Friday, March 05, 2004

Gay Marriage, the Constitution, and Social Science

According to AP reports, both sides in the pending gay-marriage litigation in California want to offer research and testimony from social scientists about the allegedly harmful effects of prohibiting or permitting it.

May 17 will mark the fiftieth anniversary of Brown v. Board of Education, 347 U.S. 483 (1954), which also relied on social scientific research, in the opinion's famous eleventh footnote, to lend legitimacy to the Court's assessment that segregation worked deleterious effects on schoolchildren. Heated debate over that reliance raged for many years, with many liberals tending to celebrate the Court's supposed embrace of social science, and many conservatives tending to decry it -- perhaps partly from a sense that the Devil himself could cite social science to suit his purpose. Despite their disagreements on the merits, both sides in that debate tended to share the common belief that the Court did rely heavily on the cited research in framing its constitutional analysis.

In later years, a growing body of scholarly commentary has come to question whether the research cited in Brown's footnote 11 was really pivotal in the Court's constitutional decision. See, e.g., Sanjay Moody, Brown Footnote Eleven in Historical Context: Social Science and the Supreme Court's Quest for Legitimacy, 54 Stan. L. Rev. 793 (2002). It might be thought, for example, that segregation is inherently invidious, and therefore an affront to equal protection, no matter what might or might not be disclosed, through empirical investigation, about segregation's practical consequences.

We are not constitutional scholars here at Blog 702, but to us, the strongest arguments by proponents of gay marriage do not depend on the contention that recognition of gay matrimony will promote some broader social good. The most compelling argument for gay marriage, to us, is that its prohibition enshrines the legal stigmatization of a group. If that is so, then it may be opponents of gay marriage who are the more driven to reliance on sociological arguments, to show its allegedly negative social consequences. How compelling should we expect their sociology to be, before it is accepted as a reason to disfavor a group, rather than as a reason to treat it equally? A lot more compelling, it seems to us, than this.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.