LITTLE ROCK, Ark. — A county judge was wrong to find that Arkansas’ ban on same-sex marriage violated the state and federal constitutions, the attorney general’s office argued Monday as it asked the state’s highest court to uphold the prohibition.
Arkansas Attorney General Dustin McDaniel asked the state Supreme Court to find the ban on gay marriage constitutional, arguing the state’s voters have a right to define marriage.
The state is appealing Pulaski County Circuit Judge Chris Piazza’s May decision striking down a 2004 constitutional amendment and earlier law defining marriage as between a man and a woman.
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Piazza’s ruling led to 541 gay couples receiving marriage licenses before the decision suspended by the state Supreme Court.
In its brief, the attorney general’s office argued that Piazza was wrong to find a part of the state’s constitution was itself unconstitutional. Voters approved the ban by a 3-1 margin in the 2004 election.
“As a matter of well-established Arkansas law, a constitutional provision cannot violate earlier provisions of the constitution,” the brief said. “Where there is an inconsistency between an earlier provision of the Arkansas Constitution and a later amendment, the amendment, being the more recent expression of the will of the people, prevails.”
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The AG’s office also cited the U.S. Supreme Court’s 2013 ruling in United States v. Windsor that struck down part of the Defense of Marriage Act, enabling the federal government to start granting benefits to married same-sex couples. McDaniel’s office argued that ruling allows Arkansas to define marriage.
“The federal law at issue in Windsor was unconstitutional because it interfered with the right of New York citizens to define marriage for their community. Likewise, Arkansas citizens have the right to define marriage for their community,” the brief said.
McDaniel, a Democrat serving his final year in office, announced earlier this year that he supports marriage equality but would continue defending the state’s ban in court. A group of same-sex couples are also challenging the ban in federal court.
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Ark. justice recuses from same-sex marriage appeal
Last week, Arkansas Supreme Court Justice Cliff Hoofman recused himself from considering the appeal of Judge Chris Piazza’s decision striking down the state’s constitutional and statutory ban on same-sex marriage.
The Arkansas Times reports that Hoofman’s recusal was filed on Sept. 10 and came with no explanation.
