I’m on the road through the weekend, so I’m just going to offer a few quick comments on the ruling late yesterday evening by federal district judge Arenda L. Wright Allen enjoining the state of Virginia from enforcing its marriage laws.
Judge Allen rules that the definition of marriage as a union between a man and a woman is subject to, and fails, strict scrutiny under the Due Process Clause (pp. 19-33) and that it fails rational-basis scrutiny under the Equal Protection Clause (pp. 34-38). She stayed her ruling pending appeal (p. 41).
Allen’s ruling is no surprise, as she had rather clearly telegraphed the result. The fact that she raced to issue the ruling very late in the evening (after 9 p.m., according to one account) even as she stayed it pending appeal is very odd. That fact, together with the opinion’s often pompous prose, suggests that Allen’s ruling is much more an exercise in judicial vanity — a race to make history — than a sober and careful analysis.
The rush shows: As Josh Blackman points out, in her opening paragraph Allen misattributes to the Constitution the statement in the Declaration of Independence that “all men are created equal.” More fundamentally, she never confronts the reality that she is redefining what marriage is. Thus, for example, when she states, “In 1997, Virginia law limited the institution of civil marriage to a union between a man and an woman” (p. 9 (emphasis added)), she seems not to understand that that supposed limitation inheres in the very definition of marriage (which, of course, prevailed long before 1997).