Monday, March 04, 2013

The Same-Sex Marriage Ruling's "Factual" Findings

via The Weekly Standard Blog by John McCormack on 8/6/10

When Judge Vaughn Walker struck down California's constitutional amendment banning gay marriage on the grounds that it violated the 14th Amendment's equal protection clause, some argued that what really mattered in the decision were Walkers findings of fact--which supposedly prove there is no rational basis for keeping marriage a union between a man and a woman.

At Ricochet, John Yoo explains the trouble with Walker's "factual" findings:

Judge Walker sees it as the job of the courts to test whether laws passed by a majority of the people, or a legislature, advance the public good as defined by expert testimony by social scientists. I'm more than happy if the government required that its own laws produce more benefits than costs. But do we want this job done by a single judge, or a small group of judges, relying on social science (in this case, the work of sociologists, psychologists, and political scientists produced to the court by the litigating parties) of a recent phenomenon?

Here's how it worked in the gay marriage case. Walker asked whether the goal of Prop 8 -- higher levels of marriage & less divorce, encouragement of procreation, social stability -- were achieved by a ban on gay marriage. He said no. He cited a few studies, as if they proved facts about the real world, by the plaintiffs' experts. Because of this, the law failed the rational basis test -- there was no possible logical link between the goals of Prop 8 and the means. [...]

social science -- as anyone who reads these studies -- is far from a perfect science. There are so many variables and alternative explanations involved in understanding human interaction. I am dubious whether sociologists and psychologists can tell us the real causes and effects of gay marriage -- it has only been legal in the United States for a few years, and only in a few states. That is why my preferred solution of relying on federalism makes sense -- if states can choose different policies, we can learn from the information generated and understand the costs and benefits.

At The Public Discourse Matthew Franck takes on Judge Walker's reasoning:

Perhaps the most surprising thing in the judge's opinion is his declaration that "gender no longer forms an essential part of marriage." This line, quoted everywhere within hours with evident astonishment, appears to be the sheerest ipse dixit—a judicial "because I said so"—and the phrase "no longer" conveys that palpable sense that one is being mugged by a progressive. But Judge Walker's remark here is actually the conclusion of a fairly complex argument. The problem is that the argument is not only complex but wholly fallacious. [...]

When "the genders" are no longer "seen as having distinct roles," it is revealed that at marriage's "core" there is ample space for same-sex couples too. Since "gender no longer forms an essential part of marriage," indeed since it never really did, "plaintiffs' relationships are consistent with the core of the history, tradition and practice of marriage in the United States." There, you see? There is something eminently conservative about the admission of same-sex couples to the marital bond. What could we have been thinking, denying them this right for all these centu56ries?

Judge Walker seems to have committed the fallacy of composition—taking something true of a part and concluding that it is also true of the whole of which it is a part. If it is true that "gender" no longer matters as it once did in the relation of husband and wife, he reasons, therefore it no longer matters whether the relation is one of husband and wife; it may as well be a relation of husband and husband or of wife and wife, since we now know that marriage is not, at its "core," a "gendered institution." But restated in this way, it is quite plain that the judge's conclusion doesn't follow from his premises. To say that the status of men and women in marriage is one of equal partners is not to say that men and women are the same, such that it does not matter what sex their partners are. The equalization of status is not the obliteration of difference, as much as Judge Walker would like to pretend it is.

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