Dispatches from the Creation Wars

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.

Comments

  1. #1 Ginger Yellow
    September 6, 2006

    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).

    Well, I doubt they used “God made Adam and Eve, not Adam and Steve”, but point taken.

  2. #2 Ahcuah
    September 6, 2006

    Here in Ohio the language is

    Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

    The Ohio Courts of Appeals are now split on whether unmarried persons can be convicted of Domestic Violence. Of course, the thing that distinguishes domestic violence from just plain battery is the approximation of marriage.

    So, Judge Wilkonson was exactly right that a lot of what these amendments to is further involve the judges in interpreting them.

  3. #3 Stogoe
    September 6, 2006

    They probably used “God made Adam and Eve as white people, not Adam and Evelyn, the daughter of Ham.” Same crap, different issue.

  4. #4 Skemono
    September 6, 2006

    First off, I apologize beforehand for my lack of quotes and citations to back up what I’m saying, but I’m on a library computer and away from my resources.

    Well, I doubt they used “God made Adam and Eve, not Adam and Steve”, but point taken.

    Obviously what is being said today can’t be taken verbatim; but the idea that “this is what God intended when he made the world and humans” was most definitely there. See, for the most readily available example, Judge Leon Bazille’s (I may have mispelled his name) declaration in Loving v. Virginia:

    Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

    And Stogoe, if I recall correctly, there was at least one person I know of who said that Adam and Eve were white, therefore marriage was a white institution–blacks couldn’t really marry, not even each other. Many people believed that blacks weren’t really capable of marriage, though I don’t recall anyone besides him saying this was because it was a “white” institution or actually tying it to interracial marriages.

    But Mr. Brayton, I have to correct some of the things you said.

    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.”

    I do not think I have found anyone who did not believe that black-white marriages were real and true marriages. They were abominations, unnatural, blasphemous, disgusting, ungodly, etc.–but they still fit the “definition of marriage”. That’s probably the biggest difference between the current struggle and the previous one–while before everyone thought interracial marriages were wrong and shouldn’t be allowed, people today don’t recognize same-sex marriages as marriages at all.

    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.

    Depends on how you define “attempts”, I suppose. I don’t know how often a constitutional amendment was called for, but there were only three or four, not dozens, such amendments proposed in Congress.

  5. #5 Irrational Entity
    September 6, 2006

    Skemono, regarding black-white marriages not being real, I fear you have not met many of my family members. Some most certainly believe God separated the races and any sexual relationship between the two is worse than adultery. They do not regard inter-racial marriage as valid. A few Sunday dinner discussions quite explicitly linked the Loving decision with the legal recognition of homosexual relationships.

    I love several of my family members dearly, but they would put their bigotry into law in a heartbeat if given the opportunity.

  6. #6 Skemono
    September 6, 2006

    I can say with a fair degree of confidence that I have never met anyone in your family, Irrational Entity, although I am fully aware of the hateful and bigoted things that have been said concerning interracial marriages.

    And it is almost certainly true that somewhere, someone has said something to the effect that interracial marriages are not “real” marriages (although I’m not sure that saying they’re “not valid” is quite the same thing). For instance, Matt Hale declared that “It’s a form of bestiality” (see Nicholas Kristof, “Hate, American Style”). And one author (I believe Charles Carroll, but I could be mistaken) declared blacks to be animals and said that marrying one would be the same as marrying any other sort of beast.

    However, Carroll (perhaps the most vehement opponent of such marriages I have read) also declared that God punished Cain for “amalgamation” with a black by marrying him to her. So being against them isn’t the same as believing they’re not marriage.

    And again, even if there are a few who believe they simply aren’t marriages, they were so few and far between that my point remains valid. Popularly, the fight over gay marriage is about the “definition” of marriage while with interracial marriage it was not.

  7. #7 Carolyn Bahm
    September 6, 2006

    Mr. Brayton,

    You are rapidly moving up the charts to become one of my favorite bloggers because of the clarity and persuasiveness of your writing and the fact that you often champion causes that match mine. I loved this posting. I’m glad to hear about this outspoken judge; I was beginning to think the whole world had lost its mind in opposing gay marriage.

    The whole issue is nuts to me. I have yet to hear *anyone* give a logical explanation about how a gay couple’s marriage could somehow “threatens” a hetero couple’s marriage.

    And I was interested by the comparision of interracial marriage rights to gay marriage rights. It’s a perfect comparison, actually. It still astonishes me that some people wonder why gay rights is a hot-button issue for me; they say, “You’re not gay — why do you care?”

    I dunno — why did some white people help black people register to vote during the Civil Rights Movement? Yeah, because it was the right thing to do. This is too.

    Best regards to you!

  8. #8 James Allen
    September 6, 2006

    In AR:

    Section 1. Marriage.

    Marriage consists only of the union of one man and one woman.

    Section 2. Marital status.

    Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the legislature may recognize a common law marriage from another state between a man and a woman.

    Section 3. Capacity, rights, obligations, privileges, and immunities.

    The legislature has the power to determine the capacity of persons to marry, subject to this amendment, and the legal rights, obligations, privileges, and immunities of marriage.

  9. #9 Ed Brayton
    September 6, 2006

    Carolyn-

    I’ve gotten the same question from people, why do you care so much about gay rights when you’re not gay? And on more than a few occasions, I’ve had people assume I’m gay because I argue so much for gay rights. My answer is that I don’t separate myself from them the way other people do. Because I have so many gay friends and loved ones, I can’t view them as Them, I have to view them as Us. I can’t possibly look at my gay friends who are in relationships every bit as vital as the best straight relationships and tell them that their bond is worth less than my own and is less worthy of protection and celebration. And contrary to the arguments from the religious right, this absolutely is a moral argument for me. It is immoral, I maintain, to deny someone’s humanity and their right to self-determination. It is immoral to take from them the essential fact of self ownership. And that’s why I have to laugh when I am accused of “moral relativism”. My argument is, in fact, a moral absolutist one.

  10. #10 Irrational Entity
    September 6, 2006

    Skemono, I was not attempting to challenge you on the differences between historical events. I just wanted to point out that many people in certain areas do indeed consider interracial marriages to not be marriage. By valid I mean they believe multi-racial marriages are as fake as same-sex marriage; neither are real in the eyes of God, whatever people and the government might say.

  11. #11 Pieter B
    September 6, 2006

    I too have enough gay friends that I consider them “us.” In adddition, I was the victim of considerable hazing/harrassment/bullying in high school because of a rumor that I was “queer,” a rumor that had remarkable persistence despite my fairly active hetero dating. It was in the late ’50s/early ’60s — I shudder to think what it would have been like had I attended a working-class school rather than an affluent suburban one.

  12. #12 Skemono
    September 6, 2006

    Skemono, I was not attempting to challenge you on the differences between historical events.

    Of course; and I apologize if I came off as confrontational.

    I just wanted to point out that many people in certain areas do indeed consider interracial marriages to not be marriage. By valid I mean they believe multi-racial marriages are as fake as same-sex marriage; neither are real in the eyes of God, whatever people and the government might say.

    Well, yes, but they do not say they that such marriages are not real in the eyes of the dictionary (if that made any sense). I think that’s a crucial distinction.

  13. #13 Prup aka Jim Benton
    September 7, 2006

    The most important thing about this issue is that it will be a forgotten one in a few years. Opposition to gay marriage is already dropping substantially, despite the attempts of Republicans beholden to or members of the Religious Right to keep it alive. Whether there will be a Loving-type decision of the Supreme Court or a split between the Religious Republicans and the other branches of the Republicans (Club for Growth, Libertarian, War Hawks) that will lessen the Religious Right’s power, the door will start opening more, and once it does, there will be as little opposition to this as there is currently to interracial marriage. (And I like to tell the story, to show how times have changed, of a friend of mine, a ‘typical Long Island Jewish Liberal’ in 1968, who I was supposed to share a room with at a SF Convention, if I could bring along a female friend. No problem, until he found out she was black. He apologized, explained how he was a firm believer in civil rights, but that was something he couldn’t handle. Ironically, another friend of mine who was known to wear “Never” buttons, and to speak favorably of George Wallace, never had any problem with such things, or with black fans he knew personally.)

    So, basically, relax. Keep fighting, but the odds of winning are about the same as the odds of the Mets winning the Eastern Division this year — and they could clinch this weekend.

  14. #14 Treban
    September 7, 2006

    Well, yes, but they do not say they that such marriages are not real in the eyes of the dictionary (if that made any sense). I think that’s a crucial distinction.

    Problem is that morons come in all stripes. There are folks I know who think that God’s definition, is the right definition if you read the right dictionary. I don’t know all their opinions on inter-racial marriage, but I expect a couple of them, at least, disapprove.

  15. #15 Matthew Young
    September 7, 2006

    This is the same as every other argument religion has ever tried to make – the world is flat, women should not have the vote, it is immoral to suggest that the Earth is not the centre of the universe, etc, etc.. The church and religion as a whole is a morally and intellectually bankrupt mass act of willful self-delusion and since the Enlightenment we have been steadily, one after another, throwing out religion’s pointless and pernicious rubbish, and this will go the way of the (presumably imaginary) dinosaurs in a few years as Prup says above.

    I have attended three weddings in my life: two gay ones (one of each sex) and one heterosexual one (my own) and by some unimaginable miracle my own marriage is in the rudest of health despite the corrupting influence of those damn homos in our lives. I take this sort of pseudo-moral, vitriolic, hateful fear-mongering quite personally and find it preposterous how the groups most generally resonsible for peddling hatred, division, fear and intolerance get to strut about wearing the hat of morality when they, judged by their actions, have no right whatsoever to make such a claim.

    The rise of superstitious, religious nonsense both in the Arab and Christian worlds fills me with horror and the sooner we can return to path of humanity as defined in the Enlightenment itself as being determined by reason and compassion the better, but I do not get the impression it will be anytime soon.

    In short, how dare these hate-filled, bigotted, flat-track bullies make moral pronouncements on the lives and relationships of people more worthy than themselves.

    Grrr. Rant over. And… breathe!

  16. #16 Matthew Young
    September 7, 2006

    Incidentally, as to marriages being real in the eyes of god – well honestly, who cares? Are there any other fictional characters we should be making our declarations in front of? The Easter Bunny, say, or Batman?

    Once passed into law the other lot can prance and posture and pontificate all they like as it really doesn’t matter. This is why the church and the state need to be kept separate. This battle is merely a scuffle in the same war as evolution denial and all that other nonsense.