Cornell University Law School Social Science and Law

Same-Sex Marriage: The Expert Evidence of Dr. Michael Rosenfeld in DeBoer v. Snyder

Compiled by Brie Michaelson, Jewel Russell, Sparsha Karingula, and Jordyn Manly

Plaintiffs April DeBoer and Jayne Rowse were an unmarried same-sex couple living in Michigan. While the couple had lived together for eight years and jointly owned their residence, same-sex couples were excluded from marriage in Michigan state under the Michigan Marriage Act. As foster parents, Rowse adopted two children and DeBoer adopted one child over the course of their relationship. However, due to a Michigan law limiting adoption to single persons or married couples, the plaintiffs were unable to jointly adopt the children.

In 2012, the plaintiffs sued the state of Michigan, claiming that the law preventing their joint adoption of the children violated the Equal Protection Clause of the Constitution by discriminating against unmarried couples. In response, the state moved to dismiss the complaint on the grounds that the plaintiffs lacked standing since their injury could not be traced to the Michigan law banning same-sex adoption. The court consequently allowed the plaintiffs to amend their complaint to challenge the Michigan Marriage Act banning same-sex marriage, what the court considered to be the underlying issue in this case. On the amended complaint, the plaintiffs argued that the Michigan Marriage Act violated the Due Process and Equal Process guarantees of the Constitution’s Fourteenth Amendment. Ultimately, the District Court in 2014 ruled that the Michigan Marriage Act banning same-sex marriage violated the Constitution’s Equal Protection Clause by impermissibly discriminating against same-sex couples.

The Expert: Dr. Michael Rosenfeld

During the course of the trial, both the plaintiffs and the defense called several expert witnesses to provide testimony. One expert witness called by the plaintiffs was Dr. Michael Rosenfeld, a sociologist out of Stanford University.

Rule 702 states the following:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Applying the aforementioned rule to Rosenfeld’s background and credentials, it is apparent that he is qualified as an expert. Firstly, Rosenfeld is well-educated, as he has a PhD degree in Sociology from the University of Chicago. Furthermore, he is highly qualified as he is a professor for Stanford University’s Department of Sociology and is a social demographer whose areas of expertise are marriage, child development, family structure, and population.

Moreover, Rosenfeld has written extensively on his area of expertise, having authored The Age of Independence: Interracial Unions, Same-Sex Unions, and the Changing American Family (Harvard University Press, 2007). Additionally, he has also published 18 peer-reviewed papers between 1997 and 2019, many of which deal with family dynamics and same-sex unions. The fact that his literary works have been published and peer-reviewed on numerous occasions suggests Rosenfeld is knowledgeable about the relevant subject matter. It also suggests that Rosenfeld has prior experience making information accessible to wider audiences and so, is well suited for doing the same for a court. Finally, as stated before, Rosenfeld has conducted two studies concerning the same subject matter: “Nontraditional Families and Childhood Progress Through School” and “How Couples Meet and Stay Together.” Thus, it is evident that Rosenfeld’s testimony is based on satisfactory data.

One might be concerned that Rosenfeld was not neutral whilst conducting these studies and that the results were skewed to favor the plaintiffs in DeBoer v. Snyder. However, both studies commenced before Rosenfeld was asked to be an expert witness in this case. One might also be worried that Rosenfeld was not neutral whilst serving as an expert, for he could have had ulterior motives for siding with the plaintiffs. Rest assured though, Rosenfeld did not receive any payment for his testimony besides compensation for out-of-pocket travel expenses. For all the aforementioned reasons, Sociologist Michael J. Rosenfeld was a credible expert witness.

The Social Science Research

Dr. Rosenfeld testified about his 2010 study entitled “Nontraditional Families and Childhood Progress Through School,” a study based on data from the 2000 United States census. The study examined whether grade school children of same-sex couples progress at the same rate in school as children of heterosexual couples. Dr. Rosenfeld thus testified that there is no basis for the notion that kids develop better within the area of education when raised by heterosexual parents. The expert further testified that cohabitating same-sex couples show approximately equal stability rates as heterosexual married couples, based on his longitudinal study entitled “How Couples Meet and Stay Together.”

The scientific merit of the underlying research was legitimate and effective. Using a cross-sectional study based on a census that, ideally, the entire population responds to and than additionally conducting a longitudinal study with that data seems to be the most effective way to evaluate this type of research question. Dr. Rosenfeld’s research was conducted following generally accepted principles, as it was a combination of cross-sectional and longitudinal studies based on a national census. His research would pass both Frye and Daubert gatekeeping standards.

Frye: While the witness expressed that there seemed to be a consensus in the field regarding his conclusion, he did not address whether or not there is a consensus among regarding the use of a census. In defining the relevant scientific field, the court must seek to comply with the Frye objective of attaining a consensus of the scientific community. If the field is too narrowly defined, the judgment of the scientific community will devolve into the opinion of a few experts. The field must still include scientists who would be expected to be familiar with the particular use of the evidence at issue, however, whether through actual or theoretical research. Here, within the discipline of of sociology, at that point in time, there seemed to have been a scholarly consensus about the impact on children of being raised by same sex parents. The consensus has been expressed in sociology through an Amicus Brief that the American Sociological Association submitted in the Perrin and Windsor cases. In the ASA there were about 14,000 members with Ph.Ds from a broad range of political perspectives and world views. The text of the Amicus brief was voted on and unanimously approved by the elected counsel of the ASA, indicating that there is broad support for this consensus. The consensus is based on broad research, utilizing data from a census and longitudinal studies of couples over the span of four years. 700,000 people responded to the census survey.

Daubert

Testing: Testing here was pre-litigation. It began around 2009.

Peer review/publication. There was peer review and publication in historically the top three journals in sociology: The American Journal of Sociology, The American Sociological Review, which is the official journal of the American Sociological Association, and Social Forces. The expert also published original research in all of those top three journals and served on the editorial board for the AJS and SF.

Error rate: The error rate was small because since the government did not recognize same sex marriages in the census people had to self-identify which left little room for error. Still, in order to prevent contaminating the date and to reduce the potential error rate in the data, he redid the analysis without any of the people who identified themselves as married and got the same result.

General acceptance: Although general acceptance may be relevant, but not required as under the Frye analysis, it would pass here as well.

The Court’s Treatment of Dr. Rosenfeld’s Evidence

The court placed great weight on Rosenfeld’s testimony, stating that it “finds Rosenfeld's testimony to be highly credible and gives it great weight. His research convincingly shows that children of same-sex couples do just as well in school as the children of heterosexual married couples, and that same-sex couples are just as stable as heterosexual couples.” Further, the court took Rosenfeld’s testimony into account to reject the arguments advanced by the defense’s experts. Rosenfeld’s and the other plaintiff experts’ testimony played a significant role in the decision and featured heavily in the opinion. The court’s interpretation of the evidence was accurate and they used the evaluation of the opposing experts’ research and critiques of each other’s research and credibility appropriately in coming to their final conclusion.

Relevance to the Case

The legal question in this case specifically asked if Michigan’s same-sex marriage ban was unconstitutional. At first glance, it may appear that Dr. Rosenfeld’s expert testimony regarding the children of same-sex couples was not directly relevant. However, the original question in the case regarded adoption by same-sex couples, and while the explicit legal question did not involve adopted children, it is clear from the Court’s opinion that this was a strong background consideration.

Moreover, Dr. Rosenfeld’s evidence had a significant impact on the legal question in this case because the state defended the ban on same-sex marriage in part by arguing that heterosexual couples provide the optimal environment for child-rearing. This, the state argued, promoted a legitimate governmental interest. By using valid research methods to prove otherwise, Dr. Rosenfeld disproved one of the defense’s major arguments, allowing the court to come to the decision that this was not a legitimate governmental interest.

THE REST OF THE STORY

The District Court’s decision in DeBoer v. Snyder was appealed to the U.S. Court of Appeals for the 6th Circuit and was heard together with several other similar cases from Kentucky, Ohio, and Tennessee. The 6th Circuit reversed the District Court’s decision and upheld Michigan’s ban on same-sex marriage. The Supreme Court of the United States granted certiorari in Obergefell v. Hodges, a consolidation of six lower-court cases including DeBoer v. Snyder. The Supreme Court held that state-enacted same-sex marriage bans violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the Constitution. The landmark decision in Obergefell v. Hodges thus legalized same-sex marriage in all 50 states.