Professor Hadley Arkes says the judge's reasoning was weak.
Judge Tauro accomplishes this task by essentially presupposing the most decisive points that he should have been obliged to establish in an argument. A good third of the judge’s opinion was spent in showing all of the benefits that would be denied to spouses of same-sex couples in the federal government. They would be denied those benefits simply because Congress, which has the sole authority to legislate the federal code, stipulated that every reference to marriage in that code would be a reference to a legal union of a man and a woman. And yes, the consequence of that stipulation in the meaning of marriage does mean that no companion of the same sex can have the standing of a spouse to receive benefits in the form of retirement, pension, medical care, to the extent those benefits are conferred on spouses and members of the legal “family.”
But to compile the litany of benefits foregone is not to make the case that they have been withheld wrongly, without justification. An argument must be supplied. Judge Tauro wanted to argue that the withholding of benefits was illegitimate because the distinction between a marriage composed of a man and a woman, and a marriage composed of people of the same sex, is an illegitimate, unjustified distinction. For Judge Tauro that distinction treats differently people who are in the same situation — i.e., people who claim to be married, as indeed they may claim right now under the laws of Massachusetts.
I find it curious that advocates argue there is no rational basis for defining marriage as one man and one woman. Ignored are the facts that children do do better with their mother and father. That homosexual unions are notoriously unstable and don't provide a good environment for raising children. That society's weaken and decline when the sexual mores are loosened. That homosexual behavior is inherently unhealthy and granting it marital status is putting the state's stamp of approval on unhealthy activities. All conveniently ignored.
Expect another shot at marriage when the federal judge hearing the challenge to Prop 8 in California comes out with his expected pro-homosexual marriage ruling shortly. These decisions will no doubt help make marriage a political issue in the fall's elections across the country.