WASHINGTON (BP)–A prominent federal appeals court judge normally respected by conservatives has written an editorial that no doubt frustrates them, arguing against the passage of federal and state constitutional marriage amendments.
J. Harvie Wilkinson III, who serves on the U.S. Fourth Court of Appeals, wrote in The Washington Post Sept. 5 that passage of marriage amendments in response to judicial rulings is “the wrong thing to do.” Wilkinson was nominated by President Reagan and reportedly was considered for a seat on the U.S. Supreme Court by President George W. Bush.
“The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state,” he wrote. “They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.”
Regarding Virginia’s November vote on a proposed marriage amendment, Wilkinson wrote, “It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall.”
Wilkinson, though, also criticized the Massachusetts high court, which he said “concocted a state constitutional right to marry persons of the same sex.” Massachusetts remains the only state to recognize “gay marriage.” But despite his words about judicial activism in the Bay State, conservatives were quick to criticize Wilkinson’s position on marriage amendments.
“Judge Wilkinson argues that constitutions should not be used to restrict rights. This begs the question of whether same sex ‘marriage’ is a right,” Chris Stovall, an attorney with the Alliance Defense Fund, wrote on the ConstitutionallyCorrect.com weblog. “… Arguably, had the people of our nation used the amendment power more liberally over the decades, the courts would have felt less pressure/less freedom to change the law through new interpretations of constitutional texts. Our ‘constitutional culture’ would have been that changes in the fundamental law come from the people, democratically, and not from the courts, judicially.”
Matthew J. Franck, professor and chairman of political science at Radford University, said the U.S. Constitution is “full of” examples of public policy enactment.
“The text prohibits the taxation of exports,” he wrote at NationalReview.com. “It forbids preferential treatment of any state’s ports over those of other … states when Congress regulates commerce. It prohibits states from running their own monetary systems, or ‘impairing the obligation of contracts.'”
Wilkinson said the federal Defense of Marriage Act and state “public policy defenses” are sufficient enough to protect states from judicial rulings. But Franck argued that conservatives have good reason to be concerned about federal courts striking down the Defense of Marriage Act.
“All that is necessary is for five Supreme Court justices to fuse the jurisprudential principles of 1967’s Loving v. Virginia … with the principles of 2003’s Lawrence v. Texas…. Throw in, for good measure, the Supreme Court’s precedent in Romer v. Evans (1996), in which a state constitutional amendment was condemned as resting on nothing more than an illegitimate animus against homosexuals, and all one needs is five justices willing to tie a ribbon around this new gift [gay marriage] to the nation.”
“Loving” was the Supreme Court opinion that overturned laws banning interracial marriage. “Lawrence” was the decision that overturned anti-sodomy laws.
Tony Perkins, president of Family Research Council, asserted that Wilkinson was being an activist “by discouraging voters from exercising their democratic rights.”
“I can only assume now that Judge Wilkinson, having stated his opposition to marriage amendments, will recuse himself from ruling on any marriage-related cases that may come before his court,” Perkins wrote in his daily Washington Update e-mail.
HIGH SCHOOLERS SURVEYED — The Toronto, Ontario, District School Board will survey high school students this school year, asking them whether they are heterosexual, homosexual, “lesbian, transgendered, bisexual, queer or two-spirited [an aboriginal term],” the Toronto Star reported Sept. 2. It is part of a 55-question voluntary survey that covers everything from their breakfast habits to homework.
Harvey Nagelberg, a board social worker, told the newspaper the survey would help students see homosexuality as an “OK option.”
“Gay marriage” has been legal in Canada since 2005, and U.S. conservatives have watched their neighbors to the north with much interest. U.S. conservatives warn that if “gay marriage” is legalized in the States, the repercussions would be far-reaching and would impact everything from religious freedom to the education system.
BARKLEY FOR ‘GAY MARRIAGE’ — Former NBA star Charles Barkley is known for his outspokenness, and that certainly was the case when he gave his views on “gay marriage.” Barkley, who once called himself a Republican but now says he’s a Democrat, is considering a future run for governor of Alabama.
“I think if they want to get married, God bless them,” Barkley told Chris Meyers on Fox SportsNet, according to the Associated Press. “Gay marriage is probably 1 percent of the population, so it’s not like it’s going to be an epidemic.”
Republican Gov. Bob Riley is running for re-election this year. Barkley could have a tough sell in his home state. Alabamans passed a constitutional marriage amendment earlier this year with 81 percent of the vote.
For more information about the national debate over “gay marriage,” visit http://www.bpnews.net/samesexmarriage