J. Harvie Wilkinson III, who sits on the U.S. Court of Appeals
for the 4th Circuit, is a conservative judge who has been on
conservatives' short list for the U.S. Supreme Court. So it's worth
noting his op-ed in the Washington Post that's critical not only of
the proposed federal anti-gay marriage amendment, but also of state
constitutional bans on gay marriage. In
Hands Off Constitutions: This Isn't the Way to Ban Same-Sex
Marriage, Judge Wilkinson writes:
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 do not argue that same-sex marriage is a good or desirable
phenomenon, only that constitutional bans on same-sex unions carry
terrible costs. ...
It is sad that the state of James Madison and John Marshall
[Virginia] 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.
Behold, a principled conservative!
More. Something must be in the water down in
old Virginny. Here's
another anti-amendment column by another Republican judge,
Raymond A. Warren. He writes:
More troubling is the effect the amendment might have on private
arrangements such as domestic partnership health benefits now
widely offered by major employers in Virginia. ... It would be a
rational legal conclusion that such programs create either a
"partnership" or a "legal status" that Virginia's courts could not
recognize. ... Even private contracts cannot violate the
Commonwealth's public policy and it is not inconceivable that the
courts could read the new amendment broadly enough to create a
public policy against such contracts. . . .
Worse, the everyday documents many unmarried couples (including
non-gay couples) use to protect their legal and financial interests
would be called into question by the proposal's broad language.
...
All this would leave Virginia at a distinct disadvantage in the
global economy.
And he's right. Some conservatives care about liberty, legal
equality, and prosperity (and yes, they are linked). Others,
especially social conservatives, are not only bigoted but are as
economically illerate as their leftwing counterparts.