An informal writing competition? Judges write with flourish in striking down gay-marriage bans

Federal judges striking down bans on same-sex marriage appear to be writing for a larger audience.

A story by MSNBC quotes from the opinions and concludes they have turned into an informal writing competition among judges vying to write the most memorable decision. “Like teenagers playfully jostling each other in a yearbook photo,” the story says, “these judges are reveling in their moment.”

It all began with the opinion (PDF) by U.S. District Judge Robert Shelby striking down Utah’s ban on same-sex marriage, MSNBC says. The desire of same-sex couples “to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse,” Shelby wrote.

The article provides other examples, including these:

• U.S. District Judge Arenda Wright Allen, striking down Virginia’s same-sex marriage ban: “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.” (Wright Allen issued a revised opinion after critics said she made an apparent error when she wrote, “Our Constitution declares that ‘all men’ are created equal.” The revised opinion reads, “Our Declaration of Independence recognizes that ‘all men’ are created equal.”)

• Judge Michael McShane, striking down Oregon’s ban on same-sex marriage: “Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other … and rise.”

UCLA law professor Adam Winkler spoke with MSNBC about the opinions. “The real reason for these flourishes, I believe, is that judges in the marriage cases know they are writing for history,” he said. “There’s a long tradition of judges taking a different tone when they expect their opinions to be historically significant.”

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