When a sitting judge publishes an op-ed, “Hands Off Constitutions,” (The Washington Post, Sept. 5, 2006) a lawyer enamored with constitutional law can hardly ignore it. When the subtitle is, “This Isn’t the Way to Ban Same-Sex Marriage,” it is inescapable.
The Honorable J. Harvie Wilkinson III sits on the U.S. Court of Appeals for the Fourth Circuit. His name has often appeared on Supreme Court “short-lists” as a centrist.
It would have been judicious and fitting if a judge of Wilkinson’s stature wrote an op-ed admonishing the judiciary to leave constitutional “amending” to the people through their elected representatives. But that’s not the judge’s sole point here. He admonishes everyone to “[l]eave constitutions alone.”
I must respectfully disagree with what strikes me as an advisory opinion from a judicial pantheon.
After acknowledging that the Massachusetts Supreme Judicial Court “concocted a state constitutional right to marry persons of the same sex,” Wilkinson says that if state legislatures or Congress remedy that “excess” with constitutional amendments, “it would be the wrong thing to do.”
Wilkinson points to state courts in Georgia, New York and Washington that have rejected following Massachusetts’s finding of “a right to same-sex marriage in their constitutions.” He asks, “Where is the threat that justifies so radical a break with our constitutional heritage?
There are threats pending in the supreme courts of New Jersey, California, Maryland and Iowa, to name a few. These are real, not imagined.
Wilkinson challenges conservatives to remember how they “eloquently challenged the Equal Rights Amendment and Roe v. Wade for federalizing core areas of state law.”
That merely proves that constitutional amendments are easier to defeat than pass.
Most Americans believe that marriage and human life deserve much more than rhetorical eloquence. National polling on marriage and votes on amendments in 20 states prove that.
Wilkinson advocates total restraint from using the most effective tool we have to correct rulings by judges who commit constitutional wrongs in their zeal to decide public policy issues. To fail to remedy such wrongs with constitutional amendments is to allow judges to be masters of constitutions while subordinating the people to constitutions and judges. Nothing could be more upended.
We the People ordained the U.S. Constitution as the Supreme Law of the land and made clear that we are masters of it by retaining the sole right to amend it. When judges effectively “amend” it, they violate their constitutional authority and station.
The judge opines that “the Framers meant our Constitution to establish a structure of government and to provide individuals with certain inalienable rights against the state.” But not, he continues, “as a place to restrict rights or enact public policies.”
Governments, according to the Declaration of Independence “are instituted” to secure, God-given “unalienable rights;” governments do not “provide” them. It is true that constitutions are primarily structural and not substantive law.
Article V of the U.S. Constitution, however, does not limit the subject matter of duly enacted amendments. The people may constitutionally ban peanut butter if they choose to; however, judges have no right to make it the supreme food of the land or to ban it.
Amendments that decide public policy issues are hardly a novel notion. The Thirteenth Amendment decided public policy on slavery by reversing the judge-made constitutional “right” to own human beings. Should that have been left to statutory remedies or Supreme Court correction? The 18th and 21st Amendments decided whether intoxicating beverages could be manufactured, sold or transported within, imported to or exported from the U.S. The 15th, 19th and 26th Amendments decided who may vote, thereby making a political privilege a constitutional right. Although these are not self-executing amendments, Congress enforced the will of the people through legislative acts as the amendments provided.
Marriage pre-exists government and constitutions. Judge Wilkinson acknowledges “centuries of common-law tradition, legislative sanction and human experience with marriage as a bond between one man and one woman.” Yet, he would rely only on “protection through the Defense of Marriage Act and public policy defenses allowed under the full faith and credit clause.” The people have every reason to anticipate that neither is an adequate tool to protect state law from judges eager to find a new “fundamental right” in the U.S. Constitution.
Protecting the definition of marriage by amendment does not “constitutionalize matters of family law,” as Wilkinson declares. Matters of residency, age, consanguinity, divorce, child custody and visitation, spousal support, etc., remain in the hands of state legislatures. No one proposes federalizing those issues.
Wilkinson prefers a statutory remedy such as those enacted by 35 states to reverse “infamous bans on interracial marriage” while admitting that six states did so by constitutional amendments. Does he think the six were wrong?
Even more disturbing is Wilkinson’s contention that the Constitution should not be amended to preserve marriage as the union of a man and a woman because the Framers “certainly did not envision our Constitution as a place to restrict rights.”
What right is being restricted? Prior to the appalling arrogance and power play of four judges in Massachusetts, where did this right exist? There is no duly enacted law granting a right to same-sex marriage. Furthermore, marriage never has been recognized as a right beyond regulation by states. Everyone has the same right to marry but no one ever has had a right to marry just anyone he or she chooses.
When the Supreme Court has mentioned marriage in reference to a “right of privacy,” nothing but traditional marriage has been contemplated. The Court in Griswold v. Connecticut described the marriage relationship “as an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.”
Wilkinson “does not argue that same-sex marriage is a good or desirable phenomenon,” but he does argue that “constitutional bans on same-sex unions carry terrible costs. … 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.”
It is a wish shared with polygamists and polyamorists. No legislative body, including Massachusetts, has granted the wish. For that reason, homosexuals continue to make an end-run around the democratic process to achieve wish fulfillment by judicial edict.
Finally, Judge Wilkinson queries whether it is “too much to ask that judges and legislators acknowledge the difficulty of this debate by leaving it to normal democratic processes.” Legislators have—judges have demonstrated a penchant not to—and homosexual activists and their allies will not.
I rest my case on Wilkinson’s portrayal of marriage that captures its uniqueness and worth:
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.
It is no small risk to leave marriage in the hands of judges by failing to lay our hands on the best tool we have given ourselves. Preserving this “sacred” institution from radical redefinition is entirely within the right and realm of the American people and of compelling import to be enshrined in the supreme law of the land.