V.rN
THE
CTRCUTT
COIJRT OF
PTILASKT
COUNTY, ARKAr{SAS
SECOI\ID
DTVISION
M.
KENDALL WRIGHT,
ET
AL.
Case
No:
60CV-13-2662
STATE OT
ARKANSAS, ET
AL.
ORDER
GRANTING SI]MMARY
JTJDGMENT
IN
FAVOR
OF
THE
PLAINTIFFS
AI\D
FINDING ACT
144
OF
1997
AI\[D
AMEI\DMENT
83
I]NCONSTITUTIONAL
This
case
involves twelve
sarne-sex
couples
who
seek
to
marry
in
Arkansas
and
eight
sarne-sex
couples
who
have married
in
states
that
permit
mariagebetween
same-sex
couples
and
seek
to
have
their
marriages recognized in
Arkansas.
There
are
two
state
laws
at
issue
in
this
matter
which
expressly
prohibit
such
recognition-Act
144
of
1997
of
the Arkansas
General
Assembly
and
Amendment
83
to
the
Arkansas
Constitution. Act
144
states
that
'oa
mariage
shall
be
only
between
a
man and
a
woman.
A
marriage
between persons
of
the
same
sex is
void.
Ark.
Acr
144
of
1997,
$
1
(codified
at
Ark.
Code
Ann.
$
9-11-109).
The
Act
further
provides
that
a
marriage
which would
be
valid
by the
laws
of
the
state
or
county
entered
into by
a
person
of
the
satne
sex
is
void in
Arkansas.
Id.
at
$
2
(codified
at
Ark.
Code
Ann.
$
9-11-107).
Amendment 83,
which
was
approved
by
a
majority
of
voters
in
a
general
election
on
November
2,2004,
states:
$
l.
Marriage
Mariage
consists
of only
the
union
of
one
man and
one
woman
I
ELECTRONICALLY FILED2014-May-09 16:51:4060CV-13-2662C06D02 : 13 Pages
$2.
Marital
Status
Legal
status
for
unmaried
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 mariage from
another
state
between
a
man and
a
woman.
$3.
Capacrty,
rights,
obligations,
privileges
and
immunitiesThe Legislature
has
the
power
to
determine
the
capacrty
of
persons
to
marry,
subject
to
this
amendment, and
the
legal rights,
obligations,
privileges, and immunities
of
marriage.
The
plaintiffs
contend
that
these
prohibitions infringe
upon
their
due
process
and
equal
protection rights
under the Fourteenth Amendment
of
the
United
States
Constitution and
Article
2, $ 3
of
the
Arkansas
Constitution's
Declaration
of
Rights.
The
State
of
Arkansas
defends
that
it
has
the
right
to
define
marriage
according to
the
judgment
of
its citizens through
legislative
and
constitutional
acts.
Both
parties have
submitted motions
for
summary
judgment.
The Equal
Protection
Clause
forbids
a
state
from
denying
to
any
person
within
its
jurisdiction
the
equal
protection of the
laws,
U.S. Const.
amend.
XIV,
$
1,
and promotes
the
ideal
that
all
persons
similarly
situated should
be
treated
alike.
Cleburne
v.
Cleburne
Living
Center,
Inc.,
473 U.S.
432,
439
(1985).
However,
states
are empowered
to perform
many
of
the
vital
functions
of
modern
government,
Nat'l
Fed'n of
Indep. Bus.
v.
Sebelius,
- U.S.
132
S.Ct.
2566, 2578 (2012),
which
necessarily
involves
adopting
regulations
which
distinguish between certain groups
within
society.
See
Romer v.
Evans,5l7
U.S.
620,
631
(1996).
Therefore,
all
courts must
balance
equal protection
principles
with
the
practical
purposes
of
government
when
reviewing
constitutional
challenges
to
state
laws.The
United
States
Supreme
Court
has
outlined
three categories
for
analyzing
equal
protection challenges. The
most
rigorous is
referred
to
as
strict
scrutiny,
which
is reserved
for
laws that interfere
with
the
exercise
of
a
fundamental
right ordiscriminate
against
o'suspect
classes.
See
Plyler
v. Doe, 457
U.S.
202,216-2L7
(1982).
A
more
relaned standard
of
review
is
intermediate
or
heightened scrutiny,
which
courts
have
applied
to
laws that
discriminate
against
groups
on the
basis
of
gender, alienage
or
illegitimacy
(also
referred
to
as
'oquasi-suspect
-2'
classes ).
See
Clark
v.
Jeter,486 U.S. 456,461(1988); Miss.
Univ.
for
Women
v.
Hagan,
458 U.S.
718,
723:724
(1982). When
the
law
does
not
interfere
with
a
fundamental
right or
the
rights
of
a
suspect
or
quasi-suspect class,
rational
basis
review
applies.
Here, the
Arkansas
marriage laws
implicate both a
fundamental
right
and
the
rights
of
a suspect
or
quasi-suspect
class.
Although
marriage
is
not
expressly
identified
as
a
fundamental
right in
the
Constitution,
the United
States Supreme
Court
has repeatedly recognized
it
as
such.r
It
has
also
consistently applied
heightened
scrutiny
to
laws that discriminateagainst
groups
considered
to
be
a
suspect
or
quasi-suspect
classification.
Mass.
Bd.
of Ret. v.
Murgia,
427
U.5.307,313
(1976) (a group that
has experienced
a
history
of
purposeful unequal treatment
or
[has] been
subjected
to
unique
disabilities on the
basis
of
stereotyped characteristics
not
tnrly
indicative
of
their
abilities. ).
Courts
consider whether
the
characteristics
that distinguish the
class
indicate
a
tlpical
class
member's
ability
to
contribute
to
society, Cleburne,
473
U.S.
at
440*4-l; whether the distinguishing characteristic
is
'oimmutable or beyond
the
group member's control,
LWg
,.
Castillo, 477 U.S. 635, 638
(1986);
and
whether the
group is
ooa
minority
or
politically
powerless, Bowen
v.
Gilliard,
483I
See
M.L.B.
v.
S.L.J.,519 U.S. 102,116
(1996) (quoting Boddie
v.
Connecticut,
401U.S.
371,
376
(1971))
(finding
that
choices about
mariage
are
among associational
rights
this
Court
has
ranked
as
'of
basic importance
in
our society'
');
Planned
Parenthood of
Southern Pennsylvoniav. Casey,505
U.S.
833, 848 (1992)
(finding
marriage
to
be an aspect
of liberty
protected against
state
interference
by the
substantive component
of
the Due
Process
Clause ); Turner v.
Satley,
482
U.S.
78,97
(1987)
(finding
that
a
regulation
that
prohibited
inmates
from
marrying
without
the permission
of
the warden
impermissibly btrdened their
right to
marry);
ZablocW v. Redhail,434
U.S.
374,383-84
(1978)
(defining
marriage
as a
right
of liberty);
Corey
v.
Population
Sertts.
Int'|,
431U.S.
678,
68,t-85
(1977)
(finding
that
the
right to privacy
includes
personal decisionsrelating
to maniage);
United
States v.
Kras,409 U.S.
434,446 (1973) (concluding
that the
Court
has
come
to
regard
[marriage]
as
fundamental );
Boddie,40l
U.S.
at
376 (defining
marriage
as
a
basic
importance
in
our society ); Loving
v.
Yirgina,388 U.S.
1,
12
(*Marriage
is
one
of
the
'basic
civil
rights
of
man,'
firndamental
to
our
existence
and
survival
(quoting Skinner
v.
OHahoma
ex
rel.
Willianson,
316
U.S.
535
541
QgaD); Griswoldv.
Connecticue
381 U.S. 479,
436
(1965)
(defining
marriage
as
a
right
of
privacy
and
a coming
together
for
better
or
for
worse,
hopefully
enduring, and
intimate to
the
degree
of
being
sacred ); Skinner
v.
OHahoma
ex
rel. Wiamson,316
U.S. 535,
541
(1942)
(finding
marriage
to
be
a'obasic
civil
right[
]
of man );
Meyer
v.
Nebraska,
262U.5.390,399
(1923)
(ttre
right to marry is
a
central part
of
Due
Process
liberty);
Andrews
v.
Andrews,
188
U.S.
14,
30 (1903) (quoting
Maynard
v.
Hill,
125
U.S.
190,
205
(1888))
(finding
marriage
to
be most
important
relation
in
life ),
abrogated
on
othergrounds, Sherrer
v.
Sherrer,
334
U.S. 343,
352 (19a8);
Maynard,
125
U.S.
at
205
(marriage
creates
the
most
important relation in life )(same).
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