Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS

FILED
U.S. DISTRICT COURT EASTERN o:STR:CT ARKANSAS
JUL 15 2013

RITA AND PAM JERNIGAN; BECCA

~~~ESW.~C~:

AND TARA AUSTIN; AND RANDY AND

GARY EDDY-MCCAIN

PLAINTIFFS

v.

LARRY CRANE, IN HIS OFFICIAL CAPACITY

AS CIRCUIT AND COUNTY CLERK FOR

PULASKI COUNTY, ARKANSAS;

GOVERNOR MIKE BEEBE, IN HIS OFFICIAL
CAPACITY AS GOVERNOR AND CHIEF This case assigned to Distr~ct J~r \\rimeS EXECUTIVE OFFICER FOR THE STATE OF and to Magistrate Judge~ f( e._-~-~-·~

ARKANSAS; AND DUSTIN McDANIEL, IN

HIS OFFICIAL CAPACITY AS ATTORNEY

GENERAL FOR THE STATE OF ARKANSAS

DEFENDANTS

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs, for their Complaint for Declaratory and Injunctive Relief, state:

I. NATURE OF THE ACTION

1. Plaintiffs bring this action to challenge the constitutionality of Arkansas's laws excluding same-gender couples from marriage and forbidding recognition of legitimate same-gender marriages entered into in other states. Arkansas Constitution, Amendment 83; Ark. Code Ann.§ 9-11-208; and Ark. Code Ann.§ 9-11-107(b).
2. Plaintiffs seek a declaration that Amendment 83 and the referenced statutes violate the right to equal protection and due process of law under the Fourteenth Amendment to the United States Constitution. Plaintiffs also seek an injunction prohibiting the State of Arkansas, and all political subdivisions thereof, from enforcing Amendment 83 or the referenced statutes. Declaratory relief is sought under

1

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 2 of 25
the United States Declaratory Judgment Act, 28 U.S.C. § 2201, et seq., and Federal
Rule of Civil Procedure 57. Injunctive relief is. sought pursuant to Federal Rule of Civil Procedure 65. II. PARTIES
A. Plaintiffs 3. Plaintiffs Becca and Tara Austin and Rita and Pam Jernigan are lesbian couples who wish to marry for the same reasons so many other couples get married-to publicly declare their love and commitment for each other before their family, friends and community, and to give one another the security and protections that only marriage provides. 4. Plaintiffs Becca and Tara Austin have been in a committed relationship for over nine (9) years. Becca and Tara are both employees at the University of Arkansas for Medical Sciences, where They have twins-·a boy and a girl-who are four and a half (4V2) years old. Tara is the biological mother of the children. Because Becca is not a biological parent to the children and cannot legally marry Tara, Becca is not considered a parent to the twins under Arkansas law. The fact that Becca and Tara Austin are not permitted to marry harms them in other material ways, including reducing family resources and stigmatizing the Austins and their children by denying them family social recognition and respect. When their children were born, Becca was denied family leave time to spend with the twins at home after they were born because she and Tara were not married and the children were not legally her dependents. Tara wanted to stay home after the children were born but had to return to work full time in order to have health insurance for her .and the children. Becca could not carry Tara and the children
2

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 3 of 25
on a family health insurance plan because she and Tara were not (and could not be) married and the children were not her legal dependents.
5. Plaintiff Rita Jernigan retired after teaching math in the Little Rock School District for over twenty-eight (28) years. She participated in the Arkansas Teacher Retirement System (ATRS) while employed and currently receives retirement pay from ATRS. Amendment 83 to the Arkansas Constitution prohibits Rita's life partner, Pam, from receiving surviving spouse benefits under ATRS in the event of Rita's death.
6. Plaintiffs Randy and Gary Eddy-McCain are a gay couple who are already married under New York law. They have been in a committed relationship for twentyone (21) years. They were married in 2012 in the State of New York, which recognizes same-sex marriage. A copy of Randy and Gary Eddy-McCain's New York State Marriage License is attached as Exhibit 1. Although Randy and Gary Eddy-McCain are legally married, they are treated as legal strangers in their home state of Arkansas.
7. Plaintiffs come from various walks of life and occupations-a nurse practitioner, an executive assistant, a retired schoolteacher, a minister, an artist, and the owner of a pet-sitting service. All of the Plaintiffs are homeowners and reside in Pulaski County, Arkansas. They are involved in their communities and have been in committed relationships with one another for many years. The situations faced by these couples are similar to those faced by thousands of same-sex couples in the State of Arkansas who are being denied the basic rights that are afforded by marriage. They have cared for one another, supported each other, sacrificed for each other, and made plans for the future with each other. They have gone through hardships, illness, joy and success during the course of their relationships. As with other couples that have made a lifetime
3

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 4 of 25
commitment to each other, the Plaintiff couples are spouses in every sense, except that Arkansas law says they cannot marry and, even if they are legally married under the laws of another state, Arkansas law says that their marriages are not honored here.
8. On June 26, 2013, the United States Supreme Court affirmed the decision of the Second Circuit Court of Appeals in United States v. Windsor, 133 S. Ct. 2675, Case No. 12-307, Slip Op. (June 26, 2013), and invalidated Section 2 of the federal "Defense of Marriage Act" (DOMA), where Congress defined "marriage" for purposes of all federal laws to only include marriage of opposite-sex couples. The Supreme Court held that this law served no legitimate purpose other than targeting a certain class of people for unlawful discrimination based on sexual preference. The Supreme Court found that Section 2 of DOMA violated the Equal Protection and Due Process clauses of the Fifth Amendment to the United States Constitution.'
9. In Windsor, the Supreme Court stated "State laws defining and regulating marriage, of course, must respect the constitutional rights of persons." Windsor, Slip Op. at 18. As authority for this statement, the Court cited the 1967 case of Loving v. Virginia, 388 U.S. 1, where the Court held that it was unconstitutional for states to prohibit individuals of different races from marrying. Loving also found that "the freedom to marry has long been recognized as one of the vital personal rights essential to the
1 Windsor was analyzed under the Equal Protection and Due Process clauses of the Fifth Amendment to the United States Constitution because it involved actions of the federal government. These same Constitutional protections were extended to actions of the States by the Fourteenth Amendment to the U.S. Constitution. This case involves state action rather than federal action, so references are to the Fourteenth Amendment rather than the Fifth Amendment. The analysis, however, is the same. See Buckley v. Valeo, 424 U.S. 1, 93 (1976)("Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment."); Town of Tonawanda v. Lyon, 181 U.S. 389, 21 S. Ct. 609, 45 L. Ed. 908 (1901 )(''The purpose of [the Fourteenth] Amendment is to extend to the citizens and residents of the states the same protection against arbitrary state legislation affecting life, liberty, and property, as is afforded by the 5th Amendment against similar legislation by Congress.")
4

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 5 of 25
orderly pursuit of happiness by free men." Loving, 388 U.S. at 12. In Windsor, the Court echoed the same principles set forth in Loving forty-six (46) years earlier, finding that such discrimination "demeans the couple, whose moral and sexual choices the Constitution protects." Windsor, Slip Op. at 23 (citing Lawrence v. Texas, 539 U.S. 558 (2003)). The Court went on to state that the discriminatory treatment "humiliates tens of thousands of children now being raised by same-sex couples" and that "the law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." /d.
10. Although Windsor invalidated only federal law refusing to recognize legitimate same-sex marriages performed in states where such marriages are lawful, the reasoning in Windsor is equally applicable to Arkansas's refusal to allow same-sex marriages and refusal to recognize same-sex marriages performed in other states. Even Justice Scalia, in his vigorous dissent in Windsor stated that ''the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today's opinion." /d. Scalia, J., dissent, at 22. Justice Scalia even stated: "How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying samesex couples marital status." ld at 23.
11. In view of the Windsor decision, the Austins and the Jernigans applied for marriage licenses with the Pulaski County Circuit and County Clerk on July 11, 2013. The Pulaski County Clerk rejected their applications on the basis of Amendment 83 and Ark. Code Ann. §9-11-208. The Austins' and Jernigans' marriage applications are attached as Exhibits 2 and 3. The Pulaski County Circuit Clerk also wrote letters to the
5

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 6 of 25
Austins and the Jernigans in connection with their rejected marriage applications. These letters are attached as Exhibits 4 through 7.
12. The Jernigans intend to marry in November 2013 in the State of Washington,. where same-sex marriage is legal. Because the State of Arkansas will not allow them to marry, they must incur expense and Inconvenience in traveling to another state to marry. Even after they marry, Arkansas will not recognize their marriage as legal. Rita Jernigan has already been told by the ATRS that even after the planned Washington marriage, ATRS will not allow Rita to name Pam as her surviving spouse on her ATRS retirement plan.
13. Because the State of Arkansas refuses to allow Plaintiffs to marry, or to have their legitimate marriages in other states recognized in Arkansas, Plaintiffs are being denied the right to equal protection of the law. Arkansas law confers countless benefits and privileges that apply only to married couples. Examples include: Ark. Code Ann. §§ 20-9-602 (allowing spouse or parent to consent to medical treatment for spouse and child); 28-6-204 (preference to spouse or person related by blood in guardianship proceedings); 16-61-102 (right to prosecute and defend civil actions in spouse's name), 24-7-710 (teacher retirement benefits); 24-4-406 (public employee benefits before retirement); 11-9-812 (workers' compensation benefits); 23-83-108 (group life insurance policies and annuities); 23-79-128 (life insurance); Arkansas Probate Code (Ark. Code
Ann. §28-1-1 01 et seq. (rights to dower/curtesy for widow/widower of deceased spouse,
rights to certain statutory allowances for surviving spouse, homestead rights, right to inherit from deceased spouse, right of children to inherit from legal parent); and Arkansas Rule of Evidence 504 (Husband-Wife testimonial privilege). Married couples
6

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 7 of 25
may also take advantage of the right to file joint state and federal tax returns and may receive numerous other tax benefits available to married couples and their families. These are just a few of the many of sections of the Arkansas Code that draw distinctions in treatment based on whether one is a "spouse."
B. Defendants 14. Defendant Larry Crane is sued in his official capacity as Circuit/County Clerk for Pulaski County, Arkansas. Arkansas Code Ann. § 9-11-203 requires that the County Clerk issue a marriage license if application is made and the requirements of the Code section are met. The Austins and the Jernigans applied for marriage licenses on July 11, 2013, but Mr. Crane's office refused to issue them marriage licenses because Ark. Code Ann. § 9-11-208 and Amendment 83 prohibit the Clerk from issuing a marriage license to persons of the same gender. 15. Defendant Mike Beebe is Governor of the state of Arkansas and is sued in that capacity. Under Article 6, Section 2 of the Arkansas Constitution, the "supreme executive power" of the State of Arkansas is vested in. the Governor. He thus is responsible for assuring that the laws of the State, including the provisions of Amendment 83 and the statutes challenged herein, are administered. 16. Defendant Dustin McDaniel is the Attorney General of the State of Arkansas and is sued in that capacity. His office is created by Article 6, Section 1 of the Arkansas Constitution. His duties inciude both enforcing the law and advising officials within the State of the requirements of the law, including Amendment 83 and the challenged statutes. He is specifically authorized by Arkansas law to "maintain and defend the interests of the State in matters before ... federal courts" and he is the
7

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 8 of 25
"legal representative of all state officers, boards, and commissioners in all litigation where the interests of the state are involved." Ark. Code Ann. § 25-16-703. Ill. JURISDICTION AND VENUE
17. Amendment 83 and the challenged statutes purport to be valid state laws existing under color of state law. By implementing and enforcing the unconstitutional Amendment and statutes, the individual defendants have deprived Plaintiffs of rights guaranteed by the United States Constitution, as more specifically described below, thereby violating and threatening to violate 42 U.S.C. § 1983.
18. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 as this is a civil action arising under the United States Constitution and the laws of the United States, namely the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
19. Venue is proper under 28 U.S.C. §1391(b) in that the Federal Judicial District for the Eastern District of Arkansas is a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. Venue is also proper under 28 U.S.C. § 1391(a). because one or more of the named Defendants reside in the District. IV. CLAIMS FOR RELIEF
A. COUNT 1: Deprivation of the Fundamental Right to Marry in Violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
.20. The right to marry is a fundamental right. 21. "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Loving v.
8

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 9 of 25
Virginia, 388 U.S. 1, 12 (1967). Marriage has further been described by the United States Supreme Court as one of the "basic civil rights of man" and as a ''fundamental freedom." /d. A law is most likely to be held unconstitutional when it "inhibits personal relationships." Lawrence v. Texas, 539 U.S. 558, 580 (2003)(0'Connor, J., concurring).
22. "Liberty," as referred to in the Fourteenth Amendment, includes the right of an individual to marry. Meyer v. Nebraska, 262 U.S. 390, 399 (1923). "[T]his liberty may not be interfered with, under the guise of protecting the public interest," by legislation lacking a sufficient rationale. /d. at 399-400. The Supreme Court has specifically found that the right to marry is "one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of Education v.
' Lafleur, 414 U.S. 632, 639-40 (1974). See also Windsor, Slip Op. at 18 (recognizing marriage as conferring a "dignity and status of immense import" and "an essential part of the liberty protected by" the U.S. Constitution).
23. The sponsor of Amendment 83 was the Arkansas Marriage Amendment Committee. The sponsor of this Committee, Jerry Cox, who is also the head of a Christian organization known as the "Family Council," spoke out as to the purpose of the Amendment prior to its passage. He stated that the purpose of the Amendment was to preserve marriage and families, arguing that locations in which a child has both a mother and a father are areas in which crime is lower and education is better, while locations in which single-parent households were common are higher-crime areas. Laura Kellams, Foes Use Family, Fairness in Amendment 3 Debate: It Limits Marriage to Union of Man, Wqman, ARK. DEMOCRAT-GAZETTE, Sep. 5, 2004, at 1A. Mr. Cox did not explain how a comparison of crime rates in "single parent neighborhoods" and
9

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 10 of 25
"mother/father neighborhoods" relates to crime rates in "same-sex parent neighborhoods." Indeed, it is unlikely that there are any statistics on crime rates in "same-sex parent neighborhoods"-if such neighborhoods even exist.
24. There is no credible evidence that banning same-sex marriage serves in any way to "preserve marriage and families." As the American Psychological Association (APA) stated in the amicus brief filed with the Supreme Court in Windsor.
[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 welladjusted 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), The APA is the world's largest professional association of psychologists. The American Medical Association, the American Academy of Pediatrics, the American Psychiatric Association, and the National Association of Social Workers joined in the APA amici curiae brief in Windsor. The American Medical Association is the Nation's largest organization of doctors and medical. students in the United States. The American Academy of Pediatrics is the largest professional organization of pediatricians in the United States. The American Psychiatric Association is the Nation's largest organization of physicians specializing in psychiatry. And the National Association of Social Workers is the Nation's largest association of professional social workers.
10

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 11 of 25
25. Amendment 83 and the challenged statutes cannot survive rational basis review, much less the "strict scrutiny" review accorded to laws affecting fundamental rights, where such laws must be narrowly tailored to specific achieve the purpose behind the law.
26. The relationship between preservation of marriage and excluding samesex couples is tenuous at best. Legalization of same-sex marriage has not negatively affected heterosexual marriage rates in the states that have legalized same-sex marriage or in other countries where it is legal. Banning such marriages is not rationally related to the interest of protecting marriage.
27. The relationship between "preserving families" appears to relate to procreation. But this is illogical because procreation and marriage do not necessarily go hand in hand. A requirement of procreation is not a prerequisite to marriage and many heterosexual couples who marry choose not to have children. On the other hand, pregnancies between couples who are unwed are commonplace. Therefore, because having children is not presumed for couples who marry and because marriage is not necessary for couples to produce children, the relqtionship between banning same-sex marriage and the interest of promoting procreation is not rational.
28. The purported purposes of Amendment 83 are, in reality, merely a ruse to
do what was forbidden by the Supreme Court in Windsor-to carry out a "desire to harm a politically unpopular group." Windsor, Slip Op. at 20.
29. Arkansas ·law denies Plaintiffs and other same-sex couples the
fundamental right to marry by denying them access to the state-recognized institution of
marriage and refusing to recognize the marriages they entered into in other states.
11

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 12 of 25
30. The State can demonstrate no important interest to justify denying the Pll:l.intiff couples this fundamental right. Indeed, it cannot demonstrate that the denial is tailored to any legitimate interest at all.
31. The State's prohibition of marriage between persons of the same sex and its refusal to recognize marriages entered into by same-sex couples in other jurisdictions violates the Due Process Clause.
32. Defendants, acting under color of state law, are depriving Plaintiffs of . rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
B. COUNT II: Discrimination on the Basis of Sexual Orientation in Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
33. PlaintiffS incorporate by reference all preceding paragraphs of this Complaint as if set forth word for word herein.
34. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that "no State shall ... deny to any person within its jurisdiction the equal protection of the laws."
35. By denying the Plaintiff couples and other lesbian and gay couples the ability to marry and to have their out-of-state marriages recognized, the State, through the actions of Defendants, discriminates against gay and lesbian couples on the basis of their sexual orientation. It denies them significant legal protections. It "degrade[s] and demean[s] them by instruct[ing]. .. all persons with whom same-sex couples interact, including their own children," that their relationship is "less worthy" than the relationships of others. Windsor, Slip Op. at 23.
12

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 13 of 25
36. Same-sex couples and opposite sex couples are similarly situated for purposes of marriage.
37. Classifications based on sexual orientation demand heightened scrutiny for a number of reasons. These include:
a. Lesbians and gay men are members of a discrete and insular minority that has long suffered a history of discrimination in Arkansas and in the United States; b. Sexuai orientation bears no relation to an individual's ability to perform or contribute to society; c. Sexual orientation is a core, defining trait that is so fundamental to one's identity that a person may not legitimately be required to abandon it (even if that were possible) as a condition of equal treatment. Sexual orientation is not something over which the vast majority of gay and lesbian people feel they have any choice. "[C]Iinical interventions that purport to change sexual orientation from homosexual to heterosexual ... have not been shown to be effective or safe." Windsor, Case No. 12-307, Brief of American Psychological Association, at 10. "In 2009, a 'review of the scientific literature by an APA task force concluded that "sexual orientation change efforts are unlikely to succeed and indeed can be harmful." /d. (citations omitted). No mainstream professional mental health organization approves interventions that attempt to change sexual identity. In fact, the American Psychological Association and the
13

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 14 of 25
American Psychiatric Association have both issued policy statements cautioning professionals and the public about these treatments. d. Prejudice against lesbians and gay men continues to seriously curtail the operation of the political process and prevents this group from obtaining redress through legislative means. The group lacks statutory protection under the law against discrimination in employment, public accommodations, and housing at the federal level and in more than half the states, including Arkansas. Lesbians and gay men have far fewer civil rights protections at the state and federal level than women and racial minorities had when sex and race classifications were declared to be suspect or quasi-suspect. They have been stripped of the right to marry through constitutional amendments or other laws in thirty (30) states and have been targeted through the voter initiative process more than any other group. 37. For the reasons set forth above, classification based on sexual orientation should be reviewed under heightened scrutiny. But the classification involved in this case cannot survive under any level of Constitutional scrutiny. The exclusion of same-
sex couples from marriage is not related to any legitimate governmental interest. All this
classification does is disparage and injure lesbian and gay couples and their children. 38. The State's prohibition of marriage for same-sex couples and its refusal to
·recognize the marriages of same-sex couples entered into elsewhere violates the Equal Protection Clause.
14

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 15 of 25
39. Defendants, acting under color of state law, are depriving Plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983.
C. COUNT Ill: Discrimination on the Basis of Gender in Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
40. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as if set forth word for word herein.
41. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that "no State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Canst. amend. XIV, § 1.
42. Arkansas Code Ann. § 9-11-1 01 provides that marriage is a civil contract. But under the authority of Amendment 83's definition of marriage as consisting "only of the union of one man and one woman," numerous Arkansas statutes were revised after Amendment 83 was enacted in 2004. Ark. Code Ann. § 9-11-109 restates the Amendment 83 definition of marriage as "between a man and a woman" and declares all same-sex marriages to be void. Ark. Code Ann. §9-11-17 provides for recognition of marriages from other states or countries, but excludes marriages from persons of the same sex. Ark. Code Ann. §9-11-208 provides that the State only recognizes the marital union of "man and woman" and forbids the Clerk from issuing a marriage license to same-sex couples.
43. By defining marriage as only between a man and a woman, the State of Arkansas discriminates on the basis of sex. For example,· Becca Austin is not legally
15

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 16 of 25
permitted to marry Tara Austin because Tara is female. But if Tara was male, the couple woutd be free to marry.
44. In addition, Amendment 83 and the various statutes enacted pursuant to · its authority preclude the recognition of legitimate marriages performed under the laws of other states or countries. For example, Ark. Code Ann. § 9-11-1 07{b) specifically states that the statute, which otherwise recognizes all legitimate marriages contracts formed in foreign COJ..mtries or other' states, does not apply to marriages "between persons of the same sex."
45. The New York marriage of Randy and Gary Eddy-McCain, for example, is denied recognition solely because they are both men.
46. The Supreme Court has made it clear that perpetuation of traditional gender roles is not a legitimate governmental interest.
47. Given that the law no longer recognizes legal distinctions between the duties of husbands and wives, there is no basis for these sex-based eligibility requirements for marriage.
48. In · 2013, Defendants can demonstrate no exceedingly persuasive justification for this dis'crimination based on sex.
49. Arkansas laws prohibiting marriage and recognition of marriage for samesex couples thus violates the Equal Protection Clause.
50. Defendants, acting under color of state law, are depriving plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
16

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 17 of 25
V. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that Amendment 83 to Arkansas'
Constitution and all other Arkansas statutes that prevent same-sex couples from marrying, or from having their legitimate marriages entered into in other states recognized in Arkansas, violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;
2. Enter a declaratory judgment that Amendment 83 to Arkansas' Constitution and all other Arkansas statutes that prevent same-sex couples from marrying, or from having their legitimate marriages entered into in other states recognized in Arkansas, violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution;
3. Enter a permanent injunction enjoining defendants from denying Plaintiffs and all other same-sex couples the right to marry in Arkansas and directing the Defendants to recognize marriages validly entered into by the Eddy-McCains and other same-sex couples outside of Arkansas. This should include mandatory injunctive relief requiring Defendant Mike Beebe, as the chief executive officer of the State of Arkansas, to instruct all state counties and their employees and agents accordingly;
4. Award costs of this suit, including reasonable attorneys' fees under 42 U.S.C. § 1988; and
5. Order all other appropriate relief to which it determines Plaintiffs are entitled.
17

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 18 of 25

Dated: July 15, 2013

Respectfully submitted, WAGONER LAW FIRM, P.A.

By: J Wagoner Ill, A.B # 89096 . Keith Pike, A.B.A. 2010123
Angela Mann, A.B.A. # 2011225
Wagoner Law Firm, P.A. 1320 Brookwood, Suites D & E Little Rock, AR 72202 Phone: (501) 663-5225 Fax: (501) 660-4030 Email: jack@wagonerlawfirm.com Email: keith@wagonerlawfirm.com Email: angela@waqonerlawfirm.com

18

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 19 of 25

II' i.l [
I~

M-2012-4

""""'"'"'""""'"'"""""'"""""""~·-

'·--

THE CITYOF NEW YORK .

.......,,.._L,i.~,.e.n~s,.e,.N._u,.m.-b:e.>ro...,~II,

I

OFFICE OF'THE CITY CLERK

I M-2012-19952

I :i

MARRIAGE LICENSE BUREAU

<rcrtificate of Jltlarriage 1Regi5tration

I

This Is To Certify That RANDALL A MCCAIN JR

New Surname : EDDY-MCCAIN

residing at 6012 Buffalo River Road, North Little Rock,-AR 72116;'United $tates

II

born on

06/0711956

at Walnut Ridge Arkansas United States

and GARY DEAN EDDY

New Surname: EDDY-MCCAIN

I

_~~sidipg at

6012 Buffalo River Road, North Little Rock, AR 72116, United States

•

-born on

: 08/04/19.54

Rapid Cify South Dakota United States at

Were Jltlarriell

08/09/2012 on
By JAMIE BAKKER

CENTRAL PARK

at

RAMBLE

lfl

I'JEWYORK,NY

United States

Ilc
~

as shown-by.the-dt.ily re.gist~red license and certificate of.marriage Of said persons on file in .this,-6f!ice.

CERTIFIED THIS DATE AT THE CITY CLERK'S OFFICE

Manhattan

August 1'0, 12 ·

I
).

N.Y.

20

PLEASE NOTE: Facsimile Signature and seal are printed pursuant to Section II-A, Domestic Relations Law of New York.

~~

CET-F
M 0038819

!./)
:3w11-z-u1>I.:.-..<l1:--l-E:-
a.
lllOi. "ON WOO"OJ"l~oS.r""""'

Case 4:13-cv-004N10o-tJiLcHe oDf Ioncutemnetntto1-W2 eFdilAedp0p7li/c1a5t/1io3n Page 20 of 25

1Jir FullName:

0. L t)lt\r &\It~ l1

ll Address: . ) b S ' f) lA\'k'-WV. f-
l,i lli--e ~c~ Ail-= :11-JJ) ~ PvJasb: .

SSN:

(Genealogy Optional) (Genealogy Optional)

What State where you born in: {i(L Or Country_._-_ _ __
Father's Name: £2-t \\ ~52-\-\ V\
Mother's First and Maiden Name: Qebof tt~ \A)-~ \\;a\MS(W)

Type of ID: DL \./", ID_ _, Military ID_ _, Passport_ _, Other_ _ _ __

What State Issued ID: AR_ V ,Other_ _ _ _ _ _ _ _ _ _ _ __

Bride
Please Print

FuiiName: £:>.ecca Coru\ Cncle A'-ls--+tV\

Is the Last Name above your Maiden Name? Yes_ _ _,
If no, what is your Maiden Name: _-~.,C~O.<lefL:~~£"""---------­
Address Same as Above, Yes ~

Address:-----------------------

(Genealogy Optional) (Genealogy Optional)

Phone: -----.;l!.Ll-__:L.4:\~Uo!!S_ta_t.ell-~6.c."l:Z.ipt-.CJ.L1C:ou~n-ty---------

SSN:

_DOB: -~~0:!._"----L:0:\::_-----l....PJ!..,:,D~--

What State where you born in:

A€: Or Country______

Father's Name: _ _p,k~-e..!'..:\J\~V\:.:::::ec:__A.:..::.\A-'------'Q~(_,lt_..../2._:___---:-__--:-___

Mother'sFirstandMaidenName: ffiM~k \\o..V\A ~~Y' .

V, Type of ID: DL

ID_ _, Mi)t3rY ID_ _, Passport_ _, Other 1 PLAINTIFF'S

. V _ 1 What State Issued ID: AR

Oth
, Other

~ EX2HIBIT

~--=--

Case 4:13-cv-004N10o-tJiLcHe ofDIonctuemnetntto1W-2 eFdilAedpp07li/c1a5t/i1o3n Page 21 of 25

.fuoom
Please Print
(Genealogy Optional)

Full Name: £·fa__ -JP :Tern'J4 YL

R:J..· Address: . f ;;<_ [)4. kw~ £Jj__

L·ff/e Pock A:R 7l10 2

City

State

Zip

County

Phone: _ _ _:::;""'--=o:....:l:....:·-----=11'--2~0~-.L-11.1.-Llf_:D:..._·----~----

SSN:

~-DOB: __;<_fc..:../_-_::5=---_ 3 __

What State where you born in: !}-v/(t~~M S-r S Or Country_ _ _ _ __
J Father's Name: ·/V/4. r Vt·~~ R4y ::Ter11 , q n..

/1on,'ca_ (Genealogy Optional) Mother's First and Maiden Name:

Br-ow ltv

Bride
Please Print

Type of ID: DL v-:ID_ _, Military ID_ _, Passport , Other_ _ _ _ __
What State Issued ID: AR. ~Other_--:-------------
FullName~~. U~~(ZN~U~

Jo , ·. Is the Last Name above your Maiden Name? Yes
~e'' ~c(ls:;> Ifno, what is your Maiden Name:&t-A.

Address Sameas Above, Yes /

.

SSN:

:Genealogy Optional) :Genealogy Optional)

What State where you born

Country_ _ _ _ __

Father's Name: L~ tL· .Llv,J.t- fv'f-.9

]~fJvt.-hl Mother's First and Maiden Name: Vt9-=6 i JA

1 DL~ Type of ID:

, ID_ _, Military ID_ _, Passport

, Othe...41~P-LA•I•N•TI•F•F,•S....,

d . -1; What State Issued ID:

Other_ _ _ _ _ _ _ _ j EX3HIBIT

i

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 22 of 25

LARRY CRANE
PULASKI CIRCUIT/COUNTY CLERK

401 WEST MARKHAM STREET, SUITE I 00 LITTLE ROCK, ARKANSAS 7220 I

July 10, 2013

Tara Lynn Austin 2110 S. Summit Little Rock, AR 72202

Re: Notice oflntent to Wed Application

Dear Miss Austin:

Thaok you for visiting our office. With regard to the Notice of Intent to Wed Application you presented, we regret to inform you that, pursuant to the provisions of Amendment 83 to the Arkansas Constitution, and Arkansas Code Annotated §9-11-203 (a), our office is currently not authorized to issue a marriage license to you.

Sincerely,

f2s~A~ 7 Larry Crane

C

Pulaski County Clerk

WWW.PULASKICLERK.COM

TEL (50 I I 340-8500

FAX (501 I 340-8340

! PLAINTIFF'S
i; EXHIBIT 4

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 23 of 25

LARRY CRANE
PULASKI CIRCUIT/COUNTY CLERK

401 WEST MARKHAM STREET, SUITE 100 LITTLE ROCK, ARKANSAS 72201

July 10,2013
Becca Carol Carle Austin 2110 S. Summit Little Rock, AR 72202
Re: Notice oflntent to Wed Application
Dear Miss Austin:
Thank you for visiting our office. With regard to the Notice of Intent to Wed Application you presented, we regret to inform you that, pursuant to the provisions of Amendment 83 to the Arkansas Constitution, and Arkansas Code Annotated §9-11-203 (a), our office is currently not authorized to issue a marriage license to you.
'ift<~
L~rane
Pulaski County Clerk

WWW.PULASKICLERK.COM

TEL (50 1) 340-8500

i 5 i PLAINTIFF'S
; EXHIBIT
FAX (501) 340-8340

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 24 of 25

LARRY CRANE
PULASKI CIRCUIT/COUNTY CLERK

401 WEST MARKHAM STREET, SUITE 100 LITTlE ROCK, ARKANSAS 72201

July 10,2013
Rita Jo Jernigan 12 Oakwood Rd Little Rock, AR 72202
Re: Notice oflntent to Wed Application
Dear Miss Jernigan:
Thank you for visiting our office. With regard to the Notice of Intent to Wed Application you presented, we regret to inform you that, pursuant to the provisions of Amendment 83 to the Arkansas Constitution, and Arkansas Code Annotated §9-11-203 (a), our office is currently not authorized to issue a marriage license to you.

WWW.PUlASKIClERK.COM

TEl (50 1) 340-8500

FAX (501) 340·8340

i PLAINTIFF'S
I s ' EXHIBIT

Case 4:13-cv-00410-JLH Document 1-2 Filed 07/15/13 Page 25 of 25

LARRY CRANE
PULASKI CIRCUIT/COUNTY CLERK

40 I WEST MARKHAM STREET, SUITE I 00
LITTLE ROCK, ARKANSAS 72201

July I 0, 2013
Pamela Lee Jernigan 12 Oakwood Rd Little Rock, AR 72202
Re: Notice of Intent to Wed Application
Dear Miss Jernigan:
Thank you for visiting our office. With regard to the Notice of Intent to Wed Application you presented, we regret to inform you that, pursuant to the provisions of Amendment 83 to the Arkansas Constitution, and Arkansas Code Annotated §9-11-203 (a), our office is currently not authorized to issue a marriage license to you.
Usn~y~-A£1
Pulaski County Clerk

WWW.PULASKICLERK.COM

TEL 150 I) 340-8500

FAX (501) 340-8340

i PLAINTIFF'S ; EXHIBIT
f 7

 
 Case 4:13-cv-00410-KGB Document 3 Filed 07/18/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

RITA JERNIGAN; PAM JERNIGAN; BECCA AUSTIN; TARA AUSTIN; RANDY EDDY MCCAIN; and GARY EDDY-MCCAIN

PLAINTIFFS

v.

No. 4:13CV00410 JLH

LARRY CRANE, in his official capacity as Circuit and County Clerk for Pulaski County, Arkansas; MIKE BEEBE, Governor, in his official capacity as Governor and Chief Executive Officer for the State of Arkansas; and DUSTIN MCDANIEL, in his official capacity as Attorney General for the State of Arkansas

DEFENDANTS

ORDER OF RECUSAL

I am recusing from this case because of long-standing, close personal and professional

relationships with persons who were leaders in drafting and campaigning for Amendment 83. One

of those persons is identified by name in the body of the complaint. These relationships were forged

in the 1980s in campaigns regarding issues similar to, though not the same as, the issues surrounding

Amendment 83. The professional aspect of these relationships ceased upon my appointment to this

office, but the close personal relationships have continued.

The applicable law provides that a judge “shall disqualify himself in any proceeding in which

his impartiality might reasonably be questioned.” 28 U. S.C. § 455(a). This statute imposes on a

judge “an affirmative, self-enforcing obligation to recuse himself sua sponte whenever the proper

grounds exist.” United States v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989). See also United States

v. Pearson, 203 F.3d 1243, 1276 (10th Cir. 2000); In re United States, 158 F.3d 26, 37 (1st Cir.

1998); King v. U.S. Dist. Court for Cent. Dist. of Cal., 16 F.3d 992, 993 n.2 (9th Cir. 1994); Taylor

Case 4:13-cv-00410-KGB Document 3 Filed 07/18/13 Page 2 of 2 v. O’Grady, 888 F.2d 1189, 1201 (7th Cir. 1989); Roberts v. Bailar, 625 F.2d 125, 128 (6th Cir. 1980). The standard is an objective one – whether the judge’s impartiality might reasonably be questioned by an average person who knew all of the relevant facts. United States v. Oaks, 606 F.3d 530, 536 (8th Cir. 2010).
After careful consideration, applying the standard stated in United States v. Oaks, I have concluded that 28 U.S.C. § 455(a) requires that I recuse from this matter.
The Clerk is directed to assign this action to another judge. IT IS SO ORDERED this 18th day of July, 2013.
J. LEON HOLMES UNITED STATES DISTRICT JUDGE
2

 
 Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 1 of 45

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

RITA and PAM JERNIGAN and BECCA and TARA AUSTIN

PLAINTIFFS

v.

Case No. 4:13-cv-00410 KGB

LARRY CRANE, in his official capacity as Circuit and County Clerk for Pulaski County, Arkansas, and his successors in interest; DUSTIN MCDANIEL, in his official capacity as Attorney General for the State of Arkansas, and his successors in interest; RICHARD WEISS, in his official capacity as Director of the Arkansas Department of Finance and Administration, and his successors in interest; and GEORGE HOPKINS, in his official capacity as Executive Director of the Arkansas Teacher Retirement System, and his successors in interest

DEFENDANTS

OPINION AND ORDER

Plaintiffs Rita and Pam Jernigan and Becca an d Tara Aus tin challenge Arkansas’s laws

defining marriage as between a m an and wom an. Specifically, plain tiffs challeng e th e

constitutionality of Amendm ent 83 to the Arkans as Constitution and Arkansas Code Annotated

§§ 9-11-107, 9-11-109, and 9-11-208.

Pending before the Court are several m otions. Separate defendants Dustin McDaniel,

Richard W eiss, and George Hopkins , in their official capacities (“Separate Defendants”), have

filed a motion to dismiss (Dkt. No. 17). Plaint iffs have responded in opposition to the m otion to

dismiss (Dkt. No. 23) and have filed a m otion for summary judgm ent (Dkt. No 24), to which

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 2 of 45
Separate Defendants have res ponded in opposition (Dkt. No. 27). 1 The Court held a hearing on all pending motions November 20, 2014.
Plaintiffs are two lesbian couples; the partners of each couple have been in an exclusive, committed relationship with one another for years. Plaintiffs here cla im to seek th e same rights as opposite-sex couples: the freedom to m arry th eir chosen partners, the recognition of their marriages performed in other states that m ake same sex marriage lawful, and the rig ht to receive the state benefits attendant to m arriage. Through their claim s, plaintiffs challenge the constitutionality of Arkansas’s laws excluding sam e-sex couples from marriage and forbidding recognition of legitim ate sam e-sex m arriages entered into in other states. See Ark. Const. amend. 83; Ark. Code Ann. §§ 9-11-107, -109, -208. Plaintiffs challenge these laws claim ing they violate the federal constitution. This Court has jurisdiction; among other statutes, 28 U.S.C. § 1331 confers jurisdiction on federal courts to decide questions arising under the Constitution of the United States. For the reasons set forth below, the Court g rants in pa rt and denies in part Separate Defendants’ motion to dism iss (Dkt . No. 17) and plaintiffs’ m otion for summary judgment (Dkt. No. 24).
I. Background Amendment 83 to the Arkansas Constitution defines marriage as “consist[ing] only of the union of one m an and one wom an.” Current Arka nsas law defines m arriage as “between a man and a wom an” and declares that all m arriages of same-sex couples are void. Ark. Code Ann. § 9-11-109. Current Arkansas law al so provides for recognition of m arriages from other states or
1 Separate defendant Larry Crane filed a motion to dismiss on the ground of comity (Dkt. No. 7) prior to plain tiffs’ filing their am ended complaint (Dkt. No. 16). Because M r. Crane did not renew his m otion to dism iss after plaintiffs filed their amended complaint, th e Court denie s Mr. Crane’s m otion as moot. The Court notes that Mr. Crane’s m otion presen ted absten tion issues that overlap with abstention issues asserted by Separate Defendants.
2

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 3 of 45
countries but specifically excludes m arriages by persons of the sam e s ex. Id. § 9-11-107. In addition, Arkansas law now provide s that the State only recognize s the m arital union of “m an and wom an,” forbids clerks from i ssuing m arriage licenses to sam e-sex couples, forbids the recognition of lawful sam e-sex m arriages entered into in other states, and holds unenforceable any contractual or other rights granted by a same-sex marriage of another state. Id. § 9-11-208.
Plaintiffs Rita and Pam Jernigan (“the Jernigans”) state that they are a lesbian couple who have been in a comm itted relationship for five years and are married under Iowa state law. The Jernigans claim that Rita retired after teaching m ath in the Little Rock School District for m ore than 28 years; that she participated in the Ar kansas Teacher Retirement System (“ATRS”) while employed and currently receives retirem ent pa y from the ATRS; that Am endment 83 prohib its Pam from being consid ered as R ita’s spouse fo r purposes of her teach er retirem ent; and that Amendment 83 prohibits Pam from receiving surv iving spouse benefits under the ATRS in the event of Rita’s death.
Plaintiffs Becca and Tara Austin (“the Austins ”) state that th ey are a lesb ian couple who have been in a committed relationship for over nine years and wish to marry for the same reasons that many other couples m arry: to declare publi cly their love and comm itment to one another before their fa mily, friends, and comm unity a nd to give to one another the security and protections that only m arriage provides. The Aus tins state that they are both em ployees of the University of Arkansas for Medical Sciences and that they have tw ins—a boy and a girl—who are now five years old. The Austins maintain that Tara is the biological mother of the twins and that, because Becca is not a biological parent to the children and cannot legally marry Tara under Arkansas law, Arkansas law does n ot consider Becca a parent to the twins. The Austins further state tha t their inability to m arry legally in Arkansas reduces their fam ily resources and
3

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 4 of 45
stigmatizes the Austins and their children by deny ing the fam ily social r ecognition and respect. The Austins claim that Becca was denied fam ily leave to spend tim e w ith th e twins at hom e because she and Tara were not m arried under Arkansas law and the children were not legally her dependents; that despite Tara’s desire to stay home after the birth of the children, Tara had to return to work full-time to maintain health insurance for herself and the child ren; and that Becca could not carry Tara and the children on a fa mily health insurance plan because she and Tara were not, and could not be, lega lly married under Arkansas law and the children were not her legal dependents.
Plaintiffs are all homeowners in and residents of Pulaski County, Ar kansas, and involved in their communities. Plain tiffs state that th ey have cared for each other, supported each other, sacrificed for each oth er, and m ade plans for the future with each other; that they have experienced hardship, illn ess, joy, and success during the course of their relationships; and that they are spouses in every sense, except that Ar kansas law dictates that they cannot m arry and that, ev en if they ar e le gally m arried pursuant to the laws of another s tate, Ark ansas will no t legally recognize their marriage.
Plaintiffs all applied for a nd wer e denied m arriage lic enses with the Pulaski Cou nty Circuit and County Clerk after th e Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013). Windsor held as unconstitutional Section 3 of the federal Defense of Marriage Act (“DOMA”), wherein Congress defined m arriage for purposes of all federal laws to include only the marriages of opposite-sex couples. See Windsor, 133 S. Ct. at 2693.
The Jern igans state that becaus e th e state of Arkansas would not allow them to m arry, they were forced to incur expense and inconveni ence in traveling to Iowa to m arry, which they did on December 16, 2013. Arkansas will not recognize the Jernigans’ marriage as legal. Before
4

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 5 of 45
the J ernigans perform ed the ir m arriage ce remony in Iowa, Rita appro ached the ATRS. The ATRS told Rita that, even after she legally married Pam in Iowa, the ATRS still would not allow Rita to name Pam as her surviving spouse on her ATRS retirement plan.
Plaintiffs sue separate defendant Larry Cran e in his official capacity as Circuit a nd County Clerk for Pulaski County, Arkansas. The Jernigans and the Austins applied for m arriage licenses on July 11, 2013, but Mr. Crane’s office refused to issue them marriage licenses because Amendment 83 and Ar kansas Code Annotated § 9-11-208 prohibit the Clerk from issuing a marriage license to persons of the same gender.
Plaintiffs sue separate defendant Dustin McDaniel in his official capacity as the Attorney General of the State of Arkansas . Plain tiffs s tate tha t Attorney Gen eral McDan iel’s du ties include both enforcing the law and advising officials with in the state ab out the requ irements of the law, including Am endment 83 and the challenge d statutes. Arkansas law directs Attorney General McDaniel to “maintain and defend the interests of the State in matters before . . . federal courts” and to be the “legal repr esentative of all state officers, boards, and comm issioners in all litigation where the interests of the state are involved.” Ark. Code Ann. § 25-16-703.
Plaintiffs sue separate defendant Richard W eiss in his official capacity as Directo r of the Arkansas Department of Finance and Administration (“DFA”). Director Weiss is responsible for accepting or refusing tax returns filed by Ar kansas residents and non-residents. Id. § 25-8-102. Amendment 83 prohibits same-sex couples married in other states from filing joint Arkansas tax returns.
Plaintiffs sue separate defendant George H opkins in his of ficial capacity as Executive Director of the ATRS. Plaintiffs state that Executive Director Hopki ns is responsible for enforcing rules created by the ATRS Board of Trustees including withhol ding spousal benefits
5

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 6 of 45
from sa me-sex spouses who are legally m arried under the laws of jurisdictions that recognize same-sex marriage and preventing same-sex spouses from receiving retirement benefits from the ATRS in the event of recipients ’ deaths. Plain tiffs seek a declaration that Am endment 83 and the referenced statutes violate their rights to equa l protection and due pr ocess of law under the Fourteenth Amendment to the United States Co nstitution. Plaintiffs Rita and Pam Jernigan seek preliminary and perm anent injunctive relief re quiring that defendants recognize their legitim ate out-of-state m arriage. All plaintiffs seek p ermanent injunc tive relief prohibiting the state of Arkansas and all political subdivisions thereof fr om enforcing Am endment 83 or the referenced statutes.
II. Motions To Dismiss For Reasons Other Than The Merits The Court turns f irst to Separate Defendants’ motion to di smiss (Dkt. No. 17) to which plaintiffs have responded (Dkt. No. 23). Separate Defendants raise four argum ents in support of their reques t that th is Court dism iss plain tiffs’ claim s against som e or all of the nam ed defendants. First, Separate Defendants conten d that the claim s against Directo r Weiss and Executive Director Hopkins should be dism issed under Federal Rule of Ci vil Procedure 12(b)(5) for inadequ ate serv ice of process s ince, as of the date of the f iling of the m otion to d ismiss, Director Weiss and Executive Director Hopkins had not been served with a copy of the summons and amended complaint. Second, S eparate Defendants also argue that th e Court should dism iss this case pursuant to the Younger v. Harris, 401 U.S. 37 (1971), abstenti on doctrine. The Court will add ress this do ctrine raised b y Separate Def endants, as well as additional absten tion doctrines and the Rooker-Feldman doctrine raised on the Court’s own motion. Third, Separate Defendants claim that this Court lacks jurisd iction because the claim s against Separate Defendants are barred b y the Eleventh Am endment to the United States Constitu tion. Fourth,
6

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 7 of 45
Separate Defendants move to dismiss plaintiffs’ amended complaint with prejudice for failure to state a claim upon whi ch relief m ay be grante d; the Court will discus s this argu ment infra in section III.
A. Service Of The Amended Complaint As for the procedural argum ent for dismissal advanced by Director W eiss and Executive Director Hopkins, Federal Rule of Civil Proce dure 4(m ) gives a plain tiff 120 days after the complaint is filed to ser ve a d efendant. This rule also applies to service of defendants who are added by an amended complaint. Carmona v. Ross, 376 F.3d 829, 830 (8th Cir. 2004). Plaintiffs filed their am ended complaint on January 17, 2014, adding as defendants Director W eiss and Executive Director Hopkins. Plaintiffs returned executed summonses as to Director Weiss and Executive Director Hopkins on February 7, 2014, i ndicating that plainti ffs served these two defendants on February 6, 2014 (Dkt. Nos. 20, 21, 22) . Therefore, plaintiffs properly served Director Weiss and Executive Dire ctor Hopkins within the 120 da y period, and the Court denies Separate Defendants’ motion to dismiss for inadequate service of process.
B. Motion To Dismiss Claims Pursuant To Abstention Separate Defendants argue that this Court s hould abstain from exercising jurisdiction over this suit pursuant to Younger v. Harris, 401 U.S. 37 (1971), becau se a substantially sim ilar suit is p ending in the Arkansas s tate cou rt s ystem. Generally, the doctrine of abstention authorizes a federal cou rt to declin e to ex ercise jurisdiction if federal court adjudication would “cause undue interference with state proceed ings.” New Orleans Pub. Serv., Inc. v. Council of New Orleans (“NOPSI”), 491 U.S. 350, 359 (1989). Even in cas es where permissible, however, abstention under any doctrine is “t he exception, no t the rule.” Colorado River Water Conservation Dist. v. United States , 424 U.S. 800, 813 (1976). Abst ention “is an extraordinary
7

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 8 of 45
and narrow exception to the duty of a District C ourt to adjudicate a controversy properly befor e it.” Id. (citations om itted). “[F]eder al courts are obliged to deci de cases with in the scope of federal jurisdiction.” Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 588 (2013).
This Court recognizes the im port of what plaintiffs ask it to do in exam ining the federal constitutionality of Arkansas state laws. W hile “the Consti tution and Congress equip federal courts with author ity to void state laws that tr ansgress federal civil rig hts, . . . com ity toward state sovereignty counsels the power be sparingly used.” Moe v. Dinkins , 635 F.2d 1045, 1046 (2d Cir. 1980). As a result, this Court will exam ine the Younger abstention doctrine raised by Separate Defendants and three additional abstention doctrines, as well as the Rooker-Feldman doctrine, raised on the Court’s own motion to s atisfy these concerns before the Court considers the merits of plaintiffs’ claims.
Other courts that have exam ined abstention in the contex t of sa me s ex ma rriage l aws have opted not to abstain. Alt hough not controlling, that authority is persuasive and informs this Court. See, e.g., Marie v. Moser, M.D., No. 14-cv-02518-DDC/TJJ, 2014 WL 5598128 (D. Kan. Nov. 4, 2014); Wolf v . Walke r, 9 F. Supp. 3d 889 (W .D. W is. 2014). The following five subsections address the propriety of abstention, and application of the Rooker-Feldman doctrine, and the Court’s ultimate conclusion not to abstain here.
1. Younger Abstention Separate Defendants assert that a parallel action challenging the federal constitutionality of these same Arkansas laws was filed prior to the commencement of this action and is currently being litigated in Arkansas state court. See M. Kendall Wright, et al . v. Nathaniel Smith, M.D., M.P.H., et al., Arkansas Supreme Court Case No. CV-14-427 (“Wright”). That case is on appeal from the Circuit Court of Pulaski County, Ar kansas, Second Division, Case No. 60CV-13-2662.
8

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 9 of 45

Assuming without deciding that the issues raised in Wright m ight resolve the constitutional

questions presented here, and beca use an injunction if issued by this Court could in terfere with

the legal iss ues in thos e sta te proceedings, the Court considers wh ether it should abstain from

adjudicating this action under the principles of Younger, 401 U.S. 37, as Separate Defendants

suggest.

Although the Suprem e Court has repeatedly cautioned that federal courts have a

“virtually unflagging obligation . . . to exercise the jurisdiction given them,” Colorado River, 424

U.S. at 817, the Supreme Court in Younger recognized a limited ex ception to that g eneral rule.

This absten tion doctrine reflects the “long standing public policy ag ainst federal court

interference with state court proceedings.” Younger, 401 U.S. at 43. The doctrine holds that, for

reasons of state sovereignty and comity in state-federal relations, federal courts should not enjoin

state judicial proceed ings. Younger abstention is required when: (1) there is an ongoing state

judicial proceeding involving the f ederal plaintiffs; (2) that implicates important s tate interests;

and (3) the proceed ing provides an adequate op portunity for the federal plaintiff to assert his or

her federal claims. Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432

(1982).

Originally, Younger abstention applied only to conc

urrent state court crim inal

proceedings. Younger, 401 U.S. at 53. The scope of the doctrine has expanded gradually. In its

current form, the doctrine also prevents federal courts from interfering with state civil and

administrative proceedings. See generally Pennzoil Co. v. Texaco, Inc. , 481 U.S. 1 (1987)

(determining that federal courts may not enjoin pending state court civil proceedings between

private parties); Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc. , 477 U.S. 619 (1986)

(determining that federal courts m ay not en join pending state adm inistrative proceedings

9

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 10 of 45

involving important state inte rests). Further, the restrictions derived from Younger agains t

federal court injunctions include requests for declaratory relief because “o rdinarily a declaratory

judgment will resu lt in precisely the sam e inte rference with and disr uption of state court

proceedings that [Younger abstention] was designed to avoid.” Samuels v. Mackell, 401 U.S. 66,

72 (1971).

Even

if Wright might resolve the issues presented here, the Court concludes that Younger

abstention is not appropriate for two independent reasons. First, plaintiffs are not a party in

Wright and therefore cannot assert their cons titutional claims in that pro ceeding. Abstention is

mandated under Younger only when the federal plaintiff is actu ally a party to the state

proceeding; the Younger doctrine does not ba r non-parties from raising constitutional claims in

federal court, even if the sam e claim s are be ing addressed in a concurrent state proceedin g

involving similarly situated parties. See Doran v. Salem Inn, Inc., 422 U.S. 922, 928-29 (1975).

Second, even if plaintiffs had asserted their claim s in Wright, the Suprem e Court has

narrowed the a pplication of Younger to three “exceptional circumstances.” The Su preme Court

recently held that the Younger doctrine applies only to three cla sses of parallel proceedings: (1)

“state crim inal prosecu tions”; (2 ) “particular stat e civ il proceedings that are ak in to crim inal

prosecutions”; and (3 ) “civ il pro ceedings in volving certain orders that are uniquely in

furtherance of the state courts ’ ability to perform their judicial functions.” Sprint, 134 S. Ct. a t

588; see id. at 591 (“W e have not applied Younger outside these three ‘exceptional’ categories,

and today hold . . . that they define Younger’s scope.”); see id. at 588 (“Abstention is not in order

simply because a pending state-court proceeding involves the same subject matter.”). This Court

finds that th e instant case does no t fall under any one of the three “exceptional” categories laid

out in Sprint.

10

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 11 of 45
Because this case is not parallel to a state criminal prosecution or to a particular state civil proceeding akin to a crim inal prosecution, this Court examines whether this case falls with in the third exception—pending state cour t civil proceedings involving certain orders that uniquely further the Arkansas s tate courts’ ability to p erform their judicial functi ons. This argum ent is enticing, for this Court r ecognizes that a decision from an Ar kansas state court would not raise the comity concerns inherent in a federal cou rt injunction. However, af ter reviewing the cases where the Court has approved of abstention under this branch of the Younger analysis, the Court concludes that abstention is not appropriate here. See generally NOPSI, 491 U.S. at 367-68.
Specifically, in Juidice v. Vail, 430 U.S. 327, 335 (1977), the Supreme Court held that a federal court should abstain from interfering with a state’s contempt process because it is integral to “the regular operation of [the stat e’s] judicial system .” Likewise, in Penzoil Co. v. Texaco, Inc., 481 U.S. 1, 13-14 (1987), the Court extended Juidice to a c hallenge to Texas’s la w requiring an appellant to post a bond pending appeal. As the Court explai ned, both “involve[d] challenges to the proces ses by which the State com pels compliance with the judg ments of its courts.” Id. Both in volved pro cesses the s tate cou rts used to d ecide cases a nd enforce judgments—functions that are uniquely judicial functions. In contrast, when an Arkansas county clerk issu es a m arriage licen se, the clerk is pref orming a ministerial function. See Ark. Code Ann § 9-11-203 (“The clerks of the county courts of the several counties in this state are required to furnish the license upon: (1) Application’s being made; (2) Being fully assured that applicants are lawfully entitled to the license; and (3) Receip t of his or her fee”); see also Ark. Op. Att’y Gen. No. 2013-121 (O ct. 7, 2013) (“Pursuant to A.C.A. § 9-11-203, ‘county clerks’ have the authority and obligation to issue marriage licenses.”).
11

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 12 of 45
Accordingly, this Court determ ines the challenge presented by plaintiffs here doe s not qualify as one uniquely furthering the ability of Arkansas courts to perfor m their judicial functions in the sense that the post-Younger cases use that phrase. Therefore, this Court declines to apply Younger or to abstain from exercising its jurisdiction.
2. Pullman Abstention Under the abstention doctrine of Railroad Commission of Texas v. Pullman Company , 312 U.S. 496 (1941), “federal courts should abst ain from decision when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided.” Hawaii Hous. Auth. v. Midkiff , 467 U.S. 229, 236 (1984). The Cour t raises the question of Pullman abstention on its own m otion. “ Pullman abstention is limited to uncer tain questions of state law.” Id. (citing Colorado River, 424 U.S. at 813). If the m eaning or method of enforcing a law is unsettle d, f ederal courts should abstain so that a state court has an opportunity to inte rpret the law. Id. If the state cour t m ight constru e the law in a way that obviates th e need to decide a federal q uestion, ab stention prevents “bo th unnecessary adjudication and ‘needless friction with state policies.’” Id. (quoting Pullman, 312 U.S. at 500). Conversely, “[w]here there is no am biguity in the state statut e, the federal court should not abstain but should proceed to decide the federa l constitutional claim . W e would negate the history of the enlargement of the jurisdiction of the federal district courts, if we held the f ederal court should stay its hand and not decide the question before the state courts decided it.” Wisconsin v. Constantineau , 400 U. S. 433, 439 (1971) (citations om itted); see also Zwickler v. Koota, 389 U.S. 241, 251 (1967) (determ ining that a federal court should not abstain under Pullman simply to giv e a state co urt th e first opportunity to decid e a federal constitu tional claim).
12

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 13 of 45
No party argues, and the Court does not determine there to be, any a mbiguity or uncertainty in the Arkan sas laws plaintiffs chal lenge here. T he challenged laws are not subject to an inte rpretation tha t m ight avoid or m odify the federal cons titutional ques tions raised by plaintiffs. The critical con cern unde rlying appl ication of Pullman abstention is m issing— avoidance of unnecessary state-fe deral friction where deference to a s tate court d ecision m ay negate the federal question involved. The Court will not apply Pullman to abstain.
3. Colorado River Abstention The United States Supreme Court has recognized that, in certain circumstances, it may be appropriate for a federal court to refrai n from exerci sing i ts jurisdiction to avo id duplic ative litigation when there is a concurrent foreign or state court action. Colorado River, 424 U.S. 800. Although it is generally classifi ed as an abstention doctrine, Colorado River is not truly an abstention doctrine because it “springs from the desire for judicial econom y, rather than from constitutional concerns about federal-state comity.” Rienhardt v. Kelly , 164 F.3d 1296, 1303 (10th Cir. 1 999). However, “the circum stances permitting the dism issal of a federal suit due to the p resence of a con current s tate proceed ing fo r reasons of wise jud icial adm inistration are considerably more limited than the circ umstances appropriate for abstention.” Colorado River, 424 U.S. at 818. The Court raises on its own motion the issue of whether to abstain under Colorado River. Colorado River identified four factors that f ederal courts should consider when deciding whether to abstain: (1) the p roblems that occur when a state an d federal court assum e jurisdiction over the sam e res; (2) the inconvenience of the fede ral forum; (3) the desirability of avoiding piecemeal litigation; and (4) the order th at the concurrent forum s obtained jurisdiction. Id. “No one factor is n ecessarily d eterminative,” but “[ o]nly the cleare st of justif ications will
13

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 14 of 45

warrant dismissals.” Id. at 818-19.

The Court finds no clear justification for dismissing this case under Colorado River. This

Court has not assum ed concurrent jurisdiction over the sam e res as any Arkansas state cou rt.

Moreover, concerns ab out in terfering with state pro ceedings are resolved under a Younger

analysis, which the Court de termines does not apply here . Finally, this c ase and Wright are not

parallel proceedings for purposes of Colorado River because the cas es involve different parties

and different claims. This Court determines that Colorado River does not apply.

4. Burford Abstention

This Court also raises on its own m otion ab stention under Burford v. Sun Oil Co. , 319

U.S. 315 (1943). In Burford, the federal court confronted a complex question of Texas oil and

gas law governed by a com plex state adm inistrative scheme. Id. at 318-20. Holding that the

federal district court should have dism issed the case, th e Suprem e Court em phasized the

existence of com plex state adm inistrative pro cedures and the need for centralized decision

making when allocating drilling rights. Id. at 334.

The Court does not find Arkansas’s system for administering the m arriage laws to be so

complex that state of ficials will s truggle to so rt out an inju nction banning enf orcement of the

state’s s ame-sex m arriage ban. Th is cas e also doe s not present the type of issue best left to

localized administrative procedures. Rathe r, this case presents federal constitutional questions,

ones squarely within the provin ce and com petence of a federal c ourt. Accordingly, the Court

declines to abstain under Burford.

5.

The Rooker-Feldman Doctrine

The Rooker-Feldman doctrine provides that federal courts, except for the Supreme Court,

cannot directly review st ate court decisions. In Exxon Mobil Corporation v. Saudi Bas ic

14

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 15 of 45
Industries Corporation , 544 U.S. 280 (2005), the Suprem e Court confined the doctrine’s application to the factual setting presented in the two cases that gave the doctrine its name: when the losing parties in a s tate court case bring a federal suit alleging that th e state court ruling was unconstitutional. Rooker v. Fid. T rust Co. , 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). The Court raises the Rooker-Feldman doctrine on its own motion.
As an initia l m atter, pla intiffs have not lost in Arkansas state cour t. Instead, pla intiffs here cha llenge the cons titutionality of certain Arkansas laws. Such challenges are perm issible under Rooker-Feldman becaus e th e doctrine does not bar a federal court from deciding th e “validity of a rule pro mulgated in a non-judicial p roceeding.” Feldman, 460 U.S. at 486. Further, concurrent state and federal court litigation over similar issues does not trigger dismissal under Rooker-Feldman. See Exxon Mobil , 544 U.S. at 292 (“[N]either Rooker nor Feldman supports the notion that properly invoked concurrent jurisdiction vanishes if a state court reaches judgment on the same or a related question”). Moreover, plaintiffs are not parties to Wright and “[t]he Rooker-Feldman doctrine does not bar actions by nonparties to the ea rlier state court judgment.” Lance v. Dennis, 546 U.S. 459, 466 (2006).
After analy zing the fo ur absten tion doctrines, and the Rooker-Feldman doctrin e, the Court finds that none of these doctrines support ev ading its “virtually unflagging obligation . . . to exercise [its] jurisdiction.” Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 15 (1983).
C. Motion To Dismiss Claims Pursuant To Eleventh Amendment Separate Defendants next argu e that they are not proper defendants in the present action because they are immune from s uit under the Eleventh Am endment of the United States
15

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 16 of 45
Constitution. However, a state of ficial m ay be sued to en join enf orcement of an alleg edly unconstitutional state statute when “such officer [has] some connection with the enforcem ent of the Act.” Ex parte Young, 209 U.S. 123, 157 (1908); see also Mo. Prot. & Advocacy Servs., Inc. v. Carnahan , 499 F.3d 803, 807 (8th Cir. 2007) (holding that a “state’s Eleventh Am endment immunity does not bar a suit against a state offi cial to enjoin enforcem ent of an alleg edly unconstitutional statute, provided that such officer has some connection with the enf orcement of the act.” (q uotations o mitted)). Separate Defe ndants cite non-contro lling cas e law from other jurisdictions to support the propos ition that th ey do no t h ave sufficient connection with th e enforcement of the laws and actions about whic h plaintiffs com plain. However, the Eighth Circuit Court of Appeals reje cted a sim ilar argum ent in Missouri Protection and Advocacy Services, Inc. In doing so, the Eighth Circuit Court of Appeals found that the Missouri Secretary of State and Attorney General satisfied the “s ome connection with the enforcem ent of the act” requirement and therefore were pro per parties to the case. Mo. Prot. & Advocacy Servs., Inc. , 499 F.3d at 807. Specifically, the Court determ ined that, because of his statutorily granted authority to repres ent the state in bo th criminal and civil ca ses, the Mis souri Attorney General was properly na med as a defendant and that the Ex parte Young exception to Eleventh Amendment immunity applied. Id.
This Court agrees with plaintiffs that al l three Separate Defe ndants satisfy this requirement. Attorney General McDaniel’s authority is created by statute, see Ark. Code Ann. § 25-16-703, and he is the legal representative of a ll state officers, boards, and comm issioners in all litigation where the interests of the state are involved. See Mo. Prot. & Advocacy Servs., Inc., 499 F.3d at 807. Director W eiss’s authority is created by statute, see Ark. Code Ann. § 25-8101, and he is responsible for accepting or refusing tax returns, includin g enforcing Amendment
16

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 17 of 45
83 by refusing joint Arkansas tax returns filed by same-sex spouses who were m arried in other states. Executive Director Hopkins’s authority is created by statute, see id. § 24-7-303(c), and he is responsible for enforcing rules created by the ATRS Board of Trustees including (1) withholding spousal benefits from same-sex spouses who are legally m arried under the laws of jurisdictions that recognize sam e-sex m arriage and (2) preventing sam e-sex spouses from receiving r etirement benef its f rom the ATRS in the eve nt of recip ients’ d eaths. Separa te Defendants do not dispute that their positions were created by statute or dispute that their official responsibilities are as outlined above. Therefore, this Court finds that Separate Defendants are proper defendants in this suit, an d the Court declines to dismi ss them as immune from suit under the Eleventh Amendment.
III. Separate Defendants’ Motion To Dism iss For Failure To State A Claim And Plaintiffs’ Motion For Summary Judgment
Separate Defendants also m ove to dism iss plaintiffs’ amended complaint with pre judice for failure to state a claim upon which relief may be granted. Se parate Defendants argue that plaintiffs’ claim s fail under bindin g preceden t. Conversely, plaintif fs m ove for summary judgment against all defendants as a matter of law.
Pursuant to Federal Rule of Civil Procedure 56(b), unless a different tim e is set by local rule or the court orders otherw ise, a party m ay file a m otion for summary judgm ent at any tim e until 30 day s after the close of all discovery. Fed. R. Civ. P. 56(b). The adviso ry committee’s notes to Rule 56 s tate that a m otion for summ ary judgment m ay be f iled as ea rly as th e commencement of an action, although the motion may be premature until the nonmovant has had time to file a responsive pleading or other pretrial proceedings have been had. Fed. R. Civ. P. 56 advisory committee’s notes to 2010 Amendments. In their respons e to plaintiffs’ statem ent of undisputed material facts, Separate Defendants purport to deny that there are no m aterial facts in
17

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 18 of 45
dispute in this case (See Dkt. Nos. 24-2, 29). However, Separate Defendants identify no material facts in dispute when responding to plaintiffs’ motion for summary judgment, as required by this Court’s Local Rule 56.1. Furthe r, elsewhere in their response to plaintiffs’ statem ent of undisputed m aterial facts, Separate Defendants “admit” that a ruling on plaintiffs’ m otion for summary judgm ent “involves purely legal analys is” (Dkt. No. 29, at 2-3) . Although in their response S eparate Defendants assert that pl aintiffs’ motion for summary judgm ent is “premature” (Dkt. No. 27, ¶2), Sep arate Defenda nts do so because of their pend ing m otion to dismiss which they maintain may moot some or all of the claim s addressed in plaintiffs’ motion for summ ary judgm ent (Dkt. No. 28, at 2 n.1). Se parate Defendants did not request that this Court defer its consideration of plaintiffs’ m otion for summ ary judgment under Federal Rule of Civil Procedure 56(d). Finally, counsel for Se parate Defendants agreed with the Court’s statement at the hearing on thes e motions that Separate Defendants oppose plaintiffs’ motion for summary judgment on purely legal grounds.
For these reasons, the C ourt determines that plaintiffs’ m otion for summary judgm ent is not premature but is ripe for th e Court’s consideration. The Court determ ines the m aterial facts are uncontested. As for the m otion to dismiss, the Court has considered only those facts alleged in the am ended complaint (Dkt. No. 16). As for the m otion for summary judgm ent, the Court has considered no reports or stat ements outside of the factual r ecord. T he Court notes Separate Defendants’ objections to “Plaintiffs’ relianc e upon news m edia reports and statem ents of outside interest groups” (Dkt. No. 28, at 23). The Court sust ains this objection and has considered no such reports or statem ents. A lthough the legal standard applied by the Court to determine each motion differs, the analyses engaged in by the Court to resolve these two pending motions—a motion to dism iss and a motion for su mmary judgment—are similar. Accordingly,
18

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 19 of 45
after setting forth the ap propriate legal standard for each motion, the Court will co nsider jointly the merits of the motions.
A. Standards Of Review 1. Standard: Motion To Dismiss For Failure To State A Claim
“To surv ive a m otion to dism iss, a com plaint m ust contain sufficien t factual m atter, accepted as true, to ‘s tate a claim to relief that is plausib le on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlan tic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “W hile a complaint a ttacked by a Rule 12 (b)(6) m otion to d ismiss does not need d etailed f actual allegations, a plaintiff’s obligation to provide th e ‘grounds’ of his ‘entitle[m ent] to relief ’ requires more than labels and conclusions, and a formulaic recitation of the elem ents of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (citations omitted).
Whether a complaint states a claim is a question of law. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). “[T ]he complaint must contain facts which state a claim as a m atter of law and m ust not be conclusory.” Briehl v. Gen eral Mo tors Corp. , 172 F.3d 623, 627 (8th Cir. 1999). Further, “Rule 12(b)(6) auth orizes a court to dismiss a claim on the basis of a dispositive issue of law.” Neitzke v. Williams, 409 U.S. 319, 326 (1989). In construing the sufficiency of a complaint, courts consider materials attached to the com plaint as exh ibits. Morton, 793 F.2d at 187. “W hen ruling on a m otion to dism iss, th e district court m ust accept the alleg ations contained in the com plaint as true and all reas onable inferences from the com plaint m ust be drawn in favor of the nonm oving party.” Young v. City of St. Charles , 244 F.3d 623, 627 (8th Cir. 2001).
19

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 20 of 45
2. Standard: Motion For Summary Judgment Summary judgment is proper if the evidence, when viewed in the ligh t most favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the defendant is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). A factual dispute is genui ne if the evidence c ould cause a reasonable jury to r eturn a verdic t for either party. Miner v. Local 373 , 513 F.3d 854, 860 (8th Cir. 2008). “The mere existence of a factual dis pute is in sufficient alone to bar su mmary judgment; ra ther, the dispute must be outcom e determinative under the prevailing law.” Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989). Summary judgm ent is not precluded by disputes over facts that could not, under the governing law, a ffect the outcom e of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Parties opposing a summary judgment motion may not rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial burden is on the moving party to demonstrat e the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once this burden is discharged, if the record shows that no genuine dispute exists, the burden then shifts to the non-m oving party who must set forth affir mative evidence and specific facts showing there is a genuine dispute on a material factual issue. Anderson, 477 U.S. at 249. “The evidence of the non-m ovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
B. Precedent Separate Defendants arg ue that two cases s erve as precedent to control the outcom e of this case. The Court will examine each case in turn.
20

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 21 of 45
1. Baker v. Nelson First, Separate Defe ndants contend that Baker v. Nelson , 409 U.S. 810 (1972), requires dismissal of this case. In Baker, the United States Supreme Court summarily dism issed “for want of substantial federal question” an app eal from the Minnesota Suprem e Court, which upheld a ban on sam e-sex m arriage. Baker v. Nelson , 191 N.W .2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972). The Minnesota Suprem e Court held that a state statute defining marriage as a union between person s of the opposite sex did not vi olate the First, E ighth, Ninth, or Fourteenth Amendments to the United States Constitution. Baker, 191 N.W.2d at 185-86. Separate Defendants argue that the S upreme Court’s su mmary dism issal in Baker requires dismissal of this action. “S ummary dismissals are, of course, to be taken as rulings on the m erits, in the sense that they rejected the specific challenges presented in the statem ent of jurisdiction and left undisturbe d the judgm ent appealed from .” Washington v. C onfederated Bands & Tribes of Yakima Indian Nation , 439 U.S. 463, 477 n.20 (1979); see a lso Mandel v. Bradley, 432 U.S. 173, 176 (1977). A summ ary dismissal “does not, as we have continued to stress, nec essarily ref lect our agr eement with the op inion of the co urt whose judgm ent is appealed.” Washington, 439 U.S. at 477 n.20. Further, “if th e Court has branded a question as unsubstantial, it rem ains so except when doctr inal developments indicate oth erwise.” Hicks v. Miranda, 422 U.S. 332, 344 (1975). Supreme Court decisions since Baker reflect significant “doctrinal developm ents” concerning constitutional issues that involve same-sex relationships. See Kitchen v. Herbert, 755 F.3d 1193, 1204-05 (10th Cir. 2014). As the Tenth Circuit noted in Kitchen, “[t]wo landm ark decisions by the Suprem e Court”—Lawrence v. Texas , 539 U.S. 558 (2003), and Windsor, 133 S. Ct. 2675—“have undermined the notion that the question presented in Baker is insubstantial.”
21

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 22 of 45
755 F.3d at 1205. In Lawrence, the Suprem e Court held that “intimate conduct with another person . . . can be but one elem ent in a pers onal bond that is m ore enduring. The liberty protected by the Constitution allows hom osexual persons the right to m ake this cho ice.” 539 U.S. at 567.
In Windsor, the Suprem e Court struck down a portion of the federal DOMA, which defined marriage as between “one m an and one woman” and conflicted with New York’s law s permitting same-sex marriage. 133 S. Ct. at 2683, 2689. This Court recognizes that Windsor did not explicitly invalid ate state sam e-sex marriage bans, as that issue was not squarely before the Supreme Court. Nevertheless, Windsor did not rest solely on federalism concerns. The Windsor Court maintained that “[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons, but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” Id. at 2693 (citations omitted).
Accordingly, although states m aintain the power to regulate dom estic relationships, they must do so “subject to,” and within the conf ines of, “the constitutional rights of persons.” As to the “constitutional rights of persons,” the Windsor Court framed its central issue as “whether the resulting injury and ind ignity [ caused by DOMA] is a deprivation of an essential part of the liberty protected by the Fifth Amendment.” Id. at 2692; accord Kitchen, 755 F.3d at 1206. The Court concluded: “DOMA is unc onstitutional as a depr ivation of th e libe rty of the per son protected by the Fif th Amendment of the Constitution, ” and “the equa l protection guarantee of the Fourteenth Amendment makes that Fifth Am endment right a ll the more specif ic and all the better understood and preserved.” Windsor, 133 S. Ct. at 2695. The Suprem e Court reinforced
22

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 23 of 45

that restricting the benefits of m arriage to sa me-sex couples “violate s basic due process and

equal protection principles.” Id. at 2693.

At the very least, the Supreme Court’s decisions in Lawrence and Windsor “foreclose the

conclusion that th e issue [of sam e-sex marriage] is, as Baker determined, wholly insu bstantial.”

Kitchen, 755 F.3d at 1208. Although the Eighth Circui t Court of Appeals has not yet determ ined

the issue, several federal courts of appeals that have considered Baker’s impact in the wake of

Lawrence and Windsor have concluded that Baker does not bar a federal court from considering

the constitutionality of a state’s ban on same-sex marriage. See, e.g., Bishop v. Smith , 760 F.3d

1070 (10th Cir. 2014); Kitchen, 755 F.3d 1193 (10th Cir. 2014); Latta v. Otter , Nos. 14-35420,

14-35421, 12-17668, 2014 WL 4977682, at *3 (9th Cir. Oct. 7, 2014); Baskin v. Bogan, 766 F.3d

648 (7th Cir. 2014); Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014). But see DeBoer v. Snyder,

Nos. 14-1341, 3057, 3464, 5291, 5297, 5818, 2014 W L 5748990, at *7 (6th Cir. Nov. 6, 2014)

(finding that Windsor neither overruled Baker “by nam e” nor “by outcom e”). Num erous lower

federal courts also ha ve questioned whether Baker serves as binding precedent f ollowing the

Supreme Court’s decision in Windsor. This Court has th e benefit of reviewing the decisions of

those courts, and “[a] significant m ajority of courts have found that Baker is no longer

controlling in light of the doctrinal de velopments of the last 40 years.”

Rosenbrahn v.

Daugaard, No. 4:14-CV-04081-KES, 2014 WL 6386903, at *6-7 n.5 (D.S.D. Nov. 14, 2014)

(collecting cases that have called Baker into doubt).

This Court acknowledges that some c ourts have recentl y concluded that Baker is still

binding precedent. See, e.g., DeBoer, 2014 WL 5748990. This Court determ ines that the Sixth

Circuit’s reasoning is not as persuasive on this point as that of the F ourth, Seventh, Ninth, and

Tenth Circu its. As an initia l m atter, the summ ary disposition in Baker is no t of the sam e

23

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 24 of 45
precedential value as would be an opinion on the m erits. Tully v. Griffing, Inc., 429 U.S. 68, 74 (1976). Further, it is difficult to rec oncile the Suprem e Court’s statem ent in Windsor that the Constitution protects the moral and sexual choices of homosexual couples, Windsor, 133 S. Ct. at 2694, with the idea that state la ws prohibiting sam e-sex marriage do not present a substantial federal question. For the foregoing reasons, Baker does not bar the Court from reach ing the merits of plaintiffs’ claims.
2. Citizens for Equal Protection, Inc. v. Bruning Separate Defendants next argue that Citizens for Equal Protection, Inc. v. Bruning , 455 F.3d 859 (8th Cir. 2006), “specifi cally held that an equal protection challenge to Nebraska’s marriage laws fails on the m erits” and, thus, requires dism issal of the instant cas e (Dkt. No. 18, at 20). In Bruning, three public interest groups whos e m embers included gay and lesbian citizens ch allenged, and the Eight h Circuit upheld, a Nebraska c onstitutional am endment that defined m arriage as “between a m an and a wo man” and prohibited any “civil union, dom estic partnership, or other similar sa me-sex relationship.” 455 F.3d at 863. Although sim ilar to the case at han d on the surface, Bruning does not dispose of plaintiffs’ challenge to Arkansas’s marriage laws. First, Bruning recognized the Sup reme Court’s summ ary dismissal in Baker, stating that “to our knowledge no Justice of the Suprem e C ourt has suggested that a state statute or constitutional p rovision codif ying the trad itional definition of m arriage violates the Equa l Protection Clause or any other provision of the Unite d S tates Constitution.” Id. at 870. The Bruning court, however, did not disc uss the continued validity of Baker or th e doctr inal development exception. Moreover, Bruning was decided in 2006, seven years before the Supreme Court decided Windsor. As discussed above, Lawrence and Windsor present doctrinal
24

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 25 of 45
developments that undercut Baker’s control. Thus, to the extent that Bruning cites Baker, for the reasons stated above in th is Court’s analysis of Baker, doubt is cast on the ability of Bruning to control the outcome here.
More im portantly, however, the present case involves claim s and argum ents that are distinguishable substantivel y from those decided in Bruning. The court in Bruning did not decide a due process challenge to Nebraska’s marriage laws; therefore, that case does not resolve plaintiffs’ due process argum ents here, despite S eparate Defendants’ argum ents to the contrary. As to the e qual p rotection a rguments, it is tru e tha t the Bruning cou rt stated that “Appellees ’ equal protection argum ent [against Nebraska’s cons titutional am endment] f ails on the m erits.” Id. at 868-69. But, as the court in Bruning noted, the equal protection argument at issue in that case was limited:
Appellees argue th at [Nebraska’s constitu tional am endment] violates the Equa l Protection Clause because it raises an insurmountable political barrier to same-sex couples obtaining the m any governm ental an d private sector be nefits that are based upon a legally valid marriage relationship. Appellees do not assert a right to marriage or same-sex unions. Rather, they seek “a level playing field, an equal opportunity to convince the people’s el ected representatives that sam e-sex relationships deserve legal protection.” Id. at 865 (em phasis added). Accordingly, to d ecide which standard of review applied, the Bruning court ev aluated cases dealing with claims for “equal political access. ” See id. at 866 (internal qu otation m arks om itted). The Eig hth Circu it reje cted p laintiffs’ ar gument f or heightened scrutiny, noting that “there is no fundam ental right to be free of the political barrier a validly enacted constitutional amendment erects” and that the Bruning plaintiffs “d[id] not assert a right to m arriage or sam e-sex unions.” Id. at 868. For these reason s, this Court does not construe Bruning or its holding as broadly as Separate Defendants suggest.
25

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 26 of 45
Unlike the appellee s’ claim s in Bruning, plain tiffs’ claim s here asser t, with in the Fourteenth Amendment to the United States Constitution, a fundamental right to marry under the Due Process Clause and the freedom to exercise that right like other citizens do under the Equal Protection Clause, a funda mental right to travel under the Due Process Clause, and discrimination on the basis of gender in violati on of the Equal Protecti on Clause. Therefore, because the Bruning court was not asked to address and di d not address these legal claim s, the holding of Bruning does not require this Court to dism iss plaintiffs’ right to m arry, right to travel, and gender discrim ination claim s. See Rosenbrahn , 2014 WL 6386903 (exam ining the limits of Bruning in the context of a challeng e to South Dakota’s m arriage laws); Lawson v . Kelly, No. 14-0622-CV-W -ODS, 2014 WL 5810215, at *8-10 (W .D. Mo. Nov. 7, 2014) (examining the lim its of Bruning in the context of a challenge to Missouri’s m arriage laws). Instead, th is Court m ust determ ine whether p laintiffs’ ass erted righ t to m arry sta tes a valid liberty interest and, if it does, whether the govern ment may interfere with the right to m arry by restricting it to opposite-sex c ouples; whether the government has interfered with plaintiffs’ asserted rig ht to travel; and wh ether plaintiffs have been disc riminated against on the basis of gender. However, regarding plaintif fs’ discrimination on the basis of sexual orientation claim , the Court determ ines, and plaintiffs a ppear to agree, that it is bound by Bruning, as discu ssed below.
C. Claims Under The Fourteenth Am endment To The United States Constitution
Plaintiffs state six claims in their complaint: (1 ) deprivation of the fundamental right to marry; (2) depriva tion of a liberty intere st in valid m arriages enac ted in other states ; (3) deprivation of autonomy, fa mily privacy, and asso ciation; (4) deprivati on of the funda mental right to travel; (5) discrimination on the basis of sexual orientation; and (6) discrimination on the
26

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 27 of 45
basis of gender. The only clai ms discussed by all parties’ br iefings are those concerning a fundamental right to m arry, the right to travel, discrim ination based on sexual orientation, and discrimination based on gender. The Court discusses below the claims and issues that have been fully briefed.
1. Alleged Deprivation Of The Fundamental Right To Marry The Due Process Clause of the Fourteenth Am endment “forbids the governm ent to infringe certain ‘fundamental’ liberty interests at all, no m atter what process is provided, unless the infringement is narr owly tailored to serv e a compelling state intere st.” Reno v. Flores , 507 U.S. 292, 302 (1993); see also Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (“The [Due Process] Clause also provides heightened protection against government interference with certain fundamental rights and liberty inte rests.”). The first step in this substantive due process analysis is to determine if an asserted right or liberty interest is fundamental. See Glucksberg, 521 U.S. at 719-20. T he Due Process Clause safeguards “funda mental rights and lib erties which are, objectively, deeply roo ted in th is Nation’s history and tradition and im plicit in the c oncept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Id. at 720 (internal citations and quotation marks omitted). As to the right to m arry, th e Suprem e Court has been clear : “the ‘liber ty’ spe cially protected by the Due Process Claus e includes the right[] to m arry . . . .” Id. “The freedom to marry has long been recognized as one of the vita l personal rights essential to the orderly pursuit of happiness by free m en. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existen ce and survival.” Loving v. Virginia , 388 U.S. 1, 12 (1967) (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)). “[O]ur past decisions make clear that the right to marry is of fundamental importance . . . .” Zablocki v. Redhail, 434 U.S. 374, 383 (1978).
27

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 28 of 45
Separate Defendants argue that p laintiffs’ ass erted right to m arry does not provide “a careful description of the asserted fundam ental liberty interest,” as required by Glucksberg, 521 U.S. at 721. Separate Defendants m aintain that pl aintiffs must describe their asserted right as one for “sam e-sex m arriage,” and that any such right cannot be fundam ental and, therefore, cannot get heightened protection because sam e-sex marriage is not deeply r ooted in this nation’s history and tradition. This argum ent is unpersuasive for several reasons. As the Suprem e Court has stated, “the right to m arry is of f undamental importance for all individuals.” Zablocki, 434 U.S. at 384. The Suprem e Court’s previous d ecisions heralding the “right to m arry” as fundamental do not describe that ri ght with any more specificity. See Kitchen, 755 F.3d at 1210 (“In numerous cases, the Court has discussed the right to marry at a broader level of generality . . . .”). In fact, even Glucksberg—in wake of its “careful d escription” requirement—described an unrestricted “right to marry” as fundamental. 521 U.S. at 719-20.
Further, in Loving, the Suprem e Court held unconsti tutional law s tha t proh ibited interracial marriage because such laws violated “the freedom of choice to marry.” 388 U.S. at 4. As the Suprem e Court noted in la ter ca ses, th e Loving Court s truck these anti-miscegen ation laws despite the fact that our nation’s history and tradition rejected outright interracial marriages. See Lawrence, 539 U.S. at 577-78 (“[N]eith er history nor tradition co uld save a la w prohibiting miscegenation from constitutional attack.”); Planned Parenthood of Se. Pa. v. Casey , 505 U.S. 833, 847-48 (1992) (“Marria ge is m entioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19t h Century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference”).
Although Loving involved a heterosexual co uple, Supreme Court preceden ts also characterize the “righ t to m arry” as distin ct and independent from th e right to procreate,
28

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 29 of 45
revealing th at the “r ight to marry” does not inherently hinge on a cou ple’s ability to produ ce children. See Kitchen , 755 F.3d at 1211; see also Turner v. S afley, 482 U.S. 78 (1987) (invalidating a prison r ule tha t bar red inm ates who had not procreated from m arrying and holding that inmates could enjoy “[m]any important attributes of marriage,” such as “expressions of e motional support and public comm itment,” “spiritual significan ce,” and “receipt of government benefits”).
These cases underscore that the drafters of the Fifth and Fourteenth Am endments “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. A s the Constituti on endures, persons in every generation can invoke its principles in th eir own search for greater freedom .” Lawrence, 539 U.S. at 579. Accordingly, th is Co urt f inds th at th e Jernigans and A ustins have adequately described their asse rted righ t to m arry. Directed by Suprem e C ourt and E ighth Circuit precedents, this Court co ncludes that the right to m arry is a fundam ental right. Glucksberg, 521 U.S. at 720; Safley v. Turner , 777 F.2d 1307, 1313 (8th Cir. 1985) (“It is well settled that the decision to enter into a marital relationship is a fundamental human right.”) aff’d in part, rev’d in part, 482 U.S. 78, 100 (1987) (“[T]he judgment of the Court of Appeals striking down the Missouri marriage regulation is affirmed . . . .”).
Because the Arkansas marriage laws restrict the Jernigans and Austins’ fundamental right to marry, these laws are subject to strict scrutiny. This standard for examining the Arkansas laws at issue, w hich signifi cantly interfere with a f undamental right, is cons istent with what the Supreme Court has said in past cases. Nevertheless, “[b]y reaffirming the fundamental character of the right to m arry, [t he Court] do[es] not m ean to suggest that every state regulation which relates in any way to th e incidents of or prerequisites for marriage must be subjected to rigorous
29

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 30 of 45
scrutiny. To the contrary, reasonable regulati ons that do not signifi cantly interfere with decisions to enter into the marital relationship may be legitimately imposed.” Zablocki, 434 U.S. at 386. In Zablocki, in his concurrence, Justice Stewart explained that a St ate may significantly interfere with or even p rohibit marriage if the regulation doing so passes strict scrutiny: “for example, a State m ay legitimately say that no one can m arry his or her sibling, that no one can marry who is not at least 14 years old, that no one can m arry without first passing an examination for venereal disease, or that no one can m arry who has a living husband or wife.” Id. at 392 (Stewart, J., concurring); see also Bruning , 455 F.3d at 867. Justice Stewart also recognized, however, that “just as surely, in regulating the intim ate hum an relationship of marriage, there is a limit beyond which a State may not constitutionally go.” Zablocki, 434 U.S. at 392 (Stewart, J., concurring); see also Lawson , 2014 W L 5810215, at *6-7 (discussing other state regulations on marriage examined and upheld by the Supreme Court).
This Court finds that the Arkansas marriage laws at issue here overstep this constitutional limit. The Due Process Clause prevents the government fr om infringing upon a fundam ental right “unless the inf ringement is narrowly tail ored to serve a com pelling state interest.” Reno, 507 U.S. at 302. Likew ise, under the Equal Protec tion Clause, if a state m akes a classification that “impinge[s] upon the exercise of a fundam ental right,” then the state mu st “demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.” Plyler v. Doe, 457 U.S. 202, 217 (1982).
Strict scru tiny “entail[s] a m ost searching examination” and requires “the m ost exact connection between justifica tion and classification.” Gratz v. Bolling er, 539 U.S. 244, 270 (2003) (internal quotations om itted). Under this standard, the govern ment “cannot rest upon a generalized assertion as to the clas sification’s relevance to its goals.” Richmond v. J.A. Croson
30

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 31 of 45
Co., 488 U.S. 469, 500 (1989). Heightened scrutiny requires the government’s “justification [to]
be genuine, not hypothe sized or invented post hoc in response to litigation.” United States v.
Virginia, 518 U.S. 515, 533 (1996). “The pur pose of the narrow tailoring requirem ent is to
ensure that the means chosen fit the compelling goal so closely that there is little or no possibility
that the m otive for the classification was illegitim ate.” Grutter v. Bollinger , 539 U.S. 306, 333
(2003).
Separate Defendants suggest several reasons to uphold Arkansas’s marriage laws:
(1) the basic prem ise of the referendum pr ocess, which is that po litical powe r flows from the people to their governm ent on issues of vital im portance to the public; (2) advancem ent of procreati on by encouraging the developm ent o f biologically procreative rela tionships; (3 ) ensu ring the be st inte rests of child ren through laws where children born as a result of a union between a m an and a woman are cared for by their biolog ical pa rents in a stable f amily environment; (4) stability, uniformity, and continuity of laws in the face of an ongoi ng public and political debate about the nature and ro le of marriage; (5) preservation of the public purposes and social norm s linked to the historical and deeply-rooted meaning of m arriage; and (6) a cautious , historical approach to governm ental social experimentation as democratic, cultural and scientific discussions proceed. (Dkt. No. 28, at 8-9).2
Several of these reason s are p rudential. Separate Defendants’ first and sixth rationales
laud the state’s referendum process, principles of federalism, and the im portance of dem ocratic
decision m aking for “social experi mentation,” and the fourth rati onale points to the need for
stability am idst the “ongoing public and political debate.” T his Court does not take lightly a
request to d eclare th at a state law is unconstituti onal. Statutes are pass ed by the du ly elected
representatives of the people. It is not on a whim that the Court supplants the will of the voters
2 Separate Defendants claim that, in addition to these identified state interests, “any other conceivable ration al ba sis[] is suf ficient to af firm constitutionality of Am endment 83 and Act 144 of 1997” (Dkt. No. 28, at 10). Because the Cour t determines a higher degree of scrutiny is required, th e Court declines to addr ess justif ications the State has not specifically advanced in support of the Arkansas laws.
31

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 32 of 45
or the decisions of the legislatur e. Even so, these interests do not address any sp ecific reasons for the m arriage laws at issue; ins tead, they represent the type of generalized, post hoc , and litigation-reactive justifications that strict scrutiny disallows.
Further, although im portant in other contex ts, these rationales can neither justify infringement of funda mental rights nor strip this Court of the “‘du ty to decide all cases within [its] jurisdiction that are brought before [it], including controversia l cases that arouse the m ost intense feelings in the litigan ts.’” Kitchen, 755 F.3d at 1228 (quoting Pierson v. R ay, 386 U.S. 547, 554 (1 967)). The Court rem inds Separate De fendants that the Constitu tion is also an expression of the people’s will, and these rationales contradict the very fabric and structure of the Constitution’s protections of individual rights against majoritarian and go vernmental overreach. The fact that Am endment 83 was adopted by referendum does not immunize it from federal constitutional scrutiny. As the Supreme Court has explained:
The very purpose of a Bill of Rights was to withdraw cer tain subjec ts f rom the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as lega l 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 assem bly, and other fundam ental rights m ay not be subm itted to vote; they depend on the outcome of no elections. W. Va. State Bd. of Educ. v. Barnette , 319 U.S. 624, 638 (1943); see also City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 448 (1985) (“It is plai n that the electorate as a whole, whether by referendum or otherwise, could not order city action violative of the Equal Protection Clause, and the City m ay not avoi d the strictu res of th at Clause by deferring to the wishes or objections o f som e fraction of th e b ody politic. ” (citation o mitted)); Little Rock Sch. Dist. v. Pulaski Cnty. Special Sch. Dist. No. 1 , 839 F .2d 1296, 1303 (8th Cir. 1988); Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 981 (S.D. Ohio 2013).
32

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 33 of 45

Likewise, Separate Defendants’ fourth rationa le—stability, uniformity, and continuity of

laws—provides no rationale at all where those laws are

unconstitu tional. See Palmer v.

Thompson, 403 U.S. 217, 226 (1971) (“Citizens m

ay not be compelled to forgo their

constitutional rights because officials fear public hostility . . . .”).

As for Separate Defendants’ federalis m argum ents, the Court noted above Windsor’s

stance: “State laws def ining and re gulating marriage, of course, m ust respect th e constitutional

rights of persons, but, subject to t hose guarantees, regulation of domestic relations is an area that

has long been regarded as a virtually exclusive province of the States.” Windsor, 133 S. Ct. at

2691. Further, “[o]ur federalist st ructure is designed to ‘secure[] to citizens the liberties that

derive from the diffusion of sovereign power’ rather than to lim it f undamental freedom s.”

Kitchen, 755 F.3d at 1229 (quoting New York v. United States , 505 U.S. 144, 181 (1992)).

Arkansas undoubtedly m ay de fine and regulate th e “incidents, benef its, and obligations” of

domestic relationships within its borders, Windsor, 133 S. Ct. at 2692, but these regulations m ust

comport with the United States Constitu tion, id., and it is this C ourt’s duty to exam ine

Arkansas’s m arriage la ws against the United States Cons titution’s guarantee of individua l

liberties and protection of fundamental rights.

Separate Defendants’ other rationales fo cus on connections between m arriage and

procreation and the intere sts of children. These rationales run afoul of the basic tenets of the

state’s marriage system, one that does not distinguish procreativ e from non-procreative couples.

Further, the Suprem e Court has he ld that m arried couples have a right not to proc reate and that

the Constitution protects the right of individuals to m arry regardless of their ability or desire to

procreate, including those who are elderly, infertile, and incarcerated. See Lawrence, 539 U.S. at

604 (Scalia, J., dissenting) (“[W]hat justification could there possibly be for denying the benefits

33

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 34 of 45
of marriage to hom osexual couples exer cising the liberty protected by the Constitution? Surely not the encouragem ent of procreation, since the sterile and the elderly are allowed to m arry.” (quotations om itted)); Turner, 482 U.S. at 96 (declaring “ a cons titutionally protec ted m arital relationship in the p rison contex t” even when a coup le m ay not birth a child); Griswold v . Connecticut, 381 U.S. 479, 485-86 (1965) (holding that ma rried couples have a right to use contraception).
According to Separate Defendants, Arkansas ’s m arriage laws prevent consenting adult same-sex couples from m arrying b ecause homose xuals cannot procreate. But, as illu strated above, Arkansas law allows others who cannot proc reate to marry. As the Tenth Circuit stated, “[s]uch a mism atch between th e class iden tified by a challenge d law and the characteristic allegedly re levant to th e sta te’s interest is precisely the type of im precision prohibited by heightened scrutiny.” Kitchen, 755 F.3d at 1219 (citing Shaw v. Hunt , 517 U.S. 899, 908 (1996)). Further, “[a] state may not impinge upon the exercise of a fundamental right as to some, but not all, of the individuals who share a characteristic urged to be relevant.” Id. This is the bedrock of the Constitu tion’s guaran tee of due process and equal pro tection, and th e Supreme Court has acknowledged such:
The framers of the Constitu tion knew, and we should not forget today, that there is no m ore effective practical gu aranty against arbitrary and unreasonable government than to require that the pr inciples of law which officials would impose upon a m inority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to w hom they will appl y legislation and t hus to escape the political retribution that m ight be vi sited upon them if larger numbers were affected. Eisenstadt v. Baird, 405 U.S. 438, 454 (1972). Separate Defendants’ third rationale—that th e s tate’s m arriage laws “ensur[e] the best interests of children” because “children born as a result of a union between a man and a wom an
34

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 35 of 45
are cared for by their biological parents in a stab le f amily env ironment”—fails f or seve ral reasons. First, Separate Defendants have not explained how allowing sam e-sex m arriage between two consenting adults will at all prevent heterosexual spouses from caring for their biological children. This rationa le also ignores Arkansas’s a doption la ws, which decla re th at even “[a]n unm arried adult” m ay adopt and that “any individual may be adopted.” Ark. Code Ann. §§ 9-9-204, -203. Moreover, Arkansas law currently allows individuals in sam e-sex relationships to adopt. See Ark. Dep’t of Human Servs. v. Cole , 380 S.W.3d 429, 431, 443 (Ark. 2011); cf. Dep’t of Human Servs. & Child Welfa re Agency Review Bd. v. Howard , 238 S.W.3d 1 (Ark. 2006). In Cole, the Arkansas Suprem e Court struck down as unconstitutional Arkansas Code Annotated § 9-8-304, which prohibited individuals “cohabi ting with a sexual partner outside of a m arriage th at is va lid u nder th e Ar kansas Cons titution and the laws of this sta te” from adopting or serving as a foster parent. Cole, 380 S.W.3d at 431 (quoting the language of Ark. Code Ann. § 9-8-304(a)). This statute “a pplie[d] equally to cohabiting oppo site-sex and same-sex individuals.” Id. (quoting the language of Ark. Code Ann. § 9-8-304(b)). Further, in Howard, the Arkansas S upreme Court held as unc onstitutional on separa tion of powers grounds a regu lation of the Child W elfare Agency Review Board that s tated, in p ertinent pa rt, “[N]o person m ay serve as a foster parent if any adult m ember of that person’s household is a homosexual.” Howard, 238 S.W.3d at 3.
Separate Defendants’ fifth ra tionale—preserving the “pu rposes and so cial no rms linked to the historical and deeply-rooted meaning of marriage”—also appears to generalize their stated interests in procreatio n and child rearing. This rationale neither indicates any separate “purposes” for banning same-sex marriage between consenting adults apart from those discussed above nor shows how same sex marriage endangers these unspecified purposes. As a standalone
35

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 36 of 45
interest, “‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of sam e-sex couples.” Lawrence, 539 U.S. at 601 (Scalia J., dissenting). “Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insuf ficient to sa tisfy [ even] ration al ba sis rev iew u nder the Eq ual Prote ction Clause,” much less strict scrutiny. Lawrence, 539 U.S. at 582.
As dem onstrated, a most searchin g exam ination of Separate Defendants’ proposed reasons for Arkansas’s marriage laws reveals that these laws are not narrowly tailored to achieve a compelling state interest. The bases Sepa rate Defendants suggest for upholding Am endment 83 and the challenged statutes, prim arily encouraging procreation and ensu ring the best interests of children, in add ition to the laws’ m ismatched means, do not withs tand strict scru tiny. This Court finds that the principal purpose of Am endment 83 and th e challenged statutes “is to impose inequality, not f or other reasons like governmental efficiency.” Windsor, 133 S. Ct. at 2694. Amendment 83 of the Arkansas Constitu tion and Arkansas Code Annotated § § 9-11-107, 9-11-109, and 9-11-208 unconstitutionally deny c onsenting adult sam e-sex couples their fundamental right to m arry in violation of th e Due Process Clause a nd the Equal Protection Clause of th e Fourte enth Am endment to the Un ited S tates Constitu tion. Theref ore, this Court denies Separate Defendants’ m otion to dism iss and grants plaintiffs’ m otion for summ ary judgment as to plaintiffs’ claim that the Arkans as laws at issue deny consenting adult sam e-sex couples their fundam ental right to marry in violation of the Du e Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Given the Court’s determ ination on this issue, the Court declin es to reach plaintiffs’ claim alleging a liberty interest protected by the Due Process and the Equal Protection Clauses of the Fourteenth Am endment to the United Stat es Constitu tion (Dkt. No. 16, at 14-15), a claim
36

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 37 of 45
which neith er pa rty spe cifically b riefed in its motions, and plaintiffs’ cl aim alleging a right to autonomy, fam ily privacy, and association under the Due Process Clause of the Fourteenth Amendment to the Un ited S tates Constitu tion (Dkt. No. 16, at 15-16), a claim Separate Defendants’ addressed in their pending motion to dism iss (Dkt. No. 18, at 21-23) but to which plaintiffs did not respond specifically. The Court dismisses these two claims.
2. Alleged Deprivation Of The Fundamental Right To Travel The United States Supreme Court has declared that “the constitutional right to travel from one State to another is firm ly em bedded in [this country’s] jurisprudence.” Saenz v. Roe , 526 U.S. 489, 498 (1999). This right to travel has three com ponents. As the Supreme Court has stated: [The right to travel] protects the right of a citizen of one State to en ter and to leave anoth er Sta te, the righ t to be tre ated as a welcom e visito r rathe r than an unfriendly alien when tem porarily presen t in the second State, and, for those travelers who elect to b ecome per manent residents, the right to be trea ted like other citizens of that State. Id. at 500. “Because travel is a fun damental right, ‘any classification which serv es to penalize the exercise of that righ t, unless shown to be necessary to prom ote a compelling governmental interest, is u nconstitutional.’” Minn. Senior Fed’n v. United States , 273 F.3d 805, 809 (8th Cir. 2001) (emphasis in original) (quoting Shapiro v. Thompson, 394 U.S. 618, 634 (1969)). In this cas e, the Jernigans argue that Arkansas has restricted their right to travel by not recognizing the m arital status they obtained in Iowa. As an initial m atter, as the Court understands the undisputed facts, th e Jernigans traveled to Iowa to m arry but were at all tim es citizens and residents of Arkansas. For this reason, the Co urt questions whether the Jernigans have standing to raise this clai m. Regardless, the Jern igans ha ve not shown that Arkansas’s marriage laws treat ho mosexual couples who are new citiz ens or attempting to bec ome citizens
37

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 38 of 45
of Arkansas any differently than the State tr eats hom osexual couples who were citizens of Arkansas. The Jernigans have presented no evid ence that defendants have applied Arkansas’s marriage laws to reco gnize the h omosexual m arriages of other citizens while refusing to recognize th e Jernigans ’ m arriage. Further, the Jernigans were existin g citizens of Arkansas prior to receiving their marriage license in Io wa. Arkansas has refused to recognize the Jernigans’ m arriage because it is a sam e-sex m arriage, not because of the individua ls’ citizenship.
The Jernig ans also hav e failed to sh ow that Ark ansas’s m arriage laws v iolate the other components of the right to travel. The Jernig ans do not argue that Arkansas’s m arriage laws impose any actual obstacle on travel ling to Arkansas. For exam ple, the Supreme Court has held that it was imperm issible to deter through durati onal residency requirem ents the m igration of needy persons by im posing a year-long prohibition on welfare assistance, see Shapiro, 394 U.S. 618, or on hospital care, see Mem orial Hospital v. Maricopa County , 415 U.S. 250 (1974). When a new resident receives benefits at the sam e level as other residents of the state, it is not a penalty that those benefits are less generous than be nefits in other states. See Minn. Senior Fed’n, 273 F.3d at 810. The fact that Arkansas’s marriage laws treat the Jernigans like other homosexual citizens of the s tate o f Arkansas proves that these laws do not im permissibly penalize the Jernigans’ right to travel. Therefor e, the Court grants Separate Defendants’ m otion to dism iss and denies plaintiffs ’ motion for summary judgm ent as to plaintiffs’ claim s that Arkansas’s marriage laws deprive them of their fundamental right to travel.
3. Alleged Discrimination On The Basis Of Sexual Orientation Plaintiffs assert that Arka nsas’s laws defining m arriage as between a m an and a wom an violate the Equal Protection Clau se by discrim inating on the basis of sexual orientation. As
38

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 39 of 45
discussed above, the Court agrees with Separate Defendants that Bruning is controlling law with respect to this claim.
In Bruning, the Eigh th Circuit he ld that “the Supreme Court has never ruled that sexual orientation is a suspect class ification for equa l protection purposes” and then applied rationalbasis review. Bruning, 455 F.3d at 866-67; see Rosenbrahn, 2014 WL 6386903, at *11; Lawson, 2014 WL 5810215, at *5. Thus, the Court m ust find sexual orientation not to be a suspect class and apply rational-basis review to this claim. The Eighth Circuit also expressed clearly its belief that laws prohibiting sam e-sex marriage would pa ss rational-basis review based on m any of the same rationales advocated by Separate Defendants here. Bruning, 455 F.3d at 867-68; see Lawson, 2014 W L 5810215, at *5. Acco rdingly, this Court is bound to grant Separate Defendants’ m otion to dism iss and deny plaint iffs’ m otion for su mmary judgm ent as to plaintiffs’ claim of discrimination on the basis of sexual orientation.
4. Alleged Discrimination On The Basis Of Gender Plaintiffs assert that Arka nsas’s laws defining m arriage as between a m an and a wom an violate the Equal Protection Cl ause by discrim inating on the ba sis of gender. Separate Defendants again primarily argue that this claim is foreclosed by the Eighth Circuit’s decision in Bruning, 455 F.3d 859. The Court disagrees. As discussed above, Bruning does not control with respect to this cla im. See Lawson, 2014 WL 5810215, at *5 (“ Bruning did not consider— because it was not asked to cons ider—whether there is a cons titutional right to sam e-sex marriage, either b ecause laws forbid ding it bur den a fundam ental right or draw imperm issible distinctions based on gender.”). Separate Defendants also argue in passing that plain tiffs were not treated differently on the basis of their gender, but they do not develop this argum ent. The Court disagrees and finds
39

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 40 of 45
that Arkansas’s restriction on sam e-sex m arriage is a classification on the basis of gender because on ly m en m ay m arry m en and only w omen m ay m arry women. See Latta , 2014 WL 4977682, at *14 (Berzon, J., concurring) (“But for their gender, plaintiffs would be able to marry the partners of their choice.”); Rosenbrahn, 2014 WL 6386903, at *10 (“Because South Dakota’s law, for example, prohibits a m an from m arrying a m an but does not pr ohibit that m an from marrying a wom an, the com plaint has sta ted a plau sible claim f or relief .” (citatio n om itted)); Lawson, 2014 W L 5810215, at *8 (“The State’s perm ission to m arry depends on the genders of the participants, so the restriction is a gender-based classification.”).
That Arkansas’s restriction on sa me-sex m arriage im poses i dentical dis abilities on m en and women does not foreclose a claim that the laws discriminate based on gender. In Loving, the Supreme Court rejected the argument that anti-miscegenation statutes did not discriminate based on race because the statu tes applied equally to African Americans and Caucasians. Loving, 388 U.S. at 8. That ra tionale applies here as well. See Latta, 2014 WL 4977682, at *17 (Berzon, J., concurring) (“[I]t is simply ir relevant that the s ame-sex marriage prohibitions pr ivilege neither gender as a whole or on average. L aws that strip individuals of their rights or restrict personal choices or opportunities solely on the basis of the individuals’ gende r are sex discriminatory . . . .”).
Restrictions based on gender are subject to interm ediate scrutiny. “The burden of justification is dem anding and it re sts entirely on the State .” Virginia, 518 U.S. at 533. “The State m ust show at lea st tha t the [ challenged] classification serves important governm ental objectives and that th e dis criminatory m eans em ployed are subs tantially re lated to the achievement of those objectives.” Id. (quoting Miss. Univ. for Women v. Hogan , 458 U.S. 718,
40

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 41 of 45
724 (1982)) (internal q uotation m arks om itted). “The ju stification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id.
For the reasons discussed above regarding stri ct scrutiny, Separate Defendants’ proposed reasons for Arkansas’s m arriage laws do not satisfy Separate Defendants’ burden under intermediate scrutiny. Accord ingly, the Court finds that Am endment 83 of the Arkansas Constitution and Arkan sas Code Annotated §§ 9-11-10 7, 9-11-109 , and 9-11 -208 im pose unconstitutional classifications on the basis of gende r in violation of the Equal Protection Clause of the Fourteenth Am endment to the United Stat es Constitution. The Court denies Separate Defendants’ motion to dismiss and grants plaintiffs’ motion for summary judgment on plaintiffs’ discrimination on the basis of gender claim.
IV. Remedy The Court declares that Arkansas ’s m arriage laws—Am endment 83 of the Arkansas Constitution and Arkans as Code An notated §§ 9-11-107, 9 -11-109, an d 9-11-208—violate th e Due Process Clause and Equal Protection Claus e of the Fourteen th Am endment to the United States Constitution by precluding sam e-sex couples from exercising their fundam ental right to marry in Arkansas, by not recognizing valid same-sex marriages from other states, and by discriminating on the basis of gender. The Jerniga ns and Austins r equest that th is Court enjoin defendants from enforc ing Amendment 83 and Arkansas Code Annotated §§ 9-11-107, 9-11-109, and 9-11-208 in a manner that denies plaintiffs the ability to marry in Arkansas or to have their valid out-of-state marriages recognized in Arkansas. The Jernigans separate ly request the Court to enter an injunction against Richard W eiss in his official cap acity as Director of the Ar kansas DFA and George Hopkins in his official capacity as Executive Dir ector of the ATRS. Spe cifically, the Jernigans,
41

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 42 of 45
who are validly m arried under Iowa law, ask this Court to enjo in Director W eiss from denying the Jernigans’ joint tax returns and to enjoin Executive Dire ctor Hopkins from denying spousal benefits to Pam Jernigan according to the ATRS retirement plan.
“The standa rd f or granting a permanent injun ction is ess entially the sam e as for a preliminary injunction, except that to obtain a permanent injunction the m ovant m ust attain success on the m erits.” Bank One, Utah v. Guttau , 190 F.3d 844, 847 (8th Cir. 1999). W hen determining whether to grant a motion for a preliminary injunction, this Court considers: (1) the threat of irreparable harm to the movant; (2) the balance between the harm to the movant and the injury that granting an injunction would cause other interested parties; (3) the public interest; and (4) the m ovant’s likelihood of success on the m erits. Dataphase Sys. Inc. v. CL Sys. , 640 F.2d 109, 114 (8th Cir. 1981).
The Court finds that the Jernigans and Austins are entitled to permanent injunctive relief. As stated above, this Court declares that Ar kansas’s m arriage law s violate the Fourteenth Amendment to the United Sta tes Constitu tion. Theref ore, the J ernigans and Austins h ave attained success on the merits as required for obtaining a perm anent injunction. See Guttau, 190 F.3d at 847. The Court also finds that the Jernigans and Austins have m et the other Dataphase factors. The Jernigans and Austins’ inability to exercise their fundament al right to marry has caused them irreparable harm which out weighs any injury to defendants. See Elrod v. Burns , 427 U.S. 347, 373 (19 76) (ho lding that dep rivation of constitu tional righ ts “un questionably constitutes irreparable harm.”). Moreover, as th e Eighth Circuit has state d, “it is always in th e public interest to protect constitutional rights.” Phelps-Roper v. Nixon , 545 F.3d 685, 690 (8th Cir. 2008). Therefore, the Jernigans and Aus tins have met their burden for issuance of a permanent injunction.
42

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 43 of 45

Separate Defendants arg ue that the Jernigan s an d Austins may not seek to enjoin state

officials from enforcing state laws. In suppor t of that argum ent, Separate Defendants cite

Massachusetts State Grange v. Benton , 272 U.S. 525 (1926). “[N]o injunction ought to issue

against officers of a State clothed with authority to enforce the law in question, unless in a case

reasonably free from doubt and when necessary to prevent great and ir reparable injury.” Id. at

527. The Court is satisf ied that the defendants are clothed with authority to enforce the laws in

question, th at this case is reasonab ly free from doubt, and that an in junction is necessary to

prevent the irreparable injury to the Jernigans and Austins.

In accordance with the Suprem e Court’s issuance of a stay in Herbert v. Kitchen, 134 S.

Ct. 893 (2014), of a district c ourt’s injunction against enfor cement of state m arriage laws

prohibiting sam e-sex marriage, th is Court stays execution of this injunction pending the final

disposition of any appeal to the Eighth Circuit Court of Appeals. If no timely notice of appeal is

filed, this injunction shall take immediate effect upon the expiration of the time for filing a notice

of appeal. See, e.g., Bostic v. Rainey, 970 F. Supp. 2d 456, 484 (E.D. Va.), aff’d, 760 F.3d 352

(4th Cir. 2014), cert. denied, 135 S. Ct. 286 (2014); Bishop v. United States ex rel. Holder , 962

F. Supp. 2d 1252, 1297 (N.D. Okla.), aff’d, 760 F.3d 1070 (10t h Cir. 2014), cert. denied, 135 S.

Ct. 271 (2014).

V. Conclusion

For the foregoing reasons, the Court grants

in part and denies in part Separate

Defendants’ motion to dismiss (Dkt. No. 17) and plaintiffs’ motion for summary judgment (Dkt.

No. 24). The Court grants in pa rt plain tiffs’ re quest for de claratory and injunctive relief and

stays execution of the injunction pending the final disposition of any timely appeal to the Eighth

43

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 44 of 45

Circuit Court of Appeals or until th e time for filing a notice of appeal expires. Specif ically, the

Court:

1. Finds that all defendants were properly a nd tim ely served with plaintiffs’ am ended

complaint;

2. Determines that this Court should not abstain from exercising its jurisdiction;

3. Determines that Separate Defendants are proper defendants in this suit and declines to

dismiss them as immune from suit under the Eleventh Amendment;

4. Determines that Baker v. Nelson, 409 U.S. 810 (1972), does not foreclose this Court’s

consideration of the merits of plaintiffs’ claims;

5. Determines that Citizens for Equal Protection, Inc. v. Bruning, 455 F.3d 859 (8th Cir.

2006), does not foreclose this Court’s consid eration of the m erits of certain of

plaintiffs’ claims;

6. Determines that Am endment 83 of the Arkans as Constitu tion and Ar kansas Code

Annotated §§ 9-11-107, 9-11- 109, and 9-11-208 restrict th e Jernigans and Austins’

fundamental right to m arry and that the arguments advanced by Separate Defendants

in support of such laws do not surviv

e strict scrutiny, m eaning the laws

unconstitutionally deny consenting adult sam e-sex couples their f undamental right to

marry in vio lation of the Due Proces s Clause and the Equal Prot ection Clause of the

Fourteenth Amendment to the United States Constitution;

7. Declines to reach and dism isses plaintiffs’ claims alleging a liberty interest protected

by the Due Process and the Equal P rotection Clauses of the Fourteen th Amendment

to the Unite d State s Co nstitution a nd cla ims alleg ing a right to auto nomy, f amily

44

Case 4:13-cv-00410-KGB Document 40 Filed 11/25/14 Page 45 of 45
privacy, and association under the Due Proce ss Clause of the F ourteenth Amendment to the United States Constitution; 8. Determines that, becau se Arkansas’s m arriage laws treat the Jernigan s like other homosexual citizens of the state of Arkansas , the laws do not im permissibly penalize the Jernigans’ right to travel; 9. Determines that, based on the holding of Citizens for E qual Protection, Inc. v. Bruning, 455 F.3d 859 (8th Cir. 2006), and certain of the argum ents advanced here, the Court must find sexual orientation not to be a suspect class, apply rational-basis review to that claim, and abide by the Eighth Circuit precedent clearly expressing that such laws would pass rational-basis review based on m any of the sam e rationales advocated by Separate Defendants here, Bruning, 455 F.3d at 867-68; see Lawson , 2014 WL 5810215, *5; 10. Determines that Am endment 83 of the Arkans as Constitu tion and Ar kansas Code Annotated §§ 9-11-107, 9-11-109, and 9-11-208 are restrictions based on gender and that the arg uments advanced by Separate Defendants in su pport of such laws do not survive interm ediate scrutiny, m eaning these laws im pose unconstitutional classifications on the basis of gender in vi olation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
It is so ordered this 25th day of November 2014.

____________________________________

Kristine G. Baker

United

States District Judge

45

 
 Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 1 of 15
United States Court of Appeals
For the Eighth Circuit ___________________________
No. 15-1022 ___________________________
Rita Jernigan; Pam Jernigan; Becca Austin; Tara Austin
lllllllllllllllllllll Plaintiffs - Appellees
v.
Larry Crane, In his official capacity as Circuit and County Clerk of Pulaski County, Arkansas, and his successors in interest
lllllllllllllllllllll Defendant
Dustin McDaniel, In his official capacity as Attorney General for the State of Arkansas, and his successors in interest; Richard Weiss, In his official capacity as
Director of the Arkansas Department of Finance and Administration, and his successors in interest; George Hopkins, In his official capacity as Executive Director of the Arkansas Teacher Retirement System, and his successors in interest
lllllllllllllllllllll Defendants - Appellants
------------------------------
North Carolina Values Coalition; Liberty, Life, and Law Foundation; Dr. Paul McHugh; Robert P. George; Sherif Girgis; Liberty Counsel; Eagle Forum Education and Legal Defense Fund
lllllllllllllllllllllAmici on Behalf of Appellant(s)
National Women's Law Center; Connecticut Women's Education and Legal Fund; Legal Momentum; Legal Voice; National Association of Women Lawyers;
National Partnership for Women and Families; Women's Bar Association of the District of Columbia; Women's Bar Association of Illinois; Women's Law Project;
Williams Institute Scholars of Sexual Orientation and Gender Law; Howard
Appellate Case: 15-1022 Page: 1 Date Filed: 08/11/2015 Entry ID: 4304552

Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 2 of 15
University School of Law Civil Rights Clinic; American Sociological Association; American Psychological Association; Arkansas Psychological Association;
American Psychiatric Association; American Association for Marriage and Family Therapy; American Psychoanalytic Association; National Association of Social Workers; National Association of Social Workers Missouri, Arkansas, South Dakota, and Nebraska Chapters; Leadership Conference on Civil and Human Rights; President of the House of Deputies of the Episcopal Church and the
Episcopal Bishops of Missouri and Nebraska; General Synod of the United Church of Christ; Reconstructionist Rabbinical Association; Reconstructionist Rabbinical College and Jewish Reconstructionist Communities; Union for Reform Judaism;
Unitarian Universalist Association; Affirmation; Covenant Network of Presbyterians; Friends for Lesbian, Gay, Bisexual, Transgender, and Queer Concerns; Reconciling Ministries Network; Reconciling Works: Lutherans for Full Participation; Parity; Muslims for Progressive Values; More Light Presbyterians; Methodist Federation for Social Action; Family Equality Council; COLAGE; Constitutional Law Scholars; Historians of Marriage; Historians of Antigay Discrimination; 24 Employers; Gary J. Gates; Leadership Conference Education Fund; Americans United For Separation of Church and State; Religious Institute, Inc.
lllllllllllllllllllllAmici on Behalf of Appellee(s) ____________
Appeal from United States District Court for the Eastern District of Arkansas - Little Rock
____________
Submitted: July 8, 2015 Filed: August 11, 2015
[Published] ____________
Before WOLLMAN, SMITH, and BENTON, Circuit Judges. ____________
PER CURIAM.
-2-
Appellate Case: 15-1022 Page: 2 Date Filed: 08/11/2015 Entry ID: 4304552

Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 3 of 15
Plaintiffs are two same-sex couples seeking to marry in Arkansas or to have their marriage in another state recognized in Arkansas. They also seek state benefits incident to marriage. The district court1 granted Plaintiffs’ motion for summary judgment, finding laws denying them the right to marry (in Arkansas Constitution Amendment 83 and Arkansas Code Annotated §§ 9-11-107, 9-11-109, and 9-11-208) violate the U.S. Constitution’s guarantees of due process and equal protection. In addition to a declaratory judgment, the court issued a permanent injunction, but stayed it pending appeal. Arkansas appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
While the appeal was pending, the Supreme Court decided Obergefell v. Hodges, 135 S. Ct. 2584 (2015), abrogating Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). This court asked the parties for their positions on the proper disposition of this case. Arkansas filed a suggestion of mootness and a motion to vacate the district court’s judgment.
Arkansas no longer disputes the merits of the district court’s ruling. The challenged laws are unconstitutional. As Obergefell concluded:
[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson [, 409 U.S. 810 (1972),] must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.
1The Honorable Kristine G. Baker, United States District Judge for the Eastern District of Arkansas.
-3-
Appellate Case: 15-1022 Page: 3 Date Filed: 08/11/2015 Entry ID: 4304552

Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 4 of 15
Obergefell, 135 S. Ct. at 2604-05. The Supreme Court also noted,
[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
Id. at 2607.
Arkansas suggests that Obergefell moots this case. But the Supreme Court specifically stated that “the State laws challenged by Petitioners in these cases are now held invalid.” Id. at 2605 (emphasis added). Cf. United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 477-78 (1995) (limiting relief to the parties before the Court and noting “we neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants”). The Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee—not Arkansas. See Campaign for S. Equal. v. Bryant, 2015 WL 4032186, at *2 (5th Cir. July 1, 2015) (ordering district court to enter final judgment that Texas laws denying same-sex couples the right to marry are unconstitutional); Conde-Vidal v. Rius-Armendariz, No. 14-2184 (1st Cir. July 8, 2015) (judgment vacating and remanding district court judgment that dismissed challenge to law denying same-sex marriage). Arkansas acknowledges this: “The Supreme Court did not address many of the claims asserted by Appellees and
-4-
Appellate Case: 15-1022 Page: 4 Date Filed: 08/11/2015 Entry ID: 4304552

Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 5 of 15
addressed by the district court in this case . . . .” Arkansas has not repealed the challenged laws.
Arkansas’s general assurances of compliance with Obergefell also do not moot the case. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (“[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”). These assurances may, however, impact the necessity of continued injunctive relief. The district court is better positioned to consider the issue on appropriate motion. See United States v. Bailey, 571 F.3d 791, 804 (8th Cir. 2009) (noting this court reviews permanent injunctions for abuse of discretion, reversing when the injunction is based on “a legal error or a clearly erroneous finding of fact”).
The judgment is affirmed. Arkansas’s motion to vacate the district court’s order is denied.
______________________________
-5-
Appellate Case: 15-1022 Page: 5 Date Filed: 08/11/2015 Entry ID: 4304552

Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 6 of 15

Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

August 11, 2015

West Publishing Opinions Clerk 610 Opperman Drive Building D D4-40 Eagan, MN 55123-0000
RE: 15-1022 Rita Jernigan, et al. v. Dustin McDaniel, et al.
Dear Sirs:
An opinion was filed today in the above case.
Counsel who represented the appellant was Colin Jorgensen, AAG, of Little Rock, AR.
The following attorney(s) appeared on the amici briefs in support of appellant:
Brief of North Carolina Values Coalition and Liberty, Life and Law Foundation – Deborah J. Dewart of Swansboro, NC.
Brief of Dr. Paul McHugh – Kevin T. Snider of Oakland, CA and Gerard V. Bradley of Notre Dame, Indiana.
Brief of Robert P. George and Sherif Girgis – Jefferson Downing and Thomas P. McCarty of Lincoln, NE.
Brief of Liberty Counsel – Mary E. McAlister of Lynchburg, VA and Mathew D. Staver, Anita L. Staver and Horatio G. Mihet of Orlando, FL.
Brief of Eagle Forum Education & Legal Defense Fund – Lawrence J. Joseph of Washington, DC.
Counsel who represented the appellees was Jack Wagoner, III, and Angela M. Mann of Little Rock, AR.
The following attorney(s) appeared on the amici briefs in support of appellees:
Brief of the National Women’s Law Center, Connecticut Women’s Education and Legal Fund, Legal Momentum, Legal Voice, National Association of Women Lawyers, National Partnership for Women and Families, Women’s Bar Association of the District of Columbia, Women’s Bar Association of Illinois, Women’s Law Project, and Williams Institute Scholars of Sexual

Appellate Case: 15-1022 Page: 1 Date Filed: 08/11/2015 Entry ID: 4304552

Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 7 of 15 Orientation and Gender Law – Marcia D. Greenberger, Emily J. Martin, Elizabeth Johnston all of Washington, DC.
Brief of Howard University School of Law Civil Rights Clinic – Prof. Aderson B. Francois of Washington, DC, Benjamin G. Shatz and Brad W. Seiling of Los Angeles, CA
Brief of American Sociological Association – Carmine D. Boccuzzi, Jr., Mark A. Lightner, Grant A. Bermann, Alexandra Eber all of New York, NY.
Brief of American Psychological Association, Arkansas Psychological Association, American Psychiatric Association, American Association for Marriage and Family Therapy, American Psychonalytic Association, National Association of Social Workers, and National Association of Social Workers Missouri, Arkansas, South Dakota, and Nebraska Chapters – Nathalie F.P. Gilfoyle, Paul M. Smith, Aaron M. Panner all of Washington, DC.
Brief of the Leadership Conference on Civil and Human Rights and the Leadership Conference Education Fund – Wade J. Henderson, Lisa M. Bornstein, Matthew M. Hoffman and Andrew Hudson all of Washington, DC.
Brief of Americans United for Separation of Church and State – Ayesha N. Khan, Alex J. Luchenitser, Charles A. Rothfeld, Miriam R. Nemetz, Richard B. Katskee and Scott M. Noveck all of Washington, DC.
Brief of President of the House of Deputies of the Episcopal Church and the Episcopal Bishops of Missouri and Nebraska, General Synod of the United Church of Christ, Reconstructionist Rabbinical Association, Reconstructionist Rabbinical College and Jewish Reconstructionist Communities, Union for Reform Judaism, Unitarian Universalist Association, Affirmation, Covenant Network of Presbyterians, Friends for Lesbian, Gay, Bisexual, Transgender, and Queer Concerns, Methodist Federation for Social Action, More Light Presbyterians, Muslims for Progressive Values, Parity, Reconciling Ministries Network, Reconciling Works, Lutherans for Full Participation, and Religious Institute, Inc. – Jeffrey S. Trachtman, Norman C. Simon, Jason M. Moff, Kurt M. Denk, Michelle Ben-David, and Catherine Hoge of New York, NY.
Brief of Family Equality Council and Colage – Thomas E. Nanney of Kansas City, MO and Brian C. Walsh of St. Louis, MO.
Brief of Constitutional Law Scholars – Geoffrey R. Stone of Chicago, IL and Diane M. Soubly of Ann Arbor, MI.
Brief of Historians of Marriage – Pratik A. Shah of Washington, DC, Daniel McNeel Lane, Jr. of San Antonio, TX and Jessica M. Weisel of Los Angeles, CA.
Brief of Historians of Antigay Discrimination – Catherine E. Stetson, Erica Knievel Songer, Mary Helen Wimberly, Madeline H. Gitomer, Katherine J. Duncan (supervised by members of the firm) all of Washington, DC.
Brief of 24 Employers – Susan Baker Manning, Michael L. Whitlock, Jawad Muaddi, Kimberley E. Lunetta, and Jacquelynne M. Hamilton all of Washington, DC.
Appellate Case: 15-1022 Page: 2 Date Filed: 08/11/2015 Entry ID: 4304552

Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 8 of 15 The judge who heard the case in the district court was Honorable Kristine G. Baker. The judgment of the district court was entered on November 25, 2014. If you have any questions concerning this case, please call this office.
Michael E. Gans Clerk of Court LMT Enclosure(s) cc: Lois Law MO Lawyers Weekly District Court/Agency Case Number(s): 4:13-cv-00410-KGB
Appellate Case: 15-1022 Page: 3 Date Filed: 08/11/2015 Entry ID: 4304552

Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 9 of 15

Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

August 11, 2015

Mr. Colin Jorgensen ATTORNEY GENERAL'S OFFICE 200 Catlett-Prien Building 323 Center Street Little Rock, AR 72201-0000
RE: 15-1022 Rita Jernigan, et al v. Dustin McDaniel, et al
Dear Counsel:
The court has issued an opinion in this case. Judgment has been entered in accordance with the opinion. The opinion will be released to the public at 10:00 a.m. today. Please hold the opinion in confidence until that time.
Please review Federal Rules of Appellate Procedure and the Eighth Circuit Rules on postsubmission procedure to ensure that any contemplated filing is timely and in compliance with the rules. Note particularly that petitions for rehearing and petitions for rehearing en banc must be received in the clerk's office within 14 days of the date of the entry of judgment. Counsel-filed petitions must be filed electronically in CM/ECF. Paper copies are not required. No grace period for mailing is allowed, and the date of the postmark is irrelevant for pro-se-filed petitions. Any petition for rehearing or petition for rehearing en banc which is not received within the 14 day period for filing permitted by FRAP 40 may be denied as untimely.
Michael E. Gans Clerk of Court
LMT
Enclosure(s)
cc: Ms. Michelle Ben-David Grant A. Bermann Ms. Carmine D Boccuzzi Jr. Ms. Lisa Bornstein Mr. Gerard Bradley Ms. Hannah Y.S. Chanoine Mr. Kurt Denk Ms. Deborah Jane Dewart Mr. Jefferson Downing Ms. Katherine J. Duncan

Appellate Case: 15-1022 Page: 1 Date Filed: 08/11/2015 Entry ID: 4304552

Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 10 of 15
Aderson Francois Ms. Nathalie F.P. Gilfoyle Ms. Madeline H. Gitomer Ms. Marcia D. Greenberger Jacquelynne M. Hamilton Mr. Wade Henderson Mr. Matthew Michael Hoffman Ms. Catherine L Hoge Mr. Andrew S. Hudson Elizabeth Johnston Mr. Lawrence John Joseph Mr. Richard Brian Katskee Ms. Ayesha N Khan Mr. Daniel McNeel Lane Jr. Mark A. Lightner Mr. Alexander Joseph Luchenitser Kimberley E. Lunetta Ms. Angela M. Mann Ms. Susan Baker Manning Ms. Cheryl Kathleen Maples Ms. Emily Martin Ms. Mary Elizabeth McAlister Mr. Thomas McCarty Mr. Jim McCormack Ms. Lori Alvino McGill Mr. Horatio Gabriel Mihet Mr. Jason Moff Jawad Muaddi Mr. Thomas E. Nanney Ms. Miriam Nemetz Mr. Aaron Panner Mr. R. Keith Pike Adam P. Romero Mr. Charles Alan Rothfeld Brad Seiling Mr. Pratik A. Shah Mr. Benjamin G. Shatz Mr. Norman Simon Mr. Paul March Smith Mr. Kevin Snider Ms. Erica Songer Ms. Diane M. Soubly Ms. Anita Staver Mr. Mathew D. Staver Ms. Catherine Emily Stetson Mr. Geoffrey Stone Mr. Jeffrey S. Trachtman Mr. Jack Wagoner III Mr. Brian C. Walsh Ms. Jessica Weisel Michael L. Whitlock Ms. Mary Helen Wimberly
Appellate Case: 15-1022 Page: 2 Date Filed: 08/11/2015 Entry ID: 4304552

Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 11 of 15 District Court/Agency Case Number(s): 4:13-cv-00410-KGB
Appellate Case: 15-1022 Page: 3 Date Filed: 08/11/2015 Entry ID: 4304552

15-1022 Rita Jernigan, et al v. Dustin McDaniel, et al "per curiam opinion filed" (4:13-cv... Page 1 of 4 Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 12 of 15
15-1022 Rita Jernigan, et al v. Dustin McDaniel, et al "per curiam opinion filed" (4:13-cv-00410-KGB) ca08ml_cmecf_Notify to: 08/11/2015 09:14 AM Hide Details From: ca08ml_cmecf_Notify@ca8.uscourts.gov To:
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing.
Eighth Circuit Court of Appeals
Notice of Docket Activity
The following transaction was filed on 08/11/2015 Case Name: Rita Jernigan, et al v. Dustin McDaniel, et al Case Number: 15-1022 Document(s): Document(s)
Docket Text: PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Lavenski R. Smith and Duane Benton (PUBLISHED) [4304552] [15-1022] (Lisa Tobias)
Notice will be electronically mailed to:
Ms. Michelle Ben-David: Mbendavid@kramerlevin.com Ms. Carmine D Boccuzzi, Jr.: cboccuzzi@cgsh.com, maofiling@cgsh.com Ms. Lisa Bornstein: Bornstein@civilrights.org Ms. Hannah Y.S. Chanoine: hchanoine@mayerbrown.com Mr. Kurt Denk: kdenk@kramerlevin.com Ms. Deborah Jane Dewart: debcpalaw@earthlink.net Mr. Jefferson Downing: jd@keatinglaw.com Ms. Nathalie F.P. Gilfoyle: Ngilfoyle@apa.org Ms. Marcia D. Greenberger: mgreenberger@nwlc.org Jacquelynne M. Hamilton: jhamilton@morganlewis.com Mr. Wade Henderson: beecham@civilrights.org Mr. Matthew Michael Hoffman: mhoffman@goodwinprocter.com Ms. Catherine L Hoge: choge@kramerlevin.com Mr. Andrew S. Hudson: ahudson@ftc.gov Mr. Colin Jorgensen: colin.jorgensen@arkansasag.gov, johnna.hoffman@arkansasag.gov, agcivil@arkansasag.gov Mr. Lawrence John Joseph: ljoseph@larryjoseph.com Mr. Richard Brian Katskee: rkatskee@mayerbrown.com Ms. Ayesha N Khan: khanayeshan@gmail.com Kimberley E. Lunetta: klunetta@morganlewis.com Ms. Angela M. Mann: angela@wagonerlawfirm.com, niki@wagonerlawfirm.com Ms. Susan Baker Manning: susan.manning@morganlewis.com, erika.tillery@bingham.com Ms. Cheryl Kathleen Maples: ckmaples@aol.com Ms. Emily Martin: emartin@nwlc.org Ms. Mary Elizabeth McAlister: court@lc.org Mr. Thomas McCarty: tmccarty@keatinglaw.com Mr. Jim McCormack, Clerk of Court: ared_appeals@ared.uscourts.gov Mr. Horatio Gabriel Mihet: hmihet@lc.org, court@lc.org Mr. Jason Moff: jmoff@kramerlevin.com Jawad Muaddi: jawad.muaddi@morganlewis.com Mr. Thomas E. Nanney: tom.nanney@bryancave.com, gmbenedict@bryancave.com, mafosdick@bryancave.com Ms. Miriam Nemetz: mnemetz@mayerbrown.com Mr. R. Keith Pike: keith@pikefirm.com Adam P. Romero: romero@law.ucla.edu Mr. Charles Alan Rothfeld: crothfeld@mayerbrown.com, wdc.docket@mayerbrown.com Mr. Pratik A. Shah: pshah@akingump.com, ahicks@akingump.com Mr. Benjamin G. Shatz: bshatz@manatt.com, ben_shatz@yahoo.com Mr. Norman Simon: nsimon@kramerlevin.com Mr. Paul March Smith: psmith@jenner.com Ms. Diane M. Soubly: dsoubly@skalaw.com Ms. Anita Staver: court@lc.org Mr. Mathew D. Staver: court@lc.org Ms. Catherine Emily Stetson: cate.stetson@hoganlovells.com, nymanagingclerk@hoganlovells.com Mr. Jeffrey S. Trachtman: jtrachtman@kramerlevin.com, cduffield@kramerlevin.com, dschumeister@kramerlevin.com, docketing@kramerlevin.com Mr. Jack Wagoner, III: jack@wagonerlawfirm.com, niki@wagonerlawfirm.com Mr. Brian C. Walsh: brian.walsh@bryancave.com Ms. Jessica Weisel: jweisel@akingump.com, ssteiner@akingump.com Michael L. Whitlock: michael.whitlock@morganlewis.com Ms. Mary Helen Wimberly: mary.wimberly@hoganlovells.com

file:///C:/Users/mczelh/AppData/Local/Temp/notesF0DB84/~web4216.htm

8/11/2015

15-1022 Rita Jernigan, et al v. Dustin McDaniel, et al "per curiam opinion filed" (4:13-cv... Page 2 of 4 Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 13 of 15
Lois Law: FED08@loislaw.com MO Lawyers Weekly: stephanie.maniscalco@molawyersmedia.com West Publishing: us08@westdcs.west.thomson.com
Mr. Alexander Joseph Luchenitser: luchenitser@au.org, alexjluch@yahoo.com, scott@au.org (daily summary)
Notice will be mailed to:
Grant A. Bermann CLEARY & GOTTLIEB One Liberty Plaza New York, NY 10006-0000
Mr. Gerard Bradley NOTRE DAME LAW SCHOOL 3156 Eck Hall Notre Dame, IN 46556
Ms. Katherine J. Duncan HOGAN & LOVELLS Columbia Square 555 13th Street, N.W. Washington, DC 20004-0000
Aderson Francois HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC 2400 Sixth Street, N.W. Washington, DC 20059
Ms. Madeline H. Gitomer HOGAN & LOVELLS Columbia Square 555 13th Street, N.W. Washington, DC 20004-0000
Elizabeth Johnston NATIONAL WOMEN'S LAW CENTER Suite 800 11 Dupont Circle Washington, DC 20036-0000
Mr. Daniel McNeel Lane, Jr. AKIN & GUMP 1500 National Bank Plaza 300 Convent Street San Antonio, TX 78205-0000
Mark A. Lightner CLEARY & GOTTLIEB One Liberty Plaza New York, NY 10006-0000
Ms. Lori Alvino McGill QUINN & EMANUEL 11th Floor 777 Sixth Street, NW Washington, DC 20001-3706
Mr. Aaron Panner KELLOGG & HUBER Suite 400 1615 M Street, N.W. Washington, DC 20036-3209
Brad Seiling MANATT & PHELPS 11355 W. Olympic Boulevard Los Angeles, CA 90064-0000
Mr. Kevin Snider PACIFIC JUSTICE INSTITUTE Suite 208 212 Ninth Street Oakland, CA 94607
Ms. Erica Songer

file:///C:/Users/mczelh/AppData/Local/Temp/notesF0DB84/~web4216.htm

8/11/2015

15-1022 Rita Jernigan, et al v. Dustin McDaniel, et al "per curiam opinion filed" (4:13-cv... Page 3 of 4 Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 14 of 15
HOGAN & LOVELLS Columbia Square 555 13th Street, N.W. Washington, DC 20004-0000
Mr. Geoffrey Stone UNIVERSITY OF CHICAGO LAW SCHOOL 1111 E. 60th Street Chicago, IL 60637
The following document(s) are associated with this transaction: Document Description: Opinion filed Original Filename: 151022P.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=08/11/2015] [FileNumber=4304552-0] [904fa268adfa8c044e70dc802162d74fd4f94a845b52fe7831d2e0016d5096dd5541ee40dd8157597318241b163acebc17fc802e72b2d44e3622fe6a26820593]]
Document Description: Letter To Publishing Original Filename: /opt/ACECF/live/forms/ltobias_151022_4304552_LettersToPublishing_284.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=08/11/2015] [FileNumber=4304552-1] [5fe31ffc1ce2d6362ea07f97c772a612319d7c85afee7cbe4c77ccf518b7edda0f33788d6ec638ad8a1ef2961728925b0f82b05b20e9c3b5a067a07c22170617]] Recipients:
z Lois Law z MO Lawyers Weekly z West Publishing
Document Description: Counsel Opinion Letter Original Filename: /opt/ACECF/live/forms/ltobias_151022_4304552_CounselOpinionLetters_285.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=08/11/2015] [FileNumber=4304552-2] [41030d39d8d694c0536e9faa32ce3c722cdd1ba7d199c2d7bce2ea8edd92c7e4c6cfea157aef9cc0fb9170e2b9addf91f88fccdd2954b740163f9a38a36d6369]] Recipients:
z Ms. Michelle Ben-David z Grant A. Bermann z Ms. Carmine D Boccuzzi, Jr. z Ms. Lisa Bornstein z Mr. Gerard Bradley z Ms. Hannah Y.S. Chanoine z Mr. Kurt Denk z Ms. Deborah Jane Dewart z Mr. Jefferson Downing z Ms. Katherine J. Duncan z Aderson Francois z Ms. Nathalie F.P. Gilfoyle z Ms. Madeline H. Gitomer z Ms. Marcia D. Greenberger z Jacquelynne M. Hamilton z Mr. Wade Henderson z Mr. Matthew Michael Hoffman z Ms. Catherine L Hoge z Mr. Andrew S. Hudson z Elizabeth Johnston z Mr. Colin Jorgensen z Mr. Lawrence John Joseph z Mr. Richard Brian Katskee z Ms. Ayesha N Khan z Mr. Daniel McNeel Lane, Jr. z Mark A. Lightner z Mr. Alexander Joseph Luchenitser z Kimberley E. Lunetta z Ms. Angela M. Mann z Ms. Susan Baker Manning z Ms. Cheryl Kathleen Maples z Ms. Emily Martin z Ms. Mary Elizabeth McAlister z Mr. Thomas McCarty z Mr. Jim McCormack, Clerk of Court z Ms. Lori Alvino McGill z Mr. Horatio Gabriel Mihet z Mr. Jason Moff z Jawad Muaddi z Mr. Thomas E. Nanney z Ms. Miriam Nemetz

file:///C:/Users/mczelh/AppData/Local/Temp/notesF0DB84/~web4216.htm

8/11/2015

15-1022 Rita Jernigan, et al v. Dustin McDaniel, et al "per curiam opinion filed" (4:13-cv... Page 4 of 4 Case 4:13-cv-00410-KGB Document 68 Filed 08/11/15 Page 15 of 15
z Mr. Aaron Panner z Mr. R. Keith Pike z Adam P. Romero z Mr. Charles Alan Rothfeld z Brad Seiling z Mr. Pratik A. Shah z Mr. Benjamin G. Shatz z Mr. Norman Simon z Mr. Paul March Smith z Mr. Kevin Snider z Ms. Erica Songer z Ms. Diane M. Soubly z Ms. Anita Staver z Mr. Mathew D. Staver z Ms. Catherine Emily Stetson z Mr. Geoffrey Stone z Mr. Jeffrey S. Trachtman z Mr. Jack Wagoner, III z Mr. Brian C. Walsh z Ms. Jessica Weisel z Michael L. Whitlock z Ms. Mary Helen Wimberly
The following information is for the use of court personnel:
DOCKET ENTRY ID: 4304552 RELIEF(S) DOCKETED:
for publication DOCKET PART(S) ADDED: 5363118, 5363119, 5363120

file:///C:/Users/mczelh/AppData/Local/Temp/notesF0DB84/~web4216.htm

8/11/2015

 
 Case: 4:13-cv-410 As of:11/05/2017 03:21 PM CST 1 of 9
U.S. District Court Eastern District of Arkansas (Little Rock) CIVIL DOCKET FOR CASE #: 4:13−cv−00410−KGB

CLOSED,JTK

Jernigan et al v. Crane et al Assigned to: Judge Kristine G. Baker Case in other court: USCA8, 15−01022 Cause: 42:1983 Other Civil Rights Plaintiff Rita Jernigan
Plaintiff Pam Jernigan

Date Filed: 07/15/2013 Date Terminated: 12/04/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Angela Griffith Mann Wagoner Mann & Kemp, PLLC 1320 Brookwood Suites D & E Little Rock, AR 72202 501−663−5225 Email: angela@wagonerlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jack Wagoner , III Wagoner Mann & Kemp, PLLC 1320 Brookwood Suites D & E Little Rock, AR 72202 501−663−5225 Fax: 501−660−4030 Email: jack@wagonerlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Keith Pike Pike Law Firm, PLLC 1501 North University Suite 200 Little Rock, AR 72207 501−396−9294 Email: keith@pikefirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cheryl K. Maples Attorney at Law Post Office Box 59 Heber Springs, AR 72543 501−912−3890 Email: ckmaples@aol.com ATTORNEY TO BE NOTICED
Sarah Cowan Wagoner Mann & Kemp, PLLC 1320 Brookwood Suites D & E Little Rock, AR 72202 501−663−5225 Email: sarahc@pulaskipa.org ATTORNEY TO BE NOTICED
represented by Angela Griffith Mann (See above for address)

Case: 4:13-cv-410 As of:11/05/2017 03:21 PM CST 2 of 9

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jack Wagoner , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Keith Pike (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cheryl K. Maples (See above for address) ATTORNEY TO BE NOTICED

Sarah Cowan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Becca Austin

represented by Angela Griffith Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jack Wagoner , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Keith Pike (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cheryl K. Maples (See above for address) ATTORNEY TO BE NOTICED

Sarah Cowan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Tara Austin

represented by Angela Griffith Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jack Wagoner , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Keith Pike (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cheryl K. Maples (See above for address) ATTORNEY TO BE NOTICED

Case: 4:13-cv-410 As of:11/05/2017 03:21 PM CST 3 of 9

Plaintiff Randy Eddy−McCain TERMINATED: 01/17/2014
Plaintiff Gary Eddy−McCain TERMINATED: 01/17/2014

Sarah Cowan (See above for address) ATTORNEY TO BE NOTICED
represented by Angela Griffith Mann (See above for address) TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jack Wagoner , III (See above for address) TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Keith Pike (See above for address) TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Cowan (See above for address) TERMINATED: 01/17/2014 ATTORNEY TO BE NOTICED
represented by Angela Griffith Mann (See above for address) TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jack Wagoner , III (See above for address) TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Keith Pike (See above for address) TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Cowan (See above for address) TERMINATED: 01/17/2014 ATTORNEY TO BE NOTICED

V.
Defendant
Larry Crane In his official capacity as Circuit and County Clerk for Pulaski County, Arkansas, and his successors in interest

represented by David M. Fuqua Fuqua Campbell PA Riviera Tower 3700 Cantrell Road Suite 205 Little Rock, AR 72202

Case: 4:13-cv-410 As of:11/05/2017 03:21 PM CST 4 of 9

501−374−0200 Fax: 501−975−7153 Email: dfuqua@fc−lawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Mike Beebe Governor, In his official capacity as Governor and Chief Executive Officer for the State of Arkansas TERMINATED: 01/17/2014

represented by Nga Mahfouz Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201−2610 501−682−5311 Fax: 501−682−2591 Email: nga.mahfouz@arkansasag.gov TERMINATED: 01/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Dustin McDaniel In his official capacity as Attorney General for the State of Arkansas, and his successors in interest

represented by Colin R. Jorgensen Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201−2610 501−682−3997 Fax: 501−682−2591 Email: cjorgensen@arcounties.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nga Mahfouz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Richard Weiss In his official capacity as Director of the Arkansas Department of Finance and Administration, and his successors in interest

represented by Colin R. Jorgensen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nga Mahfouz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
George Hopkins In his official capacity as Executive Director of the Arkansas Teacher Retirement System, and his successors in interest

represented by Colin R. Jorgensen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nga Mahfouz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 4:13-cv-410 As of:11/05/2017 03:21 PM CST 5 of 9

07/15/2013
07/15/2013
07/18/2013 07/18/2013 11/12/2013 11/20/2013 11/21/2013 11/21/2013 11/21/2013 12/02/2013 12/02/2013
01/06/2014 01/07/2014
01/07/2014 01/14/2014 01/15/2014 01/17/2014

1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF filed by Rita and Pam Jernigan, Becca and Tara Austin, and Randy and Gary Eddy−McCain against all defts. Fee of $ 400 paid. (RECEIPT #LIT040870). Summons issued and returned to counsel. (Attachments: # 1 Civil Cover Sheet).(vjt) (The document with redacted exhibits was substituted as the attachment for the main document on 7/15/2013 at the request of the filing party and pursuant to instructions from Chambesr.)(thd) (Entered: 07/15/2013)
2 NOTICE OF DOCKET CORRECTION re: 1 Complaint. CORRECTION: The main document with redacted Exhibits was substituted as the attachment for docket entry 1 based on the attached request and pursuant to instructions from Chambers. (thd) (Entered: 07/15/2013)
3 ORDER OF RECUSAL directing the Clerk to assign this action to another judge. Signed by Judge J. Leon Holmes on 7/18/2013. (kdr) (Entered: 07/18/2013)
4 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) NOTICE OF REASSIGNMENT. Pursuant to 3 Order of Recusal, the Clerk's office has reassigned the case to Judge Kristine G. Baker. (plm) (Entered: 07/18/2013)
Summons Issued as to Larry Crane, Dustin McDaniel. (jap) (Entered: 11/13/2013)
5 NOTICE of Appearance by Nga Mahfouz on behalf of Dustin McDaniel (Mahfouz, Nga) (Entered: 11/20/2013)
6 NOTICE of Appearance by David M. Fuqua on behalf of Larry Crane (Fuqua, David) (Entered: 11/21/2013)
7 ANSWER to 1 Complaint, with Motion to Dismiss on the Ground of Comity by Larry Crane.(Fuqua, David) (Entered: 11/21/2013)
8 BRIEF IN SUPPORT re 7 Answer to Complaint with Motion to Dismiss on the Ground of Comity filed by Larry Crane. (Fuqua, David) (Entered: 11/21/2013)
9 MOTION for Extension of Time to File Answer re 1 Complaint, by Dustin McDaniel (Mahfouz, Nga) (Entered: 12/02/2013)
10 ORDER granting 9 separate defendant Arkansas Attorney General Dustin McDaniel's motion for extension of time to respond to plaintiff's complaint. Defendant Attorney General McDaniel shall have until 1/6/2014, to file an answer to plaintiffs' complaint. Signed by Judge Kristine G. Baker on 12/2/2013. (kdr) (Entered: 12/02/2013)
11 MOTION for Extension of Time to File Answer by Mike Beebe, Dustin McDaniel (Mahfouz, Nga) (Entered: 01/06/2014)
12 ORDER granting 11 Motion for Extension of Time to Answer filed by Arkansas Attorney General Dustin McDaniel. If the motion to amend complaint is filed and denied, McDaniel shall have ten days from this Court's Order denying the motion to amend to file an answer or otherwise respond to plaintiffs original complaint. If the motion to amend is granted, he shall have the time permitted by the Federal Rules of Civil Procedure to answer or otherwise respond to the amended complaint. Signed by Judge Kristine G. Baker on 1/6/2014. (mcz) (Entered: 01/07/2014)
13 Unopposed MOTION to Amend/Correct Complaint by All Plaintiffs (Wagoner, Jack) (Entered: 01/07/2014)
14 NOTICE of Appearance by Sarah Cowan on behalf of All Plaintiffs (Cowan, Sarah) (Entered: 01/14/2014)
15 ORDER granting 13 Motion to Amend/Correct Complaint. Plaintiffs shall file an amended complaint on or before January 17, 2014. Signed by Judge Kristine G. Baker on 1/15/14. (kpr) (Entered: 01/15/2014)
16 AMENDED COMPLAINT against All Defendants, filed by Becca Austin, Rita Jernigan, Tara Austin, Pam Jernigan (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Wagoner, Jack) (Entered: 01/17/2014)

Case: 4:13-cv-410 As of:11/05/2017 03:21 PM CST 6 of 9

01/31/2014 01/31/2014
01/31/2014 02/06/2014 02/07/2014 02/07/2014 02/14/2014 07/16/2014
07/17/2014 07/25/2014 07/30/2014 07/30/2014
07/30/2014
08/06/2014 08/06/2014 08/13/2014 08/13/2014 10/17/2014 10/20/2014
11/18/2014 11/19/2014 11/20/2014

17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by George Hopkins, Dustin McDaniel, Richard Weiss (Mahfouz, Nga) (Entered: 01/31/2014)
18 BRIEF IN SUPPORT re 17 Motion to Dismiss for Failure to State a Claim filed by George Hopkins, Dustin McDaniel, Richard Weiss. (Mahfouz, Nga) (Entered: 01/31/2014)
19 ANSWER to 16 Amended Complaint, by Larry Crane.(Fuqua, David) (Entered: 01/31/2014)
22 Summons Issued as to George Hopkins, Richard Weiss. (jap) (Entered: 02/07/2014)
20 SUMMONS Returned Executed by Becca Austin, Rita Jernigan, Tara Austin, Pam Jernigan. George Hopkins served on 2/6/2014. (Wagoner, Jack) (Entered: 02/07/2014)
21 SUMMONS Returned Executed by Becca Austin, Rita Jernigan, Tara Austin, Pam Jernigan. Richard Weiss served on 2/6/2014. (Wagoner, Jack) (Entered: 02/07/2014)
23 RESPONSE in Opposition re 17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by All Plaintiffs. (Wagoner, Jack) (Entered: 02/14/2014)
24 MOTION for Summary Judgment by All Plaintiffs (Attachments: # 1 Document Brief in Support, # 2 Document Statement of Undisputed Material Facts)(Mann, Angela) (Entered: 07/16/2014)
25 BRIEF IN SUPPORT re 24 Motion for Summary Judgment filed by All Plaintiffs. (Mann, Angela) (Entered: 07/17/2014)
26 NOTICE of Appearance by Cheryl K. Maples on behalf of All Plaintiffs (Maples, Cheryl) (Entered: 07/25/2014)
27 RESPONSE to Motion re 24 MOTION for Summary Judgment filed by George Hopkins, Dustin McDaniel, Richard Weiss. (Mahfouz, Nga) (Entered: 07/30/2014)
28 BRIEF IN SUPPORT re 27 Response to Motion FOR SUMMARY JUDGMENT filed by George Hopkins, Dustin McDaniel, Richard Weiss. (Mahfouz, Nga) (Entered: 07/30/2014)
29 RESPONSE to Motion re 24 MOTION for Summary Judgment RESPONSE TO PLAINTIFFS' STATEMENT OF UNDISPUTED MATERIAL FACTS filed by George Hopkins, Dustin McDaniel, Richard Weiss. (Mahfouz, Nga) (Entered: 07/30/2014)
30 MOTION to Stay by George Hopkins, Dustin McDaniel, Richard Weiss (Mahfouz, Nga) (Entered: 08/06/2014)
31 BRIEF IN SUPPORT re 30 Motion to Stay filed by George Hopkins, Dustin McDaniel, Richard Weiss. (Mahfouz, Nga) (Entered: 08/06/2014)
32 RESPONSE to Motion re 30 MOTION to Stay filed by All Plaintiffs. (Mann, Angela) (Entered: 08/13/2014)
33 BRIEF IN SUPPORT re 32 Response to Motion filed by All Plaintiffs. (Mann, Angela) (Entered: 08/13/2014)
34 ORDER denying as moot 30 separate defendants' motion to stay. Signed by Judge Kristine G. Baker on 10/17/2014. (rhm) (Entered: 10/17/2014)
35 NOTICE of Hearing on Motion 17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and 24 MOTION for Summary Judgment. Motion Hearing set for 11/20/2014 at 01:30 PM in Little Rock Courtroom #4C before Judge Kristine G. Baker.(tmw) (Entered: 10/20/2014)
36 NOTICE by All Plaintiffs re 24 MOTION for Summary Judgment , 25 Brief in Support (Mann, Angela) (Entered: 11/18/2014)
37 NOTICE by All Plaintiffs re 24 MOTION for Summary Judgment , 25 Brief in Support (Mann, Angela) (Entered: 11/19/2014)
38 NOTICE by All Plaintiffs (Mann, Angela) (Entered: 11/20/2014)

Case: 4:13-cv-410 As of:11/05/2017 03:21 PM CST 7 of 9

11/20/2014
11/25/2014
11/25/2014 12/12/2014 12/12/2014 12/22/2014 12/22/2014 12/23/2014 12/23/2014 12/23/2014
12/23/2014 01/07/2015 01/26/2015
01/27/2015 02/18/2015 02/18/2015

39 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute Entry for proceedings held before Judge Kristine G. Baker: Motion Hearing held on 11/20/2014 re 24 MOTION for Summary Judgment filed by Plaintiffs, 17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Dustin McDaniel, Richard Weiss, George Hopkins. Present for the Plaintiffs J. Wagoner, A. Mann, C. Maples, and K. Pike; Present for the Defendants N. Mahfouz, D. Fuqua and J. Cordi. After arguments by the parties, the Court took the matter under advisement. A separate order will follow. (Court Reporter Elaine Hinson.) (tmw) (Entered: 11/20/2014)
40 OPINION AND ORDER granting in part and denying in part 17 Separate Defendants' motion to dismiss and 24 plaintiffs' motion for summary judgment; granting in part plaintiffs' request for declaratory and injunctive relief; and staying execution of the injunction pending the final disposition of any timely appeal to the Eighth Circuit Court of Appeals. Signed by Judge Kristine G. Baker on 11/25/2014. (rhm) (Entered: 11/25/2014)
41 JUDGMENT entered consistent with the 40 Opinion and Order. Signed by Judge Kristine G. Baker on 11/25/2014. (thd) (Entered: 11/25/2014)
42 MOTION to Extend Time by All Plaintiffs (Attachments: # 1 Supplement, # 2 Affidavit)(Maples, Cheryl) (Entered: 12/12/2014)
43 MOTION for Attorney Fees by All Plaintiffs (Attachments: # 1 Supplement, # 2 Exhibit)(Maples, Cheryl) (Entered: 12/12/2014)
44 RESPONSE in Opposition re 43 MOTION for Attorney Fees filed by Larry Crane. (Fuqua, David) (Entered: 12/22/2014)
45 BRIEF IN SUPPORT re 44 Response in Opposition to Motion filed by Larry Crane. (Fuqua, David) (Entered: 12/22/2014)
46 NOTICE OF APPEAL as to 40 Memorandum & Opinion,, Terminate Motions, 41 Judgment by George Hopkins, Dustin McDaniel, Richard Weiss. (Mahfouz, Nga) (Entered: 12/23/2014)
47 RESPONSE to Motion re 43 MOTION for Attorney Fees filed by George Hopkins, Dustin McDaniel, Richard Weiss. (Mahfouz, Nga) (Entered: 12/23/2014)
48 NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to 46 Notice of Appeal filed by Rita and Pam Jernigan and Becca and Tara Austin re: 40 Memorandum & Opinion and 41 Judgment. NOTIFICATION TO COUNSEL: REQUEST FOR TRANSCRIPTS SHOULD BE FILED WITH THE DISTRICT COURT CLERK. (mcz) (Entered: 12/23/2014)
49 RESPONSE to Motion re 43 MOTION for Attorney Fees and Motion for Court to Set Fee Application Deadline Upon Completion of Pending Appeal filed by All Plaintiffs. (Mann, Angela) (Entered: 12/23/2014)
50 USCA Docketing Letter and Briefing Schedule as to 46 Notice of Appeal filed by Dustin McDaniel, Richard Weiss and George Hopkins. USCA Case Number 15−1022 (mcz) (Entered: 01/08/2015)
51 ORDER of USCA as to 46 Notice of Appeal filed by Dustin McDaniel, Richard Weiss, and George Hopkins. The appellant has failed to pay to the Clerk of the United States District Court the requisite docketing fees. Appellant is directing to show cause, within 14 days of the date of this order, why this appeal should not be dismissed for failure to prosecute. (mcz) (Entered: 01/26/2015)
52 USCA Appeal Fees received $ 505 paid, receipt number LIT049769 re 46 Notice of Appeal filed by Dustin McDaniel, Richard Weiss, and George Hopkins. (mcz) (Entered: 01/27/2015)
53 Emergency MOTION to Vacate Stay of Judgment by All Plaintiffs (Wagoner, Jack) (Entered: 02/18/2015)
54 BRIEF IN SUPPORT re 53 Motion to Vacate Stay of Judgment filed by All Plaintiffs. (Wagoner, Jack) (Entered: 02/18/2015)

Case: 4:13-cv-410 As of:11/05/2017 03:21 PM CST 8 of 9

02/20/2015 02/20/2015 02/24/2015 03/02/2015 03/04/2015 03/04/2015
03/05/2015 03/09/2015
03/20/2015
03/23/2015 04/21/2015 04/21/2015 04/29/2015
06/30/2015

55 Amended MOTION to Vacate Stay of Judgment by All Plaintiffs (Wagoner, Jack) (Entered: 02/20/2015)
56 BRIEF IN SUPPORT re 55 Motion to Vacate Stay of Judgment filed by All Plaintiffs. (Wagoner, Jack) (Entered: 02/20/2015)
57 ORDER directing defendants to respond to plaintiffs' expedited motion to vacate stay of judgment by Monday, 3/2/2015. Signed by Judge Kristine G. Baker on 2/24/2015. (ljb) (Entered: 02/24/2015)
58 RESPONSE to Motion re 55 Amended MOTION to Vacate Stay of Judgment filed by George Hopkins, Dustin McDaniel, Richard Weiss. (Attachments: # 1 Exhibit 1. Order Setting Cases for Oral Argument, # 2 Exhibit 2. Order Denying Motion to Vacate)(Mahfouz, Nga) (Entered: 03/02/2015)
59 ORDER denying 53 plaintiffs' expedited motion to vacate stay of judgment. Signed by Judge Kristine G. Baker on 03/04/2015. (rhm) (Entered: 03/04/2015)
60 AMENDED 59 ORDER denying Plaintiffs' 53 Expedited Motion to Vacate Stay of Judgment. Signed by Judge Kristine G. Baker on 3/4/2015. (mcz) Modified on 3/6/2015 to correct typographical error(mcz). (Docket entry modified on 3/6/2015 to correct the linkage, the file date, the signature date and the description of the document filed.) (thd). (Entered: 03/06/2015)
61 ORDER of USCA as to 46 Notice of Appeal filed by Dustin McDaniel, Richard Weiss and George Hopkins: On 3/4/2015, the appellants notified the court that the district court had entered an order declining to lift the stay in this matter. In light of this ruling, the appellants' motion for stay is dismissed as moot. (mcz) (Entered: 03/06/2015)
NOTICE OF DOCKET CORRECTION re: 60 Order. CORRECTION: The docket entry was modified to correct the file date and the signature date to 3/4/2015, as marked on the order. The entry was modified to correct the linkage and the description of the document filed as "AMENDED 59 ORDER denying Plaintiffs' 53 Expedited Motion to Vacate Stay of Judgment." (thd) (Entered: 03/09/2015)
62 Transcript of Hearing on Motions filed for the date of November 20, 2014, before Judge Kristine G. Baker, re 46 Notice of Appeal. Court Reporter Elaine Hinson. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Request Redaction due 3/30/2015. Redaction Request due 4/10/2015. Redacted Transcript Deadline set for 4/20/2015. Release of Transcript Restriction set for 6/18/2015. (plm) (Entered: 03/20/2015)
63 Transmitted Record on Appeal to US Court of Appeals re 46 Notice of Appeal: Transcript of 11/20/2014 Hearing on Motions. (mcz) (Entered: 03/23/2015)
64 Letter from Clerk, USCA regarding Same Sex Marriage Oral Arguments scheduled for 5/12/2015 − Action requested. (mcz) (Docket text modified on 4/21/2015 to correct the description of the document filed.) (thd). (Entered: 04/21/2015)
NOTICE OF DOCKET CORRECTION re: 64 Letter. CORRECTION: The docket text was modified to correct the description of the document filed as "Letter from Clerk, USCA regarding Same Sex Marriage Oral Arguments." (thd) (Entered: 04/21/2015)
65 ORDER of USCA as to 46 Notice of Appeal filed by Dustin McDaniel, Richard Weiss, and George Hopkins: On the court's own motion, oral arguments and any further consideration of these cases will be deferred pending the Supreme Court of the United States decisions in Nos. 14−556, 14−562, 14−571, and 14−574 James Obergefell, et al. v. Richard Hodges, etc., et al. (mcz) (Entered: 04/29/2015)
66 Letter from Clerk, USCA Requesting counsel to send a letter directly to the Clerk of the Court, Eighth Circuit Court of Appeals, by 7/8/2015, expressing their views concerning the steps the court should take to dispose of this appeal. (mcz) (Entered: 06/30/2015)

Case: 4:13-cv-410 As of:11/05/2017 03:21 PM CST 9 of 9

07/09/2015 08/11/2015 08/11/2015
08/14/2015 08/25/2015 09/02/2015
09/03/2015
09/04/2015 09/11/2015 09/14/2015 09/14/2015
09/14/2015
09/14/2015
09/15/2015 09/23/2015 10/07/2015 12/04/2015

67 NOTICE of Appearance by Colin R. Jorgensen on behalf of George Hopkins, Dustin McDaniel, Richard Weiss (Jorgensen, Colin) (Entered: 07/09/2015)
68 OPINION of USCA as to 46 Notice of Appeal filed by Dustin McDaniel, Richard Weiss, and George Hopkins. (mcz) (Entered: 08/11/2015)
69 USCA JUDGMENT as to 46 Notice of Appeal filed by Dustin McDaniel, Richard Weiss, and George Hopkins: The judgment of the district court in this cause is affirmed in accordance with the opinion of this Court. Arkansas's motion to vacate the district court's order is denied. (mcz) (Entered: 08/11/2015)
70 MOTION to Lift Stay by All Plaintiffs (Wagoner, Jack) (Entered: 08/14/2015)
71 MOTION for Attorney Fees by All Plaintiffs (Wagoner, Jack) (Entered: 08/25/2015)
72 MANDATE of USCA in accordance with the opinion and judgment of 08/11/2015, as to 46 Notice of Appeal filed by Dustin McDaniel, Richard Weiss, and George Hopkins. (mcz) (Entered: 09/02/2015)
73 RESPONSE in Opposition re 71 MOTION for Attorney Fees filed by Larry Crane. (Attachments: # 1 Exhibit Order Dismissing Appeal in Arkansas Supreme Court)(Fuqua, David) (Entered: 09/03/2015)
74 RESPONSE in Opposition re 71 MOTION for Attorney Fees filed by George Hopkins, Dustin McDaniel, Richard Weiss. (Jorgensen, Colin) (Entered: 09/04/2015)
75 MOTION for Extension of Time to File Response/Reply by All Plaintiffs (Wagoner, Jack) (Entered: 09/11/2015)
76 REPLY to Response to Motion re 43 MOTION for Attorney Fees filed by All Plaintiffs. (Maples, Cheryl) (Entered: 09/14/2015)
77 ORDER granting 75 Motion for Extension of Time. Plaintiff's shall have until September 15, 2015, to file a reply in support of their motion for attorney's fees. Signed by Judge Kristine G. Baker on 9/14/2015. (jak) (Entered: 09/14/2015)
78 ORDER granting 70 plaintiffs' motion to lift the stay. The Court hereby vacates or lifts the stay of the injunctive relief granted in the Court's November 25, 2014, Opinion and Order and Judgment 40 and 41 . Signed by Judge Kristine G. Baker on 9/14/2015. (ljb) (Entered: 09/14/2015)
79 ORDER of USCA as to 46 Notice of Appeal filed by Dustin McDaniel, Richard Weiss, and George Hopkins: Appellees are granted attorneys' fees in the amount of $7,463.75 to be recovered from the appellants as attorneys' fees on appeal. (mcz) (Entered: 09/15/2015)
80 REPLY to Response to Motion re 75 MOTION for Extension of Time to File Response/Reply filed by All Plaintiffs. (Wagoner, Jack) (Entered: 09/15/2015)
81 MOTION to Strike 80 Reply to Response to Motion by All Plaintiffs (Attachments: # 1 Exhibit)(Maples, Cheryl) (Entered: 09/23/2015)
82 RESPONSE to Motion re 81 MOTION to Strike 80 Reply to Response to Motion filed by All Plaintiffs. (Wagoner, Jack) (Entered: 10/07/2015)
83 ORDER finding that plaintiffs' counsel are entitled to attorneys' fees and costs as the prevailing party in this case. The Court has calculated and modified the lodestar amount for Ms. Maples and Mr. Wagoner's requests. The Court finds that Ms. Maples is entitled to a fee award of $1,590.00. The Court denies her requests for costs. The Court awards Mr. Wagoner, Ms. Mann, Mr. Kemp, Mr. Pike, and Ms. Cowan a combined $18,360.00. Both fee awards are solely against the State, not Mr. Crane. The Court denies all remaining motions. Signed by Judge Kristine G. Baker on 12/04/2015. (rhm) (Entered: 12/04/2015)