image Matthew Franck writing at Public Discourse made an excellent point about the bad logic that U.S. District Court Judge Vaughn Walker used in his ruling against California’s Proposition 8.

Franck notes:

Perhaps the most surprising thing in the judge’s opinion is his declaration that “gender no longer forms an essential part of marriage.” This line, quoted everywhere within hours with evident astonishment, appears to be the sheerest ipse dixit—a judicial “because I said so”—and the phrase “no longer” conveys that palpable sense that one is being mugged by a progressive. 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…

…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.

Be sure to read the whole thing.

HT: Mere Orthodoxy

Subscribe For Latest Updates

Sign up to receive stimulating conservative Christian commentary in your inbox.

Invalid email address
We promise not to spam you. You can unsubscribe at any time.
  1. wrong!….the gender matter was not invented by Walker; it was a finding of fact based upon the testimony of 7 expert witnesses produced by the plaintiffs and uncontroverted by the proponents.

    1. Wayne, I think you missed the point.

      It wasn’t about the “finding of fact” though the testimony of the “experts” is questionable. It was about how the “finding of fact” was applied and the poor logic used.

      1. Shane,

        The proponents of proposition 8 had ample opportunity to refute any experts put on by the plaintiffs, or they could have put on their own. In declining to do so, Judge Walker had no choice to to accept the uncontroverted testimony as fact. Please note that all of Plaintiffs witnesses were designated as experts, and therefore were legally permitted to offer their opinions into evidence.

        Moving on from here, as part of the official case record, those facts cannot be challenged at the appellate level unless they are “clearly erronious,” which in this case, would be extremely difficult to prove. A clearly erronius finding of fact would be, for example, “a woman is the property of her husband.” It must be something uncontrovertably false, not merely questionable or debatable.

        The judges logic in coming to those conclusions was also logically sound. The uncontested evidence showed that gender based distinctions were no longer present in marriage. Either he husband or wife could be the breadwinner, the homemaker, etc. Following this, the Judge took the next logical step – if the roles of both partners in a marriage are equal, what does it matter what gender they are? As you say, the equalization of status is not the obliteration of difference; however, that difference was not shown to be in any way meaningful. In fact, the testimonies of the experts provided voluminous amounts of data and studies to show that same-sex households functioned essentially identically to heterosexual ones – the genders of the partners can be freely substituted in such an instutution without changing the outcome.

        The procreation argument also fell on its face, but that is a seperate issue.

        In short, Judge Walker ruled based on the facts presented at trial, and his opinion lays out solid logic in following that evidence. If there was anything to refute those findings of fact, the defense failed to present it. And certainly, you wouldn’t want a judge to impose his own personal opinions or anecdotal evidence that was presented by neither side, would you?

    1. So the ones who feel homosexuality is wrong are sexual deviants? Just trying to understand what your point is.

      You know I agree with you that homosexuality is not a psychological disorder.

      It’s sin.

      But I’m so old fashioned. Trying to see what this has to do with the post though.

Comments are closed.

You May Also Like

Seven out of Ten Americans Believe the IRS Destroyed Emails to Hide Guilt

A Rasmussen poll released today received little attention today because of the…

He’s so good, he even thanks himself.

President Obama was doing a joint press conference with Irish Prime Minister…

Whistling and Cheering at a Memorial Service?

I have attended many memorial services.  Some have been healing, some have…

Taxed Enough Already! – A Rallying Cry For The Tea Party Movement

When you talk to most Americans about taxes, primarily what they think…