Circuit Judge Wendell Griffen
today refused to dismiss a lawsuit by plaintiffs claiming their constitutional rights had been violated by state agencies that refused to treat same-sex couple as married couples.
Griffen said plaintiffs had made sufficient factual allegations for claims to proceed against Larry Walther
, director of the Finance and Administration Department, and Carolyn Colvin,
acting Social Securities commissioner.
Walther was sued for ordering that all same-sex married couples be prevented from filing Arkansas income tax returns as married couples. They must file as single individuals. Plaintiffs Angelia Frazier-Henson
and Katherine Henson
say this is a violation of equal protection and due process rights. Plaintiffs Markett Humphries
and Dianna Cristy
also complained that Walther has refused to allow Cristy to enroll as a spouse on Humphries' health insurance plan.
Allan Cox sued Colvin for denying him the right given heterosexual couples to take the name of his deceased spouse, Steven Hall Thomas, and also unconstitutionally denied him death and survivor benefits.
The suit challenges the state's constitutional and statutory bans on same-sex marriage, as did the earlier case decided by Judge Chris Piazza
now pending before the Arkansas Supreme Court.
Some of these same claims have been presented in the other state case and also a federal case, which is also on appeal of a judge's ruling striking down the bans. As a practical matter, even if Griffen expedites the matter, whatever he decides will ultimately be controlled by the Arkansas and U.S. Supreme Courts.
Griffen granted the state's motion to dismiss Gov. Asa Hutchinson, Attorney General Leslie Rutledge
and Health Department Director Nathaniel Smith as defendants
. The judge said it was well established that officials couldn't be sued to test a law's constitutionality simply on account of their official positions. They must also hold relevant enforcement authority, he said.
The judge's order directed a response from Colvin and Walther to the complaint and instructed attorneys to schedule a preliminary injunction hearing. It seems safe to presume that this will come to naught in the short run even if Griffen enjoins the state bans. The Supreme Court has refused to lift its stay of Piazza's ruling and could be expected to issue an additional stay were Griffen to issue an injunction. Griffen, who is also a Baptist pastor, married couples who obtained marriage licenses in the week between Piazza's order last May and the Supreme Court stay of his ruling.
Here's his ruling.