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Arkansas ban on same-sex marriage is overturned (Updated)

Editor’s note: Story is updated with additions and changes throughout.

The ban on same-sex marriages has been struck down Friday (May 9) by Pulaski County Circuit Judge Chris Piazza in his decision with Wright v. Arkansas.

Arkansas voters in 2004 approved Amendment 83 which legally defined marriage as between one man and one woman. The language, which was approved by 74.9% of those voting in the 2004 general election, makes it unconstitutional for the state to recognize or perform same-sex marriages or civil unions. Legal status for unmarried persons which are 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.

The Wright case also sought to strike down a 1997 Arkansas law restricting same-sex marriage rights.

Piazza’s ruling follows the January 2014 ruling by U.S. Federal Judge Terence Kern that struck down Oklahoma’s ban on gay marriage. Kern, based in Tulsa, said the gay marriage ban approved by Oklahoma voters in 2004 violated the U.S. Constitution's 14th Amendment under the equal protection clause.

"I want to congratulate the plaintiffs in this case, as well as lead attorney Cheryl Maples and co-counsel Jack Wagoner, on this historic victory for Arkansas values,” Human Rights Campaign president and Arkansas native Chad Griffin said in a statement following the ruling. “All across my home state, throughout the South, and around the country, LGBT people and their families are seeking basic respect and dignity. This victory is an essential step on the journey toward full equality for all."

Piazza ended his ruling with a strong statement supporting broad access to marriage rights.

“It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it,” Piazza wrote. (Link here for a PDF copy of the ruling.)

Piazza also noted in his ruling case law that supported overturning Amendment 83.
• “Justice Brown, in Arkansas Dep't of Human Serttices v. Cole, noted ‘that Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution.’ 20ll Ark. 145, 380 S.W. 3d. 429, 435 (2011) (citing Jegley, id. at 632).”

• “The Arkansas Supreme Court applied a heightened scrutiny and struck down as unconstitutional an initiated act that prohibited unmarried opposite-sex and same-sex couples from adopting children. Id at 442.”

• “The exclusion of same-sex couples from marriage for no rational basis violates the fundamental right to privacy and equal protection as described in Jegley and Cole, supra. The difference between opposite-sex and same-sex families is within the privacy of their homes.”

Arkansas Attorney General Dustin McDaniel, who is on record as supporting same-sex marriage rights, said Friday he would immediately move to file an appeal of Piazza’s ruling. As Arkansas’ attorney, McDaniel is obligated to defend a constitutional amendment.

“We respect the Court’s decision, but, in keeping with the Attorney General’s obligation to defend the state constitution, we will appeal,” McDaniel’s office said in a statement to Arkansas Times. “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.”

According to the Human Rights Campaign (HRC), the Arkansas case on which Piazza ruled is one of more than 70 marriage equality cases in the U.S. judicial system. These cases have been filed in 29 states plus Puerto Rico and account for hundreds of plaintiffs taking on state marriage bans.

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Also according to HRC, same-sex couples can legally marry in 17 states and the District of Columbia, and 33 states have a law or constitutional amendment restricting marriage to the union of one man and one woman.

Arkansas opinion on the issue leans against same-sex marriage, according to a January 2014 poll conducted by Talk Business-Hendrix College. The Jan. 19 survey of 520 likely Arkansas voters included a question about same-sex marriage.
Q: Which of the following policy positions most closely resembles your own view regarding relationships between two people of the same sex?
21.5% Gay couples should be allowed to legally marry
24% Gay couples should be allowed to form civil unions or domestic partnerships, but not legally marry
50% There should be no legal recognition of a gay couple’s relationship
4.5% Don’t know

“Survey data across time has show that, while Americans as a whole are shifting views on marriage equality consistently and fairly swiftly, Arkansas is one of a handful of states where attitudes are changing decidedly more slowly,” Dr. Jay Barth, professor of political science at Hendrix College, said in his analysis of the poll results.

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