Ernie Dumas writes brilliantly this week on Judge Chris Piazza’s ruling striking down the state ban on same-sex marriage. He recalls when Arkansas was a trailblazer once before — on ending criminal laws against sodomy. If the Constitution matters, Dumas thinks the Arkansas Supreme Court, though it might stay Piazza’s ruling, must eventually continue the march of progress for a sexual minority long pushed into shadows. Until this glorious week. Dumas notes Piazza’s was a decision rooted in the 1874 Arkansas Constitution’s equal rights provision.
Read it all on the jump:
By Ernest Dumas
When the mossbacks gathered in 1874 to write a new Arkansas constitution, they put at the top, right after a description of the state boundaries, that government’s first job was to protect the rights of everyone equally to enjoy life and freedom and to “pursue their own happiness.”
Next, they wrote that the government must never give privileges and immunities—the benefits of marriage, for example—to some classes of citizens but deny them to others on the same terms. Arkansans ratified the constitution by a majority of three to one and it has been the law of the land for 140 years.
Friday, Circuit Judge Chris Piazza, a burly ex-prosecutor, made good on those promises by striking down recent state laws that outlawed the marriage of loving couples if they were of the same sex and that prevented any part of government from ever recognizing such unions.
For going to the trouble of holding that the equal-protection clauses of the state and national constitutions actually meant what they said and applied to gay as well as to heterosexual people, a few Republican lawmakers called on the legislature to impeach Piazza. A few religious figures denounced him, as their clerical forebears had done over the centuries nearly every time the government of the people took steps to halt discrimination against some historically scorned or wretched group—African Americans, the latest tide of uncultivated immigrants, native Americans, women, the handicapped and now sexual minorities.
But Piazza also gave Arkansas a flood of international publicity of the kind that the state has rarely gotten since 1874. Of its own volition and without waiting for the highest court of the country or another federal court to order it to end some manifest injustice, Arkansas was, at least for a few days, at the fore of history’s arc. Alone of the states of the old Confederacy it was issuing marriage licenses to gay couples.
The news Saturday and Monday carried film and exclamations of joy from couples who traveled to Eureka Springs and Little Rock to get marriage licenses and to be married on the spot. Some had been living together for decades, never dreaming their government would recognize their vows and dispense the protections that marriage gives to spouses.
There on the faces and in the exclamations were all the affirmation one needs of the constitutional right to “pursue their own happiness” with the government’s protection. Even the Catholic bishop of Arkansas, who said it was not about human rights but about changing the definition of a word, a terrible thing to do, had to be moved by the scenes.
Here was a ruling handed down not by a federal judge appointed for life but a trial judge elected by people in his community and who, incidentally, is running for re-election this month. Widely admired, Piazza is unopposed, but his marriage ruling cannot have taken anyone by surprise. He had ruled five years ago, in a challenge to an initiated act adopted by Arkansas voters, that people’s sexual orientation could not be grounds for denying them rights and privileges given to others, like adoption and foster parenting. The elected Arkansas Supreme Court upheld his ruling unanimously.
If it hasn’t by now, the Supreme Court probably will stay Piazza’s order and halt recognition of the marriages while it reviews the case. The U. S. Supreme Court will end the whole debate, probably late next year, by holding exactly as Piazza did. The majority laid down the underpinnings for that decision last year in the Defense of Marriage case, which soon will have guided a score of district court orders striking down state marriage bans.
If the Arkansas Supreme Court follows its own precedents, it will beat the U. S. Supreme Court to the punch, as it did in the first same-sex legal issue, state sodomy laws. The U. S. court, in a 5-4 opinion written by John F. Kennedy appointee Whizzer White, held in 1986 that a Georgia law making homosexual acts a crime was dandy, but Anthony Kennedy, a Reagan appointee, shifted the court in the opposite direction in 2003. It did so only after the Arkansas Supreme Court decided that the Arkansas sodomy law was unconstitutional. Since the U. S. court had said state sodomy statutes did not violate equal protection, due process or privacy rights under the U.S. Constitution, the Arkansas court relied on similar but much stronger provisions in the Arkansas Constitution.
Only two of the five Arkansas justices who decided the sodomy case are still on the court and one will retire Jan. 1, but the crisp language of the two prevailing opinions, by Justices Annabelle Imber and Robert L. Brown, would fit the current case. Over and over, the justices wrote that the state could not impose sanctions on a couple or deny them rights accorded to others simply because their relationship violated the majority’s notions of morality or religious beliefs.
“[T]he police power may not be used to enforce a majority morality on persons whose conduct does not harm others,” the court said. Not one justice disagreed. The two dissenters said simply that since no one was being prosecuted the court shouldn’t bother with the case.
Opponents, like the Scalia wing of the U. S. court and the good bishop of Arkansas, hold a different view of the Bill of Rights, the 14th Amendment and state constitutional protections for unpopular minorities, which is that you must stick with the prejudices and blindnesses of the people who wrote them, who did not imagine that those rights should be extended to black people, women, the disabled or gays.
But America’s story is the chronicle of fresh discoveries, by each generation, of the meaning of those soaring words used so often by the founders—equality and freedom.