1

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


BRIEF IN SUPPORT OF 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 Brief in support of
their 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 : 57 Pages
2

I. ARKANSAS MARRIAGE LAW AND UNDISPUTED MATERIAL FACTS

A. Amendment 83.
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.



B. Act 144 of 1997.

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.
3


(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.

(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.
1


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.
2
Though a few state supreme courts have struck down laws prohibiting same-sex

1
Arkansas law also expressly prohibits marriages within certain degrees of
consanguinity, declaring them to be incestuous and absolutely void. Ark. Code Ann. 9-11-
106(a). A violation of the prohibition of incestuous marriages is a misdemeanor criminal
offense. Ark. Code Ann. 9-11-106(b). Arkansas law also prohibits marriages of any male
under the age of 17, and any female under the age of 16. Ark. Code Ann. 9-11-105.

2
See Ala. Code 30-1-19; Ala. Const. Art. I, 36.03; Alaska Const. Art. I, 25; Alaska
Stat. 25.05.011, 25.05.013; Ariz. Rev. Stat. Ann. 25-101, 25-112, 25-125; Colo. Const.
Art. II, 31; Colo. Rev. Stat. Ann. 14-2-104; Fla. Const. Art. I, 27; Fla. Stat. Ann. 741.212;
Ga. Const. Art. I, 4; Ga. Code Ann. 19-3-3.1; Idaho Const. Art. III, 28; Idaho Code 32-
201, 32-209; 750; Ind. Code Ann. 31-11-1-1; Kan. Const. Art XV, 16; Kan. Stat. Ann. 23-
2501, 23-2508; Ky. Const. 233A; Ky. Rev. Stat. Ann. 402.005, 402.020, 402.040, 402.045;
La. Const. Art. 12, 15; La. Civ. Code Ann. Art. 86, 3520; La. Civ. Code art. 89; La. Rev. Stat.
Ann. 9:272, 9:273; Mich. Const. 1963, Art. I, 25; Mich. Comp. Laws Ann. 551.1 to
551.4, 551.271 to 551.272; Miss. Const., Art. 14 263A; Miss. Code Ann. 93-1-1, 93-1-3;
Mo. Const. Art I, 33; Mo. Rev. Stat. 451.022; Mont. Const. Art. XIII, 7; Mont. Code Ann.
40-1-103, 40-1-401; Neb. Const. Art. I, 29; Neb. Stat. 42-117; N.C. Const. Art. XIV, 6;
N.C. Gen. Stat. 51-1, 51-1.2; N.D. Const. Art. XI, 28; N.D. Cent. Code 14-03-01, 14-03-
08; Nev. Const. Art. I 21; Nev. Rev. Stat. 122.020; Ohio Const. Art. XV, 11; Ohio Rev.
Code Ann. 3101; Or. Const. Art. 15, 5a; 23 Pa. Cons. Stat. Ann. 1102, 1704; S.C. Const.
4

marriage under provisions of state constitutions,
3
and a few federal district courts have struck
down traditional marriage laws under the United States Constitution,
4
most of these laws have
stood unchallenged or have been upheld against challenges in both state and federal courts and
remain in effect today.
5



Art XVII, 15; S.C. Code Ann. 20-1-10, 20-1-15; S.D. Const. Art XXI, 9; S.D. Codified
Laws 25-1-1, 25-1-38; Tenn. Const. Art. XI, 18; Tenn. Code Ann. 36-3-113; Tex. Const.
Art. I, 32; Tex. Fam. Code Ann. 1.103, 2.001, 6.204; W. Va. Code Ann. 48-2-104, 48-2-
401, 48-2-603; Wis. Const. Art. XIII, 13; Wis. Stat. 765.01, 765.04, 765.001, 765.30(a);
Wyo. Stat. Ann. 20-1-101, 20-1-111.

3
See, e.g., Griego v. Oliver, 2013 WL 6670704 (N.M. Dec. 19, 2013); Garden State
Equality v. Dow, 79 A.3d 1036 (N.J . 2013); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009);
Kerrigan v. Commr of Public Health, 957 A.2d 407 (Conn. 2008); Conaway v. Deane, 932 A.2d
571 (Md. 2007), opinion extended after remand, 2008 WL 3999843 (2008); Hernandez v.
Robles, 855 N.E.2d 1, 5 (N.Y. 2006); Andersen v. King County, 138 P.3d 963 (Wash. 2006);
Lewis v. Harris, 908 A.2d 196 (N.J . 2006); Goodridge v. Dept of Public Health, 798 N.E.2d 941
(Mass. 2003).

4
See Bostic v. Rainey, Case No. 2:13cv395 (E.D. Vir. Feb. 13, 2014) (holding that state
laws limiting marriage to opposite-sex couples violated the United States Constitution under
strict scrutiny review); Bourke v. Beshear, Case No. 3:13-cv-750-H (W.D. Kent. Feb. 12, 2014)
(holding that state law declining to recognize same-sex marriages of other jurisdictions violated
the United States Constitution under rational-basis review); Bishop v. Holder, 2014 WL 116013,
Case No. (N.D. Okla. J an. 14, 2014) (holding that state law limiting marriage to opposite-sex
couples violated the United States Constitution under rational-basis review; ruling stayed
pending appeal to the 10th Circuit); Kitchen v. Holder, 2013 WL 6697874, Case No. 2:13-cv-217
(D. Utah Dec. 20, 2013) (holding that state laws limiting marriage to opposite-sex couples
violated the United States Constitution under rational-basis review), stayed pending appeal to the
United States Court of Appeals for the Tenth Circuit, 571 U.S. ___ (No. 13A687, J an. 6, 2014).

5
The fact that a practice is followed by a large number of states is not conclusive in a
decision as to whether that practice accords with due process, but it is plainly worth considering
whether the practice offends some principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental. Schall v. Martin, 467 U.S. 253, 268 (1984)
(internal quotation marks omitted) (quoting Leland v. Oregon, 343 U.S. 790, 798 (1952), and
Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

5

C. Plaintiffs claims regarding Amendment 83 and Act 144 of 1997.
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.
6
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. See Plaintiffs Third Amended Complaint for Declaratory and
Injunctive Relief (Complaint). The State does not dispute these general factual allegations.
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
As explained below, because Amendment 83 is a part of the Arkansas Constitution and
sets forth the same policy as Act 144 of 1997, and because Amendment 83 explicitly authorizes
Act 144 of 1997, Act 144 of 1997 stands or falls with Amendment 83.
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).
As discussed in detail below, 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 Defendants Motion for Summary J udgment should be granted accordingly.
II. SUMMARY JUDGMENT STANDARD
The purpose of our summary judgment rule is to expeditiously determine cases without
necessity for formal trial where there is no substantial issue of fact and is in the nature of an
inquiry to determine whether genuine issues of fact exist. Joey Brown Interest, Inc. v.
Merchants Natl Bank of Fort Smith, 284 Ark. 418, 423, 683 S.W.2d 601 (1985) (citation
omitted). Summary judgment is not an extreme or drastic remedy, but rather is one of the tools
in a trial courts efficiency arsenal[.] Thomas v. Stewart, 347 Ark. 33, 37, 60 S.W.3d 415
7

(2001). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, if any, shows that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law on the issues specifically set forth in the motion. Ark. R. Civ. P. 56(c)(2). If this
standard is met, then the case should be disposed of by summary judgment rather than exposing
the litigants to unnecessary delay, work and expense in going to trial when the trial judge would
be bound to direct a verdict in movants favor after all evidence is adduced. Joey Brown
Interest, Inc., supra, 284 Ark. at 423.
III. PLAINTIFFS CLAIMS BROUGHT PURSUANT TO THE ARKANSAS
CONSTITUTION ARE BARRED AS A MATTER OF LAW.

Plaintiffs Arkansas constitutional claims are barred as a matter of law, and the
Defendants are 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. Chesshir v.
Copeland, 182 Ark. 425, 32 S.W.2d 301 (1930). See also, Bryant v. English, 311 Ark. 187, 193,
843 S.W.2d 308 (1992) (Amendments to a constitution are not regarded as if they had been
parts of the original instrument but are treated as having a force superior to the original to the
extent to which they are in conflict.) (quoting Grant v. Hardage, 106 Ark. 506, 509, 153 S.W.
826 (1913)); Lybrand v. Waffard, 174 Ark. 298, 296 S.W. 729 (1927) (the last amendment to a
constitution adopted by the people must control over earlier provisions or amendments to that
constitution where there is irreconcilable conflict). An amendment becomes part of the
constitution upon its adoption and fits into that organic body, displacing whatever may be in
8

conflict or repugnant to the provisions of the amendment[.] Priest v. Mack, 194 Ark. 788, 790,
109 S.W.2d 665 (1937). As the Arkansas Supreme Court explained in Chesshir:
It is a rule of universal application that the Constitution must be
considered as a whole, and that, to get at the meaning of any part
of it, we must read it in the light of other provisions relating to the
same subject. The general rule is that constitutional provisions and
amendments thereto must be harmonized where practical. If there
is to some extent an inconsistency or repugnancy between a
provision of the Constitution and an amendment thereto so that
one or the other must yield, the amendment, being the last
expression of the sovereign will of the people, will prevail as an
implied repeal to the extent of the conflict. The same rule of
construction would apply in the construction of amendments. The
later amendment would govern to the extent that it was repugnant
to, or in conflict with, the provisions of the former one. Little Rock
v. North Little Rock, 72 Ark. 195, 79 S. W. 785; Ferrell v. Keel,
105 Ark. 380, 151 S. W. 269; State ex rel. v. Donaghey, 106 Ark.
56, 152 S. W. 746; Grant v. Hardage, 106 Ark. 506, 153 S. W.
826; Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649; Lybrand v.
Wafford, 174 Ark. 298, 296 S. W. 729; Polk County v. Mena Star
Co., 175 Ark. 76, 298 S. W. 1002; and Lake v. Tatum, 175 Ark. 90,
1 S.W.(2d) 554. The principle of constitutional construction above
laid down has been uniformly adhered to and applied according to
the varying facts of the different cases.

Id., 32 S.W.2d at 302 (emphasis added). See also Ward v. Priest, 350 Ark. 345, 382, 86 S.W.3d
884 (2002); Wright v. Story, 298 Ark. 508, 769 S.W.2d 16 (1989).
The citizens of Arkansas retained the authority to amend the State Constitution. See
Arkansas Constitution, Amendment 7 (The people reserve to themselves the power to propose
legislative measures, laws and amendments to the Constitution, and to enact or reject the same at
the polls.). The peoples exercise of that amendment power is not limited by anything existing
in the Constitution at the time of such an amendment. Brickhouse v. Hill, 167 Ark. 513, 542, 268
S.W. 865 (1925) (The amendment being the last expression of the popular will in shaping the
organic law of the State, all provisions of the Constitution which are necessarily repugnant
thereto must, of course, yield.). See also Forum for Equal. PAC v. McKeithen, 893 So.2d 738,
9

741 (La. 2005) (Nearly one hundred years ago, this court explained that the power of the people
to amend or revise their Constitution is limited only by the prohibitions set forth in the
Constitution of the United States . . . Accordingly, the [state] constitution does not and cannot
limit the plenary power of the people of this state to exercise their right to adopt amendments to
their constitution not inconsistent with the Constitution of the United States.) (internal citations
omitted); Duggan v. Beerman, 515 N.W.2d 788, 792 & 793 (Neb. 1994) (Noting that a
constitutional amendment becomes an integral part of the instrument and must be construed and
harmonized, if possible, with all other provisions so as to give effect to every section and clause
as well as to the whole instrument[,] but [a] clause in a constitutional amendment will prevail
over a provision in the original instrument inconsistent with the amendment if they relate to the
same subject and cannot both be enforced without conflict; when constitutional provisions are
in conflict, the later amendment controls); State ex rel. City of Princeton v. Buckner, 377 S.E.2d
139, 144 (W. Va. 1988) (A constitutional amendment will supersede any inconsistent portions
of antecedent constitutional or statutory provisions, as the latest expression of the will of the
people.) (citing State ex rel. Kanawha County Bldg. Commn v. Peterno, 233 S.E.2d 332, 337
(W. Va. 1977)); Plymouth Twp. v. Wayne County Bd. of Commrs, 359 N.W.2d 547, 552 (Mich.
App. 1984) (The drafters of a constitutional amendment are presumed to know about existing
laws and constitutional provisions and thus to have drafted their provision accordingly.) (citing
Council of the City of Saginaw v. Saginaw Policemen & Firemen Ret. Sys. Trustees, 32 N.W.2d
899 (Mich. 1948)).
Under this long-established Arkansas law, Amendment 83 cannot violate the Arkansas
Constitution. Plaintiffs claims to the contrary should be denied, including Plaintiffs claim that
Amendment 83 violates the Declaration of Rights contained in Article 2 of the Arkansas
10

Constitution. In attempting to end run this well established principle of Arkansas law, Plaintiffs
rely upon a single Arkansas Supreme Court case decided over 20 years before the current
Constitution was adopted. Eason v. State, 11 Ark. 481, 490 (1851). Plaintiffs contend that
Eason stands for the proposition that a provision in a prior constitution may prohibit a
constitutional amendment. Complaint, 171. Plaintiffs are unable to cite any Arkansas
Supreme Court case from 1874 to the present ever recognizing the principle they recite.
Moreover, Plaintiffs concede that Eason concerned an amendment of the Constitution by the
Arkansas Legislature, not by the people exercising the amendment power they explicitly retain in
the Constitution. Amendment 83, of course, was enacted directly by a majority vote of the
people of Arkansas. Eason does not control, and does not somehow eviscerate the authority of
the citizens of Arkansas to amend their constitution.
Eason is simply irrelevant to the present case, because the court there made clear that it
was construing the authority of the General Assembly to amend the Constitution, not the
authority of the people of Arkansas to amend the Constitution, as they did with Amendment 83.
As the Arkansas Supreme Court noted, the issue in Eason was the constitutionality of an
amendment to the constitution ratified by the legislature in November, 1846, that authorized
justices of the peace to bring criminal charges and prosecutions for non-felony assaults and
batteries punishable by fine only. 11 Ark. at 486. Under the Constitution of 1836, the General
Assembly was delegated certain authority to enact constitutional amendments but the court noted
that the legislatures power was limited. The court noted that the constitutional amendment
adopted by the General Assembly was in direct and irreconcilable conflict with the 14
th
section
of the Bill of Rights [of the Arkansas Constitution of 1836], which declare[d], That no man shall
be put to answer any criminal charge but by presentment, indictment, or impeachment. Id.
11

The court noted that if this section of the Bill of Rights be not thus partially repealed, the act in
question is clearly unconstitutional and void. Id. at 486-87. The court explained the competing
views on the question presented in Eason:
[I]n examination of this controlling question the State submitted
that a repeal, either partial or entire of any of the provisions of the
Bill of Rights, was beyond the power of the General Assembly,
even when in the exercise of their delegated authority to amend the
constitution. This objection the court attempted to meet by the
position that, when the General Assembly proceeds to amend the
constitution in the mode provided in the instrument, that body acts
in the capacity of a convention as contra-distinguished from
ordinary legislative action, and as such possesses all the sovereign
powers of the people, except such of these as have been delegated
to the Federal Government; and thus being clothed with all the
sovereign powers of the people not delegated to the Federal
Government they have necessarily the power to repeal the whole or
any part of the Bill of Rights. And this they endeavor to maintain
by assuming that the declaration of the Bill of Rights, that every
thing contained therein is excepted out of the general powers of
the government and shall forever remain inviolate extends as a
prohibition upon the legislature no further than while in the
exercise of their ordinary functions; and that therefore when in the
exercise of their extraordinary powers no prohibition upon or
qualification of these powers, springing out of the Bill of Rights,
rests upon the legislature; and consequently, when acting in the
latter capacity, they are clothed with all the sovereign powers of
the people not delegated to the Federal Government.

Id. at 487 (emphasis added). Thus, in Eason, the parties and the court agreed that the people
possessed the sovereign power to directly amend their constitution, including amendment of
the Bill of Rights, but the question presented was whether the legislature possessed the power to
amend or repeal the Bill of Rights through legislative amendment of the constitution.
The Eason court held that a repeal either partial or entire of any of the provisions of the
Bill of Rights is beyond the powers of the General Assembly, even in the exercise of their
delegated authority to amend the constitution[.] 11 Ark. at 490. The court also explicitly held
that only the people themselves retained the exclusive right to modify the Bill of Rights: [I]t
12

would not seem remarkable at all that the people in our day should place all these great essential
elements of free government beyond the possibility of invasion by any earthly power and retain
themselves the exclusive right either to modify or to disregard them entirely as no longer of
estimable value. Id. at 491 (emphasis added). And when a government is to be constructed
upon any other principle, or when any of these principles are to be repudiated or modified, the
people alone have the unqualified right to act in the premises. Id. at 492 (citing Section 2 of
the Bill of Rights of the Arkansas Constitution of 1836).
Amendment 83 was enacted directly by the people of Arkansas in the exercise of their
sovereign power to amend their own constitution, as explicitly set forth in the Arkansas
Constitution of 1874.
7
The Eason decision does not support Plaintiffs contention that the people
of Arkansas cannot directly amend their constitution if the later amendment somehow offends
the Declaration of Rights; in fact, the Eason decision holds that the people absolutely possess the
sovereign power to amend the constitution without regard to any earlier provision of the
constitution.
Plaintiffs reliance upon Article 2, Section 29 of the Arkansas Constitution is also
misplaced. See Complaint, 171. Article 2, Section 29 provides, in its entirety:

7
In Eason, supra, decided in 1851, the court concluded that only the people had the
sovereign power to amend the constitution in a way that would implicate the Bill of Rights set
forth in the Arkansas Constitution of 1836, and the people could only do so through a
constitutional convention. The Arkansas Constitution of 1836 contained no provision for
amendment of the constitution by the people, by any means other than constitutional convention.
Amendment 7 to the Arkansas Constitution of 1874 amended Article 5, Section 1 of the
Arkansas Constitution to provide that the people reserve to themselves the power to propose
legislative measures, laws and amendments to the Constitution, and to enact or reject the same at
the polls independent of the General Assembly[.] Thus, applying Eason to the Constitution in
effect today, the people of Arkansas retain themselves the exclusive right either to modify or
disregard provisions of the Arkansas Constitution (Eason, 11 Ark. at 491), including the
Declaration of Rights set forth in the Arkansas Constitution, by way of initiative and referendum.
The people of Arkansas did precisely this when they enacted Amendment 83.
13

This enumeration of rights shall not be construed to deny or
disparage others retained by the people; and to guard against any
encroachment on the rights herein retained, or any transgression of
any of the higher powers herein delegated, we declare that
everything in this article is excepted out of the general powers of
the government; and shall forever remain inviolate; and that all
laws contrary thereto, or to the other provisions herein contained,
shall be void.

Id. Plaintiffs rely on the language shall forever remain inviolate in furtherance of their
assertion that not even a constitutional amendment by popular vote of the people of Arkansas can
abridge anything contained in the Declaration of Rights of Article 2 of the Arkansas Constitution
of 1874. However, this same provision plainly provides that [t]his enumeration of rights shall
not be construed to deny or disparage others retained by the people, including the right of the
people to directly amend their constitution. Moreover, the opening provision of the Declaration
of Rights provides that [a]ll political power is inherent in the people and government is
instituted for their protection, security and benefit; and they have the right to alter, reform or
abolish the same, in such manner as they may think proper. Ark. Const., art. 2, 1 (emphasis
added). The Declaration of Rights plainly provides that the people retain the absolute right to
alter, reform, or abolish the laws of Arkansas, including constitutional provisions and
including the provisions of the Declaration of Rights.
8
Because Amendment 83 was placed in
the Arkansas Constitution by the people of Arkansas, and all political power is inherent in the
people, Plaintiffs cannot challenge Amendment 83 under other, earlier provisions of the
Arkansas Constitution, as a matter of law.

8
The State does not concede that Amendment 83 and Act 144 of 1997 violate any
provision of the Declaration of Rights or any other provision of the Arkansas Constitution.
However, even if the Court assumes that Amendment 83 somehow offends the Declaration of
Rights or any other provision of the Arkansas Constitution, the Declaration of Rights and the
cases discussed in this section of the States brief require a finding that Amendment 83 cannot be
declared infirm for violation of any earlier provision of the Constitution, as a matter of law.
14

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. See Amendment 83, 3 (The Legislature has the power to determine
the capacity of persons to marry, subject to this amendment). Plaintiffs claims 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.
IV. PLAINTIFFS FEDERAL CLAIMS FAIL ON THE MERITS.
A. Recent federal jurisprudence: Windsor and Perry.
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 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:
State laws defining and regulating marriage, of course, must
respect the constitutional rights of persons, see, e.g., Loving v.
Virginia, 388 U.S. 1 (1967); but, subject to those guarantees,
regulation of domestic relations is an area that has been
regarded as a virtually exclusive province of the States.
Sosna v. Iowa, 419 U.S. 393, 404 (1975).

The recognition of civil marriages is central to state domestic
relations law applicable to its residents and citizens. See
Williams v. North Carolina, 317 U.S. 287, 298 (1942) (Each state
as a sovereign has a rightful and legitimate concern in the marital
status of persons domiciled within its borders). The definition of
15

marriage is the foundation of the States broader authority to
regulate the subject of domestic relations with respect to the
[p]rotection of offspring, property interests, and the
enforcement of marital responsibilities. Ibid. [T]he states, at
the time of the adoption of the Constitution, possessed full
power over the subject of marriage and divorce. Haddoch v.
Haddoch, 201 U.S. 562, 575 (1906); see also In re Burrus, 136
U.S. 586, 593-594 (1890) (The whole subject of domestic
relations of husband and wife, parent and child, belongs to the laws
of the States and not to the laws of the United States.).

Consistent with this allocation of authority, the Federal
Government, through our history, has deferred to state-law
policy decisions with respect to domestic relations. In De Sylva
v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956),
for example, the Court held that, [t]o decide who is the widow or
widower of a deceased author, or who are his executors or next of
kin, under the Copyright Act requires a reference to the law of
the State which created those legal relationships because there is
no federal law of domestic relations. Id., at 580, 76 S.Ct. 974.
In order to respect this principle, the federal courts, as a general
rule, do not adjudicate issues of marital status even when there
might otherwise be a basis for federal jurisdiction. See
Ankenbrandt v. Richards, 504 U.S. 689, 703, 112 S.Ct. 2206, 119
L.Ed.2d 468 (1992). Federal courts will not hear divorce and
custody cases even if they arise in diversity because of the
virtually exclusive primacy ... of the States in the regulation of
domestic relations. Id., at 714, 112 S.Ct. 2206 (Blackmun, J .,
concurring in judgment).

The significance of state responsibilities for the definition and
regulation of marriage dates to the Nations beginning; for
when the Constitution was adopted the common
understanding was that the domestic relations of husband and
wife and parent and child were matters reserved to the States.
Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-384 (1930)).
Marriage laws vary in some respects from State to State. For
example, the required minimum age is 16 in Vermont, but only
13 in New Hampshire. CompareVt. Stat. Ann., Tit. 18, 5142
(2012), with N.H. Rev. Stat. Ann. 457:4 (West Supp. 2012).
Likewise the permissible degree of consanguinity can vary
(most States permit first cousins to marry, but a handful such as
Iowa and Washington, see Iowa Code 595.19 (2009); Wash. Rev.
Code 26.04.020 (2012) prohibit the practice). But these rules
are in every event consistent within each State.

16

133 S.Ct. at 2691-92 (italics, citations and quotations in original; bold and underlined bold
emphasis added).
Thus, in Windsor, the Supreme Court struck down Section 3 of the federal Defense of
Marriage Act (DOMA), 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.
9
Thus, the Windsor majority affirmed
the traditional view that it is the province of individual states to choose which marriages will be

9
Section 2 of DOMA, which was not at issue in Windsor and remains in effect today,
explicitly allows States to decline to recognize same-sex marriages performed under the laws of
other States. See Windsor, supra, at 2; 28 U.S.C. 1738C (No State, territory, or possession of
the United States, or Indian tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe respecting a relationship
between persons of the same sex that is treated as a marriage under the laws of such other State,
territory, possession, or tribe, or a right or claim arising from such relationship.). Section 2 has
been upheld by at least one federal court. See Wilson v. Ake, 354 F.Supp.2d 1298 (M.D. Fla.
2005).

17

recognized under state law. Indeed, 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.
10

Similarly, in Hollingsworth v. Perry, 570 U.S. ___, 133 S.Ct. 2652 (U.S. No. 12-144
J une 26, 2012), a 5-4 majority opinion delivered by Chief J ustice Roberts and joined by J ustices
Scalia, Ginsburg, Breyer and Kagan, declined to hold that states are constitutionally compelled to
recognize same-sex marriage. The plaintiffs in Perry challenged Californias Proposition 8
under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Perry v.
Schwarzenegger, 704 F. Supp. 2d 921, 1004 (N.D. Cal. 2010). Following a 12-day bench trial,
the district court declared Proposition 8 unconstitutional. Id. The Ninth Circuit Court of
Appeals affirmed the district court on the merits. Perry v. Brown, 671 F.3d 1052, 1076, 1095
(9th Cir. 2012) (vacated by the Supreme Court in Hollingsworth v. Perry, supra).
On certiorari to the United States Supreme Court, the Court majority declined to address
the question whether the Equal Protection Clause prohibits the State of California from
defining marriage as the union of a man and woman[,] 133 S.Ct. at 2659, finding that because
the petitioners lacked standing, the Court had no authority to decide the case on the merits. Id.

10
The four dissenting J ustices filed three dissents. Chief J ustice Roberts, J ustice Alito,
and J ustice Scalia joined by J ustice Thomas would have upheld DOMA. Three of the dissenting
J ustices clearly indicated a belief that states can constitutionally retain the traditional definition
of marriage. See 133 S.Ct. at 2707-08 (Scalia, J ., dissenting, joined in relevant part by Thomas,
J .); id. at 2715-16 (Alito, J ., dissenting, joined in relevant part by Thomas, J .). And, Chief
J ustice Roberts pointedly emphasized that while [t]he States power in defining the marital
relation is of central relevance to the majoritys decision to strike down DOMA here, . . . that
power will come into play on the other side of the board in future cases about the
constitutionality of state marriage definitions. So too will the concerns for state diversity and
sovereignty that weigh against DOMAs constitutionality in this case. Id. at 2697 (Roberts,
C.J ., dissenting) (quoting majority opinion). The views expressed by these four J ustices
without any contrary expression from the Courts other J ustices strongly suggests that the
Court would uphold Amendment 83 under the United States Constitution.
18

Though the Supreme Court was presented with a constitutional challenge to a state constitutional
amendment restricting marriage to opposite-sex couples, the Court declined to address the
constitutionality of Californias Proposition 8. Id. As in Windsor, none of the Supreme Court
J ustices in Perry opined that states are constitutionally required to recognize same-sex marriage,
despite the fact that the Court was presented with an appeal of that very issue.
B. Plaintiffs federal due process and equal protection claims fail as a matter of
well-established law.

Plaintiffs federal due process and equal protection claims fail on the merits under
established federal 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 Minnesota Supreme Court rejected the plaintiffs claims, determining that a right to marry
without regard to the sex of the parties is not a fundamental right. 191 N.W.2d at 186-87. The
court further determined that the Equal Protection Clause was not offended by the states
classification of persons authorized to marry and that there was no irrational or invidious
discrimination. Id. at 187.
The United States Supreme Court summarily dismissed the plaintiffs appeal in Baker
for want of a substantial federal question, Baker, 409 U.S. 810, where the Court was presented
with the following three questions:
(1) Whether [Minnesotas] refusal to sanctify appellants marriage
deprives appellants of their liberty to marry and of their property
without due process of law under the Fourteenth Amendment.

(2) Whether [Minnesotas] refusal, pursuant to Minnesota marriage
statutes, to sanctify appellants marriage because both are of the
19

male sex violates their rights under the equal protection clause of
the Fourteenth Amendment.

(3) Whether [Minnesotas] refusal to sanctify appellants marriage
deprives appellants of their right to privacy under the Ninth and
Fourteenth Amendments.

Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1085 (Haw. 2012). 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. Id. (citing Perry v. Schwarzenegger, 628 F.3d
1091, 1099 n.1 (9th Cir. 2011) (N. R. Smith, J ., concurring in part and dissenting in part)
(vacated by the Supreme Court in Perry, supra) (concluding that the Supreme Court cases
following Baker do not suggest any doctrinal developments indicating Baker is no longer good
law)); Wilson v. Ake, 354 F.Supp.2d 1298, 1305-06 (M.D. Fla. 2005) (same)). See also Mandel
v. Bradley, 432 U.S. 173, 176 (1977) (summary dismissals by the Court prevent lower courts
from coming to opposite conclusions on the precise issues presented and necessarily decided by
those actions.); Hicks v. Miranda, 422 U.S. 332, 344 & 345 n. 14 (1975) (summary dismissals
by the Court constitute a ruling on the merits by the Court; unless and until the Supreme Court
should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has
branded a question as unsubstantial, it remains so except when doctrinal developments indicate
otherwise[.]). 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 this Court. Tully
v. Griffin, Inc., 429 U.S. 68, 74 (1976) (emphasis added).
Numerous courts have concluded that 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. See, e.g., Anderson v. King, 138 P.3d 963, 969 (Wash. 2006)
(citing to Baker and holding the same-sex union as a constitutional right argument was so
20

frivolous as to merit dismissal without further argument by the Supreme Court. A similar result
is required today.); Morrison v. Sadler, 821 N.E.2d 15, 19 (Ind. App. 2005) (citing to Baker and
stating: There is binding United States Supreme Court precedent indicating that state bans on
same-sex marriage do not violate the United States Constitution.); Wilson v. Ake, supra, 354
F.Supp.2d at 1305 (Baker v. Nelson is binding precedent upon this Court); but see In re Kandu,
315 B.R. 123, 138 (W.D. Wash. 2004). As other courts have done, this Court should dismiss
Plaintiffs federal due process and equal protection claims under Baker alone.
Plaintiffs have argued in this case that doctrinal developments since Baker have
rendered Baker irrelevant to the unmarried Plaintiffs challenges against Amendment 83.
Plaintiffs have relied upon Windsor and a recent ruling by a federal district court as authority for
Plaintiffs claim that Baker is suddenly irrelevant due to doctrinal developments. Of course,
there is no discussion of Baker in the Supreme Courts Windsor opinion, despite the fact that
Baker was squarely presented to the Court. Rather than overrule Baker given the opportunity, or
even note any significant doctrinal development that would call Baker into question, the Court
affirmed in great detail its deeply rooted deference to state regulation of marriage. Windsor, 133
S.Ct. at 2691-92. Nothing in the Courts Windsor opinion remotely questions the Courts
decision in Baker. Baker is not even cited a single time in the Courts majority opinion in
Windsor.
In Whitewood v. Wolf, No. 2:24-cv-01861-J EJ , slip. op. (M.D. Pa. Nov. 15, 2013), a
federal district court in Pennsylvania considered motions to dismiss a complaint seeking to
invalidate as unconstitutional provisions of Pennsylvanias marriage laws that define marriage as
the union of one man and one woman and declare void in Pennsylvania same-sex marriages
legally entered into in other jurisdictions. Id. at *2. The defendants who moved to dismiss
21

argued that Baker required dismissal of the action for lack of subject matter jurisdiction. Id. at *
4. The district court denied the motions to dismiss, noting that [w]hile we do not disagree that
Baker is considered precedential, we ultimately do not find it controlling due to the significant
doctrinal developments in the four decades that have elapsed since it was announced by the
Supreme Court. Id. The district court declined to find that it lacked subject matter jurisdiction
based solely on Baker. Notably, the district court also declined to reach the constitutional
issues which lie at the heart of this matter, concluding that any such decision was premature.
Id. at * 3, n.2. Importantly, contrary to Plaintiffs characterization of the district courts order in
Whitewood v. Wolfe, the district court only concluded that it did not lack subject matter
jurisdiction due to Baker, but the district court recognized Baker as precedential, supra. In this
case, the State does not contend that the Court lacks subject matter jurisdiction under Baker.
Rather, the State contends that Baker requires dismissal on the merits of the claims raised by
Plaintiffs that were necessarily decided by Baker: the fundamental right to marry, due process,
equal protection, and privacy rights asserted by the Plaintiffs in this case. These claims can and
should be dismissed based upon Baker alone.
In Lawrence v. Texas, 539 U.S. 558, 578 (2003), in which the Supreme Court invalidated
a state law criminalizing sodomy, the majority was careful to note that the Texas statute at issue
does not involve whether the government must give formal recognition to any relationship that
homosexual persons seek to enter. Id. This is not a case like Lawrence, where the right to
engage in private, consensual sexual activity in ones home was burdened by a law criminalizing
homosexual conduct. Id. Lawrence may have represented a significant doctrinal development in
the Courts recognition of privacy rights in the bedroom, but it does not represent a significant
doctrinal development relevant to this case in which Plaintiffs seek to require formal
22

governmental recognition of their relationships. In Windsor and Perry, the Court declined to
entertain the claim that a state law limiting marriage to opposite-sex couples violates the federal
due process, equal protection, or privacy rights of same-sex couples who cannot marry under
such a state law. In sum, the Supreme Court has consistently and repeatedly declined to
recognize a fundamental constitutional due process, equal protection, or privacy right of the type
advocated by Plaintiffs in this case.
Perhaps the most significant court decision applicable to this case is Citizens for Equal
Protection, Inc. v. Bruning, 455 F.3d 859 (8th Cir. 2006), in which the Eighth Circuit Court of
Appeals held that Plaintiffs federal constitutional challenges fail on the merits. Id. (upholding a
state constitutional amendment providing as follows: Only marriage between a man and a
woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a
civil union, domestic partnership, or other similar same-sex relationship shall not be valid or
recognized in Nebraska.). 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.
11
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.
(Citing Romer v. Evans, 517 U.S. 620 (1996)). 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 (citing
Romer v. Evans, supra, 517 U.S. at 632). In conclusion, the Eighth Circuit noted: In the nearly

11
The Bruning court also determined that the state marriage amendment did not violate
the federal Bill of Attainder Clause (id. at 869), and did not violate the plaintiffs right to
associational freedom protected by the federal First Amendment (id. at 870).
23

one hundred and 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. The Eighth Circuit decided Bruning in
2006, over three decades after Baker. 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. See Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (An Arkansas
trial court is bound by this Courts (and by the Arkansas Supreme Courts and Arkansas Court of
Appeals) interpretation of federal law, but if it follows the Eighth Circuits interpretation of
federal law, it does so only because it chooses to, and not because it must.).
Plaintiffs federal constitutional claims are barred in the Eighth Circuit by Bruning, and
barred nationwide by Baker, and the Supreme Courts refusal to overturn its holding in Baker
despite ample opportunity in Lawrence, Perry, Windsor, and other cases, supra. The Court
should award summary judgment to the Defendants on Plaintiffs federal constitutional claims.
C. Summary judgment should be granted to the Defendants on Plaintiffs
gender discrimination claim because Plaintiffs are not treated differently on
the basis of Plaintiffs gender.

Plaintiffs assertion that Amendment 83 and Act 144 of 1997 treat them differently on the
basis of their gender, see Complaint, 218 227, is incorrect. In fact, 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 argument that they are discriminated against based upon
somebody elses gender, is not a valid gender claim under any recognized theory of law.
24

Plaintiffs sex discrimination claim fails for this reason alone, and summary judgment should be
granted to the Defendants accordingly.
To date, the laws in which the Supreme Court has found sex-based classifications have
all treated men and women differently . . . Supreme Court precedent has only found sex-based
classifications in laws that have a disparate impact on one sex or the other. Smelt v. County of
Orange, 374 F.Supp.2d 861, 876-77 (C.D. Cal. 2006), overruled on other grounds by Windsor,
supra (collecting cases). The overwhelming majority of courts that have considered a claim that
the traditional definition of marriage constitutes sex discrimination in violation of equal
protection have rejected the claim because the traditional definition of marriage does not treat
men and women differently. See, e.g., In re Marriage Cases, 183 P.3d 384, 440 (Cal. 2008),
superseded by constitutional amendment as stated in Perry v. Brown, 671 F.3d 1052 (9th Cir.
2012) ([W]e conclude that in the context of Californias equal protection clause, the differential
treatment prescribed by the relevant statutes cannot properly be found to constitute
discrimination on the basis of sex, and thus that the statutory classification embodied in the
marriage statutes is not subject to strict scrutiny on that ground.); Conaway v. Deane, 932 A.2d
571, 598 (Md. 2007) ([T]he marriage statute does not discriminate on the basis of sex in
violation of [equal protection]. The limitations on marriage effected by [the marriage statute] do
not separate men and women into discrete classes for the purpose of granting to one class of
persons benefits at the expense of the other class. Nor does the statute, facially or in its
application, place men and women on an uneven playing field. Rather, the statute prohibits
equally both men and women from the same conduct.); Anderson v. King County, 138 P.3d 963,
988 (Wash. 2006) (Men and women are treated identically under DOMA; neither may marry a
person of the same sex. DOMA therefore does not make any classification by sex, and it does
25

not discriminate on account of sex.) (citations omitted); Hernandez v. Robles, 855 N.E.2d 1, 10-
11 (N.Y. 2006) (By limiting marriage to opposite-sex couples, New York is not engaging in sex
discrimination. The limitation does not put men and women in different classes, and give one
class a benefit not given to the other. Women and men are treated alike they are permitted to
marry people of the opposite sex, but not people of their own sex.); Smelt v. County of Orange,
supra, 374 F.Supp.2d at 876-77; Wilson v. Ake, supra, 354 F.Supp.2d at 1307-08 (DOMA does
not discriminate on the basis of sex because it treats women and men equally.); In re Kandu,
315 B.R. 123, 143 (Bankr. W.D. Wash. 2004) (DOMA . . . does not single out men or women
as a discrete class for unequal treatment. Rather, a marriage law such as DOMA prohibits men
and women equally from marrying a person of the same sex. Women, as members of one class,
are not being treated differently from men, as members of a different class . . . Accordingly, the
marriage definition contained in DOMA does not classify according to gender[.]) (internal
quotations and citations omitted); Baker v. Vermont, 744 A.2d 864, 880 n. 13 (Vt. 1999) ([T]he
marriage laws are facially neutral; they do not single out men or women as a class for disparate
treatment, but rather prohibit men and women equally from marrying a person of the same sex . .
. Here, there is no discrete class subject to differential treatment solely on the basis of sex; each
sex is equally prohibited from precisely the same conduct.); Dean v. District of Columbia, 653
A.2d 307, 363 n.2 (D.C. 1995) (Steadman, J ., concurring) (concluding that it stretch[es] the
concept of gender discrimination to assert that it applies to treatment of same-sex couples
differently from opposite-sex couples); Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App.
1974) ([I]t is apparent that the states refusal to grant a license allowing the appellants to marry
one another is not based upon appellants status as males . . . appellants are not being
discriminated against because of their status as males per se.); but see Perry v. Schwarzenegger,
26

704 F.Supp.2d 921, 996 (N.D. Cal. 2010) (Proposition 8 targets gays and lesbians in a manner
specific to their sexual orientation and, because of their relationship to one another, Proposition 8
targets them specifically due to sex.).
Plaintiffs reliance upon Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), is
misplaced. While Plaintiffs correctly noted in prior briefing in this case that the sodomy statute
at issue in Picado applied only to sexual acts between persons of the same sex, the Arkansas
Supreme Court did not hold that the sodomy statute impermissibly discriminated against the
plaintiffs on the basis of their sex. The Court decided the case based upon a privacy theory, not
based upon sex discrimination (or any form of discrimination). The Court did not hold, as
Plaintiffs contend, that the sodomy statute constituted a sex-based classification. With regard to
the Picado plaintiffs equal protection claim, the Court applied a rational-basis test, concluding
that homosexual citizens do not constitute a protected class[.] Id., 349 Ark. at 634.
Amendment 83 and the Arkansas marriage laws treat men and women exactly the same.
Because Amendment 83 and the marriage laws do not discriminate on the basis of sex, but in fact
treat men and women equally, Plaintiffs fail to state a claim of sex discrimination in violation of
the Equal Protection Clause. Summary judgment should be granted to the Defendants
accordingly.
D. Summary judgment should be granted to the Defendants on Plaintiffs sexual
orientation discrimination claim because sexual orientation is not a suspect
classification.

Plaintiffs claim that Amendment 83 and Act 144 of 1997 unlawfully discriminate against
them on the basis of sexual orientation (Complaint, 203 217) fails as a matter of law. This
claim was specifically rejected by the Eighth Circuit in Bruning, supra, which concluded that the
plaintiffs equal protection argument fails on the merits. Id., 455 F.3d at 868-69. The Eighth
27

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 or Perry, supra. Bruning is
controlling on this federal issue in the Eighth Circuit Court of Appeals. The Arkansas Supreme
Court has specifically held that homosexual citizens do not constitute a protected class[.]
Jegley v. Picado, supra, 349 Ark. at 634. Plaintiffs sexual orientation discrimination claim
should be rejected for this reason alone.
The vast majority of federal courts of appeals to consider this issue have concluded that
sexual orientation is not a suspect classification for equal protection purposes. See Cook v.
Gates, 528 F.3d 42, 61 (1st Cir. 2008) (Romer nowhere suggested that the Court recognized a
new suspect class. Absent additional guidance from the Supreme Court, we join our sister
circuits in declining to read Romer as recognizing homosexuals as a suspect class for equal
protection purposes.); Price-Cornelison v. Brooks, 524 F.3d 1103, 1114 n. 9 (10th Cir. 2008)
([T]his court, like many others, has previously rejected the notion that homosexuality is a
suspect classification.); Scarbrough v. Morgan County Bd. of Ed., 470 F.3d 250, 261 (6th Cir.
2006) ([H]omosexuality is not a suspect class in this circuit[.]); Johnson v. Johnson, 385 F.3d
503, 532 (5th Cir. 2004) (Neither the Supreme Court nor this court has recognized sexual
orientation as a suspect classification[.]); Lofton v. Secy of Dept of Children & Family
Services, 358 F.3d 804, 818 (11th Cir. 2004) (As we have explained, Floridas statute burdens
no fundamental rights. Moreover, all of our sister circuits that have considered the question have
declined to treat homosexuals as a suspect class. Because the present case involves neither a
fundamental right nor a suspect class, we review the Florida statute under the rational-basis
standard.); Veney v. Wyche, 293 F.3d 726, 731 (4th Cir. 2002) (Veneys case does not involve
28

a fundamental right, and he does not allege that he is a member of a suspect class. Rather, he
claims that he has been discriminated against on the basis of sexual preference[.]); Schroeder v.
Hamilton Sch. Dist., 282 F.3d 946, 950-51 (7th Cir. 2002) ([H]omosexuals do not enjoy any
heightened protection under the Constitution[.]); Thomasson v. Perry, 80 F.3d 915, 928 (4th
Cir. 1996) (The statutory classification here is not suspect, nor does it burden any fundamental
right. [It] is aimed at service members who engage in or have a propensity to engage in
homosexual acts.); Steffan v. Perry, 41 F.3d 677, 685 n. 3 (D.C. Cir. 1994) (holding that
homosexuals do not constitute a suspect class).
The Second Circuit Court of Appeals has concluded that homosexuals constitute a
suspect classification for equal protection purposes, see Windsor v. U.S., 699 F.3d 169, 185 (2nd
Cir. 2012), but upon reviewing that case, the Supreme Court declined to hold that homosexuals
constitute a suspect classification for equal protection purposes. See Windsor, supra, 133 S.Ct.
2675. The Windsor majority specifically 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. Rather, the Supreme Court majority affirmed the traditional view that it is the
province of individual states to choose which marriages will be recognized under state law. 133
S.Ct. at 1291-92. The great weight of authority supports the States position that Plaintiffs
sexual orientation claim is subject to rational-basis review, not heightened scrutiny, because
sexual orientation is not a suspect classification.
Because homosexuals are not a suspect classification for equal protection purposes, laws
codifying the traditional definition of marriage are subject to rational-basis review. Amendment
83 and Act 144 of 1997 easily meet the rational basis test, infra Section V. Summary judgment
should be granted to the Defendants on Plaintiffs sexual orientation discrimination claim.
29

E. Summary judgment should be granted to the Defendants on the claims
brought by the child Plaintiffs, and the partners of the biological parents of
the child Plaintiffs.

The Complaint mentions certain children of the Plaintiffs, and it is possible that Plaintiffs
intend to assert a substantive due process or other claim on behalf of those children.
12
There is,
however, no assertion of any claim for relief on behalf of the child Plaintiffs in the portions of
the Complaint addressing Plaintiffs claims for relief. See Complaint, 170 227.
13
The
Complaint does not allege sufficient facts, nor articulate any legal theory, to state a claim upon

12
Plaintiffs generally allege that child Plaintiff T.B.W. is the child of Plaintiffs Natalie
Wartick and Tommie J ean Wartick (Complaint, 15); that because of Amendment 83, Natalie
is not listed as a parent on [] T.B.W.s birth certificate (Complaint, 18); and that T.B.W. is
deprived of dignity and benefits afforded all other children of known parents who are married.
Complaint, 19. Plaintiffs generally allege that child Plaintiffs G.D.W. and P.L.W. are the
children of Plaintiffs M. Kendall Wright and J ulia Wright (Complaint, 25), and that G.D.W.
and P.L.W. are deprived of dignity and benefits afforded all other children of known parents
who are married. Complaint, 33.

13
The language employed by Plaintiffs in the portions of their Complaint setting forth
their claims for relief repeatedly and consistently indicates that the claims are brought
exclusively on behalf of the adult Plaintiffs. Plaintiffs refer to: the right to marry the person of
ones choice (Complaint, 179); denial of rights to the Plaintiff couples and other same-sex
couples (id.); Plaintiffs constitutionally protected choice to marry the person they love (id.,
180); denial of the rights to family integrity and intimate association of the Plaintiff couples and
other same-sex couples (id., 185); the right to travel of Plaintiffs and other same-sex
couples (id., 198); and alleged discrimination against the adult Plaintiffs on the basis of their
sexual orientation (id., 203 217) and on the basis of their sex (id., 218 227).

In the section of the Complaint asserting discrimination against the adult Plaintiffs on the
basis of sexual orientation, Plaintiffs assert that Arkansas law treats same-sex couples and their
children as second-class citizens and instructs all persons with whom same-sex couples
interact, including their own children, that their marriages or family relationships are less worthy
than the marriages of others, and Plaintiffs contend that Plaintiffs and their children are equally
deserving of the respect and dignity that legal recognition of marriage confers on opposite-sex
married couples and their children, as well as the tangible protections and responsibilities that
state law provides to married couples and their children. Id., 205 206. This is the only
mention of the child Plaintiffs in the claims for relief sections of the Complaint. Of course, it is
the adult Plaintiffs, not the child Plaintiffs, who assert that Arkansas marriage laws discriminate
against them on the basis of their sexual orientation.

30

which any relief can be granted with respect to any child. As the Supreme Court has held, if a
plaintiff intends to bring a substantive due process claim, the plaintiff must carefully and fully
articulate the facts and law that the plaintiff relies upon: substantive due process analysis must
begin with a careful description of the asserted right, for the doctrine of judicial restraint requires
[the courts] to give the utmost care whenever [they] are asked to break new ground in this field.
Reno v. Flores, 507 U.S. 292, 302 (1993). See also, Ark. Dept of Corr. v. Bailey, 368 Ark. 518,
532, 247 S.W.3d 851 (2007) (same).
In the Prayer for Relief section of their Complaint, Plaintiffs request a permanent
mandatory injunction requiring the Director of the Arkansas Department of Health to:
[H]enceforth issue birth certificates for children born of same-sex
marriages in other states reflecting the married parents to be the
parents of the child born of the marriage and, also, requiring said
Defendant to issue amended birth certificates to any same-sex
married couples previously giving birth to a child in Arkansas
reflecting [t]he married parents to be the parents of the child born
of the marriage.

Complaint, Prayer for Relief, 6 (p. 33). For the reasons explained below, Plaintiffs would
not be entitled to this relief as a matter of law even if they were allowed to marry under Arkansas
law. Summary judgment should be granted to the Defendants accordingly.
As a threshold matter, Plaintiffs allegations about one parent appearing on a birth
certificate and the other parent being excluded from a birth certificate misconstrue applicable
Arkansas law. 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
31

names may or may not appear on a birth certificate. See, e.g., Ark. Code Ann. 20-18-401(e)
(For the purposes of birth registration, the mother is deemed to be the woman who gives birth to
the child . . .); 20-18-401(f)(2) (If the mother was not married . . . the name of the father shall
not be entered on the certificate of birth without an affidavit of paternity signed by the mother
and the person to be named as the father.). Indeed, even where a child is born to a married
woman, the husband of the marriage will not be entered on the birth certificate as the father of
the child if biological paternity is otherwise established in another man. See Ark. Code Ann.
20-18-401(f)(1). Thus, marriage laws simply do not determine who appears as the parent of a
child on an Arkansas birth certificate. Plaintiffs claim fails 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. See, e.g., Lofton v.
Secy of Dept of Children & Family Services, 358 F.3d 804, 811 (11th Cir. 2004) (holding that
there is no fundamental right to adopt or to be adopted); Mullins v. Or., 57 F.3d 789, 794 (9th
Cir. 1995) (Whatever claim a prospective adoptive parent may have to a child, we are certain
that it does not rise to the level of a fundamental liberty interest.); In re Adoption of T.K.J., 931
P.2d 488, 494-95 (Co. Ct. App. 1996) (holding children have no liberty interest in care from
potential adoptive parent, therefore the lack of a hearing on cohabitating partners petitions to
adopt each others children did not violate childrens right to due process); Georgina G. v. Terry
M., 516 N.W.2d 678, 685 (Wis. 1994) (holding that minors right to due process was not violated
by statute prohibiting woman who cohabitated with minors mother from adopting the minor,
even though trial court found that such adoption would have been in the minors best interest).
32

Accordingly, a child does not have a constitutionally protected right to have any person who is
not the childs biological parent listed as a parent on the childs birth certificate.
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. A biological parent has a well-
recognized liberty interest in a childs care and custody. See, e.g., Troxel v. Granville, 530 U.S.
57, 65 (2000); Lofton, 358 F.3d at 809. But, the case law has held that an adult who is not a
biological parent has no such protected liberty interest, 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. See, e.g., Cox v. Stayton, 273 Ark. 298, 304-05, 619 S.W.2d 617 (1981)
(holding that only a biological parent has protected rights to care and custody, even a biological
grandparent does not); Mullins v. Or., supra, 57 F.3d at 794 (same). See also In re Thompson,
11 S.W.3d 913 (Tenn. Ct. App. 1999) (declining to find either statutory or common law de facto
parentage claim for same-sex partner of biological mother who had been involved in childs
conception and upbringing).
Plaintiffs reliance upon Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731, is also
misplaced. In Bethany, the Arkansas Supreme Court affirmed a trial courts findings that a
biological mothers former same-sex partner stood in loco parentis to the child for visitation
purposes, and that it was in the childs best interests to have visitation with the biological
mothers former same-sex partner. There is no indication in Bethany that the partner was listed
as a parent on the childs birth certificate, or attempted to be listed as a parent on the childs birth
certificate. More importantly, in Bethany, the Arkansas Supreme Court expressly rejected the
notion that a person can gain parental rights over a child through a marital relationship with the
childs biological parent:
33

Thus, the doctrine of in loco parentis focuses on the relationship
between the child and the person asserting that they stood in loco
parentis. Bethany on the other hand seems to argue that because
Arkansas does not recognize same-sex marriage or grant
domestic-partnership rights, J ones has no legal standing to assert
that she stood in loco parentis. In other words, Bethany focuses
on her relationship with J ones instead of looking at the
relationship between J ones and E.B. There is nothing in our
decision in Robinson to support Bethanys assertion in this regard.
Although this court in Robinson noted the fact that the visitation
issue arose in the context of a divorce proceeding, this court stated
that critical to its review was the fact that the circuit court found
that the stepmother stood in loco parentis to the minor child. Id.
at 239, 208 S.W.3d at 143. We reiterate that the focus should be
on what, if any, bond has formed between the child and the
nonparent.

2011 Ark. 67 at * 10-11 (citing Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140
(2005)). Under Bethany, the partners of the biological parents of the child Plaintiffs in this case
may be able to assert parental rights to those children under an in loco parentis theory depending
upon the facts of the individual cases, but the marital relationship between the partners and the
biological parents (or lack thereof) is patently irrelevant to any such inquiry. The in loco
parentis doctrine is equally applicable or inapplicable to the partners of the biological parents of
the child Plaintiffs whether they are married or not the focus should be on what, if any, bond
has formed between the child and the nonparent not on the relationship between the biological
parent and the nonparent. Id. In short, Bethany confirms the States position that Plaintiffs
challenges against Amendment 83 and Arkansass marriage laws are irrelevant to the asserted
familial rights of the partners of the biological parents of the child Plaintiffs and the child
Plaintiffs. Summary judgment should be granted to the Defendants on Plaintiffs claims brought
on behalf of the child Plaintiffs and the partners of the biological parents of the child Plaintiffs.
Arkansas is not unique in most if not all states, parental rights (and birth certificate
designations) flow from biological parentage, not from marital relationships. See, e.g., E.E. v.
34

O.M.G.R., 20 A.3d 1171, 1174-75 (N.J . 2011) (The parental rights of a biological father are
presumptively established by the fathers genetic relationship to the child[].); Mintz v. Zoerning,
198 P.3d 861, 863 (N.M. 2008) (The parent and child relationship may be established between a
child and the natural father . . . and the relationship extends to every child and parent, regardless
of the marital status of the parents.); In re Audrey S., 182 S.W.3d 838, 860 n. 31 (Tenn. App.
2005) (parental rights of biological parents exist notwithstanding the marital status of the
childs biological parents) (citing Lehr v. Robertson, 463 U.S. 248, 262 (1983) and other cases);
In re Interest of R.C., 775 P.2d 27, 29 (Colo. 1989) (The biological father is normally presumed
to be the legal father of the child); Jhordan C. v. Mary K., 224 Cal.Rptr. 530 (Cal. 1986) (where
child was conceived by artificial insemination with semen donated personally to the biological
mother by a donor, the donor was deemed the childs legal father; a close female friend of the
biological mother, with whom the biological mother was raising the child jointly, was not a de
facto parent; paternity statutes affording protection to husband and wife from a donor assertion
of paternity did not deny equal protection by failing to provide equal protection to an unmarried
woman, and the courts ruling did not infringe upon any right to family autonomy of the
biological mother and her partner).
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. As a matter of law, neither Amendment 83 nor the Arkansas marriage statutes
burden any constitutionally protected right of any child or any partner of a biological parent of
any child. Birth certificate designations and parental rights do not flow from marital
relationships. Granting marital rights to the adult Plaintiffs would not alter the parental rights of
any Plaintiffs, supra. Because Plaintiffs have not set forth any cognizable claim related to the
35

child Plaintiffs and the partners of the biological parents of the child Plaintiffs, summary
judgment should be granted to the Defendants on these claims.
F. Summary judgment should be granted to the Defendants on Plaintiffs
interstate travel claim.

Plaintiffs assertion that Amendment 83 and Act 144 of 1997 violate their constitutionally
protected right to interstate travel (Complaint, 196 202) fails to state a claim for which relief
can be granted and summary judgment should be granted to the Defendants accordingly.
Plaintiffs assert that the right to interstate travel is derived from the Due Process Clause of the
Fourteenth Amendment. See Complaint, 197 (The United States Constitution, including the
Due Process Clause, protects the liberty of individuals to travel throughout the nation).
Because Plaintiffs rely on the federal constitution for their right to travel claim, the claim is
barred in the Eighth Circuit by Bruning, and barred nationwide under Baker and subsequent
United States Supreme Court cases that have declined to overrule Baker, including Lawrence,
Perry, and Windsor, supra.
Additionally, even without consideration of Baker and Bruning, when Plaintiffs
interstate travel claim is analyzed as a separate and distinct claim from Plaintiffs other
constitutional claims, the interstate travel claim fails under well-established law. The word
travel is not found in the text of the Constitution. Yet the constitutional right to travel from
one State to another is firmly embedded in our jurisprudence. Saenz v. Roe, 526 U.S. 489, 498
(1999) (quoting U.S. v. Guest, 383 U.S. 745, 757 (1966)). The constitutional right to travel
embraces three different components: (1) the right of a citizen of one State to enter and to leave
another State; (2) the right to be treated as a welcome visitor rather than an unfriendly alien when
temporarily present in the second State; and (3) the right to be treated like a permanent resident,
for those travelers who elect to become permanent residents of the second State. Id., 526 U.S. at
36

500. Amendment 83 and Act 144 of 1997 do not violate, or even burden, any of these three
components of the right to travel.
The first component of the right to travel, the right to move from state to state, is affected
only when a statute directly impairs the exercise of the right to free interstate movement by
imposing some obstacle on travelers. Saenz, 526 U.S. at 500-01. For example, in Edwards v.
Cal., 314 U.S. 160 (1941), the Court invalidated Californias anti-Okie law that made it a
crime to bring an indigent person into California. Id. Here, Plaintiffs do not allege that
Amendment 83 imposes any actual obstacle on travelers into Arkansas. Plaintiffs, of course, are
Arkansas residents, not travelers. The first component of the right to travel is not implicated in
this case. The second component of the right to travel, the right to be temporarily present in a
second state, is also not implicated here, for the same reasons.
The third component of the right to travel has been characterized by the Supreme Court
as the right of the newly arrived citizen to the same privileges and immunities enjoyed by other
citizens of the same State. Saenz, 526 U.S. at 502. In this case, Plaintiffs interstate travel
claim appears to be of the third variety, as Plaintiffs assert that Arkansas laws refusal to
recognize their marriages from other jurisdictions infringes their right to travel when Plaintiffs
choose to resettle and make a new home in Arkansas. Complaint, 198. Of course,
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,
37

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.
A similar argument was rejected by the Supreme Court in Califano v. Torres, 435 U.S. 1
(1978). In Torres, the plaintiff received Supplemental Security Income (SSI) benefits while
residing in Connecticut. 435 U.S. at 2. When the plaintiff moved to Puerto Rico, his benefits
were terminated because residents of Puerto Rico were not eligible for the benefits. Id. at 2-3.
14

The plaintiff claimed that the termination of his SSI benefits unconstitutionally burdened his
right to interstate travel. Id. at 3. The Court rejected the plaintiffs argument, which it
summarized as follows: a person who travels to Puerto Rico must be given benefits superior to
those enjoyed by other residents of Puerto Rico if the newcomer enjoyed those benefits in the
State from which he came. Id. at 4. The Court concluded that the plaintiffs argument
altogether transposed the right to travel which only requires that new residents of a state be
given the same benefits as other residents of the state. Id. The Court summarized the reasoning
for this rule as follows:
This Court has never held that the constitutional right to travel
embraces any such doctrine, and we decline to do so now. Such a
doctrine would apply with equal force to any benefits a State might

14
While Puerto Rico is not a state, the Court specifically noted that its unique
relationship to the United States was irrelevant for the purposes of the right to interstate travel:
[f]or purposes of this opinion we may assume that there is a virtually unqualified right to travel
between Puerto Rico and any of the 50 States of the Union. Torres, 435 U.S. at 4 n.6.
Therefore, for purposes of its opinion in Torres, the Court treated Puerto Rico as if it were a
state.
38

provide for its residents . . . And the broader implications of such a
doctrine in other areas of substantive law would bid fair to destroy
the independent power of each State under our Constitution to
enact laws uniformly applicable to all of its residents.

Id. at 4-5 (emphasis added). See also Schatz v. Interfaith Care Center, 811 N.W.2d 643, 656
(Minn. 2012) (Applying Torres, we conclude that Schatzs argument that she is entitled to more
workers compensation benefits than other Wyoming residents because she would have received
those benefits in Minnesota lacks merit. Like the plaintiff in Torres, Schatz seeks to transpose
the right to travel into a right to provide a newcomer with the same benefits enjoyed in a
previous state of residence. But the right to travel does not, and has never been construed to,
require a state to provide a new resident with the same benefits that the new resident received in
her former state.); Matsuo v. U.S., 532 F.Supp.2d 1238, 1250 (D. Haw. 2008) (For those
federal employees who have exercised their right to travel to Hawaii or Alaska, or were deterred
by FEPCA from doing so, the Supreme Court expressly has rejected the proposition that the right
to interstate travel includes the right to receive the same level of benefits in the citizens new
state as the citizen enjoyed in the former state of residence.); Bess v. Bracken County Fiscal
Court, 210 S.W.3d 177, 183 (Ky. App. 2006) (The constitutional right to travel does not require
that when traveling to another jurisdiction, a person must be given benefits which are superior to
those enjoyed by the jurisdictions own residents simply because the traveler enjoyed those
benefits in another place.).
Amendment 83 and Arkansas Act 144 of 1997 make no distinction between new
residents and other residents of Arkansas; all residents including Plaintiffs are treated exactly the
same. Plaintiffs assertion that their right to travel is violated because Arkansas fails to
recognize marriages Plaintiffs obtained in other states would altogether transpose the right to
travel in direct conflict with binding Supreme Court precedent. Accordingly, Plaintiffs
39

interstate travel claim fails as a matter of law. Summary judgment should be granted to the
Defendants accordingly.
G. Plaintiff Arica Navarros request for a divorce should be denied, or
alternatively, the Court may entertain the request without reaching a
constitutional question.

Plaintiff Arica Navarro, an Arkansas resident, married Defendant Patricia Navarro, a
Mississippi resident, in the State of New York in 2012; Plaintiff Navarro now seeks a divorce
before this Court. See Complaint, 35 46. Amendment 83 provides that [m]arriage consists
only of the union of one man and one woman[,] but Amendment 83 does not expressly prohibit
Arkansas courts from dissolving any marriage that is not recognized under Arkansas law. Id.
Amendment 83 is not implicated by Plaintiff Navarros request for a divorce. 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.
Ark. Code Ann. 9-11-208(a)(2) specifically states that [a]ny 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. Id.
Plaintiffs contend that Ark. Code Ann. 9-11-208(a)(2) prohibits this Court from granting a
divorce to Plaintiff Navarro. Of course, Arkansas law does not prohibit Plaintiff Navarro from
obtaining a divorce in another jurisdiction that does not prohibit the dissolution of same-sex
marriages, but Plaintiff Navarro asserts that this would require her to move away from Arkansas
and become a resident of another state in order to meet the residency requirements of that state
before she may obtain the divorce she seeks.
40

Plaintiff Navarro contends that even though Arkansas law does not recognize her same-
sex marriage obtained in New York, because she is a citizen of the State of Arkansas, the State of
Arkansas must allow her to obtain a divorce in Arkansas court. This is not the law. Each state,
as a sovereign, is generally deemed to have a rightful and legitimate concern in the marital status
of persons domiciled within its borders, and jurisdiction over the matrimonial status of its
citizens. Accordingly, the dissolution of marriages is a matter reserved to the states. Each state,
acting through its legislature, has the exclusive, and, except as constitutionally restricted,
unlimited, right and power to regulate, control, prescribe and change the conditions for the
dissolution of a marriage for persons residing within its territorial limits. Because divorce is a
privilege existing solely by grant of the legislature, and because there is no natural, inherent,
constitutional, or vested right to divorce, and no common law governing divorce, subject to such
constitutional limitations as may exist, divorce rests on statutory provisions. See 27A C.J .S.
Divorce 11 (collecting cases); Hatcher v. Hatcher, 265 Ark. 681, 687, 580 S.W.2d 475 (1978)
(Divorce and the incidental rights, responsibilities and liabilities of a divorce, are purely
statutory.) (collecting Arkansas cases). See also Sosna v. Iowa, 419 U.S. 393 (1975) (upholding
one-year residence requirement to obtain a divorce and indicating that there is no fundamental
right to obtain a divorce); Murillo v. Bambrick, 681 F.2d 898, 902-03 (3rd Cir. 1982) (state
imposition of higher filing fee for individuals seeking divorce than for other civil litigants did not
violate equal protection); In re Green, 385 S.W.3d 665, 669 (Tex.App.-San Antonio 2012) (The
right to apply for, or obtain a divorce is not a natural one, but is accorded only by reason of
statute, and the state has the right to determine who are entitled to use its courts for that purpose
and upon what conditions they may do so.) (quoting Wood v. Wood, 320 S.W.2d 807, 810 (Tex.
1959)); Hagan v. Hardwick, 624 P.2d 26, 27 (N.M. 1981) (The right to apply for or obtain a
41

divorce is accorded by statute, and the state has the right to determine who may use its courts for
that purpose and upon what conditions they may do so.) (citing Allen v. Allen, 194 P.2d 270
(N.M. 1948)). Statutes governing the dissolution of a marriage, including nonculpatory
statutes, are generally deemed constitutionally valid, even in the face of a claim of denial of due
process, equal protection, impairment of the obligation of contracts, or a violation of a
prohibition against slavery. 27A C.J .S. Divorce 12 (collecting cases).
Plaintiff Navarro has failed to set forth a legal basis for the Court to grant a divorce in
light of the statutory prohibition contained in Ark. Code Ann. 9-11-208(a)(2). The State of
Arkansas is simply under no obligation to dissolve a marriage that the State of Arkansas does not
recognize as valid. Plaintiffs have failed to articulate how the prohibition in Section 9-11-
208(a)(2) offends any fundamental right. Because the same-sex marriage prohibition is subject
to rational-basis review, the prohibition of same-sex divorceis likewise subject to rational-basis
review, and may be upheld under the same rational bases furthered by Arkansass definition of
marriage, infra Section V. Ark. Code Ann. 9-11-208(a)(2), specifically the language
prohibiting Arkansas courts from terminating any same-sex marriage, is constitutional.
Accordingly, this Court lacks subject-matter jurisdiction to adjudicate Plaintiff Navarros divorce
request. See In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tx.App.-Dallas 2010) (holding
that Texas state courts had no subject-matter jurisdiction to adjudicate divorce petitions in the
context of same-sex marriage where state law prohibited same-sex marriage; also holding that
sexual orientation was not a suspect classification, the right to legal recognition of same-sex
marriage was not a fundamental right, and statute prohibiting same-sex marriage did not violate
the Equal Protection Clause); In re Marriage of Ranzy, No. 49D12-0903-DR-014654, slip op. at
p. 20 (Ind. Super. Ct. Sep. 4, 2009) (The Court lacks subject matter jurisdiction and cannot
42

grant the petition for dissolution.); Chambers v. Ormiston, 935 A.2d 956, 967 (R.I. 2007) (We
conclude that the word marriage in . . . the statute . . . was not intended by the General
Assembly to empower the Family Court to hear and determine petitions for divorce involving . . .
two persons of the same sex who were purportedly married in another state.); Lane v.
Albanese, No. FA044002128S, 2005 WL 896129, at * 4 (Conn. Super. Ct. Mar. 18, 2005)
([T]his court has no choice but to dismiss this case for lack of subject matter jurisdiction.).
Alternatively, if the Court is convinced that the State of Arkansas is obligated to provide
a pathway to marriage dissolution for an Arkansas resident who has obtained a same-sex
marriage in another jurisdiction, or if the Court is inclined to explore the possibility 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. Of course, if the
Court can address Plaintiff Navarros request for dissolution of her marriage without reaching
the constitutionality of Ark. Code Ann. 9-11-208(a)(2) (or any other constitutional issue), then
the Court must do so. See Feland v. State, 355 Ark. 573, 577, 142 S.W.3d 631 (2004) (This
court has frequently held that it will not address a constitutional argument when the case can be
disposed of without doing so.) (citing Quinn v. Webb Wheel Prods., 334 Ark. 573, 976 S.W.2d
386 (1998); Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809 (1995);
Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982)).
Under Amendment 83 and Act 144 of 1997, same-sex marriages are void from inception
under Arkansas law. Plaintiff Navarro asserts that this prevents an Arkansas court from
dissolving a same-sex marriage, because the Court would first have to recognize the validity of
the same-sex marriage, which is prohibited under Arkansas law. However, Arkansas courts have
repeatedly granted divorces in cases involving marriages that were void from inception under
43

Arkansas law, and this has not required Arkansas courts to first recognize otherwise invalid
marriages. See, e.g., Jessie v. Jessie, 53 Ark. App. 188, 920 S.W.2d 874 (1996) (upholding
divorce decree despite fact that bigamous marriage was void from inception); Clark v. Clark, 19
Ark. App. 280, 719 S.W.2d 712 (1986) (explaining presumptions of divorce from or death of
previous spouse to avoid finding that second marriage was invalid as bigamous even in the face
of evidence to the contrary and despite the fact that overcoming these presumptions involves
proof of a negative); Estes v. Merrill, 121 Ark. 361, 181 S.W. 136 (1915) (holding that, even
where the existence of the former spouse at the time of the second marriage was established by
proof, and the clerk of the divorce court in the county of the purported divorce testified that
careful examination of the records failed to produce any record of a divorce obtained in the prior
marriage, such proof is not sufficient to overturn the second marriage, which is presumed to be
legal). See also State v. Graves, 228 Ark. 378, 381-82, 307 S.W.2d 545 (1957) (noting several
exceptions to the general rule that a marriage valid where it is celebrated is valid everywhere,
including polygamous marriage, incestuous marriage, and marriage of a domiciliary which the
statute at the domicile makes void even though celebrated in another state); Ragan v. Cox, 210
Ark. 152, 194 S.W.2d 681 (1946) (determining that purported marriage between 52-year-old
man and 12-year-old girl was a complete nullity, void from inception, as though no marriage had
been performed in the first place and therefore no divorce was necessary). In these cases and
others, Arkansas courts have dissolved marriages that were technically void from inception.
These decisions have not required, nor resulted in, any finding that any unlawful marriage must
be first recognized as lawful before it is terminated. To the contrary, Arkansas courts have
consistently dissolved marriages even where the marriages were void from inception by law.
The same reasoning could be applied by this Court for the sole purpose of dissolving the Navarro
44

marriage, without recognizing the validity of same-sex marriage and without implicating Section
9-11-208(a)(2).
15

In response to the States demonstration that the State is under no constitutional
obligation to grant a divorce of a marriage that the State of Arkansas does not recognize as valid,
Plaintiffs rely solely upon Boddie v. Connecticut, 401 U.S. 371 (1971). In Boddie, welfare
recipients residing in Connecticut brought a class action suit challenging state procedures for the
commencement of litigation, including requirements for payment of court fees and costs for
service of process, claiming that the requirements restricted their access to the courts in their
efforts to bring an action for divorce. 401 U.S. at 372. The Court noted that because resort to
the state courts is the only avenue to dissolution of their marriages, the plight of the welfare
recipients was akin to that of defendants faced with exclusion from the only forum effectively
empowered to settle their disputes. Id. at 376. Boddie is entirely distinguishable from the

15
There are a variety of other ways the Court could effectively dissolve the Navarro
marriage without reaching the constitutionality of Ark. Code Ann. 9-11-208(a)(2), and without
recognition of the Navarro marriage as a prerequisite to dissolution of the Navarro marriage.
The Court could apply New York law to dissolve the Navarro marriage. The Navarros have
significant contacts with New York given that they were married in New York and under New
York law, which would presumably allow Plaintiff Navarro to dissolve her marriage entered into
pursuant to New York law. Plaintiff Navarro might also ask the Court to grant equitable relief
based upon a finding that legal relief is unavailable, and effectively dissolve the Navarro
marriage equitably. Plaintiff Navarro could seek an annulment, which would not require
recognition of the validity of the underlying marriage. See 55 C.J .S. Marriage 70 (2012)
([T]he theory of an action to annul is that no valid marriage ever came into existence.); In re
Marriage of J.B. and H.B., supra, 326 S.W.3d at 667 (action to have same-sex marriage declared
void under Texas law would not give effect to the marriage); Surnamer v. Ellstrom, No. 1 CA-
CV 11-0504, 2012 WL 2864412, at *2-3 (Ariz. App. Div. 1 J uly 12, 2012) (holding that same-
sex marriage entered into in Canada was valid under Canadian law and void under Arizona law,
but Arizona court had the authority to grant annulment under Arizona law; noting that an action
to annul a marriage does not recognize its validity; to the contrary, it is premised on the notion
that the marriage is not valid, but void). Of course, the burden is on Plaintiff Navarro to
demonstrate her entitlement to the relief she seeks. And, in prior briefing before this Court,
Plaintiff Navarro has conceded that she can obtain dissolution of her marriage in Arkansas court
in a variety of ways aside from a divorce that first recognizes the validity of her out-of-state
marriage.
45

instant case because the State has established (and Plaintiffs have not contested) that Plaintiff
Navarro could obtain a divorce in another jurisdiction, and there are other means of obtaining
dissolution of her marriage in Arkansas court. Amendment 83 and the Arkansas marriage laws
do not deny Plaintiff Navarros access to Arkansas courts, and Arkansas state court is not the
only forum effectively empowered to settle her dispute. Boddie is not instructive, much less
controlling.
Moreover, the Courts holding in Boddie has no application to this case: we hold only
that a State may not, consistent with the obligations imposed on it by the Due Process Clause of
the Fourteenth Amendment, pre-empt the right to dissolve this legal relationship without
affording all citizens access to the means it has prescribed for doing so. 401 U.S. at 383.
Amendment 83 and the Arkansas marriage laws do not deny Plaintiff Navarro access to the
means prescribed by Arkansas for dissolving any marriage that is valid and recognized by the
State of Arkansas. Arkansas law (and only Ark. Code Ann. 9-11-208(a)(2), but not
Amendment 83) merely prohibits an Arkansas court from granting a divorce of a marriage that is
not recognized, and cannot be granted in the first instance, under Arkansas law. In Boddie, the
Supreme Court did not hold that states must afford their citizens the opportunity to dissolve
marriages entered into in other jurisdictions, even where those marriages are not recognized as
valid under the laws of the forum state. Such a rule is plainly excluded by the premise in Boddie
that Connecticut state court was the only forum in which the Boddie plaintiffs could petition
for divorce of their Connecticut marriages. Id. at 376. Boddie simply does not require Arkansas
to grant a divorce to Plaintiff Navarro, or any other person who petitions an Arkansas court for
dissolution of a marriage obtained in another jurisdiction contrary to Arkansas law.
46

Plaintiff Navarro cannot be allowed to attack the constitutionality of an Arkansas law
based upon her unsupported assertion that relief is unavailable to her through any other means.
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.
V. AMENDMENT 83 MEETS THE RATIONAL-BASIS TEST.

As explained above, Plaintiffs federal-law claims are subject to rational-basis review
because no fundamental right is implicated and no suspect classification is targeted. The right to
marry someone of the same sex is not objectively, deeply rooted in this Nations history and
tradition and thus is not a fundamental right. Washington v. Glucksberg, supra, 521 U.S. at
720-21. The Supreme Court has cautioned that [b]y extending constitutional protection to an
asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public
debate and legislative action. Id. at 720. As a general matter, the Court has always been
reluctant to expand the concept of substantive due process because guideposts for responsible
decisionmaking in this unchartered area are scarce and open-ended. Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992) (citing Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225-
26 (1985)). Thus, [t]he doctrine of judicial self-restraint requires us to exercise the utmost care
whenever we are asked to break new ground in this field. Id. As explained above, the United
States Supreme Court has not broken new ground or declared a fundamental right applicable to
the claims levied by Plaintiffs in this case. Amendment 83 is therefore subject to rational-basis
review under the United States Constitution.
Amendment 83 satisfies the rational-basis test. Under rational-basis review, a law is
presumed constitutional and [t]he burden is on the one attacking the legislative arrangement to
negative every conceivable basis which might support it. Heller v. Doe, 509 U.S. 312, 320
47

(1993) (internal quotations omitted). See also Ark. Dept of Corr. v. Bailey, 368 Ark. 518, 533,
247 S.W.3d 851 (2007) (Under the rational-basis test, the party challenging the constitutionality
of the statute must prove that the statute is not rationally related to achieving any legitimate
governmental objective under any reasonably conceivable fact situation.). Accordingly, in this
case, the burden is on Plaintiffs to prove that Amendment 83 and the Arkansas marriage laws are
not rationally related to any legitimate government objective under any reasonably conceivable
fact situation. There is no burden on the Defendants to demonstrate a rational basis, but of
course, if the Defendants demonstrate a rational basis (or if the Court conceives of a rational
basis), then Plaintiffs cannot meet their burden.
A court conducting a rational-basis review does not sit as a superlegislature to judge the
wisdom or desirability of legislative policy determinations, but only asks whether there is some
conceivable rational basis for the challenged statute. Heller v. Doe, 509 U.S. at 319. See also
Citifinancial Retail Services Div. of Citicorp Trust Bank, FSB v. Weiss, 372 Ark. 128, 136, 271
S.W.3d 494 (2008) (This court has repeatedly held that the determination of public policy lies
almost exclusively with the legislature, and the courts will not interfere with that determination
in the absence of palpable errors.); Southwestern Bell Tel. Co. v. Roberts, 246 Ark. 864, 868,
440 S.W.2d 208 (1969) ([T]he question of the wisdom or expediency of a statute is for the
Legislature alone. The mere fact that a statute may seem unreasonable or unwise does not justify
a court in annulling it, as courts do not sit to supervise legislation. Courts do not make the law;
they merely construe, apply, and interpret it.).
16
In this case, the personal opinions of the

16
The Arkansas Supreme Court analyzes the state constitution consistently with the
federal constitution, so the applicable standards are the same regardless of which constitution is
at issue in a particular case or claim. See McDonald v. State, 354 Ark. 216, 221 n. 2, 119 S.W.3d
41, 44 n.2 (2003) (We note that this court typically interprets Article 2, section 15, of the
Arkansas Constitution in the same manner that the United States Supreme Court interprets the
48

parties, counsel, and the Court about the policy of Amendment 83 and the Arkansas marriage
laws are irrelevant. The people of Arkansas acted as their own policymakers by enacting
Amendment 83. The only relevant question is the constitutionality of Amendment 83 under the
rational-basis test.
In enacting Amendment 83, the citizens of Arkansas had absolutely no obligation to
select the scheme that a court might later conclude was best. Nat'l R.R. Passenger Corp. v.
A.T.& S.F.R. Co., 470 U.S. 451, 477 (1985). It is enough that there is an evil at hand for
correction, and that it might be thought that the particular legislative measure was a rational way
to correct it. Williamson v. Lee Optical of Okla., 348 U.S. 483, 487-88 (1955). Amendment 83
does not have to be perfect in order to be constitutional. See McGowan v. Md., 366 U.S. 420,
425-26 (1961) (State legislatures are presumed to have acted within their constitutional power
despite the fact that in practice, their laws result in some inequality.). The presumption that a
law is constitutional even though it may be imperfect is even stronger with regard to laws passed
by the citizens themselves at the ballot box. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)
(upholding an initiated act approved by California voters); Gregory v. Ashcroft, 501 U.S. 452,
470-71 (1991) (applying rational-basis review and noting that the Court was dealing not merely
with government action, but with a state constitutional provision approved by the people of
Missouri as a whole and therefore the constitutional provision reflects . . . the considered
judgment . . . of the citizens of Missouri who voted for it.). Again, Amendment 83 reflects the

Fourth Amendment.); see also Ark. Code Ann. 16-123-105(c) (when construing the Arkansas
Civil Rights Act, the courts may look for guidance in state and federal decisions interpreting 42
U.S.C. 1983). As explained above, however, analysis of the merits of the state-law claims in
this case is inappropriate and unnecessary because Amendment 83 is part of the Arkansas
Constitution and therefore Amendment 83 withstands scrutiny under the Arkansas Constitution
as a matter of logic and settled law.

49

considered judgment of the citizens of Arkansas, and Plaintiffs cannot attack the policy of
Amendment 83 through a lawsuit.
Finally, even where a proffered rational basis is contravened by other evidence, if a
rational person could believe the proffered rational basis, then it is not subject to second-
guessing by the judiciary. See, e.g., Vance v. Bradley, 440 U.S. 93, 112 (1979) (It makes no
difference that the [legislative] facts may be disputed or their effect opposed by argument and
opinion of serious strength. It is not within the competency of the courts to arbitrate in such
contrariety.). Accordingly, even if Plaintiffs present evidence to contravene any or all proffered
rational bases in this case, Amendment 83 and Arkansas Act 144 of 1997 will survive rational-
basis scrutiny as a matter of law so long as a reasonable person could conclude that these laws
further a legitimate government objective under any reasonably conceivable fact situation.
The State of Montana, like Arkansas, has both a constitutional amendment, and several
statutes, restricting marriage to opposite-sex couples. In Donaldson v. State, 292 P.3d 364
(Mont. 2012), plaintiffs challenged Montanas marriage laws, alleging that the restriction of
marriage to opposite-sex couples violated the plaintiffs rights to equal protection, due process,
and the rights of privacy, dignity and the pursuit of lifes necessities. The Montana trial court
granted the States motion to dismiss the suit, and, on appeal, the Montana Supreme Court
affirmed the dismissal. Id. at 366-67. In a concurring opinion, J ustice Rice noted several
conceivable grounds for Montanas laws, which were sufficient to satisfy the rational-basis test.
For example, he noted that marriage might have been limited to opposite-sex couples for reasons
of family, societal stability, and procreation. One might agree or disagree with those reasons, but
they were not irrational. Id. at 368-69. See also Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y.
2006) (plurality) (Intuition and experience suggest that a child benefits from having before his
50

or her eyes, every day, living models of what both a man and a woman are like.); In re
Marriage of J.B. & H.B., 326 S.W.3d 654, 678 (Tex. App. Dallas 2010) (The state also could
have rationally concluded that children are benefited by being exposed to and influenced by the
beneficial and distinguishing attributes a man and a woman individually and collectively
contribute to the relationship.); Anderson v. King County, 138 P.3d 963, 983 (Wash. 2006) (en
banc) ([T]he legislature was entitled to believe that providing that only opposite-sex couples
may marry will encourage procreation and child-rearing in a traditional nuclear family where
children tend to thrive.). Each of the rational bases found by the Montana Supreme Court and
other courts to uphold substantively indistinguishable state marriage laws is sufficient to uphold
Amendment 83 and the Arkansas marriage laws in this case. Summary judgment should be
granted to the Defendants.
The United States Supreme Court has recognized a bevy of legitimate state interests that
are directly implicated and furthered by Amendment 83 and Act 144 of 1997: (1) the basic
premise of the referendum process, which is that political power flows from the people to their
government on issues of vital importance to the public;
17
(2) advancement of procreation by
encouraging the development of biologically procreative relationships;
18
(3) ensuring the best

17
See, e.g., Bond v. U.S., 131 S. Ct. 2355, 2364 (2011) (explaining that the federal
system secures liberties to citizens, not states, including liberties to enact local policies more
sensitive to the diverse needs of a heterogeneous society, liberty to conduct innovation and
experimentation, and liberty to have direct involvement in the political process; federalism
allows States to respond, through the enactment of positive law, to the initiative of those who
seek a voice in shaping the destiny of their own times without having to rely solely upon the
political processes that control a remote central power.); James v. Valtierra, 402 U.S. 137, 141
(1971) (Provisions for referendums demonstrate devotion to democracy, not to bias,
discrimination, or prejudice.).

18
See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383 (1978) ([Marriage] is the foundation
of the family in our society . . . [I]f appellees right to procreate means anything at all, it must
imply some right to enter the only relationship in which the State of Wisconsin allows sexual
51

interests of children through laws where children born as a result of a union between a man and a
woman are cared for by their biological parents in a stable family environment;
19
(4) stability,
uniformity, and continuity of laws in the face of an ongoing public and political debate about the
nature and role of marriage;
20
(5) preservation of the public purposes and social norms linked to
the historical and deeply-rooted meaning of marriage;
21
and (6) a cautious, historical approach to
governmental social experimentation as democratic, cultural and scientific discussions proceed.
22


relations legally to take place.); Loving v. Va., 388 U.S. 1, 12 (1967) (Marriage is one of the
basic civil rights of man, fundamental to our very existence and survival.); Skinner v. Okla.,
316 U.S. 535, 541 (1942) (Marriage and procreation are fundamental to the very existence and
survival of the race.).

19
See, e.g., Nordlinger v. Hahn, 505 U.S. 1, 17 (1992) (promotion of family continuity
and stability is a legitimate state interest); Quilloin v. Walcott, 434 U.S. 246, 255 (1978)
(promotion of the best interests of children is a legitimate state interest).

20
See, e.g., Glucksberg, supra, 521 U.S. at 720; Parham v. Hughes, 441 U.S. 347, 357-58
(1979) (the state has a legitimate interest in the maintenance of an accurate and efficient system
in matters of family and inheritance); Storer v. Brown, 415 U.S. 724, 736 (1974) (stability of the
political system is a compelling state interest).

21
See, e.g., Maynard v. Hill, 125 U.S. 190, 211 (1888) (Marriage is the foundation of
the family and of society, without which there would be neither civilization nor progress.).

22
See, e.g., District Attorneys Office for Third Jud. Dist. v. Osborne, 557 U.S. 52, 72-73
(2009) (state legislative responses to emerging technology in the context of DNA evidence are
preferred over judicial interference; [t]o suddenly constitutionalize this area would short-circuit
what looks to be a prompt and considered legislative response); Murray v. Giarratano, 492 U.S.
1, 14 (1989) (Kennedy, J ., concurring) ([J ]udicial imposition of a categorical remedy . . . might
pretermit other responsible solutions being considered in Congress and state legislatures.);
Chandler v. Florida, 449 U.S. 560, 579 (1981) (To stay experimentation in things social and
economic is a grave responsibility. Denial of the right to experiment may be fraught with serious
consequences to the Nation. It is one of the happy incidents of the federal system that a single
courageous State may, if its citizens choose, serve as a laboratory; and try novel social and
economic experiments without risk to the rest of the country. This Court has the power to
prevent an experiment . . . But in the exercise of this high power, we must be ever on our guard,
lest we erect our prejudices into legal principles.) (quoting New State Ice Co. v. Liebmann, 285
U.S. 262, 311 (1932) (Brandeis, J ., dissenting)).

52

Any of these rational bases alone, and any other conceivable rational basis, is sufficient to affirm
the constitutionality of 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
anticipated assertion that Amendment 83 and Act 144 of 1997 serve to stigmatize or impose
inequality upon persons who enter into same-sex marriages elsewhere or wish to enter into same-
sex marriages under Arkansas law is insufficient to meet Plaintiffs 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. Likewise, Plaintiffs
anticipated reliance upon Windsor is insufficient to meet their burden. Windsor had nothing to
do with Arkansass marriage laws (or the marriage laws of any state), and in Windsor, the United
States Supreme Court concluded that a federal law that prohibited recognition of same-sex
marriages validly entered into in states where same-sex marriage is authorized was
unconstitutional because some states allow same-sex marriage and some states do not allow
same-sex marriage, and the federal government cannot deny federal marriage benefits to same-
sex couples who are validly married under the laws of those states that choose to allow same-sex
marriage. In Windsor, the Court did not hold that states are required to authorize same-sex
marriage under state law, or recognize same-sex marriages of other jurisdictions. Directly to the
contrary, the Court reaffirmed its deference to the sovereign and exclusive authority of the states
to define and regulate marriage under state law. 133 S.Ct. at 1291-92. The Court went out of its
way to include this discussion of state regulation of marriage, despite the fact that it was not an
element of the Courts holding regarding the federal government, in what can only be described
53

and characterized as express confirmation that individual states retain the sovereign authority to
recognize or prohibit same-sex marriage, including the authority to recognize or decline to
recognize same-sex marriages entered into in other jurisdictions. Amendment 83 and Arkansass
marriage laws are subject to rational-basis review, and easily meet the rational-basis test.
VI. CONCLUSION

Plaintiffs Arkansas constitutional claims are barred as a matter of law because
Amendment 83 is part of the Arkansas Constitution and therefore Amendment 83 does not
violate any earlier provision of the Arkansas Constitution, including the Declaration of Rights.
Plaintiffs federal constitutional claims are barred in the Eighth Circuit by Bruning, and barred
nationwide by Baker, and the Supreme Courts refusal to overturn its holding in Baker despite
ample opportunity in Lawrence, Perry, Windsor, and other cases, supra. Plaintiffs sex
discrimination claim fails because Plaintiffs are not treated differently on the basis of gender.
Plaintiffs sexual orientation discrimination claim fails because sexual orientation is not a suspect
classification for equal protection purposes, and Amendment 83 meets the rational-basis test.
The child Plaintiffs and the partners of the biological parents of the child plaintiffs fail to state
any cognizable claim upon which relief can be granted. Plaintiffs claim for violation of the
right to interstate travel fails as a matter of law. Plaintiff Navarros request for a divorce should
be denied as a matter of law, or alternatively, the Court can dissolve the Navarro marriage
without reaching any constitutional question. Amendment 83 meets the rational-basis test as a
matter of well-settled law. For all these reasons, summary judgment should be granted to the
Defendants on Plaintiffs Complaint.
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
54

fundamental right to be free of the political barrier a validly enacted constitutional amendment
erects. Bruning, supra, 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 the people through the initiative process may rationally choose not to expand in wholesale
fashion the groups entitled to those benefits. Id.
Nationwide, citizens are engaged in a robust debate over this
divisive social issue. If the traditional institution of marriage is to
be restructured, as sought by Plaintiffs, it should be done by a
democratically-elected legislature or the people through a
constitutional amendment, not through judicial legislation that
would inappropriately preempt democratic deliberation regarding
whether or not to authorize same-sex marriage.

Jackson v. Abercrombie, supra, 884 F.Supp.2d at 1072. The relief sought by Plaintiffs in this
case does not lie with the judicial branch, but in the democratic process.


To that end, in 2013, same-sex marriage was authorized through the democratic process
in several states. Many states that do not allow same-sex marriage are currently considering
legislation or proposed ballot measures to authorize same-sex marriage. In Arkansas, since the
filing of Plaintiffs Complaint, two ballot measures that would repeal Amendment 83 have been
certified by the Arkansas Attorney General to appear on the ballot. See Op. Atty Gen. No.
2013-114 (certifying proposed constitutional amendment to repeal Amendment 83)
23
; Op. Atty

23
The popular name of this proposed constitutional amendment, certified by the Attorney
General on September 19, 2013, is: REPEAL OF THE ARKANSAS MARRIAGE AMENDMENT. The
ballot title reads:

A proposed amendment to the Arkansas constitution which will
repeal Amendment 83, the Arkansas marriage amendment that
prohibits same sex marriages in Arkansas and prohibits recognition
of civil unions and relationships similar to marriage; this
amendment would restore all Arkansas laws relating to marriage
which were in effect prior to the adoption of Amendment 83,
including the General Assemblys statutory ban on same-sex
55

Gen. No. 2013-135 (certifying proposed constitutional amendment to repeal Amendment 83 and
authorize same-sex marriage in Arkansas).
24
Though Plaintiffs legal challenges to Amendment
83 fail as a matter of law, Plaintiffs have recourse through the democratic process.


marriage, and to the extent the General Assembly has passed
additional legislation since the adoption of Amendment 83, that
legislation would also remain in effect; this proposed amendment,
if passed, will not make same-sex marriage or civil unions legal
but will reinvest the General Assembly with the power to pass such
laws relating to same sex marriage as it deems appropriate and will
allow the courts of this state to interpret and construe those laws.


24
The popular name of this proposed constitutional amendment, certified by the Attorney
General on November 7, 2013, is: THE ARKANSAS MARRIAGE AMENDMENT. The ballot title
reads:

An amendment to the Arkansas Constitution to recognize marriage
as a union between two people regardless of sex. No member of
any clergy or religious organization shall be obligated to provide
wedding ceremonies or participate in the solemnization of any
marriage. Refusal by clergy or religious organizations to
participate shall not create any civil claim. This proposed
amendment would result in the repeal of Amendment 83 of the
Arkansas Constitution, prevent county clerks from denying
issuance of marriage licenses on the grounds of the sexes of the
couple and provide protection to religious organizations and clergy
from any legal requirement to participate in marriage ceremonies.
56

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.


57

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 92