As of last Friday, 25 couples from all over Arkansas had joined two lawsuits to challenge Arkansas's Amendment 83, which makes it illegal for persons of the same gender to enter into a marriage contract.
Some of them are already legally married in other states; one couple was married in Canada. Some have had commitment ceremonies in Arkansas. All want to be married in the state they live in, to enjoy at home the same rights that the marriage contract conveys to heterosexual couples. Some have been eager to challenge the law before now, but were encouraged to wait until the U.S. Supreme Court passed judgment on the federal law that defines marriage as between a man and a woman.
On June 26, the wait was over. The court, ruling in United States v. Windsor, held that a section of the federal Defense of Marriage Act (DOMA), enacted during the Clinton administration, was unconstitutional because it deprived same-sex couples of equal protection and due process.
In the majority opinion, Justice Anthony Kennedy wrote that the "principal purpose" of the federal law, which even former President Clinton now believes was misguided and unjust, was "to impose inequality."
The law "places same-sex couples in an unstable position of being in a second-tier marriage," Kennedy wrote, which "demeans the couple, whose moral and sexual choices the Constitution protects." He also wrote that the law "humiliates tens of thousands of children now being raised by same-sex couples."
The court also declined to take up an appeal of a lower court ruling that held California's ban on same sex marriage, Proposition 8, unconstitutional. There were celebrations across the country, and shortly thereafter, the director of the Arkansas Economic Development Commission stood with gay rights advocates at the State Capitol and said the time had come for Arkansas to legalize gay marriage as a business-friendly move.
Kennedy's words stirred the Arkansas couples to action. The overturning of DOMA and Proposition 8 also ignited referenda attempts by two groups, Arkansans for Equality and Arkansas Initiative for Marriage Equality. AFE seeks to put a repeal of Amendment 83 on the 2014 ballot. AIME seeks a vote in 2016 — a presidential election year — on an amendment to guarantee that the state could not abridge the right to marry on the basis of sexual orientation or sex. Attorney General Dustin McDaniel has rejected ballot titles for both, and both organizations were to have resubmitted new drafts this week.
Six of the Arkansas plaintiffs have filed in federal district court. Should there be an appeal, the case would go to the 8th Circuit Court of Appeals, which has not been friendly to same-sex marriage. The 8th circuit court ruled Nebraska's DOMA-styled law restricting marriage to heterosexuals constitutional in 2006. But Jack Wagoner, who announced on his Facebook page the day the DOMA ruling came down that he would represent anyone seeking to challenge Arkansas's ban, believes the June ruling should give new guidance to the federal court. The case was assigned to Judge Kristine Baker after Judge Leon Holmes recused, citing his personal and professional ties to those who drafted Amendment 83.
Cheryl Maples of Searcy has filed suit in Pulaski County Circuit Court on behalf of 19 couples, expecting state court to be friendlier than federal court.
The high court's DOMA ruling came in a case in which a woman legally married to another woman in New York was denied the federal marital tax exemption that extends to survivors who inherit when a spouse dies.
That is just one way DOMA made same-sex marriages unequal to heterosexual marriages under federal law.
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