While everyone should be celebrating the monumental decision of the Supreme Court to recognize same-sex marriages, there is also something in there that, along with this weeks’ ruling on the Fair Housing Act in Texas, should warm the hearts of social scientists in particular. Both of these decisions, in different ways, have advanced the view that our understanding of the real world matters for deciding legal principles. In Obergefell v. Hodges Kennedy argued that the proper interpretation of the constitution, of what it means to be “equal,” is subject to shifting societal norms:
“The nature of injustice is that we may not always see it in our own times,” he wrote on Friday. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
And in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. Kennedy argued that it is not necessary to establish a discriminatory intent in order to sue under the Fair Housing Act. Rather, it is enough to show that “an identified business practice has a disproportionate effect on certain groups of individuals.”
This move towards looking at real world context (Obergefell) and consequences (Texas) in deciding the law just makes sense to us as anthropologists. But while we should welcome the way that these rulings increase the sway of the social sciences in shaping the law, we should also be cautious, for it remains an open question exactly what kind of social science will be held to be relevant in deciding legal questions. The move to include real world implications of the law received its biggest push from the law and economics movement and it is likely that quantitative research by economists and sociologists will continue to hold sway over qualitative work. Certainly several members of the Supreme Court remain quite ignorant about anthropological research on subjects like marriage. At the same time, however, these two decisions by Kennedy seem to establish important precedents for the inclusion of social science research in how we think about the law, and I think that’s a good thing.