The Prevalence of Social Science in Gay Rights Cases: The Synergistic Influences of Historical Context, Justificatory Citation, and Dissemination Efforts

Abstract

Disjunctive legal change is often accompanied by a period of frantic activity as the competing forces of stasis and evolution vie for domination. Nowhere is the battle for legal change likely to be more sharply joined than when the findings of modern science, in their varied and multifarious forms, are pitted directly against prevailing moral or societal precepts. One of the latest incarnations of this trend is the battle over the legal recognition of gay rights. In recent history, the courts have been inundated by gay litigants seeking the rights and protections already afforded other discrete groups within society. In the resulting legal skirmishes, gay individuals are resorting with increasing regularity to the sciences in an effort to overcome the moral opprobrium surrounding homosexuality. The judicial opinions which have resulted from the onslaught of gay litigants have not remained untouched by the scientific information adduced. Rather, as this Article will demonstrate, a disproportionally large number of gay rights opinions contain citations and references to social science information. These judicial opinions have become artifacts of the battle between modern science and existing moral conceptions of homosexuality and provide a discrete microcosm within which to examine science\u27s contribution to legal change. The lessons derived from gay rights cases may help to elucidate other contexts in which science and morality meet head-on