May v. Daniels

Robert L. Brown, Justice,

concurring. Are the proposed popular name and ballot title so unclear and misleading that this court must strike the amendment from the ballot and deprive the people of this state of an opportunity to vote on it? That is the sole issue before this court today. It is not this court’s function, preelection, to construe the terms of the amendment, determine its constitutionality or legality, delve into its impact in every situation, or even to decide whether its passage would be a good thing or a bad thing. Our law is clear on this point. See, e.g., Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000); Parker v. Priest, 326 Ark. 386, 931 S.W.2d 108 (1996); Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988).1 We only decide today whether the popular name and ballot title give the people of this state a fair understanding of what is at issue.

Here, the ballot title mirrors the language of the amendment. This means that the question of clarity by necessity must be addressed to the amendment itself and not merely to the ballot title. I cannot say that the ballot title and amendment are fatally misleading.

Petitioners’ core argument goes to whether the public is sufficiently apprised of the fact that not only same-sex marriages are prohibited by the amendment, but also that other relationships for unmarried persons substantially similar or identical to marriage will not be valid or recognized in this state, if this amendment passes. The pertinent language in the amendment dealing with the issue is this:

that legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas. . . .

That language in the amendment and ballot title tells me that unmarried persons united in a substantially similar or identical relationship to marriage will not be given the same legal status by this state as married persons. As the majority opinion points out, at this point we do not know the effect of this language on relationships known in the vernacular as “civil unions,” since civil unions are undefined in our statutes.

Much has been written and argued in this case about what the terms “legal status” and “marital status” mean in this clause of the amendment. But, again, the core notion is obvious from the context of the language. Relationships of unmarried persons, though substantially similar or identical to marriage, will not be recognized in this state. Whether to etch that standard into constitutional stone is the issue for the people of this state to determine at the General Election.

Nor do I believe this quoted language is obfuscated or disguised by the popular name or ballot title. Surely the preclusion of unmarried relationships from the same legal status as married relationships concerns marriage as the popular name proclaims. And to read “marital status” in the above quoted phrase as any other status but “marriage” would be an absurd reading, which we will not do. See, e.g., Yarbrough v. Witty, 336 Ark. 479, 987 S.W.2d 257 (1999).

The petitioners also raise the spectre of certain laws that may be repealed by this amendment which, they contend, is a fact not revealed to the people of this state. They specifically refer to matters like the undefined term, “domestic partners,” found in Act 146 of 1997 and codified at Ark. Code Ann. § 9-ll-208(d) (Repl. 2002). They also mention the homestead exemption under the Arkansas Constitution and the reference to a “resident of this State, who is married or the head of a family.” Ark. Const, art. 9, § 3. They ask: Is that term, head of a family, still viable or has it been called into question by the amendment? These issues were debated in oral argument before this court, and, not surprisingly, the two principal parties did not agree. Yet, the “what ifs” and the speculative impact of the amendment are not reasons to dub it unclear or misleading at this juncture. Surely, these suggested legal ramifications do not rise to the level of legal invalidity found by this court in an initiative petition that completely overhauled the property tax structure of this state and substantially amended procedures for selling county-owned property. See Stilley v. Makris, 343 Ark. 673, 38 S.W.3d 889 (2001). In short, the pivotal issues of the amendment are sufficiently laid out in the ballot title in ten lines for the public to understand them.

Undoubtedly, as is the case with many constitutional amendments, there will be subsequent legislation and litigation to implement and determine the measure’s full impact. There may even be a challenge to the measure’s constitutionality. But that is stuff for another day. And that possibility does not equate to a lack of sufficient clarity in the language of the amendment so as to negate the people’s right to vote on a proposed amendment, which is a right specifically guaranteed by Amendment 7 to the Arkansas Constitution. For these reasons, I join the majority opinion.

It is true that in an unusual case this court did look to the constitutionality of an amendment, pre-election, but in that case, the issue of impairment of contracts had been raised by the parties. See Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000). In the instant case, the parties do not argue the constitutionality of the present amendment, as they did in Kurrus v. Priest.