Tuesday, September 05, 2006


Defining Marriage

Judge Harvie Wilkinson III of the US Fourth Circuit is upset because “[o]n the ballot this fall in Virginia and five other states will be proposed constitutional amendments banning gay marriage. Passage of the amendments is all but foreordained, but the first principles of American law will be further endangered.” Hands Off Constitutions

While he expresses an understanding of why states feel the need to constitutionalize their understanding of marriage as expressly between one man and one woman, he feels a constitutional amendment is a little over board because:

“Ordinary legislation -- not constitutional amendments -- should express the community's view that marriage "shall consist only of the union of a man and a woman." 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.”

What a great idea – using ordinary legislation to express a community’s view of what marriage is. For an example of just how well that works, we turn to my home state of Maryland which, coincidentally, is also part of Judge Wilkinson’s 4th Circuit.

Maryland has on its books a statute that reads as follows:

“Only a marriage between a man and a woman is valid in this State”

This would seem to be a perfect example of Judge Wilkinson’s preferred “ordinary legislation” expressing the community’s view. But last January, Baltimore City Circuit Court Judge Brooke Murdock nevertheless invalidated it. Hey Maryland, let me tell you what you think... What would he suggest Maryland do in this instance?

The attempted use of constitutions by legislators to express community values is almost entirely a reaction to meddlesome judicial posturing for the ages. Judge Wilkinson can hardly expect legislators to adopt a unilateral cease-fire in this matter as long as his contemporaries on the various courts continue to believe that a law degree and a black robe give them a wisdom far superior to us mere mortals.

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