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Conservative Judge Opposes FMA

Posted by GayPatriotWest at 12:29 am - September 6, 2006.
Filed under: Conservative Ideas,Gay Marriage

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.

Making an argument similar to one I have made against the Amendment, Wilkinson wrote in yesterday’s Washington Post:

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?

Rather than summarize the rest of his most excellent piece, just read the whole thing and make sure to check out Rick’s thoughts as well.

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.



  1. Wow! I lead in the comments section for the first time 🙂
    That judge’s opinion is excellent! A cohesive & yes, TRUE conservative opinion against the FMA. But alas, there goes his chances of being nominated to SCOTUS. Too many people in the GOP after seeing this guy’s piece will fight tooth & nail against his confirmation. It hurts to see the National Review (a mag that I admire) becoming a chief cheerleader for the FMA (all that’s missing is the pom-poms).

    Comment by Jimbo — September 6, 2006 @ 10:13 am - September 6, 2006

  2. Will it really prevent his getting nominated for the SCOTUS? Afterall, his opinion about whether a specific constitutional amendment is good or bad does not speak to how he would interpret the constitution.

    Comment by Marc W — September 6, 2006 @ 2:13 pm - September 6, 2006

  3. I don’t know about his less-than-certain chances of being confirmed to SCOTUS. Stranger things have happened.

    And yes, as a Federalist, I am totally in favor of his opinion. The Tenth Amendment is, after all, part of the Bill of Rights.

    Peter H.

    Comment by Peter Hughes — September 6, 2006 @ 3:06 pm - September 6, 2006

  4. It’s heartening to see a conservative who has it right and in such a clear and concise statement.

    Comment by Kevin — September 6, 2006 @ 4:49 pm - September 6, 2006

  5. Of course the Founders didn’t envision our Constitution as a place to restrict rights or enact public policies.

    However, that was because they also never envisioned judges who thought the bench was the place for them to concoct new rights or force public policies on voters without their consent.

    When you have power-mad liberals like Ruth Bader Ginsberg, who believes that the government should be able to strip you of your property and sell it to rich people so that the government can increase its tax revenues, this sort of thing is what happens.

    The constitutional amendment movement is born, not purely out of hatred for gays, but out of an absolute refusal by the judiciary to accept its place and accede to the will of voters — and the hate and contempt of the gay left for those same voters.

    The American public will never support people who spit on their religious beliefs, who mock them as uneducated, and who throw hissy fits over their wearing an American-flag hat — as do the gay leftists.

    Comment by North Dallas Thirty — September 6, 2006 @ 5:51 pm - September 6, 2006

  6. 5: Ya really just don’t get the point of 3rd branch of government, do ya? Well, in any growing fascist regime, a scapegoat is always needed and I guess the courts have made a good one.

    And I’m glad that not one single conservative voted with Ginsberg on the eminent domain law….

    Comment by Kevin — September 7, 2006 @ 1:27 pm - September 7, 2006

  7. Unfortunately, Kevin, this isn’t liberal looneyland.

    You can’t criticize Bader Ginsberg’s decision on the one hand as overreaching and then insist that criticism of overreaching jurists like her is fascism and wrong.

    Those two points contradict — and here, you can’t use your usual leftist excuse for making completely contradictory points that “everything a conservative says is wrong”.

    Comment by North Dallas Thirty — September 7, 2006 @ 2:20 pm - September 7, 2006

  8. 7: My point is that some beloved conservative appointees voted along with her. Subltelty really isn’t the strong point on here is it? Guess years of listening screeching people like Bill O’Reilly probably dulls the senses.

    And please don’t create a false quote attributed to me to justify your truthiness.

    Comment by Kevin — September 7, 2006 @ 10:39 pm - September 7, 2006

  9. Screeching people like Bill O? More likely the screeching comes from your side of the aisle (Shrillary, Howie Dean, anyone at the Wellstone funeral et al).

    Peter H.

    Comment by Peter Hughes — September 8, 2006 @ 12:55 pm - September 8, 2006

  10. From the post

    Conservative Judge Opposes FMA

    That’s nice. Does he support equal marriage rights for same-sex couples, as should be required by the 14th Amendment’s equal protection provision? If not, his opposition to FMA doesn’t really mean a whole lot.

    Comment by raj — September 9, 2006 @ 11:27 pm - September 9, 2006

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