Opinion: Marriage case blends law, social science

March 17, 2013


— When on March 26 the Supreme Court hears oral arguments about whether California’s ban on same-sex marriages violates the constitutional right to “equal protection of the laws,” these arguments will invoke the intersection of law and social science. The court should tread cautiously, if at all, on this dark and bloody ground.

The Obama administration says California’s law expresses “prejudice” that is “impermissible.” But same-sex marriage is a matter about which intelligent people reasonably disagree, partly because so little is known about its consequences.

When a federal judge asked the lawyer defending California’s ban what harm same-sex marriage would do to the state’s interests in “the procreation purpose” of heterosexual marriage, the lawyer said, “I don’t know.” This was mistakenly portrayed as a damaging admission. Both sides should acknowledge that, so far, no one can know.

A brief submitted to the U.S. Supreme Court concerning the California case by conservative professors Leon Kass and Harvey Mansfield and the Institute for Marriage and Public Policy warns that “the social and behavioral sciences have a long history of being shaped and driven by politics and ideology.” And research about, for example, the stability of same-sex marriages or child rearing by same-sex couples is “radically inconclusive” because these are recent phenomena and they provide a small sample from which to conclude that these innovations will be benign.

Unlike the physical sciences, the social sciences can rarely settle questions using “controlled and replicable experiments.” Today “there neither are nor could possibly be any scientifically valid studies from which to predict the effects of a family structure that is so new and so rare.” Hence there can be no “scientific basis for constitutionalizing same-sex marriage.”

The brief does not argue against same-sex marriage as social policy, other than by counseling caution about altering foundational social institutions when guidance from social science is as yet impossible. The brief is a pre-emptive refutation of inappropriate invocations of spurious social science by supporters of same-sex marriage.

For example, a district court cited Dr. Michael Lamb, a specialist in child development, asserting that the “gender of a child’s parent is not a factor in a child’s adjustment” and that “having both a male and female parent does not increase the likelihood that a child will be well-adjusted.” The conservatives’ brief notes that, testifying in the trial court, Lamb “had conceded that his own published research concluded that growing up without fathers had significant negative effects on boys” and that considerable research indicates “that traditional opposite-sex biological parents appear in general to produce better outcomes for their children than other family structures do.”

The brief is replete with examples of misleading argumentation using data not drawn from studies satisfying “the scientific standard of comparing large random samples with appropriate control samples.” The late Sen. Daniel Patrick Moynihan, a distinguished social scientist, said the “pronounced” liberal orientation of the social sciences is “well established” and explainable: “Social scientists are frequently caught up in the politics which their work necessarily involves” because social science “attracts persons whose interests are in shaping the future.”

This helps explain why “Brandeis briefs” have shaped American law. Before joining the Supreme Court, Louis Brandeis defended constitutional challenges to progressive legislation by using briefs stressing social science data, or what purported to be such, rather than legal arguments. He advanced his political agenda by bald assertions inexcusable even given the limited scientific knowledge of the time. For example, in his 1908 defense of an Oregon law restricting the number of hours women could work, he said “there is more water” in women’s than in men’s blood and women’s knees are constructed differently.

Since Moynihan wrote the above in 1979, the politicization of the social sciences has become even more pronounced, particularly in matters of “lifestyle liberalism.” Hence the need for judicial wariness about social science that purports to prove propositions — e.g., that same-sex marriage is, or is not, harmful to children or society — for which there cannot yet be decisive evidence.

If California’s law is judged by legal reasoning, rather than by social science ostensibly proving that the state has no compelling interest served by banning same-sex marriage, the law may still be overturned on equal protection grounds. But such a victory for gay rights, grounded on constitutional values, and hence cast in the vocabulary of natural rights philosophy, would at least be more stable than one resting uneasily on the shiftable sand of premature social science conclusions.

— George Will is a columnist for Washington Post Writers Group.


Richard Heckler 4 years, 11 months ago

Why should BIG GOVERNMENT care about who marries who? and George Will for that matter.

voevoda 4 years, 11 months ago

This op-ed piece fails the logic test.

George Will argues that social scientists don't know the consequences of same-sex marriage, so same-sex marriage shouldn't be permitted until it has been proven to be socially harmless. But until same-sex marriage is legalized, the consequences of legalization cannot be known for certain.

George Will argues that social scientists are influenced by politics. So are natural scientists. So are humanities scholars. So are artists. So are politicians. Especially politicians.

George Will claims that social scientists' conclusions are particularly politically-motivated and invidiously so, but the only example he gives of a "political agenda by bald assertions" concerns mistaken testimony from the natural sciences about women's knees and women's blood, not mistaken social science testimony.

Since George Will is so clearly incapable of logical reasoning, one wonders why he doesn't retire and leave the editorial space to more cogent columnists.

fiddleback 4 years, 11 months ago

What rot.

"If California’s law is judged by legal reasoning, rather than by social science ostensibly proving that the state has no compelling interest served by banning same-sex marriage, the law may still be overturned on equal protection grounds."

This concession renders the previous 10 paragraphs totally moot. Yeah, George, we know there are no conclusive longitudinal studies on gay and lesbian parenting. The most erudite bigots probably made similar arguments about the great unknown effects of interracial parenting when the miscegenation laws were ending...perhaps you were one of them?

What we do know is that there are millions of children in our country (1 in 4 lives in poverty) who subsist in veritable hellscapes of hardship and neglect, for whom such stable homes would be salvation. You're on the wrong side of history and the wrong side of retirement-- please quit already and find a new hobby.

jafs 4 years, 11 months ago


And, actually, it's the state that has the burden of proving there's a compelling interest to ban these unions. So, if there isn't sufficient evidence to judge them yet, then...the state fails in it's burden, and they should be legal.

So, legalize them, and wait some time, then do some more studies. If at some point in time, the state feels they can demonstrate the compelling interest to ban them, let them try again.

Personally, I feel certain that the outcome would be a positive one, if one looks at the big picture. Doesn't mean that gay/lesbian partnerships are perfect, or that they wouldn't have many of the same issues that straight ones do, of course.

But, if straight marriage is seen as a good thing, and a positive influence on children, then the same should be true of gay/lesbian ones. Also, one should note the rather dismal success rate of heterosexual marriage (high infidelity, abuse, child abuse and divorce rates). So, unless it can be shown that homosexual marriages would be even less successful, which seems unlikely, there's not enough reason to ban them.

I wonder if the state would consider the dismal success rate of straight marriages a "compelling interest" to ban them, or only use that argument against gay marriage :-)

We should do a better job of protecting children and abused spouses, though, regardless of gender/sexual orientation, in my view.

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