Judge Walker’s Sheerest Ipse Dixit

Another interesting article produced the Witherspoon Institute’s Public Discourse : Constitutional expert Matthew J. Franck’s Same-Sex Marriage and the Assault on Moral Reasoning . I mention the article in part because a legal scholar on our board calls it “by far the best op ed I’ve seen on the Prop 8 ruling.”

Franck notes, as did Joe Carter in his First Thoughts post on the Proposition 8 judge’s effective rationale for polygamy, that Judge Walker’s reasoning is quite bad.  He writes:

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.

He goes on to explain this.  For example,

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 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.