- Associated Press - Sunday, November 23, 2014

LITTLE ROCK, Ark. (AP) - As he urged Arkansas’ highest court to strike down the state’s ban on gay marriage last week, attorney Jack Wagoner tried to illustrate just how much the national landscape had changed since he filed a lawsuit last year on behalf of 20 same-sex couples.

In one hand, he held a list of 50 rulings by judges against similar restrictions across the country. He held in the other hand a list of the rulings going the other way - three.

Wagoner compared the situation to the way Arkansas was viewed for decades after former Gov. Orval Faubus fought school desegregation.

“For 50 years, that was our national image. Our next 50 years in history could be cemented if we’re on this side of the team,” he said, gesturing to the short list of anti-gay marriage rulings.

At least two members of the Arkansas Supreme Court signaled they’re ready to join the longer list, as opponents and supporters of gay marriage attended back-to-back hearings over the constitutionality of the 2004 amendment defining marriage between a man and a woman. A federal judge hearing a separate case over the ban, meanwhile, offered no clues on the direction she’s heading with her decision.

The arguments before both courts mirrors the debate over gay marriage bans across the country, which have fallen in a series of rulings since the U.S. Supreme Court struck down part of a federal anti-gay marriage law in 2013. Gay marriage is now legal in more than half the states.

In both the Arkansas cases, opponents of the ban say prohibiting same-sex couples from marrying violates the U.S. Constitution and discriminates against the couples because of their sexual orientation. The state Supreme Court case goes a step further, arguing the marriage ban violates the Arkansas Constitution itself and isn’t presumed constitutional just because voters approved it as an amendment.

Justices are weighing what to do with Pulaski County Circuit Judge Chris Piazza’s order striking the ban - a decision that led to more than 500 same-sex couples receiving marriage licenses before a stay was issued. U.S. District Judge Kristine Baker is considering requests to dismiss a federal lawsuit or strike down the ban immediately.

The office of Attorney General Dustin McDaniel says a 3-1 vote in favor of the ban shouldn’t be ignored - and that an amendment to the constitution can’t itself be found unconstitutional.

“This court should defer to the democratic process and defer to the voters of Arkansas, and hold that there is no fundamental right to same-sex marriage,” Assistant Attorney General Colin Jorgensen told justices.

But Wagoner and attorney Cheryl Maples, who are representing gay couples in both lawsuits, said that argument opens the door for popular votes to be used to target minorities.

“We are not a majority-rule country,” Wagoner told Baker later that day. “Just because the voters go and try to vote away a right of people that are not in the majority, they don’t get to do that if it violates those people’s constitutional rights.”

Unlike Baker’s straightforward questioning of attorneys on both sides, members of the Arkansas Supreme Court weren’t shy when it was their turn to talk.

“What’s to keep the state from enforcing those positions by the majority of the people to the detriment of unpopular minorities?” Corbin asked Jorgensen at one point.

Justice Paul Danielson questioned how the amendment could be considered constitutional if they believed it conflicted with other rights in Arkansas’ constitution.

“Are you saying the declaration of rights in our constitution … is still there, except for homosexuals?” Danielson asked.

The state is arguing that the ban doesn’t conflict with those rights, but that the amendment would trump any earlier provision of the constitution if there is a conflict.

At the state level, opponents of the ban hope for another victory before the state Supreme Court. Justices in 2002 struck down Arkansas’ sodomy law and three years ago tossed out a ban on any unmarried couples who live living together from adopting or fostering children. The parenting ban was also voter-approved.

“My clients … would appreciate this court again being a champion of human rights,” Maples told justices.

___

Andrew DeMillo has covered Arkansas government and politics for The Associated Press since 2005. Follow him on Twitter at www.twitter.com/ademillo


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