Court Strikes Down Ban on Same-Sex Marriage in Arkansas

"...The defendants offer several rationalizations for the disparate treatment of same-sex couples such as the basic premise of the referendum process, procreation, that denying marriage protections to same-sex couples and their families is justified in the name of protecting children, and continuity of the laws and tradition. None of these reasons provide a rational basis for adopting the amendment. The state defendants contend that this court must follow the last pronouncement by Arkansas voters, as long as the ban does not violate a fundamental right of the United States Constitution. They argue that the Arkansas Constitution can be amended by the people, and three out of four voters in the 2004 general election said that same-sex couples cannot marry. This position is unsuccessful from both a federal and state constitution perspective. Article 2, § 2 of the Arkansas Constitution guarantees Arkansans certain inherent and inalienable rights, including the enjoyment of life and liberty and the pursuit of happiness.

In this case, Article 2 § 2 was left intact by the voters, but in Amendment 83 they singled out same-sex couples for the purpose of disparate treatment. This is an unconstitutional attempt to narrow the definition of equality. The exclusion of a minority for no rational reason is a dangerous precedent. 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.Va. 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...

Procreation is not a prerequisite in Arkansas for a marriage license. Opposite-sex couples may choose not to have children or they may be infertile, and certainly we are beyond trying to protect the gene pool. A marriage license is a civil document and is not, nor can it be, based upon any particular faith. Same-sex couples are a morally disliked minority and the constitutional amendment to ban same-sex marriages is driven by animus rather than a rational basis. This violates the United States Constitution...

The strength of our nation is in our freedom which includes, among others, freedom of expression, freedom of religion, the right to marry, the right to bear arms, the right to be free of unreasonable searches and seizures, the right of privacy, the right of due process and equal protection, and the right to vote regardless of race or sex. The court is not unmindful of the criticism that judges should not be super legislators. However, the issue at hand is the fundamental right to marry being denied to an unpopular minority. Our judiciary has failed such groups in the past...

...The exclusion of same-sex couples from marriage for no rational basis violates the fundamental right to privacy and equal protection as described in Jegley and Cole, supra. The difference between opposite-sex and same-sex families is within the privacy of their homes.

THEREFORE, THIS COURT HEREBY FINDS the Arkansas constitutional and legislative ban on same-sex marriage through Act 144 of 1997 and Amendment 83 is unconstitutional.

It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.”

Judge Christopher Charles Piazza, Circuit Court of Pulaski County, Arkansas, Second Division, May 9, 2014.

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"There is no evidence that Defendants, the State or its citizens were harmed by the entry of the Court's original order or that they will be harmed by the clarifications contained within the Final Order and Rule 54(b) certification. However, the same cannot be said of the Plaintiffs and other same-sex couples who have not been afforded the same measure of human dignity, respect and recognition by this state as their similarly situated, opposite-sex counterparts. A stay would operate to further damage Arkansas families and deprive them of equal access to the rights associated with marriage status in this state. Weighing all factors applicable to analyzing whether a stay should be granted, Defendants' Motion for Immediate Stay is DENIED."

Judge Christopher Charles Piazza, Circuit Court of Pulaski County, Arkansas, Second Division, May 15, 2014.