Monday, July 15, 2013

Federal lawsuit challenges Arkansas same-sex marriage ban

Posted By on Mon, Jul 15, 2013 at 2:20 PM

AT THE COURTHOUSE: Plaintiffs in new lawsuit over same-sex marriage. From left,
  • Brian Chilson
  • AT THE COURTHOUSE: Plaintiffs in new lawsuit over same-sex marriage. From left, Rita and Pam Jernigan and Becca and Tara Austin. Photo taken last week when they tried and failed to get marriage licenses.

A second lawsuit was filed today — this one in federal court — challenging the state's constitutional and statutory bans on same-sex marriage. A state court lawsuit was filed last week by a different lawyer with different plaintiffs.

Today's lawsuit was filed by Jack Wagoner, a Little Rock lawyer, on behalf of two female Little Rock couples who were denied marriage licenses when they applied for them last week at the office of Pulaski County Clerk Larry Crane. A male couple, already married, are also plaintiffs. The suit may be amended to add additional plaintiffs. The case was assigned to Judge Leon Holmes.

The suit names Crane, Gov. Mike Beebe and Attorney General Dustin McDaniel. Beebe has long said he doesn't favor marriage between people of the same sex. McDaniel has been noticeably friendlier to the interests of gay people, including personal opposition to the state initiated act — later ruled unconstitutional — that prevented adoption and foster parenting by gay couples. His office responded to my question about the suit:

We are reviewing the lawsuit and analyzing the propriety of the Attorney General as a party. We do not have any additional comment at this time.

I wrote earlier about Wagoner's interest in filing such a case on a pro bono basis.

The lawsuit says the Arkansas law and constitution violate the equal rights and due process provisions of the U.S. Constitution and asks that the state be enjoined from enforcement. It harkens back to another great civil rights issue. Lawsuits ended the enforcement of racially discriminatory language in Arkansas law that nonetheless remained on the books for decades after.

The lawsuit said plaintiffs Becca and Tara Austin and Rita and Pam Jernigan have long-term partnerships and want to marry because of their love and commitment to each other, but also to provide the security that only legal marriage can provide. Becca and Tara have twin children. Tara is the biological mother. Becca is not considered a parent under Arkansas law, so is unable to have time off for family leave and is unable to include the children on her employer's health insurance, among other obstacles to full parenthood. Rita Jernigan notes that, as a retired teacher, she is unable to treat Pam as other married retirees would and have her receive spouse benefits from the retirement system. That will be so even after Pam and Rita marry this fall as planned.

Randy and Garry Eddy-McCain, the other plaintiffs were married in New York, but treated as "strangers" under Arkansas law, the suit says.

Wagoner wrote of all plaintiffs:

The situations faced by these couples are similar to those faced by thousands of same-sex coules in the state of Arkansa who are being denied the basic rights that are afforded by marriage. They have cared for one another, supported each other, sacrificed for each other and made plans for the future with each other. They have gone through hardships, illness, joy and success during the course of their relationships. As with other couples that have made a lifetime commitment to each other the plaintiff couples are spouses in every sense, except that Arkansas law says they cannot marry and, even if they are legally married under the laws of another state, Arkansas law says that their marriates are not honored here.

Here's the lawsuit.

Wagoner's suit relies heavily on Justice Anthony Kennedy's opinion in the ruling striking down a portion of the federal Defense of Marriage Act. His opinion said that the law "demeans the couple, whose moral and sexual choices the Constitution protects." In dissent, Justice Antonin Scalia predicted that such language was a road map to direct challenges of same-sex marriage bans, a decision the court avoided on jurisdictional grounds in allowing invalidation of a marriage ban in California.

Some groups that have been in the forefront of gay rights have begun challenges in other states, but have purposely held back on states, such as Arkansas, that are in judicial circuits where past precedents suggest an uphill legal climb. As I noted earlier, the 8th U.S. Circuit rejected a challenge of the Nebraska same-sex marriage ban in 2006, but it had no Supreme Court, 9th Circuit or other lower federal and state court decisions on which to draw guidance, not to mention legalization of marriage in 13 states, with more on the way.

The lawsuit addresses some of the arguments used by proponents of the ban when it was adopted. It challenges the notion that somehow crime rates would be different among families headed by same-sex couples and says there's no evidence that same-sex marriage does harm to "traditional" marriage of a man and woman. Amendment 83 was merely a ruse to harm an unpopular group, Wagoner argues. He cited expert testimony developed in other cases that blew up the notion that some harm came with allowing people of the same sex to marry. In states where it has become legal, no ill effects have been observed, he said.

I asked Wagoner why he filed a separate suit, with one already pending in state court. He said that the earlier suit relies heavily on the equal rights portion of the Arkansas Constitution, which might have been rendered moot as to marriage by Amendment 83. He said that issue won't arise in a direct challenge under the U.S. Constitution, by which the case on DOMA was decided.

"That is the direct route and the real meat of this issue - whether discrimination against same-sex couples is permissible under the federal Constitution. Windsor [the DOMA case] arguably means that it is not."

Tags: , , , , , , , , , ,

From the ArkTimes store

Favorite

Speaking of...

Comments (7)

Showing 1-7 of 7

Add a comment

 
Subscribe to this thread:
Showing 1-7 of 7

Add a comment

More by Max Brantley

  • Executionpalooza

    Appearances count. I was struck by a single sentence over the weekend in a full page of coverage in The New York Times devoted to the killing spree in Arkansas, beginning with a front-page account of the recent flurry of legal filings on pending executions and continuing inside with an interview with Damien Echols, the former death row inmate.
    • Apr 20, 2017
  • Death Row inmates argue to keep stay of execution in place; urge 8th Circuit not to 'rush' analysis

    Early this morning, attorneys for nine Death Row inmates, filed an argument with the 8th United States Court of Appeals contesting the state's effort to override Judge Kristine Baker's order Saturday that halted executions scheduled this month.
    • Apr 17, 2017
  • Federal judge denies execution stay for Don Davis but larger stay continues

    Don Davis, who's been moved to the killing facility of the state prison for killing tonight at 7 p.m. if a stay of execution is lifted in another federal suit, sought a stay in another federal court Sunday, but the request was denied.
    • Apr 17, 2017
  • More »

Readers also liked…

  • FOI lawsuit filed for State Police firing records on ABC enforcement boss Boyce Hamlet

    Russell Racop has filed, as promised, his lawsuit over the State Police's refusal — under guidance from Attorney General Leslie Rutledge — to release records that provide information that led to the firing of current Alcoholic Beverage Control Enforcement Director Boyce Hamlet as a state trooper.
    • Sep 9, 2015
  • The inspiring Hillary Clinton

    Hillary Clinton's campaign for president illustrates again the double standard applied to women. Some writers get it. They even find the supposedly unlikable Clinton inspiring.
    • Oct 16, 2016
  • From Dallas, creative thinking about the Interstate 30 project

    An urban planner in Dallas says freeways are not always the answer. Incorporating some creativity already being used in Dallas and looking at the Interstate 30 project from a broader perspective, here are ideas that Arkansas highway planners have not considered. But should.
    • Nov 6, 2015

Most Shared

  • Judge Griffen writes about morality, Christian values and executions

    Pulaski County Circuit Judge Wendell Griffen, who blogs at Justice is a verb!, sends along a new post this morning.
  • The Ledell Lee execution thread

    Arkansas Times contributor Jacob Rosenberg is at the Cummins Unit in Grady filing dispatches tonight in advance of the expected execution of Ledell Lee, who was sentenced to death for the Feb. 9, 1993, murder of Debra Reese, 26, who was beaten to death in the bedroom of her home in Jacksonville.

Visit Arkansas

Haralson, Smith named to Arkansas Tourism Hall of Fame

Haralson, Smith named to Arkansas Tourism Hall of Fame

Chuck Haralson and Ken Smith were inducted into the Arkansas Tourism Hall of Fame during the 43rd annual Governor’s Conference on Tourism

Most Viewed

  • The Jack Jones, Marcel Williams execution thread

    The Arkansas Department of Correction is planning for the first double execution in the U.S. in 16 years tonight. Jack Jones, 52,  and Marcell Williams, 46, are scheduled to die by lethal injection. They would be the second and third prisoners put to death as part of a hurried schedule Governor Hutchinson set in advance of the state's supply of one of the three drugs used in the execution protocol expiring on April 30.
  • Lee's lawyer writes about executed man's last hours

    Lee Short, the lawyer for Ledell Lee, the man Arkansas put to death just before midnight last night, posted on Facebook the following letter of thanks for personal support and a bit about Lee's last hours, distributing his possessions and talking to family.
  • Legislature set to tackle changes to "Arkansas Works" Medicaid expansion in special session

    The governor is expected to call the special session to get legislative approval of his proposed alterations to the private option (now known as "Arkansas Works"). Here's what to look for.
  • Supreme Court hears arguments in case that led to stays for two Arkansas death row inmates

    The U.S. Supreme Court heard oral arguments in an appeal yesterday that asks the court to rule that indigent criminal defendants are entitled to an independent expert witness. The case, McWilliams v. Dunn, goes back to the 1984 capital murder conviction of James McWilliams, who raped and murdered a woman in Tuscaloosa, Ala., during a robbery. But the high court's decision will also directly affect the fates of Don Davis and Bruce Ward, Arkansas death row prisoners who were slated to die this month, but given a reprieve by the Arkansas Supreme Court, which issued a stay in each execution, pending the U.S. Supreme Court's decision in McWilliams in June.

Most Recent Comments

Blogroll

Slideshows

 

© 2017 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation