Proponents of same-sex marriage and defenders of Arkansas’ constitutional ban on it are clashing once again in Pulaski County Circuit Court as the parties try to persuade Judge Chris Piazzato rule in their favor.
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As they did before, each side claims to be in the right. But as much as they differ on the question of whether the prohibition should be struck down, the parties do agree that the judge does not need to hold a trial to decide the issue.
Piazza turned down an opportunity in December to decide the question of whether the voter-approved prohibition should stand, agreeing to accept more legal pleadings ahead of an April 17 hearing on the question of who has the superior legal position.
An appeal to the Arkansas Supreme Court is expected, regardless of how Piazza rules.
The lawsuit pits 43 plaintiffs, including nine same sex couples who have been legally married in other jurisdictions, against the state Department of Health, state Department of Finance and Administration and the county clerks in seven counties - Conway, Faulkner, Lonoke, Pulaski, Saline, Washington and White - where gay couples have been refused marriage licenses.
The Department of Health was sued because it manages the state’s marriage records, while the Department of Finance and Administration was named because it oversees income-tax collection.
A key question for the judge to decide, according to the briefs filed on Wednesday - which included 414 pages of arguments and exhibits - is how to evaluate the law, a combination of the statute enacted in 1997 by the General Assembly and a state constitutional amendment approved by 75 percent of the voters in 2004. Arkansas not only bans same-sex marriage, but it prohibits the recognition of legal marriages conducted in other states and countries.
The same-sex marriage prohibition’s chief defenders, Assistant Attorney General Colin Jorgensen, who represents the state, and attorney David Hogue of Conway, who represents Faulkner County Clerk Melinda Reynolds, argue that all the judge needs to do to uphold the ban is to determine that there’s a good reason for it. The law is legal if “a reasonable person could conclude that these laws further a legitimate government objective under any reasonably conceivable fact situation,” according to the state brief.
One good reason is, according to the state filing, that Arkansas voters chose to ban gay marriage.
“The people of Arkansas acted as their own policymakers by enacting Amendment 83. [The amendment] reflects the considered judgment of the citizens of Arkansas, and plaintiffs cannot attack the policy of Amendment 83 though a lawsuit.”
Arkansas’ marriage laws encourage child-rearing in stable environments, the Reynolds brief states.
“By providing special recognition, encouragement, and support to committed man-woman relationships, the institution of marriage recognized by the Arkansas Constitution seeks to channel potentially procreative conduct into stable, enduring relationships, where that conduct is likely to further, rather than harm, society’s vital interests,” according to the filing.
“[Children], as the most innocent and voiceless in society, must depend on the State to protect those interests for them. The state, in turn, has its own compelling interest in the socialization of children. It, after all, depends on the next generation’s development for its “very existence and survival.”
The plaintiffs, represented by attorneys Cheryl Maples and Jack Wagoner, contend the laws that bar them from marrying are such an obvious intrusion on their constitutional rights - and a deliberate attack on an unpopular minority - that there’s no legal justification for the prohibition.
They say the judge has to presume the ban is unconstitutional and force the state to prove that it’s legitimate.
“Arkansas’ marriage laws are not designed to protect or further any compelling or even legitimate government interest,” their brief states. “Plaintiffs … seek to be treated as equal, respected and participating members of society who, like others, are able to marry the person of their choice. Arkansas’ marriage laws violate plaintiffs’ dignity and autonomy by denying persons in same-sex relationships the freedom that other Arkansas residents enjoy - the ability to marry the person with whom they have forged enduring bonds of love and commitment.”
The plaintiffs launched their challenge in June, less than a week after a U.S. Supreme Court ruling on the Defense of Marriage Act extended federal recognition to the legal marriages of same sex couples.
A challenge to the prohibition is also pending in Little Rock federal court. Wagoner is the attorney in that case as well.
Arkansas, Pages 9 on 02/28/2014