Arkansas and Mississippi became the latest two states Tuesday to have their gay marriage bans overturned by federal judges, but there are no rushes to the altar as both orders are on hold so the states can consider appeals.
Like several states, Arkansas and Mississippi had voter-approved constitutional amendments pass in 2004 that defined marriage between one man and one woman.
In Arkansas, U.S. District Judge Kristine Baker ruled in favor of two same-sex couples who had challenged the amendment. They argued the ban violated the U.S. Constitution and discriminated based on sexual orientation.
“The fact that Amendment 83 was adopted by referendum does not immunize it from federal constitutional scrutiny,” Baker wrote in her ruling.
Besides the amendment, Mississippi has a 1997 law that bans same-sex marriage.
But U.S. District Judge Carlton Reeves wrote in his ruling, “The Fourteenth Amendment operates to remove the blinders of inequality from our eyes. Though we cherish our traditional values, they must give way to constitutional wisdom. Mississippi’s traditional beliefs about gay and lesbian citizens led it to defy that wisdom by taking away fundamental rights owed to every citizen. It is time to restore those rights.
“Today’s decision may cause uneasiness and concern about the change it will bring,” he wrote. “But “‘(t)hings change, people change, times change, and Mississippi changes, too.’ The man who said these words, Ross R. Barnett, Jr., knew firsthand their truth.”
Barnett Jr. is an attorney and son of segregationist Mississippi Gov. Ross Barnett, who was in office from 1960 to 1964.
The ruling was similar in Arkansas.
The state’s marriage laws and the amendment violate the U.S. Constitution by “precluding same-sex couples from exercising their fundamental right to marry in Arkansas, by not recognizing valid same-sex marriages from other states, and by discriminating on the basis of gender,” Baker wrote.
Baker put the ruling on hold, anticipating an appeal to the 8th U.S. Circuit Court of Appeals, based in St. Louis.
A spokesman for Democratic Attorney General Dustin McDaniel said McDaniel was reviewing the ruling and would decide after the Thanksgiving holiday whether to appeal in consultation with Republican Attorney General-elect Leslie Rutledge in Arkansas.
Mississippi officials had already said they planned to appeal any ruling that overturned the law.
Judges across the country have ruled against bans similar to Arkansas’ since the U.S. Supreme Court struck part of a federal anti-gay marriage law in June 2013, and gay marriage is legal in more than half of the U.S.
Jack Wagoner, a lawyer for the Arkansas couples who had told the judge last week that same-sex marriage would eventually be legal nationwide, said he was pleased with her decision.
“She’s on the right side of history,” Wagoner said. “It’s pretty clear where history’s heading on this issue.”
Another lawyer, Cheryl Maples, said eyes would turn now to the Arkansas Supreme Court, which heard arguments last week in a similar but separate case.
“If the state Supreme Court strikes down on state constitutional issues, then it’s gone as far as it can go,” Maples said.
Justices are weighing whether to uphold a decision in May striking down the 2004 amendment and earlier state law as unconstitutional. The decision led to 541 same sex couples getting married in the week before the state Supreme Court suspended his ruling.
Justices have not indicated when they will rule in that case.
Lawyers in McDaniel’s office had argued in federal court that same-sex marriage was not a fundamental right guaranteed by the constitution. McDaniel has said he personally supports allowing gay couples to marry but will stay in court defending the ban, which voters approved by a 3-1 margin.
One of Mississippi’s plaintiff couples, Jocelyn “Joce” Pritchett and Carla Webb, live in Mississippi and married in Maine in 2013. Pritchett said Tuesday that she, Webb and their two young children were dancing around their living room after hearing about Reeves’ ruling.
“If gay marriage can be legal in Mississippi, the whole country can feel hope,” Pritchett said.
