IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION RITA and PAM JERNIGAN and BECCA and TARA AUSTIN PLAINTIFFS v. NO. 4:13-CV-410 KGB LARRY CRANE, In His Official Capacity As Circuit And County Clerk For Pulaski County, 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; and DUSTIN MCDANIEL, In His Official Capacity As Attorney General For The State Of Arkansas and His Successors in Interest DEFENDANTS SEPARATE DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION The Arkansas Attorney General, in his official capacity, the Executive Director of the Arkansas Teacher Retirement System, in his official capacity, and the Director of the Arkansas Department of Finance and Administration, in his official capacity, and their respective successors in office (“Separate Defendants”), submit this Response to the Plaintiffs’ Motion for Summary Judgment. Case 4:13-cv-00410-KGB Document 28 Filed 07/30/14 Page 1 of 27
Doc 28 - Defendants Weiss, Hopkins, and McDaniel's Response to Plaintiffs' Motion for Summary Judgment (Brief)
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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
RITA and PAM JERNIGAN and BECCA
and TARA AUSTIN
PLAINTIFFS
v. NO. 4:13-CV-410 KGB
LARRY CRANE, In His Official Capacity As
Circuit And County Clerk For Pulaski
County, 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; and DUSTIN MCDANIEL, In His
Official Capacity As Attorney General For
The State Of Arkansas and His Successors in
Interest
DEFENDANTS
SEPARATE DEFENDANTS’ RESPONSE TO
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
The Arkansas Attorney General, in his official capacity, the Executive Director of the
Arkansas Teacher Retirement System, in his official capacity, and the Director of the Arkansas
Department of Finance and Administration, in his official capacity, and their respective
successors in office (“Separate Defendants”), submit this Response to the Plaintiffs’ Motion for
Summary Judgment.
Case 4:13-cv-00410-KGB Document 28 Filed 07/30/14 Page 1 of 27
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For the reasons explained in the State’s Motion to Dismiss and Brief [DE 17 and 18]1 and
in this Response, the relief requested by Plaintiffs should be denied. As a matter of law,
Amendment 83 and Arkansas Act 144 of 1997 withstand constitutional muster under the United
States Constitution, and Plaintiffs’ Motion for Summary Judgment should be denied.
II. ARGUMENT
A. Plaintiffs Are Not Entitled To Summary Judgment On Their Due Process
Claims.
1. Strict Scrutiny Does Not Apply Because There Is No Fundamental
Due Process Right To A State Marriage Certificate Allowing Two
People Of The Same Sex To Marry.
The analysis to be applied when a statute is challenged on substantive due process
grounds turns on whether a “fundamental” liberty interest is at issue. If a fundamental liberty
interest is at issue, then the “strict-scrutiny test” applies. See Washington v. Glucksberg, 521
U.S. 702, 721 (1997). If a liberty interest, but not a fundamental one, is at issue, then the
“rational-basis test” applies and the statute may stand as long as there is a “reasonable fit”
between governmental purpose and the means chosen to advance that purpose. Reno v. Flores,
507 U.S. 292, 305 (1993); see also, Arkansas Dept. of Correction v. Bailey, 368 Ark. 518, 533,
247 F.3d 851, 862 (“Under the rational-basis test, the party challenging the constitutionality of
the statute must prove that the statute is not rationally related to achieving any legitimate
governmental objective under any reasonably conceivable fact situation.”).
In order to constitute a fundamental constitutional right, the alleged right must be
“objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of
1 The State’s Motion to Dismiss, filed on January 31, 2014, has not been ruled upon. Separate Defendants
respectfully submit that an adjudication of said Motion may very well moot some or all of the claims addressed in
Plaintiffs’ Motion for Summary Judgment and for this reason, Plaintiffs’ Motion is premature.
Case 4:13-cv-00410-KGB Document 28 Filed 07/30/14 Page 2 of 27
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ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.”
Glucksberg, 521 U.S. at 720-21 (quotations and citations omitted).
Determining whether there is a fundamental right to same-sex marriage is controlled by
Washington v. Glucksberg, which requires two steps. The first step is “a careful description of
the asserted fundamental liberty interest,” and the second step is adding to the canon only “those
fundamental rights and liberties which are objectively, deeply rooted in this Nation’s history and
tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed.” 521 U.S. at 720-21. The liberty interest asserted by Plaintiffs in
this case is the right to marry a person of the same sex. This liberty interest is not deeply rooted
in any sense. Only about one-third of the States authorize same-sex marriage today, and no State
authorized same-sex marriage prior to this young Century.
Plaintiffs do not even attempt to meet the standard set out in Glucksberg, choosing
instead to treat Glucksberg as having been silently overruled by United States v. Windsor, 133
S.Ct. 2675 (2013). The Windsor majority did not hold that there is a fundamental right to same-
sex marriage. Further, the Supreme Court has expressed “reluctan[ce] to expand the concept of
substantive due process because guideposts for responsible decisionmaking in this unchartered
area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).
Accordingly, courts must “exercise the utmost care whenever . . . asked to break new ground in
this field.” Id. The Court should not conclude that the Glucksberg standard has been silently
overruled by Windsor in this significant area of constitutional jurisprudence.
Even in the absence of Glucksberg, Plaintiffs’ due process claim still fails under Baker v.
Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972). In Baker, the
Minnesota Supreme Court decided this precise due process claim when it rejected the
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petitioners’ claim that, by denial of their application for a marriage license, “petitioners are
deprived of liberty without due process and are denied the equal protection of the laws[.]”
Baker, 191 N.W.2d at 186. The court sharply rebuffed the claim that same-sex marriage was a
fundamental right, holding that “[t]he due process clause of the Fourteenth Amendment is not a
charter for restructuring [marriage] by judicial legislation.” Id. Of course, the Supreme Court’s
summary dismissal of the appeal in Baker constitutes a ruling on the merits of the Minnesota
Supreme Court’s decision in Baker, including the holding that there is no fundamental due
process right to same-sex marriage. See Mandel v. Bradley, 432 U.S. 173, 176 (1977) (summary
dismissals by the Court “prevent lower courts from coming to opposite conclusions on the
precise issues presented and necessarily decided by those actions.”). As explained in Citizens for
Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), Baker mandates “restraint” before
concluding that “a state statute or constitutional provision codifying the traditional definition of
marriage violates the Equal Protection Clause or any other provision of the United States
Constitution.” Bruning, 455 F.3d at 870-71. See also Massachusetts v. U.S. Dep’t of Health &
Human Servcs., 682 F.3d 1, 8 (1st Cir. 2012) (holding that Baker “limit[s] the arguments to ones
that do not presume or rest on a constitutional right to same-sex marriage.”). The Eighth Circuit
expressly rejected the notion of a fundamental right to same-sex marriage, and it applied
rational-basis review to a substantively identical state constitutional amendment in Bruning,
supra. This Court should follow that binding precedent.
Even in Windsor, the majority recognized that same-sex marriage is a new right, separate
and distinct from the fundamental “right to marry” discussed in earlier cases:
It seems fair to conclude that, until recent years, many citizens had
not even considered the possibility that two persons of the same
sex might aspire to occupy the same status and dignity as that of a
man and woman in lawful marriage. For marriage between a man
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and a woman had no doubt been thought of by most people as
essential to the very definition of that term and to its role and
function throughout the history of civilization.
133 S. Ct. at 2689. The Windsor majority also noted that “the limitation of lawful marriage to
heterosexual couples . . . for centuries ha[s] been deemed both necessary and fundamental.” Id.
Thus, under Windsor, same-sex marriage is not a fundamental due process right.
Plaintiffs’ asserted interest in marrying someone of the same sex is readily
distinguishable from the Supreme Court’s decisions affirming a fundamental right to marry,
which have always been premised on opposite-sex marriage. See Turner v. Safley, 482 U.S. 78,
82 (1987) (“[G]enerally only a pregnancy or the birth of an illegitimate child would be
considered a compelling reason” to permit the marriage of inmates affected by the challenged
prison regulation); Zablocki v. Redhail, 434 U.S. 374, 379 (1978) (“[A]ppellee and the woman
he desired to marry were expecting a child in March 1975 and wished to be lawfully married
before that time.”); Loving v. Virginia, 388 U.S. 1, 2 (1967) (describing the plaintiffs as “Mildred
Jeter, a Negro woman, and Richard Loving, a white man”). In fact, the Supreme Court’s
decisions discussing the “fundamental” right to marry have always recognized the historical
roots and societal importance of the traditional definition of marriage and its direct connection to
procreation. See, e.g., Zablocki, 434 U.S. at 386 (stating that marriage “is the foundation of the
family in our society . . . [I]f appellee’s right to procreate means anything at all, it must imply
some right to enter the only relationship in which the State of Wisconsin allows sexual relations
to legally take place”); Loving, 388 U.S. at 13 (“Marriage is one of the ‘basic civil rights of
man,’ fundamental to our very existence and survival.”); Skinner v. Oklahoma, 316 U.S. 535,
541 (1942) (“Marriage and procreation are fundamental to the very existence and survival of the
race.”). Plaintiffs’ reliance upon cases in which the Supreme Court has discussed the
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fundamental right to marry is misplaced – these cases actually cut against Plaintiffs’ plea for a
fundamental right to same-sex marriage.
Plaintiffs’ due process claim also fails under the great weight of authority that has
concluded that there is no fundamental right to same-sex marriage. See, e.g., Anderson v. King
Cnty., 138 P.3d 963, 979 (Wash. 2006) (en banc) (“Plaintiffs have not established that at this
time the fundamental right to marry includes the right to marry a person of the same sex.”);
Hernandez v. Robles, 855 N.E.2d 1, 10 (N.Y. 2006) (“[B]y defining marriage as it has, the New
York Legislature has not restricted the exercise of a fundamental right”); Lewis v. Harris, 908
A.2d 196, 2011 (N.J. 2006) (“[W]e cannot find that a right to same-sex marriage is so deeply
rooted in the traditions, history, and conscience of the people of this State that it ranks as a
fundamental right.”); Dean v. District of Columbia, 653 A.2d 307, 333 (D.C. 1995) (holding that
“same-sex marriage cannot be called a fundamental right protected by the due process clause”);
Baker, 191 N.W.2d at 186 (“The due process clause of the Fourteenth Amendment is not a
charter for restructuring [marriage] by judicial legislation.”).
2. The Challenged Laws Survive Rational-Basis Review Under The Due
Process Clause.
Because Plaintiffs’ claims do not involve a constitutionally-protected fundamental right,
their claims are subject to a rational-basis review, where law is presumed constitutional and
“[t]he burden is on the one attacking the legislative arrangement to negative every conceivable
basis which might support it.” Heller v. Doe, 509 U.S. 312, 320 (1993) (internal quotations
omitted). A court conducting a rational-basis review does not sit “as a superlegislature to judge
the wisdom or desirability of legislative policy determinations,” but only asks whether there is
some conceivable rational basis for the challenged statute. Id. at 319.
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In enacting Amendment 83, the citizens of Arkansas had “absolutely no obligation to
select the scheme” that a court might later conclude was best. Nat'l R.R. Passenger Corp. v.
A.T.& S.F.R. Co., 470 U.S. 451, 477 (1985). “It is enough that there is an evil at hand for
correction, and that it might be thought that the particular legislative measure was a rational way
to correct it.” Williamson v. Lee Optical of Okla., 348 U.S. 483, 487-88 (1955). Amendment 83
does not have to be perfect in order to be constitutional. See McGowan v. Maryland, 366 U.S.
420, 425-426 (1961) (“State legislatures are presumed to have acted within their constitutional
power despite the fact that in practice, their laws result in some inequality.”). The presumption
that a law is constitutional even though it may be imperfect is even stronger with regard to laws
passed by the citizens themselves at the ballot box. See Nordlinger v. Hahn, 505 U.S. 1, 10
(1992) (upholding an initiated act approved by California voters).
Beginning its rational-basis review with the acknowledgement of the fact that “the
institution of marriage has always been, in our federal system, the predominant concern of state
government,” the Eighth Circuit in Bruning noted the State’s argument in support of its marriage
laws, namely “[b]y affording legal recognition and a basket of rights and benefits to married
heterosexual couples, such laws ‘encourage procreation to take place within the socially
recognized unit that is best situated for raising children.’” 455 F.3d at 867.
The State and its supporting amici cite a host of judicial decisions and secondary
authorities recognizing and upholding this rationale. The argument is based in part
on the traditional notion that two committed heterosexuals are the optimal
partnership for raising children, which modern-day homosexual parents
understandably decry. But it is also based on a “responsible procreation” theory
that justifies conferring the inducements of marital recognition and benefits on
opposite-sex couples, who can otherwise produce children by accident, but not on
same-sex couples, who cannot.
Id. (citations omitted).
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The Court concluded, “Whatever our personal views regarding this political and
sociological debate, we cannot conclude that the State's justification “‘lacks a rational
relationship to legitimate state interests.’” Id. at 867-68 (citing Romer v. Evans, 517 U.S. 620,
632 (1996)).
“Even if the classification . . . is to some extent both underinclusive and
overinclusive, and hence the line drawn . . . imperfect, it is nevertheless the rule
that . . . perfection is by no means required.” Vance v. Bradley, 440 U.S. 93, 108,
99 S.Ct. 939, 59 L.Ed.2d 171 (1979). Legislatures are permitted to use
generalizations so long as “the question is at least debatable.” Heller, 509 U.S. at
326, 113 S.Ct. 2637 (quotation omitted). The package of government benefits
and restrictions that accompany the institution of formal marriage serve a variety
of other purposes. The legislature-or the people through the initiative process-may
rationally choose not to expand in wholesale fashion the groups entitled to those
benefits. “We accept such imperfection because it is in turn rationally related to
the secondary objective of legislative convenience.” Vance, 440 U.S. at 109, 99
S.Ct. 939.
Id. at 868.
Moreover, the United States Supreme Court has recognized a bevy of legitimate state
interests that are directly implicated and furthered by Amendment 83 and Act 144 of 1997: (1)
the basic premise of the referendum process, which is that political power flows from the people
to their government on issues of vital importance to the public;2 (2) advancement of procreation
2 See, e.g., Bond v. U.S., 131 S. Ct. 2355, 2364 (2011) (explaining that the federal system
secures liberties to citizens, not states, including liberties to enact local policies more sensitive to
the diverse needs of a heterogeneous society, liberty to conduct innovation and experimentation,
and liberty to have direct involvement in the political process; federalism “allows States to
respond, through the enactment of positive law, to the initiative of those who seek a voice in
shaping the destiny of their own times without having to rely solely upon the political processes
that control a remote central power.”); James v. Valtierra, 402 U.S. 137, 141 (1971) (“Provisions
for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice.”).
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