Read it here. J. Harvie Wilkinson III, who serves on the U.S. Court of Appeals for the Fourth Circuit, is a prominent judicial conservative. The occasion for this particular op-ed is the sweeping Virginia state constitutional amendment on the ballot this fall.
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. As a result, a constitutional amendment is at most a backstop for powers that states possess without any congressional action at all. There is no greater need for such a constitutional backstop here than there is for a constitutional amendment bolstering states' authority to pass a sales tax, establish a transportation department or support public education.
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.
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.
. . .
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.
Related Posts (on one page):
- How not to Argue Against a Constitutional Amendment:
- Judge Wilkinson Comes Out Against State and Federal Marriage Amendments: