4:13-cv-00410 #28

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

RITA and PAM JERNIGAN and BECCA

and TARA AUSTIN

PLAINTIFFS

v. NO. 4:13-CV-410 KGB

LARRY CRANE, In His Official Capacity As

Circuit And County Clerk For Pulaski

County, Arkansas And His Successors In

Interest; RICHARD WEISS, In His Official

Capacity As Director of the Arkansas

Department of Finance and Administration

And His Successors in Interest; GEORGE

HOPKINS, In His Official Capacity as

Executive Director of the Arkansas Teacher

Retirement System And His Successors In

Interest; and DUSTIN MCDANIEL, In His

Official Capacity As Attorney General For

The State Of Arkansas and His Successors in

Interest

DEFENDANTS

SEPARATE DEFENDANTS’ RESPONSE TO

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The Arkansas Attorney General, in his official capacity, the Executive Director of the

Arkansas Teacher Retirement System, in his official capacity, and the Director of the Arkansas

Department of Finance and Administration, in his official capacity, and their respective

successors in office (“Separate Defendants”), submit this Response to the Plaintiffs’ Motion for

Summary Judgment.

Case 4:13-cv-00410-KGB Document 28 Filed 07/30/14 Page 1 of 27

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For the reasons explained in the State’s Motion to Dismiss and Brief [DE 17 and 18]1 and

in this Response, the relief requested by Plaintiffs should be denied. As a matter of law,

Amendment 83 and Arkansas Act 144 of 1997 withstand constitutional muster under the United

States Constitution, and Plaintiffs’ Motion for Summary Judgment should be denied.

II. ARGUMENT

A. Plaintiffs Are Not Entitled To Summary Judgment On Their Due Process

Claims.

1. Strict Scrutiny Does Not Apply Because There Is No Fundamental

Due Process Right To A State Marriage Certificate Allowing Two

People Of The Same Sex To Marry.

The analysis to be applied when a statute is challenged on substantive due process

grounds turns on whether a “fundamental” liberty interest is at issue. If a fundamental liberty

interest is at issue, then the “strict-scrutiny test” applies. See Washington v. Glucksberg, 521

U.S. 702, 721 (1997). If a liberty interest, but not a fundamental one, is at issue, then the

“rational-basis test” applies and the statute may stand as long as there is a “reasonable fit”

between governmental purpose and the means chosen to advance that purpose. Reno v. Flores,

507 U.S. 292, 305 (1993); see also, Arkansas Dept. of Correction v. Bailey, 368 Ark. 518, 533,

247 F.3d 851, 862 (“Under the rational-basis test, the party challenging the constitutionality of

the statute must prove that the statute is not rationally related to achieving any legitimate

governmental objective under any reasonably conceivable fact situation.”).

In order to constitute a fundamental constitutional right, the alleged right must be

“objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of

1 The State’s Motion to Dismiss, filed on January 31, 2014, has not been ruled upon. Separate Defendants

respectfully submit that an adjudication of said Motion may very well moot some or all of the claims addressed in

Plaintiffs’ Motion for Summary Judgment and for this reason, Plaintiffs’ Motion is premature.


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ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.”

Glucksberg, 521 U.S. at 720-21 (quotations and citations omitted).

Determining whether there is a fundamental right to same-sex marriage is controlled by

Washington v. Glucksberg, which requires two steps. The first step is “a careful description of

the asserted fundamental liberty interest,” and the second step is adding to the canon only “those

fundamental rights and liberties which are objectively, deeply rooted in this Nation’s history and

tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would

exist if they were sacrificed.” 521 U.S. at 720-21. The liberty interest asserted by Plaintiffs in

this case is the right to marry a person of the same sex. This liberty interest is not deeply rooted

in any sense. Only about one-third of the States authorize same-sex marriage today, and no State

authorized same-sex marriage prior to this young Century.

Plaintiffs do not even attempt to meet the standard set out in Glucksberg, choosing

instead to treat Glucksberg as having been silently overruled by United States v. Windsor, 133

S.Ct. 2675 (2013). The Windsor majority did not hold that there is a fundamental right to same-

sex marriage. Further, the Supreme Court has expressed “reluctan[ce] to expand the concept of

substantive due process because guideposts for responsible decisionmaking in this unchartered

area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).

Accordingly, courts must “exercise the utmost care whenever . . . asked to break new ground in

this field.” Id. The Court should not conclude that the Glucksberg standard has been silently

overruled by Windsor in this significant area of constitutional jurisprudence.

Even in the absence of Glucksberg, Plaintiffs’ due process claim still fails under Baker v.

Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972). In Baker, the

Minnesota Supreme Court decided this precise due process claim when it rejected the


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petitioners’ claim that, by denial of their application for a marriage license, “petitioners are

deprived of liberty without due process and are denied the equal protection of the laws[.]”

Baker, 191 N.W.2d at 186. The court sharply rebuffed the claim that same-sex marriage was a

fundamental right, holding that “[t]he due process clause of the Fourteenth Amendment is not a

charter for restructuring [marriage] by judicial legislation.” Id. Of course, the Supreme Court’s

summary dismissal of the appeal in Baker constitutes a ruling on the merits of the Minnesota

Supreme Court’s decision in Baker, including the holding that there is no fundamental due

process right to same-sex marriage. See Mandel v. Bradley, 432 U.S. 173, 176 (1977) (summary

dismissals by the Court “prevent lower courts from coming to opposite conclusions on the

precise issues presented and necessarily decided by those actions.”). As explained in Citizens for

Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), Baker mandates “restraint” before

concluding that “a state statute or constitutional provision codifying the traditional definition of

marriage violates the Equal Protection Clause or any other provision of the United States

Constitution.” Bruning, 455 F.3d at 870-71. See also Massachusetts v. U.S. Dep’t of Health &

Human Servcs., 682 F.3d 1, 8 (1st Cir. 2012) (holding that Baker “limit[s] the arguments to ones

that do not presume or rest on a constitutional right to same-sex marriage.”). The Eighth Circuit

expressly rejected the notion of a fundamental right to same-sex marriage, and it applied

rational-basis review to a substantively identical state constitutional amendment in Bruning,

supra. This Court should follow that binding precedent.

Even in Windsor, the majority recognized that same-sex marriage is a new right, separate

and distinct from the fundamental “right to marry” discussed in earlier cases:

It seems fair to conclude that, until recent years, many citizens had

not even considered the possibility that two persons of the same

sex might aspire to occupy the same status and dignity as that of a

man and woman in lawful marriage. For marriage between a man


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and a woman had no doubt been thought of by most people as

essential to the very definition of that term and to its role and

function throughout the history of civilization.

133 S. Ct. at 2689. The Windsor majority also noted that “the limitation of lawful marriage to

heterosexual couples . . . for centuries ha[s] been deemed both necessary and fundamental.” Id.

Thus, under Windsor, same-sex marriage is not a fundamental due process right.

Plaintiffs’ asserted interest in marrying someone of the same sex is readily

distinguishable from the Supreme Court’s decisions affirming a fundamental right to marry,

which have always been premised on opposite-sex marriage. See Turner v. Safley, 482 U.S. 78,

82 (1987) (“[G]enerally only a pregnancy or the birth of an illegitimate child would be

considered a compelling reason” to permit the marriage of inmates affected by the challenged

prison regulation); Zablocki v. Redhail, 434 U.S. 374, 379 (1978) (“[A]ppellee and the woman

he desired to marry were expecting a child in March 1975 and wished to be lawfully married

before that time.”); Loving v. Virginia, 388 U.S. 1, 2 (1967) (describing the plaintiffs as “Mildred

Jeter, a Negro woman, and Richard Loving, a white man”). In fact, the Supreme Court’s

decisions discussing the “fundamental” right to marry have always recognized the historical

roots and societal importance of the traditional definition of marriage and its direct connection to

procreation. See, e.g., Zablocki, 434 U.S. at 386 (stating that marriage “is the foundation of the

family in our society . . . [I]f appellee’s right to procreate means anything at all, it must imply

some right to enter the only relationship in which the State of Wisconsin allows sexual relations

to legally take place”); Loving, 388 U.S. at 13 (“Marriage is one of the ‘basic civil rights of

man,’ fundamental to our very existence and survival.”); Skinner v. Oklahoma, 316 U.S. 535,

541 (1942) (“Marriage and procreation are fundamental to the very existence and survival of the

race.”). Plaintiffs’ reliance upon cases in which the Supreme Court has discussed the


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fundamental right to marry is misplaced – these cases actually cut against Plaintiffs’ plea for a

fundamental right to same-sex marriage.

Plaintiffs’ due process claim also fails under the great weight of authority that has

concluded that there is no fundamental right to same-sex marriage. See, e.g., Anderson v. King

Cnty., 138 P.3d 963, 979 (Wash. 2006) (en banc) (“Plaintiffs have not established that at this

time the fundamental right to marry includes the right to marry a person of the same sex.”);

Hernandez v. Robles, 855 N.E.2d 1, 10 (N.Y. 2006) (“[B]y defining marriage as it has, the New

York Legislature has not restricted the exercise of a fundamental right”); Lewis v. Harris, 908

A.2d 196, 2011 (N.J. 2006) (“[W]e cannot find that a right to same-sex marriage is so deeply

rooted in the traditions, history, and conscience of the people of this State that it ranks as a

fundamental right.”); Dean v. District of Columbia, 653 A.2d 307, 333 (D.C. 1995) (holding that

“same-sex marriage cannot be called a fundamental right protected by the due process clause”);

Baker, 191 N.W.2d at 186 (“The due process clause of the Fourteenth Amendment is not a

charter for restructuring [marriage] by judicial legislation.”).

2. The Challenged Laws Survive Rational-Basis Review Under The Due

Process Clause.

Because Plaintiffs’ claims do not involve a constitutionally-protected fundamental right,

their claims are subject to a rational-basis review, where law is presumed constitutional and

“[t]he burden is on the one attacking the legislative arrangement to negative every conceivable

basis which might support it.” Heller v. Doe, 509 U.S. 312, 320 (1993) (internal quotations

omitted). A court conducting a rational-basis review does not sit “as a superlegislature to judge

the wisdom or desirability of legislative policy determinations,” but only asks whether there is

some conceivable rational basis for the challenged statute. Id. at 319.


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In enacting Amendment 83, the citizens of Arkansas had “absolutely no obligation to

select the scheme” that a court might later conclude was best. Nat'l R.R. Passenger Corp. v.

A.T.& S.F.R. Co., 470 U.S. 451, 477 (1985). “It is enough that there is an evil at hand for

correction, and that it might be thought that the particular legislative measure was a rational way

to correct it.” Williamson v. Lee Optical of Okla., 348 U.S. 483, 487-88 (1955). Amendment 83

does not have to be perfect in order to be constitutional. See McGowan v. Maryland, 366 U.S.

420, 425-426 (1961) (“State legislatures are presumed to have acted within their constitutional

power despite the fact that in practice, their laws result in some inequality.”). The presumption

that a law is constitutional even though it may be imperfect is even stronger with regard to laws

passed by the citizens themselves at the ballot box. See Nordlinger v. Hahn, 505 U.S. 1, 10

(1992) (upholding an initiated act approved by California voters).

Beginning its rational-basis review with the acknowledgement of the fact that “the

institution of marriage has always been, in our federal system, the predominant concern of state

government,” the Eighth Circuit in Bruning noted the State’s argument in support of its marriage

laws, namely “[b]y affording legal recognition and a basket of rights and benefits to married

heterosexual couples, such laws ‘encourage procreation to take place within the socially

recognized unit that is best situated for raising children.’” 455 F.3d at 867.

The State and its supporting amici cite a host of judicial decisions and secondary

authorities recognizing and upholding this rationale. The argument is based in part

on the traditional notion that two committed heterosexuals are the optimal

partnership for raising children, which modern-day homosexual parents

understandably decry. But it is also based on a “responsible procreation” theory

that justifies conferring the inducements of marital recognition and benefits on

opposite-sex couples, who can otherwise produce children by accident, but not on

same-sex couples, who cannot.

Id. (citations omitted).


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The Court concluded, “Whatever our personal views regarding this political and

sociological debate, we cannot conclude that the State's justification “‘lacks a rational

relationship to legitimate state interests.’” Id. at 867-68 (citing Romer v. Evans, 517 U.S. 620,

632 (1996)).

“Even if the classification . . . is to some extent both underinclusive and

overinclusive, and hence the line drawn . . . imperfect, it is nevertheless the rule

that . . . perfection is by no means required.” Vance v. Bradley, 440 U.S. 93, 108,

99 S.Ct. 939, 59 L.Ed.2d 171 (1979). Legislatures are permitted to use

generalizations so long as “the question is at least debatable.” Heller, 509 U.S. at

326, 113 S.Ct. 2637 (quotation omitted). The package of government benefits

and restrictions that accompany the institution of formal marriage serve a variety

of other purposes. The legislature-or the people through the initiative process-may

rationally choose not to expand in wholesale fashion the groups entitled to those

benefits. “We accept such imperfection because it is in turn rationally related to

the secondary objective of legislative convenience.” Vance, 440 U.S. at 109, 99

S.Ct. 939.

Id. at 868.

Moreover, the United States Supreme Court has recognized a bevy of legitimate state

interests that are directly implicated and furthered by Amendment 83 and Act 144 of 1997: (1)

the basic premise of the referendum process, which is that political power flows from the people

to their government on issues of vital importance to the public;2 (2) advancement of procreation

2 See, e.g., Bond v. U.S., 131 S. Ct. 2355, 2364 (2011) (explaining that the federal system

secures liberties to citizens, not states, including liberties to enact local policies more sensitive to

the diverse needs of a heterogeneous society, liberty to conduct innovation and experimentation,

and liberty to have direct involvement in the political process; federalism “allows States to

respond, through the enactment of positive law, to the initiative of those who seek a voice in

shaping the destiny of their own times without having to rely solely upon the political processes

that control a remote central power.”); James v. Valtierra, 402 U.S. 137, 141 (1971) (“Provisions

for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice.”).


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1996118409












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by encouraging the development of biologically procreative relationships;3 (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 (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 (5) preservation of the public purposes and social norms linked to

the historical and deeply-rooted meaning of marriage;6 and (6) a cautious, historical approach to

governmental social experimentation as democratic, cultural and scientific discussions proceed.7

3 See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (“[Marriage] is the foundation

of the family in our society . . . [I]f appellee’s right to procreate means anything at all, it must

imply some right to enter the only relationship in which the State of Wisconsin allows sexual

relations legally to take place.”); Loving v. Va., 388 U.S. 1, 12 (1967) (“Marriage is one of the

‘basic civil rights of man,’ fundamental to our very existence and survival.”); Skinner v. Okla.,

316 U.S. 535, 541 (1942) (“Marriage and procreation are fundamental to the very existence and

survival of the race.”).

4 See, e.g., Nordlinger v. Hahn, 505 U.S. 1, 17 (1992) (promotion of family continuity

and stability is a legitimate state interest); Quilloin v. Walcott, 434 U.S. 246, 255 (1978)

(promotion of the best interests of children is a legitimate state interest).

5 See, e.g., Glucksberg, supra, 521 U.S. at 720; Parham v. Hughes, 441 U.S. 347, 357-58

(1979) (the state has a legitimate interest in the maintenance of an accurate and efficient system

in matters of family and inheritance); Storer v. Brown, 415 U.S. 724, 736 (1974) (stability of the

political system is a compelling state interest).

6 See, e.g., Maynard v. Hill, 125 U.S. 190, 211 (1888) (Marriage is “the foundation of the

family and of society, without which there would be neither civilization nor progress.”).

7 See, e.g., District Attorney’s Office for Third Jud. Dist. v. Osborne, 557 U.S. 52, 72-73

(2009) (state legislative responses to emerging technology in the context of DNA evidence are

preferred over judicial interference; “[t]o suddenly constitutionalize this area would short-circuit

what looks to be a prompt and considered legislative response”); Murray v. Giarratano, 492 U.S.

1, 14 (1989) (Kennedy, J., concurring) (“[J]udicial imposition of a categorical remedy . . . might

pretermit other responsible solutions being considered in Congress and state legislatures.”);

Chandler v. Florida, 449 U.S. 560, 579 (1981) (“To stay experimentation in things social and

economic is a grave responsibility. Denial of the right to experiment may be fraught with serious

consequences to the Nation. It is one of the happy incidents of the federal system that a single

courageous State may, if its citizens choose, serve as a laboratory; and try novel social and

economic experiments without risk to the rest of the country. This Court has the power to


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Any of these rational bases alone, and any other conceivable rational basis, is sufficient to affirm

the constitutionality of Amendment 83 and Act 144 of 1997. Plaintiffs’ rational-basis challenge

should be rejected for this reason alone. See also Bd. of Trustees of Univ. of Alabama v. Garrett,

531 U.S. 356, 366-67 (2001) (“[W]here a group possesses distinguishing characteristics relevant

to interests the State has the authority to implement, a State’s decision to act on the basis of those

differences does not give rise to a constitutional violation.”); Kimel v. Florida Bd. of Regents,

528 U.S. 62, 84 (2000) (stating that courts “will not overturn such [classifications] unless the

varying treatment of different groups or persons is so unrelated to the achievement of any

combination of legitimate purposes that we can only conclude that the [classifications] were

irrational.”) (citation and quotation marks omitted); Vacco v. Quill, 521 U.S. 793, 799 (1997)

(“The Constitution does not require things which are different in fact or opinion to be treated in

law as though they were the same.”); Vance v. Bradley, 440 U.S. at 108-09 (“Even if [a]

classification . . . is to some extent both underinclusive and overinclusive, and hence the line

drawn by [the people] imperfect, it is nevertheless the rule that in [rational-basis review]

‘perfection is by no means required.’”) (quoting Phillips Chemical Co. v. Dumas Sch. Dist., 361

U.S. 376, 385 (1960)).

The citizens of Arkansas amended the State Constitution to include a particular definition

of marriage. As the Eighth Circuit has held, “there is no fundamental right to be free of the

political barrier a validly enacted constitutional amendment erects.” Bruning, 455 F.3d at 868.

As one court explained:

prevent an experiment . . . But in the exercise of this high power, we must be ever on our guard,

lest we erect our prejudices into legal principles.”) (quoting New State Ice Co. v. Liebmann, 285

U.S. 262, 311 (1932) (Brandeis, J., dissenting)).


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Nationwide, citizens are engaged in a robust debate over this

divisive social issue. If the traditional institution of marriage is to

be restructured, as sought by Plaintiffs, it should be done by a

democratically-elected legislature or the people through a

constitutional amendment, not through judicial legislation that

would inappropriately preempt democratic deliberation regarding

whether or not to authorize same-sex marriage.

Jackson v. Abercrombie, 884 F.Supp.2d at 1072. As these courts have noted, the relief requested

in this case does not lie with the judicial branch, but in the democratic process.

In an attempt to avoid the proper description of their asserted due process interest as an

interest in same-sex marriage, it appears Plaintiffs are attempting to characterize their due

process claim in terms of autonomy. See Brief in Support of Plaintiffs’ Motion for Summary

Judgment, p. 15. Plaintiffs’ attempt to repackage their due process claim as a family autonomy

claim fails because marriage does not determine or control parental rights. See Brief in Support

of State’s Motion to Dismiss, pp. 21-23. Even if there were a connection between Plaintiffs’

claim of a liberty interest in same-sex marriage and their right to family autonomy, which there

is not, this characterization of a fundamental due process right to same-sex marriage as implicit

in the notions of liberty and autonomy would conflict with Glucksberg, where the Court

emphasized that simply because “many of the rights and liberties protected by the Due Process

Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all

important, intimate, and personal decisions are so protected.” Id., 521 U.S. at 727-28. No

autonomy case relied upon by Plaintiffs “involve[s] whether the government must give formal

recognition to any relationship that homosexual persons seek to enter.” Lawrence v. Texas, 539

U.S. 558, 578 (2003). Unlike cases about laws that directly and explicitly burdened individual

rights to privacy, autonomy, and the freedom of association, this case is precisely about “whether

the government must give formal recognition” to Plaintiffs’ relationships. Id. Plaintiffs request


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“formal recognition” of their relationships by the State. Whether Plaintiffs receive the relief they

request or not, Plaintiffs remain free to associate with whomever they please, and engage in

protected private conduct, without any intrusion by the State under Amendment 83 and Act 144

of 1997. Plaintiffs’ constitutional rights to autonomy are simply not implicated in this case.

In summary, Amendment 83 and Arkansas’s marriage laws satisfy the rational-basis test.

Plaintiffs’ request for summary judgment should be denied on Plaintiffs’ due process claims.

3. Arkansas’s Marriage Laws Do Not Implicate Plaintiffs’ Right To Travel

Plaintiffs’ assertion that Amendment 83 and the challenged statutes violate their

constitutionally protected right to interstate travel should be denied. Plaintiffs claim that the

right to interstate travel is derived from the Due Process Clause of the Fourteenth Amendment.

See Amended Complaint, ¶ 60 (“Defendants, acting under color of state law, are depriving

Plaintiffs of the right to travel, a right secured by the Due Process Clause of the Fourteenth

Amendment to the United States Constitution”). Because Plaintiffs rely on the federal

constitution for their right to travel claim, the claim is barred in the Eighth Circuit by Bruning,

and barred nationwide under Baker and subsequent United States Supreme Court cases that have

declined to overrule Baker, including Lawrence, Perry, and Windsor. Plaintiffs’ interstate travel

claim should be dismissed without further inquiry.

Additionally, even without the binding precedent of Baker and Bruning, when Plaintiffs’

interstate travel claim is analyzed as a separate and distinct claim from Plaintiffs’ other

constitutional claims, the interstate travel claim fails under well-established law. The word

“travel” is not found in the text of the Constitution. “Yet the ‘constitutional right to travel from

one State to another’ is firmly embedded in our jurisprudence.” Saenz v. Roe, 526 U.S. 489, 498

(1999) (quoting U.S. v. Guest, 383 U.S. 745, 757 (1966)). The constitutional right to travel


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embraces three different components: (1) the right of a citizen of one State to enter and to leave

another State; (2) the right to be treated as a welcome visitor rather than an unfriendly alien when

temporarily present in the second State; and (3) the right to be treated like a permanent resident,

for those travelers who elect to become permanent residents of the second State. Saenz, 526 U.S.

at 500. Amendment 83 and Act 144 of 1997 do not violate, or even burden, any of these three

components of the right to travel.

The first component of the right to travel, the right to move from state to state, is affected

only when a statute directly impairs the exercise of the right to free interstate movement by

imposing some obstacle on travelers. Id. at 500-501. For example, in Edwards v. Cal., 314 U.S.

160 (1941), the Court invalidated California’s “anti-Okie” law that made it a crime to bring an

indigent person into California. Id. Here, Plaintiffs do not allege that Amendment 83 imposes

any actual obstacle on travelers into Arkansas. Plaintiffs are Arkansas residents, not travelers.

The first component of the right to travel is not implicated in this case. The second component

of the right to travel, the right to be temporarily present in a second state, is also not implicated

here for the same reasons.

The third component of the right to travel has been characterized by the Supreme Court

as “the right of the newly arrived citizen to the same privileges and immunities enjoyed by other

citizens of the same State.” Saenz, 526 U.S. at 502. In this case, Plaintiffs’ interstate travel

claim appears to be of the third variety, as Plaintiffs assert that Arkansas law’s refusal to

recognize their marriages from other jurisdictions infringes their right to travel when Plaintiffs

choose “to make a home in Arkansas.” Amended Complaint, ¶ 58. However, Amendment 83

and the challenged statutes make no distinction between or among citizens of Arkansas based

upon the length of their citizenship or residency in Arkansas. No resident of Arkansas, whether


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they have been a resident of Arkansas for a single day or for decades, may lawfully marry a

person of the same sex under Arkansas law. Arkansas law does not recognize any same-sex

marriage obtained by an Arkansas resident in another jurisdiction, whether the Arkansas resident

has been a resident of Arkansas for a single day, or for decades. Simply put, Arkansas marriage

law treats all citizens of Arkansas exactly the same, regardless of whether they previously lived

in another state, regardless of the length of their residence in Arkansas, and regardless of whether

they have married in another jurisdiction. Because Arkansas marriage law does not treat any

citizen any differently on the basis of their residence, the length of their residence, their former

residence elsewhere, or their interstate travel (or lack thereof), there can be no violation of the

constitutionally protected right to interstate travel.

A similar argument was considered by the Supreme Court in Califano v. Torres, 435 U.S.

1 (1978). In Torres, the plaintiff received Supplemental Security Income (SSI) benefits while

residing in Connecticut. 435 U.S. at 2. When the plaintiff moved to Puerto Rico, his benefits

were terminated because residents of Puerto Rico were not eligible for the benefits. Id. at 2-3.8

The plaintiff claimed that the termination of his SSI benefits unconstitutionally burdened his

right to interstate travel. Id. at 3. The Court rejected the plaintiff’s argument, which it

summarized as follows: “a person who travels to Puerto Rico must be given benefits superior to

those enjoyed by other residents of Puerto Rico if the newcomer enjoyed those benefits in the

State from which he came.” Id. at 4. The Court concluded that the plaintiff’s argument

“altogether transposed” the right to travel – which only requires that new residents of a state be

8 While Puerto Rico is not a state, the Court specifically noted that its unique relationship

to the United States was irrelevant for the purposes of the right to interstate travel: “[f]or

purposes of this opinion we may assume that there is a virtually unqualified right to travel

between Puerto Rico and any of the 50 States of the Union.” Torres, 435 U.S. at 4 n.6.

Therefore, for purposes of its opinion in Torres, the Court treated Puerto Rico as if it was a state.


15

given the same benefits as other residents of the state. Id. The Court summarized the reasoning

for this rule as follows:

This Court has never held that the constitutional right to travel

embraces any such doctrine, and we decline to do so now. Such a

doctrine would apply with equal force to any benefits a State might

provide for its residents . . . And the broader implications of such a

doctrine in other areas of substantive law would bid fair to destroy

the independent power of each State under our Constitution to

enact laws uniformly applicable to all of its residents.

Id. at 4-5 (emphasis added). See also Schatz v. Interfaith Care Center, 811 N.W.2d 643, 656

(Minn. 2012) (“Applying Torres, we conclude that Schatz’s argument that she is entitled to more

workers’ compensation benefits than other Wyoming residents because she would have received

those benefits in Minnesota lacks merit. Like the plaintiff in Torres, Schatz seeks to transpose

the right to travel into a right to provide a newcomer with the same benefits enjoyed in a

previous state of residence. But the right to travel does not, and has never been construed to,

require a state to provide a new resident with the same benefits that the new resident received in

her former state.”); Matsuo v. U.S., 532 F.Supp.2d 1238, 1250 (D. Haw. 2008) (“For those

federal employees who have exercised their right to travel to Hawaii or Alaska, or were deterred

by FEPCA from doing so, the Supreme Court expressly has rejected the proposition that the right

to interstate travel includes the right to receive the same level of benefits in the citizen’s new

state as the citizen enjoyed in the former state of residence.”); Bess v. Bracken County Fiscal

Court, 210 S.W.3d 177, 183 (Ky. App. 2006) (“The constitutional right to travel does not require

that when traveling to another jurisdiction, a person must be given benefits which are superior to

those enjoyed by the jurisdiction’s own residents simply because the traveler enjoyed those

benefits in another place.”).


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Amendment 83 and the challenged statutes make no distinction between new residents

and other residents of Arkansas; all residents including Plaintiffs are treated exactly the same.

Plaintiffs’ assertion that their right to travel is violated because Arkansas fails to recognize

marriages Plaintiffs obtained in other states would “altogether transpose” the right to travel in

direct conflict with binding Supreme Court precedent. Accordingly, Plaintiffs’ request for

summary judgment on their interstate travel claim should be denied.

B. Plaintiffs Are Not Entitled to Summary Judgment On Their Equal

Protection Claims.

1. Plaintiffs have not been treated differently on the basis of gender, and

sexual orientation is not a suspect classification under Eighth Circuit

precedent.

In their summary judgment motion, Plaintiffs argue that the Eighth Circuit’s decision in

Bruning is not controlling authority for any of their claims. Plaintiffs claim that “Bruning

cursorily concluded that [same-sex] marriage bans must be valid because such laws have existed

in the past and because only opposite-sex couples can biologically procreate.” Id. (citing

Bruning, 455 F.3d at 867-68). Citing district court opinions from jurisdictions which all lie

outside of the Eighth Circuit, Plaintiffs urge this Court to ignore Bruning, despite the fact that it

is squarely on point with Plaintiffs’ claims and is still controlling law in this Circuit. A district

court outside the Eighth Circuit may properly choose to ignore an otherwise persuasive Eighth

Circuit decision that it deems to be “cursory”; a district court within the Eighth Circuit, in

contrast, should follow a binding Eighth Circuit precedent regardless of the brevity of the higher

court’s analysis.

In Bruning, the Eighth Circuit explicitly held that the very same equal protection

argument levied by Plaintiffs in this case “fails on the merits.” Bruning, 459 F.3d at 869. The

Eighth Circuit also explicitly held that sexual orientation is not a suspect classification for equal


17

protection purposes; that rational-basis review applies to a state law codifying the traditional

definition of marriage; and that a state law codifying the traditional definition of marriage is

rationally related to legitimate state interests as a matter of law. Id. at 864-69.

Because Plaintiffs cannot argue around the holding of Bruning, Plaintiffs argue that

Windsor has overruled Bruning. However, a fair reading of the majority’s opinion in Windsor

leads to the inescapable conclusion that Windsor does not overrule Bruning, and Bruning

remains controlling in the Eighth Circuit. In Windsor, the Supreme Court concluded that the

federal government lacked a legitimate basis to codify the traditional definition of marriage. On

the other hand, as expressly noted by the Supreme Court in Windsor, “[t]he definition of

marriage is the foundation of the State’s broader authority to regulate the subject of domestic

relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of

marital responsibilities.’” 133 S. Ct. at 2691 (quoting Williams v. North Carolina, 317 U.S. 287,

298 (1942) (alteration in original, emphasis added)). See also Haddock v. Haddock, 201 U.S.

562, 575 (1906), overruled on other grounds by Williams v. North Carolina, 317 U.S. 287 (“The

states, at the time of the adoption of the Constitution, possessed full power over the subject of

marriage and divorce . . .[and] the Constitution delegated no authority to the government of the

United States on the subject.”). “Consistent with this allocation of authority [to the States], the

Federal Government, through our history, has deferred to state-law policy decisions with respect

to domestic relations.” Windsor, 133 S. Ct. at 2691.

Pursuant to the States’ exclusive authority over domestic relations, including the

definition of marriage, the States have reached different definitions of marriage. This is

precisely why the federal government was prohibited from implementing a single federal

definition in Windsor. Because the States have reached different definitions of marriage, and


18

only the States, but not the federal government, have a legitimate interest in defining marriage,

each State’s choice to define marriage is protected by the States’ “historic and essential authority

to define the marital relation” free from “federal intrusion on state power[.]” Windsor, 133 S. Ct.

at 2692. The federal law challenged in Windsor “reject[ed] the long-established precept that the

incidents, benefits, and obligations of marriage are uniform for all married couples within each

State, though they may vary, subject to constitutional guarantees, from one State to the next.” Id.

In Windsor, the decision of the State of New York to recognize same-sex marriage was

“without doubt a proper exercise of its sovereign authority within our federal system, all in the

way that the Framers of the Constitution intended.” Id. By attempting to implement a single

federal definition of marriage that conflicted with the definition chosen by the State of New

York, Congress “depart[ed] from this history and tradition of reliance on state law to define

marriage.” Id. In other words, Congress “interfer[ed] with the equal dignity of same-sex

marriages, a dignity conferred by the States in the exercise of their sovereign power[.]” Id. at

2693.

The majority opinion in Windsor affirms the principle that the States have sovereign

authority over the definition of marriage in each State, and the federal government cannot take

any position in the marriage debate. There can be no doubt that if the federal law challenged in

Windsor had codified a different definition of marriage, and the federal definition conflicted with

the definition codified by any State, then the federal law would have been stricken as an

improper “federal intrusion on state power[.]” 133 S. Ct. at 2692. Windsor does not command

any particular definition of marriage under state law. Directly to the contrary, Windsor confirms

that the States possess sovereign authority to define marriage, and the federal government must

respect and recognize the definition of marriage chosen by each sovereign State. Where the


19

State of New York exercised its sovereign authority to recognize same-sex marriage, the federal

government’s “unusual deviation from the usual tradition of recognizing and accepting state

definitions of marriage” operated “to deprive same-sex couples [authorized to marry in New

York] of the benefits and responsibilities that come with the federal recognition of their

marriages.” Id. at 2693. Significantly, in the final sentence of their opinion, the Windsor

majority made clear that the “opinion and its holdings are confined to those lawful marriages”

(id. at 2696) – referring to same-sex marriages that a State has chosen to recognize as a result of

that State community’s “considered perspective on the historical roots of the institution of

marriage and its evolving understanding of the meaning of equality.” Id. at 2681.

Accordingly, as explained by Chief Justice Roberts in his dissenting opinion, “the Court

[did] not have before it, and the logic of its opinion [did] not decide, the distinct question

whether the States, in the exercise of their ‘historic and essential authority to define the marital

relation,’ may continue to utilize the traditional definition of marriage.” Windsor, 133 S. Ct. at

2696 (Roberts, C.J., dissenting) (internal citation omitted). Moreover, directly contrary to

Plaintiffs’ strenuous contention that Windsor commands an equal protection ruling in their favor

regarding a state law codifying the traditional definition of marriage, “it is undeniable that [the

majority’s] judgment is based on federalism.” Id. at 2697. Thus, while “[t]he State’s power in

defining the marital relation [was] of central relevance” to the majority’s decision to strike down

a federal law defining marriage (id. at 2692), “that power will come into play on the other side of

the board in future cases about the constitutionality of state marriage definitions. So too will the

concerns for state diversity and sovereignty that weigh against [the federal law’s]

constitutionality in [Windsor].” Id. at 2697 (Roberts, C.J., dissenting).


20

Therefore, contrary to Plaintiff’s assertions, the Windsor opinion is entirely consistent

with Bruning, in which the Eighth Circuit affirmed the constitutionality of a state law codifying

the traditional definition of marriage.9 Windsor requires the federal government to recognize

marriages authorized by the States pursuant to the sovereign authority of the States over the

definition of marriage in the States. Windsor does not require the States to codify a particular

definition of marriage. In fact, Windsor confirms the sovereign authority of each State to choose

whether to continue to utilize the traditional definition of marriage, or expand the definition of

marriage to same-sex couples. Either choice by an individual State must be respected by the

federal government as the sovereign choice of that State. For this reason, Amendment 83 and

Arkansas Act 144 of 1997 are constitutional under Bruning and Windsor.

This Court is bound by Bruning and as such, Plaintiffs should be denied summary

judgment on their equal protection claims.

9 Windsor is also fully consistent with Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971),

appeal dismissed, 409 U.S. 810 (1972), discussed in detail in the brief supporting Defendants’

Motion to Dismiss at 17-18. Baker reflects the same principles of federalism affirmed in 2013

by Windsor. Both Baker and Windsor confirm that the State has the sovereign authority to retain

the traditional definition of marriage. When read together, Baker and Windsor establish a

principled, federalism-based resolution to the difficult question of same-sex marriage: Baker

leaves the definition of marriage for each State to decide, while Windsor prohibits the federal

government from interfering in a State’s decision to allow same-sex marriage.

Inferior courts (including this Court and the federal district courts outside the Eighth

Circuit that have rendered decisions since Windsor) lack the authority to depart from binding

Supreme Court precedent. The Supreme Court has held in no uncertain terms that “[i]f a

precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in

some other line of decisions,” lower courts “should follow the case which directly controls,

leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v.

Shearson / Am. Express, Inc., 490 U.S. 477, 484 (1989). Given the clarity of Baker and Bruning,

and their full consistency with Windsor, Plaintiffs’ plea for heightened scrutiny based upon

factors for determining when a classification should be subjected to heightened scrutiny must be

rejected. Summary judgment can and should be granted to the Defendants based upon Baker,

Bruning, and Windsor, without further inquiry.


21

2. Arkansas’s Marriage Laws Satisfy The Equal Protection Clause’s

Rational-Basis Test.

As with rational-basis review under the doctrine of substantive due process (see part

II(A)(2), supra), Arkansas’s Marriage laws pass rational-basis scrutiny under the Equal

Protection Clause. Plaintiffs’ conclusory rejection of conceivable rational bases “misapprehend

the nature of rational-basis scrutiny, which is the most relaxed and tolerant form of scrutiny[.]”

City of Dallas v. Stanglin, 490 U.S. 19, 26 (1989). Especially when applied to a state

constitutional amendment enacted by popular vote of the people, rational-basis review is a

“paradigm of judicial restraint” that denies courts any “license . . . to judge the wisdom, fairness,

or logic of legislative choices.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14 (1993).

See also City of Lowell v. M & N Mobile Home Park, 323 Ark. 332, 340, 916 S.W.2d 95, 100

(1996) (“In summary, the party alleging that legislation is arbitrary has the burden of proving

that there is no rational basis for the legislative act, and regardless of the evidence introduced by

the moving party, the legislation is presumed to be valid and is to be upheld if the judicial branch

finds a rational basis for it. It is not for the judicial branch to decide from evidence introduced

by the moving party whether the legislative branch acted wisely.”). Moreover, “rational-basis

review must be particularly deferential” when courts review challenges to marriage laws.

Bruning, 455 F.3d at 867.

a. News reports and the like have no place in the Court’s

analysis.

Plaintiffs rely in part upon news media reports and alleged statements of outside interest

groups to support their contention that Amendment 83 and Act 144 of 1997 further no

conceivable rational basis. See Plaintiffs’ Brief, pp. 5-7, 25 n.7. Plaintiffs’ reliance upon such

sources is inappropriate and should be disregarded by the Court. Plaintiffs do not allege that


22

Amendment 83 and the referenced statutes are ambiguous. To the contrary, Plaintiffs generally

contend that the laws they challenge are crystal clear and plainly violate their constitutional

rights. Because Plaintiffs concede that the language of Amendment 83 and the referenced

statutes is plain and unambiguous, the Court need not and should not consider outside sources

such as news media reports and statements of outside interest groups, in the Court’s construction

of these laws. “Extrinsic materials have a role in statutory interpretation only to the extent they

shed a reliable light on the enacting Legislature's understanding of otherwise ambiguous terms.”

Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568 (2005). “If the plain language

of the statute is unambiguous, that language is conclusive absent clear legislative intent to the

contrary.” Norwest Bank of North Dakota, N.A. v. Doth, 159 F.3d 328, 333 (8th

Cir. 1998).

There is nothing ambiguous about Arkansas’s marriage statutes, nor any claim that such

ambiguity exists. For this reason, it is unnecessary to determine legislative intent and improper

to consider extrinsic sources for the purposes making such a determination.

Moreover, even if the State’s marriage laws were allegedly ambiguous, consideration of

outside evidence such as newspaper articles and media broadcasts, or statements of outside

interest groups, is inappropriate to determine the voters’ intent behind a constitutional provision.

“When the meaning of a statute is questionable, it should be given a sensible construction and

construed to effectuate the underlying purposes of the law.” United States v. S.A., 129 F.3d 995,

998 (8th

Cir. 1997). As the Eighth Circuit has said,

All statutes must be given a sensible construction. The sole object of construction

is to determine the legislative intent. Such intent must be found primarily in the

language of the statute itself; but when the language is ambiguous or the meaning

is doubtful, the court should consider the purpose, the subject matter and the

condition of affairs which led to its enactment, and so construe it as to effectuate

and not destroy the spirit and force of the law and not to render it absurd.

American Tobacco Co. v. Werckmeister, 207 U.S. 284, 28 S.Ct. 72, 52 L.Ed. 208,

12 Ann.Cas. 595; United States v. Katz, 271 U.S. 354, 46 S.Ct. 513, 70 L.Ed. 986;


https://web2.westlaw.com/find/default.wl?mt=5&db=506&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=1998070245&serialnum=1997227036&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=0EC1C0A0&referenceposition=998&rs=WLW14.04

https://web2.westlaw.com/find/default.wl?mt=5&db=506&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=1998070245&serialnum=1997227036&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=0EC1C0A0&referenceposition=998&rs=WLW14.04

https://web2.westlaw.com/find/default.wl?mt=5&db=708&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=1945115167&serialnum=1907100454&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=D84B8AB2&rs=WLW14.04



23

United States v. Cooper Corporation, 312 U.S. 600, 61 S.Ct. 742, 85 L.Ed. 1071.

A remedial statute should be liberally construed to effect the purpose of Congress

and to give remedy in all cases intended to be covered. Miller v. Robertson, 266

U.S. 243, 248, 45 S.Ct. 73, 69 L.Ed. 265.

Lambur v. Yates, 148 F.2d 137 (8th

Cir. 1945).

In summary, Plaintiffs’ reliance upon news media reports and statements of outside

interest groups is inappropriate and irrelevant in giving effect to legislative intent and should be

disregarded.

b. Arkansas’s laws against same-sex marriage are rationally

related to legitimate state interests.

Aside from Plaintiffs’ misguided references to news articles, Plaintiffs offer nothing more

than platitudes and conclusory statements to support their contention that Amendment 83 and the

Arkansas marriage laws serve no purpose other than to harm a politically unpopular group.

Plaintiffs offer no scientific research, no expert testimony, no evidence whatsoever, to meet their

burden of proving that Amendment 83 and Act 144 of 1997 are not rationally related to any

legitimate government interest under any conceivable circumstances. Of course, even if

Plaintiffs offered evidence to contest the proffered rational bases for Arkansas’s marriage laws

(though Plaintiffs have thus far made no such effort), the rational bases for Arkansas’s marriage

laws cannot be second-guessed by the judiciary without a showing that no rational person could

possibly believe the rational bases. See, e.g., Vance Bradley, 440 U.S. 93, 112 (1979) (“It makes

no difference that the [legislative] facts may be disputed or their effect opposed by argument of

serious strength. It is not within the competency of the courts to arbitrate in such contrariety.”)

(internal quotation marks omitted).

Plaintiffs argue that allowing same-sex marriage would not harm the interests furthered

by the State’s traditional definition of marriage, and therefore according to Plaintiffs, their





24

exclusion from the State’s marriage definition constitutes invidious discrimination. This

argument, however, misinterprets applicable law under the rational-basis test. Under a rational-

basis review, a classification must be sustained if the inclusion of one group furthers a legitimate

governmental purpose, and the addition of other groups would not further the same governmental

purpose. See Johnson v. Robison, 415 U.S. 361, 383 (1947) (“When, as in this case, the

inclusion of one group promotes a legitimate governmental purpose, and the addition of other

groups would not, we cannot say that the statute’s classification of beneficiaries and

nonbeneficiaries is invidiously discriminatory.”). Thus, under the rational-basis test, it is not

Arkansas’s burden to show that “denying marriage to same-sex couples is necessary to promote

the state’s interest or that same-sex couples will suffer no harm by an opposite-sex definition of

marriage.” Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1108 (D. Haw. 2012) (citation

omitted). Rather, “the relevant question is whether an opposite-sex definition of marriage

furthers legitimate interests that would not be furthered, or furthered to the same degree, by

allowing same-sex couples to marry.” Id.

As discussed more fully in section II(A)(2) above, there can be no legitimate dispute that

Amendment 83 and Arkansas’s marriage laws further legitimate interests that would not be

furthered to the same degree by allowing same-sex marriages. Plaintiffs’ rational-basis

challenge should be rejected for this reason alone. See also Bd. of Trustees of Univ. of Alabama

v. Garrett, 531 U.S. 356, 366-67 (2001) (“[W]here a group possesses distinguishing

characteristics relevant to interests the State has the authority to implement, a State’s decision to

act on the basis of those differences does not give rise to a constitutional violation.”); Kimel v.

Florida Bd. of Regents, 528 U.S. 62, 84 (2000) (stating that courts “will not overturn such

[classifications] unless the varying treatment of different groups or persons is so unrelated to the


25

achievement of any combination of legitimate purposes that we can only conclude that the

[classifications] were irrational.”) (citation and quotation marks omitted); Vacco v. Quill, 521

U.S. 793, 799 (1997) (“The Constitution does not require things which are different in fact or

opinion to be treated in law as though they were the same.”); Vance v. Bradley, 440 U.S. at 108-

09 (“Even if [a] classification . . . is to some extent both underinclusive and overinclusive, and

hence the line drawn by [the people] imperfect, it is nevertheless the rule that in [rational-basis

review] ‘perfection is by no means required.’”) (quoting Phillips Chemical Co. v. Dumas Sch.

Dist., 361 U.S. 376, 385 (1960)).

Plaintiffs cannot meet their burden under the rational-basis test. Amendment 83 and

Arkansas Act 144 of 1997 are rationally related to numerous conceivable rational bases, and are

therefore constitutional. Plaintiffs’ summary judgment motion should be denied.

C. Plaintiffs’ Motion For Summary Judgment Should Be Denied, And

Summary Judgment Should Be Granted To The Defendants, On The

Married Plaintiffs’ Challenges Against Arkansas’s “Anti-Recognition Laws.”

The married Plaintiffs, who seek to compel the State of Arkansas to give formal

recognition to their marriages obtained in other jurisdictions, essentially levy three arguments:

(1) that Arkansas’s refusal to recognize same-sex marriages of other jurisdictions is

unconstitutional because it deviates from Arkansas’s tradition of recognizing valid marriages

from other states; (2) that Arkansas’s refusal to recognize same-sex marriages of other

jurisdictions deprives the married Plaintiffs of their due process and equal protection rights under

the United States Constitution; and (3) that Arkansas’s refusal to recognize same-sex marriages

of other jurisdictions undermines goals of federalism. Although Plaintiffs attempt to characterize

the “anti-recognition” claims of the married Plaintiffs separately from the claims of the

unmarried Plaintiffs who seek to marry in Arkansas, the legal analysis for the claims is the same.


26

The married Plaintiffs’ argument regarding Arkansas’s “tradition” of recognizing

marriages of other jurisdictions fails for the same reason that any state-law claim brought by

Plaintiffs fails as a matter of law: Amendment 83 is part of the Arkansas Constitution and

therefore Amendment 83 cannot be challenged under Arkansas law as a matter of well-settled

law. The due process and equal protection claims of the married Plaintiffs who seek to compel

the State to formally recognize their marriages are subject to the same analysis, and fail for the

same reasons, as the due process and equal protection claims of the unmarried Plaintiffs who

seek to compel the State to allow them to marry. And, Plaintiffs’ federalism argument fails

because the Supreme Court has explicitly affirmed its deference to the “sovereign” States in the

definition and regulation of marriage in Windsor. For the reasons explained above, federalism

concerns militate in favor of state laws codifying the traditional definition of marriage, not

against such laws. Summary judgment should be granted to the Defendants on the married

Plaintiffs’ challenges against the so-called “anti-recognition” provisions of Arkansas law.


27

Respectfully Submitted,

RICHARD WEISS, In His Official Capacity

And His Successors in Interest; GEORGE

HOPKINS, In His Official Capacity And

His Successors In Interest; and DUSTIN

MCDANIEL, In His Official Capacity and

His Successors in Interest

By: /s/ Nga Mahfouz

Nga Mahfouz AR Bar No. 96149

Assistant Attorney General

323 Center Street, Suite 200

Little Rock, Arkansas 72201

Telephone: (501) 682-5311

Facsimile: (501) 682-2591

E-mail: [email protected]

Attorney for Director Richard Weiss and

Executive Director George Hopkins

CERTIFICATE OF SERVICE

I, Nga Mahfouz, Assistant Attorney General, do hereby certify that on July 30, 2014, I

electronically filed the forgoing with the Clerk of the Court using the CM/ECF system.

/s/ Nga Mahfouz

Nga Mahfouz AR Bar No. 96149


mailto:[email protected]

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4:13-cv-00410 #28