Considering that the name of Judge J. Harvie Wilkinson III is often said to be on the White House’s elite short-list for possible nomination to the Supreme Court, Judge Wilkinson’s views on many subjects merit more than routine attention. And considering that Judge Wilkinson recently unburdened himself regarding same-sex marriage, the need for people to pay attention is more compelling still.
Wilkinson, who sits on the US Fourth Circuit Court of Appeals, shared his thinking on same-sex marriage on the Op Ed page of The Washington Post. What he said on this hot-button issue has got to be troubling for moral conservatives.
In brief, he made the following points.
Same-sex marriage is a question to be settled by legislatures, not by the courts or by amending the Constitution. Enactment of the Federal Marriage Amendment limiting marriage in the United States to one man and one woman would be a mistake. While proponents of the amendment say it's necessary protection against the excesses of “activist judges,” sufficient protection already can be found in existing federal legislation and constitutional doctrine.
The same negative judgment applies to adding bans on same-sex marriage to state constitutions. That has happened in twenty states so far and is likely to happen in others, thereby further endangering the “first principles of American law.” (Judge Wilkinson does not say exactly what principles he means, but apparently they include the rather strange principle that constitutions should not express public policy. In which case it would be interesting to know what he believes they should express.)
This is not to say that gay marriage is “a good or desirable phenomenon.” In decreeing gay marriage in Massachusetts, the judge noted, that state's supreme court dismissed “centuries of common-law tradition, legislative sanction and human experience.” Still, granted all that, it's easy to see why homosexuals want access to our “most basic and sacred institution” (marriage) and hope to enjoy the “intimacy, bonding and devotion to another” that only an institution like marriage can bring.
A careful examination of this text discloses messages for several different audiences.
To the White House and President Bush: I am not an activist judge.
To liberal members of the Senate: I oppose the Federal Marriage Amendment.
To moral conservatives: Marriage is not to be trifled with.
To gay rights activists: You make a good point.
Without quite saying it, Judge Wilkinson's comments — despite his talk about common law and human experience — hint that marriage is a creation of the state, subject to definition and re-definition as the state may decide. Cold comfort here for people believe marriage is a natural institution antecedent to the state, possessing intrinsic, immutable characteristics of its own and eminently deserving of protection and promotion by public authorities.
I don't question Judge Wilkinson's sincerity. It's simply a fact that in expressing these views he was, de facto, equipping himself with potential talking points to be employed in his defense against attack from several directions during a Senate confirmation process for a Supreme Court seat any time in the next two years.
In the nature of things there's no knowing whether President Bush will get the opportunity to make further Supreme Court nominations before leaving office. Nor is there any knowing whether Judge Wilkinson will be a nominee. I wish Wilkinson well no matter what happens, but if he ever does make it onto the court one can only hope that he will get his wish and never have to decide anything raising the question of what marriage fundamentally is.
Russell Shaw is a freelance writer from Washington, D.C. You can email him at RShaw10290@aol.com.
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