by Max Brantley
Jack Wagoner, a Little Rock lawyer, posted this comment on his Facebook page, and soon someone else had reposted to, among others, the page of Arkansans for Equality, which backs an amendment campaign to repeal the ban on same-sex marriage and civil unions in Arkansas.
"If you're gay and live in Pulaski County, Arkansas, go to the Circuit Clerk's office and tell them you want a marriage license. If they won't give you one, call me. You'll have a free lawyer." - Jack Wagoner - 501-663-5225
What does it mean? It means there's at least one lawyer who believes deeply enough in equality that he's considering mounting a legal effort that will inevitably force courts to tee up the essential question that was avoided in this week's important U.S. Supreme Court decisions — is it a denial of equal rights for states to prevent people of the same sex from marrying? The Court has been down this road before in the case of state bans on interracial marriage. Had the courts waited for every state to end racial discrimination, racial discrimination never would have ended. Years after racial discrimination laws had been invalidated by the Supreme Court, they remained on the books in Arkansas and other states. Arkansas barely endorsed the symbolic amendment to remove ours in 1992.
Back to Jack Wagoner. I know Jack and respect him. (And I feel the same about his father, a physician who provided compassionate care in my mother's final difficult years.) Jack is no crank. He was a law clerk for my wife years ago. He's a successful lawyer, with experience in product liability, negligence and domestic litigation. I asked him about his Facebook post (not an ad as some who've read it saw it). He replied in a manner that friends might reply, so forgive the colorful language. Said Wagoner, married and a father of twins:
There are several reasons I am willing to give my time to attempting to get gay people on equal footing with heterosexual people under the law:
1. I missed the 60s and the black people are already pretty well taken care of;
2. It defies common sense to think that being gay is a "choice." People are just gay or they're not. So we should not discriminate against them;
3. I hate the religious right, and anything that gets under their skin is great sport to me, and;
4. There are times when my job gives me an opportunity to make a difference somewhere. I feel good about championing causes of the oppressed, the underdog, and the people that are being fucked with by the majority because they are different or have different ideas. The essence of freedom is the ability to live your life as you see fit and believe what you want rather than being forced to do whatever the majority dictates. People need to be left alone unless they're really hurting someone. There is no evidence that gay marriage or gay parenting hurts anyone.
Jack and I talked a little more about this. He was moved by the case of Edie Windsor, the New York widow who brought the DOMA challenge because of the financial penalties imposed on her by unequal status under the law when her same-sex spouse died. She was discouraged from suing initially, including by some civil libertarians. The time wasn't right, some said. Often in hot controversies such as this, the ACLU and others would like to control the pace of litigation and strategically consider public opinion, state action and all the rest. Already, some nationally who favor same-sex marriage think a petition drive in Arkansas today is a bad idea strategically. Some are more impatient for equality. A debate along these lines is also underway currently on moving ahead on a lawsuit against the 20-week abortion ban in Arkansas. Is the time right? How is the time ever wrong when justice and the Constitution are already defied?
Jack is already involved in what could be an important case in Arkansas for gay parents.
The case, now in final preparation for the Arkansas Supreme Court, involves a divorced father, John Moix. He is appealing an order preventing overnight visitations by his 12-year-old son as long as his same-sex domestic partner (of 10 years) is present. It is the law to discourage visitation with cohabiting parents. But divorced parents routinely cohabit unlawfully and the courts have even allowed visitation in homes of cohabitants on occasion when harm might have come to the child from an alternative visitation. But same-sex couples are prevented by law and Constitution in Arkansas from marrying. The question on appeal: Does a prohibition on cohabitation, in the absence of evidence of harm to a child, amount to a violation of privacy and equal protection, particularly in the context of same-sex couples?
Wagoner, cooperating with the ACLU, is arguing that, while the ex-wife will contend homosexuality is not an issue in her opposition to overnight visitation, evidence shows otherwise. The ex-wife, Libby Stell, has married a fundamentalist pastor, for example, and, according to Wagoner's brief, Moix has been told he will burn in "the lake of fire" for his sexual orientation. UPDATE: An attorney for Stell has written to say that she and her husband "adamantly deny making any such comment."
Judge Mackie Pierce, after extensive testimony, denied Moix's request for overnight visitation. He noted that unmarried cohabitation is not approved by the state generally and, even though Moix can't do anything to "cure" his situation, the court was powerless to do anything about the " fact that Arkansas law does not allow them to marry. ... The court feels required to follow public policy." A full record with character witnesses and expert testimony was compiled to prepare the case for appeal.
If you have time for some reading, it's interesting stuff.
Here's Wagoner's brief and the abstract of the case.
A reply brief from Wagoner is yet to come.
CLARIFICATION: My original post said incorrectly that Wagoner posted his comment to the Equality Facebook page. He posted to its own. Others reposted it elsewhere, including on the Equality page.