COME NOW the Director of the Arkansas Department of Health, in his official capacity, and his successors in office, and the Director of the Arkansas Department of Finance and Administration, in his official capacity, and his successors in office (the State Defendants or the State), by and through undersigned counsel, and offer the following Motion for Summary J udgment pursuant to Rule 56 of the Arkansas Rules of Civil Procedure. The State Defendants are represented herein by the Office of the Arkansas Attorney General pursuant to Ark. Code Ann. 25-16-702(a), which requires the Attorney General to serve as counsel for state agencies and entities when requested. See id. (The Attorney General shall be the attorney for all state officials, departments, institutions, and agencies. Whenever any officer or department, institution, or agency of the state needs the services of an attorney, the matter shall be certified to the Attorney General for attention.).
1. At the general election held on November 2, 2004, Arkansas voters approved a constitutional amendment by a vote of 753,770 (74.95%) for, to 251,914 (25.05%) against, see www.sos.arkansas.gov/electionresults/index.php?elecid=66, which became Amendment 83 to the Arkansas Constitution. Amendment 83 provides in full: 1. Marriage Marriage consists only of the union of one man and one woman. 2. Marital Status Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the legislature may recognize a common law marriage from another state between a man and a woman.
3. Capacity, rights, obligations, privileges and immunities The Legislature has the power to determine the capacity of persons to marry, subject to this amendment, and the legal rights, obligations, privileges, and immunities of marriage.
Id.
2. The Arkansas General Assembly had previously adopted Act 144 of 1997, codified at Ark. Code Ann. 9-11-109, which declared that [m]arriage shall only be between a man and a woman. A marriage between persons of the same sex is void. See also Ark. Code Ann. 9-11-107(b) (Arkansas recognition of certain foreign marriages shall not apply to a marriage between persons of the same sex). Finally, Act 144, codified at Ark. Code Ann. 9- 11-208, provides: (a)(1)(A) It is the public policy of the State of Arkansas to recognize the marital union only of man and woman.
(B) A license shall not be issued to a person to marry another person of the same sex, and no same-sex marriage shall be recognized as entitled to the benefits of marriage. 3
(2) Marriages between persons of the same sex are prohibited in this state. Any marriage entered into by a person of the same sex, when a marriage license is issued by another state or by a foreign jurisdiction, shall be void in Arkansas, and any contractual or other rights granted by virtue of that license, including its termination, shall be unenforceable in the Arkansas courts.
(3) However, nothing in this section shall prevent an employer from extending benefits to a person who is a domestic partner of an employee.
Id.
3. These Arkansas statutes mirror the laws of a majority of other states that likewise limit marriage to opposite-sex couples and frequently provide that state law does not recognize marriage between persons of the same sex, even if obtained in a jurisdiction that allows same-sex marriage. Though a few state supreme courts have struck down laws prohibiting same-sex marriage under provisions of state constitutions, and a few federal district courts have struck down traditional marriage laws under the United States Constitution, most of these laws have stood unchallenged or have been upheld against challenges in both state and federal courts and remain in effect today. 4. Plaintiffs are gay and lesbian couples living in Arkansas, three children, and an individual who seeks a divorce from a same-sex spouse she married in another jurisdiction (Plaintiffs). Plaintiffs challenge the constitutionality of Amendment 83 to the Constitution of Arkansas and Arkansas Act 144 of 1997. Plaintiffs generally allege that they are in long-term, committed relationships; that some of them have married in other jurisdictions; and that some of them have attempted to marry in Arkansas but have been denied because same-sex marriage is prohibited in Arkansas under Amendment 83. The State does not dispute these general factual allegations. 4
5. Plaintiffs contend that Amendment 83 and Act 144 of 1997 (1) violate various provisions of the Declaration of Rights of the Arkansas Constitution, art. 2, 1 to 29 (Complaint, 170 176); (2) deprive Plaintiffs of the right to marry under the Due Process Clause of the Fourteenth Amendment of the United States Constitution (id., 177 183); (3) deprive Plaintiffs of their liberty interest in autonomy, family integrity, and intimate association under the Due Process Clause of the Fourteenth Amendment (id., 184 189); (4) deprive Plaintiffs of their liberty interest in valid marriages under the Fourteenth Amendment (id., 190 195); (5) deprive Plaintiffs of the right to interstate travel under the Fourteenth Amendment (id., 196 202); (6) discriminate against Plaintiffs on the basis of sexual orientation in violation of the Equal Protection Clause of the Fourteenth Amendment (id., 203 217); and (7) discriminate against Plaintiffs on the basis of gender in violation of the Equal Protection Clause of the Fourteenth Amendment (id., 218 227). 6. Plaintiffs request a declaration that Amendment 83 and Act 144 of 1997 are unconstitutional under the state and federal constitutions. Complaint, Prayer for Relief, 1-3. Plaintiffs request a permanent injunction barring enforcement of these laws and directing the Defendants to recognize marriages of same-sex couples validly entered into in other jurisdictions (id., 4), directing the Defendants to recognize the New York marriage of Plaintiff Arica Navarro and Defendant Patricia Navarro, and grant a divorce to Plaintiff Arica Navarro (id., 5), requiring the Arkansas Department of Health Director to issue birth certificates for children born of same-sex marriages reflecting the parties to the marriages as the parents of the children (id., 6), requiring the Arkansas Department of Finance and Administration Director to accept joint tax returns filed by same-sex couples married in other jurisdictions (id., 7), and awarding attorneys fees and costs (id., 8). 5
7. Plaintiffs challenges to Amendment 83 and Act 144 of 1997 fail under binding precedent of the United States Supreme Court and the Arkansas Supreme Court and persuasive precedent of the United States Court of Appeals for the Eighth Circuit. The Defendants are entitled to judgment as a matter of law under the undisputed facts of this case. The States Motion for Summary J udgment should be granted accordingly. 8. Plaintiffs Arkansas constitutional claims are barred as a matter of law, and the State is therefore entitled to summary judgment on the state-law claims. Amendment 83 is part of the Arkansas Constitution. As a matter of well-established Arkansas law, a constitutional provision cannot violate the Constitution. Where there is an inconsistency between an earlier provision of the Arkansas Constitution and a later amendment, the amendment, being the more recent expression of the will of the people, prevails. Amendment 83 was enacted directly by the people of Arkansas in the exercise of their sovereign power to amend their constitution, as explicitly set forth in the Arkansas Constitution of 1874. Plaintiffs state-law challenges to Arkansas Act 144 of 1997, Ark. Code Ann. 9-11-208, and Ark. Code Ann. 9-11-107(b), likewise fail on the merits, because these laws are entirely consistent with, and explicitly authorized by, Amendment 83, which is a valid part of the Arkansas Constitution. Plaintiffs claims brought under the Arkansas Constitution are entirely barred because of Amendment 83 to the Arkansas Constitution. Accordingly, summary judgment should be granted to the Defendants on Plaintiffs state-law claims. 9. By history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States. U.S. v. Windsor, 570 U.S. ___, 133 S.Ct. 2675, 2689-90 (U.S. No. 12-1307 J une 26, 2013). The United States Supreme Court has long maintained that a State has absolute right to prescribe the conditions upon which 6
the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved. Pennoyer v. Neff, 95 U.S. 714, 734-35 (1878). The Supreme Court recently affirmed this deeply rooted deference to state regulation of marriage. Windsor, 133 S.Ct. at 2691-92. In Windsor, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act, not because the recognition of same-sex marriages is required by the federal Constitution the Court disavowed any such principle that same-sex marriages must be recognized but because the Court concluded that the federal government lacks authority to discriminate among opposite-sex and same-sex marriages where both are recognized under a states law. The federal governments refusal to respect the States authority to define marriage represented a significant and in the majoritys view, unwarranted federal intrusion on state power to define marriage. 133 S.Ct. at 2692. The Court specifically declined to recognize same-sex marriage as a fundamental right under the federal Constitution, and it declined to recognize homosexuality as a suspect classification for purposes of equal protection analysis. Rather, the Court concluded that federalism concerns undermined the rationality of a federal law that imposed a definition of marriage contrary to the definition in state law, and which did not treat all marriages authorized under state law as equal. Id. The Windsor majority did not hold that states are constitutionally required to allow same-sex marriage or recognize same-sex marriages performed under the laws of other jurisdictions. The Windsor majority affirmed the traditional view that it is the province of individual states to choose which marriages will be recognized under state law. None of the Supreme Court J ustices in Windsor whether in the majority or in dissent opined that states are constitutionally required to recognize same-sex marriage. 7
10. Plaintiffs federal due process and equal protection claims fail on the merits as a matter of well-established law. In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810 (1972), the Minnesota Supreme Court held that a state statute that defined marriage as a union between persons of the opposite sex did not violate the First, Eighth, Ninth, or Fourteenth Amendments of the United States Constitution. The United States Supreme Court summarily dismissed the plaintiffs appeal in Baker for want of a substantial federal question. 409 U.S. 810. The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts with any reason to believe that the holding is invalid. The Supreme Courts dismissal of the appeal in Baker was a decision on the merits that constitutes controlling precedent, unless and until re- examined by the United States Supreme Court. Baker is binding precedent that requires dismissal of due process, equal protection, and privacy claims brought against any state law codifying the traditional definition of marriage. 11. In Citizens for Equal Protection, Inc. v. Bruning, 455 F.3d 859 (8th Cir. 2006), the Eighth Circuit Court of Appeals held that Plaintiffs federal constitutional challenges fail on the merits. Id. In Bruning, the Eighth Circuit squarely addressed the constitutionality of a substantively identical state constitutional amendment, and specifically held that the [plaintiffs] equal protection argument fails on the merits. 455 F.3d at 864-69. The Eighth Circuit noted that sexual orientation is not a suspect classification for purposes of equal protection analysis, and rational-basis review applies to a state law defining marriage. Id. The Eighth Circuit emphasized that [w]hatever our personal views regarding this political and sociological debate, we cannot conclude that the States justification lacks a rational relationship to legitimate state interests. Id. at 868. In conclusion, the Eighth Circuit noted: In the nearly one hundred and 8
fifty years since the Fourteenth Amendment was adopted, to our knowledge no J ustice 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. Id. at 870. This Court should exercise its discretion to award summary judgment to the Defendants on Plaintiffs federal claims based upon the Eighth Circuits holding in Bruning. 12. Summary judgment should be granted to the State on Plaintiffs gender discrimination claim because Plaintiffs are not treated differently on the basis of Plaintiffs gender. Amendment 83 treats all persons exactly the same without regard to gender. Under Arkansas law, no person, male or female, may marry a person of the same sex. Plaintiffs are not classified or treated differently on the basis of their gender. Plaintiffs sex discrimination claim fails for this reason alone, and summary judgment should be granted to the Defendants accordingly. 13. Summary judgment should be granted to the State on Plaintiffs sexual orientation discrimination claim because sexual orientation is not a suspect classification. This claim was specifically rejected by the Eighth Circuit in Bruning, which concluded that the plaintiffs equal protection argument fails on the merits. Id., 455 F.3d at 868-69. The Eighth Circuit specifically noted that the Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes. Id. at 866. The Supreme Court did not rule that sexual orientation is a suspect classification in Windsor. The Arkansas Supreme Court has specifically held that homosexual citizens do not constitute a protected class[.] Jegley v. Picado, 349 Ark. 600, 634, 80 S.W.3d 332 (2002). Because sexual orientation is not a suspect class under the federal equal protection provision, laws codifying the traditional definition of 9
marriage are subject to rational-basis review. Amendment 83 and Act 144 of 1997 easily meet the rational-basis test. Summary judgment should be granted to the Defendants on Plaintiffs sexual orientation discrimination claim. 14. Summary judgment should be granted to the State on the claims brought by the child Plaintiffs, and the partners of the biological parents of the child Plaintiffs. For all children, Arkansas law permits only names of the biological parents of a child to be listed on the childs birth certificate. This is true whether the parents are in a same-sex relationship, an opposite-sex relationship, whether they are married or unmarried, whether the child is a biological child of one parent or is an adoptive child. Amendment 83 and the Arkansas marriage laws challenged in this lawsuit have no bearing at all on which persons names may or may not appear on a birth certificate. Marriage laws simply do not determine who appears as the parent of a child on an Arkansas birth certificate. Plaintiffs claims fail for this reason alone. To the extent that Plaintiffs intend to assert a constitutional claim on behalf of any child, that claim fails because Amendment 83 does not burden any constitutionally protected liberty interest of any child. Under established law, a child has no liberty interest in being adopted, or otherwise cared for, by someone who is not the childs biological parent. To the extent that Plaintiffs seek to assert a claim on behalf of adults not listed on a childs birth certificate, that claim also fails as a matter of law. An adult who is not a biological parent has no protected liberty interest in a childs care and custody, and this is true whether that person has a same-sex relationship with the biological parent, an opposite-sex relationship with the biological parent, or otherwise. Because all persons who are not biological parents are treated exactly the same by Arkansas law, Plaintiffs allegations regarding children and birth certificates fail to state any claim for relief. Summary judgment should be granted to the Defendants on these claims. 10
15. Summary judgment should be granted to the State on Plaintiffs interstate travel claim. Amendment 83 and Act 144 of 1997 do not violate, or even burden, any component of the right to travel. Amendment 83 and Arkansas Act 144 of 1997 make no distinction between or among citizens of Arkansas based upon the length of their citizenship or residency in Arkansas. No resident of Arkansas, whether they have been a resident of Arkansas for a single day or for decades, may lawfully marry a person of the same sex under Arkansas law. Arkansas law does not recognize any same-sex marriage obtained by an Arkansas resident in another jurisdiction, whether the Arkansas resident has been a resident of Arkansas for a single day, or for decades. Simply put, Arkansas marriage law treats all citizens of Arkansas exactly the same, regardless of whether they previously lived in another state, regardless of the length of their residence in Arkansas, and regardless of whether they have married in another jurisdiction. Because Arkansas marriage law does not treat any citizen any differently on the basis of their residence, the length of their residence, their former residence elsewhere, or their interstate travel (or lack thereof), there can be no violation of the constitutionally protected right to interstate travel. Summary judgment should be granted to the Defendants accordingly. 16. Plaintiff Arica Navarros request for a divorce should be denied, or alternatively, the Court may entertain the request without reaching a constitutional question. To the extent that Plaintiff Navarro seeks to challenge Amendment 83 by seeking dissolution of her same-sex marriage, that claim must be denied because Amendment 83 does not prohibit Plaintiff Navarro from obtaining a divorce in Arkansas. Although Ark. Code Ann. 9-11-208(a)(2) prohibits this Court from granting a divorce to Plaintiff Navarro, the statute does not violate any constitutional provision. The State of Arkansas is simply under no obligation to dissolve a marriage that the State of Arkansas does not recognize as valid. If the Court is inclined to explore the possibility 11
of relief to Plaintiff Navarro though the Court is not obligated to do so, this can be done without the necessity of a finding that Ark. Code Ann. 9-11-208(a)(2) is unconstitutional. Arkansas courts have repeatedly granted divorces in cases involving marriages that were void from inception under Arkansas law, and this has not required Arkansas courts to first recognize otherwise invalid marriages. Plaintiff Navarros marriage can be dissolved by an Arkansas court in a variety of other ways, without offending Section 9-11-208(a)(2). The Court should dismiss Plaintiff Navarros claim for lack of subject-matter jurisdiction, and grant summary judgment to the Defendants on Plaintiff Navarros divorce claim. 17. Amendment 83 and Arkansas Act 144 of 1997 satisfy the rational-basis test. The United States Supreme Court and inferior courts have recognized a bevy of legitimate state interests that are directly implicated and furthered by Amendment 83 and Act 144 of 1997. Given the numerous actual and conceivable rational bases for Amendment 83 and Act 144 of 1997, Plaintiffs cannot meet their burden under the rational-basis test by arguing in conclusory fashion that these laws serve no legitimate government purpose. Plaintiffs cannot meet their burden of proving that Amendment 83 and the Arkansas marriage laws are not rationally related to any legitimate government objective under any reasonably conceivable fact situation. Amendment 83 and Arkansass marriage laws are subject to rational-basis review, and easily meet the rational-basis test. 18. The citizens of Arkansas amended their state constitution to include a particular definition of marriage. As the Eighth Circuit and numerous other courts have held, there is no fundamental right to be free of the political barrier a validly enacted constitutional amendment erects. Bruning, 455 F.3d at 868. The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of [] purposes. The legislature or 12
the people through the initiative process may rationally choose not to expand in wholesale fashion the groups entitled to those benefits. Id. The relief sought by Plaintiffs in this case does not lie with the judicial branch, but in the democratic process.
Though Plaintiffs legal challenges to Amendment 83 fail as a matter of law, Plaintiffs have recourse through the democratic process. 19. In support of this Motion to Dismiss, the State relies upon the Brief being filed contemporaneously herewith. WHEREFORE, the State prays that its Motion for Summary J udgment be granted, and for all other just and appropriate relief. Respectfully Submitted,
By: /s/ Colin R. J orgensen Colin R. J orgensen Ark. Bar #2004078 Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 Phone: (501) 682-3997 Fax: (501) 682-2591 Email: colin.jorgensen@arkansasag.gov
Attorney for the State.
13
CERTIFICATE OF SERVICE
I, Colin R. J orgensen, Assistant Attorney General, certify that on this 26th day of February, 2014, I electronically filed the foregoing with the Circuit Court Clerk using the Arkansas J udiciarys eFlex electronic filing system, which shall provide electronic notification to the following:
Cheryl K. Maples ckmaples@aol.com
J ack Wagoner III jack@wagonerlawfirm.com
Angela Mann angela@wagonerlawfirm.com
R. Keith Pike keith@wagonerlawfirm.com
Attorneys for the Plaintiffs
David M. Fuqua Attorney for Separate Defendants Pulaski County Clerk Larry Crane and Saline County Clerk Doug Curtis dfuqua@fc-lawyers.com
J ason E. Owens Attorney for Separate Defendants White County Clerk Cheryl Evans, Lonoke County Clerk William Larry Clarke, Washington County Clerk Becky Lewallen, and Conway County Clerk Debbie Hartman owens@rainfirm.com
David Hogue Attorney for Separate Defendant Faulkner County Clerk Melinda Reynolds d.hogue@windstream.net
Mugged at the Courthouse: An Analysis of the Decision of the United States Court of Federal Claims in Alaska V. United States, 35 Fed. Cl. 685 (Ct. Cl.1996) and Subsequent Petition of Certiorari
Path Towards Equality: Anti-Discrimination Acts & Most Important Supreme Court Decisions Against Racism: Civil Rights Legislation and Racial Discrimination Law: From the Thirteenth Amendment to the Hate Crimes Prevention Act & from the Strauder v. West Virginia to the Batson v. Kentucky Case
Remarks of Mr. Calhoun of South Carolina on the bill to prevent the interference of certain federal officers in elections: delivered in the Senate of the United States February 22, 1839
Marvin D. Baker v. The Board of Regents of The State of Kansas and University of Kansas Medical School - School of Medicine, 991 F.2d 628, 10th Cir. (1993)