Policy: Law

The soaring political rhetoric of the Virginia marriage decision

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Politics,Beltway Confidential,Opinion,Virginia,Byron York,Gay Marriage,Law

A Washington Post news account called it "forceful and sometimes grandiose." A Virginia conservative group called it an "emotional outburst." It's true: U.S. District Judge Arenda L. Wright Allen's timed-for-Valentine's-Day decision throwing out Virginia's laws and constitutional amendment defining marriage as the union of one man and one woman is filled with the sort of lofty, impassioned rhetoric heard on the campaign trail and fundraising dinners for liberal activist groups.

Here are a few samples from the decision's beginning and end. Wright Allen began by expressing a measure of respect for the voters of Virginia but went on to explain why she must overturn the will of the majority (57 percent) who, Wright Allen argued, acted with "unlawful prejudice" when passing Virginia's marriage amendment in 2006:

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 Declaration of Independence recognizes 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.

Later in the decision, the judge portrayed herself as a "steady beacon" for "ever-more perfect justice."

Notwithstanding the wisdom usually residing within proper deference to state authorities regarding domestic relations, judicial vigilance is a steady beacon searching for an ever-more perfect justice and truer freedoms for our country's citizens. Intervention under the circumstances presented here is warranted, and compelled.

After delivering the substance of the decision, Wright Allen closed with rhetorical flourishes reminiscent of the president who appointed her to the bench, Barack Obama:

Ultimately, [declaring Virginia's marriage law unconstitutional] is consistent with our nation's traditions of freedom. "[T]he history of our Constitution … is the story of the extension of constitutional rights and protections to people once ignored or excluded." [United States v. Virginia, 518 U.S. 515, 557 (1996)]. Our nation's uneven but dogged journey toward truer and more meaningful freedoms for our citizens has brought us continually to a deeper understanding of the first three words in our Constitution: we the people. "We the People" have become a broader, more diverse family than once imagined.

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.

Almost one hundred and fifty four years ago, as Abraham Lincoln approached the cataclysmic rending of our nation over a struggle for other freedoms, a rending that would take his life and the lives of hundreds of thousands of others, he wrote these words: "It can not have failed to strike you that these men ask for just … the same thing — fairness, and fairness only. This, so far as in my power, they, and all others, shall have."

The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court's power, they and all others shall have.

Wright Allen released the decision late Thursday night, although it did not concern the sort of urgent matters that sometimes result in late-night court decisions. "Judge Wright Allen's decision was marked by haste," the New York Times reported. "It was issued late in the evening, which was curious in light of the fact that it was stayed pending appeal. And its first paragraph, since corrected, initially attributed the phrase 'all men are created equal' to the Constitution, though it is in the Declaration of Independence."

No matter the rush, no matter the political rhetoric, Virginia now has a court decision invalidating the voters' will on the issue of marriage. You can read the whole thing here.

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