Like many of you, hopefully, I had a lovely Valentine’s Day. While it may not have been a night at the opera, it was precisely the kind of day I wanted. And it was complete with Valentine’s Day greetings that made me smile, that made me feel loved, and even some that made me laugh out loud. I’ve never been a particularly big fan of Valentine’s Day, but I am a big fan of love. And as I grow older I am coming to realize that anything that encourages people to openly express their love for each other can’t be all bad.
It is in the spirit of this post-romance haze that I thought I’d write about just this: love. We do not often think of love when we think of the law, but in some ways I think we may be wrong in this. There is a great deal of love written into the law and its interpretation but we miss it in the humdrum legalism. But this week in Virginia the Bostic v. Rainey decision was announced, and it would be impossible not to comment on the romance of it.
There are a thousand things I could comment on in this decision. In the most recent decision to strike down anti-gay marriage laws, the opinion is straight-forward, accessible, and seems to be written for anyone to read. Arenda L. Wright Allen has written an opinion that most educated people could make sense of, if they took the time. The legalese is not particularly taxing and the reasoning is spelled out.
And she doesn’t pull any punches, either. If something is ridiculous, she says it is ridiculous. She spends little time and energy doing away with the “protecting the children” arguments, even less on the “pro-creation” arguments, and while she does give a few pages to the “tradition” arguments, she doesn’t seem particularly impressed.
What I want to address is the public response to the opinion, and why I am a little surprised. I have heard over and over again that this is the most beautifully written opinion in quite some time. I put this opinion aside and used it as a reward for myself after getting some grading done because I had heard it was so lovely and I would be so moved that I wanted to save it for when I could devote some time to it. And while certainly it wasn’t poorly written, I was somewhat let down. The prose was clear, but not lilting. The reasoning was solid, but not grandiose. It was a good, clear, opinion.
But on second thought, perhaps I have sold it short.
What it does do, much more so than any opinion I have read in quite some time, is pull together all the best of what we have to offer into one place. It cobbles together all the defenses of love and liberty in so many other opinions and crafts one cogent argument. The section in which she defends marriage as a basic liberty is at once beautiful and unassailable, for it is nothing but a string of arguments from cases that have come before that defend marriage as a right in poignant and cutting language. The opinion is beautifully written because it lets the law and precedent do the talking for it. She lists more than ten cases in one page that define marriage as a fundamental right. She has no real need to create a new argument.
We have written love down and established it as law. It is our love of freedom, our love of liberty, and even our romantic love. We have called it for what it is. But there are those who would ignore the law in favor of their own prejudices and fears. And there is nothing sacrosanct about that.
To be fair, there is one section of the opinion that, in the future, will be shared and quoted as the kind of poetic language we do not usually find in legal opinions. I’d like to share that with you:
“…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 as 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.”
So perhaps I should not slight Arenda L. Wright Allen and her prose. She was wise enough to let the love that was already written into the law speak out on its own. She recognized there was no need to wax prolific when the answers were there, in the constitution and the case law. She had no need to invent a case for love. It was already there.
There is great romance in the law. Those looking to stamp it out, eliminate some of it, or keep some from taking part in it aren’t protecting marriage. Marriage doesn’t need their protection. Marriage is such a sacred and blessed institution that people are fighting to take part in it. People are putting everything they have on the line to be married. An institution like that doesn’t need protecting, it can take care of itself. So why fight to keep the law from fulfilling itself? Let us all love. The world gets better that way.