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Thursday, December 12, 2013

Lawsuit seeking to end Arkansas ban on same-sex marriage in court today

Posted By and on Thu, Dec 12, 2013 at 1:54 PM

click to enlarge LOOKING FOR RECOGNITION AT HOME: Plaintiffs Andra Alsbury and Amber Gardner-Alsbury, at their marriage in Massachusetts.
  • LOOKING FOR RECOGNITION AT HOME: Plaintiffs Andra Alsbury and Amber Gardner-Alsbury, at their marriage in Massachusetts.

It's an important day for efforts to end the ban on same-sex marriage in Arkansas. A lawsuit filed in Pulaski County Circuit Court by  Searcy lawyer Cheryl Maples on behalf of a number of gay and lesbian couples seeking to strike down Arkansas's ban on same-sex marriage is before Judge Chris Piazza this afternoon. 

Maples and co-counsel Jack Wagoner, of Little Rock, are arguing for the plaintiffs*. Today, he's asking Piazza to grant plaintiffs' request for preliminary injunctive relief to require the state to immediately recognize the marriage of plaintiffs who were married in state's that allow same-sex marriage. Meanwhile, the defendants, who include a number of area county clerks and the head of the state Health Department, are arguing that the case be dismissed.

David Koon is in the hearing and will be providing an update.

Max's has boiled down the suit in an earlier post:

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?

UPDATE: Koon sends along an update during a break in the hearing:

The first two attorneys arguing against Wagoner just wrapped up, both making arguments that marriage is an issue reserved to the state. Attorneys argued that if decisions about the constitutionality of laws in other states are allowed to determine Arkansas law, then state sovereignty would be undermined, which would lead to any one state basically being about to write law for the nation. Whether it's noteworthy or not remains to be seen, but of the handful of times Piazza interrupted to make comments from the bench, he twice — once when discussing the antiquated ways paternity was determined, and another time when discussing the Dred Scott decision — wrapped up his anecdotes in the same way, saying: "Things change."

UPDATE II: Arguments wrapped up just after 4 p.m., and the decision now rests with Piazza.

Wagoner made his rebuttal to the arguments of Faulkner County attorney David Hogue and deputy attorney general Colin Jorgensen after a short break, with Wagoner starting by saying that attorneys for the state have become "wrapped up" in the idea that it's better for children to be raised in a man/woman marriage. Using a Powerpoint presentation, he presented a quote from a brief filed before the Supreme Court by the America Psychological Association and supported by a host of large medical and psychiatric associations, in which the APA stated their belief that children raised in same-sex households are just as healthy psychologically as those raised in heterosexual households. That quote kicked off over an hour of impassioned argument by Wagoner, all revolving around the idea that the right for heterosexuals to marry is a matter of liberty and due process, with Wagoner saying "Marriage is a liberty issue," and citing previous federal and state court rulings that affirmed the right to marriage — including the rights of interracial couples and convicts to marry. 

Wagoner said that Arkansas's Amendment 83, which defines a marriage as between a man an a woman (and which passed with 74% of the vote) isn't constitutional under either the state or federal constitutions. In the case of the state constitution, Wagoner pointed to Article 2, which lays out many of the same rights found in the Bill of Rights of the U.S. Constitution, with the Arkansas state constitution saying those rights are inviolate and can't be altered. That includes, Wagoner contends, alteration by an Amendment to the state constitution. Constitutional rights, Wagoner later said, are there to help protect the minority by guaranteeing the same rights to all. Of the right to marriage, Wagoner went on to say,  "74 percent of people voting in an Arkansas election can't take it from you." 

Attorneys for the state had previously argued that the state has an interest in steering heterosexual couples into marriage because it can result in procreation and is the "most perfect union" under which to have a child. Wagoner said of that argument, "I find it offensive," saying that the parents of adopted children in the state would "shed a tear over that." He went on to talk about his own family, and how he and his wife sought the help of an egg donor and fertility treatments in order to bear his twin girls.

Wagoner said that the state ban on gay marriage interferes with the right to travel, because while heterosexual couples are often married out of state and come back to see their marriages recognized by Arkansas, homosexual couples legally married in other states have their marriages "go away" the moment they come home.

Searcy Attorney Cheryl Maples, speaking from a wheelchair, said that beginning Jan. 1, her clients will be forced to lie by filing their federal income taxes as "single" instead of "married." She noted that there are marriages which are banned in Arkansas — such as the prohibition against marrying a cousin — which are still recognized if they are performed in states where there is no such prohibition. If two first-cousins from Arkansas wanted to go to Virginia, she noted, they could come back to Arkansas and be considered legally wed, even though Arkansas law forbids it. Allowing such acceptance for other groups but not for gay couples, Maples said, is a clear violation of the state constitution and the federal constitution. 

After the attorneys were done, Piazza commended them all on the excellent briefs they'd filed in the case. He closed by saying that normally, by the time he enters the courtroom on a summary judgement case, he has "a pretty good idea" of the way he'll go, having read the briefs. In this case, however, Piazza said that he'll have to think about it, adding, "I'm still floating on the creek." He said he would inform the attorneys of his decision, but set no time table for his rulings. 

*A previous version of this post incorrectly said that Maples would not attend the hearing because of illness.  

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