Both the Arkansas and U.S. Supreme Courts are scheduled to release decisions in pending cases today, though that’s no guarantee — even with a looming summer recess for the Arkansas court — that it will be same-sex wedding day.
I return home to learn of a continuing round of legal speculation on the Arkansas Supreme Court’s leaning in its decision on Circuit Judge Chris Pizza’s ruling last May that invalidated the state’s ban on same-sex marriage. Leaks abut internal workings of the court have marked this case from the beginning and the whispers continue, unsubstantiated though they are.
For what it’s worth: A current scenario predicts a 5-2 decision by the Arkansas Supreme Court to overturn Piazza. This presumably would put the two judges who didn’t participate in the original conference and decision — Justices Rhonda Wood and Robin Wynne — on the case Nov. 20 in the anti-equality majority. The dissenters in the scenario would be Chief Justice Jim Hannah and Justice Paul Danielson, who have said publicly that the machinations that led to a new panel of judges to decide the case was a delaying tactic by a court-majority, including presumed marriage foes Karen Baker and Jo Hart and also future chief justice candidate Courtney Goodson. Goodson will be particularly interesting. Past court leaks have indicated she drew the job of crafting the majority opinion in favor of marriage equality when now-retired Justice Donald Corbin and Special Justice Robert McCorkindale were to decide the case. The opinion wasn’t issued before seats on the court changed Jan. 1, opening the door for a series of actions put in play by marriage foe Leslie Rutledge, the Republican attorney general, that led to a new panel and a new vote on how to decide the case.
This would be the likely path to an Arkansas decision contrary to that of dozens of district and appellate courts around the country in favor of marriage equality.
1) This court majority would cite the solemnity of the 2004 vote by which the Constitution was amended to ban same-sex marriage. (Just as Arkansas voters also soundly approved racial segregation by Constitution.)
2) This court majority would say the amendment overrode the Arkansas Constitution’s declaration of equal rights, at least insofar as it pertains to marriage. Equal rights have been at the core of past successful lawsuits that ended criminal penalties for homosexual acts and a voter ban (statute, not amendment) aimed at preventing same-sex couples from adopting.
3) The rulings by various federal courts — including a lawsuit in Little Rock that led to a ruling by federal Judge Kristine Baker striking down the Arkansas ban — would be held not binding on the Arkansas court. For now, though many cases are pending on appeal, the prevailing precedent in the 8th Circuit U.S. Court of Appeals, which covers Arkansas. is an old Nebraska case that left a ban in that state in place.
If one or more justice indeed switched sides between November and the recent conference on the coming decision, you may be sure that this fact will become known, no matter how hard the controlling majority on the Supreme Court attempts to suppress information.
Will Arkansas join Alabama’s Chief Justice Roy Moore in standing in the courthouse door against the rising tide of equality? Perhaps even on the very day the U.S. Supreme Court delivers on the Constitution’s promise to same-sex couples?
Will the Arkansas court majority adopt the Moore and Mike Huckabee view that a U.S. Supreme Court ruling contrary to the popular vote here is unenforceable?
And what of the 500 couples who married in the week of equality that followed Piazza’s ruling, before a Supreme Court faction reportedly led by Justice Karen Baker, hurried up a stay of his order? Are they but unfortunate footnotes with now-worthless certificates of matrimony?
And what of the thousands of people legally married in other states who now reside in Arkansas.? Will marriage be a matter of law in which the Arkansas Supreme Court does not extend the “full faith and credit” normally afforded one state’s law in another jurisdiction?
Both courts will begin issuing opinions at 9 a..m. this morning. We’ll be staying tuned.
I hope, of course, that the latest speculation is wrong about Arkansas and that the optimistic presumptions about the leanings of the U.S. Supreme Court are correct. Slate wrote about the chaos that will ensue if the U.S. Supreme Court overturns all those rulings that have contributed to marriage equality in 37 states.
A negative ruling in Arkansas will only solidify the growing impression that Arkansas’s highest court is in thrall to popular whim and a Republican legislature and little concerned with foundational documents of the state or nation. And it likely will get far worse if Goodson, a calculating politician with no discernible core values, rises to chief justice and Gov. Asa Hutchinson gets to name a two-year replacement for her. Also retiring is Danielson, and the only candidate so far is former Republican senator and circuit judge Shawn Womack, who 1) tried to RE-criminalize homosexuality (not decriminalize as I erroneously wrote originally); 2) tried to ban gay adoption, and 3) once actually invoked an equal rights argument to buttress his case for a whopping pay increase for Arkansas judges, who already were paid among the top tier of states despite our low income. Equal pay for judges he’s for. Equal rights for gay people? Not so much.
On a more hopeful note: Hillary Clinton’s video message in support of marriage equality. Human rights and gay rights are one in the same, she says.