The fictional exchange is surprising, mainly because of who wrote it. He appears in a novel published in February by J. Harvie Wilkinson III, one of the most conservative judges on the United States Court of Appeals for the 4th Circuit, appointed by Ronald Reagan in 1984.
Wilkinson, 77, said in an interview that in writing the book, published by Milford House Press, he wanted to escape the “acrimony, intolerance and venom” of political life. Its protagonist, Leah, grapples with deeply personal issues: whether to leave her small Pennsylvania town for better career options, how to deal with a tragic death, whether to forgive an intimate betrayal. Although “romantic,” it’s not exactly a romance novel, Judge said.
“Sometimes things are more exciting when they’re talked about than when they’re just laid bare,” Wilkinson said. ” I do not think so [these characters] would have liked their private sex acts to be simply spread out on pages for everyone to visit.
He said he wanted to write from a female perspective in part to develop her own empathy.
“I wanted to reach worlds beyond my own little island conclave,” he said.
In his daily work, his positions remain resolutely conservative. In a recent case about whether a North Carolina charter school could require girls to wear skirts, Wilkinson wrote a controversial dissenting opinion siding with the school. He argued that the application of the 14th Amendment’s equal protection clause to a charter school – the central issue of the case – could “extinguish the place of historically black colleges and universities (HBCUs) in the education system” and felt that “for many people, dress codes represent an ideal of chivalry that is not condescending to women, but who appreciates and respects them. ”
In written opinions, other judges took aim at Wilkinson’s comments.
James A. Wynn Jr., a black judge appointed by President Barack Obama, denounced what he claimed were Wilkinson’s “borderline insulting innuendos” that HBCUs “benefit from unconstitutional racial discrimination.” (HBCUs are open to all races; they receive the HBCU designation if they were founded before 1964 and focus primarily on educating Black Americans.)
Judge Barbara Milano Keenan, also appointed by Obama, questioned the invocation of “an era when men could assault their wives and commit other violent crimes against them with impunity”.
The other two justices who signed Wilkinson’s dissent are white men.
Wilkinson wouldn’t talk about the case, but regarding his perspective, he said, “I recognize that my perspective is limited, that I have to grow, that I have to identify with other situations and with other people. There is room for change and room for reaching out. But also, I am who I am.
Wilkinson made its protagonist, Leah, a defense attorney who stakes her credibility on a client who has committed a violent assault. But he says his thinking about crime and punishment, where his rulings tend to favor prosecutors, hasn’t changed much. Leah spends more time emphasizing pay and hours than systemic injustice.
However, some of his opinions have changed over time, as evidenced by the book.
In a 2006 Washington Post column opposing state constitutional amendments to ban same-sex marriage, Wilkinson argued that homosexuals had no right to marry under the U.S. Constitution and noted that he was not asserting “that same-sex marriage is a good or desirable phenomenon.”
“In a theoretical sense, I think I was right, as far as the constitutional structure is concerned,” he said in an interview. “But in a more personal sense and in a deeply humanitarian sense, I was wrong. … I’m glad the Supreme Court did what it did.
The Supreme Court ruled in 2015 that the Constitution required same-sex couples to be allowed to marry. But some legal experts say they fear the opinion could be reversed. The concern is based on the reasoning of a leaked draft opinion suggesting the court will end the constitutional right to abortion. The same logic, analysts say, could be applied to the same-sex marriage ruling. A new wave of anti-LGBT legislation and rhetoric has swept across the country.
Wilkinson said it would be “beyond cruelty” to annul existing same-sex marriages.
The judge sends numerous clerks to Supreme Court registrars — including Louis Capozzi, a current clerk to Justice Neil M. Gorsuch who helped Wilkinson with the novel. (Capozzi did not respond to a request for comment.) Gorsuch was the surprise author of a recent advisory expanding protections for gay and transgender people.
“I have great faith in the Supreme Court that they would never take that step,” Wilkinson said of a possible overturning of the same-sex marriage ruling. “It would be so harmful to so many individual lives, and it would cause such pain. And the legal consequences of that would be so difficult to untangle.
He said he also wanted to use the book to highlight the intolerance he still sees in this country seven years after this decision.
“I can highlight the problem; I don’t know the answer,” he said. “What worried me was that we’re too much of a nation of enclaves, where minorities or gay people feel perfectly safe and valued in many places, and then 100 different miles away or even a whole lot less, they have to be on their guard.”
Now he is working on his next novel, about a friendship between an isolated man and his neighbor.
“I don’t think a federal judge has written a love story before,” he said. “Maybe it’s outrageous, but I don’t think so.”