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Conservative Judge Against Virginia’s Anti-Gay Marriage Amendment

Whoa. It wasn't until after I'd written yesterday's post about opposition to Virginia's anti-gay marriage amendment, that I came across this op-ed by judge Harvie Wilkinson (4th district, U.S. Court of Appeals) against the amendment to Virginia's state constitution. I wish I'd seen it before writing that post, because I'd have definitely included a link.

It's impressive to hear a judge's opinion on this, and his arguments against the amendment, but what's makes it more interesting is that he's known as one of the most conservative judges on the federal bench (rumored to be on Dubya's shortlist for the Supreme Court, though I'm pretty sure this op-ed column has eighty-sixed any potential nomination for Wilkinson, at least under this administration). Yet, he's come out against both federal and state amendments banning same-sex marriage (or if you want to split hairs, prohibiting the possibility of legally recognized same-sex marriage), along with some pretty interesting reasons why they're a bad idea in his opinion.

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.

Let's look in the mirror. Conservatives who eloquently challenged the Equal Rights Amendment and Roe v. Wade for federalizing core areas of state law now support an amendment that invites federal courts to frame a federal definition of marriage and the legal incidents thereof.

…The Federal Marriage Amendment has helped spread the constitutional fever to the states. 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.

Hold up. Did I just here a sitting federal judge make the same argument I've made against amendments like the one in Virginia, Wisconsin, Arizona, etc., that the Wisconsin attorney general explained, and the same argument that at least one other conservative has made? Did I just hear him justify the concerns that are causing some gays & lesbians to leave Virginia; namely that the legal documents that give them two or three rights and protections approximate to those afforded married couples could be up for interpretation by various and sundry judges if the amendment passes? Did I just here him echo the irony that the result of a movement whose main battle cry is "judicial activism" will be to put the decision making power right back into the hands of the judiciary?

More to the point, one has to ask the amendment backers what it is that they fear about the democratic process they talk so much about. And I don't mean the current democratic process, but the potential outcomes of future exercises of that process. I mentioned earlier how Jonathan Rauch pointed out that what they want to forestall is not judicially activated same-sex marriage, but same-sex marriage period, even if approved by legislators or voters themselves.

In 2004, MPA advocates liked to say that pre-empting state legislatures and electorates was of no practical consequence, because only judges would support so alien a notion as same-sex marriage. That argument expired last September, when the California Legislature passed the Religious Freedom and Civil Marriage Protection Act, a bill legalizing same-sex marriage. Republican Gov. Arnold Schwarzenegger vetoed the bill, but the question is no longer academic: How do MPA proponents, who claim to champion democratic decision-making, justify handcuffing the democratically elected Legislature of the largest state in the union?

At bottom, what many MPA proponents want to forestall is not judicially enacted gay marriage; it is gay marriage, period. They say that an institution as fundamental as marriage needs a uniform definition: a single moral template for the whole country.

Both the state and federal amendments would arguably have the effect effect of preventing voters from approving same-sex marriage in the future, or at least making it much more difficult by requiring such amendments to be repealed or the courts to find them unconstitutional. (And we're right back to the judiciary making the decision.

I'm still pretty convinced that's what's at the bottom of conservatives push for these amendments, because they see the writing on the wall. For one thing, younger voters are increasingly more supportive of same-sex marriage and/or legal rights and protections for same-sex couples than their elders. Combine that with the decrease in opposition to same-sex marriage over the last decade, and it's so clear that even Bill Bennett, Robert Knight and James Dobson can see it clear as day.

But, back to Judge Wilkinson. Despite all of the above he actually doesn't come down in favor of same-sex marriage either. Just against constitutionalizing a prohibition against it.

I do not argue that same-sex marriage is a good or desirable phenomenon, only that constitutional bans on same-sex unions carry terrible costs. Partisans see only one side of a profound controversy when in fact there are two. It is not wrong for gay citizens to wish to share fully in the life of this country, to partake of its most basic and sacred institution, and to experience the intimacy, bonding and devotion to another that only an institution such as marriage can bring. To embrace this view one need not believe that sexual infidelities will disappear but only that many gay couples will make good on their vows and lead fuller, richer and more productive lives as a result.

That, however, is hardly the end of the matter. Marriage between male and female is more than a matter of biological complementarity — the union of the two has been thought through the ages to be more mystical and profound than the separate identities of each alone. Without strong family structures, there will be no stable and healthy social order, and alternative marriage structures might weaken the sanction of law and custom necessary for human families to flourish and children to grow. These are no small risks, and present trends are not often more sound than the cumulative wisdom of the centuries.

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics — some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day's time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.

It's also interesting that he blames both liberals and conservatives for the current situation. Though he's not specific in his charges regarding liberal culpability, my guess is that he's referring to the tactic some gay activists have employed of seeking marriage equality via the courts (the more immediate route). It's obvious that he prefers the (slower) legislative route, but draws the line at "constitutionalizing" the issue, which has been the conservative response to judicial rulings that have yielded same-sex marriage in Massachusetts and civil unions in Vermont. For what it's worth, it might be an interesting compromise, if the opposing sides on the issue could embrace it, for gay activists to abandon their judicial strategy and for conservatives to abandon their constitutional strategy.

Somehow, I doubt either side will make that move, but the support on both sides for alternatives like reciprocal beneficiary status might just signal a middle path; one that would afford same-sex couples a greater degree of protections and rights than most currently enjoy while turning down the heat a little on the marriage debate, and perhaps promoting more reasoned debate.

I'm no legal expert (Ed over at Dispatches from the Culture Wars does a good job of breaking down an attempt at a legal analysis against Wilkinson's column), but if nothing else the judge Wilkinson's comments offer some assurance that the concerns about the possible affects of the Virginia amendment, and others like it, aren't entirely unreasonable.

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