LITTLE ROCK, Ark. — Lawyers for the state and the Faulkner County clerk asked a judge Thursday to dismiss a lawsuit that seeks to allow gay marriages in Arkansas.
A number of same-sex couples sued in July, two weeks after the U.S Supreme Court issued two rulings supporting gay-marriage laws. They claim a 2004 constitutional amendment approved by Arkansas voters, which defines marriage as between one man and one woman, should be thrown out.
Some of the couples want Arkansas to recognize same-sex marriages from other states. Others want the opportunity to marry. They say the federal court decision supports them.
But Assistant Attorney General Colin Jorgenson said the voters’ will – Amendment 83 passed by a 3-1 margin – could not be thrown out because the state’s residents had a right to determine their own constitution.
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“Domestic relations laws are the province of the states,” he said, adding the U.S. Supreme Court rulings “did not say states must recognize same-sex marriage.”
At the end of a three-hour hearing, the judge did not indicate when he might rule – or how, telling lawyers that he typically knows which way he is leaning while considering a request to throw out a case.
“I’m floating on a creek right now,” Pulaski County Circuit Judge Chris Piazza said.
The couples claim that the state’s constitution includes a provision that guarantees rights for all people. Jorgenson says that while that is true, the people can make changes.
“That’s what the people have done with Amendment 83,” he said.
Jorgenson also said an 1851 case cited by the couples as a precedent – which saw a constitutional amendment overturned – involved a change made by legislators. Jorgenson said that decision made clear that the people have the right to make the same change.
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That injunction request applied only to couples who were married out-of-state but are not recognized as married here. Lawyer Jack Wagoner said one couple is expecting a child in early 2014 and wants to register as a same-sex couple on the child’s birth certificate.
Wagoner said it would be an extraordinary step for Piazza to dismiss the lawsuit outright. He said a preliminary injunction was in order because the couples were suffering irreparable harm by the state not recognizing their relationships.
Wagoner said it was wrong for Jorgenson to say the couples were only being denied a right to “same-sex marriage.” He said the couples were being denied a right simply to marriage, and cited a 1978 case that said the right to marry is a fundamental right for all individuals.
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