Lawyers for plaintiffs
in the federal case that struck down the Arkansas ban on same-sex marriage
at the district court level have objected to the state's motion that the lower court ruling be vacated and dismissed.
The appeal of federal Judge Kristine Baker's
ruling was pending at the 8th U.S. Circuit Court of Appeals — along with similar decisions from several other states — when the U.S. Supreme Court ruled in the Obergefell case that state bans on same-sex marriage were unconstitutional.
The 8th Circuit asked parties in the case how best to dispose of pending cases. The state of Arkansas says it will comply with the U.S. Supreme Court ruling and said that the pending federal case is thus moot. It said the court should vacate Baker's ruling and dismiss the case.
But Angela Mann, one of the attorneys for winning plaintiffs in the case, argued that the 8th Circuit should affirm Baker's ruling. She makes two key points:
* The claims are not moot. The U.S. Supreme Court did not directly address Arkansas laws. The U.S. Supreme Court case has value as precedent "but it does not dispose of the claims raised by Plaintiffs-Appellees in this case arising out of Arkansas’s marriage laws."
* Vacating a decision is improper on the strength of the state's voluntary cessation of unconstitutional practices. The brief notes that national organizations such as the Liberty Counsel are encouraging county clerks to resist issuing marriage licenses, including in Arkansas, with offers to volunteer legal defense. I'd add that the state has not yet allowed same-sex couples to be listed on birth certificates. Vacating the decision would "erase" the victory in district court and be against the public interest, Mann said.
Although Obergefell informs this Court that Arkansas’s marriage laws are unconstitutional and should not stand, the Obergefell Court did not strike down Arkansas’s offending laws. The District Court’s decision is entirely consistent with Obergefell. Thus, the Court should summarily affirm the decision. Without such precedent, the State of Arkansas may continue or resume violating same-sex couples’ fundamental constitutional rights.
In a related matter, attorneys for successful plaintiffs in the state challenge of the marriage ban have asked for an extension of time until July 30 to answer objections to attorney fees filed by county and state defendants.