CV-14427 State's Opening Brief

CV-14-427
IN THE ARKANSAS SUPREME COURT

NATHANIEL SMITH, M.D., MPH,
DIRECTOR OF THE ARKANSAS DEPARTMENT OF
HEALTH, IN HIS OFFICIAL CAPACITY, ET AL APPELLANTS

vs. NO. CV-14-427

M. KENDALL WRIGHT, ET AL APPELLEES

ON APPEAL FROM THE CIRCUIT COURT
OF PULASKI COUNTY, SECOND DIVISION

THE HONORABLE CHRIS PIAZZA, CIRCUIT JUDGE
____________________________________________________________

STATE DEFENDANT-APPELLANTS
ABSTRACT, BRIEF, AND ADDENDUM
(VOLUME 1 OF 2)
____________________________________________________________

By: COLIN R. JORGENSEN (2004078)
Assistant Attorney General
323 Center Street, Suite 200
Little Rock, AR 72201-2610
(501) 682-3997
colin.jorgensen@arkansasag.gov
ii
TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................... ii
INFORMATIONAL STATEMENT ................................................................... vii
JURISDICTIONAL STATEMENT ...................................................................... xi
POINTS ON APPEAL ......................................................................................... xiii
TABLE OF AUTHORITIES ............................................................................... xiv
ABSTRACT ........................................................................................................ Ab 1
Hearing on Plaintiffs Motion for Preliminary Injunction and Defendants
Motion to Dismiss, December 12, 2013 (R 1619).............................. Ab 1

Argument by Mr. J orgensen (R 1624) .................................................. Ab 4
Argument by Mr. Fuqua (R 1682) ......................................................Ab 25
Argument by Mr. Wagoner (R 1682) .................................................Ab 26
Argument by Mr. J orgensen (R 1743) ................................................Ab 69
Argument by Ms. Maples (R 1759) ....................................................Ab 74
Statement by the Circuit Court (R 1762)............................................Ab 75
Hearing on Plaintiffs and Defendants Motions for Summary Judgment,
April 17, 2014 (R 1765) .....................................................................Ab 77

Argument by Mr. J orgensen (R 1818) ............................................. Ab 114
Argument by Mr. Owens (R 1857) ................................................. Ab 142
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Argument by Mr. Fuqua (R 1862) ................................................... Ab 146
Argument by Mr. Wagoner (R 1867) .............................................. Ab 148
Argument by Ms. Maples (R 1868) ................................................. Ab 149
Statement by the Circuit Court (R 1887)......................................... Ab 162
STATEMENT OF THE CASE .......................................................................SoC 1
ARGUMENT .................................................................................................... Arg 1
CONCLUSION ............................................................................................... Arg 30
CERTIFICATE OF SERVICE .................................................................... Arg 31
CERTIFICATE OF COMPLIANCE .......................................................... Arg 32
ADDENDUM (Volume 2 of 2) ...................................................................... Add. 1
Complaint (R 1-30) .......................................................................................... Add. 1
Amended Complaint (R 31-80) ..................................................................... Add. 31
Second Amended Complaint (R 81-132) ....................................................... Add. 81
[Plaintiffs] Motion for Temporary Restraining Order and Preliminary
Injunction and Incorporated Brief (R 133-151) ................................. Add. 133

Affidavits (R 152-177) ................................................................................. Add. 152
Notice of Voluntary Dismissal (R 178-180) ................................................ Add. 178
[States] Motion to Dismiss (R 181-187) .................................................... Add. 181
[States] Brief in Support of Motion to Dismiss (R 188-223) ..................... Add. 188
[States] Response to Motion for Temporary Restraining Order
and Preliminary Injunction (R 224-227) ............................................. Add. 224

iv
[Clerks Evans, Clarke, Lewellan, and Hartmans] Motion to Dismiss
and Answer (R 228-231) .................................................................... Add. 228

[Clerks Crane and Curtis] Motion to Dismiss and Answer and
Response to Motion for Preliminary
Injunction (R 232-260) ...................................................................... Add. 232

Affidavit of [Voluntarily Dismissed] Defendant Melinda Reynolds
in support of her opposition to Plaintiffs Motion for a Temporary
Restraining Order and Preliminary Injunction (R 296-297) .............. Add. 261

Order of Dismissal without Prejudice (R 302-303) ..................................... Add. 263

Plaintiffs [Second] Motion for
Preliminary Injunction (R 306-310) .................................................. Add. 265

Plaintiffs Memorandum of Law in Support of [Second] Motion for

Third Amended Complaint for Declaratory and Injunctive
Relief (R 342-376) ............................................................................. Add. 301

Motion to Dismiss and Answer of Separate Defendants Crane and Curtis to
Third Amended Complaint and Response to Motion for

[States] Motion to Dismiss Third Amended
Complaint (R 449-453) ...................................................................... Add. 346

[States] Brief in Support of Motion to Dismiss
Third Amended Complaint (R 454-501) ........................................... Add. 351

[States] Response to Plaintiffs Motion for

[Clerks Evans, Clarke, Lewellan, and Hartmans] Motion to Dismiss
and Answer to Third Amended Complaint and Response to Plaintiffs
Motion for Preliminary Injunction (R 506-510) ................................ Add. 403

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Plaintiffs Reply Brief in Support of Motion for

Plaintiffs Brief in opposition to Motions to Dismiss

[States] Reply in support of Motion to Dismiss

[Clerks Evans, Clarke, Lewellan, and Hartmans] Reply in support of Motion
to Dismiss Third Amended Complaint (R 676-677) ......................... Add. 540

Order Denying Defendants Motions to Dismiss and Plaintiffs
Motion for Preliminary Injunction (R 678) ................................... Add. 542

State Defendants Answer to Third Amended
Complaint (R 679-706) ...................................................................... Add. 543

Scheduling Order (R 732-33) ....................................................................... Add. 571

State Defendants Motion for
Summary J udgment (R 734-746) ....................................................... Add. 573

Brief in support of State Defendants Motion for
Summary J udgment (R 747-803) ....................................................... Add. 586

Plaintiffs Motion for Summary J udgment and Incorporated
Memorandum of Law (R 1249-1304) ................................................ Add. 643

[Clerks Evans, Clarke, Lewellan, and Hartmans] Motion for
Summary J udgment (R 1305-1306) ................................................... Add. 699

State Defendants Response to Plaintiffs Motion for

Plaintiffs Response to Defendants Motions for Summary J udgment
and Incorporated Brief (R 1367-1411) .............................................. Add. 726

[Clerks Evans, Clarke, Lewellan, and Hartmans] Response to Plaintiffs
Motion for Summary J udgment (R 1416-1417) ................................ Add. 771
vi

State Defendants Reply in support of Motion for

Order Granting Summary Judgment in favor of the Plaintiffs
and Finding Act 144 of 1997 and Amendment 83
Unconstitutional (R 1431-1443) ...................................................... Add. 786

[States] Motion for Immediate Stay (R 1444-1447) .................................. Add. 799

[States] Notice of Appeal (R 1448-1450) ................................................... Add. 803

Plaintiffs Motion for Clarification of J udgment (R 1451-1455) ................ Add. 806

[States] Response to Plaintiffs Motion for Clarification of J udgment, and
Renewed Motion for Stay (R 1456-1461) ......................................... Add. 811

[Circuit Courts] Letter to Counsel (R 1462) ............................................... Add. 817

Final Order and Rule 54(b) Certification (R 1463-1465) ....................... Add. 818

Order Entering Final Order and Rule 54(b)
Certification Nunc Pro Tunc (R 1466-1467) ................................ Add. 821

Order Denying Defendants Motion for
Immediate Stay (R 1468-1469) ........................................................ Add. 823

[States Second] Notice of Appeal (R 1470-1472) ...................................... Add. 825

[Defendant Larry Cranes] Notice of Appeal (R 1484-1486) ..................... Add. 828

[Clerks Evans, Clarke, Lewellan, Hartman, and Curtis]
Notice of Appeal (R 1504-1505) ....................................................... Add. 831

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INFORMATIONAL STATEMENT

I. ANY RELATED OR PRIOR APPEAL?
No.
II. BASIS OF SUPREME COURT JURISDICTION
See J urisdictional Statement.
(___) Check here if no basis for Supreme Court J urisdiction is being
asserted, or check below all applicable grounds on which Supreme
Court J urisdiction is asserted.

(1) _X_ Construction of Constitution of Arkansas
(2) ___ Death penalty, life imprisonment
(3) ___ Extraordinary writs
(4) ___ Elections and election procedures
(5) ___ Discipline of attorneys
(6) ___ Discipline and disability of judges
(7) ___ Previous appeal in Supreme Court
(8) ___ Appeal to Supreme Court by law

III. NATURE OF APPEAL?
(1) ___ Administrative or regulatory action
(2) ___ Rule 37
(3) ___ Rule on Clerk
(4) ___ Interlocutory appeal
(5) ___ Usury
(6) ___ Products liability
(7) ___ Oil, gas, or mineral rights
(8) ___ Torts
(9) ___ Construction of deed or will
(10) ___ Contract
(11) ___ Criminal

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The Plaintiff-Appellees filed a civil lawsuit in which they challenged the
constitutionality of Amendment 83 to the Arkansas Constitution, approved by a
majority of Arkansas voters in 2004, and Arkansas Act 144 of 1997, under the
United States Constitution and the Arkansas Constitution. Amendment 83 and
Act 144 of 1997 codify the traditional man-woman definition of marriage as a
matter of Arkansas law, and prohibit the recognition of same-sex marriages of
other jurisdictions under Arkansas law.
The Plaintiffs contended that Amendment 83 and Act 144 of 1997: (1)
violate various provisions of the Declaration of Rights of the Arkansas
Constitution, art. 2, 1 to 29; (2) deprive Plaintiffs of the right to marry under
the Due Process Clause of the Fourteenth Amendment of the United States
Constitution; (3) deprive Plaintiffs of their liberty interest in autonomy, family
integrity, and intimate association under the Due Process Clause of the
Fourteenth Amendment; (4) deprive Plaintiffs of their liberty interest in valid
marriages under the Fourteenth Amendment; (5) deprive Plaintiffs of the right
to interstate travel under the Fourteenth Amendment; (6) discriminate against
Plaintiffs on the basis of sexual orientation in violation of the Equal Protection
Clause of the Fourteenth Amendment; and (7) discriminate against Plaintiffs on
the basis of gender in violation of the Equal Protection Clause of the Fourteenth
Amendment. The Plaintiffs requested a declaration that Amendment 83 and
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Act 144 of 1997 are unconstitutional under the state and federal constitutions,
and a permanent injunction barring enforcement of the laws and directing the
State and its political subdivisions to recognize marriages of same-sex couples
validly entered into in other jurisdictions.
The facts of this case are not in dispute. The parties filed summary
judgment motions and briefs, and presented argument to the circuit court. The
circuit court concluded that Amendment 83 and Act 144 of 1997 violate the
equal protection and due process guarantees of the United States Constitution,
and equivalent rights contained in Article 2 of the Arkansas Constitution. The
circuit court granted declaratory and injunctive relief, ordering the State and
political subdivisions of the State to formally recognize same-sex marriages
celebrated inside and outside of Arkansas. This Court granted the States
request for a stay of the circuit courts injunction pending this appeal. The State
contends that Amendment 83 and Arkansas Act 144 of 1997 are constitutional.

IV. IS THE ONLY ISSUE ON APPEAL WHETHER THE EVIDENCE
IS SUFFICIENT TO SUPPORT THE JUDGMENT?

No.

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V. EXTRAORDINARY ISSUES?
(_X_) appeal presents issue of first impression,
(___) appeal involves issue upon which there is perceived inconsistency
in the decisions of the Court of Appeals or Supreme Court,
(_X_) appeal involves federal constitutional interpretation,
(_X_) appeal is of substantial public interest,
(_X_) appeal involves significant issue needing clarification or
development of the law, or overruling of precedent,
(_X_) appeal involves significant issue concerning construction of
statute, ordinance, rule, or regulation.

VI. CONFIDENTIAL INFORMATION?
(1) Does the appeal involve confidential information as defined by
Sections III(A)(11) and VII(A) of Administrative Order 19?

____ Yes __X_ No

(2) If the answer is yes, then does this brief comply with Rule 4-1(d)?

____ Yes ____ No
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JURISDICTIONAL STATEMENT

1. The Pulaski County Circuit Court determined that Amendment 83
to the Arkansas Constitution and Arkansas Act 144 of 1997 violate the
constitutionally-protected rights of the Plaintiff-Appellees, under the United States
Constitution and the Arkansas Constitution, and therefore declared the laws to be
unconstitutional. This appeal raises extraordinary issues regarding the construction
of the United States Constitution and the Arkansas Constitution and the rights
granted to Arkansas citizens thereunder. The issues of law raised on appeal are: (1)
whether an amendment to the Arkansas Constitution can be declared invalid under
an earlier provision of the Arkansas Constitution; (2) whether Amendment 83 to
the Arkansas Constitution violates the Due Process Clause of the 14th Amendment
of the United States Constitution; and (3) whether Amendment 83 violates the
Equal Protection Clause of the United States Constitution.
2. I express a belief, based on a reasoned and studied professional
judgment, that this appeal raises the following questions of legal significance for
jurisdictional purposes: (1) the case presents an issue of first impression to this
Court the constitutionality of Amendment 83 to the Arkansas Constitution and
Arkansas Act 144 of 1997; (2) the appeal involves interpretation of the Due
Process and Equal Protection Clauses of the United States Constitution; (3) the
appeal is of undisputedly substantial public interest; (4) the appeal involves a
xii
significant issue needing clarification or development of the law, and involving
precedent from this Court, the Eighth Circuit Court of Appeals, and the United
States Supreme Court; and (5) the appeal involves significant issues concerning the
construction of an Arkansas constitutional amendment and an Act of the Arkansas
General Assembly.

/s/ Colin R. J orgensen

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POINTS ON APPEAL

I. THE CIRCUIT COURT ERRED BY DECLARING
AMENDMENT 83 UNCONSTITUTIONAL UNDER THE
ARKANSAS CONSTITUTION.

Chesshir v. Copeland, 182 Ark. 425, 32 S.W.2d 301 (1930)
Ark. Const., art. 2, 1

II. THE CIRCUIT COURT ERRED BY DECLARING THAT
AMENDMENT 83 AND ACT 144 VIOLATE THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE
UNITED STATES CONSTITUTION.

U.S. v. Windsor, 133 S.Ct. 2675 (U.S. No. 12-1307 J une 26, 2013)
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971),
appeal dismissed for want of a substantial federal question, 409 U.S. 810 (1972)

III. AMENDMENT 83 AND ACT 144 SATISFY THE
RATIONAL BASIS TEST.

Citizens for Equal Protection, Inc. v. Bruning, 455 F.3d 859 (8th Cir. 2006)
Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623
(U.S. No. 12-682 Apr. 22, 2014)

xiv
TABLE OF AUTHORITIES

CASES PAGE
Ankenbrandt v. Richards, 504 U.S. 689 (1992) ............................................... Arg 13

Ark. v. Sullivan, 532 U.S. 769 (2001) ................................................................ Arg 7

Ark. Dept of Corr. v. Bailey, 368 Ark. 518, 247 S.W.3d 851 (2007) ......... Arg 6, 24

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971),
appeal dismissed for want of a substantial federal question,
409 U.S. 810 (1972) .................................................................... Arg 16-19, 24

Blackwell v. State, 338 Ark. 671, 1 S.W.3d 399 (1999) .................................. Arg 24

Bond v. U.S., 131 S. Ct. 2355 (2011) .................................................... Arg 26 [FN 5]

Brickhouse v. Hill, 167 Ark. 513, 268 S.W. 865 (1925) ................................... Arg 9

Bryant v. English, 311 Ark. 187, 843 S.W.2d 308 (1992)................................. Arg 8

In re Burrus, 136 U.S. 586 (1890) ................................................................... Arg 13

Chandler v. Fla., 449 U.S. 560 (1981) ............................................... Arg 27 [FN 10]

Chavers v. General Motors Corp., 349 Ark. 550, 79 S.W.3d 361 (2002) ...... Arg 24

Chesshir v. Copeland, 182 Ark. 425, 32 S.W.2d 301 (1930) ......................... Arg 8-9

Citifinancial Retail Services Div. of Citicorp Trust Bank, FSB v. Weiss,
372 Ark. 128, 271 S.W.3d 494 (2008) ..................................................... Arg 6

Citizens for Equal Protection, Inc. v. Bruning,
455 F.3d 859 (8th Cir. 2006) ........................................... Arg 22-23, 24-25, 27

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ...................... Arg 25

De Sylva v. Ballentine, 351 U.S. 570 (1956) ................................................... Arg 13

xv
Decay v. State, 2009 Ark. 566, 352 S.W.3d 319 ........................................ Arg 23-24

District Attorneys Office for Third Jud. Dist. v. Osborne,
557 U.S. 52 (2009) .................................................................... Arg 27 [FN 10]

Duggan v. Beerman, 515 N.W.2d 788 (Neb. 1994) .......................................... Arg 9

Forum for Equal. PAC v. McKeithen, 893 So.2d 738 (La. 2005) ..................... Arg 9

Grant v. Hardage, 106 Ark. 506, 153 S.W. 826 (1913) .................................... Arg 8

Gregory v. Ashcroft, 501 U.S. 452 (1991) ...................................................... Arg 5-6

Haddoch v. Haddoch, 201 U.S. 562 (1906) ..................................................... Arg 13

Heller v. Doe, 509 U.S. 312 (1993) ................................................................... Arg 6

Herbert v. Evans, No. 14A65, 2014 WL 3557112 (U.S. J uly 18, 2014) ......... Arg 22

Herbert v. Kitchen, No. 13A687, 134 S. Ct. 893 (J an. 6, 2014) ................. Arg 21-22

Herbert v. Kitchen, U.S. Supreme Court No. 14-124 ...................................... Arg 21

Hicks v. Miranda, 422 U.S. 332 (1975) ........................................................... Arg 18

Hollingsworth v. Perry, 558 U.S. 183 (2010) (per curiam) ............................. Arg 22

Jackson v. Abercrombie, 884 F.Supp.2d 1065 (Haw. 2012) ........................... Arg 17

James v. Valtierra, 402 U.S. 137 (1971). ............................................. Arg 26 [FN 5]

Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002) ............................ Arg 23, 25

Kraemer v. Patterson, 342 Ark. 481, 29 S.W.3d 684 (2000) .......................... Arg 24

Lawrence v. Texas, 539 U.S. 558 (2003) ......................................................... Arg 19

Loving v. Virginia, 388 U.S. 1 (1967) ............................................Arg 12, 26 [FN 6]

Lybrand v. Waffard, 174 Ark. 298, 296 S.W. 729 (1927) ................................. Arg 8
xvi

Mandel v. Bradley, 432 U.S. 173 (1977) ......................................................... Arg 18

Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999) .................................... Arg 24

Maynard v. Hill, 125 U.S. 190 (1888) .................................................. Arg 26 [FN 9]

McDonald v. State, 354 Ark. 216, 119 S.W.3d 41 (2003) ...................... Arg 7 [FN 2]

McGowan v. Md., 366 U.S. 420 (1961) ............................................................. Arg 5

McQuigg v. Bostic, No. 14A196, 573 U.S. ___ (U.S. Aug. 20, 2014) ............ Arg 22

Murray v. Giarratano, 492 U.S. 1 (1989) .......................................... Arg 27 [FN 10]

Nat'l R.R. Passenger Corp. v. A.T.& S.F.R. Co., 470 U.S. 451 (1985) ............ Arg 5

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ........................ Arg 27 [FN 10]

Nordlinger v. Hahn, 505 U.S. 1 (1992) ............................................ Arg 5, 26 [FN 7]

Ohio ex rel. Popovici v. Agler, 280 U.S. 379 (1930) ....................................... Arg 14

Oregon v. Hass, 420 U.S. 714 (1975) ................................................................ Arg 7

Parham v. Hughes, 441 U.S. 347 (1979) .............................................. Arg 26 [FN 8]

Pennoyer v. Neff, 95 U.S. 714 (1878) .............................................................. Arg 12

Perry v. Schwarzenegger, 628 F.3d 1091 (9th Cir. 2011) .......................... Arg 17-18

Plymouth Twp. v. Wayne County Bd. of Commrs,
359 N.W.2d 547 (Mich. App. 1984) ...................................................... Arg 10

Priest v. Mack, 194 Ark. 788, 109 S.W.2d 665 (1937) ..................................... Arg 8

Quilloin v. Walcott, 434 U.S. 246 (1978) ............................................. Arg 26 [FN 7]

Rainey v. Bostic, U.S. Supreme Court No. 14-153 .......................................... Arg 21

xvii
Romer v. Evans, 517 U.S. 620 (1996) ....................................................... Arg 23, 25

Sailors v. Bd. of Ed. of County of Kent, 387 U.S. 105 (1967) ......................... Arg 30

Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623
(U.S. No. 12-682 Apr. 22, 2014) (plurality opinion) ........... Arg 4-5, 27-28, 30

Short v. Westark Community College, 347 Ark. 497,
65 S.W.3d 440 (2002) ............................................................................ Arg 24

Sims v. State, 333 Ark. 405, 969 S.W.2d 657 (1998) ...................................... Arg 24

Skinner v. Okla., 316 U.S. 535 (1942) .................................................. Arg 26 [FN 6]

Smith v. Bishop, U.S. Supreme Court No. 14-136 ........................................... Arg 21

Sosna v. Iowa, 419 U.S. 393 (1975) ................................................................ Arg 13

Southwestern Bell Tel. Co. v. Roberts, 246 Ark. 864,
440 S.W.2d 208 (1969) ......................................................................... Arg 6-7

Sowders v. St. Josephs Mercy, 368 Ark. 466, 247 S.W.3d 514 (2007) .......... Arg 24

State ex rel. City of Princeton v. Buckner,
377 S.E.2d 139 (W. Va. 1988) ............................................................ Arg 9-10

Storer v. Brown, 415 U.S. 724 (1974) .................................................. Arg 26 [FN 8]

Tully v. Griffin, Inc., 429 U.S. 68 (1976) ......................................................... Arg 18

U.S. v. Windsor, 133 S.Ct. 2675
(U.S. No. 12-1307 J une 26, 2013) ..........................................................passim

Wal-Mart Stores v. Coughlin, 369 Ark. 365, 255 S.W.3d 424 (2007) ............ Arg 24

Ward v. Priest, 350 Ark. 345, 86 S.W.3d 884 (2002) ....................................... Arg 9

Washington v. Glucksberg, 521 U.S. 702 (1997) ...........................Arg 25, 26 [FN 8]

Williamson v. Lee Optical of Okla., 348 U.S. 483 (1955) ................................. Arg 5
xviii

Wright v. Story, 298 Ark. 508, 769 S.W.2d 16 (1989) ...................................... Arg 9

Williams v. North Carolina, 317 U.S. 287 (1942) ........................................... Arg 13

Wilson v. Ake, 354 F.Supp.2d 1298 (M.D. Fla. 2005) ..................................... Arg 18

Zablocki v. Redhail, 434 U.S. 374 (1978) ............................................ Arg 26 [FN 6]

STATUTES AND RULES

U.S. Const., Amendment 14 .............................................................................passim

Ark. Const., art. 2, 1 ..................................................................... SoC 1, Arg 10-11

Ark. Const., art. 2, 2 ........................................................................................ SoC 4

Ark. Const., art. 2, 29 ........................................................................ SoC 1, Arg 10

Ark. Const., Amendment 7 ................................................................................ Arg 9

Ark. Const., Amendment 83 .............................................................................passim

28 U.S.C. 1738C ................................................................................ Arg 15 [FN 4]

Ark. Act 144 of 1997 ........................................................................................passim

Ark. Code Ann. 9-11-105 .................................................................... Arg 3 [FN 1]

Ark. Code Ann. 9-11-106 .................................................................... Arg 3 [FN 1]

Ark. Code Ann. 9-11-107 ............................................................................... Arg 2

Ark. Code Ann. 9-11-109 ............................................................................... Arg 2

Ark. Code Ann. 9-11-208 ............................................................................ Arg 2-3

Iowa Code 595.19 (2009) ............................................................................. Arg 14

xix
N.H. Rev. Stat. Ann. 457:4 (West Supp. 2012) ............................................ Arg 14

Vt. Stat. Ann., Tit. 18, 5142 (2012) .............................................................. Arg 14

Wash. Rev. Code 26.04.020 (2012) .............................................................. Arg 14

Ark. R. Civ. P. 54 ........................................................................................... SoC 4-5

Op. Ark. Atty Gen. No. 2013-114 ..................................................... Arg 28 [FN 11]

Op. Ark. Atty Gen. No. 2013-135 ..................................................... Arg 28 [FN 11]

Ab 1

ABSTRACT

[Abstractors Note: As explained in the Statement of the Case and
the Argument sections of the State Defendants Appellants Brief, the
trial courts ruling presents only questions of law for this Courts
consideration. There were no disputed issues of fact at the trial court
level that are material to the legal questions presented. There was no
witness testimony below. The transcript in the record of this case
consists of two hearings at which counsel presented argument to the
trial court. No witness testimony was taken in this case.]

PROCEEDINGS OF DECEMBER 12, 2013:
APPEARANCES:
Mr. J ack Wagoner, on behalf of Plaintiffs
Ms. Angela Mann, on behalf of Plaintiffs
Mr. Keith Pike, on behalf of Plaintiffs
Ms. Cheryl Maples, on behalf of Plaintiffs
Mr. Colin J orgensen, on behalf of Defendants
Mr. Brad Phelps, on behalf of Defendants
Mr. David Fuqua, on behalf of Defendants
Mr. J ason Owens, on behalf of Defendants
Mr. David Hogue, on behalf of Defendants
The Court: Weve got a Motion to Dismiss from the Defendant. Weve
also got a Motion for Injunctive Relief. If I deny both parties Motions, would this

Ab 2

be a factual dispute or are there any facts that need to be decided before these
issues are decided? R 001619.
Mr. Wagoner: Your Honor, my understanding is they dont contest the
facts that are alleged in the Complaint or the Motion for purposes of this hearing
today. I think weve confirmed that by email. I think that the facts that are plead
in the Motion or in the Complaint and in the Motion for Preliminary Injunction
will be taken as true for purpose of any factual issues that may exist. So I think
were basically arguing this on the law today, is everybody in agreement on that?
Mr. Jorgensen: Yes.
The Court: And, however its decided, if its decided one way or the other,
then we dont need a hearing or more discovery. R 001620.
Mr. Wagoner: I think it would depend, obviously, if the Motion to
Dismiss is denied, I dont know that theyre stipulating that all our facts are true
for purposes of a final hearing in the case. I think theyll probably want a trial, and
we may actually have to have, depending on the level of scrutiny the Court says
applies, have to have evidence on whether the States proffered justifications for
the Amendment 83 survive rational basis or strict scrutiny or whatever the standard
is going to be, so on the Motion to Dismiss, I think thats how that would play out
probably. On the preliminary injunction, there was some discussion about the rule
says that you can consolidate the preliminary injunction hearing with the final

Ab 3

hearing on the merits. We talked about that. I dont know what your thoughts are
on that. R 001621.
Mr. Jorgensen: Im not sure that I have authority to agree to anything,
Your Honor, but I can say that we currently have no plans or desires to take any
discovery. I dont see any need to take depositions of the Plaintiffs regarding the
factual allegations in the Complaint. Even for the purposes of a final hearing, I
think the factual allegations in the Complaint are undisputed, and I have no plans
to dispute them. R 001621-001622.
The Court: David, what do you say on that?
Mr. Fuqua: I dont see any discovery needed at all.
The Court: So the facts as theyre stated in their Complaint will be
accepted as true for purposes of deciding this issue, is that my understanding?
Mr. Fuqua: The way I see it, I think thats what everybody is saying.
The Court: Good. I just didnt want yall to go out and spend a bunch of
money on depositions if you didnt have to. R 001622-001623.
Mr. Jorgensen: Thank you, Your Honor. Thank you.
Mr. Wagoner: As far as the Order, J udge, Im open to whatever they want
to do. I do think that the Motion to Dismiss arguments and the Motions related to
the preliminary injunction arguments, most of the Defendants if not all of them
pretty much consolidated those, and so I think it makes more sense for whoever

Ab 4

goes first to say everything theyve got to say, and then the other one can say
everything theyve got to say rather than kind of chopping it up.
The Court: Lets do that. Let the defense go first, and let them finish up,
and that way you can respond to everything. You may proceed, please.
Mr. Jorgensen: Thank you, Your Honor.
The Court: Yes, sir. R 001623.
Mr. Jorgensen: Im Colin J orgensen from the Attorney Generals Office.
We represent the State Defendants in this matter, in defense of Amendment 83 to
the Arkansas Constitution and the underlying statutes that are being challenged by
the Plaintiffs in this case.
The Court: Ive read all the material that you all have sent. R 001624.
Mr. Jorgensen: Very good. Thank you, Your Honor. First of all, Id like
to address the state-law claims separately from the federal-law claims, and Ive
attempted to do that in the briefing as well. R 001624-001625.
The Court: And you were here during Cole, so.
Mr. Jorgensen: Thats correct, I was here during Cole, Your Honor, as
were you. The state-law claims are based on the Arkansas Constitution and the
States position is that as a matter of well settled law, Amendment 83 to the
Arkansas Constitution cannot be challenged under other earlier provisions of the

Ab 5

Arkansas Constitution because Amendment 83 is a part of the Arkansas
Constitution.
To the extent theres any conflict between Amendment 83 and any provision
of the Declaration of Rights or any other provision of the Arkansas Constitution
that supersedes Amendment 83 in time, the earlier provision would be repealed by
implication by Amendment 83. R 001625. And we dont even need to look at
whether theres a conflict there because as a matter of law, the people enacted
Amendment 83 by popular vote and put it in the Arkansas Constitution, it cant be
challenged under the Arkansas Constitution. R 001625-001626.
The Court: What about J udge Browns Opinion in Cole? Would that
mean that the right to privacy doesnt exist?
Mr. Jorgensen: No, I mean its true that the right to privacy is not written
in the Arkansas Constitution, but it doesnt mean the right to privacy doesnt exist
at all, it just means that when youre dealing with a constitutional amendment
enacted directly by the people acting as their own Legislature, the people have the
authority to set aside any right thats set up in the Constitution.
The Court: What if the people decided that miscegenation was a good idea
again?
Mr. Jorgensen: Well, we would look to the federal Constitution to
determine whether that was allowable. And, I believe under federal law that would

Ab 6

not stand. The people have the power to put in place whatever constitutional
provisions they want under state law. R 001626-001627. And, of course, it still
has to meet with scrutiny under the federal Constitution. And thats why Im
trying to be clear here, were only talking about the state-law claims here. But, its
all of the state-law claims because Amendment 83 is in the Arkansas Constitution,
and we briefed this to a great extent. The Plaintiffs claim that this Amendment and
the statutes violate provisions of the Declaration of Rights in the Arkansas
Constitution. The Declaration of Rights opens in Section 1 providing that all
political power is inherent in the people and government is instituted for their
protection, security, and benefit. And they have the right to alter, reform, or
abolish the same in such manner as they may think proper. And thats exactly
what the people have done with Amendment 83. R 001627.
To the extent that Amendment 83 does or does not conflict with any existing
right in the Constitution at the time when the people adopted it in 2004,
Amendment 83 is now the constitutional law that controls under Arkansas law.
And theres just no way around that, Your Honor. The only case that the Plaintiffs
have cited to argue this point is Eason v. State, an 1851 Arkansas Supreme Court
case, decided under a prior Constitution in which the Court considered a
constitutional amendment by the Legislature, not by the people directly. R
001627-001628. And the Court did determine in that case that the Legislature did

Ab 7

not have the power to amend the Constitution in a way that conflicted with existing
provisions of the Constitution. But in the same opinion, and Ive highlighted this
in the Reply Brief I filed, the Court made it clear that the people would have that
power by direct vote, and thats what happened in Amendment 7, which amended
Article 5, Section 1 of the Arkansas Constitution to provide that the people can
directly vote to amend their Constitution. And thats what happened with
Amendment 83.
The Court: So under this, this view, Cole could be amended by a
constitutional amendment that eradicated J udge Brown and the Supreme Courts
unanimous opinion? R 001628.
Mr. Jorgensen: Yes, to the extent that Cole was based on a privacy right
derived from the Arkansas Constitution, thats correct, Your Honor. R 001628-
001629. The people could enact a constitutional amendment by popular vote that
provided what was provided in Initiated Act 1 of 2008. That was a statutory
provision. It was an initiated act, so the people voted on it, but it did not amend the
Constitution. And so it could not conflict with the State Constitution. And the
Arkansas Supreme Court decided that because Act 1 violated the privacy right
derived from the Arkansas Constitution as you found, Your Honor, that it couldnt
stand. It was just a statute, and statutes cant violate the state or federal
Constitution. Here, were dealing with a constitutional amendment. That takes

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state law off the table because the Arkansas Constitution is supreme for purposes
of state law. But just because it meets with the state Constitution doesnt mean
that you dont consider the federal Constitution. R 001629.
The Plaintiffs have raised all the claims, I believe, under the federal
Constitution. The State would ask that the Motion to Dismiss all of the state-law
claims be granted without further inquiry, and, and without any need to look at the
Declaration of Rights and the provisions, and things like that because its just a
matter of well settled law that this is in the Constitution, so it cant violate the
Constitution. R 001629-001630.
Moving on to federal law. First, a brief overview of, of the Windsor case
from the United States Supreme Court in J une of this year. This is the reason the
Complaint was filed. Its the reason theres sort of an explosion of cases like this
nationwide right now because the Supreme Court issued an opinion in Windsor in
which it struck down Section 3 of the Federal Defense of Marriage Act as, as a
violation of equal protection under the federal Constitution. It is in our view
critical to read Windsor as a whole and recognize the fact that for several pages at
the beginning of the Supreme Courts Opinion in Windsor, the Court recounts the
history from the beginning of this nation that domestic relations law, marriage law
specifically, family law is the province of individual states, not the federal
government. R 001630.

Ab 9

J ust a few quotes from the lengthy Windsor Opinion, and Ive included more
in the Brief, but the Court said regulation of domestic relations is an area that has
been regarded as a virtually exclusive province of the states. And the recognition
of civil marriages essential to state domestic relations law applicable to its
residents and citizens. R 001630-001631. The definition of marriage is the
foundation of the states broader authority to regulate the subject of domestic
relations with respect to the protection of offspring, property interests, and the
enforcement of marital responsibilities. The whole subject of domestic relations of
husband and wife, parent and child belongs to the laws of the states and not to the
laws of the United States.
Following this lengthy discussion of state autonomy over domestic relations
and marriage law, the Court analyzed Section 3 of the Federal Defense of Marriage
Act under the Federal Equal Protection Clause and concluded that the law could
not withstand that scrutiny because the federal government does not have a proper
governmental interest in this area. This is the province of state governments. R
001631. And the problem was, Your Honor, at the time of Windsor and today,
some states allowed same-sex marriage and granted marriage licenses to same-sex
couples, and other states did not, and had laws that prohibited it. R 001631-001632.
And so the federal government was not allowed to take a side in this debate
that belongs to state government, and when the federal government passed a law

Ab 10

that said were not going to recognize any same-sex marriages of any state for
federal purposes, that violated equal protection because there is sexual orientation
discrimination there. But the federal government could not even have a rational
basis for that because this is a state issue, not a federal issue. And some states have
decided to allow same-sex marriage, and the federal government must respect the
autonomy of those states that decide to allow it. And Im sure the federal
government would not be allowed to take the other side in the debate either, I dont
know how that would logistically work, but if thats what had happened, it would
be equally improper under the federal Constitution. R 001632.
Nowhere in the Windsor Opinion did the U.S. Supreme Court find that there
is a fundamental constitutionally protected right to same-sex marriage under the
federal Constitution. Nowhere did the Court announce that sexual orientation is a
suspect class for equal protection purposes. Nowhere did the Court say that states
must allow same-sex marriage or recognize same-sex marriages of other
jurisdictions. R 001632-001633. The Court didnt hold any of those things. It
was all about the federal government taking a side in a debate that really the
federal government had no business being in the first place because this is the sole
province of individual state government.
The Court struck down Section 3 of the Defense of Marriage Act, which
defined marriage for federal purposes, but the Court did not strike down Section 2,

Ab 11

which explicitly authorizes state governments to decline to recognize same-sex
marriages of other jurisdictions. Those provisions of Arkansas law and the
majority of other states that have those provisions today are explicitly authorized
by federal law today. Its not in the federal constitution, but it is in the federal
statute. R 001633.
We have briefed the heck out of Baker v. Nelson in this case. Thats a 1971
Minnesota Supreme Court case where the Minnesota Supreme Court found that a
state provision codifying the traditional definition of marriage was constitutional
under federal law in the face of due process, equal protection, and privacy
arguments. R 001633-001634. The Minnesota Supreme Court upheld that
provision. The Plaintiffs appealed to the United States Supreme Court, and the
U.S. Supreme Court dismissed the appeal for want of a substantial federal question.
When the U.S. Supreme Court does that, it constitutes a ruling on the merits, the
same thing as affirming exactly what the lower Court did. And so Baker v. Nelson,
at least as of 1972, stood for the proposition that a state law that codifies the
traditional definition of marriage to the exclusion of same-sex marriage is
constitutional at least for equal protection due process and privacy purposes. And
weve cited a litany of cases where state and federal courts nationwide have looked
back at Baker and said were bound by Baker. R 001634.

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Until the Supreme Court says otherwise, Baker controls these sort of claims
levied against a state law under the federal Constitution, and Baker requires
dismissal of these sorts of claims. R 001634-001635. Theres no mention of the
Baker case in the Windsor Opinion from this year even though the same issues
were squarely presented to the Court. The Court did not take the opportunity to
say that Baker is no longer good law. The Plaintiffs argue that doctrinal
developments now indicate that Baker is no longer good law even though the U.S.
Supreme Court has not said that. I think its clear when you look at the Hicks v.
Miranda case that whether that appears to be true or not, even if youre looking at
other Supreme Court cases on similar issues where it looks like theyve decided
with different reasoning or applied different reasoning, until the U.S. Supreme
Court explicitly addresses the issue, the prior case controls. Thats how our system
works, with a Supreme Court that is the final say on constitutional law. The Court
hasnt backed up on Baker at all. R 001635.
In Lawrence v. Texas in 2003, the Court didnt mention Baker, and although
the Court was dealing with a criminal sodomy statute and struck that down, the
Court was very careful to note this did not involve a statute that requires a state
government to give formal recognition to any sort of relationships. R 001635-
001636. Lawrence involved a statute that criminalized consensual private

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behavior in the bedroom. Not a statute that simply excludes someone from formal
government recognition of marriage.
To the extent that theres a controlling case here aside from Baker, it would
be Citizens for Equal Protection Incorporated v. Bruning, a 2006 Eighth Circuit
case thats squarely on point. The Plaintiffs in that case challenged a Nebraska
constitutional amendment that was substantively identical to Arkansass
Amendment 83, the definition of marriage as man and woman, and no recognition
of same-sex marriages from other states. That case landed at the Eighth Circuit
Court of Appeals which as you know governs federal courts in Arkansas and other
states, and is the only Court standing between this State and the United States
Supreme Court. R 001636. And in Bruning, the Eighth Circuit specifically held
that the Plaintiffs equal protection argument failed on the merits. R 001636-
001637. The court said that sexual orientation is not a suspect classification for
equal protection purposes. That means rational basis review applies, and no
heightened scrutiny. The Eighth Circuit emphasized that whatever our personal
views regarding this political and sociological debate, we cannot conclude that the
states justification lacks a rational relationship to legitimate state interests. So
the Eighth Circuit found that a state constitutional provision just like Arkansass
Amendment 83 was rationally related to legitimate government interest and was
constitutional.

Ab 14

The Plaintiffs response to Bruning is that its not technically controlling
over this Court because this is a state court. That is technically true. But it is the
highest federal court that has directly addressed these issues in recent time, and its
certainly persuasive and instructive. And if we were in federal court and the
Plaintiffs were raising the exact same federal claims theyre raising in this case, it
would be binding. R 001637. If we had just moved over to the federal courthouse
and had the same exact Complaint, the Court would be bound to dismiss the equal
protection claims under Bruning. R 001637-001638.
Okay, Ill quickly address the individual claims, Your Honor. First, the
gender discrimination claim, this is a variety of the equal protection claim, that
fails on the merits because Amendment 83 and the marriage laws do not treat
anyone differently on the basis of their sex. Men and women are treated exactly
the same under Amendment 83 and the marriage laws. No man can marry a person
of the same sex. No woman can marry a person of the same sex. Any man can
marry a person of the opposite-sex. Any woman can marry a person of the
opposite-sex. It sounds like it kind of deals with gender and its fuzzy, but the
answer lies in the boatload of cases Ive cited where courts have considered this
sort of argument, a gender discrimination claim, and concluded that it doesnt even
state a claim at the outset. We dont even review at any level of scrutiny because
there is no gender discrimination here because a marriage law doesnt treat men

Ab 15

and women differently. R 001638. And all the cases where Courts including the
U.S. Supreme Court have found a gender classification that warrants any type of
scrutiny have involved laws where men and women are somehow treated
differently, and we dont have that here.
Plaintiffs rely on Jegley v. Picado, which is the Arkansas sodomy case that
came before Lawrence v. Texas. In Jegley v. Picado, the sodomy statute in
Arkansas applied only to persons of the same-sex. But when the Arkansas
Supreme Court reviewed that case, the Court did not hold that the sodomy statute
impermissibly discriminated against the Plaintiffs on the basis of their gender. The
Court decided on a privacy theory just like Cole v. Arkansas, and the Court
addressed an equal protection argument raised based upon sexual orientation.
Thats a different classification Ill address next. The Court applied rational basis
review to that classification based on sexual orientation. And the Arkansas
Supreme Court concluded that homosexual citizens do not constitute a protected
class. R 001639. So we have binding Arkansas Supreme Court precedent to go
along with the Eighth Circuit in Bruning and the United States Supreme Court in
Baker, all holding that sexual orientation is not a suspect classification for equal
protection purposes. R 001639-001640.
And thats the States position on the sexual orientation discrimination claim,
which is analyzed separately from the gender discrimination claim even though

Ab 16

theyre both equal protection. There is a classification drawn based upon sexual
orientation in Amendment 83 and any law like it across the country because based
upon your sexual orientation, you can or cannot get married to the person of your
choice, thats true. Whats also true is that the United States Supreme Court has
never held that this constitutes a suspect classification that warrants heightened
scrutiny. And ten federal courts of appeal including the Eighth Circuit in Bruning
have explicitly held that sexual orientation does not constitute a suspect
classification, and rational basis review applies to any law that classifies people
based upon sexual orientation. R 001640.
The only federal court of appeals that has concluded otherwise was the
Second Circuit in Windsor. R 001640-001641. In Windsor, the Second Circuit
conducted the detailed analysis that the Plaintiffs want us to go through in this case
and determined that gays and lesbians should be treated as a suspect class under
the Equal Protection Clause. But the United States Supreme Court reviewed the
Second Circuits Opinion in Windsor and did not adopt that reasoning at all.
Theres nowhere in the Windsor Opinion, Ive read it multiple times, nowhere did
the Court adopt that reasoning from the Second Circuit. They got to the same
result but because of federalism concerns, not because of some fundamental right
or suspect class under the federal Constitution. So, all of the relevant authority
indicates that theres not a suspect class at issue here. There is classification based

Ab 17

on sexual orientation, and we reviewed that under the rational basis standard. R
001641.
Many Courts have concluded over the years that similar marriage laws are
furthered by legitimate state interests, and I think you can look at Windsor and see
the United States Supreme Court confirming that states have legitimate interests in
regulating and defining marriage and always have from the beginning of this
country. R 001641-001642. The Court can conceive of any rational basis. We
dont even have to argue it. And the burden is on the Plaintiffs under the rational
basis test. The Plaintiffs bear the burden of demonstrating that there is no rational
basis that is promoted by a law thats reviewed under the rational basis test.
There are claims raised on behalf of the child Plaintiffs in this case, and the
partners of the biological parents of those child Plaintiffs. What the Plaintiffs want
is an order commanding the Health Department to issue birth certificates denoting
these partners of the biological parents of the children as parents of the children.
That relief is not available based upon marriage laws. R 001642. The fact of the
matter is even if we didnt have Amendment 83 and the underlying statutes, even if
Arkansas law allowed same-sex marriage, it would not automatically follow that
you place the spouse of a biological parent as the parent on a birth certificate. R
001642-001643. It doesnt work, and Ive outlined the relevant law about who
goes as a parent on a birth certificate in Arkansas, and its based on biological

Ab 18

parenthood. You have to have individual consideration of the relationship between
the child and the non-parent to confirm that theres some sort of in loco parentis
relationship there, and then yes, the non-parent can become a parent on a childs
birth certificate based upon that. But its not based upon being married to the
biological parent or not. Thats just not a factor at all.
The Plaintiffs have cited a statute that shows in Arkansas theres a
presumption that the husband of a woman who has a child is the father and goes on
the birth certificate, but its rebuttable. If another man comes forward and says, no,
thats my child and paternity is established in another man, that other man goes on
the birth certificate even if mom was married to, and the husband doesnt get on
there if hes not the real father. R 001643.
The Court: You know how, how parentage was decided here in this
courthouse not too many years ago back in, I guess, in the sixties and early
seventies. The County J udge would, would make that decision based upon looking
at the childs ear and the fathers ear, and make that decision. I guess things
change.
Mr. Jorgensen: Things do change, Your Honor, and things may change in
this area in the future, but were concerned with the state of the law today as were
here on this case.

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I briefed and demonstrated that theres no fundamental constitutionally
protected right of the child Plaintiffs to some sort of familial relationship with their
biological parents partner, and theres no fundamental constitutionally protected
right the other way of the partner to the child. Thats well established. R 001644.
The Plaintiffs response is to rely upon a recent Arkansas case, Bethany v. Jones,
2011 Ark. 67, in which a former same-sex partner of a biological mother of a child
was granted visitation with the child. I read the case, and I found that in fact the
case says loud and clear that theres no automatic or otherwise protected right as
between this non-biological parent and the child absent an in loco parentis theory,
where the partner of the biological mother stood in loco parentis to the child from
the childs birth for for a certain amount of time, and, therefore, based upon the
individual facts of that case, because of the relationship between the child and the
partner, she was granted visitation. R 001644-001645.
In the context of this discussion, the biological mother actually made the
argument that no, you cant allow her visitation because we were never married.
Arkansas wouldnt let us get married. And the Arkansas Supreme Court responded
to that argument and made it clear that whether you are married or not doesnt
matter. We look to the relationship between the child and the person who is trying
to assert parental rights, and it doesnt matter if that adult has some other
relationship with the biological parent or not. R 001645. Bethany is controlling,

Ab 20

and it requires dismissal of whatever claims are attempted to be raised here
between the children and the non-biological partners of the biological parents. R
001645-001646.
Theres one other claim raised by Plaintiff Navarro, who is married under
New York law, and she seeks a divorce of her New York same-sex marriage. In
this case, first of all, thats not a proper claim to challenge Amendment 83 because
Amendment 83 doesnt say anything about whether Arkansas can or cannot grant a
divorce of a same-sex marriage. There is a statute, Ark. Code Sec. 9-11-208(a)(2),
that appears to specifically prohibit an Arkansas Court from granting a divorce of a
same-sex marriage from another jurisdiction. This would appear at first to
properly challenge that statute, although not Amendment 83, but there is no
fundamental constitutionally protected right to divorce under the federal
Constitution. This is another area where state governments are given complete
authority and even more so than with marriage. R 001646. Divorce is a privilege.
You have to have grounds, and you have to meet state law, and its the province of
state government, and if the state wants to say were not going to grant divorces of
marriages we dont even recognize in the first place, theres not a constitutional
concern there on this claim brought by Plaintiff Navarro. R 001646-001647.
We are in agreement, I believe, that if the Court wishes to entertain Ms.
Navarros claim, the Court can do so without reaching a constitutional issue. Ive

Ab 21

outlined a number of ways that we could go about dissolving her marriage without
even mentioning the statute that appears to prohibit divorce of a same-sex marriage.
And if the Court can resolve a claim without reaching a constitutional issue, its the
Courts duty to do that. The claim can be dismissed just because she has no
entitlement to divorce and theres a statute that prohibits the exact relief shes
seeking, or we could look to New York law and apply New York law. Presumably
New York allows divorce of the same-sex marriage because New York allows
same-sex marriage. R 001647. The Court could declare it a nullity from the
beginning, void from inception, as the Supreme Court has done in number of other
cases involving other types of marriage that Arkansas doesnt recognize, but
someone got in another state. R 001647-001648. The Court could grant an
annulment. The Court could find that theres no legal relief available and grant
equitable relief. Ive outlined all of this in the Brief. And my point is if youre
inclined to grant some relief to Ms. Navarro, it can be done without any
constitutional issue, and I dont have anything to say about that because were here
to defend the constitutionality of the amendment and the statutes.
The final claim raised by the Plaintiffs is the right to interstate travel. This is
a purely federal claim. Thats a federal right thats well recognized. There are
three varieties of the right to interstate travel, and I think were in agreement that
were talking about the third variety which is the right to be treated like a

Ab 22

permanent resident of a state when you move to that state, to not be treated less
than other residents of the state. The Supreme Court has characterized this as the
right of the newly arrived citizen to the same privileges and immunities enjoyed by
other citizens of the same state, from Saenz. R 001648. As a matter of law just
from reading the statutes, you can see that Amendment 83 and the marriage
statutes do not treat anyone differently on the basis of their residence or length of
their residence or whether they were born in Arkansas or whether they lived in
another state or anything else. R 001648-001649. The right to interstate travel is
not implicated here as a matter of law because no one, no citizen of Arkansas
whether theyve lived here their whole life or one day is entitled to same-sex
marriage, and it doesnt matter if youve gone somewhere else and obtained a right
in another state and try to bring it into Arkansas, Arkansas is not obligated to give
you special treatment above and beyond the other citizens of Arkansas. Thats not
what the right to interstate travel provides. And I explained this with reliance upon
Califano v. Torres, a 1978 U.S. Supreme Court case which basically holds that
what the Plaintiffs are trying to do with the right to interstate travel in this case
would altogether transpose that right. And its not that a state has to grant higher
rights to someone just because they had them in another state, and they moved into
your state. If your state doesnt allow that for other citizens, you dont have to
allow it for somebody new just because they had it in another state. R 001649.

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If you read the portions of Torres that I cited in the briefing, its very clear.
In that case, a person had been receiving supplemental security income benefits in
a state, moved to another state, actually Puerto Rico, but it was treated as a state for
the purposes of this case, so, moved from state A to state B, and state B did not
allow SSI benefits. State B said were not going to give you those SSI benefits,
but the Plaintiff got them in state A. J ust like if you got married in one state and
you moved to Arkansas, and Arkansas says that we dont recognize that marriage.
The Supreme Court concluded that this argument altogether transposed the right to
travel. The Court characterized what the plaintiff was trying to argue as a person
who travels to Puerto Rico must be given benefits superior to those enjoyed by
other residents of Puerto Rico if the newcomer enjoyed those benefits in the state
from which he came. Not true. Thats not what the right to interstate travel
provides. It provides that you cannot treat someone less or give them less rights or
not offer a benefit that you offer to other citizens. R 001650. The Court has never
held that the right to interstate travel embraces a doctrine that state B has to give a
right that state A gave to a new resident when state B doesnt give that to its other
residents. R 001650-001651. As the Court put it, such a doctrine would apply
with equal force to any benefits the state might provide for its residents and the
broader implications of such a doctrine in other areas of substantive law would bid
fair to destroy the independent power of each state under our Constitution to enact

Ab 24

laws uniformly applicable to all of its residents. Califono v. Torres is controlling
on the right to interstate travel claim and theres been no response from the
Plaintiffs to that. R 001651.
Quickly, on the preliminary injunction motion, of course, the Plaintiffs bear
the burden there, and the States position is that no claim has been stated, all of the
claims are subject to dismissal as a matter of law right now, and only one of them
do you even need to conduct any analysis, thats the sexual orientation
discrimination claim, equal protection, and rational basis review applies there, and
the Court can conceive of numerous rational basis or you can look at my Brief and
you can find them there, and you can look at other court opinions and find them. R
001651-001652. Everything else is dismissed without any inquiry and that one is
dismissed because Amendment 83 meets the rational basis test, and so if the whole
Complaint is subject to dismissal, there can be no preliminary injunction because
the Plaintiffs are not likely to prevail on the merits if the whole Complaint is
dismissed on the merits.
The preliminary injunction motion is brought only on behalf of the Plaintiffs
who have been married in other states and seek to have those marriages recognized
by Arkansas. Its not brought by the unmarried Plaintiffs so it only challenges
those, you know, Section 2 of Amendment 83 that says we dont recognize out of
state same-sex marriages and the statutes that provide the same thing, it does not

Ab 25

challenge the definition of marriage. R 001652. The claims that are being brought
by those married Plaintiffs are the sexual orientation discrimination, equal
protection, and theres an attempt to bring gender discrimination too, but that fails
for the reasons I explained, and then the right to interstate travel claim because
theyve gone and gotten this benefit in another state, and now they seek to force
Arkansas to grant them that benefit in Arkansas even though Arkansas doesnt
grant that benefit to other Arkansas citizens. R 001652-001653. Califono v.
Torres controls, and all of the ten Circuit Court of Appeals that have said sexual
orientation is not a suspect classification control especially Bruning, the Eighth
Circuit, and Baker still controls from the U.S. Supreme Court. I believe I have
covered everything I intended to, Your Honor, any questions?
The Court: No, thank you.
Mr. Jorgensen: Thank you for your time. R 001653.
[Abstractors Note: R. 001654-001681 not material to this appeal.]
The Court: Whos up next?
Mr. Fuqua: You know, I would like to exercise my rhetorical skills here,
but I really just need to say that my clients, the Saline County and Pulaski County
Clerks, intend to follow the law which is what theyve done in the past and will
continue to do in the future. R 001682.

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The Court: And I dont know about all of your clients, but I know Larry
does a great job.
Mr. Wagoner: Thank you, Your Honor. J ack Wagoner for the Plaintiffs.
I do have a little slide show to take you through, instead of quoting things to you,
Im going to show them to you and read them to you, so maybe that will be a little
less painful for you, I dont know. I want to make sure I cover everything because
its an honor to be involved in a case of this magnitude and to work against
lawyers like weve got over here. Its been awesome people to work against, the
lawyers on the other side. You find out when you know deep in their hearts they
agree with your side. So, but theyre good lawyers, so theyre up here arguing
their cases and doing a good job of it.
The Court: Most lawyers say things like that right before they hit him in
the chin. R 001683.
Mr. Wagoner: All right. Your Honor, just, start off, terminology, I kind of
refer to the claims in these cases in two ways. R 001683-001684. One is the right
to marry claims which are the Plaintiffs that want to get married and cant get
married because of Amendment 83. And then Ill refer to the other part of the case
as the recognition claims. Recognition meaning Plaintiffs that went and got
married in other states and theyre now here in Arkansas, and they want Arkansas
to recognize those marriages.

Ab 27

The preliminary injunction requested only deals with the recognition
Plaintiffs, the people that have already traveled to other states, gotten married in
other states, and now are in Arkansas, and they cant file joint Arkansas tax returns,
and the Director of the Department of Finance and Administration was sued saying
look, you should recognize these marriages, you ought to accept these joint tax
returns, and then also, the Director of the Health Department was sued because at
least one of our Plaintiffs are expecting children, and have a child born since they
were married, and want a birth certificate that shows the couple as being the
parents of the child. R 001684. So the child thats been born is legitimate and the
child thats going to be born probably in February is considered legitimate when
born. Thats what were asking for. R 001684-001685.
From there let me jump into the arguments. On a Motion to Dismiss, where
you throw something out on the pleadings, its a strict standard to do that, to throw
the case out and say we dont have a chance to prove our case. And so if you buy
virtually every argument that the Defendants are posing in the case, and this is a
rational basis case and all this Court does is look at from a rational basis standpoint,
thats not the end of the day. Even if thats the way it comes down, and Im going
to explain why it doesnt go that way, but if its a rational basis analysis, we still
have the opportunity to prove that there is no rational basis. R 001685. The
government says we dont even have to put forward a motivation for these laws or

Ab 28

governmental justification for them. R 001685-001686. Theyve posed a few.
They say possible bases are protecting families, societal stability, procreation, best
interest of the children are met by being cared for by biological parents.
The proffered rational bases for this type of law, theyre all kind of wrapped
up in the idea that its better to have kids in the context of a man/woman marriage,
theyre kind of wrapped up in that idea, and that thats better for children, and its
better for marriage in general. But, I think we have the opportunity rather than
being dismissed on the pleadings to come in and show why thats not the case.
This is a quote from the Windsor case. The American Psychological
Association filed a Brief in support of the Plaintiffs. This Brief was, and the
American Psychological Association says bottom line, 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. R
001686. Now the first part of it talks about that sexual orientation is not a choice,
gay and lesbian people form stable, committed relationships that are equivalent to
heterosexual relationships. R 001686-001687.
Anyway, the statement from the Brief that was filed by the American
Psychological Association in the Windsor case just kind of blows out and cites
study after study and scientific evidence that these concerns about same-sex
marriage damaging children or threatening the institution of marriage or that sort

Ab 29

of thing dont have any scientific basis to them, theres no support for that. And
this Brief filed by the American Psychological Association which I would note is
the largest professional organization of Professional Psychologists in the world
was also joined by the American Medical Association which is the largest
professional association of doctors in the nation, it was joined by the American
Academy of Pediatrics which is the largest professional association of pediatricians
in the nation, it was joined by the American Psychiatric Association which is the
largest professional organization of psychiatrists in the nation, and it was joined by
the National Association of Social Workers which is the largest professional
organization of social workers in the nation who all agreed with this. R 001687.
Our Brief also cites studies in connection with this issue, and you have to
question from reading the cases that have come out, Windsor, and the cases that
follow that, whether coming in here and proving that same-sex marriage is not in
any way harmful to traditional notions of marriage and its not a threat to
traditional marriage, it doesnt hurt children, you have to question whether its
even necessary to come in here with experts and prove that anymore. If you look
at the statements that are in Windsor, if you look at pages 30-35 of the Plaintiffs
response to Defendants Motion to Dismiss and page 28 of the Motion to Dismiss
response, we go through the cases which including Windsor just seem to kind of
blow off the idea that this is about anything other than just discriminatory motive

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these days. And you could find as a matter of law that theres not a rational basis
given the case law thats out there at this point on the issue. R 001688.
But the long and short of that is even if it came down to just a rational basis
analysis, thats all there is to this, we get to come in and show why theres no
rational basis for it, and we shouldnt be denied our day in your Court and our
opportunity to do it. R 001688-001689. All right, thats mainly what I want to say
at the outset about the Motion to Dismiss.
On the preliminary injunction, the first thing weve got to prove is that
theres a likelihood of irreparable harm or that irreparable harm is going on right
now. None of the Defendants in their Briefs argue theres not irreparable harm
because theres cases out there that say an ongoing constitutional violation or
threat thereof is irreparable harm. R 001689.
This is from a post Windsor case out of the Eastern District of Michigan,
J une 28 this year, when reviewing a Motion for Preliminary Injunction, if it is
found that a constitutional right is being threatened or impaired, a finding of
irreparable injury is mandated. R 001689-001690. And they granted a preliminary
injunction like what were seeking here in that case several weeks after the
Windsor case came down.
The Court: But in that one, the state had already passed the Amendment?

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Mr. Wagoner: Was that the Michigan case? No, that was the Illinois case,
Your Honor. Theres three that have granted preliminary injunctions. The
Michigan case is the one where the man had a partner, I think that was about to die.
Thats not it?
Ms. Mann: No.
The Court: We need you up here.
Mr. Wagoner: Yeah, shes, shes
Ms. Mann: The medical, status is married for employee benefits. R
001690.
Mr. Wagoner: Right. They had passed something in Michigan saying that
cohabitating couples werent entitled to certain government benefits, and based
largely on the Windsor case. The Court granted a preliminary injunction saying
they had to give the same-sex partner, the couple those government benefits. But
in that case, they made this, the statement about irreparable injury. I dont even
have to go to those cases though really, Your Honor. I mean heres another one
talking about constitutional violations regularly recognized as triggering
irreparable harm unless they are properly remedied, citing the United States
Supreme Court case, and that was quoted in the Southern District of Ohio case
which was, came down J uly 22 of this year. It was also decided on the basis of
Windsor and that one also granted a preliminary injunction, and that was the one

Ab 32

where the mans partner was dying, and they were anxious to have the man
recognized as his spouse before the death occurred and the Court granted the
preliminary injunction. R 001691. It wasnt all based on that though because then
there were two other Plaintiffs added to the case, and the partner of the second one
wasnt about to die or anything, and the Court granted a preliminary injunction
requiring them to be recognized as a married couple also. R 001691-0016192.
And that was based on Windsor.
The other cases we cite in our Brief that, ongoing constitutional violation
represents irreparable harm. The McCuen case, at 321 Ark. 467, and the United
States Supreme Court case we cited in our Brief, Elrod v. Burns, 427 U.S. 347, at
373. Theres also a Ninth Circuit case from 2008 that says the same thing, and
thats the Nelson case at 530 F.3d 865, 882. Given all of that, the Defendants dont
even appear to argue the irreparable harm issue in their Brief. They go on to the
success on the merits argument and what we have to show there for the preliminary
injunction is a reasonable probability of success on the merits. And like my friend
Mr. J orgensen did in starting out, it all starts with the Windsor case, the United
State Supreme Court decision in J une. I have a different take on that. R 001692.
Me and the majority in Windsor have a different take on it than Mr.
J orgensen. R 001692-001693. So let me tell you what the majority had to say and
what I think the analysis that comes out of Windsor is. First of all, J ustice Roberts,

Ab 33

who was the first and center in the Windsor case and Mr. J orgensen would like you
to think Windsor is about federalism. Windsor is about the feds saying state law,
marriage has always been left to the states, and defining marriage has been left to
the states, and this federal law is wrong because the feds are trying to intrude into
that area belonging to the states. Thats what they want to say that the case is
about. But thats not what the majority in the case says its about. The majority in
the case says this. The States power in defining the marital relation is of essential
relevance in this case quite apart from principles of federalism. If it was all about
federalism, all they had to say was what I just said. This is an area for the states;
were keeping our hands off of it. They didnt do that.
They talked about the history of states defining marriage, and this being an
area of the states. They talked about that for another reason which Im going to get
to in a minute. R 001693. But they specifically said this isnt about federalism. R
001693-001694. To try to narrow the opinion, of course, J ustice Roberts, first
thing he says is, this is just about federalism, this isnt about fundamental rights to
marriage or privacy or suspect classes or any of that. Its just about federalism.
But arguments based on dissenting opinions are not the strongest arguments. And
the majority opinion goes on to say state laws defining and regulating marriage, of
course, must respect the constitutional rights of persons. So, theres not a
federalism principle that the Defendants would almost try to sell to you that says

Ab 34

the states can do anything they want when it comes to defining marriage. No, the
federal government and the U.S. Constitution, and the constitutional rights come
into play. The states are generally free and left alone to define marriage as they see
fit, to make the rules and regulations that have to do with marriage and divorce, but
theyve got to respect the constitutional rights of persons in doing so. R 001694.
The Court went on from there to talk about what these constitutional rights
of persons are that have to be respected when the state does define marriage. R
001694-001695. And, and what they said was that discriminations of an unusual
character suggest careful consideration to determine whether they are obnoxious to
the constitutional provision. This is critical right here. This is why the long
history of the federal government staying out of the marriage business was
discussed in Windsor. Its because the Defense of Marriage Act was an unusual
exercise of the federal government sticking their nose into states business when it
has to do with marriage and saying a certain subset of marriages, same-sex
marriages, is not going to be recognized. And the Court talks about the long
history of the federal government staying out of the marriage business to make the
point that this discrimination here by the federal government against same-sex
couples was a discrimination of an unusual character. Its something that
historically hadnt been done. R 001695. So if you find theres a discrimination
of an unusual character in this case, then you go on to look with careful

Ab 35

consideration which is not a rational basis word, as to whether this discrimination
is obnoxious to the Constitution. R 001695-001696.
Lets look at what they did in Arkansas. In Windsor, the discrimination of
unusual character was, and this is their quote, the unusual deviation from the
usual tradition of recognizing and accepting state definitions of marriage. Thats
why they went into that history of the federal government and set these state
definitions of state marriage because
The Court: The Dissent said that what the majority did was open the barn
door without opening it, and then they went back and threw it out on the rules that
violated the states rights to do these things. In fact, Scalia said its foreshadowing
of what theyre going to do in the future.
Mr. Wagoner: Right.
The Court: But they hadnt done it yet though.
Mr. Wagoner: Well
The Court: They didnt say that this was an unconstitutional ban.
Mr. Wagoner: Well, they laid out the analysis that goes into looking at
state laws is what my argument is. R 001696. My argument is that Windsor now
sets the standard which is higher than rational basis review. Windsor changed the
landscape, because we dont look at these cases on a rational basis review anymore.
And thats where Im leading with it.

Ab 36

Im going to talk about what J ustice Scalia said in a minute because I do
have some comments on that. But in Windsor, the discrimination of an unusual
character that opened the door to this careful consideration, a higher level of
analysis than rational basis was that the feds were deviating from the usual
tradition of recognizing and accepting state definitions of marriage. So here, I
think, is what Arkansas did in saying were not going to recognize marriages from
other states if theyre same-sex marriages. Is that a discrimination of unusual
character? Is it an unusual deviation from the usual tradition with respect to that,
and I submit it is. R 001697. Because look here, this is 1837, nearly two hundred
years ago this was what our first statute book says. R 001697-001698. All
marriages contracted without this state which are valid by the laws of the state or
country in which they were consummated and the parties residing shall be valid in
all courts in this state. That was in 1837. Look here, it was in the Crawford and
Moses Digest which came next. It was in Popes Digest which came next, and its
in, it was in Arkansas Statutes Annotated which came next, and its in the
Arkansas Code. So for nearly two hundred years, its been statutorily codified that
we recognize marriages from out of the state or out of the country if they were
valid in the state or country where they were consummated. And in fact, the
common law recognition has gone even broader than the statutes. The case law
says whether people reside in any other states or countries doesnt matter. If they

Ab 37

do, if somebody does a legitimate marriage in any other state or any other country,
it has always been recognized in Arkansas as legitimate. R 001698.
The history and tradition of that is just as strong as the history and tradition
of the federal government keeping its nose out of the marriage business. R
001698-001699. And Arkansas action in deviating from this, this unusual
deviation from the usual tradition of recognizing and accepting these marriages is
just as unusual as what the federal government did in saying, you know, were
going impose this definition on the states. And what that means is it is a
discrimination of an unusual character that exists by virtue of Amendment 83.
And you go on to the careful consideration to determine whether the Amendment
is obnoxious to the Constitution. From there, the Court says once you found that
theres this unusual discrimination that departs from, its something way out of the
ordinary like what the feds did with the Defense of Marriage Act and what
Arkansas has done with Amendment 83, you go on to careful consideration to look
at the constitutional implications, and they said what you look to is to determine
whether the resulting injury and indignity is a deprivation of the essential part of
the liberty protected by the Fifth Amendment, and where all of this is headed is,
Windsor is primarily a substantive due process case. Im going to convince you of
that, I hope, before this is done. R 001699.

Ab 38

Im going to show you what they talk in substantive due process terms all
the way through. R 001699-001700. Theyre talking about the right to marriage,
the right to moral and sexual choices, theyre talking about those sorts of things
which those things fall under privacy, privacy falls under liberty. Thats the way it
breaks down in the cases and the things that the Courts have said. And so here
they say we look to see whether the injury is a deprivation of an essential part of
the liberty protected by the Fifth Amendment. The United States Supreme Court
goes on from there in analyzing the Defense of Marriage Act law, and heres what
they said about it. The differentiation demeans the couple whose moral and
sexual choices the Constitution protects. And it humiliates tens of thousands of
children now being raised by same-sex couples. The law in question makes it
more difficult for the children to understand the integrity and closeness of their
own family and its concord with other families in the community and their daily
lives. So, theres no reason for the analysis in this case to come out any different.
If you track the way they say we go in Windsor, do we have a discrimination of an
unusual character? R 001700. Ive made my case as to why Amendment 83
doing something thats never been done as far as Arkansas saying were not going
to recognize certain out of state marriages is a discrimination of an unusual
character. R 001700-001701. If it is, we go from there to get a careful

Ab 39

consideration, and to look at the constitutional implications. When the United
States Supreme Court did that, this is the conclusion they came up with.
I say its primarily a due process case. The Court in Windsor, Im trying to
isolate here what the constitutional interest is theyre protecting. One place they
say the government cannot deny the liberty protected by the due process clause of
the Fifth Amendment. And the liberty clause is where the Court has historically
found the right to privacy and those related rights to exist in marriage and sexual
relations and contraception and all those things that have fallen under the right to
privacy which is under the right to liberty. Then they also said the Defense of
Marriage Act is unconstitutional as a deprivation of the liberty of the person
protected by the Fifth Amendment. R 001701. In another place, they say the
liberty protected by the Fifth Amendments due process clause contains within it
the prohibition against denying to any person the equal protection of the laws. R
001701-001702. So, Id say its eighty per cent due process case with a dab of
equal protection thrown in here and there with a specific disclaimer that its not
about federalism. Thats what Windsor boils down to, I think.
And so where we really go with this is looking to do we have rights that are
involved in what Amendment 83 does that are rights that have been recognized as
higher order rights, fundamental rights, or rights that are given substantial analysis
or constitutional protection? And lets look at the liberty interests that are involved

Ab 40

here. This is in Windsor. Marriage is one of the liberty interests theyre talking
about. Marriage is more than a routine classification for purposes of statutory
benefits. Theyre saying marriage is some higher order than just that. Im trying
to isolate now the liberty interests that are involved. R 001702. Marriage is one of
them because theyre talking about marriage. R 001702-001703. The
differentiation demeans the couple whos moral and sexual choices the
Constitution protects. So marriage, moral and sexual choices. Those are three of
the liberty interests that are involved here. Private consensual sexual intimacy
between two adult persons of the same-sex may not be punished by the state, and it
can be but one element in a personal bond that is more enduring. So marriage,
moral and sexual choices, private consensual sexual intimacy, not just between two
adult persons, but two adult persons of the same-sex. These are liberty interests
that are being looked at and analyzed in the Windsor case that are protected by our
Constitution.
From there, I think youve got to go to other Supreme Court cases in the past,
and youve got to look at what kind of constitutional protection has been afforded
these liberty interests, marriage, sexual privacy, consensual sexual intimacy
between adult persons of the same-sex or not. In Loving v. Virginia, marriage is
one of the basic civil rights of man fundamental to our very existence and survival.
R 001703. Zablocki v. Redhail was the one where they passed a law saying you

Ab 41

couldnt get married if you owed child support, and that was thrown out by the
United States Supreme Court. In that case, the Supreme Court said although
Loving arose in the context of racial discrimination, prior and subsequent decisions
of this Court confirm that the right to marry is of fundamental importance. Weve
got two Supreme Court cases that are talking about fundamental something in
connection with marriage. Fundamental importance for all individuals and as a
side on this one, I want you to note that the right to marry is a fundamental
importance for all individuals is what it says.
Now, Mr. J orgensen is trying to split hairs. Theyre trying to say the right to
same-sex marriage is whats at issue. Its not the right to same-sex marriage thats
at issue, its the right to marriage thats at issue. In the Loving case, it wasnt
characterized as the right to interracial marriage that was at issue. It wasnt
interracial marriage that it had a long and established history in the United States
or whatever their terminology was, it was marriage that has, and the right to marry.
R 001704. In the Turner case where the United States Supreme Court said that
prisoners confined in prison were allowed to marry. It wasnt the right to prisoner
marriage that was at issue. Its not the right to deadbeat dad marriage, in Zablocki.
Its the right to marry. And in Zablocki, they say marriage is a fundamental
importance for all individuals just as its a fundamental importance to a couple that
may be interracial, Loving; fundamental importance to somebody who may be in

Ab 42

prison, the Turner case; of fundamental importance to somebody that may owe
child support. Its of fundamental importance to a same-sex couple in a loving,
committed relationship that want to enter a civil contract to express that love and
commitment to one another. You cant split same-sex marriage away from it.
Griswold v. Connecticut, a right so basic and fundamental and so deeply
rooted in our society of the right of privacy in marriage. That was a contraception
case. R 001705. But they are talking about the right of privacy and marriage there
being fundamental. R 001705-001706. In Boddie v. Connecticut, the Supreme
Court said marriage involves interests of basic importance to our society. In
Williams v. State, they said marriage affects personal rights of the deepest
significance. This is a 1996 case, I dont even recognize. M.L.B. v. S.L.J., choices
about marriage, family life, and the upbringing of children are among associational
rights this Court had granted as of basic importance in our society, rights sheltered
by the Fourteenth Amendment against the states unwarranted usurpation,
disregard, or disrespect.
Now the right to marriage through all of these statements has been discussed
in the context of fundamental, one of our basic rights, the cases dont say the State
can go stomping on that and any old excuse that we can dream up makes it okay.
Thats not the analysis given to laws that impact upon marital relationships,
privacy relationships, sexual, and moral choices in relationships. And when these

Ab 43

types of relationships are involved, look at what Zablocki says. R 001706. Since
our past decisions make clear that the right to marry is of fundamental importance,
and since the classification at issue here significantly interferes with the exercise of
that right, we believe that critical examination of a states interests advanced in
support of the classification is required. Thats not rational basis scrutiny. This
case implicates the right to marry. It doesnt get rational basis scrutiny. It doesnt
get a shrug of the shoulder, any old reason will do. Thats not the analysis.
And Ive got to say this as an aside because you know you went to law
school, and they said constitutional law okay, its cut and dry. Here we get, race
gets strict scrutiny, gender gets intermediate level scrutiny. Everything else gets
rational basis scrutiny. Oh, and then theres certain fundamental rights that get
strict scrutiny, everything else gets, the Supreme Court hardly ever talks like that.
Its not so cut and dry when you read all of these Opinions at all. They dont fall
neatly into one category or the other. For example, I dont know if the critical
examination is strict scrutiny. R 001707. I mean you read Zablocki where theyre
saying prisoners have a right to marry. R 001707-001708. It looks like it is pretty
strict, you know, theyre not letting the states tell them that you cant let prisoners
marry. But I think critical examination, strict scrutiny, probably the same thing.
But they dont even use those terms most of the time. You know the real deal is
you read the cases and you read the cases, and they look a lot harder at some things

Ab 44

than they do at others. And sometimes they use that magic language, but not
usually unless its a race or a gender case. And if you look at the cases in this area
of privacy, sexual intimacy, marriage, and now even with Windsor, cases involving
discrimination against same-sex couples, you dont see rational basis analysis
being done. You see them looking hard at it, and you see them demanding a lot
just like they do in Windsor. R 001708.
Not only does the United States Supreme Court jurisprudence on these types
of liberty issues require heightened scrutiny, but, this is another Supreme Court
case just talking about how courts must afford the formation and preservation of
certain kinds of highly personal relationships, substantial measure of sanctuary
from unjustified interference by the State. R 001708-001709. Its just another
statement that the Court had thrown out at some point that says this isnt about
rational basis analysis with the types of rights were talking about right here.
I had this one, J udge, just to make the point that marriage falls under the
right to privacy. This is from Griswold v. Connecticut, and the United States
Supreme Court is saying marriage is a relationship lying within the zone of privacy
created by several fundamental constitutional guarantees. And so, were talking
about marriage here, were talking about privacy, and were talking about liberty
interests. Thats due process talk. Thats really not equal protection, its not
federalism talk, its due process talk.

Ab 45

I guess I wasnt through trying to prove that this is not a rational basis
analysis, because heres more, J udge. This was from Zablocki v. Redhail. More
recent decisions have established that the right to marry is part of the fundamental
right of privacy implicit in the Fourteenth Amendments Due Process Clause. R
001709. And then they quote from Griswold v. Connecticut, this is some big
flowery language about marriage there. R 001709-001710. Its a coming together
for better or worse, an association for as noble a purpose as any involved in our
prior decisions. So Griswold is saying the right of privacy is fundamental, and
theyre talking about marriage.
This is another Supreme Court decision from 1997. The Due Process Clause
provides heightened protection against government interference with certain
fundamental rights and liberty interests. And they say the right to liberty specially
protected by the Due Process Clause includes rights to marry, to have children, to
marital privacy. So I dont know how it could be any clearer in saying the right to
marry is a fundamental right. Another United States Supreme Court case from
1992, our law affords constitutional protection to personal decisions relating to
marriage, family relationships, its Planned Parenthood v. Casey, at 505 U.S. 833,
851. R 001710.
Lawrence v. Texas from 2003. When sexuality finds overt expression in
intimate conduct with another person, the conduct can be but one element in a

Ab 46

personal bond that is more enduring. The liberty protected by the Constitution
allows homosexual persons the right to make this choice. So Im stepping away
from marriage here, and Im showing that not only is marriage a fundamental right
that gets strict scrutiny due process analysis, but the United States Supreme Court
in the Lawrence case, a complete due process case, says that the liberty interest
under the Constitution allows this sexual expression between people of the same-
sex. Thats also one of the liberty interests thats implicated in this case.
Now, youre aware of this one too, Your Honor, in our Jegley case, my old
firm was the firm involved in the Jegley case in 2002, before the United States
Supreme Court threw out the sodomy law of Texas, Arkansas acted a year before
the Supreme Court did. R 001711. And they threw out the criminal law against
sodomy in Arkansas, and when the Court did that, Arkansas Supreme Court said it
did it under strict scrutiny review. R 001711-001712. And they noted that the
right to privacy is a fundamental right. And all of these rights that were talking
about in this case, marriage, sexual relations, those types of things are under the
privacy umbrella.
Its also worth pointing out that the Bill of Rights section of the Arkansas
Constitution, and I want to talk about why they cant amend that in a minute, but
the Bill of Rights section of our Constitution is entitled Fundamental Rights of Life
and Liberty, and it says you cant be disseized of your liberties except by judgment

Ab 47

of your peers or the law of the land. And I think the law of the land is probably not
just the Arkansas Constitution, but the federal Constitution and federal law as well.
All right, they make some arguments about due process. The first one that I
kind of get a little kick out of because it lets me have a little fun with is they say
substantive due process only protects those interests that are deeply rooted in this
nations history and tradition. R 001712. And some of your comments and your
discussion with defense counsel when they were talking make the point that Im
going to try to make here which is, how can we ever have change if thats the law
like the Dred Scott thing you were talking about. R 001712-001713. I mean if
things didnt change and the way we look at things didnt change and due process
always required protecting something that was deeply rooted in the nations history
and tradition, nothing could ever evolve, nothing could ever be any different. I
mean the fact that it was always a certain way would be the answer to any
challenge to anything. But thats not the way it works. Take Lawrence v. Texas,
for example. That case is nothing but a substantive due process case. Theres no
equal protection even in the ballpark in that case, and can you tell me that
homosexual sodomy is an interest thats deeply rooted in this nations history and
tradition? I dont think so. Due process is an evolving concept as times change
and decisions move in a direction over time, the law changes with them. R 001713.

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Another point on the idea that something has to be deeply rooted in a
nations history and tradition ties in to the idea the Defendants have put out that
were talking about same-sex marriage as opposed to just marriage being deeply
rooted in tradition. R 001713-001714. In Loving, was interracial marriage
something deeply rooted in this nations history and tradition at the time? In
Turner, was the right of prisoners to marry something that was deeply rooted in
this nations history and tradition? In Zablocki, was the right of people owing
child support to marry something deeply rooted in this nations history and
tradition? No, it wasnt. What was deeply rooted in this nations history and
tradition in those cases was the right to marry, not whatever peculiarities there may
have been with the person or situation or circumstances existing with the two
people that did want to marry. As they said in Zablocki the right to marry is a
fundamental importance for all individuals, people in prison, people of different
races, people who have child support, same-sex partners in committed
relationships. R 001714.
Another answer to this deeply rooted in the nations history or tradition
being something that is required for something to be struck down on a due process
argument, look at what was said in Lawrence v. Texas about that. R 001714-
001715. Had those who drew and ratified the Due Process Clauses of the Fifth or
Fourteenth Amendment known the components of liberty and its manifold

Ab 49

possibilities, they might have been more specific. They didnt presume to have
this insight. They knew times 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. Thats what was said in Lawrence v. Texas.
Thats quite the opposite from saying that for due process protection, something
has to be deeply rooted in this nations history and tradition. What the United
States Supreme Court says is times change, ideas and due process change, ideas of
freedom change, ideas of whats right and whats wrong change, and whats
protected by due process changes with those.
The Arkansas Supreme Court has made a similar statement in the Jegley v.
Picado case. R 001715. It is important to point out that weve recognized due
process as a living principle. R 001715-001716.
J ustice Frankfurters Opinion by the United States Supreme Court in Wolf v.
Colorado has been quoted with approval by this Court. And J ustice Frankfurter
there said: It is of the very nature of a free society to advance in its standards of
what is deemed reasonable and right. Representing as it does a living principle,
due process is not confined within a permanent catalogue of what may at a given
time be deemed the limits or essentials of fundamental rights. So, again, the

Ab 50

Arkansas Supreme Court, and on the two occasions Ive noted here, the United
States Supreme Court, has said due process moves and changes with the times.
The Court: So whats your argument in response to theirs that the
Constitution could be amended to invalidate
Mr. Wagoner: To invalidate, that the Arkansas Constitution could be
amended? R 001716. Actually because they got into that so much, I love this
argument, and partly because at some points when youre studying on something
like this, and youre not buying something, or something is not coming clear to you,
then kind of a light bulb goes off sometimes, and that happened to me on this about
a day and a half ago. When I first looked at this, it was my initial reaction, the
Amendment to the Constitution cant conflict with the Constitution because it
amends it, you know. Whatever is later has got to control, right? Then Ms.
Maples started telling me no, theres some old law and theres some provisions in
the Arkansas Constitution that say you cant touch this right.
The Bill of Rights section of the Arkansas Constitution is a specification of a
bunch of rights at the very start of the Constitution, Article 2 of the Constitution.
R 001717. At the end of those rights that are listed, we have this provision that
says we declare that everything in this article, thats Article 2, is excepted out of
the general powers of the government and shall forever remain inviolate meaning it
cant be touched, it cant be touched by the government. R 001717-001718. And

Ab 51

the government is just as much the government if its a constitutional amendment
as the law passed by the Legislature or anything else. Im looking at that, and Im
still thinking, well, even though it says it remains inviolate, and the people never
gave up the power to anybody to change that, if they pass an Amendment,
wouldnt that still change that? And then the light bulb went off, and heres what
the light bulb was, J udge. What are these rights in Article 2 of our Constitution,
the Bill of Rights? The rights to liberty, to equality, to freedom of assembly, to
bear arms, freedom of speech, right to jury trial, prohibition against double
jeopardy, self-incrimination, the right to due process, prohibition against
unreasonable searches and seizures, fundamental rights to life, liberty, and property,
freedom of religion. R 001718. Those are the rights in Article 2 of the Arkansas
Constitution that we contend cant be trifled with by a later Amendment. R
001718-001719. And you know why? The Defendants agree with me on this.
Because those rights are the same as the rights of the United States Constitution.
All those rights are just restatement of the rights that are already there in the
federal Constitution. And why I say the Defendants agree with me on this
argument is because the Defendants say in their own Briefs that the people have
the right to adopt Amendments to the Constitution not inconsistent with the
Constitution of the United States. Article 2 of the Arkansas Constitution is just a
restatement of these same rights that are protected from our United States

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Constitution, liberty, equality, freedom of speech, all those things I just went over.
Thats why they cant be messed with. Thats why an Amendment cant come
along. R 001719.
The Court: But the interpretation of the rights in our Constitution is
interpreted by our Supreme Court, and they can be more restrictive than, than those
in the federal Constitution. So, and thats what happened in Cole. R 001719-
001720.
Mr. Wagoner: Right. The Arkansas Supreme Court has apparently come
out and said the right to privacy is fundamental. And Ive shown some evidence
that it may be with our United States Supreme Court, but our Court has come out
and said it in black and white. But think about this. What if Amendment 83
instead of saying same-sex couples, were going to take away your liberty interests
and privacy interests, and other things guaranteed by the Bill of Rights of the
Arkansas Constitution, what if it said everybody has got to go the Baptist Church
from now on. Amendment 83 of the Constitution says everybody has got to be
Baptist. Its probably okay with the Baptist, but if youre not Baptist.
The Court: Well, the problem with that is youve got to go back to the
United States Constitution because they have the R 001720.
Mr. Wagoner: Right, but we have freedom of religion in the Arkansas
Constitution too, and you cant change it if it violates the federal Constitution, so

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you cant change the Arkansas Constitution to the extent that the provisions in
Article 2 of the Arkansas Constitution which spell out these various rights and just
restate whats in the federal Constitution, you cant change them not only because
the Constitution itself says that these rights in that Bill of Rights section shall
forever remain inviolate, but you cant change them because to do so would violate
the federal Constitution. But I dont think that gets you over to just saying
Amendment 83 only violates the federal Constitution. It also violates the Arkansas
Constitution because you cant change a part of the Arkansas Constitution that
merely restates what the federal Constitution is and has a provision in it that says
those rights shall forever remain inviolate. I think it violates both. R 001721.
You cant go tinkering with the Bill of Rights section of the Arkansas
Constitution, and theres an old case we cite that does support that, the Eason case,
it was from 1854, it was an earlier Constitution before this, and they make a lot of
distinction based on that, but it had the same provision, and the Eason case
essentially says they cant tinker with the Bill of Rights Section of the Constitution.
R 001721-001722. Religion may sound like a preposterous example, but its really
not. Lets say Amendment 83 says everybody has got to go to the Baptist Church
and somebody challenges that. And were in here, the Defendants are arguing,
well it doesnt violate the Arkansas Constitution even though the Arkansas
Constitution has a freedom of religion provision which the Arkansas Constitution

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says shall remain inviolate and not be taken by the government because we can
amend it. Well, but the Defendants cite law that says you cant amend to the
extent that the amendment would be inconsistent with the Constitution of the
United States. So if you cant amend our Arkansas Constitution, if its going to be
inconsistent with the Constitution of the United States, then an amendment which
seeks to take away your right to freedom of religion is going to be null and void.
Its not going to amend our Constitution any more than its going to amend the
federal Constitution. R 001722.
I use the religion example just because its so obvious that would be wrong,
but here, theyre doing the same thing, theyre saying were going to take away
certain peoples liberty interests and fundamental right to marry, and we can do
that because we can amend the Constitution, but they cant take away your liberty
interests and privacy interests, and other things that are guaranteed in the Arkansas
Constitution, and in the Cole case, and in the J egley case, recognizes fundamental
rights by amending because they cant amend inconsistent with the Constitution of
the United States. So thats what struck me about it. Maybe it didnt bring as big
light bulb in your head as it did mine, but the fact that the reason you cant mess
with the Bill of Rights of the Arkansas Constitution is because its the same as
whats guaranteed under the federal Constitution, and you cant amend the
Constitution if it would be inconsistent with the federal Constitution. Thats why

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that part cant be tinkered with. Plus this Article 2, Section 29 says you cant
tinker with it. R 001723.
Arguments based on precedent or stare decisis, theres two basic cases they
want to argue about there, and thats the Baker case and the Bruning case. R
001723-001724. The Baker case was a forty-one year old case that was decided by
Minnesota, I think, and it was a couple that was same-sex, and they wanted to
marry and the Minnesota Supreme Court said they couldnt get married. It went to
the United States Supreme Court and there was no written decision or anything.
The Supreme Court dismissed it at that point based on lack of a federal question
existing. And a summary dismissal like that does have precedential effect and its
supposed to stand as precedent. However, so far, every decision including
Windsor that has been made in this area, well Windsor in following has refused to
follow Baker, and Im going to explain why. First of all, in Hicks v. Miranda, the
United States Supreme Court said that if the Court has branded a question as
unsubstantial, it remains so except when doctrinal developments indicate otherwise.
R 001724. That is the United States Supreme Court in 1971 said this question
about whether same-sex couples can marry in Minnesota doesnt present a
substantial federal question. R 001724-001725. Its not our business, we dismiss
that, were not even going to write an opinion on it.

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Now, youve got to follow that as the law unless doctrinal developments
indicate otherwise. Doctrinal developments in the history of the decisions the
Court has rendered and society wherever in that forty-one years indicate its not an
unsubstantial federal question any more. And look at what the Second Circuit said
in Windsor. This is a decision that was affirmed by the United States Supreme
Court this fall. Distinguishing Baker. When Baker was decided in 1971,
intermediate scrutiny was not yet in the Courts vernacular. Classifications based
on illegitimacy and sex were not yet deemed quasi-suspect. The Court had not yet
ruled that a classification of homosexuals undertaken for its own sake actually
lacked a rational basis. And, in 1971, the government could lawfully demean
homosexuals existence or control their destiny by making their private sexual
conduct a crime. We are satisfied for these reasons, that Baker has no bearing on
this case. R 001725. Thats what the Second Circuit said when this same
argument about Baker controlling the outcome was raised in that case. R 001725-
001726. And the United States Supreme Court affirmed the Second Circuits
decision in that case.
Now I notice something coming out of either Mr. Hogues or Mr.
J orgensens mouth when they said the United States Supreme Court didnt affirm
that portion of the Windsor case or something like that. The Windsor decision
doesnt go through the Second Circuits Opinion in Windsor and say we affirm this

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part, and we dont affirm that part, its affirmed. Its affirmed. The decision was
affirmed, and they didnt say that Baker was controlling. And the United States
Supreme Court also didnt say Baker was controlling. They went on and ruled as
they did in that case without even mentioning it. So thats the Windsor case. Now
since Windsor, theres two federal courts that have also had to shoot down the
argument that Baker was controlling Precedent which would require dismissal of a
case like this.
The Wolf case from the Middle District of Pennsylvania was decided
November fifteenth of this year. R 001726. The Court there said while we do not
disagree that Baker is considered precedential, we ultimately do not find it
controlling due to the significant doctrinal developments in the four decades that
have elapsed since it was announced by the Supreme Court. R 001726-001727.
And that was just a month ago, the Middle District of Pennsylvania is saying the
same thing that the Second Circuit Court has said without as much detail about all
of the things that have changed in the doctrine of the Supreme Court in forty-one
years. And then at another place in there they say the jurisprudence of equal
protection and substantive due process has undergone what can only be
characterized as a change since 1972. The Supreme Court has decided several
cases since Baker which demonstrate that it no longer views constitutional
challenges based on sex or sexual identity classifications as unsubstantial.

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So the Second Circuits Opinion in Windsor and the Middle District of
Pennsylvanias Opinion after Windsor all say Baker is not an obstacle anymore. R
001727. Too much has changed in this area since 1971, and a dismissal for lack of
a federal question type of precedent which doesnt have to be followed anymore,
doctrinal developments indicate that it wouldnt be an unsubstantial federal
question anymore, meaning that Baker is not binding precedent on this Court or
these other Courts that have addressed it. R 001727-001728. So thats Baker.
The other one is the Bruning case out of Eighth Circuit which was a
challenge to Nebraskas DOMA law. But it really wasnt a challenge to
Nebraskas DOMA law. The analysis in that was based on access to the ballot. It
was based on a due process analysis of access to the political system. I think the
argument was basically that since they passed this through a ballot initiative, this is
due process discrimination against us. This is equal protection discrimination
against us. They said you interfered with our right to the political process because
you passed a constitutional amendment with this DOMA law which interfered with
our right to impact the law through the Legislative process. That was the argument
they were making, and it was done under an analysis of the access to the political
system, which got rational basis analysis.
But like Baker, the Bruning decision does not address the recognition issue,
doesnt speak to whether states have to recognize legitimate same-sex marriages in

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other states. R 001728. And like Baker, it was done on a rational basis, shrug
your shoulders, any reason will do analysis, and if despite all Ive shown here
today regarding the analysis that goes into, when the issue is a direct challenge to
something, a law that interferes with marriage, privacy, sexual relations, those
types of things, if you believe that the analysis is a rational basis analysis, maybe I
lose, but thats not the analysis. R 001728-001729. After Windsor, after all of
these other cases Ive cited, the issues at hand get heightened scrutiny, they dont
get a rational basis analysis anymore. Windsor changed the landscape on that.
Mr. Hogue noted that that decision wouldnt be binding on this Court. I
agree with that. But Im not comfortable with sitting up here and saying thats our
argument, because thats really not our argument. Our argument is that decision
has changed. It was made when there were, I think, two states that have legal
same-sex marriage at the time. Now there are sixteen, and its grown by three just
since I started down this path a few months ago. And theres a lot of decisions that
have come out since then including the Windsor case. R 001729. And the prior
cases that dispose of these issues, one from forty-one years ago, one from about
eight years ago, that use a rational basis analysis, dont apply now. R 001729-
001730. The analysis is not rational basis.
Briefly, the gender discrimination claim. Theyre saying it cant be gender
discrimination because just as males are prevented from marrying someone of the

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same-sex, females are also prevented from marrying someone of the same-sex. So
it affects both genders equally. But that same argument was shot down in Loving v.
Virginia when they were talking about racial discrimination. In Loving, the
Defendants said this isnt racial discrimination because this doesnt just prohibit a
white person from marrying somebody of a different race. It also prohibits a black
person from marrying somebody of a different race. So it operates equally on both
races. Well thats the argument theyre making here. The United States Supreme
Court said no, thats not the way you look at this. The question is whether the
statute thats challenged rested upon distinctions drawn according to race. Here,
thats the issue. R 001730.
Yes, its true that just as a male cant marry somebody of the same-gender, a
female cant marry somebody of the same-gender, but its drawn on the distinction
of gender. A male cant marry a male. A female cant marry a female. Thats
why its gender discrimination because it draws a distinction based on the gender
of who you can marry. And it prohibits certain people from marrying males and
certain people from marrying females. Its a gender based classification. And so
thats why its gender discrimination. The same logical fallacy in the Defendants
argument is the same one that was made in Jegley v. Picado, which was discussing
Loving. So that argument the Defendants make on why its not gender
discrimination was shot down in Jegley and in Loving. And the reason its gender,

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males can marry females but not males. Females can marry males, but not females.
It draws a distinction based on gender. R 001731. The law as I believe it now is
youve got a due process higher order analysis when you have a case that involves
marriage or interference with due process rights to marriage, family, privacy,
regardless of whether its heterosexual or homosexuals involved. R 001731-
001732. Those things get higher order attention.
Windsor went to great lengths to also talk about homosexuals and how this
was discrimination towards them. They didnt get into talking about what level of
scrutiny were going to give, but they sure didnt shrug it off as rational basis.
They undertook what they said was a careful consideration, and I kind of want to
point out that in the Second Circuit decision in Windsor, the Second Circuit said
analysis of these four factors, and thats the historical factors to determine whether
theres a suspect class theyre talking about, analysis of these four factors supports
our conclusion that homosexuals compose a class subject to heightened scrutiny.
Thats what the Second Circuit found in the Windsor, and the United States
Supreme Court affirmed that decision. And the United States Supreme Court did
not have a case that said basically the government can make up any reason to do
whatever they want to homosexuals because theyre not a suspect class. Thats not
how that decision reads. R 001732. So I think its primarily a due process
analysis for the reasons Ive talked about marriage, privacy, sexual relations,

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those types of things that are mentioned in Windsor and other cases. But with a
dab of equal protection thrown in, and a specific disclaimer of federalism.
The dab of equal protection is just that if it was all about just the due process
issues, these marriages and privacy and family, and those sorts of things, they
wouldnt even have to discuss sexual orientation. They could have left that
completely out of the picture, but they go into discussions about this group being
discriminated against, and theres no reason to have a law like this other than to try
to generate further discrimination against this group of people. So theres some
equal protection in there, and its not rational basis analysis. And the case that was
affirmed said it was heightened scrutiny. In fact, the Second Circuit actually said
intermediate level scrutiny. But to the extent that Windsor is an equal protection
case, it would not appear to be rational basis. R 001733. Like a lot of these cases,
if you buy J acks theory according to the law that its not so neatly divided into
categories of scrutiny, I dont know what it is, but its not rational basis.
Okay, there are a couple of other arguments thrown in. Its probably, I know
youre going to get tired of the sound of my voice, Ill probably be about ten more
minutes. Can you stand me that long?
The Court: Yes.
Mr. Wagoner: Okay. First, I want to jump back to Mr. Hogues
articulation of conceivable rational bases for this type of Legislation. And I tried

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to write this down in quotes from him: To channel procreation into the most
perfect union, most perfect union being a union between a man and a woman
apparently. Why thats the most perfect or what judgment determines that, I dont
know. I dont think its rational to say thats the most perfect union. R 001734.
But in the same breath, he throws out that justification of procreation without third
party involvement as being a state interest. R 001734-001735. And their Briefs
talk about preference for children being cared for by biological parents, and I find
it offensive. The idea that anybody whos adopted children and love those children
from the day one when they first took them in their house thats being told that the
State has an interest in trying to make sure that parent child relationships are all
biological is going to shed a tear over that.
I started late in life. I fell in love with a lady whos forty-two years old. We
wanted to have children. She was too old to have children. We used the egg donor
and traveled to a fertility clinic in California. I have two beautiful twin daughters,
theyre eleven and a half years old. Theyre not technically our biological children.
And the states going to tell me they have an interest in trying to prefer biological
children, you know, thats ludicrous. And just as you can tell, I have feelings
about that.
The Court: I think you struck a nerve there. R 001735.

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Mr. Wagoner: A little bit, yeah. Thats not a legitimate state interest.
And another one he said was a potential state interest: to channel procreation into
opposite-sex marriage is a state interest. What about the Cole case? The Cole case
says you can adopt. Adopted children are children, and the law is written to ensure
that. And Cole is about same-sex couples being able to adopt children. And were
going to have that case sitting there with a 7-0 decision saying that weve got a
fundamental right involved, and that these same-sex couples can adopt children,
but were going to justify this other law on the basis that the State has an interest in
channeling procreation into opposite-sex marriage. You cant have both.
Theres a few other little miscellaneous things theyve raised that I want to
touch on. R 001736. The argument that the partners of biological parents and the
children of the biological parents dont have any standing or any interest, is
incorrect. R 001736-001737. J ust as the parents have an interest in not having
their children born illegitimate, a child has an interest in not being deemed
illegitimate like one of the children of one of our couples who was born after they
were married outside the State of Arkansas, but theyre not considered married in
the State of Arkansas. Page 6 or 7 of our Complaint, and page 29 goes into the
ways that the children are impacted by these laws, and I disagree with the way the
statutes work on birth certificates and childrens names being put on them
according to the Defendants. Ark. Code Ann. 20-18-401(f)(1) says a spouse has

Ab 65

a right to be on a birth certificate. And all of our common law says a child born of
a marriage is presumed to be a child of that marriage. R 001737. So if this couple
is married out of state and the marriage is recognized in Arkansas and that child is
born, that statute says the spouse should be on the birth certificate, and our
common law says that child is presumed to be a child of the marriage. R 001737-
001738. But because theyre unmarried, as soon as they come back from wherever
they got married to Arkansas, they dont get the benefit of that.
Similarly, we want opposite-sex couples with biological children only in this
state argument. Ark. Code Ann. 9-10-201(a) says that a spouse has a right to be
on the birth certificate if artificial insemination was used. Now, a large percentage
of those children of same-sex couples come about through artificial insemination.
We still dont have a process science has come up with for them to have children
naturally. So, in that situation, the spouse has a right to be on the birth certificate.
But not here, because theyre not a spouse. And I think the rights of the children,
especially the one thats already born, to be considered a child born of the marriage
when their parents were married in another state is the right of the child just as
much as the right of the parent.
The right to travel argument. R 001738. Theres kind of semantic games
being played with some of these arguments, like were not talking about the right
to marry, were talking about the right to same-sex marriage, or in the gender

Ab 66

argument, restating it so that it applies to both sexes when really youve got a
classification thats drawn based on sex, and thats not constitutional. R 001738-
001739. The right to travel arguments are done the same way. The argument that
the Defendants make is that the same-sex couples that leave the state, marry and
come back want to be married in Arkansas when nobody else can be considered
married in Arkansas. And you cant use the right to travel to get greater rights than
the rest of the citizens of the state. I agree, and its the law in that Torres case, that
you cant use the right to travel to say that a State has to give you some greater
benefit than other people in the State, but theyre denied an equal benefit. That ties
into the right to travel, and heres what it is: A lot of people leave the state to get
married. People go on honeymoons, they go to places all over the world and get
married in fancy locations, and that sort of thing. R 001739. If a heterosexual
couple leaves and goes to Canada and has a marriage in Canada and comes back to
Arkansas, theyre married in Arkansas. R 001739-001740. If a same-sex couple
leaves the State of Arkansas, goes to another state or another country, and gets
married, and then comes back to Arkansas, their marriage goes away when they
enter the State. Thats treating people differently, and its interfering with the right
to travel because same-sex couples cant travel to another state, get married, and
come back, and be married, whereas heterosexual couples can. Thats why its not
a case of the Plaintiffs asking for more rights than anybody else in the State. All of

Ab 67

our Plaintiffs have traveled someplace else and got married and come back here. If
they were heterosexual and theyd done that, that wouldnt have happened. So
thats the way the argument is phrased there. And, and I think there was also
mention, that we didnt plea facts on that one. We plead that our people went
somewhere else, got married, came back here, theyre not married anymore.
Thats enough, I think. R 001740.
The arguments on termination of a marriage, Ive got one Plaintiff I threw in
there, and actually I thought about just doing this whole case this way to start out,
with just filing the divorce for somebody that was married in another state and
taking on this constitutional challenge in that manner, but we just popped her in
this case, and R 001740-001741.
The Court: If you had done that, it would have been some other J udge on
it, wouldnt it?
Mr. Wagoner: Well, Im happy here. Im always in those Courts. We
have a specific statute, Ark. Code Ann. 9-11-208(a)(2), that says all rights granted
by virtue of a marriage license including termination shall be unenforceable in
Arkansas. So youve got a specific Arkansas statute that says you cant terminate
same-sex marriage here because we dont recognize them, and the Defendants are
saying you still could. R 001741. You could go in and ask them to apply New
York law. If I was giving somebody the opinion as a divorce lawyer whether they

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could rest securely that theyre divorced, if they had done that when weve got that
Arkansas statute, I cant be comfortable with that. R 001741-001742. And so I
disagree that theres the ability to get divorced and it be legitimate when weve got
a state statute that says we will not terminate a sex same marriage, wont recognize
it, and we wont terminate it.
Our basic argument is Windsor weighs out what the analysis has to be on
these cases now when a state law is challenged. And our argument and the effect
of Windsor is just what J ustice Scalia says it is. J ustice Scalia says you cannot
distinguish the logic of Windsor from a subsequent challenge to a state that wont
recognize the same-sex marriage entered in another state. And he says thats the
next shoe to drop. He even takes quotes from the majoritys opinion and
reproduces them and strikes out the part of DOMA that was in question in Windsor
and inserts recognition of same-sex marriage, and so according to Scalia, Windsor
controls this case right here in this Court right now. R 001742-001743. We agree.
And the majority would probably agree in Windsor. And if you follow the analysis
of Windsor and you lay it down on this case, it dictates only one result.
Ive talked a long time, but Ill answer any questions you have.
The Court: Ill let them talk a little more if they want to. J udge Whitmore,
the guy who was here before me, I was trying a case, and I was brand new, and in

Ab 69

the middle of the case he told me that the sweetest sound to a young lawyer is that
of his own voice which is a polite way to say be quiet.
Mr. Jorgensen: That was quite the presentation from Mr. Wagoner. R
001743. I was trying to take notes of all the things I want to clarify, but I dont
deserve or want to be up here long enough to go through it all again. R 001743-
001744. Your Honor, I feel like the Briefs spell it out more clearly than I could
ever do from the podium for you today, and I think I addressed everything I
wanted to at the outset.
I do want to emphasize the States position that this is not a privacy case,
that there is a difference between the fundamental right to marry and the
fundamental right to marital privacy. In all of these privacy cases that Mr.
Wagoner showed us, Griswold v. Connecticut and all the others, they were all
related to things like contraception and abortion and things that are private
decisions that take place within a marriage, and theres really two fundamental
rights there. Theres your fundamental right to marry, and we view that differently,
but for the purpose of this point, it doesnt matter which way you view it, and then
theres your right to your privacy within that marriage.
This case is not about keeping anything private. These Plaintiffs want public
recognition, formal governmental recognition of marriage. R 001744. They want
the so called fundamental right to marry. R 001744-001745. But nobodys

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seeking anything related to marital privacy in this case. There may be some issues
with regard to the children if it gets to that point in an individual case, but thats
not what this case is about. And so I hope were not confused here, that somehow
this is a privacy case that falls under Cole v. Arkansas and Jegley v. Picado. Those
cases are about the privacy that we enjoy in the bedroom, and non-commercial
consensual sexual acts in the bedroom. In fact, the government cannot interfere
with that, and you cant step into that zone of privacy. Amendment 83 doesnt
invade anyones privacy. The Arkansas marriage laws dont invade anyones
privacy. And this case is about Plaintiffs who seek to have formal government
public recognition of their relationships. R 001745.
On the state law claims, the Plaintiffs continue to rely upon the shall
forever remain inviolate provision of the Declaration of Rights, Article 2, Section
29, and I would just remind the Court that the Declaration of Rights begins with
Article 2, Section 1 which provides that all political power is inherent in the
people and the government is instituted for their protection, security, and benefit,
and they have the right to alter, reform, or abolish the same in such manner as they
may think proper. R 001745-001746. Its not for me or anyone else or this Court
to decide whether it was proper as a policy matter for the people of Arkansas to
decide to implement Amendment 83. The only question is whether they have that
authority, and they clearly did, under the very same Declaration of Rights that the

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Plaintiffs rely upon when they try to say that the people didnt have that authority.
Expressly, the very first provision of the Declaration of Rights says the people
have this power. Like it or not.
Im just going to end it right there, Your Honor, unless you have any
questions. If I get started anywhere else, well be up here until tomorrow.
The Court: No, lets dont do that.
Mr. Jorgensen: I dont want to do that either. R 001746. Thank you,
Your Honor.
[Abstractors Note: R. 001748-001755 not material to this appeal.]
Mr. Wagoner: Im not going to address all the things that Mr. Hogue or
Mr. J orgensen said, but Mr. Hogue wants to throw out all the years of scrutiny,
strict scrutiny, higher level scrutiny given to marriage cases by the United States
Supreme Court on the basis that what they meant was marriage between a man and
a woman. Youre redefining the term. Thats what hes saying. If none of those
cases apply to same-sex marriage because thats not a marriage, then why did the
United States Supreme Court just throw out Congresss attempt to define marriage
as between a man and a woman? The United States Supreme Court just rejected
that definition as marriage being limited to a man and a woman. R 001756.
Now they did it on due process, and they did it on equal protection grounds.
And so the United States Supreme Court has now said that cant be the definition

Ab 72

of marriage. So you cant tell me that these cases that give strict scrutiny when
marriage is on the table and the State is trying to do something to it dont apply
because they werent talking about same-sex marriage, because the United States
Supreme Court has now said Congress cant define marriage as only between a
man and a woman. So my definition is right apparently according to Windsor.
The other issue is theres not a new Wagoner standard in place. When
youre looking at marriage and privacy issues, those are fundamental rights. They
get strict scrutiny. Thats whats on the table here.
And the third thing is the comment by Mr. J orgensen, trying to separate the
right to privacy from the right to marry and saying privacy is about things like
contraceptives, and abortions, and things like that, thats just not what the Supreme
Court says. R 001757. Marriage is a relationship lying within the zone of privacy
created by several federal constitutional guarantees. R 001757-001758. The right
to marry is a part of the fundamental right of privacy. The United States Supreme
Court says on at least two occasions, Griswold v. Connecticut and Zablocki, that
marriage is a part of the right to privacy. You cant separate the two. The
decisions say strict scrutiny analysis. They say marriage is a fundamental right.
They say right to privacy is a fundamental right. Federal decisions and Arkansas
decisions. Theres no Wagoner standard in place. Careful consideration is a term
they use in Windsor, but if its marriage, if its privacy, it gets strict scrutiny.

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And the next to the final thing I would say is that theres been some talk
about well the majority of the people in Arkansas passed this. Constitutions and
constitutional rights are basically in place for no other purpose than to protect those
in the minority against the will of the majority. Thats what theyre for. Otherwise,
every right weve got could always be taken away by a majority vote. R 001758.
And the forty-nine percent of us who arent in the majority on an issue, we lose, no
matter what it is. R 001758-001759. Thats not the way the Constitution is set up.
The Constitution says whether youre a minority or not, you get these rights, and
they cant take them from you. Seventy-four percent of people going and voting
on it cant take them from you.
The final thing is what Mr. Hogue says about the legitimate state interest of
channeling procreated power into man/woman union, and thats the only place
where procreation can occur. Its just not true anymore. Procreation occurs in
same-sex relationships, procreation occurs in unmarried relationships. The
procreative power is there, youve got to use a little science these days in some of
these relationships, but theres no logical argument that the only place that occurs
any more is in opposite-sex relationships and thats it. Thank you.

Ab 74

Ms. Maples: Your Honor, Im Cheryl Maples. R 001759. I have a few
things that I would like to cover before the Court recesses for the day. R 001759-
001760. One concern that my clients have is beginning J anuary first, theyre going
to be required to lie and perjure themselves under Arkansas law by filing income
taxes as single individuals in the State of Arkansas, but federally, theyll be filing
as married individuals. They feel that the laws in the State of Arkansas place them
in an unconscionable situation requiring them to lie depending upon the
jurisdiction where they currently are filing their taxes. That is one of the reasons
that weve named that as one of the issues that need the emergency relief.
Additionally, Mr. Hogue indicated for two hundred years, any marriage can
come back in that has been solemnized in a different jurisdiction as long as the
marriage was legal and between heterosexual people. R 001760. That includes in
Arkansas, weve got a ban against first cousins, weve got a ban against youthful
people getting married without other steps being taken to get permission from
Courts or parents. R 001760-001761. If a couple goes to Virginia and gets
married and theyre first cousins, this State will and always has recognized that
marriage that is not legal in this State. Only same-sex marriages that are
solemnized where theyre legal can come back to this State and no longer be
recognized. Any other illegal marriage in the State is recognized if it was legal

Ab 75

where it was entered, not in the State of Arkansas. That is in clear violation of the
Arkansas Constitution and the federal Constitution.
On October 7
th
, 2004, the Arkansas Supreme Court heard arguments in May
v. Daniels. That was a case concerning the ballot title of Amendment 83. And the
Arkansas Supreme Court in May v. Daniels stated that until that constitutional
amendment was passed, and until it was put into action, the Supreme Court would
then decide if it was raised whether or not Amendment 83 was constitutional. Now
is the time that thats to be brought in front of this Court, this Court can find it to
be unconstitutional. It has now been enacted. R 001761. No one has acted on it
since then, and we are bringing that action before you today, and asking you to
give us our emergency injunction for the protection of the children, the married
couples, and eventually all of our same-sex couples that wish to be married. R
001761-001762. And thats all I have.
The Court: Its kind of an interesting situation to me. I like constitutional
law, and this is an issue that is right on the cuffs of a decision that will affect many
people and also affect how we look at our government, how the government looks
at the J udges, the legal system. I think its pretty interesting. I would also thank
the parties. All of you guys, your Briefs were excellent. Of course, Colin, hes
been in here before, and Ive told him that before, hes good. R 001762. But all

Ab 76

you guys did a good job and wrote well, and Im going to try to think about it, and
Ill make some decision, and Ill let you guys know. R 001762-001763.
Its kind of unusual. Usually when I come in to court on a Motion for
Summary J udgment, Ive got a pretty good idea what Im going to do, and if the
lawyers can change that, they can, but I dont have that. Im floating on the creek
right now, and I just dont know which way Im going to go. But I want to
consider it, and Ill write something and let you guys know. Again, I appreciate
the work all of you have done. Its been good. Anything else we need to take up?
R 001763.
Mr. Jorgensen: No, Your Honor.
Mr. Wagoner: Thank you, J udge. R 001764.

Ab 77

PROCEEDINGS OF APRIL 17, 2014:
The Court: Have a seat, please. No cell phones, no twittering, none of that
same stuff. The reason for that rule is that the Court record needs to come from the
Court Reporter. She not only transcribes this stuff, she talks, and she has it on tape,
and when she makes a record, then thats the official record. 13-2662, we have a
couple of Motions for a Summary J udgment. Who wants to go first?
Mr. Wagoner: Ill go first. Your Honor, Im J ack Wagoner for the
Plaintiffs here in the case today. As the Court noted, were here on competing
Summary J udgment Motions. R 001765. A couple of things initially, like I had
before, Ive got a PowerPoint. R 001765-001766. This first slide is a clip directly
out of the Defendants Brief that itemizes the justifications they advance for these
laws. Everything to follow is just an excerpt from the case that has come down
since the Windsor case was decided by the United States Supreme Court last J une.
And I want to take the Court through whats happened since last J une. And then I
think that Mr. J orgensen will do his bit, and then I think Ms. Maples will close up.
Mr. Jorgensen: I would like the opportunity to be heard.
Mr. Wagoner: Okay. And, if I could, Ill mark this slideshow. We
printed off all the ones that are going to come on this screen today, and I should
have put more than one to a page, but Id like to put those as Plaintiffs Exhibit
Number One, and offer that for demonstrative purposes only. R 001766.

Ab 78

Mr. Jorgensen: No objection, Your Honor.
Mr. Wagoner: Your Honor, what I want to talk about largely is, we were
here December twelfth on Motions to Dismiss, and I think you said twice that
things change. The change in the area that were here on today really goes back to
the Loving v. Virginia case. Prior to that case interracial marriages were prohibited,
and the federal government stepped in and said states cant do anything they want
in connection with marriages, theres some limits on it. And then intermediate
scrutiny is developed, and theres major changes that took place in the law since
the Loving v. Virginia case. And since 1996, its been developing in the area of
same-sex couples, homosexual rights, gay rights, different names given for it, but,
1996, we had the Romer case out of Colorado, where Colorado passed a law
basically saying nobody can get in trouble for discriminating against homosexuals.
R 001767. The Supreme Court heard that, J ustice Kennedy, the same one who
wrote the Opinion in the Windsor case last J une, said you cant do that. R 001767-
001768. That was thrown out as unconstitutional.
In 2003, we have the Lawrence v. Texas case where homosexual sodomy or
sodomy was thrown out. Again, J ustice Kennedy wrote that Opinion. Then we get
up ten years later, to J une of 2013, J ustice Kennedy again writing the majority
Opinion in the Windsor case. Since Windsor, the cases have and the states joining
in and following what J ustice Kennedy said was going to be the law of this land in

Ab 79

Windsor have fallen like dominoes. Every few weeks theres a new case that
comes out. We count and are able to find eighteen reported decisions subsequent
to Windsor, fourteen different jurisdictions, eleven of those are federal jurisdictions,
three of them are state court Opinions, every single one has gone along with
positions that we advocate for the Plaintiffs in this case today, every single one.
The Court: I guess thats foreshadowing for what Scalia said in his
Dissent. R 001768.
Mr. Wagoner: He said the other shoe is going to drop, basically, in his
Dissent, he writes the argument for the Plaintiffs in this case right here, and some
of the cases that have come out since Windsor make reference to that, of course. R
001768-001769. Interestingly, Im not sure what J ustice Scalias deal is because
there was another case, I think it was in Lawrence v. Texas where he also dissented,
and he said this is nothing but singling out this group, and its not a legitimate
purpose, and I dont know why hes saying that in his Dissent, but he did. Maybe
it was a political base. Wed be okay with him joining the majority even if hes
writing Dissents that seem to be more along the lines of the majority than the
minority. But anyway, weve got all these cases that are falling one by one.
Theyve rejected every single argument the Defendants make in this case, every
single one. And as I go through them, wed be here for forever if I pulled up
everything that I wanted to show the Court that these Courts have said, but

Ab 80

The Court: Ive read them all. R 001769. So dont do that.
Mr. Wagoner: Okay. I was telling my law partner before we started today,
I love coming to court when the law and the facts are all on my side. Makes it a lot
easier day. Anyway, what we hope youll do today, J udge, is in light of the
overwhelming authority on this issue, rule from the Bench, tell us how youre
going to rule. Direct us to submit a Precedent in line with our pleadings giving us
the relief we ask for in our pleadings. And thats what were asking for.
These are the different interests that the Defendants in these various cases
around the country have used to seek to justify the laws that were challenging here
today. R 001770. The first one is the basic premise of the Referendum Process.
And this is cut and pasted from the Defendants Brief in this case. These are their
words, the Basic Premise of the Referendum Process. Thats the argument that the
voters voted for, so it must be okay. J ust like in Arkansas where I think seventy
something percent of the people approved this Amendment were challenging here
today. Thats the same in a number of these state cases, and the basic response to
that and the Courts have said is you cant vote away peoples constitutional rights.
You cant submit them to be elected, thats why we have constitutional rights. We
dont have a majority rules the country, you know. We have a country where even
if youre in the minority, youve got certain rights they cant take away from you,
and that includes equal protection and due process.

Ab 81

The advancement of procreation, ensuring the best interest of children, see
those advanced in virtually all of these cases, the argument on procreation has been
rejected again and again. The response to that has been theres no requirement for
procreation in connection with marriage, so, theres no rational basis for that. R
001771. That would rule out the impotent, the elderly, post-menopausal women, if
that were a legitimate interest, because theres no requirement that people have to
procreate or be able to procreate to be married, its a non-sequitur that procreation
is advanced somehow by prohibiting these people from marrying. R 001771-
001772.
Ensuring the best interests of the children. Thats been rejected again and
again. And it comes down from J ustice Kennedys own words in the Windsor case
where he says this isnt in the best interest of the children. Its stigmatizing the
children of many of these couples like we have here who cant be recognized, their
parents union isnt recognized by society, and thats straight out of the Windsor
case. The fourth argument you see is stability, uniformity, and continuity of laws,
and thats the argument that the law has always been this way, so, the law has to
stay this way. And youll see the Courts have rejected that one again and again too.
Preservation of public purposes and social norms linked to the historical and
deeply-rooted meaning of marriage. R 001772. Thats an interesting one that
some of the courts address because what they said on that is this historical and

Ab 82

deeply-rooted meaning of marriage, where it came from originally was, marriage
came from religion. R 001772-001773. It did come from religion. And if it had
stayed solely a religious thing, part of a certain religion or any religion, and a
particular religion said were not going to allow same-sex couples to marry in our
religion, we wouldnt be here today. The Court cant make a religion. It violates
the First Amendment. Court can never order a religion to recognize the same-sex
union if they dont want to recognize it, at least, the way things are now. But when
the government gets its claws in there, and its not just something thats under the
umbrella of a particular religion and the government says okay, if youre married,
then you get certain benefits and you get certain privileges from the government
like you do when you have the status as married here, then its not just a religious
thing, and its subject to all of the constitutional protections that any other benefit
or privilege that is accorded to our government to its citizens has to comply with.
This law is a cautious, historical approach to governmental social
experimentation. R 001773. That is the lets dont move too fast here argument,
and some of the Courts have addressed that and talked about the gradual progress
of the law on this, and I went through that a minute ago starting with Loving v.
Virginia if you just want to look at the development of the Constitution as applied
to states definitions of marriage or starting with the Romer case if you want to

Ab 83

look at the federal government making rules that protect homosexual people. R
001773-001774.
The first case that came out was right after Windsor, and I dont know how
much they had the benefit of the Windsor decision when they decided this. I think
they did. The first one was out of Michigan, this was like a week after the Windsor
decision last J une. Michigan says rational basis review is not a rubber stamp,
discrimination that can only be viewed as arbitrary and irrational will violate the
Equal Protection Clause. R 001774. On the level of review what most of the
Courts say is when some of them go off and say marriage is a fundamental right,
were going to look at a strict scrutiny type of review, others say that there is some
midlevel scrutiny given to homosexual discrimination. R 001774-001775. But the
majority of them say it doesnt matter because it doesnt meet the rational basis test.
Michigan went on to quote from something that basically also was said by
J ustice Kennedy in Windsor. The Sixth Circuit says: The desire to effectuate
animus against homosexuals can never be a legitimate government purpose, and a
state action based on that alone violates the Equal Protection Clause. Michigan
quotes from J ustice Kennedy, and J ustice Kennedy said looking at DOMA in the
text of DOMA demonstrates the interference with the equal dignity of same-sex
marriages as more than an incidental effect, and that was the purpose of the law.
Its the same as our law. You look at it, its not just a law meant to deal with

Ab 84

something else. R 001775. It just happens to impact homosexuals more than
heterosexuals. R 001775-001776. Its a law saying if youre homosexual, you
cant be married, its direct. Its not an incidental effect. And the Michigan Court
took that and said its the same thing here. The Michigan case was about, they had
a law saying the state could not provide health insurance or other fringe benefits to
anyone living in the employees household unless they were married, a legal
dependent or able to inherent by intestacy. So it wasnt on its face directed at
same-sex unions or homosexuals, but they said that still, its not an incidental
effect here. Thats what this was about. It was about making laws that treat these
people differently.
The next thing to come was the Ohio case about a month after the Michigan
case. So, weve got Michigan, now weve got Ohio, J uly 22, 2013. Not a
complicated case. Issue is whether Ohio can discriminate against same-sex
marriages lawfully solemnized out of state, I call it a recognition case. It was a
short-hand way we refer to these as right to marry cases and recognition cases.
Some of these are recognition cases, some are right to marry, some are both. R
001776. Right to marry being a state law that says two people of the same-sex
cannot marry, recognition being the law that says we wont recognize the
legitimate same-sex marriage from another state in this state. R 001776-001777.
And so this one was a recognition case, and the issue is not complicated, its

Ab 85

whether Ohio can discriminate against same-sex marriages that are lawful in
another state when Ohio has historically and unambiguously provided the validity
of a marriage is determined by whether it complies with the law of the jurisdiction
where it was celebrated, same as Arkansas. Arkansas recognizes marriages. You
couldnt get married to first cousins here, but you can marry a first cousin in
another state that allows it. That marriage is legitimate here. They single out
homosexual couples, and dont give them the same treatment.
Now they gave a Temporary Restraining Order, a Preliminary Injunction in
the Ohio case, saying that it all likely violates the United States Constitution. We
see one of the last final ruling type case in Ohio that lays it on even stronger. R
001777. The cases get stronger as the time goes on and the Precedent builds,
youll kind of see that. R 001777-001778. And heres what you were referring to,
Your Honor. The Ohio court said just as J ustice Scalia predicted in his animated
Dissent, the state-law shoe has now dropped in Ohio meaning just what Scalia said
was going to happen in the states next is happening, and that is states being
required to recognize same-sex marriages from other states. And Ohio said Scalia
is right, were going to recognize them. The purpose of these laws is to treat same-
sex married couples differently than opposite-sex ones, its the same improper
purpose that failed in Windsor and in Romer. To impose inequality, and make gay
citizens unequal under the law.

Ab 86

I meant to mention it in the beginning, Your Honor, but we dont have any
fact issues here. Page four of the transcript from the last hearing, Mr. J orgensen
stated hes not taking any discovery on factual allegations even for purposes of a
final hearing. I think the facts or allegations in the Complaint are undisputed. I
have no plans to dispute them. So theres not a fact issue. This is all on the law.
R 001778.
The Ohio case finally went on to say that even if there was some attendant
legitimate government purpose to discriminate against gay couples, other than pure
animus, its hard to see how that purpose can justify the discrimination thats
occurring.
Next, state court case, third to come: Garden State Equality v. Dow.
Garden State Equality was an advocacy group and six same-sex couples sued
claiming that their equal protection rights were violated by a statutory scheme that
allowed civil unions for same-sex couples, but not marriage. It was decided on
summary judgment purely as a matter of law, with no facts put on the table like
here. The case held that refusing same-sex couples the right to marry was a
violation of the equal protection provisions of the New J ersey Constitution. They
didnt consider the federal constitutional violations because they said they didnt
need to in light of that finding. Were asking you to find that its unconstitutional
under both for a number of different reasons. R 001779.

Ab 87

Some of these slides, youll notice the numbers on the bottom right of the
slides are not always consecutive, it may jump from thirteen to seventeen or
something like that because I went through and pulled out a bunch of them. R
001779-001780. I may kind of pull them out to speed this along here. Anyway,
maybe thats why I put that in there because its the only quote I had from that case,
the third case. Plaintiffs have shown that civil union partners in New J ersey are
being denied equal access to federal benefits, thats requiring that the right to
marry be extended to same-sex couples under the equal protection guarantee of the
New J ersey Constitution.
The next one was Pennsylvania, federal case, November 15, 2013:
Whitewood v. Wolf. I just got one slide on that case. Thats why its long. This is
an interesting one. One of the arguments that the Defendants make is youve got a
case, the Baker case, I dont have the cite for the Baker case right now. R 001780.
It was in Minnesota and it was in 1972, and a same-sex couple sued for the right to
marry in Minnesota, and the state court had said no, and the Supreme Court
dismissed that appeal, based on insubstantial federal question, and what youll see
in the law is, in a case thats not heard by the Supreme Court based on insubstantial
federal question does have precedential value normally unless doctrinal
developments in the law have changed to such a point that that can no longer be
really considered precedential. R 001780-001781. And so you have a number of

Ab 88

cases that take us through that and take us through the doctrinal developments in
the law that have occurred since Baker and this is one of the cases that does that,
and it points out all of the things that are different since the Baker case was
dismissed by the Supreme Court for lacking a substantial federal question. They
point out that intermediate scrutiny hadnt even been heard of yet. Classifications
on illegitimacy and sex were not yet deemed quasi-suspect. Sex hadnt been listed
as a suspect class yet. There had been no rulings from the Supreme Court on
classifications based on sexuality undertaking for its own sake. The law was in
1972 that governments could lawfully demean homosexual persons existence or
control their destiny by making their private sexual conduct a crime. R 001781.
What all of these cases have said to the Baker argument is, that was 1972, may
have been an insubstantial federal question in 1972, but its not now, and the rule
that doctrinal developments have changed so much that thats disregarded now
prevails, and youll see a couple of others that say the same thing about, about that
argument. R 001781-001782.
The next one is Illinois federal case on December 10, 2013. This was two
days before our last hearing. And youll notice Ive been through like four cases
from four jurisdictions now. We probably didnt have the benefit of this one on
December 12, so I guess about seventy something percent of these cases came
down since December 12 when we were here last. Gray v. Orr from the Northern

Ab 89

District of Illinois. R 001782. Gray v. Orr was a situation where Illinois had
changed its law to allow the recognition of same-sex marriages, but that law was
not going to take effect until J une 1 of 2014, and we had a couple that came in and
one of the members of the couple had a terminal illness, and they said we dont
want to wait for this law to go into effect, Your Honor, we want to die married, and
we want for him to die with us being married, and we want that reflected on the
death certificate that we were married. R 001782-001783. And the Court granted
the TRO and said, you know, youre going to be considered married now, and you
dont have to wait until J une first when Illinois law changes. And they did it all
based strictly on language from the Windsor case. Quotes a lot of good language
from Windsor. And, and this is interesting. Theyre quoting from J ustice Kennedy.
DOMA seeks to injure the very class New York seeks to protect. By doing so it
violates basic due process and equal protection principles applicable to the federal
government. The Constitutions guarantee of equality must at the very least mean
that a bare congressional desire to harm a politically unpopular group cannot
justify disparate treatment of that group. That was J ustice Kennedy, he didnt rule
on facts in that case either. Hes saying this is a matter of law that the federal
DOMA law was a bare congressional desire to harm a politically unpopular group.
R 001783. The federal DOMA law is the same kind of language weve got here,

Ab 90

and just says we dont recognize these marriages, and you cant marry here of the
same-sex. R 001783-001784.
Another Illinois case came down shortly after that, and it was the same fact
situation. Medically critically injured Plaintiffs, same-sex couple where one of
them had a dire medical condition, and they didnt want to wait until the Illinois
law changed on J une 1st to be able to be considered married because somebody
might die before then. And that Court ruled the same, but on a class wide basis
saying any couple out there thats similarly situated that has a partner in it that
might due to their medical condition not make it until the law changes here on J une
first, 2014, can get married now. Another statement I like in this case that has to
do with the dont change it too fast argument is they point out gradually the United
States Supreme Court has invalidated laws that single out gay and lesbian
individuals for disparate treatment. They quote Windsor, Lawrence v. Texas in
2003, Bowers v. Hardwick in 1986, Romer v. Evans in 1996. R 001784. So they
go back to nearly thirty years of laws that are moving us in this direction and that is
what courts have said in response to the argument that we need to be cautious, we
dont need to do anything too quick. R 001784-001785. The courts have pointed
out this hadnt been happening quick. This has been slow, recognizing a little bit
here like the law is a drag to get changed. Its the most stubborn to move it in the
direction of societal change. It takes little nibbles rather than a big bite, and theres

Ab 91

no big bite taken by a ruling in our favor in this case. Its been a nibbling process,
and were finally here, hopefully close the door on this.
Next one, New Mexico. This is a state court case. It would have come after
our hearing the last time. Griego v. Oliver. Same-sex couples challenge New
Mexico statutes prohibiting same-sex marriage under equal protection and Due
Process Clauses. The New Mexico Court applied intermediate level of scrutiny
because sexual orientation is a sensitive class, and concluded that the marriage
bans violate the Equal Protection Clause. The Court rejected the procreation
argument. R 001785. The argument that this is a better thing for childrearing than
the traditional marriage approach in this case. R 001785-001786. And I like this
because they went off on the Bill of Rights of the New Mexico Constitution, and
theres an argument thats made here that, hey, this cant violate the Arkansas
Constitution because the voters passed an Amendment that changed the
Constitution. But just like the Bill of Rights in the federal Constitution, the Bill of
Rights Section of the Arkansas Constitution that guarantees due process and equal
protection are inalienable rights. Theyre rights we never gave up to our
government. Theyre rights that cant be taken away. And if you look at the logic
behind that, it all makes sense. The essence of a free country is its not a majority
rule deal. And the inalienable rights that cant be taken away from us are not based

Ab 92

on being in the majority, its to protect those that may not be in the majority, and
allow them to live free as well.
Now, this is from the United States Supreme Court. R 001786. The New
Mexico Court is dealing with its state Constitution, but its quoting the United
States Supreme Court. R 001786-001787. The very purpose of the Bill of Rights
was to withdraw certain subjects from the vicissitudes of political controversy, to
place them beyond reach of majorities and officials and to establish them as legal
principles to be applied by the court. Ones right to life, liberty, property, other
fundamental rights may not be submitted to vote. They depend on the outcome of
no elections. They cant take that from us by getting the voters to go to the polls
and try to vote them out from under you.
They also in this New Mexico case address the history and tradition
argument. And like the courts that address that, several of them have pointed out
that marriage has its roots in religion. And they make the point that the analysis
cant depend on religious doctrine. R 001787. They make the point that when the
governments in the marriage business, same-sex couples have to be treated the
same, but no religious organization will have to change its policies to
accommodate the same-gender couples, no religious clergy will be required to
solemnize a marriage in contravention of his or her religious beliefs. R 001787-
001788. Cant change anything about that. But when the government is in the

Ab 93

business, everybody has got to be treated fairly and the same. The New Mexico
court applied intermediate scrutiny.
And the New Mexico court rebutted the procreation argument, one of the
justifications the Defendants offer here. Procreation has never been a condition of
marriage under New Mexico law as evidenced by the fact that the age of the
infertile and those who chose not to have children are not precluded from marrying.
Further, New Mexico law recognizes the right of same-gender couples to raise
children. Exactly like Arkansas. Case out of this very court, the adoption case,
Cole. So a gay couple has the right to raise children in Arkansas. They can raise
children under our law, but they cant be married. New Mexico said theres no
rational basis to arguing that advancing procreation should be seen as a
justification for these laws. This is a good point on the tradition argument, keeping
the tradition of marriage. R 001788. Its not appropriate to define the States
interest as maintaining the tradition of marriage only between opposite-gender
couples, any more than it was appropriate to define the States interest in Loving as
only maintaining same-race marriages. R 001788-001789.
When I was here last time, Your Honor, the defense was trying to
characterize the issue as rights have to be deeply rooted in history and tradition and
that sort of thing in order for you to say you have a due process right. And they
wanted to characterize the issue as whether same-sex marriage was entitled to

Ab 94

constitutional protection. I said thats not the way the courts have ever looked at it.
In Loving, the issue was marriage, not whether interracial marriage was entitled to
due process protection. In Zablocki, where prisoners were required to be allowed
to be married, the issue wasnt prisoner marriage and whether that was deeply
rooted in history and tradition. The issue was whether marriage was deeply rooted
in history and tradition. And, you know, the cases have not spun it that way. R
001789. Theyve looked at it as marriage being the due process right thats
protected, whatever the variation is on marriage thats been before the court. R
001789-001790. And the New Mexico court was making the point on that here.
On the advancement of family interests, they make the same point J ustice Kennedy
made which was the discriminatory classification is at odds with that goal. Its not
consistent with it. Promoting stable families is stigmatizing the children of those
families.
Next case, this one was interesting when it came out December 20th because
its our first red state. And the red states start to come out and the southern states
start to come out. First red state was the Supreme Court of Utah on December 20th,
2013, and
The Court: Wasnt it a federal court and not a state court?
Mr. Wagoner: Im sorry, it was, Your Honor. I probably ought to speed
this up if youre that up to speed on everything. Utah case, December 20th, 2013.

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Same-sex couple sued for the right to marry and to have marriages from out of
state recognized. R 001790. The court ruled the fundamental right to marry was
violated, equal protection was violated, and the Tenth Circuit heard arguments on
this one just about a week ago, and the press releases and everything on that say
theres a three judge panel. R 001790-001791. Two of them, one was a Bush, Sr.
appointee, one was a Bush, J r. appointee, and one was a Clinton appointee.
Apparently, the Clinton appointee was fully on our side, the Bush, Sr. appointee
was not, and the Bush, J r. appointee, we dont know. Hes an African-American
J udge. He asked the question, however, during oral argument, whats the
difference between this and Loving v. Virginia. So, you cant predict anything, but
I think at worst, its one in our favor when the Tenth Circuit decision comes down.
Another Tenth Circuit case is also being heard on this today, so we should have
our first federal appellate court decision on it pretty quick.
The Utah case took them through the doctrinal developments. They rejected
the Baker argument again, and talked about all the things that had changed since
that Baker case was denied review based on insubstantial federal question. R
001791. They point out all the cases that the Defendants cite, supporting Baker,
were decided before the Windsor case. R 001791-001792. The courts have been
consistent with what I said, Windsor changed the law. Windsor was a right turn.
On the referendum argument, this is another court that says you cant submit my

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constitutional rights to a vote. Marriage is a fundamental right. Federal
government steps in to invalidate state laws because theres a federalism argument
made a lot of times that this is the States business. Its not any more the States
business alone than it was in Loving v. Virginia on the interracial marriage issue,
and the federal government steps in when peoples liberty interests are trampled on
by these state laws even in the area of marriage. They rejected the procreation
argument. Another one that says post-menopausal women, infertile men, still have
a fundamental right to marry. The Constitution protects the right of same-sex
individuals to marry to the same degree that it protects the right of heterosexual
individuals to marry. R 001792. And in the Utah case, they talk about the
evolving nature of our constitutional protections and how something that changes
over time and, as the Constitution endures, people in every generation can invoke
its principles in their own search for greater freedom. R 001792-001793. You
couldnt envision everything two hundred something years ago when they laid
down the Constitution and know what was coming down the pike, it wouldnt be
possible. So, of course, constitutional law changes over time, and freedoms that
are protected change over time.
This throws the procreation argument out. These cases havent even
involved people coming in and trying to put on facts and proof that these
justifications for these laws have any validity anymore because the courts are just

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thumbing their nose at those arguments. As a matter of law, theyre saying things
like any relationship between this prohibition and the states interest in responsible
procreation is so attenuated as to render the distinction arbitrary or irrational. And
heres the one I was talking about, Scalia dissenting. R 001793. Preserving the
traditional institution of marriage is just a kinder way of describing the states
moral disapproval of same-sex couples. R 001793-001794. Scalia said that in
2003 in the Lawrence v. Texas case. And he was in the minority again there.
This is interesting. They point out in the Loving v. Virginia case in 1966, the
arguments that the State of Virginia made in an attempt to support the law
prohibiting interracial marriage. Look at how much they lineup with ones that are
being made here. The Virginia statutes that are under attack reflect a policy that is
obtained in this Commonwealth for over two centuries. Thats the history and
tradition. Thats the dont change things too quickly argument. (2) Inasmuch as
we have already noted the higher rate of divorce among the intermarried, is it not
proper to ask, shall we then add to the number of children who become victims of
their intermarried parents? Thats the dont allow these folks to get married for the
children argument. (3) Intermarriage constitutes a threat to society. (4) Under the
Constitution, the regulation and control of family relationships are reserved to the
states. Thats the federalism argument. R 001794. They made the same
arguments in 1966 on interracial marriage, the state Defendants did, that were

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rejected by the Supreme Court and have now been rejected when theyve been
made in connection with same-sex marriage in all of these cases, and Utah is just
pointing that out. R 001794-001795.
And then we get back to Ohio. Same-sex couples challenge the Ohio anti-
recognition provisions of the law, and the Southern District of Ohio granted a
permanent injunction compelling officials to recognize same-sex marriages on
death certificates, holding that anti-recognition laws violate both equal protection
and due process. And on the recognition issue, they were pointing out that in
Williams v. North Carolina, that was a case where North Carolina wouldnt
recognize a Nevada divorce, and the Supreme Court said you have to, and they
were pointing out how it just isnt going to work with being married in one state
and not married in another. And it was kind of in a different format, but thats an
interesting quote from the Supreme Court case there. The right to remain married
this Court says is a fundamental liberty interest. R 001795. So theyre saying if
yall get married in New York if youre a same-sex couple, you have a right to
remain married when you come to Arkansas. R 001795-001796.
Federalism argument shot down. Equal protection is violated by this
difference drawn between opposite-sex and same-sex married couples legally
married in other states. They reject the traditional argument. They point out the
fact that a form of discrimination has been traditional is the reason to be more

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skeptical of its rationality. Im sure when we were trying to get out civil rights
laws, there were all these arguments about tradition. Well, African-American folks
have never been given these rights since the birth of our country. The Dred Scott
case you talked about when we were here last. The fact that a group has
historically been discriminated against is one of the things thats looked at in
deciding whether that group should be a suspect class. The fact that theyve
historically been discriminated against is less reason to consider laws that are
aimed at them, targeting them, to have a rational basis. R 001796. A lot of these
take the language of these statutes and constitutional amendments that are like
what we have here in our state and say this is just intentional discrimination, its
not incidental. R 001796-001797. And there, this court says that and quotes
Windsor. No hypothetical justification can overcome these marriage bans.
Northern District of Oklahoma, another red state after the Utah decision
J anuary 14th of this year, Bishop v. Holder. Thats the one we have Tenth Circuit
arguments on today. There was a lesbian couple that challenged the Oklahoma
constitutional amendment that limited marriage only to opposite-sex couples. The
court found that the constitutional amendment intentionally discriminates against
same-sex couples by refusing to issue marriage licenses to same-sex couples but
not to any other group. The court in this case again held Baker is not controlling
due to significant doctrinal development since then. And they say that Windsor is

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what courts have to follow today and not Baker when these types of challenges are
mounted. R 001797. The court rejected all rationales that are made here including
moral disapproval, responsible procreation, promoting ideal mother-father families,
and protecting traditional notions of marriage. R 001797-001798. The same
arguments here are shot down in case after case after case. And they take you
through the Baker argument, and reject that. Defending traditional marriage is a
guise for impermissible discrimination against same-sex couples by either the state
or federal government. The law doesnt have a small or incidental effect on a
defined class. Its a total exclusion of only one group just like in Arkansas. A line
was purposefully drawn between two groups of Oklahoma citizens, same-sex
couples and oppose-sex couples, same as Arkansas. Moral disapproval of
homosexuals as a class, or same-sex marriage as a practice, is not a permissible
justification for a law. The fact that a disadvantaged group has traditionally been
excluded is not evidence of a rational link to a goal of promoting responsible
procreation. Past exclusion does not mean that such exclusion is constitutional
when challenged at a particular moment in history.
This is the for-the-children argument. R 001798. They point out, excluding
same-sex couples from marriage doesnt make it more likely that a same-sex
couple wanting children, or already raising children, will change course and marry
an opposite-sex partner thereby providing the ideal child raising environment. R

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001798-001799. Its more likely that any potential or existing child will be raised
by the same-sex couple without any state-provided marital benefits and without
being able to understand the integrity and closeness of their own family and its
concord with other families in the community. That last little quoted section is
J ustice Kennedy in Windsor pointing out this is not good for children, its bad for
children. Protecting traditional marriage. Cutting these Plaintiffs out of a marriage
license based on a perceived threat to the marital institution is arbitrary, its
insulting to same-sex couples who are human beings capable of forming loving,
committed, enduring relationships. Oklahomas majority view, it was a
constitutional amendment just like here, must give way to individual constitutional
rights. Those Bill of Rights protections they cant take from us.
Kentucky, southern state, February 12th, 2014. R 001799. Bourke v.
Beshear, same-sex couples challenge the non-recognition provisions of the
Kentucky Constitution. R 01799-001800. And like Arkansas this amendment had
been passed by seventy-four percent of the voters saying were not going to
recognize marriages from other states. And just like Arkansas reads, their
amendment says were only going to recognize marriages between men and
women, and anything that looks like a marriage or smells like a marriage for
people that are same-sex wont be recognized. This one said, if you look at the
Windsor case, its hard to tell what level of scrutiny is being applied. They dont

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come out and say this is a strict scrutiny case. It smells more of substantive due
process than equal protection although theres elements of both, and its not given
that rational basis deference, and so its really unclear what the Supreme Court
The Court: Scalia pointed that out. R 001800.
Mr. Wagoner: Right, but the courts have pointed out look, something
more than rational basis is going on here, but most of them punt like this and say
ultimately, the result is unaffected by the level of scrutiny applied. R 001800-
001801. A lot of them say were not even going to decide because it doesnt meet
rational basis anyway. Again, quoting Kennedy. Kentucky just paraphrased
J ustice Kennedy. The principle purpose is to impose inequality. And thats more
quotes from Windsor by the Kentucky Court. They basically said this isnt
constitutional anymore after Windsor. They rejected the traditional argument. The
antiquity of a practice nor the fact of steadfast legislative and judicial adherence to
it through the centuries insulates it from constitutional attack. Over the past forty
years, the Supreme Court has refused to allow mere tradition to justify marriage
statutes that violate individual liberties.
And this is the referendum voters wanted it argument. The fact that the
governing majority in a state has traditionally viewed a particular practice as
immoral is not a sufficient reason for upholding a law prohibiting the practice.
That was J ustice Kennedy, direct quote from the Lawrence case. And then they

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quote Scalia again, dissenting there. R 001801. Traditional institution of marriage
is just a kinder way of describing the states moral disapproval of same-sex couples.
The government only argued two bases for the law in Kentucky, and the court says
weve got this family advocacy group that offers additional purported interests, and
they say its a good thing the government didnt argue these because theyre silly.
But they threw up the responsible procreation and childrearing, steering naturally
procreative relationships into stable unions, promoting the optimal childrearing
environment, proceeding with caution. And the court says the state not
surprisingly declined to offer these justification as each has failed rational basis
review in every court to consider them post-Windsor and most courts pre-Windsor.
J ustice Kennedy even explained that it was the failure to recognize same-sex
marriages that harm children, not having married parents who happen to be of the
same-sex, and they quote J ustice Kennedys statements in Windsor to that effect
that these laws humiliate tens of thousands of children now being raised by same-
sex couples. R 001802. Even if the discrimination wasnt intentional, these
Kentucky laws cannot withstand traditional rational basis review. R 001802-
001803. And at that stage of the game, March 19th, just a month ago, nine state
and federal courts have reached conclusions similar to those of this court.
Over the last several months alone, three federal district courts have issued
well-reasoned opinions supporting the rights of non-heterosexual persons to

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marriage equality. Indeed, to date, all federal courts that have considered same-sex
marriage rights post-Windsor have ruled in favor of same-sex marriage rights.
This court joins in general agreement with their analysis.
They shoot down the traditional marriage argument. And this court was
sensitive to those people that are steadfast believers in their religion and whose
religion may say that we believe that the union of a man and a man or a woman
and a woman is a sin, and they want to look at it that way. And this court went to
some lengths to explain to these people why when it comes to government
marriage as opposed to religion in marriage, this is the way it is. And they point
out that faith, ministers, and individuals can define marriage for themselves. R
001803. But once the government defines marriage and attaches benefits to that
definition, it has to do so constitutionally. R 001803-001804. It cant impose a
traditional faith-based limitation upon a public right without a substantial
justification for it. Assigning a religious or traditional rational for a law does not
make it constitutional when it discriminates against a class of people without other
reasons. The beauty of the Constitution is that it accommodates our individual
faiths definition of marriage while preventing the government from unlawfully
treating us differently. This is hardly surprising since it was written by people who
came to America to find both freedom of religion and freedom from it.

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Some of these we get to here are touching, and I put them in here just for
that reason. And they point out that courts cant require churches or religious
institutions to marry same-sex couples. This is part of our constitutional guarantee
of freedom of religion. How can a single judge interfere with what the states want
to do in their Constitution? And he points out that the Constitution prevails over a
vote of the people. R 001804. And this one again rejects the we need to move
cautiously, this is a sudden thing, and this court addresses that. Theres nothing
sudden about this. And he talks about the body of constitutional jurisprudence and
the Supreme Court took its first step in 67 in Loving v. Virginia, and it takes you
on through Romer v. Evans, the Windsor case, and Lawrence v. Texas. This court
takes you through this whole stream of history that leads up to where we are now
to point out that this has been a slowly developing thing. Its not something
sudden and radical.
Next case, another southern state, a Virginia case, came down February 13th.
Same-sex couple sued the clerks responsible for issuing marriage licences. This
was a state constitutional amendment and some statutes just like here, and it was
decided on summary judgment just like here. R 001805. Mildred Loving was the
African-American lady that wanted to marry her longtime love of her life who was
a white man whose case ended up going to the Supreme Court in 1967 in Loving v.
Virginia. R 001805-001806. 2007 was the fortieth anniversary of Loving v.

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Virginia. She was called upon at a gathering they had to read a speech, and this is
what she said: We made a commitment to each other in our love and lives, and
now had the legal commitment called marriage to match. Isnt that what marriage
is? I have lived long enough now to see big changes. The older generations fears
and prejudices have given way, and todays young people realize that if someone
loves someone they have a right to marry. Surrounded as I am now by wonderful
children and grandchildren, not a day goes by that I dont think of Richard, and our
love, our right to marry, and how much it meant to me to have that freedom to
marry the person precious to me, even if others thought he was the wrong kind of
person for me to marry. I believe all Americans, no matter their race, no matter
their sex, sexual orientation, should have that same freedom to marry. Government
has no business imposing some peoples religious beliefs over others, I support the
freedom to marry for all. Thats what Loving, and loving are all about. R 001806.
The Virginia court went on to say theres no dispute these laws were
embodied by men of Christian faith. This is kind of what some of the others have
touched on that I mentioned, the genesis of marriage is in religion, and even
though thats where it originated, the laws of marriage evolved into a civil and
secular institution sanctioned by the Commonwealth of Virginia. Once that
happens, the constitutional protections and benefits that we have from our
Constitutions apply. They reject the Baker argument. Doctrinal developments

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since 1971 in Baker change the landscape, especially Windsor. They declared
marriage is a fundamental right. Apply strict scrutiny. Reject the for-the-children
rationale pointing out like J ustice Kennedy did that for-the-children is not accurate
because these laws stigmatize and humiliate children for being raised by loving
couples. And then they reject the procreation rationale saying it would threaten
legitimacy of marriage for post-menopausal women, infertile individuals, and
individuals who choose to refrain from procreating. R 001807.
For-the-children rests on an unconstitutional presumption that same-sex
couples cant be good parents. R 001807-001808. Forty years ago a similar
unfortunate presumption was proffered to defend a law in Illinois that removed
children from the custody of unwed fathers at the death of their mother. That was
Stanley v. Illinois, a case that said they couldnt do that in 1972. I talked about this
last time. Same-sex couples can be just as responsible for a childs existence as the
countless couples across the nation who choose or are compelled to rely upon,
enhanced or alternative reproduction methods for procreation. A lot of families
use alternative methods for procreation, egg donors and things like that these days.
They went on to analyze it under equal protection even without a fundamental right
analysis. They go on to find, the Virginia law violates equal protection. And they
also address the tradition argument. The history of the Constitution is the story of

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the extension of constitutional rights and protections to people once ignored or
excluded.
And this is a series of little slides here that are those that are just, that I just
kind of want to sit there and look at, and think about for a minute. R 001808. Our
nations uneven but dogged journey towards truer and more meaningful freedoms
for our citizens has brought us continually to a deeper understanding of the first
three words in our Constitution: We the people. We the people have become a
broader, more diverse family than once imagined. This court sums it up kind of
with some fire and brimstone. J ustice has often been forged from the fires of
indignities and prejudices suffered. Our triumphs that celebrate the freedom of
choice are hallowed. We have arrived upon another moment in history when We
the People becomes more inclusive, and our freedom more perfect. Almost one
hundred and fifty-four years ago, as Abraham Lincoln approached the cataclysmic
rending of our nation over a struggle for other freedoms, a rending that would take
his life and the lives of hundreds of thousands of others, he wrote these words: It
cannot have failed to strike you that these men ask for just the same thing
fairness, and fairness only. This, so far as in my power, they, and all others, shall
have. R 001809. And after quoting that, the court goes on to say the men and
women, and the children too, whose voices join in noble harmony with the

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Plaintiffs today, also ask for fairness, and fairness only. R 001809-001810. This,
so far as it is in this Courts power, they and all others shall have.
Texas, February 26th, 2014, Federal District Court decision, De Leon v.
Perry, right to marry and recognition were at issue there. And it was a Texas
constitutional amendment just like we have here. The court issued a preliminary
injunction barring enforcement of that law. They throw out the Baker argument.
They say they join the four recent district court decision they knew of at the time,
rejecting the Baker argument. They say we dont have to apply heightened
scrutiny because this law fails rational basis. They say theres no evidentiary
support for the rational bases that are proffered just as none is offered in this case.
They shoot down the procreation argument, and they conclude with the only
purpose served by treating same-sex married couples differently is the same
improper purpose that failed in Windsor and in Romer: to impose inequality and to
make gay citizens unequal under the law. They shoot down the tradition argument.
R 001810. Say theres no rational relation to any legitimate governmental purpose.
R 001810-001811. They shoot down the referendum argument saying that your
fundamental rights cant be submitted to a vote and may not depend on the
outcome of elections. They shoot down the federalism argument pointing out that
the Supreme Court hasnt hesitated to invalidate state marriage laws when they
intrude on protected realms of liberty of the individual. And this is one I referred

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to earlier, that the Defendants claim this is a definitional issue. They claim
Plaintiffs are seeking recognition of a new right to same-sex marriage as opposed
to the existing right to marry. This Court finds this argument fails. The Supreme
Court did not adopt this line of reasoning in Loving v. Virginia. The issue there
wasnt the right to interracial marriage, it was the right to marriage. No rational
basis.
Another neighboring state, Middle District of Tennessee. That one came out
March 14th, 2014. Married same-sex couples challenged the Tennessee Anti-
Recognition Laws. R 001811. The court granted a preliminary injunction
prohibiting state officials from enforcing laws as applied to specific Plaintiffs
noting that that the Anti-Recognition Laws are likely unconstitutional. R 001811-
001812. And the court found that the rising tide of persuasive post-Windsor
federal case law, theres no link to conclude the Plaintiffs here are likely to succeed
in their challenge to Tennessees Anti-Recognition Laws. All signs indicate, this is
Tennessee, the eyes of the U.S. Constitution, the Plaintiffs marriages will be
placed on equal footing with those of heterosexual couples and prescription against
same-sex marriage will soon become a footnote in the annals of American history.
Michigan, March 21st, 2014. Another constitutional amendment falls.
Same-sex couples challenge the Michigan marriage amendment which prohibited
same-sex marriage. They claimed it violated the due process and equal protection

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rights. In this one, there was actually a trial. Its the only one that had a trial. And
the court rejected the asserted state interests of providing an optimal environment
for childrearing, proceeding with caution, and upholding tradition and morality. In
fact the court had said in that case, were going to have a trial on those limited
issues. R 001812. I want you to show me how theres a rational relationship
between those, and they had witnesses and everything else, and the court ruled
against them. R 001812-001813. Its the only one theres been a trial in that
wasnt decided on the pleadings or summary judgment. Taking the states
position to its logical conclusion, the empirical evidence at hand should require
that only rich, educated, suburban-dwelling, Asians may marry, to the exclusion of
all other heterosexual couples. And it was Asians, I think, because they tend to
have the highest marks in their standardized testing, and, so, the court was saying if
were going to try to perfect the procreation argument, perfect the children to a
master race or something, then, you know. Optimal academic outcomes for
children cannot logically dictate which groups may marry. Because in that trial,
they were getting on the stand, and they were trying to show that the children of
same-sex couples didnt do as well on their testing, Im sure thats why that came
about.
And they shot down the we need to be cautious here argument. R 001813.
The basic guarantees of our Constitution are warrants for the here and now unless

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theres an overwhelmingly compelling reason they need to be promptly fulfilled.
R 001813-001814. The state cant take a wait-and-see, cautious approach, Your
Honor. Thats why I asked you tell us your ruling today, we dont need a wait and
see. Tradition and morality are not rational bases for these laws. Taken together,
Windsor and Loving stand for the proposition that without an overriding legitimate
interest, the state cant use its domestic relations laws to legislate families out of
existence. The court is not aware of any legal authority that entitles a ballot-
approved measure to special deference in the event it raises a constitutional
question. Thats the you cant vote my rights away argument. This is a federalism
argument shot down. States are free to regulate marriage, but not when it steps on
our federal constitutional guarantees. And this is my point about our Constitution
is to protect the minority. R 001814. Todays decision is a step in that direction
and affirms the enduring principle that regardless of whoever finds favor in the
eyes of the most recent majority, the guarantee of equal protection must prevail.
R 001814-001815. The majority rule country is not a free country.
Now this is the last decision, and it goes back to Ohio. This was April 14th.
That original decision out of Ohio I talked about, the very first one that came down
after Windsor, was the terminally ill member of a couple, and they wanted the
preliminary injunction allowing them to marry, and the Ohio case, what it did was
it expanded those early limited Ohio rulings to hold Ohios anti-recognition laws

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are facially unconstitutional and are thus unenforceable against all of the people of
the state rather than just applying it to the Plaintiffs that were in the original
proceeding. And they applied heightened scrutiny in that case. R 001815. And
its funny, I know a lawyer that writes her briefs this way, and we always make fun
of her because she puts things in bold and underlined throughout like she screams
at you here and there throughout the briefs, this judge writes the same way, and
these are his underlines in bold here. R 001815-001816. And he ruled that the
Ohio marriage recognition bans are facially unconstitutional and unenforceable
under any circumstances. Points out that eight attorney generals of the United
States and eight state attorneys have refused to defend these laws.
There is a growing national judicial consensus that state marriage laws
treating heterosexual and same-sex couples differently violate the Fourteenth
Amendment. Its this Courts responsibility to act decisively to protect rights
secured by the United States Constitution. And whether were talking about the
right to marry here versus the right to same-sex marriage or the right to interracial
marriage, this Court points out that you cant reframe that issue. R 001816. The
Supreme Court consistently describes a general fundamental right to marry rather
than the right to interracial marriage, the right to inmate marriage, or the right of
people owing child support to marry which is funny, and made me feel smart,
because I said that exact same thing when we were here in December before this

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Court said it. R 001816-001817. Twisting the definition doesnt work. And the
courts have come down and said that since we were here the last time. This one
and another one that I mentioned earlier.
They shoot down the tradition argument. The fact you denied a group rights
in the past doesnt justify continuing to deny those rights. They shoot down the
referendum argument, the repeated appeal to the sacred nature of the will of the
voters is particularly specious. And they quote from Windsor, the importance of
marriage in J ustice Kennedys Opinion. And youll be happy to know thats my
last slide.
The Court: I am happy.
Mr. Wagoner: And I dont have anything else to say unless you have a
question, Your Honor.
The Court: No. R 001817.
Mr. Jorgensen: Those binders down there are just my crutches, Your
Honor. I dont intend to use them.
The Court: Everybody needs crutches.
Mr. Jorgensen: Thats right. I dont have a PowerPoint. Your Honor,
before I get lost in my argument up here, I want to take a moment to state on
record my gratitude and appreciation for all the lawyers involved in this case, for
professionalism, integrity, cooperation, start to finish. As you know, Ive been

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involved in a case where it wasnt so smooth or easy, and for no apparent reason,
and it hasnt been that way in this case, and Im very grateful to all the lawyers on
both sides for that in this case.
I dont intend to say anything that I havent already covered in my Briefs
today, but I do intend to make an argument, and I have sort of global arguments
about state law and federal law, and then I have a sub-global argument about
federal law thats just Baker, Bruning, and Windsor. R 001818. And then Im
prepared to and probably will go into each individual claim that the Plaintiffs have
asserted in this case, and analyze each of those claims as separate and distinct
claims because thats how theyre set out in the Complaint, Count 1, Count 2,
Count 3, Count 4. R 001818-001819. And thats how Ive done it in the Briefs. If
I say something that you think is inconsistent with something I said in my Brief, I
ask Your Honor to defer to my Brief because I have probably then misspoken here
today. I will tell you if its something new or that I didnt put in my Briefs.
First, we must address the state law claims, Your Honor, and we have to get
this right. The Plaintiffs are basically bringing all the claims in this case under
both the state and federal Constitutions, and weve got due process, equal
protection, privacy, under both Constitutions. It is simply a matter of firm law that
a constitutional provision simply cannot violate an earlier provision of that same
Constitution. Thats a fundamental principle of constitutional law. The people of

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Arkansas amended the Arkansas Constitution by enacting Amendment 83. Its
now a part of the Arkansas Constitution, so any earlier provision in the Arkansas
Constitution that may or may not conflict with it cannot invalidate it. R 001819.
If theres a conflict with something earlier, its the earlier provision that has the
problem, not Amendment 83. I briefed this thoroughly.
The Court: Let me ask you this. If thats the case then the later
amendment would strike the Due Process Clause of the Arkansas Constitution.
Mr. Jorgensen: Only to the extent that there was a conflict there and only
on the subject matter addressed by the later amendment.
The Court: To the certain group. Wouldnt it have to be a constitutional
amendment that would actually annul the first Constitution? To do away with that
provision, wouldnt you have to do away with the state Constitution totally?
Mr. Jorgensen: I dont believe so, Your Honor, thats not how the
hundreds of cases over centuries have interpreted this issue. A constitutional
amendment by its nature amends that constitution, and thats how you amend the
constitution. R 001820. And thats why you amend the constitution and that way
if its a change or inconsistent or with anything that was in there before, the new
amendment prevails. R 001820-001821. And theres no requirement that the
amendment specifically address something earlier that it may conflict with and
nullify it explicitly although you could do that. I dont believe that Amendment 83

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conflicts with the earlier provisions of the Arkansas Constitution. The States
position is that it doesnt, but we dont need to be addressing that issue. The U.S.
Constitution, however, is supreme. And even a constitutional amendment to the
Arkansas Constitution still has to comply with the United States Constitution. Im
only talking about the state law argument here.
The Court: Right, but if the state constitution says you have the right to
due process, equal protection, those same arguments, and the later constitution
amendment would violate those principles then youre saying that it doesnt matter.
R 001821.
Mr. Jorgensen: Im saying the people of Arkansas have the inherent
authority to put whatever they want in their state Constitution. And the only check
on that is the United States Constitution. Of course, if the people of Arkansas
passed some sort of constitutional provision that was blatantly unconstitutional, it
would be struck down under the United States Constitution. Im trying to avoid a
situation here where we take this up on appeal to the Arkansas Supreme Court on a
state law issue, and they say what are you doing, and send it back, and then we
have to talk about federal law all over again.
The Court: Well, I mean there could be variations off that amendment. If
you said for instance that miscegenation was against the Arkansas Constitution,
then youd have to fall back on federal law, right? In other words, what youre

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saying is if the Arkansas Constitution was amended to say that miscegenation is
illegal and its, in Arkansas, then they can, we can do what we want with the
Constitution. R 001822-001823.
Mr. Jorgensen: Until Mr. Wagoner files a lawsuit under Loving v.
Virginia and gets a ruling that that violates the United State Constitution, which it
would.
The Court: Wouldnt you look at each individual amendment to the
Constitution to see if it violated the principles of Equal Protection?
Mr. Jorgensen: Of federal?
The Court: No, the Arkansas principle.
Mr. Jorgensen: No. Theres no cases that have ever done that,
interpreting an Arkansas Constitutional provision. R 001823. There are tons of
cases where Arkansas statutes or initiated acts like initiated Act of 2008 are
analyzed under the Arkansas Constitution because they must comply with it,
theyre not in the Constitution, theyre statutes, so if theyre just statutes whether
the people enacted them or the legislature, theyre governed by both Constitutions
for sure. R 001823-001824. So in the Cole case, you decided on state law, and
you nailed it, and the Supreme Court agreed exactly because that was a statute. It
wasnt in the Constitution.

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The Court: Once the Arkansas Supreme Court said the state Constitution
applied to that circumstance, then the constitutional amendment to ban marriages
that we have in this case wouldnt be affected by the Arkansas Supreme Courts
decision in Cole.
Mr. Jorgensen: Thats exactly right, Your Honor. R 001824. Cole,
Howard, Jegley v. Picado, except for a few instances where they get into a little
federal law, those cases dont apply in this case because were dealing with a state
constitutional amendment. R 001824-001825. For example, the New Mexico case
that Mr. Wagoner discussed, and the Plaintiffs slides number 17 thru 24 today,
that was decided on state law grounds under the New Mexico Constitution because
the laws being challenged and were state statutes. It was not a constitutional
amendment. The Oklahoma case and the Utah case and all these others that have
been decided on the federal grounds, those were state constitutional amendments.
None of them have been decided on state law grounds because you cant do that.
Its just logic and well settled law nationwide that a constitutional provision cant
violate itself essentially is what the logic is. And Ive briefed the heck out of this
because this case needs to be decided on federal law. R 001825.
If you do want to look at the Declaration of Rights of the Arkansas
Constitution and investigate the argument thats being made here that those rights
are inviolate, and you cant even amend the same constitution in any way that

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offends them, then I point you straight to Section 1 of the Declaration of Rights,
the very first provision of it which states that all political power is inherent in the
people and government is instituted for their protection, security, and benefit, and
they have the right to alter, reform, or abolish the same in such a manner as they
think proper. R 001825-001826. We could do away with our entire state
Constitution right now if we wanted to, Your Honor. And if it gets amended, it
doesnt violate itself but it is subject to the United States Constitution.
The Court: Thats an interesting issue, when you think that that provision
was put in there after slavery was abolished, and, you know, with the Declaration
of Rights.
Mr. Jorgensen: Right. And theres some antiquated stuff still hanging
around in the Arkansas Constitution, and I suppose it just doesnt get challenged
because it doesnt come up. For example, I think youre supposed to have some
Christian belief in God to hold public office, thats probably unconstitutional, but
you would challenge that under the federal Constitution.
The Court: Im sorry to get you off the track. R 001826.
Mr. Jorgensen: Please, Im here to answer your questions. Youve read
our briefs, so
The Court: Yeah, and its well written.

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Mr. Jorgensen: Thank you. I wont say anything further about state law
unless youre wavering on that. I think its pretty clear.
Heres my global argument under federal law, Baker, Bruning, and Windsor,
and this is probably written best in my Summary J udgment Response and Reply.
Ive gotten a little better as weve gone on, but Im really saying the same thing
over and over again. In Baker, as Mr. Wagoner discussed, the Minnesota Supreme
Court specifically held that prohibiting same-sex marriage as Minnesota did at the
time did not violate the due process, equal protection, or privacy rights of a same-
sex couple that wanted to get married and was not allowed to. R 001827. The U.S.
Supreme Court was petitioned for certiorari, and they dismissed it for want of a
substantial federal question. R 001827-001828. Everybody seems to agree that
that has precedential value on those questions unless doctrinal developments
indicate otherwise.
Setting aside the doctrinal developments question for just a moment, Baker
is controlling on the equal protection, due process, and privacy claims made in this
case under the United States Constitution. Those doctrinal developments that
some of these courts have discussed and that the Plaintiffs in this case have
discussed, those have to come in the first instance from the United States Supreme
Court. Thats what the law discussing the precedential effect of this sort of
decision from the Supreme Court says. So the argument is that well, when you put

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together a bunch of 1970s and 1980s cases and Romer v. Evans and Lawrence, that
somehow we suddenly have a clear indication that the traditional definition of
marriage maybe does violate due process or equal protection or privacy or
something that was decided in Baker. But the Supreme Court hasnt said that,
Your Honor. In none of these cases has there even been a hint about this. R
001828.
In Lawrence v. Texas, the Supreme Court specifically said they were not
addressing any issue related to whether the government must give formal
recognition to any relationship that homosexual persons seek to enter. R 001828-
001829. Thats exactly what this case is about. And Lawrence was exactly not
about that. Lawrence was about privacy, sexual conduct in the private bedroom,
and the government actually attempting to intrude into that privacy, it was
unconstitutional. And same thing in Jegley v. Picado. The Arkansas Supreme
Court actually beat the United States Supreme Court to the punch on that one.
Lawrence doesnt say anything about the definition of marriage, the right to marry,
or whether the government can be compelled to recognize marriages that the
government is choosing not to recognize under the Constitution. Theres nothing
in there, and they explicitly said thats not what this case is about. So Im going to
address Bruning and then move into Windsor because Im going chronologically.

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Bruning is an Eighth Circuit case, not a U.S. Supreme Court case. Arkansas
sits in the Eighth Circuit. The federal court down the street is bound by the Eighth
Circuit. R 001829. And the Eighth Circuit is certainly a more persuasive court to
any Arkansas court than district courts that lie outside of the Eighth Circuit, and I
believe all eighteen of the district courts that have been referenced are outside of
the Eighth Circuit. R 001829-001830. We do not have a federal court in the
Eighth Circuit yet to address this issue since Windsor. And when that happens,
that federal court is going to be bound by Bruning.
In Bruning, the Eighth Circuit held that the very same equal protection
claims being brought in this case, they fail on the merits. The Eighth Circuit
squarely addressed the constitutionality of a substantively identical state marriage
amendment. It may have a little bit different language, but its the same law as
were dealing with here and in all of these other cases. The Eighth Circuit said:
The Plaintiffs equal protection argument fails on the merits. The Eighth Circuit
noted that sexual orientation is not a suspect classification for equal protection
purposes. That means it only gets rational basis review. And they said rational
basis review applies to state laws defining marriage. R 001830. And the Eighth
Circuit emphasized that: Whatever our personal views regarding this political and
sociological debate, we cannot conclude that the states justification lacks a
rational relationship to legitimate state interest. R 001830-001831. The Eighth

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Circuit specifically held that a state law codifying the traditional definition of
marriage satisfies the rational basis test. And the rational basis test applies because
theres no suspect class and no fundamental right at issue. This is all according to
the Eighth Circuit in 2006.
Ive been candid with the Court and conceded that you are not bound by the
Eighth Circuit, but nor are you bound by any of these other district courts from
across the country. I would submit to you, Your Honor, that if youre going to
look to federal decisions that dont bind you at all that you must consider Bruning
because it is an Eighth Circuit Opinion which is a much higher court than all of
these other eighteen district courts put together, and were in the Eighth Circuit. R
001831. The Eighth Circuit is going to have to overrule itself for this law to
change in the Eighth Circuit of this country, or the U.S. Supreme Court is going to
have to definitively rule which they didnt do in Windsor which Ill get to in a
minute. R 001831-001832.
I dont believe Mr. Wagoner discussed Bruning in his presentation. I didnt
see any slides about it. They discussed it a little bit once I pounded away at it for
ten and twenty pages at a time, and there was finally a little of discussion of it. But
all they can do is ask you to just exercise your discretion to not follow it because
youre not technically bound by it. It squarely addressed all the questions
presented in this case and resolves them all in favor of the State. I would just make

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sure youre aware of that. And by the way, I gave you a big long string cite in my
Summary J udgment Response page 6-7, of cases where the Arkansas Supreme
Court has followed the logic of the Eighth Circuit even though its not required to
do that. Its routine. Especially when youre looking at federal questions that
havent been addressed by the Arkansas Supreme Court, but the Eighth Circuit has.
Of course the Arkansas Supreme Court would look at the Eighth Circuit, and thats
what they routinely do. R 001832. I think thats the easy way to resolve this case.
But, lets look at Windsor. R 001832-001833.
The ultimate question here is does Windsor command a result one way or the
other? Eighteen Federal District Courts seem to think it does. Im not hiding from
that fact. I havent read the one from Monday; I read the other seventeen.
Windsor doesnt overrule Bruning. Windsor doesnt overrule Baker. Theres no
mention of either of those cases in Windsor. So theyre not exlicitly overruled.
You would think if doctrinal developments indicate otherwise that Baker is no
longer controlling precedent, that the Supreme Court would have indicated that in
Windsor, but they didnt. That indicates that Windsor did not overrule Baker. If it
did, why wouldnt they just say so?
In Windsor, the Supreme Court concluded that the federal government
lacked a legitimate basis to codify a single definition of marriage, and that was
because states had varying definitions of marriage. Some states allowed same-sex

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marriage, some did not. The federal government passed the Defense of Marriage
Act and said were not going to recognize any of your same-sex marriages. That
was unconstitutional. That violated equal protection, and heres why: Because the
states are sovereign over domestic relations and the definitions of marriage. R
001833-001834. The decision of the State of New York to allow same-sex
marriage is constitutionally protected from intrusion by the federal government just
like the decision of Arkansas to continue to utilize the traditional definition of
marriage is constitutionally protected from federal intrusion. And where you had
states that went different ways on this, the federal government cannot step in there
and take a side in this ongoing debate.
The reason it violated equal protection was there was no rational basis; it
was based only on animus and nothing else because the federal government
doesnt have an interest in domestic relations, period. Those six legitimate
government interests that you saw at the beginning of our hearing today and
youve seen in the briefs the federal government doesnt have those interests, at
least not in the context of domestic relations. Some of them are broader and can be
applied elsewhere, but the federal government has no interest in regulating
marriage. R 001834. The federal government has no business regulating marriage.
R 001834-001835. Its up to the states, and thats what the Windsor Opinion says
if you read it start to finish and dont start half way through where it gets good for

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the Plaintiffs. There is no explanation for why the United States Supreme Court
went on for page after page after page at the outset of Windsor talking about state
sovereignty over domestic relations, other than the fact that that is a distinct issue
from the federal government sticking its nose somewhere it doesnt belong.
All of these district courts like to talk about J ustice Scalias Dissent and you
mentioned that as well, so youve read it. No one is mentioning Chief J ustice
Roberts Dissent. I did in my briefs. Chief J ustice Roberts takes a different view;
hes one of the four dissenters. And he says that the logic of the Windsor
Opinion the whole Opinion including the fact that they explicitly limited it to the
facts and the law at issue in that case that all this logic, when you look at the first
several pages of the Opinion, will result in the opposite conclusion when you
analyze a state law codifying the traditional definition of marriage. R 001835-
001836. Its very clear if you read the Dissents in Windsor that all four of those
dissenters would uphold Amendment 83 or any other state law codifying the
traditional definition of marriage; they all say it pretty explicitly. So if the
Supreme Court ever finally decides this, its either going to be five for Plaintiffs or
five or more the other way because no way those four are changing, you know, at
least, unless they change their opinion. But as they set it out in Windsor a year ago,
they would uphold this.

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Its not so clear with the five member Majority. Why did they put all those
pages in there talking about state sovereignty, state rights, state regulation of
domestic relations, federal deference to state law defining marriage, on and on and
on? And I block quoted to you in the brief, Im not going to read it into the record
again today. But you know what Im talking about. Why is that in there? Its not
necessary to the decision that was reached in Windsor. They were talking about a
federal law codifying what some states still use as the traditional definition of
marriage. R 001836. If were going to read tea leaves and try to predict what the
Supreme Court is going to do on the state marriage law question, it would make
perfect sense that at least one justice of that five member majority wanted that
states rights stuff in there so they could rule the way that Chief J ustice Roberts
describes in his Dissent. R 001836-001837. Yes, states can do this. The federal
government cannot.
I have to mention that Windsor struck down Section 3 of the Defense of
Marriage Act which purported to codify a uniform federal definition of marriage.
Windsor did not strike down Section 2. Section 2 is still in effect today, and
Section 2 explicitly gives states the authority to decline to recognize same-sex
marriages of other jurisdictions. So theres a federal statutory basis authorizing the
so called anti-recognition provisions that Arkansas and still the majority of states, I
believe, have. R 001837.

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If you read it the way I have described, Windsor is entirely consistent with
Bruning, and its consistent with Baker. R 001837-001838. My interpretation of
Windsor explains why they didnt mention Baker, why they didnt say therefore,
we overrule Baker, because it doesnt overrule Baker because under Windsor, you
can reach the same result reached in Baker and Bruning. The doctrinal
development cases, they all come from before Windsor, but they all come from
before Bruning, too. And I think as a matter of law, you assume that a Court like
the Eighth Circuit Court of Appeals is aware of U.S. Supreme Court decisions
when it reaches a ruling. And the Eighth Circuit didnt find any doctrinal
developments standing in its way when it ruled in Bruning and upheld the
Nebraska state marriage law, that was just like the Arkansas state marriage law.
Despite the fact that the cases from the seventies and eighties and Romer v. Evans
and Lawrence v. Texas were all before Bruning. No doctrinal development
standing in the way of applying rational basis and finding as a matter of law that
there was a rational basis. R 001838.
The United States Supreme Court has spoken one time since Windsor, Your
Honor, and that was when the U. S. Supreme Court on J anuary fourth of this year
issued a stay of one of these eighteen district court rulings, Kitchen v. Herbert, the
one that was just argued last week or maybe its the one being argued today, and
Oklahoma was last week.

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The Court: I think they were threatening to impeach the J udge there.
Mr. Jorgensen: Right, theres a lot of feisty activity in the Utah and
Oklahoma case, which makes me even more grateful for the way that this one has
unfolded. The U.S. Supreme Court stayed the Utah District Courts Opinion. I
believe all of these district court Opinions are currently stayed. The U.S. Supreme
Court only grants a stay when theres a fair prospect that the majority of the Court
will vote to reverse the judgment below. R 001839. Its not a guarantee, but the
Supreme Court in the United States believes theres a fair prospect that theyre
going to reverse these district courts, and they said so by granting a stay of the
Utah District Court Opinion. R 001839-001840. It was stayed, and I think since
then, most of the district courts if not all of them have just automatically stayed
their rulings because everybody knows what the U.S. Supreme Court did in
J anuary. Thats the only indication from the Supreme Court since Windsor of how
Windsor applies to a state law codifying marriage. And I think a stay of a district
court Opinion analyzing Windsor the way the Plaintiffs want to analyze it is a good
argument for the interpretation of Windsor that Im advocating. R 001840.
Its cleverly crafted, Your Honor, so that the U.S. Supreme Court can
probably do whatever it wants at the end of the day, and maybe that was
intentional, I dont know, both arguments are reasonable, but I think we need to not
overlook the first half of Windsor. R 001840-001841. And I have an explanation

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for it. I have not seen an explanation for it from the Plaintiffs in this case or from
any of the district court Opinions, they all just ignore it. Maybe thats how it will
all fall down at the end, I dont know, but Im reading the whole Opinion trying to
figure out what it means and applying it to this state law. And I think the
federalism discussion is pretty significant because were talking about a state
constitutional amendment.
J ust like they dont want to talk about Bruning, I dont want to talk about the
eighteen district court Opinions, so Im not going to. But you read them. Ive read
them. Some of them are very well written. That doesnt mean theyre right.
I will try to quickly address each of the individual claims just to make the
record, but its in the briefs. The gender discrimination claim fails because
Amendment 83 and the statutes treat everybody the same without regard to gender.
Nobody can marry a person of the same-sex, it doesnt matter what your gender is.
R 001841. So they explicitly treat people the same regarding gender. R 001841-
001842. With a handful of exceptions out of these eighteen recent district court
Opinions, all of the other gender discrimination cases deal with laws that explicitly
treat men and women differently. This law doesnt do that. So theres no gender
discrimination in this case.
There is sexual orientation discrimination. I concede that, I mean we have to
because its in there. Homosexual citizens of Arkansas cannot get married.

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Heterosexual citizens can. Thats the law. But sexual orientation is not a suspect
class, so while there is this classification drawn, we analyze it under the rational
basis test, and I just go back to Bruning on that. Also, the Arkansas Supreme
Court has specifically held that, homosexual citizens do not constitute a protected
class. Thats from Jegley v. Picado, 349 Ark. 634. I know I told you to ignore
these Arkansas cases. Its not clear to me whether they were talking about under
the Arkansas Constitution or the federal Constitution when they said that. If
theyre talking about under Arkansas law, disregard it. R 001842. If youre
talking about federal law, and I think thats probably what theyre talking about,
then the Arkansas Supreme Court and the Eighth Circuit Court of Appeals has
specifically determined as of today that homosexual citizens are not a suspect class.
R 001842-001843. So rational basis applies to that claim. It is a claim, but it gets
rational basis review.
On the due process argument, I go back to Baker and Bruning. Baker
specifically addresses due process. In Baker, which I submit it is still good law
until the Supreme Court says otherwise, the Minnesota Supreme Court necessarily
decided the due process claim. It rejected the Petitioners claim that by denial of
their applications for marriage licenses, they were deprived of liberty without due
process and denied equal protection. And the Minnesota State Supreme Court said
the Due Process Clause of the Fourteenth Amendment is not a charter for

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restructuring marriage by judicial legislation. In other words, they didnt find the
due process concern, and its in kind of harsh 1970s language. The Supreme
Court summarily dismissed that appeal meaning as a matter of law, precedential
value, the Supreme Court affirmed the Minnesota State Supreme Court on those
claims. R 001843. Thats the closest the U.S. Supreme has come to addressing a
due process claim leveled against a state law codifying marriage as only between a
man and woman. R 001843-001844.
Windsor was about a federal law. Theres a whole lot of cases that Ive cited
in the briefs that have explicitly stated that theres no fundamental right to same-
sex marriage. I feel kind of like a jerk continuing to characterize it that way, but
its because of these cases that Ive cited to you, Loving and Zablocki and Griswold,
the Court doesnt necessarily say were talking about the right to certain kind of
marriage. But in cases in the past where the Courts have dealt with the issue of
same-sex marriage, they have most definitely characterized it in that way, and Im
just using language from the Courts there, you can see my Briefs to back that up.
Those are all pre-Windsor cases, for what its worth. But, Windsor did not hold
that theres any fundamental due process right to same-sex marriage. I dont see
anywhere in Windsor where the federal Defense of Marriage Act law was struck
down for violating a fundamental right to marry. R 001844. I think they carefully
avoided that for the same reason they included the big long discussion of state

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sovereignty. R 001844-001845. It reads like an equal protection decision to me,
Your Honor, and rational basis because they may not have explicitly said were
applying the rational basis test, but when they say the only possible basis for this
law could be animus because the federal government doesnt have any interest at
all anyway, that means its just like the district courts who have said were not
even going to determine what standard applies because it doesnt meet rational
basis. Thats essentially what the U.S. Supreme Court did in Windsor, and
rightfully so because the federal government has no interest in regulating marriage.
Especially not when it offends some state regulation of marriage. This is kind of
the reverse supremacy clause in this area of law, state law is supreme over federal
law. State law cant be supreme over the United States Constitution. Im not
arguing that.
The Eighth Circuit expressly rejected any fundamental due process claim in
Bruning in 2006. R 001845.
There are some subclaims under due process about family autonomy and
freedom of association and privacy, and its difficult to argue about these because
as a threshold matter, this marriage amendment doesnt really implicate these
rights at all. R 001845-001846. So its like proving a negative. Marriage does not
determine or control parental rights at all whether youre a same-sex couple or
opposite-sex couple, married or unmarried. Thats not the law.

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Amendment 83 and the statutes that are also being challenged do not burden
the Plaintiffs or anyones constitutionally protected interest in privacy or
association because they dont invade anyones privacy or prevent them from
associating with anyone whatsoever. And these marriage laws dont invade
anybodys bedroom. They dont make DHS go check you out to see if youre
sleeping with somebody. They dont command any government interaction at all
with the people who are challenging these laws. They just say the government is
not going to publicly, formally recognize your relationship. Its kind of the
opposite. The government is not going to affirmatively recognize your relationship.
R 001846-001847. But that doesnt prevent you from exercising your rights to
privacy or your rights to association.
The Plaintiffs rely on Griswold v. Connecticut for privacy. Griswold was
about a law that regulated contraceptive use by married couples, so it necessarily
invaded bedrooms. It prevented married individuals from using contraception, and,
therefore, it was unconstitutional and it violated their privacy rights. There is
privacy in the context of an existing marriage. Theres a right to privacy in
marriage, and Griswold and lots of other cases discuss that in various contexts.
But the right to marry is not a private right. Its not a right of privacy. Its a very
public right. Its the right to have the government formally acknowledge your
relationship, publicly. You get a marriage certificate. Thats a public record. You

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do it with J P or somebody who is qualified by the government to publicly make it
real, you know, its not an exercise of the right to privacy. R 001847. Once youre
married, you have privacy rights within your marriage. R 001847-001848. I
explain that better in the Brief than I did just now, Im sure of it.
So all the cases about keeping the government out of your private life, they
dont apply here. The government is not trying to get in anybodys life. The
government is saying were not going to formally acknowledge your relationships
and give you a marriage certificate. The clerk said sorry, cant do that. That was
the end of the interaction with the government. Theres no government invasion of
the bedroom; theres no government invasion of anything private. I would take
you back to Lawrence. This is not about the government formally recognizing
their relationships. That is a privacy case. That is a case where the government
was invading bedrooms and meddling with peoples private affairs. This is about
the government formally recognizing, publicly, your relationship. So its not a
privacy case.
The claims of the children and the partners of the biological parents of those
children. This is complicated and confusing, but Ive delineated it in the briefing.
R 001848. The bottom line is that marital relationships do not control parental
rights. R 001848-001849. Think about it, Your Honor, outside of the context of
this case, a heterosexual couple gets married. The mother brings in the biological

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children of her own to the marriage. But theyre not the biological children of the
man she just married. That man has no parental rights over those children before
they got married or after. Further steps have to be taken. It can happen, there can
be an adoption, but there are no naturally automatically flowing parental rights
associated with the marriage. And this case is about whether the Plaintiffs will be
allowed to be married or not. So there is a disconnect between that, and the child
Plaintiffs, and who has what sorts of parental rights in that regard. There may be
statutory fixes to that, and they could be done whether or not Amendment 83 is
overturned. Its just a different issue. Its not really implicated by this case. R
001849.
The children and the non-biological parents cant be granted the relief
theyre requesting because marriage doesnt determine who appears on birth
certificates, either. R 001849-001850. There are some presumptions if youre
married about, the husband is the father, but its rebuttable. If some other guy
shows up and says thats my kid and the paternity test establishes that, that guy
goes on the birth certificate even though hes not married to the mother. All of this
stuff flows from biological relationships, and marriage doesnt connect to that, and
doesnt affect it.
Bethany v. Jones is the case the Plaintiffs cite under this claim. I would
encourage you to read that case, Your Honor. I think it clarifies exactly what Im

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trying to articulate to you here. In Bethany, the Arkansas Supreme Court affirmed
a trial courts findings that a biological mothers former same-sex partner stood in
loco parentis to the child that they raised together for a while so she got visitation
rights, a non-biological parent. First of all, that happened even though they
werent allowed to get married. R 001850. And whether they were married or not
doesnt change it assuming that this is a non-biological child of the partner. R
001850-001851. Second, the Court determined whether there were any parental
rights and rights from the child back to the non-biological parent based upon the
relationship between the child and the adult. The relationship between that adult
and the childs biological mother doesnt matter, and the Supreme Court made that
very clear. What matters is did you act as if you were a parent, does the child view
you as a parent. Did you raise the child? And yes, yes, yes. And, so, okay, you
can have visitation, it doesnt matter that you werent married. It doesnt matter
that youre not the biological parent.
Thats how it works under current law. And in a way some of this relief
thats requested in this area is sort of already available, its murky, its complicated,
and its going to be the same even if you reverse Amendment 83. Its not going to
change anything about the children. R 001851. Maybe the legislature will work
on it, I dont know. R 001851-001852.

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Do I even need to discuss the right to interstate travel claim, Your Honor?
Califano v. Torres, 435 U.S. 1 (1978). Theres no claim there under that U.S.
Supreme Court case. Not addressed by the Plaintiffs even in their briefing or here
today, so, Im just going to move on.
Ms. Navarro wants a divorce from this Court of her New York same-sex
marriage. Theres no fundamental right to divorce. Arkansas is not required to
grant a divorce of a marriage that Arkansas doesnt recognize. And Amendment
83 is not implicated by Ms. Navarros claim. Amendment 83 doesnt prohibit
same-sex divorce in Arkansas. Arkansas Code Sec. 9-11-208(a)(2) does explicitly
say that you cannot grant a divorce to a same-sex couple married in another state.
R 001852. However, there are avenues of effectively dissolving a marriage
without calling it a divorce, that would avoid any constitutional issue and its a
well settled principle that if you can fashion relief without reaching constitutional
issues, thats what your duty is to do as a Court. If we really care about her
getting her divorce, we can make it happen. R 001852-001853. They can
articulate a claim that doesnt implicate a constitutional issue. They havent done
that yet. But, maybe you dismiss everything else and dismiss that one without
prejudice and invite them to articulate a way, and Ive offered them up in the
briefing. They can just go plagiarize from me. Here are the ways that you can
argue that you can get this dissolved without reaching a constitutional question.

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Im not going to go into a lot of detail on the rational basis test itself.
Bruning is controlling on that in my view at least if this were a federal court, or
you could ignore Bruning, but I would hope you would also ignore the district
courts if youre going to do that. All Im asking is that you need to take them all
into account or none of them. It wouldnt seem fair for you to do one and not the
other.
The Court: So this is a brand new case, and I get to decide what I want. R
001853.
Mr. Jorgensen: Clean slate, Your Honor, for Arkansas, until we get to the
Supreme Court of Arkansas.
The Court: Its happened before.
Mr. Jorgensen: It has.
Under the rational basis test, the Plaintiffs bear the burden. Theyve really
tried to put the burden on the State in this case, and thats just not the way the
rational basis test works. The burden is on the Plaintiffs to prove that Amendment
83 and the underlying marriage laws are not rationally related to any legitimate
government objective under any reasonably conceivable fact situation. At the
beginning, all I have to do is say yes it is. Then they have to come up with some
proof. I did more than that. You saw the first slide. I offered about six rational
bases. Theres more, but it wasnt necessary to go any further, and it still isnt

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because theres been no proof, theres been no evidence, theres been nothing but
argument, and pointing to judicial decisions. Well Ive done that too, Your Honor.
R 001854. Ive pointed to judicial decisions that have found rational basis for
these laws including Bruning in the Eighth Circuit. R 001854-001855. Ive
pointed to the U.S. Supreme Court cases that those are legitimate government
interests. I dont think theres any dispute that they are legitimate government
interests. They are rationally furthered by Amendment 83 and the marriage laws,
and its their burden to prove that those are not rationally furthered by these laws.
There hasnt been any proof. So, Im not going to offer any proof because theres
nothing to disprove.
All in the context of this sort of law where the voters enacted it, I think the
test is could a reasonable voter believe that any of those six legitimate government
interests or any others are furthered by this law. I think the answer to that is yes, I
certainly have met people who believe that, numerous people who believe that. R.
001855. If thats the test, the law stands under the rational basis test, without
evidence for either side. R 001855-001856. The Eighth Circuit in Bruning
specifically held that a state law codifying the traditional definition of marriage
meets the rational basis test.
I just kind of baldly said they havent offered any evidence, and they have
cited to some news media accounts, some legislative history, statements of outside

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interest groups like the Family Council. None of that stuff should be considered by
the Court in this case. Thats not scientific evidence or expert opinion. Thats
news articles and editorials written to the paper. That sort of stuff, you do not
consider unless theres some ambiguity in the law. This is in my reply. Ive
explained how you only look to that sort of stuff if the language of the law itself is
ambiguous. I think we all agree that the language is unambiguous in this case. R
001856. They seem to be firmly convinced that theyre not allowed to get married
under Arkansas law, and I agree, theres no dispute about that. R 001856-001857.
So all of that stuff should just be disregarded, and Ive explained why. Take that
out and theres nothing there except for references to the District Court decisions.
I just skipped another twenty minutes.
The Court: Well good. Theyre in there waiting on you.
Mr. Jorgensen: If you dont have any questions for me, I will sit down.
The Court: Thank you very much.
Mr. Jorgensen: Thank you.
Mr. Owens: Good afternoon, Your Honor. I know I havent spoken much.
Im J ason Owens, and I represent four of the county clerks that were sued in this
matter. My clients have essentially adopted the position of the State as they sit in
their official capacity and have a duty to defend the law in the same manner as the
State. R 001857.

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What Id like to speak to briefly though is something that will be of interest
to, to my clients as ministerial agents of government. They are tasked with issuing
and denying marriage licenses and the like, and so that brings up the question of
relief. We have on behalf of these separate county Defendants adopted the
position of the State, incorporated that in our briefs. With respect to relief, and this
is obviously argued in the alternative in the event that the Court grants relief to the
Plaintiffs, the separate county clerk Defendants would ask for a couple of things.
One would be consistency and the other is clarity. R 001858. Your Honor, the
ministerial agents always desire as much clarity as possible. R 001858-001859.
Weve got to know, in the event the Court rules in favor of the Plaintiffs, who to
issue licenses to and not.
The prayer for relief and the relief really hasnt been talked about in these
arguments. As such, it has kind of been assumed or presumed, and I know what
happens when we do that, and so I wanted to speak specifically to that. In
paragraph one in the prayer for relief on page thirty-two of the Plaintiffs Third
Amended Complaint, the Plaintiffs ask that the Court enter a Declaratory J udgment
that Amendment 83 and all other Arkansas statutes that prevent same-sex couples
from marrying or from having lawful marriages entered into in other states
recognized in Arkansas, violate Article 2, Section 29 of the Arkansas Constitution
and thus Amendment 83 and the referenced statutes are void. In other words,

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theyre asking the Court to void not only Amendment 83 which might not create
any particular lack of clarity, but also the marriage laws of the State of Arkansas,
Arkansas Code Annotated 9-11-208, 9-11-107, and 9-11-109. R 001859. Those
are essentially the definitional statutes of the Arkansas Marriage Statutes. R
001859-001860.
The problem with avoiding those definitions is that youre left with no
definition. I think everyone agrees that marriage must be restricted on some level.
In the history of the State of Arkansas that I know of the, no one has challenged the
consanguinity restrictions on marriage. Everyone agrees that those restrictions
should exist. To what extent, is up for debate, but certainly consanguinity, age,
mental competence need to be restrictions. There must be requirements in the law.
Voiding the marital definition statute would also create uncertainty for those
married under that statute. If it were declared unconstitutional and voided, it
would raise the question of legitimacy of tens and probably hundreds of thousands
of Arkansas marriages.
The Court: It would put some divorce lawyers out of work.
Mr. Owens: It might, or give them a whole lot more to do. R 001860.
And paragraph two and three follow in that line and ask that the same statutes be
declared unconstitutional again creating the same problems. R 001860-001861.

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I think we understand what the Plaintiffs are trying to get to here, but I say
this more kind of as a caution, the Plaintiffs even go on to cite the statutes that
purportedly provide benefits to married couples including workers compensation
benefits, public employee benefits, husband and wife testimonial privileges,
consent to medical treatment by spouses; certainly voiding or declaring
unconstitutional any definition would create major problems that will ripple
throughout the law. And so we would just ask that in the event, and again this is
all in the alternative, that any order proceeding from the Court and in the Plaintiffs
favor, that a stay would be issued in conjunction. But also clear in the sense that
not only would the clerks know what to do, but also so that there wouldnt be
questions, unnecessary questions created about the legitimacy of existing
marriages or proposed marriages if you strike the definition of one man and one
woman, could polygamist apply for a marriage license? R 001861. I just dont
want to get into those problems, and so I wanted to speak to those points, and I
think sometimes we can talk in broad terms especially about important issues like
this, but the end result is a distinct outcome, and we would just ask that in the
alternative, that if that issues, that it be clear and consistent. R 001861-001862.
Thank you, Your Honor.
The Court: Thank you very much.

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Mr. Fuquah: Good afternoon, Your Honor, if it please the Court. Im
David Fuqua, and I represent Larry Crane who is the Pulaski County Clerk and
Doug Curtis who is the Saline County Clerk. I adopt Mr. Owens argument on
behalf of his clients. I could perhaps say this to follow up on his statement that I
dont think the Court needs to look through the statute and rule books and declare
on every thing that might impact marriage. I dont think you have to say that the
marriage privilege applies to same-sex couples, for example. Some other J udge
can do that. R 001862.
What I want to say is this that my clients have to follow the law whatever
you decide, and Im not here to advocate a particular result. As public officials
with ministerial duties, I think they do have an interest in the framework of the
Courts decision. R 001862-001863. And what I would like to say is that I view it
better to decide this case under state law because in that way it will work itself out
within our political body, our political system, and our culture, social, and political.
You will not be imposing the views of the federal Constitution on the people of
Arkansas if you do it that way.
Having said that, I have to address the argument that Mr. J orgensen makes.
He mentioned that argument to me a long time ago, and I was taken with it, and its
troubled me, but it did occur to me today that I do disagree with him. And, hell
have an opportunity to prove me wrong in a minute, and he probably can, but it

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does occur to me that theres got to be a fundamental limitation on amending the
Constitution to take away individual rights that the Constitution bestows upon its
citizens. R 001863. The Constitution of Arkansas does not have to include any
civil rights as far as Im concerned. It could simply be silent or it could say what
the federal Constitution says is good enough for us. But once having declared
those rights, I dont think it can take them away by narrowing the field and saying
all right, due process applies to everybody, but not to these people. R 001863-
001864. I just dont think thats right. I view the moral duty of government to be
only doing good. And you immediately ask me well what does doing good mean?
I dont know except in any particular circumstance.
The real question is how do we decide what is good? Well, our parties here
have clearly defined their differences. The Defendants say that we decide whats
good by a majority vote. The Plaintiffs say that we cannot decide whats good by
majority vote if it penalizes, stigmatizes, or in some way singles out a smaller
group for different treatment. I dont know the correct answer to that, but I think
that highlights my point that you surely cannot amend the constitution thats
intended to provide rights for everybody by taking rights away from some people.
Im not saying thats the decision you should make at all. Im not advocating that.
R 001864. What Im saying is I think if you want to decide your case on state law
grounds, it can be done in spite of

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The Court: In spite of what Colin says? R 001864-001865.
Mr. Fuqua: In spite of what Mr. J orgensen said. Thats actually very
logical. And Im not saying it isnt logical. And there may be cases where weve
amended our constitution to do exactly what I say shouldnt be done. That would
surprise me, but its possible. And so all Im asking the Court to do is to base its
decision on state law. If you decide in favor of the Plaintiffs on state law, you
dont have to rule on federal law. If youre going to decide against the Plaintiffs,
then youre going to have to rule on both state and federal law. And thats all I
want to say is stick to the state laws, that we can work this out in our own, in our
own politics, in our own way. R 001865.
Mr. Wagoner: All right, Your Honor. This is it.
The last issue is of a concern. The clerks figure if its decided solely on state
law grounds, there cant be a 1983 request for attorneys fees made after a ruling in
favor of the Plaintiffs in this case. I mean thats fine. Ive donated a hundred
thousand dollars ($100,000.00) worth of my time because Im a crusader in this
case. But dont send it up to the Supreme Court with a belt on. Send your ruling
up with a belt and suspenders on. Rule in favor of us on both federal and the state
Constitution so we dont have a piecemeal case and another case come later on
whether it violates the other. And everything else should be covered well in our
briefs including what the Bruning court said, on page 22 of our Brief. R 001867.

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To our knowledge, no J ustice of the Supreme Court has suggested that a
state statute or constitutional provision codifying the traditional definition of
marriage violates the Equal Protection Clause or any other provision of the United
States Constitution. R 001867-001868. Mr. J orgensen is living in a pre-Windsor
world. There has been more than a suggestion in the Windsor case, and Bruning
was before Windsor. Same argument goes for Baker.
Ms. Maples: Thank you, Your Honor. Im Cheryl Maples for the Plaintiffs.
I want the Court and everybody to understand my presentation is a continuation of
J acks this morning. We made a break so that Colin could get his in. Mine is not
absolutely in response to Colin. It is a continuation.
Marriage is a coming together for better or worse, hopefully, enduring, and
intimate to the degree of being sacred. It is an association that promotes a way of
life, not causes, a harmony in living, not political faith, a bilateral loyalty, not
commercial or social projects. Yet it is an association for as noble a purpose as
any involved in our prior decisions. U. S. Supreme Court, Zablock v. Redhail,
quoting Griswold v. Connecticut. R 001868.
Arkansas is free to determine the limits and restrictions on marriages. R
001868-001869. But they must do so within constitutional grounds. There must
be legitimate state purposes behind what they do if it limits the rights of other
people or, any of the citizens of Arkansas. For all people, heterosexual or

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homosexual, the desire to marry the person of their choice is the same. They want
to make a public commitment, they want to form an exclusive relationship, they
want to create a family whether its with children or just with their spouse, with a
person to whom they share an intimate and lasting emotional bond. The marriage
laws in Arkansas including the amendment violate the due process and equal
protection rights under Arkansas and U.S. constitutional provisions.
The right to marry has been found to be a fundamental right under the U.S.
Constitution. Clearly that would extend to the Arkansas Constitution. The
fundamental rights of privacy, autonomy, and freedom of association arent just
speaking about what happens behind bedroom doors. Thats speaking about the
personal choices you make, the private choices you make, and your right to make
those choices. R 001869. And whether or not youre having sexual relations
behind bedroom doors is only an element of your rights. R 001869-001870.
Everything else is being denied to the Plaintiffs in this case because they are
prevented from making life choices that will last them, hopefully, until the day
they die or until the day that their spouse dies. The Plaintiffs only want to exercise
the exact same privileges that everybody else in Arkansas has. Throughout this
case, the primary position of the State has been that Amendment 83 cannot be
unconstitutional because it amended the Constitution. And, that argument has been

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made again, and thank you for your agreeing with our position. The position that
we take is it can be unconstitutional even though it amended.
Prior to the election, the Supreme Court had to examine whether or not the
title to the Amendment was appropriate. And they did so in May v. Daniels. In
that, they made it real clear that they were not making a decision on the
appropriateness of this proposed Amendment 83 or on the constitutionality of it. R
001870. They were narrowly focused on whether or not the title was appropriate
to go to the voters. R 001870-001871. J ustice Brown foresaw the action that
were before this Court today in, in that decision. He stated that if passed,
Amendment 83 would be challenged, and he says, and I quote, there may even be
a challenge to the measures constitutionality. If you cant challenge Amendment
83 because it changed the Constitution, then why did J ustice Brown foresee a
challenge as we are here today to do? There is in fact a right that we have to bring
up that these are unconstitutional provisions.
The Amendment 83 impacts Section 2 of the Arkansas Constitution. Section
2, Article 2, is rights that cannot be changed, not by a vote of the people. These
are rights that we as American citizens are given by the U.S. Constitution and by
the Arkansas Constitution. The voters were never told that if they voted for
preserving marriage that they would be changing the fundamental inalienable
rights that are provided in Article 2 of the Arkansas Constitution. They were never

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told that the purpose of Amendment 83 was to impose inequality. They were led
to believe that they were preserving marriage. R 001871.
The only basis for the establishment of Amendment 83 and the laws that
were set into place in 1997 is pure animus. There is no rational basis, there is no
compelling reason why these laws exist, why they should continue to exist.
The Windsor Court did change the environment. Windsor was over a federal
statute, but the Courts reasoning made it very clear as Scalia said when theyre
asked to make this decision, where theyre going to make it. It is very clear, they
stated that laws cannot stand where theyre intended to harm a politically
unpopular group. And thats at 2693 in Windsor. Same-sex individuals, same-sex
couples, homosexual individuals are a politically unpopular group to the majority,
obviously, of Arkansans. Yet they are good citizens, good people, productive
citizens. They want to have a family, they want to have children, they want all the
things that other Arkansans want, but this law was set just to harm them, just to
prevent them from doing what they want to do. R 001872.
We have the burden, apparently, of thinking of all possible scenarios that a
voter might come up with that might justify this law. R 001872-001873. And that
if there is such a basis, then this law should stand. In this case, there is, like I said,
no justifiable reason that this law should be in place other than animus. And,
animus is not appropriate in establishing a law that denies people their fundamental

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rights. The basic basis that I have seen throughout the pleadings filed by the
Defendants have been that this is to protect traditional marriage, to protect the
bearing and rearing of children, and I have also seen to prohibit sodomy which
now is no longer available because thats been set aside.
The Court: I didnt see that in Colins
Ms. Maples: No, sodomy is available. Whats not available is that its no
longer a crime in this State. They also wanted to prevent deviant sexual acts.
These were brought up in 1997 when the statutes were being discussed by the
legislature. Also, to enable couples to take care of one another. Well, same-sex
people want to do that too. R 001873.
On the issue of protecting traditional marriages. Arkansas law states that
marriage is considered a law. In law, a civil contract to which the consent of
parties capable in law of contracting is necessary. Therefore, all thats required is
that you be of sound mind and that you have the capacity to consent, and you have
the capacity to contract. And if youre going to commit some kind of crime like
incest, you cant enter into the contract. But, other than that, that is all thats
required under 9-11-101. And that is the definition of marriage in Arkansas.
J ustice Scalia stated in his Dissent in Lawrence that preserving the institution of
marriage is just a kinder way of describing the States moral disapproval of same-
sex couples.

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The Supreme Court in Windsor found that there was no legitimate purpose
in the disadvantaging of homosexual persons. Theres no legitimate purpose that
could overcome the purpose and affect to disparage and injure same-sex couples.
R 001874. Again, the Windsor Court has changed the Bruning and Baker
landscape. R 001874-001875. Things have changed, and the other Courts that are
joining along have agreed with that.
In 1896, the U.S. Supreme Court in Plessy v. Ferguson stated that the
Constitution neither knows nor tolerates any classes among citizens. That has been
the law of this land since that decision was rendered. Its the basis of our equal
protection rights. The Court in Windsor found that a denial of protection and
benefits of marriage to same-sex couples solely on the basis of the fact that they
are same-sex couples is a clear violation of the Equal Protection Clause. The State
of Arkansas has attempted to formulate a separate class, a separate category, and
that would be the homosexual community in Arkansas. Also, the Windsor Court
found that the deprivation of liberties of the people, the homosexual individuals, is
protected by the Due Process Clause and this was a violation. R 001875.
Arkansas has historically recognized all marriages whether it be between a
prisoner that is spending life in prison, whether it be someone that is sterile, aged,
has no interest in having children, or a thirteen year old child and a seventeen year
old boy even though thats illegal in the State of Arkansas if that marriage has been

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performed in another state, Arkansas has found that they will recognize that
marriage. R 001875-001876. Additionally, in Etheridge v. Shaddock, the
Arkansas Supreme Court held that a marriage of first cousins could be recognized
in this state even though it is considered incest in the State of Arkansas.
Why the court would allow same-sex couples to not have their marriages
recognized when couples committing incest or common law marriage or between
children where thats illegal in the State are being recognized in the State, it makes
no sense that our same-sex couples should not also have their marriages recognized.
Why the laws have been set up through Amendment 83 to specifically deny any
recognition of any sort of union of same-sex individuals, specifically marriage, is
pure animus. There is no rational or any other basis for it.
The basis for Arkansas recognition of the validity of a marriage is, as J ack
mentioned, a place of celebration. R 001876. The place of celebration rule is
recognized in all fifty states and is a defining element of the federal system and of
American domestic law. R 001876-001877. Without recognizing the marriages
from other states, there can be no stability in existing marriages. The Arkansas
Supreme Court in discussing the place of celebration rule stated in Osburn v.
Graves that to hold otherwise would be to render void numberless marriages and to
make illegitimate thousands of children the country over. That is if the Arkansas
Supreme Court ruled that we should not go by the place of celebration rule. The

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only deviation from this longstanding rule is the one relating to marriages that are
coming in from other states that were solemnized and were legal in the other states,
but are not recognized in the State of Arkansas. R 001877.
In the bearing and rearing of children argument that has been phrased in
different manners, in Troxel v. Granville, the U.S. Supreme Court stated that
choices about marriage, family life, and the upbringing of children are among
associational rights. This right is ranked as one of the basic importance in our
society, right sheltered by the Fourteenth Amendment against the states
unwarranted usurpation, disregard or disrespect. There can be no compelling or
rational basis for government in interference with these rights. The associational
rights cover a great deal more than just what Mr. J orgensen was referring to. It
goes into all of the elements of the claims that our Plaintiffs have made in this case.
There has never been a requirement to procreate in Arkansas.
As the Court is aware, theres been recent cases that have examined an
individuals right to parent and care for children, and this Court was involved in
the most recent of those cases. R 001878. The Court is well aware of the
arguments that I was getting ready to make, and Im trying to wrap this up. R
001878- R. 001879. When we were in Court the last time, we were attempting to
get a temporary injunction because there was a baby to be born to two of our
Plaintiffs, one of our couples. That couple cannot be here today because that child

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was born with severe birth defects, and I believe it was three days ago. The non-
biological mother was denied the right to get that child any kind of medical care
through a particular doctor. Now, this is going to be a continuing problem, Im
sure they are going to have to do some work with the statutes, but this Court can
order that new births or even births that have occurred since marriages have been
established, both parents can be on the birth certificate. Other than what Mr.
J orgensen says. I disagree with what he says.
J ack Wagoners wife is not the biological mother of their twins. Yet, I
guarantee, shes on the birth certificate, isnt she? If you are heterosexual and you
are married, there is a legal presumption that you are the biological parent, you will
go on that birth certificate, you dont have to prove anything. R 001879. If you
are homosexual, you have to prove it, and because you are both of the same sex,
its not possible that both of you can be biologically the parents of that child. R
001879-001880.
We have today Greg Bruce and Don Smith. When we first filed this action,
Greg and Don were wanting to get married. Theyve been together for twelve
years. They are productive, owners of their own business, their own home in west
Little Rock. They are good citizens, they dont cause any problems for anyone.
They just want to have a life together. Finally, in 2013, they did get married, and
they did so for the purpose of solemnizing their relationship and planning for their

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future family. They have now selected a surrogate, and have begun the procedures
of having a child. When that child is born, both of the childs parents, Don and
Greg, should be on the birth certificate so that both parents will be able to secure
the necessary care and love and put out to the world that this child does have two
parents, doesnt matter what sex they are, theyve got two parents. R 001880.
J ulie and Kendall Wright are here today. Kendall has two children from a
prior marriage that ended in divorce. R 001880-001881. Through a sperm donor,
J ulie and Kendall have had two children since they married in Iowa. J ulie is not
permitted to be on the birth certificate. J ulie cannot get necessary care for her
child even though she went through all the procedures, all the pregnancies, did
everything she could except actually give birth. And she is every bit as much a
mother as Kendall is who actually gave birth. J ulie and Kendall are both
responsible citizens, theres no reason why they should be treated other than
anyone else. R 001881.
On pages 30-31 of the Brief in support of the State Defendants Motion for
Summary J udgment, the Defendant states, and I quote: Arkansas law permits
only the names of biological parents of a child to be listed on the childs birth
certificate. This is true whether the parents are in a same-sex relationship, an
opposite-sex relationship, whether they are married or unmarried, whether the
child is a biological child of one parent or is an adopted child. Amendment 83 and

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Arkansas marriage laws challenged in this lawsuit have no bearing at all on which
persons name may or may not appear on a birth certificate. That is not a true
statement. If you adopt a child, the birth certificate is changed, and the adoptive
parents are put on there. If as in J ack, his wife is not the biological parent, but
theyre heterosexual, so, shes going to be on that birth certificate. What Mr.
J orgensen said in his Brief is not a correct statement of Arkansas law.
Im going to skip sodomy. In Arkansas, the Jegley case got rid of our
sodomy laws. R. 001882. In the Jegley case, there was some interesting language
that I did want to bring to the Courts attention, Im sure the Court knows it though.
R. 001882- R. 001883. The Jegley court relied upon Article 2 and went into a
great deal of discussion on the inalienable rights of Article 2, and the increased
protections that the Arkansas Constitution gives to the citizens of the State of
Arkansas. And they go on to state that on the issue of due process, that sexual
orientation is a protected fundamental right to privacy under the Due Process
Clause. And in the Jegley court, they stated that any law infringing upon any
fundamental right must pass strict scrutiny, and demonstrate a compelling state
interest. Under the Equal Protection section, the Jegley court stated that a statute
limiting the rights of homosexual individuals is based upon gender, and involves a
violation of equal protection requiring an intermediate level of scrutiny.
Homosexuals are a separate and identifiable class for purposes of equal protection

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analysis. R. 001883. That is also in Jegley. And in Jegley, The guarantee of
equal protection serves to protect minorities from discriminatory treatment at the
hands of the majority. R 001883-001884. Its purpose is not to protect traditional
values and practices, but to call into question such values and practices when they
operate to burden the disadvantaged minorities. That is extremely relevant to our
case today.
Im going to skip over all the benefits that theyre missing. Im sure the
Court is aware of them.
The Court: Ive read everything yall have written.
Ms. Maples: Well, theres more.
The Court: Plus what other courts have written.
Ms. Maples: I came up with more. But I will skip that.
The Court in Windsor did indicate that a heightened scrutiny was appropriate
in that case because it related to the sexual choices of same-sex couples, and which
is the same thing that weve got in this matter. R 001884. Theres a four step
process that you go through that that the Court went through in determining what
level of scrutiny is appropriate. R 001884-001885. Its whether or not a classified
group has ever suffered a history of discrimination. Clearly, homosexual
individuals have suffered a very severe history of discrimination so they meet
number one.

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Number two is whether that classification has any bearing on a persons
ability to perform or contribute to society. My clients are all responsible citizens
of the State of Arkansas. They all are taxpaying parents or if not parents, at least
like this gentleman retired after twenty-one years in the Navy. And his spouse now,
he was not married when we first started the case. They wish to take care of
themselves through the rest of their lives, and they have performed greatly for
society, and there is no burden by being a gay individual to your ability to perform
and contribute to society.
Number three is an integral part of ones identity. R 001885. I guarantee,
every single gay individual in this country, in this courtroom, in this state will tell
the Court that this was not choice, this was something that is me and it is an
integral part of their identity. R 001885-001886.
The fourth test is whether this group lacks political power to protect itself
through the democratic process. Obviously, although the opinions of Arkansas and
the United States are changing, the gay community does not have the power that
the Family Counsel, the J erry Coxes, all these people have to sway the vote of the
Arkansas people.
We also have in the courtroom today another couple that are a real good
example of every one of these four requirements. J onathan Keith Gober and Mark
Norwine. Im not going to go through their history. I just am going to state that

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theres been horrible discrimination including when he came out of the closet, his
preacher at First Baptist Church in Conway actually told the whole congregation
that he was gay, and they needed to pray for him. And, the school secretary heard
this and said that if it was legal she would stone Mr. Norwine because he is a
homosexual. R 001886. The things that that these people have gone through
because of who they are, its unbelievable. R 001886-001887. But, the issue Im
trying to cover right now is whether or not heightened scrutiny should be applied,
and clearly, all four of these tests are met. Whether or not you do apply heightened
scrutiny, there is no legitimate governmental interest that would allow only gay
individuals to be denied the rights that people committing incest, people in a prison
that will never get out again, will never have conjugal visits with their spouse, how
they can deny these same rights to homosexuals, I dont know.
In closing, Your Honor, I have one other person in the courtroom that I get a
little emotional over. Shes not a Plaintiff. Its my daughter, Melina. She is a
lesbian. When she decides that she wants to form a long lasting relationship with
the person she loves, I want her to have that right. That is the reason I filed this
lawsuit. Thank you, Your Honor.
The Court: We dont generally clap in the courtroom except the jurors
every now and then when theyre excused. R 001887.

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Let me say that first of all, having this case has been very interesting and its
been an adventure. R 001887-001888. A lot of stuff that we have in here is
mundane, you know, car wrecks and contract disputes, and some of its terrible,
emotional. Criminal cases, theres just a myriad of things that people do out there
to each other that end up in here.
The reason that I find this case interesting is its more like what we did in
law school, its more like the constitutional issue of immense proportion. Youve
got the interest of the Plaintiffs who want a right that they feel discriminated
against. And, then youve got the interest of the State that says that we have the
right to make these rules, and what we have is a class of constitutional dimension
that will end up being decided either by the Arkansas Supreme Court as it exists
for this case, or it may be in the United States Supreme Court, thats inevitable.
Ive read everything that I could about this. In fact, Ive read over and over
some of this stuff, and I will say that the parties have done a magnificent job of
briefing these issues, and the writing is extremely good. R. 001888.
I told my spouse who is a lawyer that if Colin stays with the Attorney
Generals office thats fine. R 001888-001889. But, if he leaves and goes into
private practice and I get in trouble, Im going to hire him. Hes a good lawyer,
and Ive seen good work on both sides, and I appreciate it.

Ab 164

What Im going to do is this. Ive already got an idea where Im going, but
Im still drifting, and Ive got all that stuff on my desk with little tags and notes,
and Im going to write something within two weeks, and Ill let the parties know,
and we may have to have another gathering to figure it all out. But Ill take about
two weeks and make a decision, and I appreciate the work, its good work. R
001889.

SoC 1

STATEMENT OF THE CASE
The Plaintiff-Appellees (Appellees) challenge the constitutionality of
Amendment 83 to the Arkansas Constitution (Amendment 83) and Arkansas Act
144 of 1997 (Act 144). Amendment 83 and Act 144 codify the traditional man-
woman definition of marriage, and prohibit the recognition of same-sex marriages
of other jurisdictions under Arkansas law. Appellees filed their original complaint
on J uly 1, 2013, and amended complaints on J uly 21 and August 5, 2013 (Add. 1,
31, 81; R 1, 31, 81). Appellees filed a motion requesting a preliminary injunction
on August 5, 2013. (Add. 133; R 133). On August 23, 2013, the State filed a
motion to dismiss, brief, and response to Appellees first motion for preliminary
relief. (Add. 133, 181, 224; R 133, 181, 224).
On September 30, 2013, Appellees filed their Third Amended Complaint
(Add. 301; R 342). In their operative complaint, Appellees contended that
Amendment 83 and Act 144: (1) violate the Declaration of Rights of the Arkansas
Constitution, art. 2, 1 to 29; (2) deprive Appellees of the right to marry under
the Due Process Clause of the Fourteenth Amendment of the United States
Constitution; (3) deprive Appellees of their liberty interest in autonomy, family
integrity, and intimate association under the federal Due Process Clause; (4)
deprive Appellees of their liberty interest in valid marriages under the Fourteenth
Amendment; (5) deprive Appellees of the right to interstate travel under the

SoC 2

Fourteenth Amendment; (6) discriminate against Appellees on the basis of sexual
orientation in violation of the federal Equal Protection Clause; and (7) discriminate
against Appellees on the basis of gender in violation of the federal Equal
Protection Clause. (Add. 323-32; R 364-73). Appellees requested declaratory
relief and a permanent injunction barring enforcement of the challenged laws and
directing the State and its political subdivisions to recognize marriages of same-sex
couples validly entered into in other jurisdictions. (Add. 332-33; R 373-74).
Appellees filed a second motion and brief requesting a preliminary injunction on
September 30, 2013. (Add. 265, 270; R 306, 311).
On October 18, 2013, the State filed a motion and brief requesting dismissal
of the third amended complaint, and a response to Appellees second preliminary
injunction motion. (Add. 346, 351, 399; R 449, 454, 502). On November 19, 2013,
Appellees responded in support of their preliminary injunction motion and in
opposition to the motions to dismiss. (Add. 408, 459; R 519, 570). The State filed
a reply in support of its motion to dismiss on November 26, 2013. (Add. 513; R
624). A hearing was held on December 12, 2013, at which counsel presented
argument to the circuit court. (Ab 1-75; R 1619-1764). On December 19, 2013,
the circuit court entered an order denying the motions to dismiss and denying the
preliminary injunction motion. (Add. 452; R 678).

SoC 3

Summary judgment motions and briefs were filed on February 26, 2014.
(Add. 573, 586, 643, 699; R 734, 747, 1249, 1305). Summary judgment responses
were filed on March 19, 2014. (Add. 701, 726, 771; R 1307, 1367, 1416). The
State filed a reply on April 2, 2014. (Add. 773; R 1418). A hearing was held on
April 17, 2014, at which counsel presented argument to the circuit court. (Ab 77-
164; R 1765-1890). On May 9, 2014, the circuit court entered an order granting
summary judgment to Appellees. (Add. 786-98; R 1431-43). Applying federal
law, the circuit court declared that:
the Arkansas marriage laws implicate both a fundamental right and
the rights of a suspect or quasi-suspect class (Add. 788; R 1433);

same-sex couples fulfill all four factors to be considered a suspect or
quasi-suspect classification and [t]herefore, at a minimum,
heightened scrutiny must be applied to this Courts review of the
Arkansas marriage laws (Add. 789; R 1434);

Arkansass marriage laws discriminate against same-sex couples in
violation of the Equal Protection Clause because they do not advance
any conceivable legitimate state interest necessary to support even
rational basis review (id.);

[t]he defendants offer several rationalizations for the disparate
treatment of same-sex couples . . .[but] [n]one of these reasons
provide a rational basis for adopting the amendment (Add. 792; R
1437);

the fact that Amendment 83 was popular with voters does not protect
it from constitutional scrutiny as to federal rights. (Add. 793; R
1438); and

SoC 4

the constitutional amendment to ban same-sex marriages is driven by
animus rather than a rational basis. This violates the United States
Constitution. (Add. 794; R 1439).

Citing Article 2, 2 of the Arkansas Constitution, the circuit court declared that
Amendment 83 is an unconstitutional attempt to narrow the definition of equality
(Add. 792-93; R 1437-38), and that [t]he exclusion of same-sex couples from
marriage for no rational basis violates the fundamental right to privacy and equal
protection (Add. 798; R 1443) under the Arkansas Constitution. The State filed a
motion requesting a stay of the circuit courts May 9, 2013 order on May 9, and the
State filed a notice of appeal on May 10, 2014. (Add. 799, 803; R 1444, 1448).
After this Court dismissed the States initial appeal for lack of a final order,
on May 15, 2014, the circuit court entered a subsequent order clarifying its initial
order to grant injunctive relief to Appellees. (Add. 818; R 1463). The circuit court
permanently enjoined the defendants and all political subdivisions of the State
from enforcing Amendment 83, Act 144, and all other state and local laws and
regulations identified in [Appellees] complaint or otherwise in existence to the
extent that they do not recognize same-sex marriages validly contracted outside
Arkansas, prohibit otherwise qualified same-sex couples from marrying in
Arkansas or deny same-sex married couples the rights, recognition and benefits
associated with marriage in the State of Arkansas. (Add. 819; R 1464). The
circuit court directed that its order was final and appealable pursuant to Ark. R. Civ.

SoC 5

P. 54(b). Id. The circuit court entered a second order on May 15, 2014, in which
the circuit court explained that the clarifying order was entered nunc pro tunc to
the May 9, 2014 order. (Add. 821; R 1466).
The State and county clerk defendants filed timely notices of appeal of the
circuit courts orders. (Add. 825, 828, 831; R 1470, 1484; 1504). The circuit court
did not rule on Appellees gender discrimination claim, Appellees interstate travel
claim, Appellees divorce claim, and Appellees claim regarding their liberty
interest in autonomy, family integrity, and intimate association. Appellees have
not cross-appealed.
The State appeals the circuit courts rulings in favor of Appellees on the
claim that Amendment 83 and Act 144 violate the Arkansas Constitution, the claim
that Amendment 83 and Act 144 violate Appellees right to marry under the
federal Due Process Clause, and the claim that Amendment 83 and Act 144
discriminate against Appellees on the basis of sexual orientation in violation of the
federal Equal Protection Clause. This Court has granted the States request for a
stay of the circuit courts injunction pending the appeal.

Arg 1

ARGUMENT
The Plaintiff-Appellees (Appellees) filed a civil lawsuit in which they
challenged the constitutionality of Amendment 83 to the Arkansas Constitution
(Amendment 83), approved by a majority of Arkansas voters in 2004, and
Arkansas Act 144 of 1997 (Act 144), under the United States Constitution and
the Arkansas Constitution. Amendment 83 and Act 144 codify the traditional man-
woman definition of marriage as a matter of Arkansas law, and prohibit the
recognition of same-sex marriages of other jurisdictions under Arkansas law.
At the general election held on November 2, 2004, Arkansas voters
approved a constitutional amendment by a vote of 753,770 (74.95%) for, to
251,914 (25.05%) against, which became Amendment 83 to the Arkansas
Constitution. Amendment 83 provides in full:
1. Marriage

Marriage consists only of the union of one man and
one woman.

2. Marital Status

Legal status for unmarried persons which is identical
or substantially similar to marital status shall not be
valid or recognized in Arkansas, except that the
legislature may recognize a common law marriage
from another state between a man and a woman.

3. Capacity, rights, obligations, privileges and
immunities

Arg 2

The Legislature has the power to determine the
capacity of persons to marry, subject to this
amendment, and the legal rights, obligations,
privileges, and immunities of marriage.

Id.

The Arkansas General Assembly had previously adopted Act 144 of 1997,
codified, which declares that [m]arriage shall only be between a man and a
woman. A marriage between persons of the same sex is void. Ark. Code Ann.
9-11-109. See also Ark. Code Ann. 9-11-107(b) (Arkansas recognition of
certain foreign marriages shall not apply to a marriage between persons of the
same sex). Act 144 provides further:
(a)(1)(A) It is the public policy of the State of
Arkansas to recognize the marital union only of man
and woman.

(B) A license shall not be issued to a person to
marry another person of the same sex, and no
same-sex marriage shall be recognized as
entitled to the benefits of marriage.

(2) Marriages between persons of the same sex are
prohibited in this state. Any marriage entered into by
a person of the same sex, when a marriage license is
issued by another state or by a foreign jurisdiction,
shall be void in Arkansas, and any contractual or other
rights granted by virtue of that license, including its
termination, shall be unenforceable in the Arkansas
courts.

(3) However, nothing in this section shall prevent an
employer from extending benefits to a person who is a
domestic partner of an employee.

Arg 3

Ark. Code Ann. 9-11-208.
1

In their complaint before the circuit court, Appellees levied seven
separately-identified challenges against Amendment 83 and Act 144, including one
state-law challenge and six federal-law challenges. Appellees requested
declarations that Amendment 83 and Act 144 are unconstitutional under the state
and federal constitutions, and an injunction barring enforcement of the laws and
directing the State and its political subdivisions to recognize marriages of same-sex
couples validly entered into in other jurisdictions. (Add. 323-333; R 364-374).
The facts of this case were not disputed below, and the parties submitted
summary judgment motions to the circuit court. The circuit court concluded that
Amendment 83 and Act 144 violate the equal protection and due process
guarantees of the United States Constitution, and equivalent rights contained in the
Declaration of Rights set forth in the Arkansas Constitution. The circuit court
granted declaratory and injunctive relief, ordering the State and political

1
Arkansas law also expressly prohibits incestuous marriages, declaring them
to be absolutely void. Ark. Code Ann. 9-11-106(a). A violation of the
prohibition of incestuous marriages is a misdemeanor criminal offense. Ark. Code
Ann. 9-11-106(b). Arkansas law also prohibits marriages of any male under the
age of 17, and any female under the age of 16. Ark. Code Ann. 9-11-105.

Arg 4

subdivisions of the State to formally recognize same-sex marriages celebrated
inside and outside of Arkansas. This Court granted the States request for a stay of
the circuit courts injunction pending this appeal. The State contends that
Amendment 83 and Arkansas Act 144 are constitutional.
Standard of Review
By approving Amendment 83 and thereby adding it to their State
Constitution, the Arkansas voters exercised their privilege to enact laws as a basic
exercise of their democratic power. Schuette v. Coalition to Defend Affirmative
Action, 134 S. Ct. 1623, 1636 (U.S. No. 12-682 Apr. 22, 2014) (plurality opinion).
[F]reedom does not stop with individual rights. Our constitutional system
embraces, too, the right of citizens to debate so they can learn and decide and then,
through the political process, act in concert to try to shape the course of their own
times[.] 134 S. Ct. at 1636-37.
Were the Court to rule that the question addressed by
[Arkansas] voters is too sensitive or complex to be
within the grasp of the electorate; or that the policies
at issue remain too delicate to be resolved [by the
people]; or that these matters are so arcane that the
electorates power must be limited because the people
cannot prudently exercise that power even after a full
debate, that holding would be an unprecedented
restriction on the exercise of a fundamental right held
not just by one person but by all in common. It is the
right to speak and debate and learn and then, as a
matter of political will, to act through a lawful
electoral process.

Arg 5

Id. at 1637 (emphasis added). The voters of Arkansas have a fundamental
right . . . to act through a lawful electoral process[,] and the voters of Arkansas
exercised that right by enacting Amendment 83. Id.
In enacting Amendment 83, the citizens of Arkansas had absolutely no
obligation to select the scheme that a court might later conclude was best. Nat'l
R.R. Passenger Corp. v. A.T.& S.F.R. Co., 470 U.S. 451, 477 (1985). It is
enough that there is an evil at hand for correction, and that it might be thought that
the particular legislative measure was a rational way to correct it. Williamson v.
Lee Optical of Okla., 348 U.S. 483, 487-88 (1955). Amendment 83 does not have
to be perfect in order to be constitutional. See McGowan v. Md., 366 U.S. 420,
425-426 (1961) (State legislatures are presumed to have acted within their
constitutional power despite the fact that in practice, their laws result in some
inequality.). The presumption that a law is constitutional even though it may be
imperfect is even stronger with regard to laws passed by the citizens themselves at
the ballot box. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (upholding an
initiated act approved by California voters); Gregory v. Ashcroft, 501 U.S. 452,
470-71 (1991) (applying rational-basis review and noting that the Court was
dealing not merely with government action, but with a state constitutional
provision approved by the people of Missouri as a whole and therefore the

Arg 6

constitutional provision reflects . . . the considered judgment . . . of the citizens of
Missouri who voted for it.).
As explained below, the State contends that the proper standard for analysis
of Amendment 83 and Act 144 under federal law is the rational basis test. Under
rational basis review, a law is presumed constitutional and [t]he burden is on the
one attacking the legislative arrangement to negative every conceivable basis
which might support it. Heller v. Doe, 509 U.S. 312, 320 (1993) (internal
quotations omitted). See also Ark. Dept of Corr. v. Bailey, 368 Ark. 518, 533, 247
S.W.3d 851 (2007) (Under the rational-basis test, the party challenging the
constitutionality of the statute must prove that the statute is not rationally related to
achieving any legitimate governmental objective under any reasonably conceivable
fact situation.). A court conducting a rational basis review does not sit as a
superlegislature to judge the wisdom or desirability of legislative policy
determinations, but only asks whether there is some conceivable rational basis for
the challenged statute. Heller v. Doe, supra, 509 U.S. at 319. See also
Citifinancial Retail Services Div. of Citicorp Trust Bank, FSB v. Weiss, 372 Ark.
128, 136, 271 S.W.3d 494 (2008) (This court has repeatedly held that the
determination of public policy lies almost exclusively with the legislature, and the
courts will not interfere with that determination in the absence of palpable errors.);
Southwestern Bell Tel. Co. v. Roberts, 246 Ark. 864, 868, 440 S.W.2d 208 (1969)

Arg 7

([T]he question of the wisdom or expediency of a statute is for the Legislature
alone. The mere fact that a statute may seem unreasonable or unwise does not
justify a court in annulling it, as courts do not sit to supervise legislation. Courts
do not make the law; they merely construe, apply, and interpret it.).
2

This Court should proceed with caution when called upon to interpret the
United States Constitution. This Court cannot interpret the federal constitution to
provide greater protection than provided by United States Supreme Court
precedent. See Ark. v. Sullivan, 532 U.S. 769, 772 (2001) (citing Oregon v. Hass,
420 U.S. 714 (1975)). As explained below, United States Supreme Court
precedent affirms the constitutionality of Amendment 83 and Act 144.
I. THE CIRCUIT COURT ERRED BY DECLARING
AMENDMENT 83 UNCONSTITUTIONAL UNDER THE
ARKANSAS CONSTITUTION.

Appellees Arkansas constitutional claims are barred as a matter of law.
Amendment 83 is part of the Arkansas Constitution. As a matter of well-

2
This Court generally analyzes the state constitution consistently with the
federal constitution. See McDonald v. State, 354 Ark. 216, 221 n. 2, 119 S.W.3d
41 (2003). As explained below, however, analysis of the merits of the state-law
claims in this case is unnecessary and unwarranted because Amendment 83 is part
of the Arkansas Constitution and therefore Amendment 83 withstands scrutiny
under the Arkansas Constitution as a matter of logic and settled law.

Arg 8

established Arkansas law, a constitutional provision cannot violate earlier
provisions of the Constitution. Where there is an inconsistency between an earlier
provision of the Arkansas Constitution and a later amendment, the amendment,
being the more recent expression of the will of the people, prevails. Chesshir v.
Copeland, 182 Ark. 425, 32 S.W.2d 301 (1930). See also, Bryant v. English, 311
Ark. 187, 193, 843 S.W.2d 308 (1992) (Amendments to a constitution are not
regarded as if they had been parts of the original instrument but are treated as
having a force superior to the original to the extent to which they are in conflict.)
(quoting Grant v. Hardage, 106 Ark. 506, 509, 153 S.W. 826 (1913)); Lybrand v.
Waffard, 174 Ark. 298, 296 S.W. 729 (1927) (the last amendment to a constitution
adopted by the people must control over earlier provisions or amendments to that
constitution where there is irreconcilable conflict).
An amendment becomes part of the constitution upon its adoption and fits
into that organic body, displacing whatever may be in conflict or repugnant to the
provisions of the amendment[.] Priest v. Mack, 194 Ark. 788, 790, 109 S.W.2d
665 (1937). As this Court explained in Chesshir:
It is a rule of universal application that the Constitution
must be considered as a whole, and that, to get at the
meaning of any part of it, we must read it in the light of
other provisions relating to the same subject. The
general rule is that constitutional provisions and
amendments thereto must be harmonized where practical.
If there is to some extent an inconsistency or
repugnancy between a provision of the Constitution

Arg 9

and an amendment thereto so that one or the other
must yield, the amendment, being the last expression
of the sovereign will of the people, will prevail as an
implied repeal to the extent of the conflict. The same
rule of construction would apply in the construction of
amendments. The later amendment would govern to the
extent that it was repugnant to, or in conflict with, the
provisions of the former one. The principle of
constitutional construction above laid down has been
uniformly adhered to and applied according to the
varying facts of the different cases.

Id., 32 S.W.2d at 302 (emphasis added) (citations omitted). See also Ward v.
Priest, 350 Ark. 345, 382, 86 S.W.3d 884 (2002); Wright v. Story, 298 Ark. 508,
769 S.W.2d 16 (1989).
The citizens of Arkansas retained the authority to amend the State
Constitution. See Arkansas Constitution, Amendment 7 (the people reserve to
themselves the power to propose legislative measures, laws and amendments to the
Constitution, and to enact or reject the same at the polls.). The peoples exercise
of that amendment power is not limited by anything existing in the Constitution at
the time of such an amendment. Brickhouse v. Hill, 167 Ark. 513, 542, 268 S.W.
865 (1925) (The amendment being the last expression of the popular will in
shaping the organic law of the State, all provisions of the Constitution which are
necessarily repugnant thereto must, of course, yield.). Accord, Forum for Equal.
PAC v. McKeithen, 893 So.2d 738, 741 (La. 2005); Duggan v. Beerman, 515
N.W.2d 788, 792 & 793 (Neb. 1994); State ex rel. City of Princeton v. Buckner,

Arg 10

377 S.E.2d 139, 144 (W. Va. 1988); Plymouth Twp. v. Wayne County Bd. of
Commrs, 359 N.W.2d 547, 552 (Mich. App. 1984).
Under this long-established Arkansas law, Amendment 83 cannot violate the
Arkansas Constitution. Appellees claims to the contrary should have been
dismissed by the circuit court, including Appellees claim that Amendment 83
violates the Declaration of Rights contained in Article 2 of the Arkansas
Constitution. Article 2, Section 29 provides, in its entirety:
This enumeration of rights shall not be construed to deny
or disparage others retained by the people; and to guard
against any encroachment on the rights herein retained,
or any transgression of any of the higher powers herein
delegated, we declare that everything in this article is
excepted out of the general powers of the government;
and shall forever remain inviolate; and that all laws
contrary thereto, or to the other provisions herein
contained, shall be void.

Id. Plaintiffs rely on the language shall forever remain inviolate in furtherance
of their assertion that not even a constitutional amendment by popular vote of the
people of Arkansas can abridge anything contained in the Declaration of Rights of
Article 2 of the Arkansas Constitution.
The Declaration of Rights plainly provides that [t]his enumeration of rights
shall not be construed to deny or disparage others retained by the people,
including the right of the people to directly amend their constitution. Ark. Const.,
art. 2, 29. Moreover, the opening provision of the Declaration of Rights provides

Arg 11

that [a]ll political power is inherent in the people and government is instituted
for their protection, security and benefit; and they have the right to alter,
reform or abolish the same, in such manner as they may think proper. Ark.
Const., art. 2, 1 (emphasis added). The Declaration of Rights plainly provides
that the people retain the absolute right to alter, reform, or abolish the laws of
Arkansas, including constitutional provisions and including the provisions of the
Declaration of Rights.
3

Because Amendment 83 was placed in the Arkansas Constitution directly by
the people of Arkansas, and all political power is inherent in the people . . . and
they have the right to alter, reform, or abolish the same, in such manner as they
think proper (Ark. Const., art. 2, 1), Appellees cannot challenge Amendment 83
under other, earlier provisions of the Arkansas Constitution, as a matter of law.
Appellees state-law challenges against Act 144 likewise fail on the merits,

3
The State does not concede that Amendment 83 or Act 144 violate any
provision of the Declaration of Rights or any other provision of the Arkansas
Constitution. However, even if the Court assumes that Amendment 83 somehow
offends the Declaration of Rights or any other earlier provision of the Arkansas
Constitution, the Declaration of Rights itself and the cases discussed herein require
that Amendment 83 cannot be declared infirm for violation of any earlier provision
of the Constitution, as a matter of law.

Arg 12

because Act 144 is entirely consistent with, and explicitly authorized by,
Amendment 83, which is a valid part of the Arkansas Constitution. See
Amendment 83, 3 (The Legislature has the power to determine the capacity of
persons to marry, subject to this amendment). Appellees claims under the
Arkansas Constitution are entirely barred, because of Amendment 83 to the
Arkansas Constitution. All of Appellees state-law claims should be rejected
accordingly. The circuit courts ruling in favor of Appellees under state law
should be reversed, and the state-law claims should be dismissed.
II. THE CIRCUIT COURT ERRED BY DECLARING THAT
AMENDMENT 83 AND ACT 144 VIOLATE THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE
UNITED STATES CONSTITUTION.

By history and tradition the definition and regulation of marriage . . . has
been treated as being within the authority and realm of the separate States. U.S. v.
Windsor, 133 S.Ct. 2675, 2689-90 (U.S. No. 12-1307 J une 26, 2013). The United
States Supreme Court has long maintained that a State has absolute right to
prescribe the conditions upon which the marriage relation between its own citizens
shall be created, and the causes for which it may be dissolved. Pennoyer v. Neff,
95 U.S. 714, 734-35 (1878). The U.S. Supreme Court affirmed this deeply rooted
deference to state regulation of marriage at the outset, and at length, in Windsor:
State laws defining and regulating marriage, of course,
must respect the constitutional rights of persons, see, e.g.,
Loving v. Virginia, 388 U.S. 1 (1967); but, subject to

Arg 13

those guarantees, regulation of domestic relations is
an area that has been regarded as a virtually
exclusive province of the States. Sosna v. Iowa, 419
U.S. 393, 404 (1975).

The recognition of civil marriages is central to state
domestic relations law applicable to its residents and
citizens. See Williams v. North Carolina, 317 U.S. 287,
298 (1942) (Each state as a sovereign has a rightful and
legitimate concern in the marital status of persons
domiciled within its borders). The definition of
marriage is the foundation of the States broader
authority to regulate the subject of domestic relations
with respect to the [p]rotection of offspring,
property interests, and the enforcement of marital
responsibilities. Ibid. [T]he states, at the time of
the adoption of the Constitution, possessed full power
over the subject of marriage and divorce. Haddoch v.
Haddoch, 201 U.S. 562, 575 (1906); see also In re
Burrus, 136 U.S. 586, 593-594 (1890) (The whole
subject of domestic relations of husband and wife, parent
and child, belongs to the laws of the States and not to the
laws of the United States.).

Consistent with this allocation of authority, the
Federal Government, through our history, has
deferred to state-law policy decisions with respect to
domestic relations. In De Sylva v. Ballentine, 351 U.S.
570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956), for example,
the Court held that, [t]o decide who is the widow or
widower of a deceased author, or who are his executors
or next of kin, under the Copyright Act requires a
reference to the law of the State which created those legal
relationships because there is no federal law of
domestic relations. Id., at 580, 76 S.Ct. 974. In order
to respect this principle, the federal courts, as a general
rule, do not adjudicate issues of marital status even
when there might otherwise be a basis for federal
jurisdiction. See Ankenbrandt v. Richards, 504 U.S. 689,
703, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992). Federal

Arg 14

courts will not hear divorce and custody cases even if
they arise in diversity because of the virtually
exclusive primacy . . . of the States in the regulation of
domestic relations. Id., at 714, 112 S.Ct. 2206
(Blackmun, J ., concurring in judgment).

The significance of state responsibilities for the
definition and regulation of marriage dates to the
Nations beginning; for when the Constitution was
adopted the common understanding was that the
domestic relations of husband and wife and parent
and child were matters reserved to the States. Ohio
ex rel. Popovici v. Agler, 280 U.S. 379, 383-384 (1930).
Marriage laws vary in some respects from State to
State. For example, the required minimum age is 16
in Vermont, but only 13 in New Hampshire. Compare
Vt. Stat. Ann., Tit. 18, 5142 (2012), with N.H. Rev.
Stat. Ann. 457:4 (West Supp. 2012). Likewise the
permissible degree of consanguinity can vary (most
States permit first cousins to marry, but a handful such
as Iowa and Washington, see Iowa Code 595.19 (2009);
Wash. Rev. Code 26.04.020 (2012) prohibit the
practice). But these rules are in every event consistent
within each State.

133 S.Ct. at 2691-92 (emphasis added).
Thus, in Windsor, the Supreme Court struck down Section 3 of the federal
Defense of Marriage Act (DOMA), not because the recognition of same-sex
marriages is required by the federal Constitution the Court disavowed any such
principle that same-sex marriages must be recognized but because the Court
concluded that the federal government lacks authority to discriminate among
opposite-sex and same-sex marriages where both are recognized under a states
law. The federal governments refusal to respect the States authority to define

Arg 15

marriage represented a significant and in the majoritys view, unwarranted
federal intrusion on state power to define marriage. 133 S.Ct. at 2692. The
Court specifically declined to recognize same-sex marriage as a fundamental right
under the federal Constitution, and it declined to recognize homosexuality as a
suspect classification for purposes of equal protection analysis. Rather, the Court
concluded that federalism concerns undermined the rationality of a federal law that
imposed a definition of marriage contrary to the definition in state law, and which
did not treat all marriages authorized under state law as equal. Id. The Windsor
majority did not hold that states are constitutionally required to allow same-sex
marriage or recognize same-sex marriages performed under the laws of other
jurisdictions.
4

The Windsor majority affirmed the traditional view that it is the province of
individual states to choose which marriages will be recognized under state law.
Indeed, none of the Supreme Court J ustices in Windsor whether in the majority

4
Section 2 of DOMA, which was not at issue in Windsor, explicitly allows
States to decline to recognize same-sex marriages performed under the laws of
other States. See 28 U.S.C. 1738C (No State . . . shall be required to give effect
to any public act, record, or judicial proceeding of any other State . . . respecting a
relationship between persons of the same sex that is treated as a marriage under the
laws of such other State . . . or a right or claim arising from such relationship.).

Arg 16

or in dissent opined that states are constitutionally required to recognize same-
sex marriage. The four dissenting J ustices filed three dissents. Chief J ustice
Roberts, J ustice Alito, and J ustice Scalia joined by J ustice Thomas would have
upheld DOMA. Three of the dissenting J ustices clearly indicated a belief that
states can constitutionally retain the traditional definition of marriage. See 133
S.Ct. at 2707-08 (Scalia, J ., dissenting, joined in relevant part by Thomas, J .); id. at
2715-16 (Alito, J ., dissenting, joined in relevant part by Thomas, J .). And, Chief
J ustice Roberts pointedly emphasized that while [t]he States power in defining
the marital relation is of central relevance to the majoritys decision to strike down
DOMA here, . . . that power will come into play on the other side of the board in
future cases about the constitutionality of state marriage definitions. So too will
the concerns for state diversity and sovereignty that weigh against DOMAs
constitutionality in this case. Id. at 2697 (Roberts, C.J ., dissenting) (quoting
majority opinion). The views expressed by these four J ustices without any
contrary expression from the Courts other J ustices strongly suggests that the
Court would uphold Amendment 83 under the United States Constitution.
Consistent with Windsor, Appellees federal due process and equal
protection claims fail on the merits under established federal law. In Baker v.
Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for want of a substantial
federal question, 409 U.S. 810 (1972), the Minnesota Supreme Court held that a

Arg 17

state statute defining marriage as a union between persons of the opposite sex did
not violate the First, Eighth, Ninth, or Fourteenth Amendments of the U.S.
Constitution. The state supreme court rejected the plaintiffs claims, concluding
that marriage without regard to the sex of the parties is not a fundamental right.
191 N.W.2d at 186-87. The court further determined that the Equal Protection
Clause was not offended by the states classification of persons authorized to
marry and that there was no irrational or invidious discrimination. Id. at 187.
The United States Supreme Court summarily dismissed the plaintiffs appeal
in Baker for want of a substantial federal question, Baker, 409 U.S. 810, where
the Court was presented with the following three questions:
(1) Whether [Minnesotas] refusal to sanctify appellants
marriage deprives appellants of their liberty to marry and
of their property without due process of law under the
Fourteenth Amendment.

(2) Whether [Minnesotas] refusal, pursuant to Minnesota
marriage statutes, to sanctify appellants marriage
because both are of the male sex violates their rights
under the equal protection clause of the Fourteenth
Amendment.

(3) Whether [Minnesotas] refusal to sanctify appellants
marriage deprives appellants of their right to privacy
under the Ninth and Fourteenth Amendments.

Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1085 (Haw. 2012). The Supreme
Court has not explicitly or implicitly overturned its holding in Baker or provided
the lower courts with any reason to believe that the holding is invalid. Id. (citing

Arg 18

Perry v. Schwarzenegger, 628 F.3d 1091, 1099 n.1 (9th Cir. 2011) (N. R. Smith, J .,
concurring in part and dissenting in part) (vacated by the Supreme Court)
(concluding that the Supreme Court cases following Baker do not suggest any
doctrinal developments indicating Baker is no longer good law)); Wilson v. Ake,
354 F.Supp.2d 1298, 1305-06 (M.D. Fla. 2005) (same)). See also Mandel v.
Bradley, 432 U.S. 173, 176 (1977) (summary dismissals by the Court prevent
lower courts from coming to opposite conclusions on the precise issues presented
and necessarily decided by those actions.); Hicks v. Miranda, 422 U.S. 332, 344
& 345 n. 14 (1975) (summary dismissals by the Court constitute a ruling on the
merits by the Court; unless and until the Supreme Court should instruct otherwise,
inferior federal courts had best adhere to the view that if the Court has branded a
question as unsubstantial, it remains so except when doctrinal developments
indicate otherwise[.]).
The Supreme Courts dismissal of the appeal in Baker was a decision on the
merits that constitutes controlling precedent, unless and until re-examined by this
Court. Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976) (emphasis added). Baker is
binding precedent that requires dismissal of due process, equal protection, and
privacy claims brought against any state law codifying the traditional definition of
marriage. Appellees federal claims fail under Baker alone.

Arg 19

Appellees have argued in this case that doctrinal developments since
Baker have rendered Baker irrelevant, and have overridden the precedential effect
of Baker. Of course, there is no discussion of Baker in the Windsor opinion,
despite the fact that Baker was squarely presented to the Court. Rather than
overrule Baker given the opportunity, or even note any significant doctrinal
development that would call Baker into question, the Court affirmed in great detail
its deeply rooted deference to state regulation of marriage. Windsor, 133 S.Ct. at
2691-92. Nothing in the Courts Windsor opinion remotely questions the Courts
decision in Baker. Baker is not even cited a single time in the Courts majority
opinion in Windsor, which indicates that doctrinal developments have not
overridden the precedential effect of Baker.
In Lawrence v. Texas, 539 U.S. 558, 578 (2003), in which the Supreme
Court invalidated a state law criminalizing sodomy, the majority was careful to
note that the Texas statute at issue does not involve whether the government must
give formal recognition to any relationship that homosexual persons seek to enter.
Id. This is not a case like Lawrence, where the right to engage in private,
consensual sexual activity in ones home was burdened by a law criminalizing
homosexual conduct. Id. Lawrence may have represented a significant doctrinal
development in the Courts recognition of privacy rights in the bedroom, but it
does not represent a significant doctrinal development relevant to this case in

Arg 20

which Appellees seek to require formal governmental recognition of their
relationships. The U.S. Supreme Court has consistently and repeatedly declined to
recognize a fundamental constitutional due process, equal protection, or privacy
right of the type advocated by Appellees in this case.
The question Appellees cannot answer is: If the majority opinion in
Windsor requires the invalidation of a state law codifying the traditional definition
of marriage, then why did the Windsor majority go to such great length to affirm
state sovereignty over domestic relations and the definition of marriage in a case
where that issue was not even presented? The answer is that DOMA was
invalidated because of state sovereignty over domestic relations, because some
states exercised that authority to limit marriage to opposite-sex couples and other
states exercised that authority to allow same-sex marriage, and because the federal
government has no legitimate interest in regulating marriage in any way that
interferes with state sovereignty over marriage. Windsor affirms the validity of
state laws codifying the traditional definition of marriage and state laws allowing
same-sex marriage. The Courts invalidation of a federal law limiting marriage to
opposite-sex couples where some states allow same-sex couples to marry is
entirely consistent with the States position that a state law limiting marriage to
opposite-sex couples is constitutional. The States position in this case is perfectly
consistent with the entire majority opinion in Windsor.

Arg 21

The federal law at issue in Windsor was unconstitutional because it
interfered with the right of New York citizens to define marriage for their
community. Likewise, Arkansas citizens have the right to define marriage for their
community. Precisely because the unusual character of the federal law at issue
in Windsor depart[ed] from th[e] history and tradition of [federal] reliance on
state law to define marriage[,] the federal law carried an improper purpose and
effect. 133 S. Ct. at 2692-93. The logic of Windsor does not apply to a state law
defining marriage, because a state law defining marriage is perfectly consistent
with state sovereignty over domestic relations and the definition of marriage.
Appellees interpretation of Windsor conflicts with the majority opinion in
Windsor, and begs the question why the Court included a lengthy discussion of
state sovereignty over domestic relations and the definition of marriage if the Court
would strike down a state constitutional provision where the voters of Arkansas
have exercised the precise authority embraced by the majority in Windsor.
The Supreme Court has yet to fully consider a case regarding the
constitutionality of a state law limiting marriage to opposite-sex couples under
Windsor, although petitions for writs of certiorari have been filed recently in
several cases arising out of federal courts. See, e.g., Herbert v. Kitchen, U.S.
Supreme Court No. 14-124; Smith v. Bishop, U.S. Supreme Court No. 14-136; and
Rainey v. Bostic, U.S. Supreme Court No. 14-153. However, the Supreme Court

Arg 22

has granted three stays in cases where lower courts have declared state marriage
laws unconstitutional, in purported reliance upon Windsor. See Herbert v. Kitchen,
No. 13A687, 134 S. Ct. 893 (J an. 6, 2014) (staying preliminary injunction of
Utahs marriage amendment); Herbert v. Evans, No. 14A65, 2014 WL 3557112
(U.S. J uly 18, 2014) (staying injunction that would require Utah to treat as valid
marriage licenses issued to same-sex couples); McQuigg v. Bostic, No. 14A196,
573 U.S. ___ (U.S. Aug. 20, 2014) (staying mandate of the Fourth Circuit Court of
Appeals declaring Virginias marriage laws unconstitutional). The Supreme Court
grants a stay if there is a fair prospect that a majority of the Court will vote to
reverse the judgment below. Hollingsworth v. Perry, 558 U.S. 183, 189-90 (2010)
(per curiam). The Courts stays indicate the likelihood that the Court will affirm
state marriage laws such as Amendment 83 and Act 144. This, of course, would be
consistent with the States interpretation of the majority opinion in Windsor.
Perhaps the most instructive court decision available to this Court is Citizens
for Equal Protection, Inc. v. Bruning, 455 F.3d 859 (8th Cir. 2006) (upholding a
state constitutional amendment providing as follows: Only marriage between a
man and a woman shall be valid or recognized in Nebraska. The uniting of two
persons of the same sex in a civil union, domestic partnership, or other similar
same-sex relationship shall not be valid or recognized in Nebraska.). In Bruning,
the Eighth Circuit squarely addressed the constitutionality of a substantively

Arg 23

identical state constitutional amendment, and specifically held that the plaintiffs
equal protection argument fails on the merits. 455 F.3d at 864-69. The Eighth
Circuit noted that sexual orientation is not a suspect classification for purposes of
equal protection analysis, and rational-basis review applies to a state law defining
marriage. Id. (Citing Romer v. Evans, 517 U.S. 620 (1996)). See also Jegley v.
Picado, 349 Ark. 600, 634, 80 S.W.3d 332 (2002) (noting that homosexual
citizens do not constitute a protected class). The Eighth Circuit emphasized that
[w]hatever our personal views regarding this political and sociological debate, we
cannot conclude that the States justification lacks a rational relationship to
legitimate state interests. Id. at 868 (citing Romer v. Evans, 517 U.S. at 632). In
conclusion, the Eighth Circuit noted: In the nearly one hundred and fifty years
since the Fourteenth Amendment was adopted, to our knowledge no J ustice of the
Supreme Court has suggested that a state statute or constitutional provision
codifying the traditional definition of marriage violates the Equal Protection
Clause or any other provision of the United States Constitution. Id. at 870. The
Eighth Circuit decided Bruning in 2006, over three decades after Baker.
The circuit court should have awarded summary judgment to the State on
Plaintiffs federal claims based upon the Eighth Circuits holding in Bruning.
Although Arkansas courts are not bound by decisions of the Eighth Circuit, this
Court routinely looks to the Eighth Circuit for guidance, especially when the Court

Arg 24

considers an issue of federal law or an issue of first impression that the Eighth
Circuit has previously decided. See, e.g., Decay v. State, 2009 Ark. 566, * 6, 352
S.W.3d 319; Wal-Mart Stores v. Coughlin, 369 Ark. 365, 377, 255 S.W.3d 424
(2007); Ark. Dept of Corr. v. Bailey, 368 Ark. at 528-32; Sowders v. St. Josephs
Mercy, 368 Ark. 466, 474, 247 S.W.3d 514 (2007); Chavers v. General Motors
Corp., 349 Ark. 550, 560-62, 79 S.W.3d 361 (2002); Short v. Westark Community
College, 347 Ark. 497, 505-08, 65 S.W.3d 440 (2002); Kraemer v. Patterson, 342
Ark. 481, 492, 29 S.W.3d 684 (2000); Martin v. Arthur, 339 Ark. 149, 159, 3
S.W.3d 684 (1999); Blackwell v. State, 338 Ark. 671, 677-78, 1 S.W.3d 399 (1999);
Sims v. State, 333 Ark. 405, 408-11, 969 S.W.2d 657 (1998).
Appellees federal constitutional claims are barred in the Eighth Circuit by
Bruning, and barred nationwide by Baker. Even without Baker and Bruning, the
federal constitutional claims fail under Windsor. The circuit court erred by
granting summary judgment to Appellees on their federal due process and equal
protection claims. This Court should reverse, and affirm the validity of
Amendment 83 and Act 144 under the United States Constitution.
III. AMENDMENT 83 AND ACT 144 SATISFY THE
RATIONAL BASIS TEST.

Appellees claim that Amendment 83 and Act 144 unlawfully discriminate
against them on the basis of sexual orientation was specifically rejected by the
Eighth Circuit in Bruning, supra, which concluded that the plaintiffs equal

Arg 25

protection argument fails on the merits. Id., 455 F.3d at 868-69. The Eighth
Circuit specifically noted that the Supreme Court has never ruled that sexual
orientation is a suspect classification for equal protection purposes. Id. at 866.
The right to marry someone of the same sex is not objectively, deeply rooted in
this Nations history and tradition and thus is not a fundamental right.
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). The Supreme Court has
cautioned that [b]y extending constitutional protection to an asserted right or
liberty interest, we, to a great extent, place the matter outside the arena of public
debate and legislative action. Id., 521 U.S. at 720. As explained above, the
United States Supreme Court has not broken new ground or declared a
fundamental right or a suspect class applicable to the due process and equal
protection claims levied in this case. Accordingly, as this Court has explained,
Amendment 83 and Act 144 of 1997 are subject to rational basis review:
Though homosexual citizens do not constitute a protected
class, they are a separate and identifiable class for
purposes of equal-protection analysis. Under well-settled
equal-protection analysis, any legislation that
distinguishes between two groups of people must be
rationally related to a legitimate governmental purpose.
Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432 (1985).

Jegley v. Picado, 349 Ark. at 634.
The United States Supreme Court has recognized a variety of legitimate state
interests that are directly implicated and furthered by Amendment 83 and Act 144:

Arg 26

(1) the basic premise of the referendum process, that political power flows from
the people to their government on issues of vital importance to the public;
5
(2)
advancement of procreation by encouraging the development of biologically
procreative relationships;
6
(3) ensuring the best interests of children through laws
where children born as a result of a union between a man and a woman are cared
for by their biological parents in a stable family environment;
7
(4) stability,
uniformity, and continuity of laws in the face of an ongoing public and political
debate about the nature and role of marriage;
8
(5) preservation of the public
purposes and social norms linked to the historical and deeply-rooted meaning of
marriage;
9
and (6) a cautious, historical approach to governmental social

5
See, e.g., Bond v. U.S., 131 S. Ct. 2355, 2364 (2011); James v. Valtierra,
402 U.S. 137, 141 (1971).
6
See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383 (1978); Loving v. Va., 388
U.S. 1, 12 (1967); Skinner v. Okla., 316 U.S. 535, 541 (1942).
7
See, e.g., Nordlinger v. Hahn, 505 U.S. 1, 17 (1992); Quilloin v. Walcott,
434 U.S. 246, 255 (1978).
8
See, e.g., Glucksberg, supra, 521 U.S. at 720; Parham v. Hughes, 441 U.S.
347, 357-58 (1979); Storer v. Brown, 415 U.S. 724, 736 (1974).
9
See, e.g., Maynard v. Hill, 125 U.S. 190, 211 (1888).

Arg 27

experimentation as democratic, cultural and scientific discussions proceed.
10
Any
of these rational bases alone, and any other conceivable rational basis, is sufficient
to affirm the constitutionality of Amendment 83 and Act 144.
The citizens of Arkansas amended their state constitution to include a
particular definition of marriage. As the Eighth Circuit and numerous other courts
have held, there is no fundamental right to be free of the political barrier a validly
enacted constitutional amendment erects. Bruning, 455 F.3d at 868. The
package of government benefits and restrictions that accompany the institution of
formal marriage serve a variety of other purposes. The legislature or the people
through the initiative process may rationally choose not to expand in wholesale
fashion the groups entitled to those benefits. Id.
The [Appellees] in this case insist that a difficult
question of public policy must be taken from the
reach of the voters, and thus removed from the
realm of public discussion, dialogue, and debate in
an election campaign. Quite in addition to the
serious First Amendment implications of that
position with respect to any particular election, it
is inconsistent with the underlying premises of a

10
See, e.g., District Attorneys Office for Third Jud. Dist. v. Osborne, 557
U.S. 52, 72-73 (2009); Murray v. Giarratano, 492 U.S. 1, 14 (1989) (Kennedy, J .,
concurring); Chandler v. Fla., 449 U.S. 560, 579 (1981) (quoting New State Ice
Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J ., dissenting)).

Arg 28

responsible, functioning democracy. One of those
premises is that a democracy has the capacity and
the duty to learn from its past mistakes; to discover
and confront persisting biases; and by respectful,
rational deliberation to rise above those flaws and
injustices. The process is impeded, not advanced,
by court decrees based on the proposition that the
public cannot have the requisite repose to discuss
certain issues. It is demeaning to the democratic
process to presume that the voters are not capable
of deciding an issue of this sensitivity on decent
and rational grounds . . . The idea of democracy is
that it can, and must, mature. Freedom embraces the
right, indeed the duty, to engage in a rational, civic
discourse in order to determine how best to form a
consensus to shape the destiny of the Nation and its
people. These First Amendment dynamics would
be disserved if this Court were to say that the
question here at issue is beyond the capacity of the
voters to debate and then to determine.

Schuette, 134 S. Ct. at 1637 (emphasis added). As the United States Supreme
Court explained this year in Schuette, relief from a state constitutional amendment
should come from the democratic process, not the judicial branch.
11
Because

11
To this end, two ballot measures that would repeal Amendment 83 have
been certified by the Arkansas Attorney General to appear on the voters ballots in
Arkansas. See Op. Ark. Atty Gen. No. 2013-114 (certifying proposed
constitutional amendment to repeal Amendment 83); Op. Ark. Atty Gen. No.
2013-135 (certifying proposed constitutional amendment to repeal Amendment 83
and authorize same-sex marriage in Arkansas).

Arg 29

Amendment 83 and Act 144 satisfy the rational basis test, the circuit court should
be reversed, and Amendment 83 and Act 144 should be declared constitutional.

Arg 30

CONCLUSION
This case is not about how the debate about [marriage] should be resolved.
It is about who may resolve it. Schuette, 134 S. Ct. at 1638. There is no
authority in the Constitution of the United States or in [the United States Supreme
Courts] precedents for the J udiciary to set aside [Arkansas] laws that commit this
policy determination to the voters. Id. (Citing Sailors v. Bd. of Ed. of County of
Kent, 387 U.S. 105, 109 (1967)). For the reasons discussed above, this Court
should reverse the circuit courts grant of summary judgment to the Plaintiff-
Appellees, and hold that Amendment 83 to the Arkansas Constitution and
Arkansas Act 144 of 1997 are constitutional.
Respectfully Submitted,

By: /s/ Colin R. J orgensen
Ark. Bar #2004078
Assistant Attorney General
323 Center Street, Suite 200
Little Rock, AR 72201
(501) 682-3997
(501) 682-2591 (facsimile)
colin.jorgensen@arkansasag.gov

Attorney for the State.

Arg 31

CERTIFICATE OF SERVICE

I, Colin R. J orgensen, Assistant Attorney General, certify that on this
15th day of September, 2014, I have served the foregoing upon the following
via electronic mail attachment and by depositing a bound copy in the United
States mail, postage prepaid, addressed to the following:

Cheryl K. Maples
ckmaples@aol.com

J ack Wagoner III
jack@wagonerlawfirm.com

Angela Mann
angela@wagonerlawfirm.com

Attorneys for the Plaintiffs-Appellees

David M. Fuqua
dfuqua@fc-lawyers.com

Attorney for Separate Defendant Pulaski County Clerk Larry Crane

J ason E. Owens
owens@rainfirm.com

Attorney for Separate Defendants White County Clerk Cheryl Evans, Lonoke
County Clerk William Larry Clarke, Washington County Clerk Becky
Lewallen, Conway County Clerk Debbie Hartman, and Saline County
Clerk Doug Curtis.


Arg 32

CERTIFICATE OF COMPLIANCE

I, Colin R. J orgensen, do hereby certify that I have submitted and served
on opposing counsel an unredacted PDF document that complies with the Rules
of the Supreme Court and the Court of Appeals of Arkansas. The PDF
document is identical to the corresponding parts of the paper document from
which it was created as filed with the Court. To the best of my knowledge,
information, and belief formed after scanning the PDF document for viruses
with an antivirus program, the PDF document is free from computer viruses. A
copy of this certificate has been submitted with the paper copies filed with the
Court and has been served on all parties.


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