Sunday, May 18, 2014

My Sunday Feeling

It is with no small amount of trepidation that I write today about Pulaski County Circuit Judge Chris Piazza's recent ruling in which he declared unconstitutional 2 state laws prohibiting and/or refusing to recognize same sex marriages.  One is Act 144 of 1997 passed by the Arkansas General Assembly which states that "[m]arriage shall only be between a man and a woman. A marriage between persons of the same sex is void."

The second was Amendment 83 to the Arkansas Constitution, which was approved by a majority of voters, states that, in pertinent part, that "Legal status for unmarried persons which is identical or substantially similar to marital status shall not be recognized in Arkansas."  This means that gay unions solemnized in jurisdictions that allow same would not be given full faith and credit in Arkansas. 

The resultant furor that instantly erupted was predictable.   Certain legislators called for the impeachment of Judge Piazza for allegedly failing to uphold the Arkansas Constitution.  Others wondered how "one man" could strike down laws passed by the electorate and/or their representatives, typically described as being accomplished with a "mere stroke of a pen."  

Let me premise this discussion with a few observations.  There are folks that are repulsed by gay people.  I understand that.  There are folks whose opposition to gay marriage is a matter of deeply held religious beliefs.  I understand that.  There are churches that do not perform or recognize gay marriage.  The church I belong to is one of them.  I understand that many people are indignant as a result of this decision.  What I don't understand is the apparent lack of working knowledge of how the system works on the part of many people.  But I view moments such as these as teachable ones.  My trepidation lies in a certain fatalism on my part as to the prospects of even minimal success.  But off we go.

Let us put something else on the table, which Judge Piazza writing for the Court seized on in its opinion and which nobody else to my knowledge has commented upon.  Although the Court didn't go this far, marriage can be and is typically a function of both church and state.  The vast majority of folks get married in a religious service pursuant to the teachings of a particular faith.  However, some folks choose to get married in a purely civil ceremony.  At the Courthouse perhaps.  The similarity between the two rituals is this: the condition precedent to both is the issuance of a marriage license by the State which the Court referred to as a "civil document." 

In my view, the 13 page decision of the Court may be boiled down to the second full paragraph of page 9:

"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 marriage is driven by animus rather than a rational basis.  This violates the (Equal Protection Clause) of the United States Constitution." (Parenthetical supplied.) And while the Court was discussing Amendment 83, it is no stretch to state that similar logic would most likely apply to Act 144.  

One may notice my copious references to the decision being rendered by "the Court." This is because this decision is not merely Judge Piazza (or "one man" to use the popular parlance) giving his personal opinion on the issue.  This is a ruling by a Court of Law after all sides were given the full opportunity to brief and argue the issue.  This is what Courts do when so called upon. And, like it or not, as the United States Supreme Court has said, " It is emphatically the province of the judicial department to say what the law is."  It is called judicial review.  The quote above came from Chief Justice John Marshall in 1803 in the case of Marbury vs. Madison.  It is the first case every young law student learns in Constitutional Law. 

Further, as other folks have said, rights aren't subject to a vote.  That's why they're called "rights." Agree or disagree with this decision as you will.  But the Court is authorized under the principle of judicial review to examine any statute passed by the legislature or any regulation promulgated by an agency, assuming the case is otherwise properly before it. 

Concerning the calls for the Judge's impeachment for failure to "uphold the Constitution" they may be dispensed with quickly.  Judge Piazza (and myself as well come to think of it) took an Oath to defend both the Arkansas and United States Constitutions.  The Judge applied recent United States Supreme Court (along with other Federal Court) decisions and applied the law as he saw it.  That is what his Oath compels him, and every judge, to do.

You may fervently disagree with the decision, which is your right.  But history demonstrates that just because an amendment has been tacked onto the oft-amended Arkansas Constitution doesn't make it Constitutional under the United States Constitution, which like it or not, is the supreme law of the land.  So, his decision is not even remotely an impeachable offense.  Besides, the Legislature isn't even in session.  There's no place to file the Articles of Impeachment if they drew them up last night.  This is lunacy of the first water.

Saner heads, which seem to be in short supply at times, have rightly stated that the appeals process is the only proper route under this and any other set of facts.  And indeed, the decision will be appealed, consistent with the rule of law. And the Arkansas Supreme Court has issued a Stay of the decision pending its review.  

I have no earthly idea what the Arkansas Supreme Court will do.  I do know that laws similar to Arkansas' are being invalidated by Federal Courts throughout the country.  The Pulaski County Circuit Court may be wrong.  The Court may be right.  We shall see.  But it would not surprise me terribly if these laws, and laws similar to it throughout the land, are eventually struck down.   That's not a personal opinion.  That's my professional opinion.  

And impeaching Chris Piazza,or fantasizing about "activist judges," isn't going to change that.

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