by Max Brantley
Here's the lawsuit. It was filed against various state officials and several county clerks, who are prohibited by statute from issuing licenses to same-sex couples.
It was filed by attorney Cheryl Maples of Searcy on behalf of Kendall and Julia Wright, also on behalf of their children, and 10 other couples. It argues that the ban is a violation of the equal protection clause of the U.S. Constitution and the due process clause of the Arkansas Constitution. The plaintiffs include eight other lesbian and two gay couples. Three of the couples were married in other states. The others were denied marriage license applications in various Central Arkanas counties.
Bans on marriage haven't been challenged directly in Arkansas, but a challenge in federal court in Nebraska of that state's constitutional ban won at the district court level. That decision was overturned by the 8th U.S. Circuit Court of Appeals in 2006. More recently, the U.S. Supreme Court has struck down the federal Defense of Marriage Act, but in allowing to stand a ruling invalidating a California same-sex marriage ban, the Supreme Court ruled on procedural grounds. That set aside a 9th Circuit U.S. Court of Appeals ruling that upheld a finding that the ban was unconstitutional.
The suit also seeks a declaration that Arkansas violates the full faith and credit clause of the U.S. Constitution by not extending rights — same-sex marriage and attendant benefits — that are granted in other states.
Lead plaintiffs Kendall and Julia Wright are a lesbian couple with a long-term relationship who married this year in Iowa. They said their children are deprived of legitimacy in Arkansas and they are deprived of other contractual benefits because of Arkansas law and Constitution.
The suit claims, as said the landmark Loving lawsuit that challenged interracial marriage bans, that marriage is one of the "basic civil rights of man." It asks that Arkansas statute and constitutional bars be declared unconstitutional. In arguing that they face irreparable harm, the plaintiffs said:
Plaintiffs' continuing and increasing injuries include, but are not limited to, the deprivation of fundamental rights Constitutionally guaranteed, severe humiliation, stigma, emotional distress, psychological harm, financial loss, pain and suffering, all caused by their denial of the right to be married to the person of their choice and have their familial relationship accorded the same dignity and respect as that received by heterosexual families.
Participants in this suit report, as others have, receiving discouragement from the ACLU about filing the suit at this time. I'd been talking to another Little Rock lawyer who's been interested in bringing this action. He has been a cooperating ACLU attorney and similarly reported discouragement by the ACLU after I quoted him here. He's still studying the situation and has been talking to a number of potential plaintiffs. The ACLU and other civil liberties group like to control timing and strategy of such actions. My own thought is that when you ain't got nothing, you got nothing to lose. Lose this lawsuit and the losers are no worse off than where they started, but they might have raised still more awareness about and sympathy for the fundamental unfairness of their positions.
I'd bet this case winds up in federal court before it's over. And that significant assistance, legal and otherwise, will join the battle one way or the other.