Gay-marriage ban struck again

A federal judge in Arkansas on Tuesday declared the state's ban on same-sex marriages unconstitutional on two grounds, joining a growing chorus of recent court decisions on similar state bans across the country.

The 45-page ruling by U.S. District Judge Kristine Baker came as a surprise to the plaintiffs in a 2013 lawsuit challenging the constitutionality of Amendment 83 to the state constitution, which voters overwhelmingly approved in 2004.

"The last thing I was expecting was the federal court to rule before the state court," said the plaintiffs' attorney, Jack Wagoner of Little Rock.

Also Tuesday, a federal judge in Mississippi overturned that state's ban on same-sex marriage. Like Baker, U.S. District Judge Carlton Reeves put his ruling on hold so the state can appeal, The Associated Press reported. Attorneys for Mississippi have already said they will appeal to the 5th U.S. Circuit Court of Appeals to block Reeves' order striking down a 1997 law banning same-sex marriage and a 2004 constitutional amendment, approved by voters, defining marriage as being between a man and a woman, the AP reported.

On Thursday, both Baker and the Arkansas Supreme Court heard arguments regarding the constitutionality of the ban. In the morning, the high court heard oral arguments on the state's appeal of Pulaski County Circuit Judge Chris Piazza's May 9 ruling striking down the amendment as unconstitutional. In the four days after his ruling, before a stay was imposed, 580 same-sex couples rushed to tie the knot in select counties across the state that adhered to the ruling, while other county clerks responded with uncertainty or followed legal advice to wait for a clearer directive.

It is unclear when the Arkansas Supreme Court is expected to issue a written ruling on the appeal of Piazza's decision, but high court officials said Tuesday that Baker's ruling won't affect the justices' decision.

Wagoner said that if the state justices had issued their ruling first and upheld Piazza, a ruling from Baker might not have been necessary, especially if the justices' decision were to be based strictly on the state constitution and compelling state interests. But if the state high court had cited federal law in its findings, the case would still have been reviewable by a federal court, he said.

"I would still want her to rule so we could have a federal ruling also," Wagoner said.

At the same time, Wagoner said that even with a federal ruling in his favor on the Arkansas ban, he remains anxious about the state Supreme Court's ruling because "if they rule it violates the Arkansas Constitution, that's the end of it."

Aaron Sadler, a spokesman for Attorney General Dustin McDaniel, said Tuesday that attorneys in the office are reviewing Baker's decision.

"We appreciate Judge Baker's implementation of a stay in this matter in order to avoid confusion and uncertainty as this case goes through the appeals process," he said.

Baker's stay gives the state 30 days to file a notice of appeal with the 8th U.S. Circuit Court of Appeals in St. Louis.

Chad Griffin, president of the Human Rights Campaign, a civil-rights organization working toward gay, bisexual and transgender equality, praised Baker's decision in a news release. "I am proud to be an Arkansan by birth, but I'll be even prouder when this shameful stain on the state Constitution is erased once and for all. Thanks to today's historic ruling and the courageous plaintiffs and attorneys who made it possible, that day is closer than ever before."

Meanwhile, Jerry Cox of the Family Council, a conservative group based in Little Rock, issued a news release saying, "This is another example of judicial tyranny. Arkansans voted overwhelmingly to define marriage as the union of one man and one woman. Their elected officials voted for that definition when they passed Arkansas' Defense of Marriage Act," otherwise known as Amendment 83.

"By issuing this ruling, one federal judge is saying seventy-five percent of Arkansas voters and lawmakers do not matter," Cox said. "If that isn't tyranny, I don't know what is."

Addressing that concern in her ruling, Baker wrote, "This Court does not take lightly a request to declare that a state law is unconstitutional. Statutes are passed by the duly elected representatives of the people. It is not a whim that the Court supplants the will of the voters or the decisions of the legislature. Even so, these interests do not address any specific reasons for the marriage laws at issue; instead, they represent the type of generalized, post hoc, and litigation-reactive justifications that strict scrutiny disallows."

Wagoner and Little Rock attorney Cheryl Maples, as well as state Assistant Attorney General Nga Mahfouz, spent about two hours arguing their cases in Baker's court last week. The attorney general's office, which is responsible for upholding the state's constitutional amendments, contended that the will of the people of Arkansas was obvious in that the amendment was approved by 75 percent of voters. The office also argued that narrowly tailored, compelling state interests were at play that should prompt the federal court to step aside.

The federal case, which mirrors the state case in many ways, was filed a few weeks after the state challenge. It was originally filed on behalf of three gay couples -- four women and two men -- but the number of plaintiffs was later reduced to two lesbian couples when the complaint was amended on Jan. 17.

Wagoner said Tuesday, shortly after the opinion was filed, that other than seeing excited Facebook postings, he hadn't yet directly spoken to his clients, Rita and Pam Jernigan, a Little Rock couple of five years who were married in Iowa in December but whose marriage isn't officially recognized by Arkansas officials; and Becca and Tara Austin, both employees of the University of Arkansas for Medical Sciences who have been in a relationship for nine years and are raising 5-year-old twins, a boy and a girl.

Tara Austin is the twins' biological mother, and the couple maintains that because Becca isn't and cannot legally marry Tara in Arkansas, Arkansas law doesn't consider Becca a parent to the twins. The couple said that because they aren't married, Becca was denied family leave after the children's birth and couldn't carry Tara and the children on a family health insurance plan.

Wagoner said the state argued that Amendment 83 is subject only to a "rational-basis review," which means that a court would have to consider any rationale offered by the state in considering the fate of the amendment.

The plaintiffs, on the other hand, argued that because the amendment infringes on a federal constitutional right, it is subject to "strict scrutiny," which means the court must apply a different standard of law.

Baker agreed that the matter needed to be addressed under "strict scrutiny," and then, applying that standard, found that it violates federal laws protecting an individual's right to marry a person of choice, and gender-discrimination laws as well.

"What Judge Baker effectively did was erase Arkansas' definition of marriage," Cox of the Family Council said in his public statement. "It opens the door for marriage to become anything. We have already seen polygamists in Utah and elsewhere try to ride the coat tails of same-sex marriage activists in court. Rulings like this one only fuel those efforts."

The 8th Circuit so far has not heard an appeal in a same-sex marriage case from a district court in the seven states that constitute the circuit. However, appellate judges in the nation's 2nd, 4th, 7th and 10th circuits have found similar state bans unconstitutional, while the 6th Circuit recently ruled the other way, setting the stage for a U.S. Supreme Court determination.

Wagoner noted that two weeks ago, a district court in Missouri, which is also in the 8th Circuit, struck down a constitutional amendment in that state that is similar to Arkansas' Amendment 83. He said he doesn't know whether that case or the Arkansas case would be taken up first, assuming both states appeal, before three-judge panels of 8th Circuit judges.

Cox said, "This fight is far from over."

The state is challenging Piazza's ruling on the grounds that the amendment is part of the state constitution and, as such, cannot be declared unconstitutional. The plaintiffs, however, say that constitutional rights trump voter-approved measures, such as the amendment.

Baker heard arguments last week to consider the plaintiffs' motion for summary judgment -- a ruling based on purely legal arguments, without the need to present evidence in a trial. She also considered the state's motions to dismiss, including on the grounds that a federal court shouldn't interfere in ongoing state court proceedings about important state interests.

A section on 11/26/2014

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