Judge hears arguments in challenge to same-sex marriage ban

LITTLE ROCK — Lawyers for the state and the Pulaski County clerk asked a judge Thursday to dismiss a lawsuit challenging the state’s ban on same-sex marriage, saying voters exercised their legal right to change the state constitution when they approved an amendment in 2004 defining marriage as between a man and a woman.

A lawyer for a group of same-sex couples who brought the lawsuit in July argued that the amendment violates the state and U.S. constitutions.

The lawyers were in court for a hearing on a motion by the defendants for summary judgment and a motion by the plaintiffs for a preliminary injunction that would lift the ban immediately. Circuit Judge Chris Piazza took the matter under advisement and did not indicate when he would rule.

The plaintiffs filed the lawsuit a day after the U.S. Supreme Court struck down the federal Defense of Marriage Act, which defined marriage as a union between one man and one woman. Lawyers for the plaintiffs argued that Arkansas’ marriage amendment should be struck down as well because it violates provisions in both the federal and state constitutions mandating equal treatment under the law.

The plaintiffs are seeking either to get married in Arkansas or to have their marriages from other states recognized in Arkansas. Attorney Jack Wagoner argued that Arkansas currently recognizes marriages of opposite-sex couples from other states but treats same-sex couples differently.

“Their marriage goes away when they enter the state. That’s treating people differently,” Wagoner said.

He also argued that the amendment violates same-sex couple’s fundamental right to privacy.

David Hogue, attorney for the Pulaski County clerk, argued that “the state has a reasonable interest in channeling the procreative power of males and females into traditional marriage.”

Hogue said Arkansas does not prohibit the plaintiffs from marrying.

“They have a fundamental right to marry. They just can’t marry any person they want to,” he said.

Assistant Attorney General Colin Jorgensen, representing the state, argued that the right to privacy is not an issue in the case because the plaintiffs, to the contrary, are “seeking public recognition of their relationships.”

Wagoner said the U.S. Supreme Court has held that marriage is a part of the right to privacy.

“You cannot separate them,” Wagoner said.

Jorgensen also argued that the question before the court was not whether voters properly defined marriage but whether they had the power to amend the constitution. The measure received about 75 percent of the vote.

“They have the power, like it or not,” Jorgensen said.

Wagoner argued that the purpose of constitutional rights is to protect people in the minority from the will of the majority.

Piazza said he would need time to consider the arguments.

“I’m floating on a creek right now and I just don’t know which way I’m going to go,” he said.