15-1022 - arkansas plaintiffs' brief

8/9/2019 15-1022 - Arkansas Plaintiffs' Brief

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IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RITA JERNIGAN, et al. APPELLEES

v. CASE NO. 15-1022

LARRY CRANE DEFENDANT

DUSTIN MCDANIEL, et al. APPELLANTS

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

APPELLEES’ BRIEF

WAGONER LAW FIRM, P.A.Jack Wagoner III

Angela MannWagoner Law Firm, P.A.1320 Brookwood, Suites D & E

Little Rock, AR 72202

Phone: (501) 663-5225

Fax: (501) 660-4030

Email: [email protected] Email: [email protected]

Appellate Case: 15-1022 Page: 1 Date Filed: 03/20/2015 Entry ID: 4256616

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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3. Arkansas’s Marriage Laws Do Not Promote the Best Interests

of Children ................................................................................ 20

4. Maintaini ng the Status Quo I s Not a Suf fi cient Basis Upon

Which to Deny Same-Sex Couples Their Fundamental

Rights ........................................................................................ 21

IV. THE DISTRICT COURT CORRECTLY HELD THAT ARKANSAS’S

MARRIAGE BANS AND ANTI-RECOGNITION LAWS

DISCRIMINATE ON THE BASIS OF SEX IN VIOLATION OF THE

EQUAL PROTECTION CLAUSE OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION .......... 23

V. THE DISTRICT COURT CORRECTLY HELD THAT BAKER v.

NELSON DOES NOT CONTROL DUE TO SIGNIFICANTDOCTRINAL DEVELOPMENTS IN THIS AREA OF SUPREME

COURT JURISPRUDENCE ...................................................................... 25

CONCLUSION ....................................................................................................... 29

CERTIFICATE OF COMPLIANCE .................................................................. 30

CERTIFICATE OF SERVICE ............................................................................ 31



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TABLE OF AUTHORITIES

Supreme Court of the United States

Anderson v. Celebrezze,

460 U.S. 780 (1983) ..............................................................................................26

Baker v. Nelson,409 U.S. 810 (1972) ..................................................................... 25, 26, 27, 28, 29

Cleburne v. Cleburne Living Center ,

473 U.S. 432 (1985) ................................................................................. 15, 17, 23

Cleveland Bd. of Educ. v. LaFleur ,

414 U.S. 632 (1974) ..............................................................................................11

Griswold v. Connecticut ,381 U.S. 479 (1965) ..............................................................................................19

Hall v. Florida,134 S. Ct. 1986 (2014) ..........................................................................................15

Heller v. Doe,509 U.S. 312 (1993) ....................................................................................... 17, 20

Hicks v. Miranda,422 U.S. 332 (1975) ..............................................................................................26

Hollingsworth v. Perry,

133 S. Ct. 2652 (2013) ..........................................................................................28

J.E.B. v. Alabama,511 U.S. 127 (1994) ....................................................................................... 24, 25

Lawrence v. Texas,539 U.S. 558 (2004) ...................................................................................... passim

Loving v. Virginia,

388 U.S. 1 (1967) .......................................................................................... passim



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Montana v. Crow Tribe of Indians,

523 U.S. 696 (1998) ..............................................................................................26

New York v. United States,

505 U.S. 144 (1992) ................................................................................................ 8

Powers v. Ohio,49 U.S. 410 (1991) ................................................................................................25

Reno v. Flores,

507 U.S. 292 (1993) ..............................................................................................12

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ..............................................................................................10

Romer v. Evans,517 U.S. 620 (1996) ................................................................................. 16, 17, 20

Schuette v. Coalition to Defend Affirmative Action,134 S. Ct. 1623 (2014) ..........................................................................................14

Skinner v. Oklahoma,

316 U.S. 535 (1942) ................................................................................................ 9

Troxel v. Granville,530 U.S. 57 (2000) .................................................................................................. 9

Tully v. Griffing, Inc.,

429 U.S. 68 (1976) ................................................................................................26

Turner v. Safley,482 U.S. 78 (1987) ................................................................................................10

U. S. Department of Agriculture v. Moreno,413 U.S. 528 (1973) ....................................................................................... 16, 27

United States v. Virginia,518 U.S. 515 (1996) ................................................................................... 3, 12, 24



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Univ. for Women v. Hogan,

458 U.S. 718 (1982) ..............................................................................................12

W. Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ..............................................................................................15

Watson v. Memphis,373 U.S. 526 (1963) ..............................................................................................23

United States v. Windsor ,

133 S. Ct. 2675 (2013) .................................................................................. passim

Wolf v. Colorado,

338 U.S. 25 (1949) .................................................................................................. 3

Zablocki v. Redhail ,34 U.S. 374 (1978) ......................................................................................... 11, 27

United States Courts of Appeals

Baskin v. Bogan,766 F.3d 648 (7th Cir. 2014) ........................................................................ passim

Bishop v. Smith,

760 F.3d 1070 (10th Cir. 2014) .............................................................................. 5

Bostic v. Shaefer ,760 F.3d 352 (4th Cir. 2014) ........................................................................ passim

DeBoer v. Snyder ,

772 F.3d 388 (6th Cir. 2014) .................................................................................. 5

Kitchen v. Herbert ,

755 F.3d 1193 (10th Cir. 2014) .................................................................... passim

Latta v. Otter ,

771 F.3d 456 (9th Cir. 2014) ........................................................................ passim

Perry v. Brown,671 F.3d 1052 (9th Cir. 2012) ..............................................................................20



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Windsor v. United States,

699 F.3d 169 (2d Cir. 2013) .................................................................................27

United States District Courts

Bishop v. Holder ,

962 F. Supp. 2d 1252 (N.D. Okla. 2014) ....................................................... 18, 29

Gill v. Office of Personnel Mgmt.,

699 F. Supp. 2d 374 (D. Mass. 2010) ...................................................................20

Golinski v. U.S. Office of Personnel Mgmt.,

824 F. Supp. 2d 968 (N.D. Cal. 2012) ..................................................................10

Hamby v. Pannell ,

2014 WL 5089399 (D. Alaska Oct. 12, 2014) ......................................................16

Kitchen v. Herbert ,961 F. Supp. 2d 1181 (D. Utah 2013)............................................................ 22, 24

Latta v. Otter ,

19 F. Supp. 3d 1054 (D. Idaho 2014) ..................................................................... 8

McGee v. Cole,2014 WL 5802665 (S.D. W. Va. Nov. 7, 2014) ...................................................23

Windsor v. United States,

833 F. Supp. 2d 394 (S.D.N.Y. 2012) ..................................................................20

Wolf v. Walker , 986 F. Supp. 2d 982 (W.D. Wis. 2014) ......................................28

State Court Cases

Baker v. Nelson,

191 N.W.2d 185 (Minn. 1971) .............................................................................26

Dep’t of Human Servs. v. Cole,2011 Ark. 145 .......................................................................................................21

Goodridge v. Dep’t of Pub. Health,

798 N.E.2d 941 (Mass. 2003) ...............................................................................19



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STATEMENT OF ISSUES

I. THE REASONING OF THE UNITED STATES SUPREME COURT’S

DECISION IN WINDSOR ESTABLISHES THAT ARKANSAS’S

MARRIAGE BANS ARE INVALID

United States v. Windsor , 133 S. Ct. 2675 (2013)

II. THE STATE CANNOT RELY UPON THE PRINCIPLES OF

FEDERALISM TO PERPETUATE DISCRIMINATION

United States v. Windsor , 133 S. Ct. 2675 (2013) Kitchen v. Herbert , 755 F.3d 1193 (10th Cir. 2014)

Bostic v. Shaefer , 760 F.3d 352 (4th Cir. 2014)

Latta v. Otter , 771 F.3d 456 (9th Cir. 2014)

III. THE DISTRICT COURT CORRECTLY CONCLUDED THAT

AMENDMENT 83 AND ARKANSAS’S MARRIAGE LAWS VIOLATE

APPELLEES’ FUNDAMENTAL RIGHT TO MARRY UNDER THE

FOURTEENTH AMENDMENT’S DUE PROCESS CLAUSE

United States Const., Amend. XIV

Loving v. Virginia, 388 U.S. 1 (1967)

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

West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)





AMENDMENT TO THE UNITED STATES CONSTITUTION

United States Const., Amend. XIV

United States v. Virginia, 518 U.S. 515 (1996)City of Cleburne v. Cleburne Living Center , 473 U.S. 432 (1985)



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V. THE DISTRICT COURT CORRECTLY HELD THAT BAKER V.

NELSON DOES NOT CONTROL DUE TO SIGNIFICANT

DOCTRINAL DEVELOPMENTS IN THIS AREA OF SUPREME

COURT JURISPRUDENCE

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

United States v. Windsor , 133 S. Ct. 2675 (2013)

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



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fundamental right. They merely seek equal application of the already recognized

fundamental right to marry. A fundamental right, once established, applies equally

to everyone, including Appellees and other homosexual persons wishing to marry a

person of their same sex. The District Court correctly found that Appellees are

entitled to exercise this freedom to choose whom they marry.

The District Court correctly held that Amendment 83 and Arkansas’s

Marriage Laws violate the Equal Protection Clause because such laws discriminate

on the basis of sex. The principal inquiry on this issue is whether Arkansas’s laws

treat individuals differently because of their sex. The answer is that they do because,

according to Arkansas’s Marriage Laws, Appellees cannot marry their partners

because they are female, but they could do so if they were male.

This Court should affirm the District Court’s decision in its entirety. The

District Court properly held that the United States Constitution protects those

individuals, including Appellees, whom the majority wishes to exclude. The

constitutional rights of the minority are not subject to majority vote. That is, the State

of Arkansas cannot vote away the constitutional rights of same-sex couples simply

because they disagree with the lifestyle of such persons.



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ARGUMENT

“A prime part of the history of our Constitution . . . is the story of the extension

of constitutional rights and protections to people once ignored or excluded.” United

States v. Virginia, 518 U.S. 515, 517 (1996). “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 the essentials of fundamental

rights.” Wolf v. Colorado, 338 U.S. 25 (1949). As the Court stated in Lawrence v.

Texas, 539 U.S. 558 (2004):

[h]ad those who drew and ratified the . . . Fourteenth Amendmentknown the components of liberty in its manifold possibilities, they

might have been more specific. They did not presume to have thisinsight. They knew times can blind us to certain truths and later

generations can see that laws once thought necessary and proper in fact

only serve to oppress. As the Constitution endures, persons in every

generation can invoke its principles in search of their own greaterfreedoms.

Id. at 178 –79. “The lessons of our constitutional history are clear: inclusion

strengthens, rather than weakens, our most important institutions.” Latta v. Otter ,

771 F.3d 456 (9th Cir. 2014). This case presents an opportunity for inclusion — an

opportunity to strengthen the institution of marriage.

Arkansas denies same-sex couples the freedom to marry or stay married in the

eyes of the State through its constitutional and statutory prohibition of marriage

between members of the same sex (“Marriage Bans”) and refusal to recognize valid



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on the basis of gender in violation of the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution.” (Add. 41.) Courts of Appeals in the

Fourth, Seventh, Ninth, and Tenth Circuits have upheld decisions invalidating

similar laws. See Latta v. Otter , 771 F.3d 456 (9th Cir. 2014); Baskin v. Bogan, 766

F.3d 648 (7th Cir. 2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014); Bostic v.

Shaefer , 760 F.3d 352 (4th Cir. 2014); Kitchen v. Herbert , 755 F.3d 1193 (10th Cir.

2014); but see, DeBoer v. Snyder , 772 F.3d 388 (6th Cir. 2014).1 This Court should

follow the Fourth, Seventh, Ninth, and Tenth Circuits and affirm the District Court’s

decision that Arkansas’s marriage laws violate the Due Process Clause and the Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution.

1 Appellants urge this Court to follow the Sixth Circuit Court of Appeals decisionin DeBoer . Appellees respectfully submit that DeBoer was wrongly decided. As

Judge Daughtrey noted in her scathing dissent in DeBoer :

These four cases from our sister circuits provide a rich mine of responses toevery rationale raised by defendants . . . . Indeed it would seem unnecessaryfor this court to do more than cite those cases in affirming the district court

decisions in the six cases now before us. Because the correct result is obvious,

one is tempted to speculate that the majority has purposefully taken the

contrary position to create the circuit split regarding the legality of same-sex

marriage that could prompt a grant of certiorari by the Supreme Court and anend to the uncertainty of status and the interstate chaos that the current

discrepancy in state laws threatens.

DeBoer , 772 F.3d at 430 (Daughtrey, J., dissenting). Since DeBoer , Appellees are

aware of twelve (12) federal courts which have declined to follow its lead and onlyone (1) federal court and one (1) state court which have followed it.



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I. THE REASONING OF THE UNITED STATES SUPREME COURT’S

DECISION IN NDSOR ESTABLISHES THAT ARKANSAS’S

MARRIAGE BANS ARE INVALID

In United States v. Windsor , 133 S. Ct. 2675 (2013), the Supreme Court

invalidated Section 3 of the federal Defense of Marriage Act (“DOMA”), wherein

Congress had defined “marriage” for purposes of all federal laws to include only

marriages of opposite-sex couples. The Windsor Court framed the issue presented

as “whether the resulting injury and indignity [resulting from adherence to DOMA’s

anti-recognition principle] is a deprivation of an essential part of the liberty protected

by the Fifth Amendment.” Id. at 2692. The Windsor Court affirmed the “equal

dignity” of same-sex couples’ relationships, noting that the right to intimacy

recognized in Lawrence “can form ‘but one element in a personal bond that is more

enduring.’” Windsor , 133 S. Ct. at 2692 – 93 (quoting Lawrence, 539 U.S. at 567).

After conducting a thorough analysis of the rights at issue, the Windsor Court

held that DOMA “violate[d] basic due process and equal protection principles.” Id .

at 2693. The Court concluded that “[t]he avowed purpose and practical effect of the

law here in question are to impose a disadvantage, a separate status, and so a stigma

upon all who enter into same-sex marriages.” Id . Marriage Bans and Anti-

Recognition Laws “divest[] married same-sex couples of the duties and

responsibilities that are an essential part of married life and that they in most cases

would be honored to accept.” Id. at 2695. Such laws “tell[] those couples, and all the



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world, that their otherwise valid marriages are unworthy.” Id. at 2694. “This places

same-sex couples in an unstable position of being in a second-tier marriage.” Id.

“The differentiation demeans the couple [and] humiliates tens of thousands of

children now being raised by same-sex couples. The law . . . makes it even more

difficult for the children to understand the integrity and closeness of their own family

and its concord with other families in their community and in their daily lives.” Id.

Government interference with same-sex couples’ constitutional rights cannot

stand when, as here, “no legitimate purpose overcomes the purpose and eff ect to

disparage and to injure those whom . . . marriage laws [are designed to] protect in

personhood and dignity.” Id. at 2696. Although Windsor addressed a federal law, the

Court’s reasoning applies with equal force to the Arkansas laws at issue here.

II. THE STATE CANNOT RELY UPON THE PRINCIPLES OF

FEDERALISM TO PERPETUATE DISCRIMINATION

The State improperly claims that Windsor is a federalism decision.

(Appellants’ Br. 11–15.) “Although it is true that Windsor resolved tension between

a state law permitting same-sex marriage and a federal non-recognition provision,

the Court's description of the issue indicates that its holding was not solely based on

the scope of federal versus state powers.” Kitchen, 755 F.3d at 1206. In fact, the

Windsor Court made clear that its decision was not a federalism decision, stating

that “[t]he State's power in defining the marital relation is of central relevance in this

case quite apart from principles of federalism.” Windsor , 133 S. Ct. at 2692



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(emphasis added). The District Court thus properly concluded that “Windsor did not

rest solely on federalism concerns.” (Add. 22.)

Appellants’ f ederalism argument cannot save Arkansas’s unconstitutional

Marriage Bans and Anti-Discrimination Laws. “Windsor does not teach us that

federalism principles can justify depriving individuals of their constitutional rights;

it reiterates Loving 's admonition that the states must exercise their authority without

trampling constitutional guarantees.” Bostic, 760 F.3d at 379 (citing Loving v.

Virginia, 388 U.S. 1 (1967). “Federalism is not just a bulwark against federal

government overreach; it is also an essential check on state power.” Latta v. Otter ,

19 F. Supp. 3d 1054, 1084 (D. Idaho 2014). “For that reason, ‘federalism’ is no

answer where, as here, individuals claim their state government has trampled their

constitutional rights.” Id. “Our federalist structure is designed to ‘secure[] to citizens

the liberties that derive from the diffusion of sovereign power’ rather than to limit

fundamental freedoms.” Kitchen, 755 F.3d at 1229 (quoting New York v. United

States, 505 U.S. 144, 181 (1992)).

Although the State is correct that domestic relations law is an area typically

reserved for State regulation, Windsor makes clear that the “State laws defining and

regulating marriage, of course, must respect the constitutional rights of persons.”

Windsor , 133 S. Ct. at 2691. “Arkansas undoubtedly may define and regulate the

‘incidents, benefits, and obligations’ of domestic relations within its borders,



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Windsor , 133 S. Ct. at 2692, but these regulations must comport with the United

States Constitution, id., and it is this Court’s duty to examine Arkansas’s marriage

laws against the United States Constitution’s guarantee of individual liberties and

protection of fundamental rights.” (Add. 33.)

III. THE DISTRICT COURT CORRECTLY CONCLUDED THAT

AMENDMENT 83 AND ARKANSAS’S MARRIAGE LAWS VIOLATE

APPELLEES’ FUNDAMENTAL RIGHT TO MARRY UNDER THE

FOURTEENTH AMENDMENT’S DUE PROCESS CLAUSE

The Due Process Clause of the Fourteenth Amendment to the United States

Constitution provides that no state may “deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. amend. XIV, § 1. The Due

Process Clause “guarantees more than fair process . . . . [I]t also includes a

substantive component that provides heightened protection against government

interference with certain fundamental rights and liberties.” Troxel v. Granville, 530

U.S. 57, 65 (2000)(internal citations and quotations omitted).

A. The Right to Marry is a Fundamental Right

“The freedom to marry has long been recognized as one of the vital personal

rights essential to the orderly pursuit of happiness by free men” and is thus “one of

the ‘basic civil rights of man’ protected by the Due Process Clause.” Loving , 388

U.S. at 12 (quoting, Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)). “Under our

Constitution, the freedom to marry . . . resides with the individual and cannot be

infringed by the State.” Id. Thus, “choices to enter into and maintain certain intimate



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human relationships must be secured against undue intrusion by the State because

of the role of such relationships in safeguarding the individual freedom that is central

to our constitutional scheme.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617 – 18 (1984).

“There can be little doubt that the right to marry is a fundamental liberty.” Kitchen,

755 F.3d at 1209. The District Court properly concluded that “the right to marry is

a fundamental right.” (Add. 29.)

The State attempts to reframe the issue as an effort to establish a new right —

the “right to same-sex marriage.” This is incorrect. Such a constricted framing of a

protected freedom based on the identity of those seeking to exercise it “fails to

appreciate the extent of the liberty at stake.” Lawrence, 539 U.S. at 567. “[T]he

Supreme Court has traditionally described the right to marry in broad terms

independent of the persons exercising it.” Kitchen, 755 F.3d at 1215. “[F]undamental

rights are fundamental rights. They are not defined in terms of who is entitled to

exercise them.” Id .; see also, Bostic, 760 F.3d at 376 (Supreme Court cases “speak

of a broad right to marry that is not circumscribed based on the characteristics of the

individuals seeking to exercise that right.”) Supreme Court cases addressing the

“fundamental right to marry” do not recast the issue as “the right to interracial

marriage,” “the right to prisoner marriage,” or “the right to marry persons owing

child support.” Golinski v. U.S. Office of Personnel Mgmt., 824 F. Supp. 2d 968, 982

n.5 (N.D. Cal. 2012)(citing Loving , 388 U.S. at 12; Turner v. Safley, 482 U.S. at 94 –



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96 (1987); Zablocki v. Redhail , 434 U.S. 374, 383 – 86 (1978)). The Court in Loving

did not recognize a new right to “interracial marriage.” but rather affirmed that “[t]he

freedom to marry has long been recognized as one of the vital personal rights

essential to the orderly pursuit of happiness by f ree men.” See Loving , 388 U.S. at

12. The Supreme Court confirmed in Zablocki, 434 U.S. 374, that “[t]he right to

marry is of fundamental importance for all individuals.” Id . at 384.

“The Supreme Court's unwillingness to constrain the right to marry to certain

subspecies of marriage meshes with its conclusion that the right to marry is a matter

of ‘freedom of choice,’ Zablocki, 434 U.S. at 387, that ‘resides with the individual.’”

Bostic, 760 F.3d at 376 (citing Loving, 388 U.S. at 12). Appellants only seek the

same “freedom of personal choice in matters of marriage and family life” that the

Constitution provides for everyone. See Cleveland Bd. of Educ. v. LaFleur , 414 U.S.

632, 639 (1974). The State should not be allowed to deny them this freedom.

The Supreme Court has also declined to limit the scope of fundamental

rights — including the right to marry — based on historical patterns of discrimination.

“Fundamental rights, once recognized, cannot be denied to particular groups on the

ground that these groups have historically been denied those rights.” In re Marriage

Cases, 183 P.3d 384, 430 (Cal. 2002)(internal quotations omitted). “To claim that

marriage, by definition, excludes certain couples is simply to insist that those couples

may not marry because they have historically been denied the right to do so.”



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Kitchen, 755 F.3d at 1216. As the Court stressed in Lawrence, “neither history nor

tradition could save a law prohibiting miscegenation from constitutional attack” in

Loving. Lawrence, 539 U.S. at 577 – 78 (quotation omitted). “[T]he question as stated

in Loving, and as characterized in subsequent opinions, was not whether there is a

deeply rooted tradition of interracial marriage, or whether interracial marriage is

implicit in the concept of ordered liberty; the right at issue was ‘the freedom of

choice to marry.’” Kitchen, 755 F.3d at 1210. The same analysis applies here.

B. The District Court Correctly Applied Strict Scrutiny to Arkansas’sMarriage Bans and Anti-Recognition Laws

The District Court properly held that, “[b]ecause the Arkansas marriage laws

restrict the Jernigans’ and Austins’ fundamental right to marry, these laws are

subject to strict scrutiny.” (Add. 29.) The State may not infringe upon fundamental

rights “unless the infringement is narrowly tailored to serve a compelling state

interest.” Reno v. Flores, 507 U.S. 292, 302 (1993). “The burden of justification is

demanding and rests entirely on the State.” United States v. Virginia, 518 U.S. 515,

533 (1996)(citing Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723 – 24 (1982)).

“The justification must be genuine, not hypothesized or invented post hoc in

response to litigation.” Id. The State cannot meet this exacting standard. “Instead of

explaining why same-sex marriage qua same-sex marriage is undesirable, each of

appellants’ justifications rests fundamentally on a sleight of hand in which same-sex

marriage is used as a proxy for a different characteristic shared by both same-sex



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and some opposite-sex couples.” Kitchen, 755 F.3d at 1220.

The primary rationale stated when Arkansas enacted the statutory prohibitions

in 1997 was “to protect, preserve and enhance the traditional family structure.” S. 5

Am. 2, 81st Gen. Assembly (1997). Appellants have advanced several other

potential justifications, including:

(1) the basic premise of the referendum process, which is that political

power flows from the people to their government on issues of vitalimportance to the public; (2) advancement of procreation by

encouraging the development of biologically procreative relationships;

(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; (4) stability,

uniformity, and continuity of laws in the face of an ongoing public and

political debate about the nature and role of marriage; (5) preservationof the public purposes and social norms linked to the historical and

deeply-rooted meaning of marriage; and (6) a cautious, historicalapproach to governmental social experimentation as democratic,

cultural and scientific discussions proceed.

(Add. 31.) The District Court rejected each of these asserted bases for Arkansas’s

discriminatory marriage laws, holding that “these interests do not address any

specific reasons for the marriage laws at issue; instead, they represent the type of

generalized, post hoc, and litigation-reactive justifications that strict scrutiny

disallows.” (Add. 32.)

Appellants do not dispute this conclusion. They do not even attempt to meet

their burden and they failed to do so in the District Court as well. Instead, “the State

contends that the proper standard for analysis of Amendment 83 and Arkansas’s



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property, to free speech, a free press, freedom of worship and assembly, and other

fundamental rights may not be submitted to vote; they depend on the outcome of no

elections.” Id. (quoting W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638

(1943))(emphasis in original). As the Court stated in City of Cleburne v. Cleburne

Living Center , 473 U.S. 432 (1985), “[i]t is plain that the electorate as a whole,

whether by referendum or otherwise, could not order city action violative of the

Equal Protection Clause, and the city may not avoid the strictures of that Clause by

deferring to the wishes or objections of some fraction of the body politic.” Id. at 448

“[A] primary purpose of the Constitution is to protect m inorities from

oppression from majorities.” Latta, 171 F.3d at 474. While states “are laboratories

for experimentation, . . . those experiments may not deny the basic dignity the

Constitution protects.” Hall v. Florida, 134 S. Ct. 1986, 2001 (2014). “Minorities

trampled on by the democratic process have recourse to the courts; the recourse is

called constitutional law.” Baskin, 766 F.3d at 671. Although “Americans’ ability to

speak with their votes is essential to our democracy[,] . . . the people’s will is not an

independent compelling interest that warrants depriving same-sex couples of their

fundamental right to marry.” Bostic, 760 F.3d at 379. “The Constitution is also an

expression of the people’s will, and these rationales contradict the very fabric and

structure of the Constitution’s protections of individual rights against majoritarian

and governmental overreach.” (Add. 32.) “Even if the Court employed the lowest



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standard of review, it is illogical to say that [Arkansas’s] same -sex marriage laws

are rationally related to serving the right of citizens to vote on significant changes in

the law. [Arkansas’s] marriage laws governing the institution of marriage have

nothing to do with promoting or ensuring a citizen’s voting rights.” See Hamby v.

Pannell , 2014 WL 5089399, at *10 (D. Alaska Oct. 12, 2014).

D. The State’s Other Asserted Rationales for Arkansas’s

Discriminatory Marriage Laws Are Similarly Inadequate

Arkansas’s Marriage Bans and Anti-Recognition Laws serve no legitimate

government purpose. On their face, the purpose and effect of these laws are to

“impose a disadvantage, a separate status, and so a stigma” upon same-sex couples.

See Windsor 133 S. Ct. at 2693. In Windsor , the Court reaffirmed that ‘“a bare

congressional desire to harm a politically unpopular group of people cannot’ justify

disparate treatment of that group.” Id. (citing U. S. Department of Agriculture v.

Moreno, 413 U.S. 528 (1973)). Arkansas’s interest in treating same-sex couples

differently from opposite-sex couples is the same improper purpose that the Supreme

Court rejected in Windsor : “to impose inequality.” See id. at 2694; see also Romer

v. Evans, 517 U.S. 620, 635 – 36 (1996)(striking down a state constitutional

amendment that classified gay people “not to further a proper legislative end but to

make them unequal to everyone else.”). Nearly every court across the country,

including the District Court and the Fourth, Seventh, Ninth, and Tenth Circuits, has

rejected the State’s asserted bases for similar laws.



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As stated above, Arkansas’s marriage laws must satisfy strict scrutiny because

these laws infringe upon the fundamental right to marry. However, the State’s

asserted justifications cannot satisfy even rational basis review. See Baskin, 766 F.3d

at 656 (“The discrimination against same-sex couples is irrational, and therefore

unconstitutional even if the discrimination is not subjected to heightened scrutiny.”)

Under rational basis review, the asserted state interest must be “legitimate” or

“properly cognizable.” Cleburne, 473 U.S. at 448. The State’s justification must

“find some footing in the realities of the subject addressed by the legislation.” Heller

v. Doe, 509 U.S. 312, 321 (1993). Additionally, the State must demonstrate a rational

relationship “between the classification adopted and the object to be attained.”

Romer , 517 U.S. at 632. “The State may not rely on a classification whose

relationship to an asserted goal is so attenuated as to render the distinction arbitrary

or irrational.” Cleburne, 473 U.S. at 446. “By requiring that the classification bear a

rational relationship to an independent and legitimate legislative end, we ensure that

classifications are not drawn for the purpose of disadvantaging the group burdened

by the law.” Romer , 517 U.S. at 633. “[S]ome objectives—such as ‘a bare desire to

harm a politically unpopular group”—are not legitimate state interests.” Id. “[M]ere

negative attitudes or fear, unsubstantiated by factors which are properly cognizable”

are not permissible bases for differential treatment. Cleburne, 473 U.S. at 448.



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1. Protecting the “Traditional” Notion of Marriage is not a

Sufficient Basis for the Marriage Bans or Anti-Recognition Laws

Arkansas’s Marriage Bans and Anti-Recognition Laws do not continue any

existing tradition other than discrimination against same-sex couples. As Justice

Scalia stated in his dissenting opinion in Lawrence, “‘[p]reserving the traditional

institution of marriage’ is just a kinder way of describing the State’s moral

disapproval of same-sex couples.” Lawrence, 539 U.S. at 601 (Scalia J., dissenting).

“Moral disapproval of this group, like a bare desire to harm the group, is an interest

that is insufficient to satisfy [even] rational basis review.” Id. at 582. “[C]ourts

reviewing marriage regulations, by either the state or federal government, must be

wary of whether ‘defending’ traditional marriage is a guise for impermissible

discrimination against same-sex couples.” Bishop v. Holder , 962 F. Supp. 2d 1252,

1279 (N.D. Okla. 2014). “There are good traditions, . . . bad traditions that are

historical realities such as cannibalism, . . . and traditions that from a public-policy

standpoint are neither good nor bad (like trick-or-treating on Halloween).” Baskin,

766 F.3d at 666. “Tradition per se therefore cannot be a lawful ground for

discrimination —regardless of the age of the tradition.” Id .

The State “cannot credibly argue that their laws protect a ‘traditional

institution’; at most, they preserve the status quo with respect to one aspect of

marriage — exclusion of same-sex couples.” Latta, 771 F.3d at 475. “[I]t is circular

reasoning, not analysis, to maintain that marriage must remain a heterosexual



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The State’s procreation rationale “is ‘so far removed’ from the classification,

[that] it is impossible to credit” and relies on “factual assumptions that are beyond

the ‘limits of rational speculation.’” See Windsor v. United States, 833 F. Supp. 2d

394 (S.D.N.Y. 2012)(quoting Romer , 517 U.S. at 635; Heller , 509 U.S. at 320). As

the Seventh Circuit stated, this justification “is so full of holes that it cannot be taken

seriously.” Baskin, 766 F.3d at 656; see also, Perry v. Brown, 671 F.3d 1052, 1088

(9th Cir. 2012)(“There is no rational reason to think that taking away the designation

of ‘marriage’ from same-sex couples would advance the goal of encouraging

California’s opposite-sex couples to procreate more responsibly.”)

3. Arkansas’s Marriage Laws Do Not Promote the Best Interests ofChildren

“[C]hildren raised by gay and lesbian parents are just as likely to be well-

adjusted as those raised by heterosexual parents.” Gill v. Office of Personnel Mgmt.,

699 F. Supp. 2d 374, 388 (D. Mass. 2010). As the American Psychological

Association stated:

“[s]cientific evidence strongly supports the conclusion that

homosexuality is a normal expression of human sexuality; that mostgay, lesbian, and bisexual adults do not experience their sexual

orientation as a choice; that gay and lesbian people form stable,

committed relationships that are equivalent to heterosexualrelationships in essential respects; and that same-sex couples are no less

fit than heterosexual parents to raise children and their children are no

less psychologically healthy and well-adjusted than children ofheterosexual parents. In short, the claim that legal recognition of

marriage for same-sex couples undermines the institution of marriageand harms their children is inconsistent with scientific evidence.”



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United States v. Windsor , Case No. 12-307, Br. of Am. Psych. Ass’n at 4– 5 (Mar. 1,

2013). “[A] stable two- parent family relationship, supported by the state’s official

recognition and protection, is equally as important for the numerous children . . .

who are being raised by same-sex couples as for those children being raised by

opposite-sex couples (whether they are biological parents or adoptive parents.).” In

re Marriage Cases, 183 P.3d at 433.

The State’s “best interest of the children” rationale belies the current state of

the law in Arkansas. The Arkansas Supreme Court has expressly allowed

homosexual persons to adopt children. See Dep’t of Human Servs. v. Cole, 2011 Ark.

145. The Ninth Circuit addressed a similar argument in Latta, 771 F.3d 456, and

concluded as follows:

Defendants’ argument is, fundamentally, non-responsive to plaintiffs’

claims to marriage rights; instead, it is about the suitability of same-sexcouples, married or not, as parents, adoptive or otherwise. That it is

simply an ill-reasoned excuse for unconstitutional discrimination isevident from the fact that Idaho and Nevada already allow adoption by

lesbians and gays. The Idaho Supreme Court has determined that

“sexual orientation [is] wholly irrelevant” to a person’s fitness or ability

to adopt children. “In a state where the privilege of becoming a child’sadoptive parent does not hinge on a person’s sexual orientation, it is

impossible to fathom how hypothetical concerns about the same

person’s parental fitness could possibly relate to marriage.”

Id. at 473 (internal citations omitted). This same disconnect is present here. Arkansas

is actively denying children the benefits of marriage by preventing same-sex couples

from marrying or enjoying recognition of their marriages. Arkansas’s marriage laws



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thus accomplish the same end result as the Supreme Court admonished in Windsor —

these laws “humiliate[] . . . children now being raised by same-sex couples” and

cause them “financial harm.” See Windsor , 133 S. Ct. at 2694 – 95 see also, Baskin,

766 F.3d at 660 – 65 (explaining that the State has no legitimate interest in protecting

certain children while disregarding the welfare of others).

4. Maintaining the Status Quo Is Not a Sufficient Basis Upon Which

to Deny Same-Sex Couples Their Fundamental Rights

The State’s claims that Arkansas’s marriage laws reflect a “cautious, historical

approach” and “promote uniformity, stability, and continuity of laws” are similarly

unavailing. The District Court properly rejected these rationales, stating that “these

interests do not address any specific reasons for the marriage laws at issue .” (Add.

32.) Appellants have not demonstrated that the State is proceeding with caution. In

fact, the State has presented no evidence that it is doing anything other than

maintaining its discriminatory exclusion of same-sex couples from the institution of

marriage. The only “uniformity, stability, and continuity” that Arkansas’s marr iage

laws promote is the ongoing denial of constitutional rights.

The “wait and see” approach that Appellants advocate, if accepted, “would

turn rational basis review into a toothless and perfunctory review” because “the state

can plead an interest in proceeding with caution in almost any setting.” Kitchen v.

Herbert , 961 F. Supp. 2d 1181, 1213 (D. Utah 2013)(aff’d , Kitchen, 755 F.3d 1193).

Such an approach “fails to recognize the role of courts in the democratic process.”



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McGee v. Cole, 2014 WL 5802665, at *11 (S.D. W. Va. Nov. 7, 2014). “Courts

cannot avoid or deny this duty just because it arises during the contentious public

debate that often accompanies the evolution of policy making throughout the states.”

Id. “Certainly, the exclusion of same-sex couples from marriage is longstanding.”

Id. “The anti-miscegenation laws in Loving were longstanding” too. Id. A “wait and

see” approach was improper then and it is still improper now.

“The basic guarantees of our Constitution are warrants for the here and now

and, unless there is an overwhelmingly compelling reason, they are to be promptly

fulfilled.” Watson v. Memphis, 373 U.S. 526, 532 – 33 (1963). “[A]ny deprivation of

constitutional rights calls for prompt rectification.” Id. The State’s do-nothing

approach is not a sufficient basis for the continuing deprivation of Appellees’

constitutional rights.





AMENDMENT TO THE UNITED STATES CONSTITUTION

The Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution provides that no state shall “deny to any person within its

jurisdiction the equal protection of its laws.” U.S. Const. amend. XIV, § 1. The Equal

Protection Clause “is essentially a direction that all persons similarly situated should

be treated alike.” Cleburne, 473 U.S. at 439. Arkansas’s marriage laws violate the



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Equal Protection Clause because they classify individuals on the basis of their sex.

Arkansas’s marriage laws “involve[] sex-based classifications because [they]

prohibit[] a man from marrying another man, but do[] not prohibit that man from

marrying a woman.” See Kitchen, 961 F. Supp. 2d at 1206. For example, under

Arkansas law, each Appellee cannot marry her partner, but she could marry her

partner if she or her partner were male. The Equal Protection Clause prohibits such

“differential treatment or denial of opportunity” based on a person’s gender in the

absence of an “exceedingly persuasive” justification. United States v. Virginia, 518

U.S. at 532 – 33 (internal quotation marks omitted). The District Court correctly

found that Appellants cannot meet this exacting standard.

Appellants’ argument that “Amendment 83 treats all persons exactly the same

without regard to gender” (Appellants’ Br. 26) misses the point. The sex-based

classifications in Arkansas’s marriage statutes are not immune from heightened

scrutiny simply because they affect men and women in the same manner. “T he

neutral phrasing of the Equal Protection Clause, extending its guarantee to ‘any

person,’ reveals its concern with rights of individuals, not groups.” J.E.B. v.

Alabama, 511 U.S. 127, 152 (1994)(Kennedy, J., concurring). Thus, the relevant

inquiry is whether the law treats an individual differently because of his or her

gender. Id. at 140 – 41.

The Supreme Court in Loving rejected an analogous argument that Virginia’s



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anti-miscegenation law imposed equal restrictions on members of different races,

holding that “mere ‘equal application’ of a statute containing racial classifications is

[not] enough to remove the classification from the Fourteenth Amendment’s

proscription of all invidious racial discriminations.” Loving , 388 U.S. at 8; see also,

Powers v. Ohio, 49 U.S. 410 (1991)(reiterating “that racial classifications do not

become legitimate on the assumption that all persons suffer them in equal degree.”).

The Supreme Court has applied this same reasoning to gender-based classifications.

See J.E.B., 511 U.S. at 140 – 41 (holding that sex-based peremptory challenges are

unconstitutional even though they affect both male and female jurors). This Court

should do the same.

V. THE DISTRICT COURT CORRECTLY HELD THAT BAKER v.

NELSON DOES NOT CONTROL DUE TO SIGNIFICANT

DOCTRINAL DEVELOPMENTS IN THIS AREA OF SUPREME

COURT JURISPRUDENCE

This Court is not bound by the Supreme Court’s summary dismissal for want

of a substantial federal question in Baker v. Nelson, 409 U.S. 810 (1972). This area

of constitutional law has vastly changed since the Baker decision in 1972. As the

District Court noted, “it is difficult to reconcile the Supreme Court’s statement in

Windsor that the Constitution protects the moral and sexual choices of homosexual

couples, Windsor , 133 S. Ct. at 2694, with the idea that state laws prohibiting same-

sex marriage do not present a substantial federal question.” (Add. 24.)

Courts need not “adhere to the view that if the Court has branded a question



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as unsubstantial, it remains so . . . when doctrinal developments indicate otherwise.”

See Hicks v. Miranda, 422 U.S. 332, 344 (1975)(internal quotations omitted).

“Summary dismissals lose their binding force when ‘doctrinal developments’

illustrate that the Supreme Court no longer views a question as unsubstantial,

regardless of whether the Court explicitly overrules the case.” Bostic, 760 F.3d at

373. “‘[S]ubsequent decisions of the Supreme Court’ not only ‘suggest’ but make

clear that the claims before us present substantial federal questions.” Latta, 171 F.3d

at 466.

As the District Court stated, “the summary disposition in Baker is not of the

same precedential value as would be an opinion on the merits.” (Add. 23– 24)(citing

Tully v. Griffing, Inc., 429 U.S. 68, 74 (1976)). “‘A summary disposition affirms

only the judgment of the court below, and no more may be read into [such

disposition] than was essential to sustain that judgment.’” Montana v. Crow Tribe of

Indians, 523 U.S. 696, 714 n.14 (1998)(quoting Anderson v. Celebrezze, 460 U.S.

780, 785 n. 5 (1983)). The judgment affirmed in Baker addressed a Minnesota

marriage statute that was not enacted for the express purpose of excluding same-sex

couples from marriage and which did not indicate on its face whether same-sex

couples could marry. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). Thus, Baker

did not address the constitutionality of intentionally discriminatory measures, like

those at issue here. Additionally, Baker did not — and could not — address the issue



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regarding the recognition of marriages entered into in another state because at that

time no jurisdiction in the world permitted same-sex marriage.

“In the forty years after Baker , there have been manifold changes to the

Supreme Court’s equal protection jurisprudence.” Windsor v. United States, 699

F.3d 169, 179 (2d Cir. 2013). “When Baker was decided in 1971, ‘intermediate

scrutiny’ was not yet in the Court’s vernacular[,] [c]lassifications based on

illegitimacy and sex were not yet deemed quasi-suspect[, and] [t]he Court had not

yet ruled that ‘a classification of [homosexuals] undertaken for its own sake’ actually

lacked a rational basis.” Id. At that time, the Supreme Court had not yet held that

laws enacted for the express purpose of disadvantaging a particular group violate the

requirement of equal protection. See Moreno, 413 U.S. at 534 – 35. The Court in 1971

had not yet held that same-sex couples have the same protected liberty interests in

their relationships as others. Lawrence, 539 U.S. at 578. Nor had the Supreme Court

affirmed that “the right to marry is of fundamental importance for all individuals.”

Zablocki, 434 U.S. at 384. Baker did not even address due process. Baker was

decided in “the dark ages so far as litigation over discrimination against homosexuals

is concerned.” Baskin, 766 F.3d at 660.

“As the Tenth Circuit noted in Kitchen, ‘[t]wo landmark decisions by the

Supreme Court’— Lawrence v. Texas, 539 U.S. 558 (2003), and Windsor , 133 S. Ct.

2675 —‘have undermined the notion that the question presented in Baker is



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insubstantial.’” (Add. 21 – 22)(quoting Kitchen, 755 F.3d at 1205). Specifically, the

Supreme Court in Lawrence held that “intimate conduct with another person . . . can

form but one element in a personal bond that is more enduring. The liberty protected

by the Constitution allows homosexual persons the right to make this choice.”

Lawrence, 539 U.S. at 567. The Windsor Court struck down the federal DOMA

statute defining marriage as between “one man and one woman.” Windsor , 133 S.

Ct. at 2683. These two (2) decisions directly contradict the Court’s dismissal for lack

of a substantial federal question in Baker .

Appellants claim that the fact that “ Baker is not even cited in the Court’s

majority opinion in Windsor . . . indicates that doctrinal developments have not

overridden the precedential effect of Baker.” This argument is flawed. During oral

argument in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), the companion case to

Windsor , Justice Ginsburg stated: “I don’t think we can extract much in Baker v.

Nelson.” Transcript of Oral Argument at 12. Thus it is not surprising that the

opinions in Hollingsworth and Windsor do not mention Baker. See Hollingsworth,

133 S.Ct. 2652; Windsor , 133 S. Ct. 2675. “Not even the dissenters in Windsor

suggested that Baker was an obstacle to lower court consideration of challenges to

bans on same-sex marriage.” Wolf v. Walker , 986 F. Supp. 2d 982, 991 (W.D. Wis.

2014). “The Supreme Court's willingness to decide Windsor without mentioning

Baker speaks volumes regarding whether Baker remains good law.” Bostic, 760 F.3d



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at 373 –74. Thus, “[a]lthough the Supreme Court's decision in Windsor was silent as

to Baker's impact, statements made by the Justices indicate that lower courts should

be applying Windsor (and not Baker) to the logical ‘next issue’ of state prohibitions

of same-sex marriage.” Bishop, 962 F. Supp. 2d at 1277. The Fourth Circuit

concluded that, “[i]n light of the Supreme Court's apparent abandonment of Baker

and the significant doctrinal developments that occurred after the Court issued its

summary dismissal in that case, we decline to view Baker as binding precedent.”

This Court should do the same.

CONCLUSION

For the foregoing reasons, the Court should affirm the District Court’s

decision that Arkansas’s Marriage Bans and Anti-Recognition Laws violate the Due

Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution.

Respectfully submitted,

WAGONER LAW FIRM, P.A.

By: /s/ Jack Wagoner IIIJack Wagoner III, A.B.A. # 89096

Angela Mann, A.B.A. # 2011225

Wagoner Law Firm, P.A.1320 Brookwood, Suites D & E

Little Rock, AR 72202

Phone: (501) 663-5225Fax: (501) 660-4030

Email: [email protected] Email: [email protected]


mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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CERTIFICATE OF COMPLIANCE

This brief complies with the page limitation of Fed. R. App. P. 32(a)(7)(A)

because this brief contains 30 pages. This brief also complies with the type-volume

limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 7,503 words,excluding the parts of the brief which are exempted by Fed. R. App. P.

32(a)(7)(B)(iii).

This brief complies with the typeface requirements set forth in Fed. R. App.P. 32(a)(5) and the type style requirements set forth in Fed. R. App. P. 32(a)(6)

because this brief has been prepared in Microsoft Word using 14-point Times New

Roman font, a proportionally-spaced typeface.

This brief complies with Eighth Circuit Rule 28A(h)(2) because the electronic

files associated with this brief and filed with the Court have been scanned and arevirus-free.

/s/ Jack Wagoner III



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CERTIFICATE OF SERVICE

I, Jack Wagoner III, do hereby certify that, on this date, March 19, 2015, I

submitted the foregoing document with the Clerk of Court for the United States

Court of Appeals for the Eighth Circuit for electronic filing via the Court’s ECF/CMsystem. Participants in this case who are registered CM/ECF users will be served by

the CM/ECF system.

/s/ Jack Wagoner III

15-1022 - arkansas plaintiffs' brief

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