The proposition 8 ruling and gender roles

J-Bro and Balk have called attention to some extremely important bits of Judge Walker’s ruling. This deserves not to get buried in the comments, so I’m giving it its own post.

Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in
order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

J-Bro, who has a law degree, notes that “The court is casually asserting that CA has “eliminated all legally mandated gender roles” apart from within marriage. This isn’t a holding of the opinion, because it’s not the direct point, but it’s a very strong statement, and depending on where this case goes could be used in the future against any differential state treatment in CA based on gender.”

For the full ruling, go here.

6 thoughts on “The proposition 8 ruling and gender roles

  1. I don’t know what the philosophical term is for a statement that disproves itself, but this may look like one: I need to disclaim here that I am not a lawyer. I have a Juris Doctor degree (American law degrees are graduate degrees), so I have the training to be a lawyer, but I have never taken the Bar and thus am not licensed to practice law.

  2. Excellent, multi-participant expert discussion of the ruling over at The Volokh Conspiracy (http://volokh.com), in case anyone’s interested. A number of the profs discuss the significance of the purported factual findings in Judge Walker’s opinion.

  3. […] Besides just being happy that Wednesday’s ruling on Prop 8 was, well, on the side of reason and justice and kindness, I keep getting thrilled by the language of Judge Walker’s ruling as it shows up in pieces on the blogs I read. For instance, how cool is this?: the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life. [via Feminist Philosophers] […]

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