Why couldn't a 2013 Arkansas ballot measure allowing same-sex marriage get its ballot title certified?

Plain-English summary

Jack Michael Weir III, of the Arkansas Initiative for Marriage Equality, asked the Attorney General to certify the popular name and ballot title for a proposed constitutional amendment, "The Arkansas Marriage Amendment," that would recognize marriage as a union between two people regardless of sex and repeal Amendment 83 (the 2004 provision defining marriage as one man and one woman). Attorney General Dustin McDaniel rejected the submission, the third from this sponsor, and could not fix it himself.

As in every ballot-title review, the AG stressed his job was only to check whether the popular name and ballot title honestly and clearly summarize the measure, not to judge whether allowing same-sex marriage is a good idea. Here the measure's own text carried several ambiguities that made a fair summary impossible. In Section 2, the clause saying clergy who refuse to perform a ceremony create no "cause of action or civil claim" was unclear about whether those two terms meant the same thing. In Section 3, the text barred a "state official" from denying a marriage license, but the proposed title recast that prohibition as an affirmative duty "to issue marriage licenses," and it was unclear who counted as a "state official" when county clerks are the ones who issue licenses under A.C.A. § 9-11-203. And Section 4, read literally against Amendment 83, would leave valid both same-sex marriages and other relationships "substantially similar to marital status," such as civil unions, a change the ballot title never summarized. Because of these disconnects, the AG rejected the title and told the sponsor to redesign the measure.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Was the Attorney General deciding whether same-sex marriage should be legal in Arkansas?
A: No. He wrote that neither certifying nor rejecting a title reflects any view on the merits, and that his office "has been given no authority to consider the merits of any measure." His review was limited to whether the title fairly summarized the proposed amendment.

Q: What was wrong with the clergy-protection language?
A: Section 2 said that a clergy member's or religious organization's refusal to perform a ceremony "shall not create a cause of action or civil claim." The AG found that ambiguous because it was unclear whether the sponsor meant "cause of action" and "civil claim" to be the same thing or two distinct legal concepts.

Q: Why was the phrase "state officials" a problem?
A: The text prohibited a "state official" from denying a license, but the ballot title described an affirmative requirement that officials issue licenses, a mismatch. On top of that, the AG noted that under A.C.A. § 9-11-203 it is county clerks who issue marriage licenses, so calling them "state officials" left unclear who the section actually reached.

Q: What did the measure do to Amendment 83 and civil unions?
A: Section 6 repealed Amendment 83 in full. The AG explained that Amendment 83 established four principles, including that same-sex couples cannot enter a relationship "substantially similar" to marriage. Repealing it, under the proposal's literal wording, would let both same-sex marriages and "substantially similar" civil unions be valid in Arkansas, which the title did not disclose to voters.

Background and statutory framework

Before petitions can circulate, the Attorney General must certify a proposed measure's popular name and ballot title under A.C.A. § 7-9-107. The Arkansas Supreme Court requires a ballot title to give voters a fair understanding of the issues and to disclose essential facts, while staying brief and concise (A.C.A. § 7-9-107(b)) to respect the five-minute booth limit of A.C.A. § 7-5-522. The AG drew the governing standards from cases such as Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000), Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994), and Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), and quoted Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952), for the point that a ballot title's job is to inform the voter of the changes the measure would make to existing law.

This opinion is one of several 2013 submissions on same-sex marriage that the office reviewed. Amendment 83, adopted by Arkansas voters in 2004, was the existing constitutional provision each of these measures sought to change.

Citations and references

Statutes:

• A.C.A. § 7-9-107 (Repl. 2011) (AG certification of popular name and ballot title)
• A.C.A. § 7-9-107(b) (ballot title must be brief and concise)
• A.C.A. § 7-5-522 (five-minute limit in the voting booth)
• A.C.A. § 9-11-203 (county clerks issue marriage licenses)
• Ark. Const. Amendment 83 (marriage; marital status)

Cases:

• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994), essential-facts and ballot-title standards
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), internal inconsistencies in a measure's text
• Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952), ballot title informs the voter of changes to existing law

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THe ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-121

October 7, 2013

Jack Michael Weir, III

Arkansas Initiative for Marriage Equality
Post Office Box 13963

Maumelle, Arkansas 72113

Dear Mr. Weir:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107
(Repl. 2011), of the popular name and ballot title for a proposed constitutional
amendment. You have previously submitted two similar measures, both of which
this office rejected for various reasons. See Op. Att’y Gen. Nos. 2013-112 and
2013-072. You have made changes to your proposal since your last submission
and have now submitted the following proposed popular name and ballot title for
my certification:

Popular Name

The Arkansas Marriage Amendment

Ballot Title

An amendment to the Arkansas Constitution to recognize marriage
as a union between two people regardless of sex. No member of any
clergy or religious organization shall be obligated to provide
wedding ceremonies or participate in the solemnization of any
marriage. Refusal by clergy or religious organizations to participate
shall not create any civil claim or cause of action. This proposed
amendment would result in the repeal of Amendment 83 of the
Arkansas Constitution, require state officials to issue marriage

323 CENTER STREET, SUITE 200 * LitTLE Rock, ARKANSAS 72201
TELEPHONE (501) 682-2007 * Fax (501) 682-8084
INTERNET WEBSITE ¢ http://www.ag.state.ar.us/

Jack Michael Weir, II

Arkansas Initiative for Marriage Equality
Opinion No. 2013-121

Page 2

licenses and provide protection to religious organizations and clergy
from any legal requirement to participate in marriage ceremonies.

The Attorney General is required, pursuant to A.C.A. § 7-9-107, to certify the
popular name and ballot title of all proposed initiative and referendum acts or
amendments before the petitions are circulated for signature. The law provides that
the Attorney General may substitute and certify a more suitable and correct
popular name and ballot title, if he can do so, or if the proposed popular name and
ballot title are sufficiently misleading, may reject the entire petition. Neither
certification nor rejection of a popular name and ballot title reflects my view
of the merits of the proposal. This Office has been given no authority to
consider the merits of any measure.

In this regard, A.C.A. § 7-9-107 neither requires nor authorizes this office to make
legal determinations concerning the merits of the act or amendment, or concerning
the likelihood that it will accomplish its stated objective. In addition, consistent
with Arkansas Supreme Court precedent, unless the measure is “clearly contrary to
law,”! this office will not require that a measure’s proponents acknowledge in the
ballot title any possible constitutional infirmities. As part of my review, however,
I may address constitutional concerns for consideration by the measure’s
proponents.

Consequently, this review has been limited primarily to a determination, pursuant
to the guidelines that have been set forth by the Arkansas Supreme Court,
discussed below, of whether the popular name and ballot title you have submitted
accurately and impartially summarize the provisions of your proposed amendment.

The purpose of my review and certification is to ensure that the popular
name and ballot title honestly, intelligibly, and fairly set forth the purpose of
the proposed amendment or act.”

' See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353,
359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).

• See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).

Jack Michael Weir, II]

Arkansas Initiative for Marriage Equality
Opinion No. 2013-121

Page 3

The popular name is primarily a useful legislative device.’ It need not contain
detailed information or include exceptions that might be required of a ballot title,
but it must not be misleading or give partisan coloring to the merit of the
proposal.’ The popular name is to be considered together with the ballot title in
determining the ballot title’s sufficiency.

The ballot title must include an impartial summary of the proposed amendment or
act that will give the voter a fair understanding of the issues presented.° According
to the court, if information omitted from the ballot title is an “essential fact which
would give the voter serious ground for reflection, it must be disclosed.”’ At the
same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9-
107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522’s five minute limit
in voting booths when other voters are waiting in line.’ The ballot title is not
required to be perfect, nor is it reasonable to expect the title to cover or anticipate
every possible legal argument the proposed measure might evoke.” The title,
however, must be free from any misleading tendency, whether by amplification,
omission, or fallacy; it must not be tinged with partisan coloring.'” The ballot title

Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).

4 E.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976). ; Moore v. Hall, 229
Ark, 411, 316 S.W.2d 207 (1958).

• May v. Daniels, 359 Ark. 100, 105, 194 S,W.3d 771, 776 (2004).

° Becker v. Riviere, 270 Ark, 219, 226, 604 S,W.2d 555, 558 (1980).
” Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994),

• Id. at 288, 884 S.W.2d at 944.

” Id. 293, 884 S.W.2d at 946-47.

'° Td. at 284, 884 S.W.2d at 942.

Jack Michael Weir, III

Arkansas Initiative for Marriage Equality
Opinion No. 2013-121

Page 4

must be honest and impartial,'’ and it must convey an intelligible idea of the scope
and significance of a proposed change in the law.’

Furthermore, the Court has confirmed that a proposed amendment cannot be
approved if “[t]he text of the proposed amendment itself contribute[s] to the
confusion and disconnect between the language in the popular name and the ballot
title and the language in the proposed measure.”’® The Court concluded that
“internal inconsistencies would inevitably lead to confusion in drafting a popular
name and ballot title and to confusion in the ballot title itself.”’* Where the effects
of a proposed measure on current law are unclear or ambiguous, it is impossible
for me to perform my statutory duty to the satisfaction of the Arkansas Supreme
Court without clarification of the ambiguities,

Having analyzed your proposed amendment, I conclude that certain ambiguities
and deficiencies prevent me from certifying your proposal as submitted and from
substituting a more suitable and correct popular name and ballot title pursuant to
A.C.A. § 7-9-107(b).

Ambiguities associated with Section 2

Section 2 of your proposal states that “[n]o member of the clergy or a religious
organization shall be obligated to perform any marriage ceremony or
solemnization and the refusal of a clergy member or a religious organization to do
so shall not create a cause of action or civil claim.”

The clause stating that “...the refusal of a clergy member or a religious
organization to [perform any marriage ceremony or solemnization] shall not create
a cause of action or a civil claim,” is ambiguous because it is not clear whether

"' Becker vy, McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).

"2 Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994)
(internal quotations omitted).

° Roberts y. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 383 (2000).

4g

Jack Michael Weir, III

Arkansas Initiative for Marriage Equality
Opinion No. 2013-121

Page 5

you intend “cause of action” and “civil claim” to be synonymous or to refer to
distinct legal actions.

Ambiguities associated with Section 3
Section 3 states: “No state official shall deny the issuance of a marriage license on
the basis of the sexes of the individuals seeking the marriage license.”

e Thus, the proposal’s text prohibits a “state official” from denying “the
issuance of a marriage license” on certain grounds. But instead of
summarizing this provision as a prohibition on certain actions, the ballot
title summarizes it as an affirmative obligation to engage in certain actions:
“This proposed amendment would...require state officials to issue
marriage licenses....” (Emphasis added.) This distinction creates an
ambiguity regarding what you take to be the effect of your proposal’s text.
Consequently, I am unable to summarize your proposal’s text in a ballot
title.

e In addition, Section 3’s reference to “state officials” is unclear. Pursuant to
A.C.A. § 9-11-203, “county clerks” have the authority and obligation to
issue matriage licenses.

Ambiguities associated with Section 4

Section 4 states: “Legal status for unmarried persons which is identical or
substantially similar to marital status, such as a civil union, shall be valid and
recognized in Arkansas.”

As I noted in response to your most recent submission, the Arkansas Supreme
Court requires some attempt at explaining to voters how a proposed constitutional
amendment would affect current law:

[T]he elector, in voting upon a constitutional amendment, is simply
making a choice between the retention of the existing law and the
substitution of something new. It is the function of the ballot title to
provide information concerning the choice that he is called upon to
make. Hence the adequacy of the title is directly related to the degree

Jack Michael Weir, III

Arkansas Initiative for Marriage Equality
Opinion No. 2013-121

Page 6

to which it enlightens the voter with reference to the changes that he
is given the opportunity of approving. !°

Thus, the ballot tithe must both accurately summarize the measure’s text and
inform the voter of how the measure would change current law.

To see the ambiguities in this Section and to see why this Section’s ballot-title
summary is deficient, we need to examine Amendment 83 to the Arkansas
Constitution.

Amendment 83, when considered in its entirety and for purposes of this opinion,
addresses four distinct matters related to same-sex marriages (or relationships
“substantially similar” thereto). Amendment 83 references the legal nature of the
relationship by identifying two categories (same-sex marriage or something
“substantially similar” thereto), The Amendment also distinguishes the jurisdiction
in which the legally-valid relationship was entered into (in Arkansas or out-of-
state). Accordingly, for our purposes, Amendment 83 establishes the following
principles of law:

1. Two persons of the same sex cannot validly marry in Arkansas.
2. Two persons of the same sex cannot, in Arkansas, validly enter into any
   other kind of legally-recognized relationship that is “substantially similar”

to marriage.

3. Arkansas cannot recognize the validity of a same-sex marriage validly
   entered into out-of-state.

4, Arkansas cannot recognize the validity of a same-sex relationship that is
both “substantially similar” to marriage and was entered into out-of-state.

Section 6 of your proposal repeals Amendment 83 in its entirety. This clearly
would have the effect of repealing the above four principles. And, with the

’ Bradley y. Hall, 220 Ark. 925, 927, 251 S.W.2d 470 (1952).

Jack Michael Weir, III

Arkansas Initiative for Marriage Equality
Opinion No. 2013-121

Page 7

exception of principle (2), your proposed measure is clear regarding the law that
would be substituted for the above principles.'®

As for principle (2), it appears from your proposal’s literal wording that something
may be substituted that is unintended. Currently, as noted above in principle (2),
two persons of the same sex cannot, in Arkansas, validly enter into any other kind
of legally-recognized relationship that is “substantially similar” to marriage. Based
on the literal wording of your proposal, it seems that Arkansas law would be
changed such that two kinds of legally recognized relationships could originate in
Arkansas: (a) same-sex marriages; and (5) other relationships that are
“substantially similar” thereto, such as civil unions.

In my opinion, a proposal that is not clear on this point is likely to confuse voters.
This lack of clarity is exacerbated by the fact that your ballot title omits any
reference to this point. That is, your ballot title does not attempt to summarize for
the voter how your Section 4 would change existing law. This deficiency in the
text of your proposal must be clarified before I am able to certify that your ballot
title fairly and completely summarizes your measure,

I cannot begin to certify a ballot title for your proposed amendment in the face of
the ambiguities noted above. You must remedy these confusing and ambiguous
points before I can perform my statutory duty.

My office, in the certification of ballot titles and popular names, does not concern
itself with the merits, philosophy, or ideology of proposed measures. I have no
constitutional role in the shaping or drafting of such measures. My statutory
mandate is embodied only in A.C.A. § 7-9-107 and my duty is to the electorate. I
am not your counsel in this matter and cannot advise you as to the substance of
your proposal.

My statutory duty, under these circumstances, is to reject your proposed ballot title
(for the foregoing reasons) and instruct you to “redesign” the proposed measure
and ballot title. You may, after addressing the matters discussed above, resubmit

'© Under your proposal, two persons of the same sex can validly marry in Arkansas and Arkansas
must recognize the validity of (a) a same-sex marriage validly entered into out-of-state, and (d) a
same-sex relationship that is both entered into out-of-state and “substantially similar” to marriage.

Jack Michael Weir, III

Arkansas Initiative for Marriage Equality
Opinion No. 2013-121

Page 8

your proposed amendment, along with a proposed popular name and ballot title, at
your convenience. I anticipate, as noted above, that some changes or additions to
your submitted popular name and ballot title may be necessary. I will be pleased
to perform my statutory duties in this regard in a timely manner after
resubmission.

Sincerely,

Dus FA McDaNict

Attorney General
DM/cyh

Enclosure

(Popular Name)

The Arkansas Marriage Amendment

(Ballot Title)

AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO RECOGNIZE MARRIAGE AS A
UNION BETWEEN TWO PEOPLE REGARDLESS OF SEX. NO MEMBER OF ANY CLERGY
OR RELIGIOUS ORGANIZATION SHALL BE OBLIGATED TO PROVIDE WEDDING
CEREMONIES OR PARTICIPATE IN THE SOLEMNIZATION OF ANY MARRIAGE. REFUSAL
BY CLERGY OR RELIGIOUS ORGANIZATIONS TO PARTICIPATE SHALL NOT CREATE
ANY CIVIL CLAIM OR CAUSE OF ACTION. THIS PROPOSED AMENDMENT WOULD
RESULT IN THE REPEAL OF AMENDMENT 83 OF THE ARKANSAS CONSTITUTION,
REQUIRE STATE OFFICIALS TO ISSUE MARRIAGE LICENSES AND PROVIDE
PROTECTION TO RELIGIOUS ORGANIZATIONS AND CLERGY FROM ANY LEGAL
REQUIREMENT TO PARTICIPATE IN MARRIAGE CEREMONIES,

(Proposed Constitutional Amendment)

Section 1: Marriage defined.
Section 2: No interference with religious rights. Section 3: State officials' authority to issue

marriage licenses.

Section 4: Marital status.

Section 5: Capacity, rights, obligations, privileges, and immunities.
Section 6: Amendment 83 repealed.

Section 1: Marriage defined.

Marriage shall be defined as the union of two people, regardless of the sex of the individuals.

Section 2: No interference with religious rights.

No member of the clergy or a religious organization shall be obligated to perform any marriage
ceremony or solemnization and the refusal of a clergy member or a religious organization to do so shall

not create a cause of action or civil claim.

Section 3: State officials' authority to issue marriage licenses.

No state official shall deny the issuance of a marriage license on the basis of the sexes of the
individuals seeking the marriage license.

Section 4: Marital status.

Legal status for unmarried persons which is identica} or substantially similar to marital status, such as a
civil union, shall be valid and recognized in Arkansas.

Section 5: Capacity, rights, obligations, privileges, and immunities.
The legislature has the power to determine the capacity of persons to marry, subject to this
amendment, and the legal rights, obligations, privileges, and immunities of marriage.

Section 6: Amendment 83 repealed.

Amendment 83 to the Constitution of the state of Arkansas is hereby repealed.