Arkansas’s marriage ban has just been struck down as unconstitutional.
Judge Chris Piazza’s timing in the lawsuit, Wright v. Arkansas, came as no surprise, as he had indicated on May 1 that he planned to issue a ruling by May 9. The suit was filed on behalf of twenty same-sex couples, twelve of whom are seeking the right to marry in Arkansas and eight that want their out-of-state marriages recognized where they live.
Amendment 83, Arkansas’s ban on marriage equality, was approved by 75 percent of its voters in 2004.
Piazza, the Division 2 judge of the Sixth Circuit in Arkansas, ruled that the state’s law denying same-sex couples the right to marry is in violation of the Fourteenth Amendment. In his thirteen-page decision, he wrote, “Although marriage is not expressly identified as a fundamental right in the Constitution, the United States Supreme Court has repeatedly recognized it as such. It has also consistently applied heightened scrutiny to laws that discriminate against groups considered to be a suspect or quasi-suspect classification.”
He also cited the 1967 case Loving v. Virginia, the landmark Supreme Court ruling that declared interracial marriage legal throughout the entire country: “Tradition alone cannot form a rational basis for a law…Just as the tradition of banning interracial marriage represented the embodiment of deeply-held prejudice and long-term racial discrimination in Loving…the same is true here with regard to Arkansas’s same-sex marriage bans and discrimination based on sexual orientation.
“The traditional view of marriage has in the past included certain views about race and gender roles that were insufficient to uphold laws based on these views.”
He even quoted a recent dissenting vote from noted conservative Justice Scalia, who had spoken out in favor of “‘preserving the traditional institution of marriage.’” Piazza called the sentiment “just a kinder way of describing the State’s moral disapproval of same-sex couples.”
Piazza also pointed out that same-sex couples who want children will have them whether or not their family will be entitled to legal protections, and as such, “the only effect the bans have on children is harming those children of same-sex couples who are denied the protection and stability of parents who are legally married.”
Nowhere in the ruling is there an explicit order for a stay pending appeals, meaning same-sex couples in Arkansas could begin marrying on Monday, May 12, unless a stay is issued. The Arkansas Times reported that Pulaski County Clerk Larry Crane plans to be ready with the software needed to issue gender-neutral marriage licenses first thing in the morning on Monday.
It is expected that the decision will be appealed to the Arkansas Supreme Court. Arkansas Attorney General Dustin McDaniel has said that he supports marriage equality, but will continue defending the state’s anti-equality law. A spokesperson for him, Aaron Sadler, told press, “We respect the Court’s decision, but, in keeping with the Attorney General’s obligation to defend the state constitution, we will appeal. We will request that Judge Piazza issue a stay of his ruling so as not to create confusion or uncertainty about the law while the Supreme Court considers the matter.”
The founder and president of Freedom to Marry, Evan Wolfson, said in a statement, “Today a state circuit judge in Arkansas ruled in favor of the freedom to marry, the latest in a unanimous wave of more than a dozen state and federal judges across the country in recent months. Judge Piazza held that there is no good reason for discriminating against couples and their loved ones just because they are gay. With more than 70 marriage cases now making their way through the courts and five federal appellate courts now hearing arguments and soon to rule, today’s decision out of Arkansas underscores that all of America is ready for the freedom to marry.”
The full text of the decision can be read here.