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Judge Wilkinson Comes Out Against State and Federal Marriage Amendments:

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):

  1. How not to Argue Against a Constitutional Amendment:
  2. Judge Wilkinson Comes Out Against State and Federal Marriage Amendments:
Lev:

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes?


Certainly it seems that way for judges. One might think that legislatures are part of the "normal democratic processes" being elected and all, debating in public, passing laws by voting.
9.5.2006 2:40am
Hei Lun Chan (mail) (www):
What can be more democratic in our system of government than a constitutional amendment which requires two-thirds of both houses of Congress and three-fourths of state legislatures?

some certainties endure; others are fated to be supplanted by the certainties of a succeeding age
Not that I'm for the amendment, but if vast majorities of the current voting public disagree with me who am I to say that their decision to put it into law is undemocratic? And if future generations change their minds they can just repeal the amendment. I think that's been done before.

the Framers were sure that we should debate our differences in this day's time and arena
The Framers were also the ones who wrote the process of adopting amendments into the Constitution.

The judge is also against state amendments. Legislators are choosing the amendment route instead of legislation because it would prevent judges from stiking those laws down. Should we file this story under "dog-bites-man" for a judge who wants to preserve judicial powers?
9.5.2006 3:18am
andy (mail) (www):
"Their message is as clear today as it was at the founding: Leave constitutions alone."

WTF? If they wanted the constitution to be left alone, they would not have incorporated amendment procedures. I don't see how an objective reading of the text could lead one to conclude that the Framers did not want the document to be amended.
9.5.2006 4:02am
Appellate Attorney:
Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes?

By definition, the "normal democratic process" includes the option of correcting/improving constitutions by means provided in those constitutions. I may be missing something, but it seems to me that the only logical alternative to this understanding is a view that the existing constitution is already perfect. And that can't be so.

To be sure, some constitutions may be too easy to alter and others too difficult, but these are individual structural flaws, not abandonments of "normal democractic process."

I'm sure Judge Wilkinson is more than smart enough to understand this distinction. So I think his concern likely lies somewhere else. I don't think he is as concerned with some possible failure of the democratic process as he is unhappy with its outcome in the case of the passage of the amendments designed to strengthen state protections of real marriage.

I, personally, do not like many of the marriage amendments either, because implicit in many of them is the notion that the state may define marriage however it wishes rather than merely acknowledge marriage as already defined by the Creator. But this objection is to too much "democratic process," not too little -- and Judge Wilkinson's objection is likewise to too much democratic process, not too little.
9.5.2006 4:36am
Appellate Attorney:
To clarify, I agree with Judge Wilkinson that the proposed federal marriage amendment is unwise and contrary to our constitutional order, which deliberately left recognition of marriage to the states. But marriage amendments at the state level are, whether one likes their substance or not, in conformity to the constitutional order and reflect the democratic process.
9.5.2006 4:45am
Rick Sincere (mail) (www):
"By definition, the "normal democratic process" includes the option of correcting/improving constitutions by means provided in those constitutions."

I'm not sure the constitutional amendment process is "normal," in the sense that it is rare in comparison to the "normal" legislative process.

There have been fewer than 20 amendments to the U.S. Constitution since the Bill of Rights, while there have been thousands of laws passed. So, statistically speaking, at least, constitutional amendments are not "normal."

This is true at the state level, too.

In Virginia, for instance, amending the state constitution requires that a proposed amendment must pass two separate sessions of the General Assembly, with an intervening general election for the (lower house) House of Delegates, and then it must go to the voters as a referendum.

Moreover -- and I think this is an issue that concerns Judge Wilkinson as much as it does me -- in this particular case, in which marriage and family law are typically left to normal legislative action, a constitutional amendment passed today severely ties the hands of a legislature 10, 20, 30 years in the future, when the views of a majority of voters might have changed.

I have commented on Judge Wilkinson's article from the particular perspective of Virginia, which is mentioned only in passing in his piece.
9.5.2006 6:02am
Objective Objector (mail):
A number of posters here have essentially critiqued the op-ed for its incoherence.

I would criticize it for its untimeliness. What about today makes this article useful or worthwhile today? It seems there are more pressing issues in the news-cycle right now. Gay marriage isn't a particularly "hot" issue today. It just shouldn't be in the paper, today. This exact same op-ed would have been appropriate the last time there was a vote on the FMA, by contrast.
9.5.2006 6:05am
Randy R. (mail):
It actually is timely. Virginia voters will vote on this issue in November.
I agree gay marriage isn't a hot issue in Virginia -- in fact, it is currently outlawed.
Which makes the judge's article even more pertinent -- why should people be all worked up over nothing? Why the collossal waste of time and energy over something that isn't going to happen? If there are indeed more pressing issues in the news-cycle right now, then perhaps the voters should be focused on those issues, not dead ones.
9.5.2006 7:13am
davod (mail):
Randy:

Voters should worry precisely because of the thoughts of Judge Wilkerson. Judges rule laws illegal all the time.
9.5.2006 7:20am
Brett Bellmore:
I don't think there's anything particularly complicated motivating the judge. The marriage amendments are a response to the expectation of bad faith on the part of the judiciary, and while there are certainly courts that have dealt with this topic honestly, there are also courts which have not. So it's not an unrealistic fear.

But it's scarcely suprising that a judge would have a more positive view of the judiciary than the people or the other two brnches. So he doesn't take the threat seriously.
9.5.2006 7:31am
Duncan Frissell (mail):
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 left-wing litigators who established that education is constitutionally mandated and that therefore New Jersey, New Hampshire, etc. must impose state income taxes would disagree. They needed that constitutional angle to get the cash.
9.5.2006 7:37am
Objective Observer (mail):
It actually is timely. Virginia voters will vote on this issue in November.

A MONTH FROM NOW? There are op-eds every day of every week. This op-ed is at least 30 days too early.
9.5.2006 8:43am
Andrew Hyman (mail) (www):
No matter what one thinks about the proposed Virginia marriage amendment, or the proposed federal marriage amendment, or the treatment if this issue by the courts in Massachusetts, there is plenty of reason to be concerned about Judge Wilkinson's op/ed.

Here is a judge attacking a proposition that will appear on the ballot in two months in Virginia. By writing in WaPo, he's even targeted his audience: the more liberal Virginia voters in the DC suburbs who would be needed to counteract conservative voters elsewhere in the state.

Canon 4 of the Code of Conduct for United States Judges says that, "A judge, subject to the proper performance of judicial duties, may engage in the following law-related activities, if in doing so the judge does not cast reasonable doubt on the capacity to decide impartially any issue that may come before the judge....A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice." Canon 7 adds that: "A judge should not engage in any other political activity...."

If Judge Wilkinson is ever called upon to interpret the Virginia marriage amendment, or is called upon to assess its conformity with federal law, isn't obvious now that he will construe the Virginia amendment narrowly? I don't see how this op/ed of his is consistent with the canons of ethics. I'm no expert on this, but it does concern me. By and large, judges ought to stay out of politics.

Some of Wilkinson's particular points are also very dubious. He says, "To constitutionalize matters of family law is to break with state traditions." Well, the question of inter-racial marriage was constitutionalized per the SCOTUS decision in Loving v. Virginia, and that was surely a correct decision. Abortion is probably the most constitutionalized issue in history, and I haven't heard Judge Wilkinson arguing that it shouldn't have been. So, it's unclear to me why Wilknson thinks that other aspects of family law are inappropriate for constitutional action (unless of course Judge Wilkinson only wants constitutional action on issue that he agrees with).


Wilkinson says that the message of James Madison and John MArshall "is as clear today as it was at the founding: Leave constitutions alone." That's baloney. The whole purpose of Article V of the U.S. Constitution is to keep the Constitution up to date by amending it. Obviously, amendment shouldn't be adopted lightly, and that's why the amendment process is so difficult. There's no reason to make it more difficult by pretending that James Madison and John Marshall would be against amendments in general, or this amendment in particular.

Lastly, Wilkinson says, "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." This is simplistic and misleading. First of all, a marriage amendment can indeed be viewed as protecting rights, such as the right of a child to have a mom and dad; I'm not taking a position on it, but Judge Wilkinson is presenting a slanted view. Additionally, a typical constitution grants powers to government while also reserving certain rights. Almost every one of those granted powers is tantamount to authorization for the government to restrict rights.

Anyway, I don't think judges have any business writing this kind of op/ed. It's a very political opinion piece, and signals that he would construe a marriage amendent in a narrow way rather than being impartial.
9.5.2006 8:58am
Walk It:
After reading these comments from the intelligent, I wonder how long until that genetic test comes out that shows whether the kid will be gay or not, and how soon until they can fix it so no one has gays and we need to deal with these things. Smells like clean up time to me, never forget. Thanks for being so open and honest, commenters, so we can be forewarned about what's maybe coming in the pipeline.
9.5.2006 9:09am
Appellate Attorney (mail):
I'm not sure the constitutional amendment process is "normal," in the sense that it is rare in comparison to the "normal" legislative process.

The failure to distinguish normal in the sense of proper from common in the sense of regular or frequent is precisely the problem here. By suggesting the various marriage amendments, even at the state level, do not comport with the "normal" democratic process, Judge Wilkinson gives the impression that they are somehow improper while only making the case that they are uncommon. This is powerful rhetorically, but it is not rigorous logically.

Of course, we're speaking of an op-ed here, not a judicial opinion, so perhaps rhetoric was intended to triumph.
9.5.2006 9:15am
Appellate Attorney (mail):
It actually is timely. Virginia voters will vote on this issue in November.

"A MONTH FROM NOW? There are op-eds every day of every week. This op-ed is at least 30 days too early."

Actually, the election is about 60 days away. The timing is deliberate and wise. By submitting his commentary for publication now, instead of right before the election, Judge Wilkinson contributes meaningfully to public discourse on an important topic without making a last-minute effort to sway voters at the ballot box. As a result, this "early" op-ed is clearly consistent with the First Amendment and the Canons of Judicial Ethics.
9.5.2006 9:33am
Andrew Hyman (mail) (www):
Maybe the Wilkinson op/ed is consistent with the canons of ethics. But it's at least kind of ironic that McCain-Feingold bans all broadcast political advocacy advertising that mentions a candidate's name, beginning 60 days before an election. Not saying I support McCain Feingold, but political activity by judges does seem to be a legitimate concern, especially within 60 days of an election.

Anyway, I don't think that Judge Wilkinson's op/ed was well-reasoned, for the reasons I mentioned. Whether the amendment is worth voting for is another question.
9.5.2006 10:55am
Third Party Beneficiary (mail):
"Judges rule laws illegal all the time."

Really? Congress enacts or amends hundreds of statutes each year. What percentage of those enactments or amendments are judicially invalidated? 1% maybe?
9.5.2006 11:21am
Crunchy Frog:
What I find interesting is Judge Wilkinson's reliance on DOMA, the constitutionality of which has not been established, as a safety blanket for the states.
9.5.2006 2:23pm
Daniel Chapman (mail):
Can someone please explain what Judge Wilkinson means by "public policy defenses allowed under the full faith and credit clause?" I assume he means policy defenses AGAINST the FF&C Clause, but I don't believe he would make such a mistake.

Also to "Walk It": Are you saying that a woman shouldn't be able to choose whether she wants to "have a gay?" It's her body, and a decision like that shouldn't be put in the hands of the evil legislators. But seriously... grow up or else go troll somewhere else please.
9.5.2006 3:36pm
Dean Moriarty (mail):
Hei Lu Chan: "Not that I'm for the amendment, but if vast majorities of the current voting public disagree with me who am I to say that their decision to put it into law is undemocratic? And if future generations change their minds they can just repeal the amendment. I think that's been done before."
>>
Perhaps I'm just uneducated, but by this rationale, couldn't legislators do things like outlaw minority groups altogether? At what point does the right of the majority to enact legislation through the democratic process go too far in curtailing the rights of the minority, in this case folks who wish to enter into life-long monongamous relationships? I'm asking moreso than anything else here. I guess I just find this whole issue preposterous, but your point often made me think where the limits of the tyrannical majority are.
9.5.2006 3:38pm
Daniel Chapman (mail):
Dean: We balance democracy against minority rights by having a written constitution and allowing it to be amended only by a supermajority. Yes, a supermajority may be "tyrranical," but that is allowed by our system.

Some states seem to have too easy a process for amending their constitutions (Like my home state of Wisconsin), but I think that's a structural defect that we've just got to live with. If I remember right, I think it stems from the progressive era when everyone was mad about democracy.
9.5.2006 3:47pm
PDXLawyer (mail):
Don't amendments to state constitutions on the gay marriage issue help, in practice, to uphold the authority of the legislature? The usual procedure, now, appears to be for the legislature to define marriage as only heterosexual marriage (or, at least, to decide not to change this long-standing definition), and then for the courts to discover (or at least be asked to discover) a right to homosexual marriage in a state constitutional provision which is somewhat broad and open to interpretation. As noted above, constitutional amendment is itself a democratic process. Its preceived as necessary here only because ordinary non-constutional democratic processes on this issue appear to be in danger of being judicially thwarted. That is, the courts appear to be the aggressors (or potential aggressors) in "going constitutional" against the legislature.

The dynamic between state supreme courts and the state constitutional amendment process is interesting. State supreme court justices are *very* saavy politicians mostly, and will usually shy away from anything that they believe will create such an intense negative public reaction as to call forth a constitutional amendment or something like that. No point in taking a stand that will not ultimately prevail anyhow - and in the process damaging their institutional popularity.

We haven't seen any courts since Massachusetts take the plunge of constitutionalizing marriage law. My guess is that the court there didn't realize that its decision would be unpopular. Given the intensity of the negative reaction in Massachusetts (a very liberal state) and the roaring success of the state constutional amendment campaign, other state courts will be in little doubt about how a decision following the Massachusetts model would be received. That alone is probably enough to warn them off.

Judge Wilkerson likely has a more trusting view of the judicial process than the general public (or indeed, non-judges). Seems like this would be one difficulty in maintaining balance as a judge - people are always flattering you (except for the litigants who are crazy) so you rarely hear negative feedback even when you mess up. Law professors and law blogs seem valuable for this, as well as other things.
9.5.2006 4:12pm
Porkchop (mail):

Should we file this story under "dog-bites-man" for a judge who wants to preserve judicial powers?

J. Harvey Wilkinson = liberal activist judge?

That's just about the funniest thing I've read in years!
9.5.2006 4:35pm
Mark Field (mail):

Don't amendments to state constitutions on the gay marriage issue help, in practice, to uphold the authority of the legislature?


Possibly so with the current legislature, though some of the comments above are well taken on the ability of judges to interpret constitutions without interference from the legislature, which they can't do with statutes. But constitutionalizing an issue actually takes that issue away from all future legislative activity. In the long run, it's anti-democratic because it freezes in place a current majority.
9.5.2006 4:36pm
Sasha (www):
I don't the issue of gay marriage should ever be up to the legislature. It is an issue of equal rights and discrimination, so I would hope that we find an "activist" judge ready to force states to legalize it already. (In practice, any judge making a ruling that one disagrees with becomes "activist.")
9.5.2006 4:55pm
Dean Moriarty (mail):
In accordance with Sasha, wouldn't this be the first time that we amended the constitution to INCLUDE discrimination? I suppose that, while technically not inappropriate as a democratic process, it certainly reveals one of the (few) weaknesses of that process, insofar as discrimination can be legislated into the process. Not a proud moment, in my opinion. I'm beginning to really appreciate what Clarence Thomas said about that Texas sodomy law, something like that it was a stupid law and if he were in Texas he would vote against it and any politician who supported it, but that there was nothing unconstitutional about it. Or something like that, right?
9.5.2006 5:58pm
Daniel Chapman (mail):
Utah was not allowed into the union unless their state constitution included an express ban on polygamy. Discrimination against Polygamists? Of course.
9.5.2006 6:03pm
Randy R. (mail):
brett: while there are certainly courts that have dealt with this topic honestly, there are also courts which have not.

Such as? I like to think that the Massachusetts court dealt with the topic honestly, as there is nothing dishonest about their opinion that I can see.

Today, a clear majority in Massachusetts supports gay marriage, and the attempt to amend their constitution is not a roaring success. In fact, fewer state legislators support amending the constitution today than in the year after their Supreme Court ruled in favor of gay marriage.
9.5.2006 9:23pm
Walk It:
Mr. Chapman:
Your disagreeing with my comments, such as my concerns expressed above, does not make me a troll.

Nor does my observation that Marquette University is a lesser place with those who would so quickly label and condemn those whose expressed thoughts contradict yours.

(I also disagree with your views supporting Wisconsin's "marriage" amendment, and the November vote to allow capital punishment in our state. Not a troll, just keeping my eyes open and watching leaders such as yourself attempting to influence others before November.)
9.6.2006 12:35am
just me:
I respectfully disagree with Rick Sincere, who wrote above to the effect that state constitutional amendments are rare, and that they are hard to achieve. On both counts, he compared state and federal constitutions:


I'm not sure the constitutional amendment process is "normal," in the sense that it is rare in comparison to the "normal" legislative process.

There have been fewer than 20 amendments to the U.S. Constitution since the Bill of Rights, while there have been thousands of laws passed. So, statistically speaking, at least, constitutional amendments are not "normal."

This is true at the state level, too.

In Virginia, for instance, amending the state constitution requires that a proposed amendment must pass two separate sessions of the General Assembly . . .


I concede that Rick is right only to the extent that he defines rare as "in comparison to" ordinary legislation. BUt in some states, that means only that we've had thousands of legislative enactments and hundreds of constitutional amendments.

But some states adopt amendments almost every other year, including on very picky legislative-type matters. In fact, on of the VCers just last week or so itemized some of the funnier ones, such as ski-slope width.

And it is a stretch to generalize that state constitutions are hard to amend. Virginia's may be, but many of us have constitutions that can be amended easily, e.g., simple majority vote at one election. Getting on the ballot can be as easy as gathering signatures, which is largely done now by paid petition circulators.

Judge Wilkinson errs as well in so easily slipping from platitudes about the federal constitution to then talking about state constitutions. He says that "constitutions" generally should be reserved for the big things, not for smaller legislative-type policies. But compared to the many picky, detailed things in state constitutions -- e.g. workers compensation, or insurance or utility regulations or whatever -- marriage is actually a bigger one by comparison.

None of that is to say that such amendments are a good or bad idea on policy grounds. But there is only one way that one can only characterize all 50 state constitutions as "generalist" or hard-to-amend -- and that one way is to avoid reading them or reading a survey, and to opine in blissful ignorance. Glad he didn't make the Big Court, if he's given to opining before researching.
9.6.2006 12:36am
Walk It:
No offense, Mr. Chapman, but I suspect in years to come, yours will be the minority view in our state and you know it.

The only way to continue your oversized hold on such issues, by imposing your personal religiously-based beliefs on others, is to mess with the Constitution and hope people like me will be intimidated into silence by namecalling.
9.6.2006 12:38am
Owen Hutchins (mail):

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes?


Sometimes, yes. When the SCotUS ruled on Loving v. Virginia, some 80% of the US opposed inter-racial marriage. Basic civil rights (and civil marriage is a civil right) must not be subject to popular whim.


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.



This is precisely why I dislike election of judges; they are too tempted, in fact encouraged, to rule based on popular sentiment instead of the laws and the Constitution, in order to retain their positions.
9.6.2006 7:28am
Walk It:
Related aside:
I've been wondering about our fight against Islamic terrorism -- how to win against the enemies, without alienating a hijacked culture. Shock and awe seems to target indiscriminately, and we may end up making enemies out of potential allies. What to do, what to do?

It strikes me that basic parental advice can be included in the mix already in the toolbox, (whose power tool outside the box is military strategy, of course, aimed at self defense and taking out specific enemy targets.) So many parents teach: you can't really control the other side, only yourself. Work on the man in the mirror/play your own game first. The more in control of ones own behavior one is, the better he can fight if/when attacked.

So why not we Americans show our colors to the Iranian regime-- its supporters and non-supporters inside that culture-- who killed the two teens, allegedly for homosexual acts? What better way to highlight our differences, to give light to the potential supporters and more effective potential regime-changers living inside the culture there, than to treat our citizens equally in this country?

I think the Catholics in Northern Ireland, for example, were heartened by the Black civil rights movement in America in the 1960s, when their leaders and so many regular people began peacefully pressing for equal treatment in their own country, not based on discriminating characteristics. And remember, in case history gets rewritten, the push for better treatment under the law for Catholics there was not predominately a terrorist movement dominated by the IRA. They gained ultimately unsustainable strength only in government's bumbled response, remember.

I know it sounds too easy, but in my mind, such cultural and governmental issues may be related... How to best fight that which we despise in other lands, and win a war that has so many fronts?
Re-feed the fires burning on our own cultural hilltops, take care that in concentrating our energies on more immediate issues elsewhere, we don't neglect our country's own priorities here. To put words to action, we continue asking questions about our government framework here, and the relationships between personal cultural choice and those freedoms permitted fellow citizens to more fully achieve life, liberty and the pursuit of property.

It's a small contribution, working on one's self and making change, and not a substitute for other actions needed but merely an additional tool available for making the final product more fine.
9.6.2006 7:35am
Daniel Chapman (mail):
Walk it: "I also disagree with your views supporting Wisconsin's "marriage" amendment, and the November vote to allow capital punishment in our state. Not a troll, just keeping my eyes open and watching leaders such as yourself attempting to influence others before November."

I haven't mentioned wisconsin's marriage amendment. The closest I came was to mention that I think Wisconsin's constitution is too easy to amend, which leaves minority rights less protected than a written constitution that is difficult to amend. (Reading comprehension is key) I *definitely* haven't talked about the capital punishment initiative this fall, but if you're interested I'll be voting against it. Nothing against capital punishment in principle... I just don't see any need for a change at the moment.

I assumed your previous post was trolling because it had no bearing on the post except to vent your bizarre conspiracy theories.

"After reading these comments from the intelligent, I wonder how long until that genetic test comes out that shows whether the kid will be gay or not, and how soon until they can fix it so no one has gays and we need to deal with these things. Smells like clean up time to me, never forget. Thanks for being so open and honest, commenters, so we can be forewarned about what's maybe coming in the pipeline."

Exactly which comment(s) above were you referring to? If you're not a troll, and are instead delusional, then I apologize for the confusion.
9.6.2006 1:59pm
Daniel Chapman (mail):
I don't suppose anyone will be answering my initial legal question? If not, I'll probably stop checking this thread...
9.6.2006 2:26pm
Mark Field (mail):

Can someone please explain what Judge Wilkinson means by "public policy defenses allowed under the full faith and credit clause?"


Some cases have suggested that states need not give full faith and credit to decisions in other states which violate some fundamental public policy. An example of this can be found in Smith v. Superior Court, 41 Cal. App. 4th 1014 (1996). It has been suggested that gay marriage might be an instance in which one state need not give effect to the relation created in another state.

I don't believe the SCOTUS has ever decided this question; someone correct me if I'm wrong about that.
9.6.2006 2:48pm
Daniel Chapman (mail):
Thanks, Mark.
9.6.2006 3:00pm
Seamus (mail):

Their message is as clear today as it was at the founding: Leave constitutions alone.



Everyone knows that amending constitutions is only OK when the courts do it, not when the people or the legislatures get above themselves and try to do so.
9.6.2006 5:04pm
Seamus (mail):

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.



This might be true, if there were a serious movement afoot to get courts to rule that state sales taxes, transportation departments, or public education were unconstitutional.
9.6.2006 5:06pm