Conservative Judge: Hands Off Constitutions

Judge J. Harvie Wilkinson, Jr. sits on the U.S. Court of Appeals for the 4th Circuit. He was appointed by President Ronald Reagan in 1984, and was frequently mentioned as a likely President George W. Bush pick for the U.S. Supreme Court.

Yesterday, he wrote about constitutional bans in The Washington Post, saying, "The chief casualty in the struggle over same-sex marriage has been the American constitutional tradition."

Judge Wilkinson is equally critical of the Massachusetts high court decision (because he says it rewrites that state's constitution) and the many state constitutional amendments that ban marriage for gay couples. Here's more from the full op-ed:

The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.

Ordinary legislation -- not constitutional amendments -- should express the community's view that marriage "shall consist only of the union of a man and a woman." To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country's founding charter as their own.

When I read his piece, it reminded me of the great Owen-Ingrid blog debate. Owen and many ban supporters argue that we must amend the Wisconsin constitution now to stop judges from "amending" it later. (Even though there is no sign of a marriage lawsuit in Wisconsin and several courts have recently rejected marriage lawsuits.)

Unlike Judge Wilkerson, ban supporters in Wisconsin don't seem to have qualms about adopting a constitutional amendment that would achieve several firsts:
  • the first amendment to express a "disfavored view" of a group,
  • the first to address a public policy matter, and
  • the first to write family law into the constitution.
Judge Wilkinson also believes the ban would "shackle future generations" from making their own decisions. Owen wrote, "[the amendment] gives the people time to properly deliberate on the issue of marriage and make a decision that represents the will of the people." He readily acknowledged that the amendment would tie the hands of judges--yet downplayed how it would tie the hands of our elected representatives.

Finally, Judge Wilkinson addresses the infamous second sentences included in some state-level amendments. He, like others who have debated this issue, want to know why people who worry about "activist judges" want to invite judges to review all sorts of established legal issues for families:
State constitutional bans on same-sex marriages vary considerably in their wording, particularly with respect to civil unions. But most would repose in judges the authority to interpret such ambiguous terms as "domestic union," "similar to marriage," "rights, obligations, privileges and immunities of marriage," "incidents of marriage" and so forth. Thus the irony: Those who wish to curb activist judges are vesting judges with unprecedented interpretative authority whose constitutional nature makes it all but impervious to legislative change.
I appreciate Judge Wilkinson's conservative viewpoint against the ban. It helps me see that often arguments for the Wisconsin ban are actually arguments AGAINST the high court of Massachusetts. They aren't really arguments FOR the measure on the ballot this fall.

(By the way, Owen, if you're reading this post, I was glad to meet you. I thought it was cool that you stopped by to see us last week. Thanks.)

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