Hooray for Harvie!

Welcome back from vacation. Although I was tempted to write this morning about the poor Crocodile Hunter, my son's fave television personality, I decided instead to stay true to Bench Conference's focus and draw your attention to this fine op-ed piece this morning by J. Harvie Wilkinson III, a federal appeals court judge from the 4th U.S. Circuit Court of Appeals.

Blasting both the right and the left, Judge Wilkinson bemoans the rush to "constitutionalize" the issue of same-sex marriage. "To constitutionalize matters of family law is to break with state traditions," he writes. "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." Read the article. Let me know what you think.

By Andrew Cohen |  September 5, 2006; 9:21 AM ET
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Judge Wilkinson's article was very thoughtful and thought-provoking. I hadn't considered the rather extreme position taken by the Massachusetts court. No wonder conservatives were worried about "activist judges." However, the conservative remedy is no better, as Judge Wilkinson aptly noted.

Posted by: CT | September 5, 2006 03:18 PM

I knew when I read the Wilkinson piece this morning that you would endorse this; acutally it made me wonder why people have talked about appointing this man to the Supreme Court.

Where to begin? Wilkinson makes one broad point, that we should not define public policy in constitutions, both the Federal and those of individual states. (He also says that constitutions should not restrict rights, but this falls into his prejudice -- literally pre-judgement -- that marriage is an unfettered right. I will ignore this aspect because it is typical of result oriented approach to law, that we start with a result and reason backward from that result. Here that there is a fundemental right to marriage without regard to the gender of the couple or presumably other restrictions that may be shed over time.)

As to the first argument, then that we should not define public policy in our Constitutions.

1) Almost all states establish public policy within their constitutions. For example the right to a public education is a public policy that is defined in state constitutions. This became the foundation for numerous state supreme courts to apply an equal funding rule across school districts, abolishing the use of property tax which benefited richer districts. There are others it is more common than uncommon.

2) The United States Constitution incorporates public policy. The following Amendments define public policy:
a) XIII -- slavery is prohibited
b) XIV -- public debt of insurrection is not a U.S. obligation; citizenship for former slaves
c) XVI -- income tax is a valid form of taxation
d) XVIII -- prohibition on the sale of alcohol
e) XIX -- women can vote
f) XXI -- end of prohibition on the sale of alcohol

Note that many of these public policies, such as the income tax and the definition of citizenship stem from prior judicial decisions that rendered them necessary.

So within his own article Wilkinson refutes his argument that "ordinary legislation" can be used in the face of judges who apply constitutional force for their public policy. How else could Massachusettes overturn the same sex marriage decrees of their Supreme Court?

He misconstrues (or at least exaaggerates) the application of the Defense of Marriage Act. Individual states are not protected from their courts by the Defense of Marriage Act, only the recognition of other states' definition of marriage. Nor is election (of judges in this case) a protection against a determined social reformer. The Mayor of San Francisco would rightly have been impeached for his dictatorial modification of laws passed by the People of California. Certainly an aging or uncaring judge who wishes to leave a mark is free to interpret the state constitution as he (or she) sees fit. And most Supreme Court justices are not subject to election or recall, only impeachment.

This is important because if a decision is based on the state constitution, the federal courts cannot overturn. They can only overturn when the state courts base their decisions on the U.S. Constitution.

There remains, also, the question of whether the Defense of Marriage Act is constitutional. We will not know until it has been tested.

Finally, Judge Wilkinson argues that family law is traditionally outside the scope of constitionalism. Although its specific rules are generally narrowed by state legislation, such as the number of participants, the family relationships, and the age of marrital consent, the actual structure of marriage is not. As the Judge points out much of this is because the structure of marriage was so embedded in society that it was assumed to take a very specific form. An assumption so deeply ingrained that states didn't define (or restrict) gender participation until very recently.

Now that that form is being challenged, and because it is a fundamental structure of American society, it is justifiably defined and established within the Constitution of United States.

The reason is that we cannot live in a society where a person is married in New York but not in Utah. Specific rights of marriage may vary from state to state, but the actual state of being married does not (or at the very least it should not).


Posted by: Constitutionalist | September 5, 2006 03:50 PM

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