Ark. Marriage Amendment Proceeds

State Supreme Court upholds measure for November 2 ballot

On October 7, by a vote of 5-2, the Arkansas Supreme Court refused to block a proposed amendment banning same-sex marriage from appearing on the state’s ballot on November 2. The ruling, to which two justices dissented, rejected the argument that the text approved by the attorney general, Mike Beebe, to appear on the ballot was misleading and insufficiently informative.

One dissenting justice accused the drafters of the proposal of a “lack of candor,” implying that this is something of a “stealth amendment” intended to ban civil unions and domestic partnerships without adequately informing voters that these issues are at stake.

The Arkansas Marriage Amendment Committee, a private group, not the Legislature, wrote the proposed amendment. The “popular name” for the proposal, as it will appear on the ballot, is “An Amendment Concerning Marriage.” The “ballot title” is supposed to be a brief summary included on the ballot to inform the voters what the proposal is about.

The amendment is in three sections. The first section says, “Marriage consists only of the union of one man and one woman.” The second section provides, “Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the Legislature may recognize a common law marriage from another state between a man and a woman.” The final section gives the legislature the power to “determine the capacity of persons to marry, subject to this amendment, and the legal rights, obligations, privileges and immunities of marriage.”

Last week, the courts in Louisiana overruled voters in the September 14 primary who approved, by a wide margin, an anti-gay marriage amendment, finding that the proposal was constitutionally invalid because it required voters to decide two different policy issues with one vote. The challengers to the Arkansas amendment were unable to make the same argument.

Instead, the measure’s opponents’ only hope was to persuade the court that the language that has been approved to appear on the ballot is inappropriate. In the past, Arkansas courts have accepted the argument that politically loaded ballot language, or language that does not adequately inform the voter of what the proposal is about, may result in keeping the proposal off the ballot or declaring it invalid after the vote. But the court found that in this case, there was no confusion and no lack of information.

Perhaps most significantly, the challengers argued that some undefined phrases in the proposal, such as “legal status” and “marital status,” were vague and misleading. The plaintiffs argued that although the ballot title appears to be a straightforward paraphrase of the proposed amendment, it does not alert voters to various changes in Arkansas law that might result if the amendment is approved. Specifically, they warned that a state statute that explicitly allows local governments to adopt domestic partnership benefits for their employees could be invalidated and that the Legislature might be barred form adopting any statewide civil union or domestic partnership bill.

Opponents of the amendment argued that the popular name on the ballot, An Amendment Concerning Marriage, did not alert voters to the potential impact of the measure for gay and straight people alike on non-marriage partnership rights.

Justice Donald L. Corbin rejected the idea that there was any confusion. As to the popular name, he found that all three sections of the proposed amendment relate to marriage in some way, so it was not a misnomer to call it an “Amendment Concerning Marriage,”

Corbin also noted that the term “civil union” is not defined in Arkansas law, and thus one could not prejudge whether a civil union would violate the amendment. The opponents’ assertions about the impact on any existing laws regarding domestic partnership, Corbin wrote, was “speculative.”

The dissenters, Justices Ray Thornton and Jim Hannah, both argued that the challengers had raised valid concerns. Thornton, wrote: “I believe that the voters have a right to some warning that this proposal could limit the rights of single persons under Arkansas law.”

Thornton gave several examples drawn from the state tax code, as well as the law concerning local domestic partnership benefits.

Hannah, agreeing with Thornton’s objections, wrote that “it is apparent that the goal of the proponents of [the amendment] is to preclude statutory adoption of any state-recognized and state-protected union of persons such as domestic partners or civil unions. While there is certainly no reason that such issues may not be addressed by an amendment, the law requires that the popular name and ballot title so indicate.”

Since the only issues the challengers could raise in a pre-vote challenge are matters of state law, there is no appeal of this decision, and the proposal will appear on the November 2 ballot, when it is widely predicted that it will pass by a substantial margin.

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