We are a society of laws. At times those laws are good; at times they are bad. At all times, they are the laws and we are a society of laws.
The stewardship of the laws, and the judgment of which are good and which are bad, in the United States is entrusted by our Constitution to the Supreme Court. The tradition, in the English-speaking world, of making even the sovereign power of government subject and subservient to a framework of laws, dates back centuries. It was famously articulated in England by Sir Edward Coke, who proclaimed to James I that while James might, by the grace of God, be King above men, he was still King under law. In the United States, the role of the courts to review and, when necessary, reject those laws which conflict with our most fundamental values, as embodied in our Constitution, was declared by John Marshall, our greatest Chief Justice, to be “of the very essence of judicial duty”.
When the Constitution first went into effect, membership on the Supreme Court was not considered an especial mark of dignity. The Justices of the Court were required to “ride the circuit”, literally traveling from town to town within a specific part of the country, dispensing rulings (the origin of the modern system of appeals courts for individual “circuits”, with their own dedicated judges). This duty occupied them for roughly half of each year. And the Court proper, when it assembled in its function as the highest court of the land, met in the Capitol building, in a series of chambers that had previously been used for meetings of the Senate.
Thus the Court was, in a sense, not equal to the other two branches of our federal government, each of which had no requirement to “ride circuit”, and each of which had a building of its own. The former was remedied in 1891 by a reorganization of the lower federal courts. The latter was remedied in 1935 with the opening of the current United States Supreme Court Building. Like most major government buildings, it is adorned with various statues and sculptures and mottos. What is telling, however, is the choice of motto; rather than an erudite Latin E pluribus unum or a religiously-hopeful “In God We Trust”, the Supreme Court Building bears, carved above the columns of its façade, the following words:
EQUAL JUSTICE UNDER LAW
In our society, there exists a practice by which consenting adults who love and wish to commit to each other, as permanently as they can manage, may enter into a state of union which we term marriage. Some marriages occur in vast cathedrals, with pomp and fanfare and hundreds of guests in attendance. Some marriages occur in out-of-the-way places, with hand-written vows, a presiding official and only an intimate selection of family and friends in attendance. Some marriages occur in courthouses, with a simple statement and signing of papers in front of a judge and a handful of witnesses. All are predicated on the idea that love and perseverance can create a new entity, a union which is more than the sum of its parts and as such is deserving not only of our recognition, but also our celebration.
All marriages are equal in the eyes of the law. All confer upon the partners certain rights and responsibilities with respect to each other and the rest of society.
Or, rather, that is the theory of the state that we call marriage. In practice, it has been subjected to restrictions and limitations, and in practice, the trend of our recent history is toward the removal of those restrictions and the lifting of those limitations. The trend is toward a recognition that love is a matter too important to be subjected to majority votes, that recognition of a loving union is a right possessed by all persons who desire it.
The greatest blow that ever was struck for this idea occurred at the Supreme Court Building, on a summer’s day in 1967. At that time, marriage was frequently restricted to persons of the same race. Proponents of such a restriction had argued that it reflected God’s plan for humanity; that lifting the restriction would bring dire consequences upon our society; and that such restriction was consistent with the Constitution of the United States, which neither specified marriage as a guaranteed right nor described, in its Fourteenth Amendment which guaranteed all citizens the right to due process and to the equal protection of the laws, the form which that equality must take. All persons, they argued, had an equal right to marry a person of their own race, a position they believed to be faultless.
In a case — Loving v. Virginia — which could not have been better named had it been scripted, the Court most certainly found fault with that position, and ruled unanimously to lift that restriction. The opinion of the Court stated that marriage is a “fundamental freedom” and that the racial classifications present in statutes restricting marriage were “directly subversive of the principle of equality” enshrined in the Constitution by the Fourteenth Amendment. Those in attendance at the Court that day saw the direct enactment of the words they had passed beneath as they entered the Supreme Court Building:
EQUAL JUSTICE UNDER LAW
In the present day, marriage is still frequently subject to restrictions, restrictions which now act upon the sex, rather than the race, of the partners who wish to enter into marriage. Proponents of such restrictions argue that it reflects God’s plan for humanity; that lifting the restrictions would bring dire consequences upon our society; and that such restrictions are consistent with the Constitution. All persons, they argue, have an equal right to marry a person of a different sex.
Our federal courts are now as unkind to restrictions based on sex as the Supreme Court was in 1967 to restrictions based on race. The arguments in favor of such restriction have long since been tried and found wanting. Which is why, slightly more than a month ago, a federal judge once again struck down a restriction placed on marriage by the Commonwealth of Virginia, and cited Loving v. Virginia in her opinion. Slightly more than three months ago, a federal court in Utah cited Loving in striking down a restriction on marriage in that state. And judges in other states have struck down other restrictions.
In some cases, parallel institutions have been created, which are not termed “marriage” but confer similar recognitions and rights upon the partners who enter into them. Such institutions seem just as likely to fall, as the same Court which declared marriage a fundamental right had, thirteen years earlier, unanimously declared that “separate but equal” has no place in our society.
Though it will still take some time for all such restrictions to be struck down, and though it will take time for social acceptance to spread, one thing now is clear. The equal right of all consenting adults to enter into marriage out of love is not a matter that admits debate. It is a fundamental requirement of a society which places these words above the door to its highest court:
EQUAL JUSTICE UNDER LAW
And so I shall say this as simply as I can: the dignity and equality of all persons before the law is not an optional feature of a free and open society. It is a position which can neither be negotiated nor compromised nor subjected to being voted away. It is not an opinion or a fashion; it is a necessary precondition. I am certain that a society which does not possess that principle can still achieve significant useful works; I suspect even that such a society could, at least for many of its citizens, be a not-unpleasant place to live. But it would not be and could not be a truly free society, so long as that principle was not enshrined and enforced in its most fundamental code, and inasmuch as it would not be a free society, it would be diminished. It would for ever be only almost free, only almost great.
And in a society which has that principle enshrined and enforced in its most fundamental code — as it is in our Constitution — any attack on that principle, any campaign to compromise it or subject it to negotiation, any attempt to diminish it in any way, is and must be seen as an attack on more than just a particular law or regulation. It makes no difference whether the attack succeeds. It makes no difference whether we, individually, are done any direct harm by it, or whether any given person’s rights will actually be reduced by its success. It strikes at the very root, not just of our laws or our society, but our identity as a free people.
When that principle is attacked, we are all of us attacked. When that principle is diminished, we are all of us diminished.
Why I am saying this
I do not say this to condemn any particular person. I say this to make clear the lens through which I view the events of the past week, and will view the events of the near future. I am an employee of the Mozilla Corporation. And I am personally enormously disappointed by what has unfolded recently around and beginning with the choice of Brendan Eich as the new chief executive officer of the Mozilla Corporation.
I am disappointed precisely because the mission of Mozilla is so close in vision to that of a free society under law. As equality in the eyes of the law is essential to a free society, the equality of all persons to access and participate in the increasingly global network of information, of media, of culture, of people, must not be an optional feature. It must not be negotiated or compromised. It must not be an opinion or a fashion. It is a necessary precondition for ensuring that our connected society can be and shall remain a free society. The dignity and rights of all persons must be protected equally in such a society, without fear or favor or prejudice. I have more than once felt that Mozilla has taken hopeless stands on principle, but I have always felt safer knowing that Mozilla exists and will take such stands. Standing on principle is not about succeeding or achieving practical goals; it is about what is right.
And so I am disappointed. Brendan donated in support of Proposition 8 in California, which sought to reduce, and temporarily succeeded in reducing, the dignity of some persons in California, and in denying them equality before the law. Though I am not a resident of California, and though I am generally attracted to people not of my own sex, and though Proposition 8 has since been struck down with apparent finality by the courts of this country, Proposition 8 was an attack on a fundamental principle of a free society. We were all of us attacked by it. When it passed and had its effect of diminishing the rights of some people, we were all of us diminished by it. The existence of Proposition 8 was not compatible with California being part of a free society. The existence of similar measures in other states are not compatible with those states being part of a free society.
As such, support for Proposition 8 or similar measures is not compatible with supporting a free society. Several people have argued, publicly and privately, that it also is not compatible with leading Mozilla.
Much of the debate has centered on the fact that the Mozilla Corporation is, in fact, a corporation, and that private views and professional work should be considered separately. This debate misses the point. A marriage is, as I have noted, a labor of love which produces a result greater than the sum of its parts. It is this feature which distinguishes it from most other types of human relationships.
Mozilla is not a typical corporation. Working at Mozilla is not, to many of us, merely a job. It is a statement of our hopes and of our values. It is a statement of our belief in what humanity can achieve. It is an effort actively to better the world not only for shareholders or for our selves, but for all persons everywhere. It is, in fact, a labor of love, and the result is greater than the sum of its parts. It is this feature which distinguishes Mozilla from most other corporations. Mozilla does and has always done things differently.
I believe that Brendan has a love for and commitment to Mozilla as equal as that of any other person. I believe the same of Mitchell and of the rest of the leadership of Mozilla. If they did not share that love and commitment, they would not have remained with Mozilla as long as they have, for better or for worse, through rich times and poor. But I am and remain disappointed. I am, and all of us remain, diminished. Many people, both inside and outside of Mozilla, have called for Brendan to step down as CEO on the basis of this disappointment and diminishment.
A principle of charity
Much (though notably not all) of the support for restricting marriage based on sex is motivated by religious sentiment, particularly Christian religious sentiment. I am not particularly religious; I was not raised to be religious, and have never felt particularly drawn to commit to any religion or religious position. My mother’s family were Episcopalians, however, and I inevitably absorbed a fair bit of the doctrine of that church. I also have, and keep both out of nostalgia and a sense of the beauty of its language, a copy of the Book of Common Prayer, as laid down in the same century in which Sir Edward Coke so offended the dignity of King James.
Despite several public statements, clarifications, expressions of regret and other non-apology apologies issued so far by Brendan and other members of Mozilla’s leadership, one thing I note is still missing is simply a genuine expression of contrition, a genuine apology for the act itself and a recognition that it was wrong. Proposition 8, and support for it, was an attack on all of us, an attack on a fundamental principle of a free society, and to proceed past it there must be recognition not only that the consequences were wrong, not only that some people were harmed, but that the act itself was wrong.
This puts me in mind of something that appears in my Book of Common Prayer, in the section containing the catechism — the statement and summary of faith and doctrine to be learned by every person who is confirmed into the Church:
What is required of them who come to the Lord’s Supper?
To examine themselves, whether they repent them truly of their former sins, stedfastly purposing to lead a new life; have a lively faith in God’s mercy through Christ, with a thankful remembrance of his death; and be in charity with all men.
I am not calling for Brendan to step down. I am not calling for him to be removed. But I am disappointed, and I believe that disappointment and the disappointment of my colleagues is justified and deserving of remediation. We were, all of us, no matter where we identify or choose not to identify on the various spectra of sex, gender, orientation and attraction, all of us, attacked. We were and are all of us diminished. And although it is not quite the same sentiment as “EQUAL JUSTICE UNDER LAW”, self-examination, repentance, “lively faith” and charity with all would be a start at remedying that. So as we begin the new week and a new era in the history of Mozilla, that is what I will call for.
Let us begin with that.