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Overruling Marriage Equality Will Come With a Cost, Warns Arkansas Judge

The folks in the rustic marriage mecca (and LGBT tourist destination) of Eureka Springs, Arkansas are celebrating today, as Arkansas Circuit Court Judge Christopher Charles Piazza struck down Amendment 83 to the Arkansas state constitution and a parallel state law known as Act 144 of 1997 which limit marriage to opposite-sex couples. Piazza, like the judges who have similarly ruled in courts around the country, brings his own style to his ruling — in his case, it’s the very pragmatic and practical language of a judge on the front lines of the state judicial system. Piazza not only rules on the case before him, but notes for the sake of the judges that will look at his ruling on appeal that should they choose to overrule him, that will come with a cost. A very steep, very personal cost.

Like Judge Bernard Friedman in Michigan, Piazza described the three levels of constitutional review — strict scrutiny, heightened or intermediate scrutiny, and rational basis review. Where Friedman said that because the Michigan Marriage Amendment couldn’t meet even the lowest level of scrutiny, he didn’t need to go any farther, Piazza clearly noted that the state’s position ought to face at least heightened scrutiny, before he leveled the same broadside at Amendment 83 and Act 144 that Friedman aimed at MMA:

Regardless of the level of review required, Arkansas’s marriage laws discriminate against same-sex couples in violation of the Equal Protection Clause because they do not advance any conceivable legitimate state interest necessary to support even a rational basis review. Under this standard, the laws must proscribe conduct in a manner that is rationally related to the achievement of a legitimate governmental purpose.

Let me repeat that: No rational basis, and no legitimate governmental purpose. Piazza goes into Windsor and DOMA in some depth, but then returns to this basic point (p. 7):

The defendants offer several rationalizations for the disparate treatment of same-sex couples such as the basic premise of the referendum process, procreation, that denying marriage protections to same-sex couples and their families is justified in the name of protecting children, and continuity of the laws and tradition. None of these reasons provide a rational basis for adopting the amendment.

To borrow a phrase, it gets better. From p. 8:

Article 2, §2 of the Arkansas Constitution guarantees Arkansans certain inherent and inalienable rights, including the enjoyment of life and liberty and the pursuit of happiness.

In this case, Article 2 §2 was left intact by the voters, but in Amendment 83 they singled out same-sex couples for the purpose of disparate treatment. This is an unconstitutional attempt to narrow the definition of equality. The exclusion of a minority for no rational reason is a dangerous precedent. Furthermore, the fact that Amendment 83 was popular with voters does not protect it from constitutional scrutiny as to federal rights. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

From p. 9:

Procreation is not a prerequisite in Arkansas for a marriage license. Opposite-sex couples may choose not to have children or they may be infertile, and certainly we are beyond trying to protect the gene pool. A marriage license is a civil document and is not, nor can it be, based upon any particular faith. Same-sex couples are a morally disliked minority and the constitutional amendment to ban same-sex marriages is driven by animus rather than a rational basis. This violates the United States Constitution.

Even if it were rational for the state to speculate that children raised by opposite-sex couples are better off than children raised by same-sex couples, there is no rational relationship between the Arkansas same-sex marriage bans and the this goal because Arkansas’s marriage laws do not prevent same-sex couples from having children. The only effect the bans have on children is harming those children of same-sex couples who are denied the protection and stability of parents who are legally married. . . .

Tradition alone cannot form a rational basis for law. Heller v Doe, 509 U.S. 312, 326 (1993) (stating that the “[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.”). The fact that a particular discrimination has been “traditional” is even more of a reason to be skeptical of its rationality.

Blunt. Direct. Plain-spoken. “This violates the United States Constitution.”

Piazza could have stopped there, but he didn’t. Indeed, to make his point crystal clear, Piazza turned to Oklahoma federal judge Terence C. Kern, who in the Oklahoma marriage equality case (Bishop v United States) spared neither lawmakers nor voters nor judge in his review of history (p. 11):

The strength of our nation is in our freedom which includes, among others, freedom of expression, freedom of religion, the right to marry, the right to bear arms, the right to be free of unreasonable searches and seizures, the right of privacy, the right of due process and equal protection, and the right to vote regardless of race or sex.

The court is not unmindful of the criticism that judges should not be super legislators. However, the issue at hand is the fundamental right to marry being denied to an unpopular minority. Our judiciary has failed such groups in the past.

In Dred Scott v. John Sandford . . .

That’s about the biggest failing by the judiciary you can name, and by putting the proponents of marriage equality on par with Dred Scott, Piazza (following Kern) is not so subtly asking the courts that will hear this case on appeal a simple question: do you want to be remembered in the same way history has remembered Justice Taney?

And it gets better.

Piazza notes that 100 years after Dred Scott was returned to slavery, SCOTUS was still struggling with race. Rather than simply referring to Loving v. Virginia, he starts by quoting the trial judge who ruled against the Lovings and upheld Virginia’s miscegenation statute:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Piazza then goes on to quote SCOTUS’ unanimous opinion striking this down — but by quoting this passage, Piazza is doubling down on his challenge to appellate judges and justices: do you want to be remembered by history for writing an unconscionable defense of discrimination like this piece of legal crap?

Where Judge Arenda L. Wright Allen of the federal district court in Virginia unusually prefaced her ruling with a moving quote from Mildred Loving. Piazza made her the center of his similarly unusual conclusion. First comes the usual “THEREFORE” that shifts from the argument to the actual ruling:

THEREFORE, THIS COURT HEREBY FINDS the Arkansas constitutional and legislative ban on same-sex marriage through Act 144 of 1997 and Amendment 83 is unconstitutional.

But then comes the twist, with the arrival of Mildred Loving:

It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.

IT IS SO ORDERED this 9th day of May 2014.

Again and again and again, judge after judge is taking apart the case made by the anti-equality forces. With each new ruling, judges like Piazza are building on the demolition work of those who have gone before. All of them write knowing that their rulings will be appealed and face scrutiny by higher courts. Piazza’s gift to justice is to make it absolutely clear to those appellate courts that the price for overruling him and his fellow judges will be exacted by history — and that price will be steep.

I wonder how Scalia, Alito, Thomas, and Roberts will react to rulings like this?


h/t for the photo to Roger Sayles aka Serfs Up! and used under Creative Commons Attribution-NoDerivs 2.0 Generic license.

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I'm an ordained Lutheran pastor with a passion for language, progressive politics, and the intersection of people's inner sets of ideals and beliefs (aka "faith" to many) and their political actions. I mostly comment around here, but offer a weekly post or two as well. With the role that conservative Christianity plays in the current Republican politics, I believe that progressives ignore the dynamics of religion, religious language, and religiously-inspired actions at our own peril. I am also incensed at what the TheoCons have done to the public impression of Christianity, and don't want their twisted version of it to go unchallenged in the wider world. I'm a midwesterner, now living in the Kansas City area, but also spent ten years living in the SF Bay area. I'm married to a wonderful microbiologist (she's wonderful all the way around, not just at science) and have a great little Kid, for whom I am the primary caretaker these days. I love the discussions around here, especially the combination of humor and seriousness that lets us take on incredibly tough stuff while keeping it all in perspective and treating one another with respect.

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