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IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

SECOND DIVISION


M. KENDALL WRIGHT, et al PLAINTIFFS


VS. Case No. 60CV-13-2662


NATHANIEL SMITH, MD, MPH, et al DEFENDANTS


STATE DEFENDANTS
MOTION FOR SUMMARY JUDGMENT


COME NOW the Director of the Arkansas Department of Health, in his official capacity,
and his successors in office, and the Director of the Arkansas Department of Finance and
Administration, in his official capacity, and his successors in office (the State Defendants or
the State), by and through undersigned counsel, and offer the following Motion for Summary
J udgment pursuant to Rule 56 of the Arkansas Rules of Civil Procedure. The State Defendants
are represented herein by the Office of the Arkansas Attorney General pursuant to Ark. Code
Ann. 25-16-702(a), which requires the Attorney General to serve as counsel for state agencies
and entities when requested. See id. (The Attorney General shall be the attorney for all state
officials, departments, institutions, and agencies. Whenever any officer or department,
institution, or agency of the state needs the services of an attorney, the matter shall be certified to
the Attorney General for attention.).




ELECTRONICALLY FILED
2014-Feb-26 15:32:24
60CV-13-2662
C06D02 : 13 Pages
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1. At the general election held on November 2, 2004, Arkansas voters approved a
constitutional amendment by a vote of 753,770 (74.95%) for, to 251,914 (25.05%) against, see
www.sos.arkansas.gov/electionresults/index.php?elecid=66, which became Amendment 83 to
the Arkansas Constitution. Amendment 83 provides in full:
1. Marriage
Marriage consists only of the union of one man and one woman.
2. Marital Status
Legal status for unmarried persons which is identical or
substantially similar to marital status shall not be valid or
recognized in Arkansas, except that the legislature may recognize a
common law marriage from another state between a man and a
woman.

3. Capacity, rights, obligations, privileges and immunities
The Legislature has the power to determine the capacity of persons
to marry, subject to this amendment, and the legal rights,
obligations, privileges, and immunities of marriage.

Id.



2. The Arkansas General Assembly had previously adopted Act 144 of 1997,
codified at Ark. Code Ann. 9-11-109, which declared that [m]arriage shall only be between a
man and a woman. A marriage between persons of the same sex is void. See also Ark. Code
Ann. 9-11-107(b) (Arkansas recognition of certain foreign marriages shall not apply to a
marriage between persons of the same sex). Finally, Act 144, codified at Ark. Code Ann. 9-
11-208, provides:
(a)(1)(A) It is the public policy of the State of Arkansas to
recognize the marital union only of man and woman.

(B) A license shall not be issued to a person to marry
another person of the same sex, and no same-sex marriage
shall be recognized as entitled to the benefits of marriage.
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(2) Marriages between persons of the same sex are prohibited in
this state. Any marriage entered into by a person of the same sex,
when a marriage license is issued by another state or by a foreign
jurisdiction, shall be void in Arkansas, and any contractual or other
rights granted by virtue of that license, including its termination,
shall be unenforceable in the Arkansas courts.

(3) However, nothing in this section shall prevent an employer
from extending benefits to a person who is a domestic partner of an
employee.

Id.



3. These Arkansas statutes mirror the laws of a majority of other states that likewise
limit marriage to opposite-sex couples and frequently provide that state law does not recognize
marriage between persons of the same sex, even if obtained in a jurisdiction that allows same-sex
marriage. Though a few state supreme courts have struck down laws prohibiting same-sex
marriage under provisions of state constitutions, and a few federal district courts have struck
down traditional marriage laws under the United States Constitution, most of these laws have
stood unchallenged or have been upheld against challenges in both state and federal courts and
remain in effect today.
4. Plaintiffs are gay and lesbian couples living in Arkansas, three children, and an
individual who seeks a divorce from a same-sex spouse she married in another jurisdiction
(Plaintiffs). Plaintiffs challenge the constitutionality of Amendment 83 to the Constitution of
Arkansas and Arkansas Act 144 of 1997. Plaintiffs generally allege that they are in long-term,
committed relationships; that some of them have married in other jurisdictions; and that some of
them have attempted to marry in Arkansas but have been denied because same-sex marriage is
prohibited in Arkansas under Amendment 83. The State does not dispute these general factual
allegations.
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5. Plaintiffs contend that Amendment 83 and Act 144 of 1997 (1) violate various
provisions of the Declaration of Rights of the Arkansas Constitution, art. 2, 1 to 29
(Complaint, 170 176); (2) deprive Plaintiffs of the right to marry under the Due Process
Clause of the Fourteenth Amendment of the United States Constitution (id., 177 183); (3)
deprive Plaintiffs of their liberty interest in autonomy, family integrity, and intimate association
under the Due Process Clause of the Fourteenth Amendment (id., 184 189); (4) deprive
Plaintiffs of their liberty interest in valid marriages under the Fourteenth Amendment (id., 190
195); (5) deprive Plaintiffs of the right to interstate travel under the Fourteenth Amendment
(id., 196 202); (6) discriminate against Plaintiffs on the basis of sexual orientation in
violation of the Equal Protection Clause of the Fourteenth Amendment (id., 203 217); and
(7) discriminate against Plaintiffs on the basis of gender in violation of the Equal Protection
Clause of the Fourteenth Amendment (id., 218 227).
6. Plaintiffs request a declaration that Amendment 83 and Act 144 of 1997 are
unconstitutional under the state and federal constitutions. Complaint, Prayer for Relief, 1-3.
Plaintiffs request a permanent injunction barring enforcement of these laws and directing the
Defendants to recognize marriages of same-sex couples validly entered into in other jurisdictions
(id., 4), directing the Defendants to recognize the New York marriage of Plaintiff Arica
Navarro and Defendant Patricia Navarro, and grant a divorce to Plaintiff Arica Navarro (id., 5),
requiring the Arkansas Department of Health Director to issue birth certificates for children born
of same-sex marriages reflecting the parties to the marriages as the parents of the children (id.,
6), requiring the Arkansas Department of Finance and Administration Director to accept joint tax
returns filed by same-sex couples married in other jurisdictions (id., 7), and awarding
attorneys fees and costs (id., 8).
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7. Plaintiffs challenges to Amendment 83 and Act 144 of 1997 fail under binding
precedent of the United States Supreme Court and the Arkansas Supreme Court and persuasive
precedent of the United States Court of Appeals for the Eighth Circuit. The Defendants are
entitled to judgment as a matter of law under the undisputed facts of this case. The States
Motion for Summary J udgment should be granted accordingly.
8. Plaintiffs Arkansas constitutional claims are barred as a matter of law, and the
State is therefore entitled to summary judgment on the state-law claims. Amendment 83 is part
of the Arkansas Constitution. As a matter of well-established Arkansas law, a constitutional
provision cannot violate the Constitution. 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. Amendment 83 was enacted directly by the
people of Arkansas in the exercise of their sovereign power to amend their constitution, as
explicitly set forth in the Arkansas Constitution of 1874. Plaintiffs state-law challenges to
Arkansas Act 144 of 1997, Ark. Code Ann. 9-11-208, and Ark. Code Ann. 9-11-107(b),
likewise fail on the merits, because these laws are entirely consistent with, and explicitly
authorized by, Amendment 83, which is a valid part of the Arkansas Constitution. Plaintiffs
claims brought under the Arkansas Constitution are entirely barred because of Amendment 83 to
the Arkansas Constitution. Accordingly, summary judgment should be granted to the
Defendants on Plaintiffs state-law claims.
9. By history and tradition the definition and regulation of marriage . . . has been
treated as being within the authority and realm of the separate States. U.S. v. Windsor, 570 U.S.
___, 133 S.Ct. 2675, 2689-90 (U.S. No. 12-1307 J une 26, 2013). The United States Supreme
Court has long maintained that a State has absolute right to prescribe the conditions upon which
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the marriage relation between its own citizens shall be created, and the causes for which it may
be dissolved. Pennoyer v. Neff, 95 U.S. 714, 734-35 (1878). The Supreme Court recently
affirmed this deeply rooted deference to state regulation of marriage. Windsor, 133 S.Ct. at
2691-92. In Windsor, the Supreme Court struck down Section 3 of the federal Defense of
Marriage Act, not because the recognition of same-sex marriages is required by the federal
Constitution the Court disavowed any such principle that same-sex marriages must be
recognized but because the Court concluded that the federal government lacks authority to
discriminate among opposite-sex and same-sex marriages where both are recognized under a
states law. The federal governments refusal to respect the States authority to define marriage
represented a significant and in the majoritys view, unwarranted federal intrusion on state
power to define marriage. 133 S.Ct. at 2692. The Court specifically declined to recognize
same-sex marriage as a fundamental right under the federal Constitution, and it declined to
recognize homosexuality as a suspect classification for purposes of equal protection analysis.
Rather, the Court concluded that federalism concerns undermined the rationality of a federal law
that imposed a definition of marriage contrary to the definition in state law, and which did not
treat all marriages authorized under state law as equal. Id. The Windsor majority did not hold
that states are constitutionally required to allow same-sex marriage or recognize same-sex
marriages performed under the laws of other jurisdictions. The Windsor majority affirmed the
traditional view that it is the province of individual states to choose which marriages will be
recognized under state law. None of the Supreme Court J ustices in Windsor whether in the
majority or in dissent opined that states are constitutionally required to recognize same-sex
marriage.
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10. Plaintiffs federal due process and equal protection claims fail on the merits as a
matter of well-established law. In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal
dismissed for want of a substantial federal question, 409 U.S. 810 (1972), the Minnesota
Supreme Court held that a state statute that defined marriage as a union between persons of the
opposite sex did not violate the First, Eighth, Ninth, or Fourteenth Amendments of the United
States Constitution. The United States Supreme Court summarily dismissed the plaintiffs
appeal in Baker for want of a substantial federal question. 409 U.S. 810. The Supreme Court
has not explicitly or implicitly overturned its holding in Baker or provided the lower courts with
any reason to believe that the holding is invalid. The Supreme Courts dismissal of the appeal in
Baker was a decision on the merits that constitutes controlling precedent, unless and until re-
examined by the United States Supreme Court. Baker is binding precedent that requires
dismissal of due process, equal protection, and privacy claims brought against any state law
codifying the traditional definition of marriage.
11. In Citizens for Equal Protection, Inc. v. Bruning, 455 F.3d 859 (8th Cir. 2006),
the Eighth Circuit Court of Appeals held that Plaintiffs federal constitutional challenges fail on
the merits. Id. In Bruning, the Eighth Circuit squarely addressed the constitutionality of a
substantively identical state constitutional amendment, and specifically held that the [plaintiffs]
equal protection argument fails on the merits. 455 F.3d at 864-69. The Eighth Circuit noted
that sexual orientation is not a suspect classification for purposes of equal protection analysis,
and rational-basis review applies to a state law defining marriage. Id. The Eighth Circuit
emphasized that [w]hatever our personal views regarding this political and sociological debate,
we cannot conclude that the States justification lacks a rational relationship to legitimate state
interests. Id. at 868. In conclusion, the Eighth Circuit noted: In the nearly one hundred and
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fifty years since the Fourteenth Amendment was adopted, to our knowledge no J ustice of the
Supreme Court has suggested that a state statute or constitutional provision codifying the
traditional definition of marriage violates the Equal Protection Clause or any other provision of
the United States Constitution. Id. at 870. This Court should exercise its discretion to award
summary judgment to the Defendants on Plaintiffs federal claims based upon the Eighth
Circuits holding in Bruning.
12. Summary judgment should be granted to the State on Plaintiffs gender
discrimination claim because Plaintiffs are not treated differently on the basis of Plaintiffs
gender. Amendment 83 treats all persons exactly the same without regard to gender. Under
Arkansas law, no person, male or female, may marry a person of the same sex. Plaintiffs are not
classified or treated differently on the basis of their gender. Plaintiffs sex discrimination claim
fails for this reason alone, and summary judgment should be granted to the Defendants
accordingly.
13. Summary judgment should be granted to the State on Plaintiffs sexual orientation
discrimination claim because sexual orientation is not a suspect classification. This claim was
specifically rejected by the Eighth Circuit in Bruning, which concluded that the plaintiffs equal
protection argument fails on the merits. Id., 455 F.3d at 868-69. The Eighth Circuit
specifically noted that the Supreme Court has never ruled that sexual orientation is a suspect
classification for equal protection purposes. Id. at 866. The Supreme Court did not rule that
sexual orientation is a suspect classification in Windsor. The Arkansas Supreme Court has
specifically held that homosexual citizens do not constitute a protected class[.] Jegley v.
Picado, 349 Ark. 600, 634, 80 S.W.3d 332 (2002). Because sexual orientation is not a suspect
class under the federal equal protection provision, laws codifying the traditional definition of
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marriage are subject to rational-basis review. Amendment 83 and Act 144 of 1997 easily meet
the rational-basis test. Summary judgment should be granted to the Defendants on Plaintiffs
sexual orientation discrimination claim.
14. Summary judgment should be granted to the State on the claims brought by the
child Plaintiffs, and the partners of the biological parents of the child Plaintiffs. For all children,
Arkansas law permits only names of the biological parents of a child to be listed on the childs
birth certificate. This is true whether the parents are in a same-sex relationship, an opposite-sex
relationship, whether they are married or unmarried, whether the child is a biological child of
one parent or is an adoptive child. Amendment 83 and the Arkansas marriage laws challenged in
this lawsuit have no bearing at all on which persons names may or may not appear on a birth
certificate. Marriage laws simply do not determine who appears as the parent of a child on an
Arkansas birth certificate. Plaintiffs claims fail for this reason alone. To the extent that
Plaintiffs intend to assert a constitutional claim on behalf of any child, that claim fails because
Amendment 83 does not burden any constitutionally protected liberty interest of any child.
Under established law, a child has no liberty interest in being adopted, or otherwise cared for, by
someone who is not the childs biological parent. To the extent that Plaintiffs seek to assert a
claim on behalf of adults not listed on a childs birth certificate, that claim also fails as a matter
of law. An adult who is not a biological parent has no protected liberty interest in a childs care
and custody, and this is true whether that person has a same-sex relationship with the biological
parent, an opposite-sex relationship with the biological parent, or otherwise. Because all persons
who are not biological parents are treated exactly the same by Arkansas law, Plaintiffs
allegations regarding children and birth certificates fail to state any claim for relief. Summary
judgment should be granted to the Defendants on these claims.
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15. Summary judgment should be granted to the State on Plaintiffs interstate travel
claim. Amendment 83 and Act 144 of 1997 do not violate, or even burden, any component of
the right to travel. Amendment 83 and Arkansas Act 144 of 1997 make no distinction between
or among citizens of Arkansas based upon the length of their citizenship or residency in
Arkansas. No resident of Arkansas, whether they have been a resident of Arkansas for a single
day or for decades, may lawfully marry a person of the same sex under Arkansas law. Arkansas
law does not recognize any same-sex marriage obtained by an Arkansas resident in another
jurisdiction, whether the Arkansas resident has been a resident of Arkansas for a single day, or
for decades. Simply put, Arkansas marriage law treats all citizens of Arkansas exactly the same,
regardless of whether they previously lived in another state, regardless of the length of their
residence in Arkansas, and regardless of whether they have married in another jurisdiction.
Because Arkansas marriage law does not treat any citizen any differently on the basis of their
residence, the length of their residence, their former residence elsewhere, or their interstate travel
(or lack thereof), there can be no violation of the constitutionally protected right to interstate
travel. Summary judgment should be granted to the Defendants accordingly.
16. Plaintiff Arica Navarros request for a divorce should be denied, or alternatively,
the Court may entertain the request without reaching a constitutional question. To the extent that
Plaintiff Navarro seeks to challenge Amendment 83 by seeking dissolution of her same-sex
marriage, that claim must be denied because Amendment 83 does not prohibit Plaintiff Navarro
from obtaining a divorce in Arkansas. Although Ark. Code Ann. 9-11-208(a)(2) prohibits this
Court from granting a divorce to Plaintiff Navarro, the statute does not violate any constitutional
provision. The State of Arkansas is simply under no obligation to dissolve a marriage that the
State of Arkansas does not recognize as valid. If the Court is inclined to explore the possibility
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of relief to Plaintiff Navarro though the Court is not obligated to do so, this can be done without
the necessity of a finding that Ark. Code Ann. 9-11-208(a)(2) is unconstitutional. Arkansas
courts have repeatedly granted divorces in cases involving marriages that were void from
inception under Arkansas law, and this has not required Arkansas courts to first recognize
otherwise invalid marriages. Plaintiff Navarros marriage can be dissolved by an Arkansas court
in a variety of other ways, without offending Section 9-11-208(a)(2). The Court should dismiss
Plaintiff Navarros claim for lack of subject-matter jurisdiction, and grant summary judgment to
the Defendants on Plaintiff Navarros divorce claim.
17. Amendment 83 and Arkansas Act 144 of 1997 satisfy the rational-basis test. The
United States Supreme Court and inferior courts have recognized a bevy of legitimate state
interests that are directly implicated and furthered by Amendment 83 and Act 144 of 1997.
Given the numerous actual and conceivable rational bases for Amendment 83 and Act 144 of
1997, Plaintiffs cannot meet their burden under the rational-basis test by arguing in conclusory
fashion that these laws serve no legitimate government purpose. Plaintiffs cannot meet their
burden of proving that Amendment 83 and the Arkansas marriage laws are not rationally related
to any legitimate government objective under any reasonably conceivable fact situation.
Amendment 83 and Arkansass marriage laws are subject to rational-basis review, and easily
meet the rational-basis test.
18. The citizens of Arkansas amended their state constitution to include a particular
definition of marriage. As the Eighth Circuit and numerous other courts have held, there is no
fundamental right to be free of the political barrier a validly enacted constitutional amendment
erects. Bruning, 455 F.3d at 868. The package of government benefits and restrictions that
accompany the institution of formal marriage serve a variety of [] purposes. The legislature or
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the people through the initiative process may rationally choose not to expand in wholesale
fashion the groups entitled to those benefits. Id. The relief sought by Plaintiffs in this case does
not lie with the judicial branch, but in the democratic process.

Though Plaintiffs legal
challenges to Amendment 83 fail as a matter of law, Plaintiffs have recourse through the
democratic process.
19. In support of this Motion to Dismiss, the State relies upon the Brief being filed
contemporaneously herewith.
WHEREFORE, the State prays that its Motion for Summary J udgment be granted, and
for all other just and appropriate relief.
Respectfully Submitted,


By: /s/ Colin R. J orgensen
Colin R. J orgensen
Ark. Bar #2004078
Assistant Attorney General
323 Center Street, Suite 200
Little Rock, AR 72201
Phone: (501) 682-3997
Fax: (501) 682-2591
Email: colin.jorgensen@arkansasag.gov

Attorney for the State.


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CERTIFICATE OF SERVICE

I, Colin R. J orgensen, Assistant Attorney General, certify that on this 26th day of
February, 2014, I electronically filed the foregoing with the Circuit Court Clerk using the
Arkansas J udiciarys eFlex electronic filing system, which shall provide electronic notification to
the following:

Cheryl K. Maples
ckmaples@aol.com

J ack Wagoner III
jack@wagonerlawfirm.com

Angela Mann
angela@wagonerlawfirm.com

R. Keith Pike
keith@wagonerlawfirm.com

Attorneys for the Plaintiffs


David M. Fuqua
Attorney for Separate Defendants Pulaski County Clerk Larry Crane and
Saline County Clerk Doug Curtis
dfuqua@fc-lawyers.com


J ason E. Owens
Attorney for Separate Defendants White County Clerk Cheryl Evans, Lonoke County Clerk
William Larry Clarke, Washington County Clerk Becky Lewallen, and Conway County
Clerk Debbie Hartman
owens@rainfirm.com


David Hogue
Attorney for Separate Defendant Faulkner County Clerk Melinda Reynolds
d.hogue@windstream.net



/s/ Colin R. J orgensen


EQCF 91