Eminent Domain

Fourth Circuit Court of Appeals Judge J. Harvie Wilkinson has an interesting opinion piece in the Washington Post about state and federal marriage amendments. Wilkinson, a strong conservative voice on the appeals court for over two decades, comes out strongly against them.

He recognizes the role that judges have played in sparking this trend...

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.

The Massachusetts Supreme Court decision really shoved this issue to the front of national debate. However, Wilkinson thinks that amendments would be wrong...

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.

The judge's point is that constitutions should not be used for "ordinary legislation" and says that the definition of marriage is exactly that. Putting a marriage definition would make it extremely difficult for the next generation or two from changing marriage policies. Wilkinson thinks that it is the right of the people to define marriage in their time. Therefore, legislation is the proper way to do that.

What if judges, like the ones in Massachusetts, start defining marriage according to their preferences? Wilkinson responds...

Proponents of the amendment say that states need protection from activist judges in other jurisdictions, but states already have this protection through the Defense of Marriage Act and public policy defenses allowed under the full faith and credit clause.

I'll admit to not being as up on my interstate family law issues as I should be, but isn't the Full Faith and Credit Clause of the US Constitution a way to force states to accept gay marriage? Yes, there have always been public policy exceptions allowed by courts (like polygamy). Yes, there is a history of the courts applying the exception to shield states from recognizing gay marriage. But the Full Faith and Credit Clause has also been used to attack the Defense of Marriage Act (DOMA). Things change.

Wilkinson also thinks that the language in some of the state amendments is problematic...

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.

Judges get to interpret constitutions. Language like this gives them a lot of room to work with and apply.

Wilkinson's conclusion...

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.

I'm sure that many of you know that there is a constitutional amendment concerning this issue up for vote in Wisconsin. Last year, I made a prediction that the amendment would pass overwhelmingly. Now, I'm not so sure. To be perfectly honest, I don't know how I'm going to vote on the amendment. If I had to make a call now, I wouldn't vote either way. I'm that indecisive on this. The mushy language, as cited by Wilkinson, and my general non-interest in any wedding that doesn't involve me (or have an open bar) have made this an issue that I haven't thought about much.

Back to Wilkinson, David Lat asks two interesting questions...

Interesting. But has he effectively recused himself from any case involving these issues -- and scuttled any remaining SCOTUS hopes he might have had?

I think Wilkinson knows that he's not getting a seat on the Court. His best bet was for the Chief Justice slot when it opened up after Rehnquist's death. Wilkinson has that Chief feel to him. After he got passed over, he talked to the New York Times about his interview with President Bush. That was seen as a major breach of trust and probably torpedoed any chance that Wilkinson had for the other vacancy. He's also 62, which is probably too old. There are too many younger potential nominees as well.