Arkansas’ ban on same-sex marriage has been struck down, but by a state judge rather than a federal one. Much of the decision is based on the Equal Protection Clause of the 14th Amendment, however. And the judge also explicitly said that LGBT people have “suspect class” status that triggers heightened review, though that wasn’t necessary to reach the decision.
Although marriage is not expressly identified as a fundamental right in the Constitution, the United States Supreme Court has repeatedly recognized it as such.r It has also consistently applied heightened scrutiny to laws that discriminate against groups considered to be a suspect or quasi-suspect classification (a group that has experienced a “history of purposeful unequal treatment or [has] been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.”). Courts consider whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; whether the distinguishing characteristic is ‘immutable” or beyond the group member’s control; and whether the group is a minority or politically powerless.”
On this issue, this Court finds the rationale of De Leon v. Perry, Obergefell v. Wyrnyslo, and the extensive authority cited in both cases to be highly persuasive, leading to the undeniable conclusion that same-sex couplesfulfill all four factors to be considered a suspect or quasi-suspect classification. Therefore, at a minimum, heightened scrutiny must be applied to this Court’s review of the Arkansas marriage laws. Regardless of the level of review required, Arkansas’s marriage laws discriminate against same-sex couples in violation of the Equal Protection Clause because they do not advance any conceivable legitimate state interest necessary to support even a rational basis review. Under this standard, the laws must proscribe conduct in a manner that is rationally related to the achievement of a legitimate governmental purpose. “[S]ome objectives … are not legitimate state interests” and, even when a law is justified by an ostensibly legitimate purpose, “[t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”