Same-sex marriage in Arkansas

Same-sex marriage in Arkansas is legal under the U.S. Supreme Court decision in Obergefell v. Hodges, a landmark case in which same-sex marriage bans were struck down on June 26, 2015. Prior to that, same-sex marriage in Arkansas was briefly legal for a period beginning on May 9, 2014, as the result of a ruling by Sixth Judicial Circuit Judge Chris Piazza, striking down the state's constitutional and legislative ban on same-sex marriage as violating the Constitution of the United States. Approximately 541 same-sex couples received marriage licenses in several Arkansas counties before the Arkansas Supreme Court stayed his ruling pending appeal on May 16, 2014.

On November 25, 2014, a federal district court struck down Arkansas's ban on same-sex marriage. The judge stayed her ruling in Jernigan v. Crane pending appeal. After the Obergefell ruling, same-sex couples began obtaining marriage licenses in Arkansas beginning on June 26, 2015.[1] Initially Cleburne, Van Buren and Yell counties refused to issue marriage licenses to same-sex couples, but have since relented.[2][3]

Marriage

Statute

In 1997, the Arkansas General Assembly passed a ban on same-sex marriage and recognition of same-sex marriages performed out of state. The bill was signed into law by Governor Mike Huckabee.[4]

Constitution

On November 2, 2004, Arkansas voters approved Constitutional Amendment 3, a state initiated constitutional amendment that prohibited the recognition of same-sex marriage, as well as anything "identical or substantially similar to marital status" in the state of Arkansas.[5]

On June 27, 2013, a day after the U.S. Supreme Court ruling in United States v. Windsor, Arkansans for Equality submitted proposed language for a 2014 ballot measure that would repeal the state's constitutional ban on same-sex marriage.[6] On July 9, 2013, a different group, the Arkansas Initiative for Marriage Equality (AIME), which was formed in November 2012, submitted to the Arkansas Attorney General proposed language for the Arkansas Marriage Equality Amendment, a similar ballot measure but instead for the 2016 ballot.[7][lower-alpha 1] Attorney General Dustin McDaniel rejected the proposal for the 2014 ballot on July 12 and again on August 12, and the proposal for the 2016 ballot on September 18 and October 7, each time citing problems with the wording.[8][9][10][11] On September 19, he accepted the proposal for the 2014 ballot and on November 7,[12] he accepted the one for the 2016 ballot.[13] These two initiatives, however, were never put on the ballot.

Wright v. Arkansas

On July 2, 2013, eleven same-sex couples, some of whom had married in Iowa and some of whom were registered as domestic partners in Eureka Springs, filed a lawsuit in state court challenging the Arkansas Constitution's ban on same-sex marriage.[14] On May 9, 2014, Judge Chris Piazza struck down the same-sex marriage ban in the Arkansas Constitution and did not stay his ruling.[15] The Arkansas Supreme Court refused to issue a stay because Piazza's ruling was preliminary,[16] and some counties issued marriage licenses to same-sex couples. Judge Piazza clarified his order to enjoin enforcement of state statutes as well,[17][18] freeing county clerks from statutory restrictions on issuing licenses to same-sex couples. More counties issued licenses.[19]

On May 16, 2014, the state Supreme Court stayed Piazza's ruling pending appeal.[20] On October 7, the original plaintiffs filed a petition for summary judgment citing actions by the U.S. Supreme Court the day before and asking for expedited consideration, which the court granted. The court heard oral arguments on November 20.[21] In an unprecedented move, the Supreme Court did not rule before the close of its term in 2014. Instead, two new justices ended up joining the court after two justices had their terms end, causing the justices to question who should participate. The court never issued an opinion before Obergefell was decided, mooting Wright. On November 11, 2015, former Justice Donald Corbin, one of the original justices to hear the case, revealed that the Court had voted 5-2 to strike down the state's marriage ban in 2014. Corbin stated that he wrote a majority opinion finding that Arkansas' ban on same-sex marriage violates both the Arkansas and U.S. Constitutions. Corbin urged the other justices to issue the opinion before the end of his term in 2014, but for unstated reasons, the ruling was never issued. Instead, the court waited for the Supreme Court to decide another case on the same issue, and dismissed Wright as moot.[22]

Jernigan v. Crane

On July 15, 2013, two lesbian couples filed a federal same-sex marriage lawsuit, Jernigan v. Crane, in the Eastern District of Arkansas. One plaintiff couple sought a marriage license from Arkansas while another couple asked to have their New York marriage recognized. The lead named defendant was the Pulaski County Clerk, being sued in his official capacity for denying marriage licenses, with the other defendants being the state's Governor and Attorney General.[23] On January 31, 2014, the county and state defendants filed a motion to dismiss the suit.[24] On July 16, 2014, the plaintiffs filed a motion for summary judgment. Judge Kristine G. Baker heard oral argument on November 20.[25]

On November 25, she ruled for the plaintiffs and stayed her ruling pending appeal. Judge Baker found the state's ban on same-sex marriage violated the plaintiffs fundamental right to marry, requiring justification under "strict scrutiny" standard. She also ruled that a ban on same-sex marriage is a form of sex discrimination, which is therefore reviewed under the standard known as "heightened scrutiny". She rejected the plaintiffs' contention that the ban violated their right to travel and that it constituted discrimination on the basis of sexual orientation.[26] Attorney General McDaniel said that before deciding whether to appeal the decision he would confer with Leslie Rutledge, who is due to succeed him as attorney general in January 2015.[27] The state filed notice of appeal in the Eighth Circuit on December 23.[28]

Frazier-Henson v. Walther

On February 13, 2015, two same-sex couples in "window marriages", married during May 2014 while a state court's order enjoining enforcement of the state's same-sex marriage ban was in force, brought suit in state court seeking to require the state to recognize their marriages. They named three state officials as defendants. They asked the court to rule on behalf of all same-sex couples married in May.[29]

After Obergefell v. Hodges

On February 2, 2017, a resolution calling for a ban on same-sex marriage in the United States Constitution was introduced in the Arkansas Legislature. It was sponsored by 21 lawmakers, all of whom were Republicans. On February 20, the Arkansas Senate rejected the resolution, in a 17-7 vote in favor. The resolution needed 18 votes to pass and thus failed by one vote. However, that same day, the vote was expunged and the Senate revoted on it on February 28, where it passed 18-9.[30] On March 8, a House subcommittee recommended the Arkansas House of Representatives to approve the resolution. On March 14, however, the House rejected it, in a 29-41 vote. Of those who voted in favor, all 29 were Republicans. Of those who voted against, 20 were Democrats and 21 were Republicans.[31][32]

On March 6, 2017, Representative Stephen Meeks introduced a bill in the Legislature seeking to reenact the state's same-sex marriage ban. The bill would have thus been in violation of Obergefell v. Hodges and the U.S. Constitution.[33] The bill was withdrawn on March 14.[34][35]

Public opinion

Public opinion for same-sex marriage in Arkansas

Poll source	Date(s) administered	Sample size	Margin of error	% support	% opposition	% no opinion
Public Religion Research Institute	April 5-December 23, 2017	641	?	52%	38%	10%
University of Arkansas	October 12-22, 2017	801	± 3.5%	35%	57%	9%
American Values Atlas/Public Religion Research Institute	May 18, 2016-January 10, 2017	1,008	?	42%	50%	8%
University of Arkansas	October 18-27, 2016	800	± 3.5%	33%	57%	10%
American Values Atlas/Public Religion Research Institute	April 29, 2015-January 7, 2016	782	?	37%	57%	6%
University of Arkansas	October 19-25, 2015	800	± 3.5%	29%	63%	8%
Edison Research	November 4, 2014	?	?	26%	69%	5%
				26%	69%	5%
New York Times/CBS News/YouGov	September 20–October 1, 2014	1991 likely voters	± 2.6%	32%	54%	13%
New York Times/Kaiser Family Foundation	April 8–15, 2014	857 registered voters	?	35%	57%	8%
Public Policy Polling	April 25–27, 2014	840 registered voters	± 3.4%	27%	63%	10%
Greenberg Quinlan Rosner Research/Target Point Consulting	June 26 – 30, 2013	600 adults	± 4.9%	36%	55%	9%

Domestic partnership

Eureka Springs

The small town of Eureka Springs in Carroll County is the only incorporated place in Arkansas to allow domestic partnerships (since 2007) and healthcare coverage for domestic partners of city workers (since 2011).[36] On November 12, 2012, the Eureka Springs City Council endorsed marriage for same-sex couples, becoming the first city in Arkansas to do so.[37]

See also

• LGBT rights in Arkansas
• Same-sex marriage in the United States

References

1. "The Latest: Arkansas counties begin to issue same-sex marriage licenses". 4029 TV. June 26, 2015. Retrieved June 26, 2015.
2. Yell County Clerk To Issue Same-Sex Marriage Licenses With “Great Reluctance”/
3. Van Buren County clerk takes stand against same-sex marriage licenses, later relents
4. "HB1004". arkleg.state.ar.us. Retrieved May 10, 2014.
5. CNN: Election 2004 - Ballot Measures, accessed April 7, 2011.
6. "Arkansas group seeks to overturn state's ban on same-sex marriage". LGBTQ Nation. June 27, 2013.
7. "Arkansas Group Submits Proposal for Marriage Equality". Ozarks First. July 10, 2013. Archived from the original on May 13, 2014. Retrieved July 10, 2013.
8. "Ark. AG rejects language of proposed repeal of anti-gay marriage amendment". LGBTQ Nation. July 12, 2013.
9. "McDaniel rejects gay marriage ballot measure". ArkansasOnline. August 12, 2013.
10. "Ark. AG rejects wording on same-sex marriage ballot proposal — again". LGBTQ Nation. September 18, 2013.
11. "AG Rejects Wording of Gay Marriage Amendments". Edge. October 8, 2013.
12. "AG Accepts Ballot Title Proposal to Repeal Amendment Banning Same-Sex Marriage". Arkansas Matters. September 19, 2013. Archived from the original on April 27, 2014.
13. "Arkansas attorney general approves marriage equality ballot language". Equality On Trial. November 8, 2013.
14. Rodgers, Barndon (July 3, 2013). "Lawsuit filed to overturn Arkansas Gay Marriage ban". KNOE.com. Retrieved July 3, 2013.
15. "Arkansas judge strikes down state ban on same-sex marriage". Reuters. May 9, 2014. Retrieved May 9, 2014.
16. Per Curiam (May 14, 2014). "Opinion, Smith v. Wright, No. CV-14-414". Arkansas Supreme Court. Retrieved May 16, 2014.
17. Piazza, Circuit Judge (May 15, 2014). "Final Order, Wright v. Arkansas, No. 60CV-13-2662". Circuit Court of Arkansas, Pulaski County. Retrieved May 16, 2014.
18. "Gay marriage in Arkansas resumes". Politico. May 14, 2014. Retrieved May 15, 2014.
19. "Arkansas clerk issues 1st gay marriage license". The Boston Herald. May 10, 2014. Retrieved May 10, 2014.
20. "Gay marriage on hold in Arkansas following new ruling". Time. May 16, 2014. Retrieved May 17, 2014.
21. DeMillo, Andrew (November 20, 2014). "Arkansas Supreme Court takes up gay marriage case". Washington Times. Associated Press. Retrieved December 1, 2014.
22. "Ex-justice: State Supreme Court voted to strike ban on gay marriage, held ruling". Arkansas News. November 10, 2015.
23. "Federal lawsuit challenges Arkansas same-sex marriage ban". Arkansas Times. July 15, 2013.
24. "Docket Sheet, Jernigan v. Crane". U.S. E.D. Arkansas, Case No. 4:13-cv-410. Plainsite.org. Retrieved April 23, 2014.
25. Brantley, Max; Hardy, Benjamin (November 20, 2014). "Federal judge hears arguments on Arkansas same-sex marriage ban, decision still pending". Arkansas Times. Retrieved November 20, 2014.
26. Snow, Justin (November 25, 2014). "Federal judge strikes down Arkansas same-sex marriage ban". Metro Weekly. Retrieved November 25, 2014.
27. DeMillo, Andrew; Wagster Pettis, Emily (November 25, 2014). "Arkansas, Mississippi gay marriage bans overturned". The State (South Carolina). Associated Press. Archived from the original on December 4, 2014. Retrieved November 26, 2014.
28. "Notice of Appeal to 8th Circuit Court of Appeals". Scribd.com. Eighth Circuit Court of Appeals. Retrieved December 23, 2014.
29. "Complaint for Declarative and Injunctive Relief". Scribd.com. Pulaski County Circuit Court. February 13, 2015. Retrieved February 13, 2015.
30. Arkansas Senate wants to ban same-sex marriage and abortion in the U.S. Constitution
31. Arkansas House rejects anti-gay marriage, abortion measures
32. AR SJR7 | 2017 | 91st General Assembly
33. Proposed bill would ban same-sex marriage in Arkansas
34. AR HB2098 | 2017 | 91st General Assembly
35. Arkansas representative withdraws bill banning same-sex marriage
36. Bolcer, Julie. "Eureka Springs to Offer Partner Benefits". Advocate.com. Archived from the original on December 12, 2010. Retrieved November 2, 2013.
37. Brantley, Max (November 14, 2012). "Arkansas Times Blog - November 14, 2012". Arktimes.com. Retrieved November 2, 2013.

Notes

1. The text submitted reads:[7]

   (Popular Name)

   The Arkansas Marriage Equality Amendment

   (Ballot Title)

   An amendment to the Arkansas Constitution to provide that the right to marry shall not be abridged or denied on account of sex or sexual orientation - providing that no member of the clergy or religious organization shall be required to provide accommodations, advantages, facilities or privileges relating to the solemnization or celebration of marriage and that the refusal to do so shall not create any civil claim or cause of action.

   (Proposed Constitutional Amendment)

   Be it enacted by the people of the State of Arkansas:

   Section 1. The right to marry shall not be abridged or denied on account of sex or sexual orientation.

   Section 2. No member of the clergy or religious organization shall be required to provide accommodations, advantages, facilities or privileges related to the solemnization or celebration of marriage. The refusal to do so shall not create any civil claim or cause of action.

External links

• U.S. District Court, Jernigan v. Crane, November 25, 2014