Columns » Ernest Dumas

Cowardice in the high court

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Sometime this summer the U.S. Supreme Court will almost certainly put an end to the debate over whether government can refuse to recognize the union of couples of the same sex.

That will leave the winners and losers a few more months to wring the last emotional spasms from an argument that spent its fury on superstition rather than logic and the law, upon which the U.S. Supreme Court will by then have settled it.

But for one loser the damage will take longer to repair. That is the Arkansas Supreme Court, which has made itself to look both baffled and cowardly when, like scores of other tribunals across the land, it was called upon to say whether the equality clauses of the federal and state constitutions permitted same-sex couples to enjoy the benefits conferred by the state's sanction of marriages.

Bewilderment and cowardice are not traits the founders longed to see in American government, but especially in the robed branch. It was the balancing institution that was to always stand above the fray, inconsiderate of popular passions, the needs of political parties or the influence of wealth and power.

Now, 11 months after Judge Chris Piazza pronounced the Arkansas ban on same-sex marriages illegal and four-and-a-half months after it conferenced and decided an appeal of Piazza's ruling, the state Supreme Court still has not released its decision and last week took the extraordinary step of making it an entirely new case and starting over.

The court's deliberations are secret, but every court watcher, perhaps everyone in the bar and certainly everyone involved in the case, know that the court is simply dithering so that it will not have to decide the question at all or at least not until the U.S. Supreme Court preempts it and makes the state court's decision unavoidable and thus noncontroversial.

Arkansas justices are elected and two or more of them have ambitions for higher office: chief justice when the present chief, Jim Hannah, retires at the end of 2016, or governor. Rendering an unpopular ruling in the gay-marriage case could make either race problematical. But judges everywhere are expected to make those rulings, as a matter of constitutional duty.

For more than a quarter-century, the elected Arkansas justices have decided tumultuous issues like discrimination against homosexuals and sweeping school reform fearlessly, but a few justices may have been taken aback by the savage condemnations of Judge Piazza by the editorials of the statewide newspaper and by legislators like Sen. Jason Rapert, who talked about impeaching the judge.

In one other instance in current memory did the court manifest such cowardice, and it took years to recover its esteem. Another Pulaski County trial judge ruled in 1966 that the state's 1928 law making it a crime for a classroom teacher to talk about evolution violated the First Amendment. Although the Supreme Court first voted 4-3 in conference to reverse him and uphold the anti-evolution law, it then dawdled for much of a year because the chief justice wanted the court to go out united to quell the expected controversy. Two of the three dissenters finally capitulated on the condition that the opinion upholding the law be reduced to several baffling sentences. In unanimously tossing out the old law, the U.S. Supreme Court ridiculed the Arkansas court's "equivocation," and it became a symbol of the cravenness that elected judiciaries could produce.

The current Arkansas court's poorly camouflaged dithering in a long sequence of delays and procedural orders suggests that the marriage case must be one of the most complicated in history, but it really is one of the simplest. The lawyers and parties to the case agreed on the facts, and the constitutional doctrines that have to be settled have been debated and decided by state and federal courts across the land, including a U.S. district judge in Arkansas, and in a number of states by legislative bodies.

For nearly all the courts, the issue was settled on June 16, 2013, by President Ronald Reagan's old friend Anthony Kennedy when he wrote for the majority in United States v. Windsor that a federal statute that applied the term marriage only to heterosexuals was unconstitutional because its only purpose was to "disparage and injure" gays and lesbians, who were owed the same protections as heterosexuals.

Confronted by the issue last year, Judge Piazza, who had faced the voters for 30 years as a prosecutor and trial judge, had no trouble finding that the Windsor precedent was decisive, as well as the state Constitution's own bedrock equality protections.

The seven justices stayed Piazza's mandate but agreed to advance the case because the issue was so important to the well-being of the plaintiffs. The justices heard arguments, conferenced and voted on the morning of Nov. 20. But the opinions never came down and on Jan. 1 the court changed. Justice Donald Corbin, whose manner at the hearing suggested that he strongly supported Piazza's ruling, retired. It raised at least the theoretical question of whether Corbin's vote and that of a special appointed justice who leaned in the same direction became invalid. Now the court is taking another few months — until after the U.S. Supreme Court settles these matters forever — to ponder the mystery.

It thus may avoid the editorial attacks of the Arkansas Democrat-Gazette and of Jason Rapert and also history's review of its stance on a great constitutional question. But no one will mistake it again for a fearless arbiter of the law.

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