Sunday, May 11, 2014

Marriage equality in Arkansas, Part II

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 second of two entries today on marriage equality in Arkansas.  The first focused on setting up the dispute.  This part deals with the opinion itself and "popularity" versus "constitutionality."

So, the big day is finally here.  On Friday, Pulaski County Circuit Judge Chris Piazza issued a 13-page opinion that invalidates the various laws on Arkansas's books that ban same-sex marriage.  Those who read my blog know where I stand on this issue.  I'm not afraid to admit that I cried like a baby--tears of joy--when I read Judge Piazza's masterful, brilliant opinion [PDF].

As of yet, a stay on the ruling has not been issued.  In cases that are particularly controversial, in which appeal is a certainty, and in which the ruling creates changes that would be hard to undo if the ruling is overturned, it is common for a stay to be issued.  Although the defendants in the case asked Judge Piazza to stay his ruling pending appeal, he did not do so in his order, and he has not as yet done so.

The Arkansas Supreme Court can issue a stay as well, and the safe bet is that they will--but it takes time for that to occur, and it won't occur until Monday at the earliest.

However, the first legal same-sex marriages in Arkansas have already occurred.  The Carroll County Clerk's Office in Eureka Springs was, like many clerks' offices around the state, open Saturday for early voting (there is a primary election in a little over a week), and with a little cajoling, the clerk was convinced to issue marriage licenses to the 15 or so same-sex couples who appeared in order to apply.

If the Supreme Court issues a stay, those marriages--and any others that get issued between now and the time the stay is issued--will be somewhat in legal limbo.  It is even more unclear what would happen to them if the Supreme Court should overturn the ruling--something that won't happen for months at the earliest. 

I think these are interesting questions, and I happen to think they are likely to be mostly academic questions.  Judge Piazza's opinion--which is worth reading; it's not larded up with a lot of legalese--is a brilliant expression of the dichotomy between what is "popular" and what is "constitutional."

Without doubt, Amendment 83 was an expression of the popular will:  Some 75% of voters approved the constitutional ban on same-sex marriage just 10 years ago.  I don't think the same amendment would garner that much support today, and recent polling suggests plurality support for marriage equality in the South (there are no recent polls in Arkansas, to my knowledge).  But it is the last time voters expressed their view, and it was overwhelming.

But marriage is a fundamental right, within the scope of the right to "liberty" found in the Fourteenth Amendment, having been routinely found to be so by the Supreme Court.  We do not live in a direct democracy.  There are limits on what even a referendum of the people that results in supermajority passage can accomplish.

It is easy to uphold "popular will" as a justification on an issue on which you believe you have a permanent majority.  I believe that we could garner substantial majorities in this state for adopting Christianity as the official religion of Arkansas, for example.  But such an act would violate the First Amendment.

These questions were fundamental at the founding of the Republic.  In the Federalist, No. 10, James Madison addressed the issue of "faction," which he defined as "a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community."  The problem of a faction of the majority is inherent in a democratic system:

When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.
 Madison's view was that the solution to this problem was the formation of a representative republic, whereby the levers of power would be entrusted to a group of elected officials from all walks of life, sufficient in number that it would be difficult for them to form a cabal, but few enough that they would legitimately represent a wide array of constituents of differing views.

Our experience has shown that having a republican form of government was insufficient to the protection of minority rights.  What followed were two efforts, about 75 years apart, to set forth and define certain rights that stood outside the whims not only of the democracy but also of the representatives themselves.  The first was the Bill of Rights, adopted by the First Congress and ratified in 1791.  The second was the Fourteenth Amendment, ratified in 1868, and by far the broadest and most sweeping restriction on governmental action in the Constitution.

The Fourteenth Amendment moved away from attempts to enumerate specific rights and into the sphere of more fundamental, broad categories of rights:  the rights to life, liberty, and property, protected by the due process of law.  For my money, the Fourteenth Amendment is the finest, strongest statement of freedom that has ever existed; its adoption, in the aftermath and disarray following the Civil War, was perhaps the finest hour our country has ever seen.  That one amendment has done more to "secure the blessings of liberty" than any other legislative act in the history of the world.

While no opinion is bulletproof, especially on a subject as controversial as this one, and while creative courts motivated to reach a particular result will find a way if they like, overturning this ruling will require a Herculean effort.  Judge Piazza's opinion pays special heed to the long American tradition of expanding personal freedoms.  Liberty is a luxury that, once sampled, becomes a necessity.

There are many Arkansans who have expressed disappointment, anger, defiance, and horror at what happened on Friday.  What is popular is not always right, and what is right is not always popular.  But anyone can support the Constitution when it mandates what we like.  It is when the Constitution produces an unpopular, if principled, result, that the strength of our commitment to it is tested.

But I believe that people want to do the right thing.  I am optimistic that once they see the effects of this ruling, opposition to it will dissipate.  Until that time comes, I could not be happier that this judge, this court, has determined to act as a bulwark against oppression.  It is a good day for Arkansas.

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