Perry et al v. Schwarzenegger et al

Filing 302

Memorandum in Opposition re #285 MOTION in Limine TO EXCLUDE THE EXPERT REPORTS, OPINIONS, AND TESTIMONY OF KATHERINE YOUNG, LOREN MARKS AND DAVID BLANKENHORN filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, ProtectMarriage.com - Yes on 8, A Project of California Renewal, Hak-Shing William Tam. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D)(Cooper, Charles) (Filed on 12/11/2009)

Perry et al v. Schwarzenegger et al

Doc. 302 Att. 2

Case3:09-cv-02292-VRW Document302-3

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Exhibit C

Dockets.Justia.com

Case3:09-cv-02292-VRW Document302-3
Loren Dean Marks

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, et al., )

Plaintiffs, ) ) No. 09-CV-2292 VRW ) ) ) ) Defendants. )

ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California, et al.,

Washington, D.C. Friday, October 30, 2009 Deposition of LOREN DEAN MARKS, called for examination by counsel for Plaintiffs in the above-entitled matter, the witness being duly sworn by CHERYL A. LORD, a Notary Public in and for the District of Columbia, taken at the offices of COOPER & KIRK PLLC, 1523 New Hampshire Avenue N.W., Washington, D.C., at 9:31 a.m., and the proceedings being taken down by Stenotype by CHERYL A. LORD, RPR, CRR.

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Loren Dean Marks

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terminal -- not just your terminal degree, but where you receive your degrees. Nothing more complex than that. Q. I note that your major at -- your undergraduate major at Brigham Young was family sciences, and your major in your master's program was family sciences and human development. What does the study of family sciences entail? A. There -- there are a number different aims. The primary aim is to -- to do our best to -to understand -- and -- and these are my terms -- to figure out why some families struggle and why some families succeed. In -- in laymen's terms, that's the way that I'd put it. Q. What would you define as -- or how would the field of family sciences define success as a family? A. There are 2 different units of analysis that are typically looked at. One would be individuals, and if individuals are flourishing, doing well

difference. Q. What fields of research do family science or family studies draw upon? A. Psychology, sociology, and of course family studies as well. You know, like -- like any discipline, we borrow a little bit here and there from others, history, demography, et cetera, but primarily psychology and sociology. Q. Turning now -- oh, before I leave education, can -- how many years were you at Brigham Young as an undergraduate? A. I began at Brigham Young in January of 1994, I believe, 1994, and finished up there in 1997. I applied, admitted -- and was admitted to the M.S. program, which you see here. And that took me just about exactly 2 calendar years, so January 1994 through early July of 1999. Q. So 2 years as a graduate student and 3 and a half years or thereabouts as an undergraduate student? A. Yeah, about 3 and a half. Q. Turning now to the employment section.

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developmentally. Also, we look at the marital level. I might say 3 levels instead of 2. The individual level, you know, is the individual doing well. Number 2, is the marriage doing well, has it ended in divorce, are they still married, are they reporting that they're satisfied that they're happy. And at the family level are the relationships strong, encouraging, nurturing. There -- there are many, many, many different ways that each of those are measured in different studies by different individuals, but that's -- that's the bottom line. Q. Your major at the University of Delaware was family studies? A. M-hm. Q. Is that different in any way from family sciences? A. Not significantly. I think it's a terminology difference. Sometimes it's called family studies, sometimes family science, sometimes family sciences. But there's -- there's not a significant

A. M-hm. Q. In what position are you currently employed? A. I'm the Kathyrn Norwood and Claude Fussel alumni professor in the college of agriculture, specifically within the school of human ecology in the division of family, child, and consumer sciences. I know that's a mouthful, but -Q. Is the Kathryn Norwood and Claude Fussel alumni professorship -- is that reserved for people in a particular field or from a particular background? A. You know, that's a good question, Matt, and I don't know if it is or not. I just -- I actually haven't even met the donors yet. I just received it a month ago plus or minus or so. But it's -- I will tell you that it's a teaching -- a teaching-based professorship at the research -- research excellence was also factored in, but that was the merit basis, teaching and -- and research. Q. Unfortunately, you won't meet Mrs. Norwood

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One of the -- let's see, it's been a little while since I taught 7051, but typically in that course, which I taught a couple of times I think, I required 9 texts, 9 texts or books, several journal articles that were largely up to the discretion of the students. They got to pick those. One of the books that was required reading was Judith Stacey's In the Name of the Family, which addresses same-sex -- I don't know how much depth it goes into in terms of parenting, but it does address same-sex issues at some length. We also read chapters from different handbooks that addressed same-sex issues in 7051. Q. Do you recall the names, titles of any of those handbooks? A. Charlotte Patterson's Journal of Marriage and Family Review in 2000. I think it's the November -- not that that's important, but November 2000 Journal of Marriage and Family. She has a review in that issue that we -- that we read. I taught the class twice, once before and once after the 2004 handbook that I mentioned earlier

Q. When you addressed it last week, what -what texts did you use? A. When it was addressed last week, I had a student give a presentation based on her review of literature to the class. Q. Do you recall what literature she reviewed? A. She -- she used the Patterson review that I mentioned earlier. She -- she also referenced -which did she use? -- Patterson actually has a number of -- a number of studies in this area as you're probably aware. I believe the Wain- -- some of the Wainright literature may have been used and also some of the Golombok studies from England. The presentation was a few minutes, not comprehensive, but a research paper that she selected. Q. Would you say that you yourself are familiar with the research of Patterson, Golombok, Wainright? A. Yes. Q. In your -- in the course of your teaching

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came out. I can't -- I can't remember who authored the same-sex chapter or chapters in that book, but that was a book that we would refer to pretty regularly. There may well be others that -- '03, '05, taught several classes since then, I'm a little -I'm a little fuzzy, but certainly those I'd stand by. Q. Have you taught in any of your classes since 2005 any issues relating to either marriage or parenting as among lesbians or -- and gay men? A. Since 2005? And you're talking about undergraduate and graduate classes? Q. That's correct. A. It comes up and is addressed at some level in just about every -- every class that I teach. I'm trying to think if there's -- the easier answer would be, are there any classes where -- where I do not address it at some level. 2065 is a course -- although it says here, 2008, I'm currently teaching that. We addressed it in that course just last week.

emerging lifestyles in 2002 at the University of Delaware, did you in the context of that class address parenting and marriage in the lesbian and gay context? A. We did. Q. Did you reference the same texts as you use now? A. Many of -- many of the ones that we use now were unavailable then. And I was -- I was less familiar with the literature then as well. As -- as a result, I did bring in -- we had a guest expert lecturer come in to help fill in that gap, since I had a working knowledge of the literature, at that point, but thought it was important to have -- have an expert come in. Q. Who was the guest expert? A. Tara Woolfolk. When I say, guest expert, she knew a lot more than me, you know, at that point in time about the literature, not nationally renowned. Q. Since emerging lifestyles in 2002, what new texts have you added to your teachings of these

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primarily considered in connection with preparing the report? MR. THOMPSON: Objection, mischaracterizes the testimony, and objection, asked and answered. A. These -- these materials that are listed here were considered in formulation of my expert report. But again, they're -- they're in no way exclusive. BY MR. McGILL: Q. How did you distinguish between the references to list and the references not to list? A. That's a good question. And in the case -- in the case of this expert report, some of my judgments were based on not just what studies were available to me, but I wanted to focus on the highest-quality studies available. And I believe that most of the studies, most of the work that you'll find cited here is -- is of high quality, Nobel laureates. Akerlof as an economist, several pieces by Paul Amato, and others, who are premier. So among the available sources, I tried to select from -- from

I took a close look at again. There certainly was a quality factor. Q. And the sources that are not listed here presumably are of lesser quality? A. Well, there are some that are -- I'm sure there are some very high-quality studies generally that aren't on here, but, yes, of the ones that I've considered, these are -- these are high-quality studies for the most part. Q. What are your primary areas of research interest? A. My primary research interests are faith and families and African American families. I spend quite a bit of time in both of those. I do dabble in, you know, some other areas, but those are focal. Q. How does your research on faith and families and strong African American families relate to your opinions and your report in this case? MR. THOMPSON: Objection, vague. Go ahead. A. With -- with maybe one, 2 contextualizing

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exceptions, I don't believe I cite my own work directly in this -- this expert report. So in terms of my direct impact, minimal to -- to moderate, although I -- although those are 2 focal areas of my -- there -- there are probably a hundred different subdisciplines within family studies that I'm responsible for in some -- some level as a teacher that I cover, that I read, so -BY MR. McGILL: Q. Is parenting by gay men and lesbians among the hundreds of subdisciplines that you're responsible for? A. Yes. Q. You're a peer reviewer on several journals. Correct? A. I am. Q. And what do you do as a peer reviewer? A. As a peer reviewer, the editor of a journal will send -- will send you a study, usually a study that is within your interest area, you know, your specialty area. And they will ask -- ask you to

the best.

1 2 3 hour. We'd like to take a break. 4 MR. McGILL: As you wish. 5 MR. THOMPSON: Okay. 6 THE VIDEOGRAPHER: This ends videotape 7 number 1. The time is now 10:27 AM. 8 (Recess.) THE VIDEOGRAPHER: We're now back on the 9 10 record. 11 This is the beginning of videotape number 12 2. The time is now 10:40 AM. You may proceed. 13 BY MR. McGILL: 14 Q. So when we left off, Professor Marks, 15 the -- just to close the loop on where we were, you 16 said, do I understand you correctly to say that you 17 distinguished between the materials that you chose to 18 list on your index of materials considered and those 19 you chose not to list by listing only those materials 20 of the highest quality on your index? 21 A. The sources that I list I believe are of 22 high quality, but -- and indicate ones in most cases
MR. THOMPSON: We've been going about an

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carefully read, respond to issues that -- that are raised. In my instance, I have a methods specialty as well, and sometimes I'm asked to give some -- some input on the research method that's used. Q. Why is peer reviewing important? A. Peer reviewing is an effort to maintain minimal standards in the field. Q. Does work that is peer-reviewed presumably meet minimal standards in the field? A. It depends on the journal. There -- there are a variety -- variety of journals. There's also a great degree of subjectivity that comes into play in terms of -- in terms of reviewers as most within the field will tell you. Social scientists are not immune from cultural or biases -- cultural opinions, et cetera. Q. Now, you mentioned before -- I just want to circle back to your statement that you have a specialty in methodology. Could you elaborate on that?

that's rarely hit. You have your biases. I do. Anybody who is reviewing carries those with them as well. They should try to check them, but whether they do or not, I don't know for sure. Q. What are your biases? A. That's a -- that's a good question. Can you -- can you be a little bit more specific in terms of a given area? Biases can be broad certainly. Q. You said to me that some researchers have their biases and you have yours. And I'm just really asking you to elaborate on that statement. A. One of -- one of my biases is that research should be very, very thoroughly documented, referenced, even meticulously so, including reports. I think that many within my field would say that having an appreciation of qualitative methods can be a bias as well. Q. Any others that you can think of? A. I think that -- that a bias I have relative to many in my field is an optimism.

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A. My focus in terms of methods is qualitative, and there are 2 broad types of methods that are used, qualitative and quantitative. Quantitative tends to deal with statistics, qualitative with nonnumerical data. Any-- anyone in my field -- just about anyone deals with both. Q. And your work with strong African American families exemplifies that qualitative method of research? A. It does. Q. And with respect to your work as a peer review, you mentioned that authors of social science are not immune from -- from bias. What do peer reviewers do to ferret out bias? A. That's a good question, Mr. McGill. I don't have an empirical response to that question. I think it's -- it's cause for speculation on my part. My professional opinion would be that you don't, that there's a scientific objective, you know, an ideal of objectivity, but it's a target

What I mean by that with specific reference to my discipline is, I -- I prefer to look at strengths over weaknesses or pathologies as -- as a general rule. Q. Do you have -- have you published or do you have in press any writings other than those listed on your CV? A. I don't believe so, Mr. McGill. As I said earlier, and this is -- this is fairly recent. With the exception that we addressed earlier, this should be accurate. Q. Are there any publications on that list that you no longer believe represent high-quality social science? A. On -- on the list that I -Q. Of your own publications. A. Oh, of my own. Q. Correct. A. I -- I am, what, in my eighth year as a professor. One of my biases is that we should aim for the gold standard. While I've had research that's

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A. In the areas of faith and families and specifically strong African American families, yes, yes, I would. Q. Are you an expert in child adjustment? MR. THOMPSON: Objection, vague. A. Child adjustment is one of -- again one of the many, many areas that I'm responsible for knowing something about. Is it one of my focal interest areas? No, it is not. BY MR. McGILL: Q. But you still consider yourself to be an expert in child adjustment? A. By the standards of my field, I don't study the specific concept of child adjustment. I do study child outcomes at some length, and family outcomes. Q. And you would not have contended in -earlier than your date of being a tenured professor that you were an expert in any field, would you? MR. THOMPSON: Objection, mischaracterizes the testimony.

asked -- which was asked previously. Quantitative methods like -- meet precise concepts like specific child outcomes. You mentioned I believe earlier child adjustment. Qualitative research tends to be a little bit more holistic. Most of the research I've done that would deal with relationships between adults and -- and children would focus more on the process and the interaction that takes place as opposed to specific outcomes. Most of my field would view that as a difference in methodology and focus. Q. So you study parenting processes more than parenting structures? A. I've studied both. Q. Do you have an opinion on what causes better child outcomes as between processes and structure? MR. THOMPSON: Objection, vague. A. That, then, is a central question in the social sciences. Again, as you're probably aware, I would

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A. In -- in the content areas that I mentioned, by the field standard, I think tenure as I mentioned earlier is as good of a bar as any. BY MR. McGILL: Q. Prior to your engagement as an expert in this case, had you ever undertaken research on the effective family structure on child outcomes? A. Yes. Q. When? A. I am -- at the outset, I was a fathering scholar. My research interests transformed a little bit over time from fathering to family. Much of the fathering literature links fathers to children's outcomes, so from the very -the very inception of -- my inception into the research world of family studies, it was child outcome-related, father-child outcomes. Q. Have you published any original research concerning the effect of family structure on childhood outcomes? A. If I can go back to the qualitative, quantitative question for just a moment, which was

based on my reading of the empirical literature say that both play an important role. Many -- many within the social sciences are -- tend to be from the more traditional set -- argue very hard for structure. Some argue for processes. I think both are very, very important, and it's difficult to -- to disentangle the 2. The exception that I would draw would be 2-parent married biological family. That -- that structure empirically stands out as unique in the empirical work that I've read. BY MR. McGILL: Q. And in the empirical work that you have read, is it that the -- that family structure correlates to good child outcomes, or is it that itself causes good child outcomes? MR. THOMPSON: Objection, vague. A. The research is almost always in any -any area of social science correlational and not causational, and that's true across subdiscipline and topic. There -- to rephrase it, there are many, many significant unanswered questions in social sciences

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cause of good adjustment outcomes? A. I know of no empirical research in the social sciences that to the satisfaction of the field has been able to say, this is causal rather than correlational. That is true for biology and many other factors. Social science generally does not -- does not have the rigor and the strength to make causal statements. Q. Are you saying that social science could not even say that parenting skills, high parenting skills cause good child outcomes? MR. THOMPSON: Objection, vague. A. There -- there are 3 -- there are 3 necessary components to -- to make a causal statement that are -- that are usually associated in the social sciences -- or in I should say science. One is that the cause -- and we'll use parenting skills. Cause has to precede the effect. That's kind of the low-hanging fruit and obvious. Another is that you have to establish some kind of a link between the 2, which we often refer to

correlation. Cause and effect is tough. BY MR. McGILL: Q. Are you aware of any study that has compared biological married parents -- and I'm using biological as you have defined it here. A. Intact. Go ahead. Q. And that, just so we're clear: And that is as -- that is how you say the researchers you rely upon define the term? A. Yes. Q. So is there any study of which you're aware that compares biological parents to -- who are married and have similar money, contact, warmth, education with adopted children who have -- with married parents similar money, contact, warmth, education? A. I follow you. The adoption literature is nascent. It's -- it's very, very new from a social science perspective. The most recent study that I've read that

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as correlation. A third is that you have to rule out all other alternative explanations. That would be called from a scientific vantage a purely experimental design, and we cannot execute that in the social sciences because of ethical considerations. You can't raise a kid in a lab, and so even though we can correlate parenting skills perhaps with better outcomes, we can never -- "never" is a strong word, but it's one that I use cautiously. It's very difficult to make any causal statement about child outcomes, which is the topic of my expert report because of that third one. 1 and 2, we can get in place. Third, we cannot, not for biology, not -- not for -BY MR. McGILL: Q. Have -MR. THOMPSON: Let him finish. Not for biology what? A. And not for most other variables that I mentioned. You can look at them, study them, and get

looks at adoption issues and, you know, the study -a study would fit the bill that you just described, a study by Wilcox and Wilson says that that -- that that field is embryonic. That's their word, not mine. It's brand-new. Coming back to directly respond to your question, a handful at best I would say -- that I'm aware of, including one by Lansford and colleagues, 2001 Journal of Marriage and Family, maybe a couple of others. That's -- that's a tough -- it's a tough study to pull off, especially meeting the standards that I discussed earlier. Q. Do you think parenting processes are important? A. I do. I think process is -- is very important. As I said earlier, I also think that structure is important in -- at least in the case of, you know, intact families as we defined them earlier. Q. And in your opinion, it is simply not known whether processes as opposed to structure

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Well, I've listed here that that was drawn from Popenoe. Q. Is your reference to intact families accurate? A. May -- may include adopted as well, but memory doesn't -- doesn't serve me there. Q. Onward we go. Paragraph 37. A. M-hm. Q. Here you quote at some length from Lorraine Blackmon's review: For African American children, parental marriage produces important benefits. And then it ends by saying: Marriage itself appears to be contributing strongly to better outcomes for black children. And then you drop a footnote, footnote 59. And you state there that: The researchers are again referring to marriage between the biological father and the mother. Are you sure that's the case? A. Well, as we've seen in a few of these

although in several of the studies that we've pulled out, they mention that they include in -- different social scientists want to be -- and, you know, more or less inclusive or claiming the definition of who they include in the study. We've seen in several of these cases that they decide to include adoptive families, which are a small, small minority in the general population, a small minority. I don't know the exact figures. But when you're dealing as these researchers are with broad national-based samples, they are as I mentioned earlier, sometimes painting with a broad brush. If some of these studies we're talking about, they use the term biological or intact and they throw in some -- some adopted studies, we would call that noise at some level, that there's a little bit of -- there's a little bit of muddying of concepts, but unless we -- unless we know that conceptually, they're including so many adoptive families, I find that very hard to believe to overthrow the general conclusion of a study based on

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studies, they include -- some of them include intact, adoptive families under -- under biological. That certainly is possible if not probable in some of these studies cited by Blackmon, since it's a review where they cite -- they claimed to cite 120 or so. In this case, I would anticipate that they would probably have at least some studies. They included a handful of adopted marriage-based families in there. Q. Do you wish to revise your statement that the phrase parental marriage refers to marriage between the biological father and mother? A. I think that what I would do there is say typically, conceptually, although some of the studies, Johnson, et al., and others do include in their definition adoptive families under that heading. Q. So we couldn't conclude from Blackmon's conclusion here that the benefits of marriage to -for black children are in any way limited to biological parents? A. I think that that's an overstatement,

thousands and thousands of people. It's -Q. Well, but -A. Well, it's -- it's conceptually an inconvenience to -- to have a nonclear-cut definition, but the points that are being made, if -if adoptive families comprise 1 or 2 or 3 percent of the subgroup of what they're calling intact biological families, we're talking about a study that's still 97 percent pure. It doesn't overthrow -- it makes my definition, which is necessarily messy upfront, less convenient, less clean, but it -- you don't throw out the baby with the bath water because they decided to include a few adoptive families under the intact heading. That's ridiculous. Further if -- if they decided to put the intact families or the marriage-based adoptive families in for whatever reason in with stepparent families, and it only accounted for a very small minority of the studies in that total population, it's -- it's again impure conceptually, but it

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Do I impose it on others? I believe in cleaning up my own backyard. Q. And for clarity sake, the -- the dogma that you referred to just in your last response, that's known as the law of chastity. Correct? A. That is correct. Q. Did your religious convictions impact your opinion that the ideal family structure is marriage between man and a woman and a child biologically related to each in any way? A. My exposure to -- to that -- that dogma I'm sure is one of many factors that -- that ran around in my head. But again I was called as an expert witness in the same sense that I wouldn't come in here and make my argument based on what's stated in the family proclamation to the world. I took that same approach in my scholarly -- my scholarly work. I think I've addressed again and again that I acknowledge potential for bias and that that makes challenge fair play. However, please remember

Q. So that belief predates your work as a social scientist? A. Yes. MR. McGILL: We'll take a 1- , 2-minute break and find out if there are any last questions. MR. THOMPSON: Sound good. THE VIDEOGRAPHER: We're going off the record. The time is now 6:09 PM. (Recess.) THE VIDEOGRAPHER: The time is now 6:13 PM. You may proceed. BY MR. McGILL: Q. Dr. Marks, earlier in the deposition today, we addressed paragraph 15 of your report, which is marked as exhibit 2. A. Okay. Q. Can you go back to that. A. I'll try -- I'll try and get there quickly. Okay. Q. And addressing the last sentence: Wilcox and colleagues state that teens living with both biological parents are significantly less likely to

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my earlier statement that I also have taken upon me the burden of challenge. This is -- you know, scholarship is about strengths and challenges, not just dogmatically presenting one. Q. When is the first time you held the belief that the ideal family structure is marriage between a man and a woman and a child biologically related to each? MR. THOMPSON: Objection, relevance. A. Mr. McGill, I don't know. I don't know how to answer that question. BY MR. McGILL: Q. Is it -- is it fair to say that you held that view, you held that belief before your engagement as an expert in this case? A. Yes. Q. Is it fair to say you held that belief before you received your Ph.D. degree? A. Yes. Q. Did you hold that belief before you graduated from college? A. Yes.

illicit drugs alcohol and tobacco. And you said that on reflection, having reviewed with me the Johnson study, you would delete the word biological. A. Said, delete. I probably would have contextualized it differently, added to it to make it accurate for the 1996 study and more precisely consistent with 1996. Q. So you might have said, teens living with both biological and adoptive families? A. Including adoptive, yeah. Q. And my question, which is my very last question, is, are there any other changes you would make to this report that you would -- or any words you would like to delete before trial? A. No. I would want to be more precise on the definitions than I was in a couple of cases. It's the danger of large studies. I would want to be more precise, but I stand behind the report as is. Q. Do you stand behind the -- do you recall -- excuse me -- do you recall when we went --

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