The sense of inevitability surrounding same-sex marriage rights has turned the federal judiciary into something of an informal writing contest, with judges competing to write the most memorable ruling striking down state bans on same-sex marriage.
Since the Supreme Court’s decision last summer to end the Defense of Marriage Act, which barred federal recognition of same-sex marriages, every single federal court to consider a ban on same-sex marriage or on recognizing such marriages performed out of state — more than a dozen — has ruled against it.
The flood of rulings began with Judge Robert Shelby’s opinion striking down Utah’s ban last December, and since then judges have grown indulgent with their language, self-consciously recognizing their potential role in making history. Many of the judges’ rulings in same-sex marriage cases have departed from dry legalisms to embracing emotional proclamations extolling the inevitability and justice of recognizing same-sex unions, and how doing so fits within an American tradition of extending rights to once-despised minorities. Like teenagers playfully jostling each other in a yearbook photo, these judges are reveling in their moment.
“With court after court striking down marriage bans, merely voiding another state’s discriminatory law isn’t enough,” said Adam Winkler, a law professor at UCLA. “The real reason for these flourishes, I believe, is that judges in the marriage cases know they are writing for history. There’s a long tradition of judges taking a different tone when they expect their opinions to be historically significant.”
Shelby, while striking down Utah’s ban, wrote that same-sex couples’ “desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse.”
When Judge Arenda Wright Allen struck down Virginia’s ban in February, she wrote, “Justice has often been forged from fires of indignities and prejudices suffered. Our triumphs that celebrate the freedom of choice are hallowed. We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect.”
Judge Sharon Johnson Coleman invoked Dr. Martin Luther King Jr. when striking down Illinois’ ban shortly thereafter. “Since the parties agree that marriage is a fundamental right available to all individuals and should not be denied, the focus in this case shifts from the “we can’t wait” for terminally ill individuals to “why should we wait” for all gay and lesbian couples that want to marry,” Coleman wrote. “To paraphrase Dr. Martin Luther King, Jr.: the time is always ripe to do right.”
In Tennessee, Judge Aleta Trauger wrote in March that same-sex marriage bans would “soon become a footnote in the annals of American history.” Judge Candy Dale of Idaho wrote last week that same-sex couples “suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.”
When Judge Michael McShane struck down Oregon’s ban this week, he almost sounded like he was writing a speech. “I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families,” McShane wrote. “Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other … and rise.”
Judge John E. Jones was not content to confine his views to Pennsylvania’s ban on same-sex marriage. Instead, referencing Brown v. Board of Education, the 1954 decision striking down racial segregation in American schools, he wrote that “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.” Jones titled several sections of his opinion dealing with the plaintiffs in the Pennsylvania case after wedding vows, labeling them “for better or for worse,” “for richer or for poorer,” “in sickness and in health,” and “until death do us part.”
The opinion in Brown, while historic, is restrained in its language and all the more powerful for it. Chief Justice Earl Warren was not known an ornate prose stylist; he deliberately tailored his opinions to express “the concepts of the Constitution in common language.” Yet his simple, plain language — “separate educational facilities are inherently unequal” — is no less memorable for being direct. Legal opinions needn’t be ostentatious to be remembered especially if they’re historically significant, and Warren’s blunt language may be one reason it’s easy to remember.
Drawing attention to oneself can sometimes backfire too — Justices Antonin Scalia and Elena Kagan no doubt believed they were writing historic dissents in recent environmental law and religious freedom cases, only to have to correct errors in their writing after observers pointed them out.
Not all the judges have been showing off, some of the opinions have been relatively sober. Judge Timothy Black settled for strategically bolding and underlining salient points in his opinion when striking down Ohio’s ban.
The crescendo also isn’t pleasing everyone. Edward Whelan, head of the Ethics and Public Policy Center, a religious right think tank, and a fervent opponent of same-sex marriage rights called attention to what he saw as poor writing in McShane’s opinion.
“If you’re “going down a slippery slope,” you’re not likely to be looking “to the sky to see what might fall,” Whelan wrote on Monday. “I’m not quite sure what it means for a slope to have ‘boundaries,’ but your fear would be that the bottom is a long way down or that you’ll be badly injured during the slide.” Whelan didn’t like Jones’ opinion either, writing that the George W. Bush appointed judge showed “a frighteningly Jacobin temperament.”
Perhaps more significant than the judges’ talent for turning a phrase is that all the flowery prose reveals just how firmly the judges are betting that when the time comes, history will look kindly on their decisions.
“The unbroken string of victories for same-sex marriage is giving an aura of inevitability to the Supreme Court finding a constitutional right to same-sex marriage,” said Rick Hasen, a law professor at the University of California Irvine. “It is hard to think of anything roughly analogous to this in modern times.”
Adam Serwer