In the past two days, federal courts have redefined marriage in two states: Oregon and Pennsylvania. No one should be surprised by this; though the Supreme Court’s decision in Windsor v. U.S., which struck down the federal Defense of Marriage Act, could be shrewdly navigated so as to permit state definitions of marriage to survive scrutiny, it was unlikely that any federal judge would bring attention to himself by defying the accumulating mass of pro-same-sex marriage rulings.
On the other hand, it is proving very likely that federal judges will try to bring attention to themselves by authoring decisions designed more for the saccharine viral content website Upworthy than the U.S. Reports. The efforts of U.S. District Judges Michael J. McShane and John E. Jones III in Oregon and Pennsylvania, respectively, serve as excellent distillations of the state of the same-sex marriage movement.
The movement for same-sex marriage finds itself in an awkward position. On the one hand, a great part of the appeal of the movement is the sensation of being a member of the historical vanguard. On the other hand, it’s hard to imagine a more mainstream and culturally powerful cause than that for gay marriage. This provides, in the short term, an extraordinary attractiveness: the opportunity to earn progressive plaudits with no risk to one’s social standing. More than that, this sets up a system of incentives that rewards the most emotionally striking rhetoric, whether in favor of same-sex marriage or against its opponents.
This has played out not just on Facebook and Twitter, but in the courtroom. The decisions elevate the cultural and legal conventionality of same-sex marriage, but they are also sprinkled with painful purple prose that seems designed to earn media acclaim and to recapture the fading moral urgency of the cause.
Judge McShane opens his opinion with a lengthy discussion of just how normal the plaintiffs are. They love one another. They’re in a committed relationship. They’re financially successful. They pay taxes. Meanwhile, the “state affords the same set of rights and privileges to Tristan and Isolde that it affords to a Hollywood celebrity waking up in Las Vegas with a blurry memory and a ringed finger.” The argument (such as it is) is downright conservative: Judge McShane, à la Andrew Sullivan, sets up same-sex marriage as a bastion of moral and civic virtue against the squalor of the wider culture.
This conservatism is also represented in the legal argument. In the wake of decisions such as Romer v. Evans, Lawrence v. Texas, and Windsor, Judges McShane and Jones rely heavily on precedent. We are no longer in the days when precedent is an obstacle to be overcome in order to vindicate “LGBT rights.” These decisions position themselves, rightly or wrongly, as part of a new constitutional tradition, not in opposition to an old one.
Legal decisions that favor culturally ascendant concepts by way of appeals to precedent are usually not terribly exciting. Again, no sane person expected the Oregon or Pennsylvania cases to come out differently than they did. In Portland, no one even defended the state’s marriage laws. In Harrisburg, the governor’s office of general counsel would have preferred to walk on hot coals. And yet both decisions have the obnoxious feeling that they have the weight of History on their shoulders.
Judge McShane has earned praise for his gratuitous five-paragraph closing, during which he tries frantically to climb out of the bourgeoisie and back to the vanguard. He describes the linear progress of the LGBT movement, and gently pats same-sex marriage opponents on the head, saying that “it is not surprising” that we want to place our “religious or moral objections” in the law. He wraps up the opinion with all the faux profundity of a self-indulgent Advanced Placement essay:
Where will all this 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.
It sounds more like a séance than a call to action.
Not to be outdone, though, Judge Jones reached into his (apparently quite shallow) bag of clichés and emerged with this closing: “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.” One would imagine that a movement with such apparent moral force would be blessed with more creative scribes.
Slate blogger Mark Joseph Stern, who described McShane’s mess as “eloquent” and Jones’s platitude as “beautiful,” did manage to pin down exactly what’s happening here: “These judges know this is their shot at a very specific kind of immortality, and they seem to be in subtle competition with each other to write the one marriage equality opinion that history remembers.” In other words, they’re doing the major league version of what your politically apathetic ex-roommate does when she posts encomia to “marriage equality” with BuzzFeed News links on Facebook.
This is pathetic, but understandable. Purple prose like McShane’s and Jones’s flatters the moral vanity of same-sex marriage supporters, who eagerly await each new affirmation. For example, BuzzFeed reporter Chris Geidner’s tweet including Jones’s closing bromide has been retweeted more than a thousand times.
Of course, though, this drive to reach the rhetorical summit comes at a cost: blindness to the rationality of anyone who would disagree. And on this, for once, Judge McShane said it best, as his flourish boomerangs: “With discernment we see not shadows lurking in closets or the stereotypes of what was once believed . . .”
“Stereotypes of what was once believed” are exactly what his opinion, and Jones’s opinion, and countless other hymns to equality trade on. And as same-sex marriage’s mainstream momentum continues to grow, with it will grow the incentive to reinforce those stereotypes, if only to maintain the pretense that the movement is a righteous crusade against a malicious Other.
Brandon McGinley is a 2010 graduate of Princeton University. He writes from Pittsburgh, where he works for the Pennsylvania Family Institute and lives with his wife and daughter.
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