Defining Marriage Down: The Iowa Court Gives Real Marriage Experts Short Shrift
Readers of ConstitutionallyCorrect.com have requested more information on a specific aspect of Judge Hanson’s ruling last week in Iowa purporting to redefine marriage, namely, his exclusion of the testimony of many of the expert witnesses offered by Polk County in the defense of Iowa’s DOMA. There are a couple of significant issues here, as I see them.
First, the judge booted all of the witnesses who were “multidisciplinary,” i.e. academic experts who synthesize empirical research done by more narrowly-focused specialists in other, more strictly “scientific” fields. So, for instance, he did not allow testimony from experts on the history of the development of marriage as a complex social institution, such as Dr. Alan Carlson of the Howard Center/World Congress of Families, or Dr. Katherine Young, a professor of world religions at McGill University. He did not allow testimony from UVA professor of public policy Dr. Steven Rhoads, who is a published author on, and teaches college courses on, the public policy implications of social science research documenting the difference between the sexes. He excluded testimony on the ethical considerations of intentionally bringing children into motherless or fatherless homes and in ways which deprive those children of relationships with at least one of their genetic parents, from Dr. Margaret Somerville, a law professor, world-renowned bioethicist, and Founding Director of the McGill Centre for Medicine, Ethics and Law at McGill University.
The judge seems implicitly to have been operating on a false dichotomy that would pit “scientific” experts against “nonscientific” experts, categorically disqualifying the latter while accepting as experts only witnesses who are trained and regularly practice in a field of inquiry involving empirical research and the publication of peer-reviewed studies. Yet, he was reviewing the constitutionality of public policy legislation, not hearing a tort case on toxic exposure or psychiatric malpractice, or a construction lawsuit about steel girder failures. It is a profound mismatch to act as though legislative public policy decisions can be made and evaluated according to the scientific method.
The second major issue with the exclusion of these witnesses is the prejudicial consequences of those evidentiary rulings on the judge’s subsequent consideration of the merits. Note the painful irony of this: after throwing out all the academic witnesses with testimony on the delicate interaction between marriage as a human social institution and marriage as a legal status regulated by the state, the judge then dismissed as nothing more than a cover for homophobic bigotry the assertion that one rational basis for a state DOMA law maintaining the definition of marriage as the union of one man and one woman, is the protection of the institution of marriage! There are insightful and important scholarly writings these days (e.g., Monte Stewart, Genderless Marriage, Institutional Realities, and Judicial Elision, Duke Journal of Constitutional Law and Public Policy, January 2006) making the point that the legal regulation of a complex social institution like marriage can either buttress and promote the health of the institution, or cause it to weaken, malfunction and potentially die. Are we as a society really willing to risk, as a potential consequence of changing the definition and structure of marriage as a legal status, interfering with the culturally-embedded functioning of the institution of marriage as a norm that channels and regulates behavior? Rather than confront the seriousness of that concern, the judge dismissed the very notion that redefining marriage legally could destroy the institution of marriage as anti-homosexual animus, quoting Lawrence v. Texas (not only the main opinion, but O’Connor’s concurrence and Scalia’s dissent). In essence, this portion of the decision is an expanded meditation in fancy legal terms on the bumper sticker ad hominem, “Mean People Suck.”
Let’s hope and pray that the Iowa Supreme Court, and, ultimately, the people of Iowa, will approach the foundational importance of marriage in our society more soberly.