Perspective: “I DO.”
Susan B. Anthony was a strict constructionist. When she read the 14th Amendment, she concluded that she was a person born in the United States, therefore a citizen, and no state could deprive her of liberty without due process or deny her equal protection of the law. So, in 1872, she voted. She was arrested, and soon learned that the judiciary was not composed of strict constructionists. For her, the 14th Amendment was a nullity.
As a judge, I start with the plain meaning of words in statutes and constitutions, and try to learn what the words meant when they were written. If the language is not clear, then I try to understand what the authors wanted to accomplish. Unless there is contrary evidence, I assume the authors were fair-minded, pragmatic people. Finally, I remember that I’m not an advocate.
Legal scholars may debate whether Justice Kennedy was a strict constructionist when he wrote a majority opinion, holding that same-sex couples are persons who cannot be deprived of liberty without due process, nor denied equal protection of the law. No doubt the 14th Amendment’s authors did not have same-sex couples in mind, any more than they anticipated women might be considered “persons.”
Justice Kennedy and other judges who wrote landmark decisions upholding the right of same-sex couples to marry may be viewed as strict constructionists. But their decisions make clear the fact that they were also advocates – for the institution of marriage. Legal purists may fault them for that, but I am grateful for the poignant language in their decisions. Using their words, I now can perform weddings extolling “the transcendent importance of marriage,” its “nobility and dignity” and noting how it is “essential to our most profound hopes and aspirations.” I never could have crafted such language myself.
This summer, on a mountaintop in Utah, two of my dearest friends will exercise the liberty and equal protection guaranteed to them by the 14th Amendment. When they asked if I wished to officiate, I said, “I do! And I have the perfect wedding script, thanks to strict constructionists.”
This signed article was written at The Daily Record’s invitation to underscore the theme of Law Day 2017.
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