It’s not the rulings on same-sex marriage, it’s the writing
What’s left to complain about when you realize you can’t complain about the legal reasoning of decisions allowing same-sex marriage? The writing in the rulings by district judges who’ve struck down existing bans.
That’s the tack taken by Branden McGinley in First Things, who seems to be less upset by the substance of the rulings than the style. It’s a thin reed on which to hang an appeal to those like-mindedly distressed by the domino-like fall of state laws restricting marriage, which may explain the flailing common to last-gasp entreaties. When all else fails, suggest there are too many notes.
Judge Michael J. McShane [Oregon] 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… It sounds more like a séance than a call to action. …
Not to be outdone, though, Judge John E. Jones [Pennsylvania] 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.
Would one, now? One would thus imagine that if the writing in the rulings did rise to meet McGinley’s subjective criteria for creativity (unspecified, but no doubt rigorous), then he would gladly confer his approval in a post just as carefully composed, with excerpt and metaphor just as artfully arrayed in support of his opinion.
But then, he wouldn’t have quite the same opportunity to impute unseemly motive. What he damns as “saccharine” writing isn’t just a surface flaw marring an otherwise reasoned conclusion, but the product of the same-sex marriage movement “finding itself in an awkward position,” caught, he says, between the excitement of being in the vanguard and acceptance by the culture at large. There is now
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….
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. …
Frustration over the style of rulings can be understandable—as, say, when a justice employs a construction like “the way to stop discriminating on the basis of race is stop discriminating on the basis of race.” Simplistically expressed and pithily dismissive, it exhibits little of the eloquence we seek in court opinions, while, one would imagine, earning its share of conservative plaudits. But at least critics of this statement use it to make their argument about the legal reasoning overall; McGinley, on other hand, in absence of tenable, substantive critiques, has nothing left to fall back on but stylistic ones. When you’ve run out of ways to argue against the message, you may as well train your dwindling store of fire on the messengers, who—with judges McShane and Jones the latest—are continuing to raise the number of states in which same-sex marriage is now or will soon be legal.
About the Author
Dominic Preziosi is Commonweal’s digital editor.