Marriage Mistake: Conservative Judge Opposes Rush To Amend Constitutions
Ever since the Supreme Judicial Court of Massachusetts ruled in 2003 that citizens of that state had a constitutional right to marry a person of the same sex, the definition of “marriage” and who gets to partake has been lobbed back and forth in a ceaseless political volley.
Lawmakers from state houses to the U.S. Congress moved to amend state and federal constitutions to ban same-sex marriage. The U.S. House of Representatives passed a Federal Marriage Amendment, but the Senate blocked it earlier this year. Twenty states added amendments almost immediately, and voters will decide on similar amendments in Arizona, Colorado, Idaho, Florida, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin this fall.
Judge J. Harvie Wilkinson III took issue with this phenomenon in an op-ed in the Sept. 4 Washington Post. Wilkinson serves on the 4th U.S. Circuit Court of Appeals. He is one of the more conservative jurists on arguably the most conservative appeals court in the country, yet he took judges and legislators to task for endangering the “American constitutional tradition” and the “first principles of American law.”
While Wilkinson acknowledges legislators’ desire to respond to a “constitution[ally] excess[ive]” court decision with a constitutional maneuver of their own, he is adamant that it is wrong to do so.
“The Framers,” the judge writes “meant our Constitution to establish a structure of government and 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.”
For legislators to use our state and national governing charters to “promote even our most favored views” is inconsistent with the “American constitutional tradition” Wilkinson refers to. The deliberate amendment process was meant to stop overzealous majorities from limiting the fundamental rights of minority groups, thus relegating public policy questions to legislation that could be reviewed and overturned, if necessary, by superior courts. Once a federal constitutional amendment is ratified, no court has the authority to even consider arguments for or against it. The language and all of its consequences are set in stone until the people decide to repeal it through the arduous amendment process.
The judge goes on to point out that the 1998 Defense of Marriage Act, which defines marriage as “only a legal union between one man and one woman as husband and wife,” accomplishes the same ends through ordinary legislative means.
Wilkinson concludes that “the more passionate an issue, the less justification there often is for constitutionalizing it.
“Constitutions,” he continues, “tempt those who are way too sure they are right.” This is only too apparent when one looks at the Religious Right’s modus operandi for banning same-sex marriage.
Family Research Council head Tony Perkins used an e-mail to his supporters to lambaste the federal judge for critiquing the marriage amendment drive. He chided Wilkinson for “playing the activist role by discouraging voters from exercising their democratic rights.” Perkins haughtily concluded “I can only assume, now that Judge Wilkinson, having stated his opposition to marriage amendments, will recuse himself from ruling on any marriage-related cases that come before his court.”
On the contrary, Judge Wilkinson is obligated to do no such thing. Wilkinson’s opposition was limited to legislating via amendment, not laws or the legal legitimacy of same-sex marriages. Indeed, the judge writes, “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.”
Wilkinson is in the clear here because had the Federal Marriage Amendment become our 28th Amendment, it would have become a part of the Constitution and no court could strike it down. As so many on the Right like to point out, the judiciary’s role is to interpret the Constitution, not legislate through it.
-- Lauren Smith