Motions denied, same-sex marriage case nearer trial

On the day when New Mexico’s highest court legalized same-sex marriage, an Arkansas judge has decided that the question of whether this state’s prohibition of such unions is legal should be decided at a yet-to-be-scheduled trial.

Pulaski County Circuit Judge Chris Piazza on Thursday rejected a motion by government lawyers to dismiss the lawsuit seeking to topple the Arkansas ban.

He simultaneously refused a motion by the plaintiffs to bar the state from continuing to apply the prohibition to the nine legally married same-sex couples who are part of the 43-member plaintiffs’ group.

Piazza’s two-sentence ruling did not state a reason.

“The court … having considered all pleadings, arguments of counsel and applicable laws … sets forth the following: all defendants motions to dismiss are denied. Plaintiffs’ motion for preliminary injunction is denied.”

The test for a court to impose an injunction is a measure of the likelihood of the plaintiffs to win at trial and whether the law inflicts “irreparable harm” upon them. In this case, the plaintiffs contend that the harm is from their constitutional rights being violated.

But attorney Jack Wagoner, representing the plaintiffs with attorney Cheryl Maples, said he was not discouraged by the judge’s decision against the injunction.

“I think he’s proceeding cautiously and wants to hear the rest of the case before making a decision,” Wagoner said.

No trial has been scheduled, but Wagoner said he would like the case to be resolved at the circuit-court level within three months. Whatever the verdict, the judge has said he expects an appeal, meaning the marriage-ban question will ultimately be decided by the Arkansas Supreme Court.

The plaintiffs - 21 same-sex couples and a woman who wants to dissolve her New York marriage to another woman - claim that Amendment 83 of the Arkansas Constitution, passed by popular vote in 2004, and related statutes violate both state and federal constitutions. They say the laws violate equal-protection guarantees and are deliberately demeaning and degrading to them and their children.

The lawsuit targets the Arkansas Department of Health, which manages the state’s marriage records, and the Department of Finance and Administration, which oversees income-tax collection, along with the county clerks in seven counties - Conway,Faulkner, Lonoke, Pulaski, Saline, Washington and White - where plaintiffs have been refused marriage licenses.

But Wagoner said a trial will likely be more about legal argument than testimony from the plaintiffs.

He said government lawyers are not contesting the plaintiffs’ claims of harm as much as they are arguing that Arkansas has the right to impose restrictions on marriage.

At last week’s hearing, government attorneys compared the prohibition to laws that bar close relatives from marrying and impose age restrictions on prospective grooms and brides. They also said the state is entitled to give special consideration to heterosexual couples since they can produce children without any third-party intervention.

Government lawyers also disputed plaintiff claims that Amendment 83 caused the state constitution to contradict itself, arguing that state-court precedent prevents that kind of conflict. Amendments like 83, passed by popular vote, are also entitled to extra deference by the courts, which also prevents the judge from striking it down, they told Piazza.

The lawsuit was filed less than a week after the U.S. Supreme Court in June struck down part of the federal Defense of Marriage Act, resulting in federal recognition of married same-sex couples. With New Mexico’s highest court unanimously legalizing gay marriage Thursday, Wagoner said he hopes Arkansas courts will see the issue the same way - is there a legitimate reason to distinguish between same-sex and opposite-sex couples?

The New Mexico court found the government has no rational basis to treat one couple differently from the other, Wagoner said. The U.S. Supreme Court made that same distinction in the Defense of Marriage case, and four lower federal courts have similarly ruled since then, he said.

A spokesman for Arkansas Attorney General Dustin McDaniel, whose office is representing the state, commended the judge for moving quickly, acting within a week to the day after a three-hour hearing on the dismissal and injunction questions.

“We appreciate the court ruling in such a timely fashion,” spokesman Aaron Sadler said.

Wagoner, who recently helped persuade the state Supreme Court to reject a blanket ban on same-sex cohabitation in custody cases, is also part of a federal lawsuit filed in mid-July challenging the Arkansas prohibition. The case has not progressed much. A response from the attorney general’s office on behalf of the state is due by Jan. 6.

Front Section, Pages 1 on 12/20/2013

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