Columns » Max Brantley

Court of last resort

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The Arkansas Supreme Court heard arguments last week on two lawsuits aimed at reducing voters' ballot choices Nov. 2. Conservative decisions in both cases won't be viewed as such by losing parties you can be sure. Case 1: The Democratic Party challenged petitions to put Ralph Nader on the Arkansas ballot as a presidential candidate. Circuit Judge Tim Fox ruled that state law is clear and unambiguous. Petitions must be submitted by voters who state they are signing for "their candidate." It is indisputable that the Republican Party gathered Republican signatures to put Nader on the ballot in hopes of draining votes from John Kerry. I didn't think it was particularly good politics for the Democratic Party to file this suit. It's too easy to portray the suit as undemocratic. And you may not think this law makes much sense. But it is the law. You can bet that Republican conservatives who rail against activist judges don't want a literal reading of the law here. Gov. Mike Huckabee calls it "political hardball" to ask that the law be obeyed. The state Republican house organ, the Arkansas Democrat-Gazette, calls it "picky" and "petty." The conservative newspaper has similar disinterest in enforcing the clear language of the state Constitution, which Republican Marvin Parks flaunts in drawing his fat state expense reimbursements. Then there's Case 2, the amendment to ban same-sex marriage and allow the benefits of marriage only to married heterosexual couples. Praise Justice Ray Thornton for pointing out during oral arguments one of the vagaries of this misleadingly named amendment. He asked if the amendment would not construe head-of-household income tax status as substantially similar to marital status. Could the state legally grant such a tax benefit to an unmarried person if the amendment is adopted? It is a shame that the ACLU waited so long to file this suit. The justices are understandably reluctant to rule on ballot questions at the 11th hour. It is a shame, too, that this amendment is virtually certain to pass if it is not removed from the ballot. But removal is the proper course, if years of precedent on the importance of clarity in amendment names and ballot titles means anything. Supporters of the marriage ban - generally far-right conservatives - hope activist judges will read a little flexibility into the usual strict judicial standards. Still, it would be more satisfying to have a vote and for Arkansas to vote "no" to discrimination. It is not a ridiculous notion. Michigan, too, will be voting this fall on a constitutional amendment to ban same-sex marriage and "any equivalent relationship." The amendment has come under fierce attack there by opponents who say it could wreck domestic partner benefits for both gay and straight unmarried couples. This endangers, for example, coverage of unmarried partners by government insurance programs. Both teacher unions in Michigan have opposed the amendment. They've noted that the amendment could invalidate laws that bar discrimination in employment, housing and public accommodation on the basis of marital status. Because of the rising opposition, polls show support for the Michigan amendment eroding, to 54 percent in September polling. Might more information move Arkansas in Michigan's direction? Here's hoping.

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