The U.S. Eighth Circuit Court of Appeals has delayed a decision on the constitutionality of Arkansas’ ban on same-sex marriage pending the outcome of a case before the U.S. Supreme Court. The federal high court on Tuesday heard arguments on the issue, and could issue an opinion by late June.
Approved by Arkansas voters in 2004, Amendment 83 banned gay marriage in the state.
In May 2014, Pulaski County Circuit Judge Chris Piazza ruled that Arkansas' ban on gay marriage was unconstitutional. Licenses were issued briefly in some counties across the state, but a stay was eventually issued halting same sex marriages in Arkansas while the case goes through the appeals process.
Following that, U.S. District Judge Kristine Baker ruled in November that the ban was unconstitutional, but stayed her ruling allowing for an appeal.
“The Court declares that Arkansas’s marriage laws — Amendment 83 of the Arkansas Constitution and Arkansas Code Annotated §§ 9-11-107, 9-11-109, and 9-11-208 — violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by precluding same-sex couples from exercising their fundamental right to marry in Arkansas, by not recognizing valid same-sex marriages from other states, and by discriminating on the basis of gender,” Baker wrote in her 45-page decision.
Then Arkansas Attorney General Dustin McDaniel said Dec. 23 he would appeal a federal judge’s ruling that struck down Amendment 83, the state’s constitutional ban on same-sex marriage.
Arkansas Attorney General Leslie Rutledge said Wednesday (April 29) she was disappointed that the Eighth Circuit would delay a scheduled May 12 hearing in Omaha.
“I am disappointed by the Eighth Circuit’s decision not to hold oral argument in Arkansas's appeal in defense of the constitutionality of Arkansas Amendment 83. This case is important to the people of Arkansas, and the Eighth Circuit has the authority to rule regardless of what is occurring before the U.S. Supreme Court,” Rutledge said in a statement.
Gov. Asa Hutchinson recently appointed three special justices to the state’s Supreme Court to hear the related case involving same-sex marriage in Arkansas. Hutchinson named Brett Watson of Searcy, as Special Associate Justice to the Arkansas Supreme Court to replace Chief Justice Jim Hannah, who has disqualified himself from the case.
Judge Betty Dickey of Heber Springs will replace Justice Rhonda Wood and Judge Shawn Womack of Mountain Home will replace Justice Paul Danielson. Wood and Danielson also recused from the case.
U.S. SUPREME COURT HEARING
A more than two hour hearing was held Tuesday (April 28) by the U.S. Supreme Court Justices on what is titled the “Obergefell v. Hodges” case. It is a combination of challenges to gay marriage bans in Kentucky, Michigan, Ohio and Tennessee.
Those opposing the bans won their case in a lower court. However, a myriad of appeals court decisions have pushed the issue up to the U.S. Supreme Court.
According to a report from NPR, the Supreme Court has often ruled that marriage is a fundamental right a state cannot restrict without real justification. It has said that prisoners have the right to marry, and so do people too poor to make child support payments. In 1967, the court struck down state bans on interracial marriage.
John Bursch, the lawyer arguing on behalf of the states to retain gay marriage bans, said promoting families is a “legitimate interest” in Michigan’s right to ban gay marriage.
"Michigan has a legitimate interest in encouraging opposite-sex couples to enter into permanent, exclusive unions within which to have and raise children," Bursch argued. "Having that diversity of both the mother and a father can be a good thing for children.”
Justice Ruth Bader Ginsburg, 82, asked Bursch the following question after his argument that heterosexual marriage was to ensure a stable relationship for procreation.
“Suppose a couple, 70-year-old couple, comes in and they want to get married? … You don’t have to ask them any questions. You know they are not going to have any children.”
She also said changing the definition does nothing to weaken the “rights” of heterosexual marriage.
“All of the incentives, all of the benefits that marriage affords would still be available,” Ginsburg said. “So you’re not taking away anything from heterosexual couples. They would have the very same incentive to marry, all the benefits that come with marriage that they do now.”
Justice Anthony Kennedy, who is considered a moderate and possible swing vote on the issue, said during the hearing he was not sure the issue was for the high court to decide.
“This definition has been with us for millennia, and I think it's very difficult for this court to say, ‘Oh well, we know better,’" Kennedy said according to a Reuters report.
According to Reuters, four justices were favorable toward ruling against bans on gay marriage, with Chief Justice John Roberts and Justice Antonin Scalia appearing to support a state’s right to define marriage.
Gay marriage is legal in 36 states.