Andrew Ferguson’s current feature essay in The Weekly Standard “The ‘Science’ of Same-Sex Marriage” considers the unique brief filed by Leon Kass and Harvey Mansfield in the Proposition 8 case that is now before the Court. Also discussed by Nelson Lund, the brief’s counsel of record, in Wednesday’s Wall Street Journal, the Kass-Mansfield brief does not engage in direct advocacy on behalf of the California law that bans same sex marriage in that state. Rather, the brief purports only to demonstrate that social science claims made in support of a radical departure from the principles of Western marriage law are quite inconclusive and are contrary to statements put forward by researchers and organizations like the American Psychological Association. Ferguson summarizes their position as follows:
“The social and behavioral sciences, they write, have a long history of being shaped and driven by politics and ideology.” They note pointedly that two generations ago, the “scientific consensus,” as represented by the American Psychiatric Association, was that homosexuality was a “mental disorder.” The consensus was publicly reversed in 1973, and science, to paraphrase Mae West, had nothing to do with it: Both positions, before and after, were determined by political and cultural considerations.
Now, of course, the American Psychological Association, which waited until 1975 to “depathologize” homosexuality, tries to lend its shaky intellectual credibility to the cause of gay marriage in general and gay parenting in particular. In 2005, it issued a bull declaring the “no difference” finding a matter of settled science. Kass and Mansfield point to a recent paper by Loren Marks of LSU, who had the temerity (and professional death wish) to go back and actually read the 59 studies the APA cited in its decree. They were shot through with conceptual and methodological flaws: small, nonrandom “convenience” samples, a recurring lack of control groups, shifting and poorly defined outcomes, and a steady pattern of comparing apples to oranges—for example, placing the children of intact, well-to-do lesbian households up against children reared by single heterosexual parents.
In all aspects of gay marriage, Kass and Mansfield write, the “body of research . . . is radically inconclusive.”
There is a rather interesting connection between the Kass-Mansfield brief and a new essay by the singular Mansfield “On the Majesty of the Law” in the current Harvard Journal of Law and Public Policy. Both the brief and the essay evince the notion that law is a whole even in its parts and must come from a source above or apart from the community. That law must be good and seen as good by the community to which it belongs. So perhaps the abiding question connecting the essay and the brief is if the social scientists Kass and Mansfield identify have kept this reasonable faith, or have they sought to unmask the law as the design of calculating men with themselves as the most calculating of all?
In the course of the essay Mansfield moves through legal realism, natural law, positivism, self-interest, and pragmatism as the purported foundations of law in a modern state. But can these, Mansfield asks, ever be enduring sources of law in a free republic? Is man as a reasonable being and also the being prone to disobedience and trouble, finally attached to law that is an endless experimentation, as in pragmatism, because law has no content rooted in nature? Or is man loyal to law that is merely the force of the sovereign, as in positivism, and that need not be enacted with any real support in moral reason? In short, “We do require public assurances that public justice is serious business. Above all, any appearance that the law can be circumvented by private approach or by interested calculation—and this warning is directed to professors—is to be avoided.”
Law is a cutting, we are told, but also an inclusion. We make distinctions between the legal and the illegal, and include within the law a notion of the whole. So we might ask is the discrimination against same-sex relationships by public marriage law a reasonable discrimination rooted in principles that go to the nature of marriage itself? Is the principle of heterosexual complementarity as the form of marriage and the inherent potential this form has for producing new life one that the state has a decisive interest in for purposes of ensuring a thriving civil society? If not, what is marriage to be rooted in? What will be its definitive legal form?
Mansfield’s simple example is of jaywalking. Here we produce reasons that are both “tender” and efficient with regard to protecting human life and reducing costs from accidents. We assume man is rational, capable of obeying law. And so humans must have minds, “possibly souls.” We do not, after all, try to prevent rabbits and deer from jaywalking. We assume death is bad and life is to be protected. Why? The implications, Mansfield reasons, behind even jaywalking laws are significant. We must establish “what is man’s as well as what is above and below man.”
And yet the arbitrary nature of law still remains and cannot be gotten around. Mansfield holds out the deeply illogical form law has taken in the modern regulatory state to support this statement. Obamacare and its thousands of pages that create the authority for rules and law-making entities to make even more rules of dubious accountability surely shake our faith in law as a whole with its source in the good that we can accept as lovely and worthy of our respect and obedience. But even Obamacare seeks our affection. It states that it is ‘affordable’ and intended for ‘care.’ Do not laugh, for what does ‘care’ mean asks the sage of Cambridge?
The welfare state is translated in French as l’état providence. Does that mean that law is made in consonance with God’s Providence or to substitute for it? Here we have a fleeting glimpse of the majesty of the law: Does law reflect God’s majesty or substitute for it? One should not believe the answer does not matter, but either way, law has or needs majesty, perhaps all the more if it wants to do without God or the divine.
Of course the modern state heightens this tension between the arbitrariness of law and the whole of law with its constant innovations. Modern political science laid the foundations for this tension with its reduction of law to protecting only physical necessities. The citizen, protected in his body, was free to do as he pleased. But what to do if law is just “cutting” and is not seen as capable of embracing the whole, what then? It follows, Mansfield observes, that we divide powers, separation and what not, to make them safe for liberty. But is this utility of power and its defined limits in support of a very basic freedom enough for a wondering being like man?
I think the most interesting move in the essay is Mansfield’s combination of modern political science that abstracts or cuts out the soul, or spirit for you squeamish types, in favor of just protecting the human necessities. But even the progressives with their pragmatism can support and protect your necessities, Mansfield argues. This seems true enough. Property in things and your body, among other market components are evidently protected even in the highly interventionist Nordic regimes. Such necessities can be maintained even while law and the overall regime is re-purposed in the spirit of endless experimentation. “Having no whole, it could change without changing the whole; it could experiment harmlessly, risking only bloodless revolutions. It would take three or four centuries of evolution and experiment after the invention of modern political science, but at the end we could call this result “pragmatism.”
Much of the rest of Mansfield’s essay is a consideration of the majesty of law in the education of its citizens in its virtues, the need for higher law and the lower law of any regime, and the promise of contraries within law that legal realist snorts cannot make sense of given their need for a hyper-rationalizing of all aspects of law. Law, Mansfield concludes, sits perched between philosophy and morality.
I think that here Mansfield touches upon the mediation of man’s existence as the soul-body composite and how this demands from law that it be clothed with dignity. Man is whole, but he misses himself—the soul and the body fit together uneasily—and that leads him in both an individualistic direction and a reflective philosophical direction that desires to mount higher to ascend beyond particularity. Law is surely one part of this process, as it is something we as rational human beings do with our strange tendencies in play. Law is both “moral and intellectual and with both their contrary qualities.” Thus “majesty of the law” is not an “obsolete irrationality” but its “prime feature.” With law we give voice and anger to what is wrong, but also to what makes us members of a “common humanity” inscribed with a dignity that requires freedom and responsibility to manifest it in our law, and that, in turn, governs what we put in common.