THE PLAINTIFFS: Rita and Pam Jernigan, who are married, and Becca and Tara Austin. who want to marry, seek summary judgment. Brian Chilson

Plaintiffs in the federal court lawsuit challenging the state’s ban on same-sex marriage asked Judge Kris Baker today for summary judgment.

They said there are no facts in dispute and that the state’s statutory and constitutional bans deny the plaintiffs in the lawsuit equal protection and due process of law required by the 14th Amendment to the U.S. Constijution. This argument has prevailed in case after case across the United States.


Circuit Judge Chris Piazza found just such a constitutional violation in a state court lawsuit, but that decision has been stayed by the Arkansas Supreme Court. That stay could provide a stronger angle for the federal lawsuit to proceed, when a judge might otherwise defer to the state court.

The suit is on behalf of same-sex couples unable to marry in Arkansas and couples legally married in other states but deprived of privileges given to other legally married couples in Arkansas. Angela Mann and Jack Wagoner are representing the plaintiffs. Wagoner also worked with Cheryl Maples in the state court lawsuit, an unrelated action with the different parties but the same objective.


The argument addresses a 2006 8th Circuit Court of Appeals ruling in the Bruning case that turned aside constitutional challenges to a Nebraska same-sex marriage prohibition. The brief notes this ruling preceded the important U.S. Supreme Court ruling in the Windsor case and subsequent cases adopting that opinion as guiding the invalidation of bans.

The Supreme Court has expressly rejected the asserted state interests relied upon in Bruning to justify laws that discriminate against same-sex couples. Bruning cursorily concluded that marriage bans must be valid because they have existed in the past and because only opposite-sex couples can biologically procreate. As the court noted in Bourke, “[t]his view was entirely consistent with the then-prevailing state and federal jurisprudence. A lot has changed since then.”  All courts to consider rationales once accepted in Bruning—upholding the traditional definition of marriage and promoting procreation—have concluded that such rationales are insufficient bases upon which to discriminate against same-sex couples. See De Leon, (“[p]reserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.)); Perry, “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.”) This Court should thus decline to follow Bruning’s outdated and overruled reasoning for upholding such discriminatory laws.

The Eighth Circuit noted in Bruning that, “to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution.” This is no longer true. Since the Eighth Circuit decided Bruning in 2006, the Supreme Court has specifically held that a statute codifying the “traditional definition of marriage” violates both the Due Process Clause and the Equal Protection Clause. The Court should apply Windsor rather than Bruning.

In a related matter, Wagoner noted the attorney general’s slow response in the appeals process of the Piazza ruling. The record of the case was prepared, filed and picked up by the attorney general’s office on July 3. Two weeks later, it has still not been filed with the Arkansas Supreme Court. Until it is filed, the briefing schedule cannot be set. A briefing schedule will run a minimum of 75 days. Plaintiffs would like to have this case decided this year, but delayscould push it into next year.


I asked Attorney General Dustin McDaniel and his spokesman why the state hadn’t lodged the record of the case. The only reply was that the office would file the record “well before” the Aug. 8 deadline. 

Membership of the court could be important in this case. Two justices, Donald Corbin and Cliff Hoofman, will leave at the end of this year. Appeals Court Judge Rhonda Wood, who ran by emphasizing Republican ties and as a  “conservative” judge is one of the replacements. The other is Appeals Court Judge Robin Wynne. Corbin has joined in past historic decisions by the court against discrimination against gay couples.