Constitutional cacophony

Pulaski Circuit Judge Chris Piazza's ruling that the state's gay marriage ban is unconstitutional transported leading Republican state legislators to happier times.

Those would be the racially segregated 1950s, the Civil War of the 1860s and the time of the early Christians in Rome, specifically the time when Paul wrote to condemn those early Christians' same-sex promiscuity.

State Rep. Bruce Westerman of Hot Springs, the House majority leader and a candidate for Congress from the 4th District, asserted that an amendment to the constitution cannot itself be unconstitutional.

Of course it can. A state's voters may put a screwball amendment on their state Constitution by majority vote. But the stirring federal principles of the U.S. Constitution will supersede if there is conflict.

Voters of Arkansas chose by 56 percent in November 1956 to approve Amendment 44 to the state Constitution. That little gem of "law," using the word absurdly, provided that federal court rulings ordering racial desegregation of schools simply would not be obeyed in Arkansas.

How did Amendment 44 turn out? Do a couple of Google searches: "Civil War, who won?" and "Little Rock Central High, federal troops."


The Arkansas Constitution is a burdensome tome of specificity and prohibition, often negative in tone and containing 90 amendments. Anyone with a hankering to deny someone rights and a willingness to circulate petitions can take a shot at voter passage of an amendment.

The U.S. Constitution is a comparatively brief statement of principles--free assembly, free press, free speech, due process, equal protection--and mostly positive in tone. It has but 27 amendments. The amending process is arduous by design, requiring congressional referral and ratification by 38 states.

As constitutions go, the national one is a delicate but radiant rose; the state one is a noxious seasonal weed.

And that brings us to the inimitable state Sen. Jason Rapert of Conway, prominent local denier of rights.

He gave an interview Saturday to The City Wire, an online news source in Fort Smith and Northwest Arkansas, in which he confirmed that other legislators had brought up the idea of impeaching Piazza. He embraced the idea.

As Rapert explained, Piazza's impeachable offense would be as follows: The state Constitution contains Amendment 83, which was approved by the voters and defined marriage as between one man and one woman. Judge Piazza had sworn an oath to uphold the constitution. Yet he had violated that oath by not upholding that amendment and by injecting his singular whim ahead of the decisive vote of an overwhelming 75 percent of the state's voters.

Let's dismiss that argument with ease: The oath of office that a state judge takes is to uphold the constitutions both of the state and nation. Piazza's ruling was based in large part on the 14th Amendment to the U.S. Constitution, which outlines principles of equal protection and due process.

For Rapert this issue transcends mortals. He said God favors a gay-marriage ban.

He invoked the passage in Romans. That's the one in which Paul is telling the folks that they shouldn't be having all that orgiastic man-on-man and woman-on-woman activity. Whether that means Adam and Steve can't get married in 2014 is a matter of theological interpretation.

Rapert does not accept other theological interpretations. The voice on his hot line to God is the real voice of God. You see.

Rapert said the state's enactment in 1956 of a racial segregation amendment was "different" from enacting a ban in 2004 on gay marriage. He said heterosexual marriage was God-sanctified.

So I asked him if he was saying homosexuality was wrong but segregation wasn't. He wouldn't say that, but only that the situations were "different," and that my invoking racism as somehow parallel was shameful.

Impeachment would begin in the state House of Representatives. So The City Wire called House Speaker Davy Carter, one of the leading moderates in Arkansas.

Carter said impeachment because of disagreement with a lone judge's lone ruling was the craziest thing he had ever heard.

These judges are elected, so deal with your enmity that way, Carter advised. And, he pointed out, rulings by district judges can be appealed to higher courts of broader membership.

The Rapert assertion that a court shouldn't contradict the will of the people is quite uninformed.

In 1803, the U.S. Supreme Court established in Marbury v. Madison the role of the federal judiciary to review legislative enactments for their adherence to the U.S. Constitution.

The French political thinker de Tocqueville, even conservative writer Ayn Rand, warned that majority rule could trample on minority rights.

That's why we have courts.

We also have impeachment, but it probably should remain reserved for something worse than issuing a court ruling Jason Rapert doesn't like.

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John Brummett's column appears regularly in the Arkansas Democrat-Gazette. Email him at jbrummett@arkansasonline.com. Read his blog at brummett.arkansasonline.com, or his @johnbrummett Twitter feed.

Editorial on 05/13/2014

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