Traveling yesterday, I missed the 8th Circuit U.S. Court of Appeal’s conclusion of the state’s appeal of the ruling by federal Judge Kristine Baker striking down the Arkansas ban on same sex marriage.

The state wanted the case reversed and dismissed in light of June’s U.S. Supreme Court ruling invalidating such bans because it has said it would comply with the law as now interpreted. The plaintiffs wanted the judgment affirmed because many specific areas of law remain unsettled in Arkansas — among them, birth certificates of children of same-sex couples.


The appeals court sided with plaintiffs. They can now go to the local judge for injunctive relief if the state proves a bad actor under the Constitution.

Jack Wagoner, the attorney for the plaintiffs, notes rightly that the Arkansas Supreme Court should also have affirmed its separate state case. Instead, it dismissed the case without comment as moot, a political move that removed it from their responsibility.


Here’s the opinion from the 8th Circuit:

The court explained, in part:


Arkansas suggests that Obergefell moots this case. But the Supreme Court specifically stated that “the State laws challenged by Petitioners in these cases are now held invalid.” Id. at 2605 (emphasis added). Cf. United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 477-78 (1995) (limiting relief to the parties before the Court and noting “we neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants”). The Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee — not Arkansas.

Arkansas’s general assurances of compliance with Obergefell also do not moot the case. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (“[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”). These assurances may, however, impact the necessity of continued injunctive relief. The district court is better positioned to consider the issue on appropriate motion. See United States v. Bailey, 571 F.3d 791, 804 (8th Cir. 2009) (noting this court reviews permanent injunctions for abuse of discretion, reversing when the injunction is based on “a legal error or a clearly erroneous finding of fact”).

The judgment is affirmed. Arkansas’s motion to vacate the district court’s order is denied.