LITTLE ROCK — A Pulaski County circuit judge said Thursday he will issue a ruling within two weeks in a challenge to Arkansas’ ban on same-sex marriage.
“I’ve already got an idea where I’m going, but I’m still drifting,” Judge Chris Piazza said after a three-hour hearing on motions for summary judgment in the case.
Twenty-one same-sex Arkansas couples — and one woman seeking a divorce from a woman she married in New York — allege in a lawsuit that Amendment 83 to the Arkansas Constitution, which was approved by voters in 2004 and defines marriage as between one man and one woman, violates rights guaranteed under both the state and federal constitutions.
The state attorney general’s office maintains that banning same-sex marriage preserves state interests and does not violate any fundamental rights.
Jack Wagoner, one of the plaintiffs’ attorneys, said during Thursday’s hearing that since the U.S. Supreme Court struck down a federal definition of marriage as between one man and one woman in the U.S. v. Windsor case last year, 18 federal and state court decisions have been issued addressing the issue of equality based on sexual orientation, and all have been decided in favor of equality.
“I love coming to court when the facts are all on my side,” Wagoner said.
Assistant Attorney Colin Jorgensen argued that in the Windsor ruling, the Supreme Court addressed federal law only and did not block states from defining marriage as they wish.
“The federal government has no interest in regulating marriage,” Jorgensen said. “The federal government has no business regulating marriage. It’s up to the states.”
Jorgensen also argued that because Amendment 83 is part of the Arkansas Constitution, it cannot violate the Arkansas Constitution. He said the state does not concede that there is any conflict between the amendment and the state constitution’s guarantees of due process and equal protection, but if there is a conflict, he said, the more recent change to the constitution should be given more weight.
Cheryl Maples, another of the plaintiffs’ attorneys, argued that both the state and federal constitutions guarantee rights that cannot be taken away by popular vote. She said the only basis for Amendment 83 and related state statutes is “pure animus” against gays.
“There is no rational basis, no compelling reason why these laws exist,” she said.
Jorgensen cited several court rulings that upheld same-sex marriage bans, including the 2006 decision in Citizens for Equal Protection v. Bruning, in which the 8th Circuit Court of Appeals in St . Louis upheld Nebraska’s voter-approved constitutional amendment defining marriage as between one man and one woman.
Wagoner and Maples said the rulings Jorgensen cited came before the Windsor ruling.
“Mr. Jorgensen is living in a pre-Windsor world,” Wagoner said.
Maples became emotional as she told the judge that her daughter is a lesbian and said that if she falls in love and wants to get married, “I want her to have that right.”
Jason Owens, attorney for several county clerks who are named as defendants in the suit, asked Piazza to stay his decision if he rules in favor of the plaintiffs, noting that recent rulings overturning same-sex marriage bans in other states are all under stays while the rulings are appealed.
Wagoner told reporters later a stay would be likely if the plaintiffs prevail, since the suit only targets clerks in certain counties and since an appeal to the Arkansas Supreme Court is expected.
David Fuqua, attorney for Pulaski County Circuit and Court Clerk Larry Crane, also a defendant in the case, asked Piazza to rule only on the state constitutional claims if he rules for the plaintiffs.
Wagoner said Fuqua was trying to avoid the possibility of having to pay the attorneys’ fees of the plaintiffs. He asked the judge to rule on both the state and federal constitutional arguments so questions would not be left unanswered that could lead to another lawsuit.
Several of the plaintiffs were in the courtroom Thursday, including Greg Bruce and William Smith of Little Rock, who have arranged to have a child via surrogate mother. They said after the hearing that under current Arkansas law, Bruce, the biological father, will be named on the birth certificate but Smith will not — although when a heterosexual couple uses a surrogate mother, both parents’ names go on the birth certificate.
“It protects his right as the father of the child for health care issues and potential school issues” to be on the birth certificate, Bruce said.
“It’s a part of both of us. I feel like I should be on there as a parent,” Smith said.
Bruce said he is confident the case will be decided ultimately in the plaintiffs’ favor.
“That’s the way the nation is turning. Ideas have changed,” he said.