House Republicans hired former solicitor general Paul Clement to represent the view that “any effort to redefine the institution of marriage as something other than the union of one man and one woman” is better left to the political branches of government.
That view was — gently and respectfully — debated this past weekend at a panel sponsored by the College of William and Mary Law School’s Institute of Bill of Rights Law.
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Judge J. Harvie Wilkinson III, the well-regarded conservative on the U.S. Court of Appeals for the 4th Circuit, called the question “wrenchingly hard.” He noted the contributions of gay Americans and said it was striking that the movement’s aims in the courts is to “partake in the most traditional” of American rights: to serve in the military and to get married.
But he said the Constitution protects “not only individual liberty but democratic liberty.”
Legal challenges seeking same-sex marriage rights have led to what he said were regrettable decisions by states to amend their constitutions to forbid them.
He noted the rapidly changing political environment, and said there is no reason to believe gays could not achieve their goals politically, rather than by judicial fiat.
He was answered by Paul M. Smith, a celebrated Supreme Court practitioner who happens to be gay. The DOMA cases, he said, place “states’ right and gay rights on the same side.”
Striking the law would not require other states to sanction same-sex marriages, he said, but only require federal recognition of legal same-sex marriages performed in those states that allow it.
Courts are essential, Smith said. Brown v. Board of Education served as a catalyst for the civil rights movement; the 2004 decision of the Supreme Judicial Court of Massachusetts served the same function for the same-sex marriage movement.
Politics are changing, Smith agreed with Wilkinson. But that doesn’t mean gay Americans should wait, he said, or “stop asking for the Equal Protection Clause to be applied to you.”
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