Same-sex marriage bans in Mississippi, Arkansas overturned

Mississippi's and Arkansas' bans on gay marriage overturned, but orders are on hold to give time for appeals

Arkansas and Mississippi on Tuesday became the latest states to have same-sex marriage bans overturned by federal judges, but there are no rushes to the altar as both orders are on hold so the states can consider appeals.

Like several other states, Arkansas and Mississippi had constitutional amendments approved by voters in 2004 that defined marriage as between a man and a woman.

In Arkansas, U.S. District Judge Kristine Baker ruled in favor of two same-sex couples who had challenged the amendment. They argued that the ban violated the U.S. Constitution and discriminated based on sexual orientation.

"The fact that Amendment 83 was adopted by referendum does not immunize it from federal constitutional scrutiny," Baker wrote in her ruling.

Besides the amendment, Mississippi has a 1997 law that bans same-sex marriage.

But U.S. District Judge Carlton Reeves wrote in his ruling, "The 14th Amendment operates to remove the blinders of inequality from our eyes. Though we cherish our traditional values, they must give way to constitutional wisdom. Mississippi's traditional beliefs about gay and lesbian citizens led it to defy that wisdom by taking away fundamental rights owed to every citizen. It is time to restore those rights.

"Today's decision may cause uneasiness and concern about the change it will bring," he wrote. "But '[t]hings change, people change, times change, and Mississippi changes, too.' The man who said these words, Ross R. Barnett Jr., knew firsthand their truth."

Barnett is an attorney and son of segregationist Mississippi Gov. Ross Barnett, who was in office from 1960 to 1964.

The ruling was similar in Arkansas.

Arkansas’ marriage laws and the amendment to the state’s constitution violate the U.S. Constitution by "precluding same-sex couples from exercising their fundamental right to marry in Arkansas, by not recognizing valid same-sex marriages from other states, and by discriminating on the basis of gender," Baker wrote.

Baker put the ruling on hold, anticipating an appeal to the 8th U.S. Circuit Court of Appeals, based in St. Louis.

Arkansas Atty. Gen. Dustin McDaniel, a Democrat, is reviewing the ruling and will consult with Atty. Gen.-elect Leslie Rutledge, a Republican, and decide after the Thanksgiving holiday whether to appeal, a McDaniel spokesman said. 

Mississippi officials had already said they planned to appeal any ruling that overturned the law in their state.

Jack Wagoner, a lawyer for the Arkansas couples who had told the judge last week that same-sex marriage would eventually be legal nationwide, said he was pleased with Baker’s decision.

"She's on the right side of history," Wagoner said. "It's pretty clear where history's heading on this issue."

Another lawyer, Cheryl Maples, said eyes would turn now to the Arkansas Supreme Court, which heard arguments last week in a similar but separate case.

"If the state Supreme Court strikes down on state constitutional issues, then it's gone as far as it can go," Maples said.

Justices are weighing whether to uphold a decision in May striking down the 2004 amendment and earlier state law as unconstitutional. The decision led to 541 same-sex couples getting married in the week before the state Supreme Court suspended the ruling.

Justices have not indicated when they will rule in that case.

Lawyers in McDaniel's office had argued in federal court that same-sex marriage was not a fundamental right guaranteed by the Constitution. McDaniel has said he personally supports allowing gay couples to marry but will stay in court defending the ban, which voters approved by a 3-1 margin.

Judges across the country have ruled against bans similar to Arkansas' since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act in June 2013, and same-sex marriage is now legal in most states in the U.S.

Chad Griffin, an Arkansas native who heads the Human Rights Campaign, the nation's largest gay rights group, praised the judge's ruling in the state.

"I am proud to be an Arkansan by birth, but I'll be even prouder when this shameful stain on the state constitution is erased once and for all," Griffin said in a statement.

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