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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS RITA AND PAM JERNIGAN AND BECCA AND TARA AUSTIN v. LARRY CRANE, IN HIS OFFICIAL CAPACITY AS CIRCUIT AND COUNTY CLERK FOR PULASKI COUNTY AND HIS SUCCESSORS IN INTEREST; RICHARD WEISS, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS DEPARTMENT OFFINANCE AND ADMINISTRATION, AND HIS SUCCESSORS IN INTEREST; GEORGE HOPKINS, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE ARKANSAS TEACHER RETIREMENT SYSTEM AND HIS SUCCESSORS IN INTEREST; DUSTIN McDANIEL, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL FOR THE STATE OF ARKANSAS AND HIS SUCCESSORS IN INTEREST

PLAINTIFFS

DEFENDANTS

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, for their Amended Complaint for Declaratory and Injunctive Relief, state: I. NATURE OF THE ACTION 1. Plaintiffs bring this action to challenge the constitutionality of Arkansas s

laws excluding same-sex couples from marriage and forbidding recognition of legitimate same-sex marriages entered into in other states. Ark. Const. amend. 83; Ark. Code Ann. 9-11-107; Ark. Code Ann. 9-11-109; Ark. Code Ann. 9-11-208. 2. Amendment 83 defines marriage as consist[ing] only of the union of one

man and one woman. Ark. Code Ann. 9-11-109 restates Amendment 83s definition of marriage as between a man and a woman and declare s that all marriages of same1

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sex couples are void. Ark. Code Ann. 9-11-107 provides for recognition of marriages from other states or countries, but specifically excludes marriages by persons of the same sex. Ark. Code Ann. 9-11-208 provides that the State only recognizes the marital union of man and woman, forbids clerks from issuing marriage licenses to same-sex couples, forbids the recognition of lawful same-sex marriages entered into in other states, and holds unenforceable any contractual or other rights granted by a marriage of another state. 3. On June 26, 2013, the Supreme Court of the United States affirmed the

decision of the Second Circuit Court of Appeals in United States v. Windsor, 133 S. Ct. 2675 (2013), and invalidated Section 3 of the federal Defense of Marriage Act (DOMA), wherein Congress defined marriage for purposes of all federal laws to include only the marriages of opposite-sex couples. The Supreme Court held that this law served no legitimate purpose other than to target a certain class of people for unlawful discrimination based on sexual preference. The Supreme Court found that Section 3 of DOMA violated the Equal Protection and Due Process clauses of the Fifth Amendment to the United States Constitution.1 4. In Windsor, the Supreme Court noted that [s]tate laws defining and

regulating marriage, of course, must respect the constitutional rights of persons. 133 S.
1

Windsor was analyzed under the Equal Protection and Due Process clauses of the Fifth Amendment to the United States Constitution because it involved actions of the federal government. The Fourteenth Amendment provides the same constitutional protections against state action. This case involves state action rather than federal action, so references are to the Fourteenth Amendment rather than the Fifth Amendment. The analysis, however, is the same. See Buckley v. Valeo, 424 U.S. 1, 93 (1976)(Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.); Town of Tonawanda v. Lyon, 181 U.S. 389, 39192 (1901)(The purpose of [the Fourteenth] Amendment is to extend to the citizens and residents of the states the same protection against arbitrary state legislation affecting life, liberty, and property, as is afforded by the 5th Amendment against similar legislation by Congress.)

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Ct. at 2691. As authority for this statement, the Court cited Loving v. Virginia, 388 U.S. 1 (1967), where the Court held that states cannot constitutionally prohibit persons of different races from marrying. Loving found that [t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Id. at 12. In Windsor, the Court echoed the same principles set forth in Loving forty-six (46) years earlier, finding that such discrimination demeans the couple, whose moral and sexual choices the Constitution protects. Windsor, 133 S. Ct at 2694 (citing Lawrence v. Texas, 539 U.S. 558 (2003)). The Court further stated that the discriminatory treatment humiliates tens of thousands of children now being raised by same-sex couples and that the law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Id. 5. Although Windsor invalidated only federal law that fails to recognize

legitimate same-sex marriages performed in states where such marriages are lawful, the reasoning in Windsor is equally applicable to Arkansass refusal to allow same-sex marriages and its refusal to recognize same-sex marriages lawfully performed in other states. Even Justice Scalia, in his vigorous dissent in Windsor, stated that the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by todays opinion. Id. at 2709 (Scalia, J., dissenting). Justice Scalia further postulated: How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Id. 6. Embodying Justice Scalias premonition, several courts have examined

same-sex marriage since Windsor and have granted preliminary and permanent

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injunctive relief in favor of same-sex plaintiffs seeking recognition of same-sex marriages legally performed in other states. See, e.g., Obergefell v. Kasich, 2013 WL (S.D. Ohio July 22, 2013); Obergefell v. Wymyslo, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013). 7. Numerous other courts have granted injunctive relief in connection with

state constitutional amendments and statutes banning same-sex marriages. See, e.g., Bishop v. Holder, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014)(constitutional ban on same-sex marriage intentionally discriminated against same-sex couples based on sexual orientation in violation of the Equal Protection clause); Kitchen v. Holder, 2013 WL 6697874 (D. Utah Dec. 20, 2013)(enjoining enforcement of state constitutional amendment and two related statutes prohibiting same-sex marriage because laws violated Due Process and Equal Protection clauses); Gray v. Orr, 2013 6355918 (N.D. Ill. Dec. 10, 2013)(allowing same-sex couple to marry in Illinois immediately rather than after law takes effect in June 2014); Bassett v. Snyder, 2013 WL 3285111 (E.D. Mich. June 28, 2013)(state law violated Equal Protection clause because it contained discriminatory classification based on sexual orientation); see also Whitewood v. Wolf, 1:13-CV-01861-JEJ (M.D. Pa. Nov. 15, 2013)(denying motion to dismiss both recognition and same-sex marriage ban claims. 8. Several state courts have granted relief to same-sex plaintiffs as well.

See, e.g., Garden State Equality v. Dow, 216 N.J. 314, 79 A.3d (2013)(upholding summary judgment permitting same-sex couples to enter into civil marriage); Griego v. Oliver, 2013 WL 6670704 (N.M. Dec. 19, 2013)(state of New Mexico is constitutionally

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required to allow same-sex couples to marry because prohibition of same-sex marriages violates Equal Protection clause). 9. Plaintiffs seek a declaration that Amendment 83 and the referenced

statutes violate the right to Equal Protection and Due Process of law under the Fourteenth Amendment to the United States Constitution. Plaintiffs Rita and Pam Jernigan seek preliminary and permanent injunctive relief requiring that Defendants recognize their legitimate out-of-state marriage. All Plaintiffs seek permanent injunctive relief prohibiting the state of Arkansas and all political subdivisions thereof from enforcing Amendment 83 or the referenced statutes. Declaratory relief is sought under the United States Declaratory Judgment Act, 28 U.S.C. 2201, et seq., and Federal Rule of Civil Procedure 57. Injunctive relief is sought pursuant to Federal Rule of Civil Procedure 65. II. PARTIES A. 10. Plaintiffs Plaintiffs Becca and Tara Austin are a lesbian couple who wish to marry

for the same reasons that many other couples get marriedto publicly declare their love and commitment to one another before their family, friends, and community, and to give one another the security and protections that only marriage provides. 11. Plaintiffs Becca and Tara Austin have been in a committed relationship for

more than nine (9) years. Becca and Tara are both employees of the University of Arkansas for Medical Sciences. They have twinsa boy and a girlwho are four and a half (4) years old. Tara is the biological mother of the children. Because Becca is not a biological parent to the children and cannot legally marry Tara, Becca is not considered

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a parent to the twins under Arkansas law. Becca and Tara Austins inability to legally marry harms them in other material ways as well, by reducing family resources and stigmatizing the Austins and their children by denying the family social recognition and respect. When their children were born, Becca was denied family leave to spend time with the twins at home because she and Tara were not married and the children were not legally her dependents. Despite her desire to stay home after the birth of the children, Tara had to return to work full-time to maintain health insurance for herself and the children. Becca could not carry Tara and the children on a family health insurance plan because she and Tara were not (and could not be) married, and the children were not her legal dependents. 12. Plaintiffs Rita and Pam Jernigan are a lesbian couple who are married

under Iowa state law. They have been in a committed relationship for five (5) years. They married on December 16, 2013 in the State of Iowa, which recognizes same-sex marriage. A copy of Rita and Pam Jernigans Iowa State Marriage license is attached as Exhibit 1. Although Rita and Pam are legally married, they are treated as legal strangers in their home state of Arkansas. 13. Plaintiff Rita Jernigan retired after teaching math in the Little Rock School

District for more than twenty-eight (28) years. She participated in the Arkansas Teacher Retirement System (ATRS) while employed and currently receives retirement pay from ATRS. Amendment 83 prohibits Pam from being considered as Ritas spouse for purposes of her teacher retirement. Further, Amendment 83 prohibits Ritas partner, Pam, from receiving surviving spouse benefits under ATRS in the event of Ritas death.

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14.

Plaintiffs come from various walks of life and occupationsa nurse

practitioner, an executive assistant, a retired schoolteacher, and the owner of a petsitting service. All Plaintiffs are homeowners and reside in Pulaski County, Arkansas. They are involved in their communities and have been in committed relationships for many years. The situations these couples face are similar to those faced by thousands of same-sex couples in the state of Arkansas who are denied the basic rights afforded by marriage. They have cared for each another, supported each other, sacrificed for each other, and made plans for the future with each other. They have experienced hardship, illness, joy, and success during the course of their relationships. As with other couples that have made a lifetime commitment to one other, the Plaintiff couples are spouses in every sense, except that Arkansas law dictates that they cannot marry and that, even if they are legally married pursuant to the laws of another state, Arkansas will not honor the marriage. 15. In view of the Windsor decision, the Austins and the Jernigans applied for

marriage licenses with the Pulaski County Circuit and County Clerk on July 11, 2013. The Pulaski County Circuit and County Clerk rejected their applications on the basis of Amendment 83 and Ark. Code Ann. 9-11-208. The Austins and Jernigans marriage applications are attached as Exhibits 2 and 3. The Pulaski County Circuit and County Clerk also wrote letters to the Austins and the Jernigans in connection to their rejected marriage applications. These letters are attached as Exhibits 4 through 7. 16. The Jernigans were married on December 16, 2013 in the State of Iowa,

where same-sex marriage is legal. Because the state of Arkansas would not allow them to marry, they were forced to incur expense and inconvenience in traveling to another

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state to marry. Even though they are now legally married, Arkansas will not recognize their marriage as legal. Before the marriage ceremony in Iowa, the ATRS told Rita that even after her legal marriage to Pam, ATRS would still not allow Rita to name Pam as her surviving spouse on her ATRS retirement plan. B. 17. Defendants Defendant Larry Crane is sued in his official capacity as Circuit and

County Clerk for Pulaski County, Arkansas. Arkansas Code Ann. 9-11-203 requires that the County Clerk issue a marriage license if application is made and the requirements of the Code section are met. The Austins and the Jernigans applied for marriage licenses on July 11, 2013, but Mr. Cranes off ice refused to issue them marriage licenses because Ark. Code Ann. 9-11-208 and Amendment 83 prohibit the Clerk from issuing a marriage license to persons of the same gender. 18. Defendant Richard Weiss is sued in his official capacity as Director of the

Arkansas Department of Finance and Administration. His office is created by Ark. Code Ann. 25-8-101. In his official capacity, he is responsible for accepting or refusing tax returns filed by Arkansas residents and non-residents. Ark. Code Ann. 25-8-102. Amendment 83 prohibits same-sex couples married in other states from filing joint Arkansas tax returns. Defendant Weiss and his successors are sued in their official capacity only. 19. Defendant George Hopkins is sued in his official capacity as Executive

Director of the Arkansas Teacher Retirement System (ATRS). His office is created by Ark. Code Ann. 24-7-303(c). As the organizations chief executive officer, he is responsible for enforcing rules created by the ATRS Board of Trustees including (1)

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withholding spousal benefits from same-sex spouses who are legally married under the laws of jurisdictions that recognize same-sex marriage and (2) preventing same-sex spouses from receiving retirement benefits from ATRS in the event of recipients deaths. 20. Defendant Dustin McDaniel is the Attorney General of the State of

Arkansas and is sued in his official capacity only. His office is created by Article 6, Section 1 of the Arkansas Constitution. His duties include both enforcing the law and advising officials within the state about the requirements of the law, including Amendment 83 and the challenged statutes. He is specifically authorized by Arkansas law to maintain and defend the interests of the St ate in matters before . . . federal courts and he is the legal representative of all state officers, boards, and commissioners in all litigation where the interests of the state are involved. Ark. Code Ann. 25-16-703. III. JURISDICTION AND VENUE 21. Amendment 83 and the challenged statutes purport to be valid state laws

existing under color of state law. By implementing and enforcing the unconstitutional Amendment and statutes, the individual Defendants have deprived Plaintiffs of rights guaranteed by the United States Constitution, as more specifically described below. 22. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331,

as this is a civil action arising under the United States Constitution and the laws of the United States, namely the Fourteenth Amendment to the United States Constitution. 23. Venue is proper under 28 U.S.C. 1391(b) because a substantial part of

the events or omissions giving rise to the claim occurred in the Federal Judicial District

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for the Eastern District of Arkansas. Venue is also proper under 28 U.S.C. 1391(a) because one or more of the named Defendants reside in the District. IV. ARKANSAS CANNOT JUSTIFY ITS EXCLUSION OF SAME-SEX COUPLES FROM MARRIAGE AND MARRIAGE RECOGNITION 24. Arkansas cannot justify its exclusion of same-sex couples from marriage

and marriage recognition under any standard of constitutional scrutiny. 25. In 2002, the Arkansas Supreme Court struck down the state sodomy law

as unconstitutional. See Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). The Court found that, by burdening sexual contact between members of the same sex, the sodomy statute infringed upon the fundamental right to privacy and equal protection guarantees. Id. at 632633. 26. Two years later, apparently in partial response to Jegley, Arkansas voters

enacted Amendment 83 to the Arkansas Constitution. The Arkansas Marriage Amendment Committee sponsored the amendment. The President of the Committee, stated that the purpose of the amendment was to preserve marriage and families, arguing that locations in which a child has both a mother and a father were areas in which crime is lower and education is better, while locations in which single-parent households were common are higher-crime areas. Laura Kellams, Foes Use Family, Fairness in Amendment 3 Debate: It Limits Marriage to Union of Man, Woman, ARK. DEMOCRAT-GAZETTE, Sep. 5, 2004, at 1A. The proponents of Amendment 83 did not explain how a comparison of crime rates in single parent neighborhoods and mother/father neighborhoods relates to crime rates in same-sex parent

neighborhoods. It is unlikely that any such statistics exist regarding crime rates in same-sex parent neighborhoodsif such neighborhoods even exist. 10

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27.

No credible evidence supports the claim that a ban on same-sex marriage

serves in any way to preserve marriage and families. As the American Psychological Association (APA) stated in the amicus brief filed with the Supreme Court in Windsor: Scientific evidence strongly supports the conclusion that homosexuality is a normal expression of human sexuality; that most gay, lesbian, and bisexual adults do not experience their sexual orientation as a choice; that gay and lesbian people form stable, committed relationships that are equivalent to heterosexual relationships in essential respects; and that same-sex couples are no less fit than heterosexual parents to raise children and their children are no less psychologically healthy and welladjusted than children of heterosexual parents. In short, the claim that legal recognition of marriage for same-sex couples undermines the institution of marriage and harms their children is inconsistent with scientific evidence. Windsor, 133 S. Ct. 2675, Brief of American Psychological Association, at 45 (Mar. 1, 2013). The APA is the worlds largest professional association of psychologists. The American Medical Association, the American Academy of Pediatrics, the American Psychiatric Association, and the National Association of Social Workers joined in the APA amici curiae brief in Windsor.2 28. Amendment 83 and the challenged statutes cannot survive rational basis

review, much less the strict scrutiny review afforded to laws that affect fundamental rights, where such laws must be narrowly tailored to specifically achieve the purpose behind the law. 29. The relationship between the preservation of marriage and the exclusion

of same-sex couples is tenuous at best. Banning such marriages is not rationally related to the government interest of protecting marriage. In fact, legalization of same-sex
2

The American Medical Association is the nations largest organization of doctors and medical students in the United States. The American Academy of Pediatrics is the largest professional organization of pediatricians in the United States. The American Psychiatric Association is the nations largest organization of physicians specializing in psychiatry. The National Association of Social Workers is the nations largest association of professional social workers.

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marriage has not negatively affected heterosexual marriage rates in the states that have legalized same-sex marriage or in other countries where it is legal. 30. The rationale of preserving families appears to relate to procreation and

children. This notion is illogical, however, because procreation and marriage are not mutually exclusive. Procreation is not a requirement of marriage. Many heterosexual couples who marry choose not to have children. Conversely, pregnancies between unmarried couples are commonplace. Therefore, the relationship between banning same-sex marriage and the interest of promoting procreation is not rational. 31. The purported purposes of Amendment 83 are, in reality, merely a ruse to

do what was forbidden by the Supreme Court in Windsorto carry out a desire to harm a politically unpopular group. Windsor, 126 S. Ct. at 2693. 32. Arkansas law denies Plaintiffs and other same-sex couples the

fundamental right to marry by denying them access to the state-recognized institution of marriage and by refusing to recognize same-sex marriages validly entered into in other states. 33. The State can demonstrate no important interest to justify denying

Plaintiffs this fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate interest at all. IV. CLAIMS FOR RELIEF A. COUNT I: Deprivation of the Fundamental Right to Marry in Violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs incorporate by reference all of the preceding paragraphs of this

34.

Complaint as if set forth herein word for word.

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35.

The Fourteenth Amendment to the United States Constitution provides

that no state shall deprive any person of life, liberty, or property without due process of law. U.S. Const. amend. XIV 1. 36. Liberty, as referred to in the Fourteenth Amendment, includes the right

to marry. Meyer v. Nebraska, 262 U.S. 390, 399 (1923). The Supreme Court has specifically categorized marriage as one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Cleveland Bd. of Educ. v. Lafleur, 414 U.S. 632, 63940 (1974). Marriage has further been described by the Supreme Court as one of the basic civil rights of man. Id. See also Windsor, 126 S. Ct. at 2692 (recognizing marriage as conferring a dignity and status of immense import and an essential part of the liberty protected by the U.S. Constitution). 37. A law is most likely unconstitutional when it inhibits personal

relationships. Lawrence v. Texas, 539 U.S. 558, 580 (2003)(OConnor, J., concurring). 38. The liberty [to marry] may not be interfered with, under the guise of

protecting the public interest, by legislation that lacks a sufficient rationale. Meyer, 262 U.S. at 399400. 39. Because government interference with the fundamental right to marry

triggers strict scrutiny, the States refusal to allow same-sex couples to marry in Arkansas and its refusal to recognize the valid out-of-state marriages of same-sex couples married in other states may be upheld only upon a showing that the restriction is narrowly tailored to advance a compelling government interest. Defendants cannot satisfy this requirement. The challenged statutes are not even rationally related to the furtherance of a legitimate government interest.

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40.

Defendants, acting under color of state law, are depriving Plaintiffs of

rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 41. Plaintiffs have no adequate remedy at law to redress the wrongs alleged,

which are of a continuing nature and will cause them irreparable harm. 42. Accordingly, Plaintiffs should be granted declaratory and injunctive relief

as requested in this Complaint. B. Count II: Deprivation of Liberty Interest in Valid Marriages in Violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Plaintiffs incorporate by reference all of the preceding paragraphs of this

43.

Complaint as if set forth herein word for word. 44. The Supreme Court of the United States recognized in Windsor that: (1) a

same-sex couple that has entered into a valid marriage has a liberty interest in their marital status that is protected by the due process and equal protection guarantees of the United States Constitution and (2) the governments refusal to recognize a samesex couples existing marital status denies that protected liberty interest. 133 S. Ct. at 2695. The principal purpose and necessary effect of a governments refusal to recognize the legal marriages of same-sex couples are to demean those persons who are in a lawful same-sex marriage. Id. 45. The Supreme Court has described the liberty interest in the right to marry

as fundamental to our very existence and survival. Loving v. Virginia, 388 U.S. 1, 12 (1967).

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46.

Defendants actions infringe upon Plaintiffs Rita and Pam Jernigans

liberty interest by penalizing their constitutionally protected choice in the most intimate and personal area of their lives. Because governmental interference with this fundamental right triggers strict scrutiny, Arkansass refusal to recognize Rita and Pam Jernigans valid out-of-state marriage may be upheld only upon a showing that the restrictions are narrowly tailored to advance a compelling government interest. Defendants cannot satisfy this requirement. The challenged statutes are not even rationally related to the furtherance of a legitimate government interest. 47. Defendants, acting under color of state law, are depriving Plaintiffs of

rights secured by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. 48. Plaintiffs Rita and Pam Jernigan have no adequate remedy at law to

redress the wrongs alleged, which are of a continuing nature and will cause them irreparable harm. 49. Accordingly, Plaintiffs should be granted declaratory and injunctive relief

as requested in this Complaint. C. Count III: Deprivation of Autonomy, Family Privacy, and Association in Violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs incorporate by reference all of the preceding paragraphs of this

50.

Complaint as if set forth herein word for word. 51. The Due Process Clause of the Fourteenth Amendment protects the

fundamental liberty interests grounded in personal dignity, privacy, and autonomy. This protection includes each persons right to family integrity and intimate association.

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Amendment 83 and the referenced statutes deny the Plaintiff couples and other samesex couples these fundamental rights by denying them access to marriage and refusing to recognize valid marriages entered into in other jurisdictions. In doing so, Arkansas burdens and interferes with Plaintiffs intimate, personal, and private decisions about how and with whom they choose to form a family. Defendants actions constitute a deprivation of the liberty of the person, Windsor, 133 S. Ct. at 2695. 52. Government interference with fundamental liberty interests triggers strict

scrutiny. As such, Arkansass denial of state-recognized marriage to same-sex couples and its refusal to recognize same-sex marriages entered into in other jurisdictions may be upheld only upon a showing that the restrictions are narrowly tailored to advance a compelling government interest. Defendants cannot meet this requirement. The challenged laws are not even rationally related to the furtherance of a legitimate government interest. Therefore, the laws are facially unconstitutional and as applied to the Plaintiffs. 53. Defendants, acting under color of state law, are depriving Plaintiffs of

rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 54. Plaintiffs have no adequate remedy at law to redress the wrongs alleged

herein, which are of a continuing nature and will cause them irreparable harm. 55. Accordingly, Plaintiffs should be granted declaratory and injunctive relief

as requested in this Complaint. D. Count IV: Deprivation of Fundamental Right to Travel in Violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

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56.

Plaintiffs incorporate by reference all of the preceding paragraphs of this

Complaint as if set forth herein word for word. 57. The United States Constitution, including the Due Process Clause,

protects the liberty of individuals to travel throughout the nation, uninhibited by statutes, rules, or regulations that unreasonably burden or restrict their movement. This right guards against interference with citizens rights to migrate, resettle, find a new job, and start a new life. Shapiro v. Thompson, 394 U.S. 618, 629 (1969). The right to travel prohibits both laws that affirmatively interfere with or prevent a citizens travel, as well as laws that penaliz[e] those who choose to migrate to another state. Id. at 631. The right to travel extends not only to temporary visits to other states, but also to becoming a permanent resident of another state. 58. Defendants refusal, under color of state law, to respect the valid out-of-

state marriages of Plaintiffs Rita and Pam Jernigan and other same-sex couples in the state unconstitutionally burdens and infringes upon Plaintiffs right to travel among the states and to make a home in Arkansas. By conditioning Plaintiffs choices to reside in Arkansas on the relinquishment of all rights, benefits, and responsibilities of their legal out-of-state marriage, Arkansas imposes a penalty on Plaintiffs exercise of th eir constitutionally protected right to travel. Thus, Amendment 83, the referenced statutes, and any other state law that purports to deny recognition to marriages of same-sex couples validly celebrated in other jurisdictions are facially unconstitutional and as applied to Plaintiffs. 59. A law that has the effect of imposing a penalty on the exercise of the right

travel is subject to strict scrutiny and may be upheld only upon a showing that the

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restriction is narrowly tailored to advance a compelling government interest. Defendants cannot satisfy this requirement. The challenged statutes are not even rationally related to the furtherance of a legitimate government interest. 60. Defendants, acting under color of state law, are depriving Plaintiffs of the

right to travel, a right secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 61. Plaintiffs have no adequate remedy at law to redress the wrongs alleged,

which are of a continuing nature and will cause them irreparable harm. 62. Accordingly, Plaintiffs should be granted declaratory and injunctive relief

as requested in this Complaint. E. COUNT V: Discrimination on the Basis of Sexual Orientation in Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs incorporate by reference all preceding paragraphs of this

63.

Complaint as if set forth herein word for word. 64. The Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution provides that no State shall . . . deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV 1. 65. By denying Plaintiffs and other same-sex couples the right to marry and to

have their out-of-state marriages recognized, the State of Arkansas discriminates against gay and lesbian couples on the basis of their sexual orientation. The State denies them significant legal protections. The laws degrade and demean them by instruct[ing] . . . all persons with whom same-sex couples interact, including their own

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children, that their relationship is less worthy than the relationships of others. Windsor, 126 S. Ct. at 2696. 66. Same-sex couples and opposite-sex couples are similarly situated for

purposes of marriage. Arkansass laws nevertheless treat them differently in a manner that reflects moral disapproval and animus toward same-sex couples. 67. Arkansas law provides countless benefits and privileges that apply only to

married couples. Examples of laws that draw distinctions based on whether one is a spouse include: Ark. Code Ann. 20-9-602 (allowing spouse or parent to consent to medical treatment for spouse and child); 28-65-204 (preference to spouse or person related by blood in guardianship proceedings); 16-61-102 (right to prosecute and defend civil actions in spouses name); 24-7-710 (teacher retirement benefits); 24-4-406 (public employee benefits before retirement); 11-9-812 (workers compensation benefits); 2383-108 (group life insurance policies and annuities); 23-79-128 (life insurance); Arkansas Probate Code, Ark. Code Ann. 28-1-101 et seq. (rights to dower/curtesy for widow/widower of deceased spouse, rights to certain statutory allowances for surviving spouse, homestead rights, right to inherit from deceased spouse, right of children to inherit from legal parent); and Arkansas Rule of Evidence 504 (husband-wife testimonial privilege). Married couples may also take advantage of the right to file joint state and federal tax returns and may receive numerous other tax benefits available to married couples and their families. 68. Laws that refuse to recognize the marriages of same-sex couples validly

entered into in other jurisdictions are facially unconstitutional and as applied to Plaintiffs because they categorically deprive Plaintiffs of rights based on their sexual orientation.

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69.

The categorical deprivation of rights is not rationally related to the

advancement of a legitimate government interest and is not narrowly tailored to advance any compelling or important government interest. 70. Classifications based on sexual orientation demand heightened scrutiny

for a number of reasons. These include: a. Lesbians and gay men are members of a discrete and insular

minority that has long suffered a history of discrimination in Arkansas and in the United States; b. Sexual orientation bears no relation to an individuals ability to

perform in or contribute to society; c. Sexual orientation is a core, defining trait that is so fundamental to

ones identity that a person may not legitimately be required to abandon it (even if that were possible) as a condition of equal treatment. Sexual orientation is not something over which the vast majority of gay and lesbian people feel they have any choice. [C]linical interventions that purport to change sexual orientation from homosexual to heterosexual . . . have not been shown to be effective or safe. Windsor, 133 S. Ct. 2675, Br. of Am. Psychological Assn, at 10. In 2009, a review of the scientific literature by an APA task force concluded that sexual orientation change efforts are unlikely to succeed and indeed can be harmful. Id. (citations omitted). No mainstream professional mental health organization

approves interventions that attempt to change sexual identity. In fact, the American Psychological Association and the American Psychiatric

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Association have both issued policy statements cautioning professionals and the public against these treatments. d. Prejudice against lesbians and gay men continues to seriously

curtail the operation of the political process and prevents this group from obtaining redress through legislative means. The group lacks statutory protection against discrimination in employment, public accommodations, and housing at the federal level and in more than half the states, including Arkansas. Lesbians and gay men are afforded far fewer civil rights protections at the state and federal levels than were racial minorities and women when race and sex classifications were declared to be suspect or quasi-suspect. Same-sex couples have been stripped of the right to marry through constitutional amendments or other laws in thirty (30) states and have been targeted through the voter initiative process more than any other group. 71. For the reasons set forth above, classification based on sexual orientation

should be reviewed under heightened scrutiny. But the classification involved in this case cannot survive under any level of constitutional scrutiny. The exclusion of samesex couples from marriage is not related to any legitimate governmental interest. This classification only disparages and injures lesbian and gay couples and their children. 72. Defendants, acting under color of state law, are depriving Plaintiffs of

rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

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73.

Plaintiffs have no adequate remedy at law to redress the wrongs alleged,

which are of a continuing nature and will cause them irreparable harm. 74. Accordingly, Plaintiffs should be granted declaratory and injunctive relief

as requested in this Complaint. F. COUNT VI: Discrimination on the Basis of Gender in Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs incorporate by reference all of the preceding paragraphs of this

75.

Complaint as if set forth word for word herein. 76. The Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution provides that no State shall . . . deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, 1. 77. Arkansas Code Ann. 9-11-101 provides that marriage is a civil contract.

Under the authority of Amendment 83s definition of marriage as consisting only of the union of one man and one woman, several Arkansas statutes were revised after Amendment 83 was enacted in 2004. Ark. Code Ann. 9-11-109 restates the Amendment 83 definition of marriage as between a man and a woman and declares that all same-sex marriages are void. Ark. Code Ann. 9-11-107 provides for

recognition of marriages from other states or countries, but excludes marriages from persons of the same sex. Ark. Code Ann. 9-11-208 provides that the state only recognizes the marital union of man and woman and forbids t he Clerk from issuing a marriage license to same-sex couples. 78. By defining marriage as only between a man and a woman, the State of

Arkansas discriminates on the basis of sex. For example, Becca Austin is not legally

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permitted to marry Tara Austin because Tara is female. If Tara was male, Becca and Tara would be free to marry. 79. In addition, by precluding the recognition of legitimate marriages

performed under the laws of other states or countries, the State of Arkansas discriminates on the basis of sex. The Iowa marriage of Rita and Pam Jernigan, for example, is denied recognition solely because they are both women. 80. Amendment 83 and the related statutes unconstitutionally penalize

Plaintiffs for their non-conformity with sex-based stereotypes. Arkansas treats Plaintiffs and other same-sex couples differently because their relationships do not conform to gender-based stereotypes that women should only marry men and men should only marry women. 81. Given that the law no longer recognizes legal distinctions between the

duties of husbands and wives, there is no basis for these sex-based eligibility requirements for marriage. In fact, the Supreme Court has made it clear that the perpetuation of traditional gender roles is not a legitimate government interest. 82. In 2014, Defendants can demonstrate no exceedingly persuasive

justification for this discrimination based on sex. 83. Arkansass denial of state-recognized marriage to same-sex couples and

its refusal to respect the valid out-of-state marriages of same-sex couples does not sufficiently advance any important or compelling interest. Thus, these laws cannot survive heightened scrutiny.

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84.

Defendants, acting under color of state law, are depriving Plaintiffs of

rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 85. Plaintiffs have no adequate remedy at law to redress the wrongs alleged,

which are of a continuing nature and will cause them irreparable harm. 86. Accordingly, Plaintiffs should be granted declaratory and injunctive relief

as requested in this Complaint. G. COUNT VII: Separate Plaintiffs Rita and Pam Jernigan Specifically Request Preliminary Injunctive Relief Against Richard Weiss, In His Official Capacity As Director of the Arkansas DFA, and George Hopkins, In His Official Capacity As Executive Director of the ATRS Plaintiffs incorporate by reference all of the preceding paragraphs of this

87.

Complaint as if set forth herein word for word. 88. Plaintiffs Rita and Pam Jernigan, who are already married under the laws

of Iowa, specifically request preliminary injunctive relief against the Arkansas DFA and the ATRS. 89. Rule 65 of the Federal Rules of Civil Procedure provides for temporary

injunctive relief where a plaintiff suffers harm and the harm is likely to continue before a hearing on the merits can be held. 90. In determining whether to issue a preliminary injunction, a court will

consider (1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that the movant will succeed on the merits; and (4) the public interest. Dataphase Systems Inc. v. C.L. Systems, Inc., 640 F.2d 109. 114 (8th Cir. 1981). 24

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91.

Amendment 83 and the referenced statutes violate Plaintiffs Rita and

Pam Jernigans Equal Protection and Due Process guarantees under the federal Constitution. An ongoing violation of a constitutional right is irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373 (1976); See also Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008)(Constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm.); Planned Parenthood of Minn. Inc. v. Citizens for Cmty. Action, 558 F.2d 861, 867 (8th Cir. 1977)(same). 92. The Arkansas DFA refuses to accept tax returns filed jointly by same-sex

married couples. As a result, the Jernigans, who are validly married pursuant to the laws of Iowa, must incur expense, forfeit tax advantages, and waste time by completing and filing individual tax returns. 93. ATRS refuses to extend spousal benefits to Pam Jernigan pursuant to

Rita Jernigans retirement plan through ATRS because of its adherence to the definition of spouse as set forth in Amendment 83 and the referenced statutes. If Rita dies and the ATRS does not recognize her marriage to Pam, Pam will have no means by which to remedy the fact that Pam is and was not considered Ritas spouse during her lifetime. Pam will lose the benefits to which she otherwise would be entitled in the event of Ritas death if the ATRS does not recognize her marriage to Rita prior to Ritas death. 94. If the Court denies the requested injunctive relief, the threatened

irreparable harm to the Jernigans heavily outweighs any harm that could come to Defendants through immediate recognition of the marriage of this one couple. See Ark. Code. Ann. 24-7-710 (addressing survivor benefits available under ATRS).

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95.

The Supreme Courts ruling in Windsorand numerous cases decided

since Windsorstrongly suggests that Plaintiffs will succeed on the merits, as Amendment 83 and the referenced statutes violate the Due Process and Equal Protection guarantees of the United States Constitution. 96. Finally, granting these Plaintiffs a preliminary injunction would benefit the

public interest. Numerous similarly-situated same-sex couples in the state who have entered into valid marriages in states that recognize same-sex marriage are deprived of the benefits that DFA and ATRS provide to married opposite-sex couples. No public interest exists in continued discrimination that lacks a legitimate purpose and targets a certain class of people for unlawful discrimination based on sexual preference. See Windsor, 133 S. Ct. at 2693. 97. Because of the current and ongoing nature of the irreparable harm

suffered by separate Plaintiffs Rita and Pam Jernigan, this Court should grant preliminary injunctive relief against DFA and ATRS. 98. Plaintiffs have no adequate remedy at law to redress the wrongs alleged,

which are of a continuing nature and will cause them irreparable harm. V. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: A. Enter a declaratory judgment that Amendment 83 to Arkansas s

Constitution and all other Arkansas statutes that prevent same-sex couples from marrying or from having their legitimate marriages entered into in other states recognized in Arkansas violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution;

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B.

Enter a declaratory judgment that Amendment 83 to Arkansass

Constitution and all other Arkansas statutes that prevent same-sex couples from marrying or from having their legitimate marriages entered into in other states recognized in Arkansas violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; C. Enter a preliminary and permanent injunction enjoining Defendants from

denying Plaintiffs and all other same-sex couples the right to marry in Arkansas and directing that Defendants recognize marriages validly entered into outside of Arkansas, including the Jernigans valid Iowa marriage. This should include mandatory injunctive relief requiring that Defendant Dustin McDaniel and his successors, as legal representatives of all state officers, boards, and commissioners in all litigation where the interests of the state are involved, instruct all state counties and their employees and agents accordingly; D. Issue a preliminary and permanent injunction prohibiting Richard Weiss,

as Director of the Arkansas Department of Finance and Administration, and his successors, from refusing to accept joint tax returns filed by the Jernigans and other same-sex couples married under the laws of other jurisdictions where same-sex marriage is recognized; E. Issue a preliminary and permanent injunction prohibiting George Hopkins,

as Executive Director of the Arkansas Teacher Retirement System, and his successors, from withholding spousal benefits to Pam Jernigan and other same-sex spouses who are legally married under the laws of jurisdictions that recognize same-sex marriages

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and preventing same-sex spouses from receiving retirement benefits upon their spouses deaths; F. Award costs of this suit, including reasonable attorneys fees under 42

U.S.C. 1988; and G. Order all other appropriate relief which the Court deems appropriate.

Dated: January 17, 2014

Respectfully submitted, WAGONER LAW FIRM, P.A.

By:

_/s/ Jack Wagoner _______ Jack Wagoner III, A.B.A. # 89096 R. Keith Pike, A.B.A. # 2010123 Angela Mann, A.B.A. # 2011225 Sarah Cowan, A.B.A. #2013182 Wagoner Law Firm, P.A. 1320 Brookwood, Suites D & E Little Rock, AR 72202 Phone: (501) 663-5225 Fax: (501) 660-4030 Email: jack@wagonerlawfirm.com Email: keith@wagonerlawfirm.com Email: angela@wagonerlawfirm.com Email: sarah@wagonerlawfirm.com

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CERTIFICATE OF SERVICE I, Jack Wagoner, do hereby certify that a true and correct copy of the foregoing document was served electronically by means of the Courts ECF/CM system on the following attorney of record: David M. Fuqua dfuqua@fc-lawyers.com Nga Mahfouz nga.mahfouz@arkansasag.gov /s/ Jack Wagoner Jack Wagoner

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