I liked a letter to the editor from Cliff Jackson, a Hot Springs lawyer with a certain degree of notoriety for past political activities. He comments on the Republican primary race for attorney general and their woeful comments on constitutional law as applied in the famous same-sex marriage case. The floor to Cliff (a Rockefeller Republican back in the day and later a tormentor of Bill Clinton):
Regarding the same-sex marriage ruling, GOP Attorney General candidate David Sterling told the Hot Springs GOP: “what really offends me is the fact that he found that the constitutional provision was unconstitutional.”
Duh! The Civil War should have, but did not, settle the “states rights” argument that states can enact and enforce laws in violation or “nullification” of the federal Constitution and its rights. Only a Know Nothing demagogue appealing to the peanut gallery would contend otherwise. Does David Sterling not recall Orval Faubus and Central High School or the host of U.S. Supreme Court cases that he, as Arkansas Attorney General, would be sworn to uphold?
For example, in Loving vs. Virginia, the landmark 1967 case striking down state miscegenation (interracial) marriage laws, the state made similar arguments: states rights plus a re-hash of contentions rejected in Brown vs. Board of Education, the anti-segregation school ruling. The state, Virginia argued, had a compelling interest to “protect the institution of marriage”, thereby trumping federal due process and equal protection rights for all citizens of “mixed marriages”. If interracial marriage laws were voided, Virginia argued, what would prevent polygamous, incestuous, and imbecilic marriages?
The bottom line is this, and David Sterling should know it: If Arkansas is to regulate the institution of marriage, then it must abide by the United States Constitution and U.S. Supreme Court precedents. No Arkansas law or even a constitutional amendment passed by the people themselves contravening federal law and rights can stand. Under due process and equal protection, Arkansas must treat all people equally barring some compelling and over-riding state interest that would justify trampling people’s fundamental right to marriage.
Protecting the “sanctity of marriage”, long ago shredded by Arkansas’ liberal divorce laws (the lax “general indignities” grounds and the second shortest residency requirement, sixty days behind Nevada’s thirty, in the nation), is not sufficient. Besides, how does gay marriage harm whatever is left of the “sanctity of marriage” anyway? To avoid gay marriage, should we abolish, as GOP Hot Springs Mayor Ruth Carney once suggested, all “redundant” divorce statutes and impose “Biblical laws” (divorce only for adultery)?
David Sterling’s crass pandering, echoed by another GOP AG candidate, Leslie Rutledge (“as far as that judge in Little Rock, I cannot wait—-to defend our marriages between one man and one woman”), is legally ignorant, politically exploitative, and patently unworthy of anyone who would be the chief defender of our laws.
Such incendiary anti-gay rhetoric reminds me of arch-segregationist Jim Johnson trying to “out-seg” Orval Faubus. Perhaps David Sterling and the other Republican AG candidates should go back to school for elementary history and law lessons.
MIght I add for the people flooding newspapers with letters about their outrage that judges could overrule the will of the majority of the people: Bush v. Gore.