A Eulogy for Edie Windsor and a Call to Resist Injustice

The significance of Edie Windsor who died earlier this week is likely lost on most heterosexuals and most certainly on Republicans who regularly vote for candidates who seemingly revel in the denigration of gays - and for that matter every other minority.  As a married gay man, thanks to Edie Windsor, the Defense of Marriage of Marriage was struck down and the federal government was forced to recognize same sex couples for tax purposes and on many other issues.  She was one of those who I have recognized as a single individual who chose to put herself on the line and make a difference.  At her funeral today (the image above was from a photo taken by a friend at that ceremony) there were a number of speakers, one of whom was Hillary Clinton.  Clinton not only eulogized Windsor, but also used the occasion to call for renewed resistance to injustice.  Slat looks at Clinton's remarks at the funeral today.  Here are article highlights:

On Friday, hundreds of people came together at New York City’s Temple Emanu-El for the funeral of Edie Windsor, the “mother of marriage equality” who died on Tuesday at age 88. Windsor sued the United States government when it refused to recognize her marriage to Thea Spyer; her suit ultimately toppled the federal ban on same-sex marriage and paved the way for nationwide marriage equality. Among the luminaries who paid tribute to Windsor was Hillary Clinton, whose beautiful eulogy also functioned as an impassioned call to resist injustice with Windsor’s indomitable positivity and joy.

Clinton began by asking: “Doesn’t it just feel great being here to honor and remember someone who had such a positive, lasting influence on our country and the world?” That might seem like an oddly cheerful start for a eulogy, but Friday’s proceedings had a celebratory air given Windsor’s extraordinary accomplishments and richly lived life. (She remarried last year.) Windsor, Clinton said, “didn’t set out to make history”—but the love she shared with Spyer was “its own quiet revolutionary act.” When Spyer died in 2009 and the government demanded that Windsor pay an immense estate tax, “she knew she had two choices: Accept this painful injustice or fight back. She chose to fight back, all the way to the highest court in the land.”

Clinton continued:

The day Edie won, much of America cheered with her … with a recognition that a wrong had been righted. Through it all, her strength never wavered. … It is fitting that she will be immortalized in history books in that landmark decision synonymous with equal rights and dignity under the law. But she didn’t stop there. She continued to support the needs and the rights of the LGBT community. She helped change hearts and minds, including mine. And we are forever grateful to her for that.

Then Clinton reached the core of her address: the tension between our desire to improve the world and our despair over its seemingly intractable injustices. Windsor, Clinton pointed out, faced a great many injustices. She took care of Spyer for decades as her multiple sclerosis worsened, and when Spyer died, the government wouldn’t recognize their marriage; instead, it sent her a tax bill that she wouldn’t have had to pay if Spyer had been a man. This blatant cruelty might have made Windsor bitter or resentful toward her country. But, Clinton explained:

How she experienced loss, grief, and injustice made her only more generous, more open-hearted, and more fearless in her fight. She refused to give up on the promise of America. There wasn’t a cynical, defeatist bone in her body. That’s especially important for us to remember now. Through her determination and sheer force of will, she brought us another step closer to that more perfect union. Now, in this moment when so much hard-fought progress is hanging in the balance, it is up to all of us to pick up where she left off.

Clinton’s message, which echoes former President Barack Obama’s tribute issued shortly after Windsor’s death, isn’t exactly subtle. But it is a critical reminder in these exceedingly dark times of the wonderful things that America can accomplish when Americans stand up to prejudice and fear. Windsor fought for equality and achieved it in her lifetime. What will we achieve in ours? The forecast seems dire these days. But in her eulogy, Clinton urges us not to give up hope, not to waste our days with sorrow and helplessness. She closed with a quote from the poet Mary Oliver: “Tell me, what is it you plan to do with your one wild and precious life?”

“Let us continue to be inspired by Edie’s wild and precious life,” Clinton said. “And let us make her proud every day of how we answer that question for ourselves. Thank you, Edie.” 

Christofascists and much of the Trump/Pence base will no doubt be unmoved by Windsor's life or Clinton's remarks.  However, decent and moral people hopefully will hear the message and renew their determination to resist those who would trample on the rights of other citizens and make the conscious decision that they will not be akin to the "good Germans" who chose not to act and thereby helped the nightmare of Hitler's Nazi regime to grow. 

Gay Rights Icon Edith Windsor Dead At 88

Many of us believe that we cannot make a significant difference in history and in shaping the future.  Edith Windsor who died today at the age of 88 proved that this misconception is not necessarily true. One individual who possesses courage, an indomitable determination  and a willingness to put themselves on the line can change history and the future for many.  Edith Windsor was one such person.  Thanks to her determination the Defense of Marriage Act in United States v. Windsor was declared unconstitutional and  the stage was set for the ultimate striking down of same sex marriage bans in the 2015 Supreme Court ruling in Obergefell v. Hodges.  I never had the privilege of meeting Edie Windsor (I have met Jim Obergefell), but will always see her as an iconic figure.  Blogger friends who did meet and get to know her have universally said that she was inspiring. A piece in the New York Times looks at her passing.  Here are excerpts:

Edith Windsor, the gay-rights activist whose landmark case led the Supreme Court to grant same-sex married couples federal recognition for the first time and rights to a host of federal benefits that until then only married heterosexuals had enjoyed, died on Tuesday in Manhattan. She was 88.

Four decades after the Stonewall Inn uprising fueled the fight for lesbian, gay, bisexual and transgender rights in America, Ms. Windsor, the widow of a woman with whom she had lived much of her life, became the lead plaintiff in what is widely regarded as the second most important Supreme Court ruling in the national battle over same-sex marriage rights.

The Windsor decision, handed down in 2013, was limited to 13 states and the District of Columbia. But in a more expansive ruling in 2015, in Obergefell v. Hodges and three related cases, the Supreme Court held that same-sex couples had a constitutional right to marry anywhere in the nation, with all the protections and privileges of heterosexual couples. Its historic significance was likened to that of Lawrence v. Texas in 2003, which decriminalized gay sex in the United States.

Ms. Windsor had originally gone to court simply to obtain a tax refund. But for thousands struggling for gender equality, the stakes went far beyond tax advantages available to married heterosexuals, including Social Security, health care and veterans’ benefits; protection in immigration and bankruptcy cases; and keeping a home after a spouse had died.

Like countless others, Ms. Windsor had been snared by the Defense of Marriage Act of 1996, which barred same-sex married couples from federal recognition as “spouses,” effectively excluding them from the many federal benefits available to married heterosexuals. (Those benefits numbered 1,138, according to a count by the Government Accountability Office, Congress’s fiscal watchdog agency.)

After living together for 40 years, Ms. Windsor and Thea Spyer, a psychologist, were legally married in Canada in 2007. Dr. Spyer died in 2009, and Ms. Windsor inherited her estate. But the Internal Revenue Service denied her the unlimited spousal exemption from federal estate taxes available to married heterosexuals, and she had to pay taxes of $363,053.

She sued, claiming that the law, by recognizing only marriages between a man and a woman, unconstitutionally singled out same-sex marriage partners for “differential treatment.”

Affirming two lower court rulings, the Supreme Court, in the United States v. Windsor, overturned the law in a 5-4 ruling. It cited the Fifth Amendment guarantee that no person shall be “deprived of life, liberty or property without due process of law.”

By striking down the act’s definition of marriage as a union of a man and a woman, the Supreme Court invalidated the entire law and for the first time granted same-sex marriage partners the recognition and benefits accorded married heterosexuals.

But there was a catch. The decision did not say if there was a constitutional right to same-sex unions, and it left in place laws in 37 states that banned such marriages. As a practical matter, that meant the benefits would not extend to couples in states that did not allow same-sex unions, but only to those in 13 states and the District of Columbia, all of which recognized them.

She became a national celebrity, a gay-rights matriarch, a grand marshal of New York City’s L.G.B.T. Pride March and a runner-up to Pope Francis for Time magazine’s person of the year in 2013.

On Tuesday, Mr. Obama said in a statement, “I had the privilege to speak with Edie a few days ago, and to tell her one more time what a difference she made to this country we love.”

“Because people like Edie stood up,” he added, “my administration stopped defending the so-called Defense of Marriage Act in the courts.” He said the day of the 2013 Supreme Court ruling was “a great day for America — a victory for human decency, equality, freedom and justice.”

In 1993, when New York City began a domestic partnership registry to extend housing, health insurance and other benefits to gays, lesbians and unmarried heterosexuals, Ms. Windsor and Dr. Spyer were among the first to sign up.

And marriage was still their hope in 2002, when Dr. Spyer had a heart attack, and in 2007, when doctors said she had only a year to live. With time running out, they traveled to Toronto with six friends and were married in a ceremony conducted by Canada’s first openly gay judge. It was later recognized as a valid marriage by New York State.

“Married is a magic word,” Ms. Windsor told a rally outside City Hall in New York a few days before Dr. Spyer, a quadriplegic, died on Feb. 5, 2009. “And it is magic throughout the world. It has to do with our dignity as human beings, to be who we are openly.”

Same-sex marriage became valid in New York State in 2011, too late for Ms. Windsor and Dr. Spyer. But Ms. Windsor’s 2013 Supreme Court victory was followed by an avalanche of lawsuits attacking same-sex marriage bans in jurisdictions where they remained. And on June 26, 2015, the Supreme Court made same-sex marriage a constitutional guarantee all over the land.

 As one who has benefited immensely from Edith Windsor's courage and determination, I want to say "thank you."  I will always look up to her as a role model.  Sometimes standing up and say "no" to bigotry and discrimination - even when it is wrapped in a smoke screen of religion - is demanded from each of us.  May we all find courage such as hers to do the right think.  RIP Edith Windsor. 

Virginia Gave Birth to Gay Marriage in the South

Being gay has changed a lot since I "came out" and moved out of the family home in 2002.  Gay sex no longer exposes one to a potential felony conviction, same sex couples can now marry, and gay couples are being welcomed as members in local yacht and country clubs.   Much still needs to be done to end the lack of non-discrimination protections in employment, housing and public accommodations.  On the same sex marriage front, I had a front row seat if you will since the lead plaintiffs in the marriage litigation were personal friends.  The other strange twist was that David Oakley, the attorney representing the Norfolk Circuit Court Clerk, was also someone I knew both socially and professionally.  He did not take kindly to some of my comments on this blog and argued that he was involved in the case to ultimately have the issue resolved, not because he was anti-gay.  He has a guest editorial piece in the Virginian Pilot today that looks at this sea change for Virginia and the South.  Here are excerpts:

THE COURAGE shown by a few Virginians led our commonwealth to become the first Southern state to allow gay marriage, but the debate continues to define the parameters of Virginia law.

It all started on what was otherwise an ordinary day in the office of George Schaefer, the Norfolk Circuit Court clerk, when Timothy Bostic and Tony London asked for a marriage license.

Like others before them, they were politely and respectfully turned down because the Virginia Constitution allowed marriage only between one man and one woman. Yet, Bostic and London were the first gay couple ready to push forward, armed with a decision from the U.S. Supreme Court [the Windsor ruling]. That decision came close to, but ultimately deferred ruling on, whether same-sex marriage was protected by the Constitution — one of the defining social issues of the times.

It took courage of the Norfolk parties, whose personal and professional lives were subjected to intense scrutiny. Bostic and London chose to pursue their case in the federal court system knowing that many disagreed with their goal. Virginia’s newly elected attorney general, Mark Herring, showed courage in the face of backlash when he changed his position and vigorously argued to strike down Virginia’s marriage laws as unconstitutional.

Schaefer, an elected official, was now a necessary party to the case.  If he had refused to defend Virginia’s marriage laws as they existed, the courts would have lacked what is known as a justiciable issue. In other words, without a party to prosecute and defend both sides of an issue, the courts will not weigh in. . . . . Thus, he stood his ground and defended Virginia’s ban on gay marriage, asserting it was the commonwealth’s right to define marriage as voted upon by its citizens.

The presiding U.S. District judge was criticized by many in the days following her historic ruling. But her ruling was clear: Virginia’s ban on same-sex marriage violated the U.S. Constitution.

The split in opinion among the Fourth Circuit Court of Appeal’s three-judge panel showed the battle was still unsettled; not everyone agreed. But the door had swung open to allow same-sex marriage in the Southern states. The public debate was no longer theoretical. Same-sex marriage arrived in Virginia, West Virginia, Maryland, North Carolina and South Carolina. 

Recently, Judge Steven C. Frucci of the Virginia Beach Circuit Court was asked to rule in a custody dispute between two women going through a divorce.   Just a short time ago, the non-biological parent in that relationship would not have had custody or visitation rights, but Fruicci correctly ruled that today she does.

In the end, David Oakley was right and with his assistance, George Schaefer, the Norfolk Circuit Court Clerk, and Tim Bostic and Tony London helped force the courts to strike down unconstitutional laws.

The Supreme Court and Anti-Gay Animus

In its ruling in United States v. Windsor, one issue that went toward prompting the majority on the Court to strike down the portion of the Defense of Marriage Act was the documentation from the Congressional Record and elsewhere that the moving motivation behind the the enactment of DOMA was anti-gay animus.  The Court has held on a number of occasions, including Romer v. Evans in the early 1990's,  that animus towards a group in society does not make an unconstitutional law magically past constitutional muster.  With the Court to hear oral argument next month in the marriage cases out of the 6th Circuit, a brief has been filed by the Mattachine Society of Washington, D.C., that seeks to document the long history of anti-gay animus that has motivated laws limiting the civil rights of LGBT citizens.  A piece in Huffington Post looks at the brief and the ugly history that it sets forth.  Here are highlights:

In April the U.S. Supreme Court will hear arguments on the constitutionality of state laws that ban same-sex couples from getting married. The historic case has attracted a wide array of amicus briefs; People for the American Way Foundation joined religious and civil rights groups on a brief urging the court to reject discriminatory marriage bans and challenging "religious liberty" arguments opposing marriage equality.

One fascinating brief was filed by the Mattachine Society of Washington, D.C. . . . . The Mattachine Society's project is about preserving the historical record, but it also has an important legal purpose, which is demonstrating that anti-equality laws and regulations have long been grounded in hostility, or animus, which is not a permissible justification for discrimination. Chief Justice John Roberts' dissent from the Supreme Court decision in Windsor, which overturned the key section of the Defense of Marriage Act, demonstrates the importance of this archival work. Roberts suggested there is insufficient evidence -- he waved it away as "snippets of legislative history" -- to demonstrate that DOMA's purpose was to "codify malice." Added Roberts, "I would not tar the political branches with the brush of bigotry." 

There's no escaping the brush of bigotry, the reeking stench of bigotry, exposed by the Mattachine Society's brief, which links to more than 35 historical documents that demonstrate the ways that the Civil Service Commission, often in partnership with J. Edgar Hoover's FBI and other law enforcement agencies, investigated people suspected of sexual "perversion" and robbed them of their federal jobs and careers. 

From the amicus:

For decades, both federal and state governments targeted and persecuted homosexuals, individuals suspected of being homosexual, and even those believed to have engaged in homosexual acts, regardless of actual sexual orientation. The stated rationale shifted over time -- from concerns about national security to code words, such as "suitability" -- but the point was always the same: government officials, federal and state, high and low, felt a complete revulsion toward homosexuals and wanted to purge the country of even the hint of homosexuality. 

Animus, therefore, was a culture. And with that culture came a language. For decades, government officials referred to homosexuality in official, often highly confidential or privileged communications, as "unnatural," "uniquely nasty," "immoral," "deviant," "pervert[ed]," and an "abomination."

The federal government also worked in concert with anti-gay activities being carried out at the state level. One of the documents uncovered by Mattachine's Freedom of Information Act requests is a 1963 note from Civil Service Commission General Counsel L. V. Malloy to Charley Johns, the chairman of the Florida Legislative Investigation Committee on Homosexuality and Citizenship. 

The Mattachine Society brief ends with an appeal to the Supreme Court's history of addressing anti-gay animus:

For decades, there was no limit to the animus meted out against LGBT Americans and no end to its reach. It poisoned every institution in the United States and seeped into the lives of all Americans, not merely those of gays and lesbians. So too, the language of animus became commonplace among those in the highest positions in government: "homo," "sexual deviant," "pervert," "abomination," "uniquely nasty," and other derogatory terms and phrases were used with bureaucratic ease as a way to define, cabin, and limit the citizenship of LGBT Americans.. . . .

It was the courts -- and in the case of Dew, this Court -- that ultimately stepped in to set the course right. This Court knows animus when it sees it, and it has a well-established line of cases overturning laws that by their text, background history, and effect, relegate a class of citizens to second-class status. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); and United States v. Windsor, 133 S. Ct. 2675 (2013). Indeed, this Court has already recognized the long history of discrimination and animus against homosexuals. See, e.g., Lawrence, 539 U.S. at 571.

The newly revealed documents cited herein merely reinforce what this Court already knows. For decades, there was a culture of animus against LGBT Americans that permeated every aspect of American life and every American institution. In many places, that culture continues to this day. To say that the marriage bans now at issue are not somehow the product of this historical animus is to ignore reality.

 In a nation that claims to have religious freedom for all, no one should have their CIVIL rights limited merely because they do not conform to Christofascists beliefs and sensibilities.  No one.

Marriage Bans are About Anti-Gay Animus

I have not studied all of the legislative and campaign history behind the gay marriage bans enacted in Kentucky, Michigan, Ohio, and Tennessee, but if they are anything like what happened in Virginia before passage of the vile Marshall-Newman Amendment or what transpired in Congress before passage of DOMA, the effort was all about anti-gay animus and the desire of Christofascists to permanently denigrate gays and to make us forever inferior under the law.  "Protecting the sanctity of  marriage" had little to do with the real agenda.  This anti-gay animus was analyzed by the Supreme Court in the Windsor ruling and in Virginia, the foul anti-gay rhetoric of Bob Marshall and Ken Cuccinelli helped document the animus behind the Marshall-Newman Amendment.  Now, with the Court taking the appeal from the 6th Circuit, animus will again be prominent in the Court's focus.  A piece at SCOTUS Blog lays out why these marriage bans are all about animus.  Here are excerpts:

Were the thirty-one state constitutional bans against same-sex marriage enacted between 1998 and 2012, including four the Court decided Friday to review, the products of constitutionally repugnant “animus” – that is, a desire to disparage or injure gays out of fear, misunderstanding, or dislike?  Or, do they represent, as Judge Jeffrey Sutton maintained in the opinion for the Sixth Circuit that is now before the Court, a benign, even admirable, initiative by “people of good faith,” endowed with a “Burkean sense of caution,” to validate a “long-existing, widely held social norm”?  Who are we, Judge Sutton asked, to “indict” millions of voters who supported these mini-DOMAs?

The question of animus will be prominent – perhaps pivotal – in this final phase of marriage litigation.  So far, the arguments made by plaintiffs have been remarkably sterile, emphasizing formal equal protection and due process arguments and failing to say much about how the mini-DOMAs actually came into being.  But such a picture is incomplete.  To fully consider the constitutionality of the remaining anti-marriage laws, we must lift up these proverbial rocks to see what was festering underneath them.

When evidence of gratuitous or irrational intent to harm a group outweighs a law’s purported legitimate justifications, the law betrays an improper purpose and violates equal protection.  As the late Chief Justice William Rehnquist observed in Hunter v. Underwood, the same law can be valid or not under the Equal Protection Clause depending on whether it was “motivated by a desire to discriminate.”

The Court has demonstrated time again – in Underwood, as well as cases like Mount Healthy City School District Board of Education v. Doyle, Village of Arlington Heights v. Metropolitan Housing Development Corp., Personnel Administrator of Massachusetts v. Feeney, and Romer v. Evans – that in a purpose inquiry, history, circumstances, and objective evidence (both direct and inferential) about the enactors’ intent all matter. 


First, look at the record.  Spend a few minutes browsing news databases for coverage of the mini-DOMA campaigns and it confirms what you knew but may have forgotten: the campaigns were substantially characterized by negative code words, moral judgment, and disparagement (often implicit, sometimes explicit) of gays’ dignity.

A few weeks before Ohioans voted on their mini-DOMA, the Columbus Dispatch reported that Ohio’s secretary of state was “standing by remarks he made comparing same-sex couples with barnyard animals.”  (Judge Sutton apparently missed that report.) . . . . we can find plenty of animus propelling these initiatives if we’re simply willing to see it.

Then, look at the data.  Data from the American National Election Survey on attitudes toward various groups, known as a “feeling thermometer,” show that for much of the period when the mini-DOMAs were debated, Americans had quite frigid feelings toward homosexuals. 

Remember, this was wedge-issue politics.  Anyone who paid even modest attention to politics over the past twenty years knows that gay marriage was, until recently, one of the conservative movement’s most potent wedge issues to mobilize its base and drive up turnout.
Wedge issues are rarely helpful to “earnest and profound debate,” but they are kissing cousins with animus.  Politicians count on voters to react to wedge issues emotionally and reflexively, not with calm nuance and reason.

Query why mini-DOMAs go farther than necessary.  It is one thing for a state to reserve marriage licenses for heterosexuals.  It is another thing, as I have written, to claim to void or nullify marriages created by other states.  Almost all the mini-DOMAs do this, even for long-married couples who are migrating to a different state and did not evade their home state’s marriage laws.

The nearly universal principle of reciprocal state marriage recognition, according to a leading conflict of laws treatise, “provides stability in an area where stability (because of children and property) is very important, and it avoids the potentially hideous problems that would arise if the legality of a marriage varied from state to state.”  To impose such “hideous” burdens on a legally married couple is cruel.  But millions of Americans nonetheless decided it was acceptable to do that to gays and lesbians.

Moreover, if the amendments were simply intended to preserve a traditional definition of marriage, it was unnecessary to also prohibit, as most of them did, civil unions, domestic partnerships, or (in the words of the Michigan amendment) any “similar union for any purpose.”  These amendments permanently barred gays from seeking even some lesser forms of legal recognition for their relationships.  If voters knew what they were doing, then it is difficult to imagine a reasonable, non-animus-based explanation for such overreaching.

Finally, probe the frivolous justifications.  If the mini-DOMAs collectively stand for more than knee-jerk moral judgments by voters, whipped up by activists with their own agenda, then the states now defending them should be able to offer more substantial justifications than the fanciful and logic-defying idea – notably pulverized by Richard Posner, a jurist who took the argument seriously enough to actually think about it – that banning gay marriage somehow channels more children into mom-and-dad households and promotes “responsible procreation” by heterosexuals.  This argument, in one form or another, is pretty much the only substantive purpose that states have offered in post-Windsor marriage litigation.

[A]s a solid body of equal protection jurisprudence has demonstrated, they are often the tip-off that something more unsavory – animus, perhaps? – was actually at work.

Arkansas Marriage Ban Struck Down

The dominoes continue to fall despite the Sixth Circuit's seemingly white supremacist inspired ruling.  Today, Arkansas joined the list of states where anti-gay animus inspired marriage bans have been ruled unconstitutional.   Unfortunately, the federal judge handing down the ruling has stayed the ruling's effectiveness pending an appeal by state officials eager to prostitute themselves to Christofascist elements of the population.  Here are  excerpts via Towleroad:

A federal judge has struck down Arkansas' ban on same-sex marriage, the AP reports:

U.S. District Judge Kristine Baker ruled in favor of two same-sex couples who had challenged a 2004 constitutional amendment and earlier state law defining marriage as between a man and a woman, arguing that the ban violated the U.S. Constitution and discriminated based on sexual orientation.

But Baker put her ruling on hold, and the state is expected to appeal it to the 8th U.S. Circuit Court of Appeals, based in St. Louis.

Baker wrote in her ruling that the state's marriage laws violate the U.S. Constitution by "precluding same-sex couples from exercising their fundamental right to marry in Arkansas, by not recognizing valid same-sex marriages from other states, and by discriminating on the basis of gender."

Arkansas' State Supreme Court is also currently considering a challenge to the state's same-sex marriage ban. The justices will decide whether to uphold Pulaski County Circuit Judge Chris Piazza's ruling which struck down the Natural State's marriage ban or to find in favor of the state and reverse that decision. Piazza's ruling made it possible for 541 same-sex couples to say "I do" earlier this year until the state Supreme Court intervened and ordered the marriages to cease until it could review the matter.

The full ruling of the federal District Court can be found here.  Here are some highlights from the opinion:

This Court acknowledges that some courts have recently concluded that  Baker  is still  binding precedent.   See, e.g.,  DeBoer, 2014 WL 5748990. This Court determines that the Sixth Circuit’s reasoning is not as persuasive on this point as that of the Fourth, Seventh, Ninth, and Tenth Circuits. . . . it is difficult to reconcile the Supreme Court’s statement 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 laws prohibiting same-sex marriage do not present a substantial federal question.  For the foregoing reasons,  Baker does not bar the Court from reaching the merits of plaintiffs’ claims. 

[T]he drafters of the Fifth and Fourteenth Amendments “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. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”   Lawrence, 539 U.S. at 579.  Accordingly, this Court finds that the Jernigans and Austins have adequately described their asserted right to marry. Directed by Supreme Court and Eighth Circuit  precedents, this Court concludes that the right to marry is a fundamental right.

This Court finds that the Arkansas marriage laws at issue here overstep this constitutional limit. The Due Process Clause prevents the government from infringing upon a fundamental right “unless the infringement is narrowly tailored to serve a compelling state interest.”   Reno, 507 U.S. at 302. Likewise, under the Equal Protection Clause, if a state makes a classification that “impinge[s] upon the exercise of a fundamental right,” then the state must “demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.”

Plyler v. Doe, 457 U.S. 202, 217 (1982).

Defendants’ other rationales focus on connections between marriage and  procreation and the interests of children. These rationales run afoul of the basic tenets of the state’s marriage system, one that does not distinguish procreative from non-procreative couples. Further, the Supreme Court has held that married couples have a right not to procreate and that the Constitution protects the right of individuals to marry regardless of their ability or desire to  procreate, including those who are elderly, infertile, and incarcerated.

This Court finds that the principal purpose of Amendment 83 and the challenged statutes “is to impose inequality, not for other reasons like governmental efficiency.”  Windsor, 133 S. Ct. at 2694. Amendment 83 of the Arkansas Constitution and Arkansas Code Annotated §§ 9-11-107, 9-11-109, and 9-11-208 unconstitutionally deny consenting adult same-sex couples their fundamental right to marry in violation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.