Challenge to Arkansas Gay Marriage Ban Heard

Advocates of ending Arkansas' ban on same-sex marriage took their case before a Pulaski County Circuit Court judge Thursday, who said at the end of the hearing that he expected to issue a ruling within two weeks.

Arguing for the plaintiffs, attorney Jack Wagoner, said that the voter-approved constitutional amendment banning same-sex marriage is itself unconstitutional.

The state and federal constitutions guarantee "rights that can't be taken away," Wagoner argued.

Wagoner said rights to due process and equal protection cannot be superseded even by a state constitutional amendment.

"When the government is in the marriage business, same-sex couples have to be treated the same," Wagoner said. "The fact that they've been historically discriminated against is less reason to have laws targeting them."

Colin Jorgensen, an assistant attorney general arguing for the state, said Amendment 83, the anti-gay marriage measure, does not conflict with the state Constitution.

Jorgenson said that at no point in the state's history has an amendment been knocked down on the grounds that it violated the Arkansas Constitution.

"The people of Arkansas can put whatever they want in the Constitution. The only check on that is the U.S. Constitution," Jorgenson said.

The courtroom was packed with same-sex couples, many of whom were among the plaintiffs challenging the constitutionality of the measure.

Circuit Judge Chris Piazza said at the conclusion of the hearing that he will issue a ruling in about two weeks.

"We might have to have another gathering," Piazza said.

Arguing for the plaintiffs, attorney Cheryl Maples said gay people constitute a politically unpopular minority that's being targeted by an unfair law.

"They want the same things that all Arkansans want," Maples said. "This law was set to harm them."

Maples noted that Arkansas law bans first cousins from marrying but recognizes the marriages of first cousins who were married in another state. She said the state also recognizes out-of-state marriages of people who aren't old enough to be married in Arkansas.

Likewise, heterosexual couples who have children through a surrogate have both their names on the birth certificate. When a member of a lesbian couple has a child through artificial insemination, only the birth mother can be listed on the birth certificate, she said.

Maples said one couple that's among the plaintiffs couldn't attend the hearing because they had a child with severe birth defects, and that their status prohibits one of them from being able to make medical decision with the baby's doctor.

"It makes no sense that same-sex couples not have their marriages recognized," Maples said. "It's pure animus."

Late last year, Piazza refused to grant a motion by the state that sought to dismiss the lawsuit, but he also refused to grant a motion by the couples suing to block enforcement of the ban.

The plaintiffs include 21 same-sex couples and a woman who wants to dissolve her New York marriage to another woman.

The 2004 constitutional amendment approved by voters stipulates that marriage is between one man and one woman.

Some couples appeared prepared for Piazza to rule from the bench and open the way for them to go straight to the clerk's office and get marriage certificates, including two men in tuxedos with matching red shirts and shoes, John Schenck and Robert Loyd, both 64.

"I've been waiting 44 years to get over this damn rainbow, so a couple more weeks isn't going to matter to me." Loyd said.

Wagoner said that might have been premature, even if Piazza had ruled Thursday. Wagoner said after the hearing he expected a favorable ruling but also anticipated Piazza would issue a stay so the case can go to the Arkansas Supreme Court.

One potential problem that would have to be ironed out is that the suit targets clerks in only Pulaski and Saline counties. He said that could open the door to some counties allowing same-sex marriages while others do not.

Meredith Wright, 35, who is a plaintiff with her spouse, Julie Wright, 38, said they were legally married in Iowa last year.

Meredith Wright said she doesn't want to wait two weeks for Piazza's ruling.

"We've been waiting for six or seven years. It's just prolonging the pain. And if he could just give us the decision, that way we know which way to go so we can re-prepare or rejoice and the pain will be gone. I know that my four children would like to be recognized as a family. They're old enough to know that they aren't. And I don't think that's fair to them," she said.