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Arkansas Bar Annual Meeting LGBT Legal Issues Panel

Arkansas Bar Annual Meeting LGBT Legal Issues Panel. Arkansas’s Same-Sex Marriage Case June 11, 2014.

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Arkansas Bar Annual Meeting LGBT Legal Issues Panel

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  1. Arkansas Bar Annual MeetingLGBT Legal Issues Panel Arkansas’s Same-Sex Marriage Case June 11, 2014

  2. At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs’ marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history. Tanco v. Haslam,2014 WL 997525 (M.D. Tenn. Mar. 14, 2014)

  3. U.S. v. WINDSOR

  4. It Started With This Woman Edith Windsor

  5. “[s]cientific evidence strongly supports the conclusion that homosexuality is a normal expression of human sexuality; that most gay, lesbian, and bisexual adults do not experience their sexual orientation as a choice; that gay and lesbian people form stable, committed relationships that are equivalent to heterosexual relationships in essential respects; and that same-sex couples are no less fit than heterosexual parents to raise children and their children are no less psychologically healthy and well-adjusted than children of heterosexual parents.  In short, the claim that legal recognition of marriage for same-sex couples undermines the institution of marriage and harms their children is inconsistent with scientific evidence.” Windsor, Case No.  12-307, Brief of American Psychological Association,at 4–5 (Mar.  1, 2013)

  6. U.S. v. WINDSOR “marriage is more than a routine classification for purposes of certain statutory benefits” U.S. v. Windsor, 133 S.Ct. 2675, 2694 (2013)

  7. U.S. v. WINDSOR “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” U.S. v. Windsor, 133 S.Ct. 2675, 2691 (2013)

  8. U.S. v. WINDSOR “Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” U.S. v. Windsor, 133 S.Ct. 2675, 2692 (2013)

  9. U.S. v. WINDSOR “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects and . . . it humiliates tens of thousands of children now being raised by same sex couples. The law in question makes it more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in the community and their daily lives.” U.S. v. Windsor, 133 S.Ct. 2675, 2694 (2013)

  10. U.S. v. WINDSOR “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects.” U.S. v. Windsor, 133 S.Ct. 2675, 2694 (2013)

  11. U.S. v. WINDSOR “Private consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form ‘but one element in a personal bond that is more enduring.’” U.S. v. Windsor, 133 S.Ct. 2675, 2692 (2013) (citing Lawrence)

  12. Just as Justice Scalia predicted in his animated dissent, “the state-law shoe” has dropped. Windsor, 133 S.Ct. at 2677-78

  13. Unbroken String of Victories ForSame-sex Marriage Since Windsor Garden State Equality v. Dow, 82 AJd 336 (N.J. Super. Ct. Law Div. 2013) Griego v. Oliver, 316 P.3d 865 (N.M. 2013) Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) Bishop v. us. ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014) Lee v. Orr, No. 13-CV-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) De Leon v. Perry, No. SA-13-CA-00982-0LG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) Tanco v. Haslam, No. 3:13-CV-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) DeBoer v. Snyder, No. 12-CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014) Henry v. Himes, No. 1:14-CV-129, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014) Latta v. Otter, No. 1:13-CV-00492-CWD, 2014 WL 1909999 (D. Idaho May 13, 2014) Baskin v. Bogan, No. 1:14-CV-00355-RLY, 2014 WL 1814064 (S.D. Ind. May 8, 2014) Geiger v. Kitzhaber, No. 6:13-CV-01834-MC, 2014 WL ------ (D. Oregon May 19, 2014) Whitewood v. Wolf, No. 1:13-CV-01861-JEJ, 2014 WL ------ (M.D. Penn. May 20, 2014)

  14. The Right To Marry

  15. FUNDAMENTAL RIGHT TO MARRY “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” Loving v. Virginia, 388 U.S. 1, 12 (1967)

  16. FUNDAMENTAL RIGHT TO MARRY “Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.” Zablocki v. Redhail, 434 U.S. 374, 384 (1978)

  17. FUNDAMENTAL RIGHT TO MARRY “a right so basic and fundamental and so deeply rooted in our society as the right of privacy in marriage” Griswold v. Connecticut, 381 U.S. 479, 491 (1965)

  18. FUNDAMENTAL RIGHT TO MARRY “marriage involves interests of basic importance in our society.” Boddie v. Connecticut, 401 U.S. 371, 376 (1971)

  19. … Defendants argue the right to marry does not include the right to same-sex marriage. That is, Defendants claim this is a “definitional” issue, in that Plaintiffs are seeking recognition of a “new right to same-sex marriage” as opposed to the existing “right to marry.” This Court finds this argument fails, as the Supreme Court did not adopt this line of reasoning in the analogous case of Loving v. Virginia. De Leon v. Perry, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014)

  20. The Supreme Court has consistently refused to narrow the scope of the fundamental right to marry by reframing a plaintiff’s asserted right to marry as a more limited right that is about the characteristics of the couple seeking marriage. In individual cases regarding parties to potential marriages with a wide variety of characteristics, the Court consistently describes a general “fundamental right to marry” rather than “the right to interracial marriage,” “the right to inmate marriage,” or “the right of people owing child support to marry.” Henry v. Himes, Case No. 1:14-cv-00129 (S.D. Ohio April 14, 2014)

  21. Marriage is a fundamental right There can be no serious doubt that in America the right to marry is a rigorously protected fundamental right. Bostic v. Rainey, 2014 WL 561978 (E.D. Va. Feb. 14, 2014)

  22. Because marriage is a fundamental right, therefore, Virginia’s Marriage Laws cannot be upheld unless they are justified by “compelling state interests” and are “narrowly drawn to express only those interests.” Carey, 431 U.S. at 686, 97 S.Ct. 2010; accord Zablocki, 434 U.S. at 388, 98 S.Ct. 673 … Bostic v. Rainey, 2014 WL 561978 (E.D. Va. Feb. 14, 2014)

  23. Proposed Justifications for Discrimination

  24. CLAIMED LEGITIMATE STATE INTERESTS • 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; • advancement of procreation by encouraging the development of biologically procreative relationships; • ensuring the best 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; • stability, uniformity, and continuity of laws in the face of an ongoing public and political debate about the nature and role of marriage; • preservation of the public purposes and social norms linked to the historical and deeply-rooted meaning of marriage; • a cautious, historical approach to governmental social experimentation as democratic, cultural and scientific discussions proceed.

  25. Where have we heardthese interests before?

  26. In 1966, attorneys for the State of Virginia made the following arguments to the Supreme Court in support of Virginia’s law prohibiting interracial marriage: (1) “The Virginia statutes here under attack reflects [sic] a policy which has obtained in this Commonwealth for over two centuries and which still obtains in seventeen states”; (2) “Inasmuch as we have already noted the higher rate of divorce among the intermarried, is it not proper to ask, ‘Shall we then add to the number of children who become the victims of their intermarried parents?’ “; (3) “[I]ntermarriage constitutes a threat to society”; and (4) “[U]nder the Constitution the regulation and control of marital and family relationships are reserved to the States.” Brief for Respondents at 47–52, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), 1967 WL 113931. These contentions are almost identical to the assertions made by the State of Utah in support of Utah’s laws prohibiting same-sex marriage. For the reasons discussed above, the court finds these arguments as unpersuasive as the Supreme Court found them fifty years ago. Anti-miscegenation laws in Virginia and elsewhere were designed to, and did, deprive a targeted minority of the full measure of human dignity and liberty by denying them the freedom to marry the partner of their choice. Utah’s Amendment 3 achieves the same result. Kitchen v. Herbert, 2013 WL 6697874 (D. Utah Dec. 20, 2013)

  27. What has each of the cases since Windsor said about these state interests?

  28. BASIC PREMISE OFREFERENDUM PROCESS

  29. When government is alleged to have threatened any of these rights, it is the responsibility of the courts to interpret and apply the protections of the Constitution. The United States Supreme Court explained the courts’ responsibility as follows: The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Griego v. Oliver, 316 P.3d 865 (N.M. 2013)

  30. Because same-gender couples (whether lesbian, gay, bisexual, or transgender, hereinafter “LGBT”) are a discrete group which has been subjected to a history of discrimination and violence, and which has inadequate political power to protect itself from such treatment, the classification at issue must withstand intermediate scrutiny to be constitutional. Griego v. Oliver, 316 P.3d 865 (N.M. 2013)

  31. The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so important, an individual’s fundamental rights “may not be submitted to vote; they depend on the outcome of no elections.” Kitchen v. Herbert, 2013 WL 6697874 (D. Utah Dec. 20, 2013)

  32. Regardless of the justifications provided by an enactment’s proponents, the Supreme Court has clearly stated that if such an enactment violates the U.S. Constitution—whether passed by the people or their representatives—judicial intervention is necessary to preserve the rule of law. Obergefell v. Wymyslo, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013)

  33. Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights. Bishop v. Holder, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014)

  34. … the Constitution, including its equal protection and due process clauses, protects all of us from government action at any level, whether in the form of an act by a high official, a state employee, a legislature, or a vote of the people adopting a constitutional amendment. Bourke v. Beshear, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014)

  35. The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person whom the Constitution protects and, because they are so important, an individual’s fundamental rights may not be submitted to vote and may not depend on the outcome of elections. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (emphasis added). De Leon v. Perry, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014)

  36. Given the importance of marriage as a fundamental right and its relation to an individual’s rights to liberty, privacy, and association, the Supreme Court has not hesitated to invalidate state marriage laws whenever such laws intrude on an individual’s protected realm of liberty. De Leon v. Perry, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014)

  37. This position, which the state defendants advance again in the present case, is just as ineffectual now as it was in Loving. Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. DeBoer v. Snyder, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014)

  38. The Court is not aware of any legal authority that entitles a ballot-approved measure to special deference in the event it raises a constitutional question. DeBoer v. Snyder, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014)

  39. … the state’s domestic relations authority cannot trump federal constitutional limitations. DeBoer v. Snyder, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014)

  40. In attempting to define this case as a challenge to “the will of the people,” Tr. 2/25/14 p. 40, state defendants lost sight of what this case is truly about: people. DeBoer v. Snyder, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014)

  41. … given that all practicing attorneys, as well as the vast majority of all citizens in this country, are fully aware that unconstitutional laws cannot stand, even when passed by popular vote, Defendants’ repeated appeal to the purportedly sacred nature of the will of Ohio voters is particularly specious. Henry v. Himes, Case No. 1:14-cv-00129 (S.D. Ohio April 14, 2014)

  42. ADVANCEMENT OF PROCREATION

  43. The opponents of same-gender marriage assert that defining marriage to prohibit same-gender marriages is related to the important, overriding governmental interests of “responsible procreation and childrearing” and preventing the deinstitutionalization of marriage. However, the purported governmental interest of “responsible procreation and childrearing” is not reflected in the history of the development of New Mexico’s marriage laws. Procreation has never been a condition of marriage under New Mexico law, as evidenced by the fact that the aged, the infertile, and those who choose not to have children are not precluded from marrying. In addition, New Mexico law recognizes the right of same-gender couples to raise children. NMSA 1978, § 32A-5-11 (1993) (recognizing parties who are eligible to adopt children) … Griego v. Oliver, 316 P.3d 865 (N.M. 2013)

  44. The court does not find the State’s argument compelling because, however persuasive the ability to procreate might be in the context of a particular religious perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view. The State’s position demeans the dignity not just of same-sex couples, but of the many opposite-sex couples who are unable to reproduce or who choose not to have children. Under the State’s reasoning, a post-menopausal woman or infertile man does not have a fundamental right to marry because she or he does not have the capacity to procreate. This proposition is irreconcilable with the right to liberty that the Constitution guarantees to all citizens. Kitchen v. Herbert, 2013 WL 6697874 (D. Utah Dec. 20, 2013)

  45. … any relationship between Amendment 3 and the State’s interest in responsible procreation “is so attenuated as to render the distinction arbitrary or irrational.” Kitchen v. Herbert, 2013 WL 6697874 (D. Utah Dec. 20, 2013)

  46. The “for-the-children” rationale also fails because it would threaten the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating. See Bishop, 2014 WL 116013, at *30. Bostic v. Rainey, 2014 WL 561978 (E.D. Va. Feb. 14, 2014)

  47. Same-sex couples can be just as responsible for a child’s existence as the countless couples across the nation who choose, or are compelled to rely upon, enhanced or alternative reproduction methods for procreation. Bostic v. Rainey, 2014 WL 561978 (E.D. Va. Feb. 14, 2014)

  48. The procreation argument raised by Defendants also fails. De Leon v. Perry, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014)

  49. The Family Trust Foundation of Kentucky, Inc. submitted a brief as amicus curiae which cast a broader net in search of reasons to justify Kentucky’s laws. It offered additional purported legitimate interests including: responsible procreation and childrearing, steering naturally procreative relationships into stable unions, promoting the optimal childrearing environment, and proceeding with caution when considering changes in how the state defines marriage. These reasons comprise all those of which the Court might possibly conceive. The State, not surprisingly, declined to offer these justifications, as each has failed rational basis review in every court to consider them post-Windsor, and most courts pre-Windsor. Bourke v. Beshear, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014)

  50. BEST INTERESTS OF CHILDRENBEST UNION BETWEENMAN AND WOMAN

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