Conservatives refusing to be radicals, Part 2

Today’s Washington Post includes an opinion piece by conservative 4th Circuit Judge J. Harvie Wilkinson III, recently on the short list for a Bush appointment to the Supreme Court. In his rejection of both federal and state constitutional amendments to define “marriage,” he takes his constructionism seriously, and applies it consistently – not exactly what the radical anti-democratic movement currently using our community as fodder had in mind.

His eloquent defense of constitutionalism is yet another sharp blow to the small-minded opportunists who are hawking Marshall/Newman.

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 Section 1 of the Virginia Declaration of Rights reads: That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Judge Wilkinson is particularly troubled by the intent to “deprive or divest their posterity” of these inherent rights, or what the Some Families Foundation likes to call “defining marriage for the next generation.” It is the inherent right of each generation to determine their own public policy.

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.

On the hypocrisy of noise about “activist judges:”

State constitutional bans on same-sex marriages vary considerably in their wording, particularly with respect to civil unions. But most would repose in judges the authority to interpret such ambiguous terms as “domestic union,” “similar to marriage,” “rights, obligations, privileges and immunities of marriage,” “incidents of marriage” and so forth. Thus the irony: Those who wish to curb activist judges are vesting judges with unprecedented interpretative authority whose constitutional nature makes it all but impervious to legislative change.

Judge Wilkinson is hardly a friend of the marriage equality movement, and is just as condemning of the Massachusetts Supreme Court ruling that found a constitutional right to marry the person of one’s choice. Unlike some of his ideologically driven colleagues, however, he acknowledges that there is a legitimate debate over this matter going on in society, and that we have a framework within which it can be properly resolved.

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics — some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day’s time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.

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20 Responses to Conservatives refusing to be radicals, Part 2

  1. Jack says:

    I must say I am disappointed by your rhetoric. “Radical anti-democratic movement”? Having the citizens vote on such measures is VERY democratic. It is the gay-rights advocates that have used the courts, rather than the legislatures and referenda, to advance their causes.

    “Small-minded opportunists”? That’s just plain rude, and not conducive to civil debate on the merits and defects of the amendment at hand.

    That said, I do agree with the premise of the article, and have said as much on the NovaTownHall blog. Wilkinson says, “Judges began the rush to constitutionalization.” The problem is judges “finding” rights in “emanations and penumbras.” The proper solution would be to impeach these activist judges, to whom these cases are brought when the plaintiffs cannot convince a legislature or public that their beliefs are correct. It is, of course, much easier to convince one judge than to convince a majority of two legislative houses and a governor.

    So, when the judges dismiss the will of the people, in the form of laws enacted by the people’s elected representatives, there are only two options: Constitutional Amendments and Impeachments. Since impeachments are most unlikely, the only option left is a Constitutional Amendment. (If you can think of another option, let me know.)

    Let us assume that the Supreme Court of Virgina were to find as the Mass. court did. Since no ex post facto law may be passed, all same-sex marriages entered into before a constitutional amendment overturns the court’s decision would still be in force. The Mass. case and the failure to pass the Federal Marriage Amendment exemplify the difficulty of passing a Constitutional Amendment, so it only makes sense to pass the amendment before a judge can declare that same-sex marriages cannot be prohibited.

    (I must, however, disagree with Mr. Wilkinson’s assertion that “Proponents of the [Federal Marriage] amendment say that states need protection from activist judges in other jurisdictions.” The FMA was to protect states from FEDERAL judges.)

    Mr. Wilknison asks a good question, and one you quote yourself: “Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes?”

    How about the pro-marriage-amendment and the GLBT communities agree to a truce? No lawsuits, no amendments. All change must be through legislatures and referenda. Would you agree to that?

  2. Pingback: Judge Wilkinson: No to amendment « Vivian J. Paige

  3. David says:

    Jack, I don’t consider you to be personally responsible for putting this embarrassment of an amendment on the ballot, so you needn’t feel personally attacked by the term “small-minded opportunists.” It is descriptive of those to whom it applies. And yes, trying to insert the opinion of one side of a debate on a controversial issue into our Bill of Rights is anti-democratic. I think Judge Wilkinson did a good job of articulating that.

    Let me put it this way: The fact that we can have this debate, and that our children’s generation can elect legislators who will make different public policy decisions is a fundamental principle worthy of our constitution. Acting as though your opinion about a controversial issue of the day is somehow a fundamental principle of the same caliber is pure hubris. At some point in our history the majority of people felt a certain way about slavery, and about interracial marriage, and about whether women should have the vote. That didn’t make them right.

    I am completely confident that there will eventually be marriage equality in Virginia, that it will happen legislatively, and that we will all survive just fine. I have very little faith in the staying power of judicial rulings that are not reflective of public opinion. I say this because of the way that public opinion is trending. You know it too, and it’s why you feel such urgency to enshrine your opinion in the constitution in the first place, and foreclose on legislative consideration of this matter. You are on the wrong side of history and you know it.

    You do realize that I don’t have the authority to make deals for the GLBT community, right? I can only offer my own view, and this is it.

  4. Jack says:


    First, Wilkinson never called the Marriage Amendment term anti-democratic. Can there be anything MORE democratic than a vote by the people?

    Second, if you are so sure that your view will win out, why are you concerned with the Marriage Amendment? It is no harder to remove an amendment than it is to put one in.

    Lastly, you have offered your view, but your view did not say whether you thought “No Lawsuits, No Amendments” was a fair deal. Do you?

  5. Jonathan says:

    Jack, you must have missed the final paragraph of the Wilkinson’s op-ed which begins:

    Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics — some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which…

    If you don’t understand how this addresses your first question, rephrase it and try again. In your second point, you appear to advocate a constitutional legislative process. Is that what you’d like, a contemporaneous trial and error constitution? That’s not the America envisioned by the framers.

    The “fair deal” you offer is nonsensical. Who are we to make such deals? The framers put a process together, and it’s a good process. Leave it alone.

  6. Jack says:

    Perhaps Wilkinson misspoke (miswrote?), and meant to say “normal republican processes,”in which case it would be dealt with in the legislatures, not in referenda, which are democratic processes. Of course, we do not have referenda in VA as other states do. All ballot questions are posed by the legislature, not by petition, as in California. So the Amendment process is both republican and democratic, because it must pass the legislature and popular vote.

    I do NOT advocate a “constitutional legislative process.” In fact, I agree with Wilkinson that such matters should not be decided in the courts, through lawsuits, nor by constitutional amendments. But when judges are “concocting” (Wilkinson’s word) rights, what options are left?

    The America the framers envisioned had checks and balances. What are the checks on the Judiciary? Impeachment and Constitutional Amendment. Is there another?

    The lawsuits came first. THEN came the Amendments.

    You have taken half of what Wilkinson said, that part that opposes amendments, and ignored the other half, that opposes the courts “concocting rights.” I agree with him on the both points, but most gay-rights groups do not. When the NY high court ruled that marriage should be defined by the legislature, as Wilkinson says, they gay-rights groups were “disappointed.”

    I have only proposed that we take Wilkinson’s advise, and stop BOTH the lawsuits and the amendments. (After all, if there were no lawsuits, there would be no need for amendments.)What’s wrong with that?

  7. Jonathan says:

    Jack says: What’s wrong with that?

    Please read Judge Wilkinson’s op-ed again. Regardless of whether you believe the judiciary is “concocting rights” or not, the conservative judge is clear. “Leave constitutions alone.”

    If you continue to have a beef, take it up with the judge.

  8. Jack says:

    He also says that judges are “concocting rights.” They cannot do that unless cases are brought before them. Stop bringing lawsuits, and there will be no need for Amendments.

    David is confident that legislatures will come around to your way of thinking, so why not leave it to them, as Wilkerson recommends?

  9. Jonathan says:


    How do you distinguish between a valid court challenge and an invalid challenge? Do you consider all LGBT-rights challenges to be invalid?

  10. Jack says:


    What rights do I have that you do not have? Can you not vote? Can you not buy a house or a car? Can you not get a loan or eat in the restaraunt of your choice? Can you not marry whatever available woman will have you. You can now even marry whatever available man will have you if you are willing to go to Massachusetts. I must assume that what you want is just not worth moving.

    But aside from that, the point of the Amendments is to head off the lawsuits that claim a right to same-sex marriage. If one side is justified in fighting via the courts, then so is the other side in passing Constitutional Amendments. Without the lawsuits, your opponents would not feel the need to pass Amendments to head them off.

    Of course, I do not expect you to agree with David on everything. So you may not have the confidence he does. But if you do, then I think you are making your task more difficult by pushing lawsuits that goad your opposition into passing Amendments. I would have thought you would readily agree to such a truce.

  11. Jonathan says:

    Can you not buy a house…?

    People who are not familiar with Virginia law should carefully read the issues at Equality Virginia and take particular note of the tenuous state of our ability to secure a home loan. The supporters of the heinous anti-gay anti-democratic Marshall/Newman amendment would like to revert the home lending policy back to “Family Rule” which would prevent people unrelated by blood, marriage or adoption from securing a home loan. The patrons of this anti-capitalist measure are all folks on the some-families foundation best and brightest list.

    Patrons– McDougle, Black, Byron, Cole, Cosgrove, Cox, Griffith, Janis, Lingamfelter, Marshall, R.G., McDonnell, Nixon and Nutter

    This bill passed in the GA in February 2007 (but not the Senate). It should be clear that the house patrons feel that the ability to secure a loan and set up a household recognizes a “legal status to which is assigned the rights, benefits, obligations qualities, or effects of marriage”.

    Virginia is the only state that had such a provision in 2003 when it was overturned, and there is no guarantee that the clock won’t be turned back. The amendment will give legislators a powerful instrument to do just that.

    As reported on the Equality Virginia site:

    Virginia lags behind much of the rest of the country in the protections it offers its gay, lesbian, bisexual, and transgender residents. Virginia ranked 49 out of 51 (ahead of Alabama and Oklahoma) in a Washington Blade newspaper survey comparing LGBT-friendly laws among the 50 states and the District of Columbia.

    But 49/51 is not hostile enough for amendment backers. That’s why we need to get the word out to all voters. Just say NO! Don’t put a voter stamp of approval on anti-gay animus.

  12. Jack says:

    So, you can get a loan. I have known many same-sex people who bought a house together. The one restriction you mention was for loans made by the State in its Single Family Loan Program. It seems to me that the legislature can reverse that any time they wish. The Amendment will not affect that power. (Can you tell me what the bill number was? I’d like to read it. Thanks.)

    You make assertions that VA is so bad for gays, but give the only one example of a proposal that died in the Senate.

    Now, let’s get back to the topic of Wilkinson’s article. The gay-rights community is using lawsuits as their preferred tactic to attain their goals. This has resulted in the backlash of Marriage Amendments, which are passing all over the place. How is this helping your cause?

    Your lawsuits are resulting in the passage of Amendments that will make it harder to attain you goals. Why are you not willing to abandon a failing tactic and fight in the legislatures instead?

  13. David says:

    Jonathan has been very patient in answering questions, etc, but I have to agree that it’s time to bring this back to the topic at hand.

    Jack, if you don’t understand how Virginia law discriminates against GLBT people and why Virginia is ranked so poorly, it’s really incumbent upon you to avail yourself of the sources we’ve offered you. If you are truly interested in understanding this, you can make the effort to learn the facts. If, on the other hand, you are only interested in argumentation because you think that gay people should really just pretend to be straight and not expect equal treatment under the law, you will continue to ask the same questions that we have already addressed.

    Judge Wilkinson has illustrated what a real conservative is, as opposed to some of those currently claiming that label who really just want to undermine the system of goverment that our framers had in mind.

    You both disagree with the ruling of the Massachusetts Supreme Court. Fine. The difference is that Wilkinson would never suggest that one of the fundamental freedoms enumerated in our Bill of Rights, the right to petition, should be removed from a category of person, either by the legislature or, as you suggest, by voluntarily giving it up. That is NOT a conservative position.

    We have three branches of government, for good reason. I don’t always agree with court rulings either. I didn’t agree with Bowers, for example. But I don’t run around demanding the impeachment of judges, or that certain topics be removed from the purview of federal courts because I didn’t get my way.

    What I said was that I have very little faith in the staying power of judicial rulings that are not reflective of public opinion. That is hardly the same thing as suggesting that people shouldn’t use their constitutional right to petition the government when they have a grievance. Your suggested “truce” is an insult to our framers, frankly.

    You happen to be on the wrong side of where public opinion is heading, which is your real problem. Why don’t you just admit that you are opposed to equal treatment under the law for GLBT people no matter what the source? You don’t like court rulings that find for GLBT rights, you don’t like legislative remedies, and you don’t like the fact that you will soon be in a marginalized minority – regardless of any constitutional amendments that may or may not be passed.

  14. Jack says:


    I’m afraid you have things a bit backward. You are the one who wants a change in the status quo, so it is you who need to convince the majority that the status should be changed. The only example Jonathan gave was fixed in 2003, apparently with overwhelming support. That is hardly a compelling reason to change the status quo.

    Bowers v. Hardwick was overturned by Lawrence v. Texas, so that is a non-issue as well.

    Almost all employees now sign an “at-will employment” contract, meaning the employee may be fired for any reason or no reason at all, so employement discrimination is moot.

    You did not respond the last time I asked, so I will ask again: What do you want that you do not now have?

    Now, back to the topic at hand: Lawsuits vs. Amendments.

    How many states have passed Marriage Amendments? How many such amendments failed when put to the voters? Currently, David, you are losing. The lawsuit tactic is not working, and the backlash is harming your cause. You may eventually win, but your own obstinate adherance to failing tactics is delaying your victory. It will take a lot longer to overturn these amendments than it would to push through legislative changes. If you are so confident in legislative victory, why delay it?

  15. Jonathan says:

    David should we bring Jack on board as a political consultant? He certainly has strong opinions about the needs, timing, strategy and tactics of the LGBT community. Too bad inconvenient facts get in the way.

    1. 1. The Loudoun County Republican Committee passed a resolution calling for a return to Bowers.
    2. 2. The va4marriage site contains a letter from Dr. James Dobson where he says that the Lawrence decision erases thousands of years of wisdom
    3. 3. Lawrence was decided by a split court and the composition of the court has changed since that decision.
    4. 4. Bob McDonnell overruled Governor Kaine’s executive order that would have protected state employees from discrimination based on their sexual orientation.
    5. 5. Judge Wilkinson never raised a so-called “Lawsuits vs. Amendments” dichotomy in his op-ed. Jack made it up.
    6. 6. EqualityLoudoun has not taken a position on a “lawsuit tactic”. Jack made that up too.
    7. 7. Legislative victories generally go to anti-gay activist representatives in Virginia. See for example the draconian anti-marriage legislation HB 751.

    Regardless, thanks for the advice Jack. You may fill out an EqualityLoudoun membership form, pay your dues, and become a voting member. You may also attend social events and present your opinions in person. Given that we are two months away from a major election, there isn’t really much of an opportunity to pursue legislative victories. You are welcome to canvass with us or phone bank. Looking forward to working with you.

  16. Jack says:


    Sarcasm does not suit you. It is said to be the last refuge of a defeated wit, and you seem to have more wit than that.

    As for my giving you advise, didn’t Clinton hire a Republican or two? Having a member of the loyal opposition as an advisor can help one sharpen one’s arguments, and find holes in one’s logic before your opponent finds them in a debate. I might consider a paid position.

    Nevertheless, only your 4th point brings up something in the status quo that you want to change. (As a point of disclosure, I voted for McDonnell’s opponent.) Please send more info on the executive order (did it have a number?) so that I may read it and McDonnell’s response. What discrimination against gays working in the state government has occurred?

    Your 1st and 2nd points go to my suggesting of “winning hearts and minds.” (BTW, who is James Dobson, and why should anyone care what he thinks?)

    The current composition of the court is not one that changes precedents lightly. Still, you have a valid point. But since, as you say, you “have very little faith in the staying power of judicial rulings that are not reflective of public opinion,” why do you persue such rulings? Hearts and minds again.

    Point 5: Actually, Wilkinson did bring up the lawsuits vs. amendments dichotomy. He said, “Judges began the rush to constitutionalize. The Massachusetts Supreme Court concocted a state constitutional right to marry persons of the same sex.” The judges could not have “concocted” any such right if the case had not been brought before them via a lawsuit. He goes on the say that, “It would be altogether understandable for Congress and state legislatures to counter this constitutional excess with constitutional responses of their own.” That dichotimy is, in fact, central to the premise of his article, which is that the proper place for these changes is via legislation, not lawsuits or constitutional amendments. “Leave Constitutions alone” is an admonition not to change constitutions, either by amendment or by judicial fiat.

    Point 6: I offer my apologies. Most gay-rights organizations support such lawsuits. I assumed you did, too.

    Point 7: Point granted — you are not winning in the legislatures, either. It is easier to convince one judge, or some majority of a small judicial panel, than it is to convince the larger majorities of two houses, a governor, and possibly the citizens. The problem is you are winning a lawsuit or two, losing more, and incurring the backlash of those who disagree with you. If you do not share David’s optimism of eventual legislative victory, then I will grant that your best, if somewhat dangerous, option is through the courts.

    As for your kind offer, I would prefer a paid position.

  17. David says:

    So would I 🙂

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