The state and the lawyer for the plaintiffs in the federal lawsuit that challenged the Arkansas ban on same-sex marriage disagree on how to wind up the case now that the U.S. Supreme Court has definitively ended bans on same-sex marriage.

The state of Arkansas, though Attorney General Leslie Rutledge, told the 8th Circuit Court of Appeals today that the state intended to comply with the U.S. Supreme Court ruling on same-sex marriage and that makes the federal case challenging the state marriage ban moot. Judge Kristine Baker’s ruling that the law was unconstitutional thus should be vacated and the lawsuit dismissed, the state said. 


The lawyer for the plaintiffs, Jack Wagoner of Little Rock, disagrees and said the Baker decision should be affirmed.

Baker ruled the ban unconstitutional Nov. 25, 2014. The state appealed. After the U.S. Supreme Court struck down marriage bans June 26, the 8th Circuit Court of Appeals, which had appeals pending from several states where judges had ruled similarly, for suggestions from lawyers on how the case should be completed.


The state, in a formal motion, noted that Judge Baker had said Arkansas marriage laws unconstitutionally restrict the fundamental right to marry and discriminate on the basis of gender, but she didn’t find for plaintiffs on some other points, such as family privacy interests. The state also said that the U.S. Supreme Court ruling in the Obergefell case didn’t precisely track Baker’s reasoning in striking down bans. Said the state:

However, Obergefell has determined the rights of Appellees, and controls over existing Arkansas laws concerning marriage and Arkansas’s recognition of marriages celebrated in other states.


The Arkansas Governor has stated publicly that Obergefell “requires the State of Arkansas to recognize same-sex marriage.” The Governor stated further: “[A]s Governor I recognize the responsibility of the State to follow the direction of the U.S. Supreme Court. As a result of this ruling, I will direct all state agencies to comply with the decision.” The Arkansas Attorney General has also stated publicly that Arkansas will comply with the Obergefell decision, and has advised Arkansas clerks to issue marriage licenses to same-sex couples: …  Of course, regardless of what Arkansas officials have said, the Court can take notice of the fact that the State of Arkansas and its officials, including Defendants-Appellants, are bound by Obergefell.

No case or controversy exists between the parties and, therefore, this case is moot. 

Wagoner, attorney for plaintiffs, said, however, that it was his view that the trial court decision should be affirmed, perhaps summarily.” He wrote:

It is plaintiff’s position that a dismissal of the appeal is not appropriate. Technically, the Supreme Court’s decision in Obergefell only affected the rights of the parties to that case directly. But, since this appeal presents the same issues as the Supreme Court faced in Obergefell, the results should be the same and the trial court’s decision with respect to the plaintiffs involved in this action should be affirmed based on the Obergefell decision.

I’m seeking further comment. For one thing, I don’t know if vacating the ruling and dismissing the case alters the strength of the plaintiffs’ intention to seek attorney fees from the state for successfully challenging an unconstitutional law.

RELATED: Despite the state’s declaration of intention for clerks to issue licenses, the Family Council, known by many as an anti-gay hate group, is distributing a memo by a conservative Christian legal organization on ways public officials can avoid participating in same-sex marriage if they have religious objections. These include appointing a deputy to do required duties. The memo argues that religion protection laws could prevent an official from being compelled to issue a license, particularly if others are readily available. They are clearly spoiling for a fight.