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Attorneys present arguments in challenge to same-sex marriage ban


LITTLE ROCK — Attorneys for the state and for a group challenging Arkansas’ same-sex marriage ban have filed court briefs arguing over whether the ban meets constitutional muster.

Several same-sex couples are the plaintiffs in a lawsuit filed in July in Pulaski County Circuit Court alleging that Arkansas’ constitutional amendment defining marriage as between a man and a woman violates their rights to due process equal protection under the federal and state constitutions.

Lawyers for the state have filed a motion to dismiss the lawsuit. The plaintiffs have filed a motion for a preliminary injunction lifting the ban until the case is resolved. A hearing on motions is set for April 17 in U.S. District Court in Little Rock.

Assistant Attorney General Colin Jorgensen argued in a brief filed Wednesdaythat the marriage amendment, Amendment 83, is a part of the state constitution and that if it conflicts with anything else in the constitution, “the amendment, being the more recent expression of the will of the people, prevails.”

Jorgensen also cited rulings from various state courts that found there was no fundamental right to same-sex marriage. He argued that U.S. Supreme Court decisions affirming the right to marry have always pertained to opposite-sex marriage.

“There is no fundamental due process right to a state marriage certificate allowing two people of the same sex to marry,” Jorgensen said in the state’s brief.

David Hogue, attorney for Faulkner County Clerk Melinda Reynolds, one of the defendants in the suit, also filed a brief arguing, among other things, that homosexuality is not an “immutable characteristic” equivalent to skin color or gender.

“Empirical evidence leaves no doubt that homosexual orientation can shift over time and in fact does so for a significant number of individuals,” Hogue said in his brief.

Angela Mann and Cheryl Maples, attorney for the plaintiffs, argued in their brief that the motivation for the amendment was an “anti-gay animus.” They said the state has no reasonable basis for the ban.

“Defendants can state no ‘properly cognizable’ basis for fearing that the marriages of gay and lesbian couples will have any detrimental effect on marriage or society as a whole,” the plaintiffs’ attorneys said in their brief.

“Fears that treating same-sex couples equally will be harmful to marriage or society are based on prejudice. Such fears have no factual basis and lack any ‘footing in the realities’ of the existing structures of marriage and family law,” they argued.

Several same-sex couples also filed a lawsuit in July in U.S. District Court in Little Rock challenging the state’s same-sex marriage ban.

The state and federal lawsuits were filed within days of a U.S. Supreme Court ruling that struck down the federal Defense of Marriage Act and made same-sex married couples eligible for federal benefits. Since that ruling, federal judges in Kentucky, Ohio, Oklahoma, Texas, Utah and Virginia have struck down state same-sex marriage bans.