Color me surprised after reading this op-ed by Judge J. Harvie Wilkinson. Long considered one of the most conservative judges on the Federal bench, he has been on virtually every short list for a Supreme Court nomination since 2001. Yet he comes out against both state and federal constitutional amendments against gay marriage. That’s on top of the fact that it is highly unusual for a sitting judge to so boldly assert his opinion on an ongoing political controversy. But he makes some really good points, including one about how such amendments may very well backfire on those who advanced them:
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.
That’s a very compelling argument. The flipside of that, of course, is that in some states the language was kept vague on purpose. In Michigan, for example, the proponents of the amendment flat out lied, claiming that the language of the amendment would not have any effect on things like domestic partner benefits in existing contracts. As soon as it was passed, they started suing universities and cities to have their union contracts that included such benefits declared illegal because of the amendment. And remember, these are the same people claiming to be standing up for morality.
I notice that Glib Fortuna has already attempted a response to Wilkinson’s op-ed. Predictably, it’s big on historical ignorance and shoddy reasoning. For example, in response to Wilkinson’s language about “banning gay marriage”, he says:
First, let’s get some terminology straight — what the judge is talking about is not “banning gay marriage,” what we are talking about is preserving marriage, as it has been defined since the founding of the nation and before, from ANY redefinition. It just so happens that most current challenges to marriage come from radicals attempting to impose a redefinition of marriage that, for now, would include the state being forced to recognize homosexual relationships.
Funny, that’s pretty much identical to the rhetoric used against Loving v Virginia, the Supreme Court ruling that struck down state laws banning interracial marriage. After all, such laws had been on the books since long before the founding of the nation and it was “radicals” who were trying to “impose a redefinition of marriage” that would “include the state being forced to recognize interracial relationships.” There is not a single argument used against gay marriage that was not also used against interracial marriage (including even the argument that interracial couples couldn’t have children – and no, I’m not making that up. It’s actually stated bluntly in more than one court ruling from the 1800s).
From there on, the reasoning just gets bizarre:
No “right” is being “restricted” when voters or legislators reaffirm the definition of marriage already in place. If marriage is placed in the realm of individual rights, as opposed to its proper place, where it had historically been understood to reside, as an issue of state interest, you grease up that slippery slope regularly scoffed at by marriage redefinition zealots. Approached as an “individual right,” the precise legal arguments being used now to impose same-sex “marriage,” will be used by others to throw the issue into further chaos by continuing to decouple marriage from the very reason the government recognizes ANY relationship in the first place and will argue for polygamy, polyamory, marriage between close relatives, the lifting of age restrictions, etc.
Again, by this reasoning, what do we do with Loving? That ruling clearly lays out a basic right to get married. Glib seems to be arguing that this ruling was incorrect. Will he come right out and say that? Time will tell. But by any version of conservative originalism, that ruling has to be incorrect. The framers of the 14th amendment explicitly said that it was not intended to overturn miscegenation laws, and that was the public expectation as well. Still, I’ve never had any advocate of conservative originalism admit that they think Loving was wrongly decided, even if all of their arguments logically must lead to that conclusion. In fact, wait…he says it was correct:
So, since the judge applies an inappropriate analytical context (yes, I understand that he has a Supreme Court decision (Loving) — which was correctly decided because it addressed the issue of invidious discrimination, but included language the author never imagined would be applied as it has been this last decade or so — to back this approach), he arrives at a faulty conclusion.
This is just a bizarre statement. I don’t know what judge he is referring to as arriving at a faulty conclusion. The Loving decision is not mentioned anywhere in Wilkinson’s essay, nor was it a basis for the Goodridge ruling in Massachusetts (which was based exclusively on state constitutional provisions). He seems to be arguing against a mythical judge reaching a non-existent conclusion. And the reasoning is equally weird.
He argues that Loving was correct because it “addressed the issue of invidious discrimination”, but the type of discrimination addressed in Loving is precisely the same discrimination faced by gays today – laws that prohibit them from marrying the person they loved. And opponents of interracial made every single argument against Loving that opponents of gay marriage are making now. And in fact, there were dozens of attempts to pass a constitutional amendment banning interracial marriage just as we see similar bans no gay marriage today.
In response to the portion of Wilkinson’s essay that i quoted above, about how many of the state amendments have actually opened the door to more judicial rulings on the scope of the general wording of the amendments, he makes this truly strange response:
The judge completely contradicts himself here. He stated correctly earlier that radical judges lit the fire. Now he’s saying that one the responses to the rogue judiciary sparked the wave of marriage protection amendments. Make up your mind brother.
I’ve read that about 20 times and I can’t make head or tails of it. There appear to be words missing, but I can’t imagine what words would make it minimally coherent.
Additionally, most amendments that have recently passed and that are on the ballot this year do two things: 1) define marriage and 2) prohibit the creation of marriage counterfeits. Georgia’s language is a good example of how the bulk of these amendments are worded, as is Arizona’s. There is no irony here: these amendments, with whatever language the crafters choose, tell judges exactly where their input will no longer be needed and what areas are open to interpretation.
There may be some state amendments that are as clear as he thinks, but many of them are not. But here’s the language of the Michigan amendment, which I suspect he will think is perfectly clear when it most certainly is not:
To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or a similar union for any purpose.
Does this ban recognition of domestic partnerships in terms of insurance coverage by public entities? How about by private entities? Before the 2004 vote, the proponents of the amendment assured us that it only dealt with marriage specifically, not with such benefits in public or private contracts. They distributed a brochure saying, “Proposal 2 is Only about marriage. Marriage is a union between husband and wife. Proposal 2 will keep it that way. This is not about rights or benefits or how people choose to live their lives.” When the opponents of the amendment argued that the language could be used to void such benefits, the spokesperson for Citizens for the Protection of Marriage, the group sponsoring the amendment, said that “”nothing that’s on the books is going to change. We continue to confuse this issue by bringing in speculation.”
That was a baldfaced lie. In fact, almost before the ink was dry on the ballots, they were filing lawsuits against cities (Ann Arbor and Kalamazoo) and universities (the MSU case is still going on), arguing that giving benefits to the partners of gays constituted a “similar union” under the amendment and was now illegal. In fact, the very same attorney who wrote the amendment for the group is handling the lawsuit against MSU on that question. His name is Patrick Gillen – yes, the same Patrick Gillen involved in the Dover ID case. He is an attorney with the Thomas More Law Center.
Most of the state amendments have similar language, and as Wilkinson points out, it will be up to the courts to decide how phrases like “a similar union” and “incidents of marriage” are to be interpreted. We can only hope that the judges see through the blatant lies used to sell such amendments to the public.