February 14, 2014
On Judge Allen's opening paragraph in the Virginia same-sex marriage case of Bostic v. Rainey
In a late-evening decision issued on the eve of Valentine's Day, Judge Arenda Wright Allen of the United States District Court for the Eastern District of Virginia granted a preliminary injunction requiring the issuance of marriage licenses to two same-sex couples. After an epigraph (the only one I can recall having seen in the thousands of judicial opinions that I have read), the opinion in Bostic v. Rainey opens with a moralistic tone fit for echoing in the media:
A spirited and controversial debate is underway regarding who may enjoy the right to marry in the United States of America. America has pursued a journey to make and keep our citizens free. This journey has never been easy, and at times has been painful and poignant. The ultimate exercise of our freedom is choice. Our Constitution declares that "all men" are created equal. Surely this means all of us. While ever-vigilant for the wisdom that can come from the voices of our voting public, our courts have never long tolerated the perpetuation of laws rooted in unlawful prejudice. One of the judiciary's noblest endeavors is to scrutinize laws that emerge from such roots.
And sure enough, the New York Times quotes the sentences about the Constitution providing that all men are "created equal." Neither the judge nor the New York Times reporter appears to recognize [have recognized] that the Constitution does not actually contain this language about being "created equal." That is in the Declaration of Independence. This is a minor error, in one sense, but it unwittingly encapsulates the confusion between morality and law that permeates thinking in this area.
The Fourteenth Amendment contains an Equal Protection Clause, and it provides for a form of equality in its birthright citizenship clause. But it is precisely that citizenship right that is undermined by Judge Allen's transmutation of controversial moral and political conceptions of equality into a form of positive law binding on the parties in this case. Although Judge Allen posits an individualistic conception of "choice" as "[t]he ultimate exercise of our freedom," there is an alternative conception of self-rule in a political community that could also lay claim to the label of "[t]he ultimate exercise of our freedom" in the American legal tradition. That is the exercise of freedom set aside by Judge Allen's decision. Contrary to Judge Allen's description of the debate over marriage as a debate about "who has the right to marry," a framing that presupposes an understanding of what "the right to marry" is, the debate is better described as a debate about what marriage is and what marriage ought to be. And decisions like Judge Allen's deprive states as political communities of the messy and difficult process of self-government through which changes in legal institutions like marriage should be made.
I voted for the Virginia constitutional amendment on marriage. It was a difficult vote for me, not because of my understanding of marriage but because of worries about "constitutionalizing" in a pluralistic and changing society and the legal effect of some of the broader language in the amendment. While my self-knowledge is imperfect, I did not then and do not now view my vote as "rooted in unlawful prejudice." There is nothing noble about Judge Allen's labeling of my vote and the votes of others like me in this way.
[UPDATE: The opinion has been amended.]