Together but unequal 

What the Supreme Court's decision did and did not do for LGBT rights in Arkansas.

CELEBRATION: John Schenk (left) and Robert Loyd of Conway address an admiring crowd at a June 26 victory party at Sticky Fingerz. - BRIAN CHILSON
  • Brian Chilson
  • CELEBRATION: John Schenk (left) and Robert Loyd of Conway address an admiring crowd at a June 26 victory party at Sticky Fingerz.

On June 26, the U.S. Supreme Court ruled that same-sex marriage is now, definitively, the law of the land in all 50 states. There's no question that the 5-4 decision in Obergefell v. Hodges was monumental on both an historical and a highly personal scale — and yet, as many commentators and activists noted amidst the jubilation (and lamentation, in some quarters), the language of the ruling also made it clear that the fight for LGBT rights isn't over.

Although the majority's opinion, written by Justice Anthony Kennedy, said the 14th Amendment guarantees same-sex couples a "fundamental right to marry," Kennedy was silent on the broader issue of whether sexual orientation and gender identity are classifications to be shielded from discrimination under federal law. For the time being, it's still up to state and local governments to enact laws that ensure LGBT people are a "protected class" under civil rights law, much like race, religion and gender.

"I think it's important to note that the court's decision in Obergefell was really quite narrow," said Danielle Weatherby, an assistant professor at the University of Arkansas School of Law in Fayetteville who has extensively studied the issue of marriage equality.

"There's no change in the law with respect to the current protections that guarantee equality in the workplace, in housing, in places of public accommodation."

That also raises the question of how same-sex couples will now be treated in the eyes of courts and other institutions within conservative jurisdictions. In Arkansas, Gov. Asa Hutchinson and Attorney General Leslie Rutledge (both Republicans) have made it clear that county employees across the state must comply with Obergefell in granting marriage licenses. But what happens when gay and trans men and women appear before less-than-sympathetic judges in custody hearings, adoption proceedings and any number of other messy matters of family law? Given that some Republican state legislators are calling for resistance to the Supreme Court's decision, it seems a fair question to ask whether all circuit judges — who are themselves elected officials — will automatically see same-sex couples no differently than heterosexual couples.

Stefan McBride, an attorney practicing family law in Little Rock, compared the current situation to the one in Southern states a half century ago when the Warren court struck down bans on interracial marriage in a landmark case. "After Loving v. Virginia, do you think all the interracial couples in Virginia in 1967 were instantly invited to the country club? Of course not," he said. "There can sometimes be a big difference in the law and the real world."

"And I don't think it will be uniform across the state. In Pulaski County, for example, I know judges for whom equality in court has been a reality for quite some time. But I also know that there are courts that will continue to consider the sexual orientation of those appearing in court. This is going to take time to become a practical reality for the entire state."

Weatherby said that the narrowness of Kennedy's opinion — the fact that discrimination against LGBT people is not subject everywhere to the exacting level of scrutiny as discrimination based on religion or race — means that same-sex couples could have limited recourse if they feel they've been treated unfairly in court.

"On the surface, Obergefell explicitly provides that same-sex marriages are to be treated in a legal sense the same way that heterosexual marriages are treated," she said. "But beyond the surface-level implications of Obergefell, there's absolutely a continuing social stigma that applies and will continue to apply to same-sex status, and so if there is a hypothetical judge who treats a same-sex couple differently than a heterosexual couple, the couple can find solace in Obergefell, invoking their fundamental right to marry. But they cannot find solace in equal protection [under the 14th Amendment] ... because sexual orientation has not yet been deemed a 'suspect class' by the Supreme Court.

"That same-sex couple would absolutely have a claim that they have a fundamental right to marry, and substantive due process requires the court to treat their marriage just like any other marriage. But in terms of proving some kind of discriminatory treatment based on a protected class — that would be very difficult."

McBride said that there will also be situations in which same-sex unions force a reimagining of established Arkansas laws. For example, "in most custody situations, courts pretty much assume that it's in a child's best interest to have exposure to both parents. Children need a mom and a dad; that's fairly uncontroversial. Lawyers argue this all the time, and it's accepted as true [by a court] unless one of the parents is not fit."

However, in the eyes of a court determining the best interest of a child in a divorce, this would seem to suggest a difference between same-sex couples and opposite-sex couples. "Do children need a mom and mom or dad and dad as much as they need a mom and dad? Put another way: If you've already got a mom, do you need another?" McBride asked.

"It may be that when courts in the past have articulated this need, they were simply expressing the present reality. They said 'mom and dad' because that was the only possibility. Courts may simply prefer that children need two parents, regardless of their title or biology," he said.

Such uncertainties aside, the law accords significant benefits to married couples simply by default. Weatherby provided what she called a "representative, non-exhaustive list" of the myriad ways in which a state-sanctioned marriage sculpts an individual's life:

"Tax benefits; inheritance and property rights ... spousal evidentiary privileges invoked by a witness at a trial or other legal proceeding; hospital visitation rights; medical decision-making authority; adoption rights; government records, including birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, child support and child visitation rules."

"Finally, a divorce of a same-sex married couple would be governed by the same laws governing a divorce of a heterosexual married couple," she added.

McBride detailed a few additional specifics regarding marital benefits. "Marriage makes a big difference on your taxes. For example, the cap on IRA contributions goes up significantly if you're married and file jointly. It also makes a difference on your deductions: If you make anything over $80,000 in modified adjusted gross income as a single person, you can't deduct student loan interest; it's $160,000 if you're married filing jointly."

Marriage also touches probate law. "In Arkansas, a spouse has what's called an elective forced share. Even if you disinherit a spouse, that person can still get a share of the estate — so that's a big advantage."

"Other things being equal, getting married is almost always going to have significant financial advantages," McBride said. A rare exception: Some low-income individuals may find they no longer qualify for certain social safety net benefits after their financial profiles are merged into a single household. "If you have two people making $15,000 a year, you might get benefits that you won't if you have a family making $30,000. ... There are situations where 'marrying up' could, say, disqualify you for Medicaid."

But perhaps the most important issues, again, involve children. "In Arkansas, you can't have a co-guardianship — either of a minor, or of any incapacitated person — unless you're a spouse," he said. The Arkansas statute on adoption still says that only a "husband and wife" may adopt a child in tandem. In 2011, a lawsuit forced the Arkansas Department of Human Services to allow cohabiting adults to adopt, but the letter of the law must still be updated to clarify the new reality of marriage in the United States.

"There's going to be a ton of language that has to be changed throughout the Arkansas Code. That is just a matter of changing language, admittedly, but I doubt that the legislature is going to get into any hurry doing so," McBride said. 

With an issue as politically charged as same-sex marriage, even making technical corrections could meet opposition. "After historical decisions like Roe v. Wade and Brown v. Board of Education — decisions that not only shaped the law but also shaped our cultural and societal norms — there's a cyclical response," Weatherby said. "We see society reacting with resistance.

"We're going to see a rise in legislative proposals in this state to find loopholes around the court's decision in Obergefell. For example, we've already had [former Arkansas Gov. Mike Huckabee] saying he believes the court's decision was discriminatory in so far as it negatively impacted people with sincerely held religious beliefs. ... I think we're going to continue to see this backlash narrative of legislative measures that pit religion against civil rights for the LGBT community."

Weatherby cited a law passed last month in Michigan that allows faith-based private adoption agencies to deny services to certain prospective parents if doing so would conflict with an agency's religious beliefs. That might include unmarried couples or others — but it's clearly aimed at LGBT people.

"I would think that [Michigan] law would now be in question, since same-sex marriages should be treated like heterosexual marriages," she said. "Although, as I said earlier, if there is a legal challenge, there is no heightened level of scrutiny. So, I'm not sure. We'll just have to see how this all plays out."


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