PLAINTIFFS WHO'VE SEEN STONEWALL AND VIETNAM: Still fighting for their rights are Robert Loyd and John Schenck (2013 file photo).
At the conclusion of today's emotional three-hour hearing on a motion for summary judgment in a lawsuit challenging Arkansas's ban on same-sex marriage, Circuit Judge Chris Piazza
said he was still "drifting" on the issue, but thinks he knows how he will rule, and will in a couple of weeks.
the attorney for the 21 couples who are plaintiffs in the suit, received applause from the gallery after her statement to the judge in which she asked couples in attendance to stand as she detailed the trials and tribulations of a same-sex partnership. She said her daughter, who is not a party to the suit, is a lesbian and she hopes she will be able to marry the partner of her choice one day.
, Maples' co-counsel, got choked up while he talked about the Loving v. Virginia lawsuit in 1967 that overturned laws against interracial marriage. Wagoner also talked about judicial findings in other states in where courts have found same-sex marriage bans unconstitutional.
The courtroom was so full that Piazza opened up the jury box for those standing in the back.
Arkansas's ban dates to 2004. David Koon will update this when he returns from the courthouse.
A lengthy and sometimes moving hearing before Judge Chris Piazza today at the Pulaski County Courthouse, with the attorneys for the plaintiffs both sometimes choking back tears as they argued in favor of a motion for summary judgment in their challenge to Arkansas's ban on same-sex marriage.
Plaintiff's attorney Jack Wagoner spent most of his time working his way through many of the cases in which state and federal courts have ruled in favor of same sex marriage in the wake of the Supreme Court's U.S. v. Windsor decision,
handed down last June, which ruled provisions of the Defense of Marriage Act unconstitutional, with Wagoner saying the arguments against same sex marriage "have fallen one by one" when brought before courts. Saying that Arkansas's Constitutional Amendment 3,
though approved by over 75 percent of voters, is unconstitutional because "you can't submit a Constitutional right to the electorate," Wagoner related details of cases in Ohio, Michigan, Oklahoma, New Jersey, Illinois, Kentucky, New Mexico, Utah, Virginia, Texas and Tennessee as the afternoon wore on. At one point, Wagoner fought back tears while reading a 2007 statement
from Mildred Loving, one of the plaintiffs in the landmark interracial marriage case Loving v. Virginia.
from the Arkansas Attorney General's Office made the bulk of the argument for the defendants. After expressing "gratitude and appreciation" for the work of lawyers on both side of the case, Jorgensen made an argument that the SCOTUS decision in Windsor struck down the federal prohibition against same-sex marriage found in the Defense of Marriage Act, but preserved state sovereignty over the laws associated with marriage. The Federal government, Jorgensen said, has no business trying to regulate the definition of marriage for the states, and "is sticking its nose somewhere that it doesn't belong." Jorgensen noted that in the one federal court decision upholding the constitutionality of same-sex marriage in which the court didn't stay its ruling — the decision in a Utah case — the SCOTUS stayed the decision. Jorgensen said that the SCOTUS only grants a stay in those cases in which they believe there's a chance they might reverse the lower court's opinion.
Jorgensen went on to say that the ban on same sex marriage doesn't discriminate against gender, because it applies the prohibition against men and women marrying same-sex partners equally. He said that gays and lesbians are not recognized as a protected class. He argued that the state ban on same-sex marriage isn't a violation of privacy, because "these marriage laws don't invade peoples' bedroom, they just say the government is not going to affirmatively recognize your relationship."
Attorney Cheryl Maples
, who filed the original lawsuit
) in July 2013 and who was too sick to speak at the last hearing, gave the closing statement for the plaintiffs. Saying that the plaintiffs "only want to exercise the exact same privileges that everybody else in Arkansas has," Maples said that constitutional rights aren't subject for a vote, even though the voters of Arkansas were misled into believing that was the case. Maples said that, other than animus, "there is no rational basis for why these laws exist. There is no rational basis for why they should continue to exist... Animus is not appropriate in establishing a law that denies people their fundamental rights."
In the midst of her impassioned argument, Maples began naming Arkansas couples who wish to be legally married. As she did, the couples silently stood in the gallery and remained standing as she spoke, sitting when she finished with their stories: a gay couple who had been together for 12 years who have built a business together and are soon to have a child through a surrogate; a lesbian couple who want to put both their names on a child's birth certificate, the couple quietly putting their arms around each other as Maples spoke; a man retired after 21 years in the Navy who wishes to marry his partner. Maples said that gays and lesbians in Arkansas don't have the resources of the groups that helped bankroll the effort to ban same-sex marriage in Arkansas, but they deserve their rights.
At the end of her statement, Maples became so moved that she had to stop a moment to compose herself when she mentioned her daughter, who is a lesbian. Though her daughter is not a plaintiff in the case, Maples told the court that she had filed the lawsuit for her, because someday if Maples' daughter decides to get married, she wanted her to be able to be legally married in the state of Arkansas. After Maples finished, the gallery gave her a long round of applause. Though the bailiffs in Piazza's court stirred at the outburst, the judge allowed the applause for Maples to continue until it tapered off
Before adjourning court, Piazza said that judging the case has been an "interesting adventure."
"The reason I find this case interesting," Piazza said, "is that it's more like what we did in law school," with lawyers considering Constitutional matters of national importance. Piazza then commended all the attorneys on a "magnificent job." Just before stepping off the bench, Piazza said that he has "an idea of where I'm going" but said he's still "drifting." He said he should have a ruling written in about two weeks.