As the Supreme Court debates the Constitutionality of laws controlling the establishment of marriage, I wonder about the validity of the terms of that debate.  The arguments coming from the chamber yesterday (March 26) reveals convoluted thinking on this subject.  It seems like both the justices and lawyers are caught between the social sciences and Constitutionalism.  Social science is the study of causes and effects inside human populations.  Using statistics and studies, social scientists try to detect patterns in human society  in order to determine which activities, policies, and/or behaviors benefit the individuals in that society.  In the case at hand, one of the bases for arguments about the legality of same-sex marriage rest on the effects that same-sex marriage (a social institution, recognized by the states) has on individuals (the couples themselves and/or the children raised by such couples.)  I find this line of thinking convoluted since the standards for determining benefit seem amorphous and really those conditions that agree with a certain set of presuppositions about what a healthy person (holistically not just physically) looks like.  Never mind that for the moment; such considerations lie beyond my point.  The second standard, Constitutionalism, requires that laws not violate the principles (it is hard to define this any more than by using the term principles because the legal community has, for some time, debated the usefulness of the Constitution and the terms of its relevance for modern law...) of the Constitution.  Of the many ways of understanding constitutionalism, the most often cited derive from the Fourteenth Amendment and refer to the ever expanding monolith labeled civil rights.  In this thinking, the Constitution guarantees individuals in America (itself a questionable limiting factor in modern politics) a certain extension of the individual's identity.  This is problematic in some cases and not so much in others.  For example, as regards segregation, going to competitive schools and having a vote are obvious extensions of the individuals identities.  Race should not impede someone from being able to live out their political and economic lives.

It was hard to tell from the arguments from the Supreme Court what logic the Justices will use to decide on the constitutionality of both California's proposition 8 and the Federal Defense of Marriage Act.  Neither of these lines of argument seem to make a great deal of sense.  Sociological reasoning seems ineffective at determining the benefits of same-sex marriage.  First, how does one decide whether or not a type of relationship is beneficial to certain individuals?  How does a social scientist know that the relationship in question is the thing that has led to either a good or bad result in individual lives?  How long must a sample group experience same-sex marriages to determine benefit?  Second, what does the Constitution have to do with theories about benefits to individuals?  This seems like a normal debate for politicians but not clearly for constitutional arenas.  I am not unaware of the many civil rights decisions in which the court has recognized the economic and social ramifications from certain social conditions.  These cases have established that society, by imposing certain social and economic statuses on individuals, determines their legal and political standing as well.  But to say that patterns of either benefit or harm using the limiting factor of sustained same-sex marriages seems far less reliable than proving that black children suffer harm through educational segregation.

The logic of civil rights seems even more incredible in this case which leads me to believe that the Court does not have a clear sense of how to judge this case.  In what way is a proclivity or attraction a civil right?  Well, the argument goes, a person gets as much opportunity to chose to whom he/she is attracted as a person can choose his/her own skin color.  Thus, the argument for same-sex marriage as a civil right rests on two things: the biological nature of same-sex attraction and the right to live according to that attraction so that neither the political, economic, nor social status of the individual is diminished by it.  There are at least two problems with this logic.  First, a person's attraction to a certain sex has no rational relationship to a person's economic, political, and/or social status.  Second, debate over same-sex marriage has nothing to do with an individual's tastes, proclivities, and/or attractions.  The constitutional argument is over marriage, a decision to live in a committed relationship which has an expectation of sexual relations (and other things, of course, but these are the bare minimums so lets just look at these.)  If we wish to use the terminology, and I do not think there is a good reason to do so, let us say that each individual has a right to have an attraction to a certain type of person.  How can we possibly legally, and philosophically for that matter, forge a necessary connection between having an attraction and having sex?  I am not saying that there is no reason why people who have a certain attraction will not want to have sex; I am saying that there is no constitutionally imaginable link creating a right to practice an attraction.  People have all sorts of attractions which no law can possibly proscribe but for which no law should create a constitutionally protected path to fulfillment.  There seems to legal basis for protecting certain behaviors simply because they stem from an individual's attraction.

It seems to me that the Court has no clear way of settling this issue, and maybe it should not try.  If, however, the Court decides that same-sex marriage is a civil right, it will also, by necessity, claim that the Constitution of the United States secures for each individual the right to pursue their attractions.  As far as the social sciences logic, the Justices have already complained that they do not have access to enough information to prove same-sex marriage is beneficial to the individual.  This seems like a non-starter since all it would do is allow what is already going happening.  The civil rights logic is the most consequential and yet seems to confuse the court and public.  I hope the Court, at least, gets some clarity before they make what could be one of the most far reaching watershed decisions in this country's history.