On Marriage (Blake Rutherford On Politics)

by Blake Rutherford  on Thursday, May. 22, 2014 10:28 am  

Blake Rutherford

On the Friday before Mother’s Day, Pulaski County Circuit Judge Chris Piazza ruled that Act 144 of 1997 and Amendment 83 to Arkansas’ Constitution declaring marriage to be between one man and one woman was unconstitutional, becoming the first circuit court in the South to do so.

Same-sex marriage is now legal in 17 states and the District of Columbia, but it became a political issue in 2004 during the re-election campaign of President George W. Bush. A national effort, orchestrated by Republicans including Karl Rove, worked “to make sure that anti-gay initiatives and referenda would appear on November ballots in 2004 and 2006 to help Republicans,” according to Ken Mehlman, Bush’s campaign manager in 2004. That year, same-sex marriage bans appeared on the ballot in 11 states, including Ohio, where the election was ultimately decided.

Arkansas was one of those states.

Ten years ago, Amendment 83 was the statewide mechanism to define marriage in the Arkansas Constitution. It was not intelligent, honest or impartial, and it presented a rash of unintended consequences. Nevertheless, social conservative groups pursued it vigorously. In the autumn of 2004, I appeared in the Arkansas Supreme Court, in May v. Daniels, to argue that it should not appear on the ballot. But the court held 4-2 that Amendment 83 should remain, and voters overwhelmingly approved it that November.

While Arkansas is in a different legal position 10 year later, public opinion leans substantially against marriage equality. Nearly 75 percent of Arkansans oppose same-sex marriage, according to a poll conducted by Talk Business Arkansas in January. Arkansas’ opposition outpaces the nation, where a record-high 59 percent of Americans now support same-sex marriage, including 81 percent of those ages 18 to 29, and 52 percent of Republicans.

The state numbers present political complexities for candidates on the November ballot, which is why so many Democrats distanced themselves from Piazza’s ruling.

More: An overview of the same-sex marriage fight in 29 states.

Conservatives panned the decision. Some, including several members of the Arkansas General Assembly, called for Piazza’s impeachment. Setting aside the lunacy of such claims, the precedent it sets is bone-chilling. Here we have a widely reputable and ethical judge fulfilling his duty. His findings are subject to review by a higher court, which has been a virtue of our legal system since the founding.(1)  

Arkansas is prone to fits of political hysteria, and that’s certainly the case here. What these impeachment-motivated dogmatists have forgotten is that our basic rights derive from the rule of law, so using impeachment as a means of retribution is a treacherous idea for any honest proponent of democracy. Fortunately, House Speaker Davy Carter, a Republican, in an act of much-needed civility, made clear that he would oppose impeachment.

Organized religion is a social and political influencer in Arkansas, and, among the pious, it’s driving opposition to Piazza’s ruling.

When we talk about marriage in the context of religion, what I think we’re really talking about is moral authority, its permutations as well as its limitations. If, among believers, it’s right to say that one’s marriage is sanctioned by God and thus divines its moral authority from Him, then mustn’t it also be right to say that there is nothing man can do undermine that authority? Or so logic infers.

But moral authority does not reside exclusively in religion. As the German philosopher Immanuel Kant articulated in “Religion within the Limits of Reason Alone,” “morality does not need religion at all” because the incentive for man to do his duty is the law itself. Consequently, public engagement in organized religion is on a 60-year decline, reaching its lowest levels. Our confidence in organized religion has been on a steady decline since the 1970s, falling more than 20 points by 2012 according to Gallup.

Perhaps the lens with which to best view the issue is my own Methodist-affiliated marriage. In today’s marital environment, I’m certain that the presence of same-sex marriage, like the rising divorce rate among heterosexual couples, will have no bearing on the moral authority that guides my marriage or on the things that matter a great deal to sustain it: love, trust, intimacy and understanding. Reflecting on my own life, including my life in the United Methodist Church, I’m sure of this: Marriage, like a relationship with God, is one’s own.

Blake Rutherford Talks About Same-Sex Marriage on 'The Alice Stewart Show'

But this is much more than a matter of religion. The horrific terrorist attacks on Sept. 11, 2001 sparked an age of great economic uncertainty. I was in law school at the time, so I’m among a generation of the professional class that’s come of age in the time between then and now, the rubble of the Great Recession of 2008 still visible. Economic prosperity and ingenuity are the pathway forward, and in that regard same-sex marriage is very good public policy.

The Congressional Budget Office has estimated that same-sex marriage will generate an additional $1 billion in revenue each year for the next 10 years. Same-sex marriage would reduce spending, on net, by $100 million to $200 million per year. In 2012, the National Tax Journal determined that tax revenue would rise if same-sex marriages were legalized.

We know that more single-parent families live in poverty than married-couple families. The CBO estimated a $450 million cost reduction in Supplemental Security Income, Medicare and Medicaid would be realized if same-sex marriages were permitted.

Some states have already realized the economic benefits:

  • New York City alone saw a $259 million boon to its economy after the state passed its Marriage Equality Act.
  • In California, the Williams Institute also determined that same-sex marriage would generate $40 million in tax revenue and an additional $492 million from wedding-based spending over a three-year period.
  • In Maryland, it was estimated that $40 million to $64 million in new state revenue would be generated through 2015.
  • In Illinois, it was estimated that new spending would rise between $54 million and $103 million the first three years same-sex marriage was permitted.

In others, marriage equality presents economic opportunity. For example, a recent study in Indiana concluded the economic benefit would be $39 million in new revenue.

In July of last year, Arkansas Economic Development Commission director Grant Tennille said in support of same-sex marriage, “I believe that increasingly, particularly in the area of high tech, high skilled, knowledge-based jobs, that companies look for locations where all of their employees can be welcomed, all of their employees can be part of a community and all of their employees will be treated equally. I think the first state in the South that moves in that direction will have a leg up.”

There’s a lot to that. A little more than a year ago, dozens of major corporations, many of them driving innovation in the world economy, endorsed same-sex marriage. Those companies included Apple, Starbucks, Facebook, eBay, Google, Intel, Alcoa, Morgan Stanley, Goldman Sachs, Nike, AT&T, Verizon, Microsoft, Johnson & Johnson, Marriott International, and Cisco.  

Same-sex marriage has had documented benefits in the areas of public health, and people have felt more legitimized within their own families and communities. It also improves access to health insurance, particularly for employers who offer it to spouses, as the University of Arkansas System has done. (2)

In terms of raising children, the American Academy of Pediatrics has determined, “If a child has 2 living and capable parents who choose to create a permanent bond by way of civil marriage, it is in the best interests of their child(ren) that legal and social institutions allow and support them to do so, irrespective of their sexual orientation.” Before that, the Academy found, “A growing body of scientific literature demonstrates that children who grow up with 1 or 2 gay and/or lesbian parents fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual.”

The kids, it seems, are all right.

Less than a decade ago, former President Bill Clinton was in Little Rock for the Association of Alternative Newsmedia Annual Meeting. I was present during his Q&A when he reaffirmed his opposition to same-sex marriage, an opinion that had influenced his pursuit of the Defense of Marriage Act in 1996. 

But things evolve. In 2011 Clinton said that our mission to form a more perfect union “has inspired and empowered us to extend rights to people previously denied them. Every time we have done that, it has strengthened our nation. Now we should do it again, in New York, with marriage equality.”

President Barack Obama, beyond his own personal support, chose not to spend Justice Department resources defending the DOMA, which the Supreme Court later declared unconstitutional in U.S. v. Windsor. It was an act of profound political symbolism.

The question, of course, is what happens next in Arkansas. The case will run its course, as these things do, and same-sex marriage will have another day in the Arkansas Supreme Court. If the 14 consecutive legal decisions across the United States striking down same-sex marriage bans as well as the Supreme Court’s recent ruling in Windsor are any indication, same-sex marriage will soon be the law of the land in Arkansas ahead of all other states in the South. After that, potentially a case in the U.S. Supreme Court to settle the matter nationwide.

“Where does it all lead? What will become of us?” Patti Smith asked in her memoir "Just Kids." “These were our young questions, and young answers were revealed. It leads to each other. We become ourselves.”   

It would be a wonderful thing.


(1) In addition to Arkansas, there have been eight court decisions in seven months that have led to same-sex marriage in Virginia, Texas, Oklahoma, Utah, Michigan, Idaho, Oregon, and Pennsylvania. Before that courts in Connecticut, California, Iowa, Massachusetts, New Jersey and New Mexico issued final rulings in favor of same-sex marriage.

(2) Citing the Arkansas Supreme Court's ruling that stayed Piazza's ruling, the UA System reversed course on Tuesday.

(Blake Rutherford is vice president of The McLarty Companies and previously was chief of staff to the Arkansas attorney general. You can follow him on Twitter at BlakeRutherford. His column appears every other Wednesday in the weekly Government & Politics e-newsletter. You can subscribe for free here.)



Please read our comments policy before commenting.