Lawsuits Filed to Strike Down Arkansas Same-Sex Marriage Ban

By Aditi Mukherji, JD on August 01, 2013 | Last updated on March 21, 2019

Energized by the U.S. Supreme Court's DOMA ruling, two Arkansas attorneys are turning their focus to the state constitution's same-sex marriage ban, Amendment 83, which defines marriage as between one man and one woman.

The first lawsuit was filed by attorney Cheryl Maples and the second by attorney Jack Wagoner III.

Though the attorneys have filed two separate lawsuits, the two share a sense of camaraderie and are consulting with one another on the cause. As it turns out, Maples and Wagoner are old law school pals, reports University of Arkansas at Little Rock's KUAR.

The Times ...

Wagoner's case went down the federal court route, while Maples filed in the Pulaski Circuit Court. Though embarking on different paths, the two cases set their sights on the same goal: Invalidate Arkansas's Amendment 83. The measure was passed back in 2004 with a sweeping 75% of the vote.

Both attorneys want Arkansas's Amendment 83 declared unconstitutional, saying it violates equal protection and due process of law and therefore is unfair to same-sex couples.

The Windsor decision has limited affect on same-sex couples seeking benefits. Since government agencies follow contradictory statutes and regulations, gay couples living in states that don't recognize same-sex marriage may only be allowed a fraction of the federal spousal benefits.

Two of the plaintiffs in Wagoner's lawsuit, for example, specifically want guardianship rights and employee insurance that will cover same-sex spouses and their children, but can't receive them under current law, according to KUAR.

... They Are a Changin'?

If the two lawsuits end up making their way to the Eighth Circuit Court of Appeals, Maples and Wagoner may face somewhat of an uphill battle given legal precedent.

Back in 2006, the Eighth Circuit Court of Appeals reversed a lower court ruling holding that Nebraska's ban against same-sex marriage was an unconstitutional violation of the Equal Protection Clause, and deprived gays and lesbians of their First Amendment Rights. The appeals court also rejected the U.S. District Court's ruling that Nebraska's law was unconstitutional for "singling out gays and lesbians for legislative punishment."

Though many scholars firmly believe the U.S. Supreme Court's Windsor is the death knell for same-sex marriage bans like Amendment 83, there's no gurantee that the Eighth Circuit Court of Appeals is ready to change its mind. It's unclear whether the court will pay heed to Windsor and overturn the Nebraska law.

Yet Maples and Waoner remain hopeful -- and perhaps for good reason. After all, the same-sex marriage landscape has changed profoundly since 2006. As Justice Kennedy noted, we have an evolving understanding of equality -- an understanding that shapes courts and voters alike.

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