Columns » Ernest Dumas

Same-sex rights in Arkansas's future



Although they are guaranteed in the Constitution, actually granting basic liberties to broad swaths of people, whom we may call the socially unappreciated, has been a long and tortuous process.

The country's founding documents, from declarations by the original colonies to the Declaration of Independence and the Constitution itself, carried soaring phrases about legal equality and the right of due process for everyone. Still, slavery endured until the Constitution was amended specifically to prohibit it, and legal equality for black people was not fully recognized as a right until the nation was 175 years old, when the Supreme Court and Congress outlawed segregation as a violation of the Constitution.

Women were regarded as chattel not deserving of the rights belonging to white men until the Constitution was amended to give them voting rights and the courts and the legislative branches gradually recognized that the due process and equal-protection clauses of the fifth and 14th amendments applied equally to women as to men. Fifteen states, including Arkansas, have blocked ratification of an amendment that would formalize legal equality for women as the 13th and 14th amendments did for black men.

The arduous process of making constitutional freedoms real, which is the great story of the American Experiment, advanced another step last week when the Supreme Court, by the narrowest margin, ruled that gay and lesbian Americans also were free to be who they are and to enjoy the same rights as heterosexual men and women, including the benefits of marriage.

Well, it sort of ruled that way. It hinted that it would like to rule that way flatly but needs a little more time and a little more pushing before holding that states like Arkansas cannot outlaw same-sex marriages, civil unions or domestic partnerships.

The court's majority opinion in the order invalidating key provisions of the federal Defense of Marriage Act (DOMA) is not particularly admirable for its pussyfooting, but it had its soaring moments and it did declare what the Constitution has always made manifest; that denying to gay and lesbian couples a right and benefit that the heterosexual majority enjoys is both unjust and unconstitutional when the federal government does it.

What it failed to do, either in invalidating parts of DOMA or in rejecting an appeal of court orders invalidating California's constitutional ban on same-sex marriage, is to say flatly that the states cannot discriminate against same-sex couples.

That will come in fairly short order. The majority opinion obliquely invites challenges to state marriage bans, as the churlish dissenter Antonin Scalia pointed out. If it is hateful and unjust for the federal government to refuse marital bliss to same-sex couples, Scalia asked, how in the world can it be constitutionally permissible for states to do it?

He is obviously right. Scalia himself and the other Republican justices except for Anthony Kennedy believe such discrimination is fine, or at least permissibly unjust under the Constitution. Scalia famously believes the Constitution should be interpreted exactly as the men who wrote it intended it to be interpreted, which was that the inalienable rights in the Constitution applied only to white men — in the context of the moment, white heterosexual men.

Criticism or praise of the decision has to be directed toward one man — Kennedy. As the swing vote, he got to stamp the opinion with his own political sensibilities. The other four might have made the order more straightforward.

So where does Arkansas and the other states that rushed to ban same-sex unions a decade or so ago stand in that process? It is moving more glacially than the rest of the country, or at least the rest outside the South. The movement for gay civil rights, which picked up steam when gays and lesbians were encouraged to come out of the closet and to "out" the hypocrites among them, transformed the debate. Millions learned that their beloved sons and daughters, nieces and nephews, grandchildren, classmates and neighbors were gay and were otherwise no different.

The Arkansas legislature passed a law in the 1970s criminalizing homosexual acts, and it would still be on the books now were it not for the popularly elected Arkansas Supreme Court, which in 2002 declared it violative of the Arkansas Constitution's equal-protection clause . "The police power may not be used to enforce a majority morality on persons whose conduct does not harm others," the court said. That was the ARKANSAS Supreme Court.

A challenge to the Arkansas marriage ban seems undeniable and, in the end, likely to prevail. Yes, our federal appellate circuit in 2006 upheld a Nebraska law like Arkansas's amendment because it said that, though perhaps it was unjust, no justice of the U.S. Supreme Court had ever said that refusing to recognize same-sex unions violated due process or equal protection.

That is no longer true.

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