George F. Will: High court heading into unchartered terrority

Published: March 17, 2013
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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's email address is georgewill@washpost.com.

WASHINGTON POST WRITERS GROUP