Virginia Same-Sex Marriage Ruling Confuses Declaration of Independence with Constitution

by Frances Martel 

A federal judge struck down Virginia's ban on same-sex marriage today, an historic ruling with especial resonance on Valentine's Day. Except the history of the historic ruling isn't exactly up to par: Judge Arenda Wright Allen claimed the Constitution declares that "all men are created equal," which is, instead, the first line of the Declaration of Independence.

"Our Constitution declares that 'all men' are created equal. Surely this means all of us," Judge Allen wrote on the first page of her opinion. That line opens the second paragraph of the Declaration of Independence and appears nowhere in the Constitution. The line, in which Thomas Jefferson, with signature flourish, borrowed the words of theorist John Locke: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
It is a centuries-old debate among historians and political/legal theorists alike whether Jefferson, as a slave-owner, meant "all of us" human beings in that statement.

The Constitution begins with another set of famous words: "We the People of the United States, in Order to form a more perfect Union..." The opinion also began with an excerpt from a public statement by Mildred Loving, the plaintiff in Loving v. Virginia, the case which legalized interracial marriage throughout the country--a nod to the fact that Virginia was the state to spearhead individual freedoms on that particular issue of marriage. This, at least, appears to have been accurately quoted.
You may read the entire opinion handed down today here.
While the emphasis certainly will stay with the legal repercussions of such a ruling, one wonders through how many legislative clerks and assorted editors such a federal opinion goes through where such a gaping error related to the most powerful legal document in the country can slip through. Surely no elected official would be spared from late night talk show monologues had they made the same mistake.
The Virginia decision follows a declaration from Attorney General Eric Holder that the federal government will begin to expand same-sex marriage rights from the top down by recognizing marriages between same-sex couples on a federal level that invalidates the ability of states that ban such rights. Privileges included in this expansion by the federal government would include spousal privilege in a courtroom and the right to jointly file for bankruptcy.