Friday, May 9, 2014

Judge Chris Piazza invalidates Arkansas's same-sex marriage ban

Posted By on Fri, May 9, 2014 at 6:48 PM

HAPPY COUPLE: Robert Loyd and John Schenck are one of the married couples who were plaintiffs in the successful lawsuit. They married in Canada, but want to marry in Arkansas for their children. - BRIAN CHILSON
  • Brian Chilson
  • HAPPY COUPLE: Robert Loyd and John Schenck are one of the married couples who were plaintiffs in the successful lawsuit. They married in Canada, but want to marry in Arkansas for their children.

JUDGE CHRIS PIAZZA
  • JUDGE CHRIS PIAZZA
Circuit Judge Chris Piazza today invalidated the Arkansas ban on same-sex marriage and recognition of marriages legally entered by same-sex couples in other states.

An appeal is expected. The judge did not stay his ruling, though the state probably can be expected to request a stay. Reaction was quick, with Republican politicians first out of the box to decry the ruling. 

UPDATE: From Attorney General Dustin McDaniel's spokesman:

We respect the Court’s decision, but, in keeping with the Attorney General’s obligation to defend the state constitution, we will appeal. We will request that Judge Piazza issue a stay of his ruling so as not to create confusion or uncertainty about the law while the Supreme Court considers the matter.

The order came after county clerks offices closed for the week. But they can expect a flood of applicants Monday morning. Pulaski County Clerk Larry Crane said he'd be ready with software to issue gender-neutral marriage licenses Monday morning. The judge's decision not to issue a stay isn't surprising. Why would a judge allow something he found unconstitutional to continue? He might also decline McDaniel's request, which would send the attorney general to the Supreme Court for relief. It recently issued a stay of a lower court order in hotly contested lawsuits over judicial candidacies after Circuit Judge Tim Fox didn't issue one. The lawsuit didn't name all county clerks, however, so there will be haziness about enforcement of the ruling statewide without a stay.

The lawsuit challenged both the 2004 state constitutional amendment and a 1997 law. Piazza's 13-page ruling struck down both. 

Here's the full ruling.
Piazza said "tradition alone cannot form a rational basis for a law." He wrote in lofty terms about freedom for all and cited landmark federal cases. He commented about criticism that is sure to follow:

The court is not unmindful of the criticism that judges should not be super legislators. However, the issue at hand is the fundamental right to marry being denied to an unpopular minority. Our judiciary has failed such groups in the past.

Not Piazza. He concluded by citing the past landmark Arkansas Supreme Court decision striking down criminal laws aimed at homosexuals as an invasion of privacy and then his own earlier ruling that foiled an effort to prevent gay couples from parenting.

The Arkansas Supreme Court applied a heightened scrutiny and struck down as unconstitutional an initiated act that prohibited unmarried opposite-sex and same-sex couples from adopting children. The exclusion of same-sex couples from marriage for no rational basis violates the fundamental right to privacy and equal protection as described in Jegley and Cole, supra. The difference between opposite-sex and same-sex
families is within the privacy of their homes.

THEREFORE, THIS COURT HEREBY FINDS the Arkansas constitutional and legislative ban on same-sex marriage through Act 144 of 1997 and Amendment 83 is unconstitutional.

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.

Chad Griffin, an Arkansas native who leads the Human Rights Campaign, the country's most important lobby for LGBT people, said:

"I want to congratulate the plaintiffs in this case, as well as lead attorney Cheryl Maples and co-counsel Jack Wagoner, on this historic victory for Arkansas values. All across my home state, throughout the South, and around the country, LGBT people and their families are seeking basic respect and dignity. This victory is an essential step on the journey toward full equality for all."

The Arkansas case is one of 70 underway around the country in 29 of the 33 states with legal bans. Same-sex couples can marry in 17 states and the District of Columbia.

An important question now is how quickly the appeal can be completed and decided by the Arkansas Supreme Court. The court takes a summer recess and briefing schedules can take months after the record of the case is completed. It's an open question whether plaintiffs would be better off with the current Supreme Court or with a new court with two new members in January succeeding Justices Cliff Hoofman and Donald Corbin (I wrote Jim Gunter incorrectly originally). Appeals Court Judge Rhonda Wood is unopposed for one seat. She ran as a "conservative" candidate and spent much of her time visiting Republican groups, an activity seen by many as an indicator that her rulings will dovetail with GOP ideology, including opposition to same-sex marriage. Appeals Court Judge Robin Wynne and Tim Cullen, are running for another open seat. Corbin was on the court when the same-sex adoption law was struck down in a unanimous decision. Hoofman was not; he later succeeded Robert Brown.

The Family Council's Jerry Cox, one of the leaders of gay antipathy in Arkansas, said he was disappointed but hoped for a different makeup of the Supreme Court by the time a ruling is issued, further indication that Rhonda Wood is viewed as a Republican, anti-marriage-equality candidate.

The plaintiffs included couples hoping to marry as well as legally married couples unable to divorce in Arkansas, be issued birth certificates with names of both parents and other rights routinely available to other married couples. The suit named state officials and county clerks, who issue marriage licenses. Plaintiffs also included minor children.

Attorneys Cheryl Maples, who spoke of her lesbian daughter's hope to be married someday in the course of developing the case, and Jack Wagoner represented plaintiffs. A federal case filed by Wagoner is also pending that raises equal protection arguments under the U.S. Constitution.

Piazza held a three-hour hearing April 17.

It was the second historic ruling by Piazza related to sexual orientation. In 2010, Piazza struck down the initiated act that prevented same-sex couples from adopting or being foster parents. The law was intended to prevent same-sex couples from parenting by barring any cohabitating couople. Since the law prevented same-sex couples from marrying, the initiative prevented them from adopting children from the state or participating in the foster parent program.

He wrote then:

Due Process and Equal Protection are not hollow words without substance. They are rights enumerated in our constitution that must not be construed in such a way as to deny or disparage other rights retained by the people.

Arguments in the current case included the landmark federal Windsor case, in which the Supreme Court found unconstitutional the federal law that prohibited equal rights under the law to people who are legally married. The state Constitution's equal protection clause also was invoked, though the state argued that the subsequent voter-approved amendment overrode that. And the Loving case that ended state bans on interracial marriage also was mentioned. The state contended the federal Windsor decision preserved state sovereignty over marriage. Maples argued that, other than "animus" toward gay people, there was no rational basis for the laws.

The Constitutional ban, a product of the anti-gay Religious Right lobby, the Arkansas Family Council, won broad endorsement in Arkansas in 2004, failing only in Pulaski County. But polls show opposition to marriage declining in Arkansas, if still in the majority. The Constitution, however, has inalienable rights that the majority can't take away, no matter what politicians think.

Wagoner said he'd be filing soon a motion for a summary judgment in the federal case. And he was enthused by Piazza's ruling because he accepted equal protection, due process, privacy and other issues raised by the plaintiffs. He thinks the weight of accumulating decisions will make it harder for appellate courts to overturn rulings.

Wagoner said he'll cite the state case in the federal pleading. There's an 8th Circuit ruling eight years ago that turned down an equal protection argument on a Nebraska law, but Wagoner said the due process argument wasn't used then from the Windsor case, plus precedent has been evolving rapidly.

Maples said she expected plaintiffs to celebrate at a picnic.

Carl Tobias, a University of Richmond law professor who's been following the case, commented:

The opinion is well done and uses reasoning like a number  of federal district courts that have struck similar state same-sex marriage bans. I think a stay will be granted, just as SCOTUS did with the Utah appeal.

Piazza is unopposed for re-election this year in what will likely be his last term.

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