by Max Brantley
A second lawsuit was filed today — this one in federal court — challenging the state's constitutional and statutory bans on same-sex marriage. A state court lawsuit was filed last week by a different lawyer with different plaintiffs.
Today's lawsuit was filed by Jack Wagoner, a Little Rock lawyer, on behalf of two female Little Rock couples who were denied marriage licenses when they applied for them last week at the office of Pulaski County Clerk Larry Crane. A male couple, already married, are also plaintiffs. The suit may be amended to add additional plaintiffs. The case was assigned to Judge Leon Holmes.
The suit names Crane, Gov. Mike Beebe and Attorney General Dustin McDaniel. Beebe has long said he doesn't favor marriage between people of the same sex. McDaniel has been noticeably friendlier to the interests of gay people, including personal opposition to the state initiated act — later ruled unconstitutional — that prevented adoption and foster parenting by gay couples. His office responded to my question about the suit:
We are reviewing the lawsuit and analyzing the propriety of the Attorney General as a party. We do not have any additional comment at this time.
I wrote earlier about Wagoner's interest in filing such a case on a pro bono basis.
The lawsuit says the Arkansas law and constitution violate the equal rights and due process provisions of the U.S. Constitution and asks that the state be enjoined from enforcement. It harkens back to another great civil rights issue. Lawsuits ended the enforcement of racially discriminatory language in Arkansas law that nonetheless remained on the books for decades after.
The lawsuit said plaintiffs Becca and Tara Austin and Rita and Pam Jernigan have long-term partnerships and want to marry because of their love and commitment to each other, but also to provide the security that only legal marriage can provide. Becca and Tara have twin children. Tara is the biological mother. Becca is not considered a parent under Arkansas law, so is unable to have time off for family leave and is unable to include the children on her employer's health insurance, among other obstacles to full parenthood. Rita Jernigan notes that, as a retired teacher, she is unable to treat Pam as other married retirees would and have her receive spouse benefits from the retirement system. That will be so even after Pam and Rita marry this fall as planned.
Randy and Garry Eddy-McCain, the other plaintiffs were married in New York, but treated as "strangers" under Arkansas law, the suit says.
Wagoner wrote of all plaintiffs:
The situations faced by these couples are similar to those faced by thousands of same-sex coules in the state of Arkansa who are being denied the basic rights that are afforded by marriage. They have cared for one another, supported each other, sacrificed for each other and made plans for the future with each other. They have gone through hardships, illness, joy and success during the course of their relationships. As with other couples that have made a lifetime commitment to each other the plaintiff couples are spouses in every sense, except that Arkansas law says they cannot marry and, even if they are legally married under the laws of another state, Arkansas law says that their marriates are not honored here.
Wagoner's suit relies heavily on Justice Anthony Kennedy's opinion in the ruling striking down a portion of the federal Defense of Marriage Act. His opinion said that the law "demeans the couple, whose moral and sexual choices the Constitution protects." In dissent, Justice Antonin Scalia predicted that such language was a road map to direct challenges of same-sex marriage bans, a decision the court avoided on jurisdictional grounds in allowing invalidation of a marriage ban in California.
Some groups that have been in the forefront of gay rights have begun challenges in other states, but have purposely held back on states, such as Arkansas, that are in judicial circuits where past precedents suggest an uphill legal climb. As I noted earlier, the 8th U.S. Circuit rejected a challenge of the Nebraska same-sex marriage ban in 2006, but it had no Supreme Court, 9th Circuit or other lower federal and state court decisions on which to draw guidance, not to mention legalization of marriage in 13 states, with more on the way.
The lawsuit addresses some of the arguments used by proponents of the ban when it was adopted. It challenges the notion that somehow crime rates would be different among families headed by same-sex couples and says there's no evidence that same-sex marriage does harm to "traditional" marriage of a man and woman. Amendment 83 was merely a ruse to harm an unpopular group, Wagoner argues. He cited expert testimony developed in other cases that blew up the notion that some harm came with allowing people of the same sex to marry. In states where it has become legal, no ill effects have been observed, he said.
I asked Wagoner why he filed a separate suit, with one already pending in state court. He said that the earlier suit relies heavily on the equal rights portion of the Arkansas Constitution, which might have been rendered moot as to marriage by Amendment 83. He said that issue won't arise in a direct challenge under the U.S. Constitution, by which the case on DOMA was decided.
"That is the direct route and the real meat of this issue - whether discrimination against same-sex couples is permissible under the federal Constitution. Windsor [the DOMA case] arguably means that it is not."