An interesting Perspective on Marriage Amendments

Nobody could accuse U.S. Circuit Judge J. Harvie Wilkinson III of being a liberal.  Appointed to the 4th Circuit Court of Appeals by Ronald Reagan back in the 1980s, he was part of a cadre of young conservative legal academics launched into the courts by the Reagan Administration to reorient the federal judiciary on a conservative path.

Consequently, it was startling to many observers to read an op-ed piece in the Washington Post last fall before the elections, in which Judge Wilkinson urged the defeat of the proposed Virginia Marriage Amendment, and also voiced opposition to the Federal Marriage Amendment.  These amendments, and similar amendments on the ballots in seven other states last fall, were intended to lock into constitutions a heterosexual couple definition of marriage and, in some cases, to forbid state governments from providing alternative forms of legal recognition or rights to same-sex unions or unmarried couples generally.  The Virginia amendment passed despite Judge Wilkinson's advocacy.

But it now comes clear that the op-ed piece was abstracted by a longer work, which made its appearance overnight in the Westlaw law journals database.  "Gay Rights and American Constitutionalism: What's A Constitution For?", 56 Duke Law Journal 545 (Nov. 2006), is an extended argument against "constitutionalization" of issues such as marriage, whether at the federal or state level. 

Wilkinson is an advocate of leaving policy-making to accountable, elected officials, and keeping it away from unaccountable federal judges and only slightly more accountable (in some states) state appellate judges.  In his view, these amendments would actually increase the role of judges in making policy decisions in this politically-frought subject area, and would place barriers in the way of legislators who might want to pass laws in the future that are found to be inconsistent with the frozen constitutional definitions.

It's not that he is for same-sex marriage.  It's rather, having acknowledged the arguments on both sides of the issue, that he considers this a political question to be decided state by state, as questions about family law traditionally have been decided, and best kept away from judges.  He points out that any state that wants to avoid same-sex marriage is well-equipped to do so.  All but five states have passed laws banning same-sex marriage in their jurisdictions and refusing to recognize such marriages contracted elsewhere.  He points out that statements by proponents that such amendments are necessary to prevent activist judges from imposing same-sex marriage on a reluctant populace have generally not been borne out by the facts - with the sole exception of Massachusetts, no other state high court that has decided the issue has ordered states to let same-sex couples marry.  (His article was written before the New Jersey decision, but it at least partly makes his point - although unanimous in finding a constitutional violation, a majority of the N.J. justices gave the legislature the option to cure the problem through civil unions, which option the legislature rapidly took, foregoing its opportunity to make history as the first American state to legislate same-sex marriage.) 

He also notes that the bogeyman of the Full Faith and Credit Clause was just that - a bogeyman with little grounding in reality.  Contrary to what various people were saying back in 1993 when the Hawaii Supreme Court first raised the possibility that same-sex marriage might be on the horizon, states would not be required under the FFCC to accord recognition to same-sex marriages contracted in other states.  Courts have generally not treated marriages as the kind of governmental actions that must automatically be accorded full faith and credit, and there are numerous examples of cases where states declined to recognize marriages from other states for a variety of policy reasons.  Wilkinson comes right out and says that the part of the federal Defense of Marriage Act (1996) dealing with marriage recognition was unnecessary; the states already had a right to refuse to recognize such marriages, and state constitutional amendments are not necessary for that purpose.

No, what Wilkinson objects to is stifling democracy through constitutionalization.  He points out the famous example of Roe v. Wade, which constitutionalized the abortion question, and -- to be fair -- Lawrence v. Texas, which constitutionalized the question of sodomy laws.  Although he agrees with the substantive result in Lawrence, he regrets the court in effect constitutionalizing gay rights, which he sees as fueling the backlash now of unnecessary state constitutional amendments.  Noting evolving social views about marriage, he points out that the rash of marriage amendments, now in effect in more than half the states, will create a barrier to popular legislation.  Most interestingly, he points out, due to their ambiguities of wording -- in some cases ginned up by anti-gay groups and put on the ballot through popular initiatives, in other cases sometimes rushed through state legislatures without time out for thoughtful and careful drafting -- the passage of these amendments will actually give more work to judges, due to the need to figure out what they mean.

There are already differences of opinion about whether similar but not identical marriage amendments in different states either do or do not prohibit the government from providing domestic partnership benefits to state employees, and there is a wide range of opinion about the potential effect of the Virginia marriage amendment on the authority of courts to enforce a wide range of documents that same-sex couples (among unmarried couples generally) may execute to order their legal affairs, such as powers of attorney and partnership agreements.  All these will have to be sorted out by the courts, to the consternation of Judge Wilkinson, who considers the amendments unnecessary.

Why should the people constrain themselves from acting through their legislatures to deal with the myriad issues raised by same-sex and other unmarried couples, but sticking something in the state constitution disempowering the legislature from acting?  There is much common sense in his argument, even if one is opposed to same-sex marriage, even if one disagrees with some of his criticisms of various Supreme Court decisions.

Definitely worth reading and thinking about!