Josh Marshall spotted flocks of pigs flying over Mississippi yesterday. I didn't see them in my neighboring state of Arkansas (and, unless I'm mistaken, a collective of swine isn't called a flock, but a herd — as in Luke 8:32-3, when the KJV of the gospels tells us that Jesus sends a legion of demons into a herd of Gadarene swine. Or it appears that one may speak of a "gang of hogs," a term I've just met in an 1801 estate sale in North Carolina, in which an ancestor of mine bought a "gang of hogs" from the estate of his deceased relative. We know things like what to call collectives of pigs in places like Mississippi and Arkansas and North Carolina. But I digress.)
As I say, Josh Marshall detected pigs flying over Mississippi yesterday, as he notes that federal judge Carlton Reeves struck down Mississippi's ban on same-sex marriage on the same day that federal judge Kristine Baker upheld the ruling of Judge Chris Piazza striking down the ban on same-sex marriage in Arkansas this past May. Here are some highlights from both judicial statements:
Judge Kristine Baker's Arkansas ruling:
The bottom line is this:
The Court declares that Arkansas’s marriage laws—Amendment 83 of the Arkansas Constitution and Arkansas Code Annotated §§ 9-11-107, 9-11-109, and 9-11-208—violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by precluding same-sex couples from exercising their fundamental right to marry in Arkansas, by not recognizing valid same-sex marriages from other states, and by discriminating on the basis of gender (p. 41).
Judge Baker is clear and direct about the fundamental right of same-sex couples to marriage — a right that, as I recently noted, the state itself is contesting and has claimed is a strictly limited right that does not apply to same-sex couples:
As to the right to marry, the Supreme Court has been clear: "the 'liberty' specially protected by the Due Process Clause includes the right to marry . . . ." Id [i.e., Glucksberg, 521 U.S. at 719-20]. “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." Loving v. Virginia, 388 U.S. 1, 12 (1967) (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)). "[O]ur past decisions make clear that the right to marry is of fundamental importance . . . ." Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (p. 27)
Contra the assertion of the state of Arkansas that the right of same-sex couples to marry is not "fundamental," Judge Baker flatly asserts:
This argument is unpersuasive for several reasons. As the Supreme Court has stated, "the right to marry is of fundamental importance for all individuals." Zablocki, 434 U.S. at 384. The Supreme Court’s previous decisions heralding the "right to marry" as fundamental do not describe that right with any more specificity. See Kitchen, 755 F.3d at 1210 ("In numerous cases, the Court has discussed the right to marry at a broader level of generality . . . ."). In fact, even Glucksberg—in wake of its "careful description" requirement—described an unrestricted "right to marry" as fundamental. 521 U.S. at 719-20 (p. 28).
And then (this passage follows immediately on the preceding one asserting a fundamental right to marry that applies to same-sex couples), Judge Baker points to Loving v. Virginia, the case that resulted in the Supreme Court striking down bans against interracial marriage nationwide. (Again, as I noted recently — see the preceding link — the state of Arkansas is arguing that there is no parallel between the ban on interracial marriage in the past and the current ban on same-sex marriage):
Further, in Loving, the Supreme Court held unconstitutional laws that prohibited interracial marriage because such laws violated “the freedom of choice to marry.” 388 U.S. at 4. As the Supreme Court noted in later cases, the Loving Court struck these anti-miscegenation laws despite the fact that our nation’s history and tradition rejected outright interracial marriages. See Lawrence, 539 U.S. at 577-78 ("[N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack."); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847-48 (1992) ("Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th Century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference").
Although Loving involved a heterosexual couple, Supreme Court precedents also characterize the "right to marry" as distinct and independent from the right to procreate revealing that the “right to marry” does not inherently hinge on a couple’s ability to produce children (pp. 28-9).
In a deft move, in two succinct paragraphs, Judge Baker's ruling is knocking down a whole series of arguments put forth by American conservatives to ban same-sex marriage: 1) that there is no right to marriage that applies to everyone; 2) that there is no parallel between the denial of the right to marriage to same-sex couples and the denial of marriage to interracial couples; and 3) that same-sex marriage must be outlawed since same-sex marriages are non-procreative.
As Judge Baker goes on to assert, the targeted minority against which this generation is determined to discrimate may not be the same minority which that generation of the past wanted to target, but the mechanisms of discrimination remain very much the same — and the Constitutional principles that outlaw such targeted discrimination do not vary from period to period:
These cases underscore that the drafters of the Fifth and Fourteenth Amendments "knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Lawrence, 539 U.S. at 579 (p. 29).
What Judge Baker is, of course, implicitly doing in that paragraph I've just cited is engaging the "strict constitutionalism" of Supreme Court justice Antonin Scalia, who is fond of arguing that, if the framers of the Constitution couldn't envisage, say, birth-control pills, they must not have intended their Constitutional principles to apply to birth-control pills. As with one ruling after another in the past months knocking down bans on same-sex marriage across the U.S. as unconstitutional, Baker's ruling goes on to spoof Scalia's dissent in the Lawrence case as a sound basis for admitting that the right to civil marriage is not linked to procreativity, since we have long since permitted non-procreative heterosexual couples to marry:
Further, the Supreme Court has held that married couples have a right not to procreate and that the Constitution protects the right of individuals to marry regardless of their ability or desire to procreate, including those who are elderly, infertile, and incarcerated. See Lawrence, 539 U.S. at 604 (Scalia, J., dissenting) ("[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising the liberty protected by the Constitution? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry." (quotations omitted)); Turner, 482 U.S. at 96 (declaring "a constitutionally protected marital relationship in the prison context" even when a couple may not birth a child); Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (holding that married couples have a right to use contraception) (pp. 33-4).
Judge Carlton Reeves's Mississippi ruling:
This judicial statement will be fascinating to anyone with even a smidgen of knowledge of the tortuous history of the American South and the state of Mississippi, in particular. It's like eating a huge, delicious serving of bourbon-laced fruitcake on Christmas day — full of surprises, rich beyond anticipation, delightfully antiquated in the way only fruitcake at Christmas can be. It's a slice of Mississippi itself, in other words.
Judge Reeves's bottom line:
The court concludes that Mississippi’s same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law. Gay and lesbian citizens cannot be subjected to such second-class citizenship. Mississippi’s same-sex marriage ban violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment (pp. 3-4).
What's particularly delightful about the antiquated-fruitcake perspective of this judicial ruling is how it stands the Southern argument from hidebound tradition on its head: Judge Reeves makes his audience take a close, salubrious, dog's-nose-smeared-in-the-puddle-of-urine look at what the vaunted traditions they keep defending have been really all about — in Mississippi, in particular:
Under the Fourteenth Amendment, a state may not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S.Const. amend. XIV, § 1. Although this text has not changed in nearly 150 years, our understanding of it has changed dramatically. Before turning to today’s issue, then, it is worth considering some of those historical changes.
In 1896, the Supreme Court found that "separate schools for white and colored children" did not violate the Fourteenth Amendment. Plessy v. Ferguson, 163 U.S. 537, 544 (1896). In 1954, though, the Court ruled that racially segregated schools were inherently discriminatory and unconstitutional. Brown v. Board of Education, 347 U.S. 483 (1954).
In 1872, a woman was denied a law license solely because she was a woman. Bradwell v. Illinois, 83 U.S. 130 (1872). The Equal Protection Clause was essentially irrelevant when it came to women. Ninety-nine years passed before the Court "ruled in favor of a woman who complained that her State had denied her the equal protection of its laws." Virginia, 518 U.S. at 532 (citation omitted).
In 1986, the Supreme Court said a state could criminalize consensual sex between two men in the privacy of their home. Bowers v. Hardwick, 478 U.S. 186, 188-89 (1986). The Court reversed course within two decades. "Bowers was not correct when it was decided, and it is not correct today," it explained. Lawrence, 539 U.S. at 578.
These are just a few examples. There are others. Even an abbreviated history shows that millions of Americans were once deemed ineligible for full Fourteenth Amendment protection. But we now take for granted that racial discrimination is wrong, that women cannot be excluded from the professions, and that gay and lesbian citizens are entitled to the same privacy in their sex lives that heterosexual citizens enjoy. We changed. These issues have faded into the background of everyday life (pp. 16-18).
And then, onto this instructive historical overview of one (fairly recent) case after another in which a majority of citizens of many states have been determined to target various minority groups and strip them of rights, Judge Reeves tacks an argument for the specific role of the judiciary in protecting the rights of minorities against the determination of the majority to trample on those rights:
The judiciary plays a unique role in this process. The above cases were not put to a vote of the American people. The votes had already been counted; the legislatures had already acted. Most voters thought nothing wrong with the status quo, unconstitutional as it may be.
This was always a risk of our representative democracy. James Madison wrote that “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” The Federalist No. 10. He and his colleagues “knew times can blind us to certain truths.” Lawrence, 539 U.S. at 579. Mistakes would be made (p. 18).
As does Judge Baker, Judge Reeves also highlights the connection between the Loving v. Virginia case and the appeal of same-sex couples for the right to marry — an unavoidable connection to make in Southern states that were long determined to deny the human right, the Constitutional right, of civil marriage to interracial couples:
Perhaps the most significant case demonstrating the evolving conception of the right to marry is Loving v. Virginia. There, the Supreme Court ruled that Virginia’s law banning interracial marriage violated the Due Process Clause. 388 U.S. 1 (1967). The law deprived couples of "liberty without due process of law" and denied them the"freedom to marry," which “has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Id . at 12.
Loving did not redefine marriage or create a new “right to interracial marriage.” Rather, it struck down a law limiting an existing fundamental right on account of race, a governmental classification which is subject to judicial review. Id.; see also Lawrence, 539 U.S. at 577-78 ("neither history nor tradition could save a law prohibiting miscegenation from constitutional attack"). Loving means that fundamental rights like the right to marry are presumptively shared by all persons, and laws restricting these rights are subject to strict scrutiny when the government attempts to limit other groups' access to them. Accord Glucksberg, 521 U.S. at 721 (applying strict scrutiny to laws "infring[ing]" on "fundamental liberty interests").
Loving also stands for the proposition that marital rights are articulated broadly (pp. 22-3).
And then Scalia again — Scalia dissenting from the Windsor decision, cited to overturn his argument that the principles of the Constitution must be strictly limited to the worldview of the property-owning white males who crafted this document in the 18th century:
This conclusion [i.e., Windsor's conclusion that gay and lesbian couples enjoy a substantial due-process right to marry] is reinforced by Justice Scalia's dissent in Windsor, where he again observed that the majority’s reasoning would open the door to strike down state bans on same-sex marriage. Id. at 2709-11 (Scalia, J., dissenting). When read in conjunction with Loving and Lawrence, the undersigned must agree.
Gay and lesbian persons are full citizens that share the same rights as other citizens, including the right to marry (pp. 24-5).
Following this, in a riveting, brilliant recounting (pp. 31-43) of the intertwined history of racial discrimination and discrimination against LGBT citizens in Mississippi designed to illustrate that "[d]iscrimination against gay and lesbian Mississippians is not ancient history" (and that black Mississippians and their churches have colluded with white Mississippians and their churches to deny rights to LGBT citizens), Judge Reeves cites Faulkner:
"The past is never dead. It’s not even past." William Faulkner, Requiem for a Nun 92 (Random House, 1951). That is as true here as anywhere else. Seven centuries of strong objections to homosexual conduct have resulted in a constellation of State laws that treat gay and lesbian Mississippians as lesser, "other" people. Thus, it is easy to conclude that they have suffered through a long and unfortunate history of discrimination (p. 43).
As does Judge Baker, Judge Reeves also seeks to engage the argument that same-sex couples should be barred from marriage because they are incapable of procreation. To be specific: he engages the peculiar argument of conservatives that, by permitting non-procreative gay couples to marry, the state will undermine the desire of heterosexual couples to build strong, stable families. His rejoinder to that argument:
The problem is that the State’s limitation of marriage to opposite-sex couples is not a rational means of achieving that end. Gay and lesbian couples can form stable family units just as well as opposite-sex couples. Gay and lesbian couples can also love and care for children just as well as opposite-sex couples. It makes no sense to exclude them from an institution that promotes stable families and strengthens children. If the purpose of State-recognized marriage is to protect families and children, then the State should expand marriage rights to gay and lesbian couples, not bar them from it (p. 52).
There is no reason to believe that opposite-sex couples will not marry because a same-sex couple can marry. White couples did not call off their marriages when the Supreme Court made interracial marriages lawful. Free-world couples did not cancel their weddings when the Supreme Court permitted incarcerated persons to marry. There is no harm to anyone else (p. 53).
So much for the gays-will-destroy-marriage arguments of the right. Judge Reeves then goes on to engage the right-wing argument from tradition — namely, that permitting same-sex couples to marry upends millennia of tradition. Once again, he implicitly asks those using this argument, Do you know anything at all about our real traditions in the area of marriage?:
The appeal to tradition also reveals little understanding of the history of marriage. Traditionally, "a woman had no legal existence separate from her husband," and was "incapable, without her husband's consent, of making contracts which shall be binding on her or him." Bradwell, 83 U.S. at 141 (Bradley, J., concurring). Traditionally, "a wife was legally . . . her husband's property" and "it was legally impossible for a man to rape his wife." Latta, 2014 WL 4977682, at *20-21 (Berzon, J., concurring) (brackets omitted). Traditionally, "divorce was exceedingly difficult” and “a husband's prerogative to chastise his wife – that is, to beat her short of permanent injury – was recognized as his marital right." Id. at *21. No one argues for those traditions today (pp. 54-5).
But what about that bugbear of "activist judges" who overrule the will of the people? What about the right of the majority to vote to remove the rights of the minority, for God's sake? Here's Judge Reeves's succinct response to that right-wing argument:
[T]he judiciary does not defer to the voters' decision to deprive others of constitutional rights. James Meredith was admitted to the University of Mississippi over the will of the voters. Edith Windsor was not told to send a strongly worded letter to her Congressman. The political process does not enforce individual constitutional rights. The judiciary does. See Barnette, 319 U.S. at 638.
This is especially true in the Supreme Court’s marriage and sexual privacy cases. In Loving, Virginia asked the Court to let it and 15 other states – approximately the same number of states which today outlaw same-sex marriage – keep their interracial marriage bans, in part by arguing that the plaintiffs "must look to the polls and not to the courts" for relief. Brief and Appendix on Behalf of Appellee at *38, Loving v. Virginia, No. 395, 1967 WL 113931 (U.S. Mar. 20, 1967); see Loving, 388 U.S. at 6. The Court disagreed. The Lovings could live in Virginia without awaiting legislative approval (p. 56).
Or, to put the point even more boldly and succinctly:
The courts do not wait out the political process when constitutional rights are being violated, especially when the political process caused the constitutional violations in the first place (p. 58).
And then there's this — another lesson in history and tradition for citizens of a state who claim to be enamored of history and tradition:
There also is the uncomfortable reality that a couple [of] Southern states have taken decades to recognize interracial marriage. In Alabama, voters decided to remove their interracial marriage ban from the books only in 2000, 33 years after Loving was decided. Suzy Hansen, Mixing It Up, Salon, Mar. 8, 2001. Mississippi voters repealed this State’s ban on interracial marriage in 1987 – a mere 21 years post-Loving – and only then by a margin of 52%-48%. Miss. Official and Statistical Register 1998-1992 579. Despite this achievement, a poll released in 2011 suggested that "nearly half" of our State’s majority political party thought interracial marriage should be unlawful. J.F., Small Government, Then and Now, The Economist, Apr. 8, 2011.
If the passage of 50 years has had such negligible impact on the public's opinion of interracial marriage in the Deep South, it is difficult to see how gay and lesbian Mississippians can depend on the political process to provide them any timely relief. And while they wait and see how the political process will play out, their legal rights and those of their children will continue to be denied. As Justice Kennedy said in another same-sex marriage case, "[t]he voice of those children is important in this case, don't you think?" Hollingsworth Transcript, at *21 (pp. 59-60).
And then there's this remarkable passage as Judge Reeves winds down his argument: in response to the claims of the state that "chaos" will ensue if same-sex couples are allowed to marry in Mississippi, and there are all those forms reading "husband" and "wife" to change, he notes that he wants to balance the state's concerns agains the needs of plaintiffs and will grant a 14-day stay of his order. But:
The plaintiffs will be harmed by a stay. The Utah decision shows the specific rights same-sex couples in Mississippi are presently denied: joint adoption of children currently being raised by one same-sex couple, hospital visitation rights for another who previously had not been afforded that opportunity, and a third couple’s discovery "that they could save approximately $8,000.00 each year on health insurance." Evans v. Utah, --- F. Supp. 3d ---, No. 2:14-CV-55, 2014 WL 2048343, at *3 (D. Utah May 19, 2014). These are obviously important interests.
And then this powerful, overriding conclusion:
The Fourteenth Amendment operates to remove the blinders of inequality from our eyes. Though we cherish our traditional values, they must give way to constitutional wisdom. Mississippi’s traditional beliefs about gay and lesbian citizens led it to defy that wisdom by taking away fundamental rights owed to every citizen. It is time to restore those rights.
Judge Baker also stayed her ruling pending appeal by the state of Arkansas. There's also a case pending before the state's Supreme Court, which has not yet issued a ruling. Meanwhile, as I noted several days ago and as Judge Reeves states so eloquently at the end of his ruling, real people are involved in these judicial dramas — people with real lives.
Those real people are caught — and harmed, in not a few cases — in the nets of the legal limbo created by rulings and counter-rulings and stays and judicial delays. As the posting to which I've just linked notes, last week, Steve and I lost a friend who married his partner on the same day in May on which we married. Our friend Steve Thomas died not having seen a resolution to this drama of rulings and counter-rulings, stays and judicial delays. He died having married, and not having seen his marriage (and the marital rights of his spouse) fully recognized by our state.
He died the day before Judge Baker and the state Supremes heard the cases regarding the Arkansas ban on same-sex marriages. His funeral was last evening. It was at the funeral that I learned from our friend Judge Griffen that Judge Baker had issued her ruling yesterday — on the day of our friend Steve's funeral.
I can't help but feel that our friend Steve is here in some way, in the remarkable coincidence between his death and funeral and the creeping, far-too-infantile and far-too-dilatory movement of our state towards recognition of the humanity of LGBT citizens. His life counts supremely towards that movement: he lived towards it, and in doing so, spurred our whole state in the direction of humanity.
But in this interim period, I also grow mighty weary of seeing real people continue to be harmed by the needless delays and wicked wrangling over issues that should long since have been resolved. On the side of human rights . . . . Resolved, above all, by the highest court in the land . . . .