In a rare opinion piece by a sitting federal judge, J. Harvie Wilkinson writes against attempts to ban same-sex marriage by constitutional amendment in today's Washington Post. The piece is remarkable not simply because of Wilkinson's status as one of the nation's most pre-eminent judges not on the Supreme Court, but because he raises arguments against marriage amendments from a judicially "conservative" prospective and directs them at those who hold similar beliefs about judicial power (ie. people like most of those in the Fed Soc). Without going too deep into Wilkinson's argumentation -you simply, absolutely must read the whole thing- here's a taste:
Judges began the rush to constitutionalize. The Massachusetts Supreme Court concocted a state constitutional right to marry persons of the same sex. The court went on to say that opposing views lacked so much as a rational basis. In other words, centuries of common-law tradition, legislative sanction and human experience with marriage as a bond between one man and one woman were deemed by that court unworthy to the point of irrationality.
It would be altogether understandable for Congress and state legislatures to counter this constitutional excess with constitutional responses of their own. Yet it would be the wrong thing to do.
The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.
I won't make any comments on Wilkinson's piece at this point; it deserves some more time for processing and reflection. On the other hand, you should stop reading this right now and go read Judge Wilkinson's article. More later...
