Feeds:
Posts
Comments

Posts Tagged ‘Kennedy’

Times were different in 2006 when Judge Wilkinson wrote the Duke Law Journal piece excerpted below, Gay Rights and American Constitutionalism: What’s a Constitution For?

The California Supreme Court had not yet construed that State’s constitution to provide a right to same-sex marriage. But the citizens of Virginia were considering an amendment to that State’s constitution (an amendment that ultimately passed).

Judge Wilkinson argued against using a constitutional amendment as a ” preemptive strike against what some hypothetical court in some hypothetical jurisdiction might some day say.” He thought that “it would be astonishing for a court applying the rational basis scrutiny used in Romer and arguably in Lawrence to hold that a state lacks a rational basis to define marriage in its public policy, resting as that policy does on centuries of tradition and experience.” And  “[i]t would be particularly astonishing for courts to make such a pronouncement in the domestic relations sphere that lies at the heart of states’ competence.” Because “Lawrence and Romer are a far cry from this momentous step,” he argued, a constitutional amendment “would simply indulge the worst suspicions about the Supreme Court, preempting a decision that may never come.”

Some additional excerpts:

A tragedy is befalling American constitutional law. Both left and right in the gay rights struggle have indiscriminately indulged the impulse to constitutionalize.

* * *

Lawrence has been taken to task for overblown rhetoric, its overruling of precedent, its repudiation of traditional moral values, its reliance on unenumerated rights, and its resort to foreign law, most especially a decision of the European Court of Human Rights. Still, the result in Lawrence is eminently just and humane; the real flaw of the decision was to set the struggle over gay rights on a constitutional course. The Court’s lack of faith and trust in democracy was endemic. * * * [D]emocracy itself was on a decent and humane path, and the Court’s decision to preempt it with a problematic constitutional pronouncement was dangerously shortsighted.

* * *

It would be astonishing for a court applying the rational basis scrutiny used in Romer and arguably in Lawrence to hold that a state lacks a rational basis to define marriage in its public policy, resting as that policy does on centuries of tradition and experience. It would be particularly astonishing for courts to make such a pronouncement in the domestic relations sphere that lies at the heart of states’ competence.

* * *

The marriage amendment phenomenon then can only be viewed as a preemptive strike against what some hypothetical court in some hypothetical jurisdiction might some day say. This is an insufficient basis on which to amend foundational texts like state constitutions. A constitutional amendment is not by nature a preemptive device. It is instead an extraordinary mechanism–a tool of last resort properly reserved for situations which present no other choice. To amend a constitution preemptively, in anticipation of the proverbial rainy day, is, simply put, gratuitous. Such needless use of the amendment process is antithetical to the very essence of constitutional lawmaking and to the notion of a fundamental, guiding, and multigenerational charter. * * * Although a state with no other recourse is surely justified in responding to an activist constitutional interpretation, gratuitous amendments to our most basic documents of governance are hurtful and alienating in a way all their own.

* * *

It is the job of legislatures, not constitutions, to reflect evolving standards and to register change from whatever direction it may arrive. Statutes are more amenable to adjustment and modification than constitutional provisions are. And American constitutional tradition has always preserved for majorities the right to overrule courts on policy matters through statutory amendment rather than through the cumbersome process of constitutional change.

* * *

This difference between constitutional and statutory law bears quite directly on the question of gay rights. No constitution should ever assign its citizens pariah status. No constitution should relegate its citizens so symbolically and semipermanently to the shadows of national life. As a matter of statute, however, the balance changes. Statutes exist for the expression of values central to the imperative of social cohesion. Statutes legitimately articulate within limits a community’s aspirations for marriage, the raising of children, and the conduct of family life. It is in this difference between constitutional and statutory law that America strikes the balance between claims of personal rights and assertions of community prerogative.

* * *

[T]he chief casualty of the same-sex marriage debate has been the American constitutional tradition. Although electorates understandably are more concerned with results than with process, the Framers were concerned supremely with process, and that process has made possible our civility, self-governance, and greatness as a democratic nation. * * * 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.

 That, however, is hardly the end of the matter. Marriage between male and female is more than a matter of biological complementarity–the union of the two has been thought through the ages more mystical and profound than the separate identities of each alone. Without strong family structures, there will be no stable and healthy social order, and alternative marriage structures may weaken the sanction of law and custom necessary for human families to flourish and children to grow. These are no small risks, and present trends are not often more sound than the cumulative wisdom of the centuries.

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? The dangers of doing otherwise are clear. When we  politicize our basic documents of governance, we deepen exponentially the wounds of civic life.

 The more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are much too sure they are right. Certainty is, to be sure, a constant feature of our politics–some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day’s time and arena. Their message is as clear today as it was at the Founding: Leave Constitutions alone!

Excerpts from: J. Harvie Wilkinson III, Gay Rights and American Constitutionalism: What’s A Constitution for?, 56 Duke L.J. 545 (2006).

Read Full Post »

Justice Kennedy’s vote on the constitutionality of the individual mandate is bound to be a disappointment regardless of how he votes.

Two decades ago, it was widely expected that he would vote to overturn Roe v. Wade and return state abortion legislation to rational basis review. And he did vote that way . . . only to later switch and vote another way. If Justice Kennedy follows his Casey pattern, that means he will have voted at conference to hold the individual mandate unconstitutional, only to switch his vote some time during writing. That would be a disappointment to many.

But Justice Kennedy’s Casey vote did not work out quite as he anticipated, as his dissent in Stenberg v. Carhart and his opinion for the Court in in Gonzales v. Carhart bear out. Moreover, Justice Kennedy may still be nursing resentment over his Flipper reputation from October 1991 Term (which brought both Casey and Lee v. Weisman). Perhaps he learned from Casey that he should not flip his vote in cases of that magnitude. And if that was his takeaway from Casey for the individual mandate ruling, then he not only voted at conference to hold the individual mandate unconstitutional, but also did not switch to the other side during writing.

Yet Justice Kennedy’s contemplation of a 5-4 split down the lines of partisan appointments may have brought to mind Bush v. Gore . . . leading to no change at all. For Justice Kennedy simply cannot understand why anyone would question the Court’s leanings and rulings from that case alone. In his view, the Bush v. Gore majority was–obviously–only deciding based on its best understanding of the law. And even if Justice Kennedy had worries about public perception, the unpopularity of the individual mandate (which is much less popular now than Al Gore was then) provides some insulation for the Court.

For all these reasons, it will be most interesting to see if Justice Kennedy thinks that stare decisis means the same thing for Raich as it did for Roe.

Read Full Post »

Virginia Attorney General Ken Cuccinelli comments on a Justice Kennedy comment at oral argument over the constitutionality of 26 USC 5000A:

Justice Kennedy noted that the mandate was unique in light of its affirmative requirement of a citizen to purchase something, and that would appear to alter the relationship between the government and individuals in a “fundamental way.”  This is a powerful and deeply philosophical statement that I take great comfort in.

Read Full Post »

Virginia filed a federal lawsuit challenging a federal statute as unconstitutional and seeking to vindicate a state statute. It takes a special perspective for someone to view that federal-court filing as some type of indicator that the Commonwealth may have forgotten that the Civil War is over. Linda Greenhouse appears to have that special perspective, as her most recent Opinionator column reveals. (By the way, does the New York Times have a macro such that any story it runs on the Fourth Circuit must contain something about how the court sits “in the heart of the old Confederacy”?)

My problem is not with the substance of Greenhouse’s claim that Virginia lacked standing to sue the federal government. My problem is with the framing and tone.  Reading Greenhouse’s column reminded me of reading portions of Justice Kennedy’s opinion in Gonzales v. Carhart, 550 U.S. 124 (2007). In these writings of Greenhouse and Kennedy, quasi-constitutional moralism not only distracts from the soundness of the underlying constitutional determination, but also provides unnecessary fodder for disagreement.

Read Full Post »

Judge Wilkinson authored an opinion for a three-judge panel of the Fourth Circuit (Wilkinson, Shedd, Norton by designation) affirming the grant of qualified immunity to Maryland prison employees in Braun v. Maynard. The court holds that strip searches following the positive alert of “a portable ion scanning machine capable of detecting minute amounts of controlled substances” do not violate clearly established federal law implementing the Fourth Amendment.

One interesting tidbit is Judge Wilkinson’s citation of the Supreme Court’s decision in City of Ontario v. Quon, which the opinion invokes as support for the proposition that “[i]t is often difficult for judges, let alone prison officials, to apply Fourth Amendment concepts to cases involving novel technology.” Justice Kennedy’s opinion for the Court in Quon does have a lengthy discussion of Fourth Amendment problems raised by new technology. This discussion drew the ire of Justice Scalia, who thought the majority’s “excursus on the complexity and consequences” of answering a question about the correct application of the Fourth Amendment to new technology not only “unnecessary” but also “exaggerated.” Justice Scalia wrote: “Applying the Fourth Amendment to new technology may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)–or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions–is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse of disregard of duty.”

Read Full Post »

%d bloggers like this: