A district judge in Pennsylvania ruled yesterday that the state is obligated to recognize same-sex marriages. Given the sensitivity of the issue, the judge must have taken extra caution to present a sober, impartial analysis of the relevant case law, right? Of course not. His decision reads like a press release from a gay-rights organization, replete with emotional appeals, loaded terminology, and rhetorical flourishes. While reading the first paragraph of the decision, keep in mind that the author is supposed to be a neutral arbiter of the law:
Today, certain citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love. Nor does Pennsylvania recognize the marriages of other couples who have wed elsewhere. Hoping to end this injustice, eleven courageous lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples have come together as plaintiffs and asked this Court to declare that all Pennsylvanians have the right to marry the person of their choice and consequently, that the Commonwealth’s laws to the contrary are unconstitutional. We now join the twelve federal district courts across the country which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage.
This is legal reasoning? It gets worse. One section has cutesy subheadings that mimic wedding vows — “in sickness and in health,” “until death do us part”, etc. — and includes emotional anecdotes from the plaintiffs’ lives. In his conclusion, the judge speculates that, “In future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage.” And his last sentence is a moral exhortation: “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”
No one could read this decision and think the judge is merely following the dictates of the law wherever that might lead. After seeing similar language in a recent Supreme Court case on religious freedom, I wondered why judges flout objectivity. One would think that they’d stick to dry, legalistic language as a way to assure the public that they are acting as referees rather than advocates.
Slate’s Mark Joseph Stern has an answer: “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.”
He’s probably right. But in what other discipline is inserting one’s personal politics into a technical analysis celebrated rather than discouraged? In five years of graduate school, I never had an economics professor tell me, “This data analysis needs to be dressed up with some philosophizing. And would it kill you to add a little moral preening?”
We need more judges who want history to remember them for their objectivity and professionalism, not for their philosophical bombast.