Same sex marriage (SSM) in Arkansas
2013-JUL: Lawsuit filed in county
court seeking marriage equality
2013-JUL-02: Lawsuit filed in the Circuit Court of Pulaski County, Arkansas:
Eleven same-sex couples filed a complaint in the Circuit Court of Pulaski County, in Arkansas. 5 Some had been married in Iowa which allows same-sex marriage. The others were unmarried and wanted to be married either in a civil ceremony or in a religious ceremony conducted by a willing church. Subsequently, other couples joined the lawsuit resulting in a total of 12 same-sex couples wishing to marry in Arkansas and 8 couples wanting to have their out-of-state marriages recognized in Arkansas.
It was filed just six days after the U.S. Supreme Court issued its ruling in Windsor v. United States. That ruling found Section 3 of the federal Defense of Marriage Act (DOMA) to be unconstitutional. Section 3 had prohibited the federal government from recognizing the marriage of any same-sex couple, even if it had been legally solemnized in a state. With that section removed, the federal government was able to funnel the benefits and protections of 1,138 federal programs to both opposite-sex and same-sex married couples. The ruling of the majority of Justices in Windsor contained many arguments that have since been picked up in over 60 lawsuits filed in federal District Courts as well as this case where it was filed in a state court.
One of the 11 couples added their son and daughter as plaintiffs.
Defendants named in the complaint are Arkansas Governor Michael Beebe, Attorney General Dustin McDaniel, Interim Director Nathaniel Smith of the Arkansas Department of Health, and six county clerks whose responsibilities include the issuance of marriage licenses. Defendants are being sued in their official capacity only, not personally.
Content of the iniial complaint as filed by the 11 couples:
The complaint notes that when the U.S. Supreme Court legalized interracial marriage in 1967, they recognized marriage to be "one of the basic civil rights of man, fundamental to our very existence and survival."
The complaint notes that the 2004 Amendment to the Arkansas Constitution is in direct conflict with the equal rights guarantee in Section 2 of the same Constitution. Concerning Amendment 83, their complaint states:
"This amendment [is] in direct conflict with the equal rights provisions existing in the Constitution. Amendment 83 of 2004 .. denies homosexual couples the fundamental right to establish a familial institution with the protections and benefits enjoyed by heterosexual couples. This unconstitutional amendment still stands."
"... This action is brought pursuant to violations of the right to equal protection under Arkansas Constitution, Article 2, § 18 and under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and protected pursuant to 42 U.S.C. § 1983 and a denial of fundamental rights in violation of Due Process Clause of the Arkansas Constitution and of the Fourteenth Amendment to the Constitution of the United States of all Plaintiffs." (Emphasis by us)
The plaintiffs ask for two declaratory judgments:
- One would be a statement by the judge affirming the plaintiffs' right to marry.
The other would state that Amendment 83, and the statutes passed by the Legislature in 1986 prohibiting same-sex marriage in Arkansas Code sections 9-11 208 and 9-11-107(b) are in violation of Article IV, Section 1 of the U.S. Constitution. This is commonly known as the "Full Faith and Credit Clause" which requires -- in the case of same-sex couples legally married in another state -- to have their marriages recognized in Arkansas.
Unfortunately, the complaint refers specifically to "homosexuals" -- that is, couples composed of two persons, both with a homosexual orientation. They are then both sexually attracted only to members of the same sex. This appears to be a serious error because it ignores a minority of same-sex couples in which one or both persons are bisexual; they are, by definition, attracted to both men and women although not necessarily to the same degree.
Finally, the plaintiffs also seek an injunction against the state's future enforcing of Act 146 of 1997, Amendment 83 and the two sections of the Arkansas Code described in the previous essay.
Description of the original 11 plaintiff couples:
are similar to that of Rhonda Eddy & Trebal Leath. They also requested a marriage licence at the office of their county clerk, and were refused.
The plaintiffs' claims:
In their complaint, they make four claims:
Denial of Due Process:
- The 1997 act, Amendment 83 and the two sections of Arkansas Code "violate fundamental liberties that are protected by both the federal and Arkansas Constitution's Due Process Clause. ..."
- "(m)arriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."
Act 146 of 1997, Amendment 83 and the two sections of the Arkansas Code described in the previous essay "... were enacted for the sole purpose of denying Plaintiffs and others in their situation this fundamental right."
Denial of Equal Protection:
The act, amendment and code mentioned in the previous essay "... violate the Equal Protecton Clauses of the Arkansas Constitution and the Fourteenth Amendment to the United States Constitution in that they restrict the performance of civil marriages and the recognizing of legal civil marriage from other states to those of heterosexual couples. Only gay and lesbian couples are denied this fundamental liberty.
- The act, amendment and code mentioned "do not permit discrimination on the basis of sex." Yet, almost any man can marry any woman subject only to the requirements that they are of sufficient age, not too closely related, are not already married, and have sufficient funds to buy a license. But a woman cannot marry any other woman and a man cannot marry any other man in Arkansas. A same-sex couple can go to another state to be married, but when they return home, Arkansas will not recognize their marriage.
Violation of Full Faith and Credit:
The act, amendment and code mentioned in the previous essay "... violate Article IV, Section 1 of the United States Constitution, known familiarly as the 'Full Faith and Credit Clause" which states:
"Full faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other state. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be provided, and the Effect thereof."
- The act, amendment and code mentioned above "... forbid Full Faith and Credit to be given to lawful marriages of only homosexual couples."
[Webmaster's comment: The references to homosexuals, gays, and lesbians throughout the complaint are clearly deficient because those same-sex couples who include one or two bisexuals are also denied these same fundamental liberties, benefits and privileges."]
- "Plaintiffs' continuing and increasing injuries include, but are not limited to, the deprivation of fundamental rights Constitutionally guaranteed, severe humiliation, stigma, emotional distress, psychological harm, pain and suffering, all caused by their denial of the right to be married to the person of their choice and have their familial relationship accorded the same dignity and respect as that received by heterosexual families."
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"Same-sex marriage bans winning on state ballots," CNN Politics: America Votes 2004: 2004-NOV-03, at: http://www.cnn.com/
"Constitution of the State of Arkansas of 1874," Government of Arkansas, at: http://www.arkleg.state.ar.us/
"A bill: Act 146 of 1997," Arkansas Senate, 1997, at: ftp://senate.arkansas.gov/
"Arkansas Marriage Amendment, Proposal 3 (2004)," Ballotpedia, 2012-SEP-20, at: http://ballotpedia.org/
Complaint "In the circuit court of Pulaski County, Arkansas," 2013-JUL-02, at: http://media.arkansasonline.com/
Copyright © 2014 by
Ontario Consultants on Religious Tolerance
Latest update: 2014-MAY-11
Author: B.A. Robinson