Editor's note: In response to state Sen. Jason Rapert's guest column in the Democrat-Gazette on Sunday, state Sen. David Johnson submitted the following.
Almost one full month has passed since Judge Chris Piazza entered his order in Pulaski County Circuit Court in Wright v. Arkansas, in which Judge Piazza held that Arkansas law that barred same-sex marriage violated our state and federal constitutions. Many Arkansans have rejoiced, celebrating and embracing a new future that seemed all too distant not so long ago.
I've heard critics of same-sex marriage over these last few weeks. They argue that same-sex marriage offends natural law, for only heterosexual couples naturally may conceive a child. Marriage, they say, is God's creation for God's purposes, necessarily not including the marriage of same-sex couples.
Marriage is endorsed by all mainstream religions. I'm thankful, given the institution's obvious personal benefits and societal benefits to the community at large, that it is. At its core, however, marriage is a civil union controlled not by church doctrine but by law. Law controls every aspect of marriage, from its consummation by license and ceremony to, in the event of its demise, a process for its dissolution. People most certainly have the right to believe in the God of their choice as well as the moral code they believe their God dictates. But just as people have the right to believe as they choose, the free exercise of religion stops when it infringes on the constitutional rights and liberties of others.
I oppose judicial activism, sometimes called "legislating from the bench." Policy matters should be left to our elected lawmakers. Distinct from these values, however, lies the truth that our Constitution provides fundamental rights that protect all of us. Under both our state and federal constitutions, the courts are tasked with enforcing the law, including most certainly those fundamental rights.
"We the people" formed a government comprised of three separate but equal branches of government. All three answer to one ultimate authority: the Constitution. The legislative branch creates law. The executive branch carries out those laws. The judicial branch interprets and enforces them.
We tasked the judiciary with the responsibility of deciding questions of constitutional law--and protecting our freedoms in particular. And we wisely formed our courts as wholly independent.
We formed "a more perfect union," but we could only properly do it by recognizing a single ultimate law: the federal constitution. Indeed, a body not unified by a single ultimate authority "would amount to nothing," said Alexander Hamilton. For that reason, under our federal constitution's supremacy clause, the federal constitution reigns supreme. Therefore, neither a majority of legislators of a state nor the majority of voters of a state may pass a law that is not subject to the federal constitution.
What would be our union without common fundamental rights? Our founding fathers knew the answer to that question.
The greatest void recently in the arguments of opponents of same-sex marriage in Arkansas is an acknow-ledgement of the current state of constitutional law on the issue. Constitutional principles formed the core of Judge Piazza's order. Judge Piazza relied in large part on U.S. v. Windsor, the same-sex marriage case decided by the United States Supreme Court in June 2013. In Windsor, the court held that the Defense of Marriage Act's discrimination against same-sex couples violated the equal protection clause of the United States constitution.
Justice Anthony Kennedy wrote for the majority:
"The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. ... [The Defense of Marriage Act] is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."
Not surprisingly, based on this precedent and our federal constitution's principal place in law, state and federal courts across the country have followed suit. Since last year, courts in Utah, New Jersey, Virginia, Kentucky, Illinois, Texas, New Mexico, Oregon, Idaho, Michigan, Pennsylvania, Oklahoma and Arkansas have held that state laws that forbid same-sex marriage run afoul of the U.S. Constitution. Same-sex marriage is here to stay per mandate of the U.S. Supreme Court.
The new reality may be unsettling for some today. So, too, however, was the then-new reality accorded Mildred Loving, who prevailed before the U.S. Supreme Court in her fight to overcome state marriage bans based on race. At issue for the court then were the same constitutional principles at issue now.
As Judge Piazza wrote:
"It has been over 40 years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it."
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David Johnson is an Arkansas state senator representing District 32.
Editorial on 06/07/2014