The federal courtroom, massive, formal, and imposing, was starkly different than the intimate chamber at the Arkansas Supreme Court. As I tried to find comfort in a rigid, wooden bench in the back of Judge Baker’s granite-lined courtroom, I recalled the morning’s lush and cozy seats. A few minutes later, Wagoner and Maples entered the courtroom, and all eyes were on them. The observers clapped their hands together in gratitude, sounds of acknowledgement and thanks for the morning’s successful performance. A. Plaintiffs’ Case With several pending motions on the docket, Judge Baker consolidated the issues and asked Wagoner to present the plaintiffs’ arguments. With the aid of a CLEstyle Powerpoint, littered with large block quotes, pristinely Bluebooked citations, and color graphics of same-sex couples, Wagoner nervously clicked through 88 slides. He walked the Court through a history lesson of the Supreme Court’s recognition of the right to marry. While I questioned whether Wagoner’s approach was appropriate for a federal judge, I wanted to believe that it was carefully calculated and well-thought-out. What followed was an hour and a quarter soliloquy, as Judge Baker listened patiently without interrupting. When Mr. Wagoner turned around to sit back down, there was an audible sigh of relief in the air. Then it was Ms. Maples’ turn to make her final plea. She spoke briefly and fervently to Judge Baker about her clients’ denial of equal protection. Maples reported that just yesterday, a man died, his husband now the first widow from the group of samesex couples married during the time before Judge Piazza’s decision was stayed. Because his status was in legal limbo, the surviving husband was not protected by state law and could not claim his husband’s body. Why should he be denied the fundamental right to have the same protections as heterosexual couples, simply because of his sexual orientation? “It’s time for these people to live their one life in happiness,” Maples concluded. B. Defendants’ Case Substantively, given the flood of federal decisions declaring bans on same-sex marriage unconstitutional, there is no question that the State had the uphill legal battle. Assistant Attorney General Nga Mahfouz’s 38
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argument primarily drew on two precedent cases. She argued that Windsor’s6 holding was narrow, standing only for the proposition that the federal government cannot impose its own definitions on the institution of marriage and that the question is left up to the states. Mahfouz first relied on the Supreme Court’s dismissal of the Minnesota Supreme Court’s decision in Baker v. Nelson, upholding a state law that limited marriage to persons of the opposite sex.7 Mahfouz argued that Baker bound the Court because it was a decision “on the merits” that is still controlling precedent. Mahfouz also cited the 2006 Eighth Circuit case, Citizens for Equal Protection v. Bruning, in which the Circuit upheld a Nebraska ban on samesex marriage.8 Arguing that Bruning was “completely dispositive of the issues here,” Mahfouz claimed that Bruning rejected the argument that same-sex marriage is a fundamental right. Wagoner forcefully countered that the Supreme Court summarily dismissed Baker without adjudication for “want of a substantial federal question.” There have since been important doctrinal developments that supersede Baker, including the decisions from the Second, Fourth, Seventh, Ninth and Tenth Circuits declaring similar bans on same-sex marriage unconstitutional. Wagoner cited Justice Ruth Bader Ginsburg’s remarks during the 2013 oral argument in Hollingsworth v. Perry: “The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. And the same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.” Wagoner ended by distinguishing Bruning because the Bruning Court did not address whether there was a fundamental right for same-sex couples to marry. Upon completion of Wagoner’s arguments, Judge Baker reserved judgment. Then, the clock began to tick, and dozens of same-sex couples were waiting anxiously for a decision. III. The Take-Away Given the high stakes for the plaintiffs, as theatrically played out in court, Wagoner and Maples effectively captured the real-life impact of the issue. In contrast, attorneys for the state were relegated to procedural and impersonal institutional arguments.
Ultimately, Wagoner and Maples emerged from their day in court as Arkansas’ modernday legal heroes, champions of LGBT rights, who could both articulate the most sophisticated nuances of the constitutional legal arguments and, at the same time, joke with the seven justices of the Arkansas Supreme Court. IV. Civil Rights in Fayetteville Two-hundred miles northwest, the city of Fayetteville has been engaged in an equally important and divisive debate over whether to adopt a local ordinance prohibiting discrimination on the basis of gender identity, gender expression, and sexual orientation, among other categories. This past summer, the city council voted Chapter 119, affectionately dubbed the “Fayetteville Fairness Ordinance,” into the City Code during an all-night public meeting. Shortly thereafter, opponents of the ordinance gathered enough signatures for a referendum, and the question of whether to repeal Chapter 119 was put to a vote during a special election. On December 9, 2014, the residents of Fayetteville voted by a 4% and 500-vote margin to repeal Chapter 119. While at first glance the loss seems dismal, the voter turnout was one of the highest in recent history, with over 14,500 Fayetteville voters showing up at the polls. The city-wide debate over Chapter 119 sparked impressive community involvement on both sides of the issue, indicating that the people of Fayetteville are deeply engaged and care about their city. As Dr. Martin Luther King, Jr., so poignantly said, “human progress is neither automatic nor inevitable.” His point was that progress does not necessarily happen overnight. This is certainly not the end of the story for civil rights in Fayetteville. The effort to pass anti-discrimination protections for the LGBT community is simply gaining momentum, and I suspect the debate over fairness and equality in Fayetteville will continue into 2015. Conclusion It’s an exciting time for civil rights in the state of Arkansas. On November 25, 2014, in a 45-page decision, Judge Kristine Baker declared Amendment 83 unconstitutional, opining that same-sex marriage is a fundamental right that did not pass muster under strict scrutiny review. Judge Baker immediately stayed her decision pending appeal,