On Friday, Pulaski County Circuit Judge Chris Piazza issued an opinion holding that Arkansas's ban on same-sex marriage is unconstitutional. This is the first of two entries today on marriage equality in Arkansas, and it focuses on setting up the dispute. The second will deal with the opinion itself and "popularity" versus "constitutionality."
Marriage equality is not a popular concept in Arkansas (although here, as everywhere it seems, support is growing). This state is full of deeply religious Christians--people for whom prayer is the most essential act of every day, whose social lives center upon the church, and many of whom take their views about law and government based upon laws set down by God as they understand him.
These people are not merely nominal Christians; they have firmly rooted their lives in their religion. Because they form a wide majority of the electorate, it is relatively easy for leadership organizations--not just churches, but religious groups that advocate for Christian positions on governmental matters--to summon majorities to elect politicians and to pass referenda that stake out some rather activist positions in the law. In the last decade, Arkansas's citizens have passed a constitutional amendment banning same-sex marriage and an initiated act that banned homosexual couples from adopting children or serving as foster parents. It took numerous tries to legalize any form of gambling (other than the long-running racing operations at Hot Springs and West Memphis). More than half of Arkansas's counties are "dry," and even in wet counties, Sunday alcohol sales are banned, with only a handful of limited exceptions. If there were a referendum to restrict abortion rights, it would likely pass without much consideration of the actual contents.
One of the hallmark motivations of the framers of the federal Constitution was the avoidance of "mob rule," something they considered to be the chief danger of direct democracy. I'm not especially a fan of referendum, although in a state like Arkansas, which has a history of corrupt and incompetent government* as well as some quirky features in its governmental structure,** the referendum can be an appropriate tool for undoing the work of politicians that get off track.
* - Arkansas has defaulted on its debt obligations three times--the only state to do so. Arkansas's first default almost killed the Smithsonian Institution before it started; a large portion of Smithson's original endowment was invested in Arkansas bonds in the 1830s--bonds on which the state defaulted in 1841. Only a timely appropriation from Congress to replace those funds enabled the Institution to begin operating in 1846.
** - For example, the General Assembly can override the governor's veto with a simple majority vote, which effectively neuters the governor.
The problem of referendum, and more generally of popular rule, is when what is popular seeks to invade the general freedoms that belong to all people.
The court case that was resolved on Friday, at least for now, is an expression of two radically different views of what is going on. I doubt very much that the people who voted for Amendment 83 (the same-sex marriage ban) did so thinking that it was an instrument of oppression of gays. For almost all of the people who voted for it, it was an endorsement of what they view as the biblical approach to marriage. Yes, of course, it disappointed those who wanted to enter into same-sex marriages, but the Bible has an answer for that as well, and the solution--as these people see it--is to choose not to be gay.
Homosexuals view their sexuality as inherent and immutable, whether you want to think of it as inborn, or the product of an environment, or the work of God. There is no solace in the admonition to "choose differently." Therefore, the decision to use the apparatus of government to enforce an arbitrary religious principle that leaves them out in the cold is indeed oppressive, whether it was intended that way or not.
In that way, this issue is very much like to struggle for racial equality. One of the confounding things about how most people understand white people in the South during the Civil Rights Era is that there is the assumption that whites hated blacks and sought to keep them down. I'm certain that there were some, maybe many, white people who were motivated in their views by outright hatred of blacks. But the wider majority were motivated by something different: the preservation of the traditional value of racial purity by enforcing racial segregation. That comes across as hate, but what it really was, was indifference to what Jim Crow did to blacks, in service of what Jim Crow's proponents viewed as a higher principle.
I strongly suspect that very few of the fervent opponents of marriage equality have spent any significant, direct time with homosexuals. The church environment--especially in churches that describe themselves as focused on biblical principles--does not seem to be very welcoming to gays. When substantially all of your social life revolves around such a church, the effect is to exclude homosexuals from your experience. It is easy to be indifferent to an abstraction. This is particularly true if what knowledge you do have of homosexuals is based on caricature.
When you have access to more ordinary homosexuals--the boring kind, who have long-term, monogamous relationships, who work as farmers and insurance adjusters and human resources professionals and plumbers and computer programmers--and you see more directly the pain that these policies cause, it is much easier to see these policies as oppressive, and much harder to support them.
I say all of this not as an apology for those who oppose marriage equality, but to try to explain why we have such a disconnect between the two camps. It is far too easy for each side to demonize the other--and that leads to entrenchment, not understanding and reconciliation. What is needed is more interaction and more empathy.
I have stated before that the reason why marriage equality has come to be favored by a majority of Americans so quickly is because same-sex marriage was finally legalized somewhere and the world didn't end. The key to building popular support for same-sex marriage in Arkansas will similarly be the experience we have with it.
Part II appears here.