"The equalization of status is not the obliteration of difference"

Matthew J. Franck writes in "Same-Sex Marriage and the Assault on Moral Reasoning" about the bad logic that puts Judge Walker's ruling on Proposition 8 in California in question.  Best when read in its entirety here, but important points I think are worthy to be quoted in this blog:

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.

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 ofequal 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. ...

Once it would have been thought tostrengthen the case for a law, that it rested on the moral views of the lawmakers, if no countervailing right against being governed by such views could be adduced. And it would have been a matter of no legal suspicion whatsoever that the moral views informing a law found confirmation in widely held religious views as well. For such moral principles are not articles of faith, in the sense of being specially revealed to the elect or the faithful. They are the conclusions of trains of reasoning about right and wrong, and about human ends and the fitness of the means to them. In language we might borrow from Plato’s Euthyphro, the moral norms that govern marriage are embraced by the pious not because they are mysterious commands of an inscrutable divine will, but because they are rationally knowable as good in themselves, and for this reason find support in the dictates of faith as well. ...

But perhaps he can be taught a lesson about the violence he has done to the rule of law, and to the United States Constitution.  His fellow citizens, more accustomed than he to governing themselves by canons of reasoned judgment, may have to teach the lesson, if his superiors on the bench will not do so.