ACLU Disappointed with Arkansas Supreme Court's Decision on Misleading "Marriage" Ballot Initiative

Affiliate: ACLU of Arkansas
October 7, 2004 12:00 am

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ACLU Disappointed with Arkansas Supreme Court’s Decision on Misleading “”Marriage”” Ballot Initiative


Statement of Rita Sklar, Executive Director, ACLU of Arkansas

LITTLE ROCK, AR — We are disappointed that the court has ruled that Proposed Amendment 3 will remain on the ballot.

As Justice Jim Hannah pointed out in his dissent, there is “simply a lack of candor in the popular name and ballot title.” The American Civil Liberties Union firmly believes that the people of Arkansas have the right to amend the state constitution when they are presented with a well-drafted and unambiguous question. But amending the constitution is not something to be taken lightly, and the amendment that the people will vote on is misleading.

Contrary to what the sponsors claim, the amendment could be interpreted to go much further than simply limiting marriage to a man and a woman. The amendment could mean that unmarried opposite-sex or same-sex couples that make the same kinds of commitments that married couples make are forever treated as strangers by the state, barring any type of protection or recognition for their relationships. Such protections as hospital visitation, the right to make medical decisions for a loved one, or survivor benefits for someone whose partner has died shouldn’t be constitutionally denied to loving, committed couples.

It is our hope that this lawsuit has made the voters of Arkansas more aware of the vagueness of this proposed amendment that seeks to write discrimination into our state constitution.

Selected quotes from the dissent of Associate Justice Ray Thornton:

“?The populate name and ballot title of Proposed Amendment 3 do not inform the voters of the context of the amendment or the consequences of a vote for or against the proposal.”

“Proposed Amendment 3 could repeal or modify a number of Arkansas statutes that affect the rights of unmarried persons and I believe that voters have a right to some warning that this proposal could limit the rights of single persons under the law.”

“Nothing in the popular name gives any notice that, in addition to prohibiting same-sex marriages, the text of the amendment is designed to impair or invalidate the rights of married people without regard to their sexual preference.”

Justice Thornton also explains what he saw as some possible effects of passing Proposed Amendment 3:

  • Ending the exemption from state income taxes for unmarried heads of households who make less than $12,000 per year
  • Widows and widowers – who are, by definition, not married – might not be able to keep surviving spouse benefits
  • Jeopardizing the constitutional rights of unmarried people to homestead exemptions
  • Could force employers to stop granting domestic partner benefits to unmarried employees

Selected quotes from the dissent of Associate Judge Jim Hannah:

“The issue before this court is simply a lack of candor in the popular name and ballot title, and I believe this court should compel drafters of popular names and ballot titles to be forthright and clear.”

“I believe that the popular name misleads the electorate? The issue is not whether such unions are good or bad, wise or improvident, but rather whether a voter understands what he or she is voting on? It is not difficult to imagine members of society who would certainly support marriage, but who might be reluctant to support the Amendment if it were clear from the name that the Amendment also precluded any other union of persons.”

“The term ‘legal status for unmarried persons’ is hopelessly vague and ambiguous. The legal status of unmarried persons is clearly ‘unmarried.'”

“?It is unlikely that voters will view the ballot title with the same degree of technicality as the petitioners did in this case. However, it was the intervenors who chose to use legal terms in the ballot title. The use of legal terms gives rise to the confusion the intervenors now seek to ignore. It also worthy of note that counsel for intervenors at oral argument stated, ‘Now, because voters, as long as they know what they are voting on, and if voters think it is misleading, if voters think it is confusing, they can reject it.’ This is precisely the evil the popular name and ballot must avoid.”

“Neither the popular name nor the ballot title meet the statutory requirements. They are one-sided, and only present a partial description of the proposed change to the Constitution.”

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