Hands Off Constitutions? A Weak Case by the normally strong J. Harvie Wilkinson
Fourth Circuit judge (and former SCOTUS short-lister) J. Harvie Wilkinson has a bizarre column in the Washington Post today: Hands Off Constitutions, This Isn’t the Way to Ban Same-Sex Marriage
First, let’s get some terminology straight — what the judge is talking about is not “banning gay marriage,” what we are talking about is preserving marriage, as it has been defined since the founding of the nation and before, from ANY redefinition. It just so happens that most current challenges to marriage come from radicals attempting to impose a redefinition of marriage that, for now, would include the state being forced to recognize homosexual relationships. On to the piece:
The chief casualty in the struggle over same-sex marriage has been the American constitutional tradition. Liberals and conservatives — judges and legislators — bear responsibility for this sad state of affairs.
Twenty states have constitutional amendments banning gay marriages; many more are in the offing. On the ballot this fall in Virginia and five other states will be proposed constitutional amendments banning gay marriage. Passage of the amendments is all but foreordained, but the first principles of American law will be further endangered.Judges began the rush to constitutionalize. The Massachusetts Supreme Court concocted a state constitutional right to marry persons of the same sex. The court went on to say that opposing views lacked so much as a rational basis. In other words, centuries of common-law tradition, legislative sanction and human experience with marriage as a bond between one man and one woman were deemed by that court unworthy to the point of irrationality.
It would be altogether understandable for Congress and state legislatures to counter this constitutional excess with constitutional responses of their own. Yet it would be the wrong thing to do.
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.
The judge gets it right on one point: an extremist court in Massachusetts launched the debate as it exists today by issuing an atrociously inventive, results-based decision in Goodridge, no one can dispute that. There we depart.
No “right” is being “restricted” when voters or legislators reaffirm the definition of marriage already in place. If marriage is placed in the realm of individual rights, as opposed to its proper place, where it had historically been understood to reside, as an issue of state interest, you grease up that slippery slope regularly scoffed at by marriage redefinition zealots. Approached as an “individual right,” the precise legal arguments being used now to impose same-sex “marriage,” will be used by others to throw the issue into further chaos by continuing to decouple marriage from the very reason the government recognizes ANY relationship in the first place and will argue for polygamy, polyamory, marriage between close relatives, the lifting of age restrictions, etc. I don’t only oppose the redefinition of marriage because of the slippery slope, I oppose the very line of argument that gives rise to that inevitable societal cliff dive. So, since the judge applies an inappropriate analytical context (yes, I understand that he has a Supreme Court decision (Loving) — which was correctly decided because it addressed the issue of invidious discrimination, but included language the author never imagined would be applied as it has been this last decade or so — to back this approach), he arrives at a faulty conclusion.
Fact Check: The number of states which will vote to protect marriage this Fall would be EIGHT (not six) — Arizona, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin with the possibility of a NINTH if Illinois marriage supporters prevail in a current court challenge as well.
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.
Ridiculous — you can make an argument that several amendments to the US Constitution deal with public policy. In regard to state constitutions, what should state amendments address if not public policy? Look at any referenda around the various states and you’ll find that a goodly proportion of them do just that! The mechanisms are in place, so why should they not be used as the public sees fit on the state or the federal level?
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.
Smelt v. Orange County was case out of CA in which a homosexual couple challenged the federal DOMA. Marriage redefinition advocates were absolutely banking on the state of Washington to be the Las Vegas of homosexual “marriage” until the high court there thankfully ruled the right way. Washington state has no residency requirement, so those who got “married” there were planning return to their home state, demanding that their home states recognize these “marriages” in order to launch a legal shock and awe consisting of a flood of Full Faith and Credit challenges. What supporters of the FMA want to do is take the issue OUT of the hands of judges, what the opposition has tried to do is federalize the issue in order to get a Roe v. Wade-type ruling eventually out of the US Supreme Court…which brings me to the next point.
There is a HUGE difference between support for an amendment designed to affirm marriage and Roe v. Wade , a singular court decision that imposed public policy on an entire country. A marriage amendment would be public policy arrived at by democratic means should it gain the support necessary it presently lacks. The ERA example is much more appropriate — it was proposed and almost passed, but was defeated within the democratic process, led by the venerable Phyllis Schlafly. Court decisions do not provide the same opportunity for a national or a statewide debate on important issues — which is not say that the court is always wrong and popularly-enacted public policy is always correct, I only mean to point out a distinction which is very important today because the judiciary is seen as the last word in many cases when it need not be.
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.
The judge completely contradicts himself here. He stated correctly earlier that radical judges lit the fire. Now he’s saying that one the responses to the rogue judiciary sparked the wave of marriage protection amendments. Make up your mind brother. Additionally, most amendments that have recently passed and that are on the ballot this year do two things: 1) define marriage and 2) prohibit the creation of marriage counterfeits. Georgia’s language is a good example of how the bulk of these amendments are worded, as is Arizona’s. There is no irony here: these amendments, with whatever language the crafters choose, tell judges exactly where their input will no longer be needed and what areas are open to interpretation.
To constitutionalize matters of family law is to break with state traditions.
No way. One condition on which Utah and other states were admitted into the Union was a pledge that marriage in these states would be limited to ONE man and ONE woman. So in order to enter our constitutional republic, it was required that these potential entrants comply with a single definition of marriage — this federalized and by extension, constitutionalized the issue long ago. This piece from the Washington Times makes that case quite well.
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.
What is the process of passing a constitutional amendment but the EPITOME of the “normal democratic process?” He pretends here that amending constitutions, state and federal is an easy proposition that can be effected by a small, non-representative group of “passionate” individuals. He seems to be saying here that because some hypothetical future people may feel differently, the presently overwhelming popularity of the proposition that marriage should be preserved will always be inferior to how society may or may not feel years or decades from now. Could we ever get anything done if the people resign themselves to public policy pacifism, or allow themselves top be goaded by judges into the same, and accept any radical idea because it may be popular in future generations? Of course everything must be debate in our time and our place and here we are. The Founders the judge references created a framework under which serious issues could be debated with controls in place that prevent passion from ruling our constitutions. These men didn’t say “Leave constitutions alone.” Rather, they said “Take care of these constitutions, we trust you with the power that is due a governed people.” If the Founders agreed with the good judge, there would be no amendment process, but they didn’t, so there is and it is the purest expression of our political process.
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Posted by Greg Scott on September 5, 2006 6:33 pm
» Filed Under Activist Judges, Homosexual Agenda, News
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