Tuesday, September 05, 2006

Wilkinson: Keep Marriage Out of Constitutions

A highly respected conservative jurist who sits on the Fourth Circuit Court of Appeals in Richmond has put himself on the record in opposition to amending constitutions -- whether federal or state constitutions -- to define marriage.

Charlottesville resident and University of Virginia alumnus (he graduated from the Law School in 1972 and later taught there) Judge J. Harvie Wilkinson, who was nominated to his current position by President Ronald Reagan in 1984, has an op-ed piece in today's Washington Post that outlines his argument against "constitutionalizing" marriage.

In "Hands Off Constitutions: This Isn't the Way to Ban Same-Sex Marriage," Wilkinson (pictured, seated at Mr. Jefferson's house at Monticello, in the photo on your right) writes:

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.

Wilkinson, who was widely touted as a potential successor to Sandra Day O'Connor upon her retirement from the U.S. Supreme Court, notes -- correctly, in my opinion -- that proposals to insert marriage into constitutions are not in keeping with either federal or state constitutional and legal traditions:

To constitutionalize matters of family law is to break with state traditions. The major changes in family law in the 19th and 20th centuries, such as the recognition of married women's property rights and the liberalization of divorce, occurred in most states at the statutory level. Even the infamous bans on interracial marriage were adopted nonconstitutionally by 35 states, and by constitutional amendment in only six.

Where is the threat that justifies so radical a break with our constitutional heritage? State courts in Georgia, New York and Washington have recently rejected invitations to follow Massachusetts and find a right to same-sex marriage in their constitutions. The great majority of state court judges -- more than 80 percent by some counts -- are subject to election in some form and unlikely to overturn state legislatures on so volatile a matter as same-sex marriage. States have numerous tools that enable them to reject objectionable marriages from other jurisdictions -- tools that have long been the basis for refusing to recognize marriages involving polygamy, incest, and underage or mentally incompetent parties.

While Judge Wilkinson does not say so outright, it seems fair to infer from his concluding paragraph that he, like hundreds of thousands of other Virginians, plans to vote "no" on the proposed Ballot Question #1 in this November's election. (That ballot measure does much more than simply define marriage. Its complexity can be read in full at the State Board of Elections web site.) Wilkinson ends his article by saying:
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.
Conservatives -- particularly conservative Republicans, like Lieutenant Governor Bill Bolling and Attorney General Bob McDonnell, who have been rather vocal (if not particularly persuasive) in their support of the proposed Marshall/Newman Amendment to George Mason's Virginia Bill of Rights -- will have to come to grips with Judge Wilkinson's principled argument against constitutionalizing marriage law. They might sputter out a response, but they are unlikely to match his deliberateness and erudition. Other conservatives and Republicans have already shown their willingness to listen to reason on this issue.

In his article, Judge Wilkinson goes a long way toward answering the question that good, solid conservatives ask every time they are confronted with a serious issue of public policy: "What would Ronald Reagan do?" I hope that voters on November 7 ask themselves the same question before they push the "Cast Ballot" button.

Update: As one might expect, Judge Wilkinson's article is eliciting a lot of commentary among bloggers. Some posts I have seen (and there are surely others) include comments from Vivian Paige, Dale Carpenter at the Volokh Conspiracy, Delta Mike at the Virginia Progressive, and J. Sarge at New Dominion, F. T. Rea at SlantBlog, Steve Minor at the SW Virginia Law Blog, A Shot of Southern Comfort, The Midwestern Gentleman, and Glenn Reynolds at Instapundit. Meanwhile, somehow I missed an op-ed in yesterday's Richmond Times-Dispatch by a former Republican legislator on the economic consequences of the proposed amendment.

Another Update: GayPatriotWest, traveling in the great American Southwest, links to this post and mentions his own personal acquaintance with Judge Wilkinson while he (GPW) was a student at UVa Law School. Milwaukee-based blogger and law student Steve at Eminent Domain also has a comment, as does Andrew Sullivan, who calls Wilkinson's article "sane and smart."


Anonymous said...


Mr. Wilkinson was clear to point out that "Judges began the rush to constitutionalize. The Massachusetts Supreme Court concocted a state constitutional right to marry persons of the same sex."

When judges ignore the clear will of the poeple, as enacted into law by the elected representatives of the people, there are only two options: Constitutional Amendments, and Impeachments. I would certainly prefer the latter, but reality is against me there.

Wilkinson goes on to say, '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."' And so it should be. But then activists bring lawsuits claiming that their constitutional rights are violated, and a judge rules those laws unconstitutional, what then? All same-sex marriages between the ruling and the passage of a constitutional amendment to overturn the judge cannot be invalidated. (No ex post facto laws.)

I have proposed a simple truce on EqualityLoudoun.org: No lawsuits, no amendments. All changes must occur in legislatures or by referenda.

Tim said...

Your willingness to sacrifice the individual rights of your countrymen is deeply touching, Jack. I am moved. If you are equally willing to sacrifice your own liberty -- and if not you are surely the foulest of hypocrites -- I would advise you to move as well, for the land of the free can have no appeal to you. Perhaps you could take up residence in a country like Cuba, where you may participate fully in the serfdom you would impose on others.

Rick Sincere said...

You may be a bit too harsh, Tim. Jack clearly does not know that we live not in a majoritarian democracy, which the Founders knew would be a danger to liberty, but in a constitutional republic.

The "clear will of the people" might be the prevailing standard in a society governed by the philosophy of Rousseau -- such as, for instance, France during the Terror -- but it is not the standard preferred by Jefferson, Madison, and Mason.

We have an independent judiciary precisely because an unbridled majority will do things that adversely affect minorities -- and every individual is a minority when compared to the mob.

That is why when we refer to someone as "judicious" we mean it as a compliment.

Tim said...

Most Americans fail to understand these simple facts, Rick, and I for one have grown weary of trying to educate them. There's a reason the Framers kept absolute power out of the hands of the majority, and Jack is it.

Anonymous said...

I am well aware of our system of government, thank you. Part of the problem is, in Wilkinson's words, that "Judges began the rush to constitutionalize. The Massachusetts Supreme Court concocted a state constitutional right to marry persons of the same sex."

Now, when judges are "concocting" rights, what are there? Amendment and Impeachment.

Our system of government, Rick, is supposed to have checks and balances. Where is the check on the Judiciary? It should be the Legislature, though Impeachment, but that is not happening. So the only option remaining is Amendment. A bad option, but what else is there?

Wilkinson also says that these matters should be addressed through "ordinary legislation." I agree, and so does the NY high court, which made just such a ruling. But most gay-rights organizations do not agree, and are "disappointed" by the ruling, and continue to bring lawsuits.

As for "sacrificing individual rights," Tim, every man has the same right: to marry any available woman who will have him. That some men cannot find such a woman, or are not inclined to do so, is not a violation of their rights, nor imposing "serfdom."

Meanwhile, many gay-rights groups assault the freedom of religion and freedom of association rights of others. The Boy Scouts have been sued to require them to admit homosexual leaders, in violation of both of those rights. Religious schools in California will be forced to give up government grants, and their students can have no State support, because of SB 1437 just passed. How's that for freedom of religion and association? The MA ruling has forced Catholic Charities to stop adoption services in that state. Where is their freedom of religion?

I suspect that many gay-rights activists, being on the liberal end of the political spectrum, also support gun-control and various violations of our 2nd Amendment rights. The 1st Amendment has been trashed by Campaign Finance laws, and the 9th and 10th are vague memories. It doesn't do a whole lot of good to have a Constitution when the Constitution is routinely ignored.

As for "serfdom," that is being forced to work for another. I assume then, Tim, that you must oppose Welfare, Social Security, and other such wealth transfers. None of those are Constitutional, either. (I'll go out on a limb to say that I think Rick will agree with me there.)

Back to the topic at hand, a gay gentleman of your acquaintance, Rick, who was VP of the LPVA when you were its President, once told me that he supported the right of people to discriminate against gays. People have the right to be jerks. Of course, he said, it is also our right to boycott businesses whose practices we dislike. I cannot say whether he holds that position still, but I thought it very libertarian of him.

Tim said...

Jack, if you were even halfway aware of our system of government you would never have made such an idiotic suggestion. Let's take down your more blatantly erroneous statements.

1. The Massachusetts judges did not "concoct" any rights for those same-sex couples. That's the primary mistake in Wilkinson's article, and it sabotages his reasoning throughout the rest of the piece. The Commonwealth of Massachusetts passed a constitutional amendment stating that the government must not use sex (gender, if you prefer) as a basis for unequal treatment under the law. The judges in Massachusetts interpreted that ERA to the letter in "Goodridge." So the question of same-sex marriage was decided legislatively, and through voter referendum to boot. The Supreme Court merely required the law to be enforced as written. And let that be a lesson to you, Jack, when you consider amending your own Commonwealth's constitution.

2. Your notion that equal treatment under the law should be exclusively reserved for opposite-sex couples is exceptionally amusing, Jack. I wonder if you have thought through the implications. If you have a daughter, would you really want her to marry a gay man? Would you want your son to marry a lesbian? Would you want to marry a lesbian yourself? I'm sure there are a lot of "available" women for you if you wish to marry a lesbian -- and again, I would encourage you to do yourself what you would compel others to do.

3. That same-sex couples are compelled to pay for the 1300-plus privileges and benefits that opposite-sex couples enjoy, while being denied equal access to the benefits and legal status of marriage, is indeed serfdom.

4. The Gay Scoutmaster who sued the Boy Scouts for reinstatement was not an activist until forced to be one. That's the case with most "activists," truth to tell: They don't fight so much as fight back. More importantly for you, Dale lost his suit. As it turned out, discrimination is within the Boy Scouts' rights. Your use of the Dale example weakens your case (unless you want to claim that as a homosexual, Dale should never have had the right to file a lawsuit).

5. But just because discrimination is within the rights of a private organization does not mean government is obligated to provide said organization with financial support. City and state governments have the legitimate power to set the terms of their financial support, and to withdraw support when those terms are not met. Freedom of religion does not entail entitlement to public funds; no one's freedom of religion is curtailed because he or she didn't get a government grant.

6. The Massachusetts ruling did not force Catholic Charities to end adoption services. Catholic Charities acted entirely on its own, and with no governmental reprisals.

If you would be a libertarian, Jack, then do yourself the courtesy of thinking through your positions.

Anonymous said...


Your virulence does not sit well with your arguments. I shall now address you points, and try to keep the rancor to a minimum.

1. As I said, I agree with ALL of Wilkerson's piece, and you do not. (I do not prefer the term "gender" to "sex." "Gender" is a grammatical term, not an anatomical one.) As for the MA S.C. concoction, sex is not synonymous with sexual orientation. A person's sex describes him; his sexual orientation describes the people to whom he is attracted.

2. I would much rather have my daughter marry a gay man that for my son do so. I compel no-one to do anything. I am not advocating forcing anyone to marry anyone else.

3. I agree. I see no particular reason for the government to be involved in marriage at all. Companies in VA are now free to offer benefits to married and unmarried couples as they see fit. You are free to boycott them as you see fit.

4. How was he forced to do anything? He knew the Boy Scout rules, and no-one forced him to try to abolish those rules. Everyone, gay or straight, has the right to file a lawsuit. I only claim, as did the courts, that his case was without merit, yet the BSA still had to spend money on the case, taking resources away from the boys whom the organization was created to serve.

5. Here again, we agree. I do not think the government should be giving money to ANY private organizations. But since it is, California will now be discriminating against religious organizations. I trust you would raise a fuss if they were to give money exclusively to Catholic schools, based on the fact that Catholic schools provide a better education than public schools.

6. Yes, it did. By law, according to the ruling by the MA S.C., Catholic Charities cannot discriminate against homosexual couples. No, CC was not sued, nor were they indited. But I trust you do you wait until charges are brought before obeying the law. Or are you writing from prison?

Rick Sincere said...

I think Tim can do quite well defending himself in this argument. I'll just add a few factual notes.

In 2000, Gays and Lesbians for Individual Liberty filed an amicus curiae brief with the U.S. Supreme Court, arguing that the Boy Scouts had a right to discriminate against gay members and employees. The brief was cited by George F. Will in his syndicated column and was obliquely mentioned by Justice O'Connor in her concurring opinion. (By the way, the Boy Scouts' prohibition only applies to openly gay people. People who are secretly gay -- that is, people who are liars -- are still permitted to be members or employees of the BSA.)

Catholic Charities in Massachusetts had been placing children for adoption with gay couples for years before Massachusetts extended full marriage rights to gay couples. They changed their policy because of internal issues within the Catholic church, not because of any change in the law.

I agree that individuals, businesses, and private organizations can be "jerks" in exercising their rights to discriminate on any basis, however wise or foolish. I disagree that the government may also behave like jerks by discriminating against citizens, who deserve equal treatment (and justice) under the law.

Anonymous said...

I disagree with your assertion about LYING. The Boy Scouts are discrimination on what a person DOES, not what he IS.

Does your last paragraph apply to the parochial schools in California, too?

Rick Sincere said...

I don't know anything about parochial schools in California, so I can't comment.

In Chief Justice Rehnquist's majority opinion in BSA v Dale, he quotes a Boy Scouts' official document from 1993 as saying:

"we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA."

This means that closeted homosexuals can be admitted as members or as leaders, as in fact they historically have done. When James Dale first became a Scout leader, he was a closeted homosexual, which was perfectly acceptable. What was unacceptable to the BSA was his acknowledgement of his homosexuality, and when that became known to the Boy Scouts, they dismissed him.

I think the Boy Scouts make a mistake when they persist in excluding "exemplary" Scouts like Dale. (The word is used by Chief Justice Rehnquist in describing Mr. Dale.) But, as I said earlier, they have a right to act like jerks and suffer the consequences for it down the road.

Anonymous said...


Mr. Dale lead a campus gay-rights group. The BSA is a religious organization. Since I can think of no major world religion, with the possible exception of Hinduism, that approves of homosexual acts, it is quite reasonable for the BSA to exclude an individual who does not agree with that.

Anonymous said...

I would also like to point out that I am not advocating that anyone "sacrifice his rights." I only suggested, as did Wilkinson, that the proper place to pursue those rights is in the legislatures, not the courts.

The reason is pragmatic, also. The lawsuits have spawned a backlash of Marriage Amendment drives, which are passing everywhere. Assuming that the legislatures will eventually come around to your way of thinking, would it not be wise to keep it easy to make laws that support your causes?

As things are going, most states will have marriage amendments, which will make changing laws to your liking much more difficult in the future. The Amendments will have to be repealed first.

Tim said...

1. For the government to deny a marriage license to two people because they are both women, yet grant a marriage license to two people if one happens to be a man, constitutes unequal treatment on the basis of sex. Massachusetts has an Equal Rights Amendment that prohibits the government from doing this. Either Wilkinson does not understand this basic point, or he willfully ignores it.

2. I rather hope your daughter doesn't marry a gay man, because I've never seen a marriage of that sort which didn't end with two utterly miserable spouses and a very ugly divorce. Still, if you would rather wreck your children's lives by seeing them in loveless marriages, be my guest. But I see no reason to subject other Virginians to your rank prejudice, and you've provided none.

3. Companies in Virginia will not be free to offer benefits to unmarried couples if the Marshall-Newman amendment passes. One reason the Religious Right so desperately wants this amendment is so that it can use the courts to undo some recent legislation, such as the law last year which lifted the ban on domestic partner benefits from private insurers. As for religions that celebrate same-sex unions -- like Unitarianism or the Metropolitan Community Church -- they could face some serious legal problems if this amendment passes.

4. Dale didn't try to abolish the rules. He tried to remain a Scoutmaster, and his troop wanted him to stay. By all reports Dale was a very good Scoutmaster -- but no longer. By the way, the Boy Scouts have ended their affiliation with many Unitarian congregations because of the Unitarians' pro-Gay policies. Still, the Boy Scouts have the right to do these things, even when they lose their good name in the process (and they have lost their good name).

5. California won't be discriminating against any organization because of its religion. It will require private schools that receive state funding to provide equal educational opportunities to all students, including gay and lesbian ones, and equal hiring opportunities for gay, lesbian and straight teachers. If schools were to discriminate against African-American students and teachers on religious grounds -- as many "Christian academies" throughout the South once did -- I doubt you would dispute California's authority to deny those schools public funds.

6. The Catholic Charities case had nothing to do with Massachusetts law and everything to do with church hierarchy. The board of Catholic Charities had placed children with same-sex couples in the past, and voted unanimously to retain that policy. The church hierarchy responded by pulling the charity out of the adoption business altogether. At no point was there any government involvement in the Church's decision.

6a. None of your examples from California or Massachusetts have any bearing whatsoever on the Marshall-Newman amendment in Virginia.

Finally, Jack, your feeble attempts to invoke "freedom of religion" simply prove that you don't know the meaning of the term. The freedom to practice religion according to the dictates of your conscience does not include an automatic entitlement to public money. What you want is not freedom of religion, but preferential treatment of religion -- especially if the religion is your own.

You're a great believer in liberty for yourself, Jack, but not in liberty for those who may differ from you. And you'll never be a real libertarian -- or a true limited-government conservative, for that matter -- until you can support the idea that people who are not like yourself should have freedom too.

Anonymous said...

1. As I stated before, the government should have NOTHING to do with marriage. However, that ideal will never be reached. Now, you want to change the one man-one woman rule. That's fine. I am just suggesting you do that through the legislatures, not the courts. What's wrong with that?

2. People wreck their lives with bad marriages to straight people, too. Whether my daughter marries a gay man is irrelevant to the question at hand, which is, "How are your goals best acheived?" Considering the backlash to the lawsuits, they seem to be counter-productive.

3. I have asked others for some legal argument, based on the wording of the Marriage Amendment, that will prevent companies from offering benefits to same-sex couples. I have gotten no response. I would appreciate your making such a case for me. (And yes, the argument needs to include some standing for the plaintiff.) I also don't see how the Amendment will be a problem for any church, since no conctract is created by the church ceremony.

4. I did not say Dale abolished the rules, I said he tried to, or to continue breaking them. A Scout Leader is a member of the BSA generally, not just a specific Troop. As such, he is subject to BSA rules, the Troops wishes notwithstanding.

5. I hope you are correct, but I suspect that any religious institution that preaches against homosexual activity will be sued if they so much as take a student with a loan backed by the California government. We'll see.

6. You are wrong here. CC of Boston was told by the CC of MA to stop placing children with homosexuals. CC of Boston complied. Then the ruling came in from the MA S.C. CC of MA asked the Governor for a waiver, and was told that the law did not provide for such a waiver. So CC of MA withdrew from the adoption business to avoid violating the law.

6a. No, they do not, but they do show the pattern you accuse me of: fighting for some peoples rights but not others. Perhaps I have unfairly put you in this category. If so, I apologize. But many gay-right activists attack the freedom of religion and freedom of association rights of those who do not agree with their goals. I was trying to use the CA and MA cases as examples.

Finally, I do not think the government should be giving any money to any religious organization. That said, when they do, they should not discriminate against religions that do not adhere to the government's beliefs.

And you will never be a good orator so long as you resort to ad hominem attacks. I do not care whether you think I am a "real libertarian" or a "true limited-government conservative." The issue at hand is not what label you care to attach to me. The issue is your goals, and how they can best be achieved.

It seems to me that your tactics of filing lawsuits to get a judge to "concoct" you a right is backfiring, and amendments are being passed in many states. Those amendments will make reaching your objectives that much harder, pushing off your achieving your goals my many years, or even decades.

If you believe you are right, I think your best tactic is to change the hearts and minds of the people, and get your goals through legislation.