Reagan Judge Warns Amendments Will Warrant History's Censure

It is a law review article I regret not reading sooner, and it's a law review article the proponents of SJR-7 and amendments like it wish had never seen the light of day. A prominent Reagan-appointed judge whose name has been on the short list of conservatives as a potential nominee to the Supreme Court has written a scathing law review article of efforts to amend both the federal and state constitutions to ban same-sex marriages. "Lawmakers possess many legitimate ways to protect traditional marriage," J. Harvie Wilkinson, III, of the 4th Circuit Court of Appeals wrote in the Duke Law Journal last fall. "But in filling founding charters with amendments fellow Americans perceive as punitive, we both do damage to the rule of law and embark on a course that will warrant history's censure."

Wilkinson's well-reasoned arguments against same-sex marriage amendments cannot be easily dismissed by social conservatives. He's equally as critical of the Supreme Court's decision in Lawrence v. Texas striking down Texas' same-sex sodomy law and the Massachusetts Supreme Court's ruling legalizing same-sex marriages in Goodrich. Wilkinson is critical of those opinions not because of their outcomes as much as they demonstrated an inherent lack of faith in democracy. Indeed, he calls the outcome in Lawrence "eminently just and humane." On the subject of gay rights, Wilkinson sees the democratic process moving in the right direction insofar as most states on their own initiative repealed sodomy laws and, in the case of same-sex relationships, an increasing number of states are recognizing civil unions.

Whatever his disagreement may be with the court decisions in Lawrence or Goodrich, Wilkinson is far more concerned about what the response has been from those advocating federal and state constitutional amendments to ban same-sex marriages. While proponents of the amendments offer them as a cure for "judicial overreaching", Wilkinson sees the end result quite differently. Describing how the amendment empower judges more than ever, Wilkinson writes:

In fact, the amendment empowers judges. Its effect will be the opposite of what its backers intend. The proposed amendment would withdraw the debate over same-sex unions further from the democratic process than the courts did in Goodridge and Lawrence. Judges always have the last word when it comes to constitutions. They would be the ultimate interpreters of ambiguities that are the common and perhaps inevitable byproducts of drafting compromises. And although legislatures can reverse judicial interpretations of current laws with new laws, they cannot easily reverse interpretations of constitutional texts. As a result, the proposed amendment presents the ultimate irony: it would give final authority to the same judges that the amendment's proponents have accused of overreaching.

So quite to the contrary, a constitutional amendment banning same-sex marriages will not take the issue away from judges because of the ambiguity it creates. Recall that the proponents of SJR-7 have stated time and time again that the amendment is not ambiguous. Wilkinson focuses on two terms within the proposed federal amendment, which are also included in SJR-7: "marriage" and "incidents of marriage." To many people, the term "marriage" is rather straight-forward, but it's not as cut-and-dried according to Wilkinson. "Under a narrow reading, marriage represents a legal status that states may define however they wish," he suggests. "The amendment simply forbids states from conferring that status -- however states define it -- upon same-sex couples." "States could still give same-sex couples the benefits traditionally associated with marriage through civil unions or domestic partnerships," he opines. "An alternative reading, however, would treat "marriage" as encompassing the rights and privileges to which the term has historically referred," he adds. "The amendment would thus forbid states from conferring those benefits upon same-sex couples."

As I and other opponents of SJR-7 have suggested, Wilkinson agrees the term "incidents of marriage" really opens up a can of worms. His observation about the term deserves the attention of everyone. He writes:

In particular, it is unclear what "incidents" the amendment places outside state and federal constitutions. The incidents of marriage typically include certain government benefits and special property and inheritance rights, among others, but these rights are defined almost exclusively by the states. The amendment might change this, by making the "incidents" of marriage a constitutional term of art. Courts would have to decide whether the amendment governed the incidents of marriage however they are defined by state law -- meaning that the amendment would apply to differing benefits from state to state -- or whether the amendment required courts to develop a uniform federal definition of the incidents of marriage. Existing jurisprudence offers precedent for both interpretations. For example, the Fourteenth Amendment provides in part that no state shall "deprive any person of life, liberty, or property without due process of law." The Supreme Court has derived its definition of "property" under this amendment from state law, but permitted courts to give independent content to "liberty." Both approaches to the marriage amendment are possible, and judges would decide.

Nor would this be the end of the matter. If courts adopted a universal definition of marriage's incidents, what would they include? For instance, would a right be an incident of marriage if it were associated with marriage in every state, or in some proportion of states? Furthermore, under any approach, courts would need to decide whether incidents include only rights that are exclusive to marriage -- such as the special tax treatment given to married couples -- or whether they include rights made available on the basis of marriage and a few other special relationships, such as those relating to health insurance, hospital visitation, and rent control in many states. The interpretative difficulties run on and on.

Wilkinson dismisses the argument of proponents who insist their interpretation is best and that is how the terms will be interpreted by the courts. "The question is not how the ambiguities should be interpreted, but who will be responsible for the interpreting," he writes. "Although the proposed amendment seeks to remove the judiciary from the same-sex marriage debate, the amendment will thrust the court further into the debate by giving judges that power." "It will validate federal judicial oversight of marriage and all that pertains to it."

Wilkinson shudders at the thought of enacting a federal amendment on the subject of marriage. "It is particularly sad that the amendment would impose national uniformity on the subject of domestic relations, an area that has long been a preserve of state and local control," he writes. "For in contrast to the national government's "few and defined" powers, "[t]he powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and the properties of the people, and the internal order, improvement, and prosperity of the State." "Domestic relations are the coin of the local realm," he opines. "In fact, the Supreme Court has rejected a broad interpretation of Congress's power to regulate interstate commerce precisely because it could logically give Congress the power to regulate "marriage, divorce, and childrearing." It is ironic that the very people who traditionally argue in favor of state and local power versus federal power are proposing to hand so much power in the area of marriage to federal judges.

On the subject of state amendments, Wilkinson analyzes specific state amendments, including those very similar or identical in language to SJR-7. While proponents insist the language of SJR-7 acts only as a limitation on what judges can do, Wilkinson sees it differently. In describing amendments similar to SJR-7, Wilkinson writes:

Other amendments, however, employ a variety of textual prohibitions designed to prevent both courts and legislators from creating any legal status similar to marriage. Other state amendments prohibit not only the recognition of same-sex relationships, but also receipt of the "incidents," "benefits," or "rights" of marriage by same-sex couples. The Oklahoma and Kansas constitutions, for instance, first define marriage as the union of one man and one woman and then provide that "[n]either th[e] Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." Similarly, in Ohio the state may not "create or recognize a legal status for [same-sex] relationships . . . that intends to approximate the design, qualities, significance or effect of marriage.

More importantly, Wilkinson explains in his article why state amendment are unnecessary. "Only one state currently recognizes same-sex marriage and not once has a state been forced to recognize a same-sex marriage celebrated elsewhere," he notes. "Indeed, every appellate court to consider the issue post-Lawrence -- with Goodridge being the exception that proves the rule -- has left it to state legislatures to define the boundaries of marriage." Wilkinson sees no need for an amendment where a state like Indiana has already enacted a Defense of Marriage law. "State law then, as a clear expression of public policy, precludes the forced recognition of same-sex marriage and renders state constitutional amendments superfluous, at least to the extent they purport to deny such recognition," he observes.

Wilkinson sees the amendments as nothing more than "a preemptive strike against what some hypothetical court in some hypothetical jurisdiction might some day say." This he says is "an insufficient basis" to amend a constitution. It should, instead be used as "an extraordinary mechanism -- a tool of last resort properly reserved for situations which present no other choice." "To amend a constitution preemptively, in anticipation of the proverbial rainy day, is, simply put, gratuitous." But Wilkinson makes an even more important point. "No constitution should ever assign its citizens pariah status," he states. "No constitution should relegate its citizens so symbolically and semipermanently to the shadows of national life."

Wilkinson's articles covers much more than I've discussed here, which is equally as important. This article should be "must reading" for every member of the Indiana General Assembly before they ever contemplate another vote on SJR-7. Unlike people like myself and other opponents of SJR-7, the proponents simply cannot dismiss Wilkinson's views as simply being "political" or based upon his own personal agenda. In fact, Wilkinson's candor in discussing this hot-button social issue will most assuredly make it next to impossible for him to win an appointment to the Supreme Court--a position for which he is eminently qualified. Wilkinson has done his country a great favor by laying the arguments out against same-sex marriage amendments to his own professional peril.