Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit has a great op-ed in today’s WaPo arguing against the wave of “constitutionalizing” sweeping across the nation in connection with gay marriage. Judge Wilkinson argues that matters evoking such passionate debate should be left to the normal legislative process, rather than being enshrined in state and federal constitutions either by judicial ruling or constitutional amendment.
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.
Ordinary legislation — not constitutional amendments — should express the community’s view that marriage “shall consist only of the union of a man and a woman.” To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country’s founding charter as their own.
The judge’s essay is a refreshingly balanced view of how the American legal and political systems were intended to interact. As passionately as I want to see gay Americans enjoy equal marriage rights, my thinking is evolving somewhat as to the best way to achieve this result. Increasingly, I wonder if working through state legislatures isn’t, in fact, the better way to go, even though it could delay the achievement of equal rights for some time.
The increasing prominence of the so-called “procreation” rationale signals, in my opinion, the beginning of the end for marriage discrimination. Both the New York and Washington supreme courts, in refusing to find a constitutional right to same-sex marriage, held that inequality could remain because the legislature could rationally believe that restricting marriage to opposite-sex couples was necessary to encourage opposite sex couples to form stable family units for the raising of children.
“Poppycock!” you say? Exactly. It is poppycock, and it’s the thin thread on which marriage discrimination currently hangs. Even the fundies have shifted, in large part, from arguments based on their reading of Christian theology to arguing “on behalf of the children.” They had to, because the moral arguments simply hold less and less sway as more Americans are exposed to openly gay friends, neighbors and co-workers, and greater awareness of the hardships inflicted on gay families. Taking the fight to state legislatures will require discriminators to continue relying on such flimsy arguments, and in the long run, those arguments will not hold water with people.
As I say, my thinking is evolving. But I can see the arguments now for moving away from a judicial strategy to a full-on legislative push for equality.