Friday, August 6, 2010

Matthew J. Franck on the Prop 8 Ruling

I think Matthew J. Franck has a helpful analysis of Judge Walker's legal reasoning in the California same-sex marriage case. He explains how Walker took the movement towards the equality of the sexes in marriage to mean that gender no longer mattered:

By the same token, says Judge Walker, the doctrine of coverture, in the common law, in which a wife's legal identity was subsumed by that of her husband as the superior partner in the marriage-that too has been abandoned by a more modern understanding of the sexes as equal partners. Thus, concludes the judge, there has been a "movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles." And this has not been an essential change in the "core" of the marriage institution, but merely a shedding of an extraneous characteristic, thanks to "an evolution in the understanding of gender."

And now watch carefully, for here the fallacious reasoning enters the equation. When "the genders" are no longer "seen as having distinct roles," it is revealed that at marriage's "core" there is ample space for same-sex couples too. Since "gender no longer forms an essential part of marriage," indeed since it never really did, "plaintiffs' relationships are consistent with the core of the history, tradition and practice of marriage in the United States." There, you see? There is something eminently conservative about the admission of same-sex couples to the marital bond. What could we have been thinking, denying them this right for all these centuries?

Judge Walker seems to have committed 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 restated in this way, it is quite plain that the judge's conclusion doesn't follow from his 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.

Read it all here.


Anonymous said...


Michael Ejercito said...

The obvious fallacy is this.

If using gender classifications in the definition of marriage violates the 14th Amendment, because marriage is no longer a gendered institution, then the day after the 14th Amendment was ratified, when marriage was a gendered institution, the definition of marriage did not violate the freshly-ratified 14th Amendment.

Perpetua said...

Hi Michael,

I'm not sure if I follow you. Are you saying Matthew Franck's reasoning is fallacious for that reason?

Marriage serves to protect women in heterosexual relationships from gender differences that remain between men and women, even in this enlightened time. Here's a link to an op/ed from the Christian Science Monitor that explains this a little.

Michael Ejercito said...

No, it was Judge Walker's reasoning that is fallacious.

He used the reason that marriage is no longer a gendered institution (as opposed to marriage having never been a gendered institution, or had not been a gendered institution since 1868) as a reason to strike down gender classifications in the definition of marriage.