Arkansas Judge Strikes Down State Ban on Same-Sex Marriage in a Case of “Epic Constitutional Dimensions”

Pulaski County Circuit Judge Christopher Charles Piazza ruled on May 9 that Arkansas’s same-sex marriage ban violates the 14th Amendment of the federal constitution as well as Article 2, Section 3 of the Arkansas Constitution’s Declaration of Rights. Judge Piazza, who made no mention of a stay in his ruling, waited until after county clerk offices had closed on Friday afternoon to release his decision in the case of M. Kendall Wright v. Nathaniel Smith. Some clerks issued licenses on Saturday May 10, and more on Monday, May 12, as Judge Piazza denied the state’s motion for a stay. The state Supreme Court then ruled that no motion for a stay was necessary, since Piazza had not specifically invalidated a state law that prohibits clerks from issuing marriage licenses to same-sex couples. Judge Piazza then clarified his ruling (on May 15) to extend to the statute in question, and clerks resumed issuing marriage licenses in some counties as the state again sought a stay from the Supreme Court.

Trial judges seem to be striving to out-do each other in eloquence as they write their marriage equality rulings, and Piazza was no exception. He ended his opinion by referring to the U.S. Supreme Court’s famous ruling on interracial marriage, Loving v. Virginia, “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.”

Although two state court systems — New Jersey and New Mexico — have produced marriage equality decisions since the Supreme Court struck down Section 3 of the Defense of Marriage Act last year in U.S. v. Windsor, Judge Piazza’s decision was the first to do so on both federal and state grounds in a state that has an anti-gay marriage amendment. The amendment was enacted as part of Karl Rove’s 2004 campaign strategy to re-elect George W. Bush by drawing conservative voters to the polls with anti-gay marriage initiatives in key states. That strategy had high salience because the Massachusetts Supreme Judicial Court’s order to allow same-sex couples to marry — the first such in the nation — went into effect on May 17, 2004, amidst a frenzy of media attention prompted by San Francisco Mayor Gavin Newsom’s attempt to let same-sex couples marry in that city, followed by copy-cat actions by some local authorities in Oregon, New Mexico and New York. The Arkansas amendment, constitutionalizing a statute that had been enacted almost a decade earlier in response to same-sex marriage litigation in Hawaii, won support from three-fourths of Arkansas’s voters.

The overwhelming popular approval for the amendment was a centerpiece of the state’s defense of its ban before Judge Piazza. He characterized the amendment vote as “an unconstitutional attempt to narrow the definition of equality. The exclusion of a minority for no rational reason is a dangerous precedent,” he continued. “Furthermore, the fact that Amendment 83 was popular with voters does not protect it from constitutional scrutiny as to federal rights. The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so important, an individual’s fundamental rights ‘may not be submitted to vote; they depend on the outcome of no elections,'” quoting from the U.S. Supreme Court’s historic 1943 flag salute decision, which held that Congress could not legislate to compel religious objectors to salute the flag.

Judge Piazza found that the U.S. Supreme Court has repeatedly characterized the right to marry as a fundamental right, and that considering the factors that the Supreme Court has used to determine the level of scrutiny to apply to discriminatory laws, it was clear that laws that discriminate against same-sex couples invoke at least heightened scrutiny. However, in common with many of the trial judges who have ruled in marriage equality cases over the past year, Judge Piazza found that it was not necessary to apply heightened scrutiny to find the Arkansas marriage ban unconstitutional. “Regardless of the level of review required,” he wrote, “Arkansas’s marriage laws discriminate against same-sex couples in violation of the Equal Protection Clause because they do not advance any conceivable legitimate state interest necessary to support even a rational basis review.

Piazza’s decision relied heavily on several key Supreme Court rulings. He quoted extensively from the Court’s decision last year in U.S. v. Windsor, referred to several of the more recent marriage equality decisions, duplicated the Virginia district court’s quotation by Mildred Loving about the significance of her 1967 case, and pointed out that adverse rulings cited by the state all pre-dated the Windsor decision.

“The issues presented in the case at bar are of epic constitutional dimensions,” he wrote, continuing that “the charge is to reconcile the ancient view of marriage as between one man and one woman, held by most citizens of this and many other states, against a small, politically unpopular group of same-sex couples who seek to be afforded that same right to marry. Attempting to find a legal label for what transpired in Windsor is difficult but as United States District Judge Terence C. Kern wrote in Bishop v. United States [the Oklahoma marriage equality decision], ‘this court knows a rhetorical shift when it sees one.’ Judge Kern applied deferential rational review and found no “rational link between exclusion of this class from civil marriage and promotion of a legitimate governmental objective.”‘”

Judges deciding marriage equality cases have frequently felt the need to provide a brief civics lecture in support of their rulings. Along these lines, Judge Piazza wrote, “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. Our judiciary has failed such groups in the past.”

However, Judge Piazza was careful to note that the Arkansas Supreme Court has several times in more recent history ruled in favor of gay rights, bolstering Piazza’s conclusion that the Arkansas equal protection clause would also justify his conclusion in this case. In 2002, that court declared the state’s sodomy law unconstitutional. In 2011, that court struck down a state policy prohibiting unmarried opposite-sex and same-sex couples from adopting children, finding that there was no rational basis for it. “The exclusion of same-sex couples from marriage for no rational basis violates the fundamental right to privacy and equal protection describe in” these prior Arkansas Supreme Court rulings, he wrote, asserting: “The difference between opposite-sex and same-sex families is within the privacy of their homes.”

The plaintiffs in this case include twelve same-sex couples seeking to marry in Arkansas and eight same-sex couples seeking to have their out-of-state marriages recognized, so the ruling covers both the right to marry and the right to recognition, although Judge Piazza’s opinion focused almost exclusively on the right to marry and provided no separate analysis on the recognition issue. His focus was broadly on the state’s discrimination against same-sex couples, which logically includes both of these issues.

The state’s stay motion relied heavily on the U.S. Supreme Court’s action in January staying the Utah marriage equality decision. Assistant Attorney General Colin R. Jorgensen wrote, “The Supreme Court grants a stay if there is ‘a fair prospect that a majority of the Court will vote to reverse the judgment below,'” quoting from the Supreme Court’s 2010 decision staying the broadcast of the Proposition 8 marriage equality trial. “Thus, as a matter of law, the Supreme Court has already indicated the likelihood that the Supreme Court will ultimately affirm state marriage laws such as Amendment 83 and Arkansas Act 144 of 1997 (the Arkansas ban on same-sex marriages). More importantly, the Supreme Court has indicated that a stay is appropriate under the circumstances of this case.” Although it seems likely that the Arkansas ruling will be stayed pending appeal, either by Judge Piazza or by the Arkansas Supreme Court, Jorgensen’s suggestion that the U.S. Supreme Court has already signaled that it will reject marriage equality claims by staying the Utah ruling is unduly pessimistic in light of that Court’s subsequent ruling in the Windsor case and the unbroken string of affirmative marriage equality rulings since then by federal and state courts.

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