Gary Gates Amicus Brief

Case: 14-3057 Document: 71 Filed: 05/01/2014 Page: 1
No. 14-3057
QEniteti ibtates; Court of Appeals
fortlje Circuit
JAMES OBERGEFELL; JOHN ARTHUR;
DAVID BRIAN MICHENER; ROBERT GRUNN,
Plaintiffs-Appellees,
v.
LANCE D. HIMES, in his official capacity as the
Interim Director of the Ohio Department of Health,
Defendant-Appellant, and
CAMILLE JONES,
Defendant.
On Appeal from the United States District Court
for the Southern District of Ohio
Case No. 1:13-CV-00501
BRIEF OF AMICUS CURIAE
GARY J. GATES IN SUPPORT OF
PLAINTIFFS-APPELLEES
AND AFFIRMANCE
Brad W. Selling
Benjamin G. Shatz
Manatt, Phelps & Phillips, LLP
11355 W. Olympic Boulevard
Los Angeles, CA 90064
(310) 312-4000
[email protected]
Counsel for Gary J. Gates
TABLEOF CONTENTS
I. Introduction 3
II. Argument 7
A. Same-Sex Couples: Nearly 1.3 Million Adults in the
U.S. and 39,400 Adults in Ohio Are Members of Same-
Sex Couples 7
1. Same-Sex Couples Live Throughout the U.S. and
Throughout Ohio 8
2. Same-Sex Couples Are Diverse in Terms of Sex,
Age, Race, and Ethnicity 8
B. Same-Sex Couples With Children: Approximately One
in Five Same-Sex Couples in the U.S. and in Ohio Are
Raising Children 12
1. Same-Sex Couples with Children Live
Throughout the U.S. and Ohio 14
2. Members of Same-Sex Couples with Children Are
Diverse in Terms of Race, Ethnicity, and Income 14
3. Same-Sex Couples Are More Likely Than
Different-Sex Couples to Be Raising Adopted
Children and Foster Children 16
C. Same-Sex Couples in Marriages, Civil Unions, or
Registered Domestic Partnerships: As of 2010,
Approximately 114,300 Same-Sex Couples in the U.S.
Were Legally Married, and Over 108,000 Were in Civil
Unions or Registered Domestic Partnerships 18
1. When Permitted By Law, Same-Sex Couples Are
More Likely to Marry Than to Enter into a Civil
Union or a Domestic Partnership 19
i
Case: 14-3057 Document; 71 Filed: 05/01/2014 Page: 3
TABLEOF CONTENTS
(continued)
2. Dissolution Rates Are Slightly Lower for Same-
Sex Couples Than for Different-Sex Couples 23
D. LGBT Adults: Over 8 Million American Adults and
317,000 Adults in Ohio Identify as LGBT 23
III. Conclusion 26
ii
TABLEOF AUTHORITIES
CASES
DeBoer v. Snyder,
_F. Supp. 2d 2014 WL 1100794
(E.D. Mich. Mar. 21, 2014) 1
Amicus Brief filed in Sevcik v. Sandoval,
9th Cir. No. 12-17668 (Oct. 25, 2013) 9
Amicus Brief filed in United States v. Windsor,
_U.S. _, 133 S. Ct. 2675 (No. 12-307, Mar. 1, 2013) 9
OTHER AUTHORITIES
About GSS, GSS GENERAL SOCIAL SURVEY ,
http://www3.norc.org/GSS+Website/About+GSS/
American Community Survey, U.S. CENSUS BUREAU,
http://www.census.gov/acs/
Badgett, M. V. Lee & Jody L. Herman, The Williams
Institute, UCLA School of Law, Patterns of Relationship
Recognition by Same-Sex Couples in the United States
(Nov. 2011)
Decennial Census Data on Same Sex Couples,
U.S. CENSUS BUREAU,
http://www.census.gov/hhes/samesex/data/decennial. html
Gates, Gary J. & Abigail M. Cooke, The Williams Institute,
UCLA School of Law, Ohio Census Snapshot 2010 (2011) 8, 14
Gates, Gary J. & Abigail M. Cooke, The Williams Institute,
UCLA School of Law, United States Census Snapshot:
2010(2011) 7, 8, 18, 19
Gates, Gary J. & Frank Newport, Special Report: 3.4% of
U.S. Adults Identify as LGBT, GALLUP (Oct. 18, 2012) 4, 8
Gates, Gary J. & Frank Newport, LGBT Percentage Highest
in D.C., Lowest in North Dakota, GALLUP (Feb. 15, 2013) 4, 23, 24
..4
..3
20
..3
iii
TABLEOF AUTHORITIES
(continued)
Gates, Gary J., LGBT Identity: A Demographer's Perspective,
45 Loy. L.A. L. Rev. 693 (2012) 25
Gates, Gary J., The Williams Institute, UCLA School of Law,
How Many People Are Lesbian, Gay, Bisexual, and
Transgender? (Apr. 2011) 24
Gates, Gary J., The Williams Institute, UCLA School of law,
LGBT Parenting in the United States, (Feb. 2013) passim
Same-sex and Different-sex Couples in the American
Community Survey: 2005-2011 (Feb. 2013) passim
Same-Sex Couples in Ohio: A Demographic Summary
(2014) passim
Gates, Gary J., The Williams Institute, UCLA School of law,
Same-Sex Couples in US Census Bureau Data: Who Gets
Counted and Why (Aug. 2010) passim
Grant, Jaime M., et al., Injustice at Every Turn: A Report of
the National Transgender Discrimination Survey (2011) 25
Howden , Lindsay M. & Julie A. Meyer, U.S. CENSUS
BUREAU, Age and Sex Composition: 2010 Census Briefs
(May 2011) 24
Women in the Labor Force: A Databook, U.S. BUREAU OF
LABOR STATISTICS (Dec. 2011) 16
RULES
Fed. R.App. P. 29(a) 2
Fed. R.App. P. 29(c)(5) 2
iv
STATEMENT OF INTEREST
Amicus Curiae Gary J. Gates is the Williams Distinguished
Scholar at the Williams Institute on Sexual Orientation and Gender
Identity Law and Public Policy at the UCLA School of Law. He is also a
member of the Scientific Advisory Committee of the U.S. Census
Bureau and the Data Users Advisory Committee of the Bureau of Labor
Statistics.
Gates coauthored The Gay and Lesbian Atlas and is a recognized
expert on the geography and demography of the lesbian, gay, bisexual,
and transgender ("LGBT") population. He conducted the first significant
research study using U.S. Census data to explore characteristics of
same-sex couples. He publishes extensively on the demographic and
economic characteristics of the LGBT population. Many national and
international media outlets routinely feature his work. In addition,
Gates regularly consults with federal and state governments and non-
governmental organizations on data collection issues regarding LGBT
populations. In DeBoer v. Snyder, he provided "highly credible" expert
testimony relied upon by the court in holding unconstitutional
Michigan's prohibition on marriage for same-sex couples. No. 12-CV-
10285, _F. Supp. 2d _, 2014 WL 1100794, at *5 (E.D. Mich. Mar. 21,
2014).
As a scholar of sexual orientation and gender identity law and
public policy, Gates has a substantial interest in the issues before this
1
Court. Gates has conducted extensive research and authored numerous
studies regarding the geographic, demographic, and economic
characteristics of same-sex couples in the United States. Gates believes
that this expertise and perspective as an academic scholar may help the
Court more fully appreciate the impact of Ohio's prohibition on
recognition of the marriages of same-sex couples.
This brief is filed with consent of all parties and no motion for
leave to file is required. Fed. R. App. P. 29(a). No party's counsel
authored this brief in whole or in part. No party or party's counsel
contributed money that was intended to fund preparing or submitting
this brief, and no person other than the amicus curiae or his counsel
contributed money that was intended to fund preparing or submitting
this brief. Fed. R. App. P. 29(c)(5).
2
I. Introduction
This brief presents and analyzes demographic and economic data
available regarding same-sex couples and their children in the United
States and in Ohio and regarding LGBT adults, regardless of their
relationship status, in order to assist the Court in understanding the
possible effects of rulings in this case regarding the validity of Ohio
laws that preclude the state from recognizing same-sex marriages.
1
This brief uses data primarily from four sources:
2010 U.S. Census: The U.S. Census Bureau has been
collecting data regarding same-sex couples for more than two
decades, including as part of the 1990, 2000, and 2010
censuses.
2
AmericanCommunity Survey ("ACS"): The ACS is an
annual survey conducted by the U.S. Census Bureau that
provides demographic information about the U.S.
population.
3
General Social Survey ("GSS"): The GSS is a biannual
survey of the National Opinion Research Center ("NORC") at
the University of Chicago. The GSS, initiated in 1972, is the
largest project funded by the National Science Foundation's
1
Throughout this brief, the acronym "LGBT" refers collectively to
lesbian, gay, bisexual, and transgender persons, and the acronym
"LGB" refers collectively to lesbian, gay, and bisexual persons.
2
Decennial Census Data on Same Sex Couples, U.S. CENSUS BUREAU,
http ://www. census. go v/hhes/samesex/ data/decennial, html
(last visited Apr. 30, 2014).
3
American Community Survey, U.S. CENSUS BUREAU,
http://www.census.gov/acs/ (last visited Apr. 30, 2014).
3
Sociology Program and is the most frequently used source of
information in the social sciences other than the U.S.
Census.
4
Gallup: The Gallup Daily Tracking Survey asks respondents
whether they identify as lesbian, gay, bisexual, or
transgender. Data in this brief draw upon responses from
more than 121,000 adults in the United States from June
through September 2012, plus 85,000 more respondents from
October through December 2012.
5
These data constitute the
largest population-based survey of LGBT persons in U.S.
history.
6
Based primarily on these sources, this brief describes demographic
data about four groups of people in the United States and Ohio:
(A) same-sex couples; (B) same-sex couples with children; (C) same-sex
couples in marriages, civil unions, or registered domestic partnerships;
and (D) LGBT adults. The data show:
4
About GSS, GSS GENERAL SOCIAL SURVEY ,
http://www3.norc.org/GSS+Website/About+GSS/ (last visited Apr. 30,
2014).
5
Gary J. Gates & Frank Newport, Special Report: 3.4% of U.S. Adults
Identify as LGBT, GALLUP (Oct. 18, 2012),
http://www.gallup.com/poll/158066/special-report-adults-identify-
Igbt.aspx (last visited Apr. 30, 2014); Gary J. Gates & Frank Newport,
LGBT Percentage Highest in D.C., Lowest in North Dakota, GALLUP
(Feb. 15, 2013), http://www.gallup.com/poll/160517/lgbt-percentage-
highest-lowest-north-dakota.aspx (last visited Apr. 30, 2014).
6
Gates & Newport, LGBT Percentage Highest in B.C., Lowest in North
Dakota, supra note 5.
4
(A) Same-Sex Couples: There are nearly 1.3 million adults who
were members of 646,464 same-sex couples identified in the 2010
Census. The Census identified same-sex couples in all 50 states and in
93% of counties in the United States. In Ohio, according to the 2010
Census, there are nearly 39,400 adults in 19,684 same-sex couples, and
these couples were identified in all but three of Ohio's counties. The
racial and ethnic distributions of individuals in same-sex and different-
sex married couples are similar.
(B) Same-Sex Couples with Children: U.S. Census Bureau
data suggest that almost one-fifth of same-sex couples in the United
States and in Ohio are raising children under age 18. In other words,
nationally, more than 125,000 same-sex couple households collectively
include nearly 220,000 children in their homes. In Ohio, more than
3,760 same-sex-couple households in the state are raising nearly 6,800
children under age 18. Same-sex couples raising children live
throughout the United States and Ohio.
Most children being raised by same-sex parents in the United
States and in Ohio are biologically related to one of their parents.
Nationally, same-sex couples are more likely than their different-sex
married counterparts to be raising an adopted child or foster child. In
Ohio, while same-sex couples are more likely than different-sex married
couples to be raising an adopted child, same-sex couples are somewhat
less likely than different-sex married couples to be raising a foster child.
5
Parenting among same-sex couples is more prevalent among
couples who are female, younger, and racial and ethnic minorities.
Nationally, the median annual household income of same-sex couples
with children under 18 in the home is more than 16% lower than for
comparable different-sex couples. In Ohio, the median annual
household income of same-sex couples with children under age 18 in the
home is 31% lower than for comparable different-sex married couples.
(C) Same-Sex Couples in Marriages, Civil Unions, or
Registered Domestic Partnerships: As of 2010, approximately
114,300 same-sex couples were legally married in the United States,
and more than 108,000 same-sex couples were in civil unions or
registered domestic partnerships. When offered the choice, same-sex
couples are much more likely to marry than to pursue a civil union or a
registered domestic partnership. Female same-sex couples are more
likely to marry or to enter into a civil union or registered domestic
partnership than are male same-sex couples. In states with available
data, dissolution rates for same-sex couples are slightly lower on
average than divorce rates for different-sex married couples.
(D) LGBT Adults: More than 8 million adults in the United
States and 317,000 adults in Ohio identify as LGBT. An estimated 37%
of LGBT-identifying adults in the United States have had a child at
some point during their lifetimes.
6
II. Argument
A. Same-Sex Couples: Nearly 1.3 MillionAdultsinthe
U.S. and 39,400 AdultsinOhio Are Membersof Same-
Sex Couples
Since 1990, it has been possible to identify same-sex couples using
U.S. Census data by combining responses to Census questions
regarding sex and relationship to the householder.
7
In the 2010 Census,
646,464 same-sex couples identified as such, meaning that nearly 1.3
million Americans were members of a same-sex couple.
8
In the 2010
7
Same-sex couples are defined as such when a householder (Person 1
on the survey form) identifies another individual aged 16 or older as
being of the same sex and as his or her "husband/wife" or "unmarried
partner." Gary J. Gates, The Williams Institute, UCLA School of Law,
Same-sex Couples in US Census Bureau Data: Who Gets Counted and
Why, at 3 (Aug. 2010), http://williamsinstitute.law.ucla.edu/wp-
content/uploads/Gates-Who-Gets-Counted-Aug-2010.pdf (last visited
Apr. 30, 2014). A post-Census follow-up survey of same-sex couples
suggests that approximately one in seven same-sex couples who live in
the United States (14.4%) did not identify themselves in the 2010
Census. Id. Approximately 9.7% identified themselves as "roommates"
or "non-relatives"; for many, this was because they were concerned
about confidentiality, because they understood that the Census was a
federal survey and that the federal government did not recognize their
relationships and/or did not have a question about sexual orientation, or
because they understood their relationship in a way other than the
responses provided on the Census forms. Id. The remaining 4.7% were
couples in which neither partner was "Person 1" (the householder) on
the Census formfor example, if a same-sex couple lived in the home of
another person who was designated as householder. Id.
8
Gary J. Gates & Abigail M. Cooke, The Williams Institute, UCLA
School of Law, United States Census Snapshot: 2010 (2011),
http://williamsinstitute.law.ucla.edu/wp-
7
Census, 19,684 same-sex couples identified as such in Ohio, meaning
that nearly 39,400 Ohioans are members of a same-sex couple.
9
1. Same-Sex CouplesLive Throughout the U.S. and
Throughout Ohio
Same-sex couples live in all parts of the country. In the 2010
Census, same-sex couples were identified in all 50 states and in 93% of
counties in the United States.
10
In the 2010 Census, same-sex couples
were identified in all but three of Ohio's counties.
11
2. Same-Sex CouplesAre Diverse in Termsof Sex,
Age, Race, and Ethnicity
Analyses from the U.S. Census Bureau's American Community
Survey ("ACS") show that same-sex couples are often demographically
diverse.
12
The majority of same-sex couples are female (51%), and
content/uploads/Census2010Snapshot-US-v2.pdf (last visited Apr. 30,
2014).
9
Gary J. Gates & Abigail M. Cooke, The Williams Institute, UCLA
School of Law, Ohio Census Snapshot 2010 (2011), available at
http://williamsinstitute.law.ucla.edu/wp-content/uploads/
Census2010Snapshot_Ohio_v2.pdf (last visited Apr. 30, 2014).
10
Gates & Cooke, United States Census Snapshot: 2010, supra note 8,
at 1 & 5.
11
Gates & Cooke, Ohio Census Snapshot 2010, supra note 9, at 5.
12
Compare Gary J. Gates, The Williams Institute, UCLA School of
Law, Same-sex and Different-sex Couples in the American Community
Survey: 2005-2011 (Feb. 2013), http://williamsinstitute.law.ucla.edu/wp-
content/uploads/ACS-2013.pdf (last visited Apr. 30, 2014) (providing
demographic data on same-sex couples) with Gates & Newport, Special
8
members of same-sex couples span all age groups.
13
The average age of
individuals in same-sex couples in the United States is more than 6
years younger than that of individuals in different-sex married
couples44.4 and 50.8 years old, respectively.
14
This pattern is similar
in Ohio, where the average age of individuals in same-sex couples is
nine years younger than that of different-sex married couples43.0 and
52 years old, respectively.
15
Table 1 shows the percentages of adults in
same-sex couples by age group. In both the United States and Ohio, the
lowest percentage of same-sex couples is in the 65-and-over group.
Report: 3.4% of U.S. Adults Identify as LGBT, supra note 5 (providing
demographic data on LGBT individuals).
13
Gates, Same-sex and Different-sex Couples in the American
Community Survey: 2005-2011, supra note 12, at 2. The versions of this
brief filed in United States v. Windsor, No. 12-307 (U.S. Mar. 1, 2013),
and Sevcik v. Sandoval, No. 12-17668 (9th Cir. Oct. 25, 2013), reported
ACS data for different-sex couples, married and unmarried. Aside from
the LGBT parenting report cited at infra note 20, this brief reports ACS
data for only different-sex married couples and compares them to same-
sex couples, married and unmarried. This is a more precise comparison
in light of the issues presently before this Court.
14
Id.
15
Gary J. Gates, The Williams Institute, UCLA School of Law, Same-
sex Couples in Ohio: A Demographic Summary (2014), available at
http://williamsinstitute.law.ucla.edu/wp-content/uploads/OH-same-sex-
couples-demo-apr-2014.pdf (last visited Apr. 30, 2014).
9
Table 1. Adultsinsame-sex couples, by age
16
Percentage of Adults
inSame-Sex Couples
Age U.S. Ohio
<30 15% 20%
30-49 50% 49%
50-64 28% 25%
65+ 6% 6%
In the United States, the racial and ethnic distributions of
individuals in same-sex and different-sex married couples are similar.
In total, 24% of individuals in same-sex couples are members of racial
or ethnic minorities, compared to 26% of individuals in different-sex
married couples. The portion of African-Americans is the same in each
group (7%), while Latinos and Latinas comprise 11% of those in same-
sex couples and 12% of those in different-sex married couples. Asians,
Native Hawaiians, and Pacific Islanders comprise 3% of individuals in
same-sex couples and 5% of those in different-sex married couples.
17
16
Community Survey: 2005-2011, supra note 12, at 8; Gates, Same-sex
Couples in Ohio: A Demographic Summary, supra note 15.
17
Community Survey: 2005-2011, supra note 12, at 3-4. The racial and
ethnic identification terms used here (African-American, Latino/Latina,
and Asian, Native Hawaiian, and Pacific Islander) are consistent with
the terminology used in the report. Id.
10
Figure A. Race/ethnicity of adultsin same-sex couples
inthe U.S.
18
American
Indian/AK
Native
1%
Asian/
.Pacific
Islander
5%
Other
1%
In Ohio, more than one in ten individuals in same-sex couples are
members of racial or ethnic minorities. In total, 13% of individuals in
same-sex couples are members of racial or ethnic minorities compared
to 11% of individuals in different-sex married couples. Latinos and
Latinas comprise 2% of individuals in same-sex couples and different-
sex married couples. The portion of African-Americans is 8% among
those in same-sex couples and 6% among those in different-sex married
couples. Asians, Native Hawaiians, and Pacific Islanders comprise 0.3%
of individuals in same-sex couples and 2% of those in different-sex
married couples.
19
18
Id. at 8.
19
Gates, Same-sex Couples in Ohio: A Demographic Summary, supra
note 15.
11
B. Same-Sex CouplesWith Children: Approximately One
in Five Same-Sex Couplesin the U.S. and inOhio Are
Raising Children
U.S. Census Bureau data suggest that almost one in five same-sex
couples in the United States (19%) are raising children under age 18.
20
In other words, more than 125,000 same-sex couple households include
nearly 220,000 children under age 18 in their homes.
21
Nearly one in five same-sex couples in Ohio (19%) are raising
children under age 18 in their homes.
22
More than 3,760 same-sex-
couple households in the state include nearly 6,800 children.
23
In the United States, most children being raised by same-sex
couples are biologically related to one of their parents (59%). However,
same-sex couples are more likely to adopt or foster children than are
different-sex couples.
24
20
Gary J. Gates, The Williams Institute, UCLA School of Law, LGBT
Parenting in the United States, at 1 (Feb. 2013),
http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-
Parenting.pdf (last visited Apr. 30, 2014). Among different-sex couples
the proportion with children is 43.5%. Gates, Same-sex and Different-
sex Couples in the American Community Survey: 2005-2011, supra
note 12, at 5.
21
Gates, LGBT Parenting in the United States, supra note 20, at 1.
22
note 15.
23
Id.
24
Gates, LGBT Parenting in the United States, supra note 20, at 3,
Fig. 4.
12
Figure B. Relationshipof childrenunderage 18 to householder
(person1) in same-sex couple householdsin the U.S.
Foster
3,400 Orhfr
2% is,r>u
Adopted
22,500 '
10%
Step
16,400
Among the 125,000 same-sex couples raising children in the
United States, more than 111,000 same-sex couples are raising an
estimated 129,200 biological children, 16,400 stepchildren, and 22,500
adopted children.
25
Approximately 2,600 same-sex couples are raising
3,400 foster children.
26
Finally, more than a quarter of same-sex couples
raising children (25.6%) are raising children identified as
grandchildren, siblings, or other children.
27
Roughly 32,000 same-sex
couples are raising approximately 48,500 such children.
28
25
Id.
26
Id.
27
Id. at 3.
28
Id. Note that a same-sex couple household can include more than one
of the different types of children discussed here (e.g., biological, step,
adopted, foster, grandchildren), so the number of couples raising each
13
In Ohio, 53% of children being raised by same-sex couples are
biological children, 6% are stepchildren, and 13% are adopted. This
implies that the same-sex couples are raising an estimated 3,600
biological children, 400 stepchildren, and 900 adopted children. 28% of
children being raised by same-sex couples in Ohio, or 1,900 children, are
grandchildren, other relatives, or other children.
29
1. Same-Sex Coupleswith ChildrenLive
Throughout the U.S. and Ohio
Same-sex couples raising children live throughout the United
States. Childrearing among same-sex couples in the United States is
most common in the South, Upper Midwest, and Mountain regions of
the country.
30
Same-sex couples raising children also live throughout
Ohio. In the 2010 Census, the vast majority of Ohio's counties included
a same-sex couple with children.
31
2. Membersof Same-Sex Coupleswith ChildrenAre
Diverse in Termsof Race, Ethnicity, and Income
In the United States, parenting by same-sex couples is more
prevalent among racial and ethnic minorities. 41% of women who are
particular type of children will not add up to the total number of same-
sex couples raising children.
29
note 15.
30
Id.
31
Gates & Cooke, Ohio Census Snapshot: 2010, supra note 9, at 4-5.
14
members of racial or ethnic minorities and are in same-sex couples are
raising a biological, step, or adopted child, compared to 23% of their
White counterparts.
32
For men, the same comparison is 20% versus 8%,
respectively.
33
In Ohio, 29% of individuals in same-sex couples who are members
of racial or ethnic minorities are raising a child under age 18, compared
to 18% of their White counterparts.
34
Nationally, the median annual household income of same-sex
couples with children under age 18 in the home is more than 16% lower
than the median annual household income of comparable different-sex
couples ($63,900 versus $74,000).
35
In Ohio, the median annual
household income of same-sex couples with children under age 18 in the
home is 31% lower than the median annual household income of
comparable different-sex married couples ($53,339 versus $77,786).
36
Several factors likely contribute to the relative economic
disadvantage of same-sex couples with children. First, research
32
33
Id.
34
note 15.
35
36
note 15.
15
suggests that LGB parents (including, presumably, LGB individuals in
same-sex couples) are, on average, younger than their different-sex
counterparts.
37
Second, same-sex couples with children are
disproportionately female, and in the United States, women, on
average, have lower incomes than men.
38
Third, same-sex couples
raising children are disproportionately members of racial and ethnic
minorities. African-Americans and Latinos or Latinas comprise 33% of
those in same-sex couples with children under age 18 in the home
compared to 27% of their counterparts in different-sex couples.
39
In the
United States, African-Americans, Latinos, and Latinas have lower
incomes, on average, than White persons.
40
3. Same-Sex CouplesAre More Likely Than
Different-Sex Couplesto Be Raising Adopted
Childrenand FosterChildren
Nationally, same-sex couples raising children are more than four
times as likely as their different-sex counterparts to be raising an
adopted child.
41
While only 2% of the children of different-sex couples
37
38
Id.; Women in the Labor Force: A Databook, U.S. BUREAU OF LABOR
STATISTICS 51-52 (Dec. 2011), http://www.bls.gov/cps/wlf-databook-
2011.pdf (last visited Apr. 30, 2014).
39
Gates, LGBT Parenting in the United States, supra note 20, at 4,
Fig. 5.
40
Women in the Labor Force, supra note 38, at 51.
41
16
are adopted, approximately 10% of the children of same-sex couples are
adopted.
Similarly, same-sex couples raising children in Ohio are more
likely than their different-sex married counterparts to be raising an
adopted child. Approximately 13% of the children of same-sex couples in
Ohio are adopted, compared to 2% of the children of different-sex
married couples. 15% of same-sex couples with children have an
adopted child, compared to 3% of different-sex married couples.
42
In the United States, same-sex couples are six times as likely as
their different-sex counterparts to be raising foster children.
43
Among
couples with children under age 18, 2% of same-sex couples are raising
a foster child, compared to just 0.3% of different-sex couples.
44
In Ohio,
same-sex couples are somewhat less likely to foster children than
different-sex married couples: 0.1% of the children of same-sex couples
in Ohio are fostered, compared to 0.2% of the children of different-sex
married couples.
45
42
note 15.
43
44
Id.
45
note 15.
17
C. Same-Sex CouplesinMarriages, Civil Unions, or
Registered DomesticPartnerships: Asof 2010,
Approximately 114,300 Same-Sex Couplesinthe U.S.
Were Legally Married, and Over108,000 Were inCivil
UnionsorRegistered DomesticPartnerships
Of the 646,464 same-sex couples who identified as such in Census
2010, nearly 132,000 couples identified as spouses, while nearly 515,000
identified as unmarried partners.
46
For all couples, both different-sex and same-sex, Census data are
based on how individuals describe their relationship, which is not
always consistent with their legal relationship status. Accordingly,
same-sex couples who are legally married, as well as those who are not
legally married but identified themselves as spouses, can identify one
partner as a "husband or wife."
47
Based on a 2010 survey of same-sex
couples funded by the Census Bureau, an estimated 71% of same-sex
couples who identified a partner as "husband" or "wife" in Census 2010
were legally married, 15% were in civil unions or registered domestic
partnerships, and 14% were not in a legally recognized relationship
48
For those who identified as "unmarried partner," 79% were not in a
46
Gates & Cooke, United States Census Snapshot: 2010, supra note 8,
at 1.
47
Id. at 4.
48
Gates, Same-sex Couples in US Census Bureau Data: Who Gets
Counted and Why, supra note 7, at i-ii.
18
legally recognized relationship, 17% were in civil unions or registered
domestic partnerships, and only 4% were legally married.
49
Combining these estimates with Census 2010 data suggests that
approximately 114,300 same-sex couples in the United States were
legally married in 2010, having legally married either in the United
States or in another country, and over 108,600 were in civil unions or
registered domestic partnerships.
50
1. WhenPermitted By Law, Same-Sex CouplesAre
More Likely to Marry Thanto Enterinto aCivil
UnionoraDomesticPartnership
Analyses of state-level administrative data provide additional
information about approximately 50,000 same-sex couples who had
legally married in the United States as of 2010 and a similar number
49
Id. at 6. Put differently, 22% of legally married same-sex couples
decided to identify as unmarried partners in Census 2010. Id. at 5.
When asked why they made this choice, most said this was primarily
because they thought it was the "correct" answer, since either their
state or the federal government did not formally recognize their
marriage. Id.
50
Gates & Cooke report 131,729 same-sex couples who identified as
spouses and 514,735 who identified as unmarried partners. Gates &
Cooke, United States Census Snapshot: 2010, supra note 8, at 1. Gates
suggests that 71% of spousal couples are legally married (amounting to
approximately 93,700 legally married same-sex couples) along with 4%
of unmarried partner couples (approximately 20,600 married couples).
See Gates, Same-sex Couples in US Census Bureau Data: Who Gets
Counted and Why, supra note 7, at 6. Combined, this implies an
estimated 114,300 legally married same-sex couples.
19
who had entered into other forms of legal recognition such as civil
unions or registered domestic partnerships by that date.
51
These administrative data show that when offered the choice,
same-sex couples are much more likely to marry than to pursue a civil
union or a registered domestic partnership. On average, 30% of same-
sex couples married in the first year that their state allowed them to
marry,
52
while only 18% entered into civil unions or broad domestic
partnerships in the first year states offered those statuses.
53
Furthermore, only 8% entered into legal relationship statuses with
more limited rights and obligations,
54
such as reciprocal beneficiary
51
M. V. Lee Badgett & Jody L. Herman, The Williams Institute, UCLA
School of Law, Patterns of Relationship Recognition by Same-Sex
Couples in the United States (Nov. 2011),
http://williamsinstitute.law.ucla.edu/wp-content/uploads/Badgett-
Herman-Marriage-Dissolution-Nov-2011.pdf (last visited Apr. 30, 2014).
52
Id. at 12-13 (analyzing data from the following three states that had
extended marriage to same-sex couples: Iowa, Massachusetts, and
Vermont).
53
Id. (analyzing data from the following six states that had extended
civil union or domestic partnership statuses to same-sex couples
offering all or almost all of the rights and obligations to marriage to
same-sex couples: Connecticut, Nevada, New Hampshire, New Jersey,
Oregon, and Vermont).
54
Id. at 12.
20
relationships, in the first year that their respective states offered those
statuses.
55
Figure C. Percentage of same-sex coupleswho pursued legal
relationshiprecognitioninthe first yearit was
offered, by type of recognition
56
30%
Marriage CivilUnionsand Limited Statuses
Broad DPs
Looking past the first year that recognition was offered, almost
half of same-sex couples (47%) who live in a state that offers some form
of legal relationship recognition have entered into such a status.
57
In
55
Id. at 11-12 (analyzing data from the following five states and the
District of Columbia that had extended a more limited set of rights to
same-sex couples through limited domestic partnerships or reciprocal or
designated beneficiary statuses: California, Hawaii, Maine, New Jersey,
and Washington).
56
Id.
57
Id. at 6.
21
Massachusetts, where marriage for same-sex couples has been legal
since 2004, this is true of 68% of same-sex couples.
58
Female same-sex couples are more likely to marry or to formalize
their relationships by entering into another legal status such as a civil
union or registered domestic partnership than are male same-sex
couples. In eight states that release marriage, civil union, or registered
domestic partnership data by gender, 62% of same-sex couples who
sought legal recognition were female couples.
59
Same-sex couples who are legally married or have another legally
recognized relationship are younger than the general population of
married different-sex couples in states where same-sex couples can
marry or enter into other legally recognized relationships.
60
However,
comparing the ages of same-sex and different-sex couples at the time of
marriage, newly married same-sex couples tend to be older than newly
married different-sex couples.
61
This is most likely due to the fact that
when states first offer marriage to same-sex couples, many couples have
been waiting years or decades to marry.
58
Id. at 19.
59
Id. at 7-8 (analyzing data from the following seven states and the
District of Columbia: Connecticut, Iowa, Maine, New Hampshire, New
Jersey, Oregon, and Washington).
60
Id. at 8 (analyzing data from Connecticut and Washington).
61
Id. at 9 (analyzing data from Connecticut).
22
2. DissolutionRatesAre Slightly LowerforSame-
Sex CouplesThanforDifferent-Sex Couples
In states with available data, dissolution rates for same-sex
couples are slightly lower on average than divorce rates for different-sex
couples.
62
The percentage of those in same-sex couples who have ended
legal relationships ranges from 0% to 1.8% annually in those states. By
comparison, 2% of married different-sex couples divorce annually.
63
D. LGBT Adults: Over8 MillionAmericanAdultsand
317,000 Adultsin Ohio Identify asLGBT
Marriage and relationship recognition laws affect not only same-
sex couples, but also LGBT individuals who are not members of same-
sex couples. Many such LGBT individuals may want to marry a same-
sex partner at some time in their lives. In a recent Gallup survey of
adults aged 18 and older in the United States, 3.5% identified
themselves as LGBT.
64
Extrapolating that percentage to 2010 U.S.
62
Id. at 18-19 (analyzing data from the following ten states and the
District of Columbia: California, Colorado, Connecticut, Hawaii, Maine,
Nevada, New Hampshire, New Jersey, Vermont, and Washington).
63
Id. at 19.
64
Gates & Newport, LGBT Percentage Highest in D.C., Lowest in North
Dakota, supra note 5 (noting that "[t]hese results are based on
responses to the question, 'Do you, personally, identify as lesbian, gay,
bisexual, or transgender?' included in 206,186 Gallup Daily tracking
interviews conducted between June 1 and Dec. 30, 2012"). The Gallup
data did not allow for separate estimates or analyses of the lesbian, gay,
and bisexual population from the transgender population. Id. Based on
analysis of multiple studies estimating the LGBT population in the
United States, Gates suggests that approximately 0.3% of adults in the
23
Census data suggests that, out of nearly 235 million adults then in the
United States,
65
more than 8 million adults were LGBT.
The Gallup survey also showed that 3.6% of adults in Ohio
identified as LGBT.
66
Extrapolating that percentage to Ohio data from
the 2010 U.S. Census suggests that, out of the 8.8 million adults then in
Ohio,
67
more than 317,000 self-identified as LGBT. The actual number
of LGBT adults is likely higher because evidence suggests that many
adults who have a same-sex sexual orientation are reluctant to self-
identify as LGBT, perhaps due in part to social stigma associated with
LGBT identity.
68
United States identify as transgender and 3.5% as lesbian, gay, or
bisexual. Gary J. Gates, The Williams Institute, UCLA School of Law,
How Many People Are Lesbian, Gay, Bisexual, and Transgender?, at 1
(Apr. 2011), http://williamsinstitute.law.ucla.edu/wp-content/uploads/
Gates-How-Many-People-LGBT-Apr-2011.pdf (last visited Apr. 30,
2014).
65
Lindsay M. Howden & Julie A. Meyer, U.S. CENSUS BUREAU, Age and
Sex Composition: 2010 Census Briefs 2 (May 2011), available at
http://www.census.gov/prod/cen2010/briefs/c2010br-03.pdf (last visited
Apr. 30, 2014).
66
Gates and Newport, LGBT Percentage Highest in B.C., Lowest in
North Dakota, supra note 5.
67
Howden and Meyer, Age and Sex Composition: 2010 Census Briefs,
supra note 65, at 7.
68
Analyses of the 2008 General Social Survey suggest that about 1% of
adults in the United States (approximately 2.3 million) reported having
a same-sex sexual partner within the last year, but do not identify as
lesbian, gay or bisexual. About 1.3% of adults in the United States
24
Case: 14-3057 . Document: 71 Filed: 05/01/2014 Page: 30
An estimated 37% of LGBT adults in the United States have had
at least one child over the course of their lives
69
(including children who
have now reached adulthood). This implies that more than 3 million
LGBT Americans have had at least one child at some point during their
lifetimes.
70
On average, LGBT individuals who have had children report
having 2 children, implying that there may be as many as 6 million
American children and adults who have an LGBT parent.
71
(more than 3 million) report having a same-sex sexual partner within
the last five years, but do not identify as lesbian, gay, or bisexual. Gary
J. Gates, LGBT Identity: A Demographer's Perspective, 45 Loy. L.A.
L. Rev. 693, 704 (2012), available at http://digitalcommons.lmu.edii/
llr/vol45/iss3/2 (last visited Apr. 30, 2014).
69
The exact nature of parentage is not available, as this figure is based
on data from two different surveys and neither has great specificity
about the nature of parentage. The General Social Survey (GSS) asked
respondents, "How many children have you ever had?" while the
National Transgender Discrimination Survey asked a variety of
questions that indicated whether a respondent ever had children or
parented any children. Gates, LGBT Parenting in the United States,
supra note 20, at 2 n.l. For more information on the GSS, see supra
note 4 and accompanying text. The National Transgender
Discrimination Survey was conducted by the National Gay and Lesbian
Task Force and the National Center for Transgender Equality and was
a web-based survey of more than 6,000 transgender individuals in the
United States. Jaime M. Grant et al., Injustice at Every Turn: A Report
of the National Transgender Discrimination Survey 12 (2011), available
at http://www.thetaskforce.org/reports_and_research/ntds (last visited
Apr. 30, 2014).
70
State-specific demographic data is not available on this point.
7
1 Id.
25
III. Conclusion
In light of the foregoing and for the reasons set forth by the
parties challenging the constitutionality of Ohio laws preventing
recognition of same-sex marriages, this Court should affirm the district
court judgment in this case.
Dated: May 1, 2014 Respectfully submitted,
Manatt, Phelps & Phillips, LLP
s /Benjamin G. Shatz
Counsel for Amicus Curiae
Gary J. Gates
26
CERTIFICATEOF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App.
P. 32(a)(7)(B) because this brief contains 5,314 words, excluding parts of
the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App.
P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a 14-point proportionally spaced
Century Schoolbook typeface using Microsoft Word 2010.
Dated: May 1, 2014 s /Benjamin G. Shatz
Counsel for Amicus Curiae
Gary J. Gates
CERTIFICATE OF SERVICE
U.S. Court of Appeals Docket No. 14-3057
BRIEF OF AMICUS CURIAE
GARY J. GATES IN SUPPORT OF
PLAINTIFFS-APPELLEES AND AFFIRMANCE
I hereby certify that on May 1, 2014,1 electronically filed the foregoing
document with the Clerk of the Court for the United States Court of Appeals for
the Sixth Circuit by using the appellate CM/ECF system. I certify that all
participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
s/Bess Hubbard
27
ShatZjJSenjamm
From:
Sent:
To:
Subject:
[email protected]
Thursday, May 01, 2014 11:55 AM
Shatz, Benjamin
14-3057 J ames Obergefell, et al v. Lance D. Himes, et al "amicus curiae brief"
***]VOTETO PUBLICACCESS USERS*** JudicialConference of the United Statespolicy permits
attorneysof record and partiesinacase (including pro se litigants) to receive one free electroniccopy of
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apply to allotherusers. To avoid latercharges, download acopy of each document during thisfirst
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Notice of Docket Activity
The following transaction was filed on 05/01/2014
Case Name: James Obergefell, et al v. Lance D. Himes, et al
Case Number: 14-3057
Document(s): Document(s)
Docket Text:
AMICUS BRIEF filed by Mr. Benjamin G. Shatz for Howard University School of Law Civil Rights Clinic and
Gary J. Gates. Certificate of Service:05/01/2014. (BGS)
Notice willbe electronically mailed to:
Mr. Byron Jeffords Babione: [email protected].
[email protected]. [email protected],
[email protected], [email protected]
Mr. Alphonse A. Gerhardstein: [email protected], [email protected], [email protected],
[email protected]
Ms. Jennifer L. Branch: [email protected], [email protected]
Ms. Lisa Talmadge Meeks: [email protected]
Ms. Marcia D. Greenberger: mgreenberger@,nwlc.org
Mr. Paul R.Q. Wolfson: [email protected]
Mr. Lawrence J. Joseph: [email protected]
Mr. Benjamin G. Shatz: [email protected]
Mr. Paul March Smith: [email protected]
Mr. James D. Esseks: [email protected], [email protected]
Ms. Felicia H. Ellsworth: [email protected]
Mr. Gregory R. Nevins: [email protected]
Ms. Dina Bernick Mishra: dina.mishra@,wilmerhale.com
Ms. Bridget Carty Cooritz, Assistant Attorney General: [email protected].
United StatesCourt of Appealsforthe Sixth Circuit
i
[email protected]
Mr. Zachery P. Keller: [email protected]. [email protected]
Mr. Alan Evan Schoenfeld: [email protected]
Ms. Camilla B. Taylor: [email protected]. [email protected], [email protected]
Ms. Ryan Lynn Richardson: [email protected],
[email protected] general, gov
Ms. Roberta A. Kaplan: [email protected], mao [email protected]
Mr. Jacob Harris Hupart: [email protected]
Ms. Jacklyn Gonzales Martin: [email protected]
Mr. Drew Sebastian Dennis: [email protected]
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Mr. Carmine D. Boccuzzi, Jr.: [email protected], [email protected]
Mr. Chase Strangio: [email protected]. [email protected]
Mr. Mark C. Fleming: [email protected]
Mr. Joshua David Kaye: [email protected]
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Notice willbe stored inthe notice cart for:
Cheryl Borkowski, Case Manager
The following document(s) are associated with this transaction:
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