Same-Sex Marriage and the Assault on Moral Reasoning

by Matthew J. Franck
August 6, 2010

Even same-sex marriage advocates should recognize the bad logic in the ruling overturning Proposition 8.

It is something of a consolation, albeit a small one, that the best arguments advocates for a constitutional “right” to same-sex marriage can muster are so transparently bad. Disconnected from nature, from history, from the canons of legal reasoning, and even from the standards of logic itself, their arguments betray themselves at every turn, as acts of the will and not of reasoned judgment. When the advocate advancing the arguments wears a black robe and sits on the federal bench, of course, even falsehood and fallacy have a decent chance of ultimate victory.

Such an advocate is Judge Vaughn Walker of the U.S. district court in San Francisco. After two and a half weeks of trial in January, and a day of closing arguments in June, he finally delivered his ruling and opinion in Perry v. Schwarzenegger on August 4, overturning California’s Proposition 8, an amendment to the state constitution adopted by the people in November 2008, declaring that “only marriage between a man and a woman is valid or recognized in California.” The California Supreme Court, in May of that year, had overturned an earlier popular referendum protecting marriage (that had only statutory status) on grounds that it violated the state constitution. And so the people of the state, against the odds and facing elite opposition, amended that constitution just six months later. Judge Walker has shifted the ground of the controversy to the federal constitution, and has flung wide the door of the federal courts to embrace (he hopes) some of the worst sophistical knavery that has been seen in quite some time in the pages of American jurisprudence. the rest

Perhaps here, in this nadir of absurdity, we have found the real fundament of the judge’s thinking. Citizens who wish to defend the institution of marriage as they and their families have known it all their lives, and for countless generations, are irrational bigots. Worse still, if they are moved to act because of the union of their faith with their moral opinions, they are crazy religious folk, bent only on harming others whom they merely “dislike” on grounds that cannot possibly be defended before a tribunal of right-thinking people. And those others, the same-sex-couple plaintiffs? They must be rescued from the “harm” to their feelings that results from their exclusion from a historic civil and moral institution that has never hitherto been thought to have been built for them.