The Slow, Risky Road To Repealing Arkansas’ Ban On Same-Sex Marriage


Arkansas Attorney General Dustin McDaniel (D)

Arkansas Attorney General Dustin McDaniel (D)

Arkansas is one of many states where the fight for marriage equality has picked up since the U.S. Supreme Court ruled against the Defense of Marriage Act. Though lawsuits are underway at both the state and federal level challenging Arkansas’ ban on same-sex marriage, some advocates are trying to repeal the state’s marriage discrimination amendment through a ballot initiative.

Attorney General Dustin McDaniel (D) is not making this process easy. It is his job to certify the details of a ballot initiative, and this week he rejected a marriage equality proposal for a second time. According to his opinion, McDaniel clearly does not personally believe that gay people have a right to marry someone of the same sex:

Under current Arkansas law, a marriage between two people of the same sex is not “legally recognized.” Hence, as I noted in response to your first submission, your proposal remains unclear regarding whether it intends “(a) to recognize what you take to be a pre-existing right to same-sex marriage in Arkansas or (b) to create a right to same-sex marriage in Arkansas.” This foundational ambiguity also manifests itself in the problem, which was noted above, that the ballot title fails to give the voter any account of how the current law will be changed.

McDaniel is speaking to the fact that in Arkansas, there is both a statutory law and a constitutional amendment banning same-sex marriage. The proposed amendment attempts to undo both, which McDaniel seems to believe is still too confusing to voters.

But McDaniel did approve a ballot initiative that proposes a smaller step. That measure would repeal the constitutional amendment, but wouldn’t change the law banning same-sex marriage. The legislature would still have to take that step, although without the constitutional language, the Arkansas Supreme Court could also potentially arrive at a ruling that the law banning same-sex marriage is unconstitutional. Here is the language that McDaniel, after making a few edits of his own, approved:

An amendment to the Arkansas Constitution to repeal Arkansas Constitution Amendment 83, the Arkansas marriage amendment. Amendment 83 provides that marriage consists only of the union of one man and one woman and that legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas. This proposed repeal of Amendment 83, if approved by the voters, will not in itself legalize same-sex marriage, which is currently prohibited by Arkansas statute. This amendment will revive the General Assembly’s authority to pass such laws relating to same-sex marriage as it deems appropriate.

Proponents of the an initiative to fully implement marriage equality could — and likely will — submit a third attempt at language for McDaniel to approve. Still, either course suggests a long — and risky — road ahead for changing Arkansas laws to allow same-sex couples to marry, particularly given a recent poll found that only 38 percent of Arkansas voters support marriage equality. The Human Rights Campaign, which conducted the poll, optimistically pointed out that 61 percent of voters under the age of 30 do support marriage equality, which is encouraging, but not promising. Public referendum campaigns like this take a big toll on the LGBT community, both financially and psychologically — a big expense that could all be for naught.