Arguments made, judge to rule in 2 weeks on gay-nuptials ban

Pulaski County Circuit Judge Chris Piazza said Thursday that he plans to issue a ruling in a lawsuit seeking to strike down Arkansas’ prohibitions on same-sex marriage within two weeks, but did not give away the direction in which he is leaning.

The judge’s pronouncement came at the conclusion of a three-hour hearing to allow both sides to present their final arguments in the 9½-month-old lawsuit, filed just days after a U.S. Supreme Court ruling resulted in federal recognition of married same-sex couples.

Arkansas’ ban on gay marriage is based on a combination of Amendment 83 to the state constitution, passed by popular vote in 2004, and statutory law that dates back 17 years.

Piazza heard some of the arguments in a December hearing but declined to make a decision then, allowing the sides more time to refine their arguments.

He complimented the efforts of the attorneys at the close of Thursday’s proceeding. The judge said he’s read all of their briefs and the court cases they’ve cited,but he needs just a bit more study before he can make his decision.

“I’ve already got an idea of where I’m going, but I’m still drifting,” Piazza said.

Piazza said that whatever his ruling is, it will be appealed to the Arkansas Supreme Court, which has the final say on state law. A final resolution of the issue will likely require the intervention of the U.S. Supreme Court, he said.

The plaintiffs argue that the Arkansas ban violates both the state and federal constitutions. But despite Amendment 83’s passage with 74 percent of the vote, the plaintiffs’ lawyers told the judge, there’s no legal requirement for giving a law’s popularity at the ballot box any extra weight.

“The courts say you can’t vote away people’s rights,” plaintiff lawyer Jack Wagoner told the judge. “They are rights we never gave up to the government. [Same-sex marriage opponents] can’t take that away from us by getting the voters to go to the polls and voting them out from under us. A majority-rule country is not a free country.”

The issue that appeared to interest Piazza the most is the question of whether Amendment 83 can be considered to contradict older provisions of the Arkansas Constitution found in the Declaration of Rights, as the plaintiffs argue.

State lawyers contend that the constitution can’t be read that way. The courts require judges to interpret newer amendments as modifying their predecessors, Assistant Attorney General Colin Jorgensen countered on behalf of the defendants, saying the case law on that issue goes back more than 100 years. The plaintiffs can’t win if they are relying on state law to carry the case, he told the judge.

“It is a simple matter of firm law that a constitutional provision cannot violate an earlier provision of the constitution,” Jorgensen said. “A constitutional provision can’t contradict itself. This case needs to be settled on federal law.”

Arkansas residents can write whatever they want to into the state constitution and make it law as long as it doesn’t contradict the federal Constitution, the supreme law of the land, Jorgensen said.

That assertion prompted the judge to ask whether voters could adopt a miscegenation amendment to bar interracial marriages. Jorgensen said they could, although it would only last until a federal lawsuit challenged the amendment, since the U.S. Supreme Court found that sort of law was unconstitutional in 1967.

One argument Piazza has to resolve is how much importance he should attach to rulings from other courts. Same-sex couples have won in court at every turn since the federal Defense of Marriage Act ruling, Wagoner told the judge, with a slide show that touched on each of the 18 cases from 14 jurisdictions across the country.

“They’ve rejected every single argument the defendants are making in this case. Every. Single. One,” Wagoner said. “I love coming to court when the facts are on my side.”

But none of those rulings is binding on Arkansas’ courts, Jorgensen countered. He said if Piazza is looking for direction from other courts, the most relevant is the 8th U.S. Circuit Court of Appeals, the federal district that includes Arkansas, and that court ruled against the same-sex marriage issue in 2006 in a Nebraska case, Citizens for Equal Protection Inc. v Bruning. That case also involved a voter-passed amendment banning same sex marriage that was contested in the courts.

Jorgensen argued that the plaintiffs are making too much of the Defense of Marriage Act case because they’ve failed to consider what the high court has done since then; it’s stayed lower-court rulings in victorious same sex cases every time it’s been asked to since then.

That kind of stay is considered to be a significant indication that the U.S. Supreme Court will overturn those rulings, Jorgensen told the judge, while acknowledging it’s not a definitive signal about what the court will do.

Also to be decided by the judge is what kind of legal test to subject the same-sex marriage ban to.

The state lawyers that argue the prohibition should be put to the lowest level challenge, the rational-basis test, meaning all that the state needs to show the judge to win is that there’s a good reason - any good reason a voter can think of - for the law to exist.

One reason that’s been suggested during the course of the litigation is the encouragement of procreation since only heterosexual couples can naturally produce children.

But the plaintiffs cite a long history of discrimination and prejudice against homosexuals and contend the marriage ban should be held to the highest standard, known as strict scrutiny.

To impose that level of review, Piazza must believe that the plaintiffs are being subjected to the loss of a fundamental right. Then he has to balance the goal of the government in restricting that right against the way it’s carrying out that restriction, then decide whether the government could accomplish its goals in some manner that’s less restrictive on the plaintiffs.

Plaintiff attorney Cheryl Maples told the judge that he should apply that most stringent standard to the marriage ban because there’s no good reason for it, only malicious intent.

“They want to have children. They want to have a family. They want what all other Arkansans want,” she said. “But this law was passed to harm them. There is no justifiable reason this law should be in place other than animus.”

Arkansas law allows for the recognition of otherwise illegal unions - incestuous marriages and child marriages - if they are performed in other states, but same-sex couples don’t even get that courtesy because it is specifically barred by law, she said.

“How [anyone] can deny them the same rights, I don’t know,” she told the judge.

Maples told the judge that she initiated the suit on behalf of her daughter, who is gay but not a plaintiff.

“When she wants to form a long-lasting relationship with the person she loves, I want her to have that right,” she said.

Maples’ emotional plea to the judge sparked applause from the audience. The lawsuit has 43 plaintiffs, including 21 couples, nine of them legally married in other jurisdictions, and the court gallery was filled near to bursting Thursday.

The plaintiffs are M. Kendall Wright and Julia Wright of White County; Rhonda L. Eddy and Treba L. Leath of Lonoke County; Carol Owens and Ranee J. Harp of Pulaski County; Natalie Wartick and Tommie J. Wartick of Saline County; Kimberly M. Kidwell and Kathryn E. Short of Pulaski County; James Boone and Wesley Givens of Conway County; Kimberly M. Robinson and Felicity L. Robinson of Lonoke County; Linda L. Meyers and Angela K. Shelby of Faulkner County; Gregory A. Bruce and William D. Smith Jr. of Pulaski County; Monica L. Loyd and Jennifer L. Lochridge of Faulkner County; Jennifer D. Moore and Mandy A. Lyles of Lonoke County; Jonathan K. Gober and Mark R. Norwine of Pulaski County; Angela Alsbury and Amber Gardner-Alsbury of Washington County; Angela Spears Gullette and Livicie C. Gullette of Lonoke County;Shannon Havens and Rachel Whittenburg; Cody Renegar and Thomas Staed of Washington County; Katherine Henson and Angelia Buford of Pulaski County; Christopher H. Horton and Michael E. Potts of Saline County; John Schenck and Robert Loyd of Faulkner County; William A. King and John McClay Rankine of Carroll County; Randy and Gary Eddy-McCain of Pulaski County; and Arica Navarro of Union County.

The defendants are Dr. Nathaniel Smith in his role as interim director of the Arkansas Department of Health, and Richard Weiss as director of the Department of Finance and Administration. The other defendants are six county clerks who have refused to issue Arkansas marriage licenses to some plaintiffs, Larry Crane of Pulaski County, Cheryl Evans of White County, William “Larry” Clarke of Lonoke County, Debbie Hartman of Conway County, Doug Curtis of Saline County and Becky Lewallen of Washington County.

Front Section, Pages 1 on 04/18/2014

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