Once the Republican Attorney-General, Tom Horne, announced he would not appeal the ruling, the fate of Arizona’s ban on marriage equality was sealed. It would have been sealed eventually, but at least the Attorney-General recognized the legal realities.
The decision I make today has to be based on legal considerations rather than policy considerations. I believe the first duty of the Attorney General is to be a good lawyer.
Lawyers live under a rule called Rule 11, which provides that it is unethical for a lawyer to file a pleading for purposes of delay rather than to achieve a result.
The probability of persuading the 9th circuit to reverse today’s decision is zero. The probability of the United States Supreme Court accepting review of the 9th circuit decision is also zero.
Clearly, Horne was disappointed, even if he recognized the fact that the war against marriage freedom and equality is over.
In light of these developments, same sex couples in Arizona celebrated that the constitution protects their right to do what many other loving couples in America can take for granted. They got their marriage licenses.
Awhile later, Governor Jan Brewer was less than gracious when she conceded defeat.
It is not only disappointing, but also deeply troubling, that unelected federal judges can dictate the laws of individual states, create rights based on their personal policy preferences and supplant the will of the people in an area traditionally left to the states for more than two hundred years.
As Justice Scalia opined, such action is tantamount to ‘an assertion of judicial supremacy over the people’ and is an image of the judiciary ‘that would have been unrecognizable to those who wrote and ratified our national charter.
In reality, her argument is an attack on our system of checks and balances. Under our constitution, legislatures pass laws, which is supposed to be based on the will of the people. Judges interpret them and they are supposed to overturn unconstitutional laws. That’s what happened with Arizona’s marriage ban and similar laws in other states.
While we’re at it, Antonin Scalia conceded that state bans on marriage equality are doomed, given the Supreme Court’s ruling in the Windsor case. Several courts relied on Scalia’s reasoning in his dissent in the Windsor case. Some courts also relied on the rational in Scalia’s dissent in the landmark case, Lawrence v. Texas. Justice Scalia said, “What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’?”
Brewer went on to say, “If society wants to recognize same-sex marriage or civil unions, that decision should be made through our elected representatives or at the ballot – not the courts.”
Governor Brewer’s claim amounts to a belief that lawmakers should have primacy over the law, unless the judges are elected. Of course, that overlooks the fact that our constitution established checks and balances in the name of preventing tyranny. Her statement is also advocacy for tyranny of the majority. Historically, conservatives relied on it to defend segregation and bans on interracial marriages. It was the courts’ role to bring an end to the inherent injustice and unconstitutionality of these laws, passed by the states based on the tyrannical will of the majority.
Oh, and where was Jan Brewer when the Supreme Court ignored the will of society and states by legislating that money is speech in Citizens United? The U.S. Supreme Court overturned a century old law in Montana that limited corporate spending in state and local elections.
Moreover, the Roberts court ruled that the “deeply held” religious beliefs of corporations trump those of individuals, and the will of society. It overturned a Massachusetts law that was intended to prevent “pro-life” protesters from assaulting staff and patients at the state’s reproductive health care clinics. Like other “conservatives,” Brewer didn’t mind those rulings by un-elected judges when they contradicted the will of society.
Image: Real Clear Politics