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As in Oklahoma, Arkansas gay marriage ban could be overturned

story by Ryan Saylor
rsaylor@thecitywire.com

News late Tuesday (Jan. 14) that Oklahoma's ban on gay marriage had been overturned on grounds that it violated the equal protection clause of the 14th Amendment caught many off guard.

While the ruling by a federal judge in Tulsa has been stayed pending the appeal of a similar ruling in Utah, the expected change to Oklahoma law which would allow for gay marriage in the traditionally conservative state has some Arkansans wondering how this will impact the natural state.

Matt Campbell, an attorney with Pinnacle Law Firm in Little Rock and the left-leaning blogger behind the Blue Hog Report, said while there has been excitement within some liberal circles about what this ruling could mean for other southern states like Arkansas, it will not immediately effect any legislation or legal rulings.

"I don't know that it influences it directly," Campbell said, adding that while the federal case will not have a direct impact on Arkansas, it does mean a similar ruling could take place here.

"If you had asked me a week ago to make a list of the last ten states where gay marriage would have been legal, Oklahoma would not have been on that list," he said. "The whole federal (courts) changing things is kind of the only way it will happen. It does make you wonder if it could happen here."

POSSIBLE PIAZZA RULING
The only case pending in Arkansas at this point appears to be Wright, et al., v. State, a case being heard by Circuit Judge Chris Piazza in Little Rock.

Campbell said there is a good chance Piazza could follow in the footsteps of U.S. Senior District Judge Terence Kern, using the 14th Amendment's equal protection clause to overturn the Arkansas ban on gay marriage (Amendment 83), passed in 2004 with 753,770 votes for and 251,914 against.

"More or less, (the plaintiff in the Arkansas case are making) the same argument as the Oklahoma case. They are arguing it's an equal protection violation to define it as one man and one woman. That's what the Oklahoma judge used to overrule the law — you can't amend away certain rights is more or less what they're arguing."

Campbell was quick to note that Piazza was the same judge who ruled the 2008 Arkansas constitutional amendment banning gay adoption as illegal. His ruling was eventually upheld by the Arkansas Supreme Court in 2011.

It is cases like the one struck down Tuesday in Oklahoma and the one in court in Little Rock that Campbell said are likely to result in gay marriage coming to Arkansas, though Campbell said he expects the issue to not be settled on a state by state basis, but instead by a ruling of the U.S. Supreme Court.

"I think eventually you'll have to have the Supreme Court involved because you'll have a federal court that will probably some time soon goes against the (federal court in Tulsa)," he said. "Then you'll have disagreement among the courts and then the Supreme Court will decide."

FAMILY COUNCIL REACTION
Campbell's assertion that the Supreme Court will have to get involved is the same prediction of the Arkansas Family Council, a Little Rock non-profit that promotes family values. President Jerry Cox of the Family Council said Wednesday that while the Oklahoma ruling did not change Arkansas law, he believes the case will land at the highest court in short order.

"Activists have filed over a dozen lawsuits across the country challenging state marriage amendments in the wake of the U.S. Supreme Court’s DOMA decision last summer," he said in this statement. "It is not surprising out of that many lawsuits they would find one or two federal judges willing to strike down a state marriage amendment. It’s also likely many judges will uphold these amendments as constitutional. Either way, this issue will not be settled until it makes its way to the U.S. Supreme Court.”

Cox also argues that it’s not a certainty that the U.S. Supreme Court will strike down state bans on same-sex marriages. He explained: “When the court struck part of the federal Defense of Marriage Act last summer, the court said states—not the federal government—define marriage. If the U.S. Supreme Court were to go a step farther and say these state marriage amendments are unconstitutional, it would effectively be saying that neither the state nor the federal government has the right to define marriage. That just wouldn’t make sense.”

Campbell said it would likely be two years before any of the cases discussed across the nation are taken up by the Supreme Court, though he said it is likely that more states will see similar rulings resulting in gay marriage being allowed in states that have overwhelmingly voted to ban it, such as Arkansas and Oklahoma, which voted to ban gay marriage in 2004 with over 75% of the vote.

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"It moves so slowly (getting a case to the Supreme Court), that you could have almost a critical mass of states where the law is struck down before it ever gets to the Supreme Court," he said, adding that Arkansas could be one of those states depending on what happens with the case before Piazza.

"My gut feeling is Judge Piazza does strike down the gay marriage ban on equal protection grounds here, which makes the (2014) general election so important," Campbell said. "At some point during the appeals process, you'll have the next attorney general (of Arkansas) stepping into office."

And if that attorney general has a differing point of view from the judge, Campbell said there is every likelihood that the attorney general may not attempt to defend an eventual striking of the gay marriage ban from the books in Arkansas.

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