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.