I suspect that few people—in favor of the decision or opposed to the decision of Judge Walker in overturning Proposition 8 in California—have actually worked through the argument presented in the decision. Matthew Franck has. In summary:
Perhaps the most surprising thing in the judge’s opinion is his declaration that “gender no longer forms an essential part of marriage.” . . . But Judge Walker’s remark here is actually the conclusion of a fairly complex argument. The problem is that the argument is not only complex but wholly fallacious.
Judge Walker essentially argues from modern egalitarianism (no distinction in gender roles) to the conclusion that marriage is not a “gendered institution” to the implication that same-sex couples may marry.
Professor Franck notes that Judge Walker’s argument commits the “fallacy of composition—taking something true of a part and concluding that it is also true of the whole of which it is a part.”
If it is true that “gender” no longer matters as it once did in the relation of husband and wife, he reasons, therefore it no longer matters whether the relation is one of husband and wife; it may as well be a relation of husband and husband or of wife and wife, since we now know that marriage is not, at its “core,” a “gendered institution.”
But that means that the conclusion doesn’t follow from the premises:
To say that the status of men and women in marriage is one of equal partners is not to say that men and women are the same, such that it does not matter what sex their partners are. The equalization of status is not the obliteration of difference, as much as Judge Walker would like to pretend it is.
You can read the whole thing here.
