Friday, February 17, 2012

Rick Santorum's Call for "Moral Impact Statement" Is Present in the Prop 8 Case

In his book "It Takes a Family" Presidential candidate Rick Santorum advocates for the preparation of "moral impact statements" to evaluate changes in society, analogous to the requirement that there be an "environmental impact statement" before land use changes are undertaken.  I completely agree.

In Chapter 22 of "It Takes a Family" Santorum states:

Liberals love Environmental Impact Statements. And while they are costly, and while they may easily be abused as a mere tool to stop a development project altogether, they do reflect a true insight: namely, that nature is a subtle web of intricate organic connections, and even small changes in an ecosystem can have large and unintended negative effects downstream. Some call it the "butterfly effect": the mere flapping of a butterfly's wings may contribute to causing a hurricane on the other side of the globe. Trying to look ahead to what might be lost is simply prudent.

What has always baffled me is that the village elders [this is how Santorum refers to federal judges] who are so sensitive about interventions in the natural ecosystem are almost always the same people who champion the wholesale desrtuction of our society's moral ecosystem. Human societies are also a subtle web of intricate organic connections, of moral bonds, communities of memory and mutual aid, as the legal scholar Mary Ann Glendon puts it. Yet when it comes to the moral ecology of our society, liberals turn into the dirty dozen, thoughlessly clear-cutting forests of rich, ancient moral norms, paving them over with contempt, and building in their place the moral equivalent of strip malls. Where is the prudence, the foresight, the sound science, and the sensitivity to our moral ecosystem? Shouldn't we spend at least as much time on exhaustive research for a Moral Impact Statement when proposing moral alternatives to our environment as we do when building a bridge that may adversely affect a box turtle in rural Pennsylvania?

Not only do I agree with Senator Santorum's position advocating Moral Impact Statements, I would contend that his proposal does not go far enough.  Not only must we consider the consequences of changes to our moral landscape, we should also consider the moral value of retaining existing laws and institutions.  Just such a Moral Impact Statement was developed in the Prop 8 trial presided over by Judge Vaughn Walker.  (Judge Walker's decision in that case, Perry v. Schwarzenegger, may be accessed here.)

In that case the plaintiffs and defendants were allowed to call as many witnesses as they wished in support of or in opposition to same-sex marriage.  In particular, the District Court afforded the parties the opportunity to present expert testimony as to the likely consequences of granting or denying same-sex couples the right to marry.  Here was precisely what Rick Santorum called for in his book - the opportunity to set forth "sound science" demonstrating the harm that he believes would ensue from expanding the institution of marriage to gay and lesbian couples.

The opponents of Proposition 8 (supporters of same-sex marriage) seized the opportunity.  They offered the testimony of nine expert witnesses, backed by extensive historical and social science studies, proving that same-sex couples are no different from opposite-sex couples across a range of variables.  They proved that same-sex couples love each just as much and are just as good at raising children as opposite-sex couples.

The supporters of Proposition 8 were unable to muster even a single qualified expert to testify.  They were unable to introduce into evidence even a single peer-reviewed study that would have refuted the proposition that same-sex couples are as capable of creating strong families and contributing to the institution of marriage as opposite-sex couples.

Senator Santorum did not testify at that trial, nor did any other leaders of the anti-same-sex marriage movement.  Why not? 

A similar pattern appeared in Iowa in the case of Varnum v. Brien (2009).  In that case much of the same evidence was presented to the court as in the Prop 8 case, and the court came to these conclusions:

Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples. Society benefits, for example, from providing same-sex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples.

Which of these findings is incorrect?  Precisely how are same-sex couples different in fact in these respects?

The Senator and other opponents of same-sex marriage are properly concerned about the future of the family.  They are correct as to the centrality of the institution of marriage to our society.  They are most certainly right regarding the advantage to a child of having two committed parents.  What they fail to acknowledge is the supporters of same sex marriage share those very same concerns!  Same-sex marriage rewards faithfulness and thereby buttresses monogamy.  In addition, same-sex marriage will ensure that hundreds of thousands more children will be raised by two lawfully responsible parents.  Finally, allowing same-sex marriage will heal many families and strengthen many more.

The "Moral Impact Statement" that Rick Santorum called for regarding same-sex marriage has been prepared.  If he has opposing evidence based on "sound science" he should present it. 

As a professor at The University of Akron School of Law Wilson Huhn has been calling for a rational discussion of this and other constitutional issues for a very long time.   In his writing and speaking he attempts to demonstrate the proposition that in the long run facts and logic are a lot more persuasive than namecalling and characterization.

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