Obergefell et al v. Kasich et al

Filing 46

NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of Filing Expert Report of Letitia Anne Peplau (Attachments: # 1 Expert Declaration, # 2 Exhibit A, Peplau CV, # 3 Exhibit B, Peplau Bibliography) (Martin, Jacklyn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES OBERGEFELL, et al.,
Plaintiffs,
vs.
THEODORE E. WYMYSLO, et
al,
Defendants.

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Case No. 1:13-cv-00501
Judge Timothy S. Black
EXPERT DECLARATION OF
LETITIA ANNE PEPLAU,
PH.D. IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
DECLARATORY JUDGMENT
AND PERMANENT
INJUNCTION

I, Letitia Anne Peplau, Ph.D., pursuant to 28 U.S.C. §1746, declare under the
penalty of perjury under the laws of the United States of America that the following are my true
and correct opinions:
PRELIMINARY STATEMENT
1.

My professional background, experience, and publications are detailed in my

curriculum vitae, a true and accurate copy which is attached as Exhibit A to this declaration. I
have been retained by counsel for Plaintiffs as an expert in connection with the above-captioned
litigation (“Obergefell”). I have actual knowledge of the matters stated in this declaration and
could and would so testify if called as a witness.
2.

I was a Professor of Psychology at the University of California, Los Angeles

beginning in 1973, with promotions to tenure in 1978, to full professor in 1982, and to
Distinguished Professor in 2010. From 2005-2011, I served as Director of the UCLA
Interdisciplinary Relationship Science Program. This program, funded by the National Science
Foundation, trained doctoral students in the study of families and other personal relationships. I
formally retired from UCLA in June 2011, but am continuing to work at UCLA as Distinguished

1

Research Professor and as the Psychology Department Vice Chair for Graduate Studies.
3.

In broad terms, my research addresses topics concerning personal relationships,

gender, and sexual orientation. I have conducted research on heterosexual couples, co-authored a
book entitled Close Relationships, and published articles comparing empirical findings about
men's and women's experiences in close relationships. In the 1970s, I was one of the first
researchers to conduct empirical investigations of the intimate relationships of lesbians and gay
men, and I have continued this program of research for the past 35 years. In addition, I have
written several major reviews of the scientific research on same-sex relationships, including a
2007 article in the Annual Review of Psychology and a 2009 article in the Encyclopedia of
Human Relationships. I have also conducted empirical studies on gay and lesbian identity.
4.

I received my B.A. in Honors Psychology from Brown University in 1968 and

my Ph.D. in Social Psychology from Harvard University in 1973. As reflected in my curriculum
vitae (Exhibit A), I have published more than 120 papers in scholarly journals and scholarly
books, primarily in the field of couple relationships. I have co-authored or co-edited over 10
books, and I have frequently presented my research at universities and scientific meetings.
5.

My expertise extends beyond the specific areas addressed in my own empirical

research program to include other theory and empirical research related to sexual orientation and
same-sex relationships. A broad knowledge of this area has been necessary not only for my own
scholarship, but also for successfully completing my professional duties as a teacher, as Director
of the UCLA Interdisciplinary Relationship Science Program, and as a reviewer of academic
journals and book manuscripts.
6.

As a result of my research and other accomplishments, I have received several

professional awards. I have been elected a fellow of the American Psychological Association and
of the Association for Psychological Science. I have received lifetime achievement awards from
the American Psychological Association, the International Association for Relationship
Research, and the Society for the Scientific Study of Sexuality. I also had the honor of being
elected president of the International Society for the Study of Personal Relationships (an
2

organization since renamed the International Association for Relationship Research).
7.

In preparing this report, I reviewed the materials listed in the attached

Bibliography (Exhibit B). I may rely on those documents, in addition to the documents
specifically cited as supportive examples in particular sections of this report, as additional
support for my opinions. For the documents from websites that I have cited, I have listed the true
and complete web address and the date I last accessed those documents in my report. I have also
relied on my years of experience in this field, as set out in my curriculum vitae (Exhibit A), and
on the materials listed therein. The materials I have relied upon in preparing this report are the
same types of materials that experts in my field of study regularly rely upon when forming
opinions on the subject.
8.

In the past four years, I have testified as an expert – either at trial or through

declaration – or been deposed as an expert in In the Matter of the Adoption of X.X.G. and N.R.G.
in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida, Case
No. 06-43881 FC 04, Cole v. The Arkansas Department of Human Services in the Circuit Court
of Pulaski County, Arkansas, Case No. CV2008-14284, Perry v. Schwarzenegger, 704 F.
Supp.2d 921 (N.D. Cal. 2010), Golinski v. Office of Personnel Management, 824 F.Supp.2d 968
(N.D. Cal. 2012), Windsor v. U.S., 833 F. Supp.2d 394 (S.D.N.Y. 2011), Pedersen v. Office of
Personnel Management, 881 F. Supp. 2d 294, 2012 WL 3113883 (D. Conn. 2012), Dragovich v.
U.S. Dep’t of the Treasury, 872 F. Supp. 2d 944, 2012 WL 1909603 (N.D. Cal. 2012),
Donaldson and Guggenheim v. Montana in the Montana First Judicial District Court, Lewis and
Clark County, Case No. BDV-2010-702, Sevcik v. Sandoval, No. 2:12-CV-00578-RCJ-PAL (D.
Nev. 2012), and Darby v. Orr, Lazaro v. Orr, Nos. 12 CH 19718 & 19719 (Circuit Ct., Cook
Cty).
9.

I am being compensated an hourly rate for actual time devoted, at the rate of

$300.00 per hour for preparation of reports and for testimony. My compensation does not
depend on the outcome of this litigation, the opinions I express, or the testimony I provide.
SUMMARY OF OPINIONS
3

10.

Sexual orientation refers to an enduring pattern of emotional, romantic, and/or

sexual attractions to men, women, or both sexes. Most adults are attracted to and form
relationships with members of only one sex. Efforts to change a person's sexual orientation
through religious or psychotherapy interventions have not been shown to be effective.
11.

It is well-established that homosexuality is a normal expression of human

sexuality. It is not a mental illness, and being gay or lesbian has no inherent association with a
person's ability to lead a happy, healthy, and productive life or to contribute to society.
12.

Research shows that same-sex couples closely resemble heterosexual couples.

Like their heterosexual counterparts, many lesbian, gay, and bisexual individuals form loving,
long lasting relationships with a partner.
13.

Marriage provides a range of social and other benefits and protections to spouses.

These contribute to enhanced psychological well-being, physical health, and longevity among
married individuals. Same-sex couples are therefore harmed by being excluded from marriage.
14.

In the United States, lesbian, gay, and bisexual individuals experience pervasive

social stigma and the added stress that results from prejudice and discrimination. Stigma is
reflected both in acts of individuals and in the institutions of society, including its laws, that
legitimate and perpetuate the second-class status of gay men, lesbians, and bisexuals. By denying
recognition to legally married same-sex couples, Ohio Revised Code Sections 3101.01 and
3101.05 and the 2004 amendment to the Ohio Constitution (Article XV, §11), both reflect and
perpetuate stigma against lesbians, gay men, and same-sex couples.The stigma and
discrimination perpetuated by these statutory and constitutional amendments harms not only
same-sex couples, but gay men, lesbians, and bisexuals as a group.
15.

There is no scientific support for the notion that allowing same-sex couples to

marry would harm different-sex relationships or marriages. The factors that affect the quality,
stability, and longevity of different-sex relationships would not be affected by marriages of
same-sex couples.

4

OPINIONS
I.

Understanding Sexual Orientation
A.

What Is Sexual Orientation?

16.

The American Psychological Association provides a widely accepted definition of

sexual orientation: “Sexual orientation refers to an enduring pattern of emotional, romantic,
and/or sexual attractions to men, women, or both sexes. Sexual orientation also refers to a
person's sense of identity based on those attractions, related behaviors, and membership in a
community of others who share those attractions.” 1
17.

Beginning with the research of Alfred Kinsey in the 1940s, researchers have

recognized that sexual orientation can range along a continuum from exclusively heterosexual to
exclusively homosexual. Nonetheless, it is most often discussed in terms of three categories:
heterosexual (having emotional, romantic, or sexual attractions to members of the other sex),
gay/lesbian (having attractions to members of one's own sex), and bisexual (having attractions to
both men and women). Most adults in the United States can readily categorize themselves as
heterosexual, gay/lesbian, or bisexual. 2 The specific category name that an individual prefers
(e.g., homosexual, gay) may vary, 3 but in national surveys in the U.S., nearly all participants are
able to indicate their sexual orientation category.
18.

For clarity, it is important to distinguish sexual orientation from other aspects of

sex and gender. These include biological sex (the anatomical, physiological, and genetic
characteristics associated with being male or female), gender identity (an individual's
psychological sense of being male or female), and gender-role orientation (the extent to which an
individual conforms to cultural norms defining feminine and masculine behavior).
19.

Social scientists view sexual orientation as a multi-faceted phenomenon involving

attractions, related behaviors, and identity. In research studies, the particular component of
1
2

American Psychological Association, 2008; Herek, 2000.
See, e.g., Chandra, Mosher, Copen & Sionean, 2011, pp 29-30; Laumann, Gagnon, Michael &
Michaels, 1994, p. 293.
3
See, e.g., Herek, Norton, Allen & Sims, 2010.
5

sexual orientation that researchers assess will differ depending on the purpose of the research.
For example, a study about the experiences of individuals in same-sex marriages would recruit
participants based on their behavior of marrying a person of the same sex. A study of personal
experiences of social stigma and discrimination among openly gay and lesbian individuals would
most likely recruit individuals who self-identify as gay or lesbian.
20.

Sexual orientation is inherently linked to social relationships. Sexual orientation is

a characteristic of an individual, like his or her biological sex, age, or race, and it is also about
relationships — whether an individual is attracted sexually or romantically to partners of the
same sex or different sex. 4 Just as heterosexual individuals often express their sexual orientation
through relationships including marriage with a different-sex partner, so gay and lesbian
individuals express their sexual orientation through relationships including marriage (where
possible) with a same-sex partner. Further, sexual orientation is not merely about sexual behavior
but also about building enduring intimate relationships. In other words, sexual orientation is
centrally linked to the most important personal relationships that adults form with other adults in
order to meet their basic human needs for love, attachment, and intimacy. These relationships,
whether with a same-sex or different-sex partner, are an essential part of an individual's personal
identity.
B.

Can Sexual Orientation Be Changed?

21.

Currently, the precise factors that cause an individual to be heterosexual,

homosexual, or bisexual are still being researched. Much research has examined possible
genetic, prenatal hormonal, developmental, and social influences on sexual orientation, and
many scientists view sexual orientation as resulting from the interplay of those factors. 5
22.

A consistent finding across many studies, beginning with the work of Alfred

Kinsey in the 1940s and 1950s and continuing through current research, is that most adults report

4
5

Peplau & Cochran, 1990; Peplau & Fingerhut, 2007.
American Psychological Association, 2008.
6

having sexual attractions to and experiences with members of only one sex. 6 As adults, the
majority of these individuals have had exclusively heterosexual experiences and attraction, and a
minority have had exclusively same-sex experiences and attraction. A small percentage of adults
report sexual attractions and experiences with both sexes. 7
23.

The significant majority of adults exhibit a consistent and enduring sexual

orientation. 8 The fact that many lesbian and gay adults form long-term intimate relationships
with a partner of the same sex, 9 just as heterosexual adults do with a partner of the other sex,
provides evidence of the stability of sexual orientation over time. Nonetheless, a small minority
of individuals are exceptions to this majority pattern. For example, while in prison, some men
who identify as heterosexual may nonetheless engage in sexual activities with men since female
partners are unavailable. Some individuals have reported changes in their sexual orientation in
midlife, perhaps as a result of meeting a particular person. Understanding these kinds of
exceptions to the general pattern of stable sexual orientation described above is of theoretical
interest to scholars. Researchers have used terms like “sexual fluidity” or “sexual plasticity” to
refer to changes in sexual behavior, attractions, and identity over time or across situations.
Importantly, observations about fluidity in a small minority of people should not obscure the big
picture of stability for the majority of adults. In a discussion of women's sexual fluidity, Peplau
and Garnets 10 noted: “Claims about the potential erotic plasticity of women do not mean that
most women will actually exhibit change over time. At a young age, many women adopt patterns
of heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of
6

Kinsey, Pomeroy & Martin, 1948; Kinsey, Pomeroy, Martin & Gebhard, 1953; Laumann, et al.,
1994; Chandra, et al., 2011.
7
Some individuals are very clear about their sexual orientation at an early age. In contrast,
because of the social prejudice and discrimination against gay men and lesbians, some
adolescents and young adults go through a prolonged period of trying to understand their own
sexual identity and coming to terms with being lesbian, gay, or bisexual.
8
Based on large-scale survey data, Chandra et al. (2011, p. 1) conclude that “Sexual attraction
and identity correlate closely but not completely with reports of sexual behavior.” Thus, most
heterosexual individuals do not engage in sexual activity with same-sex partners, and most gay
and lesbian individuals similarly do not engage in heterosexual behavior.
9
Carpenter & Gates, 2008; see also Peplau & Fingerhut, 2007.
10
Peplau & Garnets, 2000, p. 333.
7

same-sex attractions and relationships.” Nor does the fact that a small minority of people may
experience some change in their sexual orientation over their lifetime suggest that such change is
within their power to effect, let alone that individuals outside this small minority have the power
to change voluntarily their sexual orientation. This is why standard definitions of sexual
orientation characterize it as stable.
24.

Before the emergence of gay communities in the United States, it was fairly

common for lesbians and gay men to marry a person of the other sex. 11 They entered these
ostensibly “heterosexual” marriages for diverse reasons: to avoid social stigma, in response to
pressure from family and friends, from a belief that marriage was the only way to have children,
and/or to participate in a fundamental social institution. In some cases, these individuals only
recognized or acknowledged their sexual orientation after marriage. It is psychologically harmful
to ask lesbians and gay men to deny a core part of who they are by ignoring their attraction to
same-sex partners and instead marrying a different-sex partner. Moreover, the disclosure that a
spouse is gay or lesbian is often hurtful to the heterosexual spouse, highly upsetting to their
children or other family members, and frequently sets the stage for separation or divorce.
Therefore, encouraging gay men and lesbians to enter into a marriage with a heterosexual partner
is not in the best interests of the individuals or the interests of society.
25.

When gay men and lesbians are asked by researchers about their sexual

orientation, the vast majority report that they experienced no choice or very little choice about
their sexual orientation. In a national survey conducted with a representative sample of more
than 650 self-identified lesbian, gay, and bisexual adults, 95% of the gay men and 83% of the
lesbians reported that they experienced “no choice at all” or “very little choice” about their

11

Bozett, 1982; Higgins, 2006. Researchers have estimated the percentage of lesbians and gay
men who have been married. An analysis of responses to a 2003 survey of adults in California
found that about 25% of lesbians and 9% of gay men ages 18-59 reported having ever been
married, most of them presumably to a person of the other sex (Carpenter & Gates, 2008, Table
3).
8

sexual orientation. 12
26.

Sexual orientation is highly resistant to change through psychological or religious

interventions. In 2007, the American Psychological Association appointed a task force to
conduct a systematic review of the peer-reviewed journal literature on sexual orientation change
efforts. 13 The Task Force concluded that “efforts to change sexual orientation are unlikely to be
successful and involve some risk of harm” (p. 3). Based on currently available research, there is
no credible evidence that these efforts are either effective or safe, and ample reason to believe
that these interventions can harm those who participate. 14 The Task Force also found evidence
that many individuals who unsuccessfully attempt to change their sexual orientation experience
considerable psychological distress including anxiety, depression, thoughts of suicide, and sexual
dysfunction.
27.

Currently, no major mental health professional organization has approved

12

Herek, Norton, Allen & Sims, 2010. In that survey, 88% of gay men reported that they had
“no choice,” and 7% reported “very little choice.” Similarly, 68% of lesbians responded that
they had “no choice at all,” and 15% reported having “very little choice.” See also results from a
California survey by Herek, Gillis & Cogan, 2009, Table 5.
13
APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation, 2009, Report
of the Task Force on Appropriate Therapeutic Responses to Sexual Orientation. Washington,
DC: American Psychological Association. This report provides a detailed review and analysis of
relevant research. Available at: http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf.
14
Although some psychotherapists and religious counselors have reported changing their clients’
sexual orientation from homosexual to heterosexual, empirical support for these claims is
lacking. After reviewing published empirical research on this topic, the APA Task Force
reported that it found “serious methodological problems in this area of research, such that only a
few studies met the minimal standards for evaluating whether psychological treatments, such as
efforts to change sexual orientation, are effective” (p. 2). Based on its review of the studies that
met acceptable standards, the Task Force concluded that “enduring change to an individual’s
sexual orientation is uncommon. The participants in this body of research continued to
experience same-sex attractions following SOCE [sexual orientation change efforts] and did not
report significant change to other-sex attractions that could be empirically validated, though
some showed lessened physiological arousal to all sexual stimuli. Compelling evidence of
decreased same-sex sexual behavior and of engagement in sexual behavior with the other sex
was rare. Few studies provided strong evidence that any changes produced in laboratory
conditions translated to daily life. Thus, the results of scientifically valid research indicate that it
is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex
sexual attractions through SOCE” (pp. 2-3).
9

interventions to change sexual orientation, and virtually all of them have adopted policy
statements cautioning professionals and the public about these treatments. 15 These include the
American Psychiatric Association, American Psychological Association, American Counseling
Association, and National Association of Social Workers. Further, since adolescents may be
subjected to these treatments after disclosing to their families that they are gay, lesbian, or
bisexual, the American Academy of Pediatrics has adopted a policy statement advising that
therapy directed specifically at attempting to change an adolescent's sexual orientation should be
avoided and is unlikely to result in change. The Pan American Health Organization, which is the
World Health Organization’s regional office for the Americas and the oldest public health
organization in the world, has stated that “there is no scientific evidence for the effectiveness” of
efforts to change sexual orientation. 16
28.

In summary, there is convergent scientific evidence documenting that sexual

orientation reflects an enduring set of attractions and experiences for most people. Efforts to
change a person’s sexual orientation through religious or psychotherapy interventions have not
been shown to be effective.
II.

Sexual Orientation Does Not Affect a Person’s Ability to Function Effectively
29.

The consensus view of scientific researchers and mental health professionals is

that homosexuality is a normal expression of human sexuality. Homosexuality is not a mental
illness, and being gay or lesbian has no inherent association with a person's ability to participate
in or contribute to society. 17 Lesbians and gay men are as capable as heterosexuals of leading a
happy, healthy, and productive life. They are also as capable as heterosexuals of doing well in
their jobs and of excelling in school.
30.

Although homosexuality was once believed to be a mental illness, that mistaken

15

These policy statements are compiled in Just the Facts About Sexual Orientation and Youth: A
Primer for Principals, Educators, and School Personnel, a publication that is available from the
Just the Facts Coalition on the American Psychological Association’s website:
http://www.apa.org/pi/lgbt/resources/just-the-facts.pdf.
16
Pan American Health Organization, 2012.
17
Herek, 2010; Herek & Garnets, 2007.
10

view was discredited by scientific research beginning in the 1970s. In 1973, the American
Psychiatric Association removed homosexuality from its Diagnostic and Statistical Manual of
Mental Disorders, noting that “homosexuality per se implies no impairment in judgment,
stability, reliability, or general social or vocational capabilities.” 18 In 1975, the American
Psychological Association endorsed this position and urged psychologists to help educate the
public and to dispel the stigma of mental illness associated with homosexuality. 19
31.

Gay and lesbian individuals are subject to the same stresses of life as their

heterosexual counterparts, including the death of a close relative, loss of a job, or a serious
illness. Research consistently demonstrates that high levels of stress are harmful not only to
psychological well-being but also to physical health. 20 In addition to the life stresses that can
affect everyone, members of stigmatized minority groups, including gay men and lesbians as
well as ethnic/racial minorities, may experience additional stress caused by prejudice and
discrimination. This has been termed “minority stress.” 21 This excess stress has been associated
with an increased risk of psychological problems, especially those like anxiety and depression
that are most closely linked to stress. 22 Despite the pervasive social stigma against
homosexuality and the resulting unique social stressors lesbians and gay men experience, the
vast majority of lesbian and gay individuals cope successfully with these challenges and lead
healthy, happy, well-adjusted lives. And there is nothing about sexual orientation itself – whether
one is heterosexual or homosexual – that makes a person more or less able to contribute to or
participate in society.
32.

Social relationships can play an important role in buffering individuals from the

stresses of life. Like heterosexuals, lesbians and gay men benefit from having a close intimate
18

American Psychiatric Association, 1974. For other resolutions by this organization, see
http://www.healthyminds.org/More-Info-For/GayLesbianBisexuals.aspx.
19
Conger, 1975. Also, the American Psychological Association has endorsed several resolutions
concerning sexual orientation. These can be found at:
http://www.apa.org/pi/lgbt/resources/policy/index.aspx (last accessed February 7, 2013)
20
Thoits, 2010.
21
Meyer, 2003, 2007.
22
Herek & Garnets, 2007; Pascoe & Richman, 2009.
11

relationship, for example, with a spouse or partner. Further, people benefit from the social,
emotional, and material support that can be provided by family, friends, and others. Research
also documents that the psychological well-being of lesbians and gay men is enhanced by having
positive feelings about being gay, having developed a positive sense of gay identity, and being
open about their sexual orientation with important other people, such as family members. 23
III.

Scientific Research Into Same-Sex Couples’ Relationships Establishes That They
Closely Resemble Different-Sex Couples’ Relationships
33.

Negative stereotypes about same-sex couples are common in America, leading

many people to believe and argue that same-sex relationships are fundamentally different from,
and inferior to, heterosexual relationships. But the consensus of the scientific research is that this
characterization is inaccurate.
34.

Lesbians and gay men are as able to form loving, committed relationships with a

same-sex partner as are heterosexuals in committed relationships with a different-sex partner.
Empirical research has repeatedly shown that gay men and lesbians have happy, satisfying
relationships. 24 Like their heterosexual counterparts, lesbians and gay men form deep emotional
bonds and strong commitments to their partners. Research documents striking similarities
between same-sex and heterosexual couples on standardized measures of love, relationship
satisfaction, and relationship adjustment. The extensive body of research that examines the
quality and functioning of same-sex relationships demonstrates that same-sex couples are not
inherently different from heterosexual couples. To the contrary, same-sex couples closely
resemble heterosexual couples, and the processes that affect both types of relationships are
remarkably similar. 25
35.

Lesbians and gay men, like heterosexuals, value committed relationships and a

majority would like to marry. In a national survey, 26 74% of lesbians and gay men said that if
23
24
25

Herek & Garnets, 2007; Meyer, 2003; Pachankis, 2007; Pascoe & Richman, 2009.
Kurdek, 2004, 2005; Peplau & Fingerhut, 2007.
American Psychological Association, 2004.
26
Kaiser Family Foundation, 2001.
12

they could legally marry someone of the same sex, they would like to do so.
36.

Scientific research consistently shows that the same factors that contribute to

commitment and stability in different-sex couples apply to same-sex couples. One factor is the
quality of a couple's relationship as reflected in factors as satisfaction, love and relationship
adjustment. As noted above, research shows that, on average, same-sex and different-sex
relationships are equally satisfying and well-adjusted. Couples with more satisfying relationships
are more likely to stay together than other couples, regardless of sexual orientation. A second
factor that contributes to commitment and stability within different-sex and same-sex couples
alike are barriers that make it difficult for a person to leave a relationship. Couples who decide to
own joint property, make personal sacrifices for the sake of the relationship, or choose to begin a
family through birth or adoption create important barriers to ending the relationship. The more a
couple has invested in a relationship in terms of time, energy and resources, the more they stand
to lose if the relationship ends. Research demonstrates that, as with their heterosexual
counterparts, lesbians and gay men who perceive more barriers to terminating a relationship are
more likely to remain together. In addition, certain demographic characteristics of different-sex
couples are consistently correlated with breakup rates (e.g. their age at marriage, race, level of
education, and religious affiliation). It is likely that the same demographic characteristics that
predict stability and instability in different-sex couples also apply to same-sex couples.
37.

In 2004, based on a review of research on marriage and same-sex relationships,

the American Psychological Association passed a Resolution on Sexual Orientation and
Marriage, 27 in which it concluded that “many lesbians and gay men have formed durable
relationships” and “the factors that predict relationship satisfaction, relationship commitment,
and relationship stability are remarkably similar for both same-sex cohabiting couples and
heterosexual married couples.”
IV.

27

Barring Same-Sex Couples from Marriage Causes Them Harm

American Psychological Association, 2004.
13

38.

There is widespread consensus among social science researchers that marriage

generally provides many benefits to both spouses. A large body of scientific research comparing
heterosexuals who are currently married to those who are not married establishes that marriage
fosters psychological well-being, physical health, and longevity. 28 Of course, marriages that are
unhappy, conflict-ridden, or violent do not provide the same benefits as the average marriage.
39.

Studies consistently associate marriage with better health and greater longevity;

marriage also has a moderating effect on individual risk-taking behavior. 29 Illustrative data come
from a report by the U.S. Center for Disease Contro1. 30 Using a large national database, CDC
researchers found that regardless of age, sex, race, ethnicity, education, or income, married
adults were on average healthier than cohabiting, divorced, widowed, or never married adults.
Married individuals reported lower rates of smoking, drinking heavily, or being physically
inactive (although married men were more likely to be overweight than other men). Married
adults also reported lower rates of being limited in their daily activities of living, being in poor
health, or suffering from headaches or serious psychological distress. Other research using
national data reliably demonstrates that, on average, married individuals live longer than
unmarried individuals.
40.

Marriage is also associated with enhanced psychological well-being. On average,

married individuals report less anxiety and depression and greater happiness and satisfaction
with life than do unmarried individuals. 31 The legal status of marriage enables spouses to exert
greater control over their lives when stressful situations arise and to avoid some types of
stressors entirely. In Ohio, these can include, for example, the right to consent to after-death
examinations of one’s spouse, the right to claim marital communications privilege or spousal

28

E.g., Cherlin, 2009; Johnson, et al., 2000; Kim & McKenry, 2002; Lamb, Lee,& DeMaris,
2003; Nock, 1995; Proulx, et al., 2007; Schoenborn, 2004; Umberson, 1992; Waite, 1995.
29
Hu & Goldman, 1990; Johnson et al., 2000; Waite, 1995; Waldron, Hughes, & Brook, 1996.
30
Schoenborn, 2004. Marital status and health: United States, 1999-2002. Advance
Data from Vital and Health Statistics, Number 351, December 15, 2004. Centers for Disease
Control and Prevention, U.S. Department of Health and Human Services.
31
Kim & McKenry, 2002; Lamb, Lee,& DeMaris, 2003;Proulx, et al., 2007; Waite, 1995.
14

immunity from testifying in court, and the right to pursue a divorce, legal separation, or
dissolution of marriage. 32
41.

There are two explanations for the clear differences observed between married

and unmarried individuals. 33 One explanation is known as the selection effect: to some extent,
individuals with better mental and physical health are more likely to choose to marry and/or
better able to attract a partner and maintain a relationship over time. Using a variety of research
methods, researchers have demonstrated that the selection effect only partially accounts for the
physical and psychological differences found between married and unmarried individuals. These
research methods include longitudinal studies of the effects of marriage over time, longitudinal
studies of transitions into or out of marriage, and studies that statistically control for factors such
as income that are known to be associated with health. For example, one longitudinal study
found that individuals who married between the first and second assessment were less depressed
at the time of the second assessment than those who remained unpartnered. This suggests that
getting married on average led to a reduction in depression. 34
42.

The second explanation for the positive physical and psychological benefits of

marriage is known as the protection effect. 35 There are many ways in which marriage can
provide protective benefits that contribute to the health and well-being of spouses. The marriage
relationship is a social union and a legal contract that creates a well-recognized and valued
kinship relationship. Marriage binds spouses not only to each other but can also bind individuals
to the broader community, which understands, appreciates, and values the significance of the
marriage relationship. Marriage often “provides individuals with a sense of obligation to others,
which gives life meaning beyond oneself.” 36 For many people, marriage has great symbolic
32

Ohio Rev. Code Ann. § 2108.50 and § 2108.81 (B)(1); Ohio Rev. Code Ann. § 2317.02
(D) and Ohio Evid. R. 601; Ohio Rev. Code Ann. § 3105.01, § 3105.17, § 3105.61.
33
Gove, Hughes, & Style, 1990; Kim & McKenry, 2002; Lamb, Lee,& DeMaris, 2003;
Waldron, Hughes, & Brook, 1996.
34
Lamb, Lee, & DeMaris, 2003.
35
Cherlin, 2009;Gove, Hughes, & Style, 1984; Kim & McKenry, 2002; Lamb, Lee,& DeMaris,
2003; Waldron, Hughes, & Brook, 1996.
36
Waite, 1995.
15

significance, establishing that the individual has a new social identity and is part of a valued and
respected social institution.
43.

In addition, marriage often entails a moral commitment by spouses to support

each other “in sickness and in health.” Spouses often help each other to adopt more healthful
lifestyles, cope with the stress and uncertainty of life, and recuperate from illness and injury.
44.

The security of marriage often enables spouses to adopt a long-term perspective,

putting off immediate rewards to build a future life together and encouraging mutual sacrifice.
This has been referred to as “enforceable trust.” 37
45.

One way that couples express the symbolic significance of their marriage is

through a wedding ceremony. Although cultures have differing traditions and individual couples
may choose to depart from certain customs and traditions, the celebration of a wedding is a ritual
that is important to the couple, their respective families, and the larger community. Wedding
ceremonies are typically state-sanctioned public rituals that signify not only the joining together
of the spouses, but the creation of new extended families and in-laws with shared interests and
mutual obligations. The formation of a marriage transforms biological strangers into kin.
Wedding ceremonies usually also involve members of the broader community – friends, coworkers, neighbors – who come together to recognize the new status of the couple and their
changed position in their community.
46.

Marriage is widely regarded as one of the most important rites of passage for

adulthood, and it marks a major transition in a person’s life. For many, marriage signifies entry
into full adulthood, with expectations that the individual will act in more mature ways. The sense
of being a responsible adult may be one reason why married individuals engage in less risky
behavior than their unmarried peers. The marriage relationship itself is associated with certain
duties and responsibilities – for example, that spouses should care for each other and build a life
together.

37

Cherlin, 2009.
16

47.

When a couple marries, they may bring with them separate networks of family,

friends, and others who can support them in time of need. Marriage often merges these support
networks, expanding the circle of valued confidants, help givers, and others who are available to
the couple. Marriage typically involves spouses in new sets of social obligations: the new
responsibilities of each spouse toward their in-laws are complemented by the obligations of the
extended family to support the married couple.
48.

Social support is central to the institution of marriage. Compared to unmarried

individuals, married adults tend to receive more social support from other people, especially
from their parents, and this support contributes to individual well-being. The public aspect of
marriage can increase each spouse’s sense of security that the relationship will be long-lasting.
49.

Although these conclusions are derived from studies of heterosexual couples, it is

reasonable to infer that same-sex couples will generally benefit from marriage as do their
heterosexual counterparts given the many well-established similarities in the nature and quality
of same-sex and heterosexual couples’ relationships. 38 And, indeed, this was the finding of a
recent study of a representative sample of California adults-- gay people who were legally
married had significantly better psychological well-being than their peers who were not in a
legally recognized relationship. 39
50.

As it does for many different-sex couples, marriage for many same-sex couples

creates bonds between the spouses and a social network of in-laws, friends, and others who can
provide emotional support and tangible assistance. As with different-sex couples, marriage binds
same-sex couples together in a well-understood and highly valued social union and legal
contract.
51.

Marriage embodies many cultural values and expectations, often reflected in

marriage vows by which spouses pledge to love and care for each other, to be faithful to each
other, and to stay together through good times and bad until separated by death. These cultural
38
39

Kurdek, 2004, 2005; Peplau & Fingerhut, 2007.
Wight, LeBlanc & Badgett, 2013.
17

expectations provide a framework that individuals can draw upon to understand and build a
relationship together. These cultural expectations also provide guidelines that relatives and
society can draw on.
52.

Data from same-sex spouses in Massachusetts offer additional insights on the

experience of married lesbian and gay American couples. 40 Most lesbians and gay men reported
that marriage had improved their social relationships: 62% said their family was more accepting
of their partner and 41% said their family was more accepting of their sexual orientation. In
addition, 69% felt more accepted in their community. Most respondents said that their parents
reacted positively to their marriage (82%) as did their siblings (91%). Lesbians and gay men
were also asked about ways that marriage had improved their relationship. A majority (72%)
agreed that they felt more committed to their partner. Many reported that they now worry less
about legal problems (48%) and nearly a third said that one of the spouses receives health
benefits from an employer as a result of marriage. Other benefits mentioned included feeling
more accepted by society (38%) and feeling more financially stable (14%). One in four of the
same-sex couples surveyed were raising children, and 93% of these respondents agreed that their
children were happier or better off as a result of their marriage; 2% disagreed, and 4% were
unsure.
53.

Leading organizations of mental health professionals recognize the benefits of

marriage for same-sex couples and the harm created by denying access to civil marriage to samesex couples. As one example, in 2005 the American Psychiatric Association, the leading
organization representing physicians in the field of mental health, adopted a policy statement on
this issue. Their resolution stated: “In the interest of maintaining and promoting mental health,
the American Psychiatric Association supports the legal recognition of same-sex civil marriage
with all rights, benefits, and responsibilities conferred by civil marriage, and opposes restrictions
to those same rights, benefits, and responsibilities.” 41 Further, in its Resolution on Sexual
40
41

Ramos, Goldberg & Badgett, 2009.
American Psychiatric Association, 2005.
18

Orientation and Marriage, 42 the American Psychological Association resolved “[t]hat APA
believes that it is unfair and discriminatory to deny same-sex couples legal access to civil
marriage and all its attendant benefits, rights, and privileges.”
V.

Barring Same-Sex Couples from Marriage Reflects and Perpetuates Stigma Against
Lesbians, Gay Men, and Same-Sex Couples
54.

Lesbian, gay, and bisexual individuals are the targets of prejudice and

discrimination in the United States. 43 National opinion surveys document that many Americans
have negative attitudes toward this group of people and toward marriage for same-sex couples.
Research has also documented that heterosexuals often view same-sex couples more negatively
than heterosexual couples. 44 Gay, lesbian, and bisexual individuals experience discrimination at
work and in their communities, 45 and most states provide no legal protection against
discrimination based on sexual orientation. Significant numbers of gay, lesbian, and bisexual
individuals are targets of harassment and violence. 46 These facts demonstrate that gay, lesbian,
and bisexual individuals experience pervasive social stigma.
55.

Social stigma refers to severe social disapproval of a class of people perceived as

being different, deviant, or in violation of cultural norms. 47 In American society today, gay men,
lesbians, and bisexuals continue to be a highly stigmatized minority group. Many heterosexuals,
who are the dominant group in society, perceive gay men, lesbians, bisexuals, and same-sex
couples, as fundamentally different, hold negative stereotypes about their characteristics, and
view discrimination against them as acceptable. Social stigma is reflected both in the acts of
individuals and in the institutions of society, including its laws, that legitimate and perpetuate the
second-class status of gay men, lesbians, bisexuals, and same-sex couples.
56.

42
43
44
45
46
47

By denying state recognition to married same-sex couples, Ohio’s 2004 statutory

American Psychological Association, 2004.
Herek, 2009a.
Testa, Kinder & Ironson, 1987.
Herek, 2009b.
Herek, 2009b.
Herek, 2009a.
19

and constitutional amendments both reflect and perpetuate stigma against lesbians, gay men, and
same-sex couples. These laws devalue and delegitimize the relationships of legally married
same-sex couples. By giving heterosexuals exclusive access to the benefits associated with the
institution of marriage, these laws perpetuate power differentials between heterosexual citizens
and non-heterosexual citizens. Ohio law signals that in the eyes of the state, the committed
relationships of same-sex couples are inferior to different-sex relationships and that partners in
same-sex relationships, even those recognized as legal marriages by another state’s government,
are less deserving of social recognition and government protection. The stigma perpetuated by
Ohio law affects not only individuals in committed relationships with a person of the same sex,
but all gay, lesbian, and bisexual individuals as a group.
VI.

There Is No Evidence That Heterosexual Relationships Would Be Harmed If
Same-Sex Couples Were Permitted To Marry
57.

For many decades, social scientists have studied and analyzed the factors that

contribute to rates of divorce. 48 There is a scientific consensus about the key factors that may be
responsible. First, increasing employment opportunities for women have led to a dramatic
increase in the percentage of married women in the workforce. Paid employment gives wives
greater economic independence from their husbands, which in turn makes it more feasible to end
an unhappy marriage. Second, since the 1970s, economic opportunities for men without college
education have diminished, adding financial stress to the lives of some married couples. Third,
there have also been important changes in public attitudes. Public acceptance of divorce has
increased, as has the social acceptability of unmarried cohabitation. Some scholars also suggest
that a growing emphasis on individualism and personal fulfillment has eroded an earlier
emphasis on the importance of obligation and commitment in marriage. Fourth, state “no-fault”
divorce laws have made it easier for spouses to end their relationships.
58.

48

In addition, research has identified several demographic characteristics that are

Cherlin, 2009; Coontz, 2007; Bramlett & Mosher, 2002; Teachman, 2002.
20

associated with an increased likelihood of divorce. 49 First, age at marriage matters: people who
marry as teenagers are more likely to divorce than those who are in their 20s or older. Second,
unemployment and low incomes are associated with greater rates of divorce. Third, so too is race
or ethnicity; African Americans have significantly higher rates of marital separation, Asian
Americans have lower rates, and other groups fall in between. Fourth, individuals whose parents
divorced while they were growing up are at greater risk of divorce. Although a correlation exists,
there is no scientific evidence that these demographic characteristics in and of themselves cause
relationships to end. When spouses are similar to each other with regard to such characteristics as
religion and age, the risk of divorce is lower.
59.

None of these factors uniquely correlates with same-sex couples or with allowing

them to marry. Allowing same-sex couples to marry would not alter state marriage laws,
economic opportunities for married heterosexual women or men, public attitudes toward divorce
or cohabitation, or personal values of individualism or commitment. Nor would it affect the age
at which heterosexuals decide to marry, their personal history of parental divorce, their choice of
a similar or dissimilar partner, or their race or ethnicity. Indeed, the fact that lesbians and gay
men, a class of citizens denied legal marriage, are seeking to obtain marriage rights could be seen
as beneficial, because it broadens the scope of support for the value of marriage as a central
social institution in American society.
60.

Allowing same-sex couples to marry would not affect the quality or stability of

different-sex relationships. The quality of a heterosexual couple’s marriage depends on such
factors as the spouses’ personalities, their communication styles and ways of handling conflict
with each other, the stress a couple experiences, and the social support and resources available to
the couple. None of these factors is altered if a same-sex couple living down the block gets
married. In addition, the stability of marriages between different-sex couples depends on barriers
to divorce, including investments the spouses have made in each other and their relationship,
49

Amato, 1996; Bramlett & Mosher, 2002; Heaton, 2002; Lehrer & Chiswick, 1993; Raley &
Sweeney, 2007.
21

their moral and personal convictions about marriage, the options they see available outside of
marriage, and the many legal, financial, and social obligations that come with a marriage license.
These factors are not influenced by the marital status of other couples. In short, there is no
scientific basis for the proposition that allowing same-sex couples to marry would affect the
underlying processes that foster stability in different-sex marriages.
61.

In response to an effort to ban marriage for same-sex couples, the Executive

Board of the American Anthropological Association, the world’s largest organization of
anthropologists, issued the following statement:
The results of more than a century of anthropological research on households,
kinship relationships, and families, across cultures and through time, provide no
support whatsoever for the view that either civilization or viable social orders
depend upon marriage as an exclusively heterosexual institution. Rather,
anthropological research supports the conclusion that a vast array of family
types, including families built upon same-sex partnerships, can contribute to
stable and humane societies. 50
62.

Empirical evidence demonstrates that legalizing marriage for same-sex couples

does not affect either marriage or divorce rates for different-sex couples. An examination of
statistical data from Massachusetts, where marriage for same-sex couples became available in
2004, indicates that marriage of same-sex couples has not led to a decline in marriage nor to an
increase in divorce. In the four years prior to when same-sex couples were permitted to marry
(2000-2003), the average marriage rate was 5.9 marriages per 1,000 total population in the state.
In the seven years after same-sex couples were permitted to marry (2004-2010), the average
marriage rate was also 5.9. In the four years prior to when same-sex couples were permitted to
marry (2000-2003), the average divorce rate was 2.5. In the seven years after same-sex couples
were permitted to marry (2004-2010), the divorce rate was lower, averaging 2.2. 51 Similarly, a
50

American Anthropological Association, 2004.
Marriage rates by State: 1990, 1995, and 1999-2010, Division of Vital Statistics, National
Center for Health Statistics, CDC. Available at:
http://www.cdc.gov/nchs/data/nvss/marriage_rates_90_95_99-10.pdf. Divorce rates by State:
1990, 1995, and 1999-2010, Division of Vital Statistics, National Center for Health Statistics,
CDC. Available at: http://www.cdc.gov/nchs/data/nvss/divorce_rates_90_95_99-10.pdf. (last
accessed February 7, 2013).
51

22