Briefs were due today from defendants in the lawsuit seeking to strike down the state ban on same-sex marriage. Attorney General Dustin McDaniel’s office, representing state defendants, argued for overturning Judge Chris Piazza’s ruling invalidating the ban on constitutional grounds.
The state argued that the bans further legitimate state interests — “traditional” marriage. The state argued that the rational basis for this can’t be “second-guessed” by the judiciary. It is depressing to read the state argue, in effect: “It should be so because we say it should be so.” About 20 federal courts dispute the state’s contention that due process and equal protection rules don’t apply to same-sex couples hoping to marry.
For more uplifting reading, turn to the brief filed by David Fuqua for Pulaski County Clerk Larry Crane, a defendant because plaintiffs sought a marriage license from his office. It was denied, though Crane’s office opened to a flood of couples for the week before Piazza’s ruling was stayed by the Supreme Court.
Crane, though a defendant, argues that the law should be overturned on a number of grounds. It’s ringing stuff. For example, in response to the state’s argument for moving slowly on social change, he writes:
Finally, encompassing all of the State’s interests is its desire to take “a cautious, historical approach to governmental social experimentation as democratic, cultural and scientific discussions proceed.” Caution is laudable if it leads to decisions based on empirical evidence. The State’s interest here is hypocritical – the “democratic discussion” is founded on the worst aspect of democracy, the power of the majority to suppress an unpopular minority. Preservation of the status quo while we have cultural and scientific discussions is nothing more than telling homosexuals to stay in the closet while the heterosexuals figure out what to do about them
The public purpose of marriage?
Public purposes of marriage include protection of spouses, legitimation of children, control of sexuality, and preservation of property. Same-sex marriage benefits from every purpose that allows the State to assert an interest in regulating heterosexual marriage, including keeping homosexual practices private. Social norms change constantly. Here the State’s purpose is to fix a concept of marriage against change.He notes the state Constitution’s promise to protect minorities and prevent laws that grant privileges to one class of citizens that do not belong to all.
A need to maintain the status quo?
To justify denying same-sex marriage while we have a societal debate “about the nature and role of marriage” is not an interest but a rhetorical delaying tactic.
Marriage is supposed to be about procreation?
Denying marital rights to same-sex couples does not make heterosexual couples more fertile or inclined to procreation. It stigmatizes the children of same-sex marriages while trying to define the “right” way to have children.
The State’s interest in upholding the prerogative of voter-initiated constitutional amendments rests on the premise that the majority is always right even when it isolates minority groups and truncates fundamental constitutional rights. As to a less restrictive means to accomplish the goal, there can be none: upholding a process that creates injustice cannot be improved by lesser methods of creating injustice.
In conclusion, Fuqua writes for Crane:
By affirming this case on privacy grounds, the Court tells Arkansans that sexual orientation stands under the shield of privacy we all enjoy. The law of privacy in this state is settled law that need not be developed anew but only applied. By deciding this case on the ground of privacy alone, this Court does not have to decide equal protection issues under either the federal or state constitutions. By deciding the case on the basis of privacy, the Court does not have to decide whether marriage is a fundamental right, only whether Amendment 83 impermissibly burdens privacy.
If, in the Court’s view, Amendment 83 does not implicate privacy, the Court should decide this case on the equality rights contained in the Declaration of Rights.
The plaintiffs have a month to respond to these briefs, but they hope to speed the process to hurry the final Supreme Court decision. Meanwhile, a lawsuit also pends in federal district court, but Judge Kristine Baker hasn’t yet indicated how quickly she plans to rule.