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Conservative Favorite: No to Gay Marriage Ban

Many conservatives were hoping that President Bush would tap J. Harvie Wilkinson III for a seat on the Supreme Court. It turns out that Wilkinson is against constitutional amendments banning gay marriage (see this oped) in The 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.

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. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country’s founding charter as their own.

And this:

I do not argue that same-sex marriage is a good or desirable phenomenon, only that constitutional bans on same-sex unions carry terrible costs. Partisans see only one side of a profound controversy when in fact there are two. 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 to be 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 might 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?

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