Wednesday evening, a federal judge declared that Arkansas’ ban on same-sex marriage is unconstitutional and ordered the state to stop enforcing it. The decision came with a stay, meaning that same-sex couples cannot begin marrying begin until the deadline to appeal, and only if no appeal is filed. The Arkansas Supreme Court, however, is also considering a case challenging the ban, and if that court rules against it, the timeline for the suit in federal court will be irrelevant.
In her opinion, Judge Kristine Baker, an Obama appointee, largely quoted from the myriad of other federal court opinions that have similarly ruled against state marriage bans. She was not convinced by the Sixth Circuit’s recent ruling upholding these bans, nor its specific conclusion that the 1972 Supreme Court dismissal in Baker v. Nelson is still controlling and prevents federal courts from ruling against bans. Explaining that several rulings have impacted the validity of that precedent, Baker wrote, “This Court determines that the Sixth Circuit’s reasoning is not as persuasive on this point as that of the Fourth, Seventh, Ninth, and Tenth Circuits.”
Baker also borrowed a tactic many other judges have used in their rulings: quoting Justice Scalia to make a point that actually helps the same-sex couples in the case. In this instance, she was countering the state’s argument that the purpose of marriage is procreation and caring for children. She referred to a comment Scalia made in his dissent in Lawrence v. Texas, which overturned the nation’s remaining sodomy laws in 2003. “What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising the liberty protected by the Constitution?” he wrote. “Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”
The Arkansas ruling is also unique in that it determined that the state’s ban discriminates on the basis of gender. The Eighth Circuit’s ruling in a 2006 case in Nebraska precluded Baker from ruling that the laws discriminate on the basis of sexual orientation, but she bypassed that by simply pointing out that it does not allow individuals to select the gender of their spouse. The state argued that it treats all genders the same, preventing them from marrying the same gender equally, but Baker noted that the same argument, when applied to race, failed when defending bans on interracial marriage in the case of Loving v. Virginia: “In Loving, the Supreme Court rejected the argument that anti-miscegenation statutes did not discriminate based on race because the statutes applied equally to African Americans and Caucasians. That rationale applies here as well.”
This is not Arkansas’ first court decision overturning its ban. Back in May, a state judge ruled against it, and same-sex couples even began marrying. The State Supreme Court stopped marriages from advancing, but could rule any day now that the lower court was right. Such a ruling would moot the federal case from having to proceed, but if the Arkansas Supreme Court upholds the ban, the federal case will proceed just as similar cases have in other states.