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Same sex marriage (SSM) in Arkansas

2014-MAY-09: Part 3:
Circuit Court Judge Piazza issues ruling.

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wedding rings2014-MAY-09: Ban on same-sex marriage overturned, at least temporarily:

On Friday, MAY-09, Pulaski County Circuit Judge Christopher Piazza issued his ruling in the lawsuit originally filed by 11 same-sex couples in Arkansas. 1,2 The case is M. Kendall Wright et al. v. State of Arkansas, et al." Between the date of filing, and the date of the ruling, nine other same-sex couples joined the lawsuit. This increased the total to:

  • 12 couples who are seeking the freedom to marry -- within Arkansas -- the person that they love.

  • 8 couples who are already legally married out-of-state, and want Arkansas to recognize their marriages.

Judge Piazza overturned Amendment 83 that was passed by the voters in 2004, as well as Arkansas laws that ban such marriages. He cited a group of recent decisions by federal District Courts in various states which had earlier reached similar conclusions. He wrote:

"Same-sex couples are a morally disliked minority and the constitutional amendment to ban same-sex marriages is driven by animus rather than a rational basis. This violates the United States Constitution. ..." 2

All District Courts who have ruled on same-sex marriage recently have decided in favor of marriage equality; most have stayed their rulings pending appeals. However, the District Court in Utah did not stay their ruling. The judge reasoned that to not issue a stay would allow same-sex couples to marry, and immediately be able to receive hundreds of protections, and benefits from the state for themselves and their children. They would then also be eligible to receive 1,138 federal benefits as well. However, issuing a stay would deprive the couples of these benefits and would not impact the lives of opposite-sex couples in any significant way. Judge Piazza decided to follow the example shown in Utah and did not issue an immediate stay.

Arkansas Attorney General Dustin McDaniel appealed the ruling quickly to the Arkansas Supreme Court. He asked Judge Piazza's to invoke a stay on his ruling so that marriage equality in the state can be at least terminated as soon as possible. Although he personally approves of marriage equality, he feels obligated to follow the wishes of the people of Arkansas and fight it at the Supreme Court level.

Aaron Sadler, a spokesperson for the Attorney General, said:

"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 [Arkansas] Supreme Court considers the matter."

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2014-MAY-09: Judge Piazza's ruling:

The full 13 page text is available online. 2

Some of the points that Judge Piazza made are:

"... all courts must balance equal protection principles with the practical purposes of government when reviewing
constitutional challenges to state laws. The United States Supreme Court has outlined three categories for analyzing
equal protection challenges"

  • The most rigorous is referred to as 'strict' scrutiny, which is reserved for laws that interfere with the exercise of a fundamental right or discriminate against 'suspect classes.'

  • ... A more relaxed standard of review is 'intermediate' or 'heightened' scrutiny, which courts have applied to laws that discriminate against groups on the basis of gender, alienage or illegitimacy (also referred to as 'quasi-suspect classes').

  • When the law does not interfere with a fundamental right or the rights of a suspect or quasi-suspect class, rational
    basis review applies.

Here, the Arkansas marriage laws implicate both a fundamental right and the rights of a suspect or quasi-suspect class.
Although marriage is not expressly identified as a fundamental right in the Constitution, the United States Supreme Court
has repeatedly recognized it as such. It has also consistently applied heightened scrutiny to laws that discriminate
against groups considered to be a suspect or quasi-suspect classification. (a group that has experienced a 'history
of purposeful unequal treatment or [has] been subjected to unique disabilities on the basis of stereotyped
characteristics not truly indicative of their abilities.') Courts consider whether the characteristics that
distinguish the class indicate a typical class member's ability to contribute to society, ... whether the distinguishing
characteristic is 'immutable' or beyond the group member's control, and whether the group is a minority or politically
powerless. ..."

He cited a long string of judicial rulings that stress basic importance of marriage and consider it a basic right.

"Therefore, at a minimum, heightened scrutiny must be applied to this Court's review of the Arkansas marriage laws. Regardless of the level of review required, Arkansas's marriage laws discriminate against same-sex couples in violation of the Equal Protection Clause [of the 14th Amendment of the U.S. Constitution] because they do not advance any conceivable legitimate state interest necessary to support even a rational basis review.

The Supreme Court invoked this principle most recently in Windsor when it held that the principal provision of the federal Defense of Marriage Act ("DOMA") violated equal protection guarantees because the 'purpose and practical effect of the law ... [was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.' The case at bar and many around the country have since challenged state laws that ban same-sex marriage as a result of that decision. ... The Court concluded that this impact deprived a person of liberty protected by the Fifth Amendment and held that DOMA is unconstitutional. ..."

"Rather than protecting or supporting the families of opposite-sex couples, [Arkansas' Constitutional] Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples. And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities. The Plaintiffs' desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse."

Judge Piazza listed and rejected the arguments put forth by the defendants in defense of marriage inequality:

  • The basic premise of the referendum process: that the amendment -- passed overwhelmingly by the voters -- should rule,
  • promoting procreation,
  • the protection of children,
  • the continuity of the laws, and
  • tradition.

On the defendants' claim that banning same-sex marriage protects children, he concluded that the ban does not prevent same-sex couples from having children. He said:

"The only effect the bans have on children is harming those children of same-sex couples who are denied the protection and stability of parents who are legally married."

On the matter of tradition, he referred to the famous decision by the U.S. Supreme Court in the case "Loving v. Virginia" that legalized same-sex marriage across the country:

"Just as the tradition of banning interracial marriage represented the embodiment of deeply-held prejudice and long-term racial discrimination..., the same is true here."

He cited Article 2, Section 2 of the Arkansas Constitution that guarantees equal treatment to all, and notes that Amendment 83

"... singled out same-sex couples for the purpose of disparate treatment. This is an unconstitutional attempt to narrow the definition of equality. The exclusion of a minority for no rational reason is a dangerous precedent. Furthermore, the fact that Amendment 83 was popular with voters does not protect it from constitutional scrutiny as to federal rights."

He powerfully expressed his belief that:

"The strength of our nation is in our freedom which includes, among others, freedom of expression, freedom of religion, the right to marry, the right to bear arms, the right to be free of unreasonable searches and seizures, the right of privacy, the right of due process and equal protection, and the right to vote regardless of race or sex. 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. ..."

He continued:

"Our freedoms are often acquired slowly, but our country has evolved as a beacon of liberty in what is sometimes a dark world. These freedoms include a right to privacy. The United States Supreme Court observed [in Griswold v. Connecticut]:

'We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for the better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions'."

Judge Piazza granted "... summary judgment in favor of the plaintiffs and finding Act 144 of 1997 and Amendment 83 unconstitutional."

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Paresh Dave, "Arkansas ban on gay marriage struck down by county judge, with no stay," Los Angeles Times, 2014-MAY-09, at:
  2. C.C. Piazza, "Order granting summary judgment ... M. Kendall Wright et al. v. State of Arkansas, et al.", Document Cloud, 2014-MAY-09, at:

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Latest update: 2014-MAY-12
Author: B.A. Robinson

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