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IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
RITA JERNIGAN, et al. APPELLEES
v. CASE NO. 15-1022
LARRY CRANE DEFENDANT
DUSTIN MCDANIEL, et al. APPELLANTS
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
APPELLEES’ BRIEF
WAGONER LAW FIRM, P.A.Jack Wagoner III
Angela MannWagoner Law Firm, P.A.1320 Brookwood, Suites D & E
Little Rock, AR 72202
Phone: (501) 663-5225
Fax: (501) 660-4030
Email: [email protected] Email: [email protected]
Appellate Case: 15-1022 Page: 1 Date Filed: 03/20/2015 Entry ID: 4256616
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]
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3. Arkansas’s Marriage Laws Do Not Promote the Best Interests
of Children ................................................................................ 20
4. Maintaini ng the Status Quo I s Not a Suf fi cient Basis Upon
Which to Deny Same-Sex Couples Their Fundamental
Rights ........................................................................................ 21
IV. THE DISTRICT COURT CORRECTLY HELD THAT ARKANSAS’S
MARRIAGE BANS AND ANTI-RECOGNITION LAWS
DISCRIMINATE ON THE BASIS OF SEX IN VIOLATION OF THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION .......... 23
V. THE DISTRICT COURT CORRECTLY HELD THAT BAKER v.
NELSON DOES NOT CONTROL DUE TO SIGNIFICANTDOCTRINAL DEVELOPMENTS IN THIS AREA OF SUPREME
COURT JURISPRUDENCE ...................................................................... 25
CONCLUSION ....................................................................................................... 29
CERTIFICATE OF COMPLIANCE .................................................................. 30
CERTIFICATE OF SERVICE ............................................................................ 31
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TABLE OF AUTHORITIES
Supreme Court of the United States
Anderson v. Celebrezze,
460 U.S. 780 (1983) ..............................................................................................26
Baker v. Nelson,409 U.S. 810 (1972) ..................................................................... 25, 26, 27, 28, 29
Cleburne v. Cleburne Living Center ,
473 U.S. 432 (1985) ................................................................................. 15, 17, 23
Cleveland Bd. of Educ. v. LaFleur ,
414 U.S. 632 (1974) ..............................................................................................11
Griswold v. Connecticut ,381 U.S. 479 (1965) ..............................................................................................19
Hall v. Florida,134 S. Ct. 1986 (2014) ..........................................................................................15
Heller v. Doe,509 U.S. 312 (1993) ....................................................................................... 17, 20
Hicks v. Miranda,422 U.S. 332 (1975) ..............................................................................................26
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) ..........................................................................................28
J.E.B. v. Alabama,511 U.S. 127 (1994) ....................................................................................... 24, 25
Lawrence v. Texas,539 U.S. 558 (2004) ...................................................................................... passim
Loving v. Virginia,
388 U.S. 1 (1967) .......................................................................................... passim
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Montana v. Crow Tribe of Indians,
523 U.S. 696 (1998) ..............................................................................................26
New York v. United States,
505 U.S. 144 (1992) ................................................................................................ 8
Powers v. Ohio,49 U.S. 410 (1991) ................................................................................................25
Reno v. Flores,
507 U.S. 292 (1993) ..............................................................................................12
Roberts v. U.S. Jaycees,
468 U.S. 609 (1984) ..............................................................................................10
Romer v. Evans,517 U.S. 620 (1996) ................................................................................. 16, 17, 20
Schuette v. Coalition to Defend Affirmative Action,134 S. Ct. 1623 (2014) ..........................................................................................14
Skinner v. Oklahoma,
316 U.S. 535 (1942) ................................................................................................ 9
Troxel v. Granville,530 U.S. 57 (2000) .................................................................................................. 9
Tully v. Griffing, Inc.,
429 U.S. 68 (1976) ................................................................................................26
Turner v. Safley,482 U.S. 78 (1987) ................................................................................................10
U. S. Department of Agriculture v. Moreno,413 U.S. 528 (1973) ....................................................................................... 16, 27
United States v. Virginia,518 U.S. 515 (1996) ................................................................................... 3, 12, 24
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Univ. for Women v. Hogan,
458 U.S. 718 (1982) ..............................................................................................12
W. Virginia State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) ..............................................................................................15
Watson v. Memphis,373 U.S. 526 (1963) ..............................................................................................23
United States v. Windsor ,
133 S. Ct. 2675 (2013) .................................................................................. passim
Wolf v. Colorado,
338 U.S. 25 (1949) .................................................................................................. 3
Zablocki v. Redhail ,34 U.S. 374 (1978) ......................................................................................... 11, 27
United States Courts of Appeals
Baskin v. Bogan,766 F.3d 648 (7th Cir. 2014) ........................................................................ passim
Bishop v. Smith,
760 F.3d 1070 (10th Cir. 2014) .............................................................................. 5
Bostic v. Shaefer ,760 F.3d 352 (4th Cir. 2014) ........................................................................ passim
DeBoer v. Snyder ,
772 F.3d 388 (6th Cir. 2014) .................................................................................. 5
Kitchen v. Herbert ,
755 F.3d 1193 (10th Cir. 2014) .................................................................... passim
Latta v. Otter ,
771 F.3d 456 (9th Cir. 2014) ........................................................................ passim
Perry v. Brown,671 F.3d 1052 (9th Cir. 2012) ..............................................................................20
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Windsor v. United States,
699 F.3d 169 (2d Cir. 2013) .................................................................................27
United States District Courts
Bishop v. Holder ,
962 F. Supp. 2d 1252 (N.D. Okla. 2014) ....................................................... 18, 29
Gill v. Office of Personnel Mgmt.,
699 F. Supp. 2d 374 (D. Mass. 2010) ...................................................................20
Golinski v. U.S. Office of Personnel Mgmt.,
824 F. Supp. 2d 968 (N.D. Cal. 2012) ..................................................................10
Hamby v. Pannell ,
2014 WL 5089399 (D. Alaska Oct. 12, 2014) ......................................................16
Kitchen v. Herbert ,961 F. Supp. 2d 1181 (D. Utah 2013)............................................................ 22, 24
Latta v. Otter ,
19 F. Supp. 3d 1054 (D. Idaho 2014) ..................................................................... 8
McGee v. Cole,2014 WL 5802665 (S.D. W. Va. Nov. 7, 2014) ...................................................23
Windsor v. United States,
833 F. Supp. 2d 394 (S.D.N.Y. 2012) ..................................................................20
Wolf v. Walker , 986 F. Supp. 2d 982 (W.D. Wis. 2014) ......................................28
State Court Cases
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971) .............................................................................26
Dep’t of Human Servs. v. Cole,2011 Ark. 145 .......................................................................................................21
Goodridge v. Dep’t of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ...............................................................................19
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STATEMENT OF ISSUES
I. THE REASONING OF THE UNITED STATES SUPREME COURT’S
DECISION IN WINDSOR ESTABLISHES THAT ARKANSAS’S
MARRIAGE BANS ARE INVALID
United States v. Windsor , 133 S. Ct. 2675 (2013)
II. THE STATE CANNOT RELY UPON THE PRINCIPLES OF
FEDERALISM TO PERPETUATE DISCRIMINATION
United States v. Windsor , 133 S. Ct. 2675 (2013) Kitchen v. Herbert , 755 F.3d 1193 (10th Cir. 2014)
Bostic v. Shaefer , 760 F.3d 352 (4th Cir. 2014)
Latta v. Otter , 771 F.3d 456 (9th Cir. 2014)
III. THE DISTRICT COURT CORRECTLY CONCLUDED THAT
AMENDMENT 83 AND ARKANSAS’S MARRIAGE LAWS VIOLATE
APPELLEES’ FUNDAMENTAL RIGHT TO MARRY UNDER THE
FOURTEENTH AMENDMENT’S DUE PROCESS CLAUSE
United States Const., Amend. XIV
Loving v. Virginia, 388 U.S. 1 (1967)
Lawrence v. Texas, 539 U.S. 558 (2003)
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)
IV. THE DISTRICT COURT CORRECTLY HELD THAT ARKANSAS’S
MARRIAGE BANS AND ANTI-RECOGNITION LAWS
DISCRIMINATE ON THE BASIS OF SEX IN VIOLATION OF THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
United States Const., Amend. XIV
United States v. Virginia, 518 U.S. 515 (1996)City of Cleburne v. Cleburne Living Center , 473 U.S. 432 (1985)
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V. THE DISTRICT COURT CORRECTLY HELD THAT BAKER V.
NELSON DOES NOT CONTROL DUE TO SIGNIFICANT
DOCTRINAL DEVELOPMENTS IN THIS AREA OF SUPREME
COURT JURISPRUDENCE
Hicks v. Miranda, 422 U.S. 332 (1975)
United States v. Windsor , 133 S. Ct. 2675 (2013)
Lawrence v. Texas, 539 U.S. 558 (2003)
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fundamental right. They merely seek equal application of the already recognized
fundamental right to marry. A fundamental right, once established, applies equally
to everyone, including Appellees and other homosexual persons wishing to marry a
person of their same sex. The District Court correctly found that Appellees are
entitled to exercise this freedom to choose whom they marry.
The District Court correctly held that Amendment 83 and Arkansas’s
Marriage Laws violate the Equal Protection Clause because such laws discriminate
on the basis of sex. The principal inquiry on this issue is whether Arkansas’s laws
treat individuals differently because of their sex. The answer is that they do because,
according to Arkansas’s Marriage Laws, Appellees cannot marry their partners
because they are female, but they could do so if they were male.
This Court should affirm the District Court’s decision in its entirety. The
District Court properly held that the United States Constitution protects those
individuals, including Appellees, whom the majority wishes to exclude. The
constitutional rights of the minority are not subject to majority vote. That is, the State
of Arkansas cannot vote away the constitutional rights of same-sex couples simply
because they disagree with the lifestyle of such persons.
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ARGUMENT
“A prime part of the history of our Constitution . . . is the story of the extension
of constitutional rights and protections to people once ignored or excluded.” United
States v. Virginia, 518 U.S. 515, 517 (1996). “It is of the very nature of a free society
to advance in its standards of what is deemed reasonable and right. Representing as
it does a living principle, due process is not confined within a permanent catalogue
of what may at a given time be deemed the limits or the essentials of fundamental
rights.” Wolf v. Colorado, 338 U.S. 25 (1949). As the Court stated in Lawrence v.
Texas, 539 U.S. 558 (2004):
[h]ad those who drew and ratified the . . . Fourteenth Amendmentknown the components of liberty in its manifold possibilities, they
might have been more specific. They did not presume to have thisinsight. They knew times can blind us to certain truths and later
generations can see that laws once thought necessary and proper in fact
only serve to oppress. As the Constitution endures, persons in every
generation can invoke its principles in search of their own greaterfreedoms.
Id. at 178 –79. “The lessons of our constitutional history are clear: inclusion
strengthens, rather than weakens, our most important institutions.” Latta v. Otter ,
771 F.3d 456 (9th Cir. 2014). This case presents an opportunity for inclusion — an
opportunity to strengthen the institution of marriage.
Arkansas denies same-sex couples the freedom to marry or stay married in the
eyes of the State through its constitutional and statutory prohibition of marriage
between members of the same sex (“Marriage Bans”) and refusal to recognize valid
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on the basis of gender in violation of the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.” (Add. 41.) Courts of Appeals in the
Fourth, Seventh, Ninth, and Tenth Circuits have upheld decisions invalidating
similar laws. See Latta v. Otter , 771 F.3d 456 (9th Cir. 2014); Baskin v. Bogan, 766
F.3d 648 (7th Cir. 2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014); Bostic v.
Shaefer , 760 F.3d 352 (4th Cir. 2014); Kitchen v. Herbert , 755 F.3d 1193 (10th Cir.
2014); but see, DeBoer v. Snyder , 772 F.3d 388 (6th Cir. 2014).1 This Court should
follow the Fourth, Seventh, Ninth, and Tenth Circuits and affirm the District Court’s
decision that Arkansas’s marriage laws violate the Due Process Clause and the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution.
1 Appellants urge this Court to follow the Sixth Circuit Court of Appeals decisionin DeBoer . Appellees respectfully submit that DeBoer was wrongly decided. As
Judge Daughtrey noted in her scathing dissent in DeBoer :
These four cases from our sister circuits provide a rich mine of responses toevery rationale raised by defendants . . . . Indeed it would seem unnecessaryfor this court to do more than cite those cases in affirming the district court
decisions in the six cases now before us. Because the correct result is obvious,
one is tempted to speculate that the majority has purposefully taken the
contrary position to create the circuit split regarding the legality of same-sex
marriage that could prompt a grant of certiorari by the Supreme Court and anend to the uncertainty of status and the interstate chaos that the current
discrepancy in state laws threatens.
DeBoer , 772 F.3d at 430 (Daughtrey, J., dissenting). Since DeBoer , Appellees are
aware of twelve (12) federal courts which have declined to follow its lead and onlyone (1) federal court and one (1) state court which have followed it.
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I. THE REASONING OF THE UNITED STATES SUPREME COURT’S
DECISION IN NDSOR ESTABLISHES THAT ARKANSAS’S
MARRIAGE BANS ARE INVALID
In United States v. Windsor , 133 S. Ct. 2675 (2013), the Supreme Court
invalidated Section 3 of the federal Defense of Marriage Act (“DOMA”), wherein
Congress had defined “marriage” for purposes of all federal laws to include only
marriages of opposite-sex couples. The Windsor Court framed the issue presented
as “whether the resulting injury and indignity [resulting from adherence to DOMA’s
anti-recognition principle] is a deprivation of an essential part of the liberty protected
by the Fifth Amendment.” Id. at 2692. The Windsor Court affirmed the “equal
dignity” of same-sex couples’ relationships, noting that the right to intimacy
recognized in Lawrence “can form ‘but one element in a personal bond that is more
enduring.’” Windsor , 133 S. Ct. at 2692 – 93 (quoting Lawrence, 539 U.S. at 567).
After conducting a thorough analysis of the rights at issue, the Windsor Court
held that DOMA “violate[d] basic due process and equal protection principles.” Id .
at 2693. The Court concluded that “[t]he avowed purpose and practical effect of the
law here in question are to impose a disadvantage, a separate status, and so a stigma
upon all who enter into same-sex marriages.” Id . Marriage Bans and Anti-
Recognition Laws “divest[] married same-sex couples of the duties and
responsibilities that are an essential part of married life and that they in most cases
would be honored to accept.” Id. at 2695. Such laws “tell[] those couples, and all the
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world, that their otherwise valid marriages are unworthy.” Id. at 2694. “This places
same-sex couples in an unstable position of being in a second-tier marriage.” Id.
“The differentiation demeans the couple [and] humiliates tens of thousands of
children now being raised by same-sex couples. The law . . . 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.” Id.
Government interference with same-sex couples’ constitutional rights cannot
stand when, as here, “no legitimate purpose overcomes the purpose and eff ect to
disparage and to injure those whom . . . marriage laws [are designed to] protect in
personhood and dignity.” Id. at 2696. Although Windsor addressed a federal law, the
Court’s reasoning applies with equal force to the Arkansas laws at issue here.
II. THE STATE CANNOT RELY UPON THE PRINCIPLES OF
FEDERALISM TO PERPETUATE DISCRIMINATION
The State improperly claims that Windsor is a federalism decision.
(Appellants’ Br. 11–15.) “Although it is true that Windsor resolved tension between
a state law permitting same-sex marriage and a federal non-recognition provision,
the Court's description of the issue indicates that its holding was not solely based on
the scope of federal versus state powers.” Kitchen, 755 F.3d at 1206. In fact, the
Windsor Court made clear that its decision was not a federalism decision, stating
that “[t]he State's power in defining the marital relation is of central relevance in this
case quite apart from principles of federalism.” Windsor , 133 S. Ct. at 2692
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(emphasis added). The District Court thus properly concluded that “Windsor did not
rest solely on federalism concerns.” (Add. 22.)
Appellants’ f ederalism argument cannot save Arkansas’s unconstitutional
Marriage Bans and Anti-Discrimination Laws. “Windsor does not teach us that
federalism principles can justify depriving individuals of their constitutional rights;
it reiterates Loving 's admonition that the states must exercise their authority without
trampling constitutional guarantees.” Bostic, 760 F.3d at 379 (citing Loving v.
Virginia, 388 U.S. 1 (1967). “Federalism is not just a bulwark against federal
government overreach; it is also an essential check on state power.” Latta v. Otter ,
19 F. Supp. 3d 1054, 1084 (D. Idaho 2014). “For that reason, ‘federalism’ is no
answer where, as here, individuals claim their state government has trampled their
constitutional rights.” Id. “Our federalist structure is designed to ‘secure[] to citizens
the liberties that derive from the diffusion of sovereign power’ rather than to limit
fundamental freedoms.” Kitchen, 755 F.3d at 1229 (quoting New York v. United
States, 505 U.S. 144, 181 (1992)).
Although the State is correct that domestic relations law is an area typically
reserved for State regulation, Windsor makes clear that the “State laws defining and
regulating marriage, of course, must respect the constitutional rights of persons.”
Windsor , 133 S. Ct. at 2691. “Arkansas undoubtedly may define and regulate the
‘incidents, benefits, and obligations’ of domestic relations within its borders,
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Windsor , 133 S. Ct. at 2692, but these regulations must comport with the United
States Constitution, id., and it is this Court’s duty to examine Arkansas’s marriage
laws against the United States Constitution’s guarantee of individual liberties and
protection of fundamental rights.” (Add. 33.)
III. THE DISTRICT COURT CORRECTLY CONCLUDED THAT
AMENDMENT 83 AND ARKANSAS’S MARRIAGE LAWS VIOLATE
APPELLEES’ FUNDAMENTAL RIGHT TO MARRY UNDER THE
FOURTEENTH AMENDMENT’S DUE PROCESS CLAUSE
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution provides that no state may “deprive any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. The Due
Process Clause “guarantees more than fair process . . . . [I]t also includes a
substantive component that provides heightened protection against government
interference with certain fundamental rights and liberties.” Troxel v. Granville, 530
U.S. 57, 65 (2000)(internal citations and quotations omitted).
A. The Right to Marry is a Fundamental Right
“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” and is thus “one of
the ‘basic civil rights of man’ protected by the Due Process Clause.” Loving , 388
U.S. at 12 (quoting, Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)). “Under our
Constitution, the freedom to marry . . . resides with the individual and cannot be
infringed by the State.” Id. Thus, “choices to enter into and maintain certain intimate
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human relationships must be secured against undue intrusion by the State because
of the role of such relationships in safeguarding the individual freedom that is central
to our constitutional scheme.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617 – 18 (1984).
“There can be little doubt that the right to marry is a fundamental liberty.” Kitchen,
755 F.3d at 1209. The District Court properly concluded that “the right to marry is
a fundamental right.” (Add. 29.)
The State attempts to reframe the issue as an effort to establish a new right —
the “right to same-sex marriage.” This is incorrect. Such a constricted framing of a
protected freedom based on the identity of those seeking to exercise it “fails to
appreciate the extent of the liberty at stake.” Lawrence, 539 U.S. at 567. “[T]he
Supreme Court has traditionally described the right to marry in broad terms
independent of the persons exercising it.” Kitchen, 755 F.3d at 1215. “[F]undamental
rights are fundamental rights. They are not defined in terms of who is entitled to
exercise them.” Id .; see also, Bostic, 760 F.3d at 376 (Supreme Court cases “speak
of a broad right to marry that is not circumscribed based on the characteristics of the
individuals seeking to exercise that right.”) Supreme Court cases addressing the
“fundamental right to marry” do not recast the issue as “the right to interracial
marriage,” “the right to prisoner marriage,” or “the right to marry persons owing
child support.” Golinski v. U.S. Office of Personnel Mgmt., 824 F. Supp. 2d 968, 982
n.5 (N.D. Cal. 2012)(citing Loving , 388 U.S. at 12; Turner v. Safley, 482 U.S. at 94 –
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96 (1987); Zablocki v. Redhail , 434 U.S. 374, 383 – 86 (1978)). The Court in Loving
did not recognize a new right to “interracial marriage.” but rather affirmed that “[t]he
freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by f ree men.” See Loving , 388 U.S. at
12. The Supreme Court confirmed in Zablocki, 434 U.S. 374, that “[t]he right to
marry is of fundamental importance for all individuals.” Id . at 384.
“The Supreme Court's unwillingness to constrain the right to marry to certain
subspecies of marriage meshes with its conclusion that the right to marry is a matter
of ‘freedom of choice,’ Zablocki, 434 U.S. at 387, that ‘resides with the individual.’”
Bostic, 760 F.3d at 376 (citing Loving, 388 U.S. at 12). Appellants only seek the
same “freedom of personal choice in matters of marriage and family life” that the
Constitution provides for everyone. See Cleveland Bd. of Educ. v. LaFleur , 414 U.S.
632, 639 (1974). The State should not be allowed to deny them this freedom.
The Supreme Court has also declined to limit the scope of fundamental
rights — including the right to marry — based on historical patterns of discrimination.
“Fundamental rights, once recognized, cannot be denied to particular groups on the
ground that these groups have historically been denied those rights.” In re Marriage
Cases, 183 P.3d 384, 430 (Cal. 2002)(internal quotations omitted). “To claim that
marriage, by definition, excludes certain couples is simply to insist that those couples
may not marry because they have historically been denied the right to do so.”
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Kitchen, 755 F.3d at 1216. As the Court stressed in Lawrence, “neither history nor
tradition could save a law prohibiting miscegenation from constitutional attack” in
Loving. Lawrence, 539 U.S. at 577 – 78 (quotation omitted). “[T]he question as stated
in Loving, and as characterized in subsequent opinions, was not whether there is a
deeply rooted tradition of interracial marriage, or whether interracial marriage is
implicit in the concept of ordered liberty; the right at issue was ‘the freedom of
choice to marry.’” Kitchen, 755 F.3d at 1210. The same analysis applies here.
B. The District Court Correctly Applied Strict Scrutiny to Arkansas’sMarriage Bans and Anti-Recognition Laws
The District Court properly held that, “[b]ecause the Arkansas marriage laws
restrict the Jernigans’ and Austins’ fundamental right to marry, these laws are
subject to strict scrutiny.” (Add. 29.) The State may not infringe upon fundamental
rights “unless the infringement is narrowly tailored to serve a compelling state
interest.” Reno v. Flores, 507 U.S. 292, 302 (1993). “The burden of justification is
demanding and rests entirely on the State.” United States v. Virginia, 518 U.S. 515,
533 (1996)(citing Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723 – 24 (1982)).
“The justification must be genuine, not hypothesized or invented post hoc in
response to litigation.” Id. The State cannot meet this exacting standard. “Instead of
explaining why same-sex marriage qua same-sex marriage is undesirable, each of
appellants’ justifications rests fundamentally on a sleight of hand in which same-sex
marriage is used as a proxy for a different characteristic shared by both same-sex
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and some opposite-sex couples.” Kitchen, 755 F.3d at 1220.
The primary rationale stated when Arkansas enacted the statutory prohibitions
in 1997 was “to protect, preserve and enhance the traditional family structure.” S. 5
Am. 2, 81st Gen. Assembly (1997). Appellants have advanced several other
potential justifications, including:
(1) the basic premise of the referendum process, which is that political
power flows from the people to their government on issues of vitalimportance to the public; (2) advancement of procreation by
encouraging the development of biologically procreative relationships;
(3) ensuring the best interests of children through laws where children born as a result of a union between a man and a woman are cared for by their biological parents in a stable family environment; (4) stability,
uniformity, and continuity of laws in the face of an ongoing public and
political debate about the nature and role of marriage; (5) preservationof the public purposes and social norms linked to the historical and
deeply-rooted meaning of marriage; and (6) a cautious, historicalapproach to governmental social experimentation as democratic,
cultural and scientific discussions proceed.
(Add. 31.) The District Court rejected each of these asserted bases for Arkansas’s
discriminatory marriage laws, holding that “these interests do not address any
specific reasons for the marriage laws at issue; instead, they represent the type of
generalized, post hoc, and litigation-reactive justifications that strict scrutiny
disallows.” (Add. 32.)
Appellants do not dispute this conclusion. They do not even attempt to meet
their burden and they failed to do so in the District Court as well. Instead, “the State
contends that the proper standard for analysis of Amendment 83 and Arkansas’s
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property, to free speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on the outcome of no
elections.” Id. (quoting W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638
(1943))(emphasis in original). As the Court stated in City of Cleburne v. Cleburne
Living Center , 473 U.S. 432 (1985), “[i]t is plain 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 may not avoid the strictures of that Clause by
deferring to the wishes or objections of some fraction of the body politic.” Id. at 448
“[A] primary purpose of the Constitution is to protect m inorities from
oppression from majorities.” Latta, 171 F.3d at 474. While states “are laboratories
for experimentation, . . . those experiments may not deny the basic dignity the
Constitution protects.” Hall v. Florida, 134 S. Ct. 1986, 2001 (2014). “Minorities
trampled on by the democratic process have recourse to the courts; the recourse is
called constitutional law.” Baskin, 766 F.3d at 671. Although “Americans’ ability to
speak with their votes is essential to our democracy[,] . . . the people’s will is not an
independent compelling interest that warrants depriving same-sex couples of their
fundamental right to marry.” Bostic, 760 F.3d at 379. “The Constitution 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 governmental overreach.” (Add. 32.) “Even if the Court employed the lowest
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standard of review, it is illogical to say that [Arkansas’s] same -sex marriage laws
are rationally related to serving the right of citizens to vote on significant changes in
the law. [Arkansas’s] marriage laws governing the institution of marriage have
nothing to do with promoting or ensuring a citizen’s voting rights.” See Hamby v.
Pannell , 2014 WL 5089399, at *10 (D. Alaska Oct. 12, 2014).
D. The State’s Other Asserted Rationales for Arkansas’s
Discriminatory Marriage Laws Are Similarly Inadequate
Arkansas’s Marriage Bans and Anti-Recognition Laws serve no legitimate
government purpose. On their face, the purpose and effect of these laws are to
“impose a disadvantage, a separate status, and so a stigma” upon same-sex couples.
See Windsor 133 S. Ct. at 2693. In Windsor , the Court reaffirmed that ‘“a bare
congressional desire to harm a politically unpopular group of people cannot’ justify
disparate treatment of that group.” Id. (citing U. S. Department of Agriculture v.
Moreno, 413 U.S. 528 (1973)). Arkansas’s interest in treating same-sex couples
differently from opposite-sex couples is the same improper purpose that the Supreme
Court rejected in Windsor : “to impose inequality.” See id. at 2694; see also Romer
v. Evans, 517 U.S. 620, 635 – 36 (1996)(striking down a state constitutional
amendment that classified gay people “not to further a proper legislative end but to
make them unequal to everyone else.”). Nearly every court across the country,
including the District Court and the Fourth, Seventh, Ninth, and Tenth Circuits, has
rejected the State’s asserted bases for similar laws.
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As stated above, Arkansas’s marriage laws must satisfy strict scrutiny because
these laws infringe upon the fundamental right to marry. However, the State’s
asserted justifications cannot satisfy even rational basis review. See Baskin, 766 F.3d
at 656 (“The discrimination against same-sex couples is irrational, and therefore
unconstitutional even if the discrimination is not subjected to heightened scrutiny.”)
Under rational basis review, the asserted state interest must be “legitimate” or
“properly cognizable.” Cleburne, 473 U.S. at 448. The State’s justification must
“find some footing in the realities of the subject addressed by the legislation.” Heller
v. Doe, 509 U.S. 312, 321 (1993). Additionally, the State must demonstrate a rational
relationship “between the classification adopted and the object to be attained.”
Romer , 517 U.S. at 632. “The State may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render the distinction arbitrary
or irrational.” Cleburne, 473 U.S. at 446. “By requiring that the classification bear a
rational relationship to an independent and legitimate legislative end, we ensure that
classifications are not drawn for the purpose of disadvantaging the group burdened
by the law.” Romer , 517 U.S. at 633. “[S]ome objectives—such as ‘a bare desire to
harm a politically unpopular group”—are not legitimate state interests.” Id. “[M]ere
negative attitudes or fear, unsubstantiated by factors which are properly cognizable”
are not permissible bases for differential treatment. Cleburne, 473 U.S. at 448.
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1. Protecting the “Traditional” Notion of Marriage is not a
Sufficient Basis for the Marriage Bans or Anti-Recognition Laws
Arkansas’s Marriage Bans and Anti-Recognition Laws do not continue any
existing tradition other than discrimination against same-sex couples. As Justice
Scalia stated in his dissenting opinion in Lawrence, “‘[p]reserving the traditional
institution of marriage’ is just a kinder way of describing the State’s moral
disapproval of same-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 insufficient to satisfy [even] rational basis review.” Id. at 582. “[C]ourts
reviewing marriage regulations, by either the state or federal government, must be
wary of whether ‘defending’ traditional marriage is a guise for impermissible
discrimination against same-sex couples.” Bishop v. Holder , 962 F. Supp. 2d 1252,
1279 (N.D. Okla. 2014). “There are good traditions, . . . bad traditions that are
historical realities such as cannibalism, . . . and traditions that from a public-policy
standpoint are neither good nor bad (like trick-or-treating on Halloween).” Baskin,
766 F.3d at 666. “Tradition per se therefore cannot be a lawful ground for
discrimination —regardless of the age of the tradition.” Id .
The State “cannot credibly argue that their laws protect a ‘traditional
institution’; at most, they preserve the status quo with respect to one aspect of
marriage — exclusion of same-sex couples.” Latta, 771 F.3d at 475. “[I]t is circular
reasoning, not analysis, to maintain that marriage must remain a heterosexual
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The State’s procreation rationale “is ‘so far removed’ from the classification,
[that] it is impossible to credit” and relies on “factual assumptions that are beyond
the ‘limits of rational speculation.’” See Windsor v. United States, 833 F. Supp. 2d
394 (S.D.N.Y. 2012)(quoting Romer , 517 U.S. at 635; Heller , 509 U.S. at 320). As
the Seventh Circuit stated, this justification “is so full of holes that it cannot be taken
seriously.” Baskin, 766 F.3d at 656; see also, Perry v. Brown, 671 F.3d 1052, 1088
(9th Cir. 2012)(“There is no rational reason to think that taking away the designation
of ‘marriage’ from same-sex couples would advance the goal of encouraging
California’s opposite-sex couples to procreate more responsibly.”)
3. Arkansas’s Marriage Laws Do Not Promote the Best Interests ofChildren
“[C]hildren raised by gay and lesbian parents are just as likely to be well-
adjusted as those raised by heterosexual parents.” Gill v. Office of Personnel Mgmt.,
699 F. Supp. 2d 374, 388 (D. Mass. 2010). As the American Psychological
Association stated:
“[s]cientific evidence strongly supports the conclusion that
homosexuality is a normal expression of human sexuality; that mostgay, 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 heterosexualrelationships 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 well-adjusted than children ofheterosexual parents. In short, the claim that legal recognition of
marriage for same-sex couples undermines the institution of marriageand harms their children is inconsistent with scientific evidence.”
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United States v. Windsor , Case No. 12-307, Br. of Am. Psych. Ass’n at 4– 5 (Mar. 1,
2013). “[A] stable two- parent family relationship, supported by the state’s official
recognition and protection, is equally as important for the numerous children . . .
who are being raised by same-sex couples as for those children being raised by
opposite-sex couples (whether they are biological parents or adoptive parents.).” In
re Marriage Cases, 183 P.3d at 433.
The State’s “best interest of the children” rationale belies the current state of
the law in Arkansas. The Arkansas Supreme Court has expressly allowed
homosexual persons to adopt children. See Dep’t of Human Servs. v. Cole, 2011 Ark.
145. The Ninth Circuit addressed a similar argument in Latta, 771 F.3d 456, and
concluded as follows:
Defendants’ argument is, fundamentally, non-responsive to plaintiffs’
claims to marriage rights; instead, it is about the suitability of same-sexcouples, married or not, as parents, adoptive or otherwise. That it is
simply an ill-reasoned excuse for unconstitutional discrimination isevident from the fact that Idaho and Nevada already allow adoption by
lesbians and gays. The Idaho Supreme Court has determined that
“sexual orientation [is] wholly irrelevant” to a person’s fitness or ability
to adopt children. “In a state where the privilege of becoming a child’sadoptive parent does not hinge on a person’s sexual orientation, it is
impossible to fathom how hypothetical concerns about the same
person’s parental fitness could possibly relate to marriage.”
Id. at 473 (internal citations omitted). This same disconnect is present here. Arkansas
is actively denying children the benefits of marriage by preventing same-sex couples
from marrying or enjoying recognition of their marriages. Arkansas’s marriage laws
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thus accomplish the same end result as the Supreme Court admonished in Windsor —
these laws “humiliate[] . . . children now being raised by same-sex couples” and
cause them “financial harm.” See Windsor , 133 S. Ct. at 2694 – 95 see also, Baskin,
766 F.3d at 660 – 65 (explaining that the State has no legitimate interest in protecting
certain children while disregarding the welfare of others).
4. Maintaining the Status Quo Is Not a Sufficient Basis Upon Which
to Deny Same-Sex Couples Their Fundamental Rights
The State’s claims that Arkansas’s marriage laws reflect a “cautious, historical
approach” and “promote uniformity, stability, and continuity of laws” are similarly
unavailing. The District Court properly rejected these rationales, stating that “these
interests do not address any specific reasons for the marriage laws at issue .” (Add.
32.) Appellants have not demonstrated that the State is proceeding with caution. In
fact, the State has presented no evidence that it is doing anything other than
maintaining its discriminatory exclusion of same-sex couples from the institution of
marriage. The only “uniformity, stability, and continuity” that Arkansas’s marr iage
laws promote is the ongoing denial of constitutional rights.
The “wait and see” approach that Appellants advocate, if accepted, “would
turn rational basis review into a toothless and perfunctory review” because “the state
can plead an interest in proceeding with caution in almost any setting.” Kitchen v.
Herbert , 961 F. Supp. 2d 1181, 1213 (D. Utah 2013)(aff’d , Kitchen, 755 F.3d 1193).
Such an approach “fails to recognize the role of courts in the democratic process.”
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McGee v. Cole, 2014 WL 5802665, at *11 (S.D. W. Va. Nov. 7, 2014). “Courts
cannot avoid or deny this duty just because it arises during the contentious public
debate that often accompanies the evolution of policy making throughout the states.”
Id. “Certainly, the exclusion of same-sex couples from marriage is longstanding.”
Id. “The anti-miscegenation laws in Loving were longstanding” too. Id. A “wait and
see” approach was improper then and it is still improper now.
“The basic guarantees of our Constitution are warrants for the here and now
and, unless there is an overwhelmingly compelling reason, they are to be promptly
fulfilled.” Watson v. Memphis, 373 U.S. 526, 532 – 33 (1963). “[A]ny deprivation of
constitutional rights calls for prompt rectification.” Id. The State’s do-nothing
approach is not a sufficient basis for the continuing deprivation of Appellees’
constitutional rights.
IV. THE DISTRICT COURT CORRECTLY HELD THAT ARKANSAS’S
MARRIAGE BANS AND ANTI-RECOGNITION LAWS
DISCRIMINATE ON THE BASIS OF SEX IN VIOLATION OF THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
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 its laws.” U.S. Const. amend. XIV, § 1. The Equal
Protection Clause “is essentially a direction that all persons similarly situated should
be treated alike.” Cleburne, 473 U.S. at 439. Arkansas’s marriage laws violate the
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Equal Protection Clause because they classify individuals on the basis of their sex.
Arkansas’s marriage laws “involve[] sex-based classifications because [they]
prohibit[] a man from marrying another man, but do[] not prohibit that man from
marrying a woman.” See Kitchen, 961 F. Supp. 2d at 1206. For example, under
Arkansas law, each Appellee cannot marry her partner, but she could marry her
partner if she or her partner were male. The Equal Protection Clause prohibits such
“differential treatment or denial of opportunity” based on a person’s gender in the
absence of an “exceedingly persuasive” justification. United States v. Virginia, 518
U.S. at 532 – 33 (internal quotation marks omitted). The District Court correctly
found that Appellants cannot meet this exacting standard.
Appellants’ argument that “Amendment 83 treats all persons exactly the same
without regard to gender” (Appellants’ Br. 26) misses the point. The sex-based
classifications in Arkansas’s marriage statutes are not immune from heightened
scrutiny simply because they affect men and women in the same manner. “T he
neutral phrasing of the Equal Protection Clause, extending its guarantee to ‘any
person,’ reveals its concern with rights of individuals, not groups.” J.E.B. v.
Alabama, 511 U.S. 127, 152 (1994)(Kennedy, J., concurring). Thus, the relevant
inquiry is whether the law treats an individual differently because of his or her
gender. Id. at 140 – 41.
The Supreme Court in Loving rejected an analogous argument that Virginia’s
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anti-miscegenation law imposed equal restrictions on members of different races,
holding that “mere ‘equal application’ of a statute containing racial classifications is
[not] enough to remove the classification from the Fourteenth Amendment’s
proscription of all invidious racial discriminations.” Loving , 388 U.S. at 8; see also,
Powers v. Ohio, 49 U.S. 410 (1991)(reiterating “that racial classifications do not
become legitimate on the assumption that all persons suffer them in equal degree.”).
The Supreme Court has applied this same reasoning to gender-based classifications.
See J.E.B., 511 U.S. at 140 – 41 (holding that sex-based peremptory challenges are
unconstitutional even though they affect both male and female jurors). This Court
should do the same.
V. THE DISTRICT COURT CORRECTLY HELD THAT BAKER v.
NELSON DOES NOT CONTROL DUE TO SIGNIFICANT
DOCTRINAL DEVELOPMENTS IN THIS AREA OF SUPREME
COURT JURISPRUDENCE
This Court is not bound by the Supreme Court’s summary dismissal for want
of a substantial federal question in Baker v. Nelson, 409 U.S. 810 (1972). This area
of constitutional law has vastly changed since the Baker decision in 1972. As the
District Court noted, “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.” (Add. 24.)
Courts need not “adhere to the view that if the Court has branded a question
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as unsubstantial, it remains so . . . when doctrinal developments indicate otherwise.”
See Hicks v. Miranda, 422 U.S. 332, 344 (1975)(internal quotations omitted).
“Summary dismissals lose their binding force when ‘doctrinal developments’
illustrate that the Supreme Court no longer views a question as unsubstantial,
regardless of whether the Court explicitly overrules the case.” Bostic, 760 F.3d at
373. “‘[S]ubsequent decisions of the Supreme Court’ not only ‘suggest’ but make
clear that the claims before us present substantial federal questions.” Latta, 171 F.3d
at 466.
As the District Court stated, “the summary disposition in Baker is not of the
same precedential value as would be an opinion on the merits.” (Add. 23– 24)(citing
Tully v. Griffing, Inc., 429 U.S. 68, 74 (1976)). “‘A summary disposition affirms
only the judgment of the court below, and no more may be read into [such
disposition] than was essential to sustain that judgment.’” Montana v. Crow Tribe of
Indians, 523 U.S. 696, 714 n.14 (1998)(quoting Anderson v. Celebrezze, 460 U.S.
780, 785 n. 5 (1983)). The judgment affirmed in Baker addressed a Minnesota
marriage statute that was not enacted for the express purpose of excluding same-sex
couples from marriage and which did not indicate on its face whether same-sex
couples could marry. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). Thus, Baker
did not address the constitutionality of intentionally discriminatory measures, like
those at issue here. Additionally, Baker did not — and could not — address the issue
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regarding the recognition of marriages entered into in another state because at that
time no jurisdiction in the world permitted same-sex marriage.
“In the forty years after Baker , there have been manifold changes to the
Supreme Court’s equal protection jurisprudence.” Windsor v. United States, 699
F.3d 169, 179 (2d Cir. 2013). “When Baker was decided in 1971, ‘intermediate
scrutiny’ was not yet in the Court’s vernacular[,] [c]lassifications based on
illegitimacy and sex were not yet deemed quasi-suspect[, and] [t]he Court had not
yet ruled that ‘a classification of [homosexuals] undertaken for its own sake’ actually
lacked a rational basis.” Id. At that time, the Supreme Court had not yet held that
laws enacted for the express purpose of disadvantaging a particular group violate the
requirement of equal protection. See Moreno, 413 U.S. at 534 – 35. The Court in 1971
had not yet held that same-sex couples have the same protected liberty interests in
their relationships as others. Lawrence, 539 U.S. at 578. Nor had the Supreme Court
affirmed that “the right to marry is of fundamental importance for all individuals.”
Zablocki, 434 U.S. at 384. Baker did not even address due process. Baker was
decided in “the dark ages so far as litigation over discrimination against homosexuals
is concerned.” Baskin, 766 F.3d at 660.
“As the Tenth Circuit noted in Kitchen, ‘[t]wo landmark decisions by the
Supreme 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
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insubstantial.’” (Add. 21 – 22)(quoting Kitchen, 755 F.3d at 1205). Specifically, the
Supreme Court in Lawrence held that “intimate conduct with another person . . . can
form but one element in a personal bond that is more enduring. The liberty protected
by the Constitution allows homosexual persons the right to make this choice.”
Lawrence, 539 U.S. at 567. The Windsor Court struck down the federal DOMA
statute defining marriage as between “one man and one woman.” Windsor , 133 S.
Ct. at 2683. These two (2) decisions directly contradict the Court’s dismissal for lack
of a substantial federal question in Baker .
Appellants claim that the fact that “ Baker is not even cited in the Court’s
majority opinion in Windsor . . . indicates that doctrinal developments have not
overridden the precedential effect of Baker.” This argument is flawed. During oral
argument in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), the companion case to
Windsor , Justice Ginsburg stated: “I don’t think we can extract much in Baker v.
Nelson.” Transcript of Oral Argument at 12. Thus it is not surprising that the
opinions in Hollingsworth and Windsor do not mention Baker. See Hollingsworth,
133 S.Ct. 2652; Windsor , 133 S. Ct. 2675. “Not even the dissenters in Windsor
suggested that Baker was an obstacle to lower court consideration of challenges to
bans on same-sex marriage.” Wolf v. Walker , 986 F. Supp. 2d 982, 991 (W.D. Wis.
2014). “The Supreme Court's willingness to decide Windsor without mentioning
Baker speaks volumes regarding whether Baker remains good law.” Bostic, 760 F.3d
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at 373 –74. Thus, “[a]lthough the Supreme Court's decision in Windsor was silent as
to Baker's impact, statements made by the Justices indicate that lower courts should
be applying Windsor (and not Baker) to the logical ‘next issue’ of state prohibitions
of same-sex marriage.” Bishop, 962 F. Supp. 2d at 1277. The Fourth Circuit
concluded that, “[i]n light of the Supreme Court's apparent abandonment of Baker
and the significant doctrinal developments that occurred after the Court issued its
summary dismissal in that case, we decline to view Baker as binding precedent.”
This Court should do the same.
CONCLUSION
For the foregoing reasons, the Court should affirm the District Court’s
decision that Arkansas’s Marriage Bans and Anti-Recognition Laws violate the Due
Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution.
Respectfully submitted,
WAGONER LAW FIRM, P.A.
By: /s/ Jack Wagoner IIIJack Wagoner III, A.B.A. # 89096
Angela Mann, A.B.A. # 2011225
Wagoner Law Firm, P.A.1320 Brookwood, Suites D & E
Little Rock, AR 72202
Phone: (501) 663-5225Fax: (501) 660-4030
Email: [email protected] Email: [email protected]
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mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]
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CERTIFICATE OF COMPLIANCE
This brief complies with the page limitation of Fed. R. App. P. 32(a)(7)(A)
because this brief contains 30 pages. This brief also complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 7,503 words,excluding the parts of the brief which are exempted by Fed. R. App. P.
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This brief complies with the typeface requirements set forth in Fed. R. App.P. 32(a)(5) and the type style requirements set forth in Fed. R. App. P. 32(a)(6)
because this brief has been prepared in Microsoft Word using 14-point Times New
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This brief complies with Eighth Circuit Rule 28A(h)(2) because the electronic
files associated with this brief and filed with the Court have been scanned and arevirus-free.
/s/ Jack Wagoner III
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CERTIFICATE OF SERVICE
I, Jack Wagoner III, do hereby certify that, on this date, March 19, 2015, I
submitted the foregoing document with the Clerk of Court for the United States
Court of Appeals for the Eighth Circuit for electronic filing via the Court’s ECF/CMsystem. Participants in this case who are registered CM/ECF users will be served by
the CM/ECF system.
/s/ Jack Wagoner III