In a recent essay, Matthew J. Franck director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in New Jersey, devastates much of the legal reasoning of Judge Walker’s legal reasoning in the San Francisco Prop 8 case.
Of particular interest are two claims made in the opinion, the first being that, “gender no longer forms an essential part of marriage”. As Franck note:
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.
Another critical aspect of this statement is that it is a tacit acknowledgement of the purpose of marriage – that gender considerations were essential to the origination of marriage. And why would that be? Quite simply it is because it is the relationship of opposite genders that is essential to procreation and the successful creation of a family wherein children can be born, raised, and reach their fullest potential. In stating that gender is no longer essential to marriage, Judge Walker isn’t expanding marriage, he is denying its value and validity.
The second declaration Franck addresses is the statement by the Judge is that, “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” in his Findings of Fact section of his decision:
But for Judge Walker there is an odor of illegitimacy about merely “moral” views expressed in legislation, especially when morality finds support in religion. Thus he declares that Proposition 8 expresses only a “private moral choice,” not a considered public morality. And thus in his tendentious “findings of fact” (about the purpose of which, see this editorial in National Review), he makes the astonishing claim—purporting to be a fact found at trial, not a judgment of his own—that “religious beliefs that gay and lesbian relationships are sinful . . . harm gays and lesbians.”
Beside the fact it is impossible to evaluate the reasoning of the thousands of voters who voted for the Proposition 8 (which was the original basis of the trial, completely missed in the final outcome), this claim sets a very frightening precedent – namely it sets the state directly against a fundamental religious view in such a way that lays a clear foundation for future religious persecution. If the state can annul laws based on their perceived association with religious belief, then Christians will be increasingly denied a voice as citizens in this society. Judge Walker’s opinion not only relies on spurious reasoning, but is threatening to essential religious liberties.
One can only hope the contagion of such reasoning doesn’t spread beyond California.