15-1022 - Arkansas Plaintiffs' Brief

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

RITA JERNIGAN, et al.
APPELLEES
v.
CASE NO. 15-1022
LARRY CRANE
DEFENDANT
DUSTIN MCDANIEL, et al.
APPELLANTS
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
APPELLEES BRIEF
WAGONER LAW FIRM, P.A.

Jack Wagoner III
Angela Mann
Wagoner Law Firm, P.A.
1320 Brookwood, Suites D & E
Little Rock, AR 72202
Phone: (501) 663-5225
Fax: (501) 660-4030
Email: jack@wagonerlawfirm.com
Email: angela@wagonerlawfirm.com
Appellate Case: 15-1022
Page: 1
Date Filed: 03/20/2015 Entry ID: 4256616
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................ iii
STATEMENT OF ISSUES ................................................................................. viii
SUMMARY OF THE ARGUMENT ..................................................................... 1
ARGUMENT ............................................................................................................ 3
I.
THE REASONING OF THE UNITED STATES SUPREME COURTS

DECISION IN WINDSOR ESTABLISHES THAT ARKANSASS
MARRIAGE BANS ARE INVALID ........................................................... 6
II.
THE STATE CANNOT RELY UPON THE PRINCIPLES OF

FEDERALISM TO PERPETUATE DISCRIMINATION ....................... 7
III. THE DISTRICT COURT CORRECTLY CONCLUDED THAT

AMENDMENT 83 AND ARKANSASS MARRIAGE LAWS VIOLATE
APPELLEES FUNDAMENTAL RIGHT TO MARRY UNDER THE
FOURTEENTH AMENDMENTS DUE PROCESS CLAUSE ............... 9
A.
The Right to Marry is a Fundamental Right .................................... 9
B.
The District Court Correctly Applied Strict Scrutiny to Arkansass

Marriage Bans and Anti-Recognition Laws ................................... 10
C.
The Fact that Arkansas Voters Passed Amendment 83 at the Ballot

Box Does Not Save It From Judicial Review .................................. 14
D.
The States Other Asserted Rationales for Arkansass

Discriminatory Marriage Laws Are Similarly Inadequate ........... 16
1.
Protecting the Traditional Notion of Marriage is not a

Sufficient Basis for the Marriage Bans or Anti-Recognition
Laws .......................................................................................... 18
2.
Encouraging Procreation is not a Sufficient Basis for the

Marriage Bans or Anti-Recognition Laws .............................. 19
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3.
Arkansass Marriage Laws Do Not Promote the Best Interests

of Children ................................................................................ 20
4.
Maintaining the Status Quo Is Not a Sufficient Basis Upon

Which to Deny Same-Sex Couples Their Fundamental
Rights ........................................................................................ 21
IV.
THE DISTRICT COURT CORRECTLY HELD THAT ARKANSASS

MARRIAGE
BANS
AND
ANTI-RECOGNITION
LAWS
DISCRIMINATE ON THE BASIS OF SEX IN VIOLATION OF THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION .......... 23
V.
THE DISTRICT COURT CORRECTLY HELD THAT BAKER v.

NELSON DOES NOT CONTROL DUE TO SIGNIFICANT
DOCTRINAL DEVELOPMENTS IN THIS AREA OF SUPREME
COURT JURISPRUDENCE ...................................................................... 25
CONCLUSION....................................................................................................... 29
CERTIFICATE OF COMPLIANCE .................................................................. 30
CERTIFICATE OF SERVICE ............................................................................ 31
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TABLE OF AUTHORITIES
Supreme Court of the United States
Anderson v. Celebrezze,
460 U.S. 780 (1983) ..............................................................................................26
Baker v. Nelson,
409 U.S. 810 (1972) ..................................................................... 25, 26, 27, 28, 29
Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985) ................................................................................. 15, 17, 23
Cleveland Bd. of Educ. v. LaFleur,
414 U.S. 632 (1974) ..............................................................................................11
Griswold v. Connecticut,
381 U.S. 479 (1965) ..............................................................................................19
Hall v. Florida,
134 S. Ct. 1986 (2014) ..........................................................................................15
Heller v. Doe,
509 U.S. 312 (1993) ....................................................................................... 17, 20
Hicks v. Miranda,
422 U.S. 332 (1975) ..............................................................................................26
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) ..........................................................................................28
J.E.B. v. Alabama,
511 U.S. 127 (1994) ....................................................................................... 24, 25
Lawrence v. Texas,
539 U.S. 558 (2004) ...................................................................................... passim
Loving v. Virginia,
388 U.S. 1 (1967) .......................................................................................... passim
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Montana v. Crow Tribe of Indians,

523 U.S. 696 (1998) ..............................................................................................26
New York v. United States,
505 U.S. 144 (1992) ................................................................................................8
Powers v. Ohio,
49 U.S. 410 (1991) ................................................................................................25
Reno v. Flores,
507 U.S. 292 (1993) ..............................................................................................12
Roberts v. U.S. Jaycees,
468 U.S. 609 (1984) ..............................................................................................10
Romer v. Evans,
517 U.S. 620 (1996) ................................................................................. 16, 17, 20
Schuette v. Coalition to Defend Affirmative Action,
134 S. Ct. 1623 (2014) ..........................................................................................14
Skinner v. Oklahoma,
316 U.S. 535 (1942) ................................................................................................9
Troxel v. Granville,
530 U.S. 57 (2000) ..................................................................................................9
Tully v. Griffing, Inc.,
429 U.S. 68 (1976) ................................................................................................26
Turner v. Safley,
482 U.S. 78 (1987) ................................................................................................10
U. S. Department of Agriculture v. Moreno,
413 U.S. 528 (1973) ....................................................................................... 16, 27
United States v. Virginia,
518 U.S. 515 (1996) ................................................................................... 3, 12, 24
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Univ. for Women v. Hogan,

458 U.S. 718 (1982) ..............................................................................................12
W. Virginia State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) ..............................................................................................15
Watson v. Memphis,
373 U.S. 526 (1963) ..............................................................................................23
United States v. Windsor,
133 S. Ct. 2675 (2013) .................................................................................. passim
Wolf v. Colorado,
338 U.S. 25 (1949) ..................................................................................................3
Zablocki v. Redhail,
34 U.S. 374 (1978) ......................................................................................... 11, 27
United States Courts of Appeals
Baskin v. Bogan,
766 F.3d 648 (7th Cir. 2014) ........................................................................ passim
Bishop v. Smith,
760 F.3d 1070 (10th Cir. 2014) ..............................................................................5
Bostic v. Shaefer,
760 F.3d 352 (4th Cir. 2014) ........................................................................ passim
DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014) ..................................................................................5
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014) .................................................................... passim
Latta v. Otter,
771 F.3d 456 (9th Cir. 2014) ........................................................................ passim
Perry v. Brown,
671 F.3d 1052 (9th Cir. 2012) ..............................................................................20
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Windsor v. United States,

699 F.3d 169 (2d Cir. 2013) .................................................................................27
United States District Courts
Bishop v. Holder,
962 F. Supp. 2d 1252 (N.D. Okla. 2014)....................................................... 18, 29
Gill v. Office of Personnel Mgmt.,
699 F. Supp. 2d 374 (D. Mass. 2010) ...................................................................20
Golinski v. U.S. Office of Personnel Mgmt.,
824 F. Supp. 2d 968 (N.D. Cal. 2012) ..................................................................10
Hamby v. Pannell,
2014 WL 5089399 (D. Alaska Oct. 12, 2014)......................................................16
Kitchen v. Herbert,
961 F. Supp. 2d 1181 (D. Utah 2013)............................................................ 22, 24
Latta v. Otter,
19 F. Supp. 3d 1054 (D. Idaho 2014) .....................................................................8
McGee v. Cole,
2014 WL 5802665 (S.D. W. Va. Nov. 7, 2014) ...................................................23
Windsor v. United States,
833 F. Supp. 2d 394 (S.D.N.Y. 2012) ..................................................................20
Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014) ......................................28
State Court Cases
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971) .............................................................................26
Dept of Human Servs. v. Cole,
2011 Ark. 145 .......................................................................................................21
Goodridge v. Dept of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ...............................................................................19
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In re Marriage Cases,
183 P.3d 384 (Cal. 2002) ......................................................................................11
Constitutional Provisions
Ark. Const. amend. 83 ..................................................................................... passim
U.S. Const. amend. XIV .................................................................................. passim
Arkansas State Statutes
Ark. Code Ann. 9-11-101 .....................................................................................19
Ark. Code Ann. 9-11-107(1997).............................................................................4
Ark. Code Ann. 9-11-109 .......................................................................................4
Ark. Code Ann. 9-11-208 .......................................................................................4
Other Authorities
S. 5 Am. 2, 81st Gen. Assembly (1997) ..................................................................13
vii
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STATEMENT OF ISSUES
DECISION IN WINDSOR ESTABLISHES THAT ARKANSASS
MARRIAGE BANS ARE INVALID
I.
United States v. Windsor, 133 S. Ct. 2675 (2013)

II.

FEDERALISM TO PERPETUATE DISCRIMINATION
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014)
Bostic v. Shaefer, 760 F.3d 352 (4th Cir. 2014)
Latta v. Otter, 771 F.3d 456 (9th Cir. 2014)
III.
THE DISTRICT COURT CORRECTLY CONCLUDED THAT

FOURTEENTH AMENDMENTS DUE PROCESS CLAUSE
United States Const., Amend. XIV
Loving v. Virginia, 388 U.S. 1 (1967)
Lawrence v. Texas, 539 U.S. 558 (2003)
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)
IV.

MARRIAGE
BANS
AND
ANTI-RECOGNITION
LAWS
AMENDMENT TO THE UNITED STATES CONSTITUTION
United States Const., Amend. XIV
United States v. Virginia, 518 U.S. 515 (1996)
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)
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V.
THE DISTRICT COURT CORRECTLY HELD THAT BAKER V.

COURT JURISPRUDENCE
Hicks v. Miranda, 422 U.S. 332 (1975)
Lawrence v. Texas, 539 U.S. 558 (2003)
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SUMMARY OF THE ARGUMENT

The State of Arkansas denies same-sex couples the ability to marry or have
their lawful marriages from other states or countries recognized. Amendment 83 to
the Arkansas Constitution and Arkansass marriage statutes, Ark. Code Ann. 911-107, 9-11-109, and 9-11-208, infringe upon Appellees fundamental right to
marriage in violation of the Due Process Clause of the Fourteenth Amendment to
the United States Constitution and discriminate based on sex in violation of the
Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution. The Supreme Court of the United States struck down the antirecognition provision of the federal Defense of Marriage Act, a similar federal law,
in United States v. Windsor, 133 S. Ct. 2675 (2013).
Although Windsor addressed a federal law, the Windsor Court set forth a
roadmap for federal and state courts faced with constitutional attacks on state
marriage laws such as those currently in effect in Arkansas. The Courts Windsor
decision is not based upon the principles of federalism. Rather, the Windsor Court
and the overwhelming majority of courts since Windsor have found as the District
Court found herethat such laws violate the Due Process and Equal Protection
Clauses of the Fourteenth Amendment to the United States Constitution.
The Fourteenth Amendments Due Process Clause protects the fundamental
right to marriage for all persons. Appellees do not seek recognition of a new
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fundamental right. They merely seek equal application of the already recognized
fundamental right to marry. A fundamental right, once established, applies equally
to everyone, including Appellees and other homosexual persons wishing to marry a
person of their same sex. The District Court correctly found that Appellees are
entitled to exercise this freedom to choose whom they marry.
The District Court correctly held that Amendment 83 and Arkansass
Marriage Laws violate the Equal Protection Clause because such laws discriminate
on the basis of sex. The principal inquiry on this issue is whether Arkansass laws
treat individuals differently because of their sex. The answer is that they do because,
according to Arkansass Marriage Laws, Appellees cannot marry their partners
because they are female, but they could do so if they were male.
This Court should affirm the District Courts decision in its entirety. The
District Court properly held that the United States Constitution protects those
individuals, including Appellees, whom the majority wishes to exclude. The
constitutional rights of the minority are not subject to majority vote. That is, the State
of Arkansas cannot vote away the constitutional rights of same-sex couples simply
because they disagree with the lifestyle of such persons.
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ARGUMENT
A prime part of the history of our Constitution . . . is the story of the extension
of constitutional rights and protections to people once ignored or excluded. United
States v. Virginia, 518 U.S. 515, 517 (1996). It is of the very nature of a free society
to advance in its standards of what is deemed reasonable and right. Representing as
it does a living principle, due process is not confined within a permanent catalogue
of what may at a given time be deemed the limits or the essentials of fundamental
rights. Wolf v. Colorado, 338 U.S. 25 (1949). As the Court stated in Lawrence v.
Texas, 539 U.S. 558 (2004):
[h]ad those who drew and ratified the . . . Fourteenth Amendment
known the components of liberty in its manifold possibilities, they
might have been more specific. They did not presume to have this
insight. They knew times can blind us to certain truths and later
generations can see that laws once thought necessary and proper in fact
only serve to oppress. As the Constitution endures, persons in every
generation can invoke its principles in search of their own greater
freedoms.
Id. at 17879. The lessons of our constitutional history are clear: inclusion
strengthens, rather than weakens, our most important institutions. Latta v. Otter,
771 F.3d 456 (9th Cir. 2014). This case presents an opportunity for inclusionan
opportunity to strengthen the institution of marriage.
Arkansas denies same-sex couples the freedom to marry or stay married in the
eyes of the State through its constitutional and statutory prohibition of marriage
between members of the same sex (Marriage Bans) and refusal to recognize valid
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out-of-state marriages between members of the same sex (Anti-Recognition

Laws). In 1997, Arkansas enacted statutes prohibiting marriages between same-sex
couples and prohibiting recognition of such marriages entered into in other states.
See Ark. Code Ann. 9-11-109 (Marriage shall be only between a man and a
woman. A marriage between persons of the same sex is void.); 9-11107(1997)(All marriages contracted outside this state that would be valid by the
laws of the state or country in which the marriages were consummated . . . shall be
valid in all courts of this state [but] [t]his section shall not apply to a marriage
between persons of the same sex); 9-11-208 (Arkansas will recognize the marital
union only of a man and a woman and will deny marriage licenses to any person
seeking to marry another person of the same sex.). Arkansas took matters a step
further in 2004 when it adopted Amendment 83 to the Arkansas Constitution, which
defines marriage as consisting only of the union of one man and one woman, Ark.
Const. amend. 83 1, and states that [l]egal status for unmarried persons which is
identical or substantially similar to marital status [except common law marriage]
shall not be valid or recognized in Arkansas. Ark. Const. amend. 83 2.
The District Court properly held that such laws unconstitutionally deny
consenting same-sex couples their fundamental right to marry in violation of the Due
Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution, (Add. 36), and impose unconstitutional classifications
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on the basis of gender in violation of the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. (Add. 41.) Courts of Appeals in the
Fourth, Seventh, Ninth, and Tenth Circuits have upheld decisions invalidating
similar laws. See Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); Baskin v. Bogan, 766
F.3d 648 (7th Cir. 2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014); Bostic v.
Shaefer, 760 F.3d 352 (4th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.
2014); but see, DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014).1 This Court should
follow the Fourth, Seventh, Ninth, and Tenth Circuits and affirm the District Courts
decision that Arkansass marriage laws violate the Due Process Clause and the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution.
1 Appellants urge this Court to follow the Sixth Circuit Court of Appeals decision
in DeBoer. Appellees respectfully submit that DeBoer was wrongly decided. As
Judge Daughtrey noted in her scathing dissent in DeBoer:
These four cases from our sister circuits provide a rich mine of responses to
every rationale raised by defendants . . . . Indeed it would seem unnecessary
for this court to do more than cite those cases in affirming the district court
decisions in the six cases now before us. Because the correct result is obvious,
one is tempted to speculate that the majority has purposefully taken the
contrary position to create the circuit split regarding the legality of same-sex
marriage that could prompt a grant of certiorari by the Supreme Court and an
end to the uncertainty of status and the interstate chaos that the current
discrepancy in state laws threatens.
DeBoer, 772 F.3d at 430 (Daughtrey, J., dissenting). Since DeBoer, Appellees are
aware of twelve (12) federal courts which have declined to follow its lead and only
one (1) federal court and one (1) state court which have followed it.
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I.

DECISION IN NDSOR ESTABLISHES THAT ARKANSASS
MARRIAGE BANS ARE INVALID
In United States v. Windsor, 133 S. Ct. 2675 (2013), the Supreme Court
invalidated Section 3 of the federal Defense of Marriage Act (DOMA), wherein

Congress had defined marriage for purposes of all federal laws to include only
marriages of opposite-sex couples. The Windsor Court framed the issue presented
as whether the resulting injury and indignity [resulting from adherence to DOMAs
anti-recognition principle] is a deprivation of an essential part of the liberty protected
by the Fifth Amendment. Id. at 2692. The Windsor Court affirmed the equal
dignity of same-sex couples relationships, noting that the right to intimacy
recognized in Lawrence can form but one element in a personal bond that is more
enduring. Windsor, 133 S. Ct. at 269293 (quoting Lawrence, 539 U.S. at 567).
After conducting a thorough analysis of the rights at issue, the Windsor Court
held that DOMA violate[d] basic due process and equal protection principles. Id.
at 2693. The Court concluded that [t]he avowed purpose and practical effect of the
law here in question are to impose a disadvantage, a separate status, and so a stigma
upon all who enter into same-sex marriages. Id. Marriage Bans and AntiRecognition Laws divest[] married same-sex couples of the duties and
responsibilities that are an essential part of married life and that they in most cases
would be honored to accept. Id. at 2695. Such laws tell[] those couples, and all the
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world, that their otherwise valid marriages are unworthy. Id. at 2694. This places
same-sex couples in an unstable position of being in a second-tier marriage. Id.
The differentiation demeans the couple [and] humiliates tens of thousands of
children now being raised by same-sex couples. The law . . . makes it even more
difficult for the children to understand the integrity and closeness of their own family
and its concord with other families in their community and in their daily lives. Id.
Government interference with same-sex couples constitutional rights cannot
stand when, as here, no legitimate purpose overcomes the purpose and effect to
disparage and to injure those whom . . . marriage laws [are designed to] protect in
personhood and dignity. Id. at 2696. Although Windsor addressed a federal law, the
Courts reasoning applies with equal force to the Arkansas laws at issue here.
II.

FEDERALISM TO PERPETUATE DISCRIMINATION
The State improperly claims that Windsor is a federalism decision.
(Appellants Br. 1115.) Although it is true that Windsor resolved tension between
a state law permitting same-sex marriage and a federal non-recognition provision,
the Court's description of the issue indicates that its holding was not solely based on
the scope of federal versus state powers. Kitchen, 755 F.3d at 1206. In fact, the
Windsor Court made clear that its decision was not a federalism decision, stating
that [t]he State's power in defining the marital relation is of central relevance in this
case quite apart from principles of federalism. Windsor, 133 S. Ct. at 2692
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(emphasis added). The District Court thus properly concluded that Windsor did not
rest solely on federalism concerns. (Add. 22.)
Appellants federalism argument cannot save Arkansass unconstitutional
Marriage Bans and Anti-Discrimination Laws. Windsor does not teach us that
federalism principles can justify depriving individuals of their constitutional rights;
it reiterates Loving 's admonition that the states must exercise their authority without
trampling constitutional guarantees. Bostic, 760 F.3d at 379 (citing Loving v.
Virginia, 388 U.S. 1 (1967). Federalism is not just a bulwark against federal
government overreach; it is also an essential check on state power. Latta v. Otter,
19 F. Supp. 3d 1054, 1084 (D. Idaho 2014). For that reason, federalism is no
answer where, as here, individuals claim their state government has trampled their
constitutional rights. Id. Our federalist structure is designed to secure[] to citizens
the liberties that derive from the diffusion of sovereign power rather than to limit
fundamental freedoms. Kitchen, 755 F.3d at 1229 (quoting New York v. United
States, 505 U.S. 144, 181 (1992)).
Although the State is correct that domestic relations law is an area typically
reserved for State regulation, Windsor makes clear that the State laws defining and
regulating marriage, of course, must respect the constitutional rights of persons.
Windsor, 133 S. Ct. at 2691. Arkansas undoubtedly may define and regulate the
incidents, benefits, and obligations of domestic relations within its borders,
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Windsor, 133 S. Ct. at 2692, but these regulations must comport with the United
States Constitution, id., and it is this Courts duty to examine Arkansass marriage
laws against the United States Constitutions guarantee of individual liberties and
protection of fundamental rights. (Add. 33.)
III.
THE DISTRICT COURT CORRECTLY CONCLUDED THAT

FOURTEENTH AMENDMENTS DUE PROCESS CLAUSE
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution provides that no state may deprive any person of life, liberty, or
property, without due process of law. U.S. Const. amend. XIV, 1. The Due
Process Clause guarantees more than fair process . . . . [I]t also includes a
substantive component that provides heightened protection against government
interference with certain fundamental rights and liberties. Troxel v. Granville, 530
U.S. 57, 65 (2000)(internal citations and quotations omitted).
A.
The Right to Marry is a Fundamental Right
The freedom to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness by free men and is thus one of
the basic civil rights of man protected by the Due Process Clause. Loving, 388
U.S. at 12 (quoting, Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)). Under our
Constitution, the freedom to marry . . . resides with the individual and cannot be
infringed by the State. Id. Thus, choices to enter into and maintain certain intimate
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human relationships must be secured against undue intrusion by the State because
of the role of such relationships in safeguarding the individual freedom that is central
to our constitutional scheme. Roberts v. U.S. Jaycees, 468 U.S. 609, 61718 (1984).
There can be little doubt that the right to marry is a fundamental liberty. Kitchen,
755 F.3d at 1209. The District Court properly concluded that the right to marry is
a fundamental right. (Add. 29.)
The State attempts to reframe the issue as an effort to establish a new right
the right to same-sex marriage. This is incorrect. Such a constricted framing of a
protected freedom based on the identity of those seeking to exercise it fails to
appreciate the extent of the liberty at stake. Lawrence, 539 U.S. at 567. [T]he
Supreme Court has traditionally described the right to marry in broad terms
independent of the persons exercising it. Kitchen, 755 F.3d at 1215. [F]undamental
rights are fundamental rights. They are not defined in terms of who is entitled to
exercise them. Id.; see also, Bostic, 760 F.3d at 376 (Supreme Court cases speak
of a broad right to marry that is not circumscribed based on the characteristics of the
individuals seeking to exercise that right.) Supreme Court cases addressing the
fundamental right to marry do not recast the issue as the right to interracial
marriage, the right to prisoner marriage, or the right to marry persons owing
child support. Golinski v. U.S. Office of Personnel Mgmt., 824 F. Supp. 2d 968, 982
n.5 (N.D. Cal. 2012)(citing Loving, 388 U.S. at 12; Turner v. Safley, 482 U.S. at 94
10
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96 (1987); Zablocki v. Redhail, 434 U.S. 374, 38386 (1978)). The Court in Loving
did not recognize a new right to interracial marriage. but rather affirmed that [t]he
freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men. See Loving, 388 U.S. at
12. The Supreme Court confirmed in Zablocki, 434 U.S. 374, that [t]he right to
marry is of fundamental importance for all individuals. Id. at 384.
The Supreme Court's unwillingness to constrain the right to marry to certain
subspecies of marriage meshes with its conclusion that the right to marry is a matter
of freedom of choice, Zablocki, 434 U.S. at 387, that resides with the individual.
Bostic, 760 F.3d at 376 (citing Loving, 388 U.S. at 12). Appellants only seek the
same freedom of personal choice in matters of marriage and family life that the
Constitution provides for everyone. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S.
632, 639 (1974). The State should not be allowed to deny them this freedom.
The Supreme Court has also declined to limit the scope of fundamental
rightsincluding the right to marrybased on historical patterns of discrimination.
Fundamental rights, once recognized, cannot be denied to particular groups on the
ground that these groups have historically been denied those rights. In re Marriage
Cases, 183 P.3d 384, 430 (Cal. 2002)(internal quotations omitted). To claim that
marriage, by definition, excludes certain couples is simply to insist that those couples
may not marry because they have historically been denied the right to do so.
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Kitchen, 755 F.3d at 1216. As the Court stressed in Lawrence, neither history nor
tradition could save a law prohibiting miscegenation from constitutional attack in
Loving. Lawrence, 539 U.S. at 57778 (quotation omitted). [T]he question as stated
in Loving, and as characterized in subsequent opinions, was not whether there is a
deeply rooted tradition of interracial marriage, or whether interracial marriage is
implicit in the concept of ordered liberty; the right at issue was the freedom of
choice to marry. Kitchen, 755 F.3d at 1210. The same analysis applies here.
B.
The District Court Correctly Applied Strict Scrutiny to Arkansass

Marriage Bans and Anti-Recognition Laws
The District Court properly held that, [b]ecause the Arkansas marriage laws
restrict the Jernigans and Austins fundamental right to marry, these laws are
subject to strict scrutiny. (Add. 29.) The State may not infringe upon fundamental
rights unless the infringement is narrowly tailored to serve a compelling state
interest. Reno v. Flores, 507 U.S. 292, 302 (1993). The burden of justification is
demanding and rests entirely on the State. United States v. Virginia, 518 U.S. 515,
533 (1996)(citing Miss. Univ. for Women v. Hogan, 458 U.S. 718, 72324 (1982)).
The justification must be genuine, not hypothesized or invented post hoc in
response to litigation. Id. The State cannot meet this exacting standard. Instead of
explaining why same-sex marriage qua same-sex marriage is undesirable, each of
appellants justifications rests fundamentally on a sleight of hand in which same-sex
marriage is used as a proxy for a different characteristic shared by both same-sex
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and some opposite-sex couples. Kitchen, 755 F.3d at 1220.

The primary rationale stated when Arkansas enacted the statutory prohibitions
in 1997 was to protect, preserve and enhance the traditional family structure. S. 5
Am. 2, 81st Gen. Assembly (1997). Appellants have advanced several other
potential justifications, including:
(1) the basic premise of the referendum process, which is that political
power flows from the people to their government on issues of vital
importance to the public; (2) advancement of procreation by
encouraging the development of biologically procreative relationships;
(3) ensuring the best interests of children through laws where children
born as a result of a union between a man and a woman are cared for
by their biological parents in a stable family environment; (4) stability,
uniformity, and continuity of laws in the face of an ongoing public and
political debate about the nature and role of marriage; (5) preservation
of the public purposes and social norms linked to the historical and
deeply-rooted meaning of marriage; and (6) a cautious, historical
approach to governmental social experimentation as democratic,
cultural and scientific discussions proceed.
(Add. 31.) The District Court rejected each of these asserted bases for Arkansass
discriminatory marriage laws, holding that these interests do not address any
specific reasons for the marriage laws at issue; instead, they represent the type of
generalized, post hoc, and litigation-reactive justifications that strict scrutiny
disallows. (Add. 32.)
Appellants do not dispute this conclusion. They do not even attempt to meet
their burden and they failed to do so in the District Court as well. Instead, the State
contends that the proper standard for analysis of Amendment 83 and Arkansass
13
Page: 23
marriage laws under the U.S. Constitution is the rational-basis test and thus
Appellees bear the burden of persuasion. (Appellants Br. 11.) Because a
fundamental right is at stake, Appellants must satisfy strict scrutiny. They cannot do
soand have not in fact attempted to do so at any time.
C.
The Fact that Arkansas Voters Passed Amendment 83 at the Ballot

Box Does Not Save It From Judicial Review
The States only justification for Arkansass discriminatory marriage laws in

their Appellants Brief is that the Court should defer to the voters and protect the
right to vote. The State claims that [b]y approving Amendment 83 and thereby
adding it to their State Constitution, the Arkansas voters exercised their privilege to
enact laws as a basic exercise of their democratic power. (Appellants Br. 9.)(citing
Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623, 1636
(2014)(plurality opinion)). Appellants reliance on Schuette for the proposition that
the voters can strip certain groups of their fundamental rights is misplaced. Schuette
does not support this argument. In Schuette, the Supreme Court held that a state law
barring any consideration of race in university admissions did not discriminate based
on race and thus did not require heightened scrutiny. In contrast, Arkansass
marriage laws are facially discriminatory and the State enacted such laws to exclude
same-sex couples from the protections of marriage. See, e.g., Bostic, 760 F.3d at 379.
The protection and exercise of fundamental rights are not matters for opinion
polls or the ballot box. Kitchen, 755 F.3d at 1228. One's right to life, liberty, and
14
Page: 24
property, to free speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on the outcome of no
elections. Id. (quoting W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638
(1943))(emphasis in original). As the Court stated in City of Cleburne v. Cleburne
Living Center, 473 U.S. 432 (1985), [i]t is plain that the electorate as a whole,
whether by referendum or otherwise, could not order city action violative of the
Equal Protection Clause, and the city may not avoid the strictures of that Clause by
deferring to the wishes or objections of some fraction of the body politic. Id. at 448
[A] primary purpose of the Constitution is to protect minorities from
oppression from majorities. Latta, 171 F.3d at 474. While states are laboratories
for experimentation, . . . those experiments may not deny the basic dignity the
Constitution protects. Hall v. Florida, 134 S. Ct. 1986, 2001 (2014). Minorities
trampled on by the democratic process have recourse to the courts; the recourse is
called constitutional law. Baskin, 766 F.3d at 671. Although Americans ability to
speak with their votes is essential to our democracy[,] . . . the peoples will is not an
independent compelling interest that warrants depriving same-sex couples of their
fundamental right to marry. Bostic, 760 F.3d at 379. The Constitution is also an
expression of the peoples will, and these rationales contradict the very fabric and
structure of the Constitutions protections of individual rights against majoritarian
and governmental overreach. (Add. 32.) Even if the Court employed the lowest
15
Page: 25
standard of review, it is illogical to say that [Arkansass] same-sex marriage laws

are rationally related to serving the right of citizens to vote on significant changes in
the law. [Arkansass] marriage laws governing the institution of marriage have
nothing to do with promoting or ensuring a citizens voting rights. See Hamby v.
Pannell, 2014 WL 5089399, at *10 (D. Alaska Oct. 12, 2014).
D.
The States Other Asserted Rationales for Arkansass

Discriminatory Marriage Laws Are Similarly Inadequate
Arkansass Marriage Bans and Anti-Recognition Laws serve no legitimate

government purpose. On their face, the purpose and effect of these laws are to
impose a disadvantage, a separate status, and so a stigma upon same-sex couples.
See Windsor 133 S. Ct. at 2693. In Windsor, the Court reaffirmed that a bare
congressional desire to harm a politically unpopular group of people cannot justify
disparate treatment of that group. Id. (citing U. S. Department of Agriculture v.
Moreno, 413 U.S. 528 (1973)). Arkansass interest in treating same-sex couples
differently from opposite-sex couples is the same improper purpose that the Supreme
Court rejected in Windsor: to impose inequality. See id. at 2694; see also Romer
v. Evans, 517 U.S. 620, 63536 (1996)(striking down a state constitutional
amendment that classified gay people not to further a proper legislative end but to
make them unequal to everyone else.). Nearly every court across the country,
including the District Court and the Fourth, Seventh, Ninth, and Tenth Circuits, has
rejected the States asserted bases for similar laws.
16
Page: 26
As stated above, Arkansass marriage laws must satisfy strict scrutiny because
these laws infringe upon the fundamental right to marry. However, the States
asserted justifications cannot satisfy even rational basis review. See Baskin, 766 F.3d
at 656 (The discrimination against same-sex couples is irrational, and therefore
unconstitutional even if the discrimination is not subjected to heightened scrutiny.)
Under rational basis review, the asserted state interest must be legitimate or
properly cognizable. Cleburne, 473 U.S. at 448. The States justification must
find some footing in the realities of the subject addressed by the legislation. Heller
v. Doe, 509 U.S. 312, 321 (1993). Additionally, the State must demonstrate a rational
relationship between the classification adopted and the object to be attained.
Romer, 517 U.S. at 632. The State may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render the distinction arbitrary
or irrational. Cleburne, 473 U.S. at 446. By requiring that the classification bear a
rational relationship to an independent and legitimate legislative end, we ensure that
classifications are not drawn for the purpose of disadvantaging the group burdened
by the law. Romer, 517 U.S. at 633. [S]ome objectivessuch as a bare desire to
harm a politically unpopular groupare not legitimate state interests. Id. [M]ere
negative attitudes or fear, unsubstantiated by factors which are properly cognizable
are not permissible bases for differential treatment. Cleburne, 473 U.S. at 448.
17
Page: 27
1.
Protecting the Traditional Notion of Marriage is not a

Sufficient Basis for the Marriage Bans or Anti-Recognition Laws
Arkansass Marriage Bans and Anti-Recognition Laws do not continue any

existing tradition other than discrimination against same-sex couples. As Justice
Scalia stated in his dissenting opinion in Lawrence, [p]reserving the traditional
institution of marriage is just a kinder way of describing the States moral
disapproval of same-sex couples. Lawrence, 539 U.S. at 601 (Scalia J., dissenting).
Moral disapproval of this group, like a bare desire to harm the group, is an interest
that is insufficient to satisfy [even] rational basis review. Id. at 582. [C]ourts
reviewing marriage regulations, by either the state or federal government, must be
wary of whether defending traditional marriage is a guise for impermissible
discrimination against same-sex couples. Bishop v. Holder, 962 F. Supp. 2d 1252,
1279 (N.D. Okla. 2014). There are good traditions, . . . bad traditions that are
historical realities such as cannibalism, . . . and traditions that from a public-policy
standpoint are neither good nor bad (like trick-or-treating on Halloween). Baskin,
766 F.3d at 666. Tradition per se therefore cannot be a lawful ground for
discriminationregardless of the age of the tradition. Id.
The State cannot credibly argue that their laws protect a traditional
institution; at most, they preserve the status quo with respect to one aspect of
marriageexclusion of same-sex couples. Latta, 771 F.3d at 475. [I]t is circular
reasoning, not analysis, to maintain that marriage must remain a heterosexual
18
Page: 28
institution because that is what it historically has been. Id. (citing Goodridge v.
Dept of Pub. Health, 798 N.E.2d 941, 961 n. 23 (Mass. 2003)). [A]lthough
[Arkansass marriage laws] rationally promote[] the State's interest in upholding one
particular moral definition of marriage, this is not a permissible justification
[because] the majority view . . . must give way to individual constitutional rights.
Baskin, 766 F.3d at 666.
2.
Encouraging Procreation is not a Sufficient Basis for the

Marriage Bans or Anti-Recognition Laws
Arkansass marriage laws do not contain any requirement that persons

wishing to marry must have an ability or desire to procreate. See Ark. Code Ann.
9-11-1019-11-109. The State cannot selectively rely on the ability to procreate only
when it comes to same-sex couples. The Constitution protects the right of individuals
to marry regardless of their ability or desire to procreate, including those who are
elderly, infertile, and incarcerated. See Lawrence, 539 U.S. at 604 (Scalia, J.,
dissenting)([W]hat justification could there possibly be for denying the benefits of
marriage to homosexual couples exercising [t]he liberty protected by the
Constitution? Surely not the encouragement of procreation, since the sterile and the
elderly are allowed to marry.)(internal citation omitted)). Moreover, the State
cannot condition marriage on such an ability or desire because choosing whether or
not to engage in procreative sexual activity is constitutionally protected from state
intervention. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 48586 (1965).
19
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The States procreation rationale is so far removed from the classification,

[that] it is impossible to credit and relies on factual assumptions that are beyond
the limits of rational speculation. See Windsor v. United States, 833 F. Supp. 2d
394 (S.D.N.Y. 2012)(quoting Romer, 517 U.S. at 635; Heller, 509 U.S. at 320). As
the Seventh Circuit stated, this justification is so full of holes that it cannot be taken
seriously. Baskin, 766 F.3d at 656; see also, Perry v. Brown, 671 F.3d 1052, 1088
(9th Cir. 2012)(There is no rational reason to think that taking away the designation
of marriage from same-sex couples would advance the goal of encouraging
Californias opposite-sex couples to procreate more responsibly.)
3.
Arkansass Marriage Laws Do Not Promote the Best Interests of

Children
[C]hildren raised by gay and lesbian parents are just as likely to be welladjusted as those raised by heterosexual parents. Gill v. Office of Personnel Mgmt.,
699 F. Supp. 2d 374, 388 (D. Mass. 2010). As the American Psychological
Association stated:
[s]cientific evidence strongly supports the conclusion that
homosexuality is a normal expression of human sexuality; that most
gay, lesbian, and bisexual adults do not experience their sexual
orientation as a choice; that gay and lesbian people form stable,
committed relationships that are equivalent to heterosexual
relationships in essential respects; and that same-sex couples are no less
fit than heterosexual parents to raise children and their children are no
less psychologically healthy and well-adjusted than children of
heterosexual parents. In short, the claim that legal recognition of
marriage for same-sex couples undermines the institution of marriage
and harms their children is inconsistent with scientific evidence.
20
Page: 30
United States v. Windsor, Case No. 12-307, Br. of Am. Psych. Assn at 45 (Mar. 1,
2013). [A] stable two-parent family relationship, supported by the states official
recognition and protection, is equally as important for the numerous children . . .
who are being raised by same-sex couples as for those children being raised by
opposite-sex couples (whether they are biological parents or adoptive parents.). In
re Marriage Cases, 183 P.3d at 433.
The States best interest of the children rationale belies the current state of
the law in Arkansas. The Arkansas Supreme Court has expressly allowed
homosexual persons to adopt children. See Dept of Human Servs. v. Cole, 2011 Ark.
145. The Ninth Circuit addressed a similar argument in Latta, 771 F.3d 456, and
concluded as follows:
Defendants argument is, fundamentally, non-responsive to plaintiffs
claims to marriage rights; instead, it is about the suitability of same-sex
couples, married or not, as parents, adoptive or otherwise. That it is
simply an ill-reasoned excuse for unconstitutional discrimination is
evident from the fact that Idaho and Nevada already allow adoption by
lesbians and gays. The Idaho Supreme Court has determined that
sexual orientation [is] wholly irrelevant to a persons fitness or ability
to adopt children. In a state where the privilege of becoming a childs
adoptive parent does not hinge on a persons sexual orientation, it is
impossible to fathom how hypothetical concerns about the same
persons parental fitness could possibly relate to marriage.
Id. at 473 (internal citations omitted). This same disconnect is present here. Arkansas
is actively denying children the benefits of marriage by preventing same-sex couples
from marrying or enjoying recognition of their marriages. Arkansass marriage laws
21
Page: 31
thus accomplish the same end result as the Supreme Court admonished in Windsor
these laws humiliate[] . . . children now being raised by same-sex couples and
cause them financial harm. See Windsor, 133 S. Ct. at 269495 see also, Baskin,
766 F.3d at 66065 (explaining that the State has no legitimate interest in protecting
certain children while disregarding the welfare of others).
4.
Maintaining the Status Quo Is Not a Sufficient Basis Upon Which

to Deny Same-Sex Couples Their Fundamental Rights
The States claims that Arkansass marriage laws reflect a cautious, historical
approach and promote uniformity, stability, and continuity of laws are similarly
unavailing. The District Court properly rejected these rationales, stating that these
interests do not address any specific reasons for the marriage laws at issue. (Add.
32.) Appellants have not demonstrated that the State is proceeding with caution. In
fact, the State has presented no evidence that it is doing anything other than
maintaining its discriminatory exclusion of same-sex couples from the institution of
marriage. The only uniformity, stability, and continuity that Arkansass marriage
laws promote is the ongoing denial of constitutional rights.
The wait and see approach that Appellants advocate, if accepted, would
turn rational basis review into a toothless and perfunctory review because the state
can plead an interest in proceeding with caution in almost any setting. Kitchen v.
Herbert, 961 F. Supp. 2d 1181, 1213 (D. Utah 2013)(affd, Kitchen, 755 F.3d 1193).
Such an approach fails to recognize the role of courts in the democratic process.
22
Page: 32
McGee v. Cole, 2014 WL 5802665, at *11 (S.D. W. Va. Nov. 7, 2014). Courts
cannot avoid or deny this duty just because it arises during the contentious public
debate that often accompanies the evolution of policy making throughout the states.
Id. Certainly, the exclusion of same-sex couples from marriage is longstanding.
Id. The anti-miscegenation laws in Loving were longstanding too. Id. A wait and
see approach was improper then and it is still improper now.
The basic guarantees of our Constitution are warrants for the here and now
and, unless there is an overwhelmingly compelling reason, they are to be promptly
fulfilled. Watson v. Memphis, 373 U.S. 526, 53233 (1963). [A]ny deprivation of
constitutional rights calls for prompt rectification. Id. The States do-nothing
approach is not a sufficient basis for the continuing deprivation of Appellees
constitutional rights.
IV.

MARRIAGE
BANS
AND
ANTI-RECOGNITION
LAWS
AMENDMENT TO THE UNITED STATES CONSTITUTION
The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution provides that no state shall deny to any person within its
jurisdiction the equal protection of its laws. U.S. Const. amend. XIV, 1. The Equal
Protection Clause is essentially a direction that all persons similarly situated should
be treated alike. Cleburne, 473 U.S. at 439. Arkansass marriage laws violate the
23
Page: 33
Equal Protection Clause because they classify individuals on the basis of their sex.
Arkansass marriage laws involve[] sex-based classifications because [they]
prohibit[] a man from marrying another man, but do[] not prohibit that man from
marrying a woman. See Kitchen, 961 F. Supp. 2d at 1206. For example, under
Arkansas law, each Appellee cannot marry her partner, but she could marry her
partner if she or her partner were male. The Equal Protection Clause prohibits such
differential treatment or denial of opportunity based on a persons gender in the
absence of an exceedingly persuasive justification. United States v. Virginia, 518
U.S. at 53233 (internal quotation marks omitted). The District Court correctly
found that Appellants cannot meet this exacting standard.
Appellants argument that Amendment 83 treats all persons exactly the same
without regard to gender (Appellants Br. 26) misses the point. The sex-based
classifications in Arkansass marriage statutes are not immune from heightened
scrutiny simply because they affect men and women in the same manner. The
neutral phrasing of the Equal Protection Clause, extending its guarantee to any
person, reveals its concern with rights of individuals, not groups. J.E.B. v.
Alabama, 511 U.S. 127, 152 (1994)(Kennedy, J., concurring). Thus, the relevant
inquiry is whether the law treats an individual differently because of his or her
gender. Id. at 14041.
The Supreme Court in Loving rejected an analogous argument that Virginias
24
Page: 34
anti-miscegenation law imposed equal restrictions on members of different races,

holding that mere equal application of a statute containing racial classifications is
[not] enough to remove the classification from the Fourteenth Amendments
proscription of all invidious racial discriminations. Loving, 388 U.S. at 8; see also,
Powers v. Ohio, 49 U.S. 410 (1991)(reiterating that racial classifications do not
become legitimate on the assumption that all persons suffer them in equal degree.).
The Supreme Court has applied this same reasoning to gender-based classifications.
See J.E.B., 511 U.S. at 14041 (holding that sex-based peremptory challenges are
unconstitutional even though they affect both male and female jurors). This Court
should do the same.
V.
THE DISTRICT COURT CORRECTLY HELD THAT BAKER v.

COURT JURISPRUDENCE
This Court is not bound by the Supreme Courts summary dismissal for want
of a substantial federal question in Baker v. Nelson, 409 U.S. 810 (1972). This area
of constitutional law has vastly changed since the Baker decision in 1972. As the
District Court noted, it is difficult to reconcile the Supreme Courts statement in
Windsor that the Constitution protects the moral and sexual choices of homosexual
couples, Windsor, 133 S. Ct. at 2694, with the idea that state laws prohibiting samesex marriage do not present a substantial federal question. (Add. 24.)
Courts need not adhere to the view that if the Court has branded a question
25
Page: 35
as unsubstantial, it remains so . . . when doctrinal developments indicate otherwise.

See Hicks v. Miranda, 422 U.S. 332, 344 (1975)(internal quotations omitted).
Summary dismissals lose their binding force when doctrinal developments
illustrate that the Supreme Court no longer views a question as unsubstantial,
regardless of whether the Court explicitly overrules the case. Bostic, 760 F.3d at
373. [S]ubsequent decisions of the Supreme Court not only suggest but make
clear that the claims before us present substantial federal questions. Latta, 171 F.3d
at 466.
As the District Court stated, the summary disposition in Baker is not of the
same precedential value as would be an opinion on the merits. (Add. 2324)(citing
Tully v. Griffing, Inc., 429 U.S. 68, 74 (1976)). A summary disposition affirms
only the judgment of the court below, and no more may be read into [such
disposition] than was essential to sustain that judgment. Montana v. Crow Tribe of
Indians, 523 U.S. 696, 714 n.14 (1998)(quoting Anderson v. Celebrezze, 460 U.S.
780, 785 n. 5 (1983)). The judgment affirmed in Baker addressed a Minnesota
marriage statute that was not enacted for the express purpose of excluding same-sex
couples from marriage and which did not indicate on its face whether same-sex
couples could marry. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). Thus, Baker
did not address the constitutionality of intentionally discriminatory measures, like
those at issue here. Additionally, Baker did notand could notaddress the issue
26
Page: 36
regarding the recognition of marriages entered into in another state because at that
time no jurisdiction in the world permitted same-sex marriage.
In the forty years after Baker, there have been manifold changes to the
Supreme Courts equal protection jurisprudence. Windsor v. United States, 699
F.3d 169, 179 (2d Cir. 2013). When Baker was decided in 1971, intermediate
scrutiny was not yet in the Courts vernacular[,] [c]lassifications based on
illegitimacy and sex were not yet deemed quasi-suspect[, and] [t]he Court had not
yet ruled that a classification of [homosexuals] undertaken for its own sake actually
lacked a rational basis. Id. At that time, the Supreme Court had not yet held that
laws enacted for the express purpose of disadvantaging a particular group violate the
requirement of equal protection. See Moreno, 413 U.S. at 53435. The Court in 1971
had not yet held that same-sex couples have the same protected liberty interests in
their relationships as others. Lawrence, 539 U.S. at 578. Nor had the Supreme Court
affirmed that the right to marry is of fundamental importance for all individuals.
Zablocki, 434 U.S. at 384. Baker did not even address due process. Baker was
decided in the dark ages so far as litigation over discrimination against homosexuals
is concerned. Baskin, 766 F.3d at 660.
As the Tenth Circuit noted in Kitchen, [t]wo landmark decisions by the
Supreme CourtLawrence v. Texas, 539 U.S. 558 (2003), and Windsor, 133 S. Ct.
2675have undermined the notion that the question presented in Baker is
27
Page: 37
insubstantial. (Add. 2122)(quoting Kitchen, 755 F.3d at 1205). Specifically, the

Supreme Court in Lawrence held that intimate conduct with another person . . . can
form but one element in a personal bond that is more enduring. The liberty protected
by the Constitution allows homosexual persons the right to make this choice.
Lawrence, 539 U.S. at 567. The Windsor Court struck down the federal DOMA
statute defining marriage as between one man and one woman. Windsor, 133 S.
Ct. at 2683. These two (2) decisions directly contradict the Courts dismissal for lack
of a substantial federal question in Baker.
Appellants claim that the fact that Baker is not even cited in the Courts
majority opinion in Windsor . . . indicates that doctrinal developments have not
overridden the precedential effect of Baker. This argument is flawed. During oral
argument in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), the companion case to
Windsor, Justice Ginsburg stated: I dont think we can extract much in Baker v.
Nelson. Transcript of Oral Argument at 12. Thus it is not surprising that the
opinions in Hollingsworth and Windsor do not mention Baker. See Hollingsworth,
133 S.Ct. 2652; Windsor, 133 S. Ct. 2675. Not even the dissenters in Windsor
suggested that Baker was an obstacle to lower court consideration of challenges to
bans on same-sex marriage. Wolf v. Walker, 986 F. Supp. 2d 982, 991 (W.D. Wis.
2014). The Supreme Court's willingness to decide Windsor without mentioning
Baker speaks volumes regarding whether Baker remains good law. Bostic, 760 F.3d
28
Page: 38
at 37374. Thus, [a]lthough the Supreme Court's decision in Windsor was silent as
to Baker's impact, statements made by the Justices indicate that lower courts should
be applying Windsor (and not Baker) to the logical next issue of state prohibitions
of same-sex marriage. Bishop, 962 F. Supp. 2d at 1277. The Fourth Circuit
concluded that, [i]n light of the Supreme Court's apparent abandonment of Baker
and the significant doctrinal developments that occurred after the Court issued its
summary dismissal in that case, we decline to view Baker as binding precedent.
This Court should do the same.
CONCLUSION
For the foregoing reasons, the Court should affirm the District Courts
decision that Arkansass Marriage Bans and Anti-Recognition Laws violate the Due
Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution.
Respectfully submitted,
WAGONER LAW FIRM, P.A.
By:
/s/ Jack Wagoner III

Jack Wagoner III, A.B.A. # 89096
Angela Mann, A.B.A. # 2011225
Wagoner Law Firm, P.A.
1320 Brookwood, Suites D & E
Little Rock, AR 72202
Phone: (501) 663-5225
Fax: (501) 660-4030
Email: jack@wagonerlawfirm.com
Email: angela@wagonerlawfirm.com
29
Page: 39
CERTIFICATE OF COMPLIANCE
This brief complies with the page limitation of Fed. R. App. P. 32(a)(7)(A)
because this brief contains 30 pages. This brief also complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 7,503 words,
excluding the parts of the brief which are exempted by Fed. R. App. P.
32(a)(7)(B)(iii).
This brief complies with the typeface requirements set forth in Fed. R. App.
P. 32(a)(5) and the type style requirements set forth in Fed. R. App. P. 32(a)(6)
because this brief has been prepared in Microsoft Word using 14-point Times New
Roman font, a proportionally-spaced typeface.
This brief complies with Eighth Circuit Rule 28A(h)(2) because the electronic
files associated with this brief and filed with the Court have been scanned and are
virus-free.
30
Page: 40
CERTIFICATE OF SERVICE
I, Jack Wagoner III, do hereby certify that, on this date, March 19, 2015, I
submitted the foregoing document with the Clerk of Court for the United States
Court of Appeals for the Eighth Circuit for electronic filing via the Courts ECF/CM
system. Participants in this case who are registered CM/ECF users will be served by
the CM/ECF system.
31
Page: 41

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IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

CASE NO. 15-1022

DUSTIN MCDANIEL, et al.

APPEAL FROM THE UNITED STATES DISTRICT COURT

WAGONER LAW FIRM, P.A.

Appellate Case: 15-1022

Date Filed: 03/20/2015 Entry ID: 4256616

THE REASONING OF THE UNITED STATES SUPREME COURTS

THE STATE CANNOT RELY UPON THE PRINCIPLES OF

III. THE DISTRICT COURT CORRECTLY CONCLUDED THAT

The Right to Marry is a Fundamental Right .................................... 9

The District Court Correctly Applied Strict Scrutiny to Arkansass

The Fact that Arkansas Voters Passed Amendment 83 at the Ballot

The States Other Asserted Rationales for Arkansass

Protecting the Traditional Notion of Marriage is not a

Encouraging Procreation is not a Sufficient Basis for the

Appellate Case: 15-1022

Date Filed: 03/20/2015 Entry ID: 4256616

Arkansass Marriage Laws Do Not Promote the Best Interests

Maintaining the Status Quo Is Not a Sufficient Basis Upon

THE DISTRICT COURT CORRECTLY HELD THAT ARKANSASS

THE DISTRICT COURT CORRECTLY HELD THAT BAKER v.

Date Filed: 03/20/2015 Entry ID: 4256616

Date Filed: 03/20/2015 Entry ID: 4256616

Montana v. Crow Tribe of Indians,

Date Filed: 03/20/2015 Entry ID: 4256616

Univ. for Women v. Hogan,

Date Filed: 03/20/2015 Entry ID: 4256616

Windsor v. United States,

Date Filed: 03/20/2015 Entry ID: 4256616

Date Filed: 03/20/2015 Entry ID: 4256616

United States v. Windsor, 133 S. Ct. 2675 (2013)

THE STATE CANNOT RELY UPON THE PRINCIPLES OF

THE DISTRICT COURT CORRECTLY CONCLUDED THAT

THE DISTRICT COURT CORRECTLY HELD THAT ARKANSASS

Date Filed: 03/20/2015 Entry ID: 4256616

THE DISTRICT COURT CORRECTLY HELD THAT BAKER V.

Date Filed: 03/20/2015 Entry ID: 4256616

SUMMARY OF THE ARGUMENT

Date Filed: 03/20/2015 Entry ID: 4256616

Date Filed: 03/20/2015 Entry ID: 4256616

Date Filed: 03/20/2015 Entry ID: 4256616

out-of-state marriages between members of the same sex (Anti-Recognition

Date Filed: 03/20/2015 Entry ID: 4256616

Date Filed: 03/20/2015 Entry ID: 4256616

THE REASONING OF THE UNITED STATES SUPREME COURTS

invalidated Section 3 of the federal Defense of Marriage Act (DOMA), wherein

Date Filed: 03/20/2015 Entry ID: 4256616

THE STATE CANNOT RELY UPON THE PRINCIPLES OF

Date Filed: 03/20/2015 Entry ID: 4256616

Date Filed: 03/20/2015 Entry ID: 4256616

THE DISTRICT COURT CORRECTLY CONCLUDED THAT

The Right to Marry is a Fundamental Right

Date Filed: 03/20/2015 Entry ID: 4256616

Date Filed: 03/20/2015 Entry ID: 4256616

Date Filed: 03/20/2015 Entry ID: 4256616

The District Court Correctly Applied Strict Scrutiny to Arkansass

Date Filed: 03/20/2015 Entry ID: 4256616

and some opposite-sex couples. Kitchen, 755 F.3d at 1220.

Date Filed: 03/20/2015 Entry ID: 4256616

The Fact that Arkansas Voters Passed Amendment 83 at the Ballot

The States only justification for Arkansass discriminatory marriage laws in

Date Filed: 03/20/2015 Entry ID: 4256616

15-1022 - Arkansas Plaintiffs' Brief

15-1022 - Arkansas Plaintiffs' Brief