The Arkansas Supreme Court, which found itself this week with a plate full of constitutional hash and no appetite, made the best it could of a rush of cases from the circuit courts of Pulaski County that had roiled the whole state. In the same-sex marriage and voter-identification suits, the seven justices, all but one of them elected, said, “Just hold on and give us some time to sort these things out and see what the law will permit us to do that might avoid a public scalping.”
Our words, of course, not the justices.
The court stayed the orders of the circuit in three separate lawsuits, two in which the trial judge had invalidated a 2013 act requiring voters to show government-issued photo identification cards and even more steps before casting a vote by absentee and another case in which a trial judge had invalidated all the Arkansas laws banning marriage or civil unions by same-sex couples. The stays mean that the voter-ID law and the same-sex marriage bans passed by the legislature and by the voters will remain in place at least for a few months while the Supreme Court decides whether the trial judges were right.
Attorneys for the plaintiffs in all three cases wanted the Supreme Court to let the trial-court orders stand while it reviews the cases and decides whether the judges were correct on the law owing to the likelihood that after that review the Supreme Court will conclude that the trial judges were right and all the laws are unconstitutional.
We think that is exactly what will happen, although in the marriage case that final order may come from the U.S. Supreme Court and not the state Supreme Court. But the justices acted prudently in issuing the stays for the simple expedient of appearances. However clear the law may be, the marriage case especially is monumental in its emotional impact, and the court must give every appearance that the judiciary has given it long and sober reflection before changing what is a deeply, if unjustly, ingrained more—that marriage is a religious as well as legal rite that should offer its joys and protections only to people of the opposite sex. The stay also ends the confusion about whether 71 counties that were not named in the suit were bound by Pulaski County Circuit Judge Chris Piazza’s order. Once the Supreme Court makes a final ruling, whatever it is, every county will be obliged to follow it.
The justices clearly do not relish the task. Like the trial judges who struck down the marriage and voter laws, the Supreme Court justices (except one temporary appointee) are elected and can be expelled at their next election if what they do is unpopular, either with the voting public or with state lawmakers, who hold the judges’ purse strings. Supreme Court justices already have not been given raises for several years because their decisions have irked legislators, particularly Republicans who now hold a majority. Sen. Jason Rapert, Arkansas’ loudest demagogue, tried to get the Legislative Council on Friday to adopt a resolution telling the court what it must do. House Speaker Davy Carter of Cabot helped block the resolution because he said, quite wisely, that the court must make its decisions independently, based upon the law and not pressures applied by the legislative or executive branches.
Quite clearly the justices have been divided about how to handle the hot potatoes. They first sent the marriage order back to Pulaski County because Judge Piazza had not specifically named one statute prohibiting circuit clerks from issuing marriage licenses to same-sex couples, although his sweeping order had made it abundantly clear that all such bans violated the equal-protection clauses of the United States and Arkansas constitutions. Piazza promptly amended his order to identify that little statute as well and to say that people who had long been denied the fundamental right to marry should not be put off any longer. Some 400 couples got licenses in the week that Piazza’s ruling was in effect.
Now the justices have a few months’ respite in which to let public passions subside and also, dare we say it, to collect their wits and perhaps their courage.
Twice in the past 12 years, the Arkansas Supreme Court has ruled on essentially the same issue, whether widely held religious doctrines, ancient prejudices or community mores can stand in the way of constitutional guarantees that minorities or unpopular groups must be granted the same rights and privileges provided by law as others. The court ruled in 2002 that a state law criminalizing homosexual acts violated the Arkansas Constitution. It held in 2010 that an act prohibiting gay couples from adopting children or being foster parents and approved by a big majority of Arkansas voters also violated equal protections, due process and privacy. That decision was unanimous.
Right at the top, the drafters of our Constitution in 1874 wrote that the first job of Arkansas government was to protect the rights of every person to enjoy life and freedom and to “pursue their own happiness.” Then they wrote that the government could never give privileges and immunities (say, the benefits of marriage) to some classes of citizens but deny them to others.
The U.S. Constitution is not quite so specific, but it, too, more than once says people must be afforded equal protection of the laws. The U. S. Supreme Court, in an opinion written by President Reagan’s old California pal and appointee, Anthony Kennedy, applied it last year to people who had gotten married in spite of the popular taboos against it. Now the Arkansas justices must sort through their own and the high court’s precedents and figure out how they can get around them and do the popular thing.
The voter ID matter is simpler and not so politically difficult. Only the leadership of the Republican Party and its legislative majority like the new barriers to voting. Pulaski County Judge Tim Fox, tired of wrestling with the impossible language of the law that confuses both voters and election officials about how to handle absentee ballots, threw the whole law out because he said its photo and absentee-voting demands added new requirements for people to vote beyond those spelled out in the Constitution. The Constitution says flatly that the legislature can’t do that.
While the Supreme Court said Fox was right that the state Board of Election Commissioners had created a policy for counting absentee votes that was illegal, it said he had to have hearings before he could declare the whole law unconstitutional. A separate lawsuit did raise that issue and after another hearing Judge Fox ruled again ruled that the act was unconstitutional. So that issue is also back squarely before the supremes, although they stayed that ruling, too, temporarily. Everyone will need an official photo ID or jump through other hoops if they want to vote next week. By November, probably not.