At the end of his recent opinion striking down Pennsylvania’s ban on same-sex marriage, U.S. District Judge John E. Jones III wrote: “We are a better people than what these laws represent. It is time to discard them into the ash heap of history.”
That quotation has popped up a lot in commentary on the decision. Readers of one website were urged: “Lift a glass to a Republican whose heart is in the right place — Judge Jones.”
This week, another Republican-appointed judge, Supreme Court Justice Anthony M. Kennedy, waxed similarly lyrical in an opinion rejecting Florida’s criteria for determining whether a prisoner is intellectually disabled enough to be spared the death penalty.
“Florida’s law contravenes our nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world,” wrote Kennedy, who is often mocked for his lofty phrase-making. (A passage in an abortion opinion signed by Kennedy and two other justices said that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In a later case in which Kennedy cited that passage, Justice Antonin Scalia referred to it as the “famed sweet-mystery-of-life passage.”)
My initial reaction to both purple passages was a variation of the line associated with Sgt. Joe Friday of “Dragnet” fame. But instead of “Just the facts, Ma’am,” I wanted to say, “Just the law, Your Honor.”
Jones, I thought, should have been content with explaining why the Pennsylvania law violated the due process and equal protection clauses of the 14th Amendment. Kennedy should have stopped after explaining why Florida’s rigid IQ score cutoff for fixing intellectual disability amounted to cruel and unusual punishment in violation of the 8th Amendment.
But even as I cringed at these judges’ oratorical embellishments, I had to admit that I had no problem with other judicial opinions that reached for the rhetorical heights and made observations about the law — and life — that weren’t strictly required by the accompanying legal analysis. I’m glad, for example, that in a 1927 case, Justice Louis Brandeis wrote: “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women.” Nothing Kennedy or Jones wrote is that memorable.
And sometimes judges are wiser to avoid even well-executed eloquence. With a politically charged issue such as same-sex marriage, a judge who decides he must set aside a duly enacted law should strive to emphasize that he’s doing so because of his reading of the Constitution, not out of emotional identification with a cause.
I decided to compare Jones’ opinion in the same-sex marriage case with Chief Justice Earl Warren’s majority opinion in Loving vs. Virginia, the 1967 case in which the Supreme Court struck down a ban on racial intermarriage. (Jones cites Loving in his opinion.) Next to Jones’ opinion, Warren’s is flat and technical.
Instead of declaring that bans on some marriages belong on the “ash heap of history,” Warren’s opinion ends this way: “The 14th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the state. These convictions must be reversed.”
Critics of the Loving decision might (and did) question Warren’s reading of the Constitution, but they couldn’t argue that he was ruling based on his heart.