Arkansas’s State Supreme Court has yet to issue a decision on the constitutionality of the state’s ban against same-sex marriage. While the state's highest court typically issues rulings on Thursdays, it is unclear when this decision will be made.
U.S. Federal Judge Kristine Baker ruled last month the U.S. Constitution does include a fundamental right for same-sex couples. She stayed her decision pending a possible appeal to the 8th Circuit Court.
According to William H. Bowen School of Law Professor Joshua Silverstein, the State Supreme Court will consider where there is a due process right to same-sex marriage under the 14th Amendment in both federal and state Constitutions.
“They will also be considering whether the same-sex marriage ban violates other provisions of the state constitution, but the main issue is whether the same-sex marriage ban violates the federal Constitution,” said Silverstein.
Silverstein said while the majority of federal courts and State Supreme Courts have found such a right to same-sex marriage in the U.S. Constitution, Arkansas's highest court could disagree.
University of Arkansas at Fayetteville law professor Danielle Weatherby said state justices showed a divided focus in their questions during oral arguments.
"There's a real divide about whether the people have the right to speak on this issue and declare marriage as between one man and one woman. The people of Arkansas clearly spoke on that issue and did memorialize the issue as between one man and one woman," said Weatherby.
Silverstein said he believes it is not a strong legal argument that a state constitutional amendment is unconstitutional. A decision from the State Supreme Court is likely before January.