Wednesday, May 14, 2014

Arkansas Supreme Court denies stay of marriage order, but a wrinkle in ruling will halt issuance of licenses in Pulaski County

Posted By on Wed, May 14, 2014 at 5:38 PM

click to enlarge IN THE BEGINNING: Plaintiffs' lawyer Jack Wagoner, who succeeded in beating back a state stay attempt, is shown with a couple seeking a marriage license. Denial was part of the basis for a successful lawsuit. - BRIAN CHILSON
  • Brian Chilson
  • IN THE BEGINNING: Plaintiffs' lawyer Jack Wagoner, who succeeded in beating back a state stay attempt, is shown with a couple seeking a marriage license. Denial was part of the basis for a successful lawsuit.
The Arkansas Supreme Court has denied a request for an emergency stay of Judge Chris Piazza's order overturning the ban on same-sex marriage. The court also dismissed as premature an appeal of Piazza's ruling because it wasn't a final order.

Here's the opinion.
Marriage equality remains the law of the land in Arkansas, but the court injected a wrinkle that will give counties cover to continue to refuse marriage licenses to same-sex couples. And that wrinkle has prompted Pulaski Clerk Larry Crane to say that, for the time being, his office likely will cease issuing licenses to same-sex couples.

The court noted that Piazza's ruling didn't mention a statute that prohibits clerks from issuing marriage licenses to same sex couples. It remains in effect. Action will now shift to Piazza's court to pursue final orders, injunctive relief and a cleanup on the omitted statute.

Said Jack Wagoner, attorney for the plaintffs: 

We'll fix that tomorrow and be back here again.... How can you  find something unconstitutional but not affect a statute that would require the clerks to do something unconstitutional?  

Justices Donald Corbin and Paul Danielson issued a separate concurrence that said they simply would have dismissed the appeal for lack of a final order and rejected the emergency stay request because the case is still before the trial court.

In addressing Attorney General Dustin McDaniel's argument that the court should exercise its superintending authority and issue a stay because of confusion on the part of clerks on whether they should issue same-sex licenses, the court said:

We tum again to the circuit court's order. Here, the circuit court did not issue a ruling with regard to Ark. Code Ann. $ 9-11- 208(b) (Repl. 2009), "License not issued to persons ofthe same sex." Therefore, the circuit court's order has no effect on Ark. Code Ann. S 9-11-208(b) and its prohibition against circuit and counry clerks issuing same-sex marriage licenses. Accordingly, we deny the State's petition for an emergency stay of the circuit court's May 9,2074 order

At a minimum, this reads as clear protection for the 73 counties that have chosen not to issue licenses despite Piazza's order. Pulaski and Washington have continued to do so. Larry Crane, the Pulaski clerk, had been mindful of that statute throughout the period he's been issuing licenses, as Washington County has been. Both counties were among the six counties named as defendants in the suit.

Crane told the Pulaski Quorum Court last night that his attorney advised him to follow Judge Piazza's ruling and he intended to do so. But the ruling today has prompted Crane to reconsider. He told me by telephone:

As i have maintained all along i'm going to follow the law. The Supreme Court has now fairly clearly told me that, as least as of right now, I need to be following that statute, which means that in all likelihood at 8 a.m. in the morning we will not be issuing licenses. Having said that, I reserve the right for things to happen betwen now and then.

I would anticipate that plaintiffs counsel will very quickly file some sort of pleading in the case before Judge Piazza to ask for specific relief from that statue.

Crane said Piazza's ruling undoubtedly had many ripple effects on other statutes.

But I believe he was very unequivocal in his opinion that the Constitutional amendment and the statute he addressed violated both the Arkansas and U.S. Constitutions in denial of due process and equal protection. I'd anticipate he'll come right back [with an order on the outstanding statute] and we'll be right back where we were a few days ago.

Wagoner noted that the plaintiffs had specifically asked that the statute noted by the Supreme Court — and developed as the chief line of defense by counties seeking not to issue the licenses — WAS mentioned in his pleadings and that plaintiffs had asked the judge to enjoin it. He's said previously that he thinks Piazza's failure to include it in his summary judgment was merely an oversight.

I have been unable to reach Washington County clerk Becky Lewallen, but a county official had told me earlier in the day that he believed Washington County might be preparing to cease issuing licenses because of the legal advice that counties should not be issuing them with that statute still in effect.

It's not too early for some speculation. Remember that the plaintiffs asked the Supreme Court to deny a stay on the usual familiar grounds — that the state isn't likely to prevail on the merits and that irreparable harm would be done to plaintiffs. If the court was inclined to overturn Piazza, wouldn't it have been better to stay the order now and prevent a possible succession of hundreds of more couples to Larry Crane's office for marriage licenses? That's one school of thought. Another school of thought is that the Supreme Court membership is significantly different from the panel that unanimously struck down a statute aimed at discriminating against gay parents. A split on the court is thought likely, particularly given the higher political aspirations of some members in a state where public sentiment, though improving, remains set against same-sex marriage.

The optics of happy people tasting equality — with friends, kids, relative and admirers in tow — is powerful in the courts — real and of public opinion.

More than 400 marriage licenses have been issued to same-sex couples in Arkansas since Piazza's ruling Friday, beginning with 15 Saturday in Carroll County. The majority have been issued in Pulaski County, the state's most populous, with a handful in Saline and one in Marion counties along with several dozen in Washington County, home of the University of Arkansas and, like Pulaski, one of the few voting jursidictions in Arkansas that have consistently shown support for gay rights.

The state Health Department, after issuing 22 birth certificates listing both parents in a same-sex couple, has now stopped issuing them on account of Wednesday's court ruling. It said it was awaiting a final order from Piazza.

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