Ari Ezra Waldman | Arkansas | Edie Windsor | Gay Marriage | Law - Gay, LGBT | News

Marriage Equality Comes to Arkansas: A Legal Analysis

By ARI EZRA WALDMAN

Arkansas-Judge-Chris-PiazzaLate Friday, Judge Chris Piazza (right), a state court judge in Arkansas, declared his state's ban on same-sex marriage unconstitutional and ordered the county clerk's office to issue marriage licenses to gay couples. It was the first post-Windsor marriage equality decision based on federal and state grounds. And because he did not stay his order, gay couples could almost immediately get married (and have!). The Arkansas attorney general has filed a motion for a stay and only a select few counties are following the judge's order.

You may be asking yourself a few questions: How did this all come about? Why a state court case, especially since most of our post-Windsor success (save New Jersey and New Mexico) has come through the federal courts? Why are certain county clerks defying the judge and not issuing marriage licenses? What happens now?

Marriage equality lawsuits are proliferating throughout the country: most of them are run by or have the participation of the major gay rights litigation concerns (Lambda Legal, the ACLU, and the American Foundation for Equal Rights, for example). Some, like the one in Arkansas, were filed by private attorneys on behalf of a phalanx of local couples who just want to get married near their families or have their out-of-state marriages recognized by their home state.

These plaintiffs are just like all the other marriage equality plaintiffs. They just want the freedom to love. And like so many other marriage equality decisions, this one proves that we are in a different world after the Supreme Court's decision in Windsor

CONTINUED, AFTER THE JUMP...

The plaintiffs in Wright v. Smith argued that the Arkansas ban on same-sex marriage was unconstitutional. That ban, which was put on the ballot in time for the 2004 presidential election to help urge conservatives to get to the polls, was enshrined into the state constitution with a sweeping 75 percent of the vote. But no matter how much energy the State spent talking about the importance of a 3/4 majority, no majority, regardless of size, is allowed to violate basic human rights.

As a matter of state law, the Arkansas Constitution guarantees equality to all and the ban on same-sex marriage was a bald and odious attempt to "narrow the definition of equality" for no rational reason. True enough, but Judge Piazza reserved his eloquence and his most important holdings for the federal question of whether the state ban violated the U.S. Constitution.

LovingFor Judge Piazza, two federal cases bore out-sized importance to the lawsuit before him. First, there was Loving v. Virginia. Loving was the 1967 case in which the Supreme Court ended racial discrimination in marriage. Judge Piazza saw the same arguments that attempted to justify banning blacks from marrying whites popping up again when the state tried to justify banning gays from marrying. Loving, and other cases, showed that tradition, mere hatred, and one group's concept of morality could not justify discrimination. It also emphasized the fundamental nature of the marriage right. What's more, it raised and then squashed the pitiful justifications for discrimination. Judge Piazza saw this as precedent and as a warning to Arkansas supporters of the marriage ban: Arguing against Loving is arguing on the wrong side of history.

Loving was not the end of the story. It was Windsor that put the Arkansas plaintiffs over the top. This is true for several reasons. Justice Kennedy's decision ran through the various justifications for denying federal recognition to gay couples and since those justifications overlapped considerably with the justifications for same-sex marriage bans, Windsor had the effect of eroding the support structure for the remaining state bans on gays marrying.

WindsorWhat's more, Windsor had the explicit effect of de-legitimizing any previous decision upholding a ban on same-sex marriage. Judge Piazza was the first judge to address this head on. Of all the cases Arkansas relied on to support the ban, two stood out: a 2012 Montana case that suggested that encouraging procreation is an important government objective and a 2006 federal appellate court case that upheld Nebraska's ban on same-sex marriage. The central problem with relying on those cases, Judge Piazza said, was that Windsor made them unreliable. Windsor held that DOMA was "invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure [gay individuals seeking to marry] whom the State, by its marriage laws, sought to protect in personhood and dignity." Windsor was, at a minimum, a "rhetorical shift" that signalled that gays and gay marriages are now equal in the eyes of the Supreme Court. No irrational form of discrimination against gays could survive that.

Here are some direct answers to your questions:

1. How can a state court judge make a decision on federal law?

State court judges are allowed to answer federal questions in their court rooms when those federal questions are attached to state law questions. In this case, the plaintiffs argued that the ban violated the Arkansas Constitution and the Federal Constitution. If this case ever gets to a federal court--it could be appealed through the state intermediate appellate courts, then up to the state supreme court, and then on to the U.S. Supreme Court--the federal judges would rely on the state court's interpretation of state law and could agree or disagree with his interpretation of federal law.

2. Will there be a stay?

Gay couples in Arkansas are already marrying, but the state has filed a motion with Judge Piazza for a stay. Since he declined to issue one at first, there is little reason to believe he will issue one now, unless there was some defective motion practice originally. I am not aware of that being the case, so the state could ask for a stay from the appellate court or the state supreme court. The more couples that marry, the more awkward a stay will become. But, as we saw with Utah, a stay can still be issued and may likely be.

Arkansas-county-map3. Why are only certain counties issuing marriage licenses?

Several counties, including Pulaski County, where the first gay couple married, and Carroll County, in the far northwestern part of the state, started issuing marriage licenses as soon as they could after the decision came down on Friday night. But several county lawyers, including in Faulkner County just north of Little Rock, are arguing that Judge Piazza's ruling only applies to Pulaski because that's where he sits and that's his jurisdiction. Only a decision by the state supreme court, they argue, could bind all the counties. Other counties note that they simply don't have the proper paper work: all their marriage licenses say "husband" and "wife." The former argument has some merit; the latter does not.

***

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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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Comments

  1. "Let the wicked cease their troubling, let the weary be at rest."

    And the in-love be married, if they wanna be.

    Posted by: Job | May 12, 2014 2:49:27 PM


  2. As usual, Ari fudges the most interesting legal question: how can a state constitutional amendment be unconstitutional under the very state constitution of which it is a part? That the AK amendment is unconstitutional under the US Constitution is clear, and it is really no big shock to most people that a state court can apply the US Constitution to state law, guided by federal precedent. But what is puzzling is how the plaintiffs could argue that the AK marriage amendment is unconstitutional under the state constitution, of which the marriage amendment is a co-equal provision. The judge is unclear as to whether he was ruling on both the federal and state claim, or just the federal.

    How nice it would have been for Ari to have shared his views on this. But of course, that would have required some research. Actual work. Ari doesn't like to do much work for these columns. They are just a way for him to elevate his google profile to boost his prospects for a teaching slot at a better school. That is why we get pabulum like this or, worse, offensive posts taking up the cause of antigay bully Dharun Ravi.

    Posted by: Tyler | May 12, 2014 3:37:40 PM


  3. I'm not a lawyer and I don't live in Arkansas, so I must be totally qualified to comment as an expert on this...

    I wonder if some state constitutions are tiered in a way so that some parts can be modified by referendum, but the core section, defining basic rights, can't be changed without scrapping the whole constitution and starting over, via a constitutional convention or some other extraordinary means.

    I'm just speculating from a basis of general ignorance, of course.

    Posted by: tominsf | May 12, 2014 3:54:56 PM


  4. Good grief, Tyler, did Ari insult your mother yesterday? While this is clearly not his most informative posting, on balance, the stuff he writes is well grounded and helpful.

    Posted by: Joe in Ct | May 12, 2014 4:05:42 PM


  5. It could also be simply an equal access issue. If the AR constitutions has equal access in it, then this constitutional amendment could be banned because of that prior requirement.

    Posted by: Steven Jaeger | May 12, 2014 4:37:11 PM


  6. Lack of proper forms is no excuse! If it were, they could just make law by printing forms!

    Posted by: Gay Guy | May 12, 2014 9:17:18 PM


  7. @TYLER I read the judge's decision, and he did indeed speak clearly about the issues with the state constitution.

    He weighed the two conflicting clauses, one granting equal treatment to all Arkansans under the law, the other limiting marriage to a man and a woman. It was clear that they could not both be valid at the same time. And so the more general, fundamental clause, the one granting equal treatment under the law, trumped the narrower one aimed at denying equal treatment to a specific class of citizens.

    I've read all of the decisions as they've been handed down - they're all in normal, readable language, and they've been great.

    Posted by: Edgar Carpenter | May 12, 2014 9:39:18 PM


  8. I'll put aside the wacky notion that a state constitutional amendment can be held to violate the state constitution, and note simply that the "no legitimate purpose" language in Windsor was talking about no legitimate *federal* purpose. The Windsor decision made clear that it was rooted first and foremost in a State's right to define and regulate marriage within its borders, and explicitly restricted itself to "those lawful marriages" recognized by the State in question.

    The idea of using Windsor to violate the very rights of the States that Windsor affirmed, particularly when binding precedent (Baker, Bruining) forbids it, even more particularly when a stay is not issued, and even *more* particularly when stays have been issued in almost every other case (one by the Supreme Court), smacks not of squarely and fairly ruling on the law, but of judicial arrogance and activism.

    Shame on Judge Piazza (and Shelby, and Friedman).

    Posted by: TKinSC | May 12, 2014 10:04:19 PM


  9. Typo: "Bruining" should be (Citizens for Equal Protection v.) "Bruning"

    Posted by: TKinSC | May 12, 2014 10:06:36 PM


  10. Thanks Edgar Carpenter.

    Posted by: Tim | May 13, 2014 2:44:24 AM


  11. The FIRST couple married in Arkansas was NOT in Pulaski County as they did not start until Monday, May 12 in issuing marriage licenses.

    The first marriages took place in Eureka Springs in Carroll County on Saturday, May 10.

    My NEW husband and I are the SECOND male couple to be married in the State and to have our license legally filed that same day.

    Just a correction for your story.

    Posted by: Jay | May 13, 2014 10:43:27 AM


  12. @Tyler, looks like you don't like you don't like to do much work before commenting. This article is about Arkansas (AR), not Alaska (AK).

    Get your state abbreviations uh..., straight.

    Posted by: ron | May 13, 2014 11:20:48 AM


  13. The idea that Baker controls anything at this point is simply laughable. It was not a decision; it was a dismissal based on "lack of a substantial federal issue." The precedential scope of such a ruling is subject to change when circumstances change, and they have changed a great deal since 1972. Given Romer and Lawrence and given the past two years of marriage-related jurisprudence, federal level questions regarding marriage equality are most certainly "substantial." Any judge with a functioning brain cell can see that and all of the judges who have issued rulings subsequent to Windsor have done that very thing; some have stated this quite explicitly. Just as Bowers vs Hardwick carries no precedential weight in light of Lawrence, Baker is now meaningless in light of Windsor.

    About the only thing I'd do to amend Ari's post would be to note that, where AR county clerks have ceased issuing marriages to same-sex couples, it is on the basis of filings claiming that a subsidiary portion of Arkansas' marriage law was not addressed. This is beyond idiotic. Given that the premises of that particular statute have been tossed, the consequent parts are simply artifacts or should be viewed as such. After all, it took over 30 years for every state to remove bans on interracial marriage from their books; but that didn't mean those bans carried any weight at all once Loving was decided.

    Posted by: sfbob | May 13, 2014 1:36:30 PM


  14. It would seem to me that whether a state constitutional amendment can be contrary to the State constitution would very much be in contention. And since IANAL I will assume that the right of state judges to make Federal law determinations is valid, the question I have is if the Arkansas Supreme Court ruled that this case was improperly accepted into a state court, could that decision be appealed to a Federal court? Or would this decision just disappear? And would any appeals on this be about marriage or rather the question of whether a state constitutional amendment can violate the state constitution?

    Posted by: Charlie | May 13, 2014 4:01:53 PM


  15. Article 2 of the Arkansas Constitution comprises our Bill of Rights. These rights are inalienable. Amendment 83 is an attempt to narrow the equal protection and due process clauses of the state constitution. Even though Amendment 83 passed and is (was?) part of our constitution, there is case law barring any modification of the Bill of Rights without a Constitutional Convention. Prior to Amendment 83 being voted on, the ballot title was challenged in May v. Daniel. The Arkansas Supreme Court upheld the ballot title but stated they were not determining the constitutionality of the amendment itself and could not do so until it was passed and then challenged. It passed and is now being challenged, as one Justice predicted in the decision. If this Amendment did not touch upon protections under the Bill of Rights, it probably couldn't be successfully challenged. The voters did not knowingly vote to amend the unalienable rights contained in Article 2. On another point, in this state a constitutional question will go straight to the Arkansas Supreme Court. Because of the state constitutional issues in addition to federal ones, this is likely the only court that will ever hear an appeal in this case - unless we lose, of course. If we win on this appeal, a subsequent appellate court would be bound by the Arkansas Supreme Court's decision on the unconstitutionality under the Arkansas Constitution. By the way, this was a major consideration when I filed the lawsuit in state court rather than federal.

    Posted by: Cheryl Maples | May 14, 2014 4:41:46 AM


  16. Article 2 of the Arkansas Constitution comprises our Bill of Rights. These rights are inalienable. Amendment 83 is an attempt to narrow the equal protection and due process clauses of the state constitution. Even though Amendment 83 passed and is (was?) part of our constitution, there is case law barring any modification of the Bill of Rights without a Constitutional Convention. Prior to Amendment 83 being voted on, the ballot title was challenged in May v. Daniel. The Arkansas Supreme Court upheld the ballot title but stated they were not determining the constitutionality of the amendment itself and could not do so until it was passed and then challenged. It passed and is now being challenged, as one Justice predicted in the decision. If this Amendment did not touch upon protections under the Bill of Rights, it probably couldn't be successfully challenged. The voters did not knowingly vote to amend the unalienable rights contained in Article 2. On another point, in this state a constitutional question will go straight to the Arkansas Supreme Court. Because of the state constitutional issues in addition to federal ones, this is likely the only court that will ever hear an appeal in this case - unless we lose, of course. If we win on this appeal, a subsequent appellate court would be bound by the Arkansas Supreme Court's decision on the unconstitutionality under the Arkansas Constitution. By the way, this was a major consideration when I filed the lawsuit in state court rather than federal.

    Posted by: Cheryl Maples | May 14, 2014 4:41:46 AM


  17. Thank you, Cheryl Maples, for that additional, insider's insight. We're rooting for gay couples in Arkansas.

    Posted by: Ernie | May 14, 2014 5:18:52 AM


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