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Arkansas same-sex marriage ban struck down

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The Associated Press is reporting that a federal judge has struck down Arkansas’ ban on same-sex marriage:

A federal judge struck down Arkansas’ gay marriage ban on Tuesday, which could pave the way for county clerks to resume issuing licenses.

U.S. District Judge Kristine Baker ruled in favor of two same-sex couples who had challenged a 2004 constitutional amendment and earlier state law defining marriage as between a man and a woman, arguing that the ban violated the U.S. Constitution and discriminated based on sexual orientation.

But Baker put her ruling on hold, and the state is expected to appeal it to the 8th U.S. Circuit Court of Appeals, based in St. Louis.

Baker wrote in her ruling that the state’s marriage laws violate the U.S. Constitution by “precluding same-sex couples from exercising their fundamental right to marry in Arkansas, by not recognizing valid same-sex marriages from other states, and by discriminating on the basis of gender.”

Arkansas Attorney General Dustin McDaniel could not immediately be reached.

UPDATE: Here is the decision. We will have more when we read it.

Thanks to Equality Case Files for these filings


  • 1. A_Jayne  |  November 25, 2014 at 3:28 pm

    Any chance this judge's decision will be followed soon by a similar one from the AR supreme court?

  • 2. Raga  |  November 25, 2014 at 3:37 pm

    Quick summary: Bound by the Eighth Circuit in Bruning, sexual orientation is not a suspect class, and the ban survives rational basis review on grounds of sexual orientation discrimination. However, the ban is also gender discrimination and fails intermediate scrutiny. The ban also infringes on the fundamental right to marry and fails strict scrutiny. The ban does not impermissibly infringe on the right to travel.

    There is a stay pending appeal to the Eighth Circuit.

    Now I understand why the judge was so silent and didn't ask any questions during oral argument – she had already made up her mind and must have had most of this written up by then!

  • 3. jdw_karasu  |  November 25, 2014 at 3:58 pm

    Totally agree.

    Extremely nimble ruling, dealing with Bruning rather than ignoring it, finding her way through it by creating a firewall of what it deals with while walking down the path she opines it doesn't deal with.

    We've all have a lot of favorite opinions/rulings, and I doubt this will rank high for any of us. But we probably should remember this one for being technically well crafted to deal with an extremely tough set of circumstances left in the wake of Bruning. Big kudos to Judge Baker.

  • 4. DrBriCA  |  November 25, 2014 at 4:18 pm

    I definitely thought the Mississippi judge would've issued his ruling by now, given how much he said at that hearing. I wasn't expecting such fast turnaround from Judge Baker!

    Headline should read: "Baker kills Baker"

  • 5. DrBriCA  |  November 25, 2014 at 6:33 pm

    Well, I stand corrected. Congrats to Mississippi!

  • 6. RnL2008  |  November 25, 2014 at 4:38 pm

    Well, Congratulations for the folks in Arkansas… on to the 8th and hopefully the 8th has a different ruling this time around, but even if not, it will still be off to SCOTUS!!!

  • 7. jdw_karasu  |  November 25, 2014 at 4:47 pm

    Looks like the 8th has Missouri and Arkansas getting teed up, except…

    Missouri hasn't filed their appeal yet, with the clocking ticking until 12/8 or 12/9. Arkansas is ultra fresh. So given all the likely briefing schedules when the appeals get filed, and the holidays, it's very unlikely that the 8th will have time to rule before SCOTUS takes up one of the 6th cases… if they take one up in this term as we all hope.

    The other states in the 8th all have cases pending: Nebraska, North Dakota & South Dakota. The Nebraska & North Dakota don't seem likely to have a ruling prior to SCOTUS taking one up this term. On the other hand, South Dakota has their briefings completing on 12/8, and has already done some of the moves that Judge Baker did on dealing with Bruning and Baker, likely tipping her hands.

    It would be extremely cool if SCOTUS takes up one of the 6th cases with the states in the 8th being:

    2-0 States overturning on their own (Iowa & Minnesota)
    3-0 District Decisions (Arkansas, Missouri, SD)
    0-0 Pending in District Court (Nebraska & ND)
    0-0 8th Circuit getting a bite at the apple

    I like that record. 🙂

    Now if we can get a nice slow role from the 5th after their hearing (Jan 9th or so), taking a Sutton-ish pace to write up their two opinions rather than a Posner-ish pace, then we'll have no more harm over there.

  • 8. Ryan K (a.k.a. KELL)  |  November 25, 2014 at 4:51 pm

    Favorite line so far: "This Court determines that the Sixth Circuit’s reasoning is not as persuasive on this point as that of the Fourth, Seventh, Ninth, and Tenth Circuits.

    BOOM back at ya Sutton! Getting trashed at the discount court level before the SCOTUS comes hammering down from above!

  • 9. Jen_in_MI  |  November 25, 2014 at 4:56 pm

    Discount court! I love it. 🙂

  • 10. Ryan K (a.k.a. KELL)  |  November 25, 2014 at 5:12 pm

    Damn it, damn it, damnit! District Court! Stupid iPad. 🙂

    A Happy Thanksgiving to you in MI there Jen – that's my home state, had a good 22 Thanksgivings there with the family!

  • 11. DACiowan  |  November 25, 2014 at 5:37 pm

    The number of issuing counties in Kansas is 36, covering 70.7% of the population. Wiki page. Let it go, Brownback, we can't hold back anymore.

  • 12. guitaristbl  |  November 25, 2014 at 5:38 pm

    Wow that was quick, much quicker than I expected. And the way this judge found her way through Bruning and the limitations it imposes is impressive I have to admit !

    It does not lead to any immediate issuing of licenses or recognition of marriages so it does not turn any state blue on the ME map (in fact Arkansas remains the same colour it was before) but its yet another ruling in favour of equality to add to a big pile, and its another source for attorneys and justices to take quotes and ideas from.

    Waiting for the big one here though : the ruling from the Arkansas Supreme Court. I wonder if it will come sooner than the 4-5 weeks it usually takes for them to issue rulings.

  • 13. yyyAllenyyy  |  November 25, 2014 at 6:15 pm

    HRC just tweeted that the SSM ban was overturned in Mississippi.

  • 14. Ryan K (a.k.a. KELL)  |  November 25, 2014 at 6:16 pm

    Mississippi just ruled in favor of marriage EQULAITY at district court level?!?!?

  • 15. Ryan K (a.k.a. KELL)  |  November 25, 2014 at 6:16 pm

    Mississippi just ruled in favor of marriage EQULAITY at district court level?!?!?


  • 16. Ryan K (a.k.a. KELL)  |  November 25, 2014 at 6:16 pm

    Mississippi just ruled in favor of marriage EQULAITY at district court level?!?!?


  • 17. Ryan K (a.k.a. KELL)  |  November 25, 2014 at 6:16 pm

    Mississippi just ruled in favor of marriage EQULAITY at district court level?!?!?


  • 18. guitaristbl  |  November 25, 2014 at 6:33 pm

    And I was sitting here thinking that the Mississippi ruling is a tad late, given the attitude of judge Reeves…! Quite a remarkable day in comparison to many of the last few : two conservative states in circuits with non binding decision by a federal CA, now have pro equality rulings on district level.
    Individually, they do not stand much of a chance in the most conservative appeals courts of the country but since both the 5th and the 8th won't have time to rule most probably, they are just 2 more decision added on the pile, increasing momentum and pressure on SCOTUS.

    Congrats to both Arkansas and Mississipi !

  • 19. Wolf of Raging Fires  |  November 25, 2014 at 7:42 pm


  • 20. RnL2008  |  November 25, 2014 at 9:09 pm

    That always makes me smile….<3

  • 21. NdiliMfumu  |  November 25, 2014 at 8:20 pm

    In this case, Jerrigan v. Crane, (EDAR 2014, Case No. 4:13-cv-00410 KGB), the court simultaneously determined all the outstanding motions to dismiss and for summary judgment after hearing on Nov. 20, showing thereby quite some determination to effectuate judicial economy and alacrity !

    In her holding, J. Baker, after determining several jurisdictional and prudential (abstention) issues, proceeded to find in line with particularly with the 9th, 10th, 4th and 7th Circuits, that Arkansas's same-sex marriage bans constitute a violation of the US 14th Amendment's Due Process and Equal Protection imperatives, because (1) the State has failed to demonstrate any clear and compelling, legitimate state interest, for which the burden placed on LGBT couples is narrowly tailored to the proffered interest, but not more, and (2) because the SSM bans impermissibly discriminate based on the gender of the individuals that LGBT persons may choose to marry.

    In her analysis, J. Baker tracked the logic pursued by Lawrence, Windsor and the several appellate court marriage equality cases recently the subject of the Supreme Court's denial of certiorari, namely, Latta, Kitchen, Bostic, Baskin and Bishop. The court was limited by the prior holding of the 8CA in Citizens for Equal Protection v. Brunning with respect to the claim that SSM bans violate equal protection because they impermissibly discriminate on the basis of sexual orientation: the 8CA held against this claim. But the court found no such limiting principle in Brunning with respect to the claim of unlawful gender discrimination, nor to the claim that Brunning affirmed the continuing patency of Baker v. Nelson.

    In all the above, the decision was quite ordinary. J. Baker mentioned the 6CA's controversial decision, but found its logic unpersuasive in light of existing Supreme Court precedents and the holdings of the other 4 appellate courts in the cases above.

    One note of criticism is that J. Baker made at least one obvious error, notably in holding that the court did not, in fact, evaluate the Plaintiff's claim to a "liberty interest" protected by the 14th Amendment. In fact, the court found that Plaintiffs have a "right to marry" in the same manner as everyone else, and held that this is a fundamental right. But this holding necessarily implies that Plaintiffs have "a liberty interest protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution", for that is the substantial basis on which the Supreme Court has often held against state intrusions on this right, notably, in Loving, Zablocki, Turner and Windsor (there, under the 5th Amendment). The court's insistence to the contrary is very puzzling and likely is merely inartfully written.

    This case will surely go to the 8th Circuit Court of Appeal in due course. As soon as the Supreme Court accepts the DeBoer v. Snyder Case from the 6CA, it should issue a general order staying all other like cases, including this one, until DeBoer is decided.

  • 22. NdiliMfumu  |  November 25, 2014 at 8:21 pm

    Actually, the Arkansas Supreme Court will likely now put the Wright case, there, on hold, pending the final determination of the Jerrigan case before the 8CA.

  • 23. Raga  |  November 25, 2014 at 8:52 pm

    Hmm… not necessarily. I'd agree if the only issues raised before the Arkansas Supreme Court were the federal claims, but there are also state constitutional claims made, which the Court can freely and independently rule on, and there is no need to wait. Plus, if that happens and the Court invalidates the amendment on state constitutional grounds, the federal appeal will be moot. On the other hand, it could take the Eighth Circuit a while to decide, and then another appeal from there to the US Supreme Court, which can take several months. (If SCOTUS grants cert on a case for argument and decision this term, then things would be different.)

  • 24. MichaelGrabow  |  November 26, 2014 at 7:11 am

    From that link:

    Likes several states, Arkansas and Mississippi had voter-approved constitutional amendments pass in 2004 that defined marriage between one man and one woman.

    Several? Does the writer know what that word means?

  • 25. josejoram  |  November 26, 2014 at 2:29 pm

    I wonder if the growing amount of decisions has stablished in the short term a sort of "doctrine" on sex based discrimination related to eligibility and to capacity in marriage matters.

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