Senator Baldwin references an amicus brief Andy Ferguson eviscerated, and for good reason, earlier this week. He wrote, in part:
The list of amici contains several names that will be familiar to anyone whose has had the bad habit of following American politics. Beyond their political coloration, which in many instances seems quite changeable, they do present a typical Washington motley: underemployed lobbyists, society hostesses, TV gasbags, defenestrated politicians, and political hangers-on, most of them draping themselves in the phony-baloney job titles that only our preposterous political culture can pretend to endow with authority (“adviser,” “consultant,” “commentator,” “advocate”). In other cases there are references to real jobs—former special assistants, speechwriters, undersecretaries—that the amici once held and abandoned several administrations ago, when the world was young—and before their moral and constitutional views had progressed to the state of exquisite sensitivity that now drives them to lay their opinions before the High Court.
Nobody will be surprised to learn that these opinions are not terribly well informed. Indeed the only thing the amici seem informed by is the impress of our country’s most up-to-the-minute intellectual fashion. Inevitably they rely, innocent and wide-eyed, on … inconclusive social science …. The amici are not a skeptical or penetrating lot. The brief makes the obvious point that science offers no evidence of the harm that gay marriage may do; they do not make the equally obvious and complementary point that science offers no evidence of the good that supporters insist gay marriage will do for its couples, its children, or the larger society.
Their brief also vigorously invokes the advantages offered by marriage, as currently defined. And these advantages are real and well documented by social scientists of all stripes. The amici attribute such benefits to the stability that state-sanctioned marriage bestows on families, which is also true, as far as it goes. But you can’t help but wonder: If stability between same-sex couples is the issue at hand—the great social good we seek—why not institute civil unions that are as binding as the marriage contract, and avoid the radical social experiment of redefining marriage?
Well, the amici say, marriage is unique. And they’re right again. Marriage is many things, all at once—much more than a simple mechanism for stability between husband and wife. The institution that social science has been studying so exhaustively for so many years is of a singular kind, with singular features. It is an ancient practice grooved by tradition and myth, shaped by social expectations as old as civilization. It arises from the natural sexual complementarity of woman and man, and formalizes the possibility of procreation and the renewal of life.
There’s no way of knowing what combination of these singular features of marriage confers which of its demonstrated advantages, culturally and psychologically. We do know, however, that if the state suddenly creates the institution of gay marriage by fiat, the result will lack most of the features that make marriage unique—and uniquely beneficial. It will not be the same institution that has won the unanimous endorsement of social scientists. It will be a novel and revolutionary institution owing its existence to the devaluation of an old and settled one. Should we assume that the former will confer the same social and personal benefits as the latter, the two being different in such fundamental ways? The only honest answer—the only intellectually respectable answer—is, Who knows?
The motives of those who signed onto the amicus brief no doubt vary. But what they signed up for is unfortunate. It’s one thing to argue on solid ground. It’s another to trip over yourself (to use the language of the chief justice today) to encourage the codification of a revolution we ought to be reflecting on in a much more rigorous and thorough way. Skipping democratic debate on fundamental civilizational issues isn’t quite progress. It seems more like an abdication of moral responsibility as citizens.