Arkansas judge strikes down state’s same-sex marriage ban

As expected, a state court judge in Arkansas struck down that state’s ban on same-sex marriage on Friday. Somewhat unexpected, the judge did not immediately enter a stay order for the appeal that the state will file on Monday, allowing same-sex couples to wed this weekend. Arkansas judge strikes down state’s same-sex marriage ban:

A state judge in Arkansas has struck down the state’s same-sex marriage ban as unconstitutional under the federal Constitution’s Equal Protection Clause.

The judge wrote:

Regardless of the level of review required, 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.

And responding to arguments that the ban was supported by a majority of voters:

Furthermore, the fact that Amendment 83 was popular with voters does not protect it from constitutional scrutiny as to federal rights. The very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. W.Ya. State Bd. of Educ. v. Barnette,319 U.S. 624,638 (1943). 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. Id. at 638.

Exactly right!

This is an important point because marriage equality opponents are now using Justice Anthony Kennedy’s recent opinion in the Michigan affirmative action case, Schuette v. Coalition to Defend Affirmative Action (12-682), against him in an incoherent and disingenuous argument:

“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it,” Kennedy wrote.

“Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues,” he added.

The Michigan affirmative action case is distinguishable from the line of marriage cases from the U.S. Supreme Court.

Affirmative action is but one remedial measure for admissions policies that have a disparate impact on minority admissions.  Presumably, once the discriminatory impact has been remedied, affirmative action is no longer necessary, and could no longer be required because it would then result in a racial preference. Affirmative action was always meant to be temporary in nature.

Marriage, however, is a fundamental constitutional right that may not be submitted to a vote, Loving v. Virginia, 388 U.S. 1 (1967):

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

Invidious discrimination against gays and lesbians no less offends “the principle of equality at the heart of the Fourteenth Amendment” than does invidious discrimination based upon race.

The opinion in Wright v. Arkansas can be read here.

Because the Court did not issue a stay with its order, the first same-sex couples have wed in Arkansas this weekend. The New York Times reports, In a First, Two Women Tie the Knot in Arkansas:

Shortly after being issued the state’s first same-sex marriage license, two women were married outside the Carroll County Courthouse in Eureka Springs on Saturday.

A deputy county clerk issued the license on Saturday morning to Kristin Seaton and Jennifer Rambo of Fort Smith — breaking a barrier that state voters put in place with a constitutional amendment 10 years ago.

Judge Chris Piazza of Circuit Court in Little Rock struck down the ban on Friday, saying there was no rational reason for it.

Judge Piazza did not issue a stay, so it was left to local clerks to decide whether to grant licenses. Most Arkansas courthouses are closed on Saturdays, but the one at Eureka Springs usually opens to issue marriage licenses.

Ms. Seaton, 27, and Ms. Rambo, 26, exchanged vows at an impromptu ceremony on a sidewalk outside the courthouse, officiated by a woman in a rainbow-colored dress.

The Fourth Circuit Court of Appeals will hear oral argument in the Virginia same-sex marriage case, Bostic v. Schaefer, on Tuesday. This is the case being litigated by American Foundation for Equal Rights (AFER) attorneys Ted Olson and David Boies, who successfully litigated against California’s Prop. 8 in the U.S. Supreme Court last year.

The Tenth Circuit Court of Appeals heard arguments in same-sex marriage cases from Utah and Oklahoma last month.