LITTLE ROCK, Ark. — Arkansas Supreme Court justices questioned Thursday whether banning same-sex marriage is constitutional just because voters approved it a decade ago, even if the restriction conflicts with rights outlined in the state’s constitution.
Opponents and supporters of the 2004 constitutional amendment defining marriage as between a man and woman embarked on a day of back-to-back hearings in federal and state courts. Voters approved the ban by a 3-1 margin.
“This court should defer to the Democratic process and defer to the voters of Arkansas, and hold that there is no fundamental right to same-sex marriage,” Assistant Attorney General Colin Jorgensen told the high court.
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But at least two members of the court expressed skepticism about that argument, with one questioning whether it would allow the state to enforce prohibitions against other minority groups.
Justices are weighing whether uphold a Pulaski County judge’s decision earlier this year that the ban violates the state and federal constitutions. Circuit Judge Chris Piazza’s May ruling led to 541 same-sex couples being wed during the week before the state Supreme Court put his ruling on hold.
Judges across the country have ruled against bans similar to Arkansas’ since the U.S. Supreme Court struck down part of a federal anti-gay marriage law in June 2013, and gay marriage is legal in more than half of the U.S.
The state Supreme Court did not indicate when it would issue a ruling in the case over Arkansas’ ban.
Jack Wagoner, an attorney for a group of 20 same-sex couples challenging the ban, said the state’s place in history could be determined by the court’s ruling, and compared it to Gov. Orval Faubus’ fight against school desegregation in 1957.
“For 50 years, that was our national image. Our next 50 years in history could be cemented if we’re on this side of the team,” he said, referring to opponents of gay marriage.
Justices heard the case hours before U.S. District Judge Kristine Baker was set to hear similar arguments in a separate challenge. Two justices quizzed the state over its defense.
“What’s to keep the state from enforcing those positions by the majority of the people to the detriment of unpopular minorities?” Justice Donald Corbin asked Jorgensen at one point.
Justice Paul Danielson questioned how the amendment could be considered constitutional if they believed it conflicted with other rights in Arkansas’ constitution.
“Are you saying the declaration of rights in our constitution … is still there, except for homosexuals?” Danielson said
Jorgensen said the state doesn’t believe the amendment conflicts with those rights, but said that amendments trump earlier provisions of the constitution if there’s a conflict.
Attorney General Dustin McDaniel, whose office is representing the state, has said he supports legalizing same-sex marriage but will continue defending Arkansas’ ban. McDaniel, a Democrat, is leaving office in January due to term limits.
Both state and federal lawsuits are also challenging the state’s prohibition on recognizing gay marriages from other states.
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