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Wednesday, September 6, 2006

“Leave constitutions alone.”

The conservative blogosphere is in a tizzy. Sure, that's nothing new in and of itself, but this time their bile is directed at one of their own. In a Washington Post op-ed yesterday, Fourth Circuit Judge J. Harvie Wilkinson didn't toe the line, arguing that “constitutional bans on same-sex unions carry terrible costs.” Although Judge Wilkinson criticized some judges for starting the “rush to constitutionalize” this issue by recognizing a right to gay marriage in state constitutions, he noted that in most states judges were unlikely to recognize such a right. Thus, he maintained, constitutional amendments banning gay marriage – rather than ordinary legislation – needlessly worsen the damage to our constitutional tradition because they remove the debate from the realm of “normal democratic processes” and “strike[] a blow of uncommon harshness” on gay citizens. According to Judge Wilkinson, a conservative Reagan appointee formerly on President Bush's "short list" for the Supreme Court, “the more passionate an issue, the less justification there often is for constitutionalizing it,” because passionate views may not stand the test of time. So, on an issue like gay marriage, Judge Wilkinson says we should not shield the winning position today from second-guessing by tomorrow’s majority. In other words, when it comes to gay marriage bans: “Leave constitutions alone.”

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