by Max Brantley
Accordingly, although states maintain the power to regulate domestic relationships, they must do so “subject to,” and within the confines of, “the constitutional rights of persons.”
Further, it is difficult to reconcile the Supreme Court’s statement in Windsor that the Constitution protects the moral and sexual choices of homosexual couples, Windsor, 133 S. Ct. at 2694, with the idea that state laws prohibiting same-sex marriage do not present a substantial federal question. For the foregoing reasons, Baker does not bar the Court from reaching the merits of plaintiffs’ claims.The judge also accepted the plaintiffs' arguments that an 8th Circuit Case from Nebraska, Bruning, didn't apply, principally because it was decided before developments in Windsor and because that case didn't present a due process claim, as the Arkansas case does.
Unlike the appellees’ claims in Bruning, plaintiffs’ claims here assert, within the Fourteenth Amendment to the United States Constitution, a fundamental right to marry under the Due Process Clause and the freedom to exercise that right like other citizens do under the Equal Protection Clause, a fundamental right to travel under the Due Process Clause, and discrimination on the basis of gender in violation of the Equal Protection Clause. Therefore, because the Bruning court was not asked to address and did not address these legal claims, the holding of Bruning does not require this Court to dismiss plaintiffs’ right to marry, right to travel, and gender discrimination claims.
Separate Defendants maintain that plaintiffs must describe their asserted right as one for “same-sex marriage,” and that any such right cannot be fundamental and, therefore, cannot get heightened protection because same-sex marriage is not deeply rooted in this nation’s history and tradition. This argument is unpersuasive for several reasons. As the Supreme Court has stated, “the right to marry is of fundamental importance for all individuals.”She drew a distinct parallel with the Loving case, in which a Virginia couple successfully challenged a state law that prohibited marriage of interracial couples. She noted that those racial bans, too, were the product of long-standing cultural traditions, a defense offered by the state. She commented:
These cases underscore that the drafters of the Fifth and Fourteenth Amendments “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
The judge also took steps to address those who raise the slippery slope argument — that same-sex marriage could lead to invalidation of limits on marriage by relatives and the like.
Because the Arkansas marriage laws restrict the Jernigans and Austins’ fundamental right to marry, these laws are subject to strict scrutiny. This standard for examining the Arkansas laws at issue, which significantly interfere with a fundamental right, is consistent with what the Supreme Court has said in past cases. Nevertheless, “[b]y reaffirming the fundamental character of the right to marry, [the Court] do[es] not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may be legitimately imposed.”
What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising the liberty protected by the Constitution? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”
First, Separate Defendants have not explained how allowing same-sex marriage between two consenting adults will at all prevent heterosexual spouses from caring for their biological children. This rationale also ignores Arkansas’s adoption laws, which declare that even “[a]n unmarried adult” may adopt and that “any individual may be adopted.” Moreover, Arkansas law currently allows individuals in same-sex relationships to adopt.On a final state argument, she wrote:
Separate Defendants’ fifth rationale—preserving the “purposes and social norms linked to the historical and deeply-rooted meaning of marriage”—also appears to generalize their stated interests in procreation and child rearing. This rationale neither indicates any separate “purposes” for banning same-sex marriage between consenting adults apart from those discussed above nor shows how same sex marriage endangers these unspecified purposes. As a standalone interest, “‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.”She concluded in granting the plaintiffs' motion for summary judgment; "that the Arkansas laws at issue deny consenting adult same-sex couples their fundamental right to marry in violation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution." Given that core finding, she didn't rule for plaintiffs on arguments that liberty and ability to travel were restricted and that the law amounted to discrimination on the basis of sexual orientation. But she did find that the Arkansas law discriminates based on gender — a man may hot marry a man, a woman may not marry a woman.