Bench Memos

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Wilkinsonian Constitutionalism, part three


Judge Wilkinson wishes to assure advocates of constitutional protection for the tradition of marriage that all the protection they could reasonably desire from the depredations of “activist judges in other jurisdictions” is already present in the federal Defense of Marriage Act, and in prevailing interpretations of the Constitution’s full faith and credit clause.  It’s not clear whether the judges he has in mind at this precise point in his argument are state judges or federal ones.  But it is the latter who may well undo us one day, and this prospect is hardly even on Judge Wilkinson’s radar screen.

As I argued here at NRO over two years ago, there is ample ammunition lying about in the judicial arsenal right now to explode the sex-restrictive marriage laws of all the states in the Union.  All that is necessary is for five Supreme Court justices to fuse the jurisprudential principles of 1967’s Loving v. Virginia (holding bans on interracial marriage to further “no legitimate overriding purpose independent of invidious racial discrimination”) with the principles of 2003’s Lawrence v. Texas (holding a state ban on homosexual sodomy to violate the Constitution’s protection of “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education”).  Throw in, for good measure, the Supreme Court’s precedent in Romer v. Evans (1996), in which a state constitutional amendment was condemned as resting on nothing more than an illegitimate animus against homosexuals, and all one needs is five justices willing to tie a ribbon around this new gift to the nation.

It is telling, but not encouraging, that Judge Wilkinson never mentions the Lawrence ruling.  For as everyone knows, while Justice Kennedy disclaimed any intention of interfering with state marriage laws, Justice Scalia predicted that the ruling’s principles would be an engine driving us toward the dismantling of such laws.  And the Massachusetts high court proved Scalia right by citing Lawrence as a pivotal precedent in constitutionalizing a right to same-sex marriage.

Is it too much to ask an experienced federal judge to take these relevant legal materials into account?

Nor is it reassuring, as Judge Wilkinson appears to think, that judges in several state courts have “recently rejected invitations to follow Massachusetts,” or that most state court judges are answerable to the people in some form of election.  “One swallow does not a summer make” is a sufficient response to the first observation.  And it is not chiefly state judges that are the pertinent worry.  It’s federal judges, like . . . J. Harvie Wilkinson and his colleagues.  Funny that he never really talks about whether they can be trusted.


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