Wilkinsonian Constitutionalism, part one
Judge Harvie Wilkinson’s op-ed opposing both federal and state constitutional amendments banning same-sex marriage is worthy of attention on several levels. Before addressing his arguments, though, we might ask whether it is proper for a sitting federal appellate judge to write publicly on such an issue, when the people of at least one of the states in his federal circuit jurisdiction (Virginia) will vote on the matter in just two months’ time. It is highly likely that, if the people of Virginia pass the constitutional amendment on their ballot this fall, there will be federal litigation challenging the new language in the state constitution as contrary to the U.S. Constitution. That litigation will wind up on the doorstep of the Fourth Circuit in Richmond—Judge Wilkinson’s court. Will he not then have to recuse himself, thanks to the article he published today?
Maybe not. I am on record as arguing here at NRO that Justice Scalia didn’t need to recuse himself in the recent case involving the phrase “under God” in the Pledge of Allegiance, even though he had expressed an opinion on the central issue in the case months earlier. And Judge Wilkinson doesn’t exactly say what he thinks of the permissibility, under the U.S. Constitution, of a state constitution’s prohibition of same-sex marriage. But on the other hand, Justice Scalia disagreed with me and recused himself (out of an abundance of caution, I’d like to think). And it is possible to infer from certain things he says that Judge Wilkinson might well hold against a state like Virginia, on federal constitutional grounds, if it bans gay marriage in its state constitution. Certainly any lawyer defending a state’s ban would move for recusal if Wilkinson were randomly assigned to the case. And it won’t really do to say that there are plenty of judges to go around for any three-judge panel to which the case is assigned. Were Wilkinson to recuse himself, he would be barred from any subsequent en banc decision-making as well.
Or did Judge Wilkinson write this article (partly) in order to be required to recuse himself from any future case on this issue? That would be an interesting move indeed.