Today the US Supreme Court begins hearings on two same-sex marriage cases. Scores of organisations have presented “amicus briefs” to the Court as background to the legal arguments. Here we present an edited version of a submission by the Institute for Marriage and Public Policy and two distinguished scholars. Leon Kass, of the University of Chicago, and Harvey Mansfield, of Harvard University, are experts on the limits of the scientific method and on issues relevant to the appropriate structure of family life. This is a long but extremely valuable contribution to the debate over same-sex marriage.
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Overview
This case should be decided on the basis of the law, without reliance on the social science studies and authorities that Respondents and their amici will undoubtedly put before the Court. The social and behavioral sciences have a long history of being shaped and driven by politics and ideology. This is partly because researchers often choose to study issues implicating controversial questions of public policy.
And it is partly because it is often impossible to perform the kind of objective observations and controlled experiments that are standard in the physical sciences. History is littered with notorious examples of false theories gaining wide acceptance among respected social and behavioral scientists, some of which supported pernicious public policies.
Although published academic studies typically contain caveats about the limitations of their methodology and of the data available to the researcher, those studies are frequently cited in litigation and in public debate for conclusions they cannot legitimately support. When organizations of social and behavioral scientists purport to speak for a professional consensus on controversial matters of public policy, special caution is warranted.
At one time, for example, psychiatrists almost universally considered homosexuality a mental disorder, and the American Psychiatric Association classified it as such in its Diagnostic and Statistical Manual of Mental Disorders (“DSM”). After a sustained political campaign against the Association, its members voted in 1973 to remove homosexuality from the DSM. The historical record shows that the change was not made because of new scientific findings, but rather in response to external political pressure and to political maneuvering within the Association.
Amici do not contend that the long-standing classification of homosexuality as a mental disorder was justified by reliable science, or that the alteration of the DSM resulted from scientific error. Our point, rather, is that science had little to do with the Association’s revision of the DSM, and that this episode illustrates why such organizations should not be taken for the voice of science. It would have been a mistake for this Court to rely on the official position of the American Psychiatric Association either before or after 1973.
It would also be a mistake to rely on briefs from this and similar organizations today. There is good reason to believe that the political climate has strongly influenced much of the existing research on issues raised in this case. That body of research, moreover, is radically inconclusive. Same-sex marriage is a very recent innovation, as is the practice of child rearing by same-sex couples. The effects of these new developments could certainly be significant. But only an advocate for social change could claim to know that the effects will be entirely or even largely benign.
Even if same-sex marriage and child rearing by same-sex couples were far more common than they now are, large amounts of data collected over decades would be required before any responsible researcher could make meaningful scientific estimates of the effects.
Social and behavioral scientists, moreover, have inadequate tools for measuring the effects of different family structures on children. Notwithstanding the patent weaknesses of the existing research, Respondents sought to persuade the courts below that there is a scientific basis for constitutionalizing same-sex marriage.
In fact, there is no such basis. 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. The necessary data simply do not exist.
There could conceivably come a time when supporters of traditional marriage are compelled by scientific evidence to acknowledge that same-sex marriage is not harmful to children or to society at large. That day is not here, and there is not the slightest reason to think it is imminent. It is no less possible that scientific evidence will eventually show that redefining marriage to encompass unions of same-sex couples does have harmful effects on our society and its children. That day is also not yet here, but there is no basis for this or any other court to conclude that it will never arrive.
Now and for the foreseeable future, claims that science provides support for constitutionalizing a right to same-sex marriage must necessarily rest on ideology. Ideology may be pervasive in the social sciences, especially when controversial policy issues are at stake, but ideology is not science.
In recent decades, this Court has been inundated with arguments and evidence from social and behavioral scientists. Reliance on such briefing is no doubt sometimes appropriate. But the Court has frequently expressed its skepticism about such submissions, and for good reason. In this case, the relevant scientific evidence on which Respondents seek to rely is manifestly unreliable, and it should be given no weight at all. The case can and should be resolved on the basis of the law.
Read more at Mercator.Net.
Read more at Mercator.Net.
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