by Max Brantley
Cheryl Maples, the lawyer for a group of plaintiffs challenging the state law and constitutional prohibitions on same-sex marriage, has filed a motion seeking an injuction to stop enforcement of the law. She argues irreparable harm to the couples, all legally married elsewhere, otherwise.
In each case, Maples argue the families are:
currently denied hundreds, if not thousands, of state, federal, employment, insurance, etc., privileges and benefits permitted and enjoyed by opposite-sex married couples in the State of Arkansas, solely because they are a same-sex couple.
More specifically she argues in several cases that couples have children, but only one parent is named on the birth certificate and, in the event of that parent's death, the child would be in legal limbo.
In the event of the death or incapacity of his birth mother, T. B. W.’s other parent would have no legal right to his care, custody and control. That only his birth mother has the legal right to seek his medical care and other rights and privileges.
That the children of opposite-sex couples, even those couples that are not married, are legally permitted to have both their parents listed on their birth certificates and for their parents to assert a legal right to their care, custody, control, needs, rights and privileges through the Arkansas courts by divorce or paternity action.
Maples said one plaintiff couple is expecting a second child and says a temporary restraining order and preliminary injunction "specifically Ordering that the names of both of this unborn child’s parents be included on its birth certificate is necessary to prevent damages and injuries to another child."
Maples' argument rests on a "full faith and credit" challenge. That is, Arkansas law has always held that the validity of a marrige is determined by the state or country where the marriage was performed. For example, Arkansas doesn't permit first cousins to marry, but cousins married legally elsewhere are treated as married in Arkansas courts. She argues that those married legally in the 13 states, various Indian tribes and many foreign countries should be afforded protection of marriage law in Arkansas. She notes that seven other states also permit civil unions, with rights similar to marriage, if not the label. It is unconstitutional, she argues, for Arkansas to deny legally married couples the rights they enjoy in another state.
"Families deserve the highest level of protection under the First Amendment right of association," Maples said. She added, "Separate Plaintiffs have suffered and continue to suffer denial of constitutional rights, social stigma, emotional and psychological damage and financial losses as a direct result of Arkansas law."
Maples cites the recent U.S. Supreme Court ruling in the Windsor case, in which a legally married couple was denied equal treatment under the tax law because of the federal Defense of Marriage Act, which the decision invalidated in part. For example, it said:
The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472... And it humiliates . . . children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
The request for a temporary restraining order — which will also require Maples to prove likely success on the merits of her legal argument — means that there likely will be some court action soon in the case. Her case is before Circuit Judge Jay Moody, who, it so happens, has been nominated for a seat on the federal district court bench.
A separate legal action challenging the Arkansas ban on marriage equality is pending in federal court.