Here’s an excerpt from my essay at Public Discourse, “Same-Sex Marriage and the Assault on Moral Reasoning“:
Judges, especially those of the lower courts, know that their innovations in constitutional law are best armored by an appearance of continuity with history and precedent. And so Judge Walker begins by reminding us that the right to marry has long been considered “fundamental” in our jurisprudence. And so it has, for those—namely couples of men and women—considered capable of entering into the relationship of marriage. Are the same-sex plaintiffs in the Perry case asking then for a “new” right, or for admission without unjust barriers of discrimination to the enjoyment of an old one? At first glance it looks like the first of these is the case. But any road that leads to the second conclusion will be smoothest for the judge-advocate’s purposes, since it will provide that much-desired appearance of continuity with the law’s long history.
Yet how to pave that road? By distinguishing between the “core” attributes of the institution of marriage and those that are only incidental, those historical attributes that have been abandoned without harm to what is essential about marriage. Many American states, for instance, once considered race an important attribute, so that racial difference was a barrier to the formation of a marriage. But race is now universally understood not to matter, and the Supreme Court even said in 1965 that the Constitution did not tolerate such a legal rule.
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?
For an explanation of the fallacy in Judge Walker’s reasoning, see the rest of the essay here.