Another same-sex marriage ban falls
on May 9, 2014 at 9:13 pm
A decade after Arkansas voters by a huge margin approved a ban on same-sex marriage, a state trial judge on Friday afternoon struck it down, mainly for violating the federal Constitution. Pulaski County Circuit Judge Christopher Charles Piazza of Little Rock relied upon a mix of law and history to nullify the ban, in a thirteen-page opinion.
The ruling continued the so-far-unbroken trend across the country of decisions nullifying state provisions against same-sex marriage.
The decision Friday in Wright v. Arkansas set the stage for that case to move to higher state courts just as widely scattered federal appeals courts are weighing other states’ bans. The Arkansas attorney general, Dustin McDaniel, recently said he will defend the ban, although he said he personally favors a right of same-sex marriage to marry.
When Arkansas voters went to the polls in November 2004 to consider state constitutional Amendment 83, they approved it by a margin of seventy-five to twenty-five percent. That vote, Judge Piazza wrote, was “an unconstitutional attempt to narrow the definition of equality. The exclusion of a minority for no rational reason is a dangerous precedent.”
The judge likened the denial of equality to homosexuals to the denial of equality to racial minorities, and summoned up for comparison the Supreme Court’s discredited ruling in the Dred Scott case in 1857 saying that black people “had no rights or privileges but such as those who held the power and the government might choose to grant them.”
He also relied upon the Supreme Court’s 1967 decision in Loving v. Virginia, striking down Virginia’s ban on interracial marriages. He closed his opinion with these remarks about the woman involved in that case: “It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.”
It was not entirely clear just what standard Judge Piazza had used in nullifying Amendment 83. At one point in his opinion, he said that homosexuals were a minority that had been traditionally the targets of discrimination, so laws treating them less favorably had to be judged by “heightened scrutiny.” However, much of his opinion was focused on his finding that the state ban could not pass even the least demanding constitutional test, “rational basis.”
While much of the opinion focused on equality under the federal Constitution, the judge also cited a guarantee of equality in the Arkansas constitution. In the end, he wrote simply that the ban “is unconstitutional.”
In one facet of the opinion, Judge Piazza refused to follow the lead of the U.S. Court of Appeals for the Eighth Circuit — the federal appeals court that includes Arkansas in its geographic region. In a 2006 decision, the Eighth Circuit had upheld a state ban (in Nebraska) on same-sex marriage. That ruling, the judge said, predated the Supreme Court’s ruling last June in United States v. Windsor, finding unconstitutional a key part of the federal Defense of Marriage Act.
As other judges have done in voiding state bans, the Arkansas jurist relied on much of the language of the Windsor decision discussing hostility to same-sex marriages. That case did not involve a state ban, however; it dealt only with federal treatment of already-married same-sex couples.
The Arkansas ban both restricted marriage to a union of a man and a woman, and refused to recognize the validity of same-sex marriages performed in other states. Judge Piazza’s decision nullifying both came in a case filed by twelve same-sex couples who wish to marry in the state, and eight same-sex couples already married in other states seeking state recognition.
The state ban is also currently under challenge in a federal district court in Little Rock. The case of Jernigan v. Crane (District Court docket 13-410) is pending before District Judge Kristine G. Baker; it is awaiting her action on a motion by the state to dismiss the case.
