Close on 100 years ago, the legendary Supreme Court Justice Oliver Wendell Holmes noted that declaring an act of the legislature unconstitutional was “the gravest and most delicate task this Court can undertake.” It is easy to see why—in a democracy, where the People rule, overruling the People is serious business.  Yet this the Arkansas Supreme Court has done.

On Thursday, the court declared unconstitutional Initiated Act I, approved in 2008 by 57% of Arkansas voters, which provides that individuals who are unmarried, cohabiting sexual partners will not be allowed to adopt. In the tradition of Justice Holmes, the Court noted that “an act should be struck down only when there is clear incompatibility between the act and the constitution.”

So, how did they get there?  See if you can follow.

(1) The Arkansas Constitution contains no enumerated right to privacy. (2) However, it does contain a right to enjoyment of life and liberty and the pursuit of happiness, as well as the right to be secure in one’s own home. (3) Furthermore, “privacy” is mentioned in more than eighty Arkansas statutes (nevermind what those statutes say, specifically), which evidences a public policy of the General Assembly supporting a general right to privacy. (4) In light of (2) and (3), the Arkansas Constitution contains an implicit fundamental right to privacy, which protects “private, consensual, noncommercial acts of sexual intimacy between adults.”  This is true despite (1). (5) A law which burdens fundamental rights is subject to heightened judicial scrutiny, meaning it must advance a “compelling state interest” and be the “least restrictive method available” for carrying out that interest. (6) Act I burdens the right to privacy because it forces cohabiting couples to choose between cohabiting as sexual partners and adoption. (7) Therefore, pursuant to (5), Act I is subject to heightened scrutiny. (8) The Act is not the “least restrictive method available” for serving the state’s interest in promoting adoption into stable homes. (9) The Act is therefore unconstitutional as a violation of the right to privacy, though this right is not mentioned in the constitution (see (1)).

Here we have clarity of the sort that reminds me of the Arkansas River in April (for you out-of-staters, clear it ain’t). Yet on these nine steps rests the gravest of all tasks, in which a handful of people overrule the People. All of this is to say nothing of the merits of Initiated Act I as policy, but only that in a democracy, it is the People who make the policy judgments. Constitutional courts steps in, and step gingerly, only when the constitution as is, rather than as the court wishes it to be, demands that they do so.

Today, as in all court decisions, there are winners and losers. One of those was not a party to suit – Democracy, at the hands of the robed few, continued her losing streak in the Natural State.