Gay Marriage
Supporters challenge Arkansas ban in wake of Supreme Court indecision
Just last week, the U.S. Supreme Court bypassed a chance to decide the constitutionality of gay marriage when it ruled that plaintiffs in a California case had no standing to challenge a federal judge’s decision striking down Proposition 8, which banned same-sex marriage in that state.
That came on the heels of the court finding the federal Defense of Marriage Act—which denied federal benefits to same-sex couples—to be unconstitutional.
We predicted the California ruling would bring about legal challenges to gay marriage bans in states across the country. Well, one of the first has been filed. In Arkansas. Back in 2004, a constitutional ban on both gay marriage and civil unions passed with about 75 percent of the vote.
The law says that “Marriage consists only of the union of one man and one woman” and that “Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas.”
On Tuesday, a lawsuit was filed in Pulaski County on behalf of 11 same-sex couples, challenging the ban as a violation of the U.S. Constitution.
Claiming marriage is a basic civil right, the plaintiffs say Arkansas’ law violates the Constitution’s full faith and credit clause, which requires states to recognize “public acts, records, and judicial proceedings of every other state.”
Should this case ever reach the Supreme Court, it would be hard for the justices to rule the plaintiff have no standing, as they can make a case for having been harmed under the law.
“Plaintiffs’ continuing and increasing injuries include, but are not limited to, the deprivation of fundamental rights Constitutionally guaranteed, severe humiliation, stigma, emotional distress, psychological harm, financial loss, pain and suffering, all caused by their denial of the right to be married to the person of their choice and have their familial relationship accorded the same dignity and respect as that received by heterosexual families,” the suit says.
It will take some time for this suit to wind its way through the court system, so there is no real danger of the people’s will being thwarted and gay marriage becoming legal in Arkansas for the time being. But in the future? Don’t count it out. Marriage has always been regulated by the states. That’s as it should be, but now the courts have moved in and, in the end, the final decision on same-sex marriage will rest with judges, not the people.