Yesterday, Andrew Sullivan wrote that he believed Walker may have overreached in his decision legalizing equal marriage when he stated:
"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."
Sullivan’s argument that this was an overreach is as follows:
"I'm a strong believer that men and women are deeply different.... [but] such differences are too profound to be somehow weakened by a tiny proportion of the population being included in an institution no longer designed to perpetuate men's control over women."
I have heard others—even feminists--worry about the fact that Walker supposedly dismisses the idea of gender differences by saying that this idea is an "artifact," when it is in fact an idea very much alive within many sectors of society. But this interpretation of Walker’s argument misses the point.
Walker’s argument does not address gender differences or the lack thereof; it is instead an argument about whether government and the law can mandate gender roles. In short, it is an argument that upholds the rights of all individuals and the belief in equal opportunity for all, regardless of gender.
Without quibbling over whether "profound" gender differences exist, as a society we have been striving for over one hundred years to overcome most if not all barriers to the legal equality of individuals, regardless of gender. In the 19th century, women's public role was strictly defined--in law--by gender. They could not sit on juries and were forbidden to be lawyers, among many other things. Now, women and men are no longer forced (or precluded) by the laws of a secular government to take on roles based upon gender. We no longer make policy decisions in the public sector based on gender roles. As a society we have also come to a consensus that it is generally wrong—illegal, if you will—to discriminate within the law against people based upon their gender.
As a result of the breakdown of legal barriers to gender discrimination, the government can no longer restrict women or men to roles in society based on a pre-defined idea of gender differences. Any discriminatory laws that do remain on the books can indeed be seen as "artifacts."
Similarly, the days when marriage was defined by gender roles within the law has broken down in the course of the 19th and 20th centuries. Until well into the 19th century, a married woman lost "personhood" under the law. Under "female coverture," the law stated that within a marriage (and a family) there was one legal and political person, and that person was the male. The gradual breakdown of legal female coverture within marriage was in large part a battle to assert that, in accordance with Enlightenment ideals, the basic unit of society was the individual and not the family.
When the battle for women’s suffrage was won, the law finally recognized the Enlightenment ideal within the political sphere. With women's suffrage, it became settled law that marriage is an institution consisting of individual partners who are political and legal equals.
The argument Walker was making thus has nothing to do with whether or not there are gender differences; it is instead an argument over whether or not the government in this country legally has the right to restrict the private lives and careers of individuals based on what it perceives and defines as gender differences.
The attacks on the 14th amendment these days—whether in the guise of attacks on equal marriage or attacks on the rights of citizenship for those born in this country (by making citizenship derive from parents and not the birth of an individual)—show a profound lack of respect for the rights of individuals. It is this lack of respect—not any argument about gender differences or the lack thereof—that Walker addresses in his decision. Let’s not get sidetracked here.