Ark. Supreme Court missed opportunity

Same-sex marriage case offered lesson in democracy

By punting a same-sex marriage case that sat before it for more than seven months, members of the Arkansas Supreme Court left unresolved a serious question about how sacrosanct a voter-approved constitutional amendment really is.

Hours after the U.S. Supreme Court declared gay marriage legal nationwide, the state Supreme Court declared the question moot for Arkansas. In doing so, justices missed an opportunity to tell voters what can and cannot be changed in the state constitution.

The state court had moved the case to the fast track, but after a switch in justices at the start of the year the panel couldn’t decide who should even consider the gay-marriage question, which was argued in November. That was settled in May, when the court ruled its current justices should hear the case, not the 2014 court that heard the arguments.

The dispute led two members of the court, including Chief Justice Jim Hannah, to accuse the majority of unnecessarily delaying the case. Hannah and Justice Paul Danielson’s letters recusing from the spinoff case, which included criticism over the delay, and the ruling on which justices should participate so far remain the most detailed written argument the public has seen from the court’s members in the same-sex marriage.

The lawsuit focused on whether Pulaski County Circuit Judge Chris Piazza was correct that a 2004 voter-approved amendment and earlier state law defining marriage as between a man and a woman violated the Arkansas and U.S. constitutions. More than 500 gay couples were married in the week following Piazza’s ruling before justices suspended his decision and halted the weddings.

Though Arkansas’ fight over gay marriage largely mirrored the national debate, the question about whether Arkansas’ high court could strike down a constitutional amendment went further and deeper.

Within an hour of the U.S. court striking down gay marriage bans across the country, the lawyer for couples challenging Arkansas’ ban said that was still an important issue for the state Supreme Court. Opponents of the gay-marriage ban — approved by voters more than a decade ago — argued it violated rights enshrined in the state constitution and couldn’t stand.

“The bill of rights in the constitution should not be altered at all without a constitutional convention,” said Cheryl Maples, who represented couples challenging the ban in state and federal lawsuits. “The voters can’t just vote a change to an inalienable right.”

It’s an issue that may seem academic after the high court’s ruling, but one that could go before the court again.

“This court should defer to the democratic process and defer to the voters of Arkansas, and hold that there is no fundamental right to same-sex marriage,” Assistant Attorney General Colin Jorgensen told justices last November.

Justices signaled skepticism about that argument.

“What’s to keep the state from enforcing those positions by the majority of the people to the detriment of unpopular minorities?” Justice Donald Corbin, whose term expired at the end of last year, asked during the oral arguments.

At one point, Justice Paul Danielson asked the AG’s office: “Are you saying the declaration of rights in our constitution is still there, except for homosexuals?”

It’s a question where the state’s highest court still remains silent.