FRI’s Analysis of Federal Judge Vaughn Walker’s Decision on Proposition 8

September 2010

Introduction and Summary

Much of what we ‘know’ cannot be scientifically proven: man-woman marriage ‘worked’ to get us here, but we can’t re-run the world to see if something else would have done it. Since it ‘brought us here,’ ‘common sense’ (and the law until recently) considered man-woman marriage presumptively ‘necessary.’

But what if ‘everything’ was put to ‘rigorous scientific test’ — we had to ‘prove it’? That strategy works in the hard sciences, why not the soft? The mental health professional associations (arguably led by the American Psychological Association [APA]) have been pushing the notion that truth is equivalent to peer-reviewed social science or, better yet, to what either the professional associations or the ‘consensus of scientists’ say that social science proves.

Many studies can ‘prove’ that two things are different. By definition, of course, men are different from women. But men and women also generally differ in affective response, spatial abilities, mathematical abilities, etc., qualities that may not be obvious from their physical differences alone. In this fashion, social science research ‘proved’ that segregation harmed black students in Brown v. Board of Education of Topeka (1954). In a similar manner, we can distinguish between homosexual and conventional marriage by definition — one is same-sex, the other opposite-sex. But research also suggests these two entities appear to differ in average length of union, frequency of infidelity, length of fidelity, how well they raise kids, etc.

On the other hand, no set of social science studies can prove that two things are definitionally different but ‘the same’ in every other respect. In other words, that there is no difference other than name between them, a la Shakespeare (“a rose by any other name would smell as sweet”). This would include claims that “children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents” or that ‘men are functionally equivalent to women, so gender doesn’t count in parenting.’ Such claims have to be taken with a grain of salt because they are beyond our ability to prove them.
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Today the courts are talking about the ‘right’ to engage in homosexuality, the ‘right’ of homosexuals to get married to each other, the ‘right’ to openly join the military, etc. Political candidates are afraid of appearing ‘homophobic.’ But 60 years ago, even 35 years ago, the U.S. had it right. Then, engaging in same-sex sex was NOT considered a ‘right.’ Indeed, those who engaged in homosexuality were seen as highly socially disruptive, due to a lengthy, and empirically-tested, set of reasons. In 1950, Congress discussed the Employment of Homosexuals and Other Sex Perverts in Government:¹

Most of the authorities agree and our investigation has shown that the presence of a sex pervert in a Government agency tends to have a corrosive influence on his fellow employees. These perverts will frequently attempt to entice normal individuals to engage in perverted practices. This is particularly true in the case of young and impressionable people who might come under the influence of a pervert. Government officials have the responsibility of keeping this type of corrosive influence out of the agencies under their control. It is particularly important that the thousands of young men and women who are brought into Federal jobs not be subjected to that type of influence while in the service of the Government. One homosexual can pollute a Government office.

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