Judge Wilkinson speaks out against gay marriage amendment
In a move uncharacteristic of both federal judges and appointees of Republican presidents, Charlottesville's own Judge J. Harvie Wilkinson III of the 4th U.S. Circuit Court of Appeals came out against constitutional amendments banning gay marriage, such as the one on the ballot this year in Virginia, in today's Washington Post op-ed page.
His guest column "Hands Off Constitutions" makes the argument that states that want to ban gay marriage should do so through their legislatures and not with constitutional amendments. He writes, "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. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country's founding charter as their own."
Wilkinson also counters the claim that states need constitutional amendments to protect them from "activist judges" in other jurisdictions, arguing that such protection already exists because of the 1996 Defense of Marriage Act, the federal law that allows a state to deny marital rights to a same-sex couple married in another state. He says an amendment is also unnecessary because legal precedent already exists from the 19th and 20th centuries for states to determine their own family law in such matters as women's property rights and divorce.
While the Reagan appointee did not come out in favor of gay marriage itself, he did say, "It is not wrong for gay citizens to wish to share fully in the life of this country, to partake of its most basic and sacred institution, and to experience the intimacy, bonding and devotion to another that only an institution such as marriage can bring. To embrace this view one need not believe that sexual infidelities will disappear but only that many gay couples will make good on their vows and lead fuller, richer and more productive lives as a result."
Wilkinson's ties to Charlottesville run deep. In addition to living here, he graduated from the UVA Law School in 1972 and was a professor there from 1973-1978 and again in 1983. He took his seat on the federal bench on August 13, 1984. Through the years, federal court watchers have frequently mentioned Wilkinson's name as a potential nominee to the Supreme Court, including for the recent vacancies filled by Chief Justice John Roberts and Justice Samuel Alito.