When the American Right needed courtroom-ready arguments against gay marriage, it looked to three academics from McGill
The battle for gay marriage in California has been a tennis match between the courtroom and the polls. In May 2008, the Golden State’s supreme court ruled in favour of same-sex matrimony, but the victory was short lived: less than six months later, Californians voted in Proposition 8, a bill that repealed the decision. Its proponents campaigned by appealing to the gut, claiming in their literature that gay marriage undermines traditional matrimony, and that liberals had gone behind voters’ backs and convinced “activist judges” to redefine marriage for the rest of society.
Opponents of the bill regrouped and sued the state. Their turn to the justice system posed a challenge for social conservatives. Emotional rhetoric could win voters’ hearts, but not lawmakers’ minds; for that, they needed real experts, academics from name brand universities rather than Bible colleges. But where would they find serious scholars willing to make a case against gay marriage? North of the border, for one.
The long fight for same-sex marriage in Canada spurred a cadre of thinkers united against it: intellectuals who could write op-eds, present briefs before parliamentary committees, and serve as expert witnesses in court cases. Chief among them was a troika hailing from McGill University: Paul Nathanson (who is openly gay) and Katherine Young, experts in religious studies; and Margaret Somerville, a pioneer in applied ethics with armfuls of honorary degrees, who has rounded out her impressive CV with consulting gigs for the World Health Organization, various UN bodies, and the Law Reform Commission in Canada.
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Asbestos use has declined rapidly over the past twenty years, due to widespread concern over its carcinogenic properties. But since the late nineteenth century, Canada has been a leading asbestos exporter, with markets in America and across Europe. When France banned the substance in 1997, the Canadian government appealed to the World Trade Organization, arguing that the measure violated international agreements. The wto rejected Canada’s claim, ruling instead that governments have the right to enact protective trade measures when their citizens’ safety is at stake, and a rash of asbestos bans spread across Europe. Today Canadian asbestos exporters depend almost entirely on unregulated markets in the developing world.
When gay marriage was federally legalized here in 2005, it seemed as though they had lost. But the battle raged on down south. The following year, a lawyer from the Alliance Defense Fund, a controversial American Christian group, asked Somerville and Young to act as expert witnesses in a landmark Iowa case involving six gay couples who hoped to wed. Positioning themselves as expert social analysts, and with Nathanson in tow, they testified that gay marriage threatened traditional unions, and posed potential harm to children. Somerville stated in her deposition that “same-sex marriage… takes away from children the right to a mother and a father… It changes the nature of parenthood,” and referred to the research of Maggie Gallagher of the Institute for Marriage and Public Policy.
But the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America all disagreed, backed by studies concluding that gay marriage posed no threat to the welfare of families or children. This was enough to persuade Judge Robert Hanson. “Ms. Somerville specifically eschews empirical research and methods of logical reasoning in favor of ‘moral intuition,’” he said in his decision. “She has no training in empirical research and admits having no knowledge of existing social science research relevant to this case… The views espoused by [these three] appear to be largely personal and not based on observation supported by scientific methodology or based on empirical research in any sense.”
He wasn’t the first to notice. Somerville had long alienated many of her Canadian peers for her conservative views on euthanasia, abortion, and stem cell research, prompting some to question her motives. Indeed, in a recent interview with the Presbyterian Record, she hinted that a higher power plays an important part in her world view: “I’m a principle-based ethicist. I believe there are rights and wrongs based on a supernatural reality… There is a truth quite apart from any we can construct.” In Iowa, she testified that people have “multiple ways of human knowing… I actually believe that reason is a secondary verification mechanism.” Her sources were just as controversial: Gallagher once compared “winning the gay marriage debate” to the fall of communism, stating that defeat “means losing American civilization.” Nathanson and Young, for their part, had co-authored a trilogy of books on misandry (prejudice against men), and faced accusations of flawed methodology and personal bias.
But neither academia’s censure nor Judge Hanson’s decision deterred them. When Proposition 8 went to trial—a legal event predicted to be among the most important cases in American history on the subject—Nathanson and Young (sans Somerville) signed up to defend it, hopeful their voices would help stem the gay marriage tide. The pair were examined by plaintiff lawyer David Boies—and abruptly dropped by the legal team they had been called in to serve.
Pressed by Boies, Nathanson and Young effectively ceded their positions. Nathanson admitted that peer-reviewed sociological and psychological studies had found no issues with gay marriage’s effect on children. Both Nathanson and Young affirmed that allowing gays to marry actually increased family stability, and thus children’s welfare. The duo argued against their side so compellingly that Boies used their testimony to bolster the case for same-sex marriage: if kids do well in these marital arrangements, then it stands to reason such arrangements should be encouraged. The California judge concurred, and he cited Nathanson in his decision to reinstate gay matrimony.
The same-sex decision in California remains mired in the appeals process. A definitive judgment won’t come for many months, when the US Supreme Court will probably weigh in. By then, the efforts of three Canadian academics will likely have become footnotes in an ongoing conflict. But their push wasn’t necessarily in vain. In the recent mid-term elections, three of the Iowa Supreme Court justices who upheld the decision were ousted from office (judges are elected in Iowa)—and Maggie Gallagher’s group participated in the campaign against them. In the absence of legal clout, it seems social conservatives can turn to the voters.
This appeared in the April 2011 issue.