Two hearings are scheduled in state and federal court today on separate lawsuits challenging the state’s constitutional ban on same-sex marriage and the state’s lack of recognition for those married legally in other states.
The Arkansas Supreme Court at 9 a.m. assembled to hear an appeal of Circuit Judge Chris Piazza’s ruling declaring the ban unconstitutional. You can go here to watch it on the web.
Chief Justice Jim Hannah is participating from out of state.
Federal judge Kristine Baker will hold a hearing on a suit challenging the ban on federal grounds at 1 p.m. today. We’ll be on hand there as well.
Colin Jorgensen, representing the attorney general’s office, said the court should defer to voters on the issue. He also said Amendment 83 prevails over conflicting expressions in the declaration of rights in the beginning of the Constitution. This drew sharp questions from Justices Donald Corbin and Paul Danielson on whether he was saying the expression of rights had been invalidated by the marriage ban amendment. Jorgensen said, no, only that it couldn’t be raised as an argument for marriage because of the subsequent adoption of the ban. He drew a distinction between Supreme Court cases that invalidated criminal punishment of homosexuality. In those cases, the state was doing something to people. It is not here, he argued. Though, of course, it is, by denying rights to people legally married in other states. Justice Karen Baker asked whether the Windsor decision by the U.S. Supreme Court had made it impossible for states to refuse recognition. Jorgensen said it did not. He said that applied to a federal law and he argued that the state was still free to impose its own rules on marriage. He said homosexuals were not a protected class for purposes of equal protection arguments.
Jason Owens, arguing for county clerks seeking to preserve the bans, said the ban doesn’t conflict with the declaration of rights. He also objected to comparing this case with the federal case that overturned state bans on interracial marriage. He said the fundamental right to marry is much narrower than a broad right for all. He noted laws against marriage by close relatives. He cited history and tradition. Interracial marriage was not banned at the origin of the Constitution, but later. The plaintiffs are trying, he said, to “change the pool” of who’s eligible to marry — a “long-held, deeply rooted tradition.” Justice Paul Danielson countered that traditional discrimination against women and slavery, both part of the original Constitution, were changed. Was Owens asking to ignore the right of liberty and equality when it comes to same-sex couples. No, he said, he just wants the court not to change the pool of who’s eligible without the people making the decision.
Justice Baker pressed Owens on the question of people married in other states. She noted that different states have different standards on relationships that prohibit marriage, yet those unions are still recognized in all states.
Jack Wagoner, one of the attorneys for the plaintiffs, agreed that change is coming. Since the suit was filed, there have been 50 cases, almost unanimously decided in the plaintiffs’ favor. One notable exception was the recent 6th U.S. Circuit Court’s 2-1 decision to preserve discrimination in four states. He invoked the image of Orval Faubus blocking school desegregation. He appealed to the court to be on the right side of history, which he said inevitably would decide in favor of marriage equality. There is no reasonable restriction in Arkansas, but an outright ban, which requires a high level of scrutiny by the court. Justice Courtney Goodson asked what the impact of a decision for the plaintiffs apply to statutes on bigamy and incest, should someone challenge them. He said there are rational reasons to differentiate those circumstances. Special Justice Robert McCorkindale, sitting in for the recused Justice Cliff Hoofman, asked Wagoner to talk about the differences in benefits available to some married couples but not others. Equal protection is an issue, Wagoner said. But he also said there’s no evidence that the ban on same-sex marriage produces any positive benefits for other marriages and families or that same-sex marriage harms children or families. The arguments that there’s a rational basis for the ban doesn’t hold up, he said.
Corbin asked about the state’s argument that the court can’t review a voter-approved measure. That’s not been the law since Marbury v. Madison in 1806, Wagoner said. “You can’t amend away my constitutional rights.”
Cheryl Maples, who filed the state case, quoted from Piazza’s decision that said a privacy issue was also at stake. Families — same-sex couples or heterosexual — are just that, families, she said, except when it comes to sexual relationships. She noted that Arkansas gives full faith and credit to first-cousin marriages, 13-year-old marriages and common law marriages from other states, but won’t recognize marriages between competent adults who love their spouses and children. She recounted two 80-year-old men who married in the brief period of legal marriages in Arkansas, crying because when one died, the other could control burial, a right not given to the unmarried partner. She urged the justices, her voice cracking, to be a champion for human rights as they had been in several earlier cases.
In the state’s rebuttal, Jorgensen said it does not dispute the court’s ability to review Amendment 83 under the U.S. Constitution. But he said it could not use the state Constitution to do it, even though he acknowledged under questioning that the rights are nearly identical. He argued for preserving the voters’ right to amend Constitution, presumably even to take away rights. The state has a legitimate interest in encouraging opposite sex couples to marry and have children. “What if I’m infertile,” Justice Corbin asked. Jorgensen said the definition of marriage obviously would always be “over-inclusive” or “under-inclusive.” In other words, so what if some LGBT people suffer?
From the questioning, I’d say Justices Corbin, Danielson and McCorkindale sounded favorable to the plaintiffs’ arguments. Justice Baker was focused, in a seemingly favorable way, on the question of denying equal treatment to people married in other states. Justice Goodson sounded as if she saw problems in a ruling for the plaintiffs and attempted to get the state to say the court shouldn’t consider scientific evidence in amicus briefs on behalf of plaintiffs. She also wanted more information from the state about its argument that the state has an interest in procreation and child welfare as supporting the ban. Hannah wasn’t heard from. Nor Justice Jo Hart.
The attorney general’s office delivered on Dustin McDaniel’s promise some time ago to right-wingers to defend the worst they had to offer, as he has done in this case, on abortion and more. It wasn’t a pretty thing to hear an agent of that office saying the people could vote away the Arkansas Constitution’s grant of fundamental rights.
From David Koon:
At a press conference afterward, Maples was asked about getting emotional. “It has become absolutely heart-breaking to watch these people being denied the rights I take for granted.” She said she was emotionally involved and on a crusade she wants to see through.
Wagoner said the Windsor decision showed “the time is here for this now.” He said two of the three rulings against the plaintiffs were from “foreign countries” — Puerto Rico and Louisiana. He said this country was known for protecting the rights of minorities. He said there was a misconception that a ruling for plaintiffs would affect churches. It would not, he said. Churches have a constitutional right to worship as they see fit. If they don’t want to marry gay people, they need not. He said the state had a harder job than plaintiffs today.
The courtroom was packed and an overflow room with TV was opened.
A decision in the case likely won’t come for several weeks.