Linda McClain of Feminist Law Professors continues a theme that’s been developing in light of the recent Prop 8 findings about marriage

I would like to invite the attention of feminist scholars and anyone else interested in the marriage debate to Judge Walker’s extensive findings of fact as well as his conclusions of law about the irrelevance of gender to marriage and parenthood.

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To that end, Linda Greenhouse, an experienced analyst of the U.S. Supreme Court, posted (last week) an insightful commentary “Hiding in Plain Sight,” in which she praises Judge Walker for “his unveiling of a central hiding-in-plain-sight fact: the change in society’s expectations about what partnership in a marriage entails.”

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Without making any predictions, she nonetheless takes the position that if Judge Walker’s opinion survives on appeal, it will be on the basis of his conclusion that to extend marriage to gay men and lesbians will not “redefine marriage,” since marriage has already undergone profound change “as the result of forces completely independent of federal judges.”

She said it here.

Continuing a theme she developed in a previous post (key point: whereas California once had myriad laws specifically related to the different sexes of married individuals it had repealed every one except the underlying requirement that there be two sexes in a marriage), McLain examines Judge Walker’s findings that outcomes for children of same-sex couples are no different than they are for opposite-sex couples.

The bottom line, though, is that Judge Walker’s ruling has basically validated Stephanie Coontz’s thesis in Marriage, a History, which was originally subtitled “From Obedience to Intimacy, or How Love Conquered Marriage.” I’m pretty sure Coontz would say Walker’s ruling was the final blow against marriage as a key vehicle of the original Patriarchal patriarchy. Under capital-P Patriarchy, you may remember, marriage is not considered “a union between a man and a woman.” Instead it’s a union between families, generally arranged by the eldest living members of the respective families for the purpose of cementing economic, social, or political interests.

What makes McClain’s point about family law is that the Walker decision also suggests that the capital-P Patriarchal intention for children in real “traditional” heterosexual marriage — sealing the union with blood-relations — has been superseded by what modern opponents of same-sex marriage only imagine was the real intent: creating a safe, nurturing environment in which children can grow to adulthood.

All-round good stuff in that ruling. Although (update!) let’s hope they’re upheld on appeal!