Outside the Beltway

Arkansas Judge Strikes Down Same-Sex Marriage Ban

Another victory for marriage equality.

Doug Mataconis · Saturday, May 10, 2014 · 4 comments

An Arkansas state trial court judge has struck down the state’s decade old ban on same-sex marriage:

A county judge in Arkansas struck down his state’s constitutional bans on gay marriage, saying in a uling Friday night that they did not advance “any conceivable legitimate state interest.”

In finding the ban unconstitutional, Pulaski County Circuit Judge Christopher Piazza cited the series of federal court rulings, including those in Utah and Virginia, that have been issued since the U.S. Supreme Court struck down portions of the federal Defense of Marriage Act. That landmark ruling has led to a spate of lawsuits in about a dozen states seeking to topple bans on same-sex marriage.

“Same-sex couples are a morally disliked minority and the constitutional amendment to ban same-sex marriages is driven by animus rather than a rational basis,” Piazza wrote. “This violates the United States Constitution.”

The judge did not issue a stay, meaning same-sex marriages could begin as soon as county clerks next open their doors.  However, Arkansas Atty. Gen. Dustin McDaniel plans to ask for a stay and immediately appeal to the Arkansas Supreme Court, which has initial jurisdiction on all county circuit appeals.

(…)

Piazza’s ruling stems from a lawsuit filed by 12 same-sex couples who sought to wed in Arkansas and eight same-sex couples who had legally married in other states. They had been barred from either receiving marriage licenses or having their marriages recognized because of a 1997 law approved by lawmakers and a 2004 voter-approved amendment to the state constitution.

Piazza said the measures illegally “narrowed the definition of equality.”

“The exclusion of a minority for no rational reason is a dangerous precedent,” he wrote.

McDaniel defended the measures, though he said last week that he does not personally support them.

The state had argued that the Arkansas had a right to ban same-sex marriage in the name of protecting children, preserving tradition and favoring the ability to procreate.

But Piazza found none of those to be legitimate because no law requires opposite-sex couples to have children or precludes same-sex couples from taking care of them.

Lyle Denniston summarizes the opinion:

When Arkansas voters went to the polls in November 2004 to consider state constitutional Amendment 83, they approved it by a margin of seventy-five to twenty-five percent.  That vote, Judge Piazza wrote, was “an unconstitutional attempt to narrow the definition of equality.  The exclusion of a minority for no rational reason is a dangerous precedent.”

The judge likened the denial of equality to homosexuals to the denial of equality to racial minorities, and summoned up for comparison the Supreme Court’s discredited ruling in theDred Scott case in 1857 saying that black people “had no rights or privileges but such as those who held the power and the government might choose to grant them.”

He also relied upon the Supreme Court’s 1967 decision in Loving v. Virginia, striking down Virginia’s ban on interracial marriages.  He closed his opinion with these remarks about the woman involved in that case:  ”It has been over forty years since Mildred Loving was given the right to marry the person of her choice.  The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples.  It is time to let that beacon of freedom shine brighter on all our brothers and sisters.  We will be stronger for it.”

It was not entirely clear just what standard Judge Piazza had used in nullifying Amendment 83.  At one point in his opinion, he said that homosexuals were a minority that had been traditionally the targets of discrimination, so laws treating them less favorably had to be judged by “heightened scrutiny.”  However, much of his opinion was focused on his finding that the state ban could not pass even the least demanding constitutional test, “rational basis.”

While much of the opinion focused on equality under the federal Constitution, the judge also cited a guarantee of equality in the Arkansas constitution.   In the end, he wrote simply that the ban “is unconstitutional.”

In one facet of the opinion, Judge Piazza refused to follow the lead of the U.S. Court of Appeals for the Eighth Circuit — the federal appeals court that includes Arkansas in its geographic region.  In a 2006 decision, the Eighth Circuit had upheld a state ban (in Nebraska) on same-sex marriage.  That ruling, the judge said, predated the Supreme Court’s ruling last June in United States v. Windsor, finding unconstitutional a key part of the federal Defense of Marriage Act.

As other judges have done in voiding state bans, the Arkansas jurist relied on much of the language of the Windsor decision discussing hostility to same-sex marriages.  That case did not involve a state ban, however; it dealt only with federal treatment of already-married same-sex couples.

Judge Piazza’s decision joins dozens of others that have been issued in the 11 months since the Supreme Court handed down its decision in Windsor, af which have (so far) resulted in the law before the Court being struck down, typically on what are becoming rather common grounds among the cases. In each of these cases, the states defending the laws have made essentially the same arguments in an effort to defend the law that Arkansas did in this case, and in each of those cases those arguments have been rejected. There’s the argument from tradition, the argument that state laws limiting marriage to one and and one woman, or the argument that the law does not discriminate against anyone because gays and lesbians are as free to get married as straight people, to another straight person. All of them have been soundly rejected by courts so many times at this point, that it’s almost hard to conceive of a rational legal argument in favor of a same-sex marriage ban, something that becomes quite evident when even a state court trial judge is striking the law down.

Like those other cases, of course, this case will be appealed, although the procedure will be different from the cases that have been filed in Federal Court. Instead of a Federal Court of Appeals, this case will next go to the Arkansas Supreme Court, where it faces an uncertain fate. From there, the next step on the appeal process would be the U.S. Supreme Court, where it would likely join a number of Federal Court cases that are well along that track. Given this, it seems nearly inevitable that the Court will be considering at least one, and probably several, requests for appeal in same-sex marriage cases. It seems unlikely that they’ll be able to avoid hearing all of them.

Here’s the opinion:

M Kendall Wright v. Arkansas by Doug Mataconis