarettes/day). Friends use of tobacco was assessed by
asking how many of three best friends smoke at least 1 cigarette
per day.
Use of alcohol was assessed with three variables from the
Adolescent IHI. We utilized a composite variable (Sieving et al.,
2000), which uses 2 items to create an eight-level variable about
adolescents use of alcohol in their lifetime and in the past 12
months (1 23 drinks in lifetime, 3 drank alcohol on 1 or
2 days in the past 12 months, 5 drank 23 days a month in the
past 12 months, 7 drank 35 days a week in the past 12
months, 8 drank every day or almost every day in the past 12
months). Adolescents were instructed to exclude a sip or taste of
someone elses drink. Individual items measured how often in the
past 12 months adolescents had binged on alcohol (5 drinks in a
row) and had gotten drunk. Scores for these items ranged from 1
(never) to 7 (every day or almost every day).
Lifetime and current marijuana use were assessed with a com-
posite variable (Sieving et al., 2000), which uses two survey items
from the Adolescent IHI to form a seven-level variable (1
never used marijuana, 3 3 times in lifetime, no use in past
30 days, 5 23 times in past 30 days, 7 5 times in past
30 days).
Adolescents risky use of alcohol and drugs was assessed with
a scale of eight items (1 yes, 0 no; .78) from the
Adolescent IHI, which asked whether the adolescent had driven a
car, gone to school, gotten into a ght, or carried a weapon while
consuming alcohol or drugs. The sum of the eight items was taken,
with higher scores indicating more risky use.
Relationship and physical problems caused by adolescents use
of alcohol were assessed with a scale of nine items ( .84) from
the Adolescent IHI, asking about the frequency of being hung
over, sick, in a ght, in a situation that was later regretted, or in
trouble with parents, school, or friends or dates because of alcohol
use in the past 12 months. Items were measured on a scale ranging
from 0 (never) to 4 (5 or more times), and the mean of the nine
items was taken, with higher scores indicating more problems.
Adolescents joint occurrences of substance use and sexual
activity were assessed with a scale of 6 items (1 yes, 0 no;
.68) from the Adolescent IHI asking whether the adolescent had
used drugs or alcohol or had been drunk the rst time (three items)
or most recent time (three items) he or she had sexual intercourse.
The sum of the six items was taken, and higher scores indicated
more joint occurrences.
Delinquent behavior. Adolescent delinquent behavior was as-
sessed with 10 items ( .74) from the portion of the Adolescent
IHI in which adolescents listen to questions through headphones
and record their answers on a laptop computer. These items ask
about the occurrence of activities such as damaging others prop-
erty, shoplifting, and getting into ghts in the past 12 months.
Scores on this scale were the sum of the 10 items (1 yes, 0
no), with higher scores indicating more delinquent behaviors.
Victimization. Adolescents experiences as victims and wit-
nesses of violence were assessed with ve items ( .97) from
the Adolescent IHI asking how often adolescents had been shot at,
cut, or jumped; had a gun or knife pulled on them; or had seen
someone shot or stabbed. Scores were the sum of 5 items (1 yes,
0 no). Higher scores indicated more victimization.
Family and Relationship Variables
Adolescents perceived care from adults, teachers, and friends
was measured with three items from the Adolescent IHI regarding
how much the adolescent believed that others care about them. The
mean of the three items ( .58) was taken, and possible scores
ranged from 1 (not at all) to 5 (very much), with higher scores
indicating perceptions of more caring. Parents perceptions of the
quality of their relationship with their child were assessed with a
scale made up of the mean of six items ( .71) from the Parents
In-Home Questionnaire. Items included parents assessment of
trust, understanding, communication, and general quality of rela-
tionship and were measured on a scale ranging from 1 to 5, with
higher scores indicating closer relationships.
Results
Overall, adolescents reported positive outcomes. They
reported moderate use of cigarettes and alcohol, with 25%
reporting that they had ever smoked regularly and 44%
reporting that they had drunk alcohol when they were not
with their parents. Reports of adolescents frequency of
alcohol use (M 2.91, SD 1.88) and tobacco use (M
1.94, SD 1.59) were low. Adolescents also reported low
levels of alcohol abuse, including binge drinking (M1.82,
SD 1.53) and getting drunk (M1.81, SD 1.46). Their
reports of physical and relationship problems because of
alcohol use (M 0.24, SD 0.46) were low, as were their
reports of risky use of drugs and alcohol (M 0.53, SD
1.27) and reports of joint occurrences of sexual activity and
drug or alcohol use (M 0.23, SD 0.71). They reported
527 BRIEF REPORTS
A-1143
low levels of delinquent behavior (M 1.81, SD 1.86)
and victimization (M 0.39, SD 0.88).
As expected, we did not nd a statistically signicant
difference in adolescents reports of their frequency of
alcohol, tobacco, or marijuana use as a function of family
type. In addition, our analyses revealed no signicant dif-
ference in the number who smoke among three best friends
or frequency of getting drunk or binge drinking (see Table
1). Consistent with results for substance use, we found no
signicant difference in problems arising from alcohol or
drug use (relationship and physical problems, risky use of
alcohol and drugs, and sex while under inuence of alcohol
or drugs) as a function of family type. Analyses also re-
vealed no difference in adolescents delinquent behavior
between offspring of same-sex couples and offspring of
comparison families headed by different-sex couples. Sim-
ilarly, we found no difference in adolescents experiences as
victims or witnesses of violence as a function of family
type.
Overall, adolescents and their parents reported positive
family relationships. Parents perceptions of the quality of
the relationship were high, with a mean of 4.20 (SD 0.53)
and a range of 2.66 to 5.00. Adolescents perceptions of
others care were high (M 4.07, SD 0.65), with a range
of 2.33 to 5.00. Consistent with results for adolescent out-
comes, analyses revealed no differences in parent report of
the quality of the parentadolescent relationship or adoles-
cent report of care from others as a function of family type.
Having found no associations between family type and
adolescent risk behavior, we explored possible associations
between processes in the adolescents environment and ad-
olescent outcomes. We conducted regression analyses sep-
arately for use of tobacco, alcohol, and marijuana, as well as
victimization and delinquent behavior. Family type, gender,
parental education, and family income were included as
predictors. Variables and interactions that were not statisti-
cally signicant predictors were removed from the models.
We also conducted logistic regressions on dichotomized
outcome variables, but because results were similar to those
for the multiple regression models, we do not describe them
further.
Results showed that, as expected, quality of family rela-
tionships was signicantly associated with many adolescent
outcomes (see Table 2). Adolescents tobacco use was as-
sociated with parental report of the quality of the parent
adolescent relationship ( 31, p .01) and with
adolescents reports of caring from adults and peers (b
.37, p .01). As expected, greater perceived care from
others and more positive relationships were associated with
lower levels of tobacco use. Adolescents use of alcohol,
use of marijuana, and delinquent behavior were associated
with parental report of the quality of the parentadolescent
relationship ( .26, p .05; .51, p .001; and
.38, p .001, respectively), with more positive
relationships associated with less use of alcohol and mari-
juana and less delinquent behavior. Boys reported more
victimization than did girls ( .25, p .05). Interac-
tions between family type and predictor variables were not
signicant. In summary, adolescents reports of family and
relationship processes such as quality of the parentchild
relationship and care from adults and peers were associated
with several measures of adolescent outcomes and were
better predictors of adolescent risk behavior than were fam-
ily type and adolescent gender.
Discussion
The results of the present study revealed that, across a
diverse array of assessments, including measures of delin-
quent behavior, victimization, substance abuse, and quali-
ties of family relationships, adolescents with female same-
sex parents did not differ signicantly from a matched
group of adolescents living with different-sex parents. Re-
gardless of family type, adolescents were less likely to
Table 1
Adolescents Mean (and Standard Deviation) Reports of Risk Behavior as a Function
of Family Type
Variable
Family type
Different sex Same sex
M (SD) M (SD)
Tobacco use 2.50 (1.73) 2.60 (1.91)
Of three best friends, number who smoke 0.83 (0.91) 0.84 (1.12)
Alcohol use 2.91 (1.74) 2.91 (2.02)
Frequency of getting drunk 1.68 (1.20) 1.93 (1.69)
Frequency of binge drinking 1.61 (1.19) 2.02 (1.80)
Marijuana use 1.76 (1.57) 2.02 (1.78)
Risky use of alcohol and drugs 0.38 (0.92) 0.68 (1.54)
Problems related to alcohol use 0.18 (0.38) 0.30 (0.53)
Sex under inuence of alcohol or drugs 0.14 (0.46) 0.32 (0.88)
Delinquent behavior 1.75 (1.82) 1.86 (1.92)
Victimization 0.25 (0.78) 0.52 (0.95)
Care from others 4.10 (0.62) 4.05 (0.68)
Parent report of quality of relationship 4.17 (0.50) 4.23 (0.57)
Note. According to Wilcoxon signed ranks test, there were no signicant differences as a function
of family type.
528 BRIEF REPORTS
A-1144
report risky behavior when parents described close relation-
ships with them. Thus, as has been reported in studies of
children with lesbian mothers (e.g., Chan et al., 1998), it
was qualities of adolescentparent relationships rather than
family composition that was signicantly associated with
adolescent adjustment (Golombok, 1999).
Condence in the present ndings is bolstered by the
strengths of the Add Health study (Bearman et al., 1997),
which allowed for examination of important outcomes
among adolescents living with female same-sex parents, as
compared with a well-matched sample of adolescents living
with different-sex parents, using data from a large national
sample. Results of our current study add signicantly to
those from earlier studies, which were most often smaller in
their size, less representative in their sampling, and less
comprehensive in their assessment of adolescent outcomes
(Stacey & Biblarz, 2001).
Despite the many strengths of the present study, however,
we also acknowledge several limitations. For instance, par-
ents were not asked directly about their sexual identities,
and we were thus forced to rely on indirect assessments
(e.g., parents reports of being in a marriage or marriage-
like relationship with a person of the same sex). The
sample size of the current study is larger than those of much
of the previous research with this population, but the nding
of no group differences would be strengthened by replica-
tion in larger samples. Results that include variables with
lower reliabilities should be interpreted with caution pend-
ing replication. Finally, our assessment of victimization did
not include verbal harassment or bullying, and any inter-
pretation of these data must consider this fact.
Major theories of human development have often been
interpreted as predicting that adolescents living with same-
sex parents would encounter important difculties in their
adjustment, especially during adolescence (Baumrind,
1995). The fact that results from a large national sample of
American adolescents fail to conrm this view leads to
questions about the extent to which predictions of the the-
ories have been disconrmed (Patterson, 2000). In particu-
lar, results of recent research on children and adolescents
who are not living with different-sex parents (e.g., Patter-
son, 2000; Stevens, Golombok, Beveridge, & the ALSPAC
Study Team, 2002) suggest that theorists may need to re-
consider the importance of different-sex parents for human
personal and social development (Silverstein & Auerbach,
1999).
Our current ndings also have implications for public
policies that involve children of lesbian parents (Patterson et
al., 2002). Inasmuch as our ndings suggest that adolescents
living with same-sex parents develop in much the same
ways as do adolescents living with different-sex parents,
they provide no justication for limitations on child custody
or visitation by lesbian parents. Our ndings provide no
warrant for legal or policy discrimination against adoles-
cents with same-sex parents (Patterson et al., 2002).
In summary, the present study is the rst to have assessed
delinquent behavior, victimization, and substance use
among adolescents living with same-sex versus different-
sex couples. Family type was not linked to adolescent risk
behavior, but the qualities of adolescents relationships with
parents were associated with several variables. Regardless
of whether they lived with same-sex or different-sex cou-
ples, adolescents whose parents reported having close rela-
tionships with them were likely to have fewer problems
with delinquency or substance use. Our results are consis-
tent with theories that emphasize the importance of adoles-
cent relationships with parents, and suggest that parental
sexual orientation is not a major factor in shaping adoles-
cent development or behavior.
Table 2
Prediction of Adolescent Risk Behavior
Variable B SE (B) F df R
2
Tobacco use 5.42*** 4, 69 .24
Family type .05 .36 .01
Adolescent gender .15 .37 .05
Quality of relationship .96 .33 .31**
Care from adults & peers .95 .29 .37**
Alcohol use 3.09* 3, 69 .12
Quality of relationship .90 .40 .26*
Marijuana use 8.92*** 3, 69 .28
Quality of relationship 1.66 .33 .51***
Delinquent behavior 4.62** 3, 71 .16
Quality of relationship 1.31 .38 .38***
Victimization 3.14* 2, 72 .08
Adolescent gender .45 .20 .25*
p .10. * p 0.05. ** p 0.01. *** p 0.001.
529 BRIEF REPORTS
A-1145
References
Baumrind, D. (1995). Commentary on sexual orientation: Re-
search and social policy implications. Developmental Psychol-
ogy, 31, 130136.
Bearman, P. S., Jones, J., & Udry, J. R. (1997). The National
Longitudinal Study of Adolescent Health: Research design. Re-
trieved from http://www.cpc.unc.edu/addhealth
Chan, R. W., Raboy, B., & Patterson, C. J. (1998). Psychosocial
adjustment among children conceived via donor insemination by
lesbian and heterosexual mothers. Child Development, 69, 443
457.
Crosnoe, R., Erickson, K. G., & Dornbusch, S. M. (2002). Pro-
tective functions of family relationships and school factors on the
deviant behavior of adolescent boys and girls: Reducing the
impact of risky friendships. Youth & Society, 33(4), 515544.
Golombok, S. (1999). New family forms: Children raised in solo
mother families, lesbian mother families, and in families created
by assisted reproduction. In L. Balter & C. S. Tamis-LeMonda
(Eds.), Child psychology: A handbook of contemporary issues
(pp. 429446). Philadelphia, PA: Psychology Press/Taylor &
Francis.
Huggins, S. L. (1989). A comparative study of self-esteem of
adolescent children of divorced lesbian mothers and divorced
heterosexual mothers. In F. W. Bozett (Ed.), Homosexuality and
the family (pp. 123135). New York: Harrington Park Press.
Matherne, M. M., & Thomas, A. (2001). Family environment as a
predictor of adolescent delinquency. Adolescence, 36(144), 655
664.
Patterson, C. J. (2000). Family relationships of lesbians and gay
men. Journal of Marriage and the Family, 62, 10521069.
Patterson, C. J., Fulcher, M., & Wainright, J. (2002). Children of
lesbian and gay parents: Research, Law, and Policy. In B. L.
Bottoms, M. B. Kovera, & B. D. McAuliff (Eds.), Children and
the law: Social science and policy. New York: Cambridge Uni-
versity Press.
Perrin, E., & the Committee on Psychosocial Aspects of Child and
Family Health. (2002). Coparent or second-parent adoption by
same-sex partners [Policy statement]. Pediatrics, 109, 339340.
Rohner, R. P. (1999). Acceptance and rejection. In D. Livinson, J.
Ponzetti, & P. F. Jorgenson (Eds.), Encyclopedia of human
emotions (Vol. 1, pp. 614). New York: Macmillan.
Sieving, R. E., Beurhing, T., Resnick, M. D., Bearinger, L. H.,
Shew, M., Ireland, M., Blum, R. W. (2000). Development of
adolescent self-report measures from the National Longitudinal
Study of Adolescent Health. Journal of Adolescent Health, 28(1),
7381.
Silverstein, L. B., & Auerbach, C. F. (1999). Deconstructing the
essential father. American Psychologist, 54, 397407.
Stacey, J., & Biblarz, T. J. (2001). (How) does the sexual orien-
tation of parents matter? American Sociological Review, 66,
159183.
Steinberg, L., & Silk, J. S. (2002). Parenting adolescents. In M. H.
Bornstein (Ed.), Handbook of parenting: Volume 1. Children and
parenting (2nd ed.), Mahwah, NJ: Erlbaum.
Stevens, M., Golombok, S., Beveridge, M., & the ALSPAC Study
Team. (2002). Does father absence inuence childrens gender
development? Findings from a general population study of pre-
school children. Parenting: Science and practice, 2, 4760.
Tasker, F. L., & Golombok, S. (1997). Growing up in a lesbian
family: Effects on child development. New York: Guilford Press.
Wainright, J. L., Russell, S. T., & Patterson, C. J. (2004). Psycho-
social adjustment, school outcomes, and romantic attractions of
adolescents with same-sex parents. Child Development, 75,
18861898.
Received April 12, 2004
Revision received September 1, 2005
Accepted October 26, 2005
530 BRIEF REPORTS
A-1146
CURRENT DIRECTIONS IN PSYCHOLOGICAL SCIENCE
What Do We Know About Gay
and Lesbian Couples?
Lawrence A. Kur de k
Wright State University
ABSTRACTResearch on gay and lesbian couples is high-
lighted with regard to household labor, conflict, satisfac-
tion, perceived social support, stability, and the variables
that predict relationship quality. Relative to partners from
married heterosexual couples, partners from gay and les-
bian couples tend to assign household labor more fairly,
resolve conflict more constructively, experience similar
levels of satisfaction, and perceive less support from family
members but more support from friends. The limited data
available indicate that gay and lesbian couples may be less
stable than married heterosexual couples. The factors that
predict relationship quality tend to be the same for gay,
lesbian, and heterosexual married couples. Overall, re-
search paints a positive picture of gay and lesbian couples
and indicates that they tend to be more similar to than
different from heterosexual couples.
KEYWORDSgay couples; lesbian couples; relationship qual-
ity; relationship stability
In November 2004, Americans in 11 states voted on whether
marriage should be legal for only heterosexual couples. The
resounding message from the voters in each of these states was
that marriage as a legal institution should, indeed, be reserved
only for couples consisting of a man and a woman. One inter-
pretation of voters' response to the gay-marriage issue is that
most Americans regard gay and lesbian couples as being dif-
ferent from heterosexual couples. But what does research on gay
and lesbian couples say on this matter? Does evidence support
the view that gay and lesbian couples work in ways that are
different from the way that heterosexual couples work? Before I
examine aspects of these questions, I will address the question of
the number of gay and lesbian couples in America.
HOW MANY AMERICAN GAY AND LESBIAN COUPLES
ARE THERE?
Because of the stigma associated with homosexuality, many gay
and lesbian persons are reluctant to disclose their sexual orien-
tation. Consequendy, there are no definitive data on the number of
gay and lesbian Americans. Perhaps the best available estimates
were derived by Laumann, Gagnon, Michael, and Michaels (1994),
who interviewed a national sample of 1,511 men and 1,921 women.
Of this sample, 4.9% of the men and 4. 1% of the women reported
having engaged in sexual behavior with a person of their own sex
since the age of 18, 6.2% of the men and 4.4% of the women re-
ported having been attracted to a person of their own sex, and 2.8%
of the men and 1.4% of the women identified themselves with a
label denoting same-sex sexuality (e.g., homosexual).
Given the difficulty in estimating the number of gay and lesbian
Americans, it is not surprising that there are also no definitive data
on the number of gay and lesbian American couples. However,
changes in the way information about households is collected in
the United States Census have allowed estimates of the number of
households headed by a person with a same-sex partner to be
obtained. Data from the Census of 2000 (Simons & O'Connell,
2003) indicate that of the 5.5 million couples who were living to-
gether but not married, about 1 in 9 were same-sex couples. Of
these couples, 301,026 involved male partners and 293,365 in-
volved female partners. Children under the age of 18 resided with
22% of the male couples and with 33% of the female couples.
Because presenting oneself publicly as gay or lesbian opens
the door to discrimination and even violence, estimates of the
number of gay and lesbian individuals and couples are most
assuredly underestimates. Nonetheless, it is clear that, despite a
generally inhospitable social climate, being part of a couple is
integral to the lives of many gay men and lesbians. Next, topics of
particular relevance to gay and lesbian couples are reviewed.
Address correspondence to Larry Kurdek, Department of Psycholo-
gy, Wright State University, Dayton, OH 45435-0001; e-mail: larry.
kurdek@wright.edu.
TOPICS RELEVANT TO GAY AND LESBUN COUPLES
Household Labor
One perception of partners from happy couples is that each
partner does something to contribute to the overall well-being of
Volume 14Number 5 Copyright 2005 American Psychological Society 251
A-1147
Gay and Lesbian Couples
the couple. When members of a couple live together, the extent
to which they depend on each other increases, making it likely
that the general issue of "Who does what?" has to be confronted.
For many heterosexual couples, biological sex is one major
factor that determines which roles partners assume. For exam-
ple, despite major changes in the number of American women
who work outside the home, wives still do the majority of
household tasks (Artis & Pavalko, 2003). Given the persistence
with which biological sex is used to assign roles relevant to
household labor in heterosexual couples, the division of
household labor for gay and lesbian couples provides one way to
examine how roles in relationships get assigned independently
of biological sex.
Three conclusions emerge from studies of how members of gay
and lesbian couples divide household labor (e.g., Carrington,
1999). First, members of gay and lesbian couples do not assign
roles for household labor such that one partner is the "husband"
and the other partner is the "wife." Second, although members of
gay and lesbian couples do not divide household labor in a
perfectly equal manner, they are more likely than members of
heterosexual couples to negotiate a balance between achieving a
fair distribution of household labor and accommodating the
different interests, skills, and work schedules of particular
partners. This pattern of negotiation holds true even when cou-
ples have children living with them (Patterson, 2000). Third, as
couples become more established, partners are likely to spe-
cialize in the household tasks they do, perhaps as one way of
getting household tasks done efficiently.
Conflict
Conflict is inevitable in any relationship. In heterosexual cou-
ples, conflict is often thought to occur because of systematic
differences in how men and women perceive their worlds. If this
view of relationship conflict is valid, then one might expect that
partners from same-sex couples would resolve conflict better
than partners from heterosexual couples do because they per-
ceive their worlds through similar lenses. Research supports this
expectation.
Gottman et al. (2003) videotaped partners from gay, lesbian,
and married heterosexual couples discussing problems in their
relationships and then coded the emotions expressed by the
partners in the course of the discussions. The researchers found
that, relative to heterosexual partners, gay and lesbian partners
began their discussions more positively and were more likely to
maintain a positive tone throughout the course of the discussion.
Findings from survey data also indicate that partners from gay
and lesbian couples resolve conflict more positively than
spouses from married couples do: They argue more effectively,
are less likely to use a style of conflict resolution in which one
partner demands and the other partner withdraws, and are more
likely to suggest possible solutions and compromises (Kurdek,
2004a). Gottman et al. speculated that partners from gay and
lesbian couples handle conflict more positively than spouses
from heterosexual couples do because they value equality more
and have fewer differences in power and status between them.
It is of note that, although partners from gay and lesbian
couples tend to resolve conflict more positively than spouses
from married couples do, partners from gay, lesbian, and het-
erosexual couples are likely to disagree over the same issues. In
a study in which partners rated how frequently they fought over
20 specific issues (Kurdek, 2004b), differences between gay,
lesbian, and heterosexual couples were largely nonexistent.
Equally striking was the finding that partners from gay, lesbian,
and heterosexual couples identified the same areas as sources of
the most conflict: finances, affection, sex, being overly critical,
driving style, and household tasks. Thus, differences in conflict
resolution appear to be due to how conflict is handled rather than
to what the conflict is about.
Percei ved Suppor t for t he Relationship
Based on evidence that the level of support from members of
one's social network affects the health of one's relationship,
current theories about relationships (e.g., Huston, 2000) rec-
ognize that relationships develop within social contexts. Several
studies have examined the extent to which members of gay and
lesbian couples perceive support for their relationships (e.g.,
Kurdek, 2004a). Relative to spouses from heterosexual couples,
partners from gay and lesbian couples are less likely to name
family members as support providers and are more likely to
name friends as support providers. These differences are notable
because they are among the largest differences found in com-
parisons between heterosexual and gay or lesbian couples. The
lack of family support for one's primary close relationship is
often viewed as a unique stressor for gay men and lesbians and
perhaps represents the overall lack of legal, social, political,
economic, and religious support that gay and lesbian partners
experience for their relationships. On the other hand, the high
level of support that gay and lesbian partners enjoy from friends
has been viewed as one way in which they compensate for the
absence of institutionalized support.
Satisfaction
Nearly all available evidence indicates not only that gay men
and lesbians are, on average, satisfied with their relationships,
but that their level of satisfaction is at least equal to that reported
by spouses from married heterosexual couples (Blumstein &
Schwartz, 1983; Kurdek, 2001). Further, longitudinal data from
partners from gay, lesbian, and heterosexual couples indicate
that, for each type of couple, self-reported relationship quality is
relatively high at the start of the relationship but decreases over
time (Kurdek, 1998).
Stability
Perhaps the most important "bottom-line" question asked about
gay and lesbian couples is whether their relationships last. Be-
252
Volume 14Number 5
A-1148
Lawrence 4 Kurdek
cause survey data (see Kurdek, 2004b) indicate that between
8% and 2 1 % of lesbian couples and between 18% and 28%
of gay couples have lived together 10 or more years, it is clear
that gay men and lesbians can and do build durable relation-
ships. More detailed information on the stability of gay and
lesbian relationships is limited because few studies have fol-
lowed the same samples of gay and lesbian couples over time.
Nonetheless, findings from three studies are relevant.
Kurdek (2004a) reported that for 126 gay couples and 101
lesbian couples assessed annually up to 12 times, 24 of the gay
couples (19%) and 24 of the lesbian couples (24%) dissolved
their relationships. With controls for demographic variables
(e.g., length of cohabitation), the difference in the rate of dis-
solution for gay and lesbian couples was not significant. Over a
comparable period of 11 annual assessments, 70 of 483 hetero-
sexual married couples (15%) ended their relationships. With
controls for demographic variables, the dissolution rate for
heterosexual couples was significantly lower than that for either
gay or lesbian couples.
In their 18-month follow-up survey of partners from 1,021
married heterosexual couples, 233 cohabiting heterosexual
couples, 493 cohabiting gay couples, and 335 cohabiting lesbian
couples, Blumstein and Schwartz (1983) found that 4% of
the married couples, 14% of the cohabiting heterosexual cou-
ples, 13% of the cohabiting gay couples, and 18% of the co-
habiting lesbian couples had dissolved their relationships.
Although these authors reported no statistical comparisons, my
analyses of their data indicated that, although rates of dissolution
did not differ for either gay couples versus lesbian couples or for
gay and lesbian couples versus cohabiting heterosexual couples,
both gay and lesbian couples were more likely to dissolve their
relationships than married heterosexual couples were.
Andersson, Noack, Seierstad, and Weedon-Fekjaer (2004)
examined differences in the dissolution rates of gay and lesbian
registered partnerships in Norway and in Sweden. Because
registered partnerships were first made available in Norway in
1993 and in Sweden in 1995, dissolution rates are necessarily
based on couples with legal unions of relatively short duration.
For both countries, dissolution rates were significantly higher for
lesbian couples than they were for gay couples. In Norway, 56 out
of 497 lesbian partnerships were dissolved (11.26%) as com-
pared to 62 out of 796 gay partnerships (7.78%). In Sweden, 117
out of 584 lesbian partnerships were dissolved (20.03%) as
compared to 135 out of 942 gay partnerships (14.33%). In
comparison, the percentage of dissolved heterosexual marriages
in Sweden was 8%. For both countries, the higher rate of dis-
solution for lesbian couples than for gay couples persisted even
when statistical analyses controlled for length of the partnership
(which, if different between the two groups, can produce illusory
differences in gay and lesbian couples' stability).
In sum, the data are too scant to warrant any conclusions about
the relative stability of gay and lesbian couples. However, it is of
note that Blumstein and Schwartz's (1983) data indicated that
the dissolution rate for cohabiting heterosexual couples was
similar to that for both cohabiting gay couples and cohabiting
lesbian couples. Unlike spouses from married heterosexual
couples who experience social, religious, and legal barriers to
leaving their relationships, cohabiting coupleswhether gay,
lesbian, or heterosexualhave no such institutionalized barri-
ers. Further, although some gay and lesbian couples raise chil-
dren, the majority do not (Simons & O'Connell, 2003), thereby
removing another significant barrier to dissolution. Thus, per-
haps what is most impressive about gay and lesbian couples is
not that they may be less stable than heterosexual married
couples, but rather that they manage to endure without the
benefits of institutionalized supports.
Factors Predicting Relationship Quality
One way of determining whether the relationships of gay men
and lesbians work the same way the relationships of hetero-
sexual persons do is to see if the links between variables known
to be relevant to relationship functioning and relationship
quality are as strong for gay and lesbian partners as they are for
heterosexual married partners. The predictors of relationship
quality that have been examined usually come from four
classes of variables commonly used in research on relation-
ships (e.g., Huston, 2000). These include characteristics each
partner brings to the relationship (such as personality traits),
how each partner views the relationship (such as level of
trust), how partners behave toward each other (such as com-
munication and conflict-resolution styles), and perceived level
of support for the relationship (such as that from family members
and friends).
The relevant findings are easily summarized. Nearly all
studies (e.g., Kurdek, 2004a) find that the links between varia-
bles from the four classes just listed and relationship quality for
gay and lesbian couples do not differ from the parallel links for
heterosexual married couples. That is, the extent to which re-
lationship quality is predicted by these four kinds of variables
tends to be as strong for gay and lesbian couples as it is for
heterosexual couples. Thus, despite external differences in how
gay, lesbian, and heterosexual couples are constituted, the re-
lationships of gay and lesbian partners appear to work in much
the same way as the relationships of heterosexual partners do.
Based on evidence that gay and lesbian relationships are in-
fluenced by the same set of factors that influence heterosexual
marriages, institutionalized support for gay and lesbian rela-
tionships might be expected to enhance the stability of these
relationships just as it does for heterosexual marriages. In fact,
this reasoning formed one of the bases for the American Psy-
chological Association's passing a resolution declaring it unfair
and discriminatory to deny same-sex couples legal access to
civil marriage and all its attendant benefits, rights, and privi-
leges (American Psychological Association, 2004).
Volume 14Number 5 253
A-1149
Gay and Lesbian Couples
ISSUES FOR FUTURE RESEARCH
REFERENCES
Future research on gay and lesbian couples needs to address
several key issues. One is sampling: Because most studies have
used convenience samples of mostly white and well-educated
partners, the extent to which findings generalize to the larger
population of gay and lesbian couples is unknown. Problems
with regard to sampling may be eased as specialized popula-
tionssuch as couples with civil unions from states with open
recordsbecome identified. Another issue is research methods:
Most studies on gay and lesbian couples have used self-report
surveys. Future work could address some of the biases associ-
ated with self-report data by employing behavioral observations
as well as peer or partner ratings.
The life course of gay and lesbian relationships is another area
requiring further research. Because gay and lesbian courtship is a
fairly hidden process, littie is known about how gay and lesbian
relationships develop from courtship to cohabitation to marriage-
like unions with high commitment. Recruiting dating couples for
longitudinal research, however, remains a challenge. It is also
necessary to establish what variables are unique to gay and lesbian
persons. Most research has used theories and methods derived
from work with heterosexual couples, so little is known about how
variables unique to gay and lesbian personssuch as negotiating
a private and public identity as a gay or lesbian personaffect the
quality of their relationships. Finally, it is necessary to learn more
about the forces that help stabilize relationships. Because it is
unlikely that all American gay and lesbian couples will soon have
the option to marry, they will need to continue to rely on less in-
stitutionalized forces to maintain the stability of their relation-
ships. These include psychological processes such as commitment
and social processes such as level of integration into the support
systems of family, friends, and coworkers.
Recommended Readi ng
Kurdek, L.A. (2001). (See References)
Kurdek, L.A. (2003). Differences between gay and lesbian cohabiting
couples. Journal of Social Personal Relationships, 20, 411-^136.
Kurdek, L.A. (2004a). (See References)
Patterson, C.J. (2000). (See References)
Peplau, L.A., & Beals, K.P. (2004). The family lives of lesbians and gay
men. In A.L. Vangelisti (Ed.), Handbook of family communication
(pp. 233-248). Mahwah, NJ: Erlbaum.
American Psychological Association (2004). Resolution on sexual ori-
entation and marriage. Retrieved November 14, 2004 from http://
www.apa.org/pi/lgbc/policy/marriage.pdf
Andersson, G., Noack, T., Seierstad, A., & Weedon-Fekjaer, H. (2004).
The demographics of same-sex "marriages " in Norway and Sweden.
Rostock, Germany: Max-Planck Institute for Demographic Re-
search. Retrieved November 14, 2004 from http://www.demogr.
mpg.de/papers/working/wp-2004-018.pdf.
Artis, J.E., & Pavalko, E.K. (2003). Explaining the decline in women's
household labor: Individual change and cohort differences. Jour-
nal of Marriage and Family, 65, 746- 761.
Blumstein, P., & Schwartz, P. (1983). American couples: Money, work,
sex. New York: William Morrow.
Carrington, C. (1999). Noplace like home: Relationships and family life
among lesbians and gay men. Chicago: University of Chicago
Press.
Gottman, J.M., Levenson, R.W., Swanson, C, Swanson, K., Tyson, R., &
Yoshimoto, D. (2003). Observing gay, lesbian, and heterosexual
couples' relationships: Mathematical modeling of conflict inter-
action. Journal of Homosexuality, 45, 65- 91.
Huston, T.L. (2000). The social ecology of marriage and other intimate
unions. Journal of Marriage and the Family, 62, 298- 320.
Kurdek, L.A. (1998). Relationship outcomes and their predictors:
Longitudinal evidence from heterosexual married, gay cohabiting,
and lesbian cohabiting couples. Journal of Marriage and Family,
60, 553- 568.
Kurdek, L.A. (2001). Differences between heterosexual-nonparent
couples and gay, lesbian, and heterosexual-parent couples. Jour-
nal of Family Issues, 22, 727- 754.
Kurdek, L.A. (2004a). Are gay and lesbian cohabiting couples really
different from heterosexual married couples? Journal of Marriage
and Family, 66, 880- 900.
Kurdek, L.A. (2004b). Gay men and lesbians: The family context. In M.
Coleman & L.H. Ganong (Eds.), Handbook of contemporary fam-
ilies: Considering the past, contemplating the future (pp. 96-115).
Thousand Oaks, CA: Sage.
Laumann, E.O., Gagnon, J.H., Michael, R.T., & Michaels, S. (1994). The
social organization of sexuality: Sexual practices in the United
States. Chicago: University of Chicago Press.
Patterson, CJ . (2000). Family relationships of lesbians and gay men.
Journal of Marriage and Family, 62, 1052-1069.
Simons, T, & O'Connell, M. (2003). Married-couple and unmarried-
partner households: 2000. Washington, DC: U.S. Census Bureau.
Retrieved November 14, 2004, from http://www.census.gov/prod/
2003pubs/censr-5.pdf
254 Volume 14Number 5
A-1150
The Gay Science
What do we know about the effects of same-sex parenting?
By Ann Hulbert
Posted Friday, March 12, 2004, at 3:16 PM ET
First comes love, t hen comes marr iage, t hen comes
baby in t he baby carr iage: So far, t he gay marriage
debat e has been about right s and romance and, of
cour se, religion. Advocat es and opponent s alike
have been not ably quiet about a fourt h " R" raising
children. But when t he r het or ic heat s up, we' ll
doubt less hear plent y from each side about t he
research on same- sex par ent ing and it s effect s on
kids. What ' s surpr ising is t hat bot h camps have
conver ged lat ely on a very basic point : The exist ing science is met hodologically flawed and
ideologically skewed. Don' t count on t hat consensus, however, t o dampen t he feud.
You wouldn' t guess from t he curr ent "expert " posit ion on
homosexual child- rear ing t hat t he dat a ar e in any doubt . Two
year s ago, t he American Academy of Pediat r ics put it s impr imat ur
on t he st ance adopt ed by t he Amer ican Psychiat r ic Associat ion in
2000. An ar t icle in Pediat rics pronounced t hat " a growing body of
scient ific lit erat ur e demonst rat es t hat children who gr ow up wit h
1 or 2 gay and/ or lesbian parent s fare as well in emot ional,
cognit ive, social, and sexual funct ioning as do children whose
parent s are het erosexual. "
But behind t he scenes, skept ics have emergedand from an
unexpect ed quart er. I t ' s har dly st art ling t o find conservat ive
family- values crusaders and opponent s of gay mar riage balking at t he ver dict and
challenging t he validit y of several decades' wort h of dat a. As one of t he most sober of t hem,
St even Nock of t he Universit y of Virginia, wr ot e in an affidavit in last year' s Ont ar io Superior
Cour t gay marriage case, " not a single one of t hose st udies was conduct ed according t o
gener ally accept ed st andar ds of scient ific research. " What ' s j ar ring is t o hear champions of
family diversit y and gay mar riage chiming in. Who would have predict ed t his camp would
come up wit h t he most incisive cr it ique of t he claim t hat research has proved t here ar e no
differences bet ween kids r aised by gay and st raight parent s?
Whenever advocat es shoot down
findings t hat wor k in t heir favor, t he
result car ries ext ra credibilit y. I n t his
case it helps, t oo, t hat t he pr ofessor
st epping for t h t o do so, Judit h St acey,
is a well- known sociologist whose
st r ident advocacy of " alt ernat ive"
families has made her a nemesis of
t radit ionalist s. St acey' s st ringent
assessment of 21 of t he bet t er st udies
on gay child- rear ing, in an ar t icle
t it led " ( How) Does t he Sexual
Or ient at ion of Parent s Mat t er ?" cut
t hrough t he ideological st at ic t hat
such a charged ar ea of research
almost inevit ably gener at es. ( Co-
aut hored wit h Timot hy J. Biblar z, it appear ed in t he Amer ican Sociological Review in 2001. )
St acey r eadily concurred wit h t he t r adit ionalist cr it ics' charge t hat scholarship in t he st ill-
fledgling field of gay parent ing has been conduct ed almost ent irely by resear chers
sympat het ic t o gay concerns. This is precisely why she set out t o subj ect t he st udies t o a
"height ened degr ee of crit ical scr ut iny. " She focused in on t he difficult ies t hat have st ymied
good, syst emat ic wor k. For st art ers, when t he first small st udies comparing children of
het ero- and homosexual par ent s came out in t he lat e 1970s, it was impossible t o obt ain
represent at ive samplesand it st ill is. Aft er all, nobody really knows how big t he populat ion
of homosexual- headed families wit h kids is or what it looks like. ( The gener al demogr aphic
profile of such households is only beginning t o emerge. Dat a fr om t he 1990 Census
suggest ed t hat 27 percent of lesbians in same- sex couples had given birt h t o children;
bet ween 5 percent and 17 per cent of gay male households included kids. Est imat es of t he
number of kids of gay and lesbian parent s range from 6 million t o 10 million, accor ding t o a
group called COLAGE, or Childr en of Lesbians and Gays Everywhere.) Part ly because
Adver t isement

KEEPING AN EYE ON KIDS AND PARENTS. : / HOME SANDBOX
PRINT
DISCUSS
E-MAIL
RSS
RECOMMEND...
REPRINTS
SINGLE PAGE
8
Like
Page 2 of 5 The research on gay parenting. - By Ann Hulbert - Slate Magazine
8/9/2011 http://www.slate.com/id/2097048/pagenum/all/
A-1151
researcher s ar e dealing wit h subj ect s who have not exact ly clamored t o be count ed and
measur ed, samples have been small and anyt hing but r andomt hey consist of adult s and
children who get r eferred or recruit ed. The r esult ing dat a have been heavily slant ed t o well-
educat ed whit e families and overwhelmingly t o lesbian parent s r at her t han gay men wit h
kids.
The problems don' t st op t here. A chunk of t he gay- parent ing lit erat ure dat es t o t he 1980s,
when researcher s drew most ly on children born in het erosexual mar riages t hat dissolved
before or aft er a parent came out . ( I t was a decade during which st udies of divorced- and
single- parent families in general mult iplied. ) Wit h t his " t ransit ional generat ion, " it ' s
impossible t o disent angle t he effect s of parent s' sexual or ient at ion from t hose of divorce, of
t he r evelat ion of homosexualit y, and of re- part ner ing. And what ever impact social st igma
had t hen, it ' s sur ely changed somewhat now t hat same- sex par ent hood is mor e visible.
Finding suit able cont r ol gr oups is t r icky, t oo. I n t he past , children of divorced single mot hers
have oft en served as t he point of comparison, even t hough once- mar ried lesbian mot hers
are more likely t han t heir het erosexual peers t o be living wit h new par t ners. Only in t he
1990s have some ( small) st udies mat ched up children of homosexual and het er osexual
donor - inseminat ion couples. Given t he limit at ions of such shaky cr oss- sect ional r esearch,
longit udinal st udies would be ver y usefulespecially since t here' s so much int er est in
development al issues, including t he evolut ion of kids' gender ident it ies and sexual
or ient at ions when t hey gr ow up wit h gay par ent s. Almost nobody, however, has t racked gay
and lesbian families over t ime.
But St acey' s boldest move is t o challenge not j ust t he met hodology but t he fundament al
assumpt ion t hat has infor med t he bulk of gay parent ing st udies: t he idea t hat it would be
damning t o discover t hat kids of gay parent s deviat ed in any way from kids growing up wit h
moms and dads. As ot her cr it ics have point ed out , t he defensive goal of proving sameness
is almost a guarant ee of weak science. ( The hypot hesis t hat bot h groups of kids ar e alike is
hard t o rule out , but t hat doesn' t mean you' ve est ablished t hat t here are no differ ences. )
That " het er osexist " bias, St acey ar gues, has also encouraged resear chers t o fudge result s,
anxiously claiming homogeneit y wher e t here' s act ually some variet y. Why, she asks, buy
int o t he view t hat "differences indicat e deficit s"?
Her quest ion is a good one t o guide fut ure wor k. But r ight now, it seems t o be inspir ing yet
more dubious science, as t he admit t edly weak evidence is now sift ed for indicat ions t hat gay
parent s and t heir kids do in fact diver ge from het erosexual familiesand in advant ageous
ways. Dip int o a r ecent book called The Gay Baby Boom, by Suzanne M. Johnson and
Elizabet h O' Connor , and you' ll find t he muddled dat a oft en summoned as pr oof of t he
dist inct iveness of gay child- rear ing, rat her t han it s equivalence t o t he het erosexual version.
Out comes a port r ait of egalit ar ian, consist ent , harmonious, and " aut hor it at ive" ( warm but
not lax) lesbian coparent ing t hat moms and dads might learn from. ( Dads, it seems, t end
t o lag on par ent ing skills t est s. )
Digging around in t he exist ing dat a on kids of gay par ent s leads t he aut hors and ot hers t o
similarly rosy speculat ions t hat t hese childr en ar e unusually open- minded. Some st udies, for
example, show boys playing less aggressively and behaving more " chast ely" as yout hs,
while gir ls' early int erest s are more andr ogynous and t heir adolescence evident ly somewhat
more sexually advent urous. On t he hot t opic of sexual or ient at ion, t he only long- t erm st udy
of lesbian- headed families report s 64 percent of t he young adult children saying t hey' ve
consider ed same- sex relat ionships ( compared t o 17 percent wit h het erosexual parent s)
alt hough t her e is no st at ist ical difference bet ween t he number in bot h groups who ident ify
t hemselves as gay, lesbian, or bisexual. *
From t he perspect ive of sympat hizer s wit h t he gay mar riage cause, t he bot t om line of t his
t urn- of- t he- millennium revisionism is ver y upbeat : Kids of gays and lesbians are now
j udged t o far e as well as or bet t er t han children of het er osexualsespecially, advocat es
not e, when you fact or in t he prej udice and ot her pressures t hat such kids may face. The
fact t hat t hey hold t heir own wit h children from mor e convent ional families is read as an
augury of unusual r esilience ( and some st udies even report finding t hem more emot ionally
expressive) . But you can bet t hat Focus on t he Family and ot her conservat ives are likely t o
t ake a rat her dimmer view of t his lat est t wist on t he dat a. What pro- gay scholars hail as
signs of empat het ic flexibilit y are t he kind of gender- bending proclivit ies t hat provide grist
for more ant igay alarm. The idea of " andr ogynous" parent ing, t oget her wit h t oler ance of
fluid not ions of sexual ident it y, comes awfully close t o t he spect er of queer parent s
spawning queer kids t hat haunt s right - wing child- rear ing expert / polit ical advocat e James
Dobson and his follower s, among ot hers.
But wait : All t he evidenceas bot h sides acknowledgeis seriously flawed and doesn' t
begin t o supply anyt hing like solid suppor t for eit her t he hopes of gay family harmony or t he
fears about scar red children and skewed parent ing. And unt il gay couples ar e allowed t o
mar ry, t here can' t possibly be decent st udies of whet her t he honor able est at e confer s t he
same benefit s on kids whose par ent s ar e t he same sex as it does on t hose who have a mom
Summer Reading Top Kid's Picks (Patch - Babylon
Village, NY)
Pleasantville Pediatrician Talks ADHD (Patch -
Pleasantville-Briarcliff Manor, NY)
Female Anatomy Changes Post-Partum (Baby
Health Guru)
Olney: Montero to Yanks 'imminent' (ESPN)

Too Much TV Can Make Your Sick Child Even
Sicker (The Stir By CafeMom)
A-1152
and a dad. I n t he meant ime, it ' s quit e clear t hat t he absence of good science won' t and
shouldn' t set t le a fraught debat e. What will help clarify it ar e experiences like mine,
wat ching my sist er and her par t ner sharing t he har d wor k and t he happiness of r aising t heir
daught er . I can' t t hink of a bet t er argument for gay marr iage t han t hat .
Cor r ect i on, Mar ch 22, 2004: The original version of t his piece st at ed t hat t he same
per cent age of young adult children of homosexual and het erosexual mot hers ident ified
t hemselves as gay, lesbian, or bisexual. I n fact , t he r esearchers discover ed no st at ist ical
difference in t he number of young adult children from bot h groups who ident ified as gay or
lesbian. ( Ret urn t o cor rect ed sent ence. )
An n Hu l ber t i s t h e au t h or of Rai si n g Amer i ca: Ex per t s, Par en t s, an d a Cen t u r y of
Ad v i ce Abou t Ch i l dr en .
I l l u st r at i on b y Rob er t Neu b eck er . Ph ot og r ap h of t h e t wo b r i d es on Sl a t e ' s h om e p ag e b y Lou
Dem at t ei s/ Reu t er s. Ph ot og r ap h of t w o mot h er s an d a b ab y on Sl a t e ' s h om e p ag e b y Ji m
Er i ck son / CORBI S.

Like
8 people like this.
MORE FROM SLATE MORE FROM THE WEB
Sponsor ed Li nk s
Ar e y ou pr egnant ?
Lear n t he science behind baby' s cord blood st em cells - get info kit
t oday!
Cor dblood. com
Login required, click here t o begin
This Page
Follow
Cancel Post Post
Social Networking by Echo
Or join the discussion
on the Fray
0 Comments Add Yours
Like This Story
z House Republ i cans def ense of DOMA
w i l l be r oot ed i n t hei r ow n ugl y
hi st or y.
z I s Mar cus Bachmann gay ? Dan
Sav age and Jon St ew ar t t hi nk
gaydar answ er s t he quest i on.
They ' r e w r ong.
z Most Amer i cans now suppor t gay
mar r i age. But t hey can' t l egal i ze i t ,
t hank s t o t he v ot er s of 2004.
z Ti m Tebow ' s Non - Abor t i on

z Sout h Dak ot a Law Requi r es Women
t o Hear Ant i - Choi ce Lect ur es
z Gar r i son Kei l l or Hi nt s at Ret i r ement

[what's
this]
z Mommy Mat t er s: Have Fun Whi l e
Pr epar i ng Your Ki ds For School
( from Pat ch - West hampt on- Hampt on Bays,
NY)
z Comi ng Up: Bunco Game Ni ght t o
Benef i t Chi l d Car e Resour ces of
Rock l and ( from Pat ch - Pearl River , NY)
z 10 Way s t o Mak e a Lov ed- One' s
Hospi t al St ay Mor e Comf or t abl e
( from Healt hCent ral. com)
z Jack i e Kennedy Tapes Reveal JFK
and t he Fi r st Lady Sl ept Ar ound
( from The St ir By CafeMom)
z Woman becomes second i n NYC
t r i at hl on t o di e ( from ESPN)
z The Bi g Pr obl em Kat e Mi ddl et on
Has Wi t h Her New Home ( from The
St ir By CafeMom)

Enter your e-mail address.
Sign up for Slate's daily newsletter.

A-1153
- > i-1 J * -
THE CASE FOR
Marriage
Why Married People
Are Happier, Healthier,
and Better Off Financially
Linda J. Waite
Maggie Gallagher
BROADWAY BOOKS
New York
WKJ
itlffi
A-1154
To Rafc
A hardcover of this book was originally published in 2000 by Doubleday, a division of
Random House, Inc. It is here reprinted by arrangement with Doubleday.
THE CASE FOR MARRIAGE. Copyright 2000 by Linda J. Waite and Maggie Gallagher. All
rights reserved. Printed in the United States of America. No part of this book may be
reproduced or transmitted in any form or by any means, electronic or mechanical, including
photocopying, recording, or by any information storage and retrieval system, without written
permission from the publisher. For information address: Broadway Books, a division of
Random House, Inc., 1540 Broadway, New York, NY 10036
Broadway Books titles may be purchased for business or promotional use or for special sales.
For information, please write to: Special Markets Department, Random House, Inc., 1540
Broadway, New York, NY 10036.
BROADWAY BOOKS and its logo, a letter B bisected on the diagonal, are trademarks of
Broadway Books, a division of Random House, Inc.
Visit our website at www.broadwaybooks.com
First Broadway Books trade paperback edition published November 2001
Designed by Carla Bolte
The Library of Congress has cataloged the hardcover as follows:
Waite, Linda J.
The case for marriage/Linda J. Waite and Maggie Gallagher.1st ed.
p. cm.
Includes bibliographical references and index.
1. Married couplesUnited States^Psychology. 2. Man-woman relationshipsUnited
States. 3. Single peopleUnited States^Psychology. I. Gallagher, Maggie. II. Title.
HQ536.W33 2000
360.81'0973dc2i 00-022672
ISBN 0-7679-0632-2
"f:
A-1155
R^V'. >,--
V' - J - -
LIF
WITHOUT
FATHER
Compelling new evidence that fatherhood and marriage are
indispensable for the good of children and society
DAVID POPENOE
ii
MARTIN KESSLER BOOKS
THE FREE PRESS
New York London Toronto Sydney Tokyo Singapore
IS^!1
^ | M * S l " S
5
* ^ ^ , ^ ^ - ^ ^ S ^ - ^ - ^ w * ^ sa
A-1156
THE FREE PRESS
A Division of Simon & Schuster Inc
1230 Avenue of the Amencas
New York NY 10020
Copyright 1996 b) David Popenoe
All nghts reserved
including the right of reproduction
in whole or in part m any form
THE FREE PRESS and colophon are trademarks
of Simon & Schuster Inc
Designed by Carla Bolte
Manufactured m the United States of America
10 9 8 7 6 ^ 4 3 2 1
Library of Congress Cataloging in Publication Data
Popenoe David 1932-
Life without father compelling new evidence that fatherhood and mamage are
indispensable for the good of children and societ) / David Popenoe
p cm
Includes bibliographical references (p ) and index
ISBN 0-684-82297-0
1 Fatherless familyUnited States 2 FatherhoodUnited States 3 Fathers
United States 4 Paternal depnvationUnited States 5 Children of single parents
United States 6 United StatesSocial conditions I Title
HQ756 P65 1996
306 874 2-dc20 95-46z33
CIP
A-1157
HeinOnline -- 15 J.L. & Pol. 581 1999
A-1158
A-1159
A-1160
A-1161
A-1162
A-1163
A-1164
A-1165
A-1166
A-1167
A-1168
A-1169
A-1170
A-1171
A-1172
A-1173
A-1174
A-1175
A-1176
A-1177
A-1178
A-1179
A-1180
A-1181
A-1182
A-1183
A-1184
A-1185
A-1186
A-1187
A-1188
A-1189
A-1190
A-1191
A-1192
A-1193
A-1194
A-1195
A-1196
A-1197
A-1198
A-1199
A-1200
A-1201
A-1202
A-1203
A-1204
A-1205
A-1206
A-1207
A-1208
A-1209
A-1210
A-1211
A-1212
A-1213
A-1214
A-1215
A-1216
A-1217
A-1218
A-1219
A-1220
A-1221
Demographic, Psychological, and Social Characteristics
of Self-Identified Lesbian, Gay, and Bisexual Adults
in a US Probability Sample
Gregory M. Herek & Aaron T. Norton &
Thomas J. Allen & Charles L. Sims
Published online: 3 March 2010
# The Author(s) 2010. This article is published with open access at Springerlink.com
Abstract Using data from a US national probability sample
of self-identified lesbian, gay, and bisexual adults (N=662),
this article reports population parameter estimates for a
variety of demographic, psychological, and social variables.
Special emphasis is given to information with relevance to
public policy and law. Compared with the US adult
population, respondents were younger, more highly educated,
and less likely to be non-Hispanic White, but differences
were observed between gender and sexual orientation groups
on all of these variables. Overall, respondents tended to be
politically liberal, not highly religious, and supportive of
marriage equality for same-sex couples. Women were more
likely than men to be in a committed relationship. Virtually
all coupled gay men and lesbians had a same-sex partner,
whereas the vast majority of coupled bisexuals were in a
heterosexual relationship. Compared with bisexuals, gay men
and lesbians reported stronger commitment to a sexual-
minority identity, greater community identification and
involvement, and more extensive disclosure of their sexual
orientation to others. Most respondents reported experiencing
little or no choice about their sexual orientation. The
importance of distinguishing among lesbians, gay men,
bisexual women, and bisexual men in behavioral and social
research is discussed.
Keywords Lesbians
.
Gay men
.
Bisexuals
.
Public policy
.
Sampling
.
Survey research
.
Committed relationships
.
Politics and religion
.
Identity, community, and disclosure
Empirical studies using nonrepresentative samples of
gay men and lesbians show that the vast majority of
participants have been involved in a committed
relationship at some point in their lives [and] that
large proportions are currently involved in such a
relationship.... (American Psychological Association
2007, pp. 1415)
...[D]ata are not available to indicate the exact
number of lesbian and gay parents in the United
States.... (American Psychological Association 2007,
p. 25)
Most or many gay men and lesbians experience little
or no choice about their sexual orientation. (American
Psychological Association 2003, p. 8)
These three passages, all excerpted from amicus briefs
submitted jointly by the American Psychological Associa-
tion (APA) and other professional organizations in court
cases involving gay rights, illustrate some of the ways in
which descriptive data about the lesbian, gay, and bisexual
population are relevant to policy debates. In each instance,
the APA and its co-amici summarized current knowledge
about an aspect of the US gay, lesbian, and bisexual
population that was relevant to a question being considered
by the courtrespectively, how many gay men and
lesbians are involved in a committed relationship, how
many are parents, and how many experience their sexual
orientation as a choice. Yet, in each instance, the briefs
could not provide definitive population estimates because
relevant data were not available from nationally represen-
G. M. Herek (*)
:
A. T. Norton
:
T. J. Allen
:
C. L. Sims
Psychology Department, University of California,
One Shields Avenue,
Davis, CA 95616-8686, USA
e-mail: gmherek@ucdavis.edu
A. T. Norton
e-mail: atnorton@ucdavis.edu
T. J. Allen
e-mail: tjallen@ucdavis.edu
Sex Res Soc Policy (2010) 7:176200
DOI 10.1007/s13178-010-0017-y
A-1222
tative samples of self-identified gay, lesbian, and bisexual
adults.
The need for data describing the gay, lesbian, and
bisexual population is not limited to legal proceedings. As
Black et al. (2000) have noted, such data are relevant to a
wide variety of policy debates in the USA, including those
about initiatives designed to prohibit discrimination based
on sexual orientation, public policy concerning the provi-
sion of benefits to same-sex couples, military policy
concerning service by openly gay personnel, and lesbian
and gay parental rights. They observed that informed
policy analysis about these issues requires accurate demo-
graphic information about the lesbian and gay population
(Black et al. 2000, p. 139).
Population data describing lesbians, gay men, and bisex-
uals also have important scientific implications insofar as they
can inform researchers who study the gay, lesbian, and
bisexual population. Examination of demographic, social, and
psychological patterns in the population, for example, can
highlight gaps in current scientific knowledge and suggest
hypotheses for empirical testing. Reliable estimates of the
extent to which various characteristics and experiences are
present in the sexual-minority population can also assist
researchers in interpreting data from nonprobability samples
and assessing their likely generalizability.
To date, however, most social science knowledge about
people who identify as gay, lesbian, or bisexual has been
based on data from nonprobability samples. These samples
have been recruited through such venues as clubs, cafes,
and commercial establishments catering to gay men,
lesbians, and bisexuals; neighborhood and community
events; community-based organizations; local and national
publications; e-mail lists and web-based communities; and
friendship networks (e.g., Bell and Weinberg 1978; Bradford
et al. 1994; Herek et al. 1999; Martin and Dean 1990;
Riggle et al. 2005; Rothblum et al. 2004; Rothblum and
Factor 2001). Researchers have also used public records to
recruit specific groups, such as same-sex couples who have
married or legally registered their partnership in states
where they are allowed to do so (Balsam et al. 2008;
Rothblum et al. 2008). Although the data collected from
such samples are sources of important information, the
extent to which their participants represent the larger
population is unknown (Harry 1986; Meyer and Colten
1999; Sell and Petrulio 1996).
It has often been assumed that traditional probability
sampling methodswhich permit assessment of sampling
error and whose results can be generalized beyond a
specific sampleare not feasible with lesbians, gay men,
and bisexuals because nonheterosexuals constitute only a
small proportion of the population and because sexual
stigma deters some individuals from disclosing their
homosexual or bisexual orientation to researchers. Con-
cerns about the limitations of findings from convenience
samples, however, have fostered the development of
innovative strategies for obtaining probability samples of
gay, lesbian, and bisexual people (Cochran and Mays 2006;
Meyer and Wilson 2009). For example, researchers have
used various methods to identify nonheterosexuals in large
national probability samples (Badgett 1995; Cochran and
Mays 2006; Edelman 1993; Harry 1990; Laumann et al.
1994) and have applied probability sampling methods to
specific settings or venues where sexual-minority individ-
uals are known to be concentrated (Blair 1999; Diaz et al.
2004; Diaz et al. 1996; Stall and Wiley 1988).
When examining this body of research, it is important to
note that sexual orientation is a multifaceted construct that
encompasses sexual attraction, sexual behavior, personal
identity, romantic relationships, and community membership
(Herek 2000; Sell 2007). Most social and behavioral research
has operationally defined sexual orientation in terms of
attraction, behavior, or identity, or some combination of
these constructs. Which of these definitions is most
appropriate for a particular study depends on the research
goals (Sell and Silenzio 2006). For example, studies of
sexually transmitted diseases among men who have sex with
men might optimally focus on sexual behavior, whereas
research on experiences stemming from ones status as an
openly gay, lesbian, or bisexual individual would, ideally,
operationalize sexual orientation in terms of identity.
However, even in studies for which sexual orientation
identity is the relevant variable, researchers employing
existing data sets based on large probability samples have
often had to operationalize sexual orientation in terms of
sexual behavior simply because most surveys have not
collected data about identity. In many studies of economic
discrimination that use national survey data sets, for
example, the results have been characterized in terms of
disparities between heterosexual workers and their gay or
lesbian counterparts (e.g., Badgett 1995; Berg and Lien
2002; Blandford 2003). Although the terms heterosexual,
gay, and lesbian suggest a focus on identity, limitations
of the available data dictated that the operational definitions
of sexual orientation be based on self-reported sexual
behavior, from which the researchers inferred respondents
sexual orientation identity.
Although unavoidable, such use of sexual behavior as a
proxy for identity and community membership is limiting
for several reasons (see Herek et al. 2007). For example, it
inevitably excludes gay, lesbian, and bisexual individuals
who were not sexually active during the specified time
period (e.g., Carpenter 2005). Moreover, the population of
individuals who have experienced same-sex attractions or
engaged in same-sex sexual behavior includes many people
who do not identify as lesbian, gay, or bisexual (e.g.,
Cochran and Mays 2006; Laumann et al. 1994). Insofar as
Sex Res Soc Policy (2010) 7:176200 177
A-1223
much of the stigma directed at gay, lesbian, and bisexual
people finds behavioral expression when others become
aware of their sexual orientation identity (e.g., Herek
2009b), the experiences of self-identified gay, lesbian, and
bisexual people are likely to differ in important respects
from, say, self-identified heterosexuals with incidental
same-sex attractions or sexual behavior.
Some studies with probability samples have operation-
alized sexual orientation in terms of identity, but they have
been limited by small sample sizes.
1
For example, the
National Health and Social Life Survey collected data about
respondents sexual behavior, attractions, and sexual orien-
tation identity. However, the sample ultimately included
only 24 women who identified as lesbian or bisexual and
only 39 men who identified as gay or bisexual (Laumann
et al. 1994). Similarly, the National Survey of Midlife
Development in the United States asked respondents to
label their sexual orientation as heterosexual, homosexual,
or bisexual. Of the approximately 3,000 respondents in this
national probability sample, only 41 identified as homo-
sexual and only 32 as bisexual (Mays and Cochran 2001).
Such small numbers clearly preclude extensive analysis of
self-identified lesbians, gay men, and bisexuals.
Other studies using probability samples have obtained
larger numbers of self-identified lesbian, gay, and bisexual
respondents, but the samples have been restricted to
specific US states (Carpenter 2005) or cities (Blair 1999;
Sell et al. 2007) or to gay neighborhoods or venues in
specific cities (Diaz et al. 1996; Stall and Wiley 1988).
These studies have yielded invaluable data, but their
findings may not be generalizable beyond those settings.
Another important limitation is that the data from
probability samples have generally not permitted separate
analyses of self-identified lesbians, gay men, bisexual
women, and bisexual men. As noted previously, some studies
that directly assessed sexual orientation identity have yielded
samples that were simply too small to permit separate
analyses of subgroups (e.g., Laumann et al. 1994; Mays and
Cochran 2001). In other studies, the sexual orientation
question was not framed in a manner that permitted
differentiation between bisexual and homosexual respond-
ents. For example, exit polls conducted in conjunction with
national elections have asked respondents to indicate
whether they are gay, lesbian, or bisexual without differen-
tiating among these groups (Edelman 1993; Hertzog 1996).
Yet, empirical research with nonprobability samples
suggests that important differences may exist among
sexual-minority subgroups. For example, lesbians may
differ from gay men in their likelihood of being involved
in an intimate relationship (Peplau and Fingerhut 2007),
bisexuals may differ from lesbians and gay men in the
extent to which they are open about their sexual orientation
and feel connected to a sexual-minority community
(Balsam and Mohr 2007), and lesbians and bisexual women
may differ from gay and bisexual men in the extent to
which they manifest self-directed stigma (Balsam and Mohr
2007; Herek et al. 2009). Whether or not these findings can
be generalized beyond the specific samples in which they
were initially observed is as yet unknown, but they
highlight the value of collecting data from probability
samples that are sufficiently large to permit comparisons
among gender and sexual orientation subgroups.
This article uses data from a national probability sample
of self-identified gay, lesbian, and bisexual adults to
estimate population parameters on a variety of demograph-
ic, psychological, and social variables. Recognizing that
sexual orientation subgroups may differ, we also compare
and contrast gay men, lesbians, bisexual men, and bisexual
women on each variable. Rather than testing specific
hypotheses, our central goal is to report basic descriptive
data about self-identified gay, lesbian, and bisexual adults.
Although an overwhelming number of questions about
potentially interesting and important characteristics of the
sexual-minority population could be generated, practical
considerations limited the number of variables that could be
assessed. Guided mainly by our review of policy studies
and amicus briefs from scientific and professional organ-
izations that have addressed topics for which data about the
US population of self-identified gay, lesbian, and bisexual
adults would be relevant (e.g., American Psychological
Association 1986, 2003, 2007; Belkin 2008; Black et al.
2000; Egan and Sherrill 2005; Herek 2006; Schaffner and
Senic 2006), we focused on variables in four categories.
First, we examined the basic demographic characteristics
of this population, including age, educational background,
and race and ethnicity. We also examined key variables
identified by Black et al. (2000) as warranting description,
including geographical distribution, household structure,
and military veteran status.
Second, consistent with the present studys focus on
adults who identify as gay, lesbian, or bisexual, we report
descriptive data about key aspects of sexual orientation
identity. These include the extent to which respondents
used various identity labels in describing themselves; felt
committed to their sexual orientation identity; had disclosed
their sexual orientation to others; and were involved with
1
The problem of small sample size is not restricted to studies that
have focused on sexual orientation identity. For example, an analysis
of data from male respondents in the third National Health and
Nutrition Examination Survey Studies (N=3,648) yielded a weighted
total of 79 men who reported any same-sex sexual behavior during
their lifetime (Cochran and Mays 2000). A 1985 ABC News
Washington Post poll recruited a national probability sample of men
and included a question about sexual attraction. Of the 663
respondents, 16 reported that they were attracted to members of their
same sex and another five volunteered that they were attracted to both
men and women (Harry 1990).
178 Sex Res Soc Policy (2010) 7:176200
A-1224
the gay, lesbian, and bisexual community. We also assessed
the extent to which respondents perceived they had chosen
their sexual orientation, an issue that has often been raised
in policy debates and in legal discussions of gay, lesbian,
and bisexual rights (see, for example, the 2003 APA amicus
brief quoted at the beginning of this article; see also
Herman 1997).
Third, recognizing the importance of religious and political
institutions in shaping contemporary policy and public
opinion affecting gay, lesbian, and bisexual people, we
assessed several aspects of respondents religious and political
involvement. Although it is widely recognized that the
condemnation of homosexuality that characterizes many
religious denominations often creates conflicts and challenges
for gay, lesbian, and bisexual people, there has been relatively
little examination of the role that religion plays in the lives of
sexual-minority individuals (Rodriguez and Ouellette 2000).
We obtained descriptive data concerning respondents
affiliation with a religious denomination, their participation
in religious services, and the importance of religion in their
daily lives. In the realm of political involvement, national
exit poll data have suggested that lesbian, gay, and bisexual
voters tend to be liberal and identify with the Democratic
Party (e.g., Edelman 1993; Hertzog 1996). We assessed the
extent to which these attributes characterize the larger
lesbian, gay, and bisexual population.
Finally, relevant to ongoing national debates about
marriage equality and lesbian and gay parenting (e.g.,
Herek 2006), we collected data concerning respondents
current relationship and parental status, as well as their
future aspirations related to marrying. We also asked
respondents about their general attitudes toward civil
unions and marriage rights for same-sex couples.
2
Method
The study employed a probability sample of English-
speaking, self-identified lesbian, gay, and bisexual adults
residing in the USA. The sample was drawn from the
Knowledge Networks (KN) panel, a large (approximately
40,000 households at the time of data collection) probability
sample of English-speaking US residents who were recruited
through random digit dialing (RDD) methods. Upon initially
joining the KN panel, respondents agreed to participate
regularly in on-line surveys and were provided with free
Internet access and equipment if they did not already have it.
Thus, in contrast to Internet studies with volunteer samples
recruited via the Web, the KN panel includes individuals who
would not otherwise have Internet access because of their
financial or social situation. Reflecting this fact, KN samples
more closely match the US population than do other Internet
samples. Indeed, they are demographically similar to the RDD
samples used in traditional telephone surveys (Chang and
Krosnick 2009; see also Berrens et al. 2003) and have been
used extensively in academic research (for examples, see
Knowledge Networks 2009).
Sample and Procedure
All KN panel members routinely answer a battery of
background questions, including one about their sexual
orientation (Are you yourself gay, lesbian, or bisexual?).
A probability sample of 902 English-speaking adults
(18 years of age) was drawn from the subset of all panel
members who had previously responded affirmatively to
this question. Following standard KN procedures, they each
received an e-mail invitation to complete the survey at their
convenience. A follow-up e-mail was sent to nonresponders
after approximately 1 week. Neither invitation mentioned
sexual orientation. As with all KN surveys, panel members
were free to decline to participate.
A total of 775 individuals (86%) accessed the question-
naire between September 13 and October 7, 2005. In response
to an initial screening question (described subsequently), six
respondents declined to state their sexual orientation, and 50
indicated they were heterosexual.
3
They were thanked for
their assistance, and their survey was terminated. This
2
Data about hate crime victimization and related experiences among
members of this sample are reported elsewhere (Herek 2009a).
3
We hypothesized that these individuals were heterosexual respond-
ents who had incorrectly characterized their sexual orientation on the
original screening questionnaire (e.g., due to misunderstanding the
question). However, we also recognized that some may have been gay,
lesbian, or bisexual but reluctant to disclose this fact in the current
questionnaire (e.g., out of concern that their responses might be seen
by a household member who was unaware of their sexual orientation).
We compared the personal characteristics of these respondents with
those of the self-identified sexual-minority adults in the current
sample. On most variables (including marital status, race and ethnicity,
current employment status, residence in a metropolitan area, presence
of children under 18 in their household, Internet access independent of
KN, political party affiliation, and self-described political ideology),
the 50 respondents who reported they were heterosexual differed from
the self-identified sexual-minority sample. Although we cannot draw
definitive conclusions, these patterns are consistent with the hypoth-
esis that most of the 50 respondents were indeed heterosexual.
Moreover, insofar as educational level is correlated with general
questionnaire response validity (e.g., Krosnick 1991), the fact that
these respondents had less formal education than others (42% had not
attended college) is consistent with the hypothesis that many of them
had misunderstood the original KN screening question. These
analyses suggest that simply asking respondents whether they are
gay, lesbian, or bisexualwith response options of yes and
nomay not be an optimal strategy for ascertaining sexual
orientation identity in national probability samples. The question on
the current survey, which presented the different sexual orientations
along a continuum and included the familiar term straight as a
synonym for heterosexual, may have been easier to comprehend and
answer accurately.
A-1225
screening process left 719 self-identified lesbian, gay, and
bisexual respondents who completed the questionnaire.
Within that group, 56 households were represented by
multiple respondents. In these cases, one respondent was
randomly selected from the household for inclusion in the
data set, yielding a final sample of 662. Taking into account
all attrition in the KN panel since the earliest stage of RDD
recruitment, the response rate for the present study was 30%
(American Association for Public Opinion Research 2006
[Formula 3]). This rate is relatively high for contemporary
commercial surveys (Holbrook et al. 2008).
Measures
The variables included in the questionnaire are described
here, and the wording of most questions is reported in the
tables. When appropriate, the question wording was
tailored to respondents sexual orientation (bisexual vs
homosexual) and gender.
Basic Demographic Characteristics and Other Background
Variables Information about respondents age, race and
ethnicity, residence, location, and household composition
had been routinely collected by Knowledge Networks in
prior questionnaires. The present survey included a ques-
tion asking whether the respondent was currently on active
military duty, a member of the Military Reserves or
National Guard, or a military veteran.
Sexual Orientation Identity As noted previously, all respond-
ents had reported they were gay, lesbian, or bisexual on a
previously administered KN questionnaire. The present survey
began with a screening question that asked respondents
Which of the following best describes your sexual orienta-
tion? and provided five options arrayed on a continuum from
homosexual to heterosexual. For male respondents, the options
were (a) gay or homosexual; (b) bisexual, mostly attracted to
men; (c) bisexual, equally attracted to men and women; (d)
bisexual, mostly attracted to women; (e) heterosexual or
straight. For females, the first response option was lesbian,
gay, or homosexual, and options (b) and (d) were trans-
posed. Respondents were asked how often they use various
identity terms to describe themselves (Gay, Lesbian
[women only], Bisexual, Queer, Dyke [women only],
Homosexual). They were then asked to indicate their
preferred term for characterizing their own sexual orientation
(e.g., Gay, Lesbian, Bisexual, Queer, Homosexual).
This label was subsequently inserted into questions that
referred to the respondents sexual orientation or identity. This
individualized item wording is indicated throughout the
present article as [L/G/B/Q/H].
We used two measures to assess the strength of respond-
ents commitment to their sexual orientation identity and to
the larger gay, lesbian, and bisexual community. First, three
items assessing commitment to a sexual-minority identity
were taken from the Internalized Homophobia Scale, or IHP
(Herek et al. 1998; Herek et al. 2009): (1) In general, Im
glad to be [L/G/B/Q/H]; (2) If someone offered me the
chance to be completely heterosexual (straight), I would
accept the chance; and (3) I wish I werent [L/G/B/Q/H].
Second, two items assessing community identification were
adapted from the Importance to Identity subscale of the
Collective Self-Esteem scale (Herek and Glunt 1995;
Luhtanen and Crocker 1992): (1) My membership in the
[L/G/B/Q/H] community is an important reflection of who I
am and (2) Overall, my membership in the [L/G/B/Q/H]
community has very little to do with how I feel about
myself. All of these items were presented with 5-point
Likert-type response formats ranging from strongly agree
to strongly disagree, with each respondents preferred
identity label substituted for [L/G/B/Q/H].
Perceived choice about ones sexual orientation was
assessed with the question, How much choice do you feel
you had about being [L/G/B/Q/H]? The response options
were no choice at all, a small amount of choice, a fair
amount of choice, and a great deal of choice.
Respondents were asked their age when they first knew
about their sexual orientation (How old were you when you
first knew or decided you were [gay/lesbian/bisexual]?) and
when they first disclosed it to another person (How old were
you the first time you told someone else that you are [gay/
lesbian/bisexual]?). They were subsequently asked whether
their mother or father knew about their sexual orientation and,
if applicable, how many of their sisters and brothers knew
about it. In addition, using a scale that ranged from 0 (not at
all out to any of them) to 7 (completely out to all of them),
respondents reported the extent to which they were out of
the closet (openly [L/G/B/Q/H]) to six additional groups:
(1) other relativesnot your immediate family, (2) your
current heterosexual (straight) friends, (3) your casual
acquaintances who are heterosexual (straight), (4) het-
erosexual (straight) friends whom you knew before you
came out, (5) your boss and other supervisors at work,
and (6) the people you work with on a daily basis (other
than your boss or supervisors). A doesnt apply to me
response option was included for each group.
Community involvement was assessed by asking respon-
dents to rate how important each of the following activities
is to you these days. By important, we mean that you would
feel differently about life and about yourself if you couldnt
do this activity. The list of activities was adapted from a
scale developed by Herek and Glunt (1995) and consisted of
the following: (1) Knowing what is going on in the local
[L/G/B/Q/H] community, (2) Doing volunteer work in
the [L/G/B/Q/H] community, (3) Giving money to [L/G/
B/Q/H] organizations, (4) Being politically active in the
A-1226
[L/G/B/Q/H] community, and (5) Reading community
newspapers and magazines for news about the [L/G/B/Q/H]
community. Each activity was rated on a 4-point scale
(Not at all important, Somewhat important, Fairly impor-
tant, Very important).
Respondents also were asked whether they had ever
engaged in a variety of activities related to lesbian, gay, or
bisexual issues, including public expressions of opinion (Wore
a button, posted a sign, or displayed a bumper sticker);
participating in a rally, march, or demonstration; contacting a
government official; and contributing money to a lesbian, gay,
or bisexual organization or cause. For comparison purposes,
this series of questions was followed by a parallel set of items
that asked whether the respondent had participated in the same
activities for a non-gay issue or causethat is, something not
related mainly to gay men, lesbians, or bisexuals.
Political and Religious Involvement Information about
respondents political party affiliation and ideology (liberal,
moderate, conservative) had been previously collected by
Knowledge Networks. For the present study, respondents
were asked whether they had voted in the most recent (2004)
presidential election and, if so, for which candidate. They
were also asked for information about their religious
denomination, frequency of attendance at religious services
during the previous 12 months, how much guidance religion
provides in their day-to-day living, and (for respondents who
reported affiliation with a religious denomination and any
attendance at religious services) the extent to which their
congregation includes lesbian, gay, and bisexual members.
Relationships, Marriage, and Family Respondents were
asked their current relationship status, their legal marital
status, and how many children they have (including adopted
children and stepchildren). Respondents currently in a
relationship (including those who were married) were asked
the gender of their partner. Those who were in a relationship
but not married were asked whether they were cohabiting and
the likelihood they would marry their partner if their state
were to allow same-sex marriages (this conditional clause was
omitted for respondents in Massachusetts, the only state
where marrying a same-sex partner was legal at the time of
data collection). Those who were not currently in a
relationship were asked whether they would like to marry
someday. Respondents attitudes toward marriage rights
for same-sex couples were assessed with three items. Using a
5-point Likert-type response format ranging from strongly
agree to strongly disagree, they indicated the extent to
which they agreed or disagreed with each of the following
statements: (1) The law should allow two people of the
same sex to marry each other. (2) There is really no need
to legalize same-sex marriage in the United States. (3) The
U.S. public isnt ready for a debate about gay marriage. In
addition, respondents were asked whether they strongly
supported, somewhat supported, somewhat opposed, or
strongly opposed state laws to create civil unions. An
accompanying note explained that civil unions are not
marriage, but give a same-sex couple some legal protection
in their home state in areas such as inheritance, health
insurance, and hospital visits.
Data Analysis
Tables 1, 2, 3, 4, 5, 6, 7, and 8 report population parameter
estimates with 95% confidence intervals (CIs). The CIs
facilitate comparisons among the four gender and sexual
orientation subgroups and are preferable to p values
because they indicate whether group differences are
statistically significant while also providing additional
information about effect size (Cumming 2008; Wilkinson
and Task Force on Statistical Inference 1999).
As reported subsequently, the four subgroups differed
significantly in age, race, and educational level. We
conducted analyses to assess whether these demographic
patterns might account for the group differences in the
outcome variables reported in Tables 3, 4, 5, 6, 7, and 8. For
each outcome variable, therefore, we conducted two linear
regression analyses (for continuous and ordinal outcome
variables) or two logistic regression analyses (for categorical
outcome variables). In the first equation, sexual orientation
(homosexual vs bisexual), gender, and their multiplicative
interaction term were entered. In the second equation, age,
educational level, and race (dichotomized as Black vs non-
Black) were added as statistical controls. Except where noted
in the subsequent text, inclusion of the control variables did
not alter the patterns of significant differences among
subgroups shown in the tables.
Weighting
The KN panels original RDD design yielded a simple
random sample with equal probability of selection for all
US households with a landline telephone. However, the
actual probability of selection for individual respondents
was affected by multiple factors (e.g., differences in
household size, number of telephone lines). Design weights
were assigned to each case to adjust for unequal probability
of selection (e.g., Kish 1965).
4
Because the use of weighted
4
Design weights were computed to account for (a) variations in the
number of adults and telephone lines in the household; (b) over-
sampling of Blacks and Hispanics, households with prior Internet
access, and, early in the life of the KN panel, residents of California,
New York, Florida, Texas, and Central regional states; (c) under-
sampling of telephone numbers for which matching addresses were
unavailable and of households in areas without MSN-WebTV
coverage; and (d) slight overrepresentation of Chicago and Los
Angeles during KNs early pilot testing.
A-1227
data necessitates special analytic techniques to correct
standard errors (Lee and Forthofer 2006), analyses were
conducted using STATA and SPSS Complex Samples,
which permit such correction.
Results
The sample consisted of 311 women (152 lesbians, 159
bisexuals) and 351 men (241 gay men, 110 bisexuals).
Applying design weights, the weighted sample was 34.8%
gay male, 14.6% lesbian, 26.9% bisexual male, and 23.7%
bisexual female (Table 1).
5
Unless otherwise indicated, the
weighted data are used hereafter.
Representativeness Check
One challenge associated with evaluating the representa-
tiveness of a lesbian, gay, and bisexual probability
sample is the general lack of comparison data from the
population of self-identified sexual minorities. Even
though the US Census does not collect information about
individuals sexual orientation, however, Census data are
available for a subset of the sexual-minority population,
namely, adults who report they are members of a cohab-
iting same-sex couple. Taking advantage of the fact that
such individuals were able to identify themselves in the
2000 Census, we assessed the present samples represen-
tativeness by comparing its members who were cohabiting
with a same-sex partner to their counterparts in the Census
data.
These comparisons are shown in Table 2, with the
2000 Census data corrected for misclassifications of
some heterosexual couples due to miscodings of the
partners gender (Black et al. 2007).
6
Except for mean
age, the two groups do not differ significantly, as
indicated by the overlapping 95% CIs. These findings
are consistent with the conclusion that, apart from being
slightly older, the current sample was generally repre-
sentative of self-identified lesbian, gay, and bisexual
adults in the USA.
Age, Race, Ethnicity, and Education
As shown in Table 1, the mean age of respondents was 39,
7
approximately two thirds were non-Hispanic White, and
roughly one third had earned a college degree. Significant
differences were observed in these variables among the
sexual orientation and gender groups. Gay men (M=
45 years) were significantly older than all other groups,
and lesbians (M=40 years) were significantly older than
bisexual women (M=32 years). Only 43% of bisexual men
were non-Hispanic White, compared with more than 70%
of other respondents (21% of bisexual men were Hispanic
and 29% were non-Hispanic Black). More homosexuals
than bisexuals had earned a bachelors degree: 46% of gay
men and 41% of lesbians reported having a degree,
compared with only 16% of bisexual men and 28% of
bisexual women.
According to Census data from approximately the same
time period, the mean age of US adults (18 and older) was
45, about 75% were non-Hispanic White, and 24% had
earned a college degree.
8
Thus, the present sample was
younger than the US adult population, was less likely to be
non-Hispanic White, and had a higher level of formal
education. However, these patterns were not uniform across
subgroups within the sample. Gay mens mean age was not
significantly different from that of US adult men, whereas
the other sexual orientation groups were significantly
younger. Patterns of race and ethnicity among gay men
and lesbians did not differ from the US population, but
bisexual men were less likely to be non-Hispanic White,
and bisexual women were less likely to be Hispanic or non-
Hispanic Black.
9
Finally, whereas gay men and lesbians
were significantly more likely than the US adult population
to have earned a college degree, bisexual men and women
did not differ significantly from the population in this
regard.
5
Among bisexuals, 27% (40 men, 33 women) reported they were
mainly attracted to people of their same sex, 39% (34 men, 71
women) were mainly attracted to the other sex, and 34% (36 men,
55 women) were attracted equally to both sexes. Because of the
large margin of error associated with groups of such small size,
these three categories were combined for the analyses presented
subsequently.
6
We are grateful to Dr. Gary Gates (UCLA Williams Institute) for his
kind assistance in this regard.
7
Approximately one third of the respondents (34%) were under 30,
33% were 3044 years old, and 33% were 45 or older. Gay men were
underrepresented in the 1829 age category, compared with bisexual
men and women; bisexual men were underrepresented in the 3044
category, compared with gay men and lesbians; and bisexual women
were underrepresented in the 45 and older category, compared with
gay men and lesbians. However, because of the small number of
respondents in some subcategories, these comparisons across sexual
orientation subgroups must be considered tentative.
8
Comparisons were made with data from the US Census Bureaus
American Community Surveys 20002003, using the UC Berkeley
SDA interface (http://sda.berkeley.edu/archive.htm).
9
These patterns describe respondents who identified with a single
racial or ethnic group. Our data do not permit intensive analyses of
respondents reporting mixed race ancestry.
A-1228
Table 1 Demographic characteristics of sample
Variable Gay men Lesbians Bisexual men Bisexual women Total
Unweighted N 241 152 110 159 662
Weighted % 34.8 14.6 26.9 23.7 100
CI 28.941.2 11.718.2 19.136.4 18.829.3
Age
Range 2389 1879 1840 1876 1889
Mean 45.3 a 40.1 b 36.6 bc 31.8 c 39.0
CI 43.047.5 37.742.6 32.041.1 29.334.3 37.140.9
Race/Ethnicity
Non-Hispanic White 70.5% ab 74.4% a 43.0% b 77.5% a 65.4%
CI 59.679.5 62.683.5 25.862.1 65.986.0 56.573.2
Non-Hispanic Black 14.0% 12.8% 28.6% 5.2% 15.6%
CI 7.624.3 6.124.9 10.956.8 2.410.9 9.125.5
Hispanic 11.3% 10.5% 20.6% 6.2% 12.5%
CI 6.120.0 5.020.6 7.246.6 2.713.6 7.420.2
Other, mixed race 4.2% 2.3% 7.8% 11.1% 6.5%
CI 1.016.1 0.86.6 3.217.7 4.823.5 3.811.0
Education (highest level)
Less than high school 5.6% 7.8% 8.0% 8.9% 7.3%
CI 2.213.5 3.118.4 3.119.4 3.620.2 4.611.6
High school diploma 19.5% 17.5% 47.2% 26.8% 28.4%
CI 12.629.1 9.829.3 27.168.3 16.540.4 20.737.6
Some college (<4 years) 28.5% 33.8% 28.9% 36.8% 31.4%
CI 21.436.9 25.343.5 15.148.2 27.147.8 25.637.7
Bachelors degree or higher 46.4% a 40.9% ac 15.9% b 27.5% bc 32.9%
CI 37.555.4 31.950.6 9.126.1 19.337.4 27.538.8
Military service
Currently serving or veteran 15.1% a 10.6% a 20.8% a 0.7% b 12.6%
CI 9.822.5 5.519.4 11.434.8 0.15.1 9.316.8
Never served 84.9% a 89.4% a 79.2% a 99.3% b 87.4%
CI 77.590.2 80.694.5 65.288.6 94.999.9 83.290.7
Census region
Northeast 21.9% 17.8% 27.6% 18.5% 22.0%
CI 15.530.1 10.728.0 12.450.5 12.327.0 16.329.0
South 37.7% 36.2% 40.6% 35.1% 37.7%
CI 29.446.8 26.846.8 21.363.4 23.948.2 30.445.5
A-1229
Table 1 (continued)
Midwest 11.9% 22.9% 17.1% 16.5% 16.0%
CI 7.817.8 16.231.3 8.830.4 11.024.1 12.520.2
West 28.4% 23.2% 14.7% 29.9% 24.3%
CI 20.438.2 16.331.9 7.626.6 20.741.0 19.529.9
Type of residence area
Large city 56.1% 40.8% 43.3% 38.0% 46.1%
CI 47.164.7 31.151.2 24.164.7 27.749.5 39.053.5
Small city 18.1% 27.1% 21.8% 27.0% 22.5%
CI 12.725.0 19.037.2 9.741.9 18.437.6 17.428.5
Suburban 17.5% 16.7% 22.2% 18.6% 18.9%
CI 11.725.2 10.825.0 8.546.6 9.832.4 13.326.2
Rural or small town 8.4% 15.4% 12.7% 16.4% 12.5%
CI 4.714.7 9.923.1 6.722.7 10.125.7 9.516.3
Housing
Homeowner 56.4% a 60.9% a 30.8% b 40.3% ab 46.4%
CI 46.965.4 50.270.7 18.247.0 30.051.6 39.553.3
Renter 38.9% a 34.1% a 67.6% b 52.8% ab 49.2%
CI 29.948.7 24.545.1 51.080.8 41.464.0 42.056.5
Doesnt pay for housing 4.8% 5.0% 1.6% 6.8% 4.4%
CI 2.39.7 2.211.1 0.45.7 2.417.9 2.77.3
Household composition
1 adult (18 years or older) 55.4% a 28.7% b 30.1% ab 21.8% b 36.7%
CI 46.464.1 21.037.8 17.247.1 15.030.5 30.743.2
2 adults 32.3% a 54.0% b 44.6% ab 55.3% b 44.2%
CI 25.040.5 44.063.8 24.666.6 43.666.5 37.051.8
3+ Adults 12.3% 17.3% 25.2% 22.9% 19.0%
CI 7.220.3 10.527.2 12.444.7 13.137.0 13.925.5
% with any children (<18 years) 4.8% a 16.6% a 25.6% ab 49.3% b 22.7%
CI 2.010.9 9.826.8 10.051.5 38.060.8 16.330.6
Within rows, values with different lowercase letters differ significantly, as indicated by nonoverlapping confidence intervals
A-1230
Residence Variables
In terms of residence patterns, the sample generally
matched the US population except that a disproportionately
small number of respondents lived in the Midwest. Within
the sample, the sexual orientation groups did not differ
significantly in their geographic distribution or the extent to
which they resided in urban, suburban, or rural settings
(Table 1). Women were more likely than men to live in a
household with another adult. Although higher proportions
of homosexuals reported owning their home and more
bisexuals reported renting, this difference was not signifi-
cant when age, education, and race were statistically
controlled.
Military Service
Approximately 15% of gay men and 11% of lesbians had a
history of military service. Compared with the US adult
population, gay men were significantly less likely to have
served, compared with all adult males (approximately 25%
of whom had served), whereas lesbians were significantly
more likely to have a history of military service, compared
with all adult females (approximately 2% of whom had
served). By contrast, bisexual men and women did not
differ significantly from the US population in their pattern
of military service.
Sexual Orientation Identity
Identity Labels Table 3 reports the proportions of respond-
ents in each subgroup who said they used various identity
labels for themselves all the time, often, or some-
times (vs respondents who reported using the labels
rarely or never). Nearly all homosexual men (93%)
called themselves Gay at least sometimes, as did 76% of
lesbians, 19% of bisexual men, and 10% of bisexual
women. The proportions of lesbians (73%) and bisexual
women (11%) who used Lesbian as an identity label was
about the same as the proportions using Gay. Among
bisexuals, 71% of men and 60% of women labeled
themselves Bisexual at least sometimes. By contrast,
Bisexual was rarely used as an identity label by gay men
(2%) or lesbians (8%). Queer was used by relatively few
respondents (12% overall), and Dyke was used as a self-
label by only 10% of women. Homosexual was used at
least sometimes by more than one third of the gay men and
lesbians, but by relatively few bisexuals. Only 4% of
respondents reported never using any of the labels.
Identity Commitment and Community Identification IHP
scores were computed by summing responses to the items
and dividing by 3 (responses to the glad to be [L/G/B/Q/
H] item were reversed). This procedure yielded a scale
score (=0.82) that could range from 1 to 5, with higher
scores indicating more negative attitudes toward or greater
psychological distancing from ones sexual-minority iden-
tity (Herek et al. 2009).
10
As indicated by the relatively low
overall IHP mean score (Table 3), respondents generally
expressed positive feelings about their sexual orientation
identity. Indeed, only 6% of respondents manifested a
general pattern of agreement with statements expressing
negative feelings about ones sexual orientation (i.e., scored
4 or greater). The greatest degree of identity distancing was
observed among bisexual men, who scored significantly
higher than lesbians but whose mean score was neverthe-
less below the hypothetical midpoint of the scale.
11
The two
items assessing community identification were not signif-
icantly intercorrelated (r=0.09) and thus were analyzed
separately. As shown in Table 3, a majority of respondents
agreed that their membership in the sexual-minority
10
Coefficient alpha was computed with unweighted data for all scales
reported in this article.
Table 2 Demographic characteristics of cohabiting same-sex couples:
2000 US Census data and current sample
Variable US Census Current sample
Gender (% female) 49.3% (48.849.9) 48% (39.156.9)
Race/ethnicity
(% non-Hispanic
White)
77.4% (77.077.9) 74.1% (63.782.4)
Mean age (years) 40.1 (40.040.3) 43.8 (41.745.9)
Education (% with
college degree or
higher)
41.9% (41.342.4) 48% (39.256.9)
Employment status
(% employed)
79.2% (78.779.6) 79.2% (70.785.7)
Housing (%
homeowner)
61.8% (61.262.3) 69.1% (59.577.2)
Military service
(% veteran)
12.0% (11.712.4) 11.8% (6.919.4)
Table displays population parameter estimates and 95% confidence
intervals (CIs) for same-sex cohabiting couples in 2000 US Census
and current sample. Census data are drawn from a combined sample
of the 1% and 5% Public Use Micro Samples of the 2000 US Census
by G. Gates (May 3, 2007, personal communication), based on Black
et al. (2003)
11
Because IHP scores were highly skewed, analyses were also
conducted with a log-transformation of the scale scores. The pattern
of results did not differ from the raw scores. Table 3 reports the more
easily interpreted raw scores.
A-1231
Table 3 Identity characteristics
Self-labeling (% using label all the time,
often, or sometimes)
Gay 93.0% a 75.9% b 18.7% c 9.5% c 50.7%
CI 87.796.1 66.383.5 10.231.6 5.914.9 43.558.0
Lesbian N/A 73.4% a N/A 11.2% b 34.9%
CI 64.280.9 7.017.5 28.342.3
Bisexual 2.4% a 7.6% a 71.3% b 60.3% b 35.4%
CI 1.05.3 3.714.9 54.983.5 49.070.7 27.744.0
Queer 16.8% 16.4% 8.5% 7.2% 12.2%
CI 11.823.2 10.424.8 3.718.2 2.717.5 9.216.0
Homosexual 38.7% a 35.9% a 10.8% b 3.7% b 22.5%
CI 30.447.7 27.045.9 5.021.8 1.87.4 18.127.6
Dyke N/A 16.9% N/A 6.0% 10.1%
CI 11.224.8 1.917.0 6.316.1
Identity distancing (mean IHP;
higher score = greater distancing)
1.97 ab 1.65 a 2.62 b 1.84 ab 2.07
CI 1.772.16 1.491.82 1.883.36 1.632.06 1.812.32
Community identification (% strongly agree or agree somewhat)
My membership in the [L/G/B/Q/H]
community is an important reflection
of who I am.
44.6% a 43.1% a 15.6% b 24.7% ab 32.0%
CI 35.853.8 33.653.0 8.427.0 15.038.0 26.438.2
Overall, my membership in the
[L/G/B/Q/H] community has very little to
do with how I feel about myself.
55.1% 51.3% 60.2% 68.1% 59.0%
CI 46.163.9 41.261.4 37.878.9 57.976.8 51.666.0
Perceived choice about sexual orientation
No choice at all 88.0% a 68.4% b 38.3% bc 40.6% c 60.6%
CI 80.692.8 57.877.4 21.857.9 30.152.0 52.668.1
Small amount 6.9% 15.2% 22.4% 15.2% 14.2%
CI 3.214.1 9.623.3 8.646.9 9.623.1 9.221.3
Fair amount/Great deal 5.2% a 16.4% ab 39.3% bc 44.3% c 25.2%
CI 2.69.9 9.327.3 20.661.9 32.956.3 18.433.5
Within rows, values with different lowercase letters differ significantly, as indicated by nonoverlapping confidence intervals. N/A=question not
asked
A-1232
Table 4 Openness about sexual orientation
Mean age of self-identification 15.1 a 18.0 b 17.5 ab 19.9 b 17.3
CI 14.016.1 16.519.5 14.620.4 18.521.4 16.418.3
Mean age of first disclosure 20.2 21.1 21.5 21.0 20.9
CI 19.221.2 19.722.4 18.624.4 19.722.4 20.021.7
Out to:
Mother 73.8% a 81.4% a 25.0% b 35.4% b 52.7%
CI 65.580.6 73.087.7 12.244.5 25.946.2 45.360.0
Father 60.1% a 58.0% a 19.5% b 22.2% b 39.8%
CI 50.768.9 47.667.8 8.339.4 15.231.2 33.246.5
Sister(s) (out to one or more) 82.3% ab 87.4% a 56.8% bc 50.4% cd 69.1%
CI 73.388.7 78.293.0 34.476.7 36.863.9 61.775.7
Brother(s) (out to one or more) 84.8% a 81.5% a 58.9% ab 39.1% b 66.3%
CI 77.190.3 70.789.0 35.179.2 27.452.2 58.373.6
Out to at least one:
Distant family member 80.3% a 83.2% a 27.6% b 53.3% c 60.3%
CI 80.386.9 83.289.3 27.647.8 53.364.6 60.368.0
Current heterosexual friend 86.4% ab 94.2% a 69.2% b 84.1% ab 82.6%
CI 79.391.4 86.797.6 51.682.6 73.191.1 77.486.7
Casual heterosexual friend 81.6% a 85.6% a 49.9% b 69.1% ab 70.9%
CI 74.187.3 77.491.1 29.270.7 58.278.3 63.077.7
Prior heterosexual friend 83.5% a 89.5% a 39.8% b 79.8% a 71.2%
CI 75.989.0 81.394.3 22.759.8 68.887.6 61.979.0
Coworker 80.8% a 77.4% ab 18.1% c 56.0% b 57.8%
CI 72.886.8 67.585.0 9.531.6 43.767.5 49.365.8
Boss or supervisor 72.8% a 71.2% ab 13.8% c 50.3% b 50.9%
CI 63.780.4 60.979.7 7.025.4 38.062.6 43.058.8
Mean Summary Score. Extent of outness to:
Extended family, heterosexual friends, and acquaintances 5.40 ac 5.73 a 2.52 b 4.45 c 4.46
CI 4.945.86 5.296.17 2.122.92 3.815.08 4.104.83
Coworkers and supervisors 5.20 a 4.98 a 1.78 b 3.36 c 3.80
CI 4.645.76 4.375.58 1.232.33 2.524.20 3.334.27
Within rows, values with different lowercase letters differ significantly, as indicated by nonoverlapping confidence intervals. Questions about
outness to parents were worded to reflect whether each parent was living or deceased. Questions about outness to siblings were asked only if
respondents reported that they had one or more sisters or brothers
A-1233
community had little to do with how they felt about
themselves, and fewer than half considered their community
membership to be an important reflection of themselves.
These patterns were different across subgroups, however,
with lesbians and gay men indicating stronger identification
with the sexual-minority community than bisexuals (Table 3).
Choice about Sexual Orientation Overall, respondents
reported that they did not experience their sexual orienta-
tion as a choice. This pattern varied somewhat, however,
according to gender and sexual orientation. The vast
majority of gay men (88%) and roughly two thirds of
lesbians (68%) reported having had no choice at all about
their sexual orientation. Combining respondents who said
theyd had a small amount of choice with those reporting
no choice, 95% of gay men and 84% of lesbians could be
characterized as perceiving that they had little or no choice
about their sexual orientation. More bisexuals than homo-
sexuals reported having had a fair amount or great deal of
choice about their sexual orientation. Nevertheless, fewer
than half of the bisexuals (39% of men, 44% of women)
endorsed either of the latter response options.
Disclosure of Sexual Orientation On average, respondents
reported having first recognized their own sexual orientation
when they were 17 years old (Table 4). Gay men said they
first knew or decided they were gay at age 15, which was
significantly younger than for lesbians (18 years) or bisexual
women (20 years). Bisexual men reported that they recog-
nized their bisexuality at 17.5 years. On average, all groups
Table 5 Community involvement and activism
Importance of community involvement (% responding very important or fairly important)
Knowing what is going on 57.4% a 47.3% a 29.0% ab 15.7% b 38.4%
CI 48.266.1 37.457.4 12.154.8 9.425.3 31.445.9
Doing community volunteer work 29.4% a 29.0% a 10.7% ab 12.2% b 20.3%
CI 22.038.0 20.838.8 4.822.1 7.220.0 16.125.2
Giving money to organizations 43.1% a 33.9% a 6.5% b 7.8% b 23.5%
CI 34.352.3 25.243.8 3.013.6 4.513.0 19.028.6
Being politically active 33.4% a 36.2% a 8.4% b 13.4% b 22.3%
CI 25.542.4 27.246.3 3.817.4 8.121.5 18.027.4
Reading newspapers and magazines 56.0% a 51.6% a 31.3% ab 19.4% b 40.0%
CI 46.565.0 41.561.6 13.956.2 12.129.6 33.147.4
Community activism (% reporting having ever done this related to a sexual minority issue)
Button, sign, bumper sticker 43.6% ab 58.1% a 23.5% b 41.7% ab 39.9%
CI 35.052.7 47.667.9 11.242.8 30.653.7 33.446.7
Rally, march, or demonstration 49.4% a 44.4% ab 25.3% ab 27.9% b 37.0%
CI 40.358.5 34.854.4 12.544.6 19.738.1 30.943.7
Contacting a government official 42.3% a 39.1% a 24.7% ab 20.2% b 31.9%
CI 33.851.3 30.348.7 11.744.8 13.229.7 26.138.3
Contributing money 65.3% a 53.3% ab 28.0% bc 24.6% c 43.9%
CI 56.173.5 43.063.4 14.647.0 16.834.5 37.150.8
Within rows, values with different lowercase letters differ significantly, as indicated by nonoverlapping confidence intervals
A-1234
Table 6 Religious characteristics of sample
Religious denomination
Protestant/other Christian: not Born Again 31.6% 36.6% 29.9% 22.6% 29.7%
CI (23.541.0) (27.646.6) (15.549.8) (15.731.4) (24.036.2)
Born Again Christian 15.9% 14.8% 22.1% 16.3% 17.5%
CI (10.623.1) (8.225.3) (6.653.3) (7.631.5) (11.126.3)
Catholic 21.8% 16.4% 26.3% 11.2% 19.7%
CI (15.330.2) (9.925.9) (11.150.5) (6.319.3) (14.026.8)
Jewish 0.4% 1.9% 0.5% 2.4% 1.2%
CI (0.13.0) (0.84.9) (0.12.3) (0.86.8) (0.62.2)
Wiccan, pagan 1.5% 4.5% 1.5% 6.6% 3.1%
CI (0.45.3) (2.19.4) (0.45.2) (3.412.4) (2.05.0)
Buddhist 0.4% 1.1% 3.4% 5.8% 2.6%
CI (0.12.6) (0.33.8) (0.520.8) (2.313.7) (1.15.9)
Atheist, agnostic, none 26.7% 21.4% 16.3% 30.7% 24.2%
CI (19.435.7) (14.231.1) (8.229.9) (21.042.5) (19.329.8)
Attendance at religious services (past 12 months)
Weekly or more 7.2% 8.9% 24.0% 7.5% 12.0%
CI (4.012.6) (4.915.6) (8.352.6) (3.415.8) (6.521.2)
Less than weekly but at least monthly 13.9% 7.9% 12.7% 7.9% 11.3%
CI (8.122.7) (4.214.4) (4.033.8) (4.114.5) (7.316.9)
Once or a few times 39.3% 48.6% 30.8% 44.1% 39.5%
CI (30.948.4) (38.758.6) (14.953.1) (32.856.0) (32.846.7)
Never 39.7% 34.6% 32.5% 40.5% 37.2%
CI (31.148.9) (25.045.6) (18.850.1) (30.151.8) (31.143.8)
Type of congregation
All or mostly heterosexual 35.2% 36.5% 43.9% 30.8% 36.7%
CI (27.044.3) (27.946.2) (24.964.8) (22.141.2) (30.044.0)
At least half sexual minority 12.0% 16.5% 19.3% 12.3% 14.7%
CI (6.720.5) (10.125.8) (4.952.4) (4.529.1) (8.624.0)
Not applicable 52.8% 47.0% 36.9% 56.9% 48.6%
CI (43.661.8) (37.057.2) (21.755.1) (45.068.0) (41.555.8)
A-1235
reported having first told someone else about their sexual
orientation when they were in their early 20s (Table 4).
However, the regression analysis revealed differences among
the subgroups. With age, education, and race entered in the
equation, the effect of age was significant (b=0.26 [CI=0.18,
0.34], t(643)=6.50, p <0.001), and the parameter estimates
became significant for both sexual orientation (b=2.40 [CI=
0.69, 4.10], t(643)=2.76, p < 0.01) and gender (b=2.30 [CI
=3.93, 0.66], t(643)=2.76, p < 0.01). Thus, older
respondents were likely to have first disclosed their sexual
orientation at a later age than younger respondents. When this
generational difference was statistically controlled, bisexuals
and women tended to have first disclosed at a later age than,
respectively, homosexuals and men.
Regarding respondents outness within their immediate
families, Table 4 indicates that their fathers were the least
likely to know about their sexual orientation, whereas their
sisters were the most likely to know. Gay men and lesbians
were substantially more open about their sexual orientation
with their parents and siblings than were bisexuals. For
example, they were about three times as likely as bisexual
men, and at least twice as likely as bisexual women, to be
out to their mother.
Similar patterns were observed for outness to relatives
outside ones immediate family, heterosexual friends and
acquaintances, and workplace contacts (Table 4). The four
items assessing openness to distant family members and
heterosexual friends and acquaintances were recoded as a
continuum ranging from 1 to 8, summed, and divided by the
number of items. The resulting scale scores ( = 0.91) can
range from 1 (not at all out) to 8 (completely out). The same
procedure was followed with the two items about outness in
the workplace ( = 0.95). On average, respondents scored at
the midpoint for outness to extended family and heterosexual
friends and acquaintances, and slightly lower for outness to
coworkers and supervisors. Comparisons of summary scores
revealed that lesbians and gay men were more out to their
relatives and heterosexual acquaintances and in the workplace
than were bisexuals, especially bisexual men.
With the demographic control variables included in the
regression equation, the unstandardized parameter estimates
for workplace outness remained significant for sexual
orientation but not for gender. Instead, the parameter for race
became significant (b = 1.10 [CI=0.28, 1.92], t(568) = 2.63,
p < 0.001), indicating that Black respondents were less open
about their sexual orientation in the workplace than were
others. With this effect statistically controlled, bisexual men
were still significantly less open in the workplace than other
groups, as indicated by the significant parameter estimate
for the gender sexual orientation interaction (b=1.52
[CI=2.84, 0.19], t(568)=2.25, p < 0.05).
Community Involvement and Activism As shown in Table 5,
fewer than half of the respondents attached a high level of
importance to any of the aspects of community involvement
included in the questionnaire. The greatest importance was
accorded to obtaining information about the community
(knowing what is going on and reading newspapers or
magazines). Gay men and lesbians placed more impor-
tance on each of the five types of community involvement
than did bisexual men and women. By summing responses
and dividing by the total number of items, scale scores were
Table 6 (continued)
Amount of daily guidance from religion
None at all 33.4% 26.7% 16.7% 35.0% 28.3%
CI (25.542.4) (18.337.1) (9.028.9) (25.146.2) (23.234.1)
Some 44.5% 42.1% 44.9% 42.8% 43.9%
CI (35.653.9) (32.752.1) (25.865.7) (32.154.1) (36.851.1)
Quite a bit 15.0% 14.1% 17.6% 12.7% 15.0%
CI 10.021.7 8.722.0 8.732.3 5.128.3 11.020.2
A great deal 7.1% 17.1% 20.8% 9.5% 12.8%
CI 3.912.4 10.327.1 6.051.8 5.316.5 7.221.7
Mean score 1.96 2.22 2.42 1.97 2.12
CI 1.82.1 2.02.4 1.92.9 1.82.2 2.02.3
A-1236
computed that indicate overall perceived importance of
involvement in the sexual-minority community. Scores can
range from 1 to 4, with higher scores indicating greater
importance attached to community involvement ( = 0.91).
Gay men and lesbians scored significantly higher on this
measure than bisexuals: Mean scores were 2.4 for gay men
(CI = 2.252.57), 2.25 for lesbians (2.062.45), 1.65 for
bisexual men (1.441.86), and 1.68 for bisexual women
(1.541.82). Consistent with that pattern, lesbians and
gay men reported higher levels of past activism in all areas,
compared with bisexuals (see Table 5). The four sexual-
minority activism items were summed to form an index
ranging from 0 (did not engage in any of the activities) to 4
(engaged in all activities; not shown in Table 5). Gay men
reported community activism in significantly more areas
(M = 1.97, CI = 1.712.29) than did bisexual men
(M = 1.01, CI=0.381.65) or bisexual women (M = 1.13,
CI=0.831.44). Lesbians also reported activism in more
areas (M = 1.94, CI = 1.632.26) than bisexuals, but their
CI slightly overlapped with that of bisexual men. When the
parallel questions about activism that was unrelated to
sexual-minority issues were combined to create a summary
score, a similar pattern emerged. As with sexual-minority
activism, bisexuals reported a lower level of general
activism than gay men and lesbians, although only the
difference between gay men (M = 2.13, CI = 1.862.40)
Party affiliation
Democrat 82.0% 81.7% 60.5% 76.0% 74.7%
CI (74.687.6) (71.388.9) (38.179.3) (65.584.0) (66.781.3)
Republican 13.1% 16.7% 29.8% 17.3% 19.2%
CI (8.719.3) (9.827.1) (12.855.2) (10.427.5) (13.027.4)
Other 4.9% 1.6% 9.6% 6.7% 6.1%
CI (2.011.3) (0.37.1) (3.523.8) (3.412.6) (3.710.0)
Political ideology
Liberal 62.9% 66.0% 45.3% 53.0% 56.4%
CI 53.171.8 55.475.2 25.766.4 41.164.5 48.663.8
Moderate 27.4% 24.5% 27.5% 33.4% 28.4%
CI 19.237.5 16.834.3 13.647.6 22.546.5 22.435.4
Conservative 9.7% 9.5% 27.2% 13.6% 15.2%
CI 5.715.9 4.419.3 10.155.6 7.523.6 9.124.3
% Voted in 2004 88.8% 83.6% 86.1% 83.4% 86.2%
CI (79.994.1) (71.391.2) (71.493.9) (71.990.8) (80.890.2)
Candidate voted for
John Kerry 86.2% 91.5% 81.9% 79.6% 84.4%
CI (79.591.0) (84.595.5) (66.591.1) (69.986.8) (79.688.3)
George W. Bush 11.7% 7.6% 9.9% 15.0% 11.2%
CI (7.418.0) (3.914.3) (5.018.6) (9.423.1) (8.414.8)
Ralph Nader 1.4% a 0 b 7.1% a 2.9% a 3.2%
CI (0.35.9) (1.923.4) (0.711.2) (1.37.6)
Table 7 Political characteristics
of sample
Within rows, values with differ-
ent lowercase letters differ sig-
nificantly, as indicated by
nonoverlapping confidence
intervals
A-1237
Table 8 Relationship and family characteristics
Variable Gay men Lesbians Bisexual men Bisexual women
a
Total
Current relationship status
In a same-sex relationship
Married, civil union, domestic partner 4.1% a 16.1% b 0.2% c 1.5% ac 4.2%
CI 2.37.4 9.825.2 01.7 0.54.3 2.96.1
Cohabiting
b
24.9% a 45.3% b 3.0% c 3.3% c 16.9%
CI 18.532.6 35.555.4 0.99.5 1.38.2 13.521.0
Not cohabiting 10.7% ab 14.5% a 2.1% ab 2.8% b 7.1%
CI 6.716.6 8.124.7 0.58.8 1.17.2 5.010.0
In a different-sex relationship
Currently married 0.3% a 0 a 29.2% b 45.2% b 18.6%
CI 0.11.1 13.851.5 34.356.6 13.225.7
Cohabiting, not married 0 a 0 a 0.8% b 16.3% c 4.1%
CI 0.23.7 7.731.2 1.98.6
Not cohabiting 0 a 0 a 7.9% b 7.0% b 3.8%
CI 3.218.3 3.314.4 2.16.7
Not in a committed relationship
c
60.0% a 24.2% b 56.7% a 23.3% b 45.2%
CI 51.368.1 16.933.2 36.275.2 15.333.8 37.952.7
Would like to marry someday? (respondents not currently in a relationship)
Yes 33.8% 46.0% 43.0% 40.9% 38.1%
CI 22.946.8 27.865.3 23.964.5 20.964.4 29.447.6
No 22.6% 8.3% 25.9% 8.3% 20.1%
CI 13.535.5 3.319.5 12.745.8 3.319.0 13.828.4
Not sure 43.5% 45.7% 31.0% 50.9% 41.8%
CI 30.557.5 27.465.1 14.554.5 29.472.0 32.551.7
How likely would marry current same-sex partner, if legal?
d
(Respondents currently in a same-sex relationship)
e
Not at all likely 21.6% 11.5% * *
CI 13.333.2 5.921.1
Somewhat likely 37.7% a 12.2% b * *
CI 26.350.6 6.820.8
Fairly likely or very likely 40.7% a 76.4% b * *
CI 29.852.5 65.684.5
A-1238
and bisexual women (M = 1.46, CI = 1.111.82) was
reliable. Lesbians (M = 1.93, CI = 1.622.25) scored
between the two, and bisexual men scored the lowest, albeit
with the largest CI (M = 1.34, CI = 0.642.05).
Religious and Political Characteristics
As shown in Table 6, more than half of the respondents
belonged to a Christian denomination, and most of these
were Catholics (20%) or Protestants who reported they
were not born again Christians (30%). However, slightly
more than one respondent in six reported being born again.
Roughly 3% reported they were Wiccan or pagan, and
about the same proportion were Buddhist. About 1% were
Jewish. Nearly one respondent in four was an atheist or
agnostic or reported having no religion.
Across sexual orientation subgroups, the distributions
among religious denominations, attendance at religious
services, and proportion of sexual-minority members in
ones congregation did not differ significantly. However,
with age, education, and race statistically controlled, lesbians
and bisexual men reported receiving significantly more daily
guidance from their religion, compared with gay men and
bisexual women. With religious guidance expressed as a
score on a 4-point scale (1 = none at all, 4 = a great deal of
guidance), lesbians and bisexual mens mean scores were
2.22 and 2.42, respectively, compared with 1.96 for gay
men and 1.97 for bisexual women (Table 6). Examination
of the frequencies within each response category suggests
that lesbians and bisexual men were somewhat more likely
to report that religion offers them a great deal of guidance,
whereas gay men and bisexual women were more likely to
report receiving no guidance from religion.
However, in response to a follow-up question (How
important is spirituality in your life?), roughly two thirds
of the respondents who said they received no daily
guidance from religion nevertheless assigned at least some
importance to spirituality (not shown in Table 6). When
these responses were combined with ratings of the
importance of religion, the aforementioned group differ-
ences were eliminated. Only 10.6% of the sample reported
both that they received no guidance from religion and that
spirituality was not at all important to them (CI=7.6
14.7). A majority (51.8%, CI=44.659.0) reported either
that they received some guidance from religion or that
spirituality was not too important. Another 21.4% (CI=
16.726.9) received quite a bit of guidance or considered
spirituality to be somewhat important, and 16.2% (CI=
10.424.5) received a great deal of guidance or consid-
ered spirituality to be very important.
As reported in Table 7, the sample largely identified as
Democratic, tended to be politically liberal, and over-
whelmingly reported having voted for John Kerry in the
2004 presidential election. These patterns are consistent
with findings from previous studies that gay, lesbian, and
bisexual voters are less conservative than the general voting
Table 8 (continued)
Variable Gay men Lesbians Bisexual men Bisexual women
a
Total
Parental status
No children 91.6% a 65.1% b 63.5% bc 32.8% c 66.2%
CI 87.194.6 54.974.1 42.180.7 23.643.5 59.172.7
1 child 3.3% a 15.7% b 8.4% ab 27.5% b 12.2%
CI 1.57.1 10.223.3 3.618.5 17.240.8 8.716.9
2+ children 5.1% a 19.3% b 28.0% bc 39.7% c 21.5%
CI 3.08.5 12.029.4 12.850.9 29.451.1 15.928.4
Within rows, values with different lowercase letters differ significantly, as indicated by nonoverlapping confidence intervals. * = results not
reported because of the small number of bisexuals in a same-sex relationship
a
Two bisexual women reported that they were cohabiting but did not report the gender of their partner; they are excluded from the Relationship
Status section of the table
b
Includes four lesbians and four gay men who reported they were in a cohabiting relationship but did not report the gender of their partner, as well
as one lesbian and one bisexual woman who characterized their cohabiting partner as transgender
c
Includes two lesbians and three gay men who did not report their current relationship status but reported elsewhere in the questionnaire that they
were legally single or divorced
d
For Massachusetts residents, the clause if same-sex marriages were legally recognized in your state was not included in the question
e
Because of the small number of bisexual men and women in a same-sex relationship, responses are reported only for gay men and lesbians
A-1239
public (e.g., Edelman 1993; Hertzog 1996). Except for
the fact that no lesbians reported having voted for Ralph
Nader, the subgroups did not differ significantly on these
variables.
Relationship and Family Characteristics
Women were significantly more likely than men to report
they were currently in a committed relationship, either
heterosexual or homosexual. As shown in Table 8, 60% of
gay men and 57% of bisexual men were not in a committed
relationship, compared with fewer than one fourth of
lesbians and bisexual women. Another notable difference
was observed between homosexual and bisexual respond-
ents: Whereas all coupled lesbians and virtually all coupled
gay men reported that their partner was someone of their
same sex, the vast majority of coupled bisexual men (88%)
and women (90%) had a different-sex partner.
Most uncoupled respondents either stated they would
like to marry someday or indicated uncertainty about it;
overall, only 20% expressed no interest in ever marrying.
Among respondents who were currently in a same-sex
relationship, significantly more lesbians than gay men said
they were very likely or fairly likely to marry their
partner (76% and 41%, respectively), whereas more gay
men than lesbians said they were somewhat likely to
marry (38% and 12%, respectively). In all, nearly 90% of
lesbians and 80% of gay men indicated some likelihood of
marrying their current partner. (Because so few bisexuals
were in a same-sex relationship, their responses to this
question are not reported.)
Overall, approximately one third of respondents reported
having one or more children, including adopted and
stepchildren. Gay men were the least likely to have a child
(8%), whereas approximately two thirds of bisexual women
reported having one or more children. About one third of
lesbians and bisexual men reported having children.
Respondents overwhelmingly supported legal recogni-
tion for same-sex couples. Although bisexual males were
somewhat less supportive than others, the overlapping
confidence intervals across groups indicate that these
differences were not reliable. Overall, 77.9% of respondents
(CI=69.784.4) agreed that The law should allow two
people of the same sex to marry each other, whereas
74.4% (CI=66.481.1) disagreed with the assertion that
There is really no need to legalize same-sex marriage in
the United States. Similarly, 89.1% (CI =81.293.9)
supported civil unions. The sample was divided in its
response to the statement The U.S. public isnt ready for a
debate about gay marriage. A plurality (42%, CI = 35.1
49.2) disagreed, but 28.1% (CI = 23.033.9) agreed, and
29.9% (CI = 22.938.1) placed themselves in the middle
between agreement and disagreement.
Discussion
The data presented here offer a wealth of information about
the general characteristics of self-identified gay, lesbian,
and bisexual adults in the USA while highlighting impor-
tant commonalities and differences among sexual orienta-
tion subgroups. Without recapitulating all of the results, we
comment here on some key findings.
To begin, the composition of the sample is noteworthy.
With design weights applied to account for aspects of the
sampling procedures that might have affected respondents
likelihood of inclusion in the KN panel, fully half of the
participants identified as bisexual, indicating that bisexuals
constitute a substantial portion of the self-identified sexual-
minority population. In addition, gay men outnumbered
lesbians at a ratio of approximately 2.4:1. This finding is
consistent with data from other national probability samples
(Black et al. 2000; Laumann et al. 1994) and suggests that
self-identified gay men may outnumber self-identified
lesbians in the US adult population. Among self-identified
bisexuals, by contrast, the weighted proportions of women
and men did not differ significantly. Within genders, the
weighted sample included more gay than bisexual men
and more bisexual women than lesbians, but the differ-
ence was reliable only among the women respondents. Of
course, any inferences from these patterns about the
composition of the sexual-minority population must be
considered tentative until more data are obtained from
other probability samples.
Sexual orientation and gender subgroups within the
sample differed on key demographic variables, with
bisexuals tending to be younger than homosexuals, and
bisexual men the least likely to be non-Hispanic White or to
have a college degree. Comparisons to the US adult
population using contemporaneous Census data suggest
that lesbians and bisexuals (but not gay men) may be
younger, on average, than the US adult population; that
bisexual men (but not lesbians, gay men, or bisexual
women) may be less likely to be non-Hispanic White; and
that lesbians and gay men (but not bisexuals) may be more
highly educated. These patterns are consistent with previ-
ous findings from nonprobability samples indicating that
lesbians and gay men tend to be highly educated (e.g.,
Herek et al. 1999; Rostosky et al. 2009; Rothblum and
Factor 2001). They are also consistent with past observa-
tions that bisexual behavior is more common among
African American and Latino men than among non-
Hispanic White males (e.g., Millett et al. 2005; OLeary
et al. 2007; Rust 2000).
Bisexual men and women were not only younger than
the US adult population, they were also significantly
younger than lesbians and gay men. This age difference
might reflect generational differences in patterns of identity
A-1240
labeling: Perhaps younger people are more likely than their
older counterparts to view their own sexuality in fluid terms
and thus to identify as bisexual rather than exclusively
homosexual or heterosexual. Alternatively, it could reflect
developmental differences insofar as some younger
respondents who currently self-identify as bisexual might
later identify as gay or heterosexual (indeed, roughly one
fifth of bisexual men and one tenth of bisexual women said
they label themselves Gay or Lesbian at least some of the
time). These accounts are not mutually exclusive. Younger
adults may be more open to a bisexual identity today than
was the case a generation ago, and bisexuality may
constitute a transitional identity for some individuals who
will ultimately define their sexuality in terms of exclusive
attraction to men or women. Indeed, the findings of the
present study suggest that bisexuals may constitute a more
heterogeneous population than gay men and lesbians, one
that includes not only individuals who publicly identify as
bisexual but also those who privately acknowledge same-
sex attractions while currently maintaining a heterosexual
relationship, and still others who are in the process of
defining their sexuality. It is possible that comparisons of
self-identified bisexual men and women according to their
self-reported attraction patterns (i.e., mainly attracted to men,
mainly attracted to women, equally attracted to both sexes)
would yield useful insights in this regard. However, the
present sample was not large enough to permit such analyses.
Compared with bisexual men and women, gay men and
lesbians were more strongly committed to a minority sexual
identity, identified more strongly with a sexual-minority
community, were more likely to consider their community
membership to be a reflection of themselves, and were
generally more open about their sexual orientation. Overall,
gay men and lesbians tended to attach greater importance
than bisexuals to community involvement and were more
likely to engage in such behaviors as attending rallies and
demonstrations or donating money to community organ-
izations. Here again, the present data suggest that the
population of individuals who label themselves bisexual
may be a more diverse group than those who self-identify
as lesbian or gay and may include many women and men
for whom being bisexual is not a primary basis for a
personal identity or community involvement. These pat-
terns may also reflect, in part, bisexuals sometimes
marginal status in established gay and lesbian communities,
along with the relative lack of visible bisexual communi-
ties, owing to bisexualitys recent emergence as a public
identity linked to a social movement (Herdt 2001; Udis-
Kessler 1995).
Related to this point, substantial minorities of the
bisexual respondents said they never (4.6% of bisexual
women, 8.1% of bisexual men) or rarely (34.9% and
20.7%, respectively) used Bisexual as a self-descriptor. By
contrast, men who indicated they were homosexual over-
whelmingly reported using the term Gay to describe
themselves at least some of the time. Similarly, about three
fourths of homosexual women used Lesbian as a self-label,
and roughly the same proportion employed Gay as a self-
descriptor. The latter finding is somewhat surprising
because Gay has often been assumed to be primarily a
male-oriented identity label (e.g., Kulick 2000).
Other patterns of self-labeling also warrant comment.
The term Queer was used by only a small minority of
respondents, as was the case for Dyke among female
respondents. Considerably more respondents (more than
one third of gay men and lesbians) used Homosexual as a
self-descriptor at least some of the time. Notably, gay male
and lesbian respondents were much more likely to say they
never used Queer as a self-descriptor (58.9% of gay men,
65% of lesbians) than to say they never used Homosexual
(32% and 34.1%, respectively). Bisexuals, by contrast,
were about equally likely to say they never used either
term. Among bisexual men, 71.7% never used Homosexual
and 77.9% never used Queer; for bisexual women, the
proportions were 88.8% and 87.3%, respectively. Thus,
although Queer has sometimes been suggested as an
inclusive label for sexual minorities (e.g., Jacobs 1998), it
appears that a majority of US gay, lesbian, and bisexual
adults never used it to describe themselves at the time the
survey was conducted.
Some recent court cases addressing rights for gay,
lesbian, and bisexual people have considered questions
related to the origins of sexual orientation and its mutability
(e.g., In re Marriage Cases 2008; Varnum v. Brien 2009).
Moreover, some opponents of equal rights for sexual
minorities have asserted that homosexuality represents a
willful choice of a sinful way of life (Herman 1997).
12
In
this context, it is noteworthy that most respondents in the
present studyincluding bisexual men and women
reported that they experienced little or no choice about
their sexual orientation. The question of exactly what is
meant by choice in this realm warrants further discussion
and research (see, for example, Whisman 1996), but if
ones sexual orientation were experienced as a choice, it
seems reasonable to expect that large numbers of gay,
lesbian, and bisexual people would report this perception in
response to a survey question.
We believe that the responses to this question may also
provide a useful insight for interpreting the often observed
correlation between heterosexuals levels of sexual preju-
dice and their beliefs about whether homosexuality is a
choice (e.g., Haider-Markel and Joslyn 2008; Hegarty
12
At least one conservative Christian organization has broken with
this position, stating on its website that [w]e do not believe anyone
chooses his or her same-sex attractions (Love Won Out 2008).
A-1241
2002). If, as the present data indicate, gay, lesbian, and
bisexual people experience little or no choice about their
sexual orientation, they probably communicate this fact to
their heterosexual friends and relatives. Given the consis-
tently high correlations observed between heterosexuals
attitudes toward sexual minorities and the extent of their
personal relationships with nonheterosexual individuals
(Herek and Capitanio 1996; Lewis 2008; Pettigrew and
Tropp 2006), the correlation that is reliably observed
between origin beliefs and attitudes may result at least in
part from both variables association with personal contact.
Related to this point, the data reveal notable differences
in disclosure and outness between gay men and lesbians, on
the one hand, and bisexuals, on the other. The parents and
siblings of gay men and lesbians are substantially more
likely to know about the latters sexual orientation than is
the case for the families of bisexual men and women. A
similar pattern was also observed in most categories of
friends, other family, and coworkers: Compared with
lesbians and gay men, significantly fewer bisexuals
especially menreported they were out of the closet to
even one member of these groups. Coming out as bisexual
may differ in important respects from coming out as a gay
or lesbian person (McLean 2007). Nevertheless, insofar as
heterosexuals levels of sexual prejudice are reduced by
having personal relationships with nonheterosexuals (Herek
and Capitanio 1996; Lewis 2008; Pettigrew and Tropp
2006), these patterns could have important implications for
societal attitudes toward bisexual men and women.
The data indicate that self-identified gay, lesbian, and
bisexual adults tend to be less religious and more politically
liberal than the US population. Although most respondents
reported that religion or spirituality provides some guidance
in their daily lives, the sample overall reported a fairly low
level of religious commitment. Slightly more than one
fourth stated that they receive quite a bit or a great deal
of guidance from religion in their daily lives, and this
proportion increased to approximately 38% when the
question was expanded to include spirituality as well as
formal religion. By comparison, in the 2004 American
National Election Survey (ANES), 35% of US adults
reported that religion provides a great deal of guidance in
their day-to-day lives, and another 24% said it provides
quite a bit of guidance.
13
Whereas about one fourth of the
present sample reported at least monthly attendance at
religious services, a 2008 Pew survey found that 39% of
Americans reported at least weekly attendance at religious
worship services (Pew Forum on Religion and Public Life
2008).
The data corroborate previous findings that sexual
minorities constitute a politically progressive constituency
(e.g., Edelman 1993; Hertzog 1996; Schaffner and Senic
2006). A majority of respondents described themselves as
liberal, and the sample was overwhelmingly Democratic in
party affiliation and voting patterns. By comparison, 25% of
the 2004 ANES respondents said they were liberal, and 32%
identified as Democrats, whereas a plurality (about 41%)
described themselves as conservative and 29% identified as
Republicans.
Consistent with findings from previous research with
convenience samples (Peplau and Fingerhut 2007), sexual-
minority women were substantially more likely than
sexual-minority men to report that they were currently in
a committed relationship. Whereas virtually all coupled
gay men and lesbians had a same-sex partner, the vast
majority of coupled bisexuals were in a heterosexual
relationship. This disproportionate number of different-
sex couples among bisexual adults probably has multiple
explanations. In part, it may simply reflect the fact that
most adults are heterosexual, and thus, bisexuals have
many more opportunities to form a different-sex intimate
relationship than a same-sex relationship. In addition,
same-sex relationships are stigmatized and lack wide-
spread legal recognition in the USA, whereas different-sex
relationships enjoy social approval and many tangible
benefits (Herek 2006). These factors may facilitate
different-sex relationships among those bisexuals who are
attracted to the other sex at least as much as to their own
sex (roughly three fourths of the bisexual respondents in
the present sample).
Among respondents who were not currently in a
committed relationship, relatively few said they would not
want to marry someday. A plurality, however, indicated
uncertainty about the desirability of marrying. Among the
homosexual respondents currently in a relationship, les-
bians were substantially more likely than gay men to say
they would be very likely or fairly likely to marry their
current partner if they could legally do so (76% vs 41%).
This pattern is consistent with the available data concerning
patterns of marriage and registrations of civil unions and
domestic partnerships, which reveal that female couples are
considerably more likely than male couples to formally
register their relationship when the law allows them to do
so (Korber and Calvan 2008; Rothblum et al. 2008). It is
also consistent with the present finding that lesbians are
significantly more likely than gay men to live in a
household with at least one other adult. Lesbians greater
tendency to seek legal recognition of their relationships
may be explained in part by the fact that they are about four
times more likely than gay men to have one or more
13
The figures are based on our analysis of the 2004 National Election
Study pre-election interview data, using the UC Berkeley SDA
interface (http://sda.berkeley.edu/archive.htm).
A-1242
children or to report that they have children younger than
18 years residing in their home. Seeking legal protections
and benefits for children may be an important motivator for
marrying (Herek 2006).
The data obtained in any survey are subject to possible
error due to sampling, telephone noncoverage, and prob-
lems with question wording. In addition to these sources of
error, we note several important limitations of the present
study that should be kept in mind when interpreting the
results. Our operationalization of sexual orientation in terms
of identity means that the findings reported here should
not be generalized to the population of US adults who
experience same-sex attractions or have engaged in same-
sex sexual behavior but do not identify as lesbian, gay, or
bisexual. The sample was restricted to English-speaking
adults in households with a telephone; thus, it is potentially
problematic to generalize from these results to non-English
speakers, nonadults, and individuals without a telephone.
In addition, it is likely that some lesbian, gay, and
bisexual adults in the full KN panel did not report their true
sexual orientation in response to the original screening
question and thus had no opportunity of being included in
the present sample. Insofar as self-administered Internet
questionnaires appear to elicit greater disclosure of sensitive
and potentially stigmatizing information than telephone and
face-to-face interviews (e.g., Kreuter et al. 2008), such
underreporting may be less common in the KN panel than
in surveys using other modes of data collection. Without
minimizing the possibility of problems created by such
nonreporting in the present study, we note that many
respondents who had not disclosed their sexual orientation
to their family or friends nevertheless reported it in the
questionnaire.
Another potential limitation results from the fact that the
data are derived from self-reports. As in any survey study,
some respondents may have provided inaccurate responses to
questions, either intentionally (e.g., because of social desir-
ability concerns) or because of problems with comprehension
or recall (Tourangeau et al. 2000). Yet another potential
concern is whether the survey responses obtained from
experienced Internet panel members might differ from those
of nave or fresh respondents. To date, the minimal
research that has addressed this issue suggests that the res-
ponse patterns of the two groups probably do not differ
substantially (Toepoel et al. 2009). Finally, as with all
surveys, the data represent a snapshot of the population at
the time the study was fielded. Additional research with
comparable probability samples will be needed to develop
a more definitive portrait of sexual-minority adults in the
USA. Such research will be useful not only in assessing the
extent to which the findings of the present study can be
reliably replicated but also might permit more detailed
analyses of key subgroups within the sexual-minority
population. It would be illuminating, for example, to
compare lesbian, gay, and bisexual adults in different race
and ethnic groups on many of the variables discussed
previously. In the present sample, these subgroups are too
small for reliable analyses.
Throughout the present article, we have noted the
importance of having accurate data about gay, lesbian,
and bisexual people for legal and policy debates. Such
information will also be highly useful for informing
behavioral and social science research on sexual orienta-
tion and sexual minorities in a variety of ways. In
particular, the present findings highlight the importance
for researchers of distinguishing among lesbian, gay,
bisexual female, and bisexual male individuals, rather than
combining them into an undifferentiated LGB group. For
example, the data indicate that sexual orientation groups
differ in their levels of identity commitment, community
involvement, and outness. Future research might profitably
examine whether the meanings attached to these and
related variablesand, indeed, the very concept of
community membershipmight differ among sexual ori-
entation subgroups.
Moreover, because these variables may play important
roles in moderating the effects of sexual stigma on
psychological well-being (Herek and Garnets 2007; Meyer
2003), studies of sexual-minority mental health should
include separate analyses of bisexuals and homosexuals, as
well as of men and women. A similar analytic strategy
should be followed in studies of intimate relationships
among sexual minorities because, as shown here, sexual
orientation and gender groups differ significantly in their
relationship patterns. More broadly, the present study
demonstrates the need for researchers to conceive of gay
men, lesbians, bisexual men, and bisexual women not only
as a cultural minority united by the common experience of
sexual stigma but also as distinct groups whose members
have different experiences, beliefs, and needs.
As society confronts a widening array of policy issues
that uniquely affect sexual minorities, accurate scientific
information about the lesbian, gay, and bisexual population
will continue to be needed by government officials, the
courts, and legislative bodies. Social and behavioral
researchers working in this area have long recognized the
value of data collected through probability sampling
methods and have used a variety of creative strategies
during the past two decades to obtain such data. In
reporting what is perhaps the most extensive description
to date of a national probability sample of self-identified
lesbian, gay, and bisexual adults in the USA, the present
article extends these efforts. We hope it will be useful not
only for informing policy but also for generating hypoth-
eses that can be tested in future studies with ever more
sophisticated samples.
A-1243
Acknowledgments Data collection was funded by a grant to Gregory
Herek from the Gill Foundation. Throughout the project, we received
assistance, feedback, and helpful suggestions from a large number of
colleaguestoo many to list here. We express our appreciation to all of
them and our special thanks to Lee Badgett, Aaron Belkin, Murray
Edelman, Gary Gates, Ethan Geto, Jeff Henne, Anne Peplau, and Ken
Sherrill. We also thank Clinton Anderson and Linda Garnets for their
helpful comments on an earlier draft of this article.
Open Access This article is distributed under the terms of the
Creative Commons Attribution Noncommercial License which per-
mits any noncommercial use, distribution, and reproduction in any
medium, provided the original author(s) and source are credited.
References
American Association for Public Opinion Research. (2006). Standard
definitions: Final dispositions of case codes and outcome rates
for surveys. Lenexa, KS: Author.
American Psychological Association. (1986). Bowers v. Hardwick:
Brief for amicus curiae, Supreme Court of the United States.
Washington, DC: Author.
American Psychological Association. (2003). Lawrence v. Texas: Brief for
amicus curiae, Supreme Court of the United States. Washington,
DC: Author.
American Psychological Association. (2007). In re marriage cases:
Brief for amicus curiae, California Supreme Court. Washington,
DC: Author.
Badgett, M. V. L. (1995). The wage effects of sexual orientation
discrimination. Industrial & Labor Relations Review, 48, 726739.
Balsam, K. F., & Mohr, J. J. (2007). Adaptation to sexual orientation
stigma: A comparison of bisexual and lesbian/gay adults. Journal
of Counseling Psychology, 54, 306319.
Balsam, K. F., Beauchaine, T. P., Rothblum, E. D., & Solomon, S. E.
(2008). Three-year follow-up of same-sex couples who had civil
unions in Vermont, same-sex couples not in civil unions, and
heterosexual married couples. Developmental Psychology, 44, 102
116.
Belkin, A. (2008). Dont ask, dont tell: Does the gay ban
undermine the militarys reputation? Armed Forces & Society,
34, 276291.
Bell, A. P., & Weinberg, T. S. (1978). Homosexualities: A study of
diversity among men and women. New York: Simon & Schuster.
Berg, N., & Lien, D. (2002). Measuring the effect of sexual
orientation on income: Evidence of discrimination? Contempo-
rary Economic Policy, 20, 394414.
Berrens, R. P., Bohara, A. K., Jenkins-Smith, H., Silva, C., & Weimer,
D. L. (2003). The advent of Internet surveys for political
research: A comparison of telephone and Internet samples.
Political Analysis, 11, 122.
Black, D., Gates, G., Sanders, S., & Taylor, L. (2000). Demographics
of the gay and lesbian population in the United States: Evidence
from available systematic data sources. Demography, 37, 139
154.
Black, D., Gates, G., Sanders, S., & Taylor, L. (2003). The measurement
of same-sex unmarried partner couples in the 2000 U.S. Census.
Paper presented at the meeting of the Population Association of
America, Minneapolis, MN.
Black, D., Gates, G., Sanders, S., & Taylor, L. (2007). The
measurement of unmarried partner couples in the 2000 U.S.
Census (On-line working paper CCPR-023-07). Los Angeles:
California Center for Population Research. http://www.ccpr.ucla.
edu/ccprwpseries/ccpr_023_07.pdf. Accessed 7 Sept 2007.
Blair, J. (1999). Aprobability sample of gay urban males: The use of two-
phase adaptive sampling. Journal of Sex Research, 36, 3944.
Blandford, J. M. (2003). The nexus of sexual orientation and gender in
the determination of earnings. Industrial & Labor Relations
Review, 56, 622642.
Bradford, J., Ryan, C., & Rothblum, E. D. (1994). National Lesbian
Health Care Survey: Implications for mental health care. Journal
of Consulting and Clinical Psychology, 62, 228242.
Carpenter, C. S. (2005). Self-reported sexual orientation and earnings:
Evidence from California. Industrial & Labor Relations Review,
58, 258273.
Chang, L., & Krosnick, J. A. (2009). National surveys via RDD
telephone interviewing vs. the Internet: Comparing sample repre-
sentativeness and response quality. Public Opinion Quarterly, 73,
641678.
Cochran, S. D., & Mays, V. M. (2000). Lifetime prevalence of suicide
symptoms and affective disorders among men reporting same-sex
sexual partners: Results from NHANES III. American Journal of
Public Health, 90, 573578.
Cochran, S. D., & Mays, V. M. (2006). Estimating prevalence of
mental and substance-using disorders among lesbians and gay
men from existing national health data. In A. M. Omoto & H. S.
Kurtzman (Eds.), Sexual orientation and mental health: Exam-
ining identity and development in lesbian, gay, and bisexual
people (pp. 143165). Washington, DC: American Psychological
Association.
Cumming, G. (2008). Replication and p intervals: p values predict the
future only vaguely, but confidence intervals do much better.
Perspectives on Psychological Science, 3, 286300.
Diaz, R. M., Stall, R. D., Hoff, C., Daigle, D., & Coates, T. J. (1996).
HIV risk among Latino gay men in the southwestern United
States. AIDS Education and Prevention, 8, 415429.
Diaz, R. M., Ayala, G., & Bein, E. (2004). Sexual risk as an outcome
of social oppression: Data from a probability sample of Latino
gay men in three U.S. cities. Cultural Diversity and Ethnic
Minority Psychology, 10, 255267.
Edelman, M. (1993). Understanding the gay and lesbian vote in 92.
The Public Perspective, 4(3), 3233.
Egan, P. J., & Sherrill, K. (2005). Marriage and the shifting priorities
of a new generation of lesbians and gays. PS: Political Science &
Politics, 38, 229232.
Haider-Markel, D. P., & Joslyn, M. R. (2008). Beliefs about the
origins of homosexuality and support for gay rights: An
empirical test of attribution theory. Public Opinion Quarterly,
72, 291310.
Harry, J. (1986). Sampling gay men. Journal of Sex Research, 22, 2134.
Harry, J. (1990). A probability sample of gay males. Journal of
Homosexuality, 19(1), 89104.
Hegarty, P. (2002). Its not a choice, its the way were built: Symbolic
beliefs about sexual orientation in the US and Britain. Journal of
Community & Applied Social Psychology, 12, 153166.
Herdt, G. H. (2001). Social change, sexual diversity, and tolerance for
bisexuality in the United States. In A. R. DAugelli & C. J.
Patterson (Eds.), Lesbian, gay, and bisexual identities and youth:
Psychological perspectives (pp. 267283). New York: Oxford
University Press.
Herek, G. M. (2000). Homosexuality. In A. E. Kazdin (Ed.),
Encyclopedia of psychology (Vol. 4, pp. 149153). Washington,
DC: American Psychological Association.
Herek, G. M. (2006). Legal recognition of same-sex relationships in
the United States: A social science perspective. American
Psychologist, 61, 607621.
Herek, G. M. (2009a). Hate crimes and stigma-related experiences
among sexual minority adults in the United States: Prevalence
estimates from a national probability sample. Journal of
Interpersonal Violence, 24, 5474.
A-1244
Herek, G. M. (2009b). Sexual stigma and sexual prejudice in the
United States: A conceptual framework. In D. A. Hope (Ed.),
Contemporary perspectives on lesbian, gay and bisexual identi-
ties: The 54th Nebraska Symposium on Motivation (pp. 65111).
New York: Springer.
Herek, G. M., & Capitanio, J. P. (1996). Some of my best friends:
Intergroup contact, concealable stigma, and heterosexuals
attitudes toward gay men and lesbians. Personality and Social
Psychology Bulletin, 22, 412424.
Herek, G. M., & Garnets, L. D. (2007). Sexual orientation and mental
health. Annual Review of Clinical Psychology, 3, 353375.
Herek, G. M., & Glunt, E. K. (1995). Identity and community among
gay and bisexual men in the AIDS era: Preliminary findings from
the Sacramento Mens Health Study. In G. M. Herek & B.
Greene (Eds.), AIDS, identity, and community: The HIV epidemic
and lesbians and gay men (pp. 5584). Thousand Oaks: Sage.
Herek, G. M., Cogan, J. C., Gillis, J. R., & Glunt, E. K. (1998).
Correlates of internalized homophobia in a community sample of
lesbians and gay men. Journal of the Gay and Lesbian Medical
Association, 2, 1725.
Herek, G. M., Gillis, J. R., & Cogan, J. C. (1999). Psychological
sequelae of hate-crime victimization among lesbian, gay, and
bisexual adults. Journal of Consulting and Clinical Psychology,
67, 945951.
Herek, G. M., Chopp, R., & Strohl, D. (2007). Sexual stigma: Putting
sexual minority health issues in context. In I. Meyer & M.
Northridge (Eds.), The health of sexual minorities: Public health
perspectives on lesbian, gay, bisexual, and transgender popula-
tions (pp. 171208). New York: Springer.
Herek, G. M., Gillis, J. R., & Cogan, J. C. (2009). Internalized stigma
among sexual minority adults: Insights from a social psycholog-
ical perspective. Journal of Counseling Psychology, 56, 3243.
Herman, D. (1997). The antigay agenda: Orthodox vision and the
Christian right. Chicago: University of Chicago Press.
Hertzog, M. (1996). The lavender vote: Lesbians, gay men, and
bisexuals in American electoral politics. New York: New York
University Press.
Holbrook, A. L., Krosnick, J. A., & Pfent, A. (2008). The causes and
consequences of response rates in surveys by the news media and
government contractor survey research firms. In J. Lepkowski, C.
Tucker, J. M. Brick, E. de Leeuw, L. Japec, P. J. Lavrakas, et al.
(Eds.), Advances in telephone survey methodology (pp. 499
528). New York: Wiley.
In re Marriage Cases, 183 P.3d 384, 76 Cal. Rptr. 3d 683 (2008).
Jacobs, G. (1998). The struggle over naming: A case study of queer
in Toronto, 19901994. World Englishes, 17, 193201.
Kish, L. (1965). Survey sampling. New York: Wiley.
Knowledge Networks. (2009). Knowledge Networks bibliography:
Articles and presentations based on KN collected data, analysis,
methodology. http://www.knowledgenetworks.com/ganp/. Accessed
26 March 2009.
Korber, D., & Calvan, B. C. (2008). Female couples taking the lead in
same-sex marriage. Sacramento Bee. http://www.sacbee.com/
101/v-print/story/1027609.html. Accessed 20 June 2008.
Kreuter, F., Presser, S., & Tourangeau, R. (2008). Social desirability
bias in CATI, IVR, and Web Surveys: The effects of mode
and question sensitivity. Public Opinion Quarterly, 72, 847
865.
Krosnick, J. A. (1991). Response strategies for coping with the
cognitive demands of attitude measures in surveys. Applied
Cognitive Psychology, 5, 213236.
Kulick, D. (2000). Gay and lesbian language. Annual Review of
Anthropology, 29, 243285.
Laumann, E. O., Gagnon, J. H., Michael, R. T., & Michaels, S.
(1994). The social organization of sexuality: Sexual practices in
the United States. Chicago: University of Chicago Press.
Lee, E. S., & Forthofer, R. N. (2006). Analyzing complex survey data
(2nd ed.). Thousand Oaks: Sage.
Lewis, G. B. (2008). The friends and family plan: Knowing LGBs and
supporting gay rights Atlanta: Andrew Young School of Policy
Studies Research Paper Series No. 07-10. http://ssrn.com/
abstract=975975 Accessed 4 February 2010.
Love Won Out. (2008). Frequently asked questions. http://www.
lovewonout.com/questions/. Accessed 29 Aug 2009.
Luhtanen, R. K., & Crocker, J. (1992). A collective self-esteem scale:
Self-evaluation of ones social identity. Personality and Social
Psychology Bulletin, 18, 302318.
Martin, J. L., & Dean, L. (1990). Developing a community sample of
gay men for an epidemiologic study of AIDS. American
Behavioral Scientist, 33, 546561.
Mays, V. M., & Cochran, S. D. (2001). Mental health correlates of
perceived discrimination among lesbian, gay, and bisexual adults
in the United States. American Journal of Public Health, 91,
18691876.
McLean, K. (2007). Hiding in the closet? Bisexuals, coming out and
the disclosure imperative. Journal of Sociology, 43, 151166.
Meyer, I. H. (2003). Prejudice, social stress, and mental health in
lesbian, gay, and bisexual populations: Conceptual issues and
research evidence. Psychological Bulletin, 129, 674697.
Meyer, I. H., & Colten, M. E. (1999). Sampling gay men: Random
digit dialing versus sources in the gay community. Journal of
Homosexuality, 37(4), 99110.
Meyer, I. H., & Wilson, P. A. (2009). Sampling lesbian, gay, and bisexual
populations. Journal of Counseling Psychology, 56, 2331.
Millett, G., Malebranche, D., Mason, B., & Spikes, P. (2005).
Focusing down low: Bisexual Black men, HIV risk and
heterosexual transmission. Journal of the National Medical
Association, 97, 52S59S.
OLeary, A., Fisher, H. H., Purcell, D. W., Spikes, P. S., & Gomez, C.
A. (2007). Correlates of risk patterns and race/ethnicity among
HIV-positive men who have sex with men. AIDS and Behavior,
11, 706715.
Peplau, L. A., & Fingerhut, A. W. (2007). The close relationships of
lesbians and gay men. Annual Review of Psychology, 58, 405424.
Pettigrew, T. F., & Tropp, L. R. (2006). A meta-analytic test of
intergroup contact theory. Journal of Personality and Social
Psychology, 90, 751783.
Pew Forum on Religion and Public Life. (2008). U.S. religious
landscape survey. http://religions.pewforum.org/pdf/report2-
religious-landscape-study-full.pdf. Accessed 23 June 2008.
Riggle, E. D., Rostosky, S. S., & Reedy, C. S. (2005). Online surveys
for BGLT research: Issues and techniques. Journal of Homosex-
uality, 49(2), 121.
Rodriguez, E. M., & Ouellette, S. C. (2000). Gay and lesbian
Christians: Homosexual and religious identity integration in the
members and participants of a gay-positive church. Journal for
the Scientific Study of Religion, 39, 333347.
Rostosky, S. S., Riggle, E. D. B., Horne, S. G., & Miller, A. D.
(2009). Marriage amendments and psychological distress in
lesbian, gay and bisexual (LGB) adults. Journal of Counseling
Psychology, 56, 5666.
Rothblum, E. D., & Factor, R. (2001). Lesbians and their sisters as a
control group: Demographic and mental health factors. Psycho-
logical Science, 12, 6369.
Rothblum, E. D., Balsam, K. F., & Mickey, R. M. (2004). Brothers
and sisters of lesbians, gay men, and bisexuals as a demographic
A-1245
comparison group. Journal of Applied Behavioral Science, 40,
283301.
Rothblum, E. D., Balsam, K. F., & Solomon, S. E. (2008). Comparison
of same-sex couples who were married in Massachusetts, had
domestic partnerships in California, or had civil unions in Vermont.
Journal of Family Issues, 29, 4878.
Rust, P. C. (2000). Bisexuality in HIV research. In P. C. Rust (Ed.),
Bisexuality in the United States: A social science reader (pp.
356399). New York: Columbia University Press.
Schaffner, B., & Senic, N. (2006). Rights or benefits? Explaining the
sexual identity gap in American political behavior. Political
Research Quarterly, 59, 123132.
Sell, R. L. (2007). Defining and measuring sexual orientation for
research. In I. H. Meyer & M. E. Northridge (Eds.), The health of
sexual minorities: Public health perspectives on lesbian, gay,
bisexual, and transgender populations (pp. 355374). New York:
Springer.
Sell, R. L., & Petrulio, C. (1996). Sampling homosexuals, bisexuals,
gays, and lesbians for public health research: A review of the
literature from 1990 to 1992. Journal of Homosexuality, 30(4),
3147.
Sell, R. L., & Silenzio, V. M. B. (2006). Lesbian, gay, bisexual, and
transgender public health research. In M. D. Shankle (Ed.), The
handbook of lesbian, gay, bisexual, and transgender public
health (pp. 3356). New York: Harrington Park Press.
Sell, R. L., Kates, J., & Brodie, M. (2007). Use of a telephone
screener to identify a probability sample of gays, lesbians, and
bisexuals. Journal of Homosexuality, 53(4), 163171.
Stall, R., & Wiley, J. (1988). A comparison of alcohol and drug use
patterns of homosexual and heterosexual men: The San Fran-
cisco Mens Health Study. Drug and Alcohol Dependence, 22,
6373.
Toepoel, V., Das, M., & Van Soest, A. (2009). Effects of design in
web surveys: Comparing trained and fresh respondents. Public
Opinion Quarterly, 72, 9851007.
Tourangeau, R., Rips, L. J., & Rasinski, K. A. (2000). The psychology
of survey response. Cambridge: Cambridge University Press.
Udis-Kessler, A. (1995). Identity/politics: A history of the bisexual
movement. In N. Tucker (Ed.), Bisexual politics: Theories,
queries, and visions (pp. 1730). New York: Haworth Press.
Varnum v. Brien, Iowa Sup. LEXIS 31 (2009).
Whisman, V. (1996). Queer by choice: Lesbians, gay men, and the
politics of identity. New York: Routledge.
Wilkinson, L., & Task Force on Statistical Inference. (1999).
Statistical methods in psychology journals: Guidelines and
explanations. American Psychologist, 54, 594604.
A-1246
Electronic copy available at: http://ssrn.com/abstract=1848184

CASE WESTERN RESERVE UNIVERSITY

NO DIFFERENCE?: AN ANALYSIS OF SAME-SEX PARENTING

George W. Dent, Jr.

Case Research Paper Series in Legal Studies
Working Paper 2011-11
May, 2011

This paper can be downloaded without charge from the
Social Science Research Network Electronic Paper Collection:

For a complete listing of this series:
http://ssrn.com/abstract=1848184
A-1247
1

NO DIFFERENCE?: AN ANALYSIS OF SAME-SEX PARENTING
- George W. Dent, Jr.
1

The principal argument for traditional marriage is that it is uniquely beneficial to
children. Accordingly, a key tenet of the campaign for same-sex marriage (SSM) is that
same-sex couples are just as good as other parents; there is no difference between the
two. This article analyzes this claim and concludes that it is unsubstantiated and almost
certainly false.
I. No Difference from What?
In Perry v. Schwarzenegger the District Court pronounced that same-sex parents
and opposite-sex parents are of equal quality.
2
Some scholars make similar claims.
3
A
crucial problem with the no difference claim is determining what is alleged to be no
different from what. Defenders of traditional marriage claim that children generally fare
best when raised by their married biological parents and (correlatively) that children
would not fare as well with same-sex married couples.
Since SSM has been recognized only recently and only in a few jurisdictions,
these claims cannot be empirically refuted or confirmed. In fact, no one has tried. In
Perry the plaintiffs expert witness could not identify any study comparing children
raised by same-sex couples with children raised by their married, biological parents.
4

Studies of children raised by same-sex couples often compare them with children raised
by single mothers.
5
Others compare them to children raised by divorced heterosexual

1
Schott-van den Eynden Professor of Law, Case Western Reserve University
School of Law.
2
Mimeo. Op. at 127.
3
See e.g., Michael S. Wald, Adults Sexual Orientation and State Determinations
Regarding Placement of Children, 40 FAM. L.Q. 381, 400 (2006); Gregory N. Herek,
Legal Recognition of Same-Sex Relationships in the United States: A Social Science
Perspective, 61 AM. PSYCH. 607, 611 (2006) (stating that [e]mpirical studies comparing
children raised by sexual minority parents with those raised by otherwise comparable
heterosexual parents have not found reliable disparities in mental health or social
adjustment); CARLOS A. BALL, THE MORALITY OF GAY RIGHTS: AN EXPLORATION IN
POLITICAL PHILOSOPHY 168 (The social science literature indicates that lesbians and gay
men as a group meet their responsibilities toward their children as well and as completely
as do heterosexual parents.) (footnote omitted).
4
ER 263-87.
5
[T]he biggest problem by far is that the vast majority of these studies compare
single lesbian mothers to single heterosexual mothers--in other words, they compare
children in one kind of fatherless family with children in another kind of fatherless
A-1248
2

parents.
6
Clearly neither comparison group does as well as children raised by their
married, biological parents, so on its face these claims carry little weight even if they are
true.
Moreover, studies do suggest at least one significant difference of children raised
by same-sex couples: they are more likely to engage in homosexuality and to experience
greater confusion and anxiety about sex.
7
Again, the absence of longitudinal data and of
statistically significant samples mandates caution in weighing these findings. However,
these new findings do raise suspicion that there may be other differences from same-sex
parenting that have not yet been uncovered.
II. Other Methodological Problems
Most studies of same-sex parenting have small, self-selected samples of children
who have not been in the household very long and who have been evaluated at a single

family. Steven Nock, quoted in THE REVOLUTION IN PARENTHOOD: THE EMERGING
GLOBAL CLASH BETWEEN ADULT RIGHTS AND CHILDRENS NEEDS 21-22 (INST. FOR
AMERICAN VALUES 2006) [hereinafter THE REVOLUTION IN PARENTHOOD]. See also A.
Dean Byrd, Conjugal Marriage Fosters Healthy Human and Societal Development, in
WHATS THE HARM?: DOES LEGALIZING SAME-SEX MARRIAGE REALLY HARM
INDIVIDUALS, FAMILIES OR SOCIETY? 16 (Lynn D. Wardle, ed. 2008) [hereinafter WHATS
THE HARM?] (The studies on same-sex parenting . . . are basically restricted to children
who were conceived in a heterosexual relationship whose mothers later divorced and self-
identified as lesbians. It is these children who were compared to divorced, heterosexual,
mother-headed families.).
6
See, e.g., Mary Parke, Are Married Parents Really Better for Children? What
Research Says About the Effects of Family Structure on Child Well-Being 6, available at
www.clasp.org.
7
See Walter R. Schumm, Children of Homosexuals More Apt To Be
Homosexuals? A Reply to Morrison and to Cameron Based on an Examination of
Multiple Sources of Data, 42 J. BIOSOCIAL SCI. 721 (2010) (meta-analysis finding that
children raised by gay couples are much more likely than others to be gay); Richard E.
Redding, Its Really About Sex: Same-Sex Marriage, Lesbigay Parenting, and the
Psychology of Disgust, 15 DUKE J. GENDER L. & POLICY 127, 143-44, 147-51 (2008)
(reviewing studies and concluding that homosexuality does seem to be more common
among children raised by same-sex couples); Traycee Hansen, A Review and Analysis of
Research Studies Which Assessed Sexual Preference of Children Raised by Homosexuals
(2009), available at http://www.drtaycehansen.com/Pages/writings_sexprefprt.html
(concluding that studies by pro-homosexual researchers cant be used to make definitive
statements, [but] are suggestive that homosexual parents are rearing disproportionate
numbers of non-heterosexual children); Judith Stacey & Timothy J. Biblarz, (How)
Does the Sexual Orientation of Parents Matter, 66 AM. SOCIO. REV. 159 (2001) (study
finding homosexually parented children are more likely to experience sexual confusion
and to engage in homosexual and bisexual behavior).
A-1249
3

time rather than followed for a substantial period.
8
One researcher who clearly supports
the gay movement concedes:
[T]here has never been a comprehensive study of same-sex parents and their
children from nationally representative data; . . . . The studies that have been done
on same-sex couples have been mostly small scale studies of non-random samples
from sampling frames that are not nationally representative.
9

This is not necessarily a result of any impropriety by the investigators. Until
recently few examples of same-sex parenting existed (especially for gay male homes),
10

so a large, longitudinal study is not yet possible. Given the small number of children now
being raised by same-sex couples, getting a statistically significant random sample would
be extremely expensive; it would require looking at a very large, random sample of
children in order to get information about the one percent or so with same-sex couples. It
is not surprising, then, that no one has done this.

8
A group of 70 prominent scholars from all relevant academic fields concluded:
The current research on children raised by [same-sex couples] is inconclusive and
underdeveloped--we do not yet have any large, long-term studies that can tell us much
about how children are affected by being raised in a same-sex household. WITHERSPOON
INST., MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES 18 (2006) [hereinafter
MARRIAGE AND THE PUBLIC GOOD]. See Lynn D. Wardle, Considering the Impacts on
Children and Society of Lesbigay Parenting, 23 QUINNIPIAC L. REV. 541 (2004)
[hereinafter Wardle, Considering the Impacts] (listing methodological flaws of these
studies, especially use of small, self-selected samples). See also Lynn D. Wardle, The
Potential Impact of Homosexual Parenting on Children, 1997 U. ILL. L. REV. 833, 897
[hereinafter Wardle, Potential Impact]. The most recent study to claim to prove the
success of same-sex parenting is Laura Langbein & Mark A. Yost, Jr., Same-Sex
Marriage and Negative Externalities, 90 SOC. SCI. Q. xx (2009). It has the same
methodological shortcomings as the prior studies. See Douglas W. Allen, Lets Slow
Down: Comments on Same-Sex Marriage and Negative Externalities 3 (Dec., 2010),
available at http://ssrn.com/abstracts=1722764.
9
Michael J. Rosenfeld, Abstract, The Development of Children of Same-Sex
Couples 2, available at http://www.stanford.edu/~mrosenfe/same-
sex%20and%20their%20children,%20abstract.pdf. See also Michael J. Rosenfeld,
Nontraditional Families and Childhood Progress Through School, 47 DEMOGRAPHY 755,
757 (2010) (stating that the sample sizes of studies of same-sex parenting remain too
small for statistically powerful tests) [hereafter Rosenfeld, Nontraditional Families].
10
See Charlotte Patterson, Lesbian and Gay Parenting 15, available at
http://www.apa.org/pi/lgbt/resources/parenting-full.pdf (reporting only two longitudinal
studies of lesbian parenting and none of gay male parenting). See also Byrd, supra note x,
at 16 (Studies of children raised by male couples are virtually non-existent.).
A-1250
4

Instead, researchers have sought volunteers to be studied.
11
The validity of self-
selected samples is doubtful. The legal guardians of children--of whatever sexual
orientation or legal relationship--are unlikely to volunteer for a study if their children are
not doing well. Also, several of the most important [studies] have been based on
samples of women who became parents through assisted reproductive technology, who
tend to be white, upper-middle class women.
12
They may not be representative of the
broader population.
Further, homosexual couples in these studies are intrepid pioneers, keenly aware
of the obstacles they face. They would not take up the challenge of same-sex parenting
unless they felt themselves able to conquer the difficulties and were determined to do so.
In many social experiments such pioneers succeed, but less impressive people who later
try the same thing do less well.
13
Whatever the success of the pioneers of same-sex
parenting has been, that success may not be matched by others in the future.
Finally, some studies find that children raised by their married, biological parents
fare best.
14
They may then claim that this result stems from the higher socioeconomic
status of these parents.
15
That conclusion, however, raises the question of the direction
of cause and effect. A classic justification for marriage is that having a wife and the
presence or prospect of children motivates a man to earn more money and achieve higher
status.
16
Thus higher socioeconomic status of married couples may be a result of
marriage.

11
See Paul Cameron, Homosexual Parents: Testing Common Sense--A
Literature Review Emphasizing Golombok & Tasker Longitudinal Study of Lesbians
Children, 85 PSYCHOL. REP. 282, 318 (1998); George A. Rekers, An Empirically-
Supported Rational Basis for Prohibiting Adoption, Foster Parenting, and Contested
Child Custody by Any Person Residing in a Household that Includes a Homosexuality-
Behaving Member, 18 ST. THOMAS L. REV. 325, 401-02 (2005).
12
Rosenfeld, Nontraditional Families, supra note x, at 757. See also Charlotte J.
Patterson, Family Relationships of Lesbians and Gay Men, 62 J. MARRIAGE & FAM.
1052, 1058 (2000).
13
See DIANE RAVITCH, THE DEATH AND LIFE OF THE GREAT AMERICAN SCHOOL
SYSTEM: HOW TESTING AND CHOICE ARE UNDERMINING EDUCATION x (2010).
14
See Rosenfeld, Nontraditional Families, supra note xx, at 755, 770 (finding that
children of heterosexual married couples have the lowest rate of grade retention in
school). Note that this group includes adopted children and children living with one
biological parent who has divorced the other biological parent and remarried. Such
children tend not to do as well as children living with the married biological parents, so
the study does not reveal the full advantages of their latter milieu.
15
See id.
16
See infra note xx.
A-1251
5

For lack of evidence, especially about male couples and long-term effects,
uncertainty about gay parenting will persist for years. Liberalization of divorce was
touted on the seemingly humane premise that some marriages are irreparably broken and
that it is better to let the parties end these marriages rather than to perpetuate their misery
by forcing a couple either to stay married or to endure a long, bitter, damaging legal
battle over questions of fault.
17
It was argued that children would not be harmed by
divorce because they are infinitely malleable.
18
[I]t was fashionable among
intellectuals to contend that the best interest of adults also serve the best interests of
children. This once conventional wisdom has proven to be gravely mistaken. . . .
19

The damage done to children by divorce became evident only many years after
divorce laws were liberalized and divorce became more common.
20
The experience with
liberalized divorce follows the law of unintended consequences--major legal changes
invariably produce unexpected effects. Likewise, an unprecedented change in the law and
meaning of marriage may have detrimental consequences. The studies invoked by the gay
movement cannot refute this possibility.
III. Further Reasons for Doubt

17
See JANE LEWIS, THE END OF MARRIAGE? INDIVIDUALISM AND INTIMATE
RELATIONS 5 (2001).
18
Seana Sugrue, The Erosion of Marriage: A Pyrrhic Victory?, in WHATS THE
HARM?, supra note x, at 302.
19
Seana Sugrue, Canadian Marriage Policy: A Tragedy for Children, REPORT,
INST. FOR MARRIAGE & FAMILY CANADA 2 (May 31, 2006), quoted in Lynne Marie
Kohm, Whats the Harm to Women and Children?: A Prospective Analysis, in WHATS
THE HARM?, supra note x, at 79, 86.
20
See MARGARET F. BRINIG, FROM CONTRACT TO COVENANT: BEYOND THE LAW
AND ECONOMICS OF THE FAMILY 174-77 (2000); ELIZABETH MARQUARDT, BETWEEN TWO
WORLDS: THE INNER LIVES OF CHILDREN OF DIVORCE (2005); JUDITH WALLERSTEIN,
JULIA LEWIS & SANDRA BLAKESLEE, THE UNEXPECTED LEGACY OF DIVORCE: A 25 YEAR
LANDMARK STUDY (2000); BARBARA DAFOE WHITEHEAD, THE DIVORCE CULTURE:
RETHINKING OUR COMMITMENTS TO MARRIAGE AND THE FAMILY (1996). Liberalized
divorce also harms women. See LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE
UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN
AMERICA (1985). It took almost forty years before rigorous studies were possible, and
they showed the great damage wrought by liberalized divorce. Allen, supra note x, at 2.
One striking datum: the single strongest social predictor (as opposed to
personality predictor) of early death was parental divorce during childhood. Katherine
Bouton, Eighty Years Along, a Longevity Study Still Has Ground to Cover, N.Y. TIMES,
Apr. 19, 2011, at D3 (citing a finding in HOWARD S. FRIEDMAN & LESLIE R. MARTIN,
THE LONGEVITY PROJECT: STARTLING DISCOVERIES FOR HEALTH AND LONG LIFE FROM
THE LANDMARK EIGHT-DECADE STUDY (2011)).
A-1252
6

There are further empirical evidence and inductive reasons indicating that same-
sex married couples almost certainly would not be equally good parents as are married
biological parents.
A. Adoption Vs. Biology
Every child with homosexual guardians has lost at least one biological parent.
Loss of a parent is universally regarded as a great misfortune. If the child has one
biological parent, the other adult is a step-parent. In fables step-parents are typically
hostile to their step-children.
21
Homosexual couples with children often experience
competition or jealousy over parenting, and the children often have a preference for or
primary bond with one parent.
22
If one is the childs biological parent, it would be
natural for the child to identify the other as secondary, or as not a true parent at all.
23

Alternatively, the child with homosexual custodians has lost both parents. This is
universally regarded as a tragedy. Adoption can be a great blessing for children whose
parents are unable or unwilling to care for them, but even adoption by a traditional
married couple is not equal to the biological family.
24
If same-sex couples are just as

21
See BRUNO BETTELHEIM, THE MEANING AND IMPORTANCE OF FAIRY TALES 66-
73 (1975) (discussing The Fantasy of the Wicked Stepmother).
22
See Claudia Ciano-Boyce & Lynn Shelley-Sireci, Who Is Mommy Tonight?
Lesbian Parenting Issues, 43 J. HOMOSEXUALITY No. 2, at 1, 10-11 (2002); Susan
Bennett, Is There a Primary Mom? Parental Perceptions of Attachment Bond
Hierarchies Within Lesbian Adoptive Families, 20 CHILD & ADOLESCENT SOC. WORK J.
No. 3, at 159, 166-69 (2003).
23
See Louis DeSerres, Preserve Marriage--Protect Childrens Rights, in WHATS
THE HARM?, supra note x, at 106 (This biological imbalance can also be the source of
numerous tensions and conflicts that are not likely to benefit the child. . . .).
24
See David M. Brodzinsky, Long-Term Outcomes in Adoption, 3 THE FUTURE OF
CHILDREN 153, 153 (Spring, 1993) (A selective review of the literature indicates that,
although most adoptees are well within the normal range of functioning, as a group they
are more vulnerable to various emotional, behavioral, and academic problems than their
peers living in intact homes with their biological parents.); Gail Slap et al., Adoption as
a Risk Factor for Attempted Suicide During Adolescence, 108 PEDIATRICS 330 (Aug.
2001) (Attempted suicide is more common among adolescents who live with adoptive
parents than among adolescents who live with biological parents.); Michael Wierzbicki,
Psychological Adjustment of Adoptees: A Meta-Analysis, 22 J. CLINICAL CHILD PSYCH.
447 (1993) (meta-analysis of 66 published studies finding that adoptees had significantly
higher levels of maladjustment, externalizing disorders, and academic problems that
nonadoptees); Matthew D. Bramlett et al., The Health and Well-Being of Adopted
Children, 119 PEDIATRICS, Supp. 2007, at S54. See also SHARON VANDIVERE ET AL.,
ADOPTION USA: A CHARTBOOK BASED ON THE 2007 NATIONAL SURVEY OF ADOPTIVE
PARENTS 5 (2007), which found inter alia:
A-1253
7

good as biological parents, they must be better than traditional married couples as
adoptive parents. It would be astounding if this were true, and there is no evidence to
suggest that it is.
Adopted children often crave knowledge of and contact with their biological
parents and are challenging laws that prevent them having it.
25
In effect, these children
assert the natural importance of blood ties and a human right to access to their biological
parents. The law increasingly acknowledges such a right. The Convention on the Rights
of the Child, for example, recognizes the right of every child, as far as possible . . . to
know and be cared for by his or her parents.
26
Because homosexual couples cannot
biologically create children, however, the SSM movement must deny the importance of
blood ties and any right of children to access to their biological parents.
27

B. Special Issues with Same-Sex Couples

[C]ompared to the general population of children, adopted children
are more likely to have ever been diagnosed withand to have moderate
or severe symptoms ofdepression, ADD/HAD, or behavior/conduct
disorder. . . . . [P]arental aggravation (for example, feeling the child was
difficult to care for, or feeling angry with the child . . . is more common
among parents of adopted children than among parents in the general U.S.
population (11 compared with 6 percent).
25
See Patrick F. Fagan, Adoption Works Well: A Synthesis of the Literature 13
(Family Research Council, Nov., 2010) (At some stage, adopted children commonly
desire to get to know their birth mother.). It is now being widely recognized that
adopted children have the right to know who their biological parents are whenever
possible, and legislation establishing that right has become the norm. MARGARET
SOMERVILLE, THE ETHICAL IMAGINATION: JOURNEYS OF THE HUMAN SPIRIT 147 (2006).
Children also have a right to be reared within their biological families and to have a
mother and a father, unless an exception can be justified as being in the best interests of
a particular child. Margaret Somerville, Childrens Human Rights to Natural Biological
Origins and Family Structure, 1 INTL J. JURISP. FAM. 35, 35 (2011). See also David
Crary, Sperm-Donors Kids Seek More Rights, Want to End Anonymous Sperm Donation,
available at http://www.app.com/apps/pbcs.dll/article?AID-2010100812064; Vardit
Ravitsky & Joanna E. Scheib, Donor-Conceived Individuals Right to Know, The
Hastings Center, Bioethics Forum (July 20, 2010), available at
http://www.thehastingscenter.org/Bioethicsforum/Post.aspx?id=4811&blogid=140.
26
Convention on the Rights of the Child, G.A. Res. 44/25, at 166, 168, U.N. Doc.
A/RES/44/25 (Nov. 20, 1989), reprinted in 28 I.L.M. 1456 (1989), available at
http://www.ochr.org/english/law/pdf/crc.pdf. Unfortunately, the United States has not
ratified this convention.
27
See infra note x and accompanying text.
A-1254
8

In addition to the detriments of adoption even by a traditional married couple,
there are reasons to believe that adoption by same-sex couples would raise further
problems.
1. Childrens Sexuality
The claim that living with a same-sex couple does not affect a childs sexuality is
implausible. It would be surprising indeed if . . . childrens own sexual identities were
unaffected by the sexual identities of their parents.
28
Even young children may sense, or
be told by others, that their guardians are unusual--queer--thereby initiating their
sexualization at an unusually early age. There is evidence that children raised by
homosexuals are more likely to engage in homosexuality and to feel confused about their
sexual identity.
29

2. Durability and Fidelity
Other aspects of homosexual relationships make same-sex couples less likely to
be good parents. Heterosexual relationships are more durable. The bond between woman
and man is rooted in the biological necessity to nurture human infants for a long time.
30

The parents fidelity affirms paternity--the identity of the father--which is hidden by
promiscuity in some other species, including close relatives of humans, like
chimpanzees.
31
The recognition of paternity lets a father care for his own children, which
includes caring their mother--his mate. The recognition of patrilineal kin also made it

28
Diana Baumrind, Commentary on Sexual Orientation: Research and Social
Policy Implications, 31 DEVELOPMENTAL PSYCH. 130, 134 (1995). See also A. Dean
Byrd, Gender Complementarity and Child-Rearing: Where Tradition and Science Agree,
6 J. L. & FAMILY STUD. 213, x (2004) (Children learn about male-female relationships
through the modeling of their parents.); Bruce Ellis, Of Fathers and Pheromones:
Implications of Cohabitation for Daughters Pubertal Timing, in JUST LIVING TOGETHER:
IMPLICATIONS OF COHABITATION ON FAMILIES, CHILDREN, AND SOCIAL POLICY 161 (A.
Booth & A. Crouter eds., 2002); Susan Golombok & Fiona Tasker, Do Parents Influence
the Sexual Orientation of Their Children? Findings from a Longitudinal Study, 32
DEVELOPMENTAL PSYCH. 3 (1996).
29
See supra note x and accompanying text.
30
Discussing the emergence of human beings from other primates, Dr. Bernard
Chapais, a primatologist, said: If you take the promiscuity that is the main feature of
chimp society and replace it with pair bonding, you get many of the most important
features of human society. Quoted in Nicholas Wade, New View of How Humans Moved
Away from Apes, N.Y. TIMES, Mar. 11, 2011, at Ax. See generally BERNARD CHAPAIS,
PRIMEVAL KINSHIP (2008).
31
See Wade, supra note x (the presence of both parents revealed the
genealogical structure of the family, which is at least half hidden in chimp societies).
A-1255
9

possible to move forward and establish peaceful relations with other groups.
32
For
either parent to have sex outside the marriage can disrupt their bond by creating
competing demands from other children and the other parent(s).
It would be astonishing if this natural bond, a product of a million years of
evolution, were just coincidentally equaled by the bond between same-sex couples, which
has no biological basis. A comparison with other species is instructive. Among some
animals male and female mate for life; among many they do not. But in no species do
members of the same sex mate for life. Homosexuals have less reason to bond as couples
and, when they do bond, less reason for the bond to be enduring and exclusive. Not
surprisingly, then, homosexuals are less inclined than heterosexuals to marry,
33
and gays
who do marry have a high divorce rate.
34

32
Id. (quoting primatologist Bernard Chapais). See also Nicholas Wade,
Supremacy of a Social Network, N.Y. TIMES, Mar. 15, 2011, at D4.
33
See Paul Ames, Dutch Gays Dont Take Advantage of Opportunity to Marry
(Apr. 20, 2011), available at http://www.globalpost.com (reporting statistics from the
Netherlands national statistics agency that just 20 percent of gay Dutch couples are
married, compared to 80 percent of heterosexual couples); Harry R. Jackson, Jr., Whats
the Vex of Same-Sex, TownHall.com, Oct. 12, 2009, available at
http://townhall.com?Common/PrintPage.aspx?g=c9bc9aad-468e-49e2-9e1c-03225fd7ba2
(reporting that in the Netherlands, where SSM is recognized, only 12% of gays have
chosen to marry). See also Maggie Gallagher & Joshua K. Baker, Demand for Same-Sex
Marriage: Evidence from the United States, Canada, and Europe, 3 IMAPP POLICY BRIEF
No. 1, 1, 6 (Apr. 26, 2006), available at
http://www.marriagedebate.com/pdf/imapp.demandforssm.pdf. In 2006 the New Jersey
Supreme Court found that there were 16,000 same-sex couples living in committed
relationships among a state population of 8,500,000. Lewis v. Harris, 908 A.2d 196, 218
(N.J. 2006). Those 32,000 people are less than 0.4% of the population. One study found
that only 85,000 same-sex couples had entered into a legally recognized relationship in
America. That is about 1/18th of 1% of the U.S. population. Gary J. Gates, M.V. Lee
Badgett & Deborah Ho, Marriage, Registration and Dissolution by Same-Sex Couples in
the U.S. 5 (July 2008), available at http://www.ssrn.com/abstract=1264106.
In Oregon 2,600 same-sex couples [thus 5,200 people], comprising about 20% of
the of Oregons same-sex couples, registered in the first year after Oregon instituted
domestic partnerships, even though this offered most of the legal protections and benefits
of marriage. Steve McKinsey, Only One-Fifth of Oregons Same-Sex Couples Opt for
Union, THE OREGONIAN, Feb. 2, 2009, available at http://blog.oregonlive.com/news_-
impact/2009/02/domestic_partnerships.html. 70% were female. Oregons population was
estimated at 3,790,060 in 2008. See http://quickfacts.census.gov/gfd/states/41000.html.
Thus those 5,200 people are less than 0.0014% of the population.
In three years only 6,500 couples registered under Vermonts civil union law. See
Pam Belluck, Gays Respond: I do, I Might and I Wont, N.Y. TIMES, Nov. 26, 2003,
at A1. One reason for the low number is that couples who came of age in the 1960s and
A-1256
10

Where homosexuals (especially gay men) do marry or otherwise enter into a
committed relationship, it generally happens later in life than it generally does for normal
couples.
35
This is not surprising. A normal motive for a traditional marriage is to start a
family, so it generally occurs when the couple is young enough to bear children and to
handle the physical rigors of raising them. Gay couples do not bear children. Further,
gay men tend to be even more preoccupied than most straight women with their bodies,
physical attractiveness, attire, adornment and self-presentation.
36
They may choose to

1970s [tended] to see marriage as a heterosexual institution symbolizing a system that
they could not, or would not, want to be part of. Id. Only 166 of General Motors
1,300,000 employees claimed the same-sex benefits it offered. See Maggie Gallagher,
What Is Marriage For?, WKLY. STANDARD, Aug. 4/Aug. 11, 2003, available at LEXIS,
Nexis Library, The Weekly Standard File. In short, very few same-sex couples have
sought legal recognition when it is available, and most (especially the males couples) had
no interest in establishing legal recognition.
34
See Gunnar Andersson et al., The Demographics of Same-Sex Marriages in
Norway and Sweden, 43 DEMOGRAPHY 79 (2006) (divorce-risk levels are considerably
higher in same-sex marriages); DENNIS ALTMAN, THE HOMOSEXUALIZATION OF
AMERICA, THE AMERICANIZATION OF THE HOMOSEXUAL 187 (1982) ([A]mong gay men
a long-lasting monogamous relationship is almost unknown.); Maria Xiridou et al., The
Contribution of Steady and Casual Partnerships to the Incidence of HIV Infection in
America, 17 AIDS 1029, 1031 (2003) (finding that among a sample of Amsterdam men
that gay male partnerships lasted on average 1.5 years and that men in these partnerships
had an average of eight casual partners per year); Maggie Gallagher & Joshua K. Baker,
Same-Sex Unions and Divorce Risk: Data from Sweden, IMAPP POLICY BRIEF, May 3,
2004 (study of registered partnerships in Sweden finding that gay male couples were 50%
more likely to divorce, and lesbian couples were over 150% more likely to divorce than
heterosexual couples); C.C. Hoff et al., Serostatus Differences and Agreements About
Outside Sex Partners Among Gay Couples, 21 AIDS EDUC. & PREVENTION x (2009)
(study finding that half of gay couples in committed relationships had explicit agreements
allowing sex with others); Lawrence Kurdek, Are Gay and Lesbian Cohabiting Couples
Really Different from Heterosexual Married Couples?, 66 J. FAMILY & MARRIAGE 893
(Nov. 2004) (finding that the dissolution rate of homosexual couples was more than three
times that of heterosexual married couples, and the dissolution rate of lesbian couples
was more than four times that of heterosexual married couples).
35
See Gates et al., supra note x, at 9 (study finding that same-sex couples who
married in Massachusetts were considerably older than opposite-sex couples who
married).
36
Judith Stacey, Fellow Families? Genre of a Gay Male Intimacy and Kinship in
a Global Metropolis (2006), available at
http://www.leeds.ac.uk/CAVA/papers/intseminar3Stacey.htm
A-1257
11

marry only when they no longer feel attractive enough for the promiscuity of the
homosexual meat market.
37

Many gay men are promiscuous to an extent incompatible with marriage.
38
Some
gays disdain monogamy as proper only for heterosexuals because they bear children, not
a model gays should emulate.
39
One says: Gay liberation was founded . . . on a sexual
brotherhood of promiscuity and any abandonment of that promiscuity would amount to a
communal betrayal of gargantuan proportions.
40
Promiscuity is implicit in educational
materials about homosexuality, which are becoming more common in public schools.
41

Due in part to promiscuity, homosexuals have high rates of disease. Gay men
became more cautious about sex after the onset of AIDs, but infection rates soon
rebounded to their former levels.
42
Gay men also suffer disproportionately from many

37
This possibility seems consistent with the importance of physical appearance in
the gay male marketplace:
In cruising culture, the gay male sexual sports arena, its all in the gaze. Erotic
attraction and connection occur (or fail) in the blink of an eye. . . . The
extraordinary emphasis on the visual at the core of this dynamic imposes painful
challenges for gay men seeking eros and intimacy who fall outside desirable
standards of beauty and youth.
Id.
38
In one study 43% of white male homosexuals reported having sex with 500 or
more partners, with 28% having 1,000 or more sex partners. MARTIN S. BELL & ALAN P.
WEINBERG, HOMOSEXUALITIES: A STUDY OF DIVERSITY AMONG MEN AND WOMEN 308-
09 (1978). See also Paul Van den Ven et al., A Comparative Demographic and Sexual
Profile of Older Homosexually Active Men, 34 J. SEX RESEARCH 354 (1997) (finding
similar figures). Homosexual promiscuity is acknowledged by many homosexuals. See
MARSHALL KIRK & HUNTER MADSEN, AFTER THE BALL 280-347 (1990). Even gay men
with a steady partner tend to be promiscuous. See Jackson, supra note x (reporting that
in the Netherlands . . . homosexual men who have a steady partner have had an average
of eight other sexual partners per year; lesbians were found to have more male partners
over their lifetime than heterosexual women.).
39
See DAVID A.J. RICHARDS, SEX, DRUGS, DEATH, AND THE LAW: AN ESSAY ON
HUMAN RIGHTS AND OVERCRIMINALIZATION 53 (1982); Michael Bronski, Behind the
SexPanic! Debate, HARV. GAY & LESBIAN REV. 29 (Spring 1998); Caleb Crain, Pleasure
Principles: Queer Theorists and Gay Journalists Wrestle Over the Politics of Sex,
LINGUA FRANCA 27 (Oct. 1997); Sheryl Gay Stolberg, Gay Culture Weighs Sense and
Sexuality, N.Y. TIMES, Nov. 23, 1997, 4, at 1.
40
GABRIEL ROTELLO, SEXUAL ECOLOGY: AIDS AND THE DESTINY OF GAY MEN
xx (1997).
41
See George W. Dent, Jr., Straight Is Better: Why Law and Society May Justly
Prefer Heterosexuality, x TEX. REV. L. & POLITICS x, x (2011).
42
See Centers for Disease Control and Prevention, CDC Analysis Provides New
Look at Disproportionate Impact of HIV and Syphilis Among U.S. Gay and Bisexual Men
A-1258
12

other diseases.
43
The tendency of male homosexual acts to spread disease may help
explain the revulsion many people feel about them.
44
Lesbians also suffer high rates of
certain diseases and drug abuse.
45
Homosexuals also have higher rates of suicide, mental
illness, and drug and substance abuse.
46
Although many homosexuals brag about the

(Mar. 10, 2010), available at
http://www/cdc/gov/nchstp/Newsroom/msmpressrelease.html (report finding that the
rate of new HIV diagnoses among men who have sex with men (MSM) is more than 44
times that of other men and more than 40 times that of women, and even greater
discrepancies for syphilis) [hereafter CDC Analysis]. This report stated that one reason
for the high rate of HIV infection among gay men is complacency about HIV risk. See
also Centers for Disease Control, Resurgent Bacterial Sexually Transmitted Disease
Among Men Who Have Sex with Men--King County, Washington, 1997-99, MORBIDITY &
MORTALITY WKLY. REPT., Sept. 10, 1999, at 773; Byrd, supra note x, at 14 (summarizing
several studies).
43
See Byrd, supra note x, at 13-14 (summarizing several studies); Anne Tompalo
& H. Hunter Handsfield, Overview of Sexually Transmitted Diseases in Homosexual
Men, in AIDS AND INFECTIONS OF HOMOSEXUAL MEN 3 (Pearl M. & Donald Armstrong
eds., 2d ed. 1989) (homosexual men were known to be at high risk of acquiring sexually
transmitted diseases); Centers for Disease Control, Sexually Transmitted Disease
Surveillance 2009, at 33 (Nov. 2010) (finding high and growing rates of syphilis
infection among homosexual men).
44
See Roger Scruton, Gay Reservations, in THE LIBERATION DEBATE 108, 122
(Michael Leahy & Dan Cohn-Sherbok eds., 1996); Redding, supra note x, at 180-91
(discussing the evolutionary basis for disgust and the widespread feelings of disgust for
homosexual acts)..
45
See Katherine Fethers, et al., Sexually Transmitted Infections and Risk
Behaviors in Women Who Have Sex with Women, 76 SEXUALLY TRANSMITTED
INFECTIONS 345 (2000).
46
See D.M. Ferguson et al., Is Sexual Orientation Related to Mental Health
Problems and Suicidality in Young People?, 56 ARCHIVES GEN. PSYCH. 876 (1999)
(study concluding: Gay, lesbian and bisexual young people were at increased risks of
major depression . . . generalized anxiety disorder . . . conduct disorder . . . [and] suicide
attempts.); Richard Herrel et al., Sexual Orientation and Suicidality, 56 ARCHIVES OF
GEN. PSYCH. 867 (1999) (study finding that same gender sexual orientation is
significantly associated with each of the suicidality measures); Christine E. Grella et al.,
Influence of Gender, Sexual Orientation, and Need on Treatment Utilization for
Substance Use and Mental Disorders: Findings from the California Quality of Life
Survey,19 BMC PSYCH. 52 (2009), available at http://www.biomedcentral.com/1471-
244X/9/52 (empirical study finding that homosexuals were twice as likely to seek mental
health, and substance abuse treatment); Redding, supra note x, at 156-59 (reviewing
literature); Yue Zhao et al., Suicidal Ideation and Attempt Among Adolescents Reporting
Unsure Sexual Identity or Heterosexual Identity Plus Same-Sex Attraction or
Behavior: Forgotten Groups?, 49 J. AM. ACAD. OF CHILD & ADOLESCENT PSYCH. 89
(2010) (study finding homosexual and bisexual youths have higher suicide risk than
others). Many gay men also suffer from eating disorders. Stacey, supra note x; Cassandra
A-1259
13

absence of gender discrimination in their relationships, those relationships are often
abusive.
47

Some gays blame the pathology of promiscuity and disease on their social
oppression.
48
William Eskridge argues that validating SSM would civilize gay men by
making them more like lesbians.
49
Both claims are weak. Society condemns promiscuity
in homosexuals more than their fidelity or abstinence. One study found HIV infection of
gay men in American cities to be highest in San Francisco, a famously gay friendly city.
Its rate was 150% higher than in Pittsburgh, not a particularly gay-friendly city, which
had the lowest rate.
50
Similarly, high levels of mental illness among gays are also found
in the Netherlands, perhaps the most gay-friendly country in the world.
51

Brooks, Meth Use Among Gay Men Remains a Pervasive Problem, SEATTLE TIMES, Aug.
27, 2010.
47
See Byrd, supra note x, at 12-13 (summarizing several studies); Lisa K.
Waldner-Haugrud et al., Victimization and Perpetration Rates of Violence in Gay and
Lesbian Relationships: Gender Issues Explored, 12 VIOLENCE & VICTIMS 173 (1997)
(reporting that 47.5% of lesbians and 29.7% of gays have been victimized by a same sex
partner); P.A. Brand & A.H. Kidd, Frequency of Physical Aggression in Heterosexual
and Female Homosexual Dyads, 59 PSYCH. REPTS. 1307 (1986) (finding reports of abuse
in 30% of lesbian relationships); C.K. Waterman et al., Sexual Coercion in Gay Male and
Lesbian Relationships: Predictors and Implications and Support Services, 26 J. SEX
RESEARCH 118 (1989); S. Owen & T.W. Burke, An Exploration of the Prevalence of
Domestic Violence in Same-Sex Relationships, 95 PSYCH. REPTS. 129 (2004); U.S. Dept
of Justice, Office of Justice Programs, Extent, Nature, and Consequences of Intimate
Partner Violence: Findings from the National Violence Against Women Survey 30 (July,
2000), available at http://www.ncjrs.gov/txtfiles1/nij/181867.txt (Same-sex cohabitants
reported significantly more intimate partner violence than did opposite-sex cohabitants
39% of lesbians reported being raped, physically assaulted, and/or stalked by a cohabiting
partner at some time in their lifetimes, compared to 21% of heterosexual women. Among
men, the comparable figures are 23.1% and 7.4%.).
48
See Christopher Banks, The Cost of Homophobia: Literature Review of the
Economic Impact of Homophobia on Canada, available at
http://lgbthealth.net/downloads/research/Human_Impact_of_Homophobia.pdf.
49
WILLIAM N. ESKRIDGE, JR, THE CASE FOR SAME-SEX MARRIAGE 84 (1996). See
also JONATHAN RAUCH, GAY MARRIAGE: WHY IT IS GOOD FOR GAYS, GOOD FOR
STRAIGHTS, AND GOOD FOR AMERICA 19-21 (2004).
50
The estimated level of [HIV] infection among homosexual men ranges from
20% in a Pittsburgh study to 50% in a San Francisco study. THOMAS E. SCHMIDT,
STRAIGHT & NARROW 27 (1995) (citing many studies).
51
T.G. Sandfort et al., Same-Sex Behavior and Psychiatric Disorder, 58
ARCHIVES GEN. PSYCH. 87 (2001).
A-1260
14

As for marriage civilizing gay men, probably few gay men (especially the young)
will marry,
52
and marriages that are entered into are likely to be short-lived.
53
Further, if
the threat of deadly diseases from homosexual acts, including the gay plague of AIDS,
has not deterred gay mens promiscuity, it is unlikely that a wedding ring will. Men are
not domesticated by a wedding ceremony and a ring, but by a wife and children.
54

Gay couples are also more prone to adultery.
55
This is hardly surprising since,
unlike normal couples, adultery in gays does not threaten to create new children who
would compete for resources and care with the couples own biological children.
56
They
may have different expectations or preferences than do normal married couples about
adultery
57
as well as other matters, like the sharing of finances.
58

Given the fragility of homosexual relationships, children in these homes are more
likely to suffer the stresses of divorce and to learn that marriage is temporary, not a
lasting relationship of trust. Every child raised by a homosexual couple has already lost at
least one biological parent, so a divorce may cause heightened trauma. Given the frequent
infidelity in homosexual couples, children in these homes are more likely to witness
conflict over infidelity and to see it as a normal part of marriage. Given the frequent

52
See Gates et al. supra note x, at 8 (finding that two-thirds of same-sex couples
that entered into a legally recognized relationship were female). See also supra note x.
53
54
See GEORGE GILDER, MEN AND MARRIAGE 12-18 (1993); RICHARD A. POSNER,
SEX AND REASON 312 (1992) (stating that the presence of children helps to keep married
couples together).
55
One study of 156 male couples found that for them fidelity is not defined in
terms of sexual behavior, but rather by their emotional commitment to one another. All
the couples who had been together over five years made allowance for outside sexual
activity. DAVID P. MCWHIRTER & ANDREW M. MATTISON, THE MALE COUPLE: HOW
RELATIONSHIPS DEVELOP 252-53 (1984). See also KIRK & MADSEN, supra note x, at 330
(study finding that the cheating ratio of married gay males, given enough time,
approaches 100%). Andrew Sullivan exhorts heterosexuals to develop a greater
understanding of the need for extramarital outlets between two men than between a man
and a woman. . . . The truth is, homosexuals are not entirely normal; and to flatten their
varied and complicated lives into a single, moralistic model is to miss what is essential
and exhilarating about their otherness. ANDREW SULLIVAN, VIRTUALLY NORMAL: AN
ARGUMENT ABOUT HOMOSEXUALITY 202-03 (1995).
56
See supra notes x-x and accompanying text.
57
See Craig Christensen, If Not Marriage? On Securing Gay and Lesbian Family
Values by a Simulacrum of Marriage, 66 FORDHAM L. REV. 1699, 1726 (1998)
(conceding that marriage may not have the same meaning--entailing commitment to the
same values--for gay people as for their heterosexual counterparts). See also supra note
x (discussing understandings and practices concerning fidelity among gay couples).
58
See George W. Dent, Jr., How Does Same-Sex Marriage Threaten You?, 59
RUTGERS L. REV. 233, 250 & n.94 (2007).
A-1261
15

violence in homosexual couples, children in these homes are more likely to witness
domestic violence and to understand it as a normal part of marriage.
A child whose mother lives with a man other than his biological father is more
likely to be abused by that man than a child living with his biological father is likely to be
abused by him.
59
Every child raised by a gay male couple has at least one unrelated male
adult in the home. There is no reason to think that such a child will fare better than a child
living with an unrelated heterosexual male. The high rates of child sex abuse among
homosexuals and bisexuals
60
are also a cause for concern. At the least, given the
uncertain effects of homosexual parenting, the children raised by homosexual couples are
being treated as guinea pigs, which is troubling.
3. Parents and Gender
Advocates of same-sex parenting claim there is no difference between having a
mother and a father and having two guardians of the same sex.
61
This, too, is implausible.
Men and women differ in significant ways.
62
A growing body of studies confirms:
Mothers and fathers contribute in gender specific and in gender complementary ways to
the healthy development of children.
63
Fathers tend to do things differently, but not in

59
See W. Bradford Wilcox, Suffer the Little Children: Cohabitation and the
Abuse of Americas Children (Apr. 22, 2011), available at
http://www.thepublicdiscourse.com/2011/04/3181 (citing a new federal study showing
that children living with their mother and her boyfriend are about 11 times more likely
to be sexually, physically, or emotionally abused than children living with their married
biological parents).
60
See R. Blanchard et al., Pedophiles: Mental Retardation, Maternal Age, and
Sexual Orientation, 28 ARCHIVES OF SEXUAL BEHAVIOR 111 (1999); Kurt Freund &
Robin J. Watson, The Proportions of Heterosexual and Homosexual Pedophilia: An
Explanatory Study, 18 J. SEX & MARITAL THERAPY 34 (1992).
61
See Louise B. Silverstein & Carl F. Auerbach, Deconstructing the Essential
Father, 54 AM. PSYCHOLOGIST 397 (1999).
62
See generally STEVEN PINKER, THE BLANK SLATE: THE MODERN DENIAL OF
HUMAN NATURE 343-50 (2002); DAVID C. GEARY, MALE, FEMALE: THE EVOLUTION OF
HUMAN SEX DIFFERENCES (1998); Dorion Sagan, Gender Specifics: Why Women Arent
Men, N.Y. TIMES, June 21, 1998, 15, at 1 (stating that hormonal differences affect all
organs of the body, abilities, behaviors, and effects of medication).
63
Byrd, supra note x, at 5; Ilanit Gordon et al., Oxytocin and the Development of
Parenting in Humans, 68 BIO. PSYCH. 377 (Aug. 15, 2010) (finding that hormonal
differences between men and women are associated with different parenting behavior).
In the last 20 years, everyones been talking about how important it is for fathers to be
involved. Sara S. McLachlan, professor of sociology and public affairs at Princeton
University, quoted in Laurie Tarkan, Fathers Gain Respect from Expert (and Mothers),
N.Y. TIMES, Nov. 3, 2009, at D5. See also MARRIAGE AND THE PUBLIC GOOD, supra
note x, at 18; WADE HORN & TOM SYLVESTER, FATHER FACTS 153 (2002); ELEANOR E.
A-1262
16

ways that are worse for the children. Fathers do not mother, they father.
64
The
contribution of fathers benefits their children.
65
The presence of fathers in the home also
benefits the neighborhoods where they live.
66

Because of problems like these, the American College of Pediatricians believes it
is inappropriate, potentially hazardous to children, and dangerously irresponsible to
change the age-old prohibition on homosexual parenting, whether by adoption, foster
care, or by reproductive manipulation.
67
Most European countries bar adoption by gays
and lesbians.
68
A complete prohibition on adoption or foster care by homosexual couples
would be inappropriate. In worn-torn, impoverished countries there are starving orphans

MACOBY, TWO SEXES: GROWING UP APART, COMING TOGETHER (1998); Thomas G.
Powers et al., Compliance and Self-Assertion: Young Childrens Responses to Mothers
Versus Fathers, 30 DEVELOPMENTAL PSYCH. 980 (1994); Robin Fretwell Wilson,
Undeserved Trust: Reflections on the ALIs Treatment of De Facto Parents, in
RECONCEIVING THE FAMILY: CRITIQUE ON THE AMERICAN LAW INSTITUTES PRINCIPLES
OF THE LAW OF FAMILY DISSOLUTION 90, 106-10 (Robin Fretwell Wilson, ed. 2006); A.
Sarkadi et al., Fathers Involvement and Childrens Developmental Outcomes: A
Systematic Review of Longitudinal Studies, 97 ACTA PAEDIATRICA 153 (2008) (review
spanning 20 years of studies including over 22,000 children found that fathers reduce
behavioral problems in boys and psychological problems in girls, enhance cognitive
development, and decrease delinquency).
In a recent study, fathers who were counseled in parenting spent more time with
their children, and the children were much less aggressive, hyperactive, depressed or
socially withdrawn than children of fathers in the control group. See Tarkan, supra.
Studies with animals have found behavioral and even neurological deficiencies in
mammals raised without fathers. See Shirley S. Wang, This Is Your Brain Without Dad,
WALL ST. J., Oct. 27, 2009, at x.
64
Child psychologist Dr. Kyle Pruett, quoted in Tarkan, supra note x, at D5.
65
[C]ontrolling for income and all other factors, youths in father-absent families
. . . had significantly higher odds of incarceration than those of other-father families.
Cynthia C. Harper & Sara S. McLanahan, Father Absence and Youth Incarceration, 14 J.
RES. ON ADOLESCENCE 369, 385-86 (2004)
66
See SARA MCLANAHAN & GARY SANDEFUR, GROWING UP WITH A SINGLE
PARENT: WHAT HURTS, WHAT HELPS? 137 (1994) (noting that crime is higher in
communities with higher proportions of single-mother families); Amy L. Anderson,
Individual and Contextual Influences on Delinquency: The Role of the Single-Parent
Family, 30 J. CRIM. JUST. 575, 582 (2002) (finding that eighth graders attending schools
with a higher proportion of teens from single-parent families committed more violent
offenses, regardless of their own family structure).
67
American College of Pediatricians, Homosexual Parenting: Is It Time for
Change? (revd Mar. 26, 2009), available at
http://www.acpeds.org/?CONTEXT=art&cat=22&art=50&BISKIT=2920801063.
68
See YUVAL MERIN, EQUALITY FOR SAME-SEX COUPLES: THE LEGAL
RECOGNITION OF GAY PARTNERSHIPS IN EUROPE AND THE UNITED STATES 254 (2002).
A-1263
17

who would be better off if they were adopted by a carefully screened homosexual couple.
However, adoption by homosexual couples should be limited, requiring a showing that no
better placement is possible.
III. SAME-SEX COUPLES AND ARTIFICIAL REPRODUCTION
Not surprisingly, some homosexuals are using artificial means of reproduction.
69

Recognition of SSM arguably requires that artificial reproduction (including cloning) be
legalized. Since homosexuals cannot create children sexually, the principle of equality
arguably entitles them to other means of reproducing.
70
This argument has already been
accepted in some countries that have validated SSM.
71

Artificial reproduction generally entails the separation of the resulting child from
one or both of its biological parents. To plan deliberately to separate a child from one or
both parents seems to be child abuse.
72
At least in theory, biological parents can act in

69
See BALL, supra note x, at 166 (stating that changes in reproductive
technology have made it possible for lesbians and gay men to have biological children).
70
See Anthony C. Infanti, Dismembering Families, Univ. of Pittsburgh Legal
Stud. Research Paper No. 2009-11 (April 2009), available at
http://www.ssrn.com/abstract=1374492 (arguing that denial of a federal tax deduction for
the medical costs of artificial reproduction contributes to the subordination of lesbian
and gay families as well as many other nontraditional American families). See also
DeSerres, supra note x, at 104-05. Under the Universal Declaration of Human Rights the
right to marry includes the right to found a family. UNITED NATIONS, UNIVERSAL
DECLARATION OF HUMAN RIGHTS, Art 16.1. To complete this bootstrap circle of
reasoning, after SSM is invoked to justify gays use of artificial reproduction, the
possibility of artificial reproduction is then cited to justify SSM. See Karen Streuning,
Looking for Liberty and Defining Marriage in Three Same-Sex Marriage Cases, in
MORAL ARGUMENT, RELIGION, AND SAME-SEX MARRIAGE: ADVANCING THE PUBLIC
GOOD 19, 38 Gordon A. Babst et al., eds. 2009).
71
See DeSerres, supra note x, at 104 (citing a French parliamentary report);
Elizabeth Marquardt, How Redefining Marriage Redefines Parenthood (Dec. 1, 2010),
available at, http://familyscholars.org/2010/12/01/how-redefining-marriage-redefines-
parenthood/ (stating facts indicating that use of third party sperm and egg donors to
conceive children does appears to be increasing in jurisdictions that have recognized
same-sex marriage or similar arrangements). The likelihood that recognition of SSM
would normalize artificial reproduction also casts doubt on Dale Carpenters claim that
recognition would reduce the number of scenarios in which you have multiple adults
vying for children. Dale Carpenter, The Unconservative Consequences of Conservative
Opposition to Gay Marriage, in WHATS THE HARM?, supra note xx, at 319, 323.
72
See Camille W. Williams, Planned Parent-Deprivation: Not in the Best
Interests of the Child, 4 WHITTIER J. CHILD & FAM. ADVOC. 375 (2005); SOMERVILLE,
supra note x, at 147 (drawing ethical distinction between accidental and deliberate
A-1264
18

their own interests; infant or unborn children cannot. Although baby selling is illegal,
adults can give or take pay for egg or sperm donations or surrogate motherhood and take
steps to prevent the resulting children from having any legal rights against, or contact
with, or even knowledge of the identity of their parents. In this way some men have sired
hundreds of children.
73

Artificial reproduction is more problematic than adoption because the former is
harder for the law to monitor. Every adoption must be approved by a court charged to
protect the child. Artificial reproduction gets little legal oversight.
74
The children created
are subject to the whims of adults. Artificial reproduction also differs from adoption in
that the former is irreversible. If an adoption goes awry it can be rescinded, but the
artificial creation of a human being cannot be undone. Neither artificially created children
nor adoptees have an adequate natural family to which they can return. The difference
between the two is that for the artificially created child this happens by the design of the
custodial parents.
The law has paid little attention to the rights of children regarding their biological
parents because in the past there was no threat to these rights. Children lived with their
natural parents unless the parents died, voluntarily surrendered them, or were found unfit
by a court. Through artificial reproduction children may be separated from their
biological parents without any of these conditions being present. This separation damages
children. Children artificially conceived and raised apart from their biological fathers
hunger for an abiding paternal presence.
75

destruction of childrens links to their biological parents, and especially for society to be
complicit in this destruction).
73
See Rachel Lehmann-Haupt, Mapping the God of Sperm, NEWSWEEK, Dec. 16,
2009, at xx, available at http://www.newsweek.com/id/227104 (discussing a man who is
the father of nearly 400 children by sperm donation).
74
See Mark Hansen, . . . and Baby Makes Litigation, ABA J. 53, 54-55 (March
2011) (stating that state laws governing assisted reproductive technology vary widely
and that a majority of states . . . have no laws directly addressing surrogacy). See
generally NAOMI R. CAHN, TEST TUBE FAMILIES: WHY THE FERTILITY MARKET NEEDS
LEGAL REGULATION (2009).
75
KYLE PRUETT, FATHERNEED 207 (2000); see also DAVID POPENOE, LIFE
WITHOUT FATHER (1996). See also Barbara Dafoe Whitehead, Answered Prayers: Where
Is Technological Reproduction Taking Us?, COMMONWEAL, Oct. 20, 2006, at 133 (citing
study finding widespread identity problems among such children resulting from artificial
insemination); THE REVOLUTION IN PARENTHOOD, supra note 54, at 17 (stating that
damage to children raised by same-sex couples may be greater when [a]dults
purposefully conceive a child with the clear intention of separating that child from a
biological parent.). See also ELIZABETH MARQUARDT, NORVAL D. GLENN & KAREN
CLARK, MY DADDYS NAME IS DONOR: A NEW STUDY OF YOUNG ADULTS CONCEIVED
A-1265
19

Some dangers of artificial reproduction were adumbrated by Aldous Huxley in his
novel, Brave New World. In this world, people are created in test tubes in laboratories.
Each child is given genes appropriate to a certain function and status. Some are given low
intelligence but a strong physical constitution so they can perform menial, physical labor.
Others get high intelligence and serve as the ruling class.
Some details of Huxleys vision now seem implausible, but the overall picture is a
prescient warning. Artificial reproduction could enable the wealthy to manufacture
genetically superior offspring.
76
This would increase class (and perhaps racial) inequality.
In short, it would create genetic castes. Artificial reproduction could actually limit
reproductive choice. Those with access to reproductive technology would face a
Hobsons choice of either using it to fabricate the most advanced product or, by
eschewing technology and using natural reproduction, condemn their children to genetic
inferiority. Artificial reproduction could also worsen gender inequality.
77

Some people have superior talents that bring them more prestige, fame, and
respect than others enjoy. We accept these inequalities because they seem accidental and
randomly bestowed. These inequalities would be hard to justify if talents were
manufactured products available only to the wealthy. There is another possibility that
homosexuals usually ignore. If, as seems likely, genes are at least a substantial factor in
determining sexuality, before long science may identify the genes that contribute to
homosexuality.
78
In a culture that honors untrammeled reproductive freedom, what
objection could there be to parents choosing to screen out gay genes?
In the novel The Elementary Particles by French writer Michel Houellebecq
79
the
problems of the human race are solved by eliminating love and replacing natural

THROUGH SPERM DONATION 5 stating that on average, young adults conceived through
sperm donation are hurting more, are more confused, and feel more isolated from their
families. They fare worse than their peers raised by biological parents on important
outcomes such as depression, delinquency and substance abuse.) (Inst. for American
Values 2010); Alessandra Rafferty, Donor-Conceived and Out of the Closet, NEWSWEEK,
Feb. 25, 2001, at x.
76
See generally MAXWELL J. MEHLMAN & JEFFREY R. BOTKIN, ACCESS TO THE
GENOME: THE CHALLENGE TO EQUALITY (1998).
77
Some feminists have warned of the dangers of artificial reproduction under
male control. See Christine Stolba, Overcoming Motherhood: Pushing the Limits of
Reproductive Choice, POLICY REV., Dec. 2002-Jan. 2003, at x.
78
A team of Chinese biologists found that male mice genetically engineered to
lack serotonin exhibited homosexual behavior; male mice with serotonin did not. See
Janelle Weaver, Is Homosexuality Based on a Brain Chemical? (Mar. 25, 2011),
available at http://www.livescience.com/13408-brain-chemical-serotonin-sexual-
orientation.html/
79
MICHEL HOUELLEBECQ, THE ELEMENTARY PARTICLES (1998).
A-1266
20

reproduction with cloning so that all people are genetically identical. This certainly does
eliminate inequality, but what then is the purpose of life? What happens to the idea that
every person is unique and has a right to his own personality and beliefs and to choose
his own, unique life plan? Most people would consider Houellebecqs world not idyllic
but horrible. It might be better to avoid these problems of artificial reproduction by
severely restricting its use to begin with.
More generally, artificial reproduction threatens relationships between children
and parents. What will happen to the bonds between parents and their first child when the
parents get a genetically enhanced second child who is bigger, stronger, smarter,
healthier, and better looking than the first?
80
In short, what will happen to relations
between parents and children when children become manufactured products? Artificial
reproduction threatens to transform what it means to be human. We consider ourselves a
different species from Neanderthals and other earlier humanoids. At what point would
genetically enhanced beings become so different from us as to be a different species, one
that renders homo sapiens as obsolete as the Neanderthals now are? For these reasons
some consider most artificial reproduction a denial of the childs human rights.
81
Because
of its dangers many foreign countries regulate artificial reproduction.
82

A total ban on artificial reproduction may go too far. In some cases a married
woman and man cannot conceive a child by coitus but only by in vitro fertilization. It is
hard to see a strong objection to this, which does not involve separation of the child from
its biological parents. Permitting any artificial reproduction, however, puts the law on a
very slippery slope. Immediately there will be demands based on the cry of equality to
permit every form of artificial reproduction.
83
Such demands must be resisted.
IV. THE IMPORTANCE OF BLOOD TIES

80
This scenario is not entirely fanciful. An online sperm and egg bank is being
established that will accept only donations from beautiful people so that ugly people can
have beautiful children. See Dating Site Creates Online Sperm and Egg Bank,
NEWSWEEK, Available at http://www.newsweek.com/blogs/techtonic-
shifts/2010/06/21/dating-site-creates-online-sperm-and-egg-bank.html.
81
The obligations we owe to human beings include not to manufacture them; not
to make them into objects or commodities; and to respect their right not to be designed by
another human being. SOMERVILLE, supra note x, at 122.
82
See generally CAHN, supra note x; MERIN, supra note x, at 254 (stating that all
European countries except the Netherlands explicitly prohibit lesbians (and single
women) from obtaining alternative reproductive services)..
83
See, e.g., Radhika Rao, Equal Liberty: Assisted Reproductive Technology and
Reproductive Equality, 76 GEO. WASH. L. REV. 1457 (2008) (urging courts to focus on
reproductive equality rather than making substantive determinations about artificial
reproduction); Andrew B. Coan, Assisted Reproductive Equality: An Institutional
Analysis, 60 CASE W. L. REV. 1143 (2010) (semble).
A-1267
21

Most people instinctively value blood ties. The American slave hymn, Sometimes
I Feel Like a Motherless Child, moves most people.
84
Many couples that have difficulty
in conceiving a child make heroic efforts to do so, often at great expense and enduring
humiliating and painful medical procedures.
Nonetheless, there is a movement to reduce or eliminate the social and legal
significance of the biological nexus between parents and children.
85
It is argued that
parents should be those who really perform normal parenting functions.
86
This would
deprive biological parents of any rights in their children and deny children any rights in
their biological parents. Most people would consider that prospect appalling.
Because homosexuals can get children only through adoption or artificial
reproduction, homosexual activists support the movement to disparage blood ties.
William Eskridge says that recognizing SSM involves the reconfiguration of the family,
de-emphasizing blood, gender, and kinship ties. . . . Gay experience with families we
choose delinks family from gender, blood, and kinship. Gay families . . . often form no
more than a shadowy connection between the larger kinship groups.
87
As David
Blankenhorn says, children in a homosexual household will not be treated as the victims
of a tragedy; rather it will be explained to everyone, including the children, that
something wonderful has happened!
88
Homosexuals may tell children conceived by
artificial insemination that they do not have a mother or a father.
89

As Eskridge suggests, validating SSM would affect not only children in
homosexual households. By changing the meaning of parenthood it would affect all
children. Traditionally biological parents have inalienable duties to their children. As the
adages say, you can choose your friends but not your relatives, and home is where they

84
The hymn stems from the practice of deliberately separating a slave mother and
child by the sale of one or another. See WILLIAM E. BARTON, HYMNS OF THE SLAVE AND
THE FREEDMAN 17 (n.p.d.).
85
They are not the only supporters. Feminists who want to diminish or abolish the
rights of biological fathers (including sperm donors in artificial insemination) are also
advocates. See Susan Frelich Appleton, Gender and Parentage: Family Laws Equality
Project in Our Empirical Age 6-7 (June 21, 2010), available at
http://ssrn.com/abstract=1628232.
86
See id.
87
WILLIAM N. ESKRIDGE, JR., GAYLAW: CHALLENGING APARTHEID IN THE CLOSET
11 (1999).
88
David Blankenhorn, Protecting Marriage to Protect Children, L.A. TIMES,
Sept. 19, 2008, at xx.
89
See Jerry Mahoney, Mom/Not Mom/Aunt, N.Y. TIMES, July 16, 2010, at x
(reporting that the author and his homosexual partner were told by their surrogacy agency
not to use the m-word. This child will have two fathers, the staff member scolded. He
or she will have an egg donor and a surrogate, but no mother. See also supra note 53.
A-1268
22

cant turn you away. De-emphasizing blood and validating families we choose imply
that biological parents may choose to eschew those duties. If biology is irrelevant, parents
have no more rights in or responsibility to their biological children than any other adults.
The law could abandon consistency and continue to impose duties on biological parents
despite de-emphasizing blood in favor of families we choose, but the new social
meaning of parenthood would make it harder to enforce those duties.
Ironically, many same-sex couples who do have children tacitly confirm the
importance of blood ties. They often arrange get an infant who is the biological child of
one member of the couple. Many people consider this inadequate and argue for a
birthright of children to be connected to their mothers and fathers.
90
As a French
parliamentary commission put it, The interests of the child must outweigh the exercise
of the freedom of adults.
91
The United Nations Convention on the Rights of the Child
states that each child shall have, as far as possible, the right to know and be cared for by
his or her parents.
92
David Blankenhorn argues that children have the right, insofar as
society can make it possible, to know and to be cared for by the two parents who brought
them into this world.
93

The law has begun to recognize a right of offspring of artificial insemination to
know who their fathers are.
94
If children born of surrogate mothers have not demanded
to know who their mothers are, that is only because surrogacy is so new that few children
of surrogates are old enough yet to assert their rights.
Does a mere right to know ones biological parents go far enough? These children
have already been denied the right to grow up with their real parents. If that happened
because their guardians had bought or stolen the child from the parents, we would

90
Daniel Cere, War of the Ring, in DIVORCING MARRIAGE: UNVEILING THE
DANGERS IN CANADAS NEW SOCIAL EXPERIMENT 9, 11 (Daniel Cere & Douglas Farrow
eds., 2004). See also Margaret Somerville, What About the Children?, in id. at 67.
91
Commission Report to Parliament on the Family and the Rights of Children 48,
National Assembly, France (Jan. 25, 2006) (Eng. translation), quoted in DeSerres, supra
note 48, at 112.
92
UNITED NATIONS, CONVENTION ON THE RIGHTS OF THE CHILD, Art. VII (1989).
93
Blankenhorn, supra note x, at xx. See also Daniel Cere, Toward an Integrative
Account of Parenthood, in WHAT IS PARENTHOOD? X, x (Daniel Cere & Linda McClain,
eds. forthcoming) (referring to childrens rights to a maternal bond and to be
connected to their genetically-related parents).
94
See Neal Hall, Daughter of Sperm Donor Seeks to Know Identity of Biological
Father, VANCOUVER SUN, Oct. 27, 2008, at xx. Some children are deploying
sophisticated techniques to find their fathers despite legal obstacles. See Rachel
Lehmann-Haupt, Are Sperm Donors Really Anonymous Anymore?, SLATE, March 1,
2010, available at http://www.slate.com/toolbar.aspx?action=print&id-2243743.
A-1269
23

consider the child gravely wronged and injured. How is a child any less wronged or
injured by artificial reproduction?
Some argue that many children already live with homosexual adults and will
continue to do so even if we do not recognize SSM, so we may as well recognize it and
give those children the resulting benefits.
95
This argument assumes, however, that
recognizing SSM will affect only homosexuals who marry and will not diminish the
existing benefits of marriage. This discussion here shows, however, that recognizing
SSM will profoundly change the meaning of marriage from a child-centered institution to
one intended primarily for the gratification of adults. This change would diminish respect
for marriage and probably impair its benefits to children.
Recognizing SSM may not even generate much benefit for children with
homosexual guardians. The benefits of marriage to children arise mainly from binding
them with their biological parents. With SSM, this is impossible. Many gay couples have
children because one of the childs biological parents left the other and now lives with
another adult. I know of no evidence that children benefit if those two people are married,
even if they are of different genders. It is speculative that children in a gay household will
benefit if the adults are in a recognized marriage. The number of children in gay
households is also small, so that any benefits to those children would likely be
outweighed by damage to the much larger number of other children.
96

Conclusion
The claim that there is no difference between homosexual and heterosexual
parents
97
is ambiguous. If it means that same-sex couples are as good as single parents,
the statement may be true, but it is largely irrelevant to the debate over same-sex
marriage where the issue is whether SSM is just as good as traditional marriage. If the
claim is that same-sex parents are just as good as married, biological parents, the
statement is not supported by any substantial evidence and is almost certainly false.
Empirical studies indicate some problems with same-sex parenting, and inductive reasons
give further cause for concern.

95
See Carpenter, supra note x, at 320.
96
Dale Carpenter gives some numbers that are hard to reconcile. At one point he
estimates the number of such children as at least a million. Carpenter, supra note x, at
320. However, he also recites an estimate of 777,000 same-sex couple households and
says that about 20% or all male couple households in the United States and one-third of
all female couple households in the United States are raising children. Id. That would
mean 200,000-250,000 such households, which would have to have an average of four to
five children each to bring the total of children to 1,000,000. That seems unlikely.
97
A-1270
24

Supporters of SSM want to change marriage--an institution that has been
fundamental in every culture in every corner of the globe throughout history--in a way
that, with a few recent exceptions, has never been tried before. Minimal prudence forbids
such a radical change until we have strong evidence that it will do no harm. In other
words, the burden of proof should be on advocates of SSM. They cannot sustain that
burden now, and it unlikely that they will ever be able to do so because only traditional
marriage is rooted in human nature.
98
Accordingly, same-sex marriage should not be
recognized at law, artificial reproduction should be permitted only to traditional married
couples, and adoption by same-sex couples should be allowed only in limited
circumstances.

98
See Redding, supra note x, at 143 (stating that the importance of these issues
argues for setting a fairly demanding standard when relying on lesbigay parenting
research in guiding public policy.).
A-1271
PAUL, WEI SS, RI FKI ND, WHAR T ON & GARRI S ON LLP
1 285 AVENUE OF THE AMERI CAS
NEW YORK, NEW YORK 10019- 6064
TELEPHONE (212)373-3000
LLOYD K GARRISON (1946-1991)
RANDOLPH E PAUL (1946-1956)
SIMON H RIFKIND (1950-1995)
LOUIS S WEISS (1927-1950)
JOHN F WHARTON (1927-1977)
WRITER'S DIRECT DIAL NUMBER
(212)373-3086
WRITER'S DIRECT FACSIMILE
(212)373-2818
WRITER'S DIRECT E-MAIL ADDRESS
UNIT 3601, FORTUNE PLAZA OFFICE TOWER A
NO 7 DONG SANHUAN 2HONGLU
CHAO YANG DISTRICT
BEIJING 100020
PEOPLE'S REPUBLIC OF CHINA
TELEPHONE (86-10) 582S-6300
1 2TH FLOOR, HONG KONG CLUB BUILDING
3A CHATER ROAD CENTRAL
HONG KONG
TELEPHONE (852) 2846-0300
ALDER CASTLE
10 NOBLE STREET
LONDON EC2V 7JU, U K
TELEPHONE (44 20) 7367 1 600
FUKOKU SEIMEI BUILDING
2-2 UCHISAIWAICHO 2-CHOIV1E
CHIYODA-KU, TOKYO 1 OO-O01 1, JAPAN
TELEPHONE (81 3) 3597-8101
TORONTO-DOMINION CENTRE
77 KING STREET WEST, SUITE 3 1 OO
PO BOX 226
TORONTO ONTARIO M5K 1J3
TELEPHONE (416) 504-0520
2001 K STREET, NW
WASHINGTON DC 20006-1047
TELEPHONE (202) 223-7300
500 DELAWARE AVENUE, SUITE 200
POST OFFICE BOX 32
WILMINGTON DE 1 9899 0032
TELEPHONE (302) 655 4410
Decembers, 2011
MATTHEW W ABBOTT
ALLAN J ARFFA
ROBERTA ATKINS
DAVID J BALL
JOHN F BAUGHMAN
LYNN B BAYARD
DANIEL J SELLER
CRAIG A BENSON*
MITCHELL L BERG
MARKS BERGMAN
BRUCE BIRENBOIM
H CHRISTOPHER BOEHNING
ANGELO BONVINO
HENK BRANDS
JAMES L BROCHIN
RICHARD J BRONSTEIN
DAVID W BROWN
SUSANNA M BUERGEL
PATRICKS CAMPBELL*
JEANETTE K CHAN
YVONNEY F CHAN
LEWIS R CLAYTON
JAY COHEN
KELLEY A CORNISH
CHRISTOPHER J CUMMINGS
CHARLES E DAVIDOW
DOUGLAS R DAVIS
THOMAS V DE LA BASTIDE IN
ARIEL J DECKELBAUM
JAMES M DUBIN
ALICE BELISLE EATON
ANDREW J EHRLICH
GREGORY A EZRING
LESLIE GORDON FAGEN
MARC FALCONE
ANDREW C FINCH
BRAD J FINKELSTEIN
ROBERTO FINZI
PETER E FISCH
ROBERTC FLEDER
MARTIN FLUMENBAUM
ANDREW J FOLEY
HARRIS B FREIDUS
MANUEL S FREY
KENNETH A GALLO
MICHAEL E GERTZMAN
PAUL D GINSBERG
ADAM M GIVERTZ
ROBERT D GOLDBAUM
NEIL GOLDMAN
ERICS GOLDSTEIN
ERIC GOODISON
CHARLES H GOOGE, JR
ANDREW G GORDON
UDI GROFMAN
NICHOLAS GROOMBRIDGE
BRUCE A GUTENPLAN
GAINES GWATHMEY, III
ALAN S HALPERIN
CLAUDIA HAMMERMAN
GERARD E HARPER
BRIAN S HERMANN
ROBERT M HIRSH
MICHELE HIRSHMAN
JOYCE S HUANG
DAVIDS HUNTINGTON
MEREDITH J KANE
ROBERTA A KAPLAN
BRAD S KARP
JOHN C KENNEDY
-NOT ADMITTED TO THE NEW YORK BAR
ALAN W KORNBERG
DANIEL J KRAMER
DAVID K LAKHDHIR
STEPHEN P LAMB*
JOHN E LANGE
DANIEL J LEFFELL
XIAOYU GREG LIU
JEFFREY D MARELL
MARCO V MASOTTI
EDWIN S MAYNARD
DAVID W MAYO
ELIZABETH R McCOLM
MARK F MENDELSOHN
TOBY S MYERSON
JOHN E NATHAN
CATHERINE NYARADY
JOHN J O'NEIL
ALEX YOUNG K OH
BRAD R OKUN
KELLEY D PARKER
ROBERT P PARKER*
MARC E PERLMUTTER
MARK F POMERANTZ
VALERIE E RADWANER
CARL L REISNER
WALTER G R1CC1ARDI
WALTER RIEMAN
RICHARD A ROSEN
ANDREW N ROSENBERG
PETER J ROTHENBERG
JACQUELINE P RUBIN
RAPHAEL M RUSSO
JEFFREY D SAFERSTEIN
JEFFREYS SAMUELS
DALE M SARRO
TERRY E SCHIMEK
KENNETH M SCHNEIDER
ROBERTS SCHUMER
JAMES H SCHWAB
JOHN M SCOTT
STEPHEN J SHIMSHAK
DAVID R SICULAR
MOSES SILVERMAN
STEVEN SIMKIN
JOSEPH J SIMONS
MARILVN SOBEL
AUDRAJ SOLOWAY
TARUN M STEWART
ERIC ALAN STONE
AIDAN SYNNOTT
ROBYN F TARNOFSKY
MONICA K THURMOND
DANIEL J TOAL
MARK A UNDERBERG
LIZA M VELAZQUEZ
MARIA T VULLO
LAWRENCE G WEE
THEODORE V WELLS JR
BETH A WILKINSON
STEVEN J WILLIAMS
LAWRENCE I WITDORCHIC
MARK B WLAZLO
JULIA TM WOOD
JORDAN E YARETT
KAYE N YOSHINO
TONG YU
TRACEYA ZACCONE
BY HAND
500 Pearl Street
New York, NY 10007
Dear Judge Jones:
We represent plaintiff, Edith Windsor, in the above-captioned matter. As
Your Honor is aware, two dispositive motions are pending in this case, plaintiffs motion
for summary judgment and the Bipartisan Legal Advisory Group's motion to dismiss.
We write to inform Your Honor of some recent developments concerning
Edith Windsor's health. As you know, Ms. Windsor is 82 years old and suffers from a
serious heart condition. In recent months she has been experiencing a severe allergic
reaction which her doctors have been unable to diagnose with precision. Because of Ms.
Windsor's heart condition, she is limited in what medications she can take to alleviate the
symptoms. As a result, plaintiff has been confined to her apartment for large periods of
time during the past months and her medical condition is obviously not good.
A-1272
PAUL, WEISS, RI FKI ND, WHARTON & GARRISON LLP
We write to inform Your Honor of these developments to the extent that
plaintiffs health has any bearing on the timing of the Court's consideration of the
pending motions. We are, of course, acutely aware of the press of work facing the Court,
and raise these issues simply in an effort to ensure that the Court has all potentially
relevant information.
Roberta A. Kaplan
cc: James D. Esseks, Esq.
Paul Clement, Esq.
Jean Lin, Esq.
A-1273
PAUL, W EISS, RIFKIND, WHARTON & GARRISON LLP
1285 AVENUI i OF THE AMERICAS
TELEPHONE (2 1 Z) 3 7 3 - 3 0 0 0
LLOYD K GARRI
RANDOLPH E PAllJL
SI MON H RIFK]N[|:
LOUI S S WEI SS
JOHN F WHARTON
WRI TER' S DIRECT
(212)
TER S DII
(212)
373
WRI TER S DIRECT
373
WRI TER' S DI RECT
rkaplan
( 1946- 1991)
( 1946- 1956)
( 1950- 1995)
( 1927- 1950)
( 1927- 1977)
DI AL NUMBER
3086
FACSI MI LE
2037
E-MAIL ADDRESS
ipaulweiss.com
January 23, 2012
By Hand
The Honorable Barbara S. Jones
500 Pearl Street
New York, NY 10007
IT 3 6 0 1 , FORTUNE PLAZA OFFI CE TOWER A
BEI JI NG 100020
TELEPHONE ( 86- I O) 5 8 2 8 6 3 0 0
' 3A CHATER ROAD, CENTRAL
i HONG KONG
TELEPHONE ( 852) 2 8 4 6 - 0 3 0 0
ALDER CASTLE
l O NOBLE STREET
LONDON EC2V 7JU U K
TELEPHONE ( 44 20) 7 3 67 1 6OO
2-2 UCHI SAI WAI CHO 2- CHOME
CHI YODA- KU, TOKYO 1 OO-OO 1 1 JAPAN
TELEPHONE ( 81- 3) 3 597 - 8101
PO BOX 226
TELEPHONE (4 16) 5 0 4 - 0 5 2 0
2001 K STREET, NW
WASHI NGTON DC 2 0 0 0 6 - 1 0 4 7
TELEPHONE ( 202) 2 2 3 - 7 3 0 0
500 DELAWARE AVENUE, SUI TE 200
POST OFFI CE BOX 32
WI LMI NGTON, DE 1 9899- 003 2
TELEPHONE ( 302) 655- 4410
MATTHEW W ABBOTT
AL L AN J ARFFA
ROBERT A ATKI NS
DAVI D J BALL
JOHN F BAUGHMAN
LYNN B BAYARD
DANI EL J SELLER
CRAI G A BENSON*
MI TCHELL L BERG
MARK S BERGMAN
BRUCE BI RENBOI M
H CHRI STOPHER BOEHNI NG
ANGELO BONVI NO
JAMES L BROCHI N
DAVI D W BROWN
SUSANNA M BUERGEL
PATRICK S CAMPBELL*
JESSI CA S CAREY
JEANETTE K CHAN
YVONNE Y F CHAN
LEWI S R CLAYTON
JAY COHEN
KEL L EYA CORNI SH
CHARLES E DAVI DOW
DOUGLAS R DAVIS
ARI EL J DECKELBAUM
JAMES M DUBI N
ANDREW J EHRLI CH
GREGORY A EZRI NG
MARC FALCONE
ANDREW C FI NCH
BRAD J F1NKELSTEI N
ROBERTO FI NZI
PETER E FI SCH
ROBERT C FLEDER
MARTI N FLUMENBAUM
ANDREW J FOLEY
HARRI S B FREI DUS
MANUEL S FREY
KENNETH A GALLO
MI CHAEL E GERTZMAN
PAUL D GI NSBERG
ADAM M GI VERTZ
ROBERT D GOLDBAUM
NEI L GOLDMAN
ERIC S GOLDSTEI N
ERIC GOODISON
CHARLES H GOOGE, JR
ANDREWG GORDON
UDI GROFMAN
BRUCE A GUTENPLAN
AL AN S HALPERI N
JUSTI N G HAMI LL
CLAUDI A HAMMERMAN
GERARD E HARPER
BRI AN S HERMANN
ROBERT M H' RSH
MI CHELE HI RSHMAN
JOYCE S HUANG
DAVI DS HUNTI NGTON
MEREDI TH J KANE
ROBERTA A KAPLAN
*NOT ADMITtED TO THE NEW YORK BAR
BRAD S KARP
JOHN C KENNEDY
AL AN W KORNBERG
DANI EL J KRAMER
DAVI D K LAKHDHI R
STEPHEN P LAMB*
JOHN E LANGE
DANI EL J LEFFELL
XIAOYU GREG LI U
JEFFREY D MARELL
MARCO V MASOTTI
EDWI N S MAYNARD
DAVI D W MAYO
ELI ZABETH R MCCOLM
MARK F MENDELSOHN
TOBY S MYERSON
JOHN E NATHAN
CATHERI NE NYARADY
JOHN J O' NEI L
ALEX YOUNG K OH
BRAD R OKUN
KELLEY D PARKER
ROBERT P PARKER*
MARC E PERLMUTTER
MARK F POMERANTZ
VALERI E E RADWANER
CARL L REI SNER
WALTER G R1CCIARDI
WALTER RI EMAN
RI CHARD A ROSEN
ANDREW N ROSENBERG
RAPHAEL M RUSSO
JEFFREY B SAMUELS
DALE M SARRO
TERRY E SCHI MEK
ROBERT B SCHUMER
JAMES H SCHWAB
JOHN M SCOTT
STEPHEN J SHI MSHAK
DAVI D R SI CULAR
MOSES SI LVERMAN
STEVEN SI MKI N
JOSEPH J SI MONS
MARI LYN SOBEL
AUDRAJ SOLOWAY
TARUN M STEWART
ERIC AL AN STONE
AI DAN SYNNOTT
ROBYN F TARNOFSKY
MONI CA K THURMOND
DANI EL J TOAL
LI ZA M VELAZQUEZ
MARI A T VULLO
LAWRENCE G WEE
THEODORE V WELLS, JR
BETH A WI LKI NSON
STEVEN J WI LLI AMS
MARK B WLAZLO
JULI A TM WOOD
JORDAN E YARETT
KAYE N YOSHI NO
TONG YU
TRACEYA ZACCONE
Dear Judge Jones:
We write on behalf of the plaintiff, Edith Schlain Windsor, in the above-
captioned matter to bring to the Court's attention two recent developments since the
submission of the materials in connection with plaintiffs motion for summary judgment.
First, in the affidavit submitted by our expert Professor Michael Lamb on
June 24, 2011, he cited as "in press" an article by Charlotte J. Patterson and Jennifer L.
Wainwright entitled "Adolescents with Same-Sex Parents: Findings from the National
Longitudinal Study of Adolescent Health." That article has since been published by
Oxford University Press in a book entitled Adoption by Lesbians and Gay Men: A New
Dimension in Family Diversity (David M. Brodzinsky & Adam Pertman eds., 2012), a
copy of which we enclose for the Court's reference.
We submit this article to the Court because the issue of whether there has
been sufficient academic study of adolescents (as opposed to younger children) raised in
families with same-sex parents was disputed by the Bipartisan Legal Advisory Group
("BLAG") in this case. {See, e.g., Opp'n to PL's Mot. for Summ. J. at 23-24.) In the
A-1274
PAUL] WEISS, RI FKI ND, WHARTON
GARRI SON LLP
enclosed article, the authors conclude that the "results do not support the idea that
adolescent outcomes are shaped by parental sexual orientation . . . ." (Patterson &
Wainwright, supra at 108.)
Second, as Your Honor may recall, in the papers it submitted in opposition
to plaintiffs motion for summary judgment, BLAG made certain arguments regarding
the role of the federal government, as opposed to state governments, in the area of
domestic relations. {See, e.g., BLAG's Local Rule 56.1 Response to PL's Statement of
Material Facts \ 83 (disputing plaintiffs assertion that "[mjarriage in the United States
has been defined and controlled historically at the state level").) However, during a
recent oral argument in a related case in the Northern District of California, in response to
a question on this issue posed by the district court judge, counsel for BLAG made the
following material concession:
THE COURT: The few unique examples cited by BLAG . . . when
Congress legislated in the area of domestic relations occurred when
Congress was explicitly acting in the role of state government. Are there
any historical examples in which Congress legislated on behalf of the
federal government, in the area of domestic relations?
[...]
MR. DUGAN: Your Honor, our research hasn't shown that there are
historical examples which Congress has legislated on behalf of the federal
government in the area of domestic relations.
(Tr. of Oral Arg. at 10:15-20, 18:2-5, Golinski v. Office ofPers. Mgmt., No. C 10-257
(JSW) (N.D. Cal. Dec. 16, 2011).) We enclose a copy of the entire transcript for the
Court's reference as well.
Roberta A. Kaplan
Enclosures
cc (via email): Paul D. Clement, Esq.
James D. Esseks, Esq.
Jean Lin, Esq.
A-1275
Volume 1
Pages 1 - 80
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE JEFFREY S. WHITE, JUDGE
KAREN GOLINSKI, )
)
Plaintiff, )
)
VS. ) NO. C 10-00257 JSW
)
UNITED STATES OFFICE OF PERSONNEL )
MANAGEMENT and JOHN BERRY, )
Director of the United States )
Office of Personnel Management, in )
his official capacity, )
) San Francisco, California
Defendants. ) Friday
) December 16, 2011
___________________________________) 9:56 a.m.

TRANSCRIPT OF PROCEEDINGS
APPEARANCES:

For Plaintiff: MORRISON & FOERSTER LLP
425 market Street
San Francisco, California 94105-2482
BY: RITA F. LIN, ESQ.
JAMES R. MCGUIRE, ESQ.
GREGORY P. DRESSER, ESQ.
and
LAMBDA LEGAL
3325 Wilshire Boulevard
Suite 1300
Los Angeles, California 90010
BY: TARA L. BORELLI, ESQ.
JON W. DAVIDSON, ESQ.

(Appearances continued, next page)

Belle Ball, CSR #8785, RMR, CRR
Official Reporter - U.S. District Court
(415) 373-2529

A-1276
APPEARANCES, CONTINUED:

For the United States: U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, N.W.
BY: TONY WEST, ESQ.
ASSISTANT ATTORNEY GENERAL

For Intervenor Bipartisan Legal Advisory Group:
BANCROFT, PLLC
1919 M Street, N.W.
Suite 470
BY: CONOR DUGAN, ESQ.

Reported by: BELLE BALL, CSR #8785, RMR, CRR
Official Reporter, U.S. District Court

(415) 373-2529

A-1277
3
1 FRIDAY, DECEMBER 16, 2011 9:56 A.M.
2 P R O C E E D I N G S
3 THE CLERK: Case No. C-10-257, Karen Golinski versus
4 United States Office of Personnel Management, et al.
5 Counsel, please step forward to the podiums and state
6 your appearances.
7 MS. LIN: Your Honor, Rita Lin, I'm an associate at
8 Morrison & Foerster, for Plaintiff Karen Golinski.
9 THE COURT: Good morning.
10 MS. LIN: I'll be addressing Your Honor's Questions 6
11 through 10.
12 THE COURT: All right. Do me a favor, since I might
13 not remember two minutes from now, you can stand up and tell me
14 who -- the primary counsel or the first counsel that's arguing
15 can say, "I'm going to defer to Ms. Lin," or whatever. Okay?
16 MS. LIN: Your Honor, I'd also like to introduce
17 Ms. Golinski and her wife, Amy Cunninghis, who are here today.
18 THE COURT: Welcome.
19 MR. MCGUIRE: Good morning, Your Honor. James
20 McGuire, Morrison & Foerster, for Plaintiff Golinski.
22 MS. BORELLI: Good morning, Your Honor. Tara Borelli
23 with Lambda Legal, on behalf of the Plaintiff. And I will be
24 addressing Questions 1 through 5.

(415) 373-2529

A-1278
4
1 MR. DAVIDSON: Good morning, Your Honor. Jon
2 Davidson from Lambda Legal.
4 MR. DRESSER: Good morning, Your Honor. Gregory
5 Dresser, Morrison & Foerster, for Plaintiff Karen Golinski.
6 THE COURT: Good morning. Welcome.
7 MR. WEST: Good morning, Your Honor. Tony West,
8 Assistant Attorney General for the Civil Division, on behalf of
9 the United States.
10 THE COURT: Good morning. Welcome.
11 MR. DUGAN: Good morning, Your Honor. Conor Dugan
12 for the intervenor.
14 Counsel, would you mind having a seat at this point,
15 because I want to make a statement just to put the matter in
16 context.
17 Procedurally -- and you don't have to come forward, I
18 just want to make sure for housekeeping reasons -- I assume
19 this is correct, based upon having received additional
20 information from the parties, but just for the Record, Ms. Lin,
21 have you received and had an opportunity to review the Court's
22 questions?
23 MS. LIN: We have, Your Honor.
24 THE COURT: And, Mr. West?
25 MR. WEST: Yes, Your Honor, we have.

(415) 373-2529

A-1279
5
1 THE COURT: And --
2 MR. DUGAN: Yes, Your Honor.
3 THE COURT: Okay, very well. Thank you.
4 So, I just want to read a statement -- or make a
5 statement that puts this in context, and maybe gives the
6 parties a little bit more of the Court's thinking as you
7 approach these questions, and then we will go forward from
8 there.
9 Some of these things may be obvious, but this is
10 what -- the facts and the matters that the Court has taken
11 notice of as it prepared for this very important hearing.
12 Ms. Golinski, an employee of the office of staff
13 attorneys for the Ninth Circuit Court of Appeals, is, under the
14 laws of the State of California, married to her long-time
15 domestic partner and co-parent. After seeking to enroll her
16 spouse in the family coverage plan by her employer, the
17 Administrative Office of the Courts advised Ms. Golinski that
18 her election form would not be processed because her spouse
19 shared her gender and the extension of coverage to her spouse
20 would violate the Defense of Marriage Act, or DOMA, D-O-M-A,
21 and that's at 1 United States Code, Section 7.
22 Notwithstanding multiple orders requiring the
23 extension of coverage authored by Chief Judge Kozinski, sitting
24 as the Ninth Circuit administrator, the Office of Personnel
25 Management instructed Ms. Golinski's health insurance carrier

(415) 373-2529

A-1280
6
1 not to enroll her spouse on the basis that DOMA prohibited such
2 coverage.
3 Ms. Golinski filed a mandamus action to enforce Chief
4 Judge Kozinksi's orders, which was dismissed by this Court.
5 Following dismissal of her original suit based on the
6 procedural complexities of the mandamus action, Ms. Golinski
7 filed an amended complaint presenting a direct challenge to the
8 constitutionality of Section 3 of DOMA as applied.
9 Specifically, Ms. Golinski alleges that, by operation
10 of DOMA, she has been denied marriage-based federal benefits
11 that are available to similarly-situated heterosexual married
12 persons, in violation of her rights to equal protection and due
13 process as secured by the United States Constitution.
14 I want to say a word about the Equal Protection
15 Clause because it is something that is central to the case.
16 The history of the Equal Protection Clause is a colorful and
17 storied one. After nearly a century of sanctioning slavery, in
18 amending the Constitution, the American people sought to
19 guarantee equality to all persons, thereby expanding the
20 breadth of the promise of equality founded in the Declaration
21 of Independence. The amendment changed the Constitutional text
22 to read that all persons were created equal, not just that all
23 men were created equal. Redeeming the Constitution from the
24 sins of slavery, the phrase, quote, "We the People," unquote,
25 made equality a binding guarantee of the Constitution and

(415) 373-2529

A-1281
7
1 extended protection to all persons.
2 This historical transformation is marked by rulings
3 of the Supreme Court honoring the promise of equality for all
4 persons, including Brown versus Board of Education, striking
5 down racial segregation; Reed versus Reed, prohibiting
6 discrimination against women; and most recently, Romer v.
7 Evans, striking down discrimination based on sexual
8 orientation.
9 Here, the Court is faced with enforcing the Equal
10 Protection Clause in the context of a fundamental right, that
11 is marriage. As far back as 1888, our Supreme Court recognized
12 that marriage is "the most important relation in life," and
13 "the foundation of the family and of society, without which
14 there would be neither civilization nor progress." More
15 recently, the Court established that the right to marry and to
16 establish a home and bring up children, quote, "is a central
17 part of the liberty protected by" unquote, the Constitution.
18 The question before this Court is whether the law denying gay
19 men and lesbians equal access to the benefits of marriage
20 contravenes the Constitution's guarantee of the equal
21 protection and due process of law.
22 The purpose of this hearing is to have the parties
23 help the Court resolve the constitutionality of Section 3 of
24 DOMA, as applied to a lawfully married same-sex couple. In
25 light of the Executive's pronouncement that DOMA is

(415) 373-2529

A-1282
8
1 unconstitutional and will no longer -- and will no longer
2 defend it in court, the Bipartisan Legal Advisory Group, or
3 BLAG, has taken up the defense of the statute. The Court is,
4 frankly, concerned about the defense of the statute by a
5 non-party.
6 In this case, the Court is confronted with an issue
7 of equal access to one of the most central fundamental freedoms
8 of our time: the freedom to marry the person of our choice.
9 Interestingly, the Court must resolve the issue as presented by
10 all three branches of government.
11 Now, just a housekeeping point here. The Court
12 instructs the parties to refrain from rearguing the material
13 covered in their extensive briefing on the issues, and rather,
14 to focus on the Court's questions. Once the parties have
15 addressed the Court's specific questions, the parties will have
16 an opportunity to address any other issues they may wish to
17 bring to the Court's attention.
18 With that, let us begin, and let us bring forward
19 counsel who are going to be dealing with the initial questions,
20 or the first question.
21 Now, before we -- even before we do that, counsel
22 has -- the parties have filed additional materials in response
23 to the Court's questions, which thereby manifests what this
24 Court calls its vacuum theory, which is, nature hates a vacuum
25 and lawyers hate a vacuum, and when given an opportunity to

(415) 373-2529

A-1283
9
1 fill that vacuum with briefing or argument which was invited by
2 the Court, will do so.
3 And so the Court has reviewed -- although briefly,
4 given the amount of time involved -- the additional authorities
5 submitted late yesterday afternoon by both parties. The Court
6 has concerns that some of the authorities indicate that perhaps
7 the parties may have misunderstood or misinterpreted some of
8 the questions posed. Accordingly, the Court would like to
9 clarify its position with respect to those questions.
10 Although it is clear that the parties have received
11 the Court's proposed questions for this hearing, for the sake
12 of those in the gallery and the completeness of the oral record
13 for whatever court may review this matter, the Court will read
14 into the Record each of the questions before engaging the
15 parties' arguments. I don't normally do that but, given the
16 nature of the case, I thought it would be helpful to do so.
17 And I'm going -- I'll read the questions in their
18 entirety, although I would obviously like counsel to respond to
19 the subparts. And I'm going to leave out the specific pin
20 cites and just mention the names of the cases, since the
21 citations are in the Record since the Court e-filed its
22 questions.
23 Question No. 1: The passage of Section 3 of the
24 Defense of Marriage Act ("DOMA") marks a unique departure from
25 the recognition the federal government historically has

(415) 373-2529

A-1284
10
1 afforded to State marital status determinations. And I have
2 this citing, Elk Grove Unified School District versus Newdow
3 case, N-E-W-D-O-W, holding that "the whole subject of the
4 domestic relations of husband and wife, parent and child,
5 belongs to the laws of the States and not to the laws of the
6 United States." See also Boggs v. Boggs, B-O-G-G-S, holding
7 that family law, including "declarations of status, for
8 example, marriage, annulment, divorce, custody and paternity,"
9 is the archetypal area of local concern.
10 Question 1.a: As DOMA represents a stark departure
11 from the federalist tradition and implicates a core State power
12 to govern domestic relations, is there any authority for the
13 Court to subject the statute to a more rigorous constitutional
14 scrutiny?
15 1.b: The few unique examples cited by BLAG --
16 B-L-A-G -- when Congress legislated in the area of domestic
17 relations occurred when Congress was explicitly acting in the
18 role of state government. Are there any historical examples in
19 which Congress legislated on behalf of the federal government,
20 in the area of domestic relations?
21 Now, I usually don't do this much talking, ever, but
22 certainly not in court, except when I'm giving jury
23 instructions. But I think it's important because the parties
24 have given the Court additional materials.
25 With respect to Question 1.a, and as interpreted by

(415) 373-2529

A-1285
11
1 BLAG, Question 7.a, which the Court shall have the parties
2 address separately, the Court has received the authorities from
3 BLAG, and is concerned that the group, this group seeks to
4 reframe the question posed. The Court is not concerned about
5 federal officials in any particular case having any authority
6 to determine whether any particular individual is validly
7 married under state law. In other words, the Court is
8 concerned, not with the specific adjudication, whether
9 individuals are married under state law, as there is no contest
10 here that Ms. Golinski is validly married under California law.
11 Rather, the Court is concerned with the new proposition that
12 the federal government should be involved with the
13 determination, whether any particular state's set of
14 requirements defining marriage is inherently valid, and thus
15 deserving of recognition for the purposes of federal benefits.
16 The Court's question addresses the introduction of the federal
17 definition and requirements for marriage, which have
18 historically been an area of exclusive state dominion.
19 So, with that, I'm going to start with Question 1.a,
20 and I think it is appropriate to have Plaintiff initially
21 respond to Question 1.a. And would you mind, as you get up,
22 restate your name, just so the Record's clear who's speaking.
23 MS. BORELLI: Sure. Thank you, Your Honor. My name
24 is Tara Borelli.
25 And, with respect to Question 1.a, we think that

(415) 373-2529

A-1286
12
1 Romer versus Evans speaks particularly powerfully to the
2 Court's question. Romer, just as this case presents,
3 confronted a question about an amendment to the Colorado
4 Constitution that was an unprecedented enactment. And the
5 Court noted that, and said that the absence of precedent from
6 the two is instructive. Discriminations of an unusual
7 character especially suggest careful consideration to determine
8 whether they are obnoxious to the constitutional provision.
9 We think this also makes sense, just as a matter of
10 first, principles, Your Honor, if we step back for a moment and
11 consider why it is that the courts subject some actions of
12 other branches of government to more exacting scrutiny. It's
13 when a branch might overreach, like the legislative branch, by
14 singling out a vulnerable minority group for deferential
15 treatment. And that's particularly a circumstance when the
16 ordinary political process is unlikely to correct that kind of
17 a problem.
18 This unprecedented action by Congress presents a
19 similar problem. Where the federal government overreaches in a
20 way that targets a vulnerable minority group, that similarly is
21 quite unlikely to be rectified by the ordinary political
22 process, and that's why it's certainly appropriate for the
23 Court to subject DOMA, at a minimum, to a careful and searching
24 form of rational-basis review.
25 THE COURT: All right. Thank you, Counsel.

(415) 373-2529

A-1287
13
1 I think it's appropriate at this point, given the
2 Executive Branch's position, to ask Assistant Attorney General
3 West to respond next to address the Court's question next, 1.a.
4 MR. WEST: Your Honor, we certainly believe that this
5 Court ought to subject DOMA to a heightened scrutiny analysis.
6 We think it's appropriately done under the Equal Protection
7 Clause.
8 With respect to this specific question that the Court
9 asks, we have not been able to find any authority on point for
10 the proposition that a -- a statute that deals with domestic
11 state relations should be subjected to more rigorous scrutiny.
12 But, we don't think that means DOMA should not get that
13 scrutiny from this Court.
14 We think that, as a matter of -- of course, that
15 there's a distinction to be made, and the Srail case made this
16 distinction. The District Court in the Central District of
17 California made this distinction between the issue of
18 allocating benefits, which we think is exactly what this case
19 is about, and sanctifying a relationship, which is more toward
20 the question of domestic relations that the Court -- the Court
21 discusses.
22 And, we would also note that there are federal laws
23 which do not adopt wholesale the state definition of marriage,
24 Social Security laws, tax laws, retirement laws. Those are
25 just some examples. But, again, we think that's why this is

(415) 373-2529

A-1288
14
1 probably a case that is better analyzed on the equal protection
2 context and, therefore, meriting (Inaudible).
3 THE COURT: Would you re-identify yourself.
4 MR. DUGAN: Your Honor, Connor Dugan, for BLAG.
5 THE COURT: Thank you. Welcome.
6 MR. DUGAN: If I could just pass out -- we have a lot
7 of cases, I realize, Your Honor, and I brought copies for --
8 THE COURT: Are these more than the ones that you
9 cited --
10 MR. DUGAN: No, these are the ones that went in
11 yesterday.
12 THE COURT: All right. I have copies of all of
13 those. I actually have a binder with each case.
14 (Off-the-Record discussion)
15 THE COURT: Certainly enough paper. We don't need to
16 add to that.
17 MR. DUGAN: Your Honor, we agree with Mr. West. We
18 have not been able to find any string of case law that would
19 subject this statute to more rigorous scrutiny because of --
20 because of what it says about marriage. We also would, with
21 all due respect, say that this is not a stark departure. As
22 Mr. West said, there are statutes on the books right now,
23 besides DOMA, that decide whether or not to recognize a state
24 marriage for immigration benefits, for tax benefits, for a
25 variety of things which we briefed. And, I'm not going to

(415) 373-2529

A-1289
15
1 reargue those here, Your Honor.
2 We also cited the De Sylva case, in which the Court
3 said that a state wouldn't be entitled to use the word "child"
4 or "children" any way it wanted, but rather, would -- if it was
5 strange to the familiar way of using it. And in that case, in
6 concurrence, Justices Douglas and Black made clear that whether
7 or not Congress had to -- was going to adopt the state law, was
8 -- was a question for Congress to make.
9 THE COURT: But there are certain -- there are other
10 statements in the majority opinion in that case, albeit --
11 dictum, that say if the Court were to begin to making fine
12 distinctions about what constitutes marriage and what doesn't,
13 that would have constitutional implications.
14 Do you agree with that? Did you find those cites as
15 well?
16 MR. DUGAN: I --
17 THE COURT: For example, Page 581.
18 MR. DUGAN: Yeah, no, just -- in terms of
19 specifically what -- what you are asking Your Honor, I just
20 want to make sure I understand the question.
21 THE COURT: Well, you understood the question
22 correctly, but you were citing concurrence. And I was saying
23 that there was -- although, again, I only had an opportunity to
24 review these matters briefly, these cases, there was language
25 in those cases about making -- that it's problematic from a

(415) 373-2529

A-1290
16
1 constitutional standpoint, where the state -- where the federal
2 government is making definitions with respect to what is
3 marriage, what is -- what is parenthood, et cetera.
4 And so I'm saying, those cases, you cited concurrence
5 in those cases. I'm not sure that they stand for the
6 proposition that you're citing them for.
7 MR. DUGAN: Well, the first quotation wasn't from the
8 concurrence. It was actually from the majority. And the
9 majority said states can't just define "children" any way they
10 want. If they went beyond sort of the common usage, Congress
11 could step in, and it could define.
12 Here, we already have Congress deciding which
13 marriages it will recognize for purposes of many different --
14 excuse me, several different laws. So this is not -- this
15 isn't an injection into domestic law, this is simply a question
16 of recognizing -- what Congress is going to recognize.
17 THE COURT: All right. All right.
18 Would you like to reply?
19 MS. LIN: Yes. And, I think this begins to take us
20 into the territory of Question 1.b, if that is okay with the
21 Court.
22 THE COURT: All right, then let's do that. And, I
23 appreciate that.
24 But before I get into that, to keep this on the same
25 track, Mr. West, is there anything would you like to say

(415) 373-2529

A-1291
17
1 further in response to what BLAG has stated?
2 MR. WEST: No, Your Honor.
3 THE COURT: All right.
4 MS. LIN: I'm sorry.
5 THE COURT: Let's go to Question 1.b, and I was going
6 to put that question, in the first instance, to BLAG.
7 MS. BORELLI: Sure. And, just to tack on to what was
8 discussed --
9 THE COURT: Yes.
10 MS. BORELLI: -- we agree with the Court's reading of
11 De Sylva versus Ballentine. In the majority opinion, the Court
12 says: There is no federal law of domestic relations; it is a
13 matter of state law. So we agree with the Court's reading on
14 that.
16 MS. BORELLI: To turn to Question b --
17 THE COURT: Actually, I actually wanted BLAG to
18 answer this in the first instance.
19 MS. BORELLI: I apologize.
20 THE COURT: I'll give you an opportunity, because I
21 think the questions, the way I framed the question was to
22 challenge one side or the other, and then give the other an
23 opportunity to say, you know, whatever they want to say.
24 So I'll start with BLAG, and then you will have an a
25 full opportunity.

(415) 373-2529

A-1292
18
1 Counsel?
2 MR. DUGAN: Your Honor, our research hasn't shown
3 that there are historical examples which Congress has
4 legislated on behalf of the federal government in the area of
5 domestic relations. We would, of course, go back to fact that
6 the federal government today does, and has in the past, drawn
7 lines about which particular relationships that states define
8 that they'll recognize.
10 Mr. West?
11 MR. WEST: But, what is not the case, we have not
12 seen historically, is the federal government picking and
13 choosing which set of legally married couples, similarly
14 situated, may receive benefits and be denied benefits simply on
15 the basis of sexual orientation or simply on the basis of
16 something that might be unpopular. And so, we've not seen that
17 historically, and that is why we think this case, which
18 presents that question squarely, is particularly a good one for
19 that analysis.
20 THE COURT: All right. Counsel?
21 MS. BORELLI: Your Honor, to the extent the Court is
22 not aware of it, there was an amicus brief submitted on behalf
23 of family law professors in the Commonwealth and Gill cases on
24 appeal before the First Circuit, and it addresses in great
25 detail this particular question. And that brief actually takes

(415) 373-2529

A-1293
19
1 upon itself the task of cataloging all of the examples of
2 federal statutes, and cases that have been cited by BLAG,
3 previously by DOJ, and by amici, supporting their position.
4 We did not submit that as additional authority
5 because it, of course, contains argument. But we have copies
6 today, and would be happy to file a copy electronically if the
7 Court would find that helpful.
8 What this brief explains -- and each and every one of
9 the supplemental authorities submitted yesterday by BLAG can
10 fit into these particular categories -- is that we have
11 categories of federal treatment of state marital status, but
12 absolutely none of them displace the requirement of a valid
13 state marriage.
14 So, for example, there is one category which is the
15 vast majority of federal statutes and regulations. They may
16 use terms such as "spouse," "marriage," or even "parent."
17 There is no federal definition. They implicitly and always
18 rely on state definitions of those terms.
19 There's a second category of some small number of
20 statutes that rely explicitly on state status. And they do so
21 by incorporating whether a marriage is valid according to place
22 of celebration or place of domicile.
23 There is a third category, and I think this is where
24 some of the controversy or argument has arisen by BLAG. But,
25 these are equal -- easily understood as cases that again do not

(415) 373-2529

A-1294
20
1 displace state marital status. This third category of statutes
2 where a valid state marriage is treated as necessary but not
3 sufficient, and these have to do with particular areas, like
4 immigration or Social Security, where the federal government
5 may have particular policy interest and applies additional
6 requirements for a person to qualify for particular benefits or
7 for particular immigration status.
8 So, for example, the Immigration and Nationality Act
9 imposes additional requirements on top of the requirement of
10 state marriage. That parties have been present for the
11 marriage and that they live together. Those are neutral
12 requirements. They apply equally to all spouses, and they
13 relate to particular policy reasons that the government has in
14 making sure people are not entering fraudulent marriages for
15 purposes of getting those benefits.
16 Again, each and every category does not begin to
17 displace state marriages. Instead, they all rely on it and
18 incorporate the requirement of valid marital status as
19 determined by the States.
20 THE COURT: So that's where you -- the Plaintiffs
21 would stick with those cases, where the federal -- federal
22 statutes and Congress purport to actually impose their own
23 requirements with respect to what they view as a valid marriage
24 for purposes of meeting those statutes such as Social Security
25 or immigration.

(415) 373-2529

A-1295
21
1 MS. BORELLI: That's precisely right. The Court --
2 rather, the federal government might have an interest in saying
3 a couple must not only have been married, they must have been
4 married for a particular period of time in order to receive a
5 certain Social Security benefit. That does not displace the
6 state marital status; it relies upon it, and imposes an
7 additional policy-specific neutral requirement for eligibility
8 for benefits.
9 THE COURT: All right, thank you.
10 Any reply?
11 MR. DUGAN: Yes, Your Honor.
12 THE COURT: Briefly, please.
13 MR. DUGAN: Yeah, briefly.
14 The idea that that -- that the Social Security
15 statute, for instance, isn't displacing something I think is
16 false. And, and DOMA -- if DOMA is displacing, in this case.
17 DOMA does not displace any state law. Congress can draw lines
18 about where it wants to give benefits and to give burdens.
19 THE COURT: How does it not displace it when,
20 basically, the State of California or other states say marriage
21 can be between a -- same-sex marriage is valid, and the federal
22 government says "That's is all well and good, but we're not
23 going to recognize that, for very important federal purposes'?
24 How is that not a displacement?
25 MR. DUGAN: Because, in this case, Ms. Golinski and

(415) 373-2529

A-1296
22
1 her wife are still married. It hasn't displaced their
2 marriage.
3 THE COURT: But it's displaced the benefits of their
4 marriage.
5 MR. DUGAN: Well, and Congress gets to draw the lines
6 of where benefits -- what benefits it wants to give. It
7 certainly can't be the case that Congress has to, basically,
8 rubber-stamp any definition that is given by a state. And I
9 think that was what I was alluding to with the De Sylva case.
10 THE COURT: All right. Mr. West, do you want
11 anything?
13 THE COURT: All right. Let's go to Question No. 2.
14 And this again will be, in the first instance, addressed to
15 BLAG:
16 Why should the Court not subject DOMA to heightened
17 scrutiny for impacting marriage, as a basic fundamental freedom
18 and an exercise of personal decision-making protected by the
19 right of privacy?
20 And I'm citing, for example, Loving versus the
21 Commonwealth of Virginia; In re Levenson.
22 MR. DUGAN: For a number of reasons, Your Honor. The
23 first being that these questions were specifically in the
24 jurisdictional statement of Baker v. Nelson. The question of
25 freedom, the question of privacy. This does not -- also, DOMA

(415) 373-2529

A-1297
23
1 does not implicate the concerns that Justice -- excuse me. The
2 joint opinion in Casey talked about that "At the heart of
3 liberty is the right to define one's own concept of existence
4 of meaning of the universe and the mystery of human life."
5 That's still allowed here. This is simply a question of what
6 Congress is going recognize for purposes of benefits.
7 And, and, it also is the case in Harris versus McRae,
8 which we cited yesterday, that it's established that the
9 government cannot infringe on a fundamental right just by
10 declining to subsidize that fundamental right. And I think
11 that's the distinction we would point to.
12 THE COURT: All right. Mr. West?
13 MR. WEST: Well, Your Honor, I think it is true that
14 no married couple, regardless of their sexual orientation,
15 enjoys a Constitutional right to federal benefits. Which is
16 why I think viewing this in a substantive due-process frame I
17 think may collapse the inquiry in such a way that -- that
18 complicates it, instead of making it more straightforward like
19 it's presented.
20 So, the question is not, you know, whether or not
21 someone has a right to benefits because of the way that --
22 because of -- of their marriage status. And the question is
23 not really one of sanctifying the particular relationship. I
24 think the question is squarely whether the federal government
25 can use this classification to make determinations amongst

(415) 373-2529

A-1298
24
1 otherwise similarly-situated legally married couples.
2 And that is also the reason why Baker V. Nelson,
3 which is cited by BLAG, is of no precedential value here in
4 this case because that's a case, a per curiam decision, a
5 one-sentence per curiam decision, which deals with a question
6 that's not at issue here. It deals with a question from a
7 Minnesota State Supreme Court about whether or not a same-sex
8 union was going to be recognized as marriage under the laws of
9 the State of Minnesota. That is nowhere at issue in this case.
10 Ms. Golinski and her wife are already married.
11 So, the only question is whether or not the federal
12 government has a good reason to be able to make these
13 distinctions, to draw these lines. And, we think the federal
14 government does not.
16 MS. BORELLI: Your Honor, the Court cited in its
17 question, Footnote 5 in the Levenson decision. And we would
18 suggest to the Court that it could do what that decision did,
19 which is to say the only question before the Court is whether
20 the federal government has any adequate interest in denying,
21 for the first time in 230 years, federal recognition to a valid
22 state marriage just because of the sexual orientation of the
23 couples married.
24 We don't believe that the Court needs to reach the
25 question of whether this infringes the fundamental right to

(415) 373-2529

A-1299
25
1 marry. As the Court is aware, that's a question with broad
2 implications. It touches the marriage laws of 44 states. And
3 we think there are other grounds that are more than adequate to
4 hold the DOMA unconstitutional. Of course, the equal
5 protection grounds we have raised, but also impression to have
6 liberty interest identified in Lawrence and applied by the
7 Ninth Circuit in Witt, as well as the right to family autonomy.
8 To be clear, we do believe that the Constitution
9 equally protects the fundamental right of same-sex couples to
10 marry, just as it protect that right for different-sex couples.
11 But we don't believe that is presented by this case. And to
12 say a bit more specifically about why, we're not arguing about
13 the fundamental right to marry. We've not presented that claim
14 in this case, because she is married. Instead, we view this
15 law as having to do with penalizing her choice of the person
16 with whom she's built her family life.
17 So, the Court might think of this as among those who
18 are married, the government disapproves of and burdens those
19 who form that family life with a same-sex partner.
20 I concur with Mr. West's statements about Baker
21 versus Nelson, and I won't repeat our briefing. But if the
22 Court had additional questions about it, then we would be happy
23 to address them.
24 THE COURT: No, that's fine.
25 Do you want to say anything more on this, Counsel?

(415) 373-2529

A-1300
26
1 MR. DUGAN: Just briefly on the Baker v. Nelson
2 point, Your Honor. We put the jurisdictional statement in the
3 record -- or, excuse me, attached it to our motion to dismiss.
4 The question was squarely presented on whether or not Equal
5 Protection Clause requires a state to recognize a same-sex
6 union. We believe it is on all fours with the question here.
7 And, I would just urge you to look at that jurisdictional
8 statement.
9 THE COURT: All right. I understand Counsel's
10 argument on that. Let's move on to Question No. 3.
11 MS. BORELLI: Your Honor?
12 THE COURT: Yes.
13 MS. BORELLI: I apologize for interrupting the Court.
14 Would it be possible to address the Harris v. McRae?
15 THE COURT: Please.
16 MS. BORELLI: So, another case that's been cited for
17 the same proposition in the briefing already is Regan versus
18 Taxation with Representation. And that is a paradigmatic case
19 in which the Court distinguishes the arguments the plaintiffs
20 were making there as having to do with the subsidy because in
21 that case, for example, and in Harris versus McRae, the
22 plaintiffs were saying, "If the government provides me with a
23 particular subsidy, I can engage in more of this fundamental
24 right."
25 So Regan, in ruling on that, said this is quite

(415) 373-2529

A-1301
27
1 different from a case that involves a government-created
2 obstacle.
3 That is precisely what DOMA is. There is no question
4 that DOMA is a government-created obstacle. That is why this
5 is not merely a case about subsidizing a fundamental right;
6 this is about removing an obstacle that the government has
7 created without any adequate reason.
9 MR. DUGAN: Can I say one more word, Your Honor?
10 THE COURT: Probably more than one word.
11 MR. DUGAN: Probably one or two sentences.
12 THE COURT: You'd be the first lawyer that -- that
13 could do that.
14 MR. DUGAN: Harris versus McRae did involve a statute
15 which said that the government was not going to fund a
16 fundamental right. It was the Hyde Amendment. And so I don't
17 think the distinction that has just been put forward actually
18 gives a lot of daylight between that case and this.
19 THE COURT: Well, I'll read that, and Counsel's given
20 me what I need to decide that specific issue.
21 Question No. 3: In Lawrence versus Texas, the
22 Supreme Court, in overruling Bowers v. Hardwick,
23 H-A-R-D-W-I-C-K, noted that the Bowers court had
24 "misapprehended the claim of liberty presented to it," and had
25 failed "to appreciate the extent of the liberty at stake."

(415) 373-2529

A-1302
28
1 Here, BLAG advocates defining the right at issue as the right
2 to same-sex marriage.
3 And my question is, is that too narrow -- I'll read
4 all of the parts, and then you can respond to those, Counsel,
5 both sides -- is that too narrowly defining the right at issue?
6 What is the authority for the position that only the right to
7 opposite-sex marriage is fundamental, as opposed to the right
8 to marriage generally?
9 I'll start with you. Yes, please, Counsel. Thank
10 you.
11 MR. DUGAN: Your Honor, there are a couple of
12 responses to that. First --
13 THE COURT: I assume the first question, the answer
14 to the first question is no, it's not too narrowly --
15 MR. DUGAN: No, that's right, it's not too narrowly.
16 It's hard to understand how government could have a legitimate
17 state interest in preserving the traditional institution of
18 marriage, as Justice O'Connor said in her concurrence in
19 Lawrence, if there's a fundamental right to same-sex marriage.
20 In Glucksberg, the court -- which we cite in our
21 briefs, Glucksberg says that you look to the fundamental rights
22 and liberties which are objectively deep-rooted in this
23 nation's history and tradition, and implicit in the concept of
24 order of liberty, to discover whether or not something is a
25 fundamental right. But it added also that they required -- the

(415) 373-2529

A-1303
29
1 Court is required, in substantive due-process cases, a very
2 careful description of the right at issue.
3 So we would say that Lawrence, because of Baker, also
4 because of what Justice Kennedy said in terms of what this is
5 not reaching, and also what Justice O'Connor says in her
6 concurrence, does not indicate that we have defined the right
7 too narrowly here.
9 MR. WEST: Your Honor, I think Lawrence is
10 instructive here for a number of reasons, but I don't think it
11 is for the reasons of defining what the right at issue is in
12 this case. And so, with respect, I disagree certainly with
13 BLAG, that the right at issue is the right to same-sex
14 marriage.
15 But, we don't believe the right to marriage is at
16 issue in this case at all. Again, Ms. Golinski is already
17 married. There's no Constitutional right to federal benefits,
18 so that -- there's no issue there about whether or not there's
19 a fundamental right that's implicated there.
20 What is at issue is whether or not the federal
21 government can use sexual orientation as the basis to grant
22 health benefits to some legally married couples, yet deny them
23 to others.
25 MS. BORELLI: Your Honor, so let me jump for a moment

(415) 373-2529

A-1304
30
1 to the concurrence of Justice O'Connor that was cited by
2 Mr. Dugan. That reference comes up in an entirely different
3 context, where she talks about, in the hypothetical, the
4 interest in preserving traditional marriage in an
5 equal-protection claim. And, Your Honor, what BLAG has not
6 explained in this case is what that has to do with excluding
7 same-sex couples from recognition at the federal level.
8 But, to answer the Court's question, obviously we
9 disagree with BLAG, and we think that some of the Court's
10 seminal freedom-to-marry cases address this. In Loving, it was
11 not about the right to interracially marry. Zablocki v.
12 Redhail was not about the right to have a child-support --
13 THE COURT: What was that case you just cited?
14 MS. BORELLI: Zablocki v. Redhail was not about the
15 right to have a child-support debtor's marriage. Turner versus
16 Safley was not about the right to have a prisoner marriage.
17 These were cases about the right to marry. One does not define
18 the right by who was excluded. When women won the right to
19 vote, they did not win the right to female vote. They won the
20 right to vote.
21 To the extent that Washington versus Glucksberg is
22 something the Court might look to, I want to make a strong
23 distinction, a different argument about how the Court should
24 understand that decision, and its application here. Glucksberg
25 said there's not a right to assisted suicide that is

(415) 373-2529

A-1305
31
1 fundamental in nature. The court looked at the specific way in
2 which that right would apply in a particular context, but it
3 did not define that right by the characteristics of any
4 particular plaintiff who sought to exercise it.
5 And, that is exactly the mistake that BLAG makes in
6 their argument that there is no right to same-sex marriage
7 (Indicating quotation marks).
8 THE COURT: All right. Counsel, would you like to
9 reply?
10 MR. DUGAN: No, thank you.
13 THE COURT: All right. So, Question No. 4, and the
14 question is -- and then I'm going to have a comment based upon
15 the additional authority that the parties have given the Court.
16 Question 4: Are classifications based on religious
17 affiliation treated as suspect class and subject to heightened
18 scrutiny under an Equal Protection analysis? And the next
19 subpart of that is: How does BLAG distinguish the line of
20 authority treating classifications based on religious
21 affiliation as a suspect class from classification based on
22 sexual orientation?
23 Now, with respect to that question, let me add a
24 thought the Court had, in light of the Court's -- presentation
25 to the Court by counsel. With respect to Question 4, the Court

(415) 373-2529

A-1306
32
1 does not dispute and is not concerned with the line of
2 authority supporting the proposition that discrimination
3 against religious groups is subject to heightened scrutiny
4 based on the group's exercise of religion, which is
5 unquestionably a fundamental freedom. Rather, the Court is
6 concerned with the line of authority indicating that religious
7 groups are afforded heightened security where they are treated
8 as a suspect class under Equal Protection Clause. A number of
9 the additional authorities cited blur this distinction, and the
10 Court is concerned only with the treatment of
11 religiously-affiliated groups as a suspect class.
12 So I don't know if that helps BLAG, but I wanted to
13 elucidate a little bit more the Court's thinking, having read
14 your authorities.
15 MR. DUGAN: Would you like BLAG to go first again?
16 THE COURT: Absolutely, please.
17 MR. DUGAN: Okay. I have --
18 THE COURT: And if these are the same cases,
19 Counsel --
20 MR. DUGAN: That's right, I'm not giving you any.
21 THE COURT: Thank you.
22 MR. DUGAN: Your Honor, we're aware of no line of
23 authority in which -- in which religious affiliation or
24 religion is considered a suspect class. We could find no case
25 that goes through the -- the various factors that cases -- the

(415) 373-2529

A-1307
33
1 courts need to go through to determine whether or not a group
2 is a suspect class.
3 For instance, the analysis that is in High Tech Gays,
4 one of the cases we rely on in our briefs, goes through and
5 asks --
6 THE COURT: Which the Plaintiffs argue has been
7 severely undercut.
8 MR. DUGAN: Well, it's still binding precedent, Your
9 Honor. So, that's another reason that this isn't a suspect
10 class, though, because the Ninth Circuit has decided that
11 sexual orientation is not a suspect class.
12 But, going back to the question of religion. There
13 are no cases that we could find in which courts actually go
14 through that same analysis: Asking whether or not a group is
15 politically powerless, asking whether or not they have
16 immutable characteristics. And I think part of that is because
17 they have looked at it, as you were indicating earlier, as a
18 fundamental right. They've looked at it in that context. So
19 we don't think that there's this body of religious suspect
20 class case law that would be helpful here.
22 MR. WEST: Well, Your Honor, certainly, I think this
23 highlights the fact that the Supreme Court factors are an
24 important balance. No one factor is dispositive. And, it's
25 not like, if you add up three or four you get suspect class,

(415) 373-2529

A-1308
34
1 and if you only have two, you don't. I think there are clear
2 parallels between sexual orientation and religious affiliation.
3 I think the Court, when looking at religion and
4 treating it as a suspect classification for equal-protection
5 purposes, does so because of the very unique role that
6 religious affiliation plays throughout the history of this
7 country. It -- one of the reasons that this nation was founded
8 was because of religious persecution, and religious-freedom
9 concerns.
10 And we think something that -- that fundamental to
11 the United States, where it has been absolutely clear since the
12 founding of the country that discrimination based on religious
13 affiliation is something to be disfavored, I think puts it
14 squarely within the equal-protection analysis that the Court is
15 sort of -- has sort of articulated.
16 The point is, you know, what is the Court trying to
17 do when it is setting forth this equal-protection analysis?
18 So, we think sexual orientation has many parallels there, just
19 as it does with other quasi-suspect or suspect classes like
20 gender, race, national origin, lineage.
21 THE COURT: Counsel?
22 MS. BORELLI: Your Honor, of course, as a preliminary
23 note, we strongly disagree that High Tech Gays is still
24 binding. As the Court noted, it has been severely undercut.
25 If the Court were to have any questions about our arguments

(415) 373-2529

A-1309
35
1 about High Tech Gays, we would appreciate the chance to address
2 them.
3 But, as the Court noted, all of the sources that have
4 been submitted to the Court that have to do with religious as a
5 suspect classification fall into two categories. One set
6 recognizes it as a fundamental right, and that infringements on
7 that right are subject to strict scrutiny. But there is a
8 significant amount of, admittedly, dicta, and yet it is
9 repeated over a significant period of time by both the Supreme
10 Court and the Ninth Circuit, which treat as obvious the idea
11 that religion constitutes a suspect classification.
12 We think it is a particularly apt analogy here, Your
13 Honor. There are all kinds of reasons to think that the
14 arguments that BLAG has made about sexual orientation -- the
15 fact that some small minority can experience a change that's
16 not necessarily an obvious trait, that it's about conduct --
17 each and every one of these things can be said about religion,
18 as well. Some people convert their religion. Some people, you
19 can't identify their religion by looking at them. The only way
20 you might know is by conduct.
21 So, in the way that you might be able to surmise
22 sexual orientation of someone as holding the hand of a same-sex
23 partner, you might be able to able to infer religion possibly
24 by religious practices, if someone is wearing a cross or a
25 Yarmulke, or praying to Mecca.

(415) 373-2529

A-1310
36
1 You can tell what some people's religion is by their
2 conduct. And yet, some people have a religious identity, and
3 yet never engage in the practices of that particular religion,
4 in the same way that some people identify as gay or
5 heterosexual, and might be celibate.
6 But, if the Court found that this was a hard ground
7 to analogize to because of doubts in the case law -- and we
8 don't think that case law leaves any room for doubt -- alienage
9 is another apt example, and there's no question that alienage
10 is a suspect classification. People can change, they can
11 become citizens, they can renounce their citizenship. You
12 cannot tell whether someone is a citizen by looking at them.
13 Alienage is determined by conduct, conduct of coming to the
14 United States under certain circumstances. And, likewise,
15 citizenship is determined by the conduct of naturalizing.
16 The ultimate point with all of these criteria is that
17 this is the kind of core defining and fundamental trait that
18 the government does not have the right to judge or to require a
19 person to change as a condition of equal citizenship.
21 Do you want to say anything in rebuttal, Counsel?
22 MR. DUGAN: Yes, Your Honor. I don't know how High
23 Tech Gays isn't binding, but dicta; talking about religion as a
24 suspect class is. That makes no sense to me.
25 The other thing I would say, in response to something

(415) 373-2529

A-1311
37
1 Mr. West said is, the analysis for a suspect class is a
2 conjunctive analysis. If you look at High Tech Gays, look at
3 Lenning, which the Supreme Court decided, you need all the
4 factors or the factors that the Court decides to actually
5 review in that particular case.
6 But it would make no sense that someone would be
7 considered a suspect class if they have political power. You
8 wouldn't need the courts to step in to rectify problems.
10 MR. WEST: Yes, Your Honor. I think this underscores
11 exactly why High Tech Gays is just not viable authority. We
12 recognize its precedent. It's Ninth Circuit authority that
13 this Court is going to have to address in its opinion.
14 But frankly, it's on its last legs. And that is
15 because it is based -- the linchpin of that case is based on a
16 case, Bowers, that has been categorically overruled by the
17 Supreme Court. So to continue to think that its reasoning has
18 any viability, I think, is to engage in a fiction.
19 The other thing that this conversation is
20 highlighting, it seems that BLAG seems to be pressing -- again,
21 this is reasoning in High Tech Gays, as well -- this idea that
22 because homosexuality might be behavior -- these are the words
23 of High Tech Gays -- as opposed -- or conduct, that therefore,
24 it is not somehow deserving of a suspect classification.
25 And the Supreme Court has, when it comes to sexual

(415) 373-2529

A-1312
38
1 orientation, has declined to make this distinction between
2 conduct and status. Christian Legal Society, Lawrence, the
3 Court has declined to make that kind of distinction.
4 And if -- if the Court were to entertain that
5 distinction, perhaps this idea that a conjunctive analysis is
6 required in order to find suspect classifications, then maybe
7 that would be true. But we know from the Court's own analysis
8 in the way that it deals with classifications, that that is not
9 the case.
10 THE COURT: Anything further you want to say?
11 MS. BORELLI: We agree with those points, Your Honor.
12 And the very cases that BLAG cites for its argument that each
13 and every one of these considerations must be looked at by a
14 court, those very cases undercut BLAG's point. They all talk
15 about these considerations with the disjunctive word "or," not
16 the conjunctive word "and."
17 We can look at a body of cases that show us, for
18 example, with respect to immutability, out of the six
19 classifications that have been held to require some form of
20 heightened scrutiny, at least three of them -- religion,
21 legitimacy, and alienage -- are subject to change. That shows
22 us exactly how flexibly the court has looked at these factors.
23 THE COURT: All right. Let's move on to
24 Question No. 5. I'm going to read the question, and then I
25 want to make a comment about Question No. 5.

(415) 373-2529

A-1313
39
1 What is the statutory authority for an evidence of
2 compliance with the role that Bipartisan Legal Advisory Group
3 has assumed in this matter? Is this group actually bipartisan?
4 Does BLAG have the support -- and funding for the increasing
5 cost of defending DOMA -- from a majority of Congress, or just
6 from the House of Representatives? See Immigration and
7 Naturalization Service versus Chadha, C-H-A-D-H-A, holding that
8 Congress is the proper party to defend the validity of a
9 statute when an agency of the government charged with enforcing
10 the statute agrees that the statute is unconstitutional.
11 Now, the additional authority cited by BLAG regarding
12 the group's authority to support the statute in court are, for
13 the most part, frankly, not helpful. The Court is not
14 concerned about enforcement of the disciplinary rules of the
15 House of Representatives. Rather, the Court is concerned about
16 the authority of the House alone, rather than the majority of
17 both houses of Congress, to defend this statute in court. This
18 Court is also concerned whether the House followed correct
19 protocol in hiring and continuing to fund the group that
20 appears here.
21 And, I'll give you an opportunity to respond first.
22 MR. DUGAN: Thank you. Thank you, Your Honor. I
23 think that question is probably most centrally directed to us,
24 so I'll get to it.
25 There is no statutory authority. There's

(415) 373-2529

A-1314
40
1 constitutional authority, and that authority is the rule-making
2 clause that each house can make rules that determine its
3 proceedings. And, under those rules, the House has -- has
4 established an Office of General Counsel for the purpose of
5 providing legal assistance and representation to the House.
6 And the Office of General Counsel shall function pursuant to
7 the direction of the Speaker, who shall consult with the
8 Bipartisan Legal Advisory Group, which shall include the
9 majority and minority leaderships.
10 So, to answer your question, Your Honor, is it
11 bipartisan? Yes, it is. It is made up of five members. And,
12 in a three-to-two vote, BLAG decided to defend a law that the
13 Department of Justice decided it wasn't going to defend
14 anymore.
15 THE COURT: Let me ask you this. I'll let you finish
16 your argument --
17 MR. DUGAN: Sure.
18 THE COURT: But, I read the cases that you cites.
19 And, again, it is a little bit of an academic discussion,
20 because the Court has granted BLAG's motion to intervene. The
21 Court is going to consider the very eloquent arguments that
22 Counsel has made. It is very helpful to the Court.
23 But, we're dealing with the three branches of
24 government. And I think, as one of the coequal branches --
25 some might not always agree with that, but we are a coequal

(415) 373-2529

A-1315
41
1 branch -- I'm obliged to ask that.
2 And, I didn't see any case where -- that you've cited
3 that's right on point, where only the House which happens to
4 have a majority in its favor on this question brings the
5 action, and it is upheld on constitutional basis, that the
6 House is the appropriate party to defend a statute in the
7 absence of the Senate that is not supported by the executive
8 branch.
9 So, that's really where the question comes from.
10 MR. DUGAN: And, Your Honor, there are several
11 answers to that. First of all, the -- the statute that
12 requires notification from the Department of Justice when it's
13 not going to defend a law that it's constitutionally obligated
14 to defend contemplates that either the House or the Senate,
15 alone or jointly, will be able to defend laws.
16 The one case that we cited, and I -- Your Honor, I
17 think maybe it's because the question wasn't actually answered
18 there, but this Coors case, which the House went at it alone.
19 The Senate was not involved; the House was.
20 And another thing I would like to address is just
21 this idea of the bipartisanship. And, we can provide this to
22 the Court. But, we have gone searching through the House
23 briefs. We have discovered and we know of at least nine
24 separate occasions when there's been a split vote in the
25 BLAG -- usually three to two, one time four to one -- where the

(415) 373-2529

A-1316
42
1 House has still filed briefs.
2 THE COURT: All right. I don't know if the executive
3 branch has a dog in this race, but I'll certainly give you an
4 opportunity to respond.
5 MR. WEST: Your Honor, I just wanted to correct one
6 thing -- or probably several things, but I'll only take the
7 opportunity to correct one -- that BLAG made. And that is the
8 Department of Justice, the Executive, is not constitutionally
9 obligated to defend the statute that it believes is
10 unconstitutional. And, we can certainly imagine cases where it
11 would be important for both the House and the Senate to be of
12 one mind if they were to take up the defense of the
13 constitutionality of the statute.
14 We think, however, this is not a case where the Court
15 needs to resolve that issue because the United States, which is
16 the Defendant here, has taken steps to perfect the ability for
17 BLAG to come in and make these arguments for the benefit of the
18 Court, for the benefit of the Record. And certainly, no party
19 has objected to BLAG's participation for the specific purpose
20 of presenting arguments in defense of the Defense of Marriage
21 Act.
22 THE COURT: Do you wish to say anything at this
23 point?
24 MS. BORELLI: To be clear, Your Honor, BLAG does not
25 represent the House. They are a five-member committee

(415) 373-2529

A-1317
43
1 operating here by a vote of three of their members, and I think
2 it is important for that to be clarified.
3 THE COURT: Although, in fairness to them, the rules
4 provide that, in effect, they are representing the House when
5 they constitute this group, and there was a majority vote of
6 that group, correct?
7 They may not, sort of in a macro sense, represent the
8 entire House, each and every member. But that's the way
9 democracy works. Isn't that true?
10 MS. BORELLI: You know, I have counsel here who's
11 actually a bit more versed with the rules. And if the Court
12 wanted to hear more, he would be happy to address it.
13 THE COURT: Well, I would, actually. I would like to
14 complete the Record on this issue. Again, it's a little bit,
15 one would say, academic, but I don't think so, given the
16 important features implicated and the way this case has been
17 litigated.
18 Counsel, would you identify yourself, also.
19 MR. DAVIDSON: Sure. John Davidson.
20 The rule of the House that refers to BLAG, and it's
21 really the only thing that we've been able to find that
22 describes BLAG in any fashion, it's -- BLAG is not identified
23 in any statute or in anything other than the one roll of
24 Congress which was submitted by BLAG, refers to BLAG as an
25 advisory committee to the Speaker, and says that the Speaker

(415) 373-2529

A-1318
44
1 may direct the House counsel to take action.
2 But it does not give any authority to BLAG to take
3 any action, other than to advise the Speaker. So, I think that
4 does raise a question about BLAG's authority to do anything on
5 behalf of the House, itself.
6 But again, we, too, don't have much of a dog in this
7 race. That is, we -- we have not objected to BLAG intervening
8 in this, before this Court, and that's because we do believe
9 it's important to have a full-throated explanation of the
10 position of even some members of Congress, on this position, so
11 that the Court really considers all of the arguments that could
12 be considered on this very important issue.
13 THE COURT: All right, fair enough. Let's move on.
14 I have all I need on that question.
15 Let's move on to Question No. 6: How does BLAG
16 distinguish the ruling in Gill versus Office of Personnel --
17 that's G-I-L-L -- versus Office of Personnel Management, which
18 is obviously the District of Massachusetts case, which found
19 that DOMA does not pass constitutional muster under even
20 rational basis scrutiny?
21 Start with you, again.
22 MR. DUGAN: We get to start again, Your Honor, thank
23 you.
24 THE COURT: You're on the hot seat.
25 MR. DUGAN: Well, we don't distinguish, and we think

(415) 373-2529

A-1319
45
1 it's wrong, and here's why we think it's wrong. The court in
2 that case relied, to a great extent, on a very strange
3 conclusion: That Congress has no power to define the words it
4 uses in its own statutes. It said, quote (As read):
5 "The states alone have the authority to set
6 forth eligibility requirements as to familial
7 relationship..."
8 THE COURT: Slow down a little bit.
9 MR. DUGAN: Oh, sorry.
11 MR. DUGAN: "... to set forth eligibility
12 requirements as to familial relationships. And the federal
13 government cannot, therefore, have a legitimate interest in
14 disregarding those family status determinations." Close quote.
15 As I think we've said earlier in the argument,
16 Congress gets to draw the lines of which benefits it wants to
17 give. And, and has done this in other cases. We talked about
18 the Social Security context, we've talked about the immigration
19 context, and we've talked about, sort of, benefits context.
20 This is something Congress does all the time. So we
21 think that that part of Gill, which seems to be central to its
22 holding, is -- is simply flat-out wrong.
23 THE COURT: By the way, has the case been argued
24 before the First Circuit yet?
25 MR. DUGAN: No, it has not, Your Honor.

(415) 373-2529

A-1320
46
2 MR. WEST: Congress gets to draw the lines, but it
3 can't draw those lines in a way that is arbitrary or
4 discriminatory and disfavors a group which may be unpopular,
5 which is what's happening with here with the Defense of
6 Marriage Act.
7 With regard to the Gill case, we have -- it would --
8 it would be good to see -- and, in fact, we would invite this
9 Court to do this -- an opinion that actually engages the
10 Supreme Court's well-established factors in the
11 equal-protection analysis.
12 The Bankruptcy Court down in the Central District of
13 California, in Balas, has done that, finding that DOMA was
14 unconstitutional on both rational basis and alternative --
15 (Reporter interruption)
16 MR. WEST: The Bankruptcy Court in Balas did that,
17 finding that DOMA was unconstitutional on both rational basis
18 and, alternatively, heightened-scrutiny grounds.
19 Judge Reinhardt, in Levenson, noted that he believed
20 heightened scrutiny was applicable in finding DOMA
21 unconstitutional on rational-basis grounds.
22 Judge Walker, in an analogous case, of course, gave
23 both of those alternative bases.
24 THE COURT: Do you want me to cite Judge Reinhardt to
25 invite Supreme Court scrutiny?

(415) 373-2529

A-1321
47
1 (Laughter)
2 THE COURT: Do you have any other suggestions?
3 MR. WEST: My guess is that no matter what you do,
4 this case will invite Supreme Court scrutiny.
5 THE COURT: Thank you. All right.
6 MR. WEST: So, but we would actually add that we
7 think it would be helpful as this case moves as inevitably it
8 will through the appellate process, for the Court to lay out
9 the analysis, the equal-protection analysis, and why sexual
10 orientation merits heightened scrutiny.
12 Ms. Lin?
13 MS. LIN: Your Honor, Rita Lin. We would obviously
14 disagree with BLAG's characterization of the federal government
15 as having a long-standing role in defining marriage in any
16 fashion. It is true that sometimes in granting federal
17 benefits, as -- as has already been discussed, the federal
18 government layers requirements on top of marriage. So it's not
19 enough that you're married under state law; you also have to
20 have been married for a certain amount of time to qualify for
21 benefits. Or you have to show that your marriage isn't a sham
22 marriage in order to qualify for a particular right.
23 The reasons for those, though, are those are neutral
24 criteria that are targeted to the particular policies of the
25 particular federal statutes at issue. They are not, as in the

(415) 373-2529

A-1322
48
1 case of DOMA, an attempt to displace a state's determination of
2 who is and is not validly married.
3 DOMA is the first attempt to engage in a blunderbuss
4 legislation that changes over 1,000 federal rights all in one
5 fell swoop, without looking at the particular policy
6 implications as to each particular federal right or benefit at
7 issue. And in that sense, it's an unique attempt to displace
8 state law in defining what is or isn't marriage.
9 The other point I would like to make, Your Honor, is
10 that Gill is not a case that is based solely on that ground.
11 Gill systematically goes through each and every one of the
12 government interests that BLAG has identified in this case in
13 support of DOMA, and explains why each of them fails even
14 rational-basis scrutiny. So, it's not an opinion that's based
15 solely on the notion of federalism.
16 THE COURT: Anything you want to say in reply?
17 MR. DUGAN: Yeah, Your Honor. First of all, we were
18 not defending the law at that point. And we would disagree
19 with the contention that all the same bases were before the
20 Court, and rejected.
21 The other thing I would say is that this Court is
22 still bound in terms of that -- in terms of the
23 suspect-classification analysis that I think Mr. West would
24 like this Court to get into, by High Tech Gays. That Ninth
25 Circuit precedent is unequivocal on this.

(415) 373-2529

A-1323
49
1 And, and Witt versus Air Force Department,
2 reemphasizes the fact that, I think, Bowers and Lawrence had
3 not been -- had not undercut that analysis.
4 THE COURT: Yes, Mr. West.
5 MR. WEST: Your Honor, we think it's helpful for this
6 Court not only to engage the equal-protection analysis, but
7 also to say that High Tech Gays is no longer viable. We
8 recognize that it's precedent this Court has to deal with, but
9 it is no longer viable.
10 And with regard to Witt, what Witt has is a one --
11 the equal-protection analysis consists of a one-paragraph
12 citation to Philips. When you read Philips, Philips relies
13 entirely on High Tech Gays, on the -- on the discredited Bowers
14 rationale, as well as there's a lot of talk in there about
15 deference to the military.
16 But, with regard to the earlier point that BLAG made
17 in terms of the rationales or the reasons that Judge Tauro)
18 considered in Gill, Judge Tauro decided that there was no
19 rational basis that could sustain this statute. So, it really
20 didn't matter what arguments BLAG might be able to put forward
21 now because, at bottom, Judge Tauro decided that there was no
22 rational basis that could be imagined that could sustain the
23 constitutionality of the statute. Now, if this Court decides
24 that as well, this Court ought to strike it down.
25 THE COURT: Do you want to say anything else?

(415) 373-2529

A-1324
50
1 MS. LIN: Your Honor, just on the Witt point.
2 Witt -- in Witt, the equal-protection claim that was brought
3 was not the claim is brought before the Court today. In Witt,
4 the plaintiff was saying that the military draws an improper
5 distinction in the way it treats the discharge of gay soldiers,
6 versus the discharge of child molesters, for example.
7 It was not -- the plaintiff in that case did not
8 advance an equal-protection argument based on the distinction
9 in the treatment between heterosexual and homosexual soldiers.
10 THE COURT: Let's move on to Question No. 7. And
11 I'll read the entire question. It's a long question; there's
12 four parts to it. And then I have a comment to make about
13 Question 7, and the authorities cited by the parties.
14 What are BLAG's proffered bases for upholding the
15 constitutionality of DOMA?
16 Question 7.a: BLAG argues that DOMA provides
17 consistency in the definition of marriage. However,
18 traditionally, marriage has been defined by the states. Under
19 DOMA, for the first time, federal officials are now tasked with
20 determining the validity of particular marriages that have been
21 sanctioned under state law. How does treating some
22 state-sanctioned marriages different from others promote
23 consistency or maintain the status quo?
24 7.b: The fact that marriage traditionally has been
25 defined as between a man and a woman merely describe what has

(415) 373-2529

A-1325
51
1 been. How does codifying this description constitute a
2 justification, reason, or basis for restricting marriage?
3 And, see Heller versus Doe, holding that, quote,
4 "ancient lineage of a legal contract does not give it immunity
5 from attack for lacking a rational basis," unquote. Also
6 citing the concurrence in Lawrence.
7 Does BLAG have any authority for the proposition that
8 codification of a long-standing tradition independently
9 constitutes a rational basis?
10 7.c: In support of miscegenation laws, proponents
11 argue that the long-standing tradition of the separation of the
12 races provided justification for prohibiting interracial
13 marriage. How does BLAG's argument about the tradition of
14 heterosexual marriage differ from the miscegenation context?
15 7.d: How does the withholding of federal benefits to
16 children of families with same-sex parents encourage
17 responsible parenting and child rearing?
18 And what I want to say with respect to question 7.c,
19 the Court has received from BLAG in response to the question a
20 citation to a law review article authored by a professor from
21 Brigham Young University. This is not legal authority.
22 Further, the article reads more like a treatise on
23 the morality of homosexuality than a legal analysis of the
24 analogy of the Court's holding in Loving versus Virginia to the
25 issue of same-sex marriage. The Court is concerned that BLAG

(415) 373-2529

A-1326
52
1 cited this article for the proposition that homosexuality is,
2 as the author of the article explicitly contends, quote
3 "immoral," unquote. The article quotes Martin Luther King,
4 Jr., when he famously said, quote, "I have a dream that my four
5 children will one day live in a country where they will not be
6 judged by the color of their skin but by the content of their
7 character."
8 The conclusion of the article is that same-sex
9 marriage, quote, "is a character issue where we cannot tolerate
10 compromise... Marriage is a prime example of a moral
11 relationship, a relationship of conjugal, complimentarity" --
12 that's C-O-M-P-L-I-M-E-N-T-A-R-I-T-Y -- "that benefits all
13 society, and particularly the children and other dependent
14 members of a specific family. Same-sex relations come from a
15 different ethic and represent a different morality, manifest in
16 the infidelity and promiscuity that characterizes gay and
17 lesbian relationships much more than conjugal unions."
18 So I want to know, when BLAG responds, for what
19 purpose does BLAG submit this law review article? Does BLAG
20 have any legal authority in response to 7.c, i.e. that the
21 tradition of heterosexual marriage differs from the arguments
22 used in the miscegenation context?
23 So, I'll open the floor to you.
24 MR. WEST: Do you want me to start with 7.c, Your
25 Honor?

(415) 373-2529

A-1327
53
1 THE COURT: Why don't you start with 7.c, please,
2 because that's more recent, based upon what you said to the
3 Court.
4 MR. WEST: We cite that article for the simple
5 proposition -- not the proposition, the facts that it lays out
6 in terms of -- in terms of the laws dealing with mis- --
7 THE COURT: Miscegenation.
8 MR. DUGAN: Yeah, miscegenation law. That's why we
9 cite it. We're not citing it because of the conclusions the
10 author comes to. We don't -- we wouldn't say on the Record
11 that we agree with the author's conclusions. But it gives, in
12 the back, an appendix table that lays out the various laws, and
13 when they changed, and what states did. That's a simple reason
14 we used that citation.
15 THE COURT: All right. Would you please -- now,
16 would you mind --
17 MR. DUGAN: 7.a?
18 THE COURT: Well, let me, since you've just raised
19 that, and I want to keep it in context in my mind, is there
20 anything that the Executive Branch, Mr. West, you wish to say
21 on that, on 7.c?
22 MR. WEST: The only thing I would say, Your Honor, is
23 that your summary of that law review article did not sound
24 dissimilar to the House report and the justifications offered
25 for DOMA by the House. And while understandably, BLAG would

(415) 373-2529

A-1328
54
1 want to distance themselves from those arguments which are
2 based on animus, the fact is they are there, they are reasons,
3 justifications that Congress gave for passing this law. And we
4 think that this Court ought to entertain those and analyze
5 those justifications, and determine whether or not they are
6 valid as part of the equal-protection analysis.
7 THE COURT: Ms. Lin?
8 MS. LIN: The only thing we want to -- we would want
9 to say on 7.c, Your Honor, is that if one looks back on the
10 arguments that were made against interracial marriage back in
11 the forties, fifties, and sixties, those arguments in many ways
12 are remarkably similar to the arguments that are being made
13 today against same-sex marriage.
14 We submitted the opinion of Perez v. Lippold last
15 night, and the reason that we did that is, if you look to the
16 dissent in Perez, you can see that the interests advanced in
17 support of the anti-miscegenation statute there were that
18 interracial marriage is a divisive social issue, that it -- it
19 goes against a long history of prohibitions on -- on mixing of
20 the races dating back to, quote, the early colonial era
21 (Indicating quotation marks), that it's harmful to children,
22 and it's not an optimal environment for child-rearing. Those
23 are the same arguments that are advanced today against same-sex
24 marriage.
25 THE COURT: Is there anything you want to say --

(415) 373-2529

A-1329
55
1 MR. DUGAN: I don't think that either the Department
2 of Justice or the Plaintiff have ever alleged that the
3 reason -- or that traditional marriage, itself, was based on
4 animus. And I think that that's an important point. We're not
5 simply making a tradition-based argument here.
6 We would -- one of the ways we would differentiate
7 Loving from this case is, of course, you have binding Circuit
8 precedent and Supreme Court precedent that have said that equal
9 protection does not require same-sex marriage. So, that is a
10 clear distinction between the two.
11 Another point I would make on that is -- is a
12 response to Mr. West. That in the rational-basis analysis, you
13 don't have to look at the reasons Congress gave. It's any
14 conceivable basis. And they --
15 THE COURT: Are you backing off from the reasons
16 Congress gave, and disavowing those?
17 MR. DUGAN: Not disavowing all of them. But, those
18 were not the reasons we put forward in our briefing. And the
19 other thing is, not only does it need to be conceiv- -- can it
20 be conceivable, it has to be debatable. So, you and I may not
21 find the reasons put forward to be all that compelling. But if
22 there's a legitimate debate to be had, then, then that's a
23 rational basis.
24 THE COURT: All right. Would you -- why don't you
25 move on to Question 7.a, please.

(415) 373-2529

A-1330
56
1 MR. DUGAN: Okay. The first, the first part in 7.a
2 that we would take issue with is that we don't think this is a
3 new task. I think that there's a -- there is a fundamental
4 disagreement here between the parties in terms of what the
5 federal government does when it looks at -- and I'll move on,
6 Your Honor, but I -- but, when it looks at the lines it draws
7 for benefits. And so, it already does this.
9 MR. DUGAN: In terms of the consistency, there is a
10 larger point of consistency here, consistent with practice and
11 tradition. And, again, that is something Justice O'Connor said
12 was legitimate state interest in her concurrence in Lawrence.
13 So's it's not simply just is it consistent with what states are
14 doing today. It's a question of what are most states doing?
15 What have most states done?
16 And that, and that's simply not consistency for
17 consistency's sake. It's realizing and recognizing that this
18 institution has given us great benefits. And -- and having
19 caution as we proceed forward, opening it up to new
20 definitions.
22 MR. WEST: With regard to the consistency point, Your
23 Honor, we don't believe this is a justification that is
24 sufficient to save the statute because, as Your Honor points
25 out in the question, it actually creates inconsistency in the

(415) 373-2529

A-1331
57
1 distribution of benefits to couples whose unions are recognized
2 under state law.
3 With regard to the point about consistency with
4 tradition, I still -- it's hard to understand exactly how
5 that's not an argument, consistency for consistency's sake, or
6 consistency with tradition because that's the way things have
7 always been. We know from Virginia Military Institute that
8 tradition alone is not enough to sustain a statute, one that
9 discriminates.
10 And with regard to a marriage creating great
11 benefits, as BLAG has argued, we certainly don't disagree with
12 that. The question is, why can't those benefits be realized by
13 same-sex marriages just like heterosexual marriages in the
14 context of benefits being provided by the federal government?
15 And that's the distinction that we are still
16 contesting is -- is not a legitimate distinction in the
17 equal-protection context.
18 THE COURT: All right. Ms. Lin?
19 MS. LIN: Your Honor, the notion that there's
20 something new about the -- the inconsistency (Indicating
21 quotation marks) between the states in whether or not they're
22 recognizing marriages between same-sex couples, it's not one
23 that makes sense.
24 There have been inconsistencies and there's been a
25 patchwork among the states for years about numerous marital

(415) 373-2529

A-1332
58
1 issues, and many of them hotly contested. Interracial marriage
2 is a great example of that. In 1948, when the laws started
3 falling that were banning interracial marriages, many states
4 had laws on the books that banned such marriages.
5 By 1967, when Loving was decided, there were still
6 16 states banning interracial marriages. It was a
7 hotly-contested, socially-divisive debate. The federal
8 government never stepped in to create consistency (Indicating
9 quotation marks) between state definitions.
10 Same thing with no-fault divorce. Throughout the
11 sixties, seventies, and eighties, there was a shift of many
12 states to no-fault divorce. There was a concern that people
13 were moving to states in order to get divorced under more
14 lenient standards. Again, federal government never intervened,
15 even though those were hotly contested social issues.
16 The true inconsistency, as Mr. West points out, is
17 that DOMA creates a situation where, for the first time, people
18 are treated as being married under state law, but denied all
19 the benefits and protections of marriage under federal law.
20 To the point about the consistency with tradition,
21 it's -- that's simply another way, Your Honor, of saying that,
22 "Well, we've discriminated against same-sex couples for a long
23 time in this area, so we're just going to keep doing it."
24 That's not an answer to a citizen who comes to the
25 government and says, "Why is this classification being drawn

(415) 373-2529

A-1333
59
1 this way?"
2 It's not an answer for the government to say, "Well,
3 we've been discriminating against you for a very long time."
4 THE COURT: Do you want to say anything in reply,
5 Mr. Dugan?
6 MR. DUGAN: Well, that begs the question, of course,
7 whether or not this is a fundamental right or this is a suspect
8 class. So, the -- the other side assumes the answers to those
9 things.
10 The question is whether or not Congress has -- if
11 we're going to look at this under the rational-basis test, did
12 Congress have a rational basis, any conceivable rational basis,
13 for making this distinction?
14 THE COURT: Can you cite me a couple?
15 MR. DUGAN: Yeah, I'll cite you several. One is
16 to -- to rationally maintain bargains that were decided upon by
17 previous Congresses. Every Congress prior to 1996 had enacted
18 laws dealing with marriage, defining marriage against the
19 background assumption that marriage was between a man and a
20 woman.
21 There's also the concern of the public fisc. And,
22 that's attached to that previous reason. There were bargains
23 made, and there were calculus made in terms of how -- how are
24 we going to -- what benefits are we going to give, what burdens
25 are we going to put on people? And to maintain that

(415) 373-2529

A-1334
60
1 consistency over time is certainly a rational basis.
2 Another rational basis would be that -- I guess -- I
3 want to step back, because this an answer that can cause some
4 tension. But, when -- the other side has not said why a
5 redefinition of marriage that has never existed before wouldn't
6 change people's understanding, actions towards, and how they
7 enter in or deal with marriage. Congress could have said,
8 "Let's take break, let's give this some time."
9 In fact, that's what Senator Leahy has done. Senator
10 Leahy voted yes on DOMA. Now he's brought legislation to the
11 Senate to repeal DOMA. There's a rational basis in caution.
12 Not because this is going to be something that's going to do
13 something horrible; we just don't know what it's going to do.
14 And so that's certainly a rational basis when Congress is faced
15 with something new that had never existed before.
17 Do you want to say anything further?
19 THE COURT: Ms. Lin, do you want to say anything
20 further on this point?
21 MS. LIN: Just briefly on the points about the public
22 fisc and the consistency with -- that we just need to give this
23 some time.
24 On the public fisc point, the question here is why
25 same-sex married couples should be the one to bear the burden

(415) 373-2529

A-1335
61
1 of reducing the benefits that are coming out of the public
2 fisc. The question is: Why are we drawing this decision, why
3 do we draw the line here? When for, for generations, we, the
4 federal government has simply accepted state marital status as
5 the appropriate place to drawn the line.
6 THE COURT: All right --
7 MS. LIN: The --
8 THE COURT: I'm sorry.
9 MS. LIN: Just --
10 THE COURT: I was going to say, just so counsel know,
11 after this subpart I'm going to take a short break, give people
12 a chance to stretch their legs. But, please continue.
13 MS. LIN: Just on the idea that we ought to just give
14 this some time. Your Honor, this is the same argument that was
15 advanced in Romer v. Evans. There, the State of Colorado said,
16 "We're going to withdraw anti-discrimination protections based
17 on sexual orientation. We're going to withdraw those, because
18 we want to focus on other forms of discrimination, and this
19 form of discrimination is just too socially divisive. We want
20 some time to handle this issue calmly."
21 The Supreme Court rejected that as a legitimate
22 rational basis for the federal government. There's no reason
23 to act with more caution here than there has been for any other
24 change in state marriage law over the years.
25 THE COURT: Anything further on this point?

(415) 373-2529

A-1336
62
1 MR. WEST: Not on the merits, Your Honor. Just as a
2 point of order, though, this Court can certainly take judicial
3 notice of the GAO report which, on this very question of
4 whether or not it would cost the federal government more money
5 to extend benefits to same-sex married couples as it does to
6 heterosexual couples, completely inconclusive.
7 THE COURT: All right. Let's take a ten-minute
8 break, and we will continue with the subparts of 7, and then we
9 will complete. Thank you, Counsel.
10 (Recess taken from 11:13 a.m. to 11:27 a.m.)
11 THE COURT: You may all be seated, and have counsel
12 come forward. And we are up to Question 7.b. And, I will ask
13 BLAG once more to, for consistency's sake, --
14 MR. DUGAN: Understood, Your Honor.
15 THE COURT: -- to start off.
16 MR. DUGAN: The first point I would make in regards
17 to 7.b is this: We have not argued in our briefs that
18 tradition alone is a rational basis. But I think it's also
19 important to look at the line in Heller, right after the line
20 that you quoted, Your Honor.
21 It reads (As read):
22 "That the law has long treated the classes as
23 distinct, however, suggests that there is a
24 common-sense distinction between the classes
25 that were there at issue."

(415) 373-2529

A-1337
63
1 Justice O'Connor, in her Lawrence concurrence, again,
2 said that there is a legitimate state interest in preserving
3 the traditional institution of marriage. But this is not
4 simply a question of lineage, that we've always done this.
5 We've done it, and great things have flowed from it.
6 And the common-sense distinction that I think we can
7 talk about here --
8 THE COURT: Great things have flowed from it? What?
9 MR. DUGAN: From marriage.
10 THE COURT: Oh, okay.
11 MR. DUGAN: Sorry. The institution of marriage.
12 THE COURT: Right.
13 MR. DUGAN: The common-sense distinction I think that
14 we can point to is the fact that heterosexual couples have
15 accidental pregnancies. They make babies without technological
16 means.
17 And, Congress could have had a rational basis to say,
18 "We think the understanding of what is important about marriage
19 will be undercut if we don't focus on these particular
20 couples."
21 THE COURT: Wait. Time out. I'm missing the point.
22 Are you saying accidental marriage is a rational
23 basis -- accidental -- I'm sorry -- accidental pregnancy is a
24 rational basis, and there's no technology involved. I have to
25 admit, I'm just sort of tongue-tied. I don't understand that

(415) 373-2529

A-1338
64
1 argument at all.
2 MR. DUGAN: No, this, in our briefs, comes under the
3 heading, I think, "Responsible Procreation." So that's where
4 I'll direct you.
5 THE COURT: Oh.
6 MR. DUGAN: The idea is this: That heterosexual
7 couples can make babies spontaneously -- not spontaneously, but
8 they can make babies. And, that Congress wants there to be a
9 linkage between those two. It doesn't have to be a perfect --
10 THE COURT: But, is that rational?
11 How can the Court avoid the fact that same-sex
12 couples can, based upon impulse or whatever, by virtue of the
13 science available, decide to have a child and do it relatively
14 quickly, maybe faster than the -- you know, shall we say, is
15 the Biblical way, if you will.
16 MR. DUGAN: Well, Your Honor, again, it has to be a
17 rational basis. It doesn't have to be a perfect fit. It
18 doesn't have to be something that you or I are compelled --
19 THE COURT: But, help the Court determine what is
20 rational -- just because the Congress says it is rational --
21 MR. DUGAN: No, not just because Congress has said
22 so, but because law has a pedagogical effect. And I think the
23 other side would concede that. That's one of the reasons the
24 Plaintiff wants her marriage to be recognized on the federal
25 level. And so, Congress could say that law has a pedagogical

(415) 373-2529

A-1339
65
1 effect. And we believe that if we open marriage to beyond
2 heterosexuals who have this capacity to have accidental
3 pregnancies, we're going to untether the connection between
4 marriage and children.
5 Now, it doesn't have to compel you, you and me. But
6 it certainly is a debatable thing that provides a rational
7 basis for the decision Congress made here.
9 MR. WEST: Of course, Your Honor, the United States
10 is no longer defending the statute on rational basis or on any
11 other basis. But we would note that, even when the United
12 States was most recently defending the statute, we disavowed
13 the procreation argument because it -- we didn't believe it was
14 viable under rational basis.
16 MS. LIN: Your Honor, what it sounds like this boils
17 down to is an argument that -- that DOMA somehow connects
18 marriage and child-rearing in a new way. Or, maintains a
19 connection between marriage and childbearing.
20 But really what DOMA does is undermine that
21 connection, because it takes the 270,000 children that are
22 being raised by same-sex couples today, and it puts them
23 outside of federally-recognized wedlock. So it disconnects
24 marriage and child-rearing.
25 The other point, Your Honor, is that procreation and

(415) 373-2529

A-1340
66
1 the ability or intent to procreate has never been a condition
2 of marriage in this country. There's undisputed expert
3 testimony from Professor Contin (Phonetic) on this point.
4 That's never been a criterion for marriage in any state in this
5 union since -- and there's never been any suggestion that
6 different-sex couples that can't procreate or end up -- or end
7 up having children through adoption or assisted reproduction,
8 there's never been any suggestion that their marriages are
9 somehow lesser or diminished compared to heterosexual couples
10 who happen to have the ability to procreate biologically. In
11 fact, the federal government subsidizes adoption by giving
12 people tax credits for adoption expenses, for example.
13 It's important, yes. The fit between the ends and
14 the means doesn't have to be exact, if we were under
15 rational-basis scrutiny. But there has to be some connection,
16 some rational connection, some reason to distinguish between
17 heterosexual couples who do not or cannot procreate and
18 same-sex couples.
19 THE COURT: Go ahead.
20 MS. LIN: I would point the Court toward the Supreme
21 Court's decision in Cleburne. In Cleburne, the city said that
22 homes for the mentally retarded had to get a special-use permit
23 that other types of buildings didn't need to get. The city
24 justified that by saying, "Oh, this is really about
25 overcrowding."

(415) 373-2529

A-1341
67
1 And the court, applying rational-basis scrutiny,
2 rejected that. And the court said, "Well, if it's really about
3 overcrowding, you don't require a special-use permit for
4 nursing homes, you don't require a special-use permit for
5 hospitals. Why are you applying a different standard for --
6 for homes for the mentally retarded?"
7 There's not a fit between the ends and the means.
8 That is exactly the type of situation we have here.
9 THE COURT: I would like you to respond to that,
10 Mr. Dugan, which, let's assume the hypothetical or the basis --
11 one of the so-called rational bases for this statute is what
12 you said, how does denying benefits to same-sex couples further
13 this what you argue to be a rational basis?
14 MR. DUGAN: This is, I think this is what you asked
15 in 7.d, Your Honor?
16 THE COURT: It's covered, to some extent. Why don't
17 you do this: Why don't you begin responding to Question d,
18 about how withholding federal benefits to children of families
19 with same-sex parents encourage responsible parenting and
20 child-rearing, but also to the specific point that you made,
21 and responded to by Ms. Lin, with respect to how does DOMA
22 promote the specific so-called rational purpose that you
23 mentioned to the Court before.
24 MR. DUGAN: Sure, Your Honor.
25 With regard to 7.d, the first thing I would say is

(415) 373-2529

A-1342
68
1 the proper question that needs to be asked is whether there is
2 any legitimate --
3 THE COURT: Well, they're all proper.
4 (Laughter)
5 THE COURT: By definition.
6 MR. DUGAN: I'm not always proper, Your Honor.
8 MR. DUGAN: -- is whether or not there is any
9 legitimate state interest that will be furthered by recognizing
10 opposite-sex marriages, but not same-sex marriages.
11 Recognizing the opposite-sex marriages, what benefits them? It
12 looks to what the benefits of those who are within -- within
13 the actual extension of benefits have.
14 Now, one of the things we quoted in our briefing --
15 not briefing last night, but our notice last night, is that
16 classifications are valid where the inclusion of one group
17 promotes a legitimate government -- governmental purpose, and
18 the addition of other groups would not.
19 So the focus is on is this -- and that's in Johnson
20 v. Robinson, or Robinson (sic). The focus is on the group
21 within the benefits circle. And so, going to the question of
22 how -- how does this further the rational basis of procreation.
23 Well, one -- one point to make in response to Ms. Lin is that
24 the expert, Nancy Cott, who I deposed, did say that impotence
25 has -- has been a reason for not -- for annulling marriages and

(415) 373-2529

A-1343
69
1 divorcing marriages in some places.
2 So there is a sense in which marriage is still tied
3 up with children in the fact that that sort of requirement or
4 that sort of -- that reason could be a basis for annulling a
5 marriage.
6 The connection on the procreative side is this,
7 that -- again, I mean, the Court can take notice, and we all
8 know that children can be born of a --
9 THE COURT: Is there any conclusion by that -- I read
10 that report -- any conclusion that determining that what you
11 thought was your opposite-sex partner was same-sex, that that's
12 a ground for annulment?
13 MR. DUGAN: I don't think we got into that in the
14 report or in the --
15 THE COURT: Wouldn't that be the appropriate inquiry,
16 though? Whatever the so-called expert says, wouldn't that be
17 the inquiry?
18 MR. DUGAN: I don't think so, Your Honor. I must not
19 be following here.
20 THE COURT: Well, this expert says that impotence is
21 a ground for annulment and, therefore, somehow -- what, now?
22 MR. DUGAN: Well, that that ties this to the idea
23 that marriage is about children, and children that can be --
24 spontaneously be generated by a union between a man and woman.
25 THE COURT: I understand the argument. All right,

(415) 373-2529

A-1344
70
1 disregard what I said.
2 All right, Mr. West.
3 MR. WEST: Your own words with regard to -- actually,
4 just with regard to this issue, certainly, I don't know whether
5 impotence can be a ground for annulling a marriage, but it's
6 certainly not a requirement to be married. And the federal
7 government certainly does not typically make decisions on which
8 benefits it's going to give married couples on the basis of
9 whether or not they can procreate. It doesn't make that
10 distinction. It's one of the reasons why, why even when --
11 THE COURT: Can Congress rationally make that --
12 MR. WEST: Well, we disavowed that argument, under
13 rational basis, when we were defending the statute, because we
14 didn't think it was a viable argument. And certainly, for the
15 same reasons, obviously, under heightened scrutiny, it would --
16 it would fail that test as well, because of the overwhelming
17 evidence that same-sex parents are every bit as capable of
18 raising happy, healthy children as -- as heterosexual parents.
19 THE COURT: All right. Ms. Lin, anything further on
20 this point?
21 MS. LIN: Just to respond first to the -- the
22 impotence point. I think that that speaks to the notion that
23 sexual intimacy is a fundamental important part of marriage.
24 It doesn't say anything about procreation.
25 But to address BLAG's larger point about -- about the

(415) 373-2529

A-1345
71
1 way equal-protection analysis --
2 THE COURT: I see your point. I'm sorry. I'm a
3 little slow on the uptake here.
4 What you are saying -- and I wasn't being facetious
5 about your argument, but you are saying, basically, impotence
6 is different than infertility, and there's no argument that
7 infertility is a basis for annulment.
8 MS. LIN: Exactly.
9 THE COURT: Is that the Plaintiff's argument?
10 MS. LIN: Exactly.
12 MS. LIN: The other point, Your Honor, is that BLAG
13 pointed to this notion that equal-protection analysis should
14 just look at the favored group, and not consider why it is that
15 that disfavored group hasn't been included.
16 That's not how the Supreme Court has conducted
17 equal-protection analysis. I would point Your Honor to Romer
18 and Moreno. In Romer, the State wanted to focus resources on
19 combating certain forms of discrimination. They said, "Sex
20 discrimination and race discrimination are big problems. We
21 want to focus resources on that. We don't want to deal with
22 sexual-orientation discrimination."
23 The court said, "You have to have some purpose, you
24 have to have some basis for drawing the line between the forms
25 of discrimination that are included and those that are not."

(415) 373-2529

A-1346
72
1 And Moreno is the same thing. Households with
2 unrelated people were excluded from food stamp programs.
3 There, the court said Congress had to justify why it was that
4 households with related people should be included, while
5 households with unrelated people should be excluded. In other
6 words, Congress had to justify a reason for the exclusion.
7 The case that BLAG cites, Johnson v. Robison, really
8 just reinforces that analysis. That case involved
9 conscientious objectors who completed alternative service. The
10 question was, should people who do alternative service get the
11 same veterans benefits as those who complete active military
12 duty.
13 And the court said no, because active -- it is
14 rational for Congress to give different benefits to people who
15 complete active military duty, because active duty inherently
16 involves hazards and disruptions that alternative service does
17 not.
18 In reaching that conclusion the court said, and I
19 quote (As read):
20 "Of course, merely labeling the class of
21 beneficiaries under the act as those having
22 served under active duty cannot rationalize
23 statutory discrimination against
24 conscientious objectors who have performed
25 alternative civilian service if, in fact, the

(415) 373-2529

A-1347
73
1 lives of the latter were equally disrupted
2 and equally in need of readjustment."
3 That's the point. There has to be a reason, a goal
4 that is advanced by excluding a disfavored group.
5 THE COURT: Mr. Dugan, do you want to reply?
6 MR. DUGAN: No.
7 THE COURT: All right. Let's move on to Question
8 No. 8, which is: How does the sharing of benefits with another
9 group of lawfully married persons denigrate the importance of
10 the benefits already conferred upon the original group? In
11 other words, how are heterosexual lawfully married persons
12 affected by the sharing of benefits with lawfully married
13 homosexual persons?
14 And, I want to get a little more elucidation on this
15 question. The Court is inclined to refer to this proposition
16 as the -- what it would call the kindergarten principle. This
17 is -- that is, not sharing benefits with another group somehow
18 makes the benefits already conferred to the original group that
19 much better. The Court is concerned about how depriving rights
20 to a minority somehow improves the rights already bequeathed
21 upon or bestowed upon the majority.
22 So, Mr. Dugan, I'll give you a chance to respond.
23 MR. DUGAN: I'm not entirely sure I understand
24 everything that the Court is saying, but the first thing I
25 would say is that --

(415) 373-2529

A-1348
74
1 THE COURT: Well, that makes us even.
2 MR. DUGAN: Well, I don't understand myself most of
3 the time.
4 THE COURT: Right. Go ahead.
5 MR. DUGAN: What I would say is this: That we have
6 not made an argument that -- that allowing benefits to same-sex
7 couples would denigrate heterosexual couples. I'm not sure
8 where -- where the Court's concern is coming from. And so
9 that's why I'm having trouble understanding.
10 THE COURT: Maybe I'm just trying to find out -- if
11 you're not making that argument, then I think we can move on.
12 MR. DUGAN: Okay. We are not making the argument
13 that heterosexual couples' benefits or marriage as an
14 institution will be denigrated if the benefits are extended to
15 others.
16 THE COURT: All right. Do you want to saying say
17 anything about that?
18 MR. WEST: Well, importantly, that is the argument
19 that the House makes in passing DOMA.
20 THE COURT: That's why I asked it.
21 MR. WEST: And, in fact, it's one of the arguments,
22 this idea of defending the traditional notion of marriage, it's
23 one of the arguments that, again, when the United States was
24 defending most recently the statute, we also disavowed as not a
25 viable argument to make under rational basis.

(415) 373-2529

A-1349
75
1 But it does -- I think this conversation does
2 underscore, really, the central question in this case, which is
3 that what justifies the federal government denying this couple
4 of federal benefits as -- when they are similarly situated with
5 all other legally married couples.
7 MS. LIN: I don't have anything to add.
8 THE COURT: All right. Very well.
9 Last question, Question No. 9: To the extent that
10 the Court decides the issues presented on the motion for
11 summary judgment, does BLAG contend the motion to strike
12 evidentiary materials is still applicable?
13 MR. DUGAN: Well, your Honor, obviously we think this
14 should be decided on a motion to dismiss, and we think the
15 motion for summary judgment should be denied. But we don't
16 contend that the evidence needs to be stricken, if you're going
17 to decide it on a motion for summary judgment.
18 THE COURT: All right. I assume the government --
19 you have no dog in that race.
20 MR. WEST: No dog in the fight.
21 THE COURT: And, do you agree?
22 MS. LIN: That's fine.
23 THE COURT: Okay. All right.
24 So, this is the point where the Court sort of asks
25 advisedly, just, with the vacuum approach being invoked here,

(415) 373-2529

A-1350
76
1 is there anything that we missed that the parties wish to
2 either sum up -- I don't need a Fourth-of-July speech about --
3 you know, I've already heard all the arguments. It's been very
4 helpful. But if there's anything that counsel feeds the need
5 to go forward with, to leave ringing in the Court's ears, I'll
6 be glad to hear.
7 And I'll start with Plaintiffs, because they are
8 Plaintiffs. So, who would like to speak for the Plaintiffs?
9 MS. BORELLI: Well, I have one housekeeping matter,
10 Your Honor. I had mentioned to the Court earlier an amicus
11 brief, and neglected to actually offer copies of it. It's also
12 available in PACER. It was filed in the Commonwealth and Gill
13 cases in the First Circuit. I believe it was filed on
14 November 3rd. I.
15 It is called the Brief of Amici Curiae Family Law
16 Professors in Support of Affirmance of the Judgment Below. And
17 if the Court would like paper copies, we would have that --
18 THE COURT: All right. I will allow you to lodge the
19 copies.
20 Do you have a position on that at this point?
21 MR. DUGAN: No, Your Honor.
22 THE COURT: So you don't object.
23 MR. DUGAN: No. I think that -- these are things
24 like legislative facts that we have -- we have said are
25 perfectly -- excuse me, perfectly allowed for the Court to

(415) 373-2529

A-1351
77
1 take --
2 THE COURT: Does the government have any objection?
3 MR. WEST: No objection.
4 THE COURT: All right. They will be admitted for
5 purposes of this hearing.
6 MR. DUGAN: Thank you.
7 THE COURT: And my clerk will talk to you about how
8 to do that, in the appropriate way. We will mark, as
9 Plaintiff's Exhibit 1 for the purpose of this hearing only, the
10 argument. It will be considered as part of the Record on
11 summary judgment.
12 (Plaintiff's Exhibit 1 marked for identification and
13 received)
14 THE COURT: So, anything further the Plaintiffs wish
15 to say?
16 MS. LIN: No, Your Honor.
17 MR. DUGAN: Your Honor, just briefly. Obviously,
18 we've briefed this, and we have told you what -- what standards
19 we think you need to decide this case on.
20 The final point I would make is, it seems that the
21 other side is saying that the only basis for this law is
22 animus. And I think this Court should think long and hard
23 before it decides that Senator Wellstone, Senator Biden,
24 Senator Mikulski, Senator Levin, Senator Dodd, and numerous
25 others voted for this law solely out of animus.

(415) 373-2529

A-1352
78
1 THE COURT: All right. I'm sure the government has
2 something to say about that.
3 MR. WEST: Very briefly, Your Honor. We've certainly
4 not contended that the only basis for this law is animus, but
5 we do think, under heightened scrutiny analysis, this Court
6 ought to consider the actual motivations of Congress as
7 expressed in the House report. And there's no shortage of
8 examples that animus was one of the motivations for this law,
9 we would even submit, a major motivation for this law.
10 But just briefly, Your Honor, it's clear that the
11 Court is grappling from the questions and from the conversation
12 with this issue of federalism, Congress legislating, and
13 domestic relations. And I would just offer the Court, if it's
14 helpful, to look at the briefs that we have filed in the Gill
15 case.
16 We agree with Plaintiffs in that case, on the
17 equal-protection claim. And, it's the same argument that I'm
18 making here. We do disagree with them on the Tenth Amendment
19 and spending-clause claims. And, you know, we think that
20 substantive due-process federalism claims, we think that those
21 unnecessarily complicate the inquiry here. That -- that, first
22 of all, that's not the way this case has been pled by
23 Ms. Golinski.
24 But, we think that this case actually presents the
25 equal protection -- the equal-protection inquiry in a fairly

(415) 373-2529

A-1353
79
1 straightforward way, and that it would be enormously helpful to
2 whatever court is reviewing this case and this Record for this
3 case -- for this Court to engage in the equal-protection
4 analysis, to engage in the factors analysis, because it will be
5 -- if the Court does that, it will be one of the only courts
6 that has done so in this circuit since High Tech Gays.
7 THE COURT: All right. Do you want to say anything
8 in response, Ms. Lin, or --
9 MS. LIN: I think Ms. Borelli wanted to briefly
10 address the --
11 THE COURT: Yes.
12 MS. BORELLI: On the point of animus, Your Honor, if
13 ever there were a picture of animus, we think that the
14 legislative record of DOMA is it. But I also think it's
15 important to note that when the Supreme Court has talked about
16 what animus is, it's been careful to say that it doesn't
17 require malice.
18 As Justice Kennedy said, concurring in Alabama versus
19 Garrett: "It can be insensitivity caused by simple want of
20 careful, rational reflection, or an instinctive mechanism to
21 guard against others who appear to be different." And Cleburne
22 defined it as "a view that others are less worthy or less
23 deserving." And, that's all we would add.
24 THE COURT: The Court is impressed that you knew that
25 by heart, but --

(415) 373-2529

A-1354
80
1 (Laughter)
2 THE COURT: -- that's -- it's not -- that has no
3 weight, but it's just impressive.
4 All right. The matter is submitted. Thank you,
5 Counsel, to all, for a very excellent argument and being
6 helpful to the Court. And thanks particularly the Justice
7 Department for sending its chief. Thank you.
8 MR. WEST: Thank you.
9 THE COURT: I'll state, I'm going to direct the
10 parties to order a transcript of these proceedings and equally
11 share the cost. All right, thank you.
12 MR. WEST: Thank you, Your Honor.
13 (Conclusion of Proceedings)
14
15
16
17
18
19
20
21
22
23
24
25

(415) 373-2529

A-1355

CERTIFICATE OF REPORTER
I, BELLE BALL, Official Reporter for the United States
Court, Northern District of California, hereby certify that the
foregoing proceedings in Case No. C 10-00257 JSW, Golinski v.
US OPM, et al., were reported by me, a certified shorthand
reporter, and were thereafter transcribed under my direction
into typewriting; that the foregoing is a true record of said
proceedings as bound by me at the time of filing.
The validity of the reporter's certification of said
transcript may be void upon disassembly and/or removal
from the court file.
__________/s/ Belle Ball ____________
Belle Ball, CSR 8785, RMR, CRR
Tuesday, January 17, 2012

(415) 373-2529

A-1356
rv * .
JyiK'tl
A-1357
(J) c
C CD
03 - S
CD
c ^
o
o
<
c
o
CO
e
03
Q
03
>
^
w
z
N
Q
O
EC
GQ

S
Q
n
>
<
Q
>-
CQ
Q
Ml
H
Q
LU
Z
<
1
s-
GC
LU
S
<
Q
<
o
a
o
A-1358
to
w
bO
o
W
00
VH
3
z
r-
<J
o
-a C ,o
Q^
OS
m
^11
i
v
e
r
s
i
t
y

P
r
e
s
:

i
v
e
r
s
i
t
y
s

o
b
j
>

,

s
c
h
o
l
a
r
s
h
i
p

CJ C J^
x
f
o
r
d
U

x
f
o
r
d
U

r
e
s
e
a
r
c

o o s o
D
a
r
e
s

M
e
l
b
.

T
a
i
p
e
i

TJ
C
a
p
e

T
o
w
n

p
u
i

M
a
d
n

S
h
a
n
g
h
a
i

u
c
k
l
a
n
d

a
a
l
a

L
u
m

e
w

D
e
l
h
i

< M Z
-Q O ^3
3 CM ^
S s s
s <
C QJ
fr
5
o
? < O
o
O
o <
-o o
j a
OH ^
5 s
^ J3
2 ^
o o
"2 ^ s o
S -P S c
S" o S "-
^ S S $
^ 5 o s
? >S b
&
a >- . -fc
-
B c oo a
g |
11 11
t l fl
in n JJ O
o o o c
OJ ?; 2 ^
s S S.
c
a 6 I
OJ
QJ
s
-3 p
I -o
c <
T3
DO S
s a
-n cq
C
S "2
^ 8
^ o
S >~
9 -
0
o S
<; a;
I a
T3
<;
5 s
_^ ^ 3
"g o 5
" " o
B
oo
O ^4
S 2 Z ^
a 55 m
CN GO
>
A-1359
w
3 TO
2 o
CD
- t - J
"a
c
o
CD
O
co o
c:
o
CD
CO
CD
C
C
i -
a
K
z
<
5
E C
Lil
Z
Ul
- >
Q
2
<
Z
o
111
H
H
<
D-
LU
I-
h-
O
_]
CC
<
I
o
c
o
u
4^2
d s 5P
s M P
^ 6
73 - ^
<u ^ 3
O
t^ a
00
II
a
o
rri ^
CO - f l
a , fl
o u
p.,
o
fl
3 ^
-fl
OH
aC
o
o
t <
o
o
<N
fl
O
CL,
C L , ^
a,
o
o "d
^
OJ 73
rt
a g O t !
On ca
K
0
^ ^
, CO fl
" f l s
M rt c3
u
fl T^. in
n co
co u
O U
a, o
CO CO
O
^ H CO
CM
6
g -f l ^
y co ô
G
A
0
cu o
0
M . S (N
O 5 T3
1 1 3
j2 o . -
cu cti O
CX4 cu
1) " fl
;
- xi s
Mi b ?
4 ^
cu
T3
>
O
- Q
CO
fl
O
4 - ,
D H
o
-t3
n>
be
fl
< r -
o
o
n!
3 CO
b cu
TO
CO O
cy _ CL
2 -s f l
CO t ^
fl O
5 < = >
- CNl
- c
CO JJ
cu T 3
fl -CI
s &
' d '
CU 4^ H
S o
cu ^
bo u
ca ^
fl a
C4-, -4-4
O co
! >-
- O
CO
fl
On
O
C
<u
co
o- 2 S
^ -fl
-fl u
CU
&4
'rt 3
CL 53
fl
CU
-fl
-d
fl
fl
O co
-fl
O
O
n U V
fl
P ni
cu - a
^ 4 CU
P A
CO fl
u -f l T3
ag o
O +3
-a
; "^ ?
fl .u
f t ni
o .fl
'S sb -P
^ -fl
-a ^
o
.fl
nd
fl
o
-fl
an
^ 3
-fl
cu
fl
fl cd
'"" 'f3
o
co aj
cu g
i-L nj
1)
- P
' i
A
o
13 55 ^
Cu cu 2 <L>
O - Q <U - O
fl
O
ctf
p- ^ c
& , - Q O
"< g -^
" - ' c3 CL
S^ - f l O
U ^
CO =0 ^ ^
n d S-T ^
cu CU O
-fl -O o
6 ^
P 0 fc
fl
o
'4-4
fl
si -P '-3
JJ c
-^ fl
' p fl
-fl
o
CO
CU
M fl <u
(J - D
tj o
nJ ' P ^
fl O
o r
co
I S -
-P
fl
CL
O
T3
tu
U
<J co
CC3 CU
5 73
^ 1
Td fl
< ^
i2 S
60
fl :
TO 4-J
be . -
^ g ^
fl o o
>
-fl 2 fl
fl
O
5 ^ -fl
> u +-1
CL . 5
b o d 4>
-ii o -3
<u >
f
^ c
CO
c ^
x 3
CU --,
> ^ cS
'5 3 "^
> S3
t3 S
, 1 )
^ K fl
U S > -
CO
w i i-i
JZ $ -B
nd
g J
5 )
fcl A
eg
5 u
a,
o
A-1360
86 ADOPTION BY LESBIANS AND GAY MEN
openly lesbian and gay prospective adoptive parents. For instance, in a landmark
New York adoption case, the court noted that "(t)he fact that the petitioners here
maintain an open lesbian relationship is not a reason to deny adoption. ...
A parents sexual orientation or sexual practices are presumptively irrelevant..."
(In re Adoption of Evan, 1992, pp. 1001-1002).
In many other jurisdictions, there is active debate of issues relevant to sexual
orientation and adoption. Bills to bar lesbian or gay applicants from becoming
adoptive or foster parents have been introduced in a number of states (e.g.,
Kentucky, Tennessee, and Virginia) in the past several years. To date, all of these
efforts have been defeated, but observers expect more may emerge in the future.
In these debates, there is agreement among the parties that the interests of
children should be considered ahead of other concerns. For this reason, discus-
sions about sexual orientation and adoption often resolve to debates about how
parental sexual orientation may affect children. Advocates of allowing adoptions
by lesbian and gay adults argue that many children need homes, that sexual orien-
tation is unrelated to parenting abilities, and that, therefore, lesbian and gay par-
ents should be allowed to adopt children. Opponents of such adoptions suggest
that lesbian and gay adults do not provide safe, supportive homes for children,
and that any children adopted by them will suffer. In short, all agree that children's
welfare should be paramount, but the two sides of the debate disagree about what
policies best serve children's interests.
In this discussion, reliable information about the actual development and
adjustment of children who are being reared by lesbian and gay parents can be
useful. The most directly relevant research would assess the growth and develop-
ment of children who have been adopted by lesbian or gay parents. Also relevant,
however, are data about the development of children who have been born to les-
bian or gay parents and who are being reared by them. In the next section, we
consider the findings of such research.
RESEARCH ON OFFSPRING OF LESBIAN AND GAY PARENTS
At the time of this writing (i.e., October 2009), only two studies of children
adopted by lesbian and gay parents have been published (Erich, Leung, & Kindle,
2005; Ryan, 2007). Working with a convenience sample of 68 families in which
parents were lesbian or gay and 43 families in which parents were heterosexual,
Erich and his colleagues studied family functioning and behavior problems of
6-year-old children. Their findings revealed that children and families were adapt-
ing well. They reported no significant differences in children's conduct or in family
functioning associated with parental sexual orientation (Erich, Leung, & Kindle,
2005; for related information about this study, see also Erich, Leung, Kindle, &
Carter, 2005; Kindle & Erich, 2005; Leung, Erich & Kanenberg, 2005).
Ryan (2007) studied 53 lesbian-parent and 41 gay-parent families with adop-
tive children. He found that not only did parents describe their parenting in posi-
tive terms, but they also described their children as having many strengths.
Despite the fact that many children had histories of maltreatment, they were rated
Adolescents with Same-Sex Parents
by their parents as being within the normal range of functioning, both at home
and at school.
The studies by Erich and his colleagues (2005) and by Ryan (2007) are the only
published research to date to compare the adjustment of adopted children in both
types of families, but there is no reason to expect that children adopted by lesbians
and gay men should fare any differently than children adopted by heterosexual
individuals. Furthermore, the findings reported in this study are quite consistent
with those of a substantial literature on the development and adjustment of chil-
dren with lesbian and gay parents. Both in longitudinal and in cross-sectional stud-
ies, in the United States and abroad, children of lesbian and gay parents have been
found to show good adjustment and to develop in ways that are very similar to
other children (Gartrell, Peyser, & Bos, this volume; Gartrell, Deck, Rodas, Peyser,
& Banks, 2005; Patterson, 2000, 2006, 2009; Perrin & Committee on Psychosocial
Aspects of Child and Family Health, 2002). Many questions have been studied,
including children's adjustment at home, at school, with peers, and in other domains
of their lives. In all these domains, the strength of parent-child relationships has
been an important predictor of child adjustment, but parental sexual orientation
has been less important (Patterson, 2006, 2007). When small differences have been
found in child outcome or parenting behavior as a function of parental sexual ori-
entation, the data have indicated no risk of harm for children of lesbians and gays.
The strength of these findings has been reflected in statements by many main-
stream professional organizations. For instance, after a careful review of the
research findings, the American Psychological Association (2004) went on record
opposing "any discrimination based on sexual orientation in matters of adoption,
child custody and visitation, foster care and reproductive health services." After
their review of the research in this area, the American Academy of Pediatrics
(2002) similarly recognized "that a considerable body of professional literature
provides evidence that children with parents who are homosexual can have the
same advantages and the same expectations for health, adjustment and develop-
ment as can children whose parents are heterosexual." These and other respected
professional groups, including the American Bar Association, the Child Welfare
League of America, the National Association of Social Workers, and the Evan
B. Donaldson Adoption Institute have based their conclusions on findings from
social science research suggesting that parental sexual orientation is not a good
predictor of parenting ability or child adjustment.
Very little research, however, has been conducted on adolescent offspring of
lesbian or gay parents, and it has been suggested that caution be used when gen-
eralizing the results of research conducted with young children to adolescents
(e.g., Perrin & Committee on Psychosocial Aspects of Child and Family Health,
2002). Because adolescence is a time during which issues such as personal iden-
tity, peers, and dating become very important, and because of concerns about the
possible effects of same-sex parenting during adolescence (e.g., Baumrind, 1995),
it is an especially important period in which to examine the development of youth
with nonheterosexual parents.
A small body of research exists that focuses on the development of adolescent
offspring of families headed by lesbian couples. Huggins (1989) reported a study
A-1361
of 18 adolescents with divorced heterosexual and 18 with divorced lesbian
mothers, in which she found no differences in adolescent self-esteem as a function
of mothers' sexual orientation. O'Connor (1993) studied 11 young men and
women who were the offspring of divorced or separated lesbian mothers. Her
participants expressed strong loyalty and protectiveness toward their mothers,
but also described worries about losing friends or being judged by others due to
their mothers' sexual orientation. Gershon, Tschann, and Jemerin (1999) studied
self-esteem, perception of stigma, and coping skills among 76 adolescent offspring
of lesbian mothers, and reported that adolescents who perceived more stigma
related to having a lesbian mother had lower self-esteem in five of seven areas,
including social acceptance and self-worth.
A recent study of adolescents parented by same- and opposite-sex couples in
the United Kingdom assessed victimization, social support, and psychosocial
functioning (Rivers, Poteat, & Noret, 2008). Rivers and his colleagues reported
that adolescents with same-sex parents did not differ from those with opposite-sex
parents or from the general student population at their school on measures of peer
victimization and bullying, psychological symptoms, or use of social support.
They also did not differ in their reports of common adolescent concerns, such as
school work, appearance, and relationships with teachers (Rivers et al, 2008).
A slightly older population was studied in Tasker and Golombok's (1997) lon-
gitudinal study of 23 young adult offspring of lesbian mothers and a matched
group of 23 young adult offspring of heterosexual mothers. In this generally well-
adjusted sample, young men and women who were reared by lesbian mothers
were no more likely than those raised by heterosexual mothers to experience
depression or anxiety, or to have sought professional help for psychiatric prob-
lems. They reported having close friendships during adolescence, and were no
more likely to remember peer group hostility than were those from other families.
Offspring of lesbian mothers were also no more likely to report same-sex sexual
attraction or a gay/lesbian/bisexual identity than were those from heterosexual
families. They were, however, more likely to have considered a gay or lesbian rela-
tionship as a possibility for themselves and to have been involved in a same-sex
relationship, suggesting that although sexual attraction and identity may not be
related to parental sexual identities, the likelihood of considering or entering a
same-sex relationship may be associated with parents' sexual orientation.
In general, like the literature on younger children, the studies of adolescents
have found few differences in adjustment as a function of parental sexual orienta-
tion. Research on younger children (e.g., Chan, Raboy, & Patterson, 1998) has
found that variables representing families' organization of daily life, such as divi-
sion of household labor and childcare, are more likely than parental sexual orienta-
tion to be associated with children's outcomes. The research on adolescent offspring
of same-sex couples described above, however, did not address this issue.
A substantial body of research indicates that parenting style influences the
effectiveness of parents' efforts to socialize their children (Steinberg & Silk, 2002).
In particular, a warm and accepting style of parenting is related to optimal out-
comes for adolescents (Rohner, 1999), especially if it is combined with appropriate
limit setting and monitoring of adolescent behavior (Steinberg, Lamborn,
Dornbusch, & Darling, 1992). The relationship between parental warmth and pos-
itive outcomes has been found for adolescents from a wide variety of ethnic, socio-
economic, and family structure backgrounds, and by researchers working with a
variety of different methodological approaches (Khaleque & Rohner, 2002). That
these linkages have been found among such a diverse group of adolescents suggests
that they might also be expected among the offspring of gay and lesbian parents.
In summary, the research on adolescent and young adult offspring of lesbian
mothers suggests that they are developing in positive ways. However, the research
has been limited and most studies were based on small samples, the representative-
ness of which can be difficult to assess (Stacey & Biblarz, 2001). One recent study
assessed adjustment of 7-year-old children with lesbian and heterosexual mothers,
using data from a large geographic population study (Golombok et al, 2003), and
another focused on a representative sample of adolescents drawn from schools in
the United Kingdom (Rivers et al, 2008). To the best of our knowledge, however,
the research described here is the first to assess adjustment of adolescents living
with same-sex parents with data drawn from a large national sample. Our sample
is drawn from the National Longitudinal Study of Adolescent Health (Add Health),
which includes participants from many different backgrounds, from many parts of
the United States (Bearman, Jones, & Udry, 1997; Resnick et al, 1997).
Examination of the existing research indicates that there is a need for analysis
of a comprehensive set of outcomes for adolescents who live with same-sex par-
ents. The Add Health study assessed adolescent adjustment in many different
ways, including various aspects of psychosocial well-being, school functioning,
romantic relationships and behaviors, risky behaviors such as substance use, and
peer relations. This study also examined several family and relationship variables
that have not been included in past research, such as adolescents' perceptions of
parental warmth, care from adults and peers, integration into the neighborhood,
and autonomy, as well as parental assessment of the quality of the parent-child
relationship. The Add Health database thus afforded a broad overview of adoles-
cent adjustment.
Our research assessed normative levels of adjustment among adolescent off-
spring of same-sex parents, and also explored factors that are associated with indi-
vidual differences in adjustment and behavior within this group. We assessed
structural variables such as family type (i.e., whether the parent has a same-sex or
opposite-sex partner), as well as family and relationship variables such as adoles-
cents' perceptions of parental warmth, care from adults and peers, autonomy, and
integration into the neighborhood, as well as the parents' perceptions of the qual-
ity of their relationship with their child. Based on the previous findings with chil-
dren (e.g., Chan et al , 1998; Flaks et al , 1995; Golombok et al , 2003), we expected
to find few differences in adjustment between youth living with parents who had
same-sex versus opposite-sex partners. Consistent with the literature on sources
of individual differences among adolescents (e.g., Steinberg & Silk, 2002), however,
we did expect to find associations between family and relationship variables and
adolescent adjustment outcomes.
A-1362
In summary, this chapter describes our research on adjustment and develop-
ment among adolescents living with same-sex couples. Our data were drawn from
the Add Health study, which provided a nearly representative sample of adoles-
cents and their parents in the United States during the 1990s. By selecting those
youngsters in Add Health who were living with same-sex parents, and comparing
them both to a matched group of youngsters living with other-sex parents and to
the overall sample, we aimed to address questions about adjustment among teens
living with same-sex parents.
INTRODUCTION TO THE NATIONAL LONGI TUDI NAL STUDY
OF ADOLESCENT HEALTH
For this research, participating families were drawn from a large national sample
of adolescents in the United States collected by Quality Education Data for the
National Longitudinal Study of Adolescent Health (Add Health; Bearman,
Jones, & Udry, 1997). Add Health is a school-based study of the health-related
behaviors of adolescents in grades 7-12. A sample of 80 eligible high schools was
initially selected. Schools were stratified to ensure that this sample was represen-
tative of U.S. schools with respect to region of country, urbanicity, school type,
ethnicity, and school size. More than 70 percent of the originally sampled high
schools were recruited by Add Health. If a school refused to participate, a replace-
ment within its stratum was selected. Participating schools provided rosters of
their students and, in most cases, agreed to administer an In-School Questionnaire
during one class period. They also assisted in identifying their feeder schools (i.e.,
those schools that include seventh grade and send their graduates to that high
school). The final sample consisted of a pair of schools in each of 80 communities,
with the exception of some high schools that spanned grades 7 to 12 and there-
fore functioned as their own feeder schools (Bearman et al , 1997).
All students who completed an In-School Questionnaire, plus those who did
not complete a questionnaire but who were listed on a school roster, were eligible
for selection into the core in-home sample. Students in each school were stratified
by grade and gender, and approximately 17 were randomly chosen from each stra-
tum, so a total of about 200 adolescents were selected from each of the 80 pairs of
schools. A total core sample of 12,105 adolescents was interviewed.
Most interviews were conducted in 1995 in the participants' homes. All data
were recorded on laptop computers. For less sensitive sections, the interviewer
read the questions and entered the respondent's answers. For more sensitive sec-
tions, the respondent listened to prerecorded questions through earphones and
entered the answers directly.
A parent, preferably the resident mother, was asked to complete a question-
naire covering topics including parents' marriages and marriage-like relation-
ships; neighborhood characteristics; involvement in volunteer, civic, or school
activities; education and employment; household income; and parent-adolescent
relationships.
Data employed in the studies, described below, were collected through the in-
home interviews and surveys, as well as in-school surveys of students (Wave I,
collected in 1994-1995) and through the in-home questionnaires of parents.
IDENTIFICATION OF CURRENT SAMPLE AND
OF COMPARISON GROUPS
Offspring of same-sex couples were identified using a two-step process. We first
identified families in which parents reported being in a marriage or marriage-like
relationship with a person of the same sex. Because no data had been collected on
parents' sexual identities as such, families headed by gay, bisexual, or lesbian par-
ents who did not report that they were in a marriage or marriage-like relationship
at the time of data collection could not be identified.
In the second step, the consistency of parental reports about gender and
family relationships was examined. To guard against the possibility that some
families may have been misclassified due to coding errors, we retained only those
cases in which parental reports of gender and family relationship were consistent
(e.g., a parent reported being female and described her relationship to the ado-
lescent as "mother"). This procedure was designed to ensure that insofar as pos-
sible, only adolescents whose parents reported being involved in a marriage or
marriage-like relationship with a person of the same sex were selected for further
study.
The number of families headed by male same-sex couples was very small
(n = 6). Results of preliminary analyses that included these families were nearly
identical to those including only families headed by female same-sex couples.
Because of their small numbers, and to simplify interpretation of results, however,
we excluded these six families from the final sample.
The focal group of families identified through this process included those of 44
adolescents, 23 girls and 21 boys. Approximately 68 percent of the adolescents
identified themselves as European-American or white, and 32 percent identified
themselves as nonwhite or as biracial. On average, the adolescents were 15 and
their parents were 41
1
/2 years of age. Average household income for families in the
focal group was approximately $45,500 per year, and 48 percent of the parents in
this group had been college educated. Because only two adolescents in the focal
group had been adopted, their data are not reported separately here.
The resources of the Add Health database allowed the construction of a well-
matched comparison group of adolescents. Each of the offspring of same-sex par-
ents was matched with an adolescent from the Add Health database who was
reared by opposite-sex parents. This matching was accomplished by generating a
list of adolescents from the Add Health database who matched each target adoles-
cent on the following characteristics: sex, age, ethnic background, adoption status
(identified via parent reports), learning disability status, family income, and par-
ent's educational attainment. The first matching adolescent on each list was chosen
as the comparison adolescent for that target adolescent. The final sample included
A-1363
88 families, including 44 families headed by mothers with female partners and 44
comparison families headed by opposite-sex couples.
To assess the degree to which our focal group of 44 families with same-sex
parents was representative of the pverall population from which it was drawn, we
compared the demographic characteristics of the focal group with those for the
entire Add Health core sample (n = 12,105). Using one-sample f-tests and x
2
tests,
as appropriate, we compared adolescent age, parent age, household income, ado-
lescent gender, racial identification, adoption status, and parental education in the
two groups. None of these comparisons was statistically significant. We conclude
that our focal group of 44 families was demographically similar to the population
from which it was drawn.
PSYCHOSOCIAL ADJUSTMENT, FAMILY RELATIONSHIPS,
AND SCHOOL OUTCOMES AMONG ADOLESCENTS
LIVINGWITH SAME-SEX COUPLES
Our first set of questions concerned psychosocial adjustment and school out-
comes among adolescents with same-sex parents. How strong was the adoles-
cents' self-esteem? To what extent did these youth experience depressive symptoms,
or anxiety? What were their grades at school? How much trouble had they encoun-
tered at school, and how connected did they feel to other people in their school
environments? And how close were their relationships with parents? Information
addressing these questions allowed us to obtain an overview of adolescent func-
tioning in different domains of life.
Assessment of Psychosocial Adjustment, Family Relationships,
and School Outcomes
We examined data from Add Health regarding different aspects of adolescent
adjustment and relationships with parents. Composite variables were created
from the Add Health Home Interviews and In-School Questionnaires for adoles-
cents' self-reported levels of depressive symptoms, anxiety, self-esteem, school
grades, trouble at school, and school connectedness. Composite variables were
also formed for adolescents' reports of their perceptions of parental warmth,
caring from adults and peers, their integration into their neighborhood, and their
autonomy. Adolescents' romantic attractions, relationships, and behaviors were
assessed with individual items. Unless otherwise specified, these are all self-report
variables. Parent reports about their relationships with adolescent offspring were
also included.
PSYCHOSOCIAL ADJUSTMENT
Adolescent depressive symptoms were assessed with a 19-question version of the
CES-D (Radloff, 1977) scale from the In-Home Interview. This scale of depressive
Adolescents with Same-Sex Parents 93
symptoms included questions about the frequency of symptoms such as feeling
lonely, depressed, or too tired to do things. Possible scores on this scale, based on
the sum of the 19 items, ranged from 0 to 57, with higher scores indicating greater
levels of depressive symptoms. Cronbach's alpha for this scale was 0.85 for this
sample.
Adolescent anxiety was measured with a seven-item scale that included ques-
tions about the frequency of symptoms such as feeling moody or having trouble
relaxing. Items were measured on a scale of 0 (never) to 4 (every day), with scores
ranging from 0 to 28, and higher scores indicating higher levels of anxiety.
Cronbach's alpha for this anxiety scale was 0.68 for this sample.
Self-esteem was assessed using a six-item scale that included items such as feel-
ing socially accepted and feeling loved and wanted. Items were measured on a
scale of 1 (strongly disagree) to 5 (strongly agree), with scores ranging from 6 to
30, and higher scores indicating higher self-esteem. Cronbach's alpha for this scale
was 0.80 for this sample.
SCHOOL FUNCTIONING
School outcomes measured included grade point average (GPA), school con-
nectedness, and trouble in school. GPA was measured on a four-point scale
where 4 = A, 3 = B, 2 = C, and 1 = D or lower. It was assessed by taking the mean
of grades received in four school subjects (English, Mathematics, History/Social
Studies, and Science) in the current or most recent school year. Cronbach's alpha
for GPA was 0.79 in this sample.
School connectedness was measured using a five-item scale that assessed
respondents' feelings of integration into their school. Items, which were averaged
to form the adolescent's score, included the degree to which they felt close to other
students, felt like part of their school, and felt teachers treated students fairly.
Possible scores ranged from 1 (strongly disagree) to 5 (strongly agree). Cronbach's
alpha for the school connectedness scale in this sample was 0.82.
Trouble at school was assessed with a four-item scale that included items such
as problems getting homework done and in getting along with classmates. Items
were measured on a scale of 0 (never) to 4 (every day) and the mean of the four
items was taken, with higher scores indicating more trouble in school. Cronbach's
alpha for this scale was 0.71 for this sample.
ROMANTIC RELATI ONSHI PS, ATTRACTI ONS, AND BEHAVIORS
Adolescents' romantic attractions were assessed with two yes/no questions, "Have
you ever been attracted to a female?" and "Have you ever been attracted to a
male?" Females who answered yes to the first question and males who answered
yes to the second question were classified as having had a same-sex attraction. To
assess dating behavior, adolescents were asked three yes/no questions: whether
they had a romantic relationship in the past 18 months, whether they had a same-
sex romantic relationship in the past 18 months, and whether they had ever
engaged in sexual intercourse.
A-1364
94 ADOPTI ON BY LESBIANS AND GAY MEN
FAMILY AND RELATI ONSHI P VARIABLES
Parental warmth toward the adolescent was assessed using the mean of five items
from adolescent reports. Self-report items included adolescents' perceptions of
parents' warmth and caring toward them, perceived level of family's understand-
ing and attention, and feelings of closeness to parents. For questions in which
adolescents were asked about each parent, we used the response for the one
described as more warm and loving. Scores ranged from 1 (not at all) to 5 (very
much), with higher scores indicating greater warmth. Cronbach's alpha for the
parental warmth scale was 0.70.
Adolescents' perceptions of their integration into their neighborhoods were
measured using a scale of three yes/no (1 = yes, 0 = no) items. Items included
whether they knew people in their neighborhood, talked with neighbors, or felt
their neighbors look out for each other. The three items were summed, and pos-
sible scores ranged from 0 to 3, with higher scores indicating greater neighbor-
hood integration. Cronbach's alpha for neighborhood integration was 0.54.
Adolescents' perceived autonomy was assessed with a scale of seven yes/no
(1 = yes, 0 = no) items that addressed the extent to which they were allowed to
make decisions about aspects of their lives such as food, bedtime, TV viewing,
and friends. The seven items were summed, and possible scores ranged from 0 to
7, with higher scores indicating greater autonomy. Cronbach's alpha for autonomy
was 0.60.
Adolescents' perceived care from adults and friends was measured with three
items regarding how much they believed that adults, teachers, and friends cared
about them. The mean of the three items was taken as the adolescent's score, and
possible scores ranged from 1 (not at all) to 5 (very much), with higher scores
indicating perceptions of more caring. Cronbach's alpha for this scale was 0.58 for
this sample.
Parental perceptions of the quality of their relationship with their child were
assessed with a scale of six items from the parent's in-home interview. Items
included questions about the parent's assessment of trust, understanding, com-
munication, and the general quality of their relationship with their child, and
were measured on a scale of 1 to 5; scores ranged from 6 to 30, with higher scores
indicating closer relationships. Cronbach's alpha was 0.70 for this scale.
Results for Psychosocial Adjustment, Family Relationships,
and School Outcomes
We conducted analyses in two steps. The first set of analyses evaluated the degree
to which adolescents living with same-sex couples differed in their adjustment
from the comparison group. The second set of analyses explored associations of
adolescent adjustment with assessments of family and relationship processes. We
expected that the makeup of adolescents' households would be less important
than the strength of family relationships in accounting for variation in adolescent
adjustment.
Adolescents with Same-Sex Paients
Overall, adolescents reported positive psychosocial outcomes, with low levels
of anxiety and depressive symptoms, and high levels of self-esteem. Similarly,
adolescents reported positive school outcomes, with average GPAs of 2.8, high
levels of school connectedness, and low levels of trouble in school.
As expected, we found no differences in adolescents' psychosocial
adjustmentwhich included depressive symptoms, anxiety, and self-esteem
between offspring of same-sex couples and offspring of comparison families
headed by opposite-sex couples. We found a significant multivariate effect for
family type for the school outcomes, which was also significant in the univariate
analyses for school connectedness. Unexpectedly, adolescents with same-sex
parents reported feeling more connected at school than did those living with
opposite-sex parents, but we found no differences as a function of gender for
psychosocial adjustment or school functioning. As expected, there were no sig-
nificant interactions between gender and family type for psychological adjust-
ment or school outcomes. Demographic covariates (e.g., adolescent age, family
income, and parent's education) were not associated with these outcomes.
Analyses of adolescents' reports of romantic attractions and behaviors revealed
no differences between the groups in the percentage of adolescents who reported
ever having engaged in sexual intercourse (34 percent of adolescents living with
same-sex couples and 34 percent of those living with other-sex couples). There
was also no significant difference between the groups in the percentage of adoles-
cents who had had a romantic relationship in the past 18 months (68 percent of
adolescents living with same-sex couples and 59 percent of those living with
other-sex couples). Fewer than 10 adolescents reported same-sex attractions and
same-sex romantic relationships in the previous 18 months, so under stipulations
that permit use of these data, group comparisons are not presented. Reports of
romantic relationships, attractions, and behaviors did not differ as a function of
age or gender, except that older adolescents were more likely than younger ones to
report having had a romantic relationship in the past 18 months. In summary,
adolescent psychosocial, romantic attractions and behaviors, and school adjust-
ment did not differ as a function of family type or adolescent gender.
Overall, adolescents reported positive family relationships. Adolescents'
reports of parental warmth were high. Adolescents' perceptions of others' (teach-
ers, adults, and friends) care for them were also high, as were their reports of
autonomy. Their average assessment of their integration into their neighborhoods
was just above the middle of the scale, with higher scores indicating greater inte-
gration. Parents' perceptions of the quality of the parent-child relationship were
also high. In short, this was a well-adjusted sample.
Consistent with results for psychosocial and school outcomes, we found no
differences in adolescent reports of family and relationship processes, including
parental warmth, care from others, personal autonomy, or neighborhood integra-
tion, as a function of family type. We did, however, find a significant multivariate
difference in family and relationship processes that was attributable to adolescent
gender. Further analysis revealed, as expected from earlier research, that girls
reported higher levels of care from adults and peers than did boys.
A-1365
To what degree did outcomes for adolescents in our focal and comparison
samples differ from those for the population from which the samples were drawn?
To explore this question, we obtained mean scores (or percentages for categorical
variables) for each of the dependent variables. Using one-sample f-tests and x
2
tests, as appropriate, we compared means for our focal sample to those for the
entire Add Health core sample. None of these comparisons was statistically sig-
nificant. Thus, outcomes for adolescents with same-sex parents in our focal sample
did not differ significantly from those for a representative group of adolescents.
Having found almost no associations between family type and adolescent
adjustment, we wanted to examine possible associations between outcomes and
processes in the adolescent's environment. In particular, we examined correla-
tions among adolescents' perceptions of parental warmth, care from adults and
peers, autonomy, and neighborhood integration; parents' perceptions of the qual-
ity of the parent-child relationship; and measures of adolescent adjustment. We
also conducted simultaneous multiple regression analyses to determine whether
these family and relationship variables were significant predictors of adolescent
adjustment, while controlling for family type, adolescent gender, and socioeco-
nomic status. Regression analyses were conducted separately for adolescents'
depressive symptoms, anxiety, self esteem, GPA, school connectedness, and trou-
ble in school. Family type, adolescent's gender, parental education, and family
income were also included as predictors. We did not examine romantic attrac-
tions and behavior because of the small number of adolescents in either group
reporting same-sex attractions or romantic relationships.
Our results showed that, as expected, quality of family relationships was sig-
nificantly associated with many adolescent outcomes, including school connect-
edness, anxiety, and trouble in school. The association between adolescents'
depressive symptoms and parental report of the quality of the parent-adolescent
relationship was not statistically significant. There was, however, a nonsignificant
trend in the expected direction, with more positive relationships associated with
lower levels of depressive symptoms. Levels of self-esteem were significantly asso-
ciated with the adolescents' reports of caring from adults and peers, with more
care associated with higher self esteem. Adolescents' anxiety was associated with
adolescent gender, with boys reporting lower levels of anxiety. Adolescents'
reports of trouble in school were associated with the quality of the parent-child
relationship and level of parental education; less trouble in school was associated
with more positive relationships with parents and having parents with higher
levels of education. School connectedness was associated with family type, the
quality of the parent-child relationship, and care from adults and peers, with a
significant interaction between family type and care from adults and peers.
Greater school connectedness was associated with having same-sex parents,
reporting higher levels of care from adults and peers, and having parents who
reported a more positive parent-child relationship. Adolescents' perceived care
from adults and peers had a stronger effect on school connectedness for adoles-
cents living with same-sex parents than for those living with opposite-sex par-
ents. Adolescents' GPAs were not associated with any family and relationship
97
variable or socioeconomic status variable. In summary, adolescents' and parents'
reports of family and relationship processes, such as quality of the parent-child
relationship and care from adults and peers, were associated with several mea-
sures of adolescent functioning and were better predictors of adolescent adjust-
ment than was family type or adolescent gender.
SUBSTANCE USE, DELINQUENCY, AND VICTIMIZATION
AMONG ADOLESCENTS LIVING WITH SAME-SEX COUPLES
We also studied substance use, delinquency, and victimization among youngsters
living with same-sex couples. To what extent did youth use alcohol, tobacco, or
illegal drugs? To what extent did youth participate in delinquent activities? And to
what extent were they victimized by others? Our methods and findings for these
questions are described below.
Assessment of Substance Use, Delinquency, and Victimization
SUBSTANCE USE
All of the substance use assessments were based on adolescents' self-reports.
Adolescents' use of tobacco was assessed with a composite self-report variable
(Sieving et al., 2000) that uses four items to classify adolescents into one of seven
levels of tobacco use (1 = "never smoked," 3 = "currently smoking 1-2 cigarettes/
day," 5 = "currently smoking 6-10 cigarettes/day," 7 = "currently smoking >20
cigarettes/day"). Friends' use of tobacco was assessed by asking how many of their
three best friends smoked at least one cigarette per day.
Use of alcohol was assessed with three variables. We used a composite variable
(Sieving et al , 2000), which uses two items to create an eight-level variable
about adolescents' use of alcohol in their lifetime and in the past 12 months
(1 = "2-3 drinks in their lifetime," 3 = "drank alcohol on 1 or 2 days in the past
12 months," 5 = "drank 2-3 days a month in the past 12 months," 7 = "drank
3-5 days a week in the past 12 months," 8 = "drank every day or almost every
day in the past 12 months"). Adolescents were instructed to exclude "a sip or
taste of someone else's drink." Individual items measured how often in the past 12
months adolescents had binged on alcohol (5+ drinks in a row) and had gotten
drunk. Scores for these items ranged from 1 (never) to 7 (every day or almost
every day).
Lifetime and current marijuana use were assessed with a composite variable
(Sieving et al, 2000), which uses two survey items to form a seven-level variable
(1 = "never used marijuana," 3 = "more than three times in their lifetime, no use
in the past 30 days," 5 = "two or three times in the past 30 days," 7 = "more than
five times in the past 30 days).
Adolescents' risky use of alcohol and drugs was assessed with a scale of eight
items (1 = yes, 0 = no; Cronbach's alpha = 0.78) that asked whether the respondent
A-1366
had driven a car, gone to school, gotten into a fight, or carried a weapon while
consuming alcohol or drugs. The sum of the eight items was taken, with higher
scores indicating more risky use.
Relationship and physical problems caused by adolescents' use of alcohol were
assessed with a scale of nine items (Cronbach's alpha = 0.84), asking about the
frequency of being hung over, sick, in a fight, in a situation that was later regretted,
or in trouble with parents, school, or friends or dates because of alcohol use in the
past 12 months. Items were measured on a scale of 0 (never) to 4 (five or more
times) and the mean of the nine items was taken, with higher scores indicating
more problems.
Joint occurrences of substance use and sexual activity were assessed using a
scale of six items (1 = yes, 0 = no; Cronbach's alpha = 0.68) asking whether the
adolescents had used drugs, alcohol, or been drunk the first time (three items) or
most recent time (three items) they had sexual intercourse. The sum of the six
items was taken, and higher scores indicated more joint occurrences.
DELINQUENT BEHAVIOR
Adolescent delinquent behavior was assessed with 10 items (Cronbach's alpha =
0.74) in which they listened to questions through headphones and recorded their
answers on a laptop computer. These items ask about the occurrence of activities
such as damaging others' property, shoplifting, or getting into fights in the past
12 months. Scores on this scale were the sum of the 10 items (1 = yes, 0 = no), with
higher scores indicating more delinquent behaviors.
VI CTI MI ZATI ON
Adolescents' experiences as victims and witnesses of violence were assessed with
five items (Cronbach's alpha = 0.97) asking how often they had been shot at, cut,
or jumped, had a gun or knife pulled on them, or had seen someone shot or
stabbed. Scores were the sum of five items (1 = yes, 0 = no). Higher scores indi-
cated more victimization.
FAMILY AND RELATIONSHIP VARIABLES
Adolescents' perceived care from adults, teachers, and friends was measured with
three items (described above) regarding how much they believed that others cared
about them, with higher scores indicating perceptions of more caring. Parental per-
ceptions of the quality of their relationships with their adolescents were assessed
with a scale described above, on which higher scores indicated closer relationships.
Results for Substance Use, Delinquency, and Victimization
Twenty-five percent of the adolescents reported that they had ever smoked regularly
and 44 percent reported that they had consumed alcohol when they were not in the
company of their parents. Reports of adolescents' frequency of alcohol or tobacco
use were low. Adolescents also reported low levels of alcohol abuse, including binge
drinking and getting drunk. Their reports of physical and relationship problems
because of alcohol use were also low, as were their reports of risky use of drugs or
alcohol and their reports of joint occurrences of sexual activity and drug or alcohol
use. They also reported low levels of delinquent behavior and victimization.
As expected, we did not find a statistically significant difference in adolescents'
reports of their frequency of alcohol, tobacco, or marijuana use as a function of
family type. In addition, our analyses revealed no significant difference in the
number of three best friends who smoked or frequency of getting drunk or binge
drinking. Consistent with results for the substance use, we found no significant
difference in problems arising from alcohol or drug use (relationship and physical
problems, risky use of alcohol and drugs, and sex while under the influence of
alcohol or drugs) as a function of family type. Analyses also revealed no difference
in adolescents' delinquent behavior between offspring of same-sex couples and
offspring of comparison families headed by different-sex couples. Similarly, we
found no difference in adolescents' experiences as victims or witnesses of violence
as a function of family type.
Having found no associations between family type and adolescent risk behav-
ior, we explored possible associations between processes in the adolescent's envi-
ronment and adolescent outcomes. We conducted regression analyses separately
for use of tobacco, alcohol, and marijuana, as well as victimization and delinquent
behavior. Family type, gender, parental education, and family income were
included as predictors. Variables and interactions that were not statistically sig-
nificant predictors were removed from the models.
Results showed that, as expected, quality of family relationships was signifi-
cantly associated with many adolescent outcomes. Adolescents' tobacco use was
significantly associated with parental report of the quality of the parent-adolescent
relationship and with adolescents' reports of caring from adults and peers. As
expected, greater perceived care from others and more positive relationships
were associated with lower levels of tobacco use. Adolescents' use of alcohol,
use of marijuana, and delinquent behavior were significantly associated with
parental report of the quality of parent-adolescent relationships. Closer parent-
adolescent relationships were associated with less alcohol use, less marijuana use,
and less delinquent behavior on the part of youth. Boys reported more victimiza-
tion than did girls, but interactions between family type and predictor variables
'were not significant. In summary, adolescents' reports of family and relationship
processes, such as quality of parent-child relationships and care from adults and
peers, were associated with several measures of adolescent outcomes and were
better predictors of adolescent risk behavior than was family type.
PEER RELATIONS AMONG ADOLESCENTS LIVING
WITH SAME-SEX COUPLES
Another important dimension of adolescent adjustment is peer relations. To
explore experiences with peers among the offspring of same-sex and other-sex
A-1367
ADOPTION BY LESBIANS AND GAY MEN
couples, we studied not only the adolescents' self-reported friendships but also
their popularity among their peers, as described by their peers. In this way, we
sought a comprehensive view of peer relations among adolescents living with
same-sex couples.
Assessment of Peer Relations
Adolescents' reports of the quality of their peer relationships were measured with
a scale of nine items, including questions about how much the adolescent felt
friends cared about him or her, felt close to people at school, and felt like a part
of school, as well as frequency of trouble getting along with other students, feel-
ing that people were unfriendly, getting into any physical fights or serious physi-
cal fights, and being jumped. Negative items were reverse coded. These items
were standardized (M = 0, SD = 1) and the sum was taken, with higher scores
indicating more positive relationships. Cronbach's alpha was 0.68 for this
sample.
Perceived support from and amount of time spent with the adolescent's five
best male friends and five best female friends were measured with 10 yes/no items
(three items each about time with male friends and time with female friends; two
items each about support from male friends and support from female friends).
The support items asked whether the adolescent had talked to the friend about a
problem or talked to the friend on the telephone during the past 7 days. The time
items asked whether the adolescent had gone to the friend's house, hung out with
the friend during the past 7 days, or spent time with the friend during the past
weekend. The three support items were summed for all five friends of each gender,
and possible scores ranged from 0 to 15. The two time items were summed for all
five friends of each gender, and possible scores ranged from 0 to 10. Higher scores
indicated more support from or time spent with friends. Cronbach's alpha was
0.88 for time with female friends, 0.83 for time with male friends, 0.82 for support
from female friends, and 0.70 for support from male friends.
Adolescents' self-report data on their friendship networks were available for a
subset (n = 56) of those in our sample. Analyses revealed that this subset of ado-
lescents did not differ on family income or parental education from those for
whom these data were not available. Our analyses of network variables are limited
to this smaller sample.
The number of friends the adolescent reported having in school was measured
as the number of friendship nominations (up to 10) the adolescent made for stu-
dents in school. The presence of a best female friend was assessed with a yes/no
item indicating whether the adolescent nominated a female in the school as a best
friend. Similarly, the presence of a best male friend was assessed with a yes/no
item that indicates whether the adolescent nominated a male in school as a best
friend.
Peer-report network data were available to augment the information pro-
vided by adolescents regarding their friendship networks. As with the adolescent
self-report network data, analyses of these data are limited to the subset of adoles-
cents (n = 56) for whom network data were available. Variables constructed by
Add Health staff (Carolina Population Center, 1997) from peer-report data include
adolescent popularity, network centrality, network density, network heterogene-
ity, and several network traits.
Popularity was calculated as the number of times an adolescent was nominated
as a friend by other students in school, with higher scores indicating greater pop-
ularity in the adolescent's several network traits. Adolescents' centrality within
their friendship network (Bonacich, 1987; Carolina Population Center, 1997)
assesses whether they are located in prominent positions within their friendship
network and connected to many peers in their peer group. Higher numbers indi-
cate greater centrality.
The density of adolescents' friendship networks, including students who were
nominated by the adolescent as a friend and students who nominated the adoles-
cent as a friend, assesses how many interconnections exist among students in the
peer group, which is related to how likely adolescents are to know others in their
school (Haynie, 2000). Higher numbers indicate greater network density.
To assess the degree of diversity in friendship networks, which included stu-
dents who were nominated as friends by the adolescent and students who nomi-
nated the adolescent as a friend, we used heterogeneity measures of grade, age,
and race computed by Add Health staff. Higher numbers indicate greater diversity
in a trait. We assessed two characteristics of friendship networks, with the mean
value on that characteristic or behavior for students in the adolescent's peer net-
work. These characteristics included grades and number of extracurricular activi-
ties. Higher scores indicate higher grades or more activities (Carolina Population
Center, 1997).
Adolescents' perceived care from adults and friends was measured with three
items regarding how much they believed that adults, teachers, and friends cared
about them. The mean of the three items was taken as the adolescent's score, and
possible scores ranged from 1 to 5, with higher scores indicating perceptions of
more caring. Cronbach's alpha for this scale was 0.58 for this sample.
Perceived parental warmth toward the adolescent was assessed using the mean
of five items from adolescent reports. Self-report items included adolescents' per-
ceptions of parents' warmth and caring toward them, perceived level of family's
understanding and attention, and adolescents' feelings of closeness to parents. For
questions in which adolescents were asked about each of their parents, the
response for the parent who was described as more warm and loving was used.
Scores ranged from 1 to 5, with higher scores indicating greater warmth. Cronbach's
alpha for the parental warmth scale was 0.70 for this sample.
Adolescents answered eight yes/no items describing activities adolescents
sometimes engage in with their mothers. Adolescents reported whether or not
they had engaged in each of the activities with their resident mother in the previ-
ous 4 weeks. These items included going shopping, playing a sport, talking about
someone the adolescent is dating, going to the movies, discussing a personal
problem, talking about grades, talking about a school project, and talking about
A-1368
ADOPTION BY LESBIANS AND GAY MEN
other things going on in school. The eight items were summed, with possible
scores ranging from 0 to 8. Cronbach's alpha for this variable was 0.67 for this
sample.
Results for Peer Relations
Analyses were conducted in two major steps. The first set of analyses evaluated the
degree to which adolescents living with same-sex couples differed in their family
relationships and peer relations from the comparison group, and they employed
two-way (family type: same-sex versus opposite-sex parents x gender of adoles-
cent) ANOVAs and MANOVAs. The second set of analyses explored associations
of adolescent peer relations with assessments of family and relationship processes.
Simultaneous multiple regression analyses were used to determine whether these
processes were significant predictors of adolescent adjustment, while controlling
for family type, adolescent gender, and socioeconomic status. We expected that
family type would be less important than family relationships and processes in
accounting for variation in the quality of adolescent peer relations, and that pro-
cesses related to positive outcomes for adolescents would be similar, regardless of
family type, and that no interactions between family type and relationship pro-
cesses would emerge.
Overall, this sample reported positive peer relations, with adolescents report-
ing an average of about five friends in school. Adolescents also reported spending
time with between one and two male friends and between one and two female
friends, on average, in the past week, engaging in activities such as going to the
friend's home, hanging out, and talking on the phone.
As expected, there were no differences in the number of friends that adoles-
cents nominated in their schools, nor in the quality of their peer relations as a
function of family type. Girls rated the quality of their peer relations slightly more
positively than did boys, but this comparison did not reach statistical significance.
There was no significant difference between groups in the percent of adolescents
who reported having a best male friend; 64 percent of adolescents with same-sex
parents and 68 percent of those with opposite-sex parents reported this.
Adolescents who reported having a best female friend (68 percent of adolescents
with same-sex parents and 40 percent of adolescents with opposite-sex parents,
ns) were somewhat more likely to be living with same-sex couples, but this differ-
ence did not reach statistical significance. Analyses of adolescents' reports of time
spent with and support received from male and female friends also revealed no
significant differences as a function of family type. There was, however, a signifi-
cant effect for gender; girls reported more support from female friends than did
boys. All of the analyses were run again with family income and parent's educa-
tion as covariates. As the results did not differ between the two analyses and as the
influence of demographic characteristics was not a focus of our research, demo-
graphic results are not presented here. Overall, adolescent reports of peer rela-
tions did not differ as a function of family type.
With regard to peer reports of peer relations, adolescents in this sample were
nominated as a friend by an average of almost five schoolmates. As expected,
analyses of peer reports of the adolescent's peer relations, including popularity,
network centrality, and network density, revealed no significant differences as a
function of family type. There was, however, a significant effect for adolescent
gender, with girls having higher popularity ratings than did boys.
We also used peer report data to calculate the heterogeneity of the adolescent's
friendship network with respect to age, race, and school grades. On average, this
sample of adolescents had networks that were moderately diverse, and there were
no significant differences as a function of family type or adolescent gender. In
summary, adolescents living with same-sex parents had friendship networks that
were very similar in heterogeneity and member characteristics to those of adoles-
cents living with opposite-sex parents.
In line with our expectations, there were no significant differences in adoles-
cent reports of family and relationship processes, including parental warmth,
activities with mother, or care from others as a function of family type. Girls did,
however, report higher levels of care from adults and peers, and greater participa-
tion in activities with their mothers, than did boys. To assess the degree to which
outcomes for adolescents in our focal and comparison samples differed from
those for the population from which the samples were drawn, we obtained mean
scores from the Add Health Core Sample for each of the dependent variables.
Using one-sample f-tests and chi-squared tests, we compared means for our focal
sample to those for the entire Add Health core sample. None of these comparisons
was statistically significant. Thus, peer relations for adolescents with same-sex
parents in our focal sample did not differ significantly from those of a nationally
representative group of American adolescents.
We also explored possible associations between processes in the adolescent's
environment and adolescent peer relations. Simultaneous multiple regression
analyses were used to determine whether these family and relationship variables
were significant predictors of adolescent peer relations, while controlling for
family type, adolescent gender, and socioeconomic status. Regression analyses
were conducted separately for adolescents' reports of the quality of their peer rela-
tions and the number of friends nominated by the adolescent as friends, as well as
for peer reports of popularity, network centrality, and network density. Family
type, adolescent's gender, parental education, and family income were also included
as predictors, with family type and adolescent gender remaining in all models for
comparison. Demographic variables and family and relationship variables that
were not statistically significant predictors were removed from the models.
Results showed that, as expected, family and relationship variables were sig-
nificantly associated with many measures of adolescent peer relations. Adolescents'
reports of the quality of their peer relations were significantly associated with par-
ents' reports of the quality of the parent-adolescent relationship and with the
adolescents' reports of caring from adults and peers, with more positive parent-
adolescent relationships and more perceived care from adults and peers associ-
ated with more positive peer relations. Similarly, the number of school friends
A-1369
reported by adolescents was associated with the quality of the parent-adolescent
relationship and the number of activities done with mother, with more positive
parent-adolescent relationships and more activities with mother associated with
having more friends at school.
Peer reports of adolescent peer relations were also significantly associated with
family and relationship variables. Peer reports of adolescents' popularity were sig-
nificantly associated with the number of activities with mother, with more activi-
ties with mother associated with greater popularity. Adolescents' centrality in
their peer networks was associated with the quality of the parent-adolescent rela-
tionship; more positive relationships were associated with greater network cen-
trality. There was also a significant association between network centrality and
parental education, with higher levels of parental education associated with
greater network centrality. There were no significant associations among the den-
sity of adolescent's peer networks and family and relationship variables.
In summary, adolescent peer relations were associated in expected ways with
several family and relationship variables. Adolescent reports of care from adults
and peers and number of activities with mother, as well as parental reports of the
quality of the parent-adolescent relationship, were significantly associated with
numerous measures of adolescent peer relations. Also as predicted, family type
was not significantly associated with any measure of adolescent peer relations, but
several associations were found among these measures and adolescent gender.
Overall, these results suggest that family and relationship process variables are
more important predictors of adolescent peer relations than is family type.
DISCUSSION
The results of this researchwhich is the first to draw participants from a large,
national sample to examine the adjustment, school outcomes, substance use,
family, and peer relations of adolescents living with same-sex coupleshave
revealed few significant differences in adolescent functioning as a function of
family type. Regardless of family type, however, family and relationship variables
such as the quality of the parent-adolescent relationship were significantly associ-
ated with many aspects of adolescent functioning. These results, which are consis-
tent with the findings of past research on children living with lesbian mothers,
suggest that qualities of relationships within the family are more important in
predicting adolescent psychosocial adjustment, substance use, school outcomes,
family, and peer relations than is family type (Chan et al., 1998; Patterson, 2006).
Our research included assessments of multiple facets of adolescent adjustment,
including psychosocial adjustment, school outcomes, substance use, and relation-
ships with parents and peers. Indeed, assessments of each of these variables were
themselves mutifaceted. For instance, our assessments of peer relations included
adolescents' perceptions of the number of friends they have in school, the quality
of their peer relations, and the amount of support they receive from both male
and female friends. Our assessments of peer relations also included peer reports
about adolescent popularity within the school, centrality within peer networks,
network-density, and network heterogeneity. The consistency of our results, which
did not reveal significant differences among adolescents living with same-sex par-
ents versus those living with opposite-sex parents in a geographically, racially, and
economically diverse sample, leads to the conclusion that adolescents living with
same-sex parents are developing well (e.g., Wainright & Patterson, 2006, 2008;
Wainright, Russell, 8c Patterson, 2004).
We did not find significant associations between adolescents' functioning and
family type, but we did uncover associations between several aspects of adoles-
cent social and personal adjustment, on the one hand, and family and relation-
ship variables, on the other. For instance, parents' reports of the quality of the
parent-adolescent relationship were significantly associated with adolescents'
self-reports of the quality of their peer relations, number of friends in school,
and peer network centrality. Also supporting the view that adolescent peer rela-
tions are strongly associated with qualities of other relationships, results revealed
that adolescents' reports of care from others were significantly associated with
their reports of the quality of their peer relations. Similarly, adolescents who
reported participating in many activities with their mothers were also likely to
report having more friends in school. Peer reports of popularity showed the same
associations; those who described more activities with their mothers were also
described as more popular by peers. Overall then, these results support past find-
ings that suggest that family processes are more important predictors of adoles-
cent functioning than are structural variables such as family type (e.g., Allen,
Moore, Kuperminc, & Bell, 1998).
Major theories of human development have often been interpreted as predict-
ing that offspring of same-sex parents would encounter important difficulties in
their adjustment, especially during adolescence (Baumrind, 1995). Results from
this large sample of American adolescents have failed to confirm these predic-
tions, suggesting that the theories may need reevaluation, especially in their appli-
cation to outcomes for offspring of same-sex parents (Patterson, 2000, 2006).
Results of numerous recent studies on children and adolescents who do not live
with heterosexual parents (e.g., Gartrell, Peyser, & Bos, this volume; Patterson,
2000, 2006; Perrin & Committee on Psychosocial Aspects of Child and Family
Health, 2002; Stevens, Golombok, Beveridge, & the ALSPAC Study Team, 2002),
as well as those of the current research, suggest that theorists may need to recon-
sider the importance of being reared by opposite-sex parents for human personal
and social development.
Our confidence in the present findings is bolstered by the strengths of the Add
Health study (Bearman et al.,1997) from which the data have been drawn. Tire
Add Health study was designed and conducted by experienced researchers who
did not collect data for the purpose of studying adolescents living with same-sex
parents. This fact addresses one of the concerns sometimes expressed about some
earlier studies, namely that samples may have been biased toward lesbian mothers
who have higher incomes and greater educational attainment, as well as toward
those families whose children are developing well. Regardless of whether earlier
A-1370
samples were or were not biased in any way, the present sample cannot have been
subject to any such limitations.
The use of the Add Health database has allowed us to identify an ethnically,
economically, and geographically diverse sample of adolescents living with same-
sex couples. This is one of the most heterogeneous samples employed in research
with this population to date. The continuing but understandable reluctance of
some same-sex parents to identify themselves as such, however, limits our ability
to assess the exact degree to which the current sample is representative of all les-
bian-headed families. In addition, the Add Health database does not make it pos-
sible to determine how long adolescents have lived in their current family
situations, so we cannot reach any conclusions on that topic. Despite these limita-
tions, the Add Health database was a useful resource for this research.
This research is the first to involve information collected from parents and
peers, as well as from adolescent self-reports, in the study of adolescent peer rela-
tions among youth reared by same-sex couples. This feature of the study allowed
us to evaluate the possibility that self-reports might provide overly optimistic esti-
mates of adolescent development. To the contrary, we found that both adolescents
themselves and their peers at school described the peer relations of youngsters
reared by same-sex couples as satisfactory. Thus, our peer report data represent a
major asset that is helpful in ruling out possible alternative interpretations of our
findings.
Despite the issues in past research that were addressed by the design of our
study, the current research has some limitations. Among these is the fact that par-
ents were not asked directly about their sexual identities. As a result, we were forced
to rely on indirect assessments of sexual identity such as parent-report items that
asked parents whether they were in a "marriage or marriage-like relationship,"
together with information about the gender of that partner. Tire design of the Add
Health study allowed identification and study of adolescents living with mothers
who have female romantic partners, but not adolescents with lesbian mothers who
lived in other types of households (e.g., single lesbian mothers or mothers who did
not consider their relationship with a female romantic partner to be a marriage or
marriage-like relationship). The current research would have been strengthened if
parents had been asked to describe their sexual identities in terms of their sexual
attractions, fantasies, behaviors, and identities. As in all studies with gay and les-
bian populations, it is likely that some parents chose not to disclose their same-sex
relationships and therefore could not be identified for study in this research.
Despite limitations, the research makes a valuable contribution to knowledge about
adolescent development in the context of diverse families.
ADOPTION LAW AND POLICY IN LIGHT
OF RESEARCH FINDINGS
The current findings have implications for public policies that involve children of
lesbian mothers (Patterson, 2007, 2009). Inasmuch as these findings suggest
adolescents living with same-sex parents develop in much the same way as do
those living with opposite-sex parents, they provide no justification for discrimi-
nation on the basis of sexual orientation in matters such as adoption, foster care,
and/or child custody. Our results suggest that relationships and processes that
occur within the family are more important in the adolescents' personal and social
development.
Those who argue against allowing lesbian and gay adults to become adoptive
parents (e.g., Wardle, 1997) suggest that placement in such homes would not be in
the children's best interests. This argument would seem to rest on demonstrations
of harm for the children of lesbian or gay parents. After more than 25 years of
research, however, evidence of any such harm has yet to emerge. Meanwhile, in
jurisdictions that do not permit adoptions by lesbian and gay adults, children are
being denied homes and families. Minimizing children's chances of finding adop-
tive homes is not a credible way to pursue their best interests, and as the results of
research on sexual orientation and parenting continue to accumulate, this posi-
tion becomes increasingly difficult to defend.
Those who argue that sexual orientation should be seen as irrelevant to the
qualifications of prospective adoptive parents (e.g., Wald, 2006), on the other
hand, would appear to be responding to the actual needs of children. In the
United States today, many thousands of children do not have homes. Prospective
adoptive parents are in short supply. Children who grow up with lesbian and gay
parents appear to develop well compared to others. In these circumstances, to
deny adoptions to otherwise qualified prospective adoptive parents on the basis
of sexual orientation alone is to deny loving homes to children who need them.
To suggest that the sexual orientation of prospective adoptive parents should
be considered irrelevant is not to abandon careful evaluation of those adults who
wish to adopt. Methods that have been found to be useful in screening other can-
didates should be applied in the screening of lesbian and gay prospective adoptive
parents as well. It is important that such work be done carefully, so as to protect
children's interests. What is not justified is any special scrutiny or added screening
for lesbian or gay individuals.
In the United States today, lesbian and gay adults are less likely than others to
have had children who are biologically related to them (Patterson, 2000). This
greater frequency of childlessness may make lesbian and gay adults a relatively
untapped resource for adoption professionals. Compared with heterosexual
adults, lesbian and gay individuals and couples may be especially likely to have an
interest in becoming parents through adoption. Recent research suggests that les-
bians do indeed express greater interest in adopting children than do heterosexual
women (Gates et al., 2007). In many parts of the country today, adoption agencies
are open to this possibility, and children are being adopted into loving homes by
lesbian and gay adults (Brodzinsky, Patterson, & Vaziri, 2002; Mallon, 2004). As
the numbers of such families increase, and as knowledge about them grows, it is
likely that sexual orientation and parenting will increasingly be seen as unrelated.
Indeed, the sexual orientation of prospective parents is likely some day to be seen
as irrelevant to the placement of minor children into adoptive homes.
A-1371
As the numbers of placements of children into lesbian and gay parent homes
continue to increase, new issues are beginning to emerge (Mallon, 2004). For
instance, how can agencies assist lesbian and gay adoptive families in coping with
the special challenges that they encounter? What postadoption services would
best support lesbian and gay adoptive parents and their children, and how do
these vary as a function of the legal and policy climates in which families live?
Some individuals and groups are beginning to tackle such questions (e.g., Human
Rights Campaign Fund, 2008). The results of such work should be valuable in sup-
porting lesbian and gay adoptive parents and their children in the future.
CONCLUSIONS
The present study has assessed several aspects of overall functioning among ado-
lescents living with same-sex versus opposite-sex couples. Although family type
had few significant linkages with any aspect of adolescent social or personal devel-
opment, the qualities of adolescents' relationships with parents were associated
with many aspects of their personal adjustment, substance use, delinquent behav-
ior, and relations with peers. Whether they lived with same-sex or opposite-sex
couples, adolescents whose parents reported having close relationships with them
were likely to report higher self-esteem, fewer depressive symptoms, less use of
alcohol and tobacco, and less delinquent behavior. They were also likely to have
more friends in school, to have more supportive friends, and to achieve greater
centrality within their friendship networks than other adolescents. These results
do not support the idea that adolescent outcomes are shaped by parental sexual
orientation, but they are consistent with views that emphasize the importance of
relationships with parents. Overall, the results suggest that important decisions
about adolescentssuch as placement into adoptive homesshould focus not on
parental sexual orientation, but on the qualities of adolescents' relationships with
parents.
References
Allen, J. P., Moore, C, Kuperminc, G., & Bell, K. (1998). Attachment and adolescent
psychosocial functioning. Child Development, 69, 1406-1419.
Baumrind, D. (1995). Commentary on sexual orientation: Research and social policy
implications. Developmental Psychology, 31, 130-136.
Bearman, P. S., Jones, J., & Udry, J. R. (1997). The National Longitudinal Study of
Adolescent Health: Research Design. Available via the internet at http://www.cpc.
unc.edu/addhealth.
Bonacich, P. (1987). Power and centrality: A family of measures. American Journal of
Sociology, 92,1170-1182.
Brodzinsky, D. M., Patterson, C. J., & Vaziri, M. (2002). Adoption agency perspectives on
lesbian and gay prospective parents: A national study. Adoption Quarterly, 5, 5-23.
Carolina Population Center University of North Carolina at Chapel Hill (1997). National
longitudinal study of adolescent health: Wave I network variables code book. Retrieved
on March 23, 2004, from http://www.cpc.unc.edu/projects/addhealth/codebooks/
wavel.
Chan, R. W., Raboy, B., & Patterson, C. J. (1998). Psychosocial adjustment among chil-
dren conceived via donor insemination by lesbian and heterosexual mothers. Child
Erich, S., Leung, P., & Kindle, P. (2005). A comparative analysis of adoptive family func-
tioning with gay, lesbian, and heterosexual parents and their children. Journal of
GLBT Family Studies, 1,43-60.
Erich, S., Leung, P., Kindle, P., 8c Carter, S. (2005). gay and lesbian adoptive families: An
exploratory study of adoptive family functioning, adoptive children's behavior, and
familial support networks. Journal of Family Social Work, 9, 17-32.
Flaks, D. K., Ficher, I., Masterpasqua, E, & Joseph, G. (1995). Lesbians choosing moth-
erhood: A comparative study of lesbian and heterosexual parents and their children.
Developmental Psychology, 31,105-114.
Gartrell, N., Deck, A., Rodas, C, Peyser, H., & Banks, A. (2005). Tire National Lesbian
Family Study: 4. Interviews with the 10-year-old children. American Journal of
Orthopsychiatry, 75, 518-524.
Gates, G. J., Badgett, M. V. L, Macomber, J. E., & Chambers, K. (2007). Adoption and
foster care by gay and lesbian parents in the United States. Los Angeles, CA: The
Williams Institute, UCLA Law School.
Gershon, T. D., Tschann, J. M., 8c Jemerin, J. M. (1999). Stigmatization, self-esteem,
and coping among the adolescent children of lesbian mothers. Journal of Adolescent
Health, 24,437-445.
Golombok, S., Perry, B., Burston, A., Murray, C, Mooney-Somers, J., Stevens, M., 8c
Golding, J. (2003). Children with lesbian parents: A community study. Developmental
Psychology, 39, 20-33.
Haynie, D. L. (2000). The peer group revisited: A network approach for understand-
ing adolescent delinquency. Unpublished doctoral dissertation, Pennsylvania State
University, Hershey, PA.
Huggins, S. L. (1989). A comparative study of self-esteem of adolescent children of
divorced lesbian mothers and divorced heterosexual mothers. In E W. Bozett (Ed.),
Homosexuality and the family (pp. 123-135). New York: Harrington Park Press.
Human Rights Campaign Fund. (2008). Promising practices in adoption and foster care:
A comprehensive guide to policies and practices that welcome, affirm, and support gay,
lesbian, bisexual, and transgendered foster and adoptive parents. Washington, D.C.:
Human Rights Campaign.
In Re Adoption of Evan, 583 N.Y.S.2d997 (Sur. 1992).
Khaleque, A., 8c Rohner, R. P. (2002). Perceived parental acceptance-rejection and psy-
chological adjustment: A meta-analysis of cross-cultural and intracultural studies.
Journal of Marriage and Family, 64, 54-64.
Kindle, P., 8c Erich, S. (2005). Perceptions of social support among heterosexual and
homosexual adopters. Families in Society, 86, 541-546.
Leung, P., Erich, S., 8c Kanenberg, H. (2005). A comparison of family functioning in gay/
lesbian, heterosexual and special needs adoptions. Children and Youth Services, 27,
1031-1044.
A-1372
Mallon, G. P. (2004). Gay men choosing parenthood. New York: Columbia University
Press.
O'Connor, A. (1993). Voices from the heart: The developmental impact of a mother's lesbi-
anism on her adolescent children. Smith College Studies in Social Work, 63,281-299.
Patterson, C. J. (2000). Sexual orientation and family life: A decade review. Journal of
Marriage and the Family, 62,1052-1069.
Patterson, C. J. (2006). Children of lesbian and gay parents. Current Directions in
Psychological Science, 15, 241-244.
Patterson, C. J. (2007). Lesbian and gay family issues in the context of changing legal
and social policy environments. In K. J. Bieschke, R. M. Perez, 8c K. A. DeBord (Eds.),
Handbook of counseling and psychotherapy with lesbian, gay, bisexual and trans-
gender clients (2nd ed., pp. 103-133). Washington, D.C.: American Psychological
Association.
Patterson, C. J. (2009). Children of lesbian and gay parents: Psychology, law, and policy.
American Psychologist, 64, 727-736.
Patterson, C. J., Fulcher, M., 8c Wainright, J. (2002). Children of lesbian and gay parents:
Research, law, and policy. In B. L. Bottoms, M. B. Kovera, 8c B. D. McAuliff (Eds.),
Children, Social Science and the Law (pp, 176-199). New York: Cambridge University
Press.
Perrin, E. C, 8c Committee on Psychosocial Aspects of Child, Family Health (2002).
Technical report: Coparent or second-parent adoption by same-sex partners.
Pediatrics, 109, 341-344.
Radloff, L. S. (1977). The CES-D Scale: A self-report depression scale for research in the
general population. Applied Psychological Measurement, 1, 385-401.
Resnick, M. D., Bearman, P., Blum, R. W., Bauman, K. E., Harris, K. M., Jones, J., et al.
(1997). Protecting adolescent from harm: Findings from the National Longitudinal
Study of Adolescent Health. JAMA: Journal of the American Medical Association, 27
(10), 823-832.
Rivers, I., Poteat, V. P., 8c Noret, N. (2008). Victimization, social support, and psychoso-
cial functioning among children of same-sex and opposite-sex couples in the United
Kingdom. Developmental Psychology, 44, 127-134.
Rohner, R. P. (1999). Acceptance and rejection. In D. Livinson, J. Ponzetti, 8c Jorgenson
(Eds.), Encyclopedia of human emotions (Volume 1, pp. 6-14). New York: Macmillan.
Ryan, S. (2007). Parent-child interaction styles between gay and lesbian parents and
their adopted children. Journal of GLBT Family Studies, 3, 105-132.
Sieving, R. E., Beurhing, T., Resnick, M. D., Bearinger, L. H., Shew, M., Ireland, M., Blum,
R. W. (2000). Development of adolescent self-report measures from the National
Longitudinal Study of Adolescent Health. Journal of Adolescent Health, 28, 73-81.
Stacey, J., 8c Biblarz, T. J. (2001). (How) does the sexual orientation of parents matter?
American Sociological Review, 66,159-183.
Steinberg, L., Lamborn, S. D., Dornbusch, S. M., 8c Darling, N. (1992). Impact of par-
enting practices on adolescent achievement: Authoritative parenting, school involve-
ment, and encouragement to succeed. Child Development, 63, 1266-1281.
Steinberg, L., 8c Silk, J. S. (2002). Parenting adolescents. In M. H. Bornstein (Ed.),
Handbook of parenting, Volume 1: Children and parenting (2nd ed., pp. 359-397).
Mahwah, NJ: Lawrence Erlbaum Associates.
Stevens, M., Golombok, S., Beveridge, M., and the ALSPAC Study Team (2002). Does
father absence influence children's gender development? Findings from a general
population study of preschool children. Parenting: Science and Practice, 2,47-60.
Tasker, E L, 8c Golombok, S. (1997). Growing up in a lesbian family: Effects on child
Development. New York: The Guilford Press.
Wainright, J. L., 8c Patterson, C. J. (2006). Delinquency, victimization, and substance use
among adolescents with female same-sex parents. Journal of Family Psychology, 20,
526-530.
Wainright, J. L, 8c Patterson, C. J. (2008). Peer relations among adolescents with female
same-sex parents. Developmental Psychology, 44,117-126.
Wainright, J. L, Russell, S. T., 8c Patterson, C. J. (2004). Psychosocial adjustment, school
outcomes, and romantic relationships of adolescents with same-sex parents. Child
Wald, M. S. (2006). Adults' sexual orientation and state determinations regarding place-
ment of children. Family Law Quarterly, 40, 381-434.
Wardle, L. (1997). Thepotential impact of homosexual parenting on children. University
of Illinois Law Review, 833, 335-340.
A-1373
1285 AVENUE OF THE AMERfCAS
NEW YORK, NEW YORK 10019-6064
TELEPHONE ( 212) 3 7 3 - 3 000
LLOYD K GARRI SON ( 1946-1991)
RANDOLPH E PAUL ( 1946-1956)
SI MON H RI FKI ND ( 1950-1995)
LOUI S S WEI SS ( 1927-1950)
JOHN F WHARTON ( 1927-1977)
WRI TER' S DI RECT DI AL NUMBER
(212) 373-3086
WRI TER' S DIRECT FACSI MI LE
(212)373-2037
WRI TER' S DIRECT E-MAI L ADDRESS
February 6
?
2012
By Hand
UNI T 3 601, FORTUNE PLAZA OFFI CE TOWER A
BEI JI NG 100020
TELEPHONE ( 86-I O) 5828- 63 00
HONG KONG
TELEPHONE (852) 2846-0300
ALDER CASTLE
10 NOBLE STREET
TELEPHONE ( 44 20) 7 3 67 1 600
2-2 UCHI SAI WAI CHO 2-CHOME
CHI YODA-KU, TOKYO 1 OO-OO1 1 , JAPAN
TELEPHONE (81 3) 3597-8101
TORONTO-DOMI NI ON CENTRE
PO BOX 226
TELEPHONE (4 16) 504-0520
2001 KSTREET, NW
WASHI NGTON, DC 20006-1047
TELEPHONE ( 202) 223-7300
500 DELAWARE AVENUE SUI TE 200
POST OFFI CE BOX 32
WI LMI NGTON, DE 19899 003 2
TELEPHONE ( 302) 655-4410
MATTHEW W ABBOTT
AL L AN J ARFFA
ROBERTA ATKI NS
DAVI D J BALL
JOHN F BAUGHMAN
LYNN B BAYARD
DANI EL J SELLER
CRAI G A BENSON*
MI TCHELL L BERG
MARK S BERGMAN
BRUCE BI RENBOI M
ANGELO BONVI NO
JAMES L BROCHI N
DAVI D W BROWN
SUSANNA M BUERGEL
PATRI CKS CAMPBELL*
JESSI CA S CAREY
JEANETTE K CHAN
YVONNE Y F CHAN
LEWI S R CLAYTON
JAY COHEN
KEL L EYA CORNI SH
CHARLES E DAVI DOW
DOUGLAS R DAVI S
THOMAS V DE LABASTI DE I I I
ARI EL J DECKELBAUM
JAMES M DUBI N
ANDREW J EHRLI CH
GREGORY A EZRI NG
MARC FALCONE
ANDREW C FI NCH
ROBERTO FI NZI
PETER E FI SCH
ROBERT C FLEDER
MARTI N FLUMENBAUM
ANDREW J FOLEY
HARRI S B FREI DUS
MANUEL S FREY
KENNETH A GALLO
MI CHAEL E GERTZMAN
PAUL D GI NSBERG
ADAM M GI VERTZ
ROBERT D GOLDBAUM
NEI L GOLDMAN
ERI CS GOLDSTEI N
ERIC GOOD1SON
CHARLES H GOOGE, JR
ANDREW G GORDON
UDI GROFMAN
BRUCE A GUTENPLAN
ALAN S HALPERI N
JUSTI N G HAMI LL
CLAUDI A HAMMERMAN
GERARD E HARPER
BRI AN S HERMANN
ROBERT M HI RSH
MI CHELE HI RSHMAN
JOYCE S HUANG
DAVI D S HUNTI NGTON
MEREDI TH J KANE
ROBERTA A KAPLAN
*NOT ADMITTED TOTHE NEWYORK BAR
BRAD S KARP
JOHN C KENNEDY
ALAN W KORNBERG
DANI EL J KRAMER
DAVI D K LAKHDHI R
STEPHEN P L AMB*
JOHN E LANGE
DANI EL J LEFFELL
XIAOYU GREG LI U
JEFFREY D MARELL
MARCO V MASOTTI
EDWI N S MAYNARD
DAVI D W MAYO
ELI ZABETH R McCOLM
MARK F MENDELSOHN
TOBY S MYERSON
J OHN E NATHAN
CATHERI NE NYARADY
J OHN J O NEI L
ALEX YOUNG K OH
BRAD R OKUN
KELLEY D PARKER
ROBERT P PARKER*
MARC E PERLMUTTER
MARK F POMERANTZ
VALERI E E RADWANER
CARL L REI SNER
WALTER RI EMAN
RI CHARD A ROSEN
ANDREW N ROSENBERG
RAPHAEL M RUSSO
JEFFREY B SAMUELS
DALE M SARRO
TERRY E SCHI MEK
ROBERT B SCHUMER
JAMES H SCHWAB
JOHN M SCOTT
STEPHEN J SHI MSHAK
DAVI D R SI CULAR
MOSES SI LVERMAN
STEVEN SI MKI N
JOSEPH J SI MONS
MARI LYN SOBEL
AUDRA J SOLOWAY
TARUN M STEWART
ERIC ALAN STONE
AI DAN SYNNOTT
ROBYN F TARNOFSKY
MONI CA K THURMOND
DANI EL J TOAL
LI ZA M VELAZQUEZ
MARI A T VULLO
LAWRENCE G WEE
BETH A WI LKI NSON
STEVEN J WI LLI AMS
MARK B WLAZLO
JULI A TM WOOD
JORDAN E YARETT
KAYE N YOSHI NO
TONG YU
TRACEYA ZACCONE
T ROBERT ZOCHOWSKI , JR
500 Pearl Street
New York, NY 10007
Dear Judge Jones:
On behalf of the plaintiff, Edith Schlain Windsor, we respectfully submit
this letter to bring to the Court's attention a recent decision handed down by Judge
Wilken of the Northern District of California concerning the constitutionality of the
Defense of Marriage Act ("DOMA"). Dragovich v. United States Dep 't of the Treasury,
No. C 10-01564 (CW) (N.D. Cal. Jan. 26, 2012).
On January 26, 2012, Judge Wilken denied the motion to dismiss the
plaintiffs' constitutional challenge to Section 7702B(f) of the Internal Revenue Code,
which excludes legally married same-sex couples and registered domestic partners from
certain federally qualified, state-maintained long-term care plans. In reaching that
decision, Judge Wilken noted that
u
[t]he record of Congress' consideration of the
[Defense of Marriage Act] . . . evidences animosity and moral condemnation of same-sex
relationships." (Id. at 8.) Applying the rational basis test, the court held that there was
no "plausible, legitimate rationale" for the exclusion at issue in the case. (Id. at 24-25.)
A-1374
We enclose a copy of the Dragovich decision for the Court's reference.
Roberta A. Kaplan
Enclosure
Jean Lin, Esq.
A-1375
1 285 AVENUE OF THE AMERICAS
TELEPHONE (2 1 2) 3 7 3 - 3 000
LLOYD K GARRISON (1946-1991)
RANDOLPH E PAUL (1946-1956)
SIMON H RIFKIND (1950-1995)
LOUIS S WEISS (1927-1950)
JOHN F WHARTON (1927-1977)
WRITER' S DIRECT DIAL NUMBER
(212)373-3086
WRITER' S DIRECT FACSIMILE
(212) 373-2037
February 8, 2012
By Hand
IT 3601 , FORTUNE PLAZA OFFICE TOWER A
CHAO YANG DISTRICT
BEIJING 100020
PEOPLE' S REPUBLIC OF CHINA
TELEPHONE (86 1 O) S828-6300
12TH FLOOR, HONG KONG CLUB BUILDING
HONG KONG
TELEPHONE (852) 2846-0300
ALDER CASTLE
lO NOBLE STREET
TELEPHONE (44 20) 7 3 67 1 600
2 2 UCHISAIWAICHO 2-CHOME
CHIYODA KU, TOKYO l OO-OOl 1, JAPAN
TELEPHONE (81 3 ) 3 597 - 81 01
PO BOX 226
TORONTO, ONTARIO M5K 1J3
TELEPHONE (416) 504- 0520
2001 KSTREET, NW
WASHINGTON, DC 20006-1 047
TELEPHONE (202) 223-7300
500 DELAWARE AVENUE SUITE 200
POST OFFICE BOX 32
WILMINGTON, DE 19899-0032
TELEPHONE (302) 655-441 0
MATTHEW W ABBOTT
AL L AN J ARFFA
ROBERT A ATKINS
DAVID J BAL L
JOHN F BAUGHMAN
LYNN B BAYARD
DANIEL J SELLER
CRAIG A BENSON*
MITCHELL L BERG
MARK S BERGMAN
BRUCE BIRENBOIM
ANGELO BONVINO
JAMES L BROCHIN
RICHARD J BRONSTEIN
DAVID W BROWN
SUSA. NNA M BUERGEL
PATRICK S CAMPBELL*
JESSICA S CAREY
JEANETTE K CHAN
YVONNE Y F CHAN
LEWIS R CLAYTON
JAY COHEN
KEL L EYA CORN' SH
CHARLES E DAVIDOW
DOUGLAS R DAVIS
THOMAS V DE LA BASTIDE III
ARIEL J DECKELBAUM
JAMES M DUB1N
ALICE BELISLE EATON
ANDREW J EHRL1CH
GREGORY A EZRING
LESLIE GORDON FAGEN
MARC FALCONE
ANDREW C FINCH
BRAD J FINKELSTEIN
ROBERTO FINZI
PETER E FISCH
ROBERT C FLEDER
MARTIN FLUMENBAUM
ANDREW J FOLEY
HARRIS B FREIDUS
MANUEL S FREY
KENNETH A GALLO
MICHAEL E GERTZMAN
PAUL D GINSBERG
ADAM M GIVERTZ
ROBERT D GOLDBAUM
NEIL GOLDMAN
ERIC S GOLDSTEIN
ERIC GOOD1SON
CHARLES H GOOGE, JR
ANDREW G GORDON
UDI GROFMAN
BRUCE A GUTENPLAN
ALAN S HALPERIN
JUSTIN G HAMl L L
CLAUDIA HAMMERMAN
GERARD E HARPER
BRIAN S HERMANN
ROBERT M HIRSH
MICHELE HIRSHMAN
JOYCE S HUANG
DAVID S HUNTINGTON
MEREDITH J KANE
ROBERTA A KAPLAN
BRAD S KARP
JOHN C KENNEDY
ALAN W KORNBERG
DANIEL J KRAMER
DAVID K LAKHDHIR
STEPHEN P L AMB*
JOHN E LANGE
DANIEL J LEFFELL
XIAOYU GREG LIU
JEFFREY D MARELL
MARCO V MASOTTI
EDWIN S MAYNARD
DAVID W MAYO
ELIZABETH R McCOLM
MARK F MENDELSOHN
TOBY S MYERSON
JOHN E NATHAN
CATHERINE NYARADY
JOHN J O' NEIL
ALEX YOUNG K OH
BRAD R OKUN
KELLEY D PARKER
ROBERT P PARKER*
MARC E PERLMUTTER
MARK F POMERANTZ
VALERIE E RADWANER
CARL L REISNER
WALTER G RICCIARDI
WALTER RIEMAN
RICHARD A ROSEN
ANDREW N ROSENBERG
JACQUELINE P RUBIN
RAPHAEL M RUSSO
JEFFREY D SAFERSTE1N
JEFFREY B SAMUELS
DALE M SARRO
TERRY E SCHIMEK
KENNETH M SCHNEIDER
ROBERT B SCHUMER
JAMES H SCHWAB
JOHN M SCOTT
STEPHEN J SHIMSHAK
DAVID R SICULAR
MOSES SILVERMAN
STEVEN SIMKIN
JOSEPH J SIMONS
MARILYN SOBEL
AUDRAJ SOLOWAY
TARUN M STEWART
ERIC AL AN STONE
AIDAN SYNNOTT
ROBYN F TARNOFSKY
MONICA K THURMOND
DANIEL J TOAL
LIZA M VELAZQUEZ
MARIA T VULLO
LAWRENCE G WEE
BETH A WILKINSON
STEVEN J WI LLI AMS
MARK B WLAZLO
JULI A TM WOOD
JORDAN E YARETT
KAYE N YOSHINO
TONG YU
TRACEYA ZACCONE
T ROBERT ZOCHOWSKI, JR
500 Pearl Street
New York, NY 10007
Dear Judge Jones:
On behalf of plaintiff, Edith Schlain Windsor, we respectfully submit this
letter to bring to the Court's attention yesterday's ruling issued by the United States Court
of Appeals for the Ninth Circuit in Perry v. Brown, No. 10-16696 (9th Cir. Feb. 7, 2012).
The court in Perry held that California's Proposition 8, which prohibits marriage between
same-sex couples, is unconstitutional, reasoning that laws that single out gays and
lesbians as a class solely "for disfavored legal status" are unconstitutional under Romer v.
Evans, 517 U.S. 620 (1996). Perry, at 76.
While the issues presented in Perry were different than those presented in
this case, which is an equal protection challenge to Section 3 of the Defense of Marriage
Act ("DOMA"), we respectfully direct the Court's attention to certain aspects of the
Ninth Circuit's decision that are relevant, including its holding that its analysis was
controlled by Romer, id. at 46, and that under Romer, gays and lesbians cannot be singled
out "for disfavored legal status." Id. at 44 (quoting Romer, 517 U.S. at 633).
A-1376
The Honorable Barbara S. Jones 2
The Ninth Circuit also recognized that where the government acts to
exclude same-sex couples from existing protections, the appropriate question under equal
protection analysis is what government interest is served by that exclusion. Id. at 59-63;
see, e.g., id. at 59 (
u
[T]he question is whether there is a legitimate governmental interest
in withdrawing access to marriage from same-sex couples.") (emphasis in original). The
court recognized that Proposition 8 excluded same-sex couples from marriage, a right
they previously "had enjoyed on equal terms with all other citizens." Id. at 51. Here too,
Section 3 of DOMA altered existing federal law, which had recognized all valid state
marriages for federal purposes, to exclude married same-sex couples from recognition.
In addition, the Ninth Circuit considered and rejected numerous interests
that the appellants claimed were advanced by Proposition 8, holding that no legitimate
state interest was furthered by the law. Id. at 55; see, e.g., id. at 63 ("[T]he argument that
withdrawing the designation of 'marriage' from same-sex couples could on its own
promote the strength or stability of opposite-sex marital relationships lacks any . . .
footing in reality."); id. at 56-63 (rejecting asserted advancement of putative interest in
"responsible procreation and childrearing"); id. at 64-66 (rejecting putative interest in
"proceeding with caution" on changes to definition of "marriage").
Finally, the court held that "[ajbsent any legitimate purpose," the
"inevitable inference" was that Proposition 8 was motivated solely by animus towards
and "disapproval of gays and lesbians as a class." Id. at 72. The Ninth Circuit held that
the law "sen[t] a message that gays and lesbians are of lesser worth as a classthat they
enjoy a lesser societal status[,]" and "enact[ed] nothing more or less than a judgment
about the worth and dignity of gays and lesbians as a class." Id. at 73. The court held
that "[e]nacting a rule into law based solely on the disapproval of a group . . . 'is a
classification of persons undertaken for its own sake, something the Equal Protection
Clause does not permit.'" Id. at 74 (quoting Romer, 517 U.S. at 635).
We enclose a copy of the Perry decision for the Court's reference.
Roberta A. Kaplan
Enclosure
Jean Lin, Esq.
A-1377
A-1378
A-1379
1285 AVENUE OF THE AMERICAS
TELEPHONE ( 212) 3 7 3 - 3 000
LLOYD K GARRISON ( 1946-1991)
SIMON H RIFKIND ( 1950-1995)
LOUIS S WEISS ( 1927-1950)
(212) 373-3086
(212) 373-2037
WRITER S DIRECT E-MAIL ADDRESS
February 21, 2012
By Hand
UNIT 3 601 , FORTUNE PLAZA OFFICE TOWER A
CHAO YANG DISTRICT
BEIJING 100020
PEOPLE S REPUBLIC OF CHINA
TELEPHONE ( 86-10) 5828-63 00
12TH FLOOR HONG KONG CLUB BUILDING
HONG KONG
TELEPHONE (852) 2846-0300
ALDER CASTLE
10 NOBLE STREET
TELEPHONE ( 44 20) 7 3 67 1 600
2-2 UCHISAIWAICHO 2 CHOME
CHIYODA KU, TOKYO 1 OO-OO11, JAPAN
TELEPHONE ( 81-3) 3 597 8101
PO BOX 226
TELEPHONE (4 16) 504-0520
2001 KSTREET, NW
WASHINGTON, DC 20006 1047
TELEPHONE ( 202) 223 7 3 00
POST OFFICE BOX 32
TELEPHONE ( 302) 655-4410
MATTHEW W ABBOTT
AL L AN J ARFFA
ROBERT A ATKINS
DAVID J BAL L
J OHN F BAUGHMAN
LYNN B BAYARD
DANIEL J SELLER
CRAIG A BENSON*
MITCHELL L BERG
MARK S BERGMAN
BRUCE BIRENBOIM
ANGELO BONVINO
JAMES L BROCHIN
RICHARD J BRONSTEIN
DAVID W BROWN
SUSANNA M BUERGEL
PATRICKS CAMPBELL*
J ESSI CAS CAREY
JEANETTE K CHAN
YVONNE Y F CHAN
LEWIS R CLAYTON
JAY COHEN
KEL L EYA CORNISH
CHARLES E DAVIDOW
DOUGLAS R DAVIS
THOMAS V DE LA BAST1DE III
ARIEL J DECKELBAUM
JAMES M DUBIN
ALICE BELISLE EATON
ANDREW J EHRL1CH
GREGORY A EZRING
LESLIE GORDON FAGEN
MARC FALCONE
ANDREW C FINCH
BRAD J FINKELSTEIN
ROBERTO FINZI
PETER E FISCH
ROBERT C FLEDER
MARTIN FLUMENBAUM
ANDREW J FOLEY
HARRIS B FREIDUS
MANUEL S FREY
KENNETH A GALLO
MICHAEL E GERTZMAN
PAUL D GINSBERG
ADAM M GIVERTZ
ROBERT D GOLDBAUM
NEIL GOLDMAN
ERIC S GOLDSTEIN
ERIC GOODISON
CHARLES H GOOGE, JR
ANDREW G GORDON
UD1 GROFMAN
BRUCE A GUTENPLAN
ALAN S HALPERIN
JUSTIN G HAMI LL
CLAUDIA HAMMERMAN
GERARD E HARPER
BRIAN S HERMANN
ROBERT M HIRSH
MICHELE HIRSHMAN
JOYCE S HUANG
DAVI DS HUNTINGTON
MEREDITH J KANE
ROBERTA A KAPLAN
BRAD S KARP
JOHN C KENNEDY
ALAN W KORNBERG
DANIEL J KRAMER
DAVID K LAKHDHIR
STEPHEN P LAMB*
J OHN E LANGE
DANIEL J LEFFELL
XIAOYU GREG LIU
JEFFREY D MARELL
MARCO V MASOTTI
EDWIN S MAYNARD
DAVID W MAYO
ELIZABETH R MCCOLM
MARK F MENDELSOHN
TOBY S MYERSON
J OHN E NATHAN
CATHERINE NYARADY
JOHN J O' NEIL
ALEX YOUNG K OH
BRAD R OKUN
KELLEY D PARKER
ROBERT P PARKER*
MARC E PERLMUTTER
MARK F POMERANTZ
VALERIE E RADWANER
CARL L REISNER
WALTER G RICCIARDI
WALTER R1EMAN
RICHARD A ROSEN
ANDREW N ROSENBERG
JACQUELINE P RUBIN
RAPHAEL M RUSSO
JEFFREY B SAMUELS
DALE M SARRO
TERRY E SCHIMEK
KENNETH M SCHNEIDER
ROBERT B SCHUMER
JAMES H SCHWAB
J OHN M SCOTT
STEPHEN J SH1MSHAK
DAVID R SICULAR
MOSES SILVERMAN
STEVEN SIMKIN
JOSEPH J SIMONS
MARILYN SOBEL
AUDRAJ SOLOWAY
TARUN M STEWART
ERIC ALAN STONE
AIDAN SYNNOTT
ROBYN F TARNOFSKY
MONICA K THURMOND
DANIEL J TOAL
LIZA M VELAZQUEZ
MARIA T VULLO
LAWRENCE G WEE
BETH A WI LKI NSON
STEVEN J WI LLI AMS
MARK B WLAZLO
JULIA TM WOOD
JORDAN E YARETT
KAYE N YOSHINO
TONG YU
TRACEYA ZACCONE
500 Pearl Street
New York, NY 10007
Dear Judge Jones:
As counsel for plaintiff Edith Schlain Windsor, we respectfully write to
bring to the Court's attention a recent decision by the Attorney General and the
Department of Justice to cease defending 38 U.S.C. 101(3) and (31), which affect the
eligibility of same-sex couples for military and veterans' benefits.
The Attorney General made this decision based on his determination that
these provisions discriminate against same-sex couples in the same unconstitutional
manner as Section 3 of the Defense of Marriage Act ("DOMA"), the statute at issue in
this case. A copy of the Attorney General's letter to the Speaker of the House of
Representatives, dated February 17, 2012, informing Congress of this decision is
enclosed for Your Honor's reference.
As the Attorney General explained in his letter, provisions of Title 38
"like Section 3 [of DOMA], define the term 'spouse' (or 'surviving spouse') as 'a person
of the opposite sex.'" (2/17 Ltr. at 1 (citations omitted).) As such, "[l]ike Section 3 [of
A-1380
DOMA], the provisions of Title 38 ... classify on the basis of sexual orientation[.]" (Id.
at 2.)
The Attorney General, after consultation with the Department of Defense
and the Department of Veterans Affairs, determined that
u
[a]lso like Section 3, these
provisions as applied to legally married same-sex couples cannot survive heightened
scrutiny because they are not 'substantially related to an important government
objective.'" (Id (quoting Clark v. Jeter, 486 U.S. 456, 461 (1988)).) And the Attorney
General concluded, once again, that it is heightened scrutiny that should apply to laws
that classify on the basis of sexual orientation. (Id. at 1.)
Significantly, in reaching his decision, the Attorney General noted that
"[t]he legislative record of these provisions contains no rationale for providing veterans'
benefits to opposite-sex spouses of veterans but not to legally married same-sex spouses
of veterans." (Id. at 2.) In its briefing in the above-captioned matter, the Bipartisan
Legal Advisory Group of the House of Representatives cited to these very provisions
from Title 38 as support for the proposition that "whenever Congress used terms
connoting a marital relationship, it meant a traditional male-female couple." (Mem. of
Law in Supp. of Mot. to Dismiss at 3.) The Attorney General has now concluded,
however, that whatever Congress "meant" at the time, the legislative record contains no
rationale to support such a distinction. (2/17 Ltr. at 2.)
Roberta A. Kaplan
Enclosure
Jean Lin, Esq.
A-1381
PAUL, WEI SS, RI FKI ND, WHART ON & GARRI SON LLP
TELEPHONE ( 212) 3 7 3 - 3 000
LLOYD K. GARRISON (1 946-1991)
SIMON H. RIFKIND ( 1950-1995)
LOUIS S. WEISS ( 1927-1950)
JOHN F. WHARTON ( 1927-1977)
(212)373-3086
(212) 373-2037
WRITER' S DIRECT E-MAIL ADDRESS
February 23, 2012
By Hand
IT 3 6 0 1 , FORTUNE PLAZA OFFI CE TOWER A
NO. 7 DONG SANHUAN 2HONGLU
CHAO YANG DISTRICT
BEIJING 1OOO20
TELEPHONE ( 86-10) 5828-63 00
HONG KONG
TELEPHONE (852) 2846-0300
ALDER CASTLE
lO NOBLE STREET
LONDON EC2V 7JU, U.K.
TELEPHONE ( 44 20) 7367 1 600
2-2 UCHISAIWAICHO 2-CHOME
CHIYODA-KU, TOKYO 1 OO-OO11, JAPAN
TELEPHONE ( 81-3) 3597-8101
P.O. BOX 226
TELEPHONE (4 16) 504-0520
2001 KSTREET, NW
WASHINGTON, DC 20006-1047
TELEPHONE ( 202) 223 -7 3 00
POST OFFICE BOX 32
WILMINGTON, DE 1 9899-0032
TELEPHONE ( 302) 655-44 10
MATTHEW W. ABBOTT
AL L AN J . ARFFA
ROBERT A. ATKINS
DAVID J . BALL
J OHN F. BAUGHMAN
LYNN B. BAYARD
DANIEL J. SELLER
CRAIG A. BENSON*
MITCHELL L. BERG
MARK S. BERGMAN
BRUCE BIRENBOIM
H. CHRISTOPHER BOEHNING
ANGELO BONVINO
JAMES L. BROCHIN
RICHARD J . BRONSTE1N
DAVID W. BROWN
SUSANNA M. BUERGEL
PATRICK S. CAMPBELL*
JESSICA S. CAREY
JEANETTE K. CHAN
YVONNE Y F. CHAN
LEWIS R. CLAYTON
JAY COHEN
KELLEY A. CORNISH
CHRISTOPHER J . CUMMINGS
CHARLES E. DAVIDOW
DOUGLAS R. DAVIS
THOMAS V. DE LA BAST1DE III
ARIEL J . DECKELBAUM
JAMES M. DUB1N
ALICE BELISLE EATON
ANDREW J . EHRLICH
GREGORY A. EZRING
LESLIE GORDON FAGEN
MARC FALCONE
ANDREW C. FINCH
BRAD J . FINKELSTEIN
ROBERTO FINZI
PETER E. FISCH
ROBERT C. FLEDER
MARTIN FLUMENBAUM
ANDREW J . FOLEY
HARRIS B. FREIDUS
MANUEL S. FREY
KENNETH A. GALLO
MICHAEL E. GERTZMAN
PAUL D. GINSBERG
ADAM M. GIVERTZ
ROBERT D. GOLDBAUM
NEIL GOLDMAN
ERIC S. GOLDSTEIN
ERIC GOOD1SON
CHARLES H. GOOGE, JR.
ANDREW G. GORDON
UDI GROFMAN
BRUCE A. GUTENPLAN
AL AN S. HALPERIN
JUSTIN G. HAMI LL
CLAUDIA HAMMERMAN
GERARD E. HARPER
BRIAN S. HERMANN
ROBERT M. HIRSH
MICHELE HIRSHMAN
JOYCE S. HUANG
DAVID S. HUNTINGTON
MEREDITH J. KANE
ROBERTA A. KAPLAN
BRAD S. KARP
J OHN C. KENNEDY
AL AN W. KORNBERG
DANIEL J . KRAMER
DAVID K. LAKHDHIR
STEPHEN P. LAMB*
JOHN E LANGE
DANIEL J LEFFELL
XIAOYU GREG LIU
JEFFREY D MARELL
MARCO V. MASOTTI
EDWIN S. MAYNARD
DAVID W. MAYO
ELIZABETH R. MCCOLM
MARK F. MENDELSOHN
TOBY S. MYERSON
JOHN E. NATHAN
CATHERINE NYARADY
JOHN J . O' NEIL
ALEX YOUNG K. OH
BRAD R. OKUN
KELLEY D. PARKER
ROBERT P. PARKER*
MARC E. PERLMUTTER
MARK F. POMERANTZ
VALERIE E. RADWANER
CARL L. REISNER
WALTER G. RICCIARDI
WALTER RIEMAN
RICHARD A. ROSEN
ANDREW N. ROSENBERG
JACQUELINE P. RUBIN
RAPHAEL M. RUSSO
JEFFREY D. SAFERSTEIN
JEFFREY B. SAMUELS
DALE M. SARRO
TERRY E. SCHIMEK
KENNETH M. SCHNEIDER
ROBERT B. SCHUMER
JAMES H, SCHWAB
JOHN M. SCOTT
STEPHEN J . SH1MSHAK
DAVID R. SICULAR
MOSES SILVERMAN
STEVEN SI MKI N
JOSEPH J . SIMONS
MARILYN SOBEL
AUDRA J . SOLOWAY
TARUN M. STEWART
ERIC AL AN STONE
AIDAN SYNNOTT
ROBYN F. TARNOFSKY
MONICA K. THURMOND
DANIEL J TOAL
LIZA M. VELAZQUEZ
MARIA T. VULLO
LAWRENCE G. WEE
THEODORE V. WELLS, JR.
BETH A. WI LKI NSON
STEVEN J. WI LLI AMS
MARK B. WLAZLO
JULI A TM. WOOD
JORDAN E. YARETT
KAYE N. YOSHINO
TONG YU
TRACEYA. ZACCONE
T. ROBERT ZOCHOWSKI, JR.
500 Pearl Street
New York, NY 10007
Dear Judge Jones:
On behalf of plaintiff Edith Schlain Windsor, we respectfully write to
bring to the Court's attention a decision yesterday by Judge Jeffrey White of the Northern
District of California holding that Section 3 of the Defense of Marriage Act ("DOMA") is
unconstitutional in a case that presents substantially similar facts and the same legal
issues as the above-captioned matter before Your Honor. See Golinski v. Office ofPers.
Mgmt., No. C 10-00257 (JSW) (N.D. Cal. Feb. 22, 2012).
Your Honor may recall that in our letter to the Court dated January 23,
2012, we enclosed a copy of the transcript of the oral argument in the Golinski case. In
his decision yesterday, Judge White agreed with plaintiff, denying BLAG's motion to
dismiss and granting plaintiffs motion for summary judgment for the very same reasons
we haye presented to Your Honor.
Namely, the Golinski court held that Section 3 of DOMA should properly
be reviewed under a standard of heightened scrutiny, id. at 11-24, that it does not satisfy
A-1382
that standard, id. at 24-31, and that in any event it would not satisfy rational basis review
either, id. at 32-42.
A copy of the Golinski decision is enclosed for Your Honor's reference.
Roberta A. Kaplan
Enclosure
Jean Lin, Esq.
A-1383
A-1384
A-1385
A-1386
A-1387
A-1388
A-1389
TELEPHONE ( 212) 3 7 3 - 3 000
LLOYD K GARRISON ( 1946-1991)
SIMON H RIFKIND ( 1950-1995)
LOUIS S WEISS ( 1927-1950)
(212) 373-3086
(212) 373-2037
WRITER' S DIRECT E-MAIL ADDRESS
March 28, 2012
UNIT 3 601 , FORTUNE PLAZA OFFICE TOWER A
CHAO YANG DISTRICT
BEIJING 100020
TELEPHONE ' 86-10) 5828- 63 00
HONG KONG
TELEPHONE (852) 2846-0300
ALDER CASTLE
10 NOBLE STREET
TELEPHONE ( 44 20> 7367 1 600
CHIYODA-KU, TOKYO 1 OO-OO1 1 , JAPAN
TELEPHONE ( 81-3) 3597 8101
PO BOX 226
TORONTO ONTARIO M5K 1J3
TELEPHONE (416) 504- 0520
2001 KSTREET, NW
TELEPHONE ( 202) 223 -7 3 00
POST OFFICE BOX 32
TELEPHONE ( 302) 655-4410
BY HAND
500 Pearl Street
New York, NY 10007
MATTHEW W ABBOTT
AL L AN J ARFFA
ROBERT A ATKINS
DAVID J BAL L
J OHN F BAUGHMAN
LYNN B BAYARD
DANIEL J SELLER
CRAIG A BENSON*
MITCHELL L BERG
MARK S BERGMAN
BRUCE BIRENBOIM
ANGELO BONV1NO
JAMES L BROCHIN
RICHARD J BRONSTEIN
DAVID W BROWN
SUSANNA M BUERGEL
PATRICK S CAMPBELL*
JESSICA S CAREY
JEANETTE K CHAN
YVONNE Y F CHAN
LEWIS R CLAYTON
JAY COHEN
KEL L EYA CORNISH
CHARLES E DAV1DOW
DOUGLAS R DAVIS
THOMAS V DE LA BAST1DE III
ARIEL J DECKELBAUM
JAMES M DUBIN
ALICE BELISLE EATON
ANDREW J EHRLICH
GREGORY A EZRING
LESLIE GORDON FAGEN
MARC FALCONE
ANDREW C FINCH
BRAD J FINKELSTEIN
ROBERTO FINZI
PETER E FISCH
ROBERT C FLEDER
MARTIN FLUMENBAUM
ANDREW J FOLEY
HARRIS B FREIDUS
MANUEL S FREY
KENNETH A GALLO
MICHAEL E GERTZMAN
PAUL D GINSBERG
ADAM M GIVERTZ
ROBERT D GOLDBAUM
NEIL GOLDMAN
ERIC S GOLDSTEIN
ERIC GOODISON
CHARLES H GOOGE, JR
ANDREWG GORDON
UD1 GROFMAN
BRUCE A GUTENPLAN
AL AN S HALPERIN
JUSTIN G HAMI LL
CLAUDIA HAMMERMAN
GERARD E HARPER
BRIAN S HERMANN
ROBERT M HIRSH
MICHELE HIRSHMAN
JOYCE S HUANG
DAVI DS HUNTINGTON
MEREDITH J KANE
ROBERTA A KAPLAN
BRAD S KARP
JOHN C KENNEDY
ALAN W KORNBERG
DANIEL J KRAMER
DAVID K LAKHDHIR
STEPHEN P LAMB*
JOHN E LANGE
DANIEL J LEFFELL
XIAOYU GREG LIU
JEFFREY D MARELL
MARCO V MASOTTI
EDWIN S MAYNARD
DAVID W MAYO
ELIZABETH R McCOLM
MARK F MENDELSOHN
TOBY S MYERSON
J OHN E NATHAN
CATHERINE NYARADY
J OHN J O' NEIL
ALEX YOUNG K OH
BRAD R OKUN
KELLEY D PARKER
ROBERT P PARKER*
MARC E PERLMUTTER
MARK F POMERANTZ
VALERIE E RADWANER
CARL L REISNER
WALTER G RICCIARDI
WALTER RIEMAN
RICHARD A ROSEN
ANDREW N ROSENBERG
JACQUELINE P RUBIN
RAPHAEL M RUSSO
J EFFREYS SAMUELS
DALE M SARRO
TERRY E SCHIMEK
KENNETH M SCHNEIDER
ROBERT B SCHUMER
JAMES H SCHWAB
JOHN M SCOTT
STEPHEN J SHIMSHAK
DAVID R SICULAR
MOSES SILVERMAN
STEVEN SIMKIN
JOSEPH J SIMONS
MARILYN SOBEL
AUDRAJ SOLOWAY
TARUN M STEWART
ERIC AL AN STONE
AIDAN SYNNOTT
ROBYN F TARNOFSKY
MONICA K THURMOND
DANIEL J TOAL
LIZA M VELAZQUEZ
MARIA T VULLO
LAWRENCE G WEE
BETH A WILKINSON
STEVEN J WILLIAMS
MARK B WLAZLO
JULI A TM WOOD
JORDAN E YARETT
KAYE N YOSHINO
TONG YU
TRACEYA ZACCONE
Dear Judge Jones:
On behalf of plaintiff, we write to let Your Honor know that Edie Windsor
is back at home and is recovering from her most recent heart attack.
We also enclose a copy of the latest filing in the related Golinski case. In
the enclosed Motion to Consolidate and Expedite Appeals dated March 26
?
2012, the
United States Department of Justice asks the United States Court of Appeals for the Ninth
Circuit to hear the appeal of Judge White's decision of February 22, 2012 (which we
previously sent to Your Honor on February 23, 2012) on an expedited basis and en banc
given the importance and the urgency of the issues presented concerning the
constitutionality of the Defense of Marriage Act.
A-1390
Roberta A. Kaplan
Enclosure
Jean Lin, Esq.
A-1391
PAUL, WEI SS, RI FKI ND, WHARTON & GARRI SON LLP
1285 AVENUE OF THE AMERI CAS
TELEPHONE ( 2 1 2 ) 3 7 3 - 3 0 0 0
LLOYD K GARRI SON ( 1946- 1991)
RANDOLPH E PAUL ( 1946- 1956)
SI MON H RI FKI ND ( 1950- 1995)
LOUI S S WEI SS ( 1927- 1950)
JOHN F WHARTON ( 1927 1977)
WRI TER S DI RECT DI AL NUMBER
(212) 373-3086
WRI TER' S DI RECT FACSI MI LE
(212) 373-2037
WRI TER S DI RECT E- MAI L ADDRESS
UNI T 3 6 0 1 , FORTUNE PLAZA OFFI CE TOWER A
BEI JI NG 100020
TELEPHONE ( 86- 10) 5 8 2 8 - 6 3 0 0
1 2TH FLOOR, HONG KONG CLUB BUI LDI NG
HONG KONG
TELEPHONE ( 852) 2 8 4 6 - 0 3 0 0
ALDER CASTLE
10 NOBLE STREET
LONDON EC2V 7JU U K
TELEPHONE ( 44 20) 7 3 6 7 1 6 0 0
2-2 UCHI SAI WAI CHO 2- CHOME
CHI YODA KU, TOKYO 1 OO-OO 1 1, JAPAN
TELEPHONE (81 3) 3597- 8101
77 KI NG STREET WEST SUI TE 3 1 OO
PO BOX 226
TORONTO ONTARI O M5K 1J3
TELEPHONE (4 1 6) 5 0 4 - 0 5 2 0
2001 K STREET NW
WASHI NGTON, DC 20O06- 1 047
TELEPHONE ( 202) 2 2 3 - 7 3 0 0
SOO DELAWARE AVENUE, SUI TE 2 0 0
POST OFFI CE BOX 32
WI LMI NGTON DE 1 9 8 9 9 - 0 0 3 2
TELEPHONE ( 302) 655 44 10
March 29, 2012
VIA FACSIMILE AND HAND
500 Pearl Street
New York, NY 10007
MATTHEW W ABBOTT
AL L AN J ARFFA
ROBERT A ATKI NS
DAVI D J BALL
JOHN F BAUGHMAN
LYNN B BAYARD
DA NI E L J SELLER
CRAI G A BENSON*
MI TCHELL L BERG
MARK S BERGMAN
BRUCE BI RENBOI M
ANGELO BONVI NO
JAMES L BROCHI N
DAVI D W BROWN
SUSANNA M BUERGEL
PATRI CK S CAMPBEL L *
JESSI CA S CAREY
JEANETTE K CHAN
YVONNE Y F CHAN
LEWI S R CLAYTON
JAY COHEN
KELLEY A CORNI SH
CHARLES E DAVI DOW
DOUGLAS R DAVI S
ARI EL J DECKELBAUM
JAMES M DUBI N
A NDRE WJ EHRL1CH
GREGORY A EZR1NG
MARC FALCONE
ANDREW C FI NCH
ROBERTO FI NZI
PETER E FI SCH
ROBERT C FLEDER
MARTI N FLUMENBAUM
ANDREW J FOLEY
HARRI S B FREI DUS
MANUEL S FREY
KENNETH A GALLO
MI CHAEL E GERTZMAN
PAUL D GI NSBERG
ADAM M GI VERTZ
ROBERT D GOLDBAUM
NEI L GOLDMAN
ERIC S GOLDSTEI N
ERIC GOODISON
CHARLES H GOOGE, JR
A NDRE WG GORDON
UDI GROFMAN
BRUCE A GUTENPLAN
AL AN S HALPERI N
JUSTI N G HAMI L L
CLAUDI A HAMMERMAN
GERARD E HARPER
BRI AN S HERMANN
ROBERT M HI RSH
MI CHELE HI RSHMAN
JOYCE S HUANG
DAVI DS HUNTI NGTON
MEREDI TH J KANE
ROBERTA A KAPLAN
*NOT ADMITTED TO THE NE W YORK BAR
BRAD S KARP
J OHN C KENNEDY
AL AN W KORNBERG
DA NI E L J KRAMER
DAVI D K LAKHDHI R
STEPHEN P L AMB*
J OHN E LANGE
DANI EL J LEFFELL
XI AOYU GREG LI U
JEFFREY D MARELL
MARCO V MASOTTl
EDWI N S MAYNARD
DAVI D W MAYO
ELI ZABETH R MCCOLM
MARK F MENDELSOHN
T OBYS MYERSON
J OHN E NATHAN
CATHERI NE NYARADY
J OHN J O' NEI L
ALEX YOUNG K OH
BRAD R OKUN
KELLEY D PARKER
ROBERT P PARKER*
MARC E PERLMUTTER
MARK F POMERANTZ
VALERI E E RADWANER
CARL L REI SNER
WALTER RI EMAN
RI CHARD A ROSEN
ANDREW N ROSENBERG
J ACQUELI NE P RUBI N
RAPHAEL M RUSSO
JEFFREY B SAMUELS
DALE M SARRO
TERRY E SCH1MEK
ROBERTB SCHUMER
JAMES H SCHWAB
J OHN M SCOTT
STEPHEN J SHI MSHAK
DAVI D R SI CULAR
MOSES SI LVERMAN
STEVEN SI MKI N
JOSEPH J SI MONS
MARI LYN SOBEL
A UDRA J SOLOWAY
TARUN M STEWART
ERIC AL AN STONE
A1DAN SYNNOTT
ROBYN F TARNOFSKY
MONI CA K THURMOND
DA NI E L J TOAL
LI ZA M VELAZQUEZ
MARI A T VULLO
LAWRENCE G WEE
THEODORE V WEL L S, JR
BETH A WI LKI NSON
STEVEN J WI LLI AMS
MARK B WLAZLO
J ULI A T M WOOD
JORDAN E YARETT
KAYE N YOSHI NO
TONG YU
TRACEYA ZACCONE
Dear Judge Jones:
We write to follow up on our March 28 letter, in which we enclosed the
Motion to Consolidate and Expedite Appeals filed by the United States Department of
Justice in the United States Court of Appeals for the Ninth Circuit in the Golinski case
(the "DOJ Br."). For many of the same reasons stated in the DOJ's motion to expedite in
Golinski, Ms. Windsor respectfully requests that this Court issue a decision on her
pending motion for summary judgment (and defendant-intervenor's motion to dismiss) as
promptly as possible.
We have spoken to counsel for the United States, Jean Lin, Esq. (cc-ed
below), and we understand that defendant the United States joins in this request.
More specifically, given the recent decisions of two district courts
declaring Section 3 of DOMA unconstitutional, Gill v. Office of Personnel Mgmt., 699 F.
Supp. 2d 374 (D. Mass. 2010); Golinski v. U.S. Office of Personnel Mgmt., F. Supp.
A-1392
PAUL, WEISS, RI FKI ND, WHARTON & GARRI SON LLP
2d., 2012 WL 569685 (N.D. Cal. Feb. 22, 2012), there is now significant uncertainty
with respect to the constitutionality of Section 3 of DOMA. (DOJ Br. at 5.) This
problem is arguably most acute in New York since it is currently the largest state in the
United States to permit same-sex couples to get married. Moreover, the current
uncertainty adversely affects not only Ms. Windsor and others similarly situated to her,
but also the federal government in the administration of many federal programs. (Id.)
"[G]iven the number of statutes affected by Section 3 and the significant uncertainty and
harm under which the Executive Branch must operate in enforcing a statute determined to
be unconstitutional by the President and Attorney General," swift consideration of these
issues is warranted. (Id. at 2.) Further, because the federal government continues to
enforce DOMA, Ms. Windsor and many others continue to be denied the same benefits
that are available to other married couples. (Id. at 5-6.) Thus here, as in Golinski, "it is
in the strong interest of every party [] to have [this case] resolved as promptly as
possible." (Id. at 2.)
Finally, as the Court is aware, Ms. Windsor is elderly and in failing health.
She very much hopes that she can see a resolution of this litigation while she is alive and
well enough to fully participate in her case.
/A-.
Roberta A. Kaplan
Jean Lin, Esq.
A-1393
TELEPHONE ( 212) 373- 3000
LLOYD K. GARRISON (1 946-1 99 1)
RANDOLPH E. PAUL (1946-1956)
SIMON H. RIFKIND (1950-1995)
LOUIS S.WEISS (1927-1950)
JOHN F. WHARTON (1927-1977)
(212) 373-3086
(212) 373-2037
May 29, 2012
IT 3601, FORTUNE PLAZA OFFICE TOWER A
NO. 7 DONG SANHUAN ZHONGLU
CHAO YANG DISTRICT
BEIJING 100020
TELEPHONE (86-1 O) 5828-6300
J2TH FLOOR, HONG KONG CLUB BUILDING
HONG KONG
TELEPHONE (852) 2846-0300
ALDER CASTLE
lO NOBLE STREET
LONDON EC2V 7JU, U.K.
TELEPHONE (44 20) 7367 1 600
2-2 UCHISA1WAICHO 2-CHOME
CHIYODA-KU, TOKYO lOO-OOl 1, JAPAN
TELEPHONE (81-3) 3597-8101
77 KING STREET WEST, SUITE 3 1 O0
P.O. BOX 226
TELEPHONE (416)^504-0520
2001 K STREET, NW
TELEPHONE (202) 223-7300
POST OFFICE BOX 32
TELEPHONE (302) 655-44 10
MATTHEW W. ABBOTT
ALLAN J. ARFFA
ROBERT A. ATKINS
DAVID J. BALL
JOHN F. BAUGHMAN
LYNN B. BAYARD
DANIEL J. SELLER
CRAIG A. BENSON*
MITCHELL L. BERG
MARK S. BERGMAN
BRUCE BIRENBOIM
ANGELO BONVINO
JAMES L. BROCHIN
RICHARD J. BRONSTEIN
DAVID W. BROWN
SUSANNA M. BUERGEL
JESSICA S. CAREY
JEANETTE K. CHAN
YVONNE Y. F. CHAN
LEWIS R. CLAYTON
JAY COHEN
KELLEY A. CORNISH
CHRISTOPHER J. CUMMINGS
CHARLES E. DAVIDOW
DOUGLAS R. DAVIS
THOMAS V. DE LA BASTIDE
ARIEL J. DECKELBAUM
JAMES M. DUBIN
ALICE BELISLE EATON
ANDREW J. EHRLICH
GREGORY A. EZRING
LESLIE GORDON FAGEN
MARC FALCONE
ANDREW C. FINCH
BRAD J. FINKELSTEIN
ROBERTO FINZI
PETER E. FISCH
ROBERT C. FLEDER
MARTIN FLUMENBAUM
ANDREW J. FOLEY
HARRIS B. FREIDUS
MANUEL S. FREY
KENNETH A. GALLO
MICHAEL E. GERTZMAN
PAUL D. GINSBERG
ADAM M. GIVERTZ
ROBERT D. GOLDBAUM
NEIL GOLDMAN
ERICS. GOLDSTEIN
EftIC GOODISON
ANDREW G. GORDON
UDI GROFMAN
BRUCE A. GUTENPLAN
ALAN S. HALPEfciN
JUSTIN G. HAMlLL
CLAUDIA HAMMERMAN
GERARD E. HARPER
BRIAN S. HERMANN
ROBERT M. HlRSH
MICHELE HIRSHMAN
JOYCE S. HUANG
DAVID S. HUNTINGTON
MEREDITH J. KANE
ROBERTA A. KAPLAN
BRAD S. KARP
JOHN C. KENNEDY
ALAN W. KORNBERG
DANIEL J. KRAMER
DAVID K. LAKHDHlR
STEPHEN P. LAMB*
JOHN E. LANGE
DANIEL J. LEFFELL
XiAOYU GREG LIU
JEFFREY D. MARELL
MARCO V. MASOTTI
EDWIN S. MAYNARD
DAVID W. MAYO
ELIZABETH R. McCOLM
MARK F. MENDELSOHN
TOBY S. MYERSON
JOHN E. NATHAN
CATHERINE NYARADY
JOHN J. O' NEIL
ALEX YOUNG K. OH
BRAD R. OKUN
KELLEY D. PARKER
MARC E. PERLMUTTER
MARK F. POMERANTZ
VALERIE E. RADWANER
CARL L. REISNER
II WALTER G. RICC1ARDI
WALTER RIEMAN
RICHARD A. ROSEN
ANDREW N. ROSENBERG
JACQUELINE P. RUBIN
RAPHAEL M. RUSSO
JEFFREY B. SAMUELS
DALE M.SARRO
TERRY E. SCHIMEK
ROBERT B. SCHUMER
JAMES H. SCHWAB
JOHN M. SCOTT
STEPHEN J. SHIMSHAK
DAVID R. SlCULAR
MOSES SILVERMAN
STEVEN SIMKIN
JOSEPH J. SIMONS
MARILYN SOBEL
AUDRA J. SOLOWAY
TARUN M. STEWART
ERIC ALAN STONE
AIDAN SYNNOTT
ROBYN F. TARNOFSKY
MONICA K. THURMOND
DANIEL J. TOAL
LIZA M. VELAZQUEZ
MARIA T. VULLO
LAWRENCE G. WEE
BETH A. WILKINSON
STEVEN J. WILLIAMS
LAWRENCE I. WlTDORCHIC
MARK B. WLAZLO
JULIA T.M. WOOD
JORDAN E. YARETT
KAYE N. YOSHINO
TONG YU
TRACEY A. ZACCONE
VIA FACSIMILE AND HAND DELIVERY
500 Pearl Street
New York, NY 10007
Dear Judge Jones:
We write on behalf of plaintiff Edie Windsor to bring to the Court's
attention a decision issued last week by Judge Claudia Wilken of the Northern District of
California holding that Section 3 of the Defense of Marriage Act ("DOMA") is
unconstitutional in a case that presents substantially similar facts and raises similar legal
issues as the above-captioned matter currently pending before Your Honor. See
Dragovich v. Dep 't of Treasury, No. C 10-1564 (CW) (N.D. Cal. May 24, 2012).
In particular, after recounting the legislative history behind the denial of
federal legal recognition for same-sex couples, id at 6-10, the Dragovich court held that
"animus toward, and moral rejection of, homosexuality and same-sex relationships are
apparent in the Congressional record," Id at 21. The court also dismissed each of BLAG's
proffered rationales for Section 3 of DOMA as failing to satisfy rational basis scrutiny.
The court first held that "the preservation of marriage as an institution that
excludes gay men and lesbians for the sake of tradition is not a legitimate governmental
A-1394
interest" because
u
[u]nder equal protection jurisprudence, tradition is not a legally
acceptable reason to prohibit a practice that historically has been the subject of social
disapprobation." Id. at 22. Noting that DOMA "established an across-the-board federal
definition of marriage limiting it to heterosexual couples, and preempt[ed] any
opportunity to test the impact of state laws evolving to recognize same-sex marriage," the
Dragovich court further held that Section 3 of DOMA was not "a cautious legislative
step." Id. at 24. In addition, the court held that "[t]he desire to save money is not
sufficient to justify 3 of the DOMA" because "even crediting cost-savings as a
conceivable policy goal, groups selected to bear the burden of legislative enactments to
save money must be rationally, not arbitrarily, chosen." Id. at 26-27 (citations omitted).
The court also rejected a purported interest in "uniformity in eligibility for federal
benefits," holding that "[a]n enactment that precludes federal recognition of certain
marriages because they involve same-sex couples cannot be justified as promoting
uniformity where federal law otherwise accepts wide variation in state marriage law." Id.
at 27-28. Finally, the court considered the purported rationale of encouraging
"responsible procreation," and held that the relationship between DOMA and this
supposed interest lacked a rational basis. Id. at 28-31.
The court also rejected BLAG's reliance on Baker v. Nelson, 409 U.S. 810
(1972), holding that "Baker does not foreclose Plaintiffs' equal protection claim."
Dragovich, No. C 10-1564, at 15.
As a result of the enclosed opinion, as of today's date and since 2010 (the
year in which the Complaint in the above-captioned matter was filed), four federal district
or bankruptcy courts have agreed that Section 3 of DOMA is unconstitutional for the very
reasons asserted by Ms. Windsor. See id.', Golinski v. Office of Per s. Mgmt., 824 F.
Supp. 2d 968 (N.D. Cal. 2012); Gill v. Office ofPers. Mgmt., 699 F. Supp. 2d 374 (D.
Mass. 2010); In re Balas, 449 B.R. 567 (Bankr. CD. Cal. 2011).
For the reasons stated in our letter to the Court dated March 29, 2012, in
which we and the Department of Justice respectfully requested an expeditious decision on
the pending dispositive motions, we respectfully renew our request that the Court decide
this matter as soon as practicable.
Roberta A. Kaplan
Enclosure
Jean Lin, Esq.
A-1395
PAUL, WEI SS, RI FKI ND, WHARTON & GARRI S ON LLP
1 2 8 5 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 1 001 9- 6064
TELEPHONE ( 212) 373- 3000
LLOYD K. GARRISON (1 946-1991)
RANDOLPH E. PAUL (1946-1956)
SIMON H. RIFKIND (1950-1995)
LOUIS S.WEISS (1927-1950)
JOHN F. WHARTON (1927-1977)
(212)373-3086
(212) 373-2037
May 31,2012
IT 3601 , FORTUNE PLAZA OFFICE TOWER A
NO. 7 DONG SANHUAN ZHONGLU
CHAO YANG DISTRICT
BEIJING 100020
TELEPHONE (86-1 O) 5 8 2 8 -6300
HONG KONG
TELEPHONE (852) 2 8 46-0300
ALDER CASTLE
lO NOBLE STREET
LONDON EC2V7JU, U.K.
TELEPHONE (44 20) 7367 1600
CHIYODA-KU, TOKYO 1 OO-OO 1 1 , JAPAN
TELEPHONE (81-3) 3597-8101
P.O. BOX 226
TELEPHONE (416) 5 04-05 2 0
2001 K STREET, NW
TELEPHONE (202) 2 2 3-7300
5 00 DELAWARE AVENUE, SUITE 2 00
POST OFFICE BOX 32
TELEPHONE (302) 655-4410
MATTHEW W. ABBOTT
ALLAN J. ARFFA
ROBERT A. ATKINS
DAVID J. BALL
JOHN F. BAUGHMAN
LYNN B. BAYARD
DANIEL J. SELLER
CRAIG A. BENSON*
MITCHELL L. BERG
MARK S. BERGMAN
BRUCE BIRENBOIM
ANGELO BONVINO
JAMES L. BROCHIN
RICHARD J. BRONSTEIN
DAVID W. BROWN
SUSANNA M. BUERGEL
JESSICA S. CAREY
JEANETTE K. CHAN
YVONNE Y. F. CHAN
LEWIS R. CLAYTON
JAY COHEN
KELLEYA. CORNISH
CHRISTOPHER J. CUMMINGS
CHARLES E. DAVIDOW
DOUGLAS R. DAVIS
THOMAS V. DE LA BASTIDE I I I
ARIEL J. DECKELBAUM
JAMES M. DUBIN
ALICE BELISLE EATON
ANDREW J. EHRLICH
GREGORY A. EZRING
LESLIE GORDON FAGEN
MARC FALCONE
ANDREW C. FINCH
feRADJ. FINKELSTEIN
&OBERTO FINZI
PETER E. FISCH
ROBERT C. FLEDER
MARTIN FLUMENBAUM
ANDREW J. FOLEY
HARRIS B. FREIDUS
MANUEL S. FREY
KENNETH A. GALLO
MICHAEL E. GERTZMAN
PAUL D. GINSBERG
ADAM M. GIVERTZ
ROBERT D. GOLDBAUM
NEIL GOLDMAN
ERICS. GOLDSTEIN
ERIC GOODISON
ANDREWG. GORDON
UDI GROFMAN
BRUCE A. GUTENPLAN
GAINES GWATHMEY, 111
ALAN S. HALPERIN
JUSTIN G. HAMILL
CLAUDIA HAMMERMAN
GERARD E. HARPER
BRIAN S. HERMANN
ROBERT M. HlRSH
MICHELE HIRSHMAN
JOYCE S. HUANG
DAVIDS. HUNTINGTON
MEREDITH J. KANE
ROBERTA A. KAPLAN
BRAD S. KARP
JOHN C. KENNEDY
ALAN W. KORNBERG
DANIEL J. KRAMER
DAVID K. LAKHDHIR
STEPHEN P. LAMB*
JOHN E. LANGE
DANIEL J. LEFFELL
XIAOYU GREG LIU
JEFFREY D. MARELL
MARCO V. MASOTTl
EDWIN S. MAYNARD
DAVID W. MAYO
ELIZABETH R. McCOLM
MARK F. MENDELSOHN
TOBY S. MYERSON
JOHN E. NATHAN
CATHERINE NYARADY
JOHN J. O'NEIL
ALEX YOUNG K. OH
BRAD R. OKUN
KELLEY D. PARKER
MARC E. PERLMUTTER
MARK F. POMERANTZ
VALERIE E. RADWANER
CARL L. RE1SNER
WALTER G. RICCIARDI
WALTER RIEMAN
RICHARD A. ROSEN
ANDREW N. ROSENBERG
JACQUELINE P. RUBIN
RAPHAEL M. RUSSO
JEFFREY B. SAMUELS
DALE M. SARRO
TERRY E. SCHIMEK
ROBERT B, SCHUMER
JAMES H. SCHWAB
JOHN M. SCOTT
STEPHEN J. SHIMSHAK
DAVID R. SICULAR
MOSES SILVERMAN
STEVEN SIMKIN
JOSEPH J. SIMONS
MARILYN SOBEL
AUDRAJ. SOLOWAY
TARUN M. STEWART
ERIC ALAN STONE
AIDAN SYNNOTT
ROBYN F. TARNOFSKY
MONICA K. THURMOND
DANIEL J. TOAL
LIZA M. VELAZQUEZ
MARIA T. VULLO
LAWRENCE G. WEE
BETH A. WILKINSON
STEVEN J. WILLIAMS
LAWRENCE I. W1TDORCHIC
MARK B. WLAZLO
JULIA T.M. WOOD
JORDAN E. YARETT
KAYE N. YOSHINO
TONG YU
TRACEY A. ZACCONE
VIA FACSIMILE AND HAND DELIVERY
500 Pearl Street
New York, NY 10007
Dear Judge Jones:
We write on behalf of plaintiff Edie Windsor to bring to the Court's
attention the decision issued earlier today by the Unites States Court of Appeals for the
First Circuit holding that Section 3 of the Defense of Marriage Act ("DOMA") is
unconstitutional in a case that presents substantially similar facts and raises overlapping
legal issues as the above-captioned matter. See Massachusetts v. Dep
y
t of Health and
Human Servs., Gill v. Office ofPers. Mgmt.ôs. 10-2204, 10-2207, 10-2214 (1st Cir.
May 31, 2012).
In particular, in a unanimous opinion by Judge Boudin, the First Circuit
held that the burdens imposed by Section 3 of DOMA "are comparable to those the
[Supreme] Court found substantial in [Dep't ofAg. v.] Moreno[
9
413 U.S. 528 (1973)] ,
City of Cleburne [v. Cleburne Living Ctr., 473 U.S. 432 (1985)], and Romer [v. Evans,
517 U.S. 620 (1996)]:" Id at 19. The First Circuit proceeded to reject each of the
purported justifications for Section 3 of DOMA, holding "that the rationales offered do
not provide adequate support for section 3 of DOMA." Id. at 28.
A-1396
PAUL, WEISS, RIFKIND, WHARTON & GARRI SON LLP
The Honorable Barbara S. Jones 2
As a result of the enclosed opinion, as of today's date and since 2010 (the
year in which the Complaint in the above-captioned matter was filed), every federal
circuit, district, or bankruptcy court to have analyzed the constitutionality of DOMA has
agreed that Section 3 of DOMA is unconstitutional for the very reasons asserted by Ms.
Windsor. See id\Dragovich v. Dep't of Treasury, No. C 10-1564 (CW), 2012 WL
1909603 (N.D. Cal. May 24, 2012); Golinski v. Office ofPers. Mgmt, 824 F. Supp. 2d
968 (N.D. Cal. 2012); Gill v. Office ofPers. Mgmt., 699 F. Supp. 2d 374 (D. Mass.
2010); In re Balas, 449 B.R. 567 (Bankr. CD. Cal. 2011).
As Your Honor is aware, and as addressed in the parties' respective cross-
motions, the above decisions were issued in Circuits where precedent mandated that
DOMA be evaluated under rational basis review. {See Reply Mem. of Law in Supp. of
PL's Mot. for Summ. J. at 9-13.) As Your Honor is also aware, no such precedent binds
this Court, and as a result both the Department of Justice and Ms. Windsor have
respectfully requested a decision from this Court finding that Section 3 of DOMA is
subject to heightened judicial scrutiny. {See id. at 13-24; Def. United States' Mem. of
Law in Resp. to PL's Mot. for Summ. J. and Intervenor's Mot. to Dismiss; Mem. of Law
in Supp. of PL's Mot. for Summ. J. at 10-31.)
For the reasons stated in our letters to the Court dated March 29, 2012 and
May 29, 2012, in which we and the Department of Justice respectfully requested an
expeditious decision on the pending dispositive motions, which have been pending since
September 15, 2011, with the utmost respect, we renew our request that the Court decide
this matter as soon as practicable in light of the pressing nature of the issues of national
concern before the Court.
Roberta Ar Kaplan
Enclosure
Jean Lin, Esq.
A-1397
I hereby certify that on August 10, 2012, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Second
Circuit by using the appellate CM/ECF system. I further certify that all participants in
the case are registered CM/ECF users and will be served by the appellate CM/ECF
system.
/s/ August E. Flentje
AUGUST E. FLENTJE
(202) 514-1278
Attorney, Appellate Staff
Civil Division, U.S. Department of Justice
950 Pennsylvania Ave., N.W., Room 3613
Washington, DC 20530-0001

12-2335 #155

Enviado por

Dados do documento

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

12-2335 #155

Enviado por

Direitos autorais:

Formatos disponíveis

12-2335, 12-2435

IN THE UNITED STATES COURT OF APPEALS

Case 1:10-cv-08435-BSJ-JCF Document 62-4 Filed 08/02/11 Page 2 of 11

Case 1:10-cv-08435-BSJ-JCF Document 82-5 Filed 09/15/11 Page 2 of 14

Você também pode gostar