LITTLE ROCK, Ark. — Arkansas Supreme Court justices questioned Thursday whether banning gay marriage is constitutional just because voters overwhelmingly wanted to a decade ago, even if the restriction conflicts with other fundamental rights.
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 over lawsuits in federal and state courts. Neither court issued a ruling Thursday and did not indicate when they might do so.
“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 state’s highest court Thursday morning.
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But at least two members of the court expressed skepticism, with one questioning whether it would allow the state to enforce prohibitions against other minority groups.
Later Thursday, a lawyer for two gay couples suing the state in federal court told a judge that institutional discrimination could not be tolerated.
“We are not a majority-rule country. Just because the voters go and try to vote away a right of people that are not in the majority, they don’t get to do that if it violates those people’s constitutional rights. That is the cool thing about America,” lawyer Jack Wagoner told U.S. District Judge Kristine Baker during a 56-minute argument that included an 86-page PowerPoint presentation.
High court justices are weighing whether uphold Pulaski County Circuit Judge Chris Piazza’s May decision that the ban violates the state and federal constitutions. That led to 541 same-sex couples being wed during the week before his ruling was put 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.
Wagoner, separately representing 20 same-sex couples challenging the ban in state court, said Arkansas’ place in history could be determined by a favorable state Supreme 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.
Meanwhile, two justices in particular took turns questioning the state’s lawyer.
“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 asked.
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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