Box Turtle Bulletin
News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyMay 9th, 2014
Pulaski County Circuit Court Judge Christopher Piazza has ruled that Arkansas’ laws and constitutional amendment banning marriage for same-sex couples violates the U.S. Constitution. In reaching his conclusion, Judge Piazza found that “same-sex couples fulfill all four factors to be considered a suspect or quasi-suspect classification,” but ultimately he decided it didn’t matter:
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. See Vance v. Bradley,440 U.S. 93,97 (L979). “[S]ome objectives … are not legitimate state interests” and, even when a law is justified by an ostensibly legitimate purpose, “[t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational .” Cleburne,473 U.S. at 44647.
At the most basic level, by requiring that classifications be justified by an independent and legitimate purpose, the Equal Protection Clause prohibits classifications from being drawn for “the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633; see also United States v. Windsor, 570 U.S. —, 133 S.Ct. 2675 (2013); Cleburne, 473 U.S. at 450; Rational basis review is a deferential standard, but it “is not a toothless one”. Mathews v. Lucas, 427 U.5.495,510 (1976).
The Supreme Court invoked this principle most recently in Windsor when it held that the principal provision of the federal Defense of Marriage Act (“DOMA”) violated equal protection guarantees because the “purpose and practical effect of the law … [was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.” Windsor,570 U.S. —, 133 S.Ct. at 2693. The case at bar and many around the country have since challenged state laws that ban same-sex marriage as a result of that decision.
As you can see, last year’s Windsor v. U.S. Supreme Court decision striking down portions of the Defense of Marriage Act continues to reverberate through the many challenges of state marriage bans across the country. This case is no different, as Judge Piazza quoted extensively from the Windsor opinion. He also quotes from a statement Mildred Loving made for the 40th anniversary of Loving v. Virginia, the 1967 U.S. Supreme Court decision which struck down anti-miscegenation laws throughout the country.
Judge Piazza also pointed out that the state’s constitutional amendment banning same-sex marriage, which Arkansas voters passed in 2004 with 75% of the vote, is inconsistent with the rest of the state constitution, which he called “a dangerous precedent”:
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.
All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty; of acquiring, possessing, and protecting property, and reputation; and of pursuing their own happiness, To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.
ARK. Const., art 2, § 2.
In this case, Article 2 § 2 was left intact by the voters, but in Amendment 83 they singled out sarne-sex couples for the purpose of disparate treatment. This is an unconstitutional attempt to narrow the definition of equalrty. 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). The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so important, an individual’s fundamental rights “may not be submitted to vote; they depend on the outcome of no elections.” Id. at 638.
Judge Piazza turned away the state’s arguments against same-sex marriage: that the ban is necessary to promote procreation, that it is a federalism issue, that the voters have a right to uphold tradition. And he also anticipated the complaints about activist judges: “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.” He then went into the 110-year history from the 1856 Dredd Scott decision, which held that even a former slave had “no rights or priveleges” of citizenship, to the 1967 Loving decision which recognized that, regardless of racial differences, “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Drawing on the Loving example, Judge Piazza concluded:
THEREFORE, THIS COURT HEREBY FINDS the Arkansas constitutional and legislative ban on s{Lme-sex marriage through Act 144 of 1997 and Amendment 83 is unconstitutional.
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.
Judge Piazza’s order came without a stay. But with it coming down after clerk offices around the state closed for the weekend, marriages may not be available until Monday. Attorney General Dustin McDaniel’s office has announced that they will ask for a stay and they intend to appeal. McDaniel said last week that he supports marriage equality, becoming the first state-wide office holder to do so. He also said however that his office would continue defending the state’s marriage ban in court.
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jpeckjr
May 9th, 2014
Quick. Someone find out what was at issue in W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,638 (1943). Sounds like a precedent we need to be cited more often.
Ray
May 9th, 2014
I know that we’re seeing essentially the same language in these rulings but each time I read a new one I pop tears and feel chills. These rulings say everything about how epically reassuring it is to hear straight people standing up for us so forcefully. Makes me want to stroll out into the street and hug some random straight person and thank them.
MCB
May 10th, 2014
@jpeckjr
Quick DuckDuckGo search reveals it was a religious freedom case. Children who were Jehovah’s Witnesses refused to pledge allegiance to the flag (which they consider an idol) and were expelled from public school.
The courts concluded that “the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”
ebohlman
May 10th, 2014
At issue in Barnette was whether public-school students could be required to salute the flag and say the Pledge of Allegiance [1]; the SCOTUS ruled that they could not. The case was brought by Jehovah’s Witnesses who had religious objections to saluting or swearing to worldly objects, but the decision was based on the Free Speech clause, not the Free Exercise or Establishment clauses.
[1] Note that the words “under God” were not part of the Pledge in 1943.
CPT_Doom
May 10th, 2014
Sadly the judge got one thing wrong. The Lovings didn’t live full lives together, he was killed in a car crash in 1975. Otherwise, bravo Judge Piazza.
Eric Payne
May 10th, 2014
Question: Since this ruling is a very first-level ruling, could the AG of Arkansas simply instruct county officials, as the State is going to appeal to the state Supreme Court (and then go higher, if need be)?
For this level, does a higher court actually have to issue a stay, or does it simply fall under state AG control?
Jack
May 10th, 2014
Can someone here explain how an Arkansas state-level judge can strike down a constitutional amendment? Is this power unique to Arkansas?
Eric Payne
May 10th, 2014
Jack asks:
While a state is free to adopt their own Constitution, the articles of that Constitution cannot violate/withdraw rights given by the United States Constitution, and that’s what this judge determined — the amendment barring same-gender couples from marrying violates the federal Constitution as per the decisions rendered in Loving and Windsor.
Jack
May 10th, 2014
@ Eric
Thanks. But my question was really procedural: How can a state judge rule on a federal question?
Procedurally, doesn’t this prerogative fall to a FEDERAL judge?
I mean, the whole point of all these state constitutional bans on SSM over the years, was precisely to prevent STATE courts from legalizing it.
Eric Payne
May 10th, 2014
Jack,
He didn’t decide a federal issue — he decided his state’s amendment violated the United States Constitution, just as if the state had placed an amendment in their Constitution restricting the right to vote to male landowners.
jpeckjr
May 10th, 2014
@MCB and ebohlman: Thanks. I now recalled hearing about the “Barnette” case before.
jpeckjr
May 10th, 2014
@Jack: I wondered the same thing about procedure. He also noted that the SSM amendment was inconsistent with other provisions of the Arkansas constitution.
State judges can and must consider Federal precedent when reviewing state laws, and that is what he did here. Using Federal precedent, he ruled the SSM provision of the state constitution was unconstitutional under the Federal constitution. He is setting up further review and I suspect intentionally.
In this case, if the voters of Arkansas properly amended their constitution, is the amendment valid even if it is inconsistent with other provisions of the state constitution? Even if at the time it was passed, it was not unconstitutional under the US constitution?
This is why the use of the “Barnette” case to say fundamental rights may not be submitted to a vote. I have not seen it used in any other marriage equality case.
Marriage equality came to Iowa through a ruling of the Iowa Supreme Court, but that was on a statute, not a constitutional amendment. The Iowa Court decided the one man/one woman statute violated Iowa’s constitution.
The Arkansas case is far from concluded. At this point, I would be hesitant about getting same-sex married in Arkansas.
Jack
May 10th, 2014
Something is missing here.
I don’t see how the case could even be filed in an Arkansas state court. The entire purpose of a constitutional amendment is to make a point of law non-reviewable by the courts and non-amendable by the legislature. The constitutional amendment becomes part of the the document by which the court is bound and controlled.
This is the first time I have seen a state court strike down a constitutional amendment. If state courts can alter or annul the language in their own constitutions, what was the point of the dozens of constitutional amendments against SSM passed over the years?
And why have all the cases we have seen where the contention is over a state constitutional amendment (CA, UT, VA, TX, MI, AR, OK, etc.) been filed in FEDERAL COURTS???
jpeckjr
May 10th, 2014
@Jack: You are asking a valid question. I imagine the attorney general of Arkansas will use it in any appeal he files.
It seems to me that a court can interpret a statute in the light of a constitutional provision, and can find a statute unconstitutional, but no court can find a constitutional provision properly enacted within its jurisdiction unconstitutional.
The US Supreme court can find a state constitutional provision unconstitutional under the US Constitution. But the US Supreme Court could not find a provision of the US Constitution unconstitutional. If contradictory or inconsistent provisions exist, SCOTUS would have to interpret them, but could not remove them.
We should all be grateful the Founders did not require US constitutional amendments to be put to a vote of the people.
Richard Rush
May 10th, 2014
This case seems to have similarities to Romer v. Evans that resulted from Colorado’s constitutional Amendment 2 which was passed by voters, but then invalidated by state courts (including the Colorado Supreme Court) based upon provisions of the U.S. Constitution. I’m not sure, but I don’t believe that existing provisions in Colorado’s constitution played a role in the state court rulings. And of course, SCOTUS later struck down Amendment 2 as well.
One question I have is: Can a state court invalidate a state constitutional amendment based upon it violating existing fundamental provisions of the state constitution? And, can Federal courts do the same with the U.S. Constitution? I hope so.
Ben in Oakland
May 10th, 2014
Arkansas has, to the best of my knowledge, a constitutional provision guaranteeing essentially life, Liberty, and the pursuit of happiness. It is this provision which the judge found the conflict with.
Ben in Oakland
May 10th, 2014
Here is someone else writing on this subject. I’m just quoting.
This is a situation that is specific to Arkansas’s state constitution. Unlike in most states, where an amendment can explicitly overrule other parts of the state constitution, the Arkansas constitution prohibits any amendment from being valid that violates the “Freedom and independence” clause of the constitution, which states that citizens have equal rights to life, liberty, property, reputation and pursuit of happiness.
So, in other words, Arkansas has a protection in its state constitution that actually makes it impossible (according to this ruling) to even have a constitutional amendment prohibiting same-sex marriage. However, other states have constitutions that do not provide this same protection in state courts, which is why most cases depend on the federal constitution.
jpeckjr
May 10th, 2014
@Richard Rush: I lived in CO at the time of Amendment 2. As I recall, the State Supreme Court put a stay on implementation of Amendment 2 based on Federal constitutional concerns. But I do not think they invalidated it, just stayed it. I’ll have to pull my files on Amendment 2.
Amendment 2 prohibited units of government from including sexual orientation in nondiscrimination laws, ordinances, executive orders, policies, regulations and other actions. It also prohibiting the topic from being discussed. When SCOTUS overturned it in “Romer v. Evans” it was partly on First Amendment grounds — the no discussion provision violated our right to petition for redress of grievances.
jpeckjr
May 10th, 2014
@Ben in Oakland: Judge Piazza noted the inconsistency within the Arkansas constitution specifically. However, I still think, as I noted above, there is a procedural issue.
Can a state court find a state constitutional amendment unconstitutional because it is inconsistent or contradictory to another part of the state constitution if the amendment in question was properly adopted?
Maybe there’s precedence somewhere, but I’m thinking Piazza is making new law here, and it might not withstand scrutiny in higher Arkansas courts.
jpeckjr
May 10th, 2014
Excerpt from the Wikipedia entry on Colorado’s Amendment 2: “A state trial court issued a permanent injunction against the amendment, and upon appeal, the Colorado Supreme Court ruled that the amendment was subject to “strict scrutiny” under the Equal Protection Clause of the federal Constitution.[12][13] The state trial court, upon remand, concluded that the amendment could not pass strict scrutiny, which the Colorado Supreme Court agreed with upon review.[14] Both times, the Colorado Supreme Court rendered two-to-one decisions.[12][14]
The state supreme court held that Amendment 2 infringed on the fundamental right of gays to participate equally in the political process.”
So, Richard Rush, your recollection is correct and mine is not. The Colorado Courts did find it unconstitutional on Federal grounds. As did SCOTUS.
Thus, it appears state courts can apply Federal standards when considering state constitutional provisions.
Richard Rush
May 10th, 2014
@jpeckjr: I don’t deserve credit for any recollection regarding the aspect of Romer v. Evans we were discussing. I found the same Wikipedia entry that you did. I had intended to post a link, but then forgot.
http://en.wikipedia.org/wiki/Romer_v._Evans
And I had also quickly searched a few other sources to see if the state courts had based any part of their ruling on Colorado’s existing constitution, but didn’t find anything.
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