A Fine Argument for Gay Marriage, but a Flawed Legal Opinion

He sounds more like a sociologist writing in 1968 than a jurist writing in 2010. Back then, college faculties (and the popular culture) were full of scholars and others proclaiming that the differences between men and women were merely social constructs.

In the intervening years, however, a whole host of studies from neuroscientists, psychologists, sociologists, and anthropologists have found that sexual differences are real. In his 2002 book, The Blank Slate: The Modern Denial of Human Nature, Harvard Psychology Professor Steven Pinker observed: "Neuroscience, genetics, psychology, and ethnography are documenting sex differences that almost certainly originate in human biology."

Evolutionary biologists Richard Wrangham and Dale Peterson have even found these differences in our primate "cousins." In her recent book on the male brain (a companion to her 2006 study of the female brain), Psychiatry Professor Louann Brizendine writes: "Male and female brains are different from the moment of conception."

Instead of notions of difference between the sexes being antiquated or discredited, they have in fact been confirmed by science.

On this point though, the science notwithstanding, Judge Walker might have a case had enough states ratified the Equal Rights Amendment to include it in the Constitution. He bases casual dismissal of the sexual difference issue neither in the actual language of the Constitution nor in the latest findings of science.

In sum, while Judge Walker makes some fine arguments for gay marriage in his decision, his constitutional scholarship is mighty sloppy. Because the judge dismisses "the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review," Carpenter believes "he invites a higher court to undermine it."

I agree. Gay activists may be giddy today, but they may be headed for future disappointment as they were when the California Supreme Court mandated that the state recognize same-sex marriages, only to find that decision overturned by Proposition 8. One judge may have overturned that popular provision today, but other judges will review his findings and will surely adopt a standard of review more closely rooted in the actual text and original meaning of the federal Constitution than in long-since discredited notions about the social construction of sexual difference.