Columns » John Brummett

Arkansas gets wordy on gays

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Missouri is a state of a fewer words than Arkansas, at least when it comes to outlawing marriages of people of certain body parts to people of the same body parts. Here is the full text of the constitutional amendment the voters of Missouri approved by 71 percent a few weeks ago: “To be valid and recognized in this state a marriage shall exist only between a man and a woman.” Short, if not sweet. To the point. Hard to sue. And hard to imagine not passing in these intolerant parts. Here, by contrast, is but a portion of only the ballot title, not even the actual text, of the proposed amendment to ban gay marriage in Arkansas: “Legal status for an unmarried person which is identical or substantially similar to marital status shall not be valid or recognized in the state of Arkansas except that the Legislature may recognize a common law marriage from another state between a man and a woman.” That will be on the ballot Nov. 2 unless it get struck by the Arkansas Supreme Court on account of being too fuzzily wordy. What does that section of the ballot title mean? And why in the world was it put there? For answers we turn to Robert Shaffer, esteemed lawyer at the Friday law firm in Little Rock and a Christian conservative whose fingerprints usually show up wherever zealots need an attorney. Did he write this thing? Why, yes, he did. So, then, would he please help us with this aforementioned section of the ballot title? He’d be delighted. The point, he said, was to build a higher firewall against gay marriage than Missouri constructed with its simplicity. What this Section 2 is designed to do, he said, is protect Arkansas against having to accept “gay marriage by some other name” from another state. Let’s say a state — Vermont, for example — permits what it calls “civil unions” by same sex partners. Let’s say a Vermont civil-unioned gay couple gets laid off at Ben and Jerry’s and comes to work at Wal-Mart headquarters in Bentonville. Let’s say these transplanted Vermontians presume to stay civil-unioned in Bentonville. This Section 2, Shaffer says, would provide for a court remedy to keep Arkansas from having to recognize their union for any rights and privileges thereof. Litigation might well ensue in which one of our fine judges would be asked to examine the pre-existing Vermont arrangement to see if it was “identical or substantially similar to marital status,” which, if this amendment passes, would be not merely be statutorily illegal, but constitutionally so, in Arkansas. In other words, we’re wordy because we don’t want any same-sex marriages sneaking in our back door like they might be able to do just over the northern border with all their smug terseness. We’re not only opposed to this kind of thing. We’re really opposed to it. So now comes the American Civil Liberties Union to sue to keep this amendment off the ballot on the basis that it is so unclear as to what it would do that the voter can’t make an educated decision. The suit alleges that Section 2 might even bar a company from continuing to provide marriage-like benefits to an employee engaged in a heterosexual cohabitation outside of marriage. “We’re confident that wouldn’t be affected,” Shaffer told me. “That’s a private contract, not a matter of state licensing of marriage.” He doesn’t wish to outlaw living in sin? Shacking up? Getting the milk without buying the cow? “Not in the Constitution,” he said.

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