Rulings Offer Hope For Same-Sex Couples

by Mark Friedman  on Monday, Feb. 24, 2014 12:00 am  

A Little Rock attorney challenging the Arkansas Constitution’s ban on same-sex marriage said the recent string of federal rulings striking down same-sex marriage prohibitions gives him hope that the same will happen in Arkansas.

“With every domino that falls, we feel more encouraged,” said attorney Jack Wagoner III of Little Rock, who is representing a number of same-sex couples in lawsuits in U.S. District Court and Pulaski County Circuit Court. “As these decisions continue to pile up and pile up, I think it increases the likelihood that the court here is going to follow suit.”

Earlier this month, a federal judge ruled that Virginia’s ban on same-sex marriage was unconstitutional, which came on the heels of similar decisions out of federal courts in Utah and Oklahoma.

But just because there has been a number of favorable rulings for plaintiffs, it doesn’t mean the Arkansas plaintiffs’ case is a slam dunk.

In the recent rulings, the federal judges have relied on the landmark June 2013 U.S. Supreme Court decision, United States v. Windsor, which struck down the federal Defense of Marriage Act. That ruling meant the federal government must recognize same-sex marriages in states where they are legal.

But the ruling still left a lot open to interpretation, said Harvard Law School Professor Michael Klarman.

“The way that the opinion in Windsor is written, you can either interpret it as a federalism decision that says Congress doesn’t have the power to come up with the definition of marriage independently of the states,” Klarman said. “Or you could read it … [in a way] that would suggest that there’s simply a constitutional problem with any level of government not recognizing same-sex marriages.”

The ruling was intentionally written to be ambiguous, which means the lower court judges are free to rule in either direction depending on their own predilections, Klarman said.

The federal judges in the Virginia, Oklahoma and Utah cases were younger, liberal and appointed by President Obama, he said.

“Other judges, older more conservative Republican appointees, would no doubt interpret Windsor the other way,” Klarman said.

In Arkansas, Wagoner’s federal case has been assigned to U.S. District Judge Kristine Baker, 42, an Obama appointee.

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