Arkansas Marriage Ban Case Heading to 2 Courts

Arkansas' highest court and a federal judge will hear arguments this week over the state's ban on same-sex marriage, a decade after voters approved a constitutional amendment defining marriage as between a man and a woman.

Attorneys for the state and a group of gay couples are scheduled to appear before the Arkansas Supreme Court on Thursday morning, as justices weigh whether to uphold a Pulaski County judge's May ruling against the ban. Before that decision was suspended a week later, 541 gay couples received licenses.

Just a few hours later Thursday, the same attorneys will be making similar arguments before a federal judge in a separate lawsuit.

Opponents of gay marriage acknowledge the odds aren't on their side, given the recent spate of state bans being struck down since the U.S. Supreme Court did away with part of a federal anti-gay marriage law in June 2013.

"I'm not very optimistic ... But I would love to be surprised by the courts and have them uphold the marriage amendment," said Jerry Cox, the head of the Arkansas Family Council, which had campaigned for the state's 2004 gay marriage amendment.

Same-sex couples can marry in 32 states, parts of Kansas and Missouri, and Washington, D.C.

And in a sign of just how quickly the national landscape is changing, attorneys for same-sex couples challenging Arkansas' ban on Tuesday added several court rulings that have been issued since the summer to their argument.

"This is a really fast developing area," said Jack Wagoner, an attorney representing same-sex couples in both cases.

Pulaski County Circuit Judge Chris Piazza in May struck down the 2004 constitutional amendment and earlier state law with the same marriage definition, saying it ran afoul of both the U.S. and state constitutions.

"This is an unconstitutional attempt to narrow the definition of equality," Piazza wrote in his ruling. "The exclusion of a minority for no rational reason is a dangerous precedent."

Sarah Warbelow, the legal director for the Human Rights Campaign, the nation's largest gay rights group, said the number of couples married during that window could put pressure on the courts.

"It does change the dynamic," she said.

The arguments before the state Supreme Court will focus not just on the constitutionality of the ban, but also whether Piazza had the authority to strike it down.

Attorney General Dustin McDaniel's office has argued that a constitutional amendment can't be found unconstitutional. McDaniel, a Democrat who is leaving office in January, has said he supports legalizing gay marriage but will continue defending the ban in court.

U.S. District Judge Kristine Baker will hear arguments Thursday afternoon from the state that the lawsuit challenging the ban should be dismissed and arguments from a group of same-sex couples that the ban should be struck down immediately.

The Family Council has been focusing primarily on the state Supreme Court proceedings, since the justices are elected, and planned to hold a rally on the Capitol steps Wednesday morning.

This story is part of our special report: "Gay Marriage". Want to read more? Here's the full list.