Legal Battles Brew Over Arkansas Same-Sex Marriage Ban; 8th Circuit Could Mean Uphill Battle

Jul 29, 2013

Becca and Tara Austin, two plaintiffs in the federal lawsuit regarding gay marriage.
Credit Karen Tricot Steward / KUAR

Legal battles are brewing over same-sex marriage in Arkansas.

The attorneys behind the complaints say they are energized by the U.S. Supreme Court decision this summer striking down part of the federal Defense of Marriage Act, also known as the Windsor decision. They also point to other legal developments that have occurred since Arkansas’s Amendment 83 – defining marriage as between one man and one woman – was enacted in 2004.  

Two lawsuits have been filed this month regarding same-sex marriage. The first was by attorney Cheryl Maples and the second by attorney Jack Wagnor. And while to most they seem to be two separate complaints, the attorneys behind them are consulting with one another on the cause. Maples points out she and Wagoner are old law school buddies.

“We go back a long way. I think the two of us might make a good team. We’ve got some things to figure out, but his heart’s in the right place and I know mine is,” says Maples.

“Our case was filed in federal court. Cheryl's was filed in state court. She's hoping that case goes up through the state channels and gets addressed by our Arkansas Supreme Court. I just considered the input of a lot of different people about whether to file a separate federal court lawsuit or not and we decided that's the way we needed to go,” says Wagoner.

Both attorneys want Arkansas's Amendment 83 declared unconstitutional, saying it violates equal protection and due process of law and therefore is unfair to homosexual couples.

“They are identifiable to the point that you can say they are being discriminated against. They’re having a fundamental right that is not being afforded them, and therefore it is against the equal protection of the constitution,” says Maples.

And Wagoner points out the Constitution says no person can be deprived of life, liberty, or property without due process of law.

“That was one of the things with the recent Windsor decision. Everybody's wondering whether the right to marry, to procreate, to have family implicate a liberty interest under the Constitution. Before they can say, 'You can't do these things,' there has to be a reason. And there's been debate whether the reason was going to have to be just a rational basis – which is almost any reason – or there was going to be some higher level of scrutiny applied to distinctions that singled out homosexual as opposed to heterosexual people.”

John DiPippa, Dean Emeritus and Professor of Law and Public Policy with the UALR Bowen School of Law, says that indeed, one of the arguments embedded in marriage equality cases is whether or not gays and lesbians qualify for this higher level of scrutiny when laws affect them. But, he notes, even the lowest level of scrutiny has to give a reason beyond moral disapproval.

“And that’s been the problem that states have run into in trying to defend their bans on gay marriage. They’ve had trouble articulating a reason other than moral disapproval. So they’ve been losing at the lowest level of judicial scrutiny and the courts haven’t even had to get to these higher levels,” says DiPippa.

Two of the plaintiffs in Wagoner’s lawsuit are Tara and Becca Austin of Little Rock. They have been in a committed relationship for 9 years and had a wedding ceremony with friends and loved ones in 2005, but they want to legally marry to have the security and protections they say only a legal marriage can provide. The couple has 4-year-old twins. Tara is the biological mother, and that means Becca is left with concerns.

“We do have paperwork that will provide some protection when it comes to making medical decisions for each other, but I have no legal rights to [our children] as a guardian because we can’t get legally married in Arkansas. So there’s just no way for me to have that. We would have to move out of the state to pursue that. So if something were to happen to Tara , I would actually have to file a petition to adopt these babies, and I’ve been a part of their life since before they were even conceived,” says Becca Austin.

Becca says she and Tara don’t want to move because they have family and friends here and Arkansas is home. They say they are private people, but want to tell their story so others understand where they are coming from.

“This is a chance for people beyond our work circles and our friend circles to get to know us and our family and to see how awesome our kids are. And to just see how similar we are to most other families in Arkansas.”

Another issue the couple has faced is that when the twins were born, Tara would have liked to have the option of staying home to raise them. This wasn’t possible since Becca could not put Tara or the twins on her insurance plan at work.

“She had to keep working full-time with most of her salary going to pay for daycare for our kids. And, you know, that’s tough. I think daycare is a great option, but we didn’t really have an option. That was what we had to do.”

The conservative group the Arkansas Family Council spearheaded the drive for Amendment 83. We wanted to talk to the lawyer behind the Amendment but were told he doesn’t do interviews because he works for a law firm and doesn’t feel comfortable having the entire firm’s name attached to the cause.

But Family Council President Jerry Cox did speak with us. He says if the amendment were legally suspect, it would not have gone unchallenged for nearly a decade. In November of 2004, the measure passed by 75% of the vote.

“It carried every voting precinct in Arkansas except maybe half a dozen precincts out of the 2,500 or so precincts. So it not only passed in every county, it passed in almost every voting place in the state,” says Cox.

Cox explains that after his group got approval from then-Attorney General Mike Beebe to put the amendment on the ballot, the American Civil Liberties Union filed a lawsuit saying the measure was flawed.

“The Arkansas Supreme Court then looked at that measure and ruled that it was sufficient for ballot. Now, they didn’t come out and say we guarantee that this is constitutional, but if the measure would have had serious flaws, I don’t believe Mike Beebe would have certified it and I don’t believe the Supreme Court would have allowed it to remain on the ballot.”

But DiPippa notes the review done on ballot measures doesn’t look at the legal merits of the case, but rather focuses on whether people will understand what it is they are voting on. And he adds…

“A lot has changed since 2004. The Arkansas Supreme Court has issued another opinion that seems strongly supportive of gay rights.”

DiPippa is referring to the 2006 decision saying Arkansas cannot ban gays and lesbians from becoming foster parents because there is no link between their sexual orientation and a child's well-being.

“Also, the United States Court has issued at least one, the Windsor decision, that's strongly supportive of gay rights. So the legal landscape has changed. So even if in 2004 you could glean some measure of the Arkansas Supreme Court's notion that this was constitutional, things have changed enough that that really can't have much weight right now.”

And this concept of a changing legal landscape is one that came up in the U.S. Supreme Court ruling. Justice Kennedy talked about an evolving understanding of equality. That the Constitution is not frozen and conceptions of liberty and equality change over time. He noted people's ideas about gays and lesbians have been changing over the decade.

To which Cox says:

“If public opinion is evolving, as some people say it is, then they should bring the measure before the voters.”

And one group is trying to do just that. The Arkansas Initiative for Marriage Equality has submitted a proposed petition that would put a gay-marriage ballot question before voters in 2016. The attorney general rejected the language of that measure, saying it was ambiguous in a number of places and would need to be reworked.

But bringing these types of measures before voters raises another issue. To what extent should the majority be able to dictate to minority?

DiPippa says the structure of the federal Constitution, which most state constitutions are modeled after, tries to strike a balance between allowing the majority to govern and still protecting the rights of the minority.

“And so in a case like this, what courts will do is ask, ‘Is there any reason the state has to pass this law? And if there’s a reason, we ought not to interfere with the will of majority.’ And that’s why it’s so important for the state to justify the law other than moral disapproval because if all the state had to do is say ‘Well, we can outlaw this practice because most of our people think it’s a sin,’ then you really are using the tyranny of the majority to run over individual rights,” says DiPippa.

If the two lawsuits end up making their way to the 8th Circuit Court of Appeals, DiPippa notes it will be somewhat of an uphill battle given legal precedent.

“The 8th Circuit Court of Appeals has already upheld a gay marriage ban coming out of Nebraska, so it's a harder case to win in the 8th Circuit just because you have to convince the 8th Circuit Court of Appeals that they need to overturn their former decision and that's never an easy thing to do.”

So, DiPippa says, the argument has to convince the court the former decision was wrong in light of the new decision the U.S. Supreme Court issued in June.

“Most legal scholars think that the federal case really does spell the beginning of the end for states like Arkansas and Amendment 83.”

But DiPippa predicts that at least the lower federal courts at the trial level will uphold Arkansas’s Amendment 83 because of the 8th Circuit precedent.

“I’m not convinced that the 8th Circuit is ready to change its mind yet. And I’m not convinced the Windsor is a slam dunk to overturn the Nebraska law. Now, the Supreme Court of the United States likes to take cases when there’s a split among the circuits. So if I’m right about the 8th Circuit upholding Amendment 83, I also think that there’s other circuits, like the 9th Circuit for example, that are going to strike down same-sex marriage amendments.”

DiPippa says then we’ll see one federal circuit going one way and the other going another way… and that this ultimately makes it more likely that the Supreme Court is going to take up the issue sooner rather than later.