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Friday, August 23, 2013

Marriage lawsuit drops governor, attorney general as defendants

Posted By on Fri, Aug 23, 2013 at 11:00 AM

click to enlarge OUT AS DEFENDANT: Marriage equality foe Beebe no longer in suit.
  • OUT AS DEFENDANT: Marriage equality foe Beebe no longer in suit.
The lawsuit filed by Searcy lawyer Cheryl Maples on behalf of a number of gay and lesbian couples seeking to strike down Arkansas bans on same-sex marriage has been amended to drop the governor and attorney general as defendants.

Jack Wagoner, a Little Rock lawyer who also has filed a separate suit for dfiferent plaintiffs in federal court, has joined Maples as co-counsel in the state case.

Here's the latest filing. It states no reason for dropping the state officers as defendants. It retains the director of the state Health Department, which maintains records such as birth and death certificates that are pertinent to discrimination claims, and several county clerks, who issue marriage licenses.

The attorney general's office will still have the responsibility of defending the state agency. Counties will have to supply their own legal defense on the charge that clerks are unconstitutionally refusing to issue licenses to same-sex couples. Removal of Gov. Mike Beebe removes a state defendant who's stated repeatedly his personal opposition to same-sex marriage. Attorney General Dustin McDaniel has long been viewed as friendly to the equal rights cause. He was among the politicians who spoke out publicly against the initiated act to prevent gay couples from adopting and fostering children. That law was struck down in court.

Wagoner said, "We do not need the governor and AG in the case to get the issues before the Arkansas Supreme Court. They say they are not proper parties. We think they are. But we don't need them. So why fight about it?"

He said his federal lawsuit will continue.

The immediate issue in the state case is a request for a restraining order to prevent the state from enforcing what plaintiffs believe are discriminatory policies against couples legally married in other states — the so-called full faith and credit argument. There are parents, for example, who are denied the right to both be listed as parents on a child's birth certificate and couples who are prevented from enjoying employment benefits that other legally married couples enjoy in Arkansas. The recent U.S. Supreme Court ruling in the Windsor case is widely viewed as giving such plaintiffs strong cases even in Arkansas, which has both statutory and constitutional bars to marriage equality.

Here's one other highly ironic example: Any legally married couple in Arkansas can file with the county clerk to convert their marriage to a covenant marriage, as Mike and Janet Huckabee did some years ago. But under existing law, a county clerk is prohibited from allowing a couple married legally in, say, Massachusetts from converting to covenant marriage status in Arkansas. That is discriminatory on its face under the full-faith-and-credit approach that has always governed how Arkansas viewed legal marriages from other states. Wouldn't it be lovely if Huckabee's covenant marriage law provided a basis for striking down discrimination against gay people?

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