Benji Hardy and Brian Chilson are at the federal courthouse where a hearing is underway in Judge Kristine Baker’s court on the federal lawsuit challenging the Arkansas ban on same-sex marriage on U.S. constitutional grounds.

Jack Wagoner,
who joined Cheryl Maples in the state challenge, filed this lawsuit and has had assistance from others. He says his argument on a motion for summary judgment includes a PowerPoint display of the march of cases across the United States that have overturned state bans. The map above gives a look at the dramatically changed landscape in a country where, 10 years ago, one state’s legalization (Massachusetts) prompted a flurry of state legislation in opposition, pushed by right-wing evangelical political groups.

The state is asking that Wagoner’s suit be dismissed. I’d make a sizeable bet that is ONE outcome not likely after today’s hearing. The plaintiffs include people wanting to marry in Arkansas and people already legally married in other states but denied protection of laws that benefit married couples.



The hearing lasted a little over two hours, with Judge Baker listening to arguments without comment or questions. As expected, she will subsequently issue her decision in writing.


“I’m not going to rule from the bench,” she said after arguments had concluded. “It’s not my habit or practice.”

Much of the ground covered by Wagoner and Maples was identical to what they said this morning at the Arkansas Supreme Court: The state’s “compelling interest” arguments don’t hold water, and gay couples are being denied a fundamental right. But the focus this afternoon was on federal precedent, not Arkansas law.


“The vast weight of authority in the courts is with the plaintiffs,” said Wagoner, noting the flood of recent decisions from the federal judiciary striking down state bans on same sex marriage. “It’s the fastest moving legal issue I’ve seen in 25 years,” he said.

Federal circuit courts around the nation have ruled bans on same-sex marriage are unconstitutional, with the sole exception of the Sixth Circuit. And, a district court in Missouri — which, like Arkansas, is in the Eighth Circuit – struck down that state’s ban on gay marriage only a couple of weeks ago. Another district judge in South Dakota is has yet to rule on a similar amendment, but she’s rejected a request for dismissal from the defense, which was using arguments substantially the same as what Arkansas is arguing here. (UPDATE: I originally said that the judge had struck down the South Dakota law, but that was incorrect.)

Such actions from fellow district courts aren’t binding on the Eastern District of Arkansas, but the fact that other federal judges within the Eighth Circuit have ruled for equality helps provide ammunition to the plaintiffs.

And, of course, the plaintiffs also drew on the U.S. Supreme Court decision in Windsor, which struck down discriminatory provisions of the federal Defense of Marriage Act (DOMA). Opponents of same sex marriage argue that the Windsor decision doesn’t prevent states from imposing a ban on same-sex marriage. It only said the federal government can’t impose its own definitions on the institution of marriage, they say, so the question is up to the states. 


Wagoner disagrees. “The Windsor decision paints with a very broad brush,” he said.

In arguing to retain Arkansas’s ban on same-sex marriage, the defense for the state primarily drew on two precedents, a 1971 U.S. Supreme Court case called Baker v. Nelson and a 2006 decision by the Eighth Circuit, Citizens for Equal Protection v. Bruning.

Baker, which was cited in the recent Sixth Circuit decision upholding Michigan’s ban, was a challenge to a Minnesota law limiting marriage to persons of the opposite sex. The U.S. Supreme Court dismissed the case without hearing it. Today, Assistant Attorney General Nga Mahfouz argued that “Windsor did nothing to overrule Baker. It never mentions Baker … it’s still good law.” But Wagoner challenged that assertion, noting that the 1971 case was never actually heard by the high court, and thus carries less weight as precedent. Also, it’s four decades old, and things have changed dramatically in the intervening decades. He quoted Justice Ruth Bader Ginsberg who has said, “Baker was in 1971 … I don’t think we can extract much from Baker.”

Then there’s Bruning, a 2006 suit which challenged the constitutionality of Nebraska’s amendment preventing gay couples from marrying. It was decided by the Eighth Circuit in favor of Nebraska. On the surface, Bruning seems to establish a difficult precedent for the plaintiffs to overcome: Here’s the appellate court for our own federal circuit, eight years ago, upholding a state ban similar to Arkansas’s. “The court implicitly found that there was no right to same-sex marriage in Bruning,” Mahfouz told Judge Baker today.

But Wagoner argued that the Bruning decision was decided on narrow grounds that don’t apply here. The Eighth Circuit never directly considered the issue of discrimination based on gender or sexual orientation, nor on the “fundamental right to marry” which Wagoner and Maples are arguing. Instead, in Bruning, the appellate court rejected the plaintiffs’ claims that they had been shut out of the political process by which the Nebraska amendment became law. The two recent federal district court decisions in Missouri and South Dakota made note of that fact, he said.

“I can’t speak to why the district court in Missouri would ignore [Bruning],” said Mahfouz, but she insisted that Bruning’s scope was broad enough to justify upholding Arkansas’s own ban.

Now, as with the case before the Arkansas Supreme Court, we’ll just have to wait and see.