Professor Franck notes that Judge Walker’s argument commits 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 that means that the conclusion doesn’t follow from the 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.