Part 1: 1874 to 2004: Clauses &
amendments in the state
and statutes that impact SSM.
Year 1874: The Arkansas Constitution guarantees equal treatment of everyone:
Article 2, Section 3 of the Arkansas Constitution guarantees equal treatment of all citizen. It states that:
"The equality of all persons before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity, no exempted from any burden or duty, on account of race, color or previous condition." 2
Article 2, Section 18 of the Arkansas Constitution reinforces this guarantee. It almost reads as if the clause was written to guarantee marriage equality in Arkansas. It states that:
"The General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens." 2
The state definitely grants privileges to each married couple in the form of status, recognition, state benefits, and protections for themselves and for their children. Since it grants these privileges to opposite-sex couples, then this Section would seem to imply that it must grant the same privileges to same-sex couples as well.
1986: The Arkansas Code of 1987 contains two sections that were added to prohibit SSM:
9-11 208: "License not issued to persons of the same sex:
(a) It shall be the declared public policy of the State of Arkansas to recognize the marital union only of man and woman. No license shall be issued to persons to marry another person of the same sex and no same-sex marriage shall be recognized as entitled to the benefits of marriage.
(b) Marriages between persons of the same sex are prohibited in this state. Any marriage entered into by persons of the same sex, when a marriage license is issued by another state or by a foreign jurisdiction, shall be void in Arkansas, and any contractual or other rights granted by virtue of that license, including its termination, shall be unenforceable in the Arkansas courts." 6
9-11-107: "Validity of foreign marriages:
(a) All marriages contracted outside this state that would be valid by the laws of the state or country in which the marriages were consummated and in which the parties then actually resided shall be valid in all the courts in this state.
(b) This section shall not apply to a marriage between persons of the same sex." 7
[Webmaster's comment: The wording of Section 9-11-107 is curious. Many predominately Muslim countries allow a man to marry up to 4 wives. A man could go to one of these countries, and get legally married four times to four different women. These four marriages would presumably be valid in the Muslim country where they were consummated. As long as the five spouses actually resided for a while in the foreign country, then all four marriages would appear to be valid in Arkansas. If that interpretation is correct, then Arkansas would appear to have legalized polygamy! However, I have no specialist knowledge in Arkansas law, U.S. law, or even law in general. So, don't take my word for it and definitely do not make any personal decisions on this speculation.
If one were to search the marriage laws throughout the world, one would probably find a few countries that permitted marriages where the bride is quite young -- perhaps even pre-pubertal. If that is true, then perhaps Arkansas has also legalized abusive pedophilia.
1997: The Arkansas Legislature banned same-sex marriage (SSM) via a statute:
Ignoring the Constitution's Article 2 guarantee of equality, the Arkansas General Assembly enacted Law 144 stating that:
"Arkansas does not issue marriage licenses to persons of the same sex and does not recognize marriages between members of the same sex, and they are not entitled to the benefits of marriage ..." 3
2004-NOV: Amendment 83: The Arkansas Constitution was amended to also ban same-sex marriage:
In early 2004, same-sex marriages were legalized by the Massachusetts Legislature in accordance with an order from the Massachusetts Supreme Court. Many people were alarmed that same-sex marriages would become available in other states as well.
During the months leading up to the 2004 presidential elections, some leaders in the Republican Party had a brilliant idea to help their candidate, George W. Bush, defeat John Kerry, the Democratic candidate for President. They arranged to place a constitutional amendment on the ballot in 11 states that would ban same-sex marriage. That would heavily motivate conservative voters to turn out to vote on election day. While they were voting for the amendment, they would also have an opportunity to also vote for President Bush.
It worked. President George W. Bush was re-elected.
Bans on same-sex marriage (SSM) were successfully passed in all 11 states that day: Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah. They all passed with double-digit margins. 1
Some of the states' anti-SSM amendments went further than merely banning same-sex marriages as the sponsors' media advertisements had implied. They also banned same-sex civil unions, and same-sex domestic partnerships. The amendment to the Arkansas constitution was one of the latter stealth amendments.
Arkansas' Constitutional Amendment 83 states:
"Providing that marriage consists only of the union of one man and one woman; that legal status for unmarried person which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the legislature may recognize a common law marriage from another state between a man and a woman; and that the legislature has the power to determine the capacity of persons to marry, subject to this amendment, and the legal rights, obligations, privileges, and immunities of marriage." 4
The amendment was passed overwhelmingly by the Arkansas voters, by a vote of 75% to 25%! This was at a time when national polls found that about 65% of voters opposed SSM while only about 35% approved.
These amendments had been promoted in the media as being the only way that state courts could be absolutely prohibited from legalizing same-sex marriage. Either through lack of knowledge or a desire to deceive the public, the organizers did not inform the voters that the amendments were unconstitutional because they violated the equal access and equal protection clauses of the 14th Amendment of the U.S. Constitution.
It was not widely realized at the time that Amendment 83 introduced an internal conflict within the state Constitution. It treats same-sex couples differently from opposite sex couples. Thus, the Amendment is in conflict with both Section 3 and Section 18 of Article 2 of the Constitution which guarantee equal treatment.
A constitution cannot contain a clause that totally grants equal treatment to all people in all situations, even as it simultaneously contains another clause that withholds equal treatment in one situation -- at least it cannot with the current wording.