6 sue, hit state ban of gay marriage

A lawsuit trying to overturn the ban on gay marriage in Arkansas was filed Monday in U.S. District Court at Little Rock by three same-sex couples from Pulaski County.

It comes after a suit filed earlier this month in Pulaski County Circuit Court that also challenged the constitutionality of Amendment 83 to the Arkansas Constitution and state laws pertaining to the the scope of marriage.

Voters approved a referendum on the amendment 753,770 to 251,914 in 2004.Legislation enacted in 1997 requires Title 9, the family-law part of the Arkansas Code, to define marriage as the union between a man and a woman and prohibits the issuance of a marriage license to applicants who do not fit that definition.

The law, found in Code 9-11-207 and 9-11-208, also prohibits the state from recognizing same-sex marriages legitimized in other states or countries.

Both lawsuits were filed after the U.S. Supreme Court last month struck down parts of the federal Defense of Marriage Act, effectively extending federal recognition of marriage to legally wed same-sex couples.

“It’s time,” said Gary Eddy-McCain, one of the six plaintiffs in Monday’s lawsuit and pastor and founder of the Open Door Community Church in Sherwood. “It’s past time.”

The latest lawsuit, which was assigned to U.S. District Judge Leon Holmes, says Amendment 83 and state law violate the right to equal protection and due process of law under the 14th Amendment to the U.S. Constitution. It seeks an injunction prohibiting any enforcement of the amendment and laws.

“Arkansas law denies plaintiffs and other same-sex couples the fundamental right to marry by denying them access to the state-recognized institution of marriage and refusing to recognize the marriages they entered into in other states,” the lawsuit states.

The lawsuit sets out three separate ways Amendment 83 and the pertinent state laws violate the 14th Amendment.They do so by:

Depriving some people of the “fundamental right” to marry.

Discriminating on the basis of sexual orientation.

Discriminating on the basis of gender.

The state court lawsuit filed July 2 focuses primarily on state issues. When Searcy attorney Cheryl Maples filed the lawsuit, she said it was based on the Arkansas Supreme Court’s ongoing interpretation of privacy rights, which have grown over the past 10 years to the extent that the Arkansas Constitution grants greater protections than its federal counterpart.

The state’s high court has been moving toward greater sexual-privacy protections for Arkansas residents on the basis of its 2002 Jegley v. Picado ruling that declared the state’s sodomy law unconstitutional, Maples said.

Barring same-sex marriage by constitutional amendment, done two years later, was a deliberate effort to target samesex couples, Maples claimed in her lawsuit. She said the high court has twice invoked that 2002 decision in striking down restrictions on adoptions determined to illegally focus on denying gay applicants.

Jack Wagoner, the Little Rock attorney who filed Monday’s lawsuit, believes the challenge to the 14th Amendment goes to the heart of the issue, on the basis of last month’s Supreme Court ruling.

In his lawsuit, he quotes from Supreme Court Justice Antonin Scalia’s dissent: “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples’ marital status.”

The June ruling should give the 8th U.S. Circuit Court of Appeals an opportunity to take a “fresh look” at the issue of same-sex marriage, Wagoner said. That court upheld a Nebraska law banning samesex marriage several years ago.

The defendants in the latest lawsuit include Gov. Mike Beebe and Attorney General Dustin McDaniel in their official capacities and Pulaski County Circuit Clerk Larry Crane, whose office refused to issue marriage licenses to two lesbian couples who are plaintiffs in the lawsuit, which identified them by the names Rita and Pam Jernigan and Becca and Terra Austin.

The Austins have been ina committed relationship for more than nine years and are the parents of twins, a boy and a girl who are 4 ½ years old, according to the lawsuit, which runs 18 pages. Only Tara Austin is the biological parent; Becca Austin isn’t considered a parent under Arkansas law.

That they can’t marry in Arkansas “harms them in other material ways, including reducing family resources and stigmatizing the Austins and their children by denying them family social recognition and respect,” according to the lawsuit.

For instance, Becca Austin, who is employed at the University of Arkansas for Medical Sciences, was denied family leave to spend time with her children because she and Tara Austin weren’t married and the children legally weren’t her dependents.

She also couldn’t carry Tara Austin and the children on her health insurance plan for the same reasons. As a result, according to the lawsuit, Tara Austin didn’t have the option she wanted of staying at home after the children were born because she needed health insurance for her and the children.

The other lesbian couple in the lawsuit is Rita Jernigan and her life partner, Pam Jernigan. Rita Jernigan is a retired teacher, receiving retirement benefits from the Arkansas Teachers Retirement System. If Rita Jernigan dies before Pam Jernigan, the latter wouldn’t be eligible under Amendment 83 to receive surviving spousal benefits from the system, the lawsuit states.

The third set of plaintiffs were identified by the names Randy and Gary Eddy-Mc-Cain. They married last year in New York, having been in a “committed relationship for [21] years,” according to the lawsuit. “Although [they] are legally married, they are treated as legal strangers in their home state of Arkansas.”

Jerry Cox, president of the Arkansas Family Council, which led the effort on behalf of Amendment 83, said “every citizen of Arkansas ought to be concerned they are trying to use the courts to redefine what a marriage is.

“I don’t believe the people of Arkansas want the courts to tell them what a marriage is or isn’t. The people already settled that when they voted on it.”

Like Maples, Wagoner said he is working on the lawsuit without charging the plaintiffs legal fees, though some arrangements are being made to pay for experts and other costs associated with the lawsuit.

“It’s the right thing to do,” he said.

Front Section, Pages 1 on 07/16/2013

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