Ever since I met Judge J. Harvie Wilkinson while president of the Federalist Society at the University of Virginia School of Law, I have been impressed with that conservative jurist. Now on the Fourth Circuit Court of Appeals, he was recently on President Bush’s short list for appointment to the U.S. Supreme Court. Indeed, he was at the time, my first choice for the spot later filled by current Chief Justice John Roberts.
Not only is Judge Wilkinson widely respected, but he is also a decent human being. Warm and gracious in person, he wrote personal notes to me, thanking me for invitations I extended to him to speak at Federalist Society events. Thus, I was delighted when my friend Rick Sincere alerted to me to his latest post where Rick notes the good judge’s opposition to a constitutional amendment defining marriage.
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.
Among many other wise things he says in his column, this conservative jurist notes, “To constitutionalize matters of family law is to break with state traditions” and asks “Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes?”
For in this short piece, Judge Wilkinson succinctly makes the conservative case against amending the constitution to define marriage — and he does so better than any other other writer I’ve read. It is, in short, the argument of a Ronald Reagan Republican.
It was indeed the Gipper himself who appointed Wilkinson to the federal bench in 1984. And it is to President Bush’s credit that he considered such a jurist for the nation’s highest court.