If the current court challenge to Arkansas’ ban on same-sex marriage fails, the state will the first to buck a national trend that has seen similar laws struck down in state after state over the past 10 months.
Pulaski County Circuit Judge Chris Piazza said last week he will issue a ruling within two weeks in a lawsuit filed by same-sex couples who claim Amendment 83 to the Arkansas Constitution violates rights guaranteed under both the state and federal constitutions. The amendment, which voters approved in 2004, defines marriage as between a man and a woman.
Piazza is not bound by court rulings in other states, but he has a slew of them available to consider in the wake of the U.S. Supreme Court’s decision last June in U.S. v. Windsor.
In that decision, the high court struck down a section of the federal Defense of Marriage Act that defined marriage as between a man and a woman. The Windsor decision figured prominently in more than a dozen state and federal decisions that followed, including federal judges’ decisions striking down same-sex marriage bans in Utah, Oklahoma, Virginia, Texas and Michigan. Those decisions have been stayed pending appeals.
"The rulings around the country certainly have not been going our way," said Jerry Cox, president of the Christian conservative Family Council, which spearheaded the effort to get Arkansas’ marriage amendment on the ballot and passed.
Cox said that whatever happens in Arkansas, the watershed decision on the issue will come when one of the various challenges to a state marriage law reaches the U.S. Supreme Court. He said he cannot predict at this point how the Supreme Court — which split 5-4 on the Windsor decision — might rule, but he hopes the court will say that states can define marriage as they choose.
Cox said he would like to see judges "respect the wishes of the people who voted for these measures," noting that Amendment 83 passed with 75 percent of the vote.
"For a judge to look at three out of four Arkansas voters and say, ‘You’re opinion doesn’t matter; my opinion is what carries the day,’ I think is disrespectful to the voter and certainly disrespectful to our democratic process," he said.
Lawyers for the plaintiffs in Wright v. Arkansas, the lawsuit challenging Amendment 83, argued in a court hearing Thursday in Little Rock that the wishes of voters do not trump certain inalienable rights, including the rights of due process and equal protection.
"You can’t vote away people’s constitutional rights," lawyer Jack Wagoner said.
The plaintiffs’ lawyers also argued that the Supreme Court has already said states do not have free rein to define marriage as they wish. In its 1967 ruling in Loving v. Virginia, the court ruled that Virginia’s ban on interracial marriage was unconstitutional.
That ruling has been cited in several of the recent decisions striking down other states’ same-sex marriage bans.
During Thursday’s hearing, Piazza asked Assistant Attorney General Colin Jorgensen, who was arguing for the defendants, whether he believed Arkansas could amend its constitution to ban interracial marriage.
Jorgensen argued that Arkansas can amend its constitution however it wants, but he said he believed a ban on interracial marriage would not stand up to a challenge under the U.S. Constitution.